Nurse-Supervisor Cases Bear Major Issues for Unions

By
Philadelphia Inquirer
August 15, 2006

PHILADELPHIA _ Every other night, Elizabeth Teres takes charge of the overnight crew _ one other nurse and four assistants _ on the psychiatric floor at Mercy Fitzgerald Hospital in Darby, Pa.

In addition to carrying a full patient load, Teres divides up the work, deals with unexpected issues, reports to the hospital's overnight nursing supervisor and hands off to the day staff, tasks that, cumulatively, usually take less than an hour.

Is Teres a supervisor? Are most "charge nurses" supervisors?

The definition is at the heart of a trio of important cases known as the "Kentucky River" cases, now before the National Labor Relations Board. The NLRB enforces labor laws pertaining to unions.

The cases have major implications for labor unions because supervisors are not covered by the National Labor Relations Act, the federal law that governs unions.

The more employees who are classified as supervisors, the easier it is for companies to stave off union organizing drives, or to limit unions' influence in the workplace.

"Both employers and labor are watching it closely," said John Haskell, a partner in a Kentucky consulting firm that helps companies avoid becoming unionized.

"I think the Kentucky River case is one of the biggest decisions to come down in the health-care industry since the NLRB started making up the appropriate work rules for health care more than 20 years ago," said Haskell, of Adams, Nash, Haskell & Sheridan.

The cases come as several workplace trends converge.

Management structures are growing less hierarchical. "So many jobs now have a managerial function," said Lonnie Golden, associate professor of economics and labor studies at Pennsylvania State University's Abington campus. The Economic Policy Institute, a worker-friendly Washington-based think tank, estimates that there are eight million workers who have minor or occasional supervisory responsibility.

As traditional union manufacturing jobs decline, unions are pushing to organize professionals who often oversee junior staff members.

Unions increasingly are focusing on growth areas and on jobs that can't be sent overseas. That makes the health-care sector attractive. Unions have been more successful in health care than they have been in other sectors, Haskell said.
The conditions in health care are ripe for organizing, Haskell said. Chronic staffing shortages leave employees "tired and overworked and worried about staffing levels and patient care."

None of the three "Kentucky River" cases happened in Kentucky. The name comes from NLRB cases filed in response to a 2001 U.S. Supreme Court decision involving a mental-health center in Hazard, Ky.

The court rejected the NLRB's interpretation of part of the definition of supervisor.

The current cases involve nurses at a California hospital and a Minnesota nursing home, and lead assembly-line workers at Croft Metals Inc. in McComb, Miss.

"There have been many, many other cases held up, maybe a hundred" on this issue," said Charles Cohen, a former NLRB member appointed by President Bill Clinton.

Union leaders are bracing for the worst from the Republican-dominated board appointed by President Bush. "This board has a history of reducing coverage and protections," said Nancy Schiffer, associate general counsel of the AFL-CIO, the nation's largest labor federation.

"If this board adopts the arguments urged by the employers, they could prevent millions of workers from being covered by union contracts," she said.

Business groups have argued that too many supervisors are already misclassified as workers.

Some unions are taking protective action in advance of the decision. Supervisory status is an issue in contract negotiations at the Robert Wood Johnson University Hospital in New Brunswick, N.J., where the United Steelworkers of America represents 1,260 nurses.

The nurses there already have authorized a strike.

And strikes, according to a brief filed in the Kentucky River cases by the American Hospital Association and other management groups, are among the reasons why charge nurses should be considered management.

"In these circumstances," the brief said, "it is vitally important that the hospital be able to depend on the loyalty of its charge nurses, who will ensure that patients' needs continue to be met."

Haskell said he advises hospitals to give supervisory duties to as many nurses as possible with the idea of excluding them from collective-bargaining units if the Kentucky River decisions go in favor of management.

Jo Ann Webb, a former nurse who is now the senior director of government relations for the American Organization of Nurse Executives, said the definition of a charge nurse is fluid.

"It varies by hospital," she said, with lines blurred on nights and weekends. The brief that her organization filed with the American Hospital Association stressed that charge nurses use their own discretion to make many important decisions about patient care.

Mercy Fitzgerald spokeswoman Sonya Evans-Johnson said the hospital would monitor the Kentucky River cases, but, meanwhile, its charge nurses aren't supervisors.

"They are mostly what you would call a team leader," she said. "They are not the supervisors, but they do take on a supervisory role."

Teres, a member of the Pennsylvania Association of Staff Nurses and Allied Professionals union, estimates that at least half of her fellow nurses at Mercy Fitzgerald rotate into charge-nurse assignments. Teres has been a nurse for 20 years and earns $8 extra a shift when she's in charge.

Twenty-five out of 30 home-health-care nurses affiliated with the Crozer Chester Medical Center, in Upland, Pa., work occasionally as charge nurses, primarily on weekends, said John "Frank" Glatts, a home-health-care nurse who had the job recently.

Given the numbers, both worry about the outcome of the Kentucky River cases. "To me," Glatts said, "this whole thing is to break up unions and to deny union protection to nurses."