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Critical Condition

THE NURSES WORE RED T-SHIRTS depicting three 1950s-era RNs flexing their muscles. “The estrogen is high today!” said one, marching down Wilshire Boulevard in the glare of L.A.’s noonday sun.

Indeed, it was on July 11 when she and 300 of her fellow members of the mostly female California Nurses Association and their supporters rallied at the National Labor Relations Board’s offices on Figueroa Street. There, labor activists denounced a pending NLRB decision whose anti-union outcome they regard as a foregone conclusion.

“We’re gonna fight this! We’re gonna fight this! We’re gonna fight this!” Maria Elena Durazo shouted to a cheering crowd in the shadow of the opaque monolith that houses both the NLRB and the California Democratic Party. “Not just in the courts but in the streets and in the workplace. Just because a decision is made doesn’t mean we’re gonna respect it!”

The case that so angers Durazo, the head of the Los Angeles County Federation of Labor, and the 70,000-strong California Nurses Association (CNA) involves legal suits filed by two health care networks and a manufacturing company that would declare nurses to be supervisors and thus ineligible for union membership. The pending Kentucky River decision, as the three consolidated cases have become known, has been winding through NLRB in-baskets since 2002. Now, with only one Clinton appointee remaining on the five-member board, organized labor is expecting the worst — and soon.

At the heart of the issue is whether, by the very nature of their jobs, which involve constant decision making, nurses can be considered management — a debate that has been going on since the 1980s. The question has twice come before the U.S. Supreme Court, and twice the high court has sent the matter to the NLRB.

To Deann McEwen, who has been a Long Beach Memorial nurse since 1981, the choice is simple. “We teach, we evaluate new nurses, we help orient them, but that’s just part of our duties as a whole,” says McEwen. “It’s not supervisoral in the traditional sense of being able to hire, fire, give raises. They’re changing the definition of the word that the law’s been based on for many years.”

Members of the 103-year-old CNA have grown more militant in the face of corporate micromanagement of hospitals and have been emboldened by their successful 2005 battle over nurse-patient ratios with Governor Arnold Schwarzenegger. For many of these nurses, “socialized medicine” is not something to be feared.

“Nurses are the backbone of health care in this country, and we can effect health care reform,” adds Eva Buenconsejo, who’s been a nurse at Cedars-Sinai for nearly 25 years, and blames corporatized medicine for endangering patient safety. “We need health care for all, not just the chosen few. Since Wall Street got into health care, this is what happened.”

ORGANIZED LABOR REFLEXIVELY VIEWS the NLRB as a sardine can of Bush appointees, but the CNA’s pessimism about the Kentucky River decision seems well grounded. The NLRB’s chair, Robert J. Battista, a health care entrepreneur and management attorney who became a corporate folk hero for busting Detroit newspaper unions in the mid-1990s, has made it a board priority to reexamine the long-accepted system of “card checks,” whereby a company agrees to accept unionization when a simple majority of its workers indicates its desire to form a union by signing authorization cards. Under Battista’s reign, the NLRB has denied National Labor Relations Act protections for college research and teaching assistants, and ruled in favor of companies barring “fraternization” between off-duty co-workers.

The NLRB’s steep starboard list should come as no surprise. The idea that workers have the right to organize has been met by the Bush administration with the same incredulity it reserves for theories about evolution and global warming. Not only that, but ever since the 1947 passage of the Taft-Hartley Act, business and its government allies have sought to limit the number of workers eligible to organize into unions, often by declaring large sections of the labor force to be supervisors or foremen. Since the 1980 election of Ronald Reagan, an ideological confederation of right-to-work organizations, the Chamber of Commerce and conservative activists has waged an all-out war to reduce union influence through decertification elections, “paycheck protection” ballot initiatives and on grounds of public safety or national security.

The NLRB’s decision will have repercussions far beyond the health care industry and is being closely watched by other unions. Ruth Milkman, a UCLA sociology professor specializing in labor issues, says it’s no accident that the nurses have been singled out.

“There’s been a tremendous amount of union organizing among nurses,” Milkman says. “It’s an occupation that’s changed so much over the last few decades — in the past, nurses were not interested in unions, but the restructuring of health care has made the working conditions of nurses much worse.”

Tuesday’s rally was coordinated with similar actions in Oakland and several other American cities. It symbolically targeted L.A.’s NLRB office, which at first refused to meet with the protesters, until an employee eventually emerged from the building to warily accept a petition calling on the national board to hear oral arguments in the Kentucky River case.

Patricia Gilbert, the NLRB’s Washington, D.C., spokeswoman, said by telephone that it was not unusual for the board to make decisions based solely on written briefs, and noted that the board had not heard an oral argument for the past six years. Asked to comment, former NLRB general counsel Fred Feinstein replied in a phone interview, “It is quite unusual for cases that have such broad implications to be decided without oral presentations. Traditionally, they are — I can’t think of any other period that the board has not heard arguments for so long.”

Gilbert would not say when the board is expected to make its decision. Should the board rule completely against the various nurses unions (a less severe decision could be to declare only so-called charge nurses to be supervisors), another Supreme Court–bound series of suits will likely follow — along with the strong possibility of nurse strikes and acts of civil disobedience.

“Obviously this would be a huge setback, but it wouldn’t be the end of the union,” says UCLA’s Milkman, who predicts that the nurses may have to follow the lead of other unions, such as the Justice for Janitors movement, which bypass NLRB-authorized mechanisms and instead marshal community sympathy to win the right to organize. “There’s a tremendous amount at stake here, and the possibility of public pressure — people love nurses.”