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Supervisors

October 4, 2006 -- Today The New York Times ran a balanced piece by Steven Greenhouse about a National Labor Relations Board ruling taking a more restrictive view of which employees may join unions. "Board Redefines Rules for Union Exemption" explains that the case involved nurses at a Michigan hospital who assigned other nurses, aides, and technicians to particular patients and gave them specific responsibilities. The NLRB majority found that these nurses were "supervisors," ineligible to join unions, since they used "independent judgment" in overseeing other employees and could be held accountable for their work. The NLRB dissenters and labor unions argued that the decision could effectively exclude from union membership millions who had no genuine management authority. In addition to raising issues about where to draw the line between labor and management, the dispute reveals something about how nursing itself is regarded. It may not be easy to see these nurses as "management" in a traditional sense. But we also wonder how much of the strong reaction to the NLRB decision is driven by a sense that the general idea of nurses as "supervisors" is absurd. The dispute also seems to reflect a quandary bedside nursing advocates face. Nurses exercise independent judgment, and many, like those who act as charge nurses, have significant professional authority. This must be better understood if nursing is to get the resources it needs. Yet current law may create incentives to minimize or distort that professional role--as the NLRB dissenters seemed to do by arguing (in Greenhouse's words) that the board's ruling could exclude from unions "a doctor overseeing nurses or a lawyer overseeing a secretary."

The main case reportedly involved a dozen nurses at Oakwood Heritage Hospital, presumably charge nurses, who assigned other nurses and aides to particular patients in various units. The United Automobile Workers sought to represent these nurses, arguing (according to the piece) that "their supervisory duties were minor and routine, and required so little independent judgment." We realize that is the argument the union had to make under current labor law, but is not an accurate statement of what a charge nurse does by any ordinary understanding of those terms. Deciding how to deploy skilled health care staff in shifting circumstances often requires significant independent professional judgment, and is often neither "minor" nor "routine." Of course, that does not mean charge nurses, who do not typically wield traditional management authority, should be excluded from union membership.

The Times reported that the NLRB majority ruled that workers should be deemed "supervisors" if they used independent judgment to oversee other employees by assigning them to locations, shifts, or specific tasks--such as a nurse assigning another nurse to a patient--and if they "could be held accountable if that subordinate performed poorly." The majority, consisting of the Board's three Republicans, also reportedly ruled that workers could be considered supervisors if they had such duties as little as 10-15% of the time. The piece notes that the case focused on workers whose "supervisory role" was more ambiguous than traditional hiring and firing duties.

The article also explains that the NLRB ruling interpreted a 2001 Supreme Court decision in which a closely divided Court "asserted" that the NLRB had defined "supervisor" too narrowly. In that case, NLRB v. Kentucky River Cmty Care, Inc., 532 U.S. 706 (2001), the Court determined that nurses who worked as "building supervisors" at a mental health facility could be considered supervisors under the federal labor relations statute. The Court held that the NLRB had wrongly found that the "ordinary professional or technical judgment" these nurses used in directing less skilled employees was not the "independent judgment" the statute included as a required factor in determining supervisory status. The statute distinguishes such "independent judgment" from authority that is "merely routine or clerical." The four dissenting justices argued that the labor statute was meant to cover at least some professional workers like nurses, and that the NLRB's determination that these nurses were not "supervisors" was consistent with past interpretations of the law. The Kentucky River majority and dissenting opinions both relied on linguistic analysis of these ambiguous statutory terms.

The Times piece notes that the NLRB majority in the current case actually found that workers in two related cases were not "supervisors." In one, the NLRB reportedly found that nurses at a Minnesota nursing home were not supervisors because the home had not shown that they met the statutory definition, in particular by failing to show that they "were held accountable when their subordinates failed to perform properly."

The NLRB dissenters, consisting of its two Democrats, issued what the piece calls a "stinging dissent." They asserted that the new ruling "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." The dissenters also suggested that most professional workers would fall into that category because, in the Times piece's words, "many professionals, like a doctor overseeing nurses or a lawyer overseeing a secretary, could be deemed supervisors under the board’s new guidelines."

This last idea contains at least two damaging distortions. First, it suggests that hospital physicians typically "oversee" nurses. Nurses do implement aspects of physician care plans as part of their duties. But they do not report to physicians; they are autonomous professionals who report to other nurses in a chain of command reaching to hospital management. Second, the statement obviously suggests that nursing is comparable to secretarial work. However, nursing is a licensed health profession that requires years of intense, college-level science training, and about 400,000 nurses (in the U.S. alone) have graduate degrees in nursing.

