CHAPTER 7

The Wages of Textualism

Some controversies are carefully planned and crafted from below by activists and organizations seeking to change the established legal order. Others happen largely in spite of them. Glenn Moore, a rehabilitation counselor who worked hard in the fall of 1996 to organize the workers employed by Caney Creek, a mental health institution in Kentucky, could not have anticipated that his efforts would eventually lead to hearings inside the hallowed marble temple of justice in Washington, D.C. Indeed, none of the elements that go into a classic Supreme Court case seemed to be present in Moore’s struggle against the management of the psychiatric rehabilitation facility. The issues that stood at the heart of the dispute were fairly common— they included difficult working conditions, low pay, and insufficient staff. Equally common was the company’s lack of rules regarding pay increases. Caney Creek workers actually felt overly dependent on the performance evaluations drafted by the two supervisors of the facility—a unit and a nursing coordinator. To help Caney Creek workers regain a voice and improve their lot, Glenn Moore contacted the local Carpenters Union and filed a petition for the recognition of one large bargaining unit including kitchen and maintenance workers, recreation assistants, rehabilitation assistants, rehabilitation counselors, one licensed practical nurse (LPN) and six registered nurses (RNs). The unit reflected the strong potential for organization that lies in the service industry—there were no blue-collar workers at Caney Creek, but the employees faced problems American workers had struggled with for decades. As for Glenn Moore, who was fired in March 1997, his fate mirrored that of large numbers of workers trying to use their democratic right to unionize.¹

Its low profile notwithstanding, Kentucky River (named for the corporate parent of the Caney Creek facility) was the case that the Supreme Court chose to review once more the NLRB’s definition of “employee.” This was a victory for the management of Caney Creek, which from the beginning refused to bargain with the union on the grounds that many of the workers it sought to include in the bargaining unit—registered nurses in particular—were not “employees” for the purposes of the Wagner Act, but “supervisors” with no substantive legal rights to organize. Like dozens of hospital managers faced with an increasingly militant nursing workforce, they contended that nurses, who direct other health care workers, are no different from the industrial foremen that Congress excluded from the Wagner Act in 1947.

Since its adoption in 1947 to thwart foremen’s unionism, the supervisory clause had rarely made the headlines, its implementation removed from larger struggles over power in the workplace. But the momentum acquired by nurses unions in the 1980s and 1990s largely brought it back into the spotlight. Like public employees, nurses have stood for over twenty years at the forefront of the labor movement, defending both their personal interests as workers and a progressive, patient-oriented vision of health care that is profoundly at odds with the logic of managed care. As they became organized and political, they found their ability to articulate a language of economic dissent increasingly challenged by managers hoping to stymie their movement by waging a legal battle similar to the one General Motors had fought in the 1940s—a war to force business values on a stratum of workers seen as key to preserving loyalty to managerial power.

The militancy of nurses and the adamant opposition of hospital executives to unionism thus lent new urgency to the question that had stood at the heart of Bell Aerospace and Yeshiva, to wit, the degree to which the Wagner Act covers knowledge workers who can also be said to have responsibilities aligning them with management. Quite apart from the politics of health care, nurses are in many ways the ideal type of the worker on whom the American economy increasingly relies—the salaried semiprofessional or professional who brings the expertise necessary to complete a task and uses his or her knowledge to direct the manner in which other employees will accomplish it. Today such workers compose a third of the workforce, and in the 1990s and 2000s, the contours of their legal rights remained contested.

Nurse unionism, because of its success, thus came to be the very battleground of the conservative struggle to write and define large numbers of American workers out of legal existence. In their case, however, the jurisprudence established in Bell Aerospace and Yeshiva was not enough to sustain business claims to managerial loyalty, for in fact, nurses have no real managerial responsibilities—they do not set hospital labor policies, they neither hire nor fire, and they can in no way commit a hospital’s financial responsibility. To press their claims, antiunion hospital executives relied explicitly on the text of the 1947 supervisory exemption to argue that nurses are the functional equivalent of industrial foremen. Textualism, the notion that legislative and constitutional texts should be interpreted literally, became the conservatives’ best weapon against the right to organize.

This final chapter thus takes the history of the legal construction of the worker back to the point where this book started it—the Kentucky River cases. It chronicles the rise of nurse unionism and analyzes its political dynamics. It then moves on to show that the postindustrial reading of the Wagner Act— the notion that its framework is ill-adapted to the workers of the knowledge economy—is largely a conservative one, and that it is the product of business hegemony over labor law. Through the 1990s, progressive nominees on the NLRB tried to protect the bargaining rights of nurses and even tried to reaffirm the old ideal of social harmony through collective bargaining. This progressive definition of the modern employee, however, was severely rejected by the Supreme Court, which in Kentucky River emphasized that the NLRB could pursue no social end—it must be bound by the very words of the statute, and should instead develop a definition of “employee” fitting the words and syntax of the text, whatever the number of workers who might lose their bargaining rights. By 2006, the Republican appointees to the board had taken the Court at its word. In the Kentucky River cases, they used phrases inherited such as “responsibly direct” and “assign,” to take bargaining rights from millions in the name of managerial loyalty.

“The Last Authoritarian Bulwark”

That nurses today should find themselves at the center of the debates of the definition of “employee” can seem surprising or even paradoxical. Members of an occupation dominated by a heightened, middle-class sense of professionalism long promoted by the American Nurses Association (ANA), nurses have elicited none of the interest that nineteenth-century artisans or twentieth-century automobile workers aroused among historians seeking to understand the making and unmaking of the American working class. Yet nurses are indeed central to the recent history of American labor for two reasons. First, nurses’ work culture was never thoroughly congruent with the professional ideal—indeed it was during the years when the ANA enjoyed a virtual monopoly on the representation of nurses that collective bargaining became an established practice in American hospitals. Second, nurses unions rose significantly after 1974, when Congress adopted an amendment extending the protection of the Wagner Act to workers employed in what one nurse in 1960 called “the last bulwark to in our society to retain authoritarian administration”: like public employees, nurses were the last workers in America to benefit from the century-old Progressive ideal of a democratized workplace.²

Although nurse unionism still awaits a sustained historical treatment, it is possible to provide a brief sketch of the process that led nurses to militancy. The first attempts to unionize nurses took place in the tumultuous 1930s. Like teaching and engineering, nursing was one of the “odd places” where unrest developed alongside the factory world.³ By 1939, the CIO had established locals in nine states and had recruited significant numbers of nurses in New York, Seattle, and San Francisco. Yet prejudice against both collective bargaining as it was practiced by unions and their largely ethnic membership usually represented obstacles to the organization of this white-collar workforce. While the CIO’s forays into health care did send ripples through the ANA, leading it to evolve into a bargaining agency capable of addressing the demands of discontented nurses, the ANA continued to insist on separating the “professional negotiations” it sought to develop from regular unionism. In 1946, seizing on the zeitgeist, it published an “economic security program” that included paid vacations and health insurance, among other personnel policies, but also pointed to its social conservatism, explaining that “collective bargaining is not to be confused with unionism.”⁴

However, it would take long years before the nurses’ quest for economic security bore fruit. During the 1940s, only seven states had established collective bargaining programs for nurses. In spite of its postwar no-strike pledge, the ANA’s impetus was thwarted in 1947 by the Taft-Hartley exemption of nonprofit hospitals from the NLRA, which reaffirmed the old vision of nursing as a charitable, benevolent activity. As a result, its state divisions were able to negotiate only a handful of agreements in the postwar era. By 1960, the ANA claimed a paltry seventy-five agreements involving 115 institutions and covering eight thousand nurses, that is, about 1.5 percent of the half million professional nurses in the United States at the time. Blue-collar labor unions seeking to represent nurses fared little better and were unable to expand beyond the bases established during the heady days of Great Depression.⁵

