Watch Out, You Might Be a Supervisor
Labor Board Drops Bomb on Workers' Rights
By Stewart Acuff and Sheldon Friedman
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.