Update on "Are ALL RNs Supervisors?"

[-jt]

"Hard bargaining: High court takes on highly charged issues of nursing duties vs. union eligibility

The U.S. Supreme Court could hand hospitals and other healthcare employers new ammunition to defeat union organizing by nurses if it decides that certain nurses with supervisory functions are ineligible for collective bargaining.

Last week, the nine justices heard oral arguments in National Labor Relations Board vs. Kentucky River Community Care, a closely watched labor dispute at a psychiatric facility that could affect institutional providers that employ registered nurses. A decision is expected by June.

Some of the finer details the justices focused on included the nurses' duties while on the job. Justice Ruth Bader Ginsburg pointed out that while the nurses may have served as building supervisors during off-peak hours, they had no authority to compel workers to stay overtime or force others to come in to alleviate staffing shortages.

Justice Antonin Scalia appeared skeptical, saying that if a nurse can assign where others work, ``I don't know why that isn't supervisory.''

But Lawrence Wallace, the U.S. Justice Department's deputy solicitor general, who represented the NLRB, said a nurse who offers direction to someone else isn't automatically a supervisor. Nurses, he said, have to communicate with other workers by ``more than brain wave.'' ................"

for the full article see: http://www.modernhealthcare.com/currentissue/topten.php3?refid=6769&db=mh99up&published=20010226

"Human resource directors and their healthcare associations are salivating at the mouth in the hopes the Supreme Court will rule that Nurses are not entitled to the protection of collective bargaining.......

In LTC, where staffing is often 30 , 40, or 50 patients per RN, union representation is often the only way to keep their licenses and their patients safe. The high courts ruling is due in June...."

Click here: SHRM Press Room http://www.shrm.org/press/releases/default.asp?page=001229.htm

"Human Resources Management Group Supports Nurses To Be Exempt From NLRA -Misapplication of the Act could affect long-term facilities and acute hospital care

Alexandria, Va., December 29, 2000 - In an amicus curiae brief filed recently before the U.S. Supreme Court, the Society for Human Resource Management (SHRM) argued the court should affirm the Sixth Circuit's holding that registered nurses use

independent judgment and thus should be considered as "supervisors," who are exempt from the National Labor Relations Act's purview. The brief was written on behalf of SHRM by G. Roger King, Jeff Winchester and Michael Rossman of the law firm Jones, Day, Reavis and Pogue. The brief states that:

nurse-supervisor cases cannot be squared within the language, purpose, or history of the section." >>

In the case of National Labor Relations Board v. Kentucky River Community Care, Inc., the Sixth Circuit ruled that the registered nurses of a nonprofit operator of a residential mental health care facility were supervisors under the NLRA and thus exempt from being considered part of a collective bargaining unit. The supervisor status of nurses has been a source of controversy between employers and the NLRB over the past several years. Federal

Circuit courts have been split over the application of Section 2(11) of the NLRA, which sets out the various classifications of employees/supervisors and thus, who is or is not covered by the act....

SHRM argued that nurses continually shoulder the authority and responsibility for supervising other health care personnel that dramatically affect the health of patients and can involve matters of life and death. From this standpoint, the National Labor Relations Board's approach is indicative of poor public policy that ultimately could have a negative effect on long-term care facilities and acute-care hospitals.

"It's been several years since the high court has granted review on a traditional labor issue such as this," said SHRM Executive Vice President and COO Susan R. Meisinger, SPHR. "By addressing this controversial issue, the court has an important opportunity to provide clear guidance and resolve a question that has divided the courts......" http://www.geocities.com/nurseadvocate

Soooooooo........ with all of this going on, how come ONLY the ANA/UAN and the SEIU submitted amicus briefs on the nurses behalf in this historical and pivotal case???? Why didnt EVERY nursing organization in this country do the same & speak up for nurses?? where were all the other so-called "voices" of nursing in this????? I think that no nurses group, other than NYSNA, to my knowledge, has done any educating on this case at all. Please correct me if I wrong there (and I hope I am).

