Toward a Robust Conception of 'Independent Judgement': Back to the Future?

Abstract:     
The Year 2000 term's judgment by the United States Supreme Court in NLRB v. Kentucky River continues a persistent dialogue that preceded the Supreme Court's decision in Packard v. NLRB. In Packard, decided shortly before the enactment of the Taft-Hartley Act, the Supreme Court enforced an NLRB judgment that held that foremen "are entitled as a class to the rights of self-organization, collective bargaining and other concerted activities." The Kentucky River case once again places nurses and health care workers at the center of a continuing squabble over the coverage of professionals and the exclusion of supervisors.

In essence the case implicates issues previously litigated in NLRB v. Health Care (the court rejected the NLRB's patient care analysis to find that RN's were supervisors) and NLRB v. Yeshiva University (the court found that faculty members were managerial employees). Clearly, these cases "indicate a split on the Court concerning the level of employee discretion that can be accepted without fundamentally undermining workplace hierarchy." This split had its genesis in Packard. Kentucky River establishes the circumstances for a renewed debate about the proper scope of the NLRA as amended by the Taft-Hartley Act. It also offers a venue for, once again, reviewing Supreme Court jurisprudence in this contested arena. This arena is made all the more poignant by virtue of the proportionate reduction in blue collar/industrial workers and the rise in professional and technical workers within the United States workforce.

I argue that an understanding of the purpose of the NLRA as amended grounded in Justice Douglas' Packard dissent as implicated by a reasoned appreciation of the contemporary workplace, militates in favor of the approach taken by a majority of the Court in Kentucky River. I contend that we should take seriously Justice Douglas' perceptive claim that broadening the NLRA's protective umbrella to include supervisors while potentially warranted on policy grounds "lends the sanctions of federal law to unionization at all levels of the industrial hierarchy," and thus, contradicts, radically, the fundamental purpose of the statute aimed at separating working people as a group from management. Given the degree of discretion and the kind of judgment required of an ever-growing cadre of contemporary workers within an increasingly decentralized economy, efforts aimed at broadening the application of the NLRA via a strained conception of "independent judgment" which concurrently ignores the full text and the context of the statute remain problematic. This analysis leads unmistakably toward a robustly inclusive conception of independent judgment that is consistent with, and revives, a narrow interpretation of the NLRA.

JEL Classification: J5, K1, K2, K3

Accepted Paper Series