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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NLRB’s determination that ‘professional or technical judgment’ can never constitute supervisory independent judgment is no longer valid and is inconsistent with the NLRA.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. Five years have passed and the issue of whether nurses are protected employees remains unsettled.
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 pending a determination by the NLRB in Washington, DC. At this time UAN is still awaiting a decision as this becomes one of a backlog of over 60 representation cases raising the issue of supervisory status awaiting determination.
The NLRB has three lead cases addressing the issue of supervisory status before it. Chairman Battista has indicated that these cases are a priority for the Board. 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. It is expected that once decisions are rendered in these cases, the other cases will be sent back to the regional offices for determination.
A full Board is appointed
The National Labor Relations Board has not had a full complement 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), and Peter N. Kirsanow (R
What’s next?
UAN expects that the new, Republican dominated, Board may curtail the rights of our members, particularly those who serve as charge nurses, to union representation. The recent appointments of Kirsanow and Walsh signal that decision(s) on the lead supervisory status cases are imminent. Given the current composition of the NLRB and hostile environment for unions we anticipate as more restrictive construction of the employee status of RNs potentially impacting us in our ability to organize and the jeopardizing the status of RNs represented under existing collective bargaining agreements.
In light of these developments the UAN and a coalition of unions representing RNs, coordinated by the Department of Professional Employees, have developed suggested approaches to bargaining to protect our members against a negative decision.
Furthermore, in anticipation of the decision(s) by the Republican dominated Board, the UAN is investigating legislative strategies and remedies to address Kentucky River and the right for nurses to organize themselves for collective bargaining.
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