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Who is a Supervisor? The NLRB v. Kentucky River

Highlights Of PRN Report To Delegates At AMA Annual Meeting
June 15-21, 2001

The AMA's House of Delegates approved a resolution to create PRN during the AMA Annual meeting in June, 1999. That timing was perfect for the National Labor Relations Board (NLRB) ruled in mid-November, 1999, that, for the first time, residents and fellows at private sector teaching hospitals have collective bargaining rights. PRN was up and running by late November, 1999 - even before it had received any funding - and it filed its first petition with the NLRB to represent a group of doctors in collective bargaining in December, 1999. From the outset, PRN's mission has been to promote the art and science of medicine and protect the integrity of the physician-patient relationship through collective bargaining, and to do so without using strikes to create leverage at the bargaining table.

In PRN's eighteen-month existence, its Board, staff and representatives have met with thousands of physicians and scores of physician groups throughout the U.S. During this time, PRN has formally petitioned the NLRB to represent three separate groups of physicians. The first petition was filed in Detroit, where PRN easily won the right to represent the group and ultimately negotiated a comprehensive contract that includes a progressive "Patients' Rights" clause and dramatically improved those physicians' due process rights.. PRN has also organized a group of occupational health physicians in NJ and a group of residents and fellows at a large teaching hospital IL. The results of the second and third elections were appealed and are still pending at the NLRB, though exit polls indicated that PRN received overwhelming support and a strong majority of the votes. That's the good news!

The bad news is that on May 29, 2001, the US Supreme Court issued a ruling that may severely curtail the collective bargaining rights of physicians employed in the private sector. In this ruling, the Court held that if a professional employee uses "independent judgment" to direct the work of another, he or she is a "supervisor" and not eligible for collective bargaining rights. Until this ruling, healthcare professionals who exercised "ordinary professional or technical judgment" in directing less-skilled employees were not exercising the type of "independent judgment" needed to make them "supervisors".

PRN's Board met immediately thereafter to assess the potentially far-reaching impact of this decision on private sector physician collective bargaining efforts. PRN's Board concluded that it is now more important than ever to renew its commitment to fight these new legal challenges on behalf of physicians we have already engaged in the process and on behalf of the physicians who are now, as supervisors, left without the protections of the National Labor Relations Act.

PRN Board also concluded that it is more important than ever to increase its presence with collective bargaining units in the public sector, e.g. state university teaching hospitals, (where the National Labor Relations Act does not control). The Board also commissioned a project to work with the entire federation of medicine to educate physicians how to become PRN's "eyes and ears" in local communities and help us identify groups of physicians who could benefit from PRN's collective bargaining expertise. PRN will continue working with groups of private sector physicians who want to learn more about collective bargaining and how this Supreme Court decision impacts their rights with an eye towards resumption of private sector organizing as soon as the implications of this decision have been clarified.

PRN expects the fight over this Supreme Court decision to spill over from the judiciary into the legislative arena. Legislative action in Congress to clarify the definition of "supervisor" will be on the forefront of many labor organizations' agendas and we are hoping that the AMA will tackle this important subject as well.

Historically, there have been ebbs and flows in collective bargaining rights available to physicians under the federal labor laws. PRN remains confidant that the pendulum will swing back and will, ultimately, insure unencumbered physician collective bargaining.

At this critical juncture, it is clear: PRN represents the future of collective bargaining for all physicians and our existence is vital to the protection of patients' rights.

Now - more than ever before - we need you. The battle may be long and hard and we are counting on your support. ( Click here for a PRN Sustaining Membership Application. )


June 5, 2001

To: All PRN Members and Supporters
Re: PRN Response to NLRB V. Kentucky River Community Care, Inc


Many of you have already learned that, on May 29, 2001, the United States Supreme Court issued a ruling that severely curtails the collective bargaining rights of physicians employed in the private sector by effectively defining all healthcare professionals as "supervisors" not eligible for collective bargaining. In its 5-justice majority opinion, the Court held that, if a professional employee uses "independent judgment" to direct the work of another, he or she is a supervisor - even if the employee giving the direction is a professional who customarily gives professional direction to other employees and has nothing to do with hiring, firing or discipline. This holding is in direct contrast to a series of decisions issued by the National Labor Relations Board (NLRB) since 1994 whereby healthcare professionals who exercised "ordinary professional or technical judgment" in directing less-skilled employees were not exercising the type of "independent judgment" needed to make them supervisors.

