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).