REPORT: October/November 2006

NLRB ruling threatens nurses' rights

by Mark Genovese

Rod Roca doesn't have the authority to tell a sick colleague to go home. Yet, the National Labor Relations Board (NLRB) now says he’s one of the bosses.

This is because Roca is a permanent charge nurse. On Sept. 29, the NLRB ruled that permanent charge nurses may be considered supervisors and no longer eligible for union representation. The ruling could affect thousands of RNs in New York and New Jersey.

The board has issued several anti-labor decisions during the past few years. Many believe that the board reflects the pro-business viewpoint of the Bush administration and Republican Congress, which appointed them.

Unresolved issues from Kentucky River case

The NLRB ruling was intended to answer questions raised by the U.S. Supreme Court in its 2001 Kentucky River Community Care decision. In Kentucky River, the court said the NLRB’s guidelines for determining supervisory status were not clear enough and ordered the agency to issue more specific standards.

On September 29, the board’s majority applied new, broader definitions in a case involving RNs at a Michigan hospital. It ruled that permanent charge nurses qualified as supervisors because they assigned and directed other workers, using their independent judgment on a consistent basis. The board said that if any worker assigns or directs other workers using independent judgment, and the assigning or directing is done frequently enough, the worker could be considered a supervisor.

The board determined that rotating charge nurses did not qualify, because hospital officials failed to show they spent a “regular and substantial portion” of their work time on so-called management duties.

It’s now expected that the NLRB will rule on approximately 60 similar cases.

“That alone shouldn’t make me a supervisor”

According to NYSNA’s early interpretation of the ruling, only full-time charge nurses will be affected. This includes Roca, a member of the Delegate Assembly, who accepted a permanent charge nurse position at Claxton Hepburn Medical Center in Ogdensburg earlier this year.

“I make professional judgments as part of my duties as a nurse,” Roca said. “This consists of troubleshooting clinical problems. Although my duties include making daily assignments, that alone shouldn’t make me a supervisor. The duties that are outlined in the decision are not in my scope of responsibility. To try to twist it and say: ‘You’re a manager’ is wrong.”

“I’d like to know who actually has all this authority, because it’s certainly not me,” added Barbara Crane, a charge nurse at St. Catherine of Siena Medical Center in Smithtown and secretary of the DA. “It seems like the NLRB is trying to create a new class of workers who don’t have the rights and power of supervisors or managers, but they also don’t have the rights and protections of union members.”

RNs who are currently under contract will not be affected immediately, unless their facility’s administration decides to file with the NLRB for a redefinition of the bargaining unit. Nurses may face challenges, however, when their contracts expire. At the very least, hospital negotiators can be expected to use the status of charge nurses as a bargaining chip.

The immediate impact will be felt at facilities where NYSNA is trying to organize RNs. This has already happened at Community Medical Center in Toms River, N.J., where management has been successful in delaying a planned election.

Central topic at Convention

The ruling, issued just before NYSNA’s Convention in New York City, was the topic of a press conference held during the annual meeting. NYSNA leaders were joined by Denis Hughes, president of the New York State AFL-CIO and Ed Ott, executive director of the New York City Labor Council.

“Unions give nurses protection necessary to push for changes in working conditions and improve quality of care,” said Anne Bové, NYSNA Delegate Assembly president. “We rely on the strength of the union to protect us. Because of this decision, if charge nurses speak up about unsafe conditions, they will be in danger of losing their jobs.”

“This continues a trend of anti-union decisions by the NLRB,” said Hughes. “This agency, which was created to protect the rights of workers, now appears determined to take those rights away.”

“NLRB members are political appointees,” said Ott. “In November, every union member should vote for a change in Congress. We want leadership that supports workers’ rights rather than the demands of the healthcare industry.”

An attempt to silence nurses

NYSNA joined with other labor organizations in calling for a campaign to push Congress to reverse the effects of this ruling. Some unions have also considered filing legal challenges.

“This is the healthcare industry’s attempt to silence us for speaking out about the impact of the nursing shortage on patient care,” said Lorraine Seidel, director of NYSNA’s Economic & General Welfare program during convention. “Our approach to Kentucky River will be: Whatever it takes…” she said, pausing while the audience joined in to recite the motto, “…for as long as it takes.”

“Nurses will not be silenced, added Marva Wade, a staff nurse at Mount Sinai Hospital and a member of the executive council of United American Nurses. “We are even more committed to preserving our right to speak with one voice on behalf of our patients.”