PRN was created in 1999 by the American Medical Association to promote the art and science of medicine, the betterment of public health, and the integrity of the physician-patient relationship through collective bargaining and PRN will continue to function as was intended. To that end, we will look for organizing opportunities with physicians employed in the public sector and continue representing the private sector physicians we have already engaged. It is PRN's moral and ethical responsibility to fight these new legal challenges on behalf of the profession and on behalf of the patient care issues that many employers prefer to overlook.

Historically, there have been ebbs and flows in the federal labor laws with regard to collective bargaining rights. PRN is confidant that the pendulum will swing back in the future to allow for unencumbered physician collective bargaining. PRN will continue to monitor legal developments and, when the climate changes, PRN will immediately recommence organizing physicians employed in the private sector arena.

At this critical juncture, it is clearer than ever before: PRN represents the future of collective bargaining for all physicians and our continued existence is vital to the protection of patients' rights. As this legal battleground evolves, we hope we can continue to count on your support.

To see the text of the US Supreme Court decision, please visit:



May 30, 2001

To: All PRN Members and Supporters
Re: NLRB V. Kentucky River Community Care, Inc.


Physicians for Responsible Negotiation (PRN) is disappointed to announce that, on May 29, 2001, a five justice majority of the United States Supreme Court refused to enforce an order of the National Labor Relations Board (NLRB) requiring a Kentucky-based care facility for the developmentally disabled to engage in collective bargaining with the labor organization (Kentucky State District Council of Carpenters) that the NLRB had certified to represent its employees. The core question before the Court was whether six registered nurses included in the bargaining unit by the NLRB were "employees", who are eligible for collective bargaining, or rather "supervisors", who are not. PRN has confronted this identical issue in each of its organizing campaigns.

In a series of decisions issued by the NLRB since 1994, the Board had consistently held that healthcare professionals who exercise their "ordinary professional or technical judgment in directing less-skilled employees to deliver services" are not exercising the kind of "independent judgment" essential to a conclusion that a healthcare professional is a "supervisor". That NLRB precedent permitted PRN to prevail on the supervisory issues in each of its campaigns. After tracing the history of the "supervisor" exemption from the National Labor Relations Act (NLRA), the Supreme Court, yesterday, concluded that the NLRB's interpretation of "independent judgment" in determining which healthcare workers were supervisors was "unlawful".

The Court specifically rejected the NLRB's argument that any other interpretation of the term "independent judgment" would have the effect of removing virtually all "professional" employees (specifically mentioning doctors) from the protections of the NLRA. The Court noted, "There may be some tension between the Act's exclusion of supervisory and managerial employees and its inclusion of professionals, but we find no authority for suggesting that that tension can be resolved by distorting the statutory language in the manner proposed by the Board."

The possible "middle ground" suggested by the Court was, "Perhaps the Board could offer a limiting interpretation of the supervisory function of responsible direction by distinguishing employees who direct the manner of others' performance of discreet tasks from employees who direct other employees . . ." The Court further noted that it had no occasion to evaluate that distinction in this case.

In a stinging dissent, four justices described the majority's opinion as a "tour de force supported by little more than an ipse dixit", noting "under the Court's view, it is impermissible for the Board to attach a different weight to a nurse's judgment that an employee should be reassigned or disciplined than to a nurse's judgment that an employee should take a patient's temperature, even if nurses routinely instruct others to take a patient's temperature but do not ordinarily reassign or discipline employees."

The legal and practical effect of the Court's decision is a major setback for private sector physician collective bargaining in that the question of which doctors are supervisors and which are not is now reopened, and under a standard that is far more favorable to employers than to doctors. The only possibilities for reversal of this decision would be Congressional action to overrule the decision or a less conservative composition of the Court, neither of which appear likely in the near-term. The narrow opening suggested by the Court for finding a non-supervisory private sector healthcare professional, ie., those who direct only the "manner" of others' performance of discreet tasks, will become the battleground for future determinations of physicians' "supervisory" status. The decision does not affect the definition of "supervisor" for public sector physicians employed in the public sector (federal, state or local), as the NLRA only covers those employees employed in the private sector; nor does the decision affect the limited collective negotiation rights of self-employed physicians.

As the full implications of this decision become clear, PRN will provide additional advice to its members and supporters. PRN commits to continue its aggressive representation of and advocacy for physicians and their collective bargaining rights throughout the United States.

To see the text of the US Supreme Court decision, please visit:



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