Under NLRB Ruling
Strip Union Rights Of Charge Nurses

By GINGER ADAMS OTIS

In a decision that top labor leaders called "illogical and unprecedented," the National Labor Relations Board ruled Oct. 3 that full-time charge nurses should be considered supervisors, making them ineligible for union protections under Federal law.

ANN BOVÉ: Ruling affects patients.

The ruling was part of a Michigan case known as Oakwood Healthcare. It's one of three nursing-related issues collectively referred to as the "Kentucky River cases" because they grew out of a 2001 U.S. Supreme Court case, NLRB vs. Kentucky River Community Care.

The labor groups involved in representing the nurses in the Oakwood case said they would appeal the ruling.

Called Decision-Makers

The NLRB said that Registered Nurses and Licensed Practicing Nurses acting as "charge nurses" in hospitals and long-term care facilities should be considered supervisors by management because they make "independent decisions" and sometimes assign tasks to other nurses.

"Thus, for example, a registered nurse who makes the 'professional judgment' that a catheter needs to be changed may be performing a supervisory function when he/she responsibly directs a nursing assistant in the performance of that work," the majority decision said. "Whether the registered nurse is a 2(11) supervisor will depend on whether his or her responsible direction is performed with the degree of discretion required to reflect independent judgment."

JOHN SWEENEY: 'Devastating' implications.

The five-member NLRB board was appointed by President Bush. The panel's two Democrats both disagreed with the ruling.

Caught in Between

In their dissenting statement, they said the ruling "threatens to create a new class of workers under Federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees. Into that category may fall most professionals (among many other workers), who by 2012 could number almost 34 million, accounting for 23.3 percent of the work force."

Critics also noted that nurses have no power to hire, fire, or evaluate workers, or set worker wages.

Members of the New York State Nurses Association, which represents more than 34,000 members, held a press conference denouncing the ruling the day after it was announced.

Ann Bové, an RN and president of the NYSNA delegate assembly, said the decision could hinder nurses' ability to advocate for their patients.

"Because of this decision, when charge nurses speak up about unsafe conditions, they could lose their jobs," she said. "We rely on the strength of our union to protect us. We have used that strength to negotiate contracts that set staffing guidelines and curtail mandatory overtime. Our first allegiance is always to our patients, and our union gives us the power to advocate for them."

Could Affect 8 Million

If the decision holds up under appeal, labor organizers said last week, as many as eight million workers might eventually be reclassified by employers as ineligible for union membership. Others might be able to stay in a union as a non-voting member, but would lose their legal protections from being unjustly fired or disciplined.

Although the decision applies only to charge nurses, it sets a precedent that could be used in similar cases in other industries, according to AFL-CIO President John Sweeney.

"The immediate implications of the Oakwood Healthcare Inc. case are devastating to workers in the health-care industry and potentially in other industries where professional employees direct or assign the work of others," he charged.

NYSNA and other health-care advocacy groups worried that the decision could exacerbate an already serious shortage of qualified nurses nationwide.

Give Nurses Option?

NYSNA is one of 11 unions that have formed a coalition called RNs Working Together to spearhead discussions with hospital management on how to avoid staffing problems in the wake of the decision. They are urging managers to let their employees decide if they want to join a union.

The NLRB rejected calls from a bipartisan Congressional group to hold oral arguments on the cases that led to the ruling. The board has permitted no oral arguments on any cases since President Bush took office. In contrast, there had been up to 10 a year in previous administrations.