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Behind Closed Doors, NLRB Decides Fate of Millions of Workers
Written by Erin Johansson   
July 06, 2006

 Behind closed doors, the fate of millions of America’s workers will be decided by the National Labor Relations Board.  The five-member Board is considering three cases which could strip millions of workers-including nurses, quality control inspectors, sales representatives, and many others-of their rights to form a union and collectively bargain.  Yet despite the great significance of the ruling, the Republican majority of the Board is refusing to hold public hearings on the matter.

Biggest decision in years

In a series of cases widely viewed as among the most important the Board will decide this decade, the Board will clarify which types of workers are supervisors, a designation that would leave these newly classified supervisors without the right to form a union provided by the National Labor Relations Act (NLRA).  In 2001, the Supreme Court rejected the Board’s method of determining supervisory status in the Kentucky River case,1 forcing the Board to reexamine the issue.  In three pending cases, Oakwood Healthcare, Golden Crest Healthcare, and Croft Metals,2 the Board will put forth its new test for determining who is a supervisor.  The new test is supposed to be based on factors such as the use of independent judgment in directing employees, the amount of time spent supervising, and changes in the workplace giving employees greater autonomy.  Once the three cases are decided, 135 cases pending at the Board will move forward, extending the impact of the Board’s decision to a wide range of occupations and affecting millions of workers.

Organizing campaigns put on hold

Workers across the country have been waiting for the Board to decide when an employee is a supervisor, including nurses at Salt Lake Regional Medical Center who cast their ballots in a union representation election back in May 2002.  Before the votes could be counted, the hospital challenged the election, claiming that some of the nurses were supervisors and therefore ineligible to be in the union.  The ballots have been impounded for four years while the case has been pending before the Board.

Millions potentially impacted by decision

In addition to the employees involved in the Board’s pending cases, the stakes are high for millions of workers whose jobs include even minor, incidental, or occasional supervisory duties.  For instance, over 3 million registered nurses and nurses practitioners3 could lose their right to form a union if the Board decides to expand the definition of supervisor to cover a wider range of job classifications.  Additionally, longtime union members could suddenly lose representation when their contracts run out.

Stripping union rights from millions of professional and technical workers affects not only the workers but the broader public as well.  According to a recent survey of nurses, 59 percent say that a reason to organize unions is to have a formal channel to work with management to address issues that impact patient care, such as short-staffing and cost-cutting on equipment and supplies.4  In the absence of a union, nurses are left with little power to advocate for improved patient care. 

Board driven by ideology, not informed public policy

Given the wide implications of these supervisory cases, the Board should be holding public hearings to hear from affected parties.  Indeed, between 1980 and 2000, the Board held oral arguments in 23 significant cases, holding at least four in every five-year period during that time.5  Yet since the Bush Board took over in 2001, it has not held a single oral argument.6

By refusing to hold oral arguments in the supervisor cases, will the Board members simply apply predetermined ideology to the ruling?  If the recent decisions of the Republican majority of the Board reveal an ideology, it’s one that denies workers their right to organize. 

Bush Board more than willing to eliminate workers’ rights

In July 2004, the Board ruled that graduate teaching and research assistants were not covered under the NLRA, arguing that their status as students superseded their role as employees.7  In September 2004, the Board ruled that disabled persons receiving rehabilitative services are also not eligible to form unions under the NLRA.8  Two months later, temporary employees were barred from organizing unless they had the permission of both their employer and temp agency.9  The Republican majority then went on to strip organizing rights from artists’ models10 and newspaper carriers.11  And earlier this year, the majority ruled that employees of a private nonprofit that performs quasi-public functions are public employees, without coverage by the NLRA.12

These recent decisions diminishing coverage of the NLRA do not bode well for the millions of employees that could be deemed supervisors by this Board.  Furthermore, the Board’s decision to rule on these crucial cases behind closed doors indicates that its members have little respect for longstanding procedural practices.

If there was ever a time for the Board to hear from those impacted by its decisions, the time is now.  Few rulings will have a greater impact on workers, employers and the broader public.

1. NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001).
2. National Labor Relations Board, "Notice and Invitation to File Briefs in Oakwood Healthcare, Golden Crest Healthcare Center, and Croft Metals – 7-RC-22141; 18-RC-16415; 15-RC-8393," 25 July 2003.
3. Bureau of Labor Statistics, "Occupational Employment and Wages, May 2005."  
4. Peter D. Hart Research Associates, March 2004.
5. Motion to Present Oral Argument in the Oakwood Healthcare, Golden Crest Healthcare, and Croft Metals cases before the NLRB, filed by the UAW, USW, the Boilermakers, and the AFL-CIO.
6. Ibid.
7. Julie Martinez Ortega and Erin Johansson, "Back to School Blues," AlterNet, 13 Sept. 2004.
8. "NLRB Turns Back the Clock, Relegates Disabled Workers to Second-Class Status ," Workers’ Rights Watch: Eye on the NLRB, American Rights at Work, Nov. 2004.
9. Amy Joyce, "Temps Lose Bargaining Rights Won In 2000," The Washington Post, 30 Nov. 2004: E01.
10. Pennsylvania Academy of The Fine Arts 343 NLRB 93 (2004).
11. "Extra, Extra: NLRB Denies Newspaper Carriers Right to Organize ," Workers’ Rights Watch: Eye on the NLRB, American Rights at Work, Oct. 2005.
12. State Bar of New Mexico 346 NLRB 64 (2006).
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