Fw: Law Watch 01-10: U.S. SUPREME COURT CLARIFIES STANDARDS FOR DETERMINING WHEN NURSES WILL BE CLASSIFIED AS SUPERVISORS AND EXCLUDED FROM THE PROTECTION OF THE NATIONAL LABOR RELATIONS ACT

[Guest guest]

Law Watch 01-10: U.S. SUPREME COURT CLARIFIES STANDARDS FOR

DETERMINING WHEN NURSES WILL BE CLASSIFIED AS SUPERVISORS AND EXCLUDED FROM

THE PROTECTION OF THE NATIONAL LABOR RELATIONS ACT

> Attached please find Foley & Lardner's Law Watch Issue 01-10, titled " U.S.

> SUPREME COURT CLARIFIES STANDARDS FOR DETERMINING WHEN NURSES WILL BE

> CLASSIFIED AS SUPERVISORS AND EXCLUDED FROM THE PROTECTION OF THE NATIONAL

> LABOR RELATIONS ACT. "

>

> The document is attached below in several versions: a .PDF file, a Word

> format, and a straight text format. (All are provided at the end of this

> message.) Please note that due to varying computer hardware and software

> configurations, the straight text may have variances in fonts and spacing

> for different readers.

>

> If for any reason you have trouble accessing and reading the documents

> attached below, please feel free to send a message to this address or to

> call Foley & Lardner's customer service line at 1-.

>

> Law Watch 01-10 (PDF format):

> <<490090_1.pdf>>

> Law Watch 01-10 (Word format):

> <<LAW WATCH 01-10 U.S. Supreme Court Clarifies Standards for Determining

> When Nurses Will Be Classified As Supervisors and Excluded from the

> Protection of the National Labor Relations Act.DOC>>

>

> Law Watch 01-10 (Text format):

>

> 01-10 A Legal Newsletter from Foley & Lardner JUN. 1, 2001

>

> U.S. SUPREME COURT CLARIFIES STANDARDS FOR DETERMINING WHEN NURSES WILL BE

> CLASSIFIED AS SUPERVISORS AND EXCLUDED FROM THE PROTECTION OF THE NATIONAL

> LABOR RELATIONS ACT

>

> Executive Summary

>

> Action: On May 29, 2001, the United States Supreme Court ruled that the

> National Labor Relations Board applied the wrong standard for determining

> whether or not nurses who direct other employees are exercising

" independent

> judgment " to such an extent that they are supervisors under the National

> Labor Relations Act, and thus, excluded from the protections of the Act.

>

> Impact: The Court's decision will influence significantly unionization

> issues - particularly in the healthcare industry - by controlling how the

> National Labor Relations Board and courts determine whether or not

> individual nurses and other classes of professional employees can join or

> participate in unions.

>

> Effective Date: Immediately.

>

> In NLRB v. Kentucky River Community Care, Inc., the U.S. Supreme Court

ruled

> that the National Labor Relations Board (the " Board " ) had developed and

> applied an incorrect test to determine whether or not nurses are

> supervisors. The Court concluded the supervisory status test applied by

the

> Board in the underlying case was too restrictive and based on an

irrational

> reading of the National Labor Relations Act (the " Act " ). At the same

time,

> the Court affirmed the Board's requirement that the party that seeks to

> establish that a particular individual is a supervisor (normally - but not

> always - an argument advanced by an employer) has the burden of proof of

> establishing supervisory status.

>

> In significant respects, the Kentucky River decision mirrors a 1994

decision

> in which the Court also refused to enforce the Board's then-current

standard

> for evaluating the supervisory status of nurses. NLRB v. Health Care &

> Retirement Corp. of America. Read together, the Court's rulings should

make

> it easier to establish that professional employees, like nurses, who

direct

> other employees are properly deemed to be supervisors.

>

> The Background

>

> * The Act Excludes Supervisors

>

> The Act protects " employees " in their efforts to form and participate in

> unions and to engage in other protected concerted activities. The Act

> excludes expressly " supervisors " from its definition of " employees, " with

> the result that statutory supervisors do not have the rights to form, join

> in or be represented by unions.

>

> The Act defines a supervisor as an individual who has authority " in the

> interest of the employer, to hire, fire, transfer . . . discipline other

> employees, or responsibly direct them, or to adjust their grievances, or

> effectively recommend such action, if in connection with the foregoing the

> exercise of such authority is not of a merely routine or clerical nature

but

> requires the use of independent judgment. " The Board has long sought to

> limit the scope of the supervisor exemption to the point that, at times,

the

> Board's standards for evaluating supervisory status have been highly

> artificial.

