...Nurses respond to NLRB ruling stripping union rights
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the definitions of those things, and the
Supreme Court had said “independent
judgment” and “responsibly to direct”
are ambiguous and in need of more
precise defining by the NLRB.
Accordingly, the Board agreed to
consider Oakwood Healthcare’s appeal
in March 2002, to use it as a case to re-
fine its legal definition of supervisor.
A tight definition of supervisor isn’t
easy in the complex workplace hierar-
chy of health care. At Oakwood, RNs
report to an on-site nursing manager,
clinical managers, clinical supervisors
and assistant clinical managers, in ad-
dition to following doctors’ orders. But
they also direct less-skilled employees
to perform tasks such as feeding,
bathing and walking patients. Charge
nurses, in turn, are RNs who are re-
sponsible for overseeing their patient
care units. They meet with doctors and
patients’ family members, and they as-
sign other RNs, licensed practical
nurses, nursing assistants, technicians
and paramedics to handle particular
patients. Some RNs are charge nurses
on every shift they work, while some
rotate in and out, sometimes serving as
charge nurse and sometimes serving as
regular staff nurses.
For four-and-a-half years, the
Board heard arguments from both
sides and thought about it for a long
time, long enough that the Board’s
Clinton appointees’ terms expired and
were replaced with Bush appointees.
In the end, the Board said perma-
nent charge nurses were supervisors,
and so were rotating charge nurses if
they were regularly scheduled and
served as charge nurses at least 15 per-
cent of the time. Oakwood’s rotating
nurses weren’t regularly scheduled as
such, so they got to keep their union.
But its permanent charge nurses are
now excluded, and management has a
pretty good roadmap as to how to ex-
clude the others.
The decision is likely to harm
nurses unions in several ways. When
current contracts expire, management
could complain that charge nurses
don’t belong in the unit, and legally
they would presumably have the upper
hand in eliminating those individuals
from the union. But that could provoke
strong response from the unions, such
as the promised strike by CNA if man-
agement tries it.
Kaiser Permanente, which has the
best relations with its unions of any
health care system in the nation, has
already announced it has no intention
of reclassifying charge nurses. But it
remains to be seen what other employ-
ers will do.
At least one union used its latest
contract to postpone reclassification:
The Vermont Federation of Nurses and
Health Professionals, affiliated with
the American Federation of Teachers
Healthcare Division, ratified a three-
year contract in July that includes a
provision that no registered nurse or li-
censed practical nurse in the bargain-
ing unit can be considered managerial
PAGE 16
the two companion deci-
sions, have the potential
to spread this unwanted
“supervisor status” to
other workers besides
charge nurses. In the
cases of Golden Crest
Health Care and Croft
Metals Inc., the NLRB
didn’t say the workers
WEREN’T supervisors,
just that management had
failed to prove they were.
Some legal observers
have said this opens the
door to further legal chal-
lenges that would try to
expand the definition of
supervisor. At Golden
Crest, the NLRB said
nursing home manage-
ment failed to show that
charge nurses had the au-
thority to require other
employees to stay past the
end of their shifts or come
in from off-duty status.
It’s easy to see how man-
agement could get a dif-
ferent result: give them
that authority, and charge
nurses become supervi-
Kaiser Permanente RN Bruce Corkum, vice sors. At Croft, the NLRB
president of AFT Healthcare Northwest, tells said management failed to
reporters a recent NLRB decision will make it show that lead workers at
more risky for some nurses to challenge hospitals the factory were expected
over bad patient care decisions.
to use enough independ-
ent judgment to qualify as
supervisors.
or supervisory.
Overall,
it’s
likely that anti-union
But the bigger impact of the deci-
employers that have up-to-date legal
sion is likely to be that it slows union-
advice will tweak job descriptions and
ization drives: Employers fighting
change workplace practices to fit the
union campaigns will be able to ex-
clude charge nurses. And that’s not just broadened definition of supervisor, in
a numerical loss. Charge nurses are of- order to reduce or limit the number of
ten the nurses who’ve shown more ini- union members.
There is a chance the decision
tiative or leadership ability, and are of-
could
be reversed by a later Board.
ten the nurses leading union
The NLRB interprets the National La-
campaigns.
bor Relations Act, but its interpreta-
Finally, Oakwood Healthcare, plus
tions have changed depending on what
party is in the White House. For exam-
ple, Clinton appointees to the NLRB
ruled that graduate students working
as teaching and research assistants
could unionize. Bush appointees re-
versed that decision.
The NLRB’s decision in the Oak-
wood case was split 3-2, with the two
Democrats on the Board giving a dis-
senting opinion. The Board’s composi-
tion could change if and when the
White House goes to a Democrat. The
current White House occupant’s serv-
ice is limited to two terms, and expires
at the end of 2008.
November 2006
General Election
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