Yet nurse unionism did not remain dormant for long. The main paradox of the Taft-Hartley Act was that it took nurses out of the umbrella of labor law at the very moment when private duty declined and hospitals increasingly represented the main postgraduate venue for nurses. By the 1950s, a majority of nurses were employed in nonprofit hospitals, a setting that provided mixed blessings. On the one hand, the rationalization of hospital work cut against the nurses’ craft culture, and the pay and working conditions of nurses did not support claims to a white-collar social status. On the other hand, the hospital ward provided aggrieved nurses with the actual possibility of engaging in collective activity and developing a collective consciousness— very much like the modern factory floor, which brought workers together and thus facilitated the emergence of class actions. With the growing shortage of nurses in postwar America reinforcing their power and scientific advances vindicating their claims to professionalism, nurses gradually developed an appreciation for traditional collective action. “A nurse’s place is in her Union,” read nurses’ T-shirts during demonstrations held in Washington, D.C., in the 1960s. By 1968, the ANA had renounced its no-strike pledge, and soon it was lobbying Congress for a legislative amendment bringing nurses back into the Wagner Act. In the modern hospital environment, it seemed, the traditional antiunion professional stance was detrimental to nurses’ interests.⁶

The strikes that shook the Bay Area during the first half of 1966 exemplified this growing unrest. In the area’s sixty-three hospitals, the median monthly wage was $505, when production workers averaged $502. Combined with poor working conditions, such low pay led some 60 percent of nurses each year to quit their jobs—there were about 119,000 professional nurses in and around San Francisco, but only 56,000 were employed as such. However, the growing nursing shortage did not convince hospital managements to bargain with the California Nurses Association—they held back for over six months when a wave of picketing and mass resignations (more than 2,000 nurses submitted their resignation) forced their hands. In the end, the nurses won pay increases of as much as $130 a month, better insurance, and better pay for night shifts. Commenting on the momentum of the nurses’ movement, a commentator noted somewhat ironically that “Florence Nightingale is all of a sudden sounding like Samuel Gompers.”⁷

Whether the movement grew because of its business unionist ends is unclear, but it was no doubt developing, and largely fit within the broader movement of sanitation workers, teachers, and government workers that promised to sustain unionism beyond the confines of the blue-collar factory.⁸ In 1967 the ANA claimed to have signed 166 collective bargaining agreements covering over twenty thousand nurses. To be sure, this meant that the immense majority of hospitals in the country still had no agreement with their nursing personnel, but the movement was gaining both geographic and numerical strength—that same year, the ANA also reported union recognition battles involving seventy-five thousand nurses in forty-three different states. Labor unions such as the Service Employees International Union (SEIU) now moved aggressively to represent both nurses and physicians and joined the ANA in lobbying Congress for a legislative amendment to the Wagner Act.⁹

It was at that point that the NLRB, whose members, particularly Sam Zagoria, John Fanning, Gerald Brown, and Frank McCulloch, largely supported the emergence of white-collar unionism, asserted the agency’s jurisdiction over proprietary—that is, for-profit—hospitals, thus lending additional legitimacy to nurses’ claims for equal treatment and opportunity. To the members of the board, what with the growth of medical insurance, the rising costs of health care, and the adoption of Medicare, it was no longer possible to argue that hospitals were charitable or local commercial activities or had no impact on interstate commerce. Like white-collar unionism, health care was thus to become the new frontier of industrial democracy, and the government’s intervention in that realm would offer both a peaceful resolution of labor disputes and a degree of economic justice.¹⁰

By 1972, national sentiment on this question had evolved enough for the House to pass a bill bringing all of the health care industry, including nonprofit hospitals—which the board’s 1967 decision had not affected—within the purview of the Wagner Act.¹¹ An important element in this respect was the increasing number of labor conflicts that now disrupted the delivery of care. According to the Bureau of Labor Statistics, work stoppages had increased sharply in the health care sector in the 1960s, going from six in 1962 to a peak of seventy-five in 1970, with over half of the conflicts occurring in private and public hospitals.¹²

However, there was no dearth of similar arguments against nurse unionism, and it took an additional two years of hearings and lobbying before the Senate voted on a similar bill. The Chamber of Commerce, the American Hospital Association (AHA), and other assorted conservative organizations such as the National Right to Work Committee opposed the extension, contending that unions did not belong in an environment oriented toward providing medical care. Conservatives contended that collective bargaining entailed the right to strike and that strikes and pickets would in turn jeopardize Americans’ access to medical care. “The prospect of a hospital being turned into a morgue is all too real,” argued the Chamber of Commerce, while the AHA called on Congress to treat nurses like policemen and firefighters—public employees whose rights to strike were denied because of public safety concerns.¹³

Yet nurses unions were able to prevail over this concerted opposition. Strikingly, the promotion of collective bargaining was couched in words that Wisconsin labor economists such as John R. Commons would have understood, for it was premised on the idea that given adequate institutions, nurses and managers would negotiate and cooperate, not fight. The growing number of strikes, union leaders contended, were actually recognition strikes that simply reflected the lack of a mechanism to solve the conflicts between nurses and hospital managements. George Hardy, the president of SEIU, argued that “coverage under the provisions of the NLRA would provide a peaceful method for employees to obtain recognition from their employer,” while Mike McDermott, a local union leader, contended that “employees of nonprofit hospitals should no longer be excluded from the act. It is the cornerstone of our industrial democracy. It provides a meaningful alternative to the strike for non-profit hospital employees who want union representation, and most important, it works.”¹⁴

Echoes of the Progressive faith in social harmony through collective bargaining also rang in the Senate report, which noted that “the exemption … had resulted in numerous instances of recognition strikes and picketing,” and expressed the hope that “coverage under the Act should completely eliminate the need for such activity, since the procedures of the Act will be available to resolve organizational and recognition disputes.”¹⁵ It was an added benefit to the cause that members of Congress were concerned with the low wages and the poor working conditions of the health care industry. Of particular importance was the testimony of SEIU’s Joseph Murphy, according to whom between 1968 and 1973, the wages of nonsupervisory hospital workers had increased by 43 percent, while the consumer price index of hospital rates increased by 66 percent. In similar fashion, the Communication Workers of America indicated that the average income for all hospital employees, including doctors, was a paltry $5,290 in 1970.¹⁶ Congress reasoned that improved standards of living for nurses would lead to higher morale and better hospital care.

Even as American liberalism entered a period of crisis, it was the continued relevance of one of its most important tenets that made one last extension of the principles of the Wagner Act palatable to a majority in Congress. As Nixon’s secretary of labor, James Hodgson, noted in support of the bill, “in many instances, lack of ground rules for union recognition and collective bargaining in this sector has resulted in uncontrolled tests of strength in which the public as well as the parties suffer heavily. These issues will continue to arise, probably with increasing frequency. It is far better that they should be resolved through the orderly procedures of the NLRA than through bitter and wasteful confrontations.”¹⁷

Indeed, it is remarkable that that the ANA, SEIU, and assorted organizations were able to pressure Congress into giving them what it refused to grant public employees—full collective bargaining rights. In the early 1970s, the staggering number of public employment strikes—which reached an astonishing 478 conflicts in 1975—had led to Congressman Clay’s National Public Employees Relations Bill, which sought to bring all local and federal public employees under the purview of a collective bargaining regime similar to the one created by the Wagner Act. Notably, the gains of the Democratic Party in the senatorial elections in 1974 seemed to have opened the door for it. However, what with the relentless opposition of the right to work community and the pressure exerted on national and local government budgets by the fiscal crisis, this ambitious project fell through. The idea that governments are fundamentally different from companies and should not be forced to bargain with unions prevailed.¹⁸

In fact, the congressional hearings reveal that the standards of patient care—and the need for its permanent availability—were crucial to the legislative success of the nurses’ movement in 1974. Advocates of the bill insisted that collective bargaining in the health care industry would not simply protect patients by removing the threat of strikes; it would also elevate the quality of care by enhancing the working conditions of many nurses, thus bringing down their staggering turnover rates, which sometimes reached 1,500 percent.¹⁹ “Indeed it can be argued that when hospital employees are unionized … and able to act as true partners with management in the provision of good patient care, the result is better job stability and security than is possible without such collective bargaining arrangements,” an SEIU representative explained.²⁰ Along with the Progressive quest for social cohesion, the 1974 amendments to the NLRA thus suggest how important it is for workers to tie their own fate to a vision of the public interest. In this respect, nurses were— and, as we will see, still are—quite exceptional.

