Nurses could find their ability to unionize and engage in collective bargaining restricted, pending a decision from the National Labor Relations Board this year.
Former NLRB General Counsel Fred Feinstein told attendees at a recent healthcare conference he expects the NLRB to determine soon criteria for which employees can be considered supervisors not covered by the National Labor Relations Act.
The outcome may not please labor leaders, said Feinstein, now a visiting professor in the School of Public Policy at the University of Maryland.
The last time the U.S. Supreme Court addressed the issue directly was five years ago. On that occasion, it rejected the NLRB’s previous standard for determining supervisory status in NLRB v. Kentucky River Community Care.
Since then, the labor board has pulled back NLRA coverage for key groups, and “that doesn’t bode well on how the nurses’ case will be decided,” Feinstein told union advocates at a recent AFT Healthcare conference.
Twice, the U.S. Supreme Court has addressed the nursing supervisory issue, and both times it sent a case back to the NLRB to determine a suitable test for determining supervisory status. Since the Kentucky River case was remanded, a backlog of similar cases has grown, most of them having to do with nursing, Feinstein said.
The question of who is a healthcare supervisor has been debated for years. The “legal line began getting blurry” in the 1980s, Feinstein said, because nurses were being given so many additional duties.