NLRB tries to sort out chiefs from Indians

The National Labor Relations Board, ruling in a hospital labor dispute last month, self-administered a major headache.

A Michigan hospital was challenging the right of some nurses to be represented by the UAW, formerly the United Autoworkers but now an agglomeration that includes aerospace and agricultural implement workers. Like other unions, the UAW is looking for new organizing opportunities as employment withers in blue-collar industries.

Oakwood Healthcare Inc. claims its charge nurses have supervisory responsibilities that disqualify them from union membership. The NLRB, prompted by the U.S. Supreme Court, used the case to re-examine some of the criteria that determine who in fact is a supervisor rather than someone with only incidental management responsibilities. The answer is particularly important for unions that must define the field of eligible workers as they try to gather support for an organization drive.

With health care Spokane County’s largest industry, the ruling has potential ramifications here as well. Many hospital employees have charge responsibilities that earn them modest wage premiums, some gained through collective bargaining. But above a certain, ill-defined level, exercising those responsibilities could make them supervisors beyond the pale of union membership.

In U.S. law, 12 criteria can be used to determine who is a supervisor. In the Oakwood case, the NLRB examined three; “assign,” “responsibility to direct”, and “independent judgment.” The details of their written opinion are a sure cure for insomnia. The upshot was a finding by the board’s three Republican members that nurses in most Oakwood Hospital departments are supervisors, some are not. Generally speaking, if nurses have charge responsibilities as part of their regular duties, and more than 15 percent of their time is dedicated to directing, assigning or what-have-you, they are supervisors. If they just fill in, they are not.

They majority members downplayed the implications of their decision.

“We anticipate no sea change in the law, and will continue to assess each case on its individual merits,” they wrote.

The two Democrat members dissented, arguing that the National Labor Relations Act was intended to open union membership to as many workers as possible. The majority’s definitions could deny union representation to millions of professionals who incidentally direct other employees, they wrote.

“The law 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.”

Although labor organizations pounced on the ruling, the majority’s assessment of its implications may be the most accurate, at least in Washington. Spokesmen for unions representing thousands of nurses and other medical professionals say the Oakwood case is unlikely to disturb relationships with hospitals that in some cases go back to the 1940s.

“We’re not anticipating it’s going to have any effect on our employers,” says Diane Sosne, president of the Service Employees International Union District 1199 Northwest, which represents nurses at Deaconess Medical Center and Valley Hospital and Medical Center.

The SEIU, she says, has already negotiated contract language with Kaiser Permanente and other major hospital operators that assures the NLRB ruling will not be a bargaining issue.

But Sosne adds that the union worries the decision, by denying union protection to many health professionals, could stifle voices that speak up for the best patient care.

At the Washington State Nurses Association, spokeswoman Anne Tan Piazza shares that concern, but added “We’re not rushing to judgment.” The WSNA represents workers at Sacred Heart and Holy Family hospitals.

Despite the NLRB’s bid for clarity, the potential effects of the ruling remain murky, she says.

And that, plus the obvious partisanship that divides the board, will likely expose the ruling to additional challenges. Who knew the word “charge” could have so many ambiguities?

The board is going to have one unambiguous need: aspirin.