Amicus Curiae Brief — NLRB v. Health Care & Retirement Corp. of America

No. 92-1964 | OME OB WE BLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Vv.

HEALTH Care & RETIREMENT CORPORATION OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF

AMERICAN NURSES ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

—

BARBARA J. SAPIN

(Counsel of Record)

Labor Counsel

Of Counsel: AMERICAN NURSES ASSOCIATION

Woopy N. PETERSON 600 Maryland Avenue, S.W.

2101 L Street, N.W. Washington, D.C. 20024

Washington, D.C. 20037 (202) 554-4444

WILSON - EPES PRINTING Co.. INC. - 789-0096 . WASHINGTON. D.C. 20001

7 BEST AVAILABLE COPY;

ae me tee

TABLE OF AUTHORITIES

TABLE OF CONTENTS

CONSENT TO FILING 0

ng, RESALE Oe

I.

Il.

THE DECISION BELOW CONFLICTS WITH

THE ACT, ITS LEGISLATIVE HISTORY

AND THIS COURT’S PRECEDENT....._.

A. The Board’s Test Is Firmly Rooted In The

Text And Legislative History Of The Act...

1. The 1947 Taft-Hartley Section 2(11) and

2(12) Amendments...

B. Both Congress And This Court Have Ap-

proved The Board’s Longstanding Interpre-

I

THE RATIONALE OF THE COURT OF AP-

PEALS WOULD EXCLUDE THE MAJORITY

OF REGISTERED NURSES FROM THE PRO-

TECTION OF THE ACT, CONTRARY TO

THE INTENT OF SECTION 2(12) AND THE

1974 HEALTH CARE AMENDMENTS __

A. Congress Enacted § 2(12) And The Health

Care Amendments Specifically To Allow

Registered Nurses To Bargain Collectively

And To Improve Patient Care. —i*™S

B. Under The Court Of Appeals’ Approach,

Most Registered Nurses Would Be Deprived

Of Rights Guaranteed Them By The Act...

14

18

18

20

ii

TABLE OF CONTENTS—Continued

1. The court of appeals’ decision would

have widespread impact in the industry..

2. In finding nurses to be statutory super-

visors with no rights under the Act, the

court of appeals relied on the very du-

ties of registered nurses that bring them

within the Act’s protections as profes-

EEE ly Te

CONCLUSION ............ cwassavevssseustseeieuniticesionseasisiiasinnasiasinnN

Page

iii

TABLE OF AUTHORITIES

CASES | Page

American Hosp. Ass’n v. NLRB, —~ USS. —,

een 19

Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978) _ 4, 19, 20

Beverly California Corp. v. NLRB, 970 F.2d 1548

(6th Cir. 1992) .............. 2

Children’s Habilitation Center, ‘Tne. v. _ NLRR, 887

F.2d 130 (7th Cir. 1989)... 16, 17, 23

Churchill v. Waters, 977 F.2d 1114 (7th Cir.

1992), cert. granted, 113 S. Ct. 2991 (1998). 27

Doctors’ Hospital of Modesto, Inc., 188 NLRB 950

(1970), enf’d, 489 F.2d 772 (9th Cir. 1973) 2, 15, 16

Fall River Dyeing & Finishing Corp. v. NLRB,

I 18

Ford Motor Co. v. NLRB, 441 U.S. 488 (1979) _. 4

Misericordia Hosp. Medical Ctr. v. NLRB, 623

Pam G88 (36 Cir. 1008) ...............................-..--.0--- 17

NLRB v. Beacon Light Christian Nursing Home,

825 F.2d 1076 (6th Cir. 1987)... 2

NLRB v. Hendricks County Rural Elec. Member-

ship Corp., 454 U.S. 170 (1981)... itiitheliael 3, 18, 27

NLRB vv. Res-Care, Inc., T05 F.2d 1461 (7th Cir.

ection ell Sl 2, 17, 22-23, 26

NLRP vw. Yeshiva University, 444 US. 672

SG Te passim

Preshyterian Medical Ctr. 218 NLRB 1266

(1975) 2

Red Lion Broadcasting Co. v, . FCC, 395 US. 367

EES SETI 18

Sherewood Enters., Inc., 175 NLRB 354 (1969) . 16

Sutter Community Hosps. of Sacramento, Inc., 227

I 16

Wing Memorial Hosp. Ass’n, 217 NLRB 1015

SERED eNAR OS 16

STATUTES, RULES AND REGULATIONS

Health Care Amendments Act of 1974, Pub. L.

No, 93-360, 88 Stat. 395 (1974) 6

National Labor Relations Act, as amended, 29

ET passim

Section 2(11), 29 U.S.C. § 152(11). eres passim

Section 2(12), 29 U.S.C. 152(12) 00. passim

iv

TABLE OF AUTHORITIES—Continued

Page

Alaska Stat. § 08.68.410 (1993) aed 25

Ariz. Rev. Stat. Ann. § 32-1601 (1993) setae 25

Colo. Rev. Stat. § 12-38-132 (1998)... 25

Del. Code Ann. tit. 24, § 1902 (1992) . a awe

D.C. Code Ann. § 2-3301.2 (1998)... 7 25

Fla. Stat. ch. 464.003 (1992)... 25

Ga. Code Ann. § 43-26-3 (Michie 1993) _ anes 25

Haw. Rev. Stat. § 457-2 (1993)... —

Ind. Code Ann. § 25-23-1-1.1 (Burns 1992) fees —

Ky. Rev. Stat. Ann. § 314.011(6)(d) (Baldwin

CT TO OE EA 25

Me. Rev. Stat. Ann. tit. 32, § 2102 (West 1992). 25

Md. Code Ann., Health-Occ. § 8-101 (1993). 25

Mich. Comp. Laws § 333.17201 (1992)... ; 25

ee en or ee sd. 25

Miss. Code Ann. § 73-15-5 (1991)... 25

Mo. Rev. Stat. § 335.016 (1992)... lta . 25

Mont. Code Ann. § 37-8-102 (1993)... . 24, 25

Neb. Rev. Stat. § 71-1, 132.05 (1992)... 28, OF

N.H. Rev. Stat. Ann. § 326-B:2 (1992)... 25

N.M. Stat. Ann. § 61-3-3 (Michie 1993)... 25

N.C. Gen. Stat. § 90-171.20 (1992) 25

N.D. Cent. Code § 43-12.1-02 (1993) oe 25

Ohio Rev. Code Ann. § 4723.02(B)(6) (Baldwin

EES IC oe 25

Okla. Stat. tit. 59, § 567.3a (1992) al ER eee 25

R.I. Gen. Laws § 5-34-3 (1992)... 24

S.C. Code Ann. § 40-33-10 (Law. Co-op. 1991) 25

S.D. Codified Laws Ann. § 36-9-3 (1993)... 25

Tex. Rev. Civ. Stat. Ann. art. 4518 (West 1993) . 25

Utah Code Ann. § 58-31-2 (1998)... 25

Vt. Stat. Ann. tit. 26, § 1572 (1992)... 25

Wash. Rev. Code § 18.88.0230 (1991)... 2h

Wash. Rev. Code § 18.135.010 (1991). ss 22

Wis. Stat. § 441.11 (1991-1992) | 25

Wyo. Stat. § 33-21-120 (1998)... =a 25

Second Notice of Proposed Rulemaking, 53 Fed.

