The “Kentucky River” cases which are waiting a ruling from the National Labor relation board are catching the attention of media and workers outside of the labor movement partly because the ruling can be so deterimental to the ability of workers to organize their workplace. One of the cases in the decision hinges on the classification of six nurses in Kentucky who were reclassified as “supervisors” by their hospital as an act to deny bargaining rights to the workers. Jordan Barab provides the background and significance of the upcoming ruling.
The National Labor Relations Board (NLRB) is set to rule on a series of cases collectively known as “Kentucky River,” which will determine whether nurses can be considered “supervisors.” Supervisors, traditionally considered to be employees who could hire, fire and discipline other employees, are not allowed to join unions, according to American labor law.
The origin of the supervisory exclusion was the Taft-Hartley Act which amended the National Labor Relations Act in 1947. The original National Labor Relations Act gave all employees the right to form unions and required that employers recognize certified employee unions and bargain in good faith. The Taft-Hartley, however, excluded supervisors, defined as
“…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 responsibility 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.”
However, even the anti-union authors of the Taft-Hartley act made it clear that it did not intend to deny coverage to professional employees, lead workers or others whose jobs do not include major managerial responsibility to hire, fire and discipline other employees.
The current problem stems from a 2001 Supreme Court ruling that found that the NLRB’s analysis of the supervisory status of six registered nurses at a Kentucky nursing facility was flawed. The Board is therefore required to come up with a better definition of “supervisor.” The problem is that some nurses act as “charge nurses,” who are allowed to decide which patients will be seen by his or her colleagues. And despite the fact that charge nurses can’t discipline other employers, hire or fire, they could be considered management by an overly broad interpretation of the law.
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Finally, just to add insult to injury, the NLRB has refused to hear oral arguments on the cases. In fact, according to the AFL-CIO, the NLRB
“has heard no oral arguments, a fundamental part of any due process, since the Bush administration took office. In fact, the NLRB denied union requests to heard oral arguments in these cases. “
An unfavorable NLRB decision could have devastating effects on labor relations in this country
“The consequences of bad labor board rulings in these cases will reverberate far and wide, potentially stripping coverage in every nook and cranny of the workforce and creating innumerable new opportunities for mischief by employers and their hired gun consultants bent on denying workers’ their fundamental human right to form a union. Long established unions and collective bargaining relationships will also unravel, as employers emboldened by the Bush labor board’s rulings assert that they no longer have a duty under federal labor law to recognize or bargain with their employees’ unions. It will be back to the law of the jungle in industries like health care, where disruptions from labor disputes became so severe in the early 1970s that Congress passed special legislation to bring employees of private non-profit hospitals under federal labor law coverage. “
And this isn’t good new for anyone who’s ever planning on being a patient in a hospital either. Nurses unions are known to be strong advocates of increasing nurse-patient staff ratios and other measures that improve patient outcomes. Research shows that that increased nurse-staff ratios mean fewer hospital fatalities, fewer heart attacks, shorter time spent in the hospital, and fewer patient-safety errors.
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But would the NLRB actually go so far as to take away the collective bargaining rights of millions of American workers? Probably.
“In July 2004, the Board ruled that graduate teaching and research assistants were not covered under the NLRA, arguing that their status as students superseded their role as employees. In September 2004, the Board ruled that disabled persons receiving rehabilitative services are also not eligible to form unions under the NLRA. Two months later, temporary employees were barred from organizing unless they had the permission of both their employer and temp agency. The . . . majority then went on to strip organizing rights from artists’ models and newspaper carriers. And earlier this year, the majority ruled that employees of a private nonprofit that performs quasi-public functions are public employees, without coverage by the NLRA.
The AFL-CIO has a petition to Congress asking that the NLRB reverse its decision not to hear oral arguments in the case. The AFL-CIO has a series of blog posts about the NLRB decision on their blog.
Stephen Colbert provides the counter-argument on the Colbert report.
