After 16 months of gestation, the National Labor Relations Board has delivered two decisions designed to offer guidelines for union organizing campaigns among nursing personnel.
The decisions should break the logjam of nurse organizing elections whose ballots have been impounded since 1994.
In the Providence Hospital case, argued Oct. 28, 1994, the NLRB ruled that charge nurses at the 341-bed Anchorage, Alaska, hospital are not supervisors under definitions used by the National Labor Relations Act. "Accordingly, they are included in the petitioned-for unit and are eligible to vote in the election," the board said.
In the Ten Broeck Commons case, argued the same day, the NLRB found that licensed practical nurses at a nursing home in Lake Katrine, N.Y., are not supervisors.
"We won in both the hospital and nursing home cases," said Mary Kay Henry, a healthcare organizer with the Service Employees International Union. "Nurses, including charge nurses, are not supervisors simply because they use professional judgment to direct or assign others."
In 1994, the U.S. Supreme Court directed the NLRB to define more clearly whether nurses should be considered supervisors, and thus ineligible for collective bargaining.
Anna Gilmore, director of labor relations for the American Nurses Association, commented: "The board said part of the nurse's role in taking care of patients may include monitoring and assessing patients and delegating some tasks to other people. That does not make you a supervisor."
Gilmore said this strengthens nursing's organizing efforts beyond where they were before the Supreme Court ruling.
Bruce Stickler, a lawyer who argued for the American Hospital Association as a friend of the court, said: "It's not a good decision for healthcare providers by any stretch. It will open up the opportunity to aggressively organize."
The detailed analysis of nursing duties in the 22-page decision, though, should make clear what is true supervisory activity from a labor-law standpoint, he said. That should help unions and employers determine in the preorganization stage who can be included in the bargaining unit.
Also, the board agreed with the AHA's argument that these determinations should be treated on a case-by-case basis before the NLRB and not through rulemaking.
Stickler said the decisions remove an obstacle to organizing. "The flood gates may open," he said.
The long delay in issuing the decision cast a pall of uncertainty over labor-management relations at countless hospitals and nursing homes. The NLRB doesn't know how many organizing election results are held up at the regional level. Of those that have been appealed to the full board in Washington, 59 cases have had a hearing but no decision.
Patricia Senner, executive director of the Alaska Nurses Association, said the ballots have never been counted from an organizing election in August 1994 at Providence. The hospital, citing the recent Supreme Court case, argued that charge nurses were supervisors.
Senner said that charge nurses were informal coordinators. "They make sure things flow properly and the patients are covered, rather than telling people what to do," she said.
In the meantime, she said, the hospital has changed the job description to include things like discipline, hiring and firing. "They have increased the role so that those individuals are no longer bargaining-unit eligible," Senner said.