>

> * The Board's Supervisor Test in Health Care & Retirement Corp. of America

>

> In its 1994 decision in Health Care & Retirement Corp. of America, the

> Supreme Court refused to enforce the Board's construction of the phrase

" in

> the interest of the employer, " as the Board applied the phrase when

> evaluating the supervisory status of nurses. [As noted, the putative

> supervisor must direct, or discipline, etc., other employees in the

interest

> of the employer.] While it was unquestionable that the nurses at issue in

> Health Care & Retirement Corp. of America regularly directed the work of

> other health care providers (CNAs, etc.), the Board ruled that the nurses

> were directing the work of the other employees in the interest of the

> patients (or in the interest of the nurses' professional responsibility)

> rather then in the interest of the employer. The Court, in a 5-4

majority,

> found the Board's distinction artificial and held that the interests of

> patients' health care is the interest of the employer.

>

> * The Board's Approach in Kentucky River

>

> In Kentucky River, the Board took a new tack and interpreted the phrase

" use

> of independent judgment " in a manner to prevent classifying nurses as

> supervisors. According to the Board, nurses do not exercise statutory

> independent judgment when they exercise " ordinary professional or

technical

> judgment in directing less skilled employees to deliver services . . . . "

> The Board argued that federal labor policy requires that the supervisory

> status analysis be limited in this manner when professional employees are

at

> issue, or else all professional employees will end up being deemed

> supervisors.

>

> The majority of the Court (the same five Justices who overturned the

Board's

> supervisor test in Health Care & Retirement Corp. of America) ruled that

the

> Board's " startling " exclusion of professional and technical judgment was

> unsupported by - indeed, contrary to - the plain language of the Act, and

it

> was without " conceptual justification. " The Court characterized the

Board's

> analysis as " strained " and flatly rejected the Board's attempt to apply a

> different supervisory test to professionals than it would to

> non-professional employees.

>

> * The Burden of Proof

>

> In a less controversial aspect of the ruling, the Court unanimously ruled

> that the party asserting that an employee is exempt from the statute as a

> supervisor has the burden of proof on that issue. The Court notes that

the

> Act, generally, protects " employees, " which term has been broadly

construed

> to include anyone who " works for another in return for financial or other

> compensation; " and that the exclusion of supervisors is an express

exemption

> to the otherwise broad application of the statute. The Court accepted the

> analysis of the Board, which is based on the general legal principle that

a

> party seeking to benefit from a statutory exemption has the burden to

prove

> that all aspects of the exemption apply. As a result, when an employer

> seeks to have particular employees excluded from a proposed bargaining

unit

> because they are supervisors, or if a union seeks to invalidate the vote

of

> an employee because he or she is a supervisor, the party seeking to apply

> the supervisor exemption will have the burden of proof.

>

> The Impact

>

> The Court's decision is significant in all industries where professional

> employees are being unionized. Most particularly, the ruling will affect

> unionization issues and organizing efforts in the health care industry,

> where registered nurses and other professionals (including physicians,

> pharmacists, social workers, etc.) are being actively organized. The

> decision provides employers with renewed arguments for insisting that

these

> professionals be excluded from newly-filed petitions for representation

> (i.e., union elections) and that existing collective bargaining units be

> re-defined.

>

> If you would like more information about how the Kentucky River decision

> might affect your facility, have questions regarding unionization

generally,

> or need assistance with any other union or employment issue, please do not

> hesitate to contact Bob Wenbourne in our Sacramento office, Price

in

> our Chicago office, Ray Carey in our Detroit office, Hyde in our

> ville office, Rick Albert in our Los Angeles office, Auen

in

> our Madison office, Tom Pence or Bud Bobber in our Milwaukee office, Dick

> DuRose in our Orlando office, Lynn Goodfellow in our San Diego office,

> in our San Francisco office, Sheri McWhorter in our Tampa office,

> Monsees in our Washington, D.C. office, or the member of the firm who

> normally handles your legal matters.

>

> ©2001 Foley & Lardner. Reproduction with attribution permitted.

> 01-10/Page 2

>

> 015.490049.1

> 06/01/01 5:39 PM

>

----------------------------------------------------------------------------

----

> ---------------------------------------------------------------------

> You are subscribed as: washcoems@...

>