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.
The case reached the nation's highest court on appeal from the NLRB. It involves six nurses who work at one of Kentucky River's residential psychiatric treatment centers in Pippa Passes, Ky.
In 1999, the 6th U.S. Circuit Court of Appeals in Cincinnati said the nurses were, in fact, supervisors who were ineligible to join a proposed collective-bargaining unit at the facility (Feb. 19, p. 26). Supervisors are not protected by the National Labor Relations Act, which gives workers the right to unionize.
If the justices uphold the lower court's ruling, nurses could be considered supervisors if they direct others in dispensing medicine, serve as the highest-ranking employee in a building, address staff shortages and move employees among units as needed. Those were the reasons that the 6th Circuit Court gave for declaring the nurses ineligible. At small nursing homes and treatment centers, which often have fewer nurses handling numerous tasks, such a ruling could completely exclude nurses from labor unions.
A central issue in this case is whether nurses use "independent judgment," or supervisory discretion, on the job that goes beyond their professional judgment in treating and directing the care of patients. Such discretion would make them supervisors because they would be acting in the interest of their employer.
Lawyers are hopeful that the Supreme Court in its opinion will offer clearer guidance on what duties should be considered independent judgment, enabling the NLRB to better decide who is a supervisor and who isn't.
The NLRB said employees do not exercise independent judgment if they use ordinary professional or technical judgment in directing less-skilled workers to carry out employer-specified standards. That standard is based on the NLRB's interpretation of the National Labor Relations Act.
But the court could rule that the NLRB's interpretation of independent judgment is wrong, said Barbara Fick, an associate professor at the University of Notre Dame Law School in Notre Dame, Ind.
"That would have the effect of basically disenfranchising a large portion of the nursing population in hospitals and nursing homes where they used their professional judgment in directing the work of others," she said.
On the other hand, Fick added, the court could say that the NLRB is right. Employers then, she said, may become concerned that they can't trust their nurses to report problem employees, "because if they are all in the same bargaining unit they won't want to rat on them."
But Fick added that is not a well-grounded concern because nurses have ethical and professional responsibilities to protect patient care.
This is the first time the court has tackled the issue of nurse supervisors since it affirmed a lower-court ruling in 1994 that said nursing home licensed practical nurses were supervisors because they oversaw nursing assistants.
In the case before the court, the NLRB has ruled that the psychiatric center's nurses aren't supervisors and, therefore, are eligible for collective bargaining. The employer, Kentucky River, refused to bargain with the union, and when the NLRB ordered the company to do so, it appealed to the 6th Circuit Court.
But to the disappointment of some lawyers, the Supreme Court justices did not deal as much with some of the larger issues in the case as they did some of the details, including specific nursing responsibilities and NLRB procedures.
"I think they did get caught up in minutiae," said Diana Ceresi, a lawyer for the Service Employees International Union who attended the arguments. The SEIU filed a friend-of-the-court brief in the case.
Some of the details appeared to frustrate Justice John Paul Stevens.
"You've given us so much detail, it's really hard to follow the argument," Stevens said to Michael Hawkins, a Cincinnati attorney representing Kentucky River.
Some of the broader issues raised by the case are whether the courts should defer to the NLRB in deciding supervisory status and whether the NLRB or the employer has the burden of proving that an employee can be excluded from a bargaining unit.
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.
According to the 6th Circuit Court's ruling, the nurses also had the authority to "write up" employees who don't cooperate with staffing assignments and move employees among units as needed.
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."