Some Workers Change Collars
Wednesday, October 4, 2006
The National Labor Relations Board ruled yesterday that nurses with full-time responsibility for assigning fellow hospital workers to particular tasks are supervisors under federal labor law and thus not eligible to be represented by unions.
The 3-to-2 decision, long awaited by unions and businesses, sets a new standard for determining who is a supervisor in the modern economy and could have significant implications for efforts by labor unions to organize nurses in the fast-growing health-care sector. Under federal law, supervisors do not have the right to belong to unions.
Labor leaders decried the ruling, with AFL-CIO President John Sweeney saying it "welcomes employers to strip millions of workers of their right to have a union by reclassifying them as 'supervisors' in name only." The labor-backed Economic Policy Institute said the new definition could affect 8 million workers who give direction to fellow workers in fields ranging from construction to accounting.
Business organizations applauded the decision, arguing that it will not have sweeping effects. "The business community thinks the standard is reasonable, but this is not a sea change," said Steve Bokat of the U.S. Chamber of Commerce.
The dispute, involving Oakwood Healthcare Inc., is one of many cases in a contentious area of labor law that have awaited a ruling since 2001, when the Supreme Court took issue with the NLRB's interpretation under the Clinton administration of what constitutes a supervisor. Since then, control of the NLRB has shifted to Republicans, who hold three of the five positions.
The case concerns Oakwood Heritage Hospital in suburban Detroit, where the United Auto Workers is trying to organize 181 registered nurses. The hospital had argued that 127 of the nurses -- two-thirds of the potential bargaining unit -- should be deemed supervisors and thus ineligible for union representation.
The NLRB disqualified only 12 of the nurses from belonging to the bargaining unit -- all full-time "charge nurses" whom the board deemed to be supervisors because of their responsibility for assigning and directing other workers on their shifts. But AFL-CIO associate general counsel Craig Becker argued that the decision was broader than it appeared, leaving room for nurses who rotate only temporarily through the job of charge nurse to be disqualified as well. And Barbara Medvec, senior vice president of Oakwood Healthcare, said the hospital will likely ask the NLRB to rule that another 115 nurses are supervisors for that reason.
The ruling defines workers as supervisors if they give assignments to other workers, if they are held responsible for the performance of those assignments and if they exercise independent judgment rather than follow an employer's detailed instructions. NLRB members Wilma B. Liebman and Dennis P. Walsh, the only Democrats on the board, argued in dissent that the definition was so broad it "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."
Bokat likened the unions' warnings to "Chicken Little saying 'the sky is going to fall.' " He pointed out that the NLRB, in applying the new definition to two other pending cases, found in both that the workers in question were not supervisors. Those two cases concerned charge nurses at Golden Crest Healthcare Center, a long-term care facility in Minnesota, and team leaders at Croft Metals Inc., a window manufacturer in Mississippi. "The result speaks for itself," Bokat said. "We were kind of disappointed."
Nurses who work only occasionally as charge nurses could be disqualified from joining unions under the decision, according to the AFL-CIO's Becker. He noted that the ruling defines a supervisor as an employee who spends "a regular and substantial portion of his/her work time performing supervisory functions." But the decision defines "regular" as meaning "according to a pattern or schedule" and "substantial" as "at least 10-15 percent of their total work time."
"If the next employer comes forward with evidence that someone is a charge nurse in one of every three shifts or one out of every four weeks, that would meet the definition of a pattern or schedule," he said.
University of Tennessee labor law professor Jeff Hirsch said the decision is important because the lines between workers and supervisors are blurring throughout the economy.
"You have far more workers who have a lot more responsibility than they did when the National Labor Relations Act was passed almost 60 years ago," he said. "It's not just a production factory floor with people punching out widgets. It's a much more skilled economy."