Reg. 33,900 (1988) _ 20, 21, 23

Final Rule, 54 Fed. Reg. 16,336 (1989) a 20

>

v

TABLE OF AUTHORITIES—Continued

Page

Alaska Board of Nursing, Position Statement:

Activities of Unlicensed Nursing Personnel

REESE Eat. PEED 2b Allee Se nanan 25

American Nurses Association, Code for Nurses

with Interpretive Statements (1985)... 26

Colorado State Board of Nursing, Rules and Regu-

lations Regarding the Delegation of Nursing

Functions, Chapter XIII (1992) 0000 24, 25-26

Kentucky Board of Nursing, Advisory Opinion

Statement: Roles of Nurses in the Supervision

and Delegation of Nursing Acts to Unlicensed

RIE aE Ate BIE OL 24

Maine Board of Nursing, Regulations Relating to

Delegation by Registered Professional Nurses of

Selected Nursing Services to Licensed Practical

Nurses and Unlicensed Personnel, Chapter

I 24

Maryland Board of Nursing, Declaratory Ruling

RE EI i SE AIRE 25

Michigan Board of Nursing, Rules Regarding

Delegation, Rule 104.(2) (1989)... 24

Texas Board of Nurse Examiners, Delegation of

Selected Nursing Tasks by Registered Profes-

sional Nurses to Unlicensed Personnel, § 218

(1992) ......... Rl oe Ae he SE ETS LE eo siieaieenas 22, 24

LEGISLATIVE MATERIALS

Coverage of Nonprofit Hospitals Under National

Labor Relations Act, 1972: Hearings on H.R.

11357 Before the Subcomm. on Labor of the

Senate Comm. on Labor and Public Welfare,

92d Cong., 2d Sess. (1972) .. 9,10

Coverage of Nonprofit Hospitals Under National

Labor Relations Act, 1973: Heurings on S. 794

and S. 2292 Before the Subcomm. on Labor of

the Senate Comm. on Labor and Public Wel-

fare, 93d Cong., Ist Sess. (1973) 11

Extension of NLRA to Nonprofit Hospital Em-

ployees: Hearings on H.R. 1236 Before the

Special Subcomm. on Labor of the House Comm.

on Education and Labor, 93d Cong., 1st Sess.

FES AT ALG RSE TS Ne 12,13

vi

TABLE OF AUTHORITIES—Continued

Extension of NLRA to Nonprofit Hospital Em-

ployees: Hearings on H.R. 11357 Before the

Special Subcomm. on Labor of the House Comm.

on Education and Labor, 92d Cong., 1st and 2d

I a

H.R. Rep. No. 1252, 92d Cong., 2d Sess. (1972).

H.R. Rep. No. 1051, 93d Cong., 2d Sess. (1974)...

Legislative History of the Coverage of Nonprofit

Hospitals Under the National Labor Relations

Act, 1974, 93d Cong., 2d Sess. (1974)

S. Rep. No. 105, 80th Cong., Ist Sess. (1947) in

S. Rep. No. 766, 93d Cong., 2d Sess. (1974)... .

MISCELLANEOUS

Mary A. Blegen, et al., Who Helps You With Your

Work?, 92(1) American Journal of Nursing 26

RIERA RNPT Sie aap eae an ee a

Susan M. Kennerly, Implications of the Use of Un-

licensed Personnel: A Nursing Perspective,

16(5) Focus on Critical Care 364 (October

Laura R. Merker, et al., 1990 Utilization of Nurse

Extenders, American Hospital Association

Regulation of Nurses’ Aides, 9 Nursing & Health

Care 373 (September i988)... simeatibinahdatis

Page

7,8

12

14

7,14

5, 6

14

21

23, 26

21, 22

IN THE

‘Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1964

NATIONAL LABOR RELATIONS BOARD,

7 Petitioner,

HEALTH CARE & RETIREMENT CORPORATION OF AMERICA,

Respondent.

~

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF

AMERICAN NURSES ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

CONSENT TO FILING

This amicus curiae brief is filed pursuant to Supreme

Court Rule 37.3, with the written consent of all parties

in interest. Letters of consent have been filed with the

Clerk of this Court.

INTEREST OF THE AMICUS CURIAE

The American Nurses Association (“ANA”), a na-

tional labor organization and federation of registered

nurses, consists of 53 state and territorial constituent or-

ganizations with over 200,000 members. The question

before this Court is whether the National Labor Relations

Board reasonably determined that a nurse’s direction of

less-skilled employees in the exercise of professional judg-

2

ment and incidental to patient care does not make a nurse

a “supervisor” under Section 2(11) of the National Labor

Relations Act, 29 U.S.C. § 152(11).

The answer to this question will directly affect the

registered nurse members of ANA who oversee the work

of less-skilled employees. ANA testified before the 80th

Congress in support of the 1947 Taft-Hartley Amendment

which extended the coverage of the Act to prefessionals

such as registered nurses. Moreover, it wae ANA’s testi-

mony in support of the 1974 Health Care Amendments

to the Act that led to Congress’ express approval of the

Board test which is at issue here.’ If the court of appeals’

decision stands, almost all of the registered nurses pres-

ently represented by ANA’s constituent organizations will

be at risk of losing the protection of the Act.

SUMMARY OF ARGUMENT ?

The court of appeals, relying on its prior decisions in

Beverly California Corp. v. NLRB, 970 F.2d 1548, 1553

(6th Cir. 1992), and NLRB v. Beacon Light Christian

Nursing Home, 825 F.2d 1076, 1079 (6th Cir. 1987),

held that nurses who, in the exercise of their professional

judgment in the treatment of patients, direct nurses aides

in their delivery of health care, thereby act “in the in-

terests of the employer” within the meaning of § 2(11)

of the Act. The court below reached this conclusion be-

cause, in its view, it is “self-evidently in the best interest

of the employer to try to do a superior job of serving the

needs and interests of the employer’s customers.” Beverly

California Corp., 970 F.2d at 1553.

In this case, the Board applied the rule to licensed practical

nurses, but the test applies with even more force to registered

nurses who, unlike licensed practical] nurses, are professionals under

the Act. See NLRB v. Res-Care, Inc., 705 F.2d 1461, 1466 (7th Cir.

1983) ; Doctors’ Hosp. of Modesto, Inc., 183 NLRB 950, 951 (1970),

enf'd, 489 F.2d 772 (9th Cir. 1973); Presbyterian Medical Ctr.,

218 NLRB 1266, 1267 (1975).

2 To avoid duplication, we leave it to the Petitioner National

Labor Relations Board, whose position in this matter we fully

support, to state the case for the Court.

3

Such a reading of Section 2(11) “would swallow up

and displace almost the entirety of the professional-

employee inclusion” (NLRB v. Hendricks County Rural

Elec. Membership Corp., 454 U.S. 170, 185 (1981))

as regards nurses in the health care industry. The court

of appeals professed to find support for its conclusion in

the Act’s text and legislative history. It erred on both

scores. In 1947, Congress was at pains to exclude from

the coverage of the Act only those individuals who were

“truly supervisory,” and to extend the Act’s protections

to professionals like registered nurses whose work “jn-

volv[ed] the consistent exercise of discretion and judg-

ment in its performance,” and whose “special problems”

and “interest in maintaining certain professional stand-

ards” could be addressed in collective bargaining.

