Unions have won two of three separate representation elections that were the impetus for the National Labor Relations Board to issue in late September new guidelines for determining who is a supervisor not entitled to have union representation and engage in collective bargaining, according to NLRB officials.

The National Labor Relations Board Nov. 13 certified the results of a March 2002 election among 260 registered nurses at Oakwood Heritage Hospital in Taylor, Mich., as a loss for the United Auto Workers after opening and counting seven challenged ballots.

The board Oct. 30 certified the International Brotherhood of Boilermakers and Forgers as the bargaining agent for some 350 production and maintenance workers, including leadpersons, at a Croft Metals manufacturing facility in McComb, Miss., after opening ballots impounded from a May 2002 election.

The board Sept. 29 also upheld an April 1999 certification of the United Steelworkers for a unit of RNs and licensed practical nurses at Golden Crest Healthcare Center in Hibbing, Minn., after finding the nurses whose status was in question were not supervisors.

The resolution of the election results came in the aftermath of three decisions issued Sept. 29 by the NLRB in Washington, D.C. In Oakwood Healthcare Inc., the board set out new guidelines for determining who is a supervisor (Oakwood Healthcare Inc., 348 N.L.R.B. No. 37, 9/29/06 [released 10/3/06]).

The board then applied those guidelines in two other rulings issued the same day--(Croft Metals Inc., 348 N.L.R.B. No. 38, and Beverly Enterprises-Minn. Inc., d/b/a Golden Crest Healthcare Ctr., 358 N.L.R.B. No. 39, 20 LRW 1393, 10/5/06).

In the Oakwood case, the board found that 12 of the RNs at Oakwood Heritage Hospital, who serve as charge nurses on a permanent basis, are supervisors for purposes of the National Labor Relations Act. The permanent charge nurses regularly assign other personnel to specific patients and exercise independent judgment in doing so, the board said. However, it found that the rotating charge nurses do not exercise supervisory authority for a substantial part of their work time.

NLRB Region 7 Director Stephen Glasser in Detroit told BNA Nov. 17 that when the board remanded the case, the parties stipulated that of 17 employees whose ballots were challenged in the March 8-9, 2002, election, nine employees were not eligible to participate while seven were eligible; the parties were not able to agree on the status of one ballot, he added. When the seven ballots were opened and counted Nov. 13, he said six votes were against union representation and one was for the UAW. The final tally was 117 against union representation and 111 for UAW, Glasser said.

Union Certified for Croft Metal Workers.

For nearly 30 years some 25 to 35 leadpersons at Croft Metals were included in the bargaining unit with production and maintenance workers, which was represented by Carpenters and Joiners Local 2280. Then the International Brotherhood of Boilermakers and Forgers filed a representation petition seeking an election to replace the Carpenters as the bargaining representative.

A regional director found in May 2002 that the leadpersons are not supervisors. An election was conducted May 29, 2002, and the ballots were impounded. The board remanded the case to the regional director to hear additional evidence. The regional director again ruled in August 2002 that the leadpersons are not supervisors, and the board granted review in October 2002.

According to an official in NLRB Region 15 in New Orleans, the ballots were opened and counted Oct. 20 after the board remanded the case to the regional director. She said the results showed 246 ballots cast for the union, 37 against, and 16 ballots were challenged. The union was certified as the bargaining agent Oct. 30.

Steelworkers' Certification Upheld.

Meanwhile, the NLRB Sept. 29 upheld the April 1999 certification of the United Steelworkers as the bargaining agent for some 19 RNs and LPNs at Golden Crest Healthcare Center in Hibbing, Minn.

The board applied the test enunciated in Oakwood and found that the charge nurses were not supervisors under the NLRA. NLRB Region 18 Director Bob Chester in Minneapolis office said Nov. 17 that in its ruling the board upheld a previous certification that was issued in April 1999.

In this case, the Steelworkers filed two representation petitions in January 1999, seeking elections to represent separate units of RNs and the LPNs. The nursing home argued that all the RNs and the LPNs who sometimes act as charge nurses should be excluded from the units as supervisors. A regional director found in March 1999 that none of the RNs or LPNs is a supervisor. The board denied the nursing home's request for review. The union won both elections held April 8, 1999, and was certified as exclusive bargaining representative a week later. The nursing home refused to bargain, and the board held that it committed an unfair labor practice.

The U.S. Court of Appeals for the Eighth Circuit in October 2001 remanded the case to the board for reconsideration in light of the U.S. Supreme Court's Kentucky River Community Care decision, 532 U.S. 706, 167 LRRM 2164 (2001); 15 LRW 659, 5/31/01). In that decision, the court found that the NLRB's test for deciding whether a worker exercises independent judgment in performing certain job tasks, and therefore qualifies as a supervisor precluded from joining a union under federal labor law, is inconsistent with the National Labor Relations Act.

In September 2002, an NLRB administrative law judge issued a supplemental decision finding once again that the RNs and LPNs are not supervisors. The board granted the nursing home's request for review in October 2002.

According to Chester, of the 19 nurses in the unit, 18 voted for the union and 1 voted against representation.