Healthcare employers notched a major victory last week when the U.S. Supreme Court, in a 5-4 decision, ruled that nurses who supervise lesser-skilled employees aren't protected by the National Labor Relations Act.
The act allows workers to unionize or engage in other collective actions without management interference.
For healthcare labor unions, the ruling is a setback, compounding their inability to parlay relaxed collective bargaining unit rules into larger membership ranks (May 2, p. 26). And they're crying foul over the decision.
The rights of employees to act together to improve working conditions are much more at risk if healthcare employers interpret the court's decision broadly, said Kathy Sackman, who chairs the nursing division of the American Federation of State, County and Municipal Employees, which represents about 60,000 registered nurses and licensed practical nurses for collective bargaining purposes.
Meanwhile, healthcare employers and their labor consultants and lawyers are licking their chops over the decision. They'll likely use the ruling to fend off organizing efforts by shrinking the pool of healthcare employees eligible for union representation and by lifting federal protections from employees who may be engaged in union organizing.
"This case will be widely utilized in the healthcare arena during organizing efforts," said G. Roger King, a healthcare labor attorney with Jones, Day, Reavis & Pogue in Columbus, Ohio.
In National Labor Relations Board v. , the high court addressed a labor dispute at a 100-bed nursing home in Ohio. The facility, Heartland of Urbana (Ohio), fired three licensed practical nurses, or LPNs, in 1989 and disciplined several others for allegedly poor performance. The nurses filed an unfair labor practice charge against the facility, arguing that they were fired and disciplined for engaging in concerted activity, which is protected by the National Labor Relations Act.
In addition to contending that the nurses were fired and disciplined for legitimate reasons, the nursing home said the nurses weren't protected by the labor act because they were supervisory employees. Under the act, supervisors aren't eligible for union representation, and their concerted activities aren't protected from actions by employers.
The nurses, in turn, argued that they didn't meet the act's definition of a supervisor and, in fact, were protected employees under the law.
The law defines a supervisor as any individual who has the authority in the interest of the employer to do things such as hire, fire and discipline others using his or her independent judgment.
In May 1989, the National Labor Relations Board sided with the LPNs and said the nursing home committed an unfair labor practice. The nursing home appealed, but the original decision was later upheld by both a federal administrative law judge and the NLRB's five board members in Washington.
However, in March 1993 the 6th U.S. Circuit Court of Appeals in Cincinnati reversed the earlier rulings and said the LPNs were, in fact, supervisors because they oversaw nursing assistants. Hence, they weren't protected by federal law, and the nursing home didn't engage in an unfair labor practice by firing or disciplining them.
The high court heard oral arguments in the case on Feb. 22, and in a 13-page opinion written by Justice Anthony M. Kennedy, the Supreme Court affirmed the 6th Circuit's decision.
Specifically, the high court threw out the NLRB's historic approach to determining whether nurses are supervisors, ruling that it was inconsistent with previous case law as well as the plain meaning of provisions of the National Labor Relations Act.
Under the approach, nurses aren't necessarily considered supervisors even though they oversee the work of others. That's because their responsibilities may be intrinsic to being a nurse, regardless of whether they are acting in the employer's interest. In such cases, the NLRB considers other factors, such as other job responsibilities. Using this approach, the NLRB determined that the LPNs in the case weren't supervisors.
But Justice Kennedy said federal law doesn't separate workers' activities intrinsic to their job from activities done in employers' interests.
"That dichotomy makes no sense," he said. "Patient care is the business of a nursing home, and it follows that attending to the needs of the nursing home patients, who are the employer's customers, is in the interest of the employer."
Although the justices didn't reach any conclusions about the supervisory status of the nursing home's LPNs, by affirming the 6th Circuit's decision, they produced the same effect.
In a 17-page dissent written by Justice Ruth Bader Ginsburg, the four dissenting justices said the NLRB's approach in making nurse supervisor decisions was reasonable and consistent with the latitude given the NLRB in interpreting the provisions of the National Labor Relations Act.
"The court's opinion has implications far beyond the nurses involved in this case," she said. "If any person who may use independent judgment to assign tasks to others or direct their work is a supervisor, then few professionals employed by organizations subject to the act will receive its protections."
Justice Ginsburg's sentiments were echoed by organizations that represent nurses and other healthcare employees, whose jobs are being restructured by hospitals and others to better cope with the cost pressures of pending national healthcare reform.
About 24% of the 3.6 million full-time equivalent employees at hospitals are registered nurses. Of those, an estimated 20% are represented by unions.
"Every professional's work, such as that of a registered nurse, involves to some degree, directing the work of others," said Virginia Trotter Betts, president of the American Nurses Association. "The question is when does a professional become a supervisor. We think the court was clearly wrong to call nurses supervisors for acting as professional employees."