Sunday, October 31, 1999

BENCHMARKS


Union question at nursing homes divides judges

BY BEN L. KAUFMAN
The Cincinnati Enquirer

        A 6th Circuit judge is urging colleagues to rethink their long-standing refusal to allow nurses to join unions at nursing homes.

        Noting that the issue has pitted the court against the National Labor Relations Board (NLRB) since 1981, Judge Nathaniel R. Jones said:

        “I fear that we have become so entrenched in our disagreements with the board ... that, as a practical matter, we have made it impossible for nurses to form collective bargaining units at nursing homes.”

        Most circuits have reconsidered opposition to nurses' collective bargaining and sided with the NLRB on what defines a supervisor who cannot join a union, Judge Jones wrote.

        Today, the 6th Circuit is “the definite minority position.”

        The nursing home industry is booming, he added, and maintaining the current 6th Circuit precedent means “we will someday find ourselves in the absurd position of holding that nurses are "supervisors' in a case in which they actually outnumber their aides.”

        Judge Jones' comments came in a case where two colleagues again refused to enforce an NLRB ruling that told nurses in Grand Blanc, Mich., that they could join a union because they were not supervisors.

        Judges James L. Ryan and Alice M. Batchelder reversed the NLRB and asked pointedly why the NLRB ignores 6th Circuit precedents.

        “Once again,” the judges said, “the NLRB has refused to apply (the law) as this court has interpreted it; and so, once again, we deny their petition for enforcement.”

        Duties made nurses supervisors and ineligible for collective bargaining, Judge Ryan wrote.

        “And again, contrary to our previous cases, the board has assigned the burden of proving supervisory status to the employer.”

        Since it first ruled on this question in 1981, the 6th Circuit has said that nurses — not employers — must prove who is and is not a supervisor.

        If those nurses are to be an exception to the understanding of who is a supervisor, that is up to Congress, not the NLRB, Judge Ryan added.

        Judge Jones agreed to deny enforcement but he suggested that all 13 active judges of the 6th Circuit sitting as a wholetake a “fresh look at the issues.”

        Barring a Supreme Court decision, that is the only way to change 6th Circuit policy.

stars
        Police could have searched Troy B. Jones' car after stopping him for following too closely.

        Instead, police held him while they ran computer checks to find out whether the carwas stolen. Courts allow that, too, given the reasonable suspicion provoked by confused and contradictory paperwork Mr. Jones handed over when a Barstow, Calif., officer asked for his license and registration.

        Police still suspected he was a drug courier and held him while their drug-sniffing dog searched his Mercedes convertible and found cocaine.

        Mr. Jones was convicted of conspiracy and interstate travel to distribute cocaine. He was sentenced to 121 months in prison.

        He appealed, saying police violated his Fourth Amendment right to be free of unreasonable searches, and the evidence, along with the conviction, should be thrown out.

        Judges Danny J. Boggs, Cornelia G. Kennedy and Alice M. Batchelder rejected that argument.

        Valid doubts didn't end when the computer check cleared up car ownership. Instead, the circumstances supported a plausible suspicion he was a cross-country courier.

        The tangle of paperwork, his fail ure to answer some questions and his implausible answers to others, and the officers' experience created the reasonable suspicion required to hold Mr. Jones for a search.

        “Presented with the Jones scenario ... officers trained in narcotics detection and auto theft investigation had reason to believe that Jones was involved in illegal activity.”

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        In another Fourth Amendment case, drug interdiction officers asked Charles Scott Worley if they could look in his bag at Memphis International Airport in 1997.

        “You've got the badge, I guess you can,” he responded.

        They found more than a pound of methamphetamine and he was charged with possession with intent to distribute. Mr. Worley said the evidence should be suppressed because he had not agreed to the search and officers had no warrant.

        U.S. District Judge Jon Phipps McCalla agreed with Mr. Worley, saying he “merely acquiesced to the officer's authority rather than giving his unequivocal voluntary consent to search.” The government appealed and lost.

        Judges Nathaniel R. Jones and Danny J. Boggs said the government failed to prove that Mr. Worley's response was “unequivocally, specifically and intelligently given ... ” Rather, it was “an expression of futility in resistance to authority” or “acquiescing in the officers' request.”

       



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- Union question at nursing homes divides judges