In one of the most sweeping rulings on union membership in more than 50 years, the National Labor Relations Board (NLRB) today redefined and expanded the definition of "supervisor," potentially taking away the federally protected freedom to form a union from 8 million workers.
Under federal labor law, supervisors are barred from forming unions.
The Republican-majority NLRB ruled on three cases today, collectively known as "Kentucky River," but it's the lead case Oakwood Healthcare Inc., that creates a new definition of supervisor. Dozens of cases involving the definition of supervisor now before the NLRB will be sent back, with employers having the option to craft arguments that will meet the new definition of supervisor and limit the number of workers who can join a union.
The board's new definition essentially enables employers to make a supervisor out of any worker who has the authority to assign or direct another and uses independent judgment. Amazingly, the board also ruled that a worker can be classified as a supervisor if he or she spends as little as 10 percent to 15 percent of his or her time overseeing the work of others. The board issed the ruling Sept. 29, but did not release it until today.
In their dissent, Democratic NLRB members Wilma Liebman and Dennis Walsh said 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....[M]ost professionals have some supervisory responsibilities in the sense of directing another's work--the lawyer his secretary, the teacher his teacher's aide, the doctor his nurses, the registered nurse her nurse's aid and so on.
Liebman and Walsh wrote that most professionals and other workers could fall under the new definition of supervisor, "who by 2012 could number almost 34 million, accounting for 23.3 percent of the workforce."
Oakwood claimed charge nurses at Heritage Hospital occasionally perform work that involves being a "lead person" or supervising other workers--although they have no authority to hire or fire or discipline the workers.
Sandra Falwell, a staff nurse at Children's National Medical Center in Washington, D.C., sometimes directs the work of less skilled or less experienced employees. Yet she's not part of hospital management. She does not have the ability to hire or fire employees, evaluate their performance or make other decisions regarding their work.
Under today's ruling, Falwell--and hundreds of thousands of workers like her--now could be classified as supervisors, and so cannot belong to a union. And not only nurses: journalists, building trades workers, port employees and many, many, others may now be considered supervisors under U.S. labor law and so barred from joining unions.
In the Oakwood case, some 220 registered nurses at Heritage, an acute-care hospital in Taylor, Mich., voted in a UAW election in February 2002. The NLRB impounded the votes because the hospital, owned by Oakwood, claimed the RNs are supervisors. The case was appealed to the U.S. Court of Appeals for the 8th Circuit, which sent the case back to the labor board because of the Supreme Court's 2002 decision in Kentucky River.
In recent months, the Bush-backed NLRB regularly has ruled in favor of corporate interests over those of workers: The board has taken away workers' protections and limited workers' freedom to form unions, including workers with disabilities, temporary employees and graduate employees.
The NLRB has refused to hear oral arguments on the cases--and has heard no oral arguments, a fundamental part of any due process, since the Bush administration took office. The NLRB denied union requests to hear oral arguments in these cases.
For nurses, union membership provides a voice on the job and the protections needed to be effective patient advocates. A nurse with a union works with confidence to make tough calls and be a strong patient advocate when patient decisions need to be made. Patients need a strong voice to stand up to those who put the bottom line before patients' health care needs. On The Agonist, Ian Welsh highlighted the impact such a ruling could have on all workers:
It is also an assault of good wages for ordinary workers. In any industry where there is unionization, even if your shop isn't unionized, the threat of unionization helps keep wages up and treatment good. Employers always know that if they treat their workers too badly, the unions are waiting for a chance to get in the door.
Over the summer, nurses, construction workers, miners and thousands of other workers and members of the AFL-CIO union movement and its allies took part in actions nationwide to demand the labor board protect their rights. But NLRB members are appointed, not elected. Only by evicting the party in power can workers again have a labor board that works in their interests, not corporate interest.
How did we as a nation come to the point where those in power take away the rights of millions of workers to exercise the freedom to form unions--one of the pillars of the Bill of Rights?
Below is background on the issue I posted previously here.
Although nurses in 2006 seem to have little in common with auto foremen in the 1940s, the attack the hospital nurses face today is part of a relentless, decades-long assault by corporate-backed members of Congress on the bargaining rights of workers--from auto foremen to nurses.
