Watch Out, You Might Be a Supervisor

Labor Board Drops Bomb on Workers' Rights

AFL-CIO directors comment on NLRB decision to allow companies to expand the definition of supervisor.

The Bush Administration’s National Labor Relations Board—easily the most anti-union labor board in the agency’s seventy-year history—released its long-awaited decision in Oakwood Healthcare and International Union, UAW yesterday, delivering its most stunning blow yet against workers’ rights.

The Labor Board’s ruling stretches the interpretation of who is a supervisor far beyond the clear intent of Congress, far beyond NLRB precedent, far more than necessary to comply with the Supreme Court’s 2001 Kentucky River decision that gave rise to the ruling, and far out of step with workplace reality. Worse yet, the Board’s ruling will harm patient care and exacerbate the already-critical shortage of nurses—body blows that the nation’s rickety health care system can ill afford.

The new test set forth in Oakwood confirmed our worst fears: workers can now be deemed supervisors even if they spend as little as ten percent of their time overseeing co-workers, provided they do so on a regular schedule. Part-time rotating charge nurses who assign other nurses to particular patients can now be considered supervisors by the NLRB.

In a blistering dissent from the decision rendered by the Board’s Bush-appointed Republican majority, the NLRB’s two Democratic members warned that 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.” At risk, ultimately, are the most basic workplace rights of virtually every professional worker—a fast-growing group projected to account for nearly a quarter of the workforce by 2012—plus many other highly skilled workers in non-professional occupations.

Workers now deemed supervisors pursuant to the Board’s new ruling will lose all remaining protections under federal labor law of their fundamental right to form unions and bargain collectively. Employers can now fire such workers with complete impunity if they attempt to form a union in their workplace. To make matters worse, employers will now be able to draft these supervisors in name only to serve as front-line shock troops in anti-union campaigns. Those who refuse to participate in these employer campaigns—or who show insufficient zeal—risk discharge.

The Oakwood decision included yet another bonus to employers bent on resisting unionization—and the army of union-busting consultants and law firms who sell services to them: a clear roadmap of how to tinker with workers’ job duties in order to meet the newly expansive test that the NLRB will use to determine whether workers are supervisors. The decision also widens the scope for employers and their consultants to tie up workers’ organizing campaigns in knots with endless appeals and delays. Oakwood, furthermore, opens up new opportunities for employers to remove workers from long-established bargaining units and even to refuse to renegotiate collective bargaining agreements with long-established professional and skilled workers’ unions.

The Board’s ruling also jeopardizes patient care and risks worsening the nursing shortage in the nation’s crisis-ridden health care system. Nurse unions lead the way in advocating for lower patient-to-nurse ratios and limits on mandatory excessive overtime, both of which have major consequences for patient care. It is no accident—and has been documented by solid scholarly research—that heart attack survival rates are higher for patients in hospitals where nurses have a union than in hospitals where nurses do not. By improving pay, benefits, training and working conditions, unions help alleviate the nation’s critical shortage of nurses by making the nursing profession more attractive to enter and stay. This is no time to roll back legal protections for nurses who want to form unions and bargain collectively.

Shock waves from Oakwood will be felt in virtually every occupation and industry throughout the U.S. economy. According to a July report from the Economic Policy Institute (EPI), an expansive definition of supervisor such as the one promulgated in Oakwood puts more than eight million private sector workers at risk of losing remaining federal labor law protections of the freedom to form unions and bargain collectively. Workers at risk of being deemed “supervisors” by the Bush Labor Board and who could therefore lose their union rights can be found in nearly every occupation and industry.

Oakwood drove yet another nail in the coffin of a labor law regime that is failing the nation’s workers. It is no accident that the majority of successful union organizing today takes place outside of and in spite of the National Labor Relations Act and the NLRB. Oakwood gives workers and their unions even more reason to steer clear of the Act and the Board. But that is not a long-term solution to the nation’s serious crisis of workplace rights, a crisis just made worse by the Bush Labor Board in Oakwood.

Stewart Acuff is Director, AFL-CIO Organizing Department; Sheldon Friedman is Research Coordinator, AFL-CIO Voice@Work Campaign.

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Sheldon Friedman