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EMPLOYMENT LAW — 7/25/06

Unions take action; gird themselves for pending NLRB rulings on supervisor status

Union members rallied last week in 18 cities across the U.S.--and outside National Labor Relations Board headquarters in Washington, DC--to protest what they anticipate will be significant anti-labor rulings by the agency. The unions' "national week of action" came as the Board is poised to rule on a trio of cases that will clarify, and perhaps sharply limit, who is eligible to join a union under the National Labor Relations Act. Labor fears the rulings "will be one of the most serious attacks on workers' rights in decades," according to the AFL-CIO. Planned protests included marches to regional NLRB offices in various cities. The AFL-CIO said the rallies marked the first time that such concerted actions have focused on the Bush labor board's decisions.

Rulings are thought to be imminent on the pending Board cases, jointly referred to as the "Kentucky River" cases, after the Supreme Court decision which prompted their reconsideration (NLRB v Kentucky River Community Care, Inc, USSCt 2001, 143 LC ¶10,988). The cases have been pending before the Board since 2002. The crux of the issue in each is whether certain employees are "supervisors" under the NLRA--and thus ineligible to join a union:

Labor says these workers will likely be unfairly classified as supervisors and thus ineligible for union representation. "At stake are collective bargaining rights for hundreds of thousands of workers who could be reclassified as supervisors and therefore not eligible for union protection under federal law," according to an AFL-CIO statement. "By broadening the legal definition of 'supervisor,' these three cases will significantly strip workers of their existing contract protections and deny even more their right to organize, reversing decades of worker protections," the union contended.

Last Thursday, in light of the protests, the NLRB issued a statement. "In deciding the three pending cases, the Board is bound by the decisions of the Supreme Court," the Board reminded. "After reviewing the written record, the briefs and arguments of the parties, the relevant case precedent and the applicable sections of the Act, the Board will issue its decisions in the pending cases."

At this point there are more than 60 other cases pending on the Board's decision in the instant cases. According to American Rights at Work, a union advocacy group, scores of organizing campaigns have been put on hold as well.

Background. What is the proper legal standard for determining whether a nurse or other skilled employee is a supervisor as defined in Section 2(11) of the NLRA? That provision defines a "supervisor" as: any individual 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.

Specifically, the Board is considering the test for determining whether an individual assigns or responsibly directs employees using independent judgment, and thus qualifies as a supervisor under the statutory definition. The upcoming cases all involve whether the employees in question "responsibly direct other employees" while using "independent judgment."

The U.S. Supreme Court has twice rejected prior Board rulings for minimizing the importance of independent judgment in the assignment or direction of employees by nursing personnel, the agency noted. In those cases, the Board found that nurses who direct other employees in their patient care duties are not statutory supervisors.

In the first case, NLRB v. Health Care & Retirement Corp. of America (USSCt 1994) 128 LC ¶11,090, the court rejected the Board's analysis as "inconsistent with...the statutory language," because it "rea[d] the responsible direction portion of Section 2(11) out of the statute in nurse cases." In the second case, NLRB v. Kentucky River Community Care, Inc, the court found the Board's interpretation of "independent judgment" to be incorrect.

The Board must review the decisions in accordance with these holdings. It issued a notice in July of 2003 inviting parties and amici to file briefs as part of its consideration of the cases. 22 interested parties responded, in addition to eight briefs that previously had been filed by the parties.

Oral argument denied. On February 10, 2006, the AFL-CIO filed a motion for oral argument in Oakwood Healthcare and Croft Metals; on May 4, 2006, the Service Employees International Union filed a similar request. The Board denied the requests on June 23, 2006 on the basis that "the record and briefs adequately present and address the issues and the positions of the parties and amici."

Last week, in addition to the staged protests, the unions urged supporters to write Board chair Robert J. Battista and request that he hold hearings, and called for elected officials to push the Board to reverse the decision denying oral argument. Those efforts were to no avail.

