U.S. Ruling Could Eliminate Union Eligibility for Millions

Times Staff Writer

A federal labor agency Tuesday broadened its definition of who is a supervisor, in a ruling that could keep millions of skilled employees from joining unions and accelerate a decades-long decline in union membership.

In a long-awaited decision, the Republican-controlled National Labor Relations Board held that nurses could be classified as supervisors if they directed and oversaw other nurses.

Under federal law, employees defined as supervisors aren’t entitled to legal protections ensuring their right to join unions.


The labor board’s definition could be applied to other kinds of workers, particularly in the fast-growing service sector, where unions have made some gains in recent years even as overall union membership has declined nationally, labor experts said.

Even before the ruling, many employers had classified more of their workers as supervisors, in part to avoid paying them overtime. For example, many employees of restaurants, retailers and other businesses have been classified as “shift supervisors” even though most of their duties -- such as waiting on tables or cashiering -- are indistinguishable from those they supervise.

In recent years, several large retailers, including Home Depot Inc., Abercrombie & Fitch Co. and Staples Inc., have been targets of lawsuits by nonunion employees claiming they were denied overtime pay because they were classified as supervisors, even though only a small fraction of their responsibilities involved supervision.

Harley Shaiken, a UC Berkeley professor who studies labor issues, said as many as 135 cases pending before the labor board, many in the service sector and high-tech fields, could be affected by Tuesday’s ruling.

“The notion of supervision in an Internet age is a lot blurrier than when we’re talking about an assembly line or a stamping plant,” he said.

The ruling was applauded by business organizations but denounced by labor groups, which called it part of a Bush administration strategy to destroy unions.


“It’s an outrageous decision,” said Rose Ann DeMoro, executive director of the 70,000-member California Nurses Assn., which threatened to strike against hospitals that tried to enforce the new rule.

AFL-CIO President John Sweeney said the board’s decision would immediately deny as many as 8 million workers “their basic right to have a voice on the job.”

Business groups said unions were overstating the ruling’s effect.

The decision will probably affect primarily work sites where union organizing is going on, said Stephen A. Bokat, general counsel at the U.S. Chamber of Commerce. “Where there are established collective bargaining relationships,” he said, “these issues with regard to supervisors are very well established and I doubt most employers will totally upset their workplaces to meet that definition.”

Kaiser Permanente, one of the state’s largest employers of nurses, with 24,000 in California represented by two unions, said it would not take nurses out of their bargaining units who under the new ruling could be classified as supervisors.

Federal law defines supervisors as those whose jobs may require them to use “independent judgment” in the course of their duties, or have continuing responsibilities to “assign” or “responsibly direct” the activities of other employees. An employee can be considered a supervisor by performing any one of those duties -- or by having the power to hire or fire.

In Tuesday’s ruling, the labor board determined that the term “assign” could include dispatching an employee to a workstation, appointing an employee to a specific shift or to work overtime, or directing a nurse to care for a particular patient.

The five-member labor board issued rulings in three related cases. In the first, it voted 3 to 2 that permanent “charge” nurses at a Michigan acute care facility, who oversee staff, were supervisors. However, the board rejected the supervisor designation for charge nurses who rotate in and out of that job. The board’s three Republicans voted in favor of the decision, with the two Democrats opposing it.

In the two other cases, the board found that employers did not provide enough evidence to determine whether charge nurses at a Minnesota nursing home or so-called lead workers at a Mississippi manufacturing plant should also be classified as supervisors.

The rulings were triggered by a 2001 U.S. Supreme Court decision directing the board to refine its definition of a supervisor. The court ruled that nurses and other healthcare workers were not entitled to join unions if their duties included supervising others.

It is unclear whether the board’s action can be appealed.

Nationwide, an estimated 400,000 nurses are represented by collective bargaining agreements, said Jennifer Coate, spokeswoman for the Nurse Alliance of the Service Employees International Union. It is unclear how many nurses will be affected by the board’s decision.

DeMoro of the California Nurses Assn. said the ruling “opens the door to redefining every nurse as someone who uses professional judgment and is therefore ineligible for collective bargaining.”

She said, “We intend to mount a full strike against any hospital that attempts to take rights away from registered nurses.”

Workers classified as supervisors by their employers have been winning some legal battles in their bid to get overtime pay in nonunion settings. Abercrombie agreed in January to pay as much as $2 million to settle a suit filed on behalf of 250 California store managers, Longs Drug Stores Corp. paid $11 million to end two suits brought by 1,000 managers, and Countrywide Financial Corp. agreed last year to a $30-million settlement involving 400 employees. Several other cases are pending.

AFL-CIO President Sweeney said as many as 34 million workers and professionals, accounting for 23% of the labor force, would eventually fall within the scope of Tuesday’s decision.

Union membership has fallen steadily in recent decades. In 2005, 15.7 million workers, or 12.5% of the labor force, were union members, according to government figures. That was down from 1983, when 1 in 5 workers -- nearly 18 million -- carried union cards.

Sweeney said the decision would accelerate that decline by creating a category of workers with neither the legal rights of employees nor “the prerogatives of management.”

Richard Simmons, a Los Angeles lawyer who represents employers, said the decisions set forth “a more realistic standard and a more developed standard” than the board had previously adopted.

Employers will have to “look at what someone does,” he said. “It doesn’t mean that simply by ascribing the title of charge nurse to someone that they become a supervisor.”

The latest decision follows other federal actions making it harder for unions to organize workers. In 2003, for example, the administration denied collective bargaining rights to newly federalized airport security screeners. In 2004, the labor board ruled that graduate assistants were students, not employees, and therefore not entitled to the protection of federal labor law.