From the time the National Labor Relations Act (NLRA) was passed in the 1930s, Big Business interests have sought to deny America's workers their fundamental freedom to form unions. One strategy has been to limit the number of workers who qualify for union membership and federal labor law protection. Among those targeted are workers whom employers seek to classify as "supervisors."
In 1941, foremen at Ford's Rouge plant began forming a union. Although foremen's unions had existed for decades in the printing, building trades and other industries, the independent Foremen's Association of America represented a clear challenge to industrial management's authority. Between 1920 and 1940, the ratio of foremen to workers remained static but increased by 70 percent in the 1940s.
Not only were foremen a large and burgeoning segment of one of the nation's most powerful and fastest-growing workforces, their successes in organizing their peers quickly gaining momentum: By the early post-war years, an estimated 100,000 foremen had joined together in some form of bargaining unit.
The idea of foremen ("supervisors" in today's parlance) forming unions scared corporate interests.
No, scratch that. It didn't scare them.
It terrified them.
By 1947, corporate-backed Republicans in the House and Senate, who had spent years trying to legislatively hamstring the NLRA, succeeded in passing the Taft-Hartley Act. With its passage, Taft-Hartley basically destroyed the main goal of the NLRA: to give workers a fair chance to decide whether to form unions.
Taft-Hartley includes a dirty laundry list of rules, but among the most significant--although the least noted at the time of the law's passage--is its ban on supervisors forming unions.
So, the Ford foremen's union was abolished. And the growing number of white-collar, "middle management" professionals who proliferated throughout the 1960s, 1970s and 1980s were powerless to join together and bargain collectively with their bosses. Today, such workers are called "at-will" employees, a friendly sounding euphemism that in fact means they can be fired for anything--as long as it doesn't violate federal discrimination or other such laws.
Under Taft-Hartley, a supervisor is defined as
...any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
But this definition wasn't enough for Big Business. In the decades following Taft-Hartley passage, corporations have continued to expand Taft-Hartley's meaning of "supervisor."
Current U.S. labor law makes it easy for employers to delay recognizing unions. If a group of workers votes to join a union, union-hating employers can merely assert the workers perform supervisory functions and are not eligible to be part of a bargaining unit. In doing so, employers accomplish two things:
They delay, often by years, the time in which they recognize and must bargain with the union.
If successful in their challenge, they further limit the number of America's workers who can join unions.
The legal process is long and tedious, but by working through the federal courts and the National Labor Relations Board, which was set up by the NLRA to administer the law, corporations have successfully chipped away at the scope of "supervisor."
With the extension of the NLRA to nonprofit hospitals, the question of what duties a worker must perform to be considered a "supervisor" moved to the health care field, now among the nation's fastest-growing job sectors. Two key cases on the question of whether nurses are supervisors wound their way through years of NLRB and federal court rulings to the Supreme Court. And in all three cases, the high court agreed with employers and further limited the ability of nurses to form unions.
In the most recent Supreme Court case, NLRB v. Kentucky River Community Care, the justices in 2001 ruled, 5-4, that six RNs at the Caney Creek Developmental Complex in Pippa Passes, Ky., were supervisors. The ruling stood on the issue of "independent judgment." In his dissent, Justice Stevens argued the statutory terms "independent judgment" and "responsibility to direct" are ambiguous. Stevens further warned:
...if the term "supervisor" is construed too broadly, without regard for the statutory context, then Congress's inclusion of professionals within the Act's protections is effectively nullified.
Justice Stevens is right that construing the term "supervisor" broadly will eliminate professional employees from NLRA protections. This is exactly what many fear the Bush labor board will do.
Although it would be nice to buy in to the fiction that regulatory bodies are above politics, they aren't. As James Gross has shown in his volumes on the history of the NLRB, the board rules in the interests of its members. And if those members are corporate-backed Republicans, they almost inevitably will rule in the interests of Big Business.
The connection between political action and organizing could never be more clear.
(The background on auto foremen stems from historian Nelson Lichtenstein's great study, "The Man in the Middle: A Social History of Automobile Industry Foremen," On the Line: Essays in the History of Auto Work, eds. Lichtenstein and Stephen Meyer.)
c 2006 TA Connell, All Rights Reserved