"Workers deserve to be heard on the 'supervisory' issue, which is why tens of thousands of union members have asked their members of Congress to appeal to the Labor Board for an opportunity to present oral arguments," said Pennsylvania AFL-CIO President William George. "Prior Labor Boards have wanted oral arguments in cases with great significance. This is the only five-year period in the last 25 years in which the Board has not held any oral arguments," George claimed.

Nurses impacted...and more. While an adverse decision could ultimately impact bargaining rights for a wide range of employees with nominal supervisory functions, the primary and most immediate affect would be on registered nurses. The California Nurses Association/National Nurses Organizing Committee (CAN/NNOC), one of the nation's largest and most aggressive nurse unions and a key organizer of last week's actions, received thousands of pledges from nurses that they would take all actions necessary, up to and including striking, if their employer "moves to deny RNs our rights to CNA union representation."

The union contended the Board was reconsidering the supervisory issue "at the behest of the corporate healthcare industry." Further, while the ruling could extend just to the lead RNs known as charge nurses, "a number of the most anti-union employers, management attorneys, and anti-union consultants want the restriction to apply to all RNs," charged CNA Executive Director Rose Ann DeMoro.

The healthcare unions clearly have cause for concern. But considering that the healthcare industry has been one of labor's few organizing success stories over the last few years, representing one of the fastest-growing sectors of the unionized workforce, the repercussions will also likely be felt throughout the labor movement as a whole.

Moreover, the statutory definition of supervisor will be applied more broadly across all sectors, not just healthcare. "Even foremen on construction jobs who work with a team of workers could lose their union rights and protections under a broad definition of 'supervisor,' the AFL-CIO warned. "That means thousands of painters, welders, sheet metal workers, plumbers, electricians and others could lose their right to be in a union."

Some labor experts counter that a likely finding of supervisory status in the currently pending decisions merely represent a return to longstanding Board law after a brief departure from precedent by a Democrat-appointed agency.

The Economic Policy Institute (EPI), a think tank usually aligned with labor, disagrees. EPI said workers who "direct other employees" were not regularly classified as supervisors. "Until now no one would have called these employees 'supervisors' in the traditional sense because they do not have authority to hire, fire, discipline, evaluate, or promote the employees they supposedly supervise.

"Skilled and experienced workers such as registered nurses, who give instructions to co-workers about how and when to perform certain tasks, are particularly vulnerable to reclassification as supervisors under this push for a broader reinterpretation of the term," EPI argued. "For example, nurses who tell orderlies or nurse aides to do certain things for particular patients are at high risk of reclassification, as are journeymen construction workers who guide other workers on a crew."

8 million workers affected? EPI issued a policy brief after analyzing the potential impact of the decisions. Its analysis was two-fold: first, it examined the supervisory duties associated with the occupations involved in dozens of cases pending before the NLRB or its hearing officers; then it examined the supervisory duties of the entire U.S. private sector workforce that is covered by the NLRA.

"Looking just at the dozens of pending cases, the position advocated by the employers involved would lead to the exclusion of approximately 1.4 million employees as supervisors," the think tank found. "Across all occupations, this extreme employer-centric position would strip 8 million more workers of their right to participate in a union and bargain collectively, adding to the approximately 8.6 million first-line supervisors that the Government Accountability Office estimates have already been excluded by prior interpretations of the NLRA."

EPI said the forthcoming decisions could potentially affect many in the building and construction, broadcast, energy, shipping, accounting industries, as well as the health care. It concluded that in each of 35 occupations, ranging from registered nurses and computer systems analysts to private guards and police officers, more than 50,000 employees could lose their right to join a union or bargain collectively.

The Board did not indicate, in its press release regarding the pending decisions, when the ruling would likely be issued.

Sources: National Labor Relations Board, Economic Policy Institute, Pennsylvania AFL-CIO, California Nurses Association/National Nurse Organizing Committee; American Rights at Work

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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