In hearings before both the 92nd and 93rd Congress,

ANA representatives urged Congress to insure that a

distinction be drawn between a registered nurse’s direction

of other employees in the exercise of professional judg-

ment incidental to the nurse’s treatment of patients, and

the exercise of supervisory authority in the interest of the

employer within the meaning of Section 2(11) of the

Act. In specific response to ANA’s concerns, both

branches of Congress noted in their respective Reports on

the 1974 Health Care Amendments that existing NLRB

decisions made that very distinction, and that Congress

“expects the Board to continue evaluating the facts of

each case in this manner when making its determinations”

regarding the supervisory status of registered nurses in

the health care industry. It is this very Board test (which,

as this Court has held, “Congress expressly approved in

1974” (NLRB v. Yeshiva Univ., 444 U.S. 672, 690 &

n.30 [(1980)])) that the decision below rejects.

Affirmance of the Sixth Circuit's holding that super-

vision exercised in accordance with professional, rather

than business norms is § 2(11) supervision, would deny

the protections of the Act to virtually all registered nurses

who work in hospitals and other health care facilities,

contrary to the intent of the 80th Congress in enacting

4

§ 2(12), and the intent of the 93rd Congress which

passed the 1974 Health Care Amendments. The over-

whelming majority of registered nurses today give pro-

fessional direction to nurses aides and other nursing per-

sonnel. Under professional standards, state regulations

and canons of ethics, registered nurses give such direction

and do so properly. Indeed, such direction is at the core

of that practice and without it, a registered nurse cannot

fully function as a professional. In short, the decision of

the Sixth Circuit, unless reversed by this Court, would

frustrate Congress’ goal of extending the protection of the

Act to registered nurses in the health care industry so as

to “ameliorate [their working] conditions and elevate the

standard of patient care.” Beth Israel Hosp. v. NLRB,

437 U.S. 483, 497-98 (1978).

ARGUMENT

INTRODUCTION

This case presents the question whether the test,

fashioned and consistently applied by the Board in the

health care industry to resolve the tensions between the

overlapping directives of $§2(11) and 2(12) of the

National Labor Relations Act (“the Act”), has a “reason-

able basis in law” and should be affirmed. Ford Motor

Co. v. NLRB, 441 U.S. 488, 497 (1979). In Part I, we

demonstrate that the Board’s accommodation of the com-

peting Sections 2(11) and 2(12) policies is consonant

with, if not compelled by, the Act and its legislative

history, and this Court’s precedent. In Part II, we estab-

lish that the reasoning of the court of appeals would deny

nurses the full panoply of rights afforded them by the

Act and, if followed, would have a substantial impact on

registered nurses, whose licensure and professional stand-

ards incorporate the direction of the work of less-skilled

employees incidental to the nurses’ treatment of patients.

5

I. THE DECISION BELOW CONFLICTS WITH THE

ACT, ITS LEGISLATIVE HISTORY AND THIS

COURT’S PRECEDENT

A. The Board’s Test Is Firmly Rooted In The Text

And Legislative History Of The Act

1. The 1947 Taft-Hartley Section 2(11) and 2(12)

Amendments

In defining the term “supervisor” in § 2(11), the 1947

Congress “exercised great care, desiring that the employees

[t]herein excluded from the coverage of the act be truly

supervisory.” S. Rep. No. 105, 80th Cong., Ist Sess. 19

(1947).* As regards the “professional” definition in

Section 2(12), Congress in 1947 was again “careful in

framing a definition to cover only strictly professional

groups such as engineers, chemists, scientists, architects,

and nurses.” Id. (emphasis supplied) .* Congress expressly

8 Section 2(11) of the Act, 29 U.S.C. § 152(11), defines a “super-

visor” as any person:

having authority, in the interest of the employer, to hire,

transfer, suspend, lay off, recall, promote, discharge, assign,

reward, or discipline other employees, or responsibly to direct

them, or to adjust their grievances, or effectively to recommend

such action, if in connection with the foregoing the exercise of

such authority is not of a merely routine or clerical nature,

but requires the use of independent judgment.

* Section 2(12) of the Act, 29 U.S.C. §152(12), provides that

the term “professional employee” means:

(a) any employee engaged in work (i) predominantly intel-

lectual and varied in character as opposed to routine mental,

manual, mechanical, or physical work; (ii) involving the con-

sistent exercise of discretion and judgment in its performance;

(iii) of such a character that the output produced or the result

accomplished cannot be standardized in relation to a given

period of time; (iv) requiring knowledge of an advanced type

in a field of science or learning customarily acquired by a

prolonged course of specialized intellectual instruction and

study in an institution of higher learning or a hospital, as

distinguished from a general academic education or from an

6

singled out professionals for coverage by the Act in part

because,

[a]lthough there has been a trend in recent years for

manufacturing corporations to employ many profes-

sional persons, including architects, engineers, scien-

tists, lawyers, and nurses, no corresponding recog-

nition was given by Congress to their special prob-

lems. Nevertheless such employees have a great

community of interest in maintaining certain profes-

sional standards.

Id. at 11.

2. The 1974 Health Care Amendments *

In the course of drafting the 1974 Health Care Amend-

ments, the 93rd Congress considered suggestions from a

number of labor organizations representing health care

professionals that the § 2(11) “supervisor” definition be

modified, so as either to exclude health care professionals

from its reach, or to make it plain that the exercise of

professional responsibilities was not “supervision” within

the meaning of that Section.

These suggestions echoed those made in the 92nd Con-

gress in connection with the House’s consideration of H.R.

11357, which would also have extended coverage of the

Act to nonprofit hospitals. ANA testified before the

apprenticeship or from training in the performance of routine

mental, manual, or physical processes; or

(b) any employee, who (i) has completed the courses of

specialized intellectual] instruction and study described in clause

(iv) of paragraph (a), and (ii) is performing related work

under the supervision of a professional person to qualify him-

self to become a professional employee as defined in paragraph

(a).

5 Health Care Amendments Act of 1974, Pub. L. No. 93-360, 88

Stat. 395 (1974).

® The House passed H.R. 11357 in August 1972, and forwarded

it to the Senate, which intended to hold brief hearings on the bill

7

House Special Subcommittee on Labor of the Committee

on Education and Labor in support of H.R. 11357." In

its testimony, ANA addressed the issue of “supervision”

in the context of the professional duties of a registered

nurse:

A professional must utilize his unique skill and

education within the bureaucratic structure in which

he finds himself. In yesterday’s world the registered

nurse both developed the nursing care plan for a

patient and completely carried it out. In today’s

health care facilities, most notably in hospitals, a

number of subprofessional categories carry some of

the functions involved in the care of the patient.

Thus the exigencies of the modern system of the

delivery of health care place the registered nurse to

a certain extent in a coordinating, directing and

teaching role as well as one of administering direct

care. The complexity of the system requires a certain

pyramiding of nurse positions to handle the various

aspects of this role.

H.R. 11357 Hearings at 59.

This complexity is a function of the mix of bureau-

cratic and professional authority structures in health care

facilities:

and obtain prompt floor action. During the Senate hearings, Sena-

tor Taft raised a number of concerns and, due to the lateness in

the Session, the Senate took no further action on the House-passed

bill during the 92nd Congress. An identical bill (again co-sponsored

by Representatives Thompson and Ashbrook) was introduced in the

House in the 93rd Congress. The 1974 Health Care Amendments

were a legislative compromise among this bill and two Senate bills

introduced by Senators Cranston and Javits, and Senator Taft,

respectively. See Legislative History of the Coverage of Nonprofit

Hospitals Under the National Labor Relations Act, 1974, 93d Cong.,

2d Sess. 105-12, 270, 290, 457-65 (1974) (hereinafter cited as

“1974 Legislative History’).

