NLRB ruling blurs line on who is, isn't a supervisor
By Michael Kinsman
Comedian Stephen Colbert has a simple solution for labor-management relations in America.
''Let's make everyone a supervisor,'' he says. ''The CEO will supervise the office manager; the office manager will supervise the janitor; and the janitor will supervise the CEO. That way they're all equal. It's the great circle of life.''
Determining who is and who is not a supervisor these days is no laughing matter. That is underscored by the recent ruling from the National Labor Relations Board that could exclude millions of workers from the collective bargaining process by labeling them supervisors.
In a decision likely to be challenged in court, the NLRB ruled that nurses permanently assigned to run work shifts could be considered supervisors exempt from some U.S.labor law protections and could be barred from membership in hospital unions. In addition, those who work supervisory shifts on a rotating basis may be exempt from supervisory status in some cases - but not all.
The decision, which involved a Michigan medical center, will likely be applied in other industries.
"This could be the worst thing to happen to workers in a long, long time," says Stewart Acuff, organizing director of the AFL-CIO. "It's an ugly undermining of a law that was passed to do one thing: challenge corporate power with the collective bargaining process."
The National Labor Relations Act was passed by Congress in 1935 to guarantee workers the right to join unions without fear of management reprisal. The NLRB was created at the same time to make sure employers complied with the law.
"The act was written to make collective bargaining a public policy," Acuff says. "There is no mistake about that."
Supervisors traditionally have been identified as individuals who have the authority to hire, fire or discipline others. This authority sets them apart from the general work force. Supervisors surrender some job protections enjoyed by workers represented by a union.
Ross Eisenbrey, policy director for the Economic Policy Institute in Washington, said the NLRA expressly stipulates that working foremen, team leaders and first-line supervisors were to be considered part of worker bargaining units.
In his take on Tuesday's NLRB decision, U.S. Chamber of Commerce attorney Stephen Bokat praised it for providing "a good, clear standard" on what workers are supervisors. "When undergoing any organizing efforts by unions, you have to know who in the work force belongs to you and who belongs to the union," he said.
But as it now stands, employers have the right to "create" supervisors out of workers who take the simplest initiative. Anyone who functions as a team leader in the workplace can be defined as a supervisor even if they don't hire or evaluate other employees.
It doesn't really matter if a team leader is giving modest direction, he or she now could be ineligible to be part of a union. In fact, a study by EPI shows that one of every three registered nurses in the country might be considered a supervisor if the NLRB continues down its current path.
Could a loading-dock worker be called a supervisor for telling a co-worker that a truck must be loaded with the heaviest items on the bottom or that the top of the load must be secured with ropes?
This distorts the notion of a supervisor. Everyone today has some discretion in their jobs, but that doesn't make them supervisors.
The trouble with making more people supervisors is that people lose their only chance to band together in self-interest.
"If someone in the collective bargaining unit complains to management about work conditions, they can't be retaliated against," Eisenbrey says. "But as a supervisor, you don't have the right to say no. That's a big thing."
The collective bargaining process remains as the best tool for individuals to deal with misdirected acts by management. When groups of workers stand up to protest, companies have to listen.
It wasn't always that way. The National Labor Relations Act was adopted during a time when entire cities were crippled by strikes, factory work was halted when workers protested and labor unrest often led to violence.
Prior to the act, employers established every work rule. They penalized and fired individual workers at whim; the workplace of the 1930s was far removed from the relative civility of today.
In recent years, the NLRB has taken a passive approach to enforcing the act. Acuff fears that the current attitude of the federal government risks destroying working conditions that were established after years of negotiating between workers and employers. He also fears that the balance of labor-management relations could be tilted in favor of management.
"Congress has a responsibility to see to it that the intent of the National Labor Relations Act is upheld," he says. "The intent of the act is to promote collective bargaining, not constrict it or weaken it."
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