The Supreme Court decision invites a hard-and-fast distinction between those who give orders and those who follow them.
One day in January 1989, three licensed practical nurses (LPNs) who worked at the Heartland Nursing Home in Urbana, Ohio, drove to their employer's corporate headquarters in Toledo. They wanted to talk about some problems at the home - understaffing, poor employee morale, low pay for nurses' aides and an increase in paperwork. After their conversation with top management, additional staff was hired at Heartland and pay for nurses' aides was increased. What about the nurses who had brought these conditions to the attention of management? Did they get a plague thanking them for their suggestions? As a matter of fact, they were fired.
Ordinarily, this might be the end of the story, but the nurses complained to the National Labor Relations Board (NLRB), and eventually the case found its way to the U.S. Supreme Court. This spring, in NLRB vs. Health Care & Retirement Corporation of America, the Court handed down a decision that could have negative consequences for healthcare workers, in particular, and professional employees, in general -- and for our hopes of creating a more flexible workplace.
NLRB upheld the nurses in their original complaint, saying that an employee's right to voice concerns about working conditions is protected by law. But when the employer appealed the decision, he argued that the nurses were supervisors and therefore ineligible for protection under labor law. In April, the Supreme Court sided with the employer.
It's true that nurses regularly direct other staff who assist them in caring for patients. In order to make sure that everything gets done when it should, a nurse might ask one aide to take a patient's temperature and another to give a patient his bath. Does this make the nurse a supervisor? That's not how the law has been interpreted in the past.
In these situations, nurses are certainly acting "in the interests of the employer," which is one definition of being a supervisor. But nurses have always believed that, as professionals, they are acting primarily in the interests of the patient. And if they do not hire, fire, promote, lay off, transfer, reward or penalize other employees -- as supervisors are charged with doing - it has been generally accepted that they may direct other employees without giving up their labor law protections.
The Supreme Court indicated that its decision was not definitive, and it was careful to distinguish between LPNs and registered nurses, noting that this case involved "the duties of the four non-professional nurses." But employers will attempt to extend the rationale of the decision unless NLRB is able to develop criteria that insulate nurses from the effect of the decision. In the meantime, the decision may force LPNs and registered nurses into making an artificial and unfair choice between joining a union and being professionals.
As professionals, nurses expect to take responsibility for patient care, which includes informing management if care is substandard. But if they are considered supervisors simply because they can direct an aide to bring in a bedpan -- and if this means they lose their protection against being fired for making suggestions -- there will be a strong incentive to hold their tongues, no matter what they see. The effect on nurses' morale -- and on patient care -- could be disastrous.
The decision could also discourage a movement towards more flexible staffing arrangements in which nurses will have greater responsibility for delivering health care and directing those who assist them. This kind of flexibility is likely to improve the quality of care patients receive and cut health-care costs; both are very desirable. But the Supreme Court decision invites a hard-and-fast distinction between people who give orders and those who follow them. And by threatening an important protection they now have as professional employees, it creates disincentives for nurses to become fuller participants in patient care.
Given the number of professionals who work for companies instead of being self-employed, the decision could have a ripple effect that would be devastating. Justice Ginsburg pointed this out in her dissent:
If any person who may use independent judgment to assign tasks to others or direct their work is a supervisor, then few professionals employed by organizations subject to the Act will receive its protections.
We hear a lot these days about how we need to reorganize our workplaces around teams -- whether of nurses or school staff or automobile workers. These new-style workplaces, we hear, are more effective, efficient and humane because individual workers take responsibility for overall quality instead of concentrating on a few narrow tasks. But if the lines between supervisors and workers continue to be rigidly drawn and workers are put at risk for caring about quality, we can forget about this new workplace for the forseeable future.