The National Labor Relations Board, an independent agency that is charged with overseeing union elections and investigating unfair labor practices, recently issued a landmark ruling providing new guidelines for determining who is a supervisor in the workplace. The ruling has the potential to impact unionized professors and workers at private universities across the country.
The National Labor Relations Act, the federal law protecting the rights of workers in the private sector to organize labor unions, defines a supervisor as an employee who has the authority to perform any of 12 tasks while doing so in the interest of the employer and using independent judgment. The majority decision interpreted certain parts of the definition, specifically what it means to “assign” other employees, to responsibly “direct” others and to use “independent” judgment, in a way that greatly broadens the traditional definition of what constitutes a supervisor.
The decision is important, because under labor law, supervisors are not entitled to have union representation and to engage in collective bargaining, and, therefore, the board’s decision to broaden the scope of what constitutes a supervisor could potentially impact millions of workers.
The long-awaited rulings were met with anger by unions. According to a press-release, John Sweeney, President of the AFL-CIO, said the decision “welcomes employers to strip millions of workers of their right to have a union by reclassifying them as ‘supervisors’ in name only,” and that the effects of the cases are “devastating to workers in the health care industry.”
Nursing is one of the fastest growing occupational groups in the country, and also a profession that has had large numbers unionize in recent years. The ruling, according to the California Nurses Association, could affect up to a third of the 2.4 million unionized nurses in the United States.
Rebecca Givan, collective bargaining, explained the impact of the decision.
“The immediate effect of the decision is that their definition of a supervisor is so broad that a lot of people who haven’t been considered one could now be defined as supervisors, and it could affect any nurse because even nurses with low levels of management responsibility might fit the definition.”
The ruling also could affect workers in other professions, including professors that are unionized at private institutions. “In terms of faculty unionizing, the decision very much confirms … that faculty can’t unionize because they are supervisors,” said Givan.
Similarly, Suzanne Gordon, an award-wining journalist, author and commentator on the health care industry, is deeply worried about the effect the ruling might have on both nurses and the general public.
“The idea that nurses are supervising anything is ludicrous … many nurses have punitive supervisory functions but they are really not supervisors because their tasks are pre-assigned so if nurses can’t unionize you really have a big implication for patient care. Only nurses in unions have been able to raise patient care,” she said. “This is really a bad public health decision.”
Gordon’s most recent book, Nursing Against the Odds, focuses on health care cost cutting and hospital restructuring, and the effects on quality of patient care.
“Nurses are incredibly important,” she said. “They are the ones saving our life and it really depends on the ability of nurses to advocate for you and if nurses can’t do that because they are afraid of being fired it is a really big problem. [Nurses] now have no rights unless there are unions — there is no free speech in the [American] workplace.”
Nursing unions have planned rallies as well as political action in response to the ruling, and some are threatening to strike if they perceive employers as threatening the definition of their bargaining units.
Business groups, including those representing hospitals and health care executives, have repeatedly said the ruling will not mean vast changes in unionization levels across the industry. John Raudabaugh, a partner at Baker & McKenzie LLP in Chicago, and former NLRB member, was quoted by the Chicago Tribune as saying, “[The decision] is not a tsunami … it’s more like isolated thunderstorms.” Radabaugh filed a brief with the court supporting the majority argument.
The board’s two dissenting members called the ruling “among the most important in the board’s history,” and wrote that “the decision threatens to create a new class of workers under federal labor law [who] have neither the genuine prerogatives of management nor the statutory rights of ordinary employees.”