Original Intent: Nurses as Employees

Conservatives have long prized the doctrine of original intent in legal and constitutional debates. Yet in this case original intent does not bolster the business battle to secure a spacious application of the notion of managerial loyalty. Indeed, when Congress debated the extension of the NLRA to the health care industry, the supervisory exclusion was already a salient question. Before the 1974 extension, the ANA had sought to include all nurses in its bargaining agreements, including nurses with the title of “supervisor”— typically “head nurses” overseeing the nursing unit in a traditional hospital. Like the AFL of old—which represented foremen because they belonged to the same craft as other skilled workers—the ANA suggested that bargaining units should be organized on the basis of the knowledge.²¹ From 1967 to 1973, in decisions involving proprietary hospitals, the NLRB regularly found that— contrary to hospital management’s arguments—nurses were not supervisors unless they were vested with “true supervisory powers,” such as the power to hire and fire or the power to recommend discharge or wage increases.²²

Moreover, no state law considered RNs as “supervisors” for collective bargaining purposes. In Washington, the definition of “supervisor” was amended to specify that a “supervisor includes registered nurses only if administrative supervision is his or her primary duty and activity.” In Massachusetts, the State Labor Relations Commission ruled in 1965 that supervisors and head nurses should be included in the bargaining unit. In New York, the Labor Relations Board held in 1967 that supervisory nurses should have a bargaining unit of their own, but could be represented by the same association as the staff nurses.²³ In public employment, a similar debate took place, as the ANA skirmished with the city of New York over the definition of managerial employees very early on, and in 1969 President Nixon signed Executive Order 11491, which outlawed supervisory unionism in the hospitals run by the Veterans Administration, ending the agency’s practice of allowing each hospital management to whether to include head nurses in the bargaining unit.²⁴ All in all, in the hospital setting the line separating “employees” from “supervisors” was still largely contested, but it clearly hovered at some level above the ranks of RNs.

Still, early attempts to classify nurses as “supervisors” convinced ANA leaders that the supervisory extension represented a threat to their organizing capability and they came to the congressional hearings over the extension of the NLRA with a definite legislative agenda—amending the Taft-Hartley definition of supervisor to include all health care professionals. A mechanical translation of the concept of “supervisor” in the hospital setting, they argued, would defeat the purposes of the extension sought by a majority of the members of Congress.²⁵

Like interns and residents, who also feared being misclassified as “supervisors,” nurses argued that the concept of “supervisor” had no bearing in the hospital environment, which was not designed to maximize profit but to provide the best care possible. The hospital, they argued, is a mix of two authority systems, the bureaucratic and the professional.²⁶ Nurses and residents used independent judgment in their work because state licensure laws required them to do so, not because of management policy. Unlike the foremen at issue in Packard, they argued, they had no managerial prerogatives such as the right to hire, fire, promote, and discharge, or even the right to make recommendations in these matters. ANA leaders emphatically insisted that when they directed other employees they only did so incidentally to their work as professionals: “Whatever transitory or limited authority nurses have over other employees is often not supervisory but rather a manifestation of the professional role in the nursing care of patients. A registered nurse who leads subprofessional employees should not be considered a supervisor any more than a doctor should be considered a supervisor because nurses respond to his direction, or an attorney should be considered a supervisor because a secretarial staff is available to work with him.”²⁷

The ANA had a point when it argued that nurses had nothing in common with Packard foremen. The Fordist system, which relied on engineering skills for the planning and conception of production, had turned the modern factory into a giant arm carrying out management’s production plan. Discipline was the essence of the relationship between workers and foremen, because the latter were expected to maintain the former’s adherence/obedience to the manager’s goals, and, as we have seen, it was from this need for industrial discipline that the tension between unionism and loyalty sprang in the case of foremen. Nurses, however, were closer to the social figure that Taylorism had all but obliterated from the industrial landscape—the independent skilled worker. Indeed, at the beginning of each shift, nurses typically decide that one of them is going to take “charge,” that is, organize the work, assign patients, and oversee the delivery of care. Even when they “take charge,” however, nurses have patients of their own. The “charge” responsibility is taken on a rotating basis, a reflection of the nurses’ professional culture.²⁸

Indeed, the ANA claimed, nurses exercised their autonomy and direction only in the interest of the patient, not financial profit. They were “patient care coordinators,” “evaluating whether good or adequate care is being given by others, whether medical directives are being carried out properly and whether records are adequately maintained within the unit so that continuity of patient care can go on despite the shifts in personnel.”²⁹ The ANA clearly worried that for lack of recognition of the difference between a foreman and a nurse, the rights of nurses would likely be jeopardized, particularly in hospitals using the team concept to organize small independent groups of workers devoted to a specific kind of care.³⁰ In a harbinger of future developments, the ANA claimed that under current labor law, hospital managements would have an incentive to “encumber registered nurses with whatever regalia” to avoid bargaining with them.

Other union leaders, no doubt aware of the sensitivity of the supervisory question, adopted a careful, noncommittal position that reflected their unwillingness to jeopardize a major policy breakthrough by opening a legal Pandora’s box. “We are most anxious to see this bill passed,” said Lester Asher, the counsel of the SEIU. “With respect to the supervisor problem, we neither favor nor oppose it…. We would just like to get something out as quickly as possible…. I fear that if you open up the statute with respect to the issue of interns and supervisors, you will be deluged with requests for similar exemptions for other occupations where lines of supervision are extremely close.” Seeking to strike a moderate note, SEIU leaders said they would be content with leaving the NLRB making decisions on a case-by-case basis.³¹

As for the AHA and other hospital management associations, they rallied behind an alternative bill supported by Senator Taft, one that purported to address a different problem—the potentially excessive number of collective bargaining units that might be created to represent health care employees (which would multiply the possibilities for conflict and sympathy strikes). Rather cleverly, this bill divided the social world of hospitals into four groups, namely, professionals, technicians, clerical employees, and service and maintenance employees. Although they represented over 20 percent of the workforce in hospitals, the nurses’ voices would thus be diluted in the “professional” group, a much broader—and much more masculine—category.³² Nurses would thus be returned to their erstwhile social status as the “physician’s hand,” and would be encouraged by law to identify with doctors and managers instead of providing a nurse-defined view of the job that would challenge administrative control.

While members of Congress were aware of the need to limit the number of bargaining units, the law that was eventually adopted largely allowed nurses to stake their claims as an independent and distinct group of workers. It did not, however, include an amendment to the supervisory exemption for the health care industry. Yet this does not mean that members of Congress did not want nurses to be classified as “employees” when the law was implemented. Indeed, what the reports submitted by the special committees in the House and in the Senate demonstrate is that the congressional intent was clearly to include, not exclude, RNs in the category “employee” and that an amendment to the NLRA was not necessary for that. In light of the current debate, it is worth quoting from them.

In 1972, after the first hearings, the House report came out strongly against the idea that RNs were supervisors: “Your committee’s intent in extending NLRA coverage to non-profit hospitals is that nurses as well as all other hospital employees enjoy the rights guaranteed to other employees covered by the Act, and it is your committee’s view that nurses with only nominal supervisory duties should not be considered as ‘supervisors’ within the meaning of the NLRA.”³³ In 1974, the Senate report came to the same conclusion, and clearly supported the notion that direction of employees when exercised in the interest of the patient did not mean that a worker should be classified as a supervisor:

Various organizations representing health care professionals have urged an amendment to Section 2(11) of the Act so as to exclude such professionals from the definition of “supervisor” … the proposed amendment is unnecessary because of existing board decisions. The Committee notes that the Board has carefully avoided applying the definition of “supervisor” to a healthcare professional who gives direction to other employees in the exercise of professional judgment, which direction is incidental to the professional’s treatment of patients and is thus not the exercise of supervisory authority in the interest of the employer. The Committee expects the Board to continue evaluating the facts of each case in this manner when making determinations.³⁴

