NLRB rules on who's a boss: Unions will keep fighting

A National Labor Relations Board (NLRB) decision Oct. 3 stretches the definition of “supervisor,” opening the door for employers to take away the right to union protections from nurses and other workers. The ruling on a group of cases, known together as Kentucky River, says employers can label workers as supervisors if they assign another employee to a particular location, to work at a certain time or to perform a significant task. They also may be called supervisors if they’re held accountable for the tasks they assign.

The decision could bar millions of workers from the protections unions offer.

“The NLRB’s test for determining who is a supervisor is a stretch at best and a threat to safe working conditions at worst,” says AFT president Edward J. McElroy. The AFT represents 70,000 health professionals.

The main case, Oakwood Healthcare Inc., was decided on a 3-2 vote. It says permanent “charge” nurses are bosses under the National Labor Relations Act (NLRA), while rotating charge nurses may not be. In the other two cases, Kentucky River Community Care and Golden Crest Healthcare Center, the board said the nurses did not exercise supervisory authority.

“Today’s 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,” wrote the two dissenting NRLB members. “In that category fall most professionals.”

The dissenters said that by 2012, the number of U.S. professionals susceptible to being called bosses could number almost 34 million,The Economic Policy Institute says up to 8 million workers could be affected immediately.

The ruling hangs on what it means to “assign” and “direct” other employees and to use “independent judgment.”

William Gould, former chairman of the NLRB under President Clinton, says the ruling fails to distinguish between real authority over other employees—i.e., the authority to hire, fire and discipline—and merely directing them.

Although the Kentucky River decision can’t be appealed directly, the new rules will be challenged in other cases. This is hardly the end of the process,” says Craig Becker, a lawyer for the AFL-CIO.