Labor Law Change Could Gut Unions

By Kari Lydersen
The NewStandard

Monday 28 August 2006

By reclassifying workers with any significant authority in the workplace as "supervisors," the National Labor Relations Board may effectively gut millions' right to unionize.

With 24 years under her belt at Children's Hospital in Oakland, California, Martha Kuhl has plenty of wisdom to offer younger nurses and aides. And she does, along with asking for help when she needs it.

"I might say, 'Can you go check on this patient; can you take some vital signs?'" explained Kuhl, who is also a union organizer with the California Nurses Association (CNA), which represents 65,000 registered nurses in the state.

Advising, asking and delegating are routine for nurses, according to those in the profession. But under rulings expected soon from the National Labor Relations Board (NLRB), these job duties could label Kuhl and many other nurses "supervisors." The rulings could also affect millions of workers in other professions.

The impact of such a title change would not be as simple as new business cards or an ego boost; it would take away their right to belong to a labor union.

If the NLRB acts as expected in imminent rulings on three separate 2002 cases - collectively known as the "Kentucky River" cases - more than 8 million workers could see their collective-bargaining rights disappear, according to an analysis by the Economic Policy Institute (EPI), a progressive research organization.

The NLRB rulings could essentially change the way the Board interprets the definition of "supervisor" in the National Labor Relations Act, a 1935 law that defines workers' rights.

Up until now the definition of supervisor under the Act has generally been interpreted to hinge on the power to hire or fire. But employers have been pushing for a new interpretation that would also emphasize the "responsibly to direct" other employees while using "independent judgment" - phrases also included in the Act's definition of a supervisor.

"The issue isn't so much hire and fire, but what does responsibly to direct mean," said Dave Parker, deputy executive secretary of the NLRB. "What does it mean to have independent judgment? That's what the Board is drilling down on in terms of deciding these cases."

Meanwhile between 60 and 100 cases pending before the NLRB are stalled until the Kentucky River decisions are handed down. Many of those cases involve union elections in which the supervisor issue could make or break the outcome.

Labor leaders fear a new interpretation would classify as a supervisor anyone who delegates tasks. The EPI estimates that 843,000 registered nurses - more than a third of all RNs nationwide - and 123,800 licensed practical nurses could be affected by a new interpretation, as well as 180,700 cooks, 167,000 secretaries, and tens of thousands of cashiers, electricians, bank tellers, repairmen and pharmacists.

The three challenges facing the NLRB are the Oakwood Healthcare case, involving hospital nurses represented by the United Auto Workers (UAW); Golden Crest Healthcare Center, involving nurses at a long-term care facility represented by the United Steelworkers (USW); and Croft Metals, involving "leadmen" and "load supervisors" at a manufacturing facility represented by the Boilermakers union.

The cases are referred to as "Kentucky River" because they will clarify labor issues left open by the US Supreme Court's 2001 ruling of that name, which dealt with nurses at a mental health facility. The cases will be decided separately, but all are expected to be key determinants in redefining how "supervisor" is interpreted in the Labor Relations Act.

A number of business groups, including the US Chamber of Commerce and American Hospital Association, have filed briefs with the NLRB asking for a broad definition of supervisor status.

Kathleen Casavant, director of the AFL-CIO's Voice at Work campaign, said labor leaders "absolutely believe it's an overt effort" to undercut employees' ability to form unions. She said the AFL-CIO is asking people to pressure their elected officials to contact the NLRB in opposition to classification change.

The AFL-CIO also sponsored marches in more than 20 cities the week of July 10 in protest of the change. The demonstrations culminated in a march on the NLRB office in Washington, DC.

"Over the past fifteen or twenty years, corporations have been moving toward this whole team-building model, saying it's more efficient," said Casavant. "So anyone who's a team leader could be reclassified."

While numerous trades and professions may be affected, nurses have taken the lead in raising public awareness about the potential change. The California Nurses Association/National Nurses Organizing Committee (CNA/NNOC), known for its battles with California Governor Arnold Schwarzenegger, have held protests around the country, including outside a Chicago meeting of the American Hospital Association on August 8.

"We've been making sure all the nurses we represent understand the potential impact this decision could have," said Kuhl. She notes that even if the definition is changed, employers could voluntarily allow reclassified employees to continue as union members, a crucial caveat for a union-heavy profession like nursing, where the reclassification could gut an entire workforce's collective-bargaining rights.

In most healthcare situations, there will be a rotating "charge" nurse making decisions and keeping an eye on things during each shift. These nurses usually move between positions; they are not permanently in charge of a given unit.

"Today I might be in charge for eight hours; tomorrow I'm back at the bedside," said Margaret Shanks, a nurse at Children's National Medical Center in Washington, DC for 27 years and a member of the District of Columbia Nurses Association union.

Meanwhile, given the nature of the health profession, all nurses are likely to request assistance from their co-workers on a regular basis.

"Sometimes I can't leave my patient, so I might ask an aide to get something for me or go to the blood bank," said Shanks. "If you've been there that long you know how your unit runs, so naturally you'll be mentoring younger nurses. That doesn't make me a supervisor, and that shouldn't take away my right to be in a union."