The distinction between responsibilities exercised “in the interest of the employer” and those “in the interest of the patient” was an important limit set on the notion of worker loyalty. Indeed, in the jurisprudence it had developed since 1967, the NLRB had firmly established the principle that nurses’ duties with regard to lesser-skilled health care workers and their authority over them derived only from their technical knowledge and could not be seen as a manifestation of a supervisory authority as defined in Taft-Hartley. Congress expected the NLRB to continue to identify “employees” and “supervisors” based on this rationale, a policy the board followed after 1974, and even formalized when it published three consecutive rules (1987, 1988, 1989) mandating the creation of separate bargaining units for RNs and ending managerial attempts to dilute nurses’ voices in broader units.³⁵ Most important, the Supreme Court explicitly approved of the board’s policy in a footnote to its Yeshiva decision in 1980.³⁶

No Original Intent: The Worker as Text

Hospital managements, however, willfully ceded very little ground to unions. Far from subscribing to the Progressive theory of harmony in the workplace, they perceived unions as threats for their authority over the hospital ward. As two directors of personnel associated with the AHA explained in 1976, in the aftermath of the amendments bringing hospitals within the protective framework of the NLRA, “We are beginning to realize that as managers, we may not be totally in command of things in the years ahead. Our voice grows weaker as one analyzes the implications of the 1974 NLRA amendments may have on the future of the heath care industry. Control of the work by the worker lends itself to the total control of the hospital. Lose control of the worker, lose control of the work, and you’ve lost control of your total management system.”³⁷

This was largely reminiscent of the laments of automobile executives opposing foremen’s unions, but in the 1970s the context of labor relations was changing and antiunionism was increasingly visible. In fact, celebrations of the virtues of the postwar labor-management accord had probably always been as much a way to discredit right-wing criticism of the Wagner Act as an accurate description of the state of labor relations, but by the late 1970s, the political ground was shifting for unions and their allies. Douglas Fraser’s 1978 decision to resign from the Labor Management Group was an important signpost suggesting that such celebrations were no longer in order.³⁸

A manual published in 1976, The Union Epidemic: A Prescription for Supervisors, provides additional insight into this steadfast resistance.³⁹ A clarion call to all managers to get their house in order to stop the “threat of the union disease,” the book also brimmed over with the antiunion clichés that the libertarian right was then putting forth with increasing frequency. The authors did not simply call on the loyalty of supervisors to establish stable labor relations typical of the midcentury factory; rather, they insisted that labor law “recognizes that a supervisors are an employer’s best weapon to resist the union attempt.” During an organizational drive, they explained, the role of supervisors was to “maintain control and discipline,” and be ready to discharge the workers who failed to comply with company rules. This call did not go unheeded, and as early as 1981 union leaders complained about the intensive use of antiunion consultants in the health care industry.⁴⁰

Most important, the authors of Union Epidemic identified the construction of workers as “employees” or “supervisors” as being critical to building the hospital’s line of defense against unions and insisted that many nurses, particularly charge nurses, fell in a gray legal area because of their duties. For antiunion managements, law was to be as much a place of conflict as the hospital ward, and while the use of antiunion consultants was gaining currency, management hired lawyers to replicate the legal battle for loyalty that had resulted in the exclusion of foremen in 1947. As early as 1979, Herbert Melnick, of the Modern Management antiunion firm, related the defeat of a union campaign to teach the participants of a seminar on union avoidance how to use the supervisory exclusion to their advantage: “We got every single nurse excluded as a supervisor, every licensed practical nurse as a supervisor. And that’s how we won it. Otherwise, if you went by the election there was no question. [The union] had 90% of the people signed up. … But you have to be prepared—you have to structure it now. And one way to do it is to get those people and say “you are a supervisor.” … Give them the job description and let them sign for it. Papers impress the government more than anything else.”⁴¹

Still, given the history of the 1974 amendments, the business struggle for loyalty would not have been successful without the rise in conservative legal circles of a new interpretative methodology, namely, textualism. Textualism, indeed, is the main conservative contribution to the theory of judicial review. According to its main proponents, Justices Antonin Scalia and Clarence Thomas, there is no need for an agency or a court to delve into the legislative history of a statute it must enforce or to consider the potential social effects of statutory interpretation before adjudicating a case, because doing so is futile. According to textualists, not only is it impossible to reconstruct the intent of the legislator, but the meaning of a text is autonomous and can indeed be different from the intent of its author. Consequently, the plain meaning of the text of a legislation should be given effect, which means that the agency must focus on the words themselves, on syntax and on relationships between different parts of the statute.⁴²

Textualism made it possible for conservatives to overcome the main obstacle to the notion that RNs should be classified as “managers”—the notion that they exercise their responsibilities in the interest of the patient, not the employer. By the early 1990s, the Sixth Circuit had taken the lead in propounding this jurisprudential turn with a reasoning that was strangely reminiscent of Powell’s “industrial analogy” in Yeshiva. “As a matter of economics,” the Sixth Circuit Court explained in the 1992 case Beverly Enterprises, the patients are the employer’s customers, and it’s in the employer’s interest to serve them well.” The plain meaning of the statute—one that, interestingly, the court took to be basic laissez-faire values—thus indicated that there could be no logical distinction between responsibilities exercised in the interest of the patient (opening to “employee” status) and responsibilities exercised in the interest of the employer (mandating “supervisory” status). In a thorough rejection of the idea of legislative intent, the Sixth Circuit went on to note that the NLRB exceeded its authority when it tried to protect the bargaining rights of professionals such as RNs: “It is up to Congress to carve out an exception for the health care field, including nurses, should Congress wish for Nurses not to be deemed supervisors,” the court ominously noted.⁴³

Notably, by 1994, this viewpoint was endorsed in by the Supreme Court in Health Care & Retirement Corp., a case that bore on the status of three LPNs who had been disciplined for their “uncooperative attitude”—they assisted nurses’ aides in an organizing drive—and had filed a complaint for unfair labor practice. The board first ruled that their dismissal indeed constituted an “unfair labor practice,” but the employer had challenged this ruling in court on the grounds that the LPNs were “supervisors” because their duties included ensuring adequate staffing, making daily work assignments, and monitoring aides’ work to ensure proper performance (counseling and disciplining aides). The board had countered that these duties were not carried out “in the interest of the employer” because they stemmed from the nurses’ knowledge and their license. The Supreme Court disagreed, insisting that the “ordinary meaning” of the phrase “in the interest of the employer” led to the logical conclusion that all professional work is necessarily “in the interest of the employer” and that the board’s reliance on this rationale was a “false dichotomy.” Dismissing evidence of congressional intent such as the 1974 Senate report as “isolated statements,” the Court criticized the board for being indifferent to other parts of the text of the statute, particularly the section saying that a person who “responsibly directs” coworkers is a supervisor, which it accused the board to have made “meaningless.” “The Statute must control the Board’s decisions, not the other way around,” the Court lectured, insisting that the days of legal realism were over: textualism, not legal realism, was to control the definition of the worker in American law.⁴⁴

Written by Anthony Kennedy for a majority composed of Sandra Day O’Connor, William Rehnquist, Antonin Scalia, and Clarence Thomas—all appointees of Ronald Reagan and George H. W. Bush—the Supreme Court’s decision in Health Care & Retirement Corp. v. NLRB thus reflected the growing impact of the rightward shift of the country on labor law. Tellingly, the Court was badly divided, with Justice Ginsburg writing a dissent (joined by Justices Blackmun, Stevens, and Souter) in which she faulted the majority for denying that there is an inherent tension in the act between the exclusion of supervisors who owe a duty of loyalty to their employer and the protection of professionals whose rights are explicitly protected. Indeed, in both cases the act defines them as individuals directing others. Warning that the present decision made the protection of professionals “meaningless,” Ginsburg cited a host of workers whose rights had been upheld by the board but now seemed to be at risk: the list ran from newspapers editors assigning and editing articles to lawyers serving as unit heads, including project engineers, project architects, catalog librarians, and senior social workers supervising others.⁴⁵

Harmony Redux?

