Full Disclosure

By Thomas Brom
     
      Contested Terrain
      Decisions of the National Labor Relations Board (NLRB) rarely make scintillating reading, but its ruling last fall parsing the meaning of "supervisor" could be used for anesthesia. Chairman Robert J. Battista referred repeatedly to Webster's dictionary to define three statutory terms?"assign," "responsibility to direct," and "independent judgment"?that are used in determining who is eligible to vote in a union-representation election and to join a bargaining unit under the National Labor Relations Act (NLRA). (Oakwood Healthcare, 348 NLRB No. 37, 9/29/06.)
      The majority in the board's 3?2 vote was responding to a recent U.S. Supreme Court case holding that the board erred when it permitted nurses using ordinary professional or technical judgment to join unions. (NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706 (2001).) In fact, the Court and the board have struggled since the Nixon administration to distinguish management prerogatives from minor supervisory duties, especially among "charge nurses." In the recent ruling, however, Battista seemed to get lost in the details?finding, for example, that "a registered nurse who makes the 'professional judgment' that a catheter needs to be changed may be performing a supervisory function when he/she responsibly directs a nursing assistant in the performance of that work."
      The reason all this matters from a labor law standpoint is that supervisors are exempt from NLRA protections. Rose Ann DeMoro, executive director of the California Nurses Association (CNA), said the board's decision in Oakwood "provides employers a road map to exclude hundreds of thousands of RNs from their rights"?meaning the ability to join unions and receive overtime pay. According to Ross Eisenbrey, vice president of the Economic Policy Institute in Washington, D.C., the ruling immediately affected 150 cases pending before the board, including 50 in which union election ballots had been impounded. Last July the institute estimated that an adverse ruling in these cases "would lead to the exclusion of approximately 1.4 million employees as supervisors."
      The dissent in Oakwood cited even more dramatic numbers. "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. Into that category may fall most professionals (among other workers), who by 2012 could number almost 34 million, accounting for 23.3 percent of the work force."
      "It's the road map that's important," says Harry G. Hutchison, a professor at George Mason University School of Law in Arlington, Virginia. "Management wants undivided loyalty at a time of decline in private-sector unions, and the concurrent rise in the professional class," says Hutchison, who wrote a recent law review article analyzing the Court's view of "independent judgment" in Kentucky River. (36 U.S.F. L. Rev. 335 (2002).)
      Supervisory status, apparently, is determined by detailed scrutiny of job duties, assigned tasks, and accountability. At bottom, the board's test comes down to defining employee loyalty: Which side are you on? "We've been in a no-man's land for 60 years," says William B. Gould IV, a professor at Stanford Law School and former chair of the NLRB. "The irony is that ever since Taft-Hartley, we've been moving toward a workforce that can think for itself, and away from checking your brains at the factory gate. We want charge nurses to think for themselves."
      In two sections of the 1947 Taft-Hartley Act?2(11) and 2(12)?Congress established a "contested terrain." Section 2(11) prohibited foremen from unionizing, but also "distinguished between straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such action." (S. Rep. No. 105, 80th Cong., 1st Sess. 4?5 (1947).) But section 2(12) explicitly recognized professionals' rights to unionize under the Act.
      Through the decades, the U.S. Supreme Court has tried to resolve the tension between these sections, while the NLRB generally ruled according to the political ebb and flow of its appointees. "The NLRB is a very political agency," says Nick C. Geannacopulos, a partner in the San Francisco office of Seyfarth Shaw. "Stare decisis does not always apply. Because the board is so political, we'll have to wait to see how these latest words [in Oakwood] can be massaged."
      Still, management-side law firms jumped on the new guidelines. Constangy, Brooks & Smith, based in Atlanta, issued an advisory that stated: "Organizing campaigns are often spearheaded by 'lead' or 'charge' people, who perform the same work as their peers yet have a higher level of authority within the organization. If these individuals are 'supervisors' within the meaning of the NLRA, then they cannot be part of a bargaining unit and cannot vote in an election."
      Geannacopulos adds, "Whether the 'lead' is a supervisor or not is always the focus of negotiations. Sometimes if leads do not want a union, the company may let them vote in a representation election. The leads could go either way-they're the people in between."
      The CNA, which represents about 45 percent of registered nurses who work in California hospitals, has warned employers that it will strike if they attempt to remove charge nurses from existing bargaining units. "We still represent charge nurses and relief charge nurses, and we're not afraid to call them professionals," says Mike Griffing, the CNA's director of collective bargaining in Oakland. "Congress clearly intended professionals to be protected under section 2(12)."
      W. Melvin Haas III, who heads Constangy Brooks's Macon, Georgia, office, doubts that unionized hospitals would risk applying the board's ruling to existing contracts. He says the real battles will be fought at nonorganized hospitals, where management can tailor job descriptions to the board's latest test. Anticipating that strategy, Griffing says, the CNA has signed private agreements with several hospitals, including a pact with Kaiser Permanente, to not oppose organizing efforts by registered nurses.
      Hutchison at George Mason says it may be time for Congress to write new legislation to align the NLRA with the new work environment. "I concede the prediction in the Oakwood dissent-creation of a new class of workers that is not management and not rank and file-is correct," he says. "That doesn't invalidate the board's ruling, but there may be a gap in the statute." .
     

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