7 Extension of NLRA to Nonprofit Hospital Employees: Hearings

on H.R. 11857 Before the Special Subcomm. on Labor of the House

Comm. on Education and Labor, 92d Cong., Ist and 2d Sess. 45,

49-64 (1972) (hereinafter cited as “H.R. 11357 Hearings”) (state-

ment of ANA officials Muriel A. Poulin and Alice L. Ahmuty).

8

Most businesses are organized along bureaucratic

lines: there is an hierarchic authority structure in

which persons in the top-ranked positions have au-

thority to direct the activities of those below them.

In contrast, the professional model is characterized

by autonomy and self-determination: * * *

* a * *

This organizational model mixing two authority

systems has proved perfectly valid. However, it is

not the model with which labor boards customarily

deal. nor is it the model upon which regulations

developed for bureaucratically structured industry

can be successfully imposed without accommodation.

This organizational context for nursing influences

the relationship of the nurse to everyone else in the

health care facility—to the physician, to other nurses,

to subprofessionals and to the employer.

Id. at 60-61.

With respect to the application of the Section 2(11)

definition of “supervisor” to the professional registered

nurse, ANA official Poulin noted:

A professional nurse, by definition of most State

laws of registration, is a supervisor of the practice

of a group of people, so that in nursing, for example,

we have clinical supervision, which would be any

professional nurse such as myself, working with a

group of people responsible for your care.

I am actually the professional person, you see,

responsible for all your care, but I may have 10

people working with me. I am, in fact, a clinical

supervisor of the area. I am not an administrative

supervisor. I do not hire and fire these 10 people.

If one of the 10 people is unsatisfactory and I am

responsible for your care, I am going to do every-

thing I can to make sure she doesn’t work for my

patients.

So there is a distinction between supervision in

professions and areas that are not professional.

Id. at 67.

9

In her prepared Statement on H.R. 11357 to the Sub-

committee on Labor of the Senate Committee on Labor

and Public Welfare,” ANA official Munger elaborated on

the distinction between § 2(11) “supervision” and the

exercise of professional responsibilities:

Almost all nurses exercise independent judgment

and professional authority to direct other employees.

Few, however, possess the “bureaucratic” authority

envisioned in the NLRA definition of “supervisor”—

to effectively recommend hiring, firing, promotion

— and discharge. In nursing, the term “supervisor”

should be limited to those registered nurses who truly

and substantially possess and exercise such authority

over other registered nurses. In present-day hospitals,

such true supervisors are typically limited to the

director of nursing and her immediate assistants and

associates.

Whatever transitory or limited authority nurses

have over other employees is often not “supervisory,”

but rather a manifestation of their 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 physician

should be considered a supervisor because nurses

respond to his directions, or an attorney should be

considered a supervisor because a secretarial staff is

available to work with him.°

For that reason,

Whatever the rules for determining the supervisory

status of non-professionals, great caution must be

* As noted above, the Senate also held hearings on the House-

passed H.R. 11357.

® Coverage of Nonprofit Hospitals Under National Labor Rela-

tions Act, 1972: Hearings on H.R. 11357 Before the Subcomm. on

Labor of the Senate Comm. on Labor and Public Welfare, 92d

Cong., 2d Sess. 11, 13, 15-16 (1972) (emphasis added) (hereinafter

cited as “Senate Hearings on H.R. 11357”) (statement of Mary

Munger, R.N., Vice Chairman, ANA Commission on Economic and

Genera] Welfare).

10

exercised in applying those rules to professionals in

order to avoid confusing the requisite judgment and

discretion of professionals with the directional re-

sponsibilities of supervisors and thereby depriving the

former of rights Congress intended they have. While

registered nurses in the exercise of their professional

responsibilities give direction and assistance to other

nursing personnel such as LPN’s and aides, they do

not exercise true supervisory responsibilities. Regis-

tered nurses must exercise independent judgment in

making decisions in regard to patient care but only

routine and minimal authority with respect to per-

sonnel matters. The fact that, as professionals, they

routinely lead the work of less skilled employees does

not make them supervisors within the Act. /t is

important that the responsibility of registered nurses

to exercise independent judgment in supervising

patient care not be confused with the question of

personnel supervision under the Act. By law, patient

care supervision is a principal duty of the registered

nurse.

Senate Hearings on H.R. 11357 at 17-18 (emphasis

supplied).

ANA representatives took the same position in the

hearings in the House and Senate on the 1974 Health

Care Amendments to the Act. In her prepared Statement

submitted to the Subcommittee on Labor of the Senate

Committee on Labor and Public Welfare, ANA official

Bonnie Graczyk stressed the difference between registered

nurses’ professional direction and § 2(11) supervision:

The problem arises out of a strict interpretation

of the term “supervisor” as defined in Section 2(11)

of the NLRA, when applied to the work of a pro-

fessional nurse. The term as originally defined was

intended for application to the business or industrial

setting, where a supervisor exercises a considerable

amount of authority to control and direct the work

of others. This is not true for the work of nurses,

or for that matter, the work of all professional em-

11

ployees. Every nurse while practicing her profession

exercises her own independent judgment. Legally,

every nurse is responsible for her own acts. Even a

doctor's order cannot immunize the nurse from such

responsibility or from suit by an injured patient.

The nurse supervisor may advise and assist other

nurses in their practice, but she cannot “direct” their

practice. In view of this, any mechanistic interpre-

tation of the term “supervisor” as is normally relevant

and valid in business or industrial parlance would

result in the exclusion of a large number of practic-

ing nurses from the coverage of NLRA.

The health team providing the actual care to pa-

tients within the unit may consist of several types of

personnel—the nursing aide, the practical nurse and

the registered nurse. The registered nurse, as the

professional member of this group, provides the di-

rection for care of the patient. * * * The nurse

utilizes professional judgment in providing direct

care to patients and in evaluating whether good and

adequate patient care is being given by others,

whether medical directives are being carried out ap-

propriately and whether records are adequately main-

tained within the unit so that continuity of patient

care can go on despite the shifts in personnel.”®

ANA official Hargett’s testimony in the House paral-

elled Ms. Graczyk’s Senate testimony:

By law, patient care supervision is a principal duty

of the registered nurse. By legal definition of nursing

practice in State’s nursing practice acts, the registered

nurse is required to assume responsibility for exer-

cising independent judgment and discretion in rela-

tion to patient care needs.

1° Coverage of Nonprofit Hospitals Under National Labor Rela-

tions Act, 1978: Hearings on S. 794 and S. 2292 Before the

Subcomm, on Labor of the Senate Comm. on Labor and Public

Welfare, 93d Cong., Ist Sess. 110, 120-21 (1973) (emphasis added)

(statement of Bonnie P. Graczyk, R.N., Member, ANA Commission

on Economic and General Welfare).

12

It would make no sense, and would defy Congress’

expressed intention, that registered nurses were to be

accorded rights as professionals under the act, to

hold that the fact of patient care supervision, which

goes toward the registered nurse’s professional status,

also has the effect of making her a supervisor under

the act.”

