From the Massachusetts Nurse Newsletter
July/August 2006 Edition
By Joe Twarog
Associate Director, Labor Education & Training
Since the Wagner Act (the National Labor Relations Act) was passed in 1935 establishing the right of workers to organize into unions and also forming the National Labor Relations Board, the definition of “employee” has been hotly debated. The Wagner Act did not specifically address the issue as to whether supervisors and professional employees were to be covered by the Act. But early NLRB decisions (Packard Motor Car v. NLRB, 1947) concluded that supervisors were protected. This meant that supervisors, such as foremen and professional occupations, were deemed to be “employees” and therefore able to organize into a union for the purposes of collective bargaining. But the story does not end there.
Following the Packard Motor decision, the Supreme Court ruled that it did not have the power to exclude groups or categories of employees from the Act, but that only Congress did. Quickly the Republican controlled Congress passed the Taft-Hartley Amendments that explicitly excluded supervisors from the protection of the NLRA.
Since then, there has been a tortuous and winding road of decisions by the NLRB and the Supreme Court that addressed the issue of “supervisory” status and the inherent tensions of the normal duties of professional employees. In 2001, the Clinton-appointed Board ruled in two cases (The Health Care & Retirement Corporation of America and Kentucky River Community Care) where nurses had no power to fire or hire other employees while using ordinary professional or technical judgment in directing less-skilled employees” would not be considered “supervisors” because they were exercising their judgment for the benefit of the patients and not the employer.
But this left an opening for the Supreme Court to overturn that ruling and send it back to the NLRB. The issue for review was how to define “supervisor” and what elements contribute to such status. When it came to nurses, the court found that the NLRB had “created a false dichotomy … between acts taken in connection with patient care and acts taken in the interest of the employer.” The court felt that these were inseparable.
The politicization of the NLRB and the Supreme Court
The board held through a number of other decisions that nurses who provided typical nursing services in a hospital or nursing home, were not supervisors. Yet the Supreme Court rejected that interpretation in 2001 and the issue was sent back to the NLRB. In the meantime, new anti-worker appointees took their seats on the NLRB as well as on the Supreme Court.
Consequently as these bodies (the NLRB and Supreme Court) have taken a much more conservative and political tone over recent years, the definition and tests have continually expanded. The result of this trend is that more and more workers are being denied the right to unionize. In fact, whole categories of workers (e.g. college faculty members, graduate employees, etc.) are now being threatened with their legal right to organize by virtue of essentially political decisions.
Furthermore, the NLRB has refused to even hear oral arguments on the critical issues at hand, despite appeals from various unions and interested parties. In fact, the NLRB has not heard any oral arguments on any pending cases for the past 5 years, since 2001, the year that the Bush administration began. They have only accepted written briefs. The briefs for these 2006 cases were due no later than September 2003!
Current cases for NLRB decision
The NLRB is expected to issue its decision on supervisory status this summer or fall. It threatens the basic right of registered nurses to organize. That decision is inaccurately referred to by the short-hand reference as the Kentucky River decision (named after a case NLRB v. Kentucky River Community Care, Inc., 2001) However, the cases currently pending before the NLRB actually address issues left open by the Kentucky River decision.
There are three cases now pending. They are: Oakwood Healthcare Inc. (UAW), Golden Crest Healthcare Center (USW) and Croft Metals, Inc. (Boilermakers). These decisions will impact the way that “supervisor” is interpreted and applied by the board and will have wide-ranging, and potentially devastating results on workers’ basic right to form a union. They are not consolidated cases however, therefore each will be decided separately by the NLRB and the decisions may be issued over time.
Issues to be “clarified”
At issue is whether registered nurses (and other lead workers) are essentially supervisors. The National Labor Relations Act defines supervisors as “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not merely routine or clerical in nature, but requires the use of independent judgment.” This means that supervisors are not considered as “employees” under the act and do not have the rights or protections to organize a union.
Clearly registered nurses use independent judgment every day in the normal course of their work. That is the very nature of such professional occupations. RNs also often direct and assign work in their role as charge nurse. Yet these are the narrow issues that the NLRB will decide on, thereby broadening the definition of “supervisor” and denying nurses the right to a union.
The question essentially becomes one of whether employees with a very minimum amount of authority in the workplace is enough to consider them as supervisors for the purposes of the NLRA.
Impact and threat
The threat is real. It will impact health care and other skilled and professional occupations, as well as the construction industry. The decisions will inevitably result in much litigation that will waste union members’ dues money while enriching union- busting consultant firms and attorneys. The NLRB decisions (assuming the worst) would most likely not immediately or automatically eradicate or abolish nurses’ unions. The employer would have to act upon the decision by challenging the status of RNs as “employees”—thereby the litigation.
If nurses lose the protection as “employees” under federal law, they could be disciplined or terminated for engaging in union activity. They would also lose the opportunity to join a union and their ability to have a voice on the job, as well as to be effective patient advocates.
It is the MNA position that whatever the decision of the NLRB, we will fight its attempt to strip away the basic right of all workers to organize.
This strategy will be debated and formulated by the MNA and implemented by each bargaining unit. The plan will not be limited to a draining and lengthy legal battle – but will include an aggressive mobilization of nurses to challenge the decision every day and everywhere!
The MNA expects also that the optimal way to challenge such an anti-worker decision will be to work jointly with other unions across the state in a concerted and dynamic campaign. The expectation is that nurses and other workers will have to fight to save their union or be subject to the whims of the employer.