Amanda Fritz on the "Kentucky River" NLRB Decisions
[we're proud and honored to feature our first guest column today, written by Portlander Amanda Fritz--nurse, community activist, former candidate for City Council--about the impact of the "Kentucky River" labor decisions earlier this year, that potentially re-classified millions of workers as "supervisory" and thus ineligible for union organizing. Who better than our favorite health care populist to explain the ramifications, we thought? Take it away, Amanda...]
What is the National Labor Relations Board's recent "Kentucky River" decision, and should you care about it?
By Amanda Fritz, RN, MA
"OUTRAGE! Government Attacks Nurses, Eight Million Workers", screams the headline on a United American Nurses mailer I received earlier this month. "In a broadsided attack on basic democratic rights and working people, the federal government paved the way in October for employers to strip potentially as many as 800,000 RNs - and eight million workers overall - of their union rights."
Is this true? Well, yes and no. Yes, new stuff happened this fall. But no, the problem started in 1947, and has been coming down the pike with unstoppable force since 2001. Now is definitely the time to pay attention, and to do something about it.
In September 2006, the National Labor Relations Board (NLRB) ruled on three cases: Oakwood Heritage Hospital, Croft Metals Inc., and Golden Crest Healthcare Center. Together, the three pivotal NLRB decisions are known as the "Kentucky River" cases, because they were considered by the NLRB in the light of a 2001 US Supreme Court ruling, NLRB v. Kentucky River Community Care.
The issue really started way back in 1947. Then, Senator Ralph Flanders, (R - Vermont), whose other significant contributions to history included introducing a resolution censuring Senator Joseph McCarthy for "conduct unbecoming an American", succeeded in amending the National Labor Relations Act (NLRA) to add Section 2(11). This section responded to a US Supreme Court case earlier that year, Packard Motor Co. v. NLRB, which had determined that supervisors are included as "employees" under the NLRA. Senator Flanders' amendment, A Good Thing, added language describing the functions of a supervisor and excluding managers meeting it from the protections the Act. The intent was to protect more workers by distinguishing "genuine management prerogatives" from employees such as "straw bosses, lead men, and setup men" protected by the Act even though they perform "minor supervisory duties". [(emph Amanda's...ed.) Note the quaint language -- clearly the idea that a woman could be a lead or setup person was not considered in 1947].
For the next 54 years, the National Labor Relations Board (NLRB) - an appointed committee established to review disputes regarding implementation of the NLRA - interpreted Section 2(11) with significant doses of common sense as well as its rather vague guidelines, ruling that team leader workers who aren't true managers are eligible for the rights endowed by the NLRA.
Fast-forwarding to the 21st century, the real "OUTRAGE!" was in 2001, with the United States Supreme Court decision in NLRB v. Kentucky River Community Care. The Court ruled 5-4 that the NLRB had used "overly narrow construction of the definition of "supervisor" in Section 2(11) of the NLRA, in a manner "inconsistent with the Act". Registered nurses at the Kentucky River facility were "supervisors", the Court ruled, and therefore not eligible to vote on or participate in a proposed union bargaining unit for "employees". The NLRB was directed to revise its interpretation of the NLRA with more attention to Section 2(11).
The Oakwood ruling has all the details of this year's fallout from that directive. Bottom line in that case, is that nurses who are in charge of a shift more than 10-15% of the time, are "supervisors" and ineligible for new union membership. This is entirely consistent with the 2001 Supreme Court decision, in a similar case, so I find it hard to put it in the OUTRAGE! category and blame the Bush appointees on the NLRB or the federal government. Two Clinton-appointed members of the Board did dissent, however. A condensed version of all three case rulings is in the R-2603; 10/03/06; NLRB Issues Lead Case Addressing Supervisory Status in Response to Supreme Court's Decision in Kentucky River NLRB Press Release.
The AFL-CIO and unions all over the country hit the OUTRAGE! button. "If charge nurses, who don't have any power to hire, fire, or discipline the workers to whom they assign patient care, are supervisors, all workers who lead a team are at risk!", they yelled. And this is true. One estimate counts over 30,000 workers in Oregon now at risk for being classified as "supervisors", with loss of rights to join a union. Jobs in this category include cooks and chefs, secretaries, accountants and auditors, social workers, electricians, clerks, and cashiers, as well as nurses.
Immediate and ongoing impacts, however, are uncertain. In one of the very cases decided in September, Croft Metals, the NLRB found that although metal workers had the authority to "assign" other workers, they did not have to exercise "independent judgement" in doing so, and the employer had thus failed to prove that they were supervisors. In the second, Golden Crest Healthcare Center, the Board found the nurses were not supervisors. The NLRB states clearly, "we will continue to assess each case on individual merits", and subsequent decisions have shown that to be true. Rulings since Oakwood have been mixed. In Bon Harbor Nursing & Rehabilitation Center, the Board ruled Licensed Practical Nurses were not protected when joining a picket because they are "statutory supervisors" (boo!). But in Avante at Wilson, the Board found the employer had failed to prove that staff nurses possess Section 2(11) authority to order Certified Nursing Assistants to leave the facility or address their grievances, and remanded the case (yay!).
