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Flawed Ruling


Many nurses may not know the facts of the Kentucky River cases, but they do know this: Charge nurses are not supervisors.

Unfortunately, the National Labor Relations Board (NLRB) ignored the reality of nursing practice when it recently ruled that permanent charge nurses working in a Michigan hospital were supervisors and therefore ineligible for union protections.

The American Nurses Association (ANA) and some constituent member associations (CMAs) have denounced the NLRB decision and its potential impact on nurses’ workplace rights. Moreover, they are stepping up their efforts through a multipronged strategy to ensure that charge nurses have the continued right to union representation.

“We are deeply concerned with the NLRB decision because it represents an assault on the rights and preferences of nurses to join a union,” says ANA President Rebecca M. Patton, MSN, RN, CNOR. “We recognize that collective bargaining may not be the choice for everyone, but protecting and preserving that right is fundamental to the safety and well-being of both nurses and the patients they serve.”

In its decision, the NLRB broadened the definition of a supervisor under the National Labor Relations Act (NLRA) well beyond recognized supervisory authority, such as hiring, firing, or disciplining others. The NLRB said workers are supervisors if they assign an employee to a particular unit or location, to work at a certain time, or to do significant tasks. They also said workers are supervisors if they are held accountable for the tasks they assign.

“This decision clearly encourages hospitals to put administrative political priorities ahead of patients. And it’s a calculated decision to silence nurses from being patient advocates,” adds Lorraine Seidel, RN, director of New York State Nurses Association’s (NYSNA’s) collective bargaining program. “This decision potentially leaves a segment of the nursing workforce with neither the prerogatives of management nor protections of a union contract.”

The decision can have a chilling effect on nurses, agrees Barbara Frye, BSN, RN, Director of Labor Relations for the Washington State Nurses Association (WSNA). “I recall when nurses didn’t have the legal protection of collective bargaining contracts,” Frye says. “If they spoke out about a physician’s incompetent practice or an unsafe situation, they would be fired.”

“Charge nurses are leaders on the units and generally those with the most experience, so other nurses look to them to help them advocate for their patients. In this time of staffing shortages, hospital administrators have to stop and think what will happen if nurses say they don’t want to be charge nurses anymore.”

That certainly is a question that has crossed the mind of Barbara Crane, RN, CCRN, a permanent charge nurse at St. Catherine of Siena Medical Center on Long Island, New York. Like other charge nurses nationwide, she makes registered nurse (RN) assignments at the beginning of the shift, carries a full patient load, and serves as a resource person for the unit. The latter responsibility, however, is minimal because most of the RNs working in her hospital’s intensive care unit are long-time nurses like herself, she says.

“The day the NLRB made its decision is the day my job changed considerably,” says Crane, an ANA and NYSNA board member and president of her bargaining unit. “In the NLRB’s eyes, I went from being a staff nurse to a supervisor—and at risk for being taken out of my bargaining unit. I may be compelled to step down from my charge nurse position to protect my ability to remain a strong patient advocate.”

Connecting the dots
Before RNs were granted full collective bargaining rights in 1974, ANA advocated for their right to choose union representation. And for decades, employers have tried to exclude RNs from joining unions, in part by arguing that charge nurses are supervisors.  As a result, the NLRB and the U.S. Supreme Court have looked at various sections of federal labor law to resolve the issue—with ANA consistently providing nursing’s perspective. In 2001, the Supreme Court examined a case called NLRB v. Kentucky River Community Care, Inc., in which the employer argued that six RNs at its facility were supervisors and should be excluded from the bargaining unit. As part of its ruling, the court ordered the NLRB to more clearly define certain terms it uses when determining who is a supervisor.

Since 2001, the makeup of the NLRB has changed. Four of the five members are now appointees of the current President. This is the board deciding some 100 cases that turn on the issue of supervisory status.

The first three cases ruled on this Fall are known collectively as the “Kentucky River decision.” To read the rulings, go to www.nlrb.gov.

In the lead case, the employer wanted to prevent two-thirds of about 180 RNs working at Oakwood Heritage Hospital from becoming part of a bargaining unit because they worked as charge nurses. The NLRB excluded only the 12 RNs who were permanent, not rotating, charge nurses.

The NLRB claimed that these charge nurses, as a regular part of their duties, assigned nursing personnel to specific patients for whom they provide care during their shift. The board found that such assignments consisted of giving “significant overall duties” to an employee and met the statutory definition of a supervisor under the NLRA.

The NLRB also found that the charge nurses exercised independent judgment in making those assignments because they weighed patients’ conditions with the skill sets of nursing staff.
In this decision, the NLRB determined that only permanent charge nurses were supervisors because they exercised supervisory authority for a “substantial” part of their work time. However, the board defined “substantial” as being 10 to 15 percent of an employee’s time.
In a companion case focusing on charge nurses, the NLRB interpreted the meaning of “direct” to include instances when a charge nurse gives a certified nursing assistant the task of clipping a resident’s nails or emptying a catheter, if the charge nurse is ultimately accountable for the task being performed.

In this companion case, the NLRB did not exclude the charge nurses from their bargaining units, but it did apply a new—some say “muddier”—definition of the term “supervisor.”

Pushing back
“Although the NLRB’s recent rulings could affect hundreds of thousands of nurses, it remains to be seen what the actual impact will be,” according to ANA General Counsel Alice Bodley, JD. “We expect that hospitals will honor existing contracts, although some employers will try to take advantage of the broader definitions.”

Frye says that WSNA nurses generally have good working relationships with their employers. “More than 85 percent of our nurses are covered by collective bargaining contracts, so it’s part of our workplace culture,” Frye says. “The employers know it and respect it.”

But she agrees that certain employers will try to claim that charge nurses and even all nurses are supervisors during new contract negotiations or organizing efforts. Ross Eisenbrey, Vice-President and Policy Director at the Economic Policy Institute, says ultimately the decision will play out contract by contract, facility by facility. He warns, “Good management today can be replaced by hostile management tomorrow.”

To ease the impact of the decision, ANA and CMAs are launching more intensive campaigns to educate RNs about it and reviewing current nurse contracts to ensure they include strong language protecting charge nurses.

Nurses also contend that labor law must be reformed, but when the time is right. “We have to change Congress first by electing people who realize patients are at risk if nurses have no voice in the workplace,” Seidel says.

ANA will continue to work with its labor affiliate, United American Nurses (UAN), the CMAs, and other workplace rights groups to determine ongoing strategies. The UAN is working in coalition with 10 other AFL-CIO affiliates who’ve been fighting for contract language to better protect nurses’ union rights and raising awareness of the issue in the media and with the public.
On October 23, the AFL-CIO filed a complaint with the United Nations’ International Labor Organization alleging that the U.S. government violated international law standards in the Kentucky River decision. (For more information on the Kentucky River cases, go to www.nursingworld.org and uannurse.org.)

“The NLRB decision was really short-sighted,” Frye says. “We need to work on improving the health care system and not terrorizing nurses.”

Susan Trossman, RN, is the senior reporter in ANA’s Communications Department.

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