In retrospect, however, the most striking element in the 1994 Health Care decision was that it was handed down at a time when the old ideal of cooperation and mutual interests between employers and workers had regained a salient place at the forefront of the political debate over labor law. Since the late 1980s, a number of pundits and experts on both the business and academic sides had been advocating new forms of management known as “employee involvement” or “employee participation plans” to improve productivity and quality. Indeed, for close to twenty years the American economy had seemed at pains to compete with its foremost competitors, Germany and Japan, with their work councils and team concepts that seemed more efficient than gritty Taylorist labor relations to generate productivity. If American workers were likewise allowed to participate in planning, it was believed, production would be more flexible and more responsive to market demand, making U.S. companies more productive. The future lay in a system in which the separation erected by Taylorism between management and workers would disappear.⁴⁶

The members of the Commission on the Future of Worker Management Relations, created by Bill Clinton in 1993, endorsed these ideas in a widely publicized report calling for an evolution of labor law that would accommodate the idea that unionism should no longer be adversarial, but collaborative, which in effect meant removing the Wagner Act’s Section 8a(2) ban on company unions and shop committees in order to allow for localized and particularistic forms of collaborations and bargaining within American companies. This change in the legal representation of workers’ rights reflected an important evolution in progressive attitudes toward unionism and collective bargaining. No longer did labor law need to reflect the varying interests of two social entities management and labor—in this new post-Fordist era, “empowered employees” would work in unison with employers to compete in the marketplace. Through quality circles, teamwork, and labor-management committees, mutual respect could be restored to the American workplace.⁴⁷

That a fresh vision of the worker underwrote the drift of this reform is visible in the participation of the labor-oriented members of the Dunlop Commission; for them employee participation plans promised more than added competitiveness—they would usher in no less than a new era in the history of labor relations. As Paul Weiler explained, a more democratic, flexible unionism would emerge out of the ashes of the old bureaucratic AFL-CIO industrial unions that once dominated the pattern-setting contracts typical of the midcentury period. Meanwhile, the cultural gap between managers and workers would be bridged for good because the workers would now derive much satisfaction from the fact that their jobs had been “enriched” with true content, requiring them to provide creative input. Given the disappearance of the ideo-typical militant worker, Charles Hecksher argued, it had become necessary to devise a system of labor relations that, instead of fostering industrial peace, would accommodate the wishes of a growing numbers of professionals and semiprofessionals on whose skills the economy increasingly relied, and who felt at odds with traditional unions. Oddly, the Dunlop Commission thus reaffirmed the old Progressive idea that institutions could be used to produce new social norms. And as in the early years of the twentieth century, when John R. Commons and his students developed industrial pluralism, cooperation and partnerships were the norms necessary to produce the high performance necessary in a globalized economy.⁴⁸

What of the tension between unionism and loyalty? Naturally, this new cooperative framework devalued the very premise of the managerial and supervisory exclusions in labor law—the notion that companies were entitled to the undivided loyalty of their representatives because collective bargaining relied on the conflict of interests between workers and managers.⁴⁹ Notably, General Motors, which had once insisted on the sharp difference between management and workers to justify the supervisory exemption, now claimed that at its Fort Wayne, Indiana, plant, where the team concept had been implemented, there were no longer any workers and bosses, just “associates” and “advisors.”⁵⁰ Seen from this perspective, it was possible to envision the end of the tension between unionism and loyalty that had structured labor law since 1947, for the distinction between “supervisors” and “employee” in the implementation of the Wagner Act no longer made sense and should be repealed indeed. As the ACLU’s Lewis Maltby explained to the commission,

Given the way industry is involving employees in day to day operations, it won’t be long before everyone is a supervisor under the NLRA, and no one has a theoretical right to join a union. The key to this change is eliminating the exception for supervisors under the NLRA, and modifying the exception for managers. While supervisors and managers owe their employer a duty of loyalty, that does not distinguish them from other employees. What does distinguish some senior executives is that they have significant individual bargaining power, and do not need collective bargaining to protect their interests. Rewriting the management exclusion around this concept would protect the legitimate interests of employers without denying the right to join a union to those who need it.⁵¹

The Dunlop Report proceeded to openly criticize the Supreme Court for creating the managerial exception in Bell Aerospace and Yeshiva and expanding the supervisory exception in Health Care. “These Supreme Court cases fail to take into account the degree to which supervisory and managerial tasks have been diffused throughout the workforce in American firms,” the report noted. “As a result of the Court’s interpretation, thousands of rank and file employees have lost or may lose their collective bargaining rights.” To remedy this problem, it called for a mild amendment to the NLRA, one that would still keep out statutory supervisors (who are in charge or hiring, firing, or disciplining) and persons who are “near the top of the managerial structure, who have substantial individual discretion to set major company policy,” while “members of work teams” and “professionals and para-professionals who direct less skilled workers” would now be classified as “employees.”⁵² Clearly, the commission suggested that it made no sense to ask workers to choose between workplace cooperation and taking advantage of their bargaining rights under the NLRA.

By the late 1990s, however, progressives were in no position to challenge conservative nostrums on labor law, particularly the managerial exclusion. Corporate America did not view Health Care & Retirement Corp. in the same light, if only because businessmen and top managers prized its main holding—that the distinction between professional and business values on which the board had relied was unacceptable. Moreover, in a review of the case, a corporate labor lawyer explained that the very essence of the total quality movement and more generally the development of new managerial forms was to bring business values and technical knowledge in lockstep: “If Secretary Reich and his cohort, NLRB Chair Gould, truly desire the ‘high performance’ workplace of which they regularly speak, they will adhere to the Court’s view in health care,” he explained.⁵³ The author went on to consider whether the focus on total quality was “incompatible with unionism,” and suggested that amending the NLRA was not necessary—if a self-directed work team was not a “labor organization” under the NLRA, then quite simply the workers involved in them should all be classified as “managers.” To reach a postindustrial world devoid of militant workers, all one had to do was to let the Fordist categories inscribed in U.S. labor law run their course and die under the caring hand of conservative justices.

Caught in the conflicting winds of progressive and conservative readings of employee involvement and job enrichment, the Dunlop Report soon became a dead letter. The Republican victory in 1994 further doomed any attempt at labor reform. In fact, Congress did pass the TEAM Act, which only amended the NLRA to allow employee participation committees. The act was in turn promptly vetoed by Clinton, who suggested perfunctorily that “it would undermine the collective bargaining system that has served the country so well for many decades.” Of course, by then the union movement had reached an all-time low and had almost reverted to its pre–New Deal levels, and in many industrial fields collective bargaining was only a memory. Corporate America was content to limit itself to its—largely successful—antiunion agenda, and with the solid economic growth of the late 1990s, its interest in this reform of Section 8a(2) largely declined. If there was a new emphasis on partnership and shared values between workers and managers, it came from citadels of the antiunion struggle such as Wal-Mart, which referred to its employees as “associates” and cultivated their loyalty by affirming shared conservative social values, and left it to its top managers and engineers to organize the work process.⁵⁴

Collision Course: Nurse Unions and the Politics of Health Care

For nurses, this stalemate has had significant consequences. On the one hand unions of nurses have made significant progress. In 2009, the creation of the National Nurses United Union, which is affiliated with the AFL-CIO, confirmed the changing character of nurses’ professional identity. To be sure, as a number of commentators have noticed, the quest for professionalism is still an obstacle—many RNs remain reluctant to join a union because they do not think that it is compatible with their commitment to patients. Yet today unions represent nearly 20 percent of all RNs in the country, a figure that reflects the relevance of unionism in the contemporary post-Fordist workplace. Indeed, nurses today are not unlike the industrial workers of the 1930s who chafed under the autocratic management of the large corporations that dominated most industries and justified calls for industrial democracy. For one thing, the health care industry differs from others insomuch as there are no real alternatives for workers dissatisfied with their job—hospitals hold a “monopsony” power that has allowed them to keep wages down: from 1992 to 2002, wages for the labor force increased by 6.8 percent, while wages for RNs increased by only 3.3 percent. Notably, the wages of less-skilled hospital workers are so low that in 2004 Business Week chose the picture of a nursing aide earning $9 an hour to illustrate a story on the growing problem of the working poor in industrial America.⁵⁵

