In a decision that could significantly restrict the ability of employed dentists to join unions, the U.S. Supreme Court has ruled that the National Labor Relations Board, or NLRB, has been using an inappropriate test to determine whether professional employees are supervisors.1
In a 5–4 ruling, the high court found that the NLRB may not exclude professionals who direct less skilled employees in the provision of services from the definition of supervisors under the National Labor Relations Act, or NLRA.
Since supervisors may not unionize, this decision means that employed dentists who oversee the work of ancillary health professionals, such as dental hygienists, may not be able to join unions.
Under current law, only employed dentists are able to join unions and negotiate collectively with other parties. Dentists who are not employees are prohibited by antitrust laws from negotiating jointly with any entities, including insurance companies, because such collective negotiations could be considered unlawful price fixing.
In its decision, the Supreme Court was reviewing a case from the U.S. Court of Appeals for the Sixth Circuit. In October 1999, the appeals court held that since certain registered nurses had exercised "independent judgment" in performing their duties, they were thus supervisors under the NLRA.2
The NLRA specifies that employees are supervisors if
- – they are authorized to perform any one of 12 supervisory functions—hiring, transferring, suspending, laying off, recalling, promoting, discharging, assigning, rewarding, disciplining, responsibly directing or adjusting grievances of other employees;
- – their "exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment";
- – their authority is held "in the interest of the employer."
The Sixth Circuit had disagreed with the NLRB’s interpretation of the labor relations act’s definition of supervisor. The NLRB asserted that employees do not use "independent judgment" when they exercise "ordinary professional or technical judgment in directing less skilled employees to deliver services in accordance with employer-specified standards."
However, the Supreme Court agreed with the Sixth Circuit, and concluded that this interpretation was not supported by the statutory language of the NLRA.
In the majority opinion, the Supreme Court observed that every supervisory function included in the NLRA requires the use of independent judgment, according to the statute, but that the NLRB sought to apply its exclusion of professional or technical judgment from the category of "independent judgment" to only one of the 12 supervisory functions—the function of responsibly directing other employees.
The high court criticized the NLRB’s position in light of a prior Supreme Court decision striking down a similarly limited interpretation of independent judgment as it applied to a nurse’s exercising authority in the interest of the employer, another one of the NLRA’s criteria for supervisors.
The court noted in the current ruling that the result of the previously rejected interpretation had been the same: by maintaining that nurses did not exercise their authority "in the interest of the employer" when their "independent judgment [was] exercised incidental to professional or technical judgment," the NLRB was in effect saying that a nurse who used independent judgment to responsibly direct other employees was not a supervisor.
Moreover, the majority opinion suggested that the NLRB had once again attempted to implement an interpretation of the labor relations act that already had been rejected by the Supreme Court. The court also observed that if the NLRB limited the definition of independent judgment as it applied to each of the 12 supervisory functions, "it would virtually eliminate ‘supervisors’ from the act."
The NLRB also argued that its interpretation was necessary to preserve the inclusion of professional employees under the NLRA. While the court acknowledged that the NLRB had the right to set policy, it found that this particular policy was not supported by the language of the NLRA. The court ultimately concluded that the NLRB’s interpretation of "independent judgment" was unlawful.
Countering the majority opinion, the four dissenting justices argued that since Congress had provided in the NLRA that professionals could be supervisors, there was good reason for the NLRB’s interpretation of independent judgment.
If the term "supervisor" were to be construed too broadly, the dissenters argued, the right of professionals to organize under the NLRA could be "effectively nullified." The dissenters accused the majority of doing "precisely what it accuses the Board of doing ... reading one part of the statute to the exclusion of the other."
The dissenting opinion disputed the majority’s conclusion that the NLRB was not owed any deference in its evaluation of the kind of judgment that professional employees exercise. The dissenters argued that, from the majority’s point of view, a nurse’s judgment that an employee should take a patient’s temperature ought to be given the same weight as a nurse’s judgment that an employee should be reassigned or disciplined.
This ruling means that employed dentists likely will be unable to join a union.
The dissenters also took issue with the majority’s finding that the NLRB had erred by not applying its limiting interpretation of the term "independent judgment" to all 12 of the supervisory functions under the NLRA. The dissenting opinion maintained that the function involving "responsible direction" was the only one of the 12 that was ambiguous and required additional interpretation.
As noted in a previous "Dentistry & the Law" column,3 the U.S. Circuit Courts of Appeal had been divided on the issue before the Supreme Court in this case. Of course, the test at issue in this case—the NLRB’s interpretation of the "independent judgment" test as it applies to professional employees who are "responsibly directing" other employees—is not the only consideration in determining whether an employee is a supervisor.
However, since an employed dentist’s duties frequently include guiding or directing ancillary professionals, such as dental hygienists or dental assistants, in the provision of dental services, this ruling means that such dentists likely will be seen as supervisors under the terms of the NLRA, and, as a result, will be unable to join a union.
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