Will we wake up & make our voices heard the day AFTER the decision is made in managements favor? Then what?????

While some people are out there doing nothing but saying the ANA doesnt represent all nurses, the ANA, along with the SEIU are the ONLY ones who did!

the judges decision is expected in June.

Click here: On the Docket - Medill School of Journalism http://www.medill.nwu.edu/cases.srch?-database=docket&-layout=lasso&-response=/docket/detail.srch&-search&docket=99-1815

or see below:

NLRB v. Kentucky River Community Care, Inc. 99-1815 Appealed From: 6th Circuit Court of Appeals (193 F.3d 444) Oral Argument: Feb. 21, 2001 Opinion Issued: Subject: Mental health nurses, union certification

Question(s) presented: 1. Whether the National Labor Relations Board reasonably concluded that an employee's exercise of ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards does not constitute the exercise of "independent judgment" that makes the employee a "supervisor" under Section 2(11) of the National Labor Relations Act, 29 U.S.C. 152(11)?

2. Whether the Board permissibly requires the party who alleges that an employee is excluded from the rights and protections afforded by the Act as a supervisor to bear the burden of proving the individual's supervisory status?

3. Whether, applying its interpretation of "independent judgment" and its allocation of the burden on proving supervisory status, the Board reasonably concluded that respondent's registered nurses are "employees," rather than supevisors, and thus entitled to the rights and protection afforded by the Act.

PS.....

The courts may also be leaning towards saying that LPNs are also supervisors & not allowed to unionize because in nursing homes they direct ancillary staff.

http://www.modernhealthcare.com/currentissue/topten.php3?refid=6769&db=mh99up&published=20010226

[oramar]

If we lose this one just "abandon all hope Oh yee who enter here". Seriously, if the captain of a plane is not then supervisor a floor nurse is not a supervisor even if she is charge nurse for a day.

[Jenny P]

Thanks, jt for the information. I have been wondering where to find out how this has been going and am glad to have these sources. As you probably know, MNA is also following this closely, but I appreciate the fact I can look it up now (thanks to you!) and study it on my own. You are a powerful source of good information, girlfriend! My hat is off to you.

[Mijourney]

Hi -jt. Thanks for the update. Congratulations. However, am I to take your last couple of paragraphs as a challenge to those of us who either don't actively participate in any formal nursing group or who participate in groups who oppose the ANA? I think what would be really interesting is to find out how effective and efficient each formally established national nursing group of 10 years or longer has been in that period of time in effecting change for the better. Is it simply that the emphasis is different for each group? Or, is the approach for the same problem different, and therefore, nurses being the large, diverse group we are, have different opinions on the approach that should be taken to solve problems?

[-jt]

Originally posted by Mijourney:

Hi -jt. Thanks for the update. Congratulations. However, am I to take your last couple of paragraphs as a challenge to those of us who either don't actively participate in any formal nursing group

Its a challenge to all nurses who dont participate in ANYTHING that affects their practice, profession, or livlihood. Its not to say that SEIU & ANA are the greatest because they wrote amicus briefs. It was to say where IS everybody else??????? The ANA represents 180,000 RNs. The SEIU represents 110,000 RNs & LPNs. Although in this issue, they both spoke for all nurses in general, where are the others who represent nurses? If they dont get in there, they may not have any membership left come June. Look at whats happening! We're gonna get killed if the judges side with the hospital, human resources groups & healthcare associations. And those guys are out hitting on them in full force. Where are the NURSES?

Heres an idea.... whatever your affiliation, how about writing your organization & asking them where THEIR amicus brief is? With all the organizing of nurses going on around the country, The judges should be getting bombarded with their reading material too. Why arent they?? If I paid dues to be represented by a nurses organization and it didnt submit a brief telling our side of the story & presenting our case for nurse collective bargaining, I would want to know why!