So what does all this mean for Oregon, and to you? The American Nurses Association notes in a press release on the Kentucky River decisions that, "In 1988, the NLRB said that collective bargaining gains accomplished though the creation of separate RN units have been an “important step toward making the nursing profession a more attractive employment opportunity.” " Unions in health care professions help front-line workers provide better service to consumers. Many nurses at OHSU and indeed throughout Oregon would not still be in the profession without the improvements in working conditions, pay, and involvement in patient care decisions won with the help of the Oregon Nurses Association and our strike in 2001-2. And you all want qualified, experienced nurses who aren't at the end of 16-hour shifts or working fourteen days in a row, looking after you when you get sick, don't you? So classifying many more nurses as supervisors and denying them union rights is indeed a big problem that must be fixed.
Workers already in unions will likely push to include language protecting current members when contracts are renewed. My employer and other unionized hospitals would have a very difficult time if they decided to treat charge nurses as supervisors, and multiple contracts all over the state already recognize that by containing language protecting charge nurses' right to remain in the union. Pay differential is currently not sufficient for most nurses to want to be in charge at all, given the added stress it brings. Hospitals would likely have union nurses refusing to be in charge, if their union membership was not protected by contract. If hospitals in Portland want nurses to leave the union, they will have to create new higher-paying salaried positions with true supervisory authority, and ask nurses to apply for them, rather than relying on the NLRB's directives.
The rulings will definitely make it harder for new bargaining units to win union certification elections. Nurses who serve in charge are often those most interested in forming unions to improve working conditions and patient care, and excluding them from organizing efforts definitely raises the bar for recognizing more union bargaining units in hospitals. And since the NLRB is considering each case on its merits, we will likely see challenges in many trades and professions, not just in nursing cases.
It seems to me the most sensible solution is for Congress to pass another amendment to the NLRA. 2007 will mark 60 years since Senator Flanders' amendment to Section 2(11) passed. One hundred eleven congressional elected officials signed a petition urging the NRLB to take oral arguments in the Kentucky River cases, so there should be at least one willing to introduce legislation changing the law. The law must redefine what truly meets the category of "genuine management prerogatives", and provide better protections for workers who merely act as a team leader rather than a supervisor.
Unions - the folks who brought you the weekend. The folks who currently pay $100 a month in extra health care premiums to cover those without insurance. People died to give every worker the right to belong to a union. Congress should honor the intent of the NLRA by passing an amendment to address this.... yes, OUTRAGE!
What is the National Labor Relations Board's recent "Kentucky River" decision, and should you care about it?
By Amanda Fritz, RN, MA
"OUTRAGE! Government Attacks Nurses, Eight Million Workers", screams the headline on a United American Nurses mailer I received earlier this month. "In a broadsided attack on basic democratic rights and working people, the federal government paved the way in October for employers to strip potentially as many as 800,000 RNs - and eight million workers overall - of their union rights."
Is this true? Well, yes and no. Yes, new stuff happened this fall. But no, the problem started in 1947, and has been coming down the pike with unstoppable force since 2001. Now is definitely the time to pay attention, and to do something about it.
In September 2006, the National Labor Relations Board (NLRB) ruled on three cases: Oakwood Heritage Hospital, Croft Metals Inc., and Golden Crest Healthcare Center. Together, the three pivotal NLRB decisions are known as the "Kentucky River" cases, because they were considered by the NLRB in the light of a 2001 US Supreme Court ruling, NLRB v. Kentucky River Community Care.
The issue really started way back in 1947. Then, Senator Ralph Flanders, (R - Vermont), whose other significant contributions to history included introducing a resolution censuring Senator Joseph McCarthy for "conduct unbecoming an American", succeeded in amending the National Labor Relations Act (NLRA) to add Section 2(11). This section responded to a US Supreme Court case earlier that year, Packard Motor Co. v. NLRB, which had determined that supervisors are included as "employees" under the NLRA. Senator Flanders' amendment, A Good Thing, added language describing the functions of a supervisor and excluding managers meeting it from the protections the Act. The intent was to protect more workers by distinguishing "genuine management prerogatives" from employees such as "straw bosses, lead men, and setup men" protected by the Act even though they perform "minor supervisory duties". [(emph Amanda's...ed.) Note the quaint language -- clearly the idea that a woman could be a lead or setup person was not considered in 1947].
For the next 54 years, the National Labor Relations Board (NLRB) - an appointed committee established to review disputes regarding implementation of the NLRA - interpreted Section 2(11) with significant doses of common sense as well as its rather vague guidelines, ruling that team leader workers who aren't true managers are eligible for the rights endowed by the NLRA.