Although nurses usually do not join unions that seek to represent all health care workers on the model of industrial unionism, they do derive substantial benefits from collective bargaining. On average, they earn almost $3 (more than 10 percent) more per hour than nonunionized nurses. Furthermore, in metropolitan areas where union density is high enough, collective bargaining contracts have an effect on the local labor market as a whole. According to a recent study, in areas where unionization exceeds 50 percent, hourly wages are $7 higher than in areas with fewer union members. Along with their compensation, nurses typically bargain over health care benefits and seek to protect their employment from mergers.⁵⁶

The reach of collective bargaining agreements, of course, is much longer than the bread-and-butter question of wages. In similar fashion to the contracts established in the heyday of Fordist mass production, RNs negotiate working rules that limit management’s ability to change their work assignments arbitrarily. Typical provisions eliminate or limit overtime requirements as well as “floating”—the sudden reassignment of a nurse to a different unit for a determined amount of time—and “detailing”—the reassignment of a nurse for an unspecified length of time. Contracts also typically include staffing requirements, known as “nurse to patient ratios” and offer some degree of protection against the most taxing effects of what remains physically demanding labor. Nurses make up an aging workforce, and yet they spend long hours standing, walking, and moving patients around. “No single lifts” provisions—meaning that nurses will not be required to move or reposition a patient alone—testify to the need to protect the body as much as the pocketbook, for the incidence of back injuries in nursing exceeds that in construction and mining. Indeed, nursing is a dangerous activity: in 2010, the rate for occupational injuries and illnesses for hospital employees was 6.5 per 100, workers as opposed to 3.4 in all private-sector industries and 3.9 in manufacturing. Each year, nurses account for over 40 percent of needle stick injuries, which expose them and their patients to HIV and hepatitis. Such hazards do not simply discount claims that unions are not needed in the service, postindustrial economy; they also account for the high dissatisfaction rates among nurses, and in particular the high turnover in acute care hospitals, which exceeds 20 percent and reaches a staggering 48 percent in nursing homes.⁵⁷

Given these elements, the difficulties faced by nurses in joining unions and signing collective bargaining agreements ameliorating their working conditions can be surprising. Nurses might, after all, be in high demand and short supply. In 2009, the Bureau of Labor Statistics projected that over half a million new RN positions would be created through 2018 to respond to the rising demand for care that both demographics and health care reform will generate. Yet the national RN vacancy rate was already 8 percent in 2007, and nursing schools do not produce enough graduates each year. Although the recession has eased the shortage, experts believe that some 265,000 nurses will be missing in 2025.⁵⁸ Obviously, nurses should be in a good position to bargain for better working conditions.

Yet, as we have seen, from the beginning nurse unions were faced with managements fretting over their possible loss of authority over the hospital wards, and the stakes involved in this battle for control of the care floor have only grown with the changing politics and economics of health care since the 1980s and the emergence of managed care. Relying on cost-control strategies such as mergers of hospitals and the reorganization of health care work, managed care is precisely designed to force a reduced number of nurses to care for a larger number of patients who are likelier to have serious conditions. Indeed, HMOs now seek to allow only the most seriously ill patients to go to the hospital. To achieve this organizational goal, managed care has brought a rationalization of nurses’ work that shows that Taylorist principles are very much alive in today’s workplace. Indeed, one can’t understand the debate over nurses unions and the business struggle for nurses’ loyalty unless one comes to grips with the heart of the matter: a battle over the control of the work process.

As the author Suzanne Gordon explains, the process whereby bottom-line financial concerns resulted in a “mangling” of medical care started with the reform of Medicare in 1983. Instead of reimbursing a hospital for the cost of an individual’s stay, Medicare shifted to a prospective payment system relying on “DRG”—diagnosis related group. To each illness or procedure (hip replacement, for example), Medicare now assigned an average length of hospital stay and a corresponding sum. If an individual’s treatment exceeded what the DRG planned for, the cost was to be borne by the hospital alone. By contrast, if the illness was cured or the procedure done quicker than what the DRG planned for, the hospital could keep the money that had been saved. The move to DRG-based reimbursement introduced the industrial logic of “throughput” into the world of health care. By the 1990s, as hospitals competed for managed care contracts, they moved to further cut the length of stays and outsource patients who did not need acute care. For nurses, this has meant both a steady increase in patients with critical conditions and an increasing number of incoming patients during any given shift.⁵⁹

To deliver quicker and cheaper medical care, hospitals have not simply required nurses to do fast work with patients with acute needs. They have also directly aimed at the size of nursing staffs because nurses constitute the largest component of the workforce in what remains a labor-intensive industry. To cut back on staffing, they hired consultants telling them how to gain a firm grasp of the very process of care delivering. Such consultants brought a number of processes that turned nursing into measurable industrial labor. First, hospitals have used “patient acuity systems,” that is, computerized programs telling the managers of the hospital how many nurses and nursing aides are needed on a given shift based on the condition and illness of the incoming patients. To predict the labor hours that will be needed, these programs use a modern version of the time studies done by engineers—they are based on an estimate of the time that each medical procedure requires. Furthermore, consultants gather data on the time devoted to nursing care in different hospitals and use the most efficient one as a “benchmark” for others to follow. As early as 1994, the consultant group American Practice Management boasted that since 1987 it had helped hospitals save $1 billion in expenses, mostly through reductions in nursing care hours.⁶⁰

But the rationalization preached by consultants went further still, and extended to a thorough reorganization of services to reach a kind of continuous production needed to make managed care possible. As one consultant explained, “[We need to make] a fundamental shift in thinking from how to best provide a wide variety of independent services to how to effectively combine individual service components into an integrated health experience. Or, in other words, how can we create mini-assembly lines containing as many of the resources as needed to achieve a patient’s desired outcome.”⁶¹

The result of this ambition was “patient-focused care,” an attempt to map the trajectory of a patient afflicted with a specific condition or illness so as to make the treatment a swift continuous process. Like the auto workers producing the Model T in the early days of the industrial era, the work of nurses is thus standardized: the pathway of an individual patient through his or her treatment is charted so that nurses are told what needs to be done and how long it takes to do it. Since 2006, as federal reimbursement for Medicare and Medicaid has been tied to patient satisfaction, hospitals have even used “rounding” and “scripting” to reduce nurses’ autonomy even further. “Rounding” implies that nurses will make rounds on their patients to make sure that all their needs are met—even fluffing a pillow—instead of prioritizing their visits based on the conditions of patients. As for scripting, it literally involves suppressing the nurse’s own voice by telling him or her exactly what to say in specific situations, so as to make sure that the patient’s “experience” is the best one. No longer under the workman’s cap, the manager now sits inside a laminated card telling nurses what words they must use with a patient while treating him or her in a hurry.⁶²

Consultants and hospital executives deny that market-driven managed care erodes the standard of nursing. Rather, they claim that the changes they have pushed through in the past two decades can offer nurses the opportunity to gain what they have long been seeking—the social recognition that comes with professionalism. Indeed, reductions in nurse staffing— hospitals have lost up to 12 percent of their nurses annually—have been possible because an increasing number of less qualified personnel, such as LPNs and nursing aides, have been hired to work with them, doing many tasks that used to be done by RNs themselves. According to consultants, nurses should therefore now conceive of themselves as “managers of care,” rather than actual doers. The traditional bedside nurse should thus make way for a coordinator of the activities that make an individual patient’s health care experience.

Loyalty to Whom?

