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Health Care Employers Gain Victory in Supreme Court on Supervisory Status of Nurses

By Roger P. Gilson Jr. and Thomas V. Walsh
  • July 9, 2001

Before the close of its 2001 session, the U.S. Supreme Court issued a ruling of great importance for health care employers interested in protecting their management rights. In the case NLRB v. Kentucky River Community Care, Inc., the Court held that the National Labor Relations Board's test for determining whether a registered nurse exercises sufficient "independent judgment" to be considered a "supervisor" was too restrictive. This ruling will make it easier for health care providers to prove their nurses are "supervisors" when they direct less-skilled staff in the delivery of services. Jackson Lewis attorneys Thomas Walsh and Thomas McDonough filed a "friend of the court" brief with the Supreme Court on behalf of the American Health Care Association in the case. [NLRB v. Kentucky River Community Care, Inc., U.S. Supreme Court Docket No. 99-1815 (May 29, 2001).]

Under federal law, supervisors are excluded from bargaining units and may be prohibited from supporting unionization. Supervisors are defined as employees who are authorized to use independent judgment when directing other employees (i.e., they are empowered to use their own discretion). As a result, there is a generally recognized conflict of interest between supervisory duties and union loyalties.

Health care employers have long opposed the inclusion of registered nurses in unions because they seemingly fit this definition of supervisor. Despite this apparent fit, the Board has often concluded that registered nurses do not exercise the requisite "independent judgment of a supervisory nature" when directing less-skilled health care staff in delivering services. Instead, the Board has reasoned that if a nurse's judgment is of an ordinary professional or technical nature, it does not rise to the level of independent judgment required by law.

Labor Board's Test Rejected

In Kentucky River, the union sought to include six registered nurses in a bargaining unit consisting of various other health care staff. The Board, applying its restrictive test, determined that the nurses were not supervisors because their judgments when directing less-skilled employees were based on their professional and technical expertise, not their connection with management. As a result, the Board ruled that the nurses could engage in union organizing activities and be included in the bargaining unit with other health care staff. On appeal, the federal appeals court rejected the Board's "independent judgment" test reasoning that directing other staff does not become merely routine by virtue of the nurses' professional training and expertise. Accordingly, the appeals court refused to enforce the Board's decision.

Agreeing with the lower court, the Supreme Court rejected the Board's independent judgment test. Writing for the Court, Justice Antonin Scalia reasoned, "[w]hat supervisory judgment worth exercising, one must wonder, does not rest on 'professional skill or experience.'" Moreover, the Court noted that the Board's restrictive interpretation applied only to nurses, thereby introducing a categorical exclusion that is not suggested in the Act. As a result, not only was the Board's decision in Kentucky River rejected, but the Board's independent judgment test was rejected as too restrictive.

What the Decision Means

With unions targeting nurses and other health care employees in some of the most active organizing efforts in the country, this ruling by the Supreme Court strengthens the legal position of employers seeking to exclude supervisory nurses from bargaining units and prevent them from coercing staff into supporting unions. The decision may impact organizing among physicians, as the collective bargaining arm of the American Medical Association announced that it was calling off further organizing efforts among private sector doctors. PRN, or Physicians for Responsible Negotiation, characterized the decision as "a major setback," saying it reopens the question whether doctors would also be considered supervisors when they exercise ordinary professional judgment in directing less-skilled health care workers.

In addition to assisting health care employers resist organizing efforts, this decision should enable health care employers successfully to challenge prior decisions by the Board based on its now defunct independent judgment test. Review of such decisions may be obtained with the assistance of legal counsel.

©2001 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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