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11/02/06 National Labor Board Attacks Again

On October 3, 2006 the National Labor Relations Board did “It” again. By a 3 to 2 majority (Bush Appointees in favor) they launched another attack against Unions and working men and women. In the case: NLRB vs. Kentucky River, the Board expanded the ruling on what it takes to be labeled a supervisor. By expanding the definition of “supervisor “, the Board has restricted the right of millions to join Unions. In this case charge nurses attempting to join have been told “sorry see ya”. The attack on the middle class continues through this decision which strangely was supported only by the “Bush” Board appointees. Oddly, the democratic appointees dissented.

But so that my opinion is “Fair and Kinda Balanced” I have included the Text from the Board official website, to allow you to read the opinion yourself from the three Board individuals with virtually no Labor experience but plenty of corporate experience to give their fair and honest decision. NOT.

You will also see the dissent opinion which I hope you find interesting.

To give you a more humorous and balanced view I have included a link to a report by humorist Steven Colbert on the Board Case.

http://www.youtube.com/watch?v=arSyu4he-kU 

Do not keep silent. Email the Whitehouse and thank them for placing such anti-worker individuals onto the Board.

Email to :

comments@whitehouse.gov 

NLRB ISSUES LEAD CASE ADDRESSING SUPERVISORY STATUS

IN RESPONSE TO SUPREME COURT’S DECISION IN KENTUCKY RIVER

The National Labor Relations Board has set forth guidelines for determining whether an individual is a supervisor under the National Labor Relations Act.  In a major decision made public today, with a 3-2 vote, the Board held that the permanent charge nurses employed by the Employer, Oakwood Heritage Hospital, an acute care hospital, exercised supervisory authority in assigning employees within the meaning of Section 2(11) of the Act.  Oakwood Healthcare, Inc., 348 NLRB No. 37 (Sept. 29, 2006).

   The Board found that the charge nurses, as a regular part of their duties, assigned nursing personnel to the specific patients for whom they would care during their shift.  The Board found that such assignments, which consisted of giving “significant overall duties” to an employee, met the statutory definition of “assign” under the Act.  The Board further found that the Employer met its burden to show that its charge nurses exercised independent judgment in making such assignments.  Finally, the Board found that the Employer failed to establish that the rotating charge nurses exercised supervisory authority for a “substantial” part of their work time.  As a result, the Board found that only the Employer’s permanent charge nurses were supervisors, rather than employees, under the Act.  The majority opinion is signed by Chairman Robert J. Battista and Members Peter C. Schaumber and Peter N. Kirsanow.  Members Wilma B. Liebman and Dennis P. Walsh dissented.  The decision is posted on the Board’s website at www.nlrb.gov.

 In NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), the Supreme Court criticized the Board’s extant interpretation of the Section 2(11) term “independent judgment.”  As a result, the Board endeavored in today’s Oakwood Healthcare decision to reexamine and clarify its interpretations of the term “independent judgment” as well as the terms “assign” and “responsibly to direct,” as those terms are set forth in Section 2(11).  The Board proffered the following definitions. 

  The Board defined “assign” as the act of “designating an employee to a place (such as a location, department, or wing), appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties, i.e. tasks, to an employee.”  Further, to “assign” for purposes of the Act, “refers to the . . . designation of significant overall duties to an employee, not to the . . . ad hoc instruction that the employee perform a discrete task.” 

 The Board then defined the statutory term “responsibly to direct” as follows:  “If a person on the shop floor has men under him, and if that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, provided that the direction is both ‘responsible’ . . . and carried out with independent judgment.”  The Board held that the element of “responsible” direction involved a finding of accountability, so that it must be shown that the “employer delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary” and that “there is a prospect of adverse consequences for the putative supervisor” arising from his/her direction of other employees.

  Finally, consistent with the Supreme Court’s decision in Kentucky River, the Board adopted an interpretation of the term “independent judgment” that applies irrespective of the Section 2(11) supervisory function implicated, and without regard to whether the judgment is exercised using professional or technical expertise.  The Board defined the statutory term “independent judgment” in relation to two concepts.  First, to be independent, the judgment exercised must not be effectively controlled by another authority.  Thus, where a judgment is dictated or controlled by detailed instructions or regulations, the judgment would not be found to be sufficiently “independent” under the Act. 

 The Board further found that the degree of discretion exercised must rise above the “routine or clerical” in order to constitute “independent judgment” under the Act.   

  In dissent, Members Liebman and Walsh disagreed with the majority’s definitions of the statutory terms “assign” and “responsibly to direct,” and further disagreed with the majority’s finding that the employer’s charge nurses exercise supervisory authority in “assigning” other employees.

  The dissent contends that the majority erred in defining the term “assign” to include the act of assigning overall tasks to employees. In the dissent’s view, the assigning of tasks to employees is a “quintessential function of the minor supervisors whom Congress clearly did not intend to cover in Section 2(11).”  Accordingly, the dissent would define “assign” under the Act as the act of determining “an employee’s position with the employer,” an employee’s “designated work site,” or an employee’s “work hours.” 

  The dissent also disagrees with the majority’s definition of  “responsibly to direct,” contending that the drafters of Section 2(11) only intended the phrase to include “persons who were effectively in charge of a department-level work unit, even if they did not engage in the other supervisory functions identified in Section 2(11).”  As a result, the dissent would require the following showing to establish that a putative supervisor has the authority to “responsibly direct”:  The individual has been delegated substantial authority to ensure that a work unit achieves management’s objectives and is thus “in charge”; the individual is held accountable for the work of others; and the individual exercises significant discretion and judgment in directing his or her work unit.

 
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