Yet the loyalty of nurses has proven fairly hard to cultivate. Indeed, hospital managements have stumbled on an obstacle that did not exist in the case of industrial foremen, Bell Aerospace buyers, or university professors. Like doctors, nurses have a privileged relationship to their patients, and it is to them that their loyalty is directed. Many nurses have resisted the conservative, individualistic appeal of this managerialism because they derive much of their occupational identity from the license that allows them to practice, not from the HMO that employs them. Indeed, it is precisely on the system of licensure that managed care’s assault on nursing skills has foundered—many nurses argue that managed care is a drive to the bottom that puts patients at risk and thwarts their ability to fulfill the responsibilities for which they are licensed. In point of fact, it is precisely this system of licensure that has led nurses to reject emphatically that they are arms of management on the hospital floor. “I have a license from the State of Massachusetts to maintain a certain practice,” RN Sandy Eaton remarked during the hearings organized by the NLRB in 2003. “What do you think about that?”⁶³

Research suggests that the primary motive of nurses when they organize is not wages, but the quality of patient care. Indeed, organized nurses see themselves as the only countervailing force to a for-profit model that degrades the standard of care. “For many of us, it’s the only way we can stay in the profession,” a nurse remarked.⁶⁴ This is why in health care conflicts between workers and management have come back with a vengeance. While nurses are pushed to run patients through the system as quickly as possible, unions insist that the nurses’ responsibility must go to protecting the interests of the patients, not those of the HMOs with which their hospital is under contract. Yet at the end of the 1990s, as many nurses unions were breaking away from the ANA, there was increased awareness of the dangers caused by the reduction in the nursing workforce. In 1999, the Institute of Medicine published “To Err Is Human,” a widely discussed study that concluded that up ninety-eight thousand people died each year of accidental injuries in American hospitals. In 2002, another influential study published in the Journal of the American Medical Association contended that “the odds of patient mortality increased by 7 percent for every additional patient in the average nurse’s workload in the hospital.”⁶⁵ Meanwhile studies released by unions and other organizations revealed that a majority of nurses felt they were understaffed and, as a result, unable to provide patient care on a timely basis.⁶⁶

Emerging as patient advocates, nurses unions have opposed the worst effects of managed care by negotiating contracts that explicitly protect their professional identity. For example, in 1994 the California Nurses Association signed a contract stipulating that “the medical center and nurses are committed to the highest levels of patient care in terms of the patient’s health and safety. Accordingly, the parties agree that the nurse shall not practice, nor shall the nurse be required to practice, in any manner which is inconsistent with the above or which places the nurse’s license in jeopardy.”⁶⁷ Other typical provisions tried early on in California include watchdog committees that conduct investigations on the quality of care at a given facility and then provide this confidential information to nurses, who can then take action to request a change in the staffing or organization of work.

Managements have not taken such action lightly. In 2008, the Court of Appeals for the Ninth Circuit passed on the case of RNs who were fired for wearing union buttons that read “staffing crisis—nursing shortage—medical errors—real solutions” or “nurses demand safe staffing.” Reversing the Bush appointees on the NLRB, the court found that the decision to fire the nurses did constitute an unfair labor practice. A few years earlier, another federal court had sustained the board’s decision that RNs could not be prevented from wearing “no FOT” (forced overtime) union buttons simply because this might cause concern among the patients.⁶⁸ Labor law is also crucial to protect the nurses’ ability to advocate the patients’ interests even when RNs are not organized. In 1995, it was through the venue of the NLRB’s protection against unfair labor practices that Barry Adams—an RN who was fired by his Boston hospital after he called his managers’ attention to the inordinate incidence of deaths in the hospital—was able to make a case that led to the adoption of Massachusetts’s whistleblower law.⁶⁹

Overall, however, nurses unions have become political to obtain recognition of their problem. Eschewing the apolitical voluntarism that has often characterized skilled unions, they have been lobbying for laws mandating adequate nurse-to-patient ratios that cut directly against the grain of managed care. The first one, which was adopted in California in 1998, is a one to five ratio in medical and surgical units and a one to four ratio in special units, but the law remained in doubt until 2005, when voters refused to gut them in a referendum backed by the probusiness agenda of the Schwarzenegger administration (voters were also asked to require public unions to get written consent from members before spending dues money for political purposes).⁷⁰ Moreover, nurses unions such as National Nurses United actively promoted health care reform after the election of Barack Obama.⁷¹

Nurses’ ability to voice a language of economic dissent and to offer alternatives to market-driven health care thus sits at the very roots of the ongoing attempt to deprive them of their right to organize and corral them in the managerial realm. While nurses have strongly asserted their professional identity and values, contending that these are profoundly distinct from the business values that prevail in hospital managements, conservatives have waged their battle for loyalty by countering that the text of the supervisory exclusion adopted in 1947 does not allow for such a distinction, hoping that the courts might lead the NLRB to forego attempts to protect the freedom of association of nurses.

Kentucky River

It was at this point that Glenn Moore’s efforts to organize the workers of the Caney Creek mental facility in Kentucky in the fall 1996 became central to the business struggle for loyalty. In fact, it was the NLRB that selected the Kentucky River case as one it could possibly win at the Supreme Court to mitigate the potential effects of the 1994 Health Care & Retirement Corp. decision. Unlike hospital nurses, the RNs at this mental rehabilitation facility had very few of the indicia susceptible to justify making them “supervisors,” and, as we have seen, they were not essential to the bargaining unit and the struggle going on at the Caney Creek facility.⁷²

For the board, this seemed a good case to test the standard it had developed to mitigate the effects of the 1994 Health Care & Retirement Corp. decision— “independent judgment.”⁷³ In 1996, in Providence Hospital, the board used this new test to adjudicate a dispute that encapsulated the debate over “employee.” At stake was the victory of the Alaska Nurses Association, which had won an election to represent more than seven hundred nurses at one of the six acute care centers operated by Providence in Anchorage. But the employer held that all the RNs who functioned even part-time as “charge nurses”—as many as 25 percent of the RNs—were supervisors. Without those votes, the union lost the election.⁷⁴ The board ruled that charge nurses who assigned nurses to patients and could require them to work overtime were “employees” not “supervisors” because the “independent judgment” they used to direct other employees was of a professional, not managerial nature, and then instructed all the “regions” to follow this case in all the cases adjudicated at the local level.⁷⁵

This new policy had largely increased the political and legal pressure bearing on the agency. In a well-publicized memo titled “Where Have All the Supervisors Gone?” the corporate lawyer Roger King accused the agency of deliberately flouting congressional intent. As for the courts that disagreed with the board’s analysis—the Sixth and the Fourth Circuit Courts particularly—they now couched their rebuttals of the board’s jurisprudence in harsh language. Beyond the technicalities of statutory interpretation, it was the political legitimacy of the agency that Congress had created to implement the Wagner Act that was at stake in Kentucky River.⁷⁶

Released in 2000, the Kentucky decision handed the board yet another stern rebuke. Writing for a small majority, Justice Scalia explained that the board’s attempt to distinguish between two types of “independent judgment”—professional and managerial—was unacceptable because the statute actually left no room for a distinction based on the nature of independent judgment. “What supervisory judgment worth exercising … does not rest on ‘professional or technical skill or experience?’” he asked. Once again, the Court found fault with the board’s attempt to ignore the text of the statute and accused it of reading the phrase “responsibly direct” out of the statute. Indeed, the majority opinion denounced the board’s “running struggle” to limit the impact of the supervisory exclusion, noting that it was “presumably driven by the policy concern that otherwise the proper labor-management balance will be disrupted.”⁷⁷

Afterward, the counsel for Kentucky River hailed the Court’s decision, saying that “textualism saved the supervisory exemption.”⁷⁸ True, but in fact, it seems difficult to think of another area of law where the Supreme Court has gone to such great lengths to deny a federal agency the right to carry out the role that Congress has bestowed upon it—implementing a statute and giving concrete effect to the legislators’ intent, which is to promote the right to organize and collective bargaining. Indeed, it is striking that in both Health Care and Kentucky River, the Court broke with the framework it established at the beginning of the 1980s to guide judicial review of agency work. According to this framework, if the intent of Congress is clear, the courts must make sure that the agency has followed this intent. If congressional intent is ambiguous or unknown, then the agency must provide a “reasonable” interpretation of the statute: in other words, the Court recognized that administrative agencies must often make policy choices to which courts must defer as long as they are based on permissible constructions of laws.⁷⁹ Yet in Health Care and Kentucky the Court jettisoned this policy of judicial restraint to make sure, as the Court itself admitted in Kentucky, “that supervisors will not be eliminated from the Act.”⁸⁰ In this case, textualism obviously allowed the Court to justify favoring the presumed intent of Taft-Hartley—to protect managerial prerogatives— over the intent of legislators in the 1974 amendments, and the result is a jurisprudence that disembodies the worker into textual fragments.

