Board Redefines Rules for Union Exemption

By Steven Greenhouse
The New York Times

Wednesday 04 October 2006

In a decision condemned by unions but praised by business, the National Labor Relations Board issued a ruling yesterday that will exempt registered nurses - and many other workers - from union membership if they have certain kinds of supervisory duties.

Some labor experts predicted that the ruling could affect more than eight million workers who might also be deemed supervisors, including teachers who oversee aides. The board's 3-to-2 decision involved nurses overseeing shifts at a Michigan hospital.

But in two related cases, the board ruled that workers with limited supervisory duties were not supervisors.

Labor unions have long feared such a decision, so much so that, in an unusual move, they held demonstrations at the labor board's offices in July to urge it not to issue an expansive ruling that would exempt many workers from union coverage.

In the majority decision, the three Republicans on the board adopted a broad definition of supervisor, saying it included workers who assigned others to a location, shift or significant tasks, like a nurse overseeing a shift who might assign another nurse to a particular patient.

The majority ruled that workers should generally be deemed supervisors, exempt from union membership, if they oversaw another employee and could be held accountable if that subordinate performed poorly. The majority also ruled that workers could be deemed supervisors if they were assigned supervisory duties just 10 percent to 15 percent of their total work time.

In a stinging dissent, the two Democrats on the board, Wilma B. Liebman and Dennis P. Walsh, wrote, "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."

The dissenters asserted that most of the nation's more than 20 million professional workers could fall into that category because many professionals, like a doctor overseeing nurses or a lawyer overseeing a secretary, could be deemed supervisors under the board's new guidelines.

The case focused on workers who did not perform functions like hiring, promoting or laying off workers, but rather assigning and directing other employees - functions in which the supervisory role was more ambiguous. The board's majority emphasized that to be considered a supervisor, workers had to exercise independent judgment, although it adopted a more expansive view of such judgment than previous labor boards had.

The majority comprised the chairman, Robert J. Battista; Peter C. Schaumber; and Peter N. Kirsanow.

Steve Bokat, general counsel for the United States Chamber of Commerce, said the decision did not go as far as business had wanted, adding that estimates that millions of workers would be exempted from union coverage were "outrageous numbers."

"I think it's a good test that the majority has laid out," Mr. Bokat said, "a reasonable test, one that employers and their counsel can apply."

John J. Sweeney, the president of the AFL-CIO, said the ruling "welcomes employers to strip millions of workers of their right to have a union by reclassifying them as supervisors, in name only."

Organized labor said the ruling continued a trend in which President Bush and the labor board had exempted groups of workers from union coverage, including graduate teaching assistants, disabled workers and many Defense Department employees.

The board's ruling interprets a 2001 Supreme Court decision in which Justice Antonin Scalia, writing for a 5-to-4 majority, asserted that the labor board, then dominated by appointees of President Clinton, had adopted too strict a test in deciding when workers were supervisors.

Yesterday's decision could exclude many retail workers, like department heads in supermarkets or discount stores, from joining unions. The majority wrote, "The assignment of an employee to a certain department (e.g., housewares) or to a certain shift (e.g., night) or to certain significant overall tasks (e.g., restocking shelves) would generally qualify" as having the supervisory responsibility of assigning.

The decision also stated, "If a person on the shop floor has 'men under him,' and if that person decides 'what job shall be undertaken next or who shall do it,' that person is a supervisor, provided that the direction is both 'responsible' " and "carried out with independent judgment."

William B. Gould IV, who was board chairman under Mr. Clinton, said the decision's "shift in statutory interpretation is a seismic one." Mr. Gould said that with the board setting forth rules on what employers must do to prove that employees are supervisors, "the potential for manipulation is substantial."

The board's main decision yesterday involved Oakwood Heritage Hospital, an acute care facility in Taylor, Mich., with 257 beds and 181 registered nurses. The decision focused on a dozen nurses who worked in intensive care, medical/surgical and other units, and oversaw several other nurses, nurses' aides and technicians.

The union that sought to represent them, the United Automobile Workers, asserted that they should not be deemed supervisors on the ground that their supervisory duties were minor and routine, and required so little independent judgment. But the hospital argued that they should be considered supervisors on the ground that they assigned nurses and nurses' aides to particular patients and directed them by giving them specific responsibilities, all while using independent judgment.

Another board decision released yesterday involved some 30 "lead persons" working for Croft Metals, a door and window factory in McComb, Miss. The board ruled that the company had not established that these workers exercised independent judgment in directing their crews. The board suggested that their judgment was simply routine.

A third decision involved the Golden Crest Healthcare Center, a nursing home in Hibbing, Minn. The board ruled that the employer had not established that the nurses in charge had met the definition of assigning or directing other workers. It found that the nursing home had failed to show that those nurses were held accountable when their subordinates failed to perform properly.

Pamela Thompson, chief executive of the American Organization of Nurse Executives, an industry organization, said, "Since hospital staffing can vary, not only hospital to hospital but hour by hour, this decision will play out differently hospital by hospital."