By Eve Tahmincioglu
msnbc.com contributor
updated 11/6/2006 1:30:49 PM ET 2006-11-06T18:30:49

With the country facing a nursing shortage you would think government and employers would be doing everything they could to make the profession as appealing as possible.

So I’m still scratching my head over a set of rulings by the National Labor Relations Board to limit the number of nurses covered by collective bargaining laws, basically limiting their right to unionize.

Last month the NLRB released new guidelines expanding the definition of who is a supervisor. If you’re deemed a supervisor, you’re not covered by the 70-year-old National Labor Relations Act, which protects the collective bargaining rights of working stiffs.

The initial case that sparked the new rules involved a suit brought by management of a suburban Detroit hospital claiming that many of its nurses were effectively supervisors and thus not protected if they chose to unionize.

The NLRB agreed, finding that a group of charge nurses at the hospital were indeed supervisors even though they did not have the authority to hire or fire employees. The thinking behind the  the so-called Kentucky River rulings was that the nurses had the “regular” duty of assigning other hospital staff to specific patients, even though these nurses also were taking care of patients themselves. (The decision by the five-member board was split along party lines, with the three Republican board members voting for the change, and the two Democrats dissenting.)

This decision worries workers like Vicki Neumeier, a registered nurse in Seattle and active member of the Nurse Alliance of Washington union.She remembers how a charge nurse she worked with a few years back became the ringleader for a group trying to cope with insufficient nurse staffing in the ICU on a particular night. The shift supervisor of the hospital, she recalls, refused to call for additional staffing, so the charge nurse rallied the nurses on the shift to refuse to work until more nurses were brought in.

“This is an example of why a charge nurse in a union is able to speak up for the patients and the nurses in a collective voice,” she says.

The ruling won’t just affect nurses. Many labor experts anticipate employers will see the NLRB decision as an opening to designate workers in many professions as de facto bosses.

Union groups maintain as many as 8 million workers could lose their right to unionize.
Employer advocates contend the ruling is just a blip on the screen of union organizing and will have little effect on the rank and file.

The bottom line is no one really knows how far-reaching the new standard will be and whether it will further derail the struggling U.S. labor movement.

Just because the NLRB issued the ruling doesn’t mean employers around the country will rush to designate more of their workers as supervisors. Indeed, some companies have allowed union votes since the ruling even though some of workers could have been classified as supervisors under the new rules. And nothing precludes the newly minted supervisors from organizing anyway. But they won’t have legal protection if their bosses decide to fire them as a result — a risk few employees would be willing to take.

If you look at the NLRB’s ruling, the definition of who is a supervisor goes far beyond the old standard of hiring and firing. Assigning work and independent judgment now gain new importance.

“The Board defined ‘assign’ as the act of ‘designating an employee to a place, (such as a location, department, or wing), appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties, i.e. tasks to an employee,’” the NLRB said in a statement explaining three related decisions issued Oct. 3.

On the issue of judgment: “If a person on the shop floor has men under him, and if that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, provided that the direction is both ‘responsible’ … and carried out with independent judgment.”

The board found that even if a worker spent only 10 to 15 percent of his time assigning work and making independent judgments he could be deemed a supervisor.

That means a union carpenter who directs an aspiring apprentice might fall under the supervisor designation. And with so much emphasis on team building and worker empowerment in the manufacturing sector, an autoworker who tells a colleague which station to move to next arguably could fall under the definition.

Stewart Acuff, organizing director for the AFL-CIO, says, “They’ve changed the ID of a supervisor who was someone with clear authority to hire, fire, etc., to anyone that directs another employee.”

Employer advocates don’t see it that way. Labor law attorney William P. Schurgin says the ruling finally establishes “21st century guidelines that help employers evaluate who is and who is not a supervisor for purposes of the Labor Relations Act.”

Right now it appears every case will be decided on its own merits, says Ellen Dannin, a law professor Pennsylvania State University. But she noted: “There will be some employers who will say, 'Let’s take advantage of this and see if we can test the limits.'”

So employees will have to look at their own situations before deciding whether to take part in any union organizing activities.

“The reality is that every time workers organize they risk that the employer will retaliate against them. This is nothing new," Dannin says. “If workers were not afraid of losing their jobs, then employer anti-union campaigns would have no power over them.”

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