Bush Labor Board Takes Organizing Rights Away From Millions Of Nurses And Other Workers

This afternoon, George W. Bush’s National Labor Relations Board, in a party-line 3-2 decision, took away bargaining rights for millions of American nurses and other workers.

The Board's findings were contained in its long-awaited Kentucky River decision which focused on whether certain nurses, called charge nurses, should be considered “supervisors” who are excluded from having the right to organize unions.

The origin of the supervisory exclusion was the 1947 Taft-Hartley Act which amended the National Labor Relations Act. The original National Labor Relations Act gave all employees the right to form unions and required that employers recognize certified employee unions and bargain in good faith. The Taft-Hartley Act, however, excluded supervisors, defined 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.

However, even the anti-union authors of the Taft-Hartley act made it clear that it did not intend to deny coverage to professional employees, lead workers or others whose jobs do not include major managerial responsibility to hire, fire and discipline other employees. Yet, the Republican-appointed majority today ignored that context, essentially finding favorable definitions for in the dictionary, rather than from clear Congressional intent.

NOTE: If this is all too confusing, just check out Stephen Colbert's hilarious here.

The current problem stems from a 2001 Supreme Court ruling that found that the NLRB’s analysis of the supervisory status of six registered nurses at a Kentucky nursing facility was flawed. The Board is therefore required to come up with a better definition of "supervisor." The problem is that some nurses act as "charge nurses," who are allowed to decide which patients will be seen by his or her colleagues. And despite the fact that charge nurses can’t discipline other employers, hire or fire, they could be considered management by an overly broad interpretation of the law.

And why are nurse unions such a big deal? Check out a few of these headlines from the past few days:

Strike Looms As Nurses Rally At Temple Hospital

PHILADELPHIA -- Nurses rallied at Temple Hospital Monday as the threat of a strike looms. Their contract with the hospital runs out at the end of the month, and workers believe the nurse-to-patient ratio is too high.

The issue is something Temple University Hospital nurses are now threatening to strike over. They said some units are so understaffed that patients’ lives are at risk.

Kaua'i nurse strike enters 12th week

Kaua'i, HI -- Wilcox Hospital nurses entered their 12th week on strike yesterday with new negotiations, and with demonstrations on O'ahu and Kaua'i.

Both sides say the key issue in the strike is the nurses' insistence on a system that would call in more nursing help when the needs of patients increase. Wilcox Hospital and its parent, Hawai'i Pacific Health, insist staffing is and should be a management function.

Union asks nurses at UMass to OK strike

Boston, MA -- The union representing about 850 registered nurses at UMass Memorial Medical Center's University Campus in Worcester has asked its members to authorize a strike, a sign that a nine -month contract dispute is worsening.

The union said its members are angry over the hospital's demands for concessions on pensions, health benefits, wages, paid days off, and layoff language. Negotiations began in January and little progress has been made, though the contract expired in April.

The decision makes an interesting read, particularly the section written by the two Board members who dissented, Wilma Liebman and Dennis Walsh. The decision focused on the words highlighted in the definition of a "supervisor" above. Liebman and Walsh point out that the legislative history of the act distinguished between real supervisors "vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such action " and "straw bosses, leadmen, set-up men, and other minor supervisory employees."

They pointed out that the the Republican-appointed Board majority focused on the individual dictionary definition of the words, rather than the context within which they were intended. In other words, "assign" was not intended by Congress to mean asking a nursing assistant to cover patients A, B and C, but it must be seen in the entire context of the terms used in the law, meaning "authority to determine the basic terms and conditions of an employee's job, i.e., position, work site, or work hours."

They point out that back when the term "straw boss" was in use, it was

A term applied to a worker who takes a lead in a team or gang, usually small in number, including himself, performing all the duties of the other workers in the gang. His supervisory functions are incidental to the production duties he performs.

In fact, most nurses and other professionals who work with assistants or as team leaders reoutinely play a role in assigning parts of a day's work.

