Really long National Labor Relations Board decision comments, updated from Loaded Orygun guest column

A version of this post first appeared as a guest column on Loaded Orygun. The following is an updated edition based on feedback to that article.

“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 real problem started with vague statutory language in 1947, and has been coming down the pike with unstoppable force since 2001. Now is definitely the time to pay attention, and do something about it. I believe amending the National Labor Relations Act is the best solution. Protecting nurses who aren’t management supervisors can be done in the next Congress. Updating the law for all workers may take longer, but is worth the effort. In the short term, workers in Oregon and elsewhere will have to bargain with employers to put protection for shift leaders in contracts, rather than relying on the federal law from 1947.

So what’s the story, and what why are nurses and other workers so concerned?

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 Supreme Court ruling, NLRB v. Kentucky River Community Care.

The issue really started brewing 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 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 real managers 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”. [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 using the rather vague guidelines in the amendment.

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, personally, although two members of the Board did dissent. The key issue where the Board went even further than the Supreme Court, was that they expanded the previous interpretation of the term “assign”, to now include a charge nurses’ responsibility to assign nurses and aides to particular patients. This is the case even if such assignment is only for a single shift or is transitory in nature. This is a huge departure from Board precedent and the intent of the 1947 amendment, since it includes duties that lead persons and straw bosses typically perform.

The Board also expanded the interpretation of the term “responsibly direct”. The Board held that direction includes instructing other employees to perform discrete tasks, for example a nurse telling a nursing assistant to change the bed linens of a patient. The Board did limit this definition by holding that the alleged supervisor “must be accountable for the performance of the task by the other