How Bushie Just Screwed 8 Million Nurses

by Jonathan Tasini

10.03.2006

If you wanted another great reason to drive this Administration and its enablers from power, the Bush majority at the National Labor Relations Board has just posted its ruling in a significant group of cases known collectively as Kentucky River. And it's very bad.

The board's ruling has now classified many nurses as "supervisors" if they simply exercise the most basic independent judgement in the course of their duties.

"Supervisors" don't have the protected rights under the National Labor Relations Act to form and join unions. To undercut union organizing drives, employers often try to classify workers as supervisors so they can't be part of the group that has the right to vote in a union representation election. Here's the practical point: no union protection means you can be fired or disciplined and you have no way to defend your rights.

The three cases (Oakwood Healthcare Inc., Golden Crest Healthcare Center, and Croft Metals, Inc.) dealt with registered nurses (RNs) acting as "charge" nurses in a hospital; "charge" nurses (RNs and LPNs) in a long-term care facility; as well as "leadmen" and "load supervisors" in a manufacturing facility.

A "supervisor" is defined, under the law, as:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. (29 USC 152 (11))
The NLRB Bushies (the general counsel, Ronald Meisburg, was a pro-management labor attorney at Ogletree, Deakins, Nash, Smoak & Stewart for more than two decades) ruled in the most important case--Oakwood Healthcare--that nurses are "supervisors" because they exercise "independent judgement" ("yes, that patient is going into cardiac arrest so I better do something") and direct other employees. Here's what the majority wrote:

Thus, for example, a registered nurse who makes the "professional judgment" that a catheter needs to be changed may be performing a supervisory function when he/she responsibly directs a nursing assistant in the performance of that work. Whether the registered nurse is a 2(11) supervisor will depend on whether his or her responsible direction is performed with the degree of discretion required to reflect independent judgment. In their tortured reasoning, the majority of the board sees these folks as supervisors because they might tell another nurse which patient to take care of--yet they have no power to fire or discipline a nurse. This defies logic and precedent, in my humble opinion.
As the dissenting two members of the board point out, the nurses "have no authority to determine an employee's job classification, designated nursing unit or work shift." Instead, the ruling:

...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. Into that category may fall most professionals (among many other workers), who by 2012 could number almost 34 million, accounting for 23.3 percent of the work force. [M]ost professionals have some supervisory responsibilities in the sense of directing another's work--the lawyer his secretary, the teacher his teacher's aide, the doctor his nurses, the registered nurse her nurse's aide, and so on.
While the majority of the board found that the facts of the two other cases--Golden Crest and Croft--did not show that workers acted as supervisors, the bad precedent in Oakwood will now rumble through the workplace. Though the Kentucky River cases focused mostly on the health care industry, the actual impact is huge, potentially reaching workers throughout the economy. In July, the Economic Policy Institute looked at these cases and found that, "hundreds of thousands of employees could be stripped of their contract protections and millions more across the economy could be denied the right to form unions or engage in collective bargaining."

Check out Colbert's take on Kentucky River and unions. It's brilliant.
http://www.huffingtonpost.com/jonathan-tasini/how-bush-just-screwed-8-m_b_30870.html