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UAN BACKGROUNDER: Supervisory Status of Nurses Post-Kentucky River

1974 Healthcare amendments to the National Labor Relations Act (NLRA)

In 1974, the NLRA was amended to include the private, not for profit health care industry under the Act, extending the full protection of the NLRA to RNs. Related amendments granted RNs the right to strike subject to the 10 day notice requirement, provisions for mediation and created a mechanism by which strikes can be delayed for a 60 day cooling off period where patient safety is at issue.

NLRB v. Kentucky River Community Care (2001)

In NLRB v. Kentucky River Community Care Inc., the Supreme Court defined charge nurses as supervisors and ruled that the NLRB’s determination that ‘professional or technical judgment’ can never constitute supervisory independent judgment is no longer valid and is inconsistent with the NLRA. However, the Supreme Court did not settle the issue, referring it back to the National Labor Relations Board.

Post-Kentucky River developments

Since Kentucky River, hospitals and other health care institutions have used it to counter organizing efforts. UAN has been directly impacted in Salt Lake City, where nurses voted on union representation with UAN in May 2002. The employer, IASIS Healthcare, appealed the election using the Kentucky River case, arguing that nearly two-thirds of the nursing staff should be considered supervisors because of their charge nurse duties. While the regional office of the NLRB ruled that the election results and the votes of all the nurses should stand, IASIS appealed the case and the ballots have been impounded.

The NLRB had three lead cases, among 65 others addressing the issue of supervisory status, before it for consideration leading up to 2006. The UAN and ANA submitted an amicus curiae brief to the NLRB advocating on behalf of our members. Two of the cases, Beverly Enterprises- Minnesota, Inc. and Oakwood Healthcare, Inc. involved charge nurses.

A full Board is appointed

The National Labor Relations Board had not had a full complement of members since 2004. The members of the NLRB are appointed by the President in a process resembling judicial appointments. Historically, 3 members are appointed from the party in power, in this instance, Republicans, and 2 are appointed from the minority party, the Democrats.

The President made recess appointments to fill two vacancies on the Board. Peter Kirsanow (R) received a recess appointment by President Bush on January 4, 2006 and on January 18, 2006, Dennis Walsh (D) was appointed.

The current Members are Chairman Robert J. Battista (R), Wilma B. Liebman (D), Peter C. Schaumber (R), Dennis Walsh (D) and Peter N. Kirsanow (R).

October 2006: NLRB Renders a Decision

The NLRB ruled on the three lead cases in October 2006, rendering a restrictive construction of the employee status of RNs potentially impacting unions in our ability to organize and potentially jeopardizing the status of RNs represented under existing collective bargaining agreements. Specifically, the NLRB found that:

• Any nurse who permanently serves as a charge nurse and meets the NLRB’s newly defined criteria for assigning or responsibly directing others with ‘independent judgment’ will be considered a supervisor under the National Labor Relations Act (NLRA).
• Any nurse who meets the new criteria and regularly serves as little as 10- 15 percent of his or her time as a charge nurse may be considered a supervisor under the NLRA.

Once decisions were rendered by the NLRB on the three lead cases, other cases were handed back down to the regional offices of the NLRB from which they came for reconsideration in light of the new decisions. In the case of nurses at Salt Lake City Regional Medical Center, UAN is in the process of submitting a brief to the regional NLRB director urging him to count the ballots of nurses who voted on union representation with UAN more than four years ago.

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