Union leaders assail labor ruling

CHICAGO — More employees could be classified as supervisors and barred from joining unions under a far-reaching ruling released Tuesday by the National Labor Relations Board (NLRB).

The board, in a 3-2 decision, said nurses whose regular duties include assigning nursing staff to patients during their shifts meet a key legal test for supervisor, whether or not they consider themselves part of management.

These so-called "charge nurses" exercise "independent judgment" when making assignments — another statutory hallmark of a supervisor, the board said.

"The immediate implications are devastating to workers in the health-care industry ... where professional employees direct or assign the work of others," AFL-CIO President John Sweeney said in a statement.

Unions said the decision would dramatically boost the number of employees barred from joining unions, stripping millions of workers of their rights to organize while hitting professional and experienced workers hardest.

Management advocates applauded the ruling but disputed predictions that it would sweep millions out of labor's reach.

"It's not a tsunami," said former NLRB member John Raudabaugh, a partner at Baker & McKenzie in Chicago, who filed a friend of the court brief in the case. "It's more like isolated thunderstorms."

Still, the labor board's dissenting members, Wilma Liebman and Dennis Walsh, called the ruling "among the most important in the board's history."

They wrote, "[The decision] threatens to create a new class of workers under federal labor law [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 dissenters wrote, noting that most professional jobs entail some supervisory responsibilities.

Stephen Bokat, an attorney for the U.S. Chamber of Commerce, praised the decision as providing "a good, clear standard" on what workers are supervisors.

"When undergoing any organizing efforts by unions, you have to know who in the work force belongs to you and who belongs to the union," he said.

The ruling was described by former NLRB chairman William Gould as "a radical reinterpretation of the statute to make it more difficult for 'charge nurses' to organize. This decision constitutes a flawed and erroneous interpretation," said Gould, who served on the NLRB in the 1990s and is now a professor at Stanford Law School. "It has potential for harm to the collective-bargaining process."

Anna Burger of the Change to Win Federation, a group of unions that split with the AFL-CIO last year, called it "another example of the Bush administration's disdain for the rights of working men and women."

The ruling came in a case involving an acute-care hospital, Oakwood Heritage Hospital in Michigan, where the board ruled that permanent charge nurses are supervisors — but not nurses who sometimes rotate into the charge nurse role.

The board used the Oakwood case and two others — one involving a Minnesota nursing home, the other a Mississippi metals plant — to address issues raised by a 2001 Supreme Court ruling.

Union officials predicted the ruling would have a chilling effect on union organizing because employees who are uncertain whether they qualify for membership would be less inclined to advocate a union.

"Many employees who are on the borderline are going to be concerned that if they support a union they now legally can be fired," said Craig Becker, AFL CIO associate general counsel.

Raudabaugh said the ruling provides ammunition to employers fighting union campaigns, who will be more likely to challenge whether some members of a proposed bargaining unit are ineligible.

"We will see greater delay and more resistance," he said.

At union employers "where you have a good relationship, you will probably do nothing," he said. But "where you have a bad relationship you may proceed [with challenges] because this is like sticking a finger in someone's eye and saying, 'We're going to push our position.' "

Dorothy Ahmad, a registered nurse at John Stroger Hospital, said the ripples would be felt among her colleagues, who are represented by the California Nurses Association, parent organization for the National Nurses Organizing Committee.

"A lot of charge nurses will step down rather than lose their union protection," she said. "It's really a very difficult job, and a lot of times they have patient assignments as well."

"A supervisor is one who has the power to hire and fire," she added, echoing an argument the NLRB rejected. "A charge nurse doesn't have that kind of power."

Material from The Associated Press was used in this report.