SUPREME COURT decisions that can have a profound impact on the lives of millions of Americans sometimes slither past us with little initial notice.
Such is the 2001 Kentucky River case in which the court told the National Labor Relations Board that millions of skilled American workers -- nurses, professionals, sales representatives, quality control inspectors -- might well be classified as supervisors and therefore ineligible for union membership. The high court decided that anyone who exercised "independent judgment" in their job was, in effect, part of management.
Next month, the NLRB, now dominated by conservative Republican appointees, is expected to codify this ruling, thus putting beyond the protections of the labor law millions of professionals who work in our hospitals, offices, stores and universities.
The case, NLRB vs. Kentucky River Community Care, began in the 1990s when a union sought to represent nurses and other healthcare workers at a Kentucky nursing home. But the home's owners argued that six nurses, who sometimes supervised and scheduled the work of other staff, should be excluded from the potential bargaining unit. The Clinton-era NLRB sided with the union, ruling that these "charge" nurses did not exercise sufficient independent judgment when they used their professional training to direct lesser-skilled employees to deliver the services their employer wanted. In other words, the nurses were professionals who were nevertheless eligible to join a union, not supervisors who used their knowledge and professional training on behalf of management.
But Supreme Court Justice Antonin Scalia would have none of this. Writing for the majority in the 5-4 ruling, he ridiculed the distinction between the independent judgment of professionals acting as professionals rather than as supervisors. "What supervisory judgment worth exercising, one must wonder, does not rest on 'professional or technical skill or experience'?" In effect, the court's interpretation of the term "supervisor" is now so broad that the NLRB may well sweep all professional employees into the ranks of management. That is truly being kicked upstairs.
The implications of all this are Orwellian. Scalia -- along with Justice Clarence Thomas -- is the court's most steadfast conservative, but his understanding of the meaning of skill and authority has a decidedly Marxist flavor here, or rather a vision of a class society that still seems rooted in a Victorian world of factory drones toiling away at routine tasks under the guidance of those who put their skills and intelligence to work on behalf of the owners.
