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When will the decision in the combined cases be issued?
A decision by the NLRB in the three lead cases is likely within the next 2-3 months. However, the exact timing of these decisions is at best an educated guess. No timetable for the issuance of a decision in these cases has been announced. The 2-3 month estimate is based upon several factors: NLRB Chairman Battista has publicly commented that the nurse supervisory cases are a priority for the Board, there are over 60 cases pending in the NLRB Regions that are on-hold awaiting the Board’s action, and the recess appointment of Members Kirsanow and Walsh make it possible for the Board to issue decisions that overturn precedent.
What will the decision say?
It is hard to speculate as to what the decision of the NLRB will hold. Decisions are written and reviewed by the Board members and their staffs and this can be a complex and lengthy process. The best possible outcome for healthcare professionals would be a decision by the Board which holds that nurses do not have authority to “assign” or “responsibly to direct” other employees with inherent or actual independent judgment or to effectively recommend the same. However, due to the pro-management composition of the Board majority, such a holding is not at all likely. The worst possible outcome would be a Board decision which holds that charge nurses or nurses who have taken charge at any time for any reason are supervisors as defined by the NLRA. We estimate that the Board will issue a decision which falls somewhere between these two extremes.
Who will be affected by the decision?
In the acute-care hospital context, all nurses, particularly those who have ever served as a charge nurse, as well as some LPNs who assign or responsibly direct subordinates such as Certified Nurse Assistants (CNAs) could be affected by the Board’s decision.
What will be the immediate legal effect of the decision?
The NLRB has the statutory responsibility to interpret the NLRA. This means that the Board’s decisions have a similar effect as a court’s decisions when it comes to the NLRA. The extent of the Board’s authority is a complex legal matter and has historically been an issue of some dispute. Nonetheless, it is safe to say that when the Board issues a decision, that decision is the “official” decision of the United States Government on the issue that is the subject of the holding. Of course, judicial review of NLRB decisions is available.
Despite the importance of the three lead cases, the bureaucracy of the NLRB and the court system moves slowly. The immediate effect of the decision, no matter the holding, will be that the 60+ decisions issued by the Board regions that are currently on appeal to the Board will be remanded to the regions, which will then have to review each decision and reissue them in light of the Board’s holding.
Will all nurses lose rights under the National Labor Relations Act?
It is likely that nurses who are found to be supervisors will lose some rights under the law. The NLRA protects employees in many ways. Most importantly, section 7 of the NLRA grants employees:
the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...
An adverse decision in the pending nurse supervisory status cases could mean that nurses who are determined to be supervisors will lose their status as “employees” under the NLRA, thus losing their rights under section 7. If this happens, nurse supervisors could face discipline or termination for union activity. However, even if nurses are deemed to be “supervisors” under the NLRA, they will not lose their right to form a union Section 2(14) of the NLRA states unequivocally that supervisors have the right to form unions. Because supervisors are not protected by section 7, though, the question of whether to recognize their right to form a union is entirely in the hands of their employer.
Will nurse supervisors lose the rights they have under the existing contract?
No. A collective bargaining agreement (CBA) is a legally binding document. The rights held by a party under such a contract are enforceable at law. Nurse supervisors who are members of existing bargaining units will remain so until at least the expiration of their existing contract. An employer who fails to abide by the CBA based on these NLRB rulings should be the subject of an Unfair Labor Practice (ULP) charge.
What will happen when our contract expires?
If, as we expect, the Board issues an unfavorable decision, certain nurses may lose their status as “employees” under the Act and could instead be classified as “supervisors.” If this happens, the myriad legal protections that employees enjoy under the law will no longer apply. This would potentially mean, for example, that a nurse could be fired or otherwise disciplined for engaging in union activity. However, as explained above, supervisors do have the right to form unions under the NLRA. An employer still could recognize a union that consists or partially consists of supervisors. The decision whether to do so is at the discretion of the employer.
In the event that an employer should choose not to recognize a union on the basis that it allegedly consists of only supervisors, the union has the right under the NLRA to file what is known as a “unit clarification” petition. Such a petition puts into motion a process whereby the NLRB, on the regional level, issues a decision as to which job classifications are part of a collective bargaining unit and which are not. The union and the employer have the right to make arguments to a Board official before the decision is issued.
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