ANA official Alice L. Ahmuty, who accompanied Mr.

Hargett before the House Special Subcommittee, was di-

rected to the following statement in the House Report on

H.R. 11357 (the bill which passed the House in the prior

Congress) with respect to the § 2(11) issue:

Testimony was also taken from most of the unions

which represent hospital employees. They uniformly

supported H.R. 11357, although the American

Nurses Association urged the subcommittee to con-

sider a special problem faced by nurses. The ANA

urged that industrial concepts of “supervisor” not

be carried over into the hospital industry, possibly

leading to the exclusion of head nurses or charge

nurses from bargaining units. These nurses are pres-

ently included in bargaining units in some States.

Your committee’s intent in extending NLRA cover-

age to nonprofit hospitals is that nurses as well as

all other hospital employees enjoy the rights guar-

anteed 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 National

Labor Relations Act.

H.R. Rep. No. 1252, 92d Cong., 2d Sess. 5 (1972).

The following colloquy then took place between Ms.

11 Extension of NLRA to Nonprofit Hospital Employees: Hear-

ings on H.R. 1236 Before the Special Subcomm. on Labor of the

House Comm. on Education and Labor, 93d Cong., 1st Sess. 22-23

(1973) (hereinafter cited as “Hearings on H.R. 1236") (statement

of Charles E. Hargett, R.N.. Member, ANA Commission on Eco-

nomic and General Welfare).

13

Ahmuty and Representatives Ashbrook and Thompson

(the co-sponsors ):

MR. ASHBROOK. I have several questions. Do

you think the statement in the report [on H.R. 11357]

was sufficient for legislative history? Does it cover

the particular problem of your relationship to the

normal concepts of “supervisor”? Do you think

specific language should be incorporated in the legis-

lation?

MISS AHMUTY. I would be more strongly in

favor of having some specific modification of the

term “supervisor” in the act as it relates specifically

to registered nurses. That would be our most favored

position. However, we recognize this does some-

times pose problems.

MR. ASHBROOK. Those are my only questions.

MR. THOMPSON. We attempted—and you state

it in your statement— in the report last year to deal

with this problem.

In devising the report this year we shall attempt

to strengthen that language. One major difficulty is

in drafting language to include in such a bill. The

second is in making legislative history, which we can

do in the report and in colloquy on the floor, which

would have the effect of calling the Board’s attention,

in the likely event this becomes law, to that par-

ticular situation.

I talked with the new solicitor of the Board, who

was formerly minority counsel to this committee and

is a very able man. I also talked to members of the

Board, and they would anticipate that even absent

specific statutory language with a strong legislative

history, they would be able to handle this supervisor

problem. They are quite aware of it.

Hearings on H.R. 1236 at 23-24 (emphasis added).

True to Chairman Thompson's promise that the legisla-

tive history of the 1974 Health Care Amendments on this

14

point would be “strengthen[ed],” the House and Senate

Reports both contained the following statement:

SUPERVISORS

Various organizations representing health care pro-

fessionals have urged an amendment to Section 2(11)

of the Act so as to exclude such professionals from

the definition of “supervisor”. The Committee has

studied this definition with particular reference to

health care professionals, such as registered nurses,

interns, residents, fellows, and salaried physicians

and concludes that the proposed amendment is un-

necessary because of existing Board decisions. The

Committee notes that the Board has carefully avoided

applying the definition of “supervisor” to a health

care professional who gives direction to other em-

ployees in the exercise of professional judgment,

which direction is incidental to the professional's

treatment of patients, and thus is 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 its determinations.

S. Rep. No. 766, 93d Cong., 2d Sess. 6 (1974), and H.R.

Rep. No. 1051, 93d Cong., 2d Sess. 7 (1974), reprinted

in 1974 Legislative History at 13 & 275, respectively

(emphasis added).

B. Both Congress And This Court Have Approved The

Board’s Longstanding Interpretation Of The Act

As this Court observed in NLRB v. Yeshiva University,

444 U.S. 672 (1980), the “existing Board decisions,” to

which the above Congressional Reports referred, recog-

nized that:

employees whose decisionmaking is limited to the

routine discharge of professional duties in projects

to which they have been assigned cannot be excluded

15

from coverage even if union membership arguably

may involve some divided loyalty.”

= For this reason, architects and engineers functioning as

project captains for work performed by teams of professionals

are deemed employees despite substantial planning responsi-

bility and authority to direct and evaluate team members.

See General Dynamics Corp., 213 N.L.R.B., at 857-858;

Wurster, Bernardi & Emmons, Inc., 192 N.L.R.B. 1049, 1051

(1971) ; Skidmore, Owings & Merrill, 192 N.L.R.B. 920, 921

(1971). See also Doctors’ Hospital of Modesto, Inc., 183

N.L.R.B. 950, 951-952 (1970), enf’d, 489 F.2d 772 (CA9

1973) (nurses); National Broadcasting Co., 160 N.L.R.B.

1440, 1441 (1966) (broadcast newswriters).

Id. at 690 & n.30. And, “[iJn the health-care context, the

Board asks in each case whether the decisions alleged to

be managerial or supervisory are ‘incidental to’ or ‘in

addition to’ the treatment of patients, a test Congress

expressly approved in 1974. §S. Rep. No. 93-766, p. 6

(1974).” Yeshiva, 444 U.S. at 690 n.30 (emphasis

added). Accordingly,

[o]nly if an employee’s activities fall outside the

scope of the duties routinely performed by similarly

situated professionals will he be found aligned with

management.

Id. at 690 (emphasis added). In view of this explicit

Congressional approval, this Court found that these Board

decisions, including the Doctors’ Hospital of Modesto de-

cision on registered nurses, “accurately capture[{d] the in-

tent of Congress.” Id.

In Doctors’ Hospital of Modesto, Inc., 183 NLRB 950

a enf'd, 489 F.2d 772 (9th Cir. 1973), the Board

eld:

the Employer’s registered nurses are a highly trained

group of professionals who normally inform other,

lesser skilled, employees as to the work to be per-

formed for patients and insure that such work is

done. But, their daily on-the-job duties and authority

in this regard are solely a product of their highly

16

developed professional skills and do not, without

more, constitute an exercise of supervisory authority

in the interest of their Employer.

Id. at 951 (emphasis added). The Board’s test in Doctors

Hospital of Modesto was routinely and uniformly applied

in registered nurse cases prior to the passage of the 1974

Amendments. See, e.g., Sherewood Enters., Inc., 175

NLRB 354 (1969). And, not surprisingly in view of

the legislative history recounted above, this test has like-

wise been consistently utilized by the Board in cases de-

cided subsequent to the 1974 Amendments. Indeed, in

the first decisions involving registered nurses the Board

issued subsequent to the 1974 Amendments, the Board

specifically adverted to that legislative history as confirma-

tion of the correctness of its approach. See Wing Memo-

rial Hosp. Ass'n, 217 NLRB 1015 (1975); Sutter Com-

munity Hosps. of Sacramento, Inc., 227 NLRB 181, 192

(1976).

The court below simply ignored this legislative history

and, as Judge Posner observed in Children’s Habilitation

Center, Inc. v. NLRB, 887 F.2d 130, 134 (7th Cir. 1989),

overlooked the “most important point” in this case, namely

that “nurses are professionals and their exercise of super-

vision is guided by professional training and norms.”

that reason,

[s]upervision exercised in accordance with profes-

sional rather than business norms is not supervision

within the meaning of the supervisor provision, for

no issue of divided loyalties is raised when super-

vision is required to conform to professional stand-

ards rather than to the company’s profit-maximizing

objectives.

