 2002 AJN Table of Contents
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Issues Update
American Journal of Nursing -
October, 2002 - Volume 102, Issue 10
Employers Use a Supreme Court Ruling to Exclude RNs From Unions
By Windy Carson Smith, Esq., and Suzanne Martin
The 2001
United States Supreme Court ruling that made it easier for employers to
argue that RNs are “supervisors” and therefore ineligible to
join unions is having an impact as the ANA and its labor arm, the United
American Nurses (UAN), AFL–CIO, battle in court and in the workplace
to retain basic protections for registered nurses under federal labor law.
The ANA has long charged that the labeling of RNs as supervisors for the
purpose of excluding them from collective bargaining units threatens
nurses’ workplace protections and, ultimately, their ability to act
as patient advocates.
“Nurses who work as professional, nonsupervisory
employees have the right to organize for collective bargaining purposes and
to engage in other concerted activity,” stated ANA president Barbara
Blakeney, MS, RN,BC, ANP. “Nurses need to have guaranteed workplace
protections that enable them to speak out on patient safety issues without
running the risk of losing their livelihoods.”
Supreme Court vs. NLRB
The issue of supervisory status has repeatedly been
revisited since RNs were extended full protection under the National Labor
Relations Act (NLRA) in 1974, with varying outcomes depending on the ruling
body. Whether a registered nurse is “employed as a supervisor”
and thus excluded from the NLRA’s protection turns on whether the
nurses “have authority to assign other employees, or responsibility to direct them” and whether “the exercise of
such authority is not of a merely routine or clerical nature, but requires
the use of independent judgment.” Previously, the National
Labor Relations Board (NLRB) had distinguished nurses’ use of
professional judgment, based upon their skill and expertise, from
supervisory “independent judgment.”
In May 2001, however, the Supreme Court took issue
with that view and the organizing playing field for nurses changed as a
result. In NLRB v. Kentucky River Community
Care, Inc., the Supreme Court refused to
accept the NLRB’s categorical distinctions between professional
judgment exercised by registered nurses in their day-to-day work and the
independent judgment exercised by a company’s supervisory staff. The
ANA filed an amicus brief on behalf of the NLRB but was not able to
persuade the court that routine delegation of tasks should not be confused
with supervisory authority exercised on behalf of the employer.
“With this decision, the Supreme Court made it
easier for employers to try to cut registered nurses out of the bargaining
process,” said UAN chair Cheryl Johnson, RN. “The justices
confused what nurses do as part of their job with who the employer claims
they are in the organizational hierarchy.”
Current Impact of Ruling
Since the Supreme Court noted in its ruling that it
might be possible to distinguish “employees who direct the manner of
others’ performances from employees who direct other
employees,” the ruling is not by any means a blanket determination
that all nurses are supervisors. This means that the ANA and the UAN can
still establish that the type of judgment exercised by nurses is not
supervisory under the NLRA.
However, since the Kentucky River decision was handed
down, hospitals and other health care institutions have used it to counter
organizing efforts. For example, in a case involving Pavia Hospital, in
Santurce, Puerto Rico, an NLRB acting regional director concluded that all
140 RNs employed by the acute care hospital are supervisors because they
direct the work of more than 100 less highly trained employees, including
LPNs, ward clerks, escorts, and technicians. In an appeal to the NLRB
earlier this year, the ANA noted in an amicus brief that supervisory
authority under the NLRA is not implicated by registered nurses’
routine direction of others: “Clearly, the authority of registered
nurses in directing LPNs and ORTs [operating room technicians] is derived
from their professional licensure and not as a result of managerial or
supervisory authority imparted by the employer to act on its behalf in
controlling the overall workplace conduct of others.”
The Supreme Court decision is having a direct impact on
the ability of nurses to organize with the UAN. For example, the 200 nurses
at the Salt Lake Regional Hospital and Medical Center in Utah voted on
union representation with the UAN on May 29 and 30, 2002. Prior to the
ballots being counted, the hospital’s owner, Tennessee-based Iasis
Healthcare, immediately appealed the election to the regional office
of the NLRB in Denver, using the Kentucky River case to allege that the
voting group included charge nurses (about two-thirds of the nursing staff)
who should be considered supervisors. While the regional office in Denver
ruled that the election results and the votes of all of the nurses should
stand, Iasis appealed the regional decision to the NLRB in Washington,
DC, which agreed to review the case and impounded the ballots.
The Salt Lake City nurses point out that the charge
nurse position is a randomly assigned, rotating position that exists solely
so that someone at the facility can
direct the flow of patients in and out of the unit,
make room assignments, and take phone calls.
“Charge nurses do not counsel, do not hire or
fire, do not discipline, and cannot approve overtime, and there is no
written job description the hospital can produce that you could apply for
to become a charge nurse,” said Lori Gay,
BSN, RN, CCRN, a 16-year veteran ICU nurse
who has acted as a charge nurse at the facility. “We’ve never
been told by the hospital that we are supervisors.” Gay notes that
the claim of supervisory status arose only when the union election took
place.
Since the Kentucky River decision, the NLRB has begun
to reconsider cases in which it had previously found that a facility had
refused to bargain with a union certified to represent nurses. In addition,
new cases raising the issue of the supervisory status of registered nurses
have been taken to the NLRB for review and are pending a decision. As a
result of this backlog of cases, the Utah nurses are now playing a waiting
game.
The hospital’s efforts to use the Kentucky River
decision to discourage nurses from organizing is not dissuading them. Gay
pointed out that the Salt Lake City nurses have become even more determined
to seek unionization with the UAN since Iasis’s appeal. “Nurses
know—they see daily—that we need the protection of our own
union,” Gay said. “The hospital knows we’re not
supervisors. People see through that, and we’re hanging
tough.”
UAN chair Johnson agrees: “Nurses have a legal
right to organize themselves for collective bargaining. It’s as
simple as that. This may be the latest trick up management’s sleeve
to discourage organizing and cloud the issues, but nurses are very good at
seeing through these tactics, and we’re very patient,” she
said. “But we’re also very determined. We are not giving
up—we’re in this for the long haul.”
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