Read on my brothers and sisters in the healthcare professions. You think you are screwed now? Two floors too much for you to manage there Mr/Ms RN? Looks like it will just be getting worse. My suggestion? Call SEIU and organize before you end up a slave to the corporation.
Gutting Labor Rights for Nurses -- and Millions of Others
by Nathan Newman
This week, nurses are rallying across the country to protest likely decisions by the National Labor Relations Board that would declare hundreds of thousands of Registered Nurses (RNs) to be "supervisors" under the law and therefore stripped of any protection under federal labor law. If these rulings go as expected, those RNs could be fired at will if they say anything positive about unions or are even suspected of being in favor of unions.
The core of the problem derives from the 1947 Taft-Hartley Act which denies labor rights to "supervisors", meaning that anyone deemed a supervisor can be fired at will if they say anything nice about unions or try to take action to support unions in their workplace.
Once upon a time, it was generally understood that a supervisor was someone who had some degree of power to hire and fire those below them, but the in a series of decisions, the courts and NLRB have expanded the meaning of supervisor to mean people who, because of their expertise, direct the actions of other employees in some way. Now, originally "progressionals" were specifically designated as retaining their right to unionize, but increasingly any professional actions that involve directing other workers actions essentially guts that protection for professionals' right to organize.
Back in the 1990s, the Clinton-appointed National Labor Relations Board had made a strong pro-union ruling in Kentucky River Community Care, stating that where nursing professionals had no power to discipline, fire or hire other employees, RNs overseeing nursing homes using "ordinary professional or technical judgment in directing less-skilled employees" would not be classified as supervisors since they were exercising their judgement for the benefit of patients not employers.
But the Supreme Court in 2001, by a 5-4 split vote between conservatives and liberal Justices, overruled the Clinton NLRB and barred unionization by that group of registered nurses with even nominal oversight of other nurses. So the question became what would happen to the right of RNs not in nursing homes but in hospitals where their authority is even more restricted. A limited bad ruling would deny labor rights to lead RNs, known as "charge" nurses, who oversee other nurses, but many anti-union employers and management attorneys are pushing for a ruling that would deny labor rights to all RNs.
And here's the kicker-- once a group of nominal "supervisors" lose their labor rights and can be threatened with being fired, they are forced to become anti-union shock troops to spy on other employees and undermine unionization by other workers. So not only could this kind of decision threaten unions for RNs, it threatens the labor rights of workers throughout the health care industry.
This is all part of a trend where the NLRB and the courts, without any legislative change, have been overturning decades of rules to deny workers rights to a wide range of employees previously protected under the law. This American Rights at Work memo outlines additional attacks on labor rights by the Bush NLRB in recent years:
July 2004: Graduate teaching and research assistants were deemed students and not employees, making them ineligible for [labor law] protection.
September 2004: The Labor Board determined that disabled workers who receive rehabilitative services from employers should not be classified as workers and are, therefore, ineligible to form unions under the protections of federal law.
November 2004: Employees of temp agencies were barred from organizing with regular employees without both employer and agency permission.
This is on top of a range of other rulings that have weakened protections for workers still covered by labor law but now subject to be fired if they stand up for their rights in the workplace.
But this attack on RNs as nominal "supervisors" could lead to one of the largest number of workers stripped of their labor rights in modern history. It's not surprising that this attack is coming now, as the health care industry has become one of the most successful areas for union organizing in recent years. As California Nurses Association (CNA) Director Rose Ann DeMoro has said:
"Corporate hospital employers also want to roll back the progress of a predominantly female work force which has finally begun to win the compensation and retirement security commensurate with their expertise and education after years of low pay and substandard benefits and pensions, and return to the days when nurses had few rights at the bedside."
So this is a dangerous attack on workers in the health industry, but the anti-union right-wing knows that a ruling against nurses could cascade through other workplaces as employers strategically hand nominal supervisory roles to various workers to strip them of their labor rights. It's typical of the quiet but steady legal assault on workers free speech and right to organize in American workplaces.
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Nathan Newman is a lawyer, policy analyst and longtime community and labor activist. He is Policy Director for the Progressive States Network, a nonprofit that supports state legislative campaigns for economic and social justice. He also writes at TPMCafe and at his own long-established blog at http://www.nathannewman.org/log/ and can be contacted at nathan@nathannewman.org.
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