Id.

The Sixth Circuit’s erroneous conclusion flowed from

its failure to harmonize § 2(11) with §2(12). Judge

Posner is also instructive on this point:

Although section 2(11)—at least its first part, up

to “if’——appears to define “supervisor” broadly, the

For —

17

appearance is deceptive. Supervision in the elemen-

tary sense of directing another's work is excluded; a

supervisor under the statute must have authority over

another’s job tenure and other conditions of employ-

ment. This distinction is important because the Act

allows professionals—doctors, teachers, etc.—to bar-

gain collectively, vet most professionals have some

supervisory responsibilities in the sense of directing

another's work—the lawyer his secretary, the teacher

his teacher's aide, the doctor his nurses, the regis-

tered nurse her nurse’s aide, and so on. See NLRB

v. Yeshiva University, 444 U.S 672, 690 n. 30 * * *

(1980). The distinction between supervision in the

Statutory sense and work direction by a professional

is mentioned with approval in the legislative history

of the 1974 Health Care Act Amendments, which

put nonprofit health care institutions under the Na-

tional Labor Relations Act though without amend-

ing section 2(11).

NLRB vy. Res-Care, Inc., 705 F.2d 1461, 1465 (7th Cir.

1983) (emphasis added; citations omitted); see also

Children’s Habilitation Center, 887 F.2d at 131 (Section

2(11) is a “term of art” since the statutory definition

“allows an employee to do some supervision without

thereby becoming a supervisor under the Act. This fre-

quently happens when the employee is a professional act-

ing in accordance with professional norms. Examples are

a lawyer directing paralegals and a registered nurse di-

recting nurse’s aides.”): Misericordia Hosp. Medical Ctr.

v. NLRB, 623 F.2d 808, 816 (2d Cir. 1980) (NLRB’s

test “represents an attempt by the Board to resolve the

tension between the ‘overlapping directives’ of § 2(12)

* * * and § 2(11)”).

In contrast to the Sixth Circuit, which paid no heed

to the critical distinction Congress drew “between super-

vision in the statutory sense and work direction by a

professional” (Res-Care, 705 F.2d at 1465), the Board’s

test rests upon it. As we have shown, the NLRB has

18

routinely followed this rule, and this Court “cannot ignore

this consistent, longstanding interpretation of the NLRA

by the Board.” NLRB v. Hendricks County Rural Elec.

Membership Corp., 454 U.S. 170, 189-90 (1981). In-

deed, such an unvarying construction of the Act by the

agency charged with its execution “ ‘should be followed

unless there are compelling indications that it is wrong,

especially where Congress has refused to alter the ad-

ministrative construction.’” Jd. at 177 (quoting Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969)).

Here, it is clear that Congress “intended to leave the

Board’s historic practice” of distinguishing between pro-

fessional and supervisory responsibilities “undisturbed.”

Id. at 185. Given Congress’ “acceptance of that practice”

(id. at 190), and this Court’s recognition that the NLRB’s

rule “accurately capture[s] the intent of Congress”

(Yeshiva, 444 U.S. at 690), the Board’s test should be

affirmed as “rational and consistent” with the Act. Fall

River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27,

42 (1987).

II. THE RATIONALE OF THE COURT OF APPEALS

WOULD EXCLUDE THE MAJGRITY OF REGIS-

TERED NURSES FROM THE PROTECTION OF

THE ACT, CONTRARY TO THE INTENT OF

SECTION 2(12) AND THE 1974 HEALTH CARE

AMENDMENTS

A. Congress Enacted § 2(12) And The Health Care

Amendments Specifically To Allow Registered

Nurses To Bargain Collectively And To Improve

Patient Care

As shown in Part I above, Congress added § 2(12) to

the Act expressly to extend the statute’s protections to

professionals such as registered nurses, in recognition of

their “special problems” and “great community of interest

in maintaining certain professional standards.” The 1974

Health Care Amendments were likewise designed to im-

19

prove the working conditions of registered nurses in non-

profit hospitals by allowing them to bargain collectively:

The elimination of the nonprofit-hospital exemp-

tion reflected Congress’ judgment that hospital care

would be improved by extending the protection of

the Act to nonprofit health-care employees. Congress

found that wages were low and working conditions

poor in the health-care industry, and that as a result,

employee morale was low and employment turnover

high. Congress determined that the extension of

organizational and collective-bargaining rights would

ameliorate these conditions and elevate the standard

of patient care.

Beth Israel Hosp. v. NLRB, 437 U.S. 483, 497-98 (1978)

(footnotes omitted).

Events subsequent to the passage of the 1974 Amend-

ments have confirmed Congress’ judgment that allowing

registered nurses in nonprofit hospitals to bargain collec-

tively would help alleviate the chronic nursing shortage,

ameliorate nurses’ working conditions and improve pa-

tient care. In its exhaustive rulemaking proceeding on

bargaining units in the health care industry (see generally

American Hosp. Ass'n v. NLRB, USS. , ll

S. Ct. 1539 (1991)), the Board found that:

It is common knowledge, and the record substan-

tiated, that currently there is an unprecedented and

severe nursing shortage. Some hospitals have dele-

gated some traditional! RN functions, not reserved

to RNs by law, to employees with no RN training.

Additionally, hospitals currently have more seriously

ill patients (higher acuity) than historically reported.

Less qualified nurses, and fewer nurses, will be forced

to attend to more seriously ill patients, leading to a

lower level of care and more stress for the remain-

ing RNs who may then opt out of nursing.

Nurses testified that they view collective bargain-

ing, in their own unit, as the vehicle for improve-

20

ment in their working conditions and for allowing

them a voice in patient care. Additionally, hospitals

are trying innovative proposals for nurses: opening

contracts for them alone, raising wages, setting week-

end differentials.

Second Notice of Proposed Rulemaking, 53 Fed. Reg.

33,900, 33,916 (1988) (citations omitted).

B. Under The Court Of Appeals’ Approach, Most Reg-

istered Nurses Would Be Deprived Of Rights Guar-

anteed Them By The Act

In this Part, we demonstrate that the Sixth Circuit's

analysis applies to all registered nurses (who comprise

the overwhelming majority of professionals in hospitals),

because the duties the court of appeals found “super-

visory” are performed by nurses under their profes-

sional norms and state nursing regulations. As a con-

sequence, acceptance of the Sixth Circuit’s view would

sweep registered nurses “outside the Act in derogation

of Congress’ expressed intent to protect them” in § 2(12)

(Yeshiva, 444 U.S. at 690), so as to improve their work-

ing conditions and “elevate the standard of patient care”

through collective bargaining. Beth Israel, 437 U.S. at

497-98.

1. The court of appeals’ decision would have wide-

spread impact in the industry

The number of registered nurses in health care facili-

ties, the rapid increase in the utilization of unlicensed

12 See also Final Rule, 54 Fed. Reg. 16,336, 16,341 (1989), where

the Board stated:

On January 19, 1989, the Secretary of Health and Human

Services made public the report of his Commission on Nursing.

This Commission was an advisory panel appointed to examine

reports of a widespread shortage of registered nurses, and to

make recommendations for resolving the shortage. We have

examined the Commission’s Report and find that it supports

our observations in NPR II concerning the nursing shortage,

unique problems confronting nurses, and the special need of

nurses for their wage compression to be alleviated.

