Upending the house of labor

NELSON LICHTENSTEIN teaches history at UC Santa Barbara, where he directs the Center for the Study of Work, Labor and Democracy.

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.

But such a dichotomy flies in the face of everything that has transformed the American workplace during the last half a century. Today, the Census Bureau counts more of us as managers and professionals than it does factory operatives. The conservatives who control the Supreme Court and the NLRB, though, argue that any job that contains a spark of creativity, a bit of authority or an element of education or apprenticeship should be exempt from the labor law and the union compass. They consign to the unions the most onerous, repetitive and undignified forms of labor. And then, of course, as the union idea becomes synonymous with such labor, these same ideologues put forth the notion that teachers, programmers, nurses, doctors, journalists and writers would be crazy to link their fortunes with such unfortunates.

All jobs, even the most low-wage and low-skilled, require judgment, self-reliance and initiative. But the labor movement and its allies need to make it abundantly clear that you don’t have to be a horny-handed proletarian to benefit from a collective defense of one’s self-interest, which is why 18th century printers, 19th century railroad engineers and 20th century airplane pilots, screenwriters and baseball players joined the house of labor.

And this brings us back to the Kentucky River case. If the NLRB defines several hundred thousand hardworking nurses as supervisors, it will have the practical effect of generating much strife in our hospitals and nursing homes. But of even greater consequence, it will take all the laws and conventions governing the workplace another long step toward a world of “doublethink,” which George Orwell defined as the “power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.”