Employers Use a Supreme Court Ruling to Exclude RNs From Unions

[-jt]

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." Pre_vious_ly, 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 ap_pealed 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 Washing_ton, 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 as_signments, 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."

http://nursingworld.org/ajn/2002/02home.htm

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Windy Carson Smith is nurse practice counsel at the ANA and Suzanne Martin is associate director of communications with the United Amer_ican Nurses, AFL-CIO, the ANA's labor arm.

[sjoe]

This same thing was going on at Wal-Mart, Home Depot, and numerous fast-food chains. I know that in some of the cases that went to court, the employer had to show that the person had ACTUAL supervisory/management responsibilities as a primary duty and was not just a figurehead or performing these duties as a small part of the job. In some cases, the chains lost. (Perhaps someone here remembers more of the specific and relevant details.)

[-jt]

Its the same thing with this ruling about nurses. The court found that those particular nurses in Kentucky were supervisors based on their job description, but that this was not a blanket ruling for all nurses everywhere. The court requires that each facility making the charge that its nurses should be barred from unionizing must PROVE that its nurses are supervisors. Each case will be decided on its own & the burden of proof is on the employer to make his case. Still employers are going for it because the courts are so backed up, they could effectively keep their nurses hanging in limbo and stall their union for a long time until their particular case is heard.

[-jt]

Amicus Brief: ANA and UAN File Brief With NLRB Regarding Definition of "Supervisor"

10/17/03

The American Nurses Association and affiliate national RN labor union, the United American Nurses, AFL-CIO, collaborated on an amicus (friend of the court) brief filed with the National Labor Relations Board on September 22 2003, regarding its current review of the statutory definition of "supervisor." The Board asked for briefs to address how and whether employees use "independent judgment" and "assign and direct" work so as to be viewed as supervisors that must be excluded from bargaining units. Two of the three cases that the Board is focusing on involved nurses.

ANA and UAN addressed from a policy perspective the impact of the potential exclusion of RNs who work as charge nurses or who delegate work to unlicensed assistive personnel. The amicus brief cited the literature that highlights that positive working conditions are an important piece of addressing the nursing shortage. In addition, many workplace gains have been acquired through collective bargaining. Given the historical support for the ability of professional nurses to organize, the ANA and UAN urged the Board to adopt an interpretation of the law that recognized the professional norms of nursing, which through state laws and the Code of Ethics for Nurses, authorize and require delegation to others on the nursing team without the employer giving nurses true managerial prerogatives associated with supervisory status.

http://www.ana.org

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In other words, RNs must delegate to others by nature of the law and professional standard, but that professional responsibility does not give them supervisor authorities or managerial status, therefore RNs are not supervisors and should be eligible to unionize. Now we wait to see if the board agrees.

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[Hellllllo Nurse, BSN, RN]

THANK YOU for posting these very informative and important articles. I have posted them on my own nursing web-site.

[fiestynurse]

What about NPs and PAs? We have a union issue in our community, where the Nurse Practitioners want to join the nursing union. The Administration is saying that the NP/PAs supervise the Medical Assistants and can not be included? I am not so sure that I agree with that. What do you think?

[-jt]

The hospital can say whatever it wants - it doesnt make it right.

Based on the Supreme Court decision in 2001 that said nurses may be considered supervisors if the employer can prove that they are supervisors thru the job description, its all going to depend on the job description of the NPs at each individual facility. If the NPs disagree that they have supervisory authority and want to be in the union, the union can file a complaint with the NLRB and take their case to court. The burden would be on the hospital to prove that they are supervisors. The court could agree with the NPs that they are not.

At the 3 hospitals within a 4 mile radius of mine, all of us with the same RN union, the NPs at those 3 facilities are also in our union. At my hospital, they aren't. They think of themselves as supervisors anyway, so none of them has ever challeneged the hospital on that. But if they wanted to be in the union, we would make the case to allow them in cause they "supervise" PAs the same way we "supervise" PCAs. The NPs are employees same as us. They cant even hire or fire like a real supervisor can.

[indrn]

The answer is Simple! DON"T be an employee! I am not a walmart worker, I am a professional nurse. I do supervise people(on my terms) but I do not work as anyone's employee. I do not pay union dues, I do not have others (behind closed doors) negotiating my economic fate. I have the respect, if not the liking of facilities and patients I work for because I have dared to ask for what I want. If we really want to improve conditions for nurses, solve the shortage, and improve patient care we must have the courage to change-one nurse at a time.