Organized Labor made its intention clear to reverse the National Labor Relations Board’s “Kentucy River” decision, which clarified the definition of “supervisor” in the context of union organizing drives, in this case for nurses. Now the Democratic majority is pushing the union agenda. There is little to add here, because the so-called RESPECT Act (a tortured acronym for “Re-Empowerment of Skilled and Professional Employee and Construction Tradeworkers”) is merely an attempt to revisit a question that should have been settled a year ago. Why are the unions want this so much? Because they can exploit the ambiguity in the law. As I wrote in the early days of the 110th Congress:

On October 3, 2006, the NLRB ruled that supervisory nurses at Oakwood Heritage Hospital in Taylor, Michigan, were in fact supervisors—and therefore not open to union organizing efforts. The decision affected 127 of 181 nurses who were trying to unionize at the hospital. The Board determined that an employee is a “supervisor” if he or she: 1) performs at least one of 12 supervisory functions, such as hiring, firing, directing or assigning, enumerated in the National Labor Relations Act (NLRA); 2) exercises “independent judgment” in performing those tasks; and 3) acts for the benefit of the employer. (Oakwood Healthcare, Inc. 348 NLRB No. 37)

The Board noted that, to “exercise ‘independent judgment’ an individual must at minimum act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data,” without needing to follow specific instructions in a company manual, verbal instructions from a supervisor or the requirements of a union contract.

Two dissenting Board members wrote that the decision would be a “rude shock to nurses and other workers who for decades have been effectively protected by the National Labor Relations Act, but who may find themselves treated, for labor-law purposes, as members of management, with no right to pursue collective bargaining or engage in other concerted activity in the workplace.”

Organized labor has predicted that the decision will shut down union organizing of nurses, and in speeches and press statements, union leaders have gone overboard in claiming that millions of workers will be barred from union membership. But, as labor attorneys Carla J. Rozycki and David K. Haase note in Law.com, “This prediction was not borne out in the NLRB’s application of the Oakwood Healthcare guidelines to two other cases on the same day.” In those two cases, nurses, unlike those at Oakwood, did not qualify as supervisors because they could not require, only request, other employees to perform certain tasks.

Employers have generally welcomed the NLRB decision, since it provides clearer criteria for determining who is a supervisor, thus removing some confusion from labor negotiations. But unions have assailed the decision. AFL-CIO President John Sweeney called it “outrageous and unjustified,” and protest rallies denouncing the NLRB for “union-busting” were organized by the Teamsters and the Service Employees International Union (SEIU), unions that have had some success in unionizing nurses. The AFL-CIO has gone so far as to ask the International Labor Organization, a United Nations agency, to “investigate” the NLRB decision.

Why is Big Labor so exercised about this? Quite simply, because it profits from the confusion the NLRB is trying to clear up. As labor lawyer Bill Clifton, writing after the decision in The Macon Telegraph, notes, “The [B]oard has not always provided sound guidance regarding what ‘responsibly direct,’ ‘assign’ and ‘exercises independent judgment’ mean.” This is further complicated by “lead” or “charge” employees, who oversee some tasks, but do not have the authority to perform supervisory functions like hire, fire, lay off, or promote. And unions have
taken advantage of this gray area.

As Clifton notes, unions are trying to have it both ways. Their organizing campaigns are often led by “lead” or “charge” employees. But when employees of this type oppose union drives, then unions prefer to shut them out of the process by having them classified as supervisors. “The [B]oard has often found that an individual was a ‘supervisor’ when a union alleged that the individual committed unfair labor practices,” notes Clifton. “On the other hand, when a union wanted the individual to be included in a bargaining unit or when an employer disciplined the individual, the [B]oard tended to find that the individual was not a ‘supervisor.’” Clearer guidance from the NLRB on who is and who is not a supervisor reduces the union’s room to maneuver.

“Time will tell if predicted union efforts to lobby Congress to enact legislation that would overturn the Oakwood Healthcare decision are successful,” note Rozycki and Haase. “In the meantime, the decision in Oakwood Healthcare gives employers, employees, and unions greater guidance in determining who is a supervisor under the [NLRA].”

Yet “greater guidance” is still a far from a clear-cut definition. The Oakwood case illustrates a continuing problem with current labor law: its reliance on arbitrary—and often shifting—definitions that have no basis in either economics or law. As NLRB Milwaukee regional director Irving Gottschalk observed shortly after the ruling, “Every case is different.”

If the unions have their way, that “greater guidance” may soon be gone as well.