Fast-forwarding to the 21st century, the real "OUTRAGE!" was in 2001, with the United States Supreme Court decision in NLRB v. Kentucky River Community Care. The Court ruled 5-4 that the NLRB had used "overly narrow construction of the definition of "supervisor" in Section 2(11) of the NLRA, in a manner "inconsistent with the Act". Registered nurses at the Kentucky River facility were "supervisors", the Court ruled, and therefore not eligible to vote on or participate in a proposed union bargaining unit for "employees". The NLRB was directed to revise its interpretation of the NLRA with more attention to Section 2(11).
The Oakwood ruling has all the details of this year's fallout from that directive. Bottom line in that case, is that nurses who are in charge of a shift more than 10-15% of the time, are "supervisors" and ineligible for new union membership. This is entirely consistent with the 2001 Supreme Court decision, in a similar case, so I find it hard to put it in the OUTRAGE! category and blame the Bush appointees on the NLRB or the federal government. Two Clinton-appointed members of the Board did dissent, however. A condensed version of all three case rulings is in the R-2603; 10/03/06; NLRB Issues Lead Case Addressing Supervisory Status in Response to Supreme Court's Decision in Kentucky River NLRB Press Release.
The AFL-CIO and unions all over the country hit the OUTRAGE! button. "If charge nurses, who don't have any power to hire, fire, or discipline the workers to whom they assign patient care, are supervisors, all workers who lead a team are at risk!", they yelled. And this is true. One estimate counts over 30,000 workers in Oregon now at risk for being classified as "supervisors", with loss of rights to join a union. Jobs in this category include cooks and chefs, secretaries, accountants and auditors, social workers, electricians, clerks, and cashiers, as well as nurses.
Immediate and ongoing impacts, however, are uncertain. In one of the very cases decided in September, Croft Metals, the NLRB found that although metal workers had the authority to "assign" other workers, they did not have to exercise "independent judgement" in doing so, and the employer had thus failed to prove that they were supervisors. In the second, Golden Crest Healthcare Center, the Board found the nurses were not supervisors. The NLRB states clearly, "we will continue to assess each case on individual merits", and subsequent decisions have shown that to be true. Rulings since Oakwood have been mixed. In Bon Harbor Nursing & Rehabilitation Center, the Board ruled Licensed Practical Nurses were not protected when joining a picket because they are "statutory supervisors" (boo!). But in Avante at Wilson, the Board found the employer had failed to prove that staff nurses possess Section 2(11) authority to order Certified Nursing Assistants to leave the facility or address their grievances, and remanded the case (yay!).
So what does all this mean for Oregon, and to you? The American Nurses Association notes in a press release on the Kentucky River decisions that, "In 1988, the NLRB said that collective bargaining gains accomplished though the creation of separate RN units have been an “important step toward making the nursing profession a more attractive employment opportunity.” " Unions in health care professions help front-line workers provide better service to consumers. Many nurses at OHSU and indeed throughout Oregon would not still be in the profession without the improvements in working conditions, pay, and involvement in patient care decisions won with the help of the Oregon Nurses Association and our strike in 2001-2. And you all want qualified, experienced nurses who aren't at the end of 16-hour shifts or working fourteen days in a row, looking after you when you get sick, don't you? So classifying many more nurses as supervisors and denying them union rights is indeed a big problem that must be fixed.
Workers already in unions will likely push to include language protecting current members when contracts are renewed. My employer and other unionized hospitals would have a very difficult time if they decided to treat charge nurses as supervisors, and multiple contracts all over the state already recognize that by containing language protecting charge nurses' right to remain in the union. Pay differential is currently not sufficient for most nurses to want to be in charge at all, given the added stress it brings. Hospitals would likely have union nurses refusing to be in charge, if their union membership was not protected by contract. If hospitals in Portland want nurses to leave the union, they will have to create new higher-paying salaried positions with true supervisory authority, and ask nurses to apply for them, rather than relying on the NLRB's directives.
The rulings will definitely make it harder for new bargaining units to win union certification elections. Nurses who serve in charge are often those most interested in forming unions to improve working conditions and patient care, and excluding them from organizing efforts definitely raises the bar for recognizing more union bargaining units in hospitals. And since the NLRB is considering each case on its merits, we will likely see challenges in many trades and professions, not just in nursing cases.
It seems to me the most sensible solution is for Congress to pass another amendment to the NLRA. 2007 will mark 60 years since Senator Flanders' amendment to Section 2(11) passed. One hundred eleven congressional elected officials signed a petition urging the NRLB to take oral arguments in the Kentucky River cases, so there should be at least one willing to introduce legislation changing the law. The law must redefine what truly meets the category of "genuine management prerogatives", and provide better protections for workers who merely act as a team leader rather than a supervisor.
Unions - the folks who brought you the weekend. The folks who currently pay $100 a month in extra health care premiums to cover those without insurance. People died to give every worker the right to belong to a union. Congress should honor the intent of the NLRA by passing an amendment to address this.... yes, OUTRAGE!
posted by Anonymous at 11:30 AM
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