The Supremes Shaft Unions Once Again

The recent Supreme Court decision, NLRB v. Kentucky River Community Care, got little play in the news, but it is one of the more devastating decisions for health care organizing in recent years. For years, hospitals have tried to undermine union organizing of nurses by giving registered nurses nominal supervisory duties with no real power, then claiming those nurses were supervisors and therefore ineligible for unionization under the law.

The provision barring supervisors from union protections dates back to the passage in 1947 of the anti-union Taft-Hartley Act. The goal then was mainly to exclude foremen and others lower-level managers with hire-and-fire responsibilities from being in the same unions with those they were disciplining. Professionals were specifically designated as retaining their right to unionize. But in recent years as the Supreme Court has turned more conservative, it has increasingly defined more professional skills as "supervisory" and limited union protections for a range of workers.

The Clinton-appointed National Labor Relations Board had made a strong pro-union ruling in Kentucky River Community Care that where nursing professionals had no power to discipline, fire or hire other employees, nurses using "ordinary professional or technical judgment in directing less-skilled employees" would not be classified as supervisors since they were exercising their judgement for the benefit of patients not employers.

Despite the union winning its election, the employer refused to bargain with the union involved and appealed to the 6th Circuit Court of Appeals. The 6th Circuit overturned the decision of the NLRB in 1999 and the Supreme Court on May 29, by the usual 5-4 split between conservatives and liberal justices, affirmed the decision to bar unionization of registered nurses with even nominal oversight of other nurses.

As the four liberal Court dissenters noted, the nurses in question had "no authority to take any action if the employee refuse[d] their directives" yet the Court denied them all protection of labor law. Justice Stevens excoriated the rightwing majority, writing: "However, in a tour de force supported by little more than ipse dixit [mere assertion], the Court concludes that no deference is due the Board's evaluation of the kind of judgment that professional employees exercise ... The Court's approach finds no support in the text of the statute, and is inconsistent with our case law."

One immediate result of the decision was the American Medical Association dropping its recently formed plan to seek unionization of doctors in the 4,000 private hospitals across the country. "The recent Supreme Court decision ... will almost certainly make it more difficult, if not impossible, for most employed physicians in the private sector to use collective negotiations as an advocacy tool for addressing important patient-care and workplace concerns with their employers," said AMA board member Dr. Donald Palmisano.

The result of this Supreme Court decision is to leave registered nurses, doctors and many other professionals unprotected by labor law. Beyond just denying union rights to those employees, it allows management to threaten them with termination if they do not assist in breaking unionization by other nurses and health care workers they work with. Dividing the work force has been the key tool of union-busters in the last few decades, from using supervisors against line workers, bringing in temp workers and independent contractors, and subcontracting work to undermine worker unity in the work force.

In a sense, this decision just ratifies the petty managerial bureaucracy that enmeshes workers in the United States. Around 20% of US jobs are officially devoted to management, whereas other countries (e.g. Germany, Japan, and the Scandinavian countries) devote only 5% of their jobs to watching other workers. As writer David Gordon noted in his aptly titled book on the US workplace, Fat and Mean, the typical employer takes the attitude: "Can't trust your workers when left to their own devices? Peer over their shoulders. Watch behind their backs. Record their movements. Monitor them. Supervise them. Boss them. Above all else, don't leave them alone." Wages go down, unions get busted, morale goes down, petty oversight goes up.

And anti-union courts just keep handing new tools to management to keep the process going.

The political point here is that elections do matter for workers. For those who say the Supreme Court makes little difference or having a Democrat-controlled labor board makes little difference, this decision just highlights why they do. The Taft-Hartley law dates back to the last time the Republicans had a filibuster-proof majority and it has been used aggressively in recent years against workers by Reagan and Bush Pere appointees to the courts. And, notably, it was the Clinton-appointed NLRB that for much of the last decade kept battling those courts, seeking rulings to expand the union rights of temp workers, hospital interns, graduate student instructors, and professionals. With NAFTA, welfare reform and other rightwing policies by Clinton, its easy to ignore the pragmatic reasons why unions and other workers advocates still see such real differences between the parties on labor issues. But when it comes to the most basic union issue of whether whole classes of workers have the right to unionize, the differences between the parties could not be starker.

No matter what the politicians or courts do, organizing will go on. But the Supreme Court just made it a lot tougher.

Nathan Newman of New Haven, Conn., a longtime union and community activist, is a National Vice President of the National Lawyers Guild, and author of the forthcoming book Net Loss on inequality in the Internet economy. Email

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