21

nursing personnel and the nurse’s duty as a professional

to direct the nursing tasks of these employees, all combine

to make the Sixth Circuit’s decision momentous for the

registered nurse. We address each of these points in turn

below.

First, registered nurses not only comprise approximately

23% of a hospital's entire workforce, but as “the largest

professional group in any hospital,” may “outnumber

other professionals by a ratio of 4 to 1 or more,” and

typically constitute 80% of the professionals in a hospital.

Second Notice of Proposed Rulemaking, 53 Fed. Reg.

33,900, 33,914 (1988).

/ Second, in recent years there has been an exponential

increase in the use by health care facilities of unlicensed

nursing assistants to supplement their nursing staff.’

This explosion is by no means over, and by the year

2000, there may be as many as 433,000 new jobs for

nurses aides alone.’ According to the American Hos-

pital Association, approximately 97% of its member hos-

pitals already employ nursing aides or nurse extenders.”

In acute care hospitals, 82% of registered nurses work

with unlicensed nurse extenders. And, in long term care

facilities, such as nursing homes, 98% of nurses in such

facilities are teamed with unlicensed nurse extenders."

As the use of nursing aides has increased, their duties

have expanded to include tasks which had historically

8 Mary A. Blegen, et al., Who Helps You With Your Work?,

92(1) American Journal of Nursing 26 (January 1992).

Susan C. Reinhard, Jurisdictional Control: The Regulation

of Nurses’ Aides, 9 Nursing & Health Care 373 (September 1988).

* Laura R. Merker, et al., 1990 Utilization of Nurse Extenders,

American Hospital Association 3 (1991) (“AHA Study”). As this

study reflects, the term “nurse extender” encompasses such posi-

tions-as nurse assistant, porter/orderly, clerk/secretary, intern/

nursing student, special technician and monitor technician. /d.

16 Blegen, supra note 13, at 26-27.

22

been the province of the registered nurse. Thus, nursing

assistants and aides may be delegated certain nursing

tasks, such as the “(1) non-invasive and non-sterile treat-

ments * * *; (2) the collecting, reporting, and documen-

tation of data including, but not limited to: (A) vital

signs, height, weight, intake and output * * *; (B) changes

from baseline data established by the RN; * * * [and]

(3) ambulation, positioning, and turning * * *.”'? Some

assistants may also have the authority to “administer skin

tests and * * * injections and to perform minor invasive

procedures to withdraw blood.”

Third, since responsibility for total patient care rests

with the registered nurse (see Section II.B.2 below), this

nearly universal resort to nursing assistants and aides has

led to equally widespread direction of these employees by

registered nurses.’” Registered nurses’ direction of the

work of these nursing aides and assistants in the exercise

of professional judgment is incidental to their care of

patients and a function of their professional responsibility.

See Section II.B.2 below.

In light of the pervasive use of unlicensed nursing

personnel in hospitals, the expanding range of these

employees’ duties and the registered nurses’ profes-

sional obligation to direct their work inthe interests

of patient care, the court of appeals’ rejection of the

Board’s rule would cast most registered nurses outside the

shelter of the Act. Should that occur, nearly one-fourth of

a hospital’s entire workforce, and four-fifths of its profes-

sional employees, would be § 2(11) supervisors, a result

which cannot be squared with the intent of either § 2(12)

or the 1974 Health Care Amendments. See Res-Care,

17 Texas Board of Nurse Examiners, Delegation of Selected Nurs-

ing Tasks by Registered Professional Nurses to Unlicensed Per-

sonnel, § 218 (1992); see also Alaska Board of Nursing, Position

Statement: Activities of Unlicensed Nursing Personnel (1987).

18 Wash. Rev. Code § 18.135.010 (1991).

19 AHA Study, supra note 15, at 6, 7.

23

705 F.2d at 1468 (if licensed practical nurses classified as

supervisors, “almost one-third of the nursing home’s staff

would be barred from the protections of the Act”).

2. In finding nurses to be statutory supervisors

with no rights under the Act, the court of ap-

peals relied on the very duties of registered

nurses that bring them within the Act’s protec-

tions as professionals

The Sixth Circuit failed to recognize that “no issue of

divided loyalties is raised when supervision is required

to conform to professional standards rather than to the

company’s profit-maximizing objectives.” Children’s Ha-

bilitation Center, 887 F.2d at 134. As we show next,

because state regulation and the standards of the nursing

profession include such supervision as an integral part of

the practice of nursing, these activities fall within “the

scope of the duties routinely performed by similarly situ-

ated professionals,” and do not constitute Section 2(11)

“supervision.” Yeshiva, 444 U.S. at 690.

Most state nurse practice acts, and regulations and

advisory opinions promulgated thereunder, “clearly iden-

tify the registered nurse as the individual charged with

the ultimate responsibility for directing the provision of

nursing care,” including the care given by aides.” Thus,

in Nebraska, “[t]he practice of nursing by a registered

nurse shall mean assuming responsibility and account-

ability for nursing actions which include * * * super-

vising, delegating, and evaluating nursing activities.”

Neb. Rev. Stat. § 71-1,132.05 (1992). Similarly, in

20 Susan M. Kennerly, Implications of the Use of Unlicensed Per-

sonnel: A Nursing Perspective, 16(5) Focus on Critical Care 364,

367 (October 1989).

Nurses “are required to follow * * * state nurse practice acts”

which define and regulate nursing practice. Second Notice of Pro-

posed Rulemaking, 53 Fed. Reg. 33,900, 33,912 (1988). Authority

to issue licenses, rules, regulations and advisory opinions under

these acts rests with the state boards of nursing.

24

Indiana, a registered nurse “bears primary responsibility

and accountability for nursing practices.” Ind. Code Ann.

§ 25-23-1-1.1 (Burns 1992). And in Hawaii, the regis-

tered nurse “shall be accountable and responsible to the

consumer for the quality of nursing care rendered.”

Haw. Rev. Stat. § 457-2 (1993); see also Mont. Code

Ann. § 37-8-102 (1993) (same); R.I. Gen. Laws § 5-34-3

(1992) (same). Also, in Delaware, the “registered nurse

* * * bears primary responsibility and accountability for

nursing practices.” Del. Code Ann. tit. 24, § 1902

(1992).

This responsibility for the patient’s total nursing care

imposes an affirmative duty on the registered nurse to

supervise or direct the nursing duties of nursing assistants.

Indeed, the very definition of the nurse as a professional

recognizes that the nurse’s scope of practice “includes the

teaching, direction, and supervision of less skilled person-

21 See also Kentucky Board of Nursing, Advisory Opinion State-

ment: Roles of Nurses in the Supervision and Dejegation of Nurs-

ing Acts to Unlicensed Personne! 3 (1992) (“When the registered

nurse delegates selected nursing acts, the responsibility and ac-

countability of total nursing care of an individual remains with

the registered nurse.) ; Colorado State Board of Nursing, Rules

and Regulations Regarding the Delegation of Nursing Functions,

Chapter XIII, Rule 2 (1992) (“The professional nurse is responsi-

ble for and accountable * * * for the quality of nursing care he or

she provides either directly or through the delegated care provided

by others.”); Texas Board of Nurse Examiners, Delegation of

Selected Nursing Tasks by Registered Professional Nurses to Un-

licensed Personnel, § 218.1 (1992) (“The registered professional

nurse (RN) is responsible for the nature and quality of all nursing

care that a client receives under his/her direction.”) ; Maine Board

of Nursing, Regulations Relating to Delegation by Registered Pro-

fessional Nurses of Selected Nursing Services to L censed Practical

Nurses and Unlicensed Personnel, Chapter 5(1)(A) (1983) (“The

registered professional nurse is responsible for the nature and

quality of all nursing care that a patient receives.”); Michigan

Board of Nursing, Rules Regarding Delegation, Rule 104.(_)

(1989) (“The registered nurse shall bear ultimate responsibility

for the performance of nursing acts, functions or tasks performed

by the delegatee within the scope of the delegation.”).

ae

25

nel in the performance of delegated nursing activities.”

