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Are You a Supervisor and Don't Know It? Beware.

AFSCME and other nurse unions have begun preparations to respond to what may be the most significant threat to health care worker collective bargaining rights in years. When the National Labor Relations Board (NLRB) reconvenes, it is likely that one of the first cases on which it will rule involves the definition of 'supervisor.' Nurses who periodically act as charge nurses or who direct less skilled employees may soon be classified as supervisors and as such not be allowed to organize under the National Labor Relations Act (NLRA), the law that covers private sector employees.

The case, often referred to as Kentucky River, was first brought before the NLRB by the Kentucky State District Council of Carpenters. The union had petitioned the NLRB in 1997 to represent a unit of professional and nonprofessional employees at a private psychiatric facility owned by Kentucky River Community Care, Inc. The employer objected to the inclusion of six registered nurses in the bargaining unit, arguing that they were supervisors under the NLRA.

Whether a nurse is employed as a supervisor and therefore excluded from the NLRA's protection is dependent on the answers to two questions: (1) whether nurses have authority to assign other employees, or responsibility to direct them; and (2) whether the exercise of such authority requires the use of "independent judgment."

The NLRB ruled that the nurses were not supervisors because they did not exercise "independent judgment." The Board made a distinction between judgment exercised on behalf of management (which would warrant supervisor status) and professional or technical judgment (which is not supervisory). The nurses were included in the bargaining unit and the union eventually won the election — with the nurses in the unit.

After that initial ruling, however, the employer appealed the case all the way to the U.S. Supreme Court. In May 2001, the Supreme Court overturned the NLRB ruling based on its interpretation of the term "independent judgment." The Court ruled that the NLRB's determination that "professional or technical judgment" can never constitute supervisory independent judgment is no longer valid and inconsistent with the NLRA.

Now, the NLRB is poised to revisit the question of the supervisory status of nurses when it hears three new cases. The Board has asked interested parties to submit responses to ten questions that examine such areas as the scope of discretion on exercising independent judgment, and the difference between "assign" and "direct." Since employers are advocating the exclusion of any nurse (RN or LPN) who is a charge nurse as infrequently as once a month, this would be a mortal wound to nurses' rights. Given the composition of the Board, we fear a decision that will be a blow to unionized nurses and to their ability to advocate on behalf of quality patient care. Nurses need protections that enable them to speak out on patient safety issues without risking their jobs.

Together with other nurse unions in the AFL-CIO, we plan to blow the whistle on this dangerous move. Once America's nurses know that their rights are in danger, they will impress on their Senators and Representatives that this must not occur.

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