The Kentucky River Trilogy & its Slippery Slope for Healthcare Professionals

Under the National Labor Relations Act supervisors are excluded from it’s protection. Under Section 2(11), there are 12 indicia permitting an employee to be classified as a supervisor.

If an individual, in the interest of his/her employer, has the authority to either: Hire Transfer Suspend Lay off Recall Promote Discharge Assign Reward Discipline Adjust grievances Responsibly direct other employees the individual would be classified a Supervisor.

In 1974 the Healthcare Amendments were added to NLRA The Amendments included the private, not-for-profit healthcare industry extending the full protection of the Act to Registered Nurses and other healthcare professionals.

NLRB v. Kentucky River Community Care 532 US 706 (2001) The United States Supreme Court instructed the NLRB to clarify the distinction between supervisors and employees.

In Kentucky River, the Supreme Court rejected the NLRB’s argument that the exercise of “ordinary professional” or “technical” judgment in directing another employee may not be used to establish supervisory status under the Act.

The Court further held that the correct interpretation relates to whether these professional and technical decisions are involved in the exercise of any of the 12 supervisory functions set forth in Section 2(11) of the Act.

After the Kentucky River Decision, hospitals and other healthcare institutions used this case to counter union organizing efforts.

The issue in contention was whether nurses who performed “Charge Nurse” duties were de facto supervisors under the Kentucky River Decision.

“Charge Nurse” is a common term used for a nurse who leads the work of another healthcare professional on a hospital floor or unit.

Charge Nurses do: Make patient assignments for staff working on the shift; Monitor in general all patients that are in the unit that day; Meet with physicians and family members who have questions about patients. Charge Nurses do not: Assign employees to specific shifts; Hire or fire employees in the unit; Mandate overtime; Handle or adjust grievances.

Kentucky River Trilogy Three cases that the NLRB selected to revisit the definition of Supervisors: Oakwood Healthcare, Inc., 348 NLRB 37 Golden Crest Health Care Center, 348 NLRB 39 Croft Metal, Inc., 348 NLRB 38

The lead case in the Kentucky River Trilogy was Oakwood Healthcare. In a 3-2 decision, the NLRB focused on 3 of the 12 criteria for determining Supervisory status: Assign Responsibly Direct Independent Judgment

Assign The term “assign” refers to the Act of designating an employee to a place. Appointing an employee to a particular time. Giving significant overall duties or tasks to an employee. In a healthcare setting, it encompasses the responsibility of Charge Nurses to assign nurses and aides to particular patients.

Responsibility to Direct To be applied broadly (not only to department heads) If a person has employees “under him”, and if that person decides what job shall be done or who should do it, that person is the Supervisor. Putative Supervisor must be “accountable” for the performance of the task by the subordinate.

Independent Judgment In defining “Independent Judgment,” the NLRB followed the dictionary definition: ‘not subject to the control of others.’ Judgment is not independent if it is dictated or controlled by detailed instructions. However, if those instructions permit the exercise of discretion, that would satisfy the dictionary definition.

Oakwood Dissent The two Democratic Appointees to the NLRB argued that the majority decision: “Threatens to create a new class of workers under Federal Law – workers who have neither genuine prerogatives of management, nor statutory rights of ordinary employees.”

Result of Kentucky River Trilogy Intensive fact-specific case-by-case analysis Putative Supervisor must spend a “regular and substantial” portion of his/her time performing supervisory functions This provision can be satisfied with as little as 10% – 15% of the putative supervisors total work time

Decision has huge destabilizing effect on union representation of healthcare workers: In Union Representation Elections; In existing certified healthcare bargaining units.

The Economic Policy Institute has determined that: 35% (843,000) of Registered Nurses & 18% (123,800) of Licensed Practical Nurses would be defined as Supervisors under the Kentucky River Trilogy.

Union Representation Elections Over 60 NLRB election appeals are pending review by the NLRB/Regional Offices in light of the “Trilogy”. Using the Oakwood Criteria, Administrators at the Virginia Mason Medical Center in Washington State tried to argue that all RN’s at the facility were Supervisors and should be excluded from the bargaining unit.

Union Representation Elections (continued) In May 2002, nurses at the Salt Lake Regional Medical Center voted for union representation. Employer appealed election alleging that over 60% of the Registered Nurses were Supervisors under Kentucky River. NLRB remanded the appeal back to the NLRB Region 27 for further review in light of the Oakwood Healthcare, Inc.

NLRB Region 27 Review Regional Director ruled that more than ½ of the nurses were Supervisors and not entitled to union protection. According to the ruling, 17 nurses in the ICU were “Supervisors” of only 3 non-supervisor ICU Nurses. In neo-natal ICU, 2 Junior Nurses would be supervised by 9 RNs. Lastly, rotating Charge Nurses were also found to be Supervisors by the Regional Director, and excluded from the bargaining unit.

What are Unions Doing to Stem this Tide? AFL-CIO filed a complaint with the United Nations ILO Committee on Freedom of Association against the government of the United States of America. Charging that the Kentucky River Trilogy violated the fundamental rights of Freedom of Association and protection of the right to organize and bargain collectively.

Legislative Action Representatives Robert Andrew (D-NJ) and Don Young (R-Alaska) and Senator Christopher Dodd (D-Conn) introduced the Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers Act (RESPECT) to help workers regain the rights they lost in the Kentucky River Trilogy.

Existing Certified Healthcare Bargaining Units Employers do not have to apply the Oakwood Criteria. Healthcare workers currently covered by existing collective bargaining agreements are not immediately affected. Organized healthcare workers are most at risk when new contract negotiations are commencing. Employers can file NLRB UC Petition asking for the bargaining unit to be re-evaluated under Oakwood.

Existing Certified Healthcare Bargaining Units (continued) Management side labor law firms are aggressively marketing that strategy to healthcare employers. Most healthcare unions view such actions as “strike” issues during negotiations. Unions are drafting and proposing contract language that insulates it’s current bargaining units from Oakwood review.

Model Contract Language that Preempts Oakwood Review “The Employer and the Union agree that Charge Nurses and Medical Technologists shall remain in the bargaining unit, provided their charge/supervisory duties are not changed in a substantial manner, notwithstanding any decision by the National Labor Relations Board.”

Organized Labor’s Plan of Action for Overturning the Kentucky River Trilogy The successful election of a Democratic President in 2008 Democratic retention of it’s control of Congress in 2008 Democratic appointments for the members of the NLRB The passage of the RESPECT Act