NLRB redefines supervisor

The decision was voted on Sept. 29 but not released publicly until Oct. 3 (as this issue of the NW Labor Press was going to press).

The NLRB ruled on three cases, collectively known as “Kentucky River,” but it’s the lead case, Oakwood Healthcare Inc. that creates a new definition of supervisor. The Board ruled 3-2 to exclude “charge nurses’ who perform clinical assignment from union rights.

In the other two cases being considered — Golden Crest and Croft Metals — the Board ruled against redefining workers as supervisors.

“But that reflects management not crafting the facts in the case to the Board’s satisfaction,” said Paul Bigman, Western Region field organizer for Jobs with Justice. “It is clear that, in the future, management will sculpt ‘supervisory’ responsibilities to meet the Oakwood standard; and it is equally clear that the anti-worker Board majority will look to apply that standard in other industries, as well.”

In Oakwood, the Board agreed with the employer that charge nurses are supervisors. But the ruling also sets broad definitions for determining who is a supervisor that invites employers to classify nurses and many low-level employees with minor authority as supervisors, the national AFL-CIO warned.

According to the labor federation, the Board’s new definition essentially enables employers to make a supervisor out of any worker who has the authority to assign or direct another, and uses independent judgment.

“Amazingly, the Board also ruled that a worker can be classified as a supervisor if he or she spends as little as 10 percent to 15 percent of his or her time overseeing the work of others,” the AFL-CIO said.

In their dissent, NLRB members Wilma Liebman and Dennis Walsh, both Democrats, say the decision “threatens to create a new class of workers under federal labor law — workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees.”

Liebman and Walsh wrote that most professionals and other workers could fall under the new definition of supervisor, “who by 2012 could number almost 34 million, accounting for 23.3 percent of the workforce.” They go on to say that the Republican majority did not follow what Congress intended in applying the National Labor Relations Act: 

“Congress cared about the precise scope of the Act’s definition of ‘supervisor,’ and so should the Board. Instead, the majority’s decision reflects an unfortunate failure to engage in the sort of reasoned decision-making that Congress expected from the Board, which has the primary responsibility for developing and applying national labor policy.” 

Currently, the NLRB is holding up dozens of cases that address the definition of supervisor, and 60 of those are union election cases. These cases have been sent back to the various regional boards. In some of these cases, workers who voted several years ago to form a union still are waiting for their ballots to be counted.

“The ramifications of this case are extremely serious; the decision could have a significant impact on the quality of patient care and workers’ rights,” the American Federation of Teachers Healthcare said in a press release.

AFL-CIO President John Sweeney called the decisions “outrageous and unjustified. The NLRB should protect workers’ rights, not eliminate them,” he said. “If the Administration expects us to take this quietly, they’re mistaken.” 

Over the past five years, three of President Bush’s appointees to the five-person NLRB have been recess appointments that did not require Senate confirmation.