The ruling on a group of healthcare cases, known together as Kentucky River, says employers can label workers as supervisors if the workers assign another employee to a particular location, to work at a certain time or to perform a significant task. They also may be called supervisors if they’re held accountable for the tasks they assign.

The decision could bar millions of workers from the protections unions offer. Nurses and other skilled workers considered supervisors under the decision technically could still join unions, but they would not be legally protected from disciplinary action or firing. One of the most important benefits of union membership, healthcare professionals say, is protection from retaliation when they raise concerns about working conditions and patient care.

“Employers now have a road map for excluding workers from a union,” says Candice Owley, a registered nurse and chair of AFT Healthcare. “Nurses have been patients’ most reliable advocates, and this decision could silence their ability to speak out about workplace problems.”

The main case, Oakwood Healthcare Inc., was decided on a 3-2 vote. It says permanent “charge” nurses are bosses under the National Labor Relations Act (NLRA), while rotating charge nurses may not be. In the other two cases, Golden Crest Healthcare Center and Croft Metals Inc., the board said the employees did not exercise supervisory authority.

The decision “threatens to create a new class of workers under federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees,” wrote the two dissenting NLRB members. “In that category fall most professionals.”

The dissenters said that by 2012, the number of professionals who might be called bosses could approach a quarter of the workforce. The Economic Policy Institute says up to 8 million workers could be affected right now.

 “The NLRB’s test for determining who is a supervisor is a stretch at best and a threat to safe working conditions at worst,” says AFT president Edward J. McElroy.

“Remember that this ruling is not confined to nurses. Radiology techs and anyone else in a lead role can get caught up in it,” adds Jean Morningstar, president of University Health Professionals in Connecticut. “If we’re all bosses, who’s taking care of the patients?”

Taking it to the streets
Because the labor board is packed with anti-labor appointees of President Bush, unionists nationwide have begun informational picketing and other protests to signal that a change in political leadership is in order. Some nurses have declared that they’d rather give up their extra pay as charge nurses than their union protections. In Los Angeles, marching nurses beat on placards, chanting, “We’re gonna beat back the Bush attack.”

This latest decision follows a string of anti-worker rulings under the Bush appointees. For instance, the board said in 2004 that graduate employees at private universities are students, not workers—even though they earn regular paychecks—and thus are ineligible for union membership.

“The NLRB should protect workers’ rights, not eliminate them,” asserts AFL-CIO president John Sweeney. “If the administration expects us to take this quietly, they’re mistaken.”

RNs Working Together, a coalition of the 11 AFL-CIO unions that represent nurses, vigorously objects to the ruling, which hinges on what it means to “assign” and “direct” other employees and to use “independent judgment.” Under the decision, charge nurses who spend as little as 10 percent of their time performing supervisory tasks could be categorized as bosses.

While it’s true that nurses use their judgment to make decisions that are critically important, and some decisions even require directing other staff, that doesn’t mean nurses suddenly become hospital supervisors, notes AFT Healthcare director Mary MacDonald.

William Gould, former chairman of the NLRB under President Clinton, points out that the ruling fails to distinguish between real authority over other employees—the authority to hire, fire and discipline—and merely directing them.

Safeguarding the future
For the moment, local members whose contracts extend out a year or more are protected from the effects of the ruling. However, affiliates negotiating new contracts or organizing new members already may feel squeezed.

“If they attack one local, it’s the same as attacking all of us,” says Ann Twomey, president of Health Professionals and Allied Employees, the AFT’s New Jersey state federation, and an AFT vice president. “If one hospital tries to strip the right of health professionals to be unionized, we all must be prepared to respond aggressively. The fact that we are unionized protects our right to speak out about unsafe conditions.”

RNs Working Together is encouraging hospitals and other facilities to let nurses choose for themselves whether to join a union.

“Hospitals don’t have to, and shouldn’t, take the bait from the NLRB and deny nurses the right to union protection,” says Owley, also an AFT vice president.

Although the decision can’t be appealed directly, the new rules will be challenged. Options include other labor cases, a legislative fix from Congress and a new U.S. president who would restore the labor board to its original function as an honest broker in labor disputes.

“This is hardly the end of the process,” adds Craig Becker, a lawyer for the AFL-CIO. “It’s only the next step.”