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NLRB ruling spells end of union eligibility for millions

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in Employment Law,Human Resources,Leaders & Managers,Management Training

In recent years, unions have pushed to organize well-compensated professionals. In response, employers have argued that those professionals form part of the management team and, therefore, are not eligible for union representation.

Last month, the employers' view won out. In a long-anticipated decision, the National Labor Relations Board (NLRB) voted 3-2 that nurses who run shifts at health care facilities are management supervisors who aren't eligible for union membership.

The case carries implications for other employees who exercise some supervisory functions, especially in the service sector. AFL-CIO President John Sweeney estimated that the ruling could affect 8 million employees in fields from accounting to food service.

The case

Nearly 200 registered nurses work at an acute-care facility in Michigan. All provide direct patient care and the facility classifies some as charge nurses. A charge nurse oversees other nurses and assigns tasks.

Oakwood wanted the charge nurses excluded from the union bargaining unit, arguing that they were supervisors because they use independent judgment in assigning other nursing staff work and directing their work.

The NLRB ruled that RNs whom the facility designated as permanent charge nurses were supervisors, while RNs who only occasionally oversaw charge nurses were not supervisors.

The Board said true supervisors use judgment over and above that which is "routine or clerical," and isn't controlled by a detailed policy or regulation. Supervisors also assign work if they do more than tell others how to do a specific task: They designate specific overall duties to others and are accountable for that work. Finally, supervisors spend a substantial amount of time on supervisory tasks. (Oakwood Healthcare, Inc., 348 NLRB 37, 2006)

What it means

The NLRB made clear that it bases each case on specific facts and that it's the employer's responsibility to show that supervisors meet the test.

For example, the same day it decided Oakwood, the board rejected two other employers' claims. In one case, lead workers on a factory line were deemed not to be supervisors. Although the NLRB said the lead workers did direct the line crew and were responsible for meeting production goals, they didn't use independent judgment in directing the work. Guidelines and delivery schedules predetermined everything. (Golden Crest Healthcare Center, 348 NLRB 39, 2006 and Croft Metals, Inc., 348 NLRB 38, 2006)

What employers should do now

Even if you aren't currently operating in a union environment, now is a good time to see which employees likely would be considered supervisors and which would be rank-and-file workers.

Start by looking over job descriptions and identify the essential functions. Pay attention to:

  • Authority to direct and assign work.
  • Whether the supervisor is accountable for the work he or she directs and assigns.
  • Whether the direction and assignment of work depends on independent judgment, or rigid guidelines.

Bottom line: The more freedom the supervisor exercises in management activities, the more accountable the supervisor is for the results and the more likely he or she is a true supervisor.

Employees who are supervisors for union purposes may also be exempt employees under the FLSA, but not always. Analyze job functions to see if the employee meets one of the exempt categories under the FLSA regulations.  

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