The piece also describes the unsurprising reaction to the NLRB ruling: business groups liked it but unions did not. Steve Bokat, general counsel of the U.S. Chamber of Commerce, said claims that the ruling would exclude millions from unions were exaggerated, and that the NLRB had created "a reasonable test," though it had not gone as far as business wanted. Pamela Thompson, MS, RN, FAAN, head of the American Association of Nurse Executives, suggested that the decision will "play out differently hospital by hospital."

The piece reports that unions have "long feared" such a ruling, which they see as a continuation of recent federal government efforts to restrict union membership. AFL-CIO president John Sweeney is quoted as saying the decision "welcomes employers to strip millions of workers of their right to have a union by reclassifying them as supervisors, in name only." William B. Gould IV, an NLRB member under President Bill Clinton, reportedly argued that the new standards under which employers may show that their employees are supervisors create a substantial "potential for manipulation." The piece might have sought comment from a nursing union leader on how the decision would affect nurses in particular, since they were the employees involved in two of the three cases.

One issue here is what the overall dispute says about nursing in general. The most obvious effect may be to put before the public the question whether nurses can be "supervisors," i.e., whether they can be workers with real management authority. Of course, it may seem painfully obvious to nurses and those who know them well that many nurses are managers. Some nurses serve as the chief executives of hospitals or other organizations. Ms. Thompson and her organization (representing "Nurse Executives") provide one example, though the piece does not explictly note that she is a nurse. And the Kentucky River opinions themselves make clear that nurses regularly use professional judgment, and that some supervise other workers in the traditional sense.

However, the general public is less accustomed to seeing nurses as true managers, an image that does not fit with the handmaiden and other stereotypical imagery that continues to dominate the mass media and common social understanding. Influential media products, notably popular Hollywood dramas, focus obsessively on the hierarchy of hospital physicians, but pretend nursing managers don't exist. Many people today may be surprised that the NLRB could consider nurses--nurses!--to be supervisors. Learning more about this controversy may at least let these people know that nurses do provide guidance to other workers. But it will not necessarily tell them that many nurses are responsible "supervisors" by any measure, with significant traditional management authority. This issue matters because nurses will not receive the respect they need if they are seen mainly as a subordinates who are managed by physicians or adminstrators.

Issues like this may also present difficulties for nursing unions and other advocates. In some situations, there is an incentive for such advocates to associating nursing strongly with traditional rank-and-file qualities. Here, it's obvious why a union would argue that the apparent supervisory role of the Michigan nurses was minor, routine, and reflected little independent judgment, because that is the legal standard controlling whether a given nurse is eligible for union membership.

However, those same arguments may work to undermine the image of nursing as a whole. They may suggest that nursing, unlike other autonomous, responsible professions, is a job that cannot involve significant managerial, scholarly, or policy authority. Such arguments may also feed the perception that nurses who leave the bedside are no longer nurses, just as those who leave part-time, entry-level clerical jobs are no longer part-time, entry-level clerical workers. Some unions have also suggested that nursing managers are not real nurses.

We wish arguments that a given group of nurses should not be excluded from unions could be made on the basis that they do not wield genuine management authority--just like many other professionals, including many physicians, do not--rather than that their relevant professional judgments are "minor" and "routine." We realize a distinction can be made between the apparently "supervisory" duties and the nurses' work as a whole. Advocates could argue that it's simply the charge nurse tasks that are minor and routine, whereas the remainder of the nurses' duties involve independent judgment and skill. But that's not accurate either; when nurses do things that are arguably "supervisory" in nature, they typically are not minor or routine. It is unfortunate that the current law appears to compel advocates to effectively denigrate the professions of their own prospective members in order to pursue their interests. Of course, wherever the line between management and labor is drawn, advocates will try to push the line in the direction that benefits them.

Picking up on Ms. Thompson's comment about how the NLRB ruling will play out on the ground, we wonder how hospitals and nurses will respond. Will hospitals have more trouble getting nurses to act as charge nurses now? Only a minority of U.S. nurses are union members. But will those who are (or wish to be) now be reluctant to do charge, since doing so even occasionally could mean exclusion from a union? Could this change how charge duties are performed, perhaps leading them to be absorbed into the job descriptions of nurses who are clearly managers in the traditional sense? Could "charge nurse" become a permanent position in every hospital?

We thank Mr. Greenhouse and the New York Times for the article.

See the article Board Redefines Rules for Union Exemption by Steven Greenhouse from the October 4, 2006 edition of the New York Times.

You can contact Mr. Greenhouse at this link.

 

 

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