Mich. Comp. Laws § 333.17201 (1992); see also Ken-

tucky Nurse Practice Act, Ky. Rev. Stat. Ann. § 314.011

(6)(d) (Baldwin 1993) (“Registered nursing practice”

is “the performance of acts requiring substantial special-

ized knowledge, judgment, and nursing skill” including

“[t]he supervision, teaching of, and delegation to other

personnel in the performance of activities relating to nurs-

ing care.”): Ohio Rev. Code Ann. § 4723.02(B)(6)

(Baldwin 1993) (“Practice of nursing as a registered

nurse” encompasses the provision of nursing care requir-

ing “specialized knowledge. judgment. and skill,” and

specifically, the “[t]eaching, administering, supervising.

delegating, and evaluating nursing practice.”).™

State boards of nursing regulations are to the same

effect. See, e.g., Alaska Board of Nusing, Position State-

ment: Activities of Unlicensed Nursing Personnel

(1987) (“delegation of some nursing tasks is a legally

accepted part of nursing practice”); Marvland Board of

Nursing, Declaratory Ruling 92-1 (1992) (“The Board

of Nursing considers it within the scope of practice of a

licensed nurse to delegate selected nursing tasks to un-

licensed personnel * * *.”); Colorado State Board of

22 See also Alaska Stat. § 08.68.410 (1993); Ariz. Rev. Stat. Ann.

§ 32-1601 (1993); Colo. Rev. Stat. § 12-38-132 (1993); Del. Code

Ann. tit. 24, § 1902 (1992); D.C. Code Ann. § 2-8301.2 (1993);

Fla. Stat. ch. 464.003 (1992); Ga. Code Ann. § 43-26-3 (Michie

1993) ; Haw. Rev. Stat. § 457-2 (1993) ; Ind. Code Ann. § 25-23-1-1.1

(Burns 1992); Me. Rev. Stat. Ann. tit. 32, § 2102 (West 1992):

Md. Code Ann., Health-Occ. § 8-101 (1993); Minn. Stat. § 148.171

(1992) ; Miss. Code Ann. § 73-15-5 (1991); Mo. Rev. Stat. § 335.016

(1992); Mont. Code Ann. § 37-8-102 (1993); Neb. Rev. Stat. § 71-1,

132.05 (1992); N.H. Rev. Stat. Ann. § 326-B:2 (1992); N.M. Stat.

Ann. §61-3-3 (Michie 1993); N.C. Gen. Stat. § 90-171.20 (1992) :

N.D. Cent. Code § 43-12.1-02 (1993); Okla. Stat. tit. 59, § 567.3a

(1992); S.C. Code Ann. § 40-33-10 (Law. Co-op. 1991); S.D. Codi-

fied Laws Ann. § 36-9-3 (1993); Tex. Rev. Civ. Stat. Ann. art. 4518

(West 1993); Utah Code Ann. § 58-31-2 (1993) ; Vt. Stat. Ann. tit.

26, § 1572 (1992); Wash. Rev. Code § 18.88.030 (1991); Wis. Stat.

§ 441.11 (1991-1992); Wyo. Stat. § 33-21-120 (1993).

26

Nursing, Rules and Regulations Regarding the Delegation

of Nursing Fus<ions, Chapter XIII, Rule 2 (“Supervision

of personnel asc ciated with nursing functions is included

in the legal definition of the practice of professional nurs-

ing.”). Accordingly, a nurse’s supervision in this regard:

is exercised in accordance with a professional judg-

ment as to the best interests of the patient rather

than a managerial judgment as to the employer’s

best interests. It is no different from a doctor’s tell-

ing his nurses which patients to provide what care

to, which is not supervision under the statute.

Res-Care, 705 F.2d at 1468.

Moreover, “[b]Jecause * * * unlicensed individuals * * *

function in a contributory nursing role that requires their

reporting directly to nurses in the practice setting * * *,”

the realities of a registered nurse’s duties under the scope

of professional nursing practice encompass the oversight

and supervision of nursing assistants and aides.“ This

supervisory role in furtherance of patient care also holds

the nurse “legally accountable for assessing the capabilities

of licensed and unlicensed nursing personnel to assure that

only those individuals who are truly qualified are dele-

gated responsibility for carrying out specific aspects of

nursing care.” ** Such professional evaluation assessments,

of course, ar not indicia cf § 2(11) supervisory status,

but are part of the nurse’s “routine discharge of profes-

sional duties.” Yeshiva, 444 U.S. at 690 & n.30.

The ANA Code for Nurses, which sets out the canon

of ethics of professional nurses, also obliges nurses ap-

propriately to direct the work of nursing assistants in

furtherance of the nurses’ proper care and treatment of

their patients.” Thus, Section 6.4 of the Code provides:

23 Kennerly, supra note 20, at 367.

24 Jd.

25 American Nurses Association, Code for Nurses with Interpre-

tive Statements (1985). This Code imposes upon nurses an affirma-

27

Inasmuch as the nurse is accountable for the quality

of nursing care rendered to clients, nurses are ac-

countable for the delegation of nursing care activities

to other health workers. Therefore, the nurse must

assess individual competency in assigning selected

components of nursing care to other nursing service

personnel. The nurse should not delegate to any~-

member of the nursing team a function for which

that person is not prepared or qualified. Employer

policies or directives do not relieve the nurse of

accountability for making judgments about the dele-

gation of nursing care activities.

We submit it is nothing short of “extraordinary” for

the court of appeals to rely on the professional standards,

regulations and ethical obligations which make a nurse a

§$ 2(12) professional, as its justification for finding nurses

to be supervisors, if only because such a reading of the

Act “would swallow up and displace almost the entirety

of the professional-employee inclusion” for registered

nurses. Hendricks, 454 U.S. at 185. This Court rejected

such an approach in Yeshiva, and should do so again here.

tive duty to “live[] up to the highest ethics of [this] most noble

profession.” Churchill v. Waters, 977 F.2d 1114, 1124-25 (7th Cir.

1992), cert. granted, 113 S. Ct. 2991 (1993).

28

CONCLUSION

For the foregoing reasons, and those set forth in the

Petitioner's Brief, the judgment of the court of appeals

should be reversed.

Respectfully submitted,

BARBARA J. SAPIN

(Counsel of Record)

Labor Counsel

Of Counsel: AMERICAN NURSES ASSOCIATION

Woopy N. PETERSON 600 Maryland Avenue, S.W.

2101 L Street, N.W. Washington, D.C. 20024

Washington, D.C. 20037 (202) 554-4444

November 16, 1993

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