Supreme Court Decision
Threatens Organizing
By Nurses, Professionals
WASHINGTON
The same five Supreme Court justices who determined the
outcome of the 2000 presidential election have ruled that registered nurses
are supervisors under the terms of the National Labor Relations Act. This
potentially far-reaching decision, delivered May 29, occurs as crisis in
health care propels nurses to union organization.
The decision could also impact other professional employees
seeking union organization, as well as workers who fall into the court’s
broad definition of "supervisors."
In writing the majority opinion, Justice Antonin Scalia said
the National Labor Relations Board’s test for deciding whether a worker
exercises independent judgment — and therefore cannot join a union — is
out of step with the law. Scalia was joined by Justices Rehnquist, O’Connor,
Kennedy and Thomas.
In dissent, the other four justices argued the Labor Board’s
interpretation made sense, and protested that the majority went too far in a
decision that could nullify the NLRA’s coverage of professional employees.
The case stems from a successful 1997 organizing campaign by
the Carpenters union at a 110-employee mental retardation and mental illness
facility operated by Kentucky River Community Care Inc. The employer refused
to bargain a first contract. The NLRB issued a bargaining order, which the
employer appealed.
The U.S. Court of Appeals for the Sixth Circuit in October
1999 refused to enforce the bargaining order, arguing that the NLRB erred in
deciding that six registered nurses should be included in the bargaining unit.
(The appeals court also ruled that the board mistakenly placed the burden of
proving supervisory status on the employer. The Supreme Court unanimously
backed the NLRB on that point.)
The Labor Board took the position that the nurses were not
supervisors because they used "ordinary professional or technical
judgment in directing less-skilled employees" rather than
"independent judgment."
That interpretation was rejected by Justice Scalia and the
court’s majority. (Scalia leaned on the notorious Taft-Hartley Act, which
added language on supervisors to the NLRA in 1947.)
SUPERVISORS?
Writing in dissent, Justice Stevens pointed out that the RNs
employed by Kentucky River "do not have authority to hire, fire, reward,
promote, or independently discipline employees, or to effectively recommend
such action. Nor, for that matter, do they evaluate employees or take action
that would affect their employment status."
By contrast, the majority took no action against the Labor
Board’s decision to deny supervisory status to the 20 rehabilitation
counselors who supervise the work of 40 rehab assistants, Stevens said.
The majority did exactly what they accuse the NLRB of doing,
Stevens wrote — "reading one part of the statute to the exclusion of
the other."
While Congress chose to exclude supervisors from the
protection of labor law, it also extended the same protections to
professionals, "who, by definition, engage in work that involves the
consistent exercise of discretion and judgment in its performance,"
Stevens observed.
ORGANIZING ON THE RISE
The Supreme Court decision threatens the upsurge in organizing
among nurses. Worn out by longer hours, frustrated with under-staffing and
gravely concerned about the declining quality of patient care, growing numbers
of nurses are organizing.
"We were very frustrated going to management and seeing
them do nothing," said Marina Bass, a nurse at San Gabriel Valley Medical
Center, among those who have joined the California Nurses Association.
"Instead of leaving the place we love to work, we have decided to change
it," she told the Los Angeles Times last month.
California is leading the way in organization of registered
nurses; of the more than 130,000 active hospital RNs in California, about 41
percent are unionized. The independent California Nurses Association, a Labor
Party sponsor and UE ally, represents more registered nurses than any other
union in California. In April alone the CNA organized more than 2,000
registered nurses at seven hospitals.
Earlier last month, the AFL-CIO Executive Council issued a
charter to United American Nurses, a union created by the American Nurses
Association.
