In a victory for health care employers, the U.S. Supreme Court, in NLRB v. Kentucky River Community Care, No. 99-1815, U.S. Supreme Ct. (May 29, 2001), held that "charge nurses" are supervisors under the National Labor Relations Act (NLRA), and thus should not have been allowed to vote in a union election. We expect that this ruling will have far reaching ramifications for employers in health care.

Several years ago, the Carpenters Union filed a petition with the NLRB to represent approximately 110 employees at Kentucky River Community Care, a facility which cares for the mentally ill. The employer's position was that six registered nurses who served as "building supervisors" should not be included in the bargaining unit. These building supervisors were the highest level employees in their respective buildings during the evening and night shifts. They had the power to require workers to come in early or stay late. They assigned workers to various units as needed, and had the authority to cite employees for disciplinary violations. The six registered nurses also directed LPNs in dispensing medication.

Because the employer objected to the inclusion of its registered nurses in the bargaining unit, it refused to negotiate with the union, and the NLRB filed unfair labor practice charges against the company. When the case reached the U.S. Court of Appeals for the Sixth Circuit, that court held that the nurses should not have been allowed to vote. The Supreme Court, in a 5 to 4 decision, upheld the Sixth Circuit Court of Appeals' ruling.

The NLRA especially defines the term "supervisor" in Section 2(11), which provides:The term 'supervisor' means 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 responsibly 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 of a merely routine or clerical nature but requires the use of independent judgment.

Over the years, a three-prong test has emerged for evaluating supervisory status. Employees will be considered supervisors if:

They hold the authority to engage in any one of the twelve supervisory functions listed in section 2(11);
The exercise of such authority is not merely routine or clerical, but requires the use of independent judgment; and
The authority is held in the interest of the employer.
The NLRB found that the building supervisors, who were registered nurses, did not use independent judgment; instead, even where the building supervisors were granted a sufficient degree of discretion, they used "ordinary professional or technical judgment in directing less skilled employees to deliver services in accordance with employer-specified standards." The Supreme Court rejected this interpretation and held that the NLRB had no basis for placing this limitation on one of the twelve statutory functions, i.e. directing other employees. The Supreme Court held that where an employee used ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards, that employee was acting as a supervisor, and thus was not covered by the NLRA. Accordingly, the Court upheld the employer's right to refuse to bargain with the union. The Court did agree with the NLRB's contention that the party claiming that an employee is a supervisor bears the burden of proving supervisory status.
While this decision is significant for nurses, it is also significant for other health care professionals. For instance, an entity established by the American Medical Association to unionize doctors (Physicians for Responsible Negotiation), in the wake of the Kentucky River decision, has ceased its organizing efforts among physicians because the ruling indicates that the vast majority of doctors would be considered supervisors.
The Kentucky River decision has implications for other professional workers both in and out of health care, such as attorneys, accountants, computer programmers, etc. If these individuals direct others, the Kentucky River ruling suggests they will be excluded from the bargaining unit in the event of a union organization attempt.
Usually when the Supreme Court reverses the NLRB, the NLRB tries to find ways around the Court's pronouncements. In Kentucky River, the Court may have opened the door for the NLRB to do just that when it specifically stated that the NLRA's definition of "independent judgment" is ambiguous with respect to the degree of "discretion" required for supervisory status.
In the light of this "uncertainty," employers can increase their odds that the NLRB (or ultimately a U.S. Court of Appeals) would agree that an individual (charge nurse or other similar front-line supervisor) is truly a supervisor. Employers should (1) review job descriptions so they truly reflect all supervisory duties; (2) give the would-be supervisor as many as possible of the 12 supervisory indicia set forth in § 2(11) of the NLRA (as discussed above); (3) try to broaden supervisory authority where possible and try not to second guess it; (4) let supervisors evaluate their employees and try to avoid second guessing those evaluations; and (5) treat supervisors as management in more than mere title.
Employers should consult labor counsel and be proactive in fine-tuning their processes before the issue arises.
Jerald J. Oppel practices employment and labor law in Ober|Kaler's Baltimore office.

Copyright© 2001, Ober, Kaler, Grimes & Shriver