Similarly, the term "responsibility to direct"

refers to the general supervisory authority delegated to foremen overseeing an operational department and the accountability that goes with it, in contrast to the kind of one-on-one task direction

such as asking an assistant to empty a bed pan or take a temperature. In other words, when the original law was passed, Congress sought to make a distinction between "indiviuals with 'essential managerial duties' and those with only 'minor supervisory ' duties."

Walsh and Liebman note that unlike real supervisors, charge nurses do not have the ability to hire, fire or discipline, nor do they have any formal role in the employee grievance process. In addition, they spend the vast majority of their time in line work "a fact that strongly tends to estbalish their status as s minor supervisory employees."

But those are just legal issues. As we have learned over and over again, simple legalities are not the issue for this administration; crushing labor unions is.

Liebman and Walsh provide describe the chilling implications of the decision:

Today’s decision 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.

The AFL-CIO’s Tula Connell points out in Daily Kos what this means for individual workers,

Sandra Falwell, a staff nurse at Children's National Medical Center in Washington, D.C., sometimes directs the work of less skilled or less experienced employees. Yet she's not part of hospital management. She does not have the ability to hire or fire employees, evaluate their performance or make other decisions regarding their work.

Under today's ruling, Falwell--and hundreds of thousands of workers like her--now could be classified as supervisors, and so cannot belong to a union. And not only nurses: journalists, building trades workers, port employees and many, many, others may now be considered supervisors under U.S. labor law and so barred from joining unions.

We’ll soon see what effect this ruling has on the ability of health care workers professional workers and others to organize. The Democratic members of the Board are pessimistic:

The result could come as a rude shock to nurses and other workers who for decades have been effectively protected by the National Labor Relations Act, but who now may find themselves treated, for labor-law purposes, as members of management, with no right to pursue collective bargaining or engage in other concerted activity in the workplace.

Indeed, supervisors may be conscripted into an employer’s anti-union campaign, while their pro-union activity is now strictly limited. The majority’s decision thus denies the protection of the Act to yet another group of workers, while strengthening the ability of employers to resist the unionization of other employees.

Nathan Newman notes that the Kentucky River ruling clears the field from more employer mischief and harassment of workers:

And the new expansive definition of "supervisor" means that more workers will be given nominal supervisory responsibilities to undermine their right to unionize-- and lock every union vote in endless delays as companies litigate who is and who is not a supervisor.

Even if the workers "win", the election will probably be delayed long enough to kill the union drive. And here are the dynamics when large numbers of workers are declared to be supervisors-- it means that friends in the workplace immediately are turned into enemies as supervisors are told to spy on their friends or lose their jobs. Instead of a union being about workers challenging the power of top management, it is turned into an internal workplace civil war.

This isn’t good new for anyone who’s ever planning on being a patient in a hospital either. Nurses unions are known to be strong advocates of increasing nurse-patient staff ratios and other measures that improve patient outcomes. Research shows that that increased nurse-staff ratios mean fewer hospital fatalities, fewer heart attacks, shorter time spent in the hospital, and fewer patient-safety errors.

Things are already bad enough in the U.S. A 2002 Government Accounting Office one quarter of the civilian American workforce — 32 million workers — were without collective bargaining rights.

The largest groups without rights were about 8.5 million independent contractors; 5.5 million employees of certain small businesses; 10.2 million supervisory/ managerial employees (including 8.6 million first-line supervisors); 6.9 million federal, state and local government workers; approximately 532,000 domestic workers; and 357,000 agricultural workers.

And as is increasingly common in George Bush’s United States, US laws are out of sync with international human rights. A 2000 report by Human Rights Watch(HRW) found that U.S. labor laws were grossly out-of-compliance with international human rights norms and failed to protect workers’ rights to organize unions and bargain collectively. The effect, according to HRW is that

Big chunks of the labor force are defenseless against employer reprisals if they try to exercise freedom of association. If they protest abusive working conditions, employers can fire them with impunity. If they seek to bargain collectively, employers can ignore them. Protection of the right to organize and bargain collectively, a bedrock requirement of international labor rights norms, is denied these workers.

