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Supreme Court Decision
Threatens Organizing
By Nurses, Professionals


Supreme Court Rules Registered Nurses Supervisors Under Terms of the NLRA ...

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.)


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.


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.

UE News - 06/01

Home -> UE News -> 2001 Archives -> Article

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