- The Washington Times - Tuesday, October 3, 2006

The federal government yesterday established new guidelines for considering a worker a supervisor, a decision organized labor says will exclude millions of Americans from joining unions.

In a long-awaited health care case involving a group of “charge nurses” at a Michigan hospital, the National Labor Relations Board (NLRB) ruled the nurses should be considered supervisory staff and thus not covered by a federal law allowing them to join a union.

Charge nurses serve as a head shift nurse for a unit or ward and assign duties to other nurses. But they typically don’t have the authority to hire and fire or perform evaluations on other employees, which union groups say is a vital benchmark for classifying an employee as a supervisor.

The decision was one of three related rulings grouped as the “Kentucky River” cases because they were intended to clarify the supervisor question from a case several years ago involving Kentucky River Community Care Inc. in Hazard, Ky.

Union leaders denounced the 3-2 decision, saying it would have broad implications for workers in many fields. The vote was split down party lines.

The AFL-CIO labor federation said the new ruling would strip at least 8 million workers of their right to have a union by reclassifying them as supervisors in name only.

“Today’s decision is the latest in the Bush-appointed NLRB’s legal maneuvering 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,” AFL-CIO President John Sweeney said. “The NLRB should protect workers’ rights — not eliminate them.”

Mr. Sweeney added the ruling “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.”

The decision was not a surprise since Republicans have the majority on the five-member board, said Roland Zullo of the Institute of Labor and Industrial Relations at the University of Michigan.

“This is what happens when you have a political party in power that is just not friendly to labor — you get decisions like this,” Mr. Zullo. “Labor had more favorable decisions during the [President] Clinton administration.”

Workers considered supervisors under the new definition can unionize, but management will be under no legal obligation to bargain with them, Mr. Zullo said.

Business praised the board’s decision.

“The board has given a clear, reasonable and fair standard employers can apply in determining who is and who is not a supervisor,” said Steve Bokat, general counsel for the U.S. Chamber of Commerce.

Some accused labor activists of exaggerating the number of workers that will be affected by the ruling.

“The NLRB articulated a clear test of supervisory authority that is totally consistent with 70 years of statutory and decisional history,” said Martin Payson, a New York lawyer with the Jackson Lewis law firm, which represents management in labor cases. “Relatively few people will be impacted,” he said.

Labor groups also say the ruling gives employers another tool for fighting organizing efforts by threatening litigation.

“Every case now where an employer wants to drag it out for three years in the courts will be able to do so,” said Jon Hiatt, general counsel for the AFL-CIO. “It’s an invitation for employers to manipulate job duties.”

Business also disputed the union’s prediction the decision will lead to widespread litigation.

“The real lesson is that every individual whose job duties put their legal position in question should have their authority and responsibility spelled out in advance, by the employer, so as to avoid uncertainty,” Mr. Payson said. “This will avoid what was predicted by the unions — another decade of litigation.”

The decision is expected to be appealed in the federal courts and could reach the Supreme Court, Mr. Payson said.

The question of which employees are considered supervisors has been the topic of debate between unions and employers for decades. The Supreme Court twice has overturned NLRB rulings on the matter.

“This has been a contested area that has see-sawed back and forth,” Mr. Zullo said. “But board decisions do change, and if the politics shift, [the decision] could shift right back.”

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