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Who's in charge? Unions see ruling as 'devastating'

       By Mehul Srivastava - Bee Staff Writer
       Published Wednesday, October 4, 2006

IN A DECISION WITH wide-ranging implications for millions of union
workers nationwide, the National Labor Relations Board has ruled that,
in most cases, nurses with minimal managerial duties can be considered
supervisors and are therefore ineligible for union membership.

The 3-2 ruling, made public Tuesday, is broad enough to set a precedent
for industries other than health care and was immediately assailed by
labor experts and union organizers, who said it could deprive millions
of American workers of the right to join a union.

"If the ruling remains unchanged, this is going to have a devastating
effect on unionization in the country," said Ross Eisenbrey, vice
president of the Washington, D.C.-based Economic Policy Institute.

The EPI estimates that a broad interpretation of the ruling could
immediately strip almost 1.4 million American workers of their union
membership, based on their current job duties. Another 8 million
non-union Americans could lose their right to join unions, according to
the same analysis.

The ruling's exact implications are somewhat murky because it shifts
power to individual employers, who may or may not decide to reclassify
their workers as supervisors.

The California Nurses Association said it expected nearly 30 percent of
its 70,000 members would be affected by this ruling.

"Essentially, we have a decision that ultimately opens the door to the
deunionization of registered nurses and silencing their voice," said CNA
president Rose Ann DeMoro, who said California nurses were ready to
strike if "any employer decides to act on this harebrained decision."

A California Hospital Association spokeswoman welcomed the clarity
provided by the ruling. "There is no uniform definition of a charge
nurse, but to the extent that they are directing the duties of other
employees, they are definitely supervisors," said Gail Blanchard-Saiger,
CHA's vice president of labor and employment. She said it would be up to
individual hospitals to decide how to apply the ruling.

The NLRB's decision involving Michigan-based Oakwood Healthcare Inc. is
one of three cases collectively called the "Kentucky River" cases, filed
in response to a 2001 Supreme Court suit involving the definition of a
supervisor. The current ruling attempts to settle a prickly, ongoing
question: Are workers who "assign and responsibly direct" other workers
supervisors or not?

The NLRB interpreted that question broadly, saying nurses who are
assigned to regular shifts as "charge nurses" are supervisors. Charge
nurses typically don't have the traditional duties of a supervisor --
such as hiring, firing or disciplining employees -- but because of
experience and training, sometimes direct the duties of other nurses.

In the two other cases, involving nurses at a Minnesota hospital and
"lead men" at a Mississippi manufacturing plant, the NLRB said that the
frequency and consistency of the supervisory duties would determine the
employees' status.

As the dissenters, NLRB members Wilma Liebman and Dennis Walsh warned
that the ruling threatens to create a "new class of workers under
federal labor law."

Those workers, they warned, "have neither the genuine prerogatives of
management, nor the statutory rights of ordinary employees. Into that
category fall most professionals, who by 2012 could number almost 34
million."

The AFL-CIO, America's largest union, said Tuesday it would make the
reversal of this decision -- either through litigation or legislation --
its top political priority for November's congressional elections.

"This is easily the most important challenge in front of American
workers right now, and we intend to fight it as hard as we can," Stewart
Acuff, national organizing director for the AFL-CIO, said in a phone call.

The industry groups that supported the reclassification remained mostly
silent on Tuesday, saying they needed time to analyze the complex,
31-page decision. The Washington, D.C.-based American Hospital
Association issued a brief statement, saying the NLRB had "recognized
the vital and special role charge nurses play in providing high quality
patient care."

"Since hospital staffing can vary -- not only hospital to hospital but
hour by hour -- this decision will play out differently hospital by
hospital," Pamela Thompson, the AHA's spokesperson on this issue.

Among those likely affected would be nurses like CNA member Steve
Lebeau, 50, who has been a charge nurse at Woodland Memorial Hospital
for about seven years. Besides his regular duties, he assigns
less-experienced nurses on his shift. He doesn't have the authority to
hire, fire or discipline workers. Under the current NLRB ruling,
Woodland Memorial Hospital could designate him as a supervisor, forcing
him to leave the union.

"If I had to lose my union membership to remain a charge nurse, I would
rather not be a charge nurse," he said.

Nelson Lichtenstein, a UC Santa Barbara professor who directs the Center
for the Study of Work, Labor and Democracy, called the decision an
"evisceration of labor, to say that any workers who are somewhat
knowledgeable and skilled should automatically not belong to a union,"
he said. "It's the ghetto-ization of unions to say that their members
should only be people who have no authority and no power."

The case is likely to be appealed and ultimately could reach the Supreme
Court.

           About the writer:
       * The Bee's Mehul Srivastava can be reached at (916) 321-1052 or
         mehul@sacbee.com .