By Elizabeth Lalasz | October 13, 2006 | Page 11

IN ONE of the most anti-union rulings in its history, the National Labor Relations Board (NLRB) voted October 4 to reclassify some types of employees as supervisors, potentially barring millions of workers the right to be in or join a union.

The NLRB's 3-2 decision involving Michigan-based Oakwood Healthcare, Inc., is one of three cases collectively called "Kentucky River," which were filed in response to a 2001 U.S. Supreme Court lawsuit involving the definition of a supervisor. The court ruled that nurses and other health care workers were not entitled to join unions if their duties include supervising others.

Under federal law, a supervisor is someone who exercises "independent judgment" and who assigns and directs other employees. The NLRB interpreted this broadly, saying nurses who are assigned to regular shifts as "charge nurses" are supervisors.

Charge nurses typically do not have traditional duties of a supervisor--such as hiring, firing or disciplining employees. But because of experience and training, charge nurses direct the duties of other nurses.

The other two cases involve nurses at a Minnesota hospital and "lead men" at a Mississippi manufacturing plant.

"A lot of charge nurses will step down rather than lose their union protection," Dorothy Ahmad, an RN at John Stroger Jr. Cook County Hospital in Chicago, represented by the California Nurses Association/National Nurses Organizing Committee (CNA/NNOC) said. "A supervisor is one who has the power to hire and fire. A charge nurse doesn't have that kind of power."

Working in health care, nurses are always using independent judgment in order to better treat their patients and work more effectively, especially given short staffing and high nurse-to-patient ratios. This ruling will undoubtedly put even more pressure on RNs to work faster under difficult conditions and put many more patients at risk.

The Bush administration, along with the American Hospital Association (AHA) and U.S. Chamber of Commerce, pushed for a pro-employer ruling in Kentucky River in order to prevent unionization in this country, especially in health care.

With the acute shortage of nurses in the U.S., it is estimated that the demand for RNs will make it one of the largest growing professions over the next decade. The health care industry is also threatened by the success of unions like the CNA/NNOC, which has tripled over the last decade in large part because it actively fights for its members.

The ruling is also broad enough to set a precedent for other industries, including construction and mining. Its exact implications are murky, since it shifts power to individual employers, who may or may not try to enforce it.

"If the ruling remains unchanged, this is going to have a devastating effect on unionization in this country," said Ross Eisenbrey of the Economic Policy Institute (EPI). The EPI estimates that a broad interpretation of the ruling could immediately strip 1.4 million workers of their union membership.

Wilma Liebman and Dennis Walsh, the two dissenting votes on the NLRB, called the ruling "among the most important in the board's history."

"[The decision] threatens to create a new class of workers under federal labor laws [who] have neither the genuine prerogatives of management nor the statutory rights of ordinary employees," they wrote. "Into that category fall most professionals (among many other workers), who by 2012 could number almost 34 million, accounting for 23.3 percent of the workforce."

University of California-Santa Barbara professor Nelson Lichtenstein, director of the Center for the Study of Work, Labor and Democracy, called the decision an "evisceration of labor, to say that workers who are somewhat knowledgeable and skilled should automatically not belong to a union."

Nationwide, an estimated 400,000 RNs are represented by collective bargaining agreements, and it is unclear how many will be affected by the NLRB decision. As Rose Ann DeMoro, executive director of the CNA/NNOC said, the ruling "opens the door to redefining every nurse as someone who uses professional judgment and is therefore ineligible for collective bargaining."

The CNA/NNOC, which represents 70,000 registered nurses (RNs) throughout the country, says it will "go to war" if employers try to take away its members' union rights. On October 5, 400 RNs protested in Los Angeles, and actions took place in other cities including Chicago, St. Louis, Louisville, Ky., and Bangor, Maine, in response to the ruling. And CNA/NNOC members have signed 30,000 strike pledges and plan to strike any hospital that attempts to enforce Kentucky River.

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