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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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