Burying Health Care in "Supervisors": The Supremes Screw Unions Once Again

["Nathan Newman" <nathan@xxxxxxxxxx>]

Special from THE PROGRESSIVE POPULIST  www.populist.com
    July 15th issue

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    Burying Health Care in "Supervisors":
 The Supremes Screw Unions Once Again
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By Nathan Newman

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 29th of this year, 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
excortiated 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 workforce
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
workforce.

In a sense, this decision just ratifies the petty managerial bureaucracy
that enmeshes workers in the United States.  Around twenty percent of US
jobs are officially devoted to management, whereas other countries (e.g.
Germany, Japan, and the Scandinavian countries) devote only five percent 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 is a longtime union and community activist, a National Vice
President of the National Lawyers Guild and author of the forthcoming book
NET LOSS on Internet policy and economic inequality.  Email
nathan@xxxxxxxxxx or see http://www.nathannewman.org.