Kentucky River also marked the defeat of the board’s last attempt to craft a socially meaningful definition of “employee,” one that would limit the impact of the doctrine of loyalty over the right to organize. Soon after the decision was rendered, the 2000 elections changed the institutional dynamics of the debate by allowing Republicans to make nominations to the NLRB. The effects of this change were evident when, in 2003, the board announced that it would hold hearings to devise a new definition of “employee” and “supervisor.” A treasure trove for textualists, the list of questions then published by the board for the participants was a sign of the growing disjunction between the legal definition of the worker and the social world:

1. The difference between “assigning” and “directing.”

2. The meaning of the word “responsibly” in the statutory phrase “responsibly direct.”

3. The distinction between directing “the manner of others’ performance of discrete tasks” and “directing other employees.”

4. The significance of schedules that rotate employees in and out of supervisory positions.

5. The meaning of “independent judgment.”⁸¹

Three years later, a spirit of strained anxiety pervaded the ranks of progressives and labor activists as the board’s decision in the Kentucky River cases—three cases in which the board would provide a new definition of “employee”—was pending. A study published by the Economic Policy Institute (EPI) the same month compounded this feeling of urgency: using official data provided by the Bureau of Labor Statistics, the EPI found that some eight million workers were to lose bargaining rights if the board restricted the definition of “employee” to exclude charge nurses.⁸² In mid-July, nurses unions and the AFL-CIO teamed up to organize a “week of protest” throughout the nation. In twenty-one American cities, workers denounced the antilabor policies of the Bush administration and called on the NLRB to stop “rolling back workers’ rights.”

The demonstrations did not necessarily make the national headlines, but in a context of staunch antiunionism, when so few workers were able to organize, they demonstrated the centrality of the struggle against business hegemony over labor law for American workers hoping to revive a democratic movement. As for hospitals, they were so eager for the board’s decision that they sometimes anticipated it: the Virginia Mason Medical Center in Seattle, Washington, countered an organizing drive by the Washington State Nurses Association by relabeling six hundred RNs as “supervisors” even before the decision was announced.⁸³

The trio of decisions that the board published on September 29, 2006, largely confirmed these fears. First came Oakwood Care Inc., a case that mattered enormously because it seemed to symbolize the promise that the old industrial unionism would somehow gain a new lease on life in the new workplace. At Oakwood Heritage hospital in Taylor, Michigan, the UAW led an organizing drive among 220 RNs, many of whom acted as “charge nurses” on a regular basis. This meant that they were responsible for overseeing the patient care unit, meeting with doctors and relatives of patients, assigning patients to RNs, and dealing with unusual incidents. None of them, however, dealt with the grievances of nurses or had the authority to assign them to shifts—such were responsibilities of the clinical managers. Twelve nurses were permanent “charge” nurses, while some 112 rotated to take charge. All earned an additional $1.50 an hour when they assumed this duty. When the UAW filed for a certification election in 2002, it sought to represent all the RNs, and the local NLRB ruled that the nurses were not supervisors.

The hospital management, however, countered by contending that none of its clinical managers were involved in the day-to-day supervision of the hospital units. Executives also insisted that “on any given day, while clinical managers and assistant clinical managers are busy attending to the administrative concerns of their multiple units, charge nurses are responsible for ensuring the proper functioning of their individual nursing units.” Why this responsibility should be incompatible with unionism, the hospital never said, but it sought to exclude all its RNs on the basis of their rotating charge responsibilities.⁸⁴

In Oakwood, the board did not go as far, as it held that only the twelve permanent charge nurses were “supervisors.” Still, in engaging in the textualist analysis called for by the Supreme Court, it outlined a new standard for assessing “employees” and “supervisors” that confirmed many of the progressives’ and labor activists’ worst fears—more than a decision in the instant case, the board opened the door to the industrial disenfranchisement of many workers. First, the board defined “to assign” as “designating an employee to a place … appointing an employee to a time … or giving significant overall duties, i.e. tasks, to an employee.” In the health care context, this meant that a nurse assigning other nurses or aides to patients would be a “supervisor.” However, the board ruled that to “assign” did not include the directing of another nurse or aide to perform a discrete task such as “the charge nurse ordering an LPN to give a sedative to a patient.”⁸⁵ The definition of “assign” thus left the door ajar for nurses hoping to remain beyond the reach of managerial loyalty.

But the board slammed it closed when it defined “responsibly direct” and “independent judgment.” First, it held that “to direct” included even ordering an employee to perform a “single, discrete task.” All an employer had to do to classify a worker as a supervisor then was to hold him or her “responsible” for this “direction,” which meant that the person “must be accountable for the performance of the task by the other, such that some adverse consequences may befall the one providing the oversight if the tasks performed … are not performed properly.”⁸⁶ Second, according to the board, “independent judgment” meant that anyone who did not follow “detailed instructions” in directing other employees used independent judgment. For nurses, this meant that “if the registered nurse weighs the individual condition and needs of a patient against the skills or special training of available nursing personnel, the nurse’s assignment involves the exercise of independent judgment.”

Finally, and most important, the NLRB held that if a worker spends a “regular and substantial” portion of his or her work performing the supervisory functions outlined above, he or she must be classified as a supervisor. There again was much for employers to rejoice. The board defined “regular” as being “according to pattern or schedule,” and held that “substantial” meant that the person performed duties for as little as 10 to 15 percent of his or her total work time supervising. As the dissent written by members Liebman and Walsh noted, the decision threatened to “create a new class of workers under Federal Labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees.”⁸⁷

The Old Is Dying …

The Kentucky River cases elicited a chorus of outraged responses. In fact, rarely had an NLRB decision elicited so much attention in the media and the political sphere. Ranging from humorist Stephen Colbert to author Steven Greenhouse, from Edward Kennedy to Howard Dean and Harry Reid, a large number of progressive and Democratic voices joined AFL-CIO leader John Sweeney in lambasting the agency for its biased decision. “Disgrace is the only word that describes your decision,” wrote a bitter Larry Cohen, the president of the Communication Workers of America, to NLRB chairman Robert Battista. At a time when labor unions were gearing up to fight for the Employee Free Choice Act (EFCA), the board’s decision was a potent symbol of the determination of the American right to oppose unionism, and an eloquent demonstration of its hegemony over labor law.⁸⁸

Five years later, assessing the effects of the decision remains an elusive task, particularly because union membership rates have dropped to new lows in the private sector. On the one hand, it is clear that the controversy has died down, and that unions do not believe the Oakwood decision has seriously affected them yet. This is owed to the fact that in industries with well-established labor relations, such as the automobile sector, it has not been used by companies against unions. In the health care industry, the impact of the decision has been somewhat blunted because in many cases, unions such as National Nurses United have been strong enough to force a local management to include all RNs in the unit—whether they may be “supervisors” in the eyes of the law or not.⁸⁹

Yet it seems also clear that it is in new organizing situations, and in health care, where the union does not enjoy broad following, that the main effects of the Oakwood case will be visible. Not only will employers use it as an efficient delaying tactic, leading to lengthy hearings and appeals before the legal status of the individuals at issue becomes clear, but quite simply the Oakwood case puts unions in a catch-22. If they include potential “supervisors” in their organizing effort and win the election, the results of the election could be thrown out because they were not free of employer domination. If unions choose to be on the safe side and exclude those workers, then they might simply deprive themselves of much-needed energy and lose the election. The combined facts that nurse unions have hardly made any numerical headway in ten years and that there has been a steady decline of board cases dealing with the supervisory issue bode no promise for the future, especially if one keeps in mind that the Oakwood decision gives employers a blueprint to secure the classification of many workers as “supervisors.”⁹⁰

Along with their impact, the Kentucky River cases should be seen as the product of a multidecade struggle for the defense of managerial loyalty. By 2007, the success of this struggle seemed to threaten the rights of so many workers in America that it seemed to be the perfect illustration of Antonio Gramsci’s dictum that “the crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear.”⁹¹ The Kentucky River decision and its legal progeny were one such morbid symptom. The decision signaled the death of the faith in social harmony that had given birth to the New Deal labor regime and sustained efforts to improve and enhance the lot of workers throughout much of the twentieth century.