Hospital Organizing Has Slowed, Two Years After Labor Board's Controversial Supervisor Decision

Nurses surrounded the NLRB office in Los Angeles two years ago with 30,000 names on a pledge. They said they would strike if employers tried to use the Labor Board’s Kentucky River ruling to exclude RNs from their unions. In contracts negotiated since then, most employers have agreed to language that ensures nurses can stay in the union and won’t be called “supervisors.”

Joanne Thompson found out the hard way how management is exploiting a loose definition of a supervisor to strip workers of the ability to form unions. She had spent five years as a “charge nurse” at West Houston Medical Center, checking up on medication schedules and juggling workloads for the nurses on her floor, who monitor heart patients.

Thompson was handed a new job description in March that said she would now be a supervisor. But she couldn’t see how her work had changed a bit.

“We don’t have keys to the building, we don’t have the right to hire, fire, or discipline,” she said. “I knew enough about the labor laws to understand where that was going—there were none of the benefits but our labor protection rights were taken away.”

An active supporter of the National Nurses Organizing Committee, an affiliate of the California Nurses Association (CNA), Thompson chose to step down from her position so she could keep organizing to form a union.

NEW LAW, NEW TACTIC

Labeling workers “supervisors” is a tactic favored by union-busting law firms. One of them advised attendees at a Texas Hospital Association conference in February to “revisit job descriptions to determine if employees are supervisors under the new case law.”

That case law is three National Labor Relations Board decisions that came down in September 2006, known collectively as Oakwood, after a Michigan hospital central to one of the cases.

Labor’s allies predicted disaster: the decisions’ language so broadly defined who was a supervisor, they said, that 8 million workers could lose the right to union representation.

That hasn’t happened—at least, not yet.

The Oakwood cases clarified a 2001 decision, Kentucky River, and further tightened the noose around union organizing. But so far, the Board’s regional directors have interpreted the Kentucky River legacy narrowly. In the first 24 cases drawing on the decisions, only five declared that the employees in dispute were supervisors, according to an analysis prepared by the AFL-CIO and Claire Tuck of the Cohen, Weiss, and Simon law firm.

UNIONS ARE ‘SELF-CENSORING’

The greatest effects may be invisible to those outside union organizing war rooms.

Unions are “self-censoring,” says Craig Becker, associate counsel to both the Service Employees and the AFL-CIO. Since the decisions were announced two years ago, he’s counted 30 to 40 campaigns killed by the new elastic definition of a supervisor. He thinks the situation will only worsen.

While the impact on workers outside health care has been minimal, nurses—and charge nurses like Thompson in particular—have been especially affected by the Kentucky River decisions. To some degree, they direct other workers lower in the hospital hierarchy, opening the door to labeling them supervisors.

One subsequent decision, at the Salt Lake Regional Medical Center last year, held that a nurse who rotated into the charge nurse position as little as 10 percent of the time was considered a supervisor. A section of that hospital was found to have seven supervisors and zero non-supervisors.

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“Groups of workers basically become unorganizable because nobody can figure out before you litigate who’s a supervisor and who’s not,” said Nancy Schiffer, AFL-CIO associate general counsel. “And if you have a hospital unit with 10 supervisors and two workers, what power do those two workers have? The whole concept of collective action gets turned upside down.”

RULES STIFLE ORGANIZING

Gary Stevenson, organizing director for the American Federation of Teachers health care division, said he has pulled the plug on campaigns affecting thousands of health care workers.

“Unions have reduced the amount of effort and time they’ve spent organizing because of a sense of futility,” Stevenson said. “Organizing hasn’t stopped but it’s drastically been cut back.”

That futility arises in part from the intensive investigations hospitals force during union elections. They pick apart each task health workers perform, trying to establish that they add up to a boss’ role. The investigations can drag on for weeks, suffocating union drives and quickly piling up legal fees.

Tiring fights like one the Massachusetts Nurses Association won in January are common. Six nurses in a juvenile psychiatric facility wanted to organize. The Boston Medical Center objected, saying they were all supervisors. The Labor Board took days of testimony, only to reject the claim months later. Its decision ran 29 pages.

The sheer time and money required to unionize even the smallest groups of workers pushes unions toward strategies that avoid the Labor Board. Unions typically turn to a corporate campaign, which foregoes a traditional election to assault the company’s reputation from all directions and force it to recognize the union.

Unions are moving rapidly to avoid board elections, according to the analysis from AFL-CIO and Tuck. Between 2005 and 2006, the number of bids for union representation handled by the board’s regional offices shrank by about one-fourth.

STEP-DOWN AS STRATEGY

Other rules make organizing even trickier. Another case three years ago, known as Harborside, held that an election can be thrown out if an employee later declared a supervisor was involved in the organizing efforts. And workers found to be management have no legal protections. Supervisors who advocate a union can be disciplined or fired.

Charge nurses at Fremont Rideout Memorial Hospital north of Sacramento, California, bristled at the restrictions. On the eve of the Oakwood decision, management moved to exclude them from voting for representation by CNA. They organized a massive resignation campaign in response. Chaos ensued after about 50 charge nurses stepped down to staff nurse positions, in groups of three and four, over several days.

“While these nurses still provided quality care for their patients, the employer had administrative headaches and allowed charge nurses to vote,” said David Monkawa, CNA regional organizing director.

Charge nurses like Heather Avalos went on to vote in CNA by 60 percent. Two years—and three short strikes later—she’s still fighting for a first contract.

“Now they’re trying to say that because we’re charge nurses we have supervisory duties,” she said, “and we should have never been allowed to participate in the union.”