Labor Relations Board Offers Split Decision in Supervisor Cases

By Staff Report

Oct. 3, 2006

Companies may start defining more workers as management–and ineligible for union representation–following a National Labor Relations Board decision announced Tuesday, October 3.

In a 3-2 ruling, the NLRB held that permanent charge nurses at Oakwood Heritage Hospital in Michigan should be designated as supervisors because they assigned tasks to other nurses, were responsible for their performance and exercised independent judgment.

In two related cases, however, the board found that nurses at Golden Crest Healthcare Center and lead workers at Croft Metals Inc. did not meet the Oakwood test.

“A lot of employers may make explicit in job descriptions the duties of lead people to qualify them as supervisors within the guidelines set forth in Oakwood,” says Michael Flaherty, a partner at the law firm Jackson Lewis in Chicago.

The NLRB used the three cases to respond to a 2001 Supreme Court ruling in NLRB v. Kentucky River Community Care Inc. In that action, the high court rejected the board’s reasoning when it upheld a union request to include six registered nurses in a bargaining unit. Supervisors are not allowed to join a union under the National Labor Relations Act.

In its October 3 decision, the board sought to clarify its interpretation of the latitude an employee must be granted to qualify as management.

The NLRB said that a nurse is a supervisor if he or she can place a colleague in a certain wing of the hospital, determine the time the person must arrive, authorize overtime and compel someone to come in from off-duty hours.

In addition, a nurse is a manager if he or she is accountable for the performance of other employees, evaluates them, influences their pay and exercises independent judgment beyond routine or clerical procedures.

“Employers should be satisfied because they have more clarity in what (responsibility) to give to individuals if they wish them to be a supervisor,” says James Redeker, chair of employment services at WolfBlock, a Philadelphia law firm.

But the NLRB may not have the final word on an issue that has been litigated for more than 20 years. Labor unions are likely to appeal the ruling in a circuit court.

AFL-CIO president John Sweeney said in a statement that the NLRB decision was the latest step by the Bush administration “to deny as many workers as possible their basic right to have a voice on the job and improve their living standards through their union.”

An Economic Policy Institute study asserts that as many as 8 million American workers may lose their bargaining rights.

Cheryl Johnson, president of United American Nurses, says that 843,000 nurses could be reclassified as supervisors. She maintains that the title is inaccurate because charge nurses cannot hire, fire or discipline their colleagues.

“Do you think for a minute that hospitals would have that many supervisors?” she asked at a September discussion at the Center for American Progress in Washington, D.C. “Hospitals know the difference. Only the NLRB seems to be confused.”

The NLRB ruling might also mean that computer scientists, engineers and other skilled employees could be defined as supervisors in today’s collaborative offices.

“It’s all about pushing authority down to frontline workers,” says Sarah Fox, a lawyer and former NLRB member. “It’s all about teamwork.”

Mark Schoeff Jr.

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