Friday, October 13, 2006

Pro-Union Labor-Law Reform Coming in China?

The New York Times has a very interesting article on proposed labor-law reforms in China. David Barboza, China Drafts Law to Boost Unions and End Labor Abuse, N.Y. Times (Oct. 13, 2004).

Thursday, October 12, 2006

NPR on Oakwood

Below are some links to NPR coverage of the Board's Oakwood decision. Click the hypertext link and then the "Listen" button.

Labor Board Decision May Slash Union Membership
, Morning Edition (Oct. 4, 2004)

Supervisory Ruling on Nurses, Union, All Things Considered (Oct. 4, 2004)

Labor Board to Answer "Who is a Supervisor?", Morning Edition (Oct. 3, 2006)
(broadcast before NLRB issued Oakwood)

Wednesday, October 11, 2006

How Will Employers Respond to Oakwood?

A colleague recently speculated that some employers will respond to Oakwood by giving their employees the authority to “assign” or “responsibly direct” other employees in order to render them statutory supervisors. In the case of rotating charge nurses, he predicted that some employers with the same motive will increase the regularity and substantiality of the time the nurses spend as charge nurses.

Statutory supervisors have no bargaining rights, and employers may lawfully discharge them for supporting a union. By increasing their employees’ authority and thereby rendering them statutory supervisors, an employer could sidestep the Act; or so the argument goes.

I think that an employer risks being held to have violated Sections 8(a)(3) and (1) if it increases its employees’ authority out of a desire to avoid a bargaining obligation. Cf. Matson Terminals, Inc. v. NLRB, 114 F.3d 300, 302 (D.C. Cir. 1997) (“Both the Board and the courts have long held that an employer who promotes employees to supervisory positions to strip them of their right to self-organization because of a union campaign violates [Sections 8(a)(3) and (1)].”); Comcast Cablevision of Philadelphia, L.P., 313 NLRB 220, (1993) (holding that employer violated Section 8(a)(1) by promoting a union supporter to a position outside the unit to dilute the union’s support); American Tissue Corp., 336 NLRB 435, 445 (2001) (holding that employer violated Section 8(a) (3) and (1) by changing the job duties of an employee because of his union support); Regency Manor Nursing Home, 275 NLRB 261 (1985) (holding that employer violated Section 8(a)(1) by coercing employees into accepting supervisory positions in a scheme to undermine union support).

Of course, it may be difficult for the NLRB’s General Counsel to prove that an employer acted with an anti-union motive. But the proof problem is not insurmountable given the GC’s authority to subpoena documents and witnesses.

Friday, October 06, 2006

John Raudabaugh, a Former Member of the NLRB, Comments on Oakwood

Over at the HR Policy Association's NLRB Watch webpage, John N. Raudabaugh summarizes the Board's Oakwood decision and makes the following comment:

Despite organized labor’s extreme rhetoric calling the Oakwood Healthcare decision “shameless”, “cheap”, a “semantic trick”, and redefining NLRB to “National League of Republican Businessmen”, few individuals will be “deprived” of their rights. First, unlike healthcare, most industry sectors do not employ significant numbers of professionally trained, scientific, or advanced degreed individuals who, additionally, might also qualify for the “supervisory” exclusion. Second, unless unions actually engage in organizing, any mass “deprivation of rights” is theoretical. Targeting the NLRB when it was responding to two rebukes from the Supreme Court to “get it right” is wrong-headed. It is the 1947 amendments to the 1935 Act that is the basis for the NLRB’s ruling on who is or who is not a “supervisor.” Of course, therein lies organized labor’s objective – political rescue. This issue surely will be at the top of their legislative agenda in the new Congress.

Raudabaugh, a Republican, served as a Member of the NLRB from 1990 to 1993.

Tuesday, October 03, 2006

NLRB Issues Long-Awaited Decision Interpreting Section 2(11)

The Board issued a decision "refining" the analysis it employs to determine whether workers are "supervisors" excluded from the NLRA's protections. Based on a quick scan of the decision, it appears that the Board applied its refined standard to find that twelve permanent charge nurses were statutory supervisors but that other nurses, who served as charge nurses on a rotating basis, were not statutory supervisors. Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006) (Battista, Schaumber, and Kirsanow in majority; Liebman and Walsh dissenting in part).

From the majority opinion:
In interpreting the statutory terms “assign,” “responsibly to direct,” and “independent judgment” as set forth in this decision, we have endeavored to provide clear and broadly applicable guidance for the Board’s regulated community. Our dissenting colleagues predict that our definitions will “create a new class of workers” who are excluded from the Act but do not exercise “genuine prerogatives of management.” We anticipate no such sea change in the law, and will continue to assess each case on its individual merits. In deciding this case, moreover, we intentionally eschewed a results-oriented approach; rather, we analyzed the terms of the Act and derived definitions that, in our view, best reflect the meanings intended by Congress in passing Section 2(11) and would best serve to effectuate the underlying purposes of the Act. If our adherence to the text of and intent behind the Act should lead to consequences that some would deem undesirable, the effective remedy lies with the Congress.

From the dissenting opinion:
If the National Labor Relations Act required [the majority's interpretation]—if Congress intended to define supervisors in a way that swept in large numbers of professionals and other workers without true managerial prerogatives—then the Board would be dutybound to apply the statute that way. But that is not the case. The language of the Act, its structure, and its legislative history all point to significantly narrower interpretations of the ambiguous statutory terms “assign . . . other employees” and “responsibly to direct them” than the majority adopts. The majority rejects what it calls a “results-oriented approach” in interpreting the Act. But the reasonableness of the majority’s interpretation can surely be tested by its real-world consequences. Congress cared about the precise scope of the Act’s definition of “supervisor,” and so should the Board. Instead, the majority’s decision reflects an unfortunate failure to engage in the sort of reasoned decision-making that Congress expected from the Board, which has the “primary responsibility for developing and applying national labor policy.”

The NLRB issued this press release describing the Oakwood decision. The AFL-CIO has issued this press release criticizing the Board's decision, and the U.S. Chamber of Commerce issued this press release supporting it.

Here are some articles addressing the Board's decision:
Steven Greenhouse, Board Redefines Rules for Union Exemption, N.Y. Times, Oct. 4, 2006
Dale Russakoff, Some Workers Change Collars, Wash. Post, Oct. 4, 2006 at D01
Barbara Rose, Board Decision Could Bar More From Unions, Chicago Trib., Oct. 4, 2006
Lois M. Collins, Unions Criticize Ruling on Nurses, Deseret Morn. News, Oct. 4, 2006
Diane Stafford, Labor Board Decision Goes Against Unions, Kan. City Star, Oct. 4, 2006
Anya Sostek, , Pitt. Post-Gazette, Oct. 4, 2006NLRB: Nursing Supervisors Not Eligible for NLRB
Will Lester, NLRB Redefines Union Eligibility, Lacrosse Trib., Oct. 4, 2006
Alejandro Bodipo-Memba, Unions: Ruling Hurts Nurses, Det. Free Press, Oct. 4, 2006

The Board also issued two other decisions applying Oakwood's refined standard. Golden Crest Healthcare Center, 348 NLRB No. 39 (2006) (Battista, Schaumber, and Kirsanow in unanimous decision finding that an employer failed to prove that a group of nurses were statutory supervisors); Croft Metals, Inc., 348 NLRB No. 38 (2006) (Battista, Schaumber, and Kirsanow in unanimous decision finding that an employer failed to prove that its lead persons were statutory supervisors).