By Mark Gruenberg
PAI Staff Writer

WASHINGTON (PAI)—By a 3-2 vote along party lines, the Bush-appointed majority on the National Labor Relations Board expanded the definition of who is a “supervisor,” throwing millions of workers out from under labor law coverage.

The rulings in the so-called Kentucky River cases, announced Oct. 3, were widely awaited by unions and management. The AFL-CIO led a protest march to the board’s offices earlier this year, urging its members not to deprive workers—union and non-union—of their labor law rights.

Federation president John J. Sweeney and other leaders blasted the rulings, while the California Nurses association said 30,000 of its members had signed strike authorization cards should their hospitals try to impose the rulings on them, stripping their right to unionize and declaring them supervisors.
“While the Supreme Court [Kentucky River] decision cracks open the door to a redefinition of who is a supervisor, the decision by the NLRB virtually kicks it in,” Sweeney said of the main ruling, Oakwood Healthcare Inc. vs. UAW.

Quoting the two dissenting NLRB members, Sweeney added that the Bush-named majority’s rulings “threaten to create a new class of workers under labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees. In that category may fall most professionals—among many other workers—who by 2012 could number almost 34 million, accounting for 23.3 percent of the workforce.”

David Cohen, an attorney for the AFL-CIO Dept. for Professional Employees who worked on the cases, pointed to that 34 million number.

“Professionals usually vote. When they vote this November, they should remember who appointed the people who made this decision,” he said, meaning Bush and the GOP.

Management anticipated a board decision that would define supervisors to include some of the lowest-level workers possible, such as warehouse workers who tell less-experienced colleagues that heavy items go at the bottom of a flatbed truck. The board majority split the difference, and said charge nurses who are in that role full-time are supervisors, while others only incidentally in it for short periods are not. But it then noted that past rulings said a worker who manages others as little as 10 percent-15 percent of the time is a “supervisor” and not protected by labor law.

The case the board used to expand the definition of supervisor involved the Oakwood Heritage Hospital, of Taylor, Mich., that UAW was trying to organize. Its managers argued the union could not include “charge nurses” who do such things as oversee patient care and direct orderlies. Oakwood has 12 fulltime charge nurses, but most of its 181 registered nurses also serve as charge nurses on occasion. Oakwood wanted them all to be supervisors. There was a union recognition vote at the hospital, but the ballots were impounded until the board could decide the issue.

Had the board ruled all charge nurses are supervisors, it would have opened the door to declaring other lower-level workers as supervisors, too, according to former NLRB General Counsel Fred Feinstein.

The board broadened the category of supervisor by writing new definitions for several terms the National Labor Relations Act, as amended by the GOP-passed Taft-Hartley Act, uses to define “supervisors.”

One such new definition was that anyone who assigns other workers to various tasks, and the board’s GOP majority said the duty of assigning had to be more than just intermittent. But the two dissenting board members said the board left the words so open that virtually any worker who gives an assignment to another at any time could be considered a supervisor. This “threatens to sweep almost all staff nurses outside the [National Labor Relations] Act’s protection,” the dissenters said.

The second definition the board majority broadened said a supervisor was a worker with the duty to responsibly direct others. That means, in plain English, the worker who directed the others could be held responsible for their actions.

The third expanded definition said more workers who exercise “independent judgment” on the job are now supervisors and thus outside labor law. It was that definition that would throw most professionals out from under the coverage, according to Dept. for Professional Employees President Paul Almeida.

Almeida, a professional and technical engineer, explained that in many professions, including his own and construction, even lower-level workers often instruct and monitor apprentices and first-timers. Under the board’s new definition, they’re now supervisors.