What Happens Now?

The decision, according to the Washington Post, will undoubtedly end up in the Supreme Court again:

The decision is likely to be challenged all the way to the Supreme Court, which has twice rejected prior Board decisions for failing to give adequate consideration to such issues as a supervisor's use of independent judgment and the assignment or direction of staff. In those cases, the Board found that nurses who direct other employees in their patient care duties are not supervisors. The court sent the issue back to the board for more work.

It should be noted that the NLRB only took away these workers’ right to organize, not their ability to organize. In other words, instead of being protected by the NLRA – the right not to be fired for organizing activities, for example – these workers are being taken back to the law of the jungle that existed before the National Labor Relations Act was passed in 1935. Indeed, the famous Detroit sit down strikes of 1936-37, although they occurred after the Wagner Act was passed, did not use the NLRB’s protections, which most employers were ignoring anyway. In other words, to coin a phrase, “the workers united, will never be defeated” even if current interpretations of the law don't currently favor them.

And unions, like the California Nurses Association are not giving up.

Executive Director Rose Ann DeMoro said the decision "provides employers a road map to exclude hundreds of thousands of RNs from their rights. It forces RNs to choose between protecting their patients and keeping their job." DeMoro said there will be "a comprehensive response to this disgraceful decision."

Initially, she said, CNA/NNOC will:

• Put employers on notice in all CNA/NNOC-represented facilities that the RNs will strike if the employer seeks to exploit the ruling. More than 30,000 CNA/NNOC members have already signed strike pledges to do just that.
• Hold protests or other public events with RNs Thursday, October 5 in Los Angeles, Chicago, St. Louis, Louisville, and Bangor, Me. as a beginning wave of actions in response to the decision.
• Work with the AFL-CIO and AARN on legislation in Congress to overturn the decision.

AFL-CIO President John Sweeney stated that

Today’s decision is the latest in the Bush-appointed NLRB’s legal maneuvering to deny as many workers as possible their basic right to have a voice on the job and improve their living standards through their union. Over the last several years, the NLRB has chipped away at that right by limiting the eligibility of disabled workers, teaching assistants, temporary workers and others to join unions. Now, at the very time middle class workers need more help, not less, the NLRB is taking a broad swing.

Sweeney promised that

Over the next week, working people will be coming together in the streets in cities across the nation to make sure everyone knows the Bush Administration is slashing workers’ right to have a voice on the job.

And according to Change To Win Chair Anna Burger:

By narrowly defining several broad phrases of the National Labor Relations Act, the Bush appointed majority has created a blueprint for eliminating the right to union representation for most professionals and from millions of leadpersons and employees who are currently represented. Contrary to what the Bush majority says, this decision is not legally required, but is another in a growing string of decisions that further narrow the right to organize.

Those that see reclassifying employees as supervisors as an easy way to deny workers their rights, will find many employees unwilling to trade their rights for a sham title. They will also find that these working women and men do not stand alone.

What effect will this decision have on the upcoming election, amidst revelations that the Bush administration has known all along how bad things are going in Iraq, while the "family values" party is caught with its proverbial pants down defending child molesters?

We'll see, but sometimes I think that many Americans are so tired of politics and politicians and suspicious elections that they don't realize how much politics can affect their daily lives, particularly the one-third or more of their lives while at work. The Kentucky River decision should serve as a reminder to all nurses, professionals and anyone else who might be caught in the Bush ant-worker web that voting counts. It counts for staffing ratios in health care institutions, it counts for the ability to bargain about wages and benefits, it counts for safe workplaces, and most of all, it counts for respect.

Too bad we have to learn these lessons the hard way.