NLRA Fix Called Threat to Management-Labor Balance

By Steve Bates May 17, 2007
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Proposed amendments to the National Labor Relations Act (NLRA) defining who is a supervisor would cause serious disruption in the balance of power between management and employees and could harm the U.S. economy, a noted employment attorney told Congress on May 8, 2007.

G. Roger King, a partner in the Jones Day Labor and Employment Group, told the House Education and Labor Committee’s Subcommittee on Health, Employment, Labor and Pensions that proposed changes go beyond a “correction” of recent National Labor Relations Board (NLRB) rulings in the “Kentucky River” trilogy of cases. These cases concern the application of the NLRA to certain employees, including nurses and lead persons in manufacturing facilities.

The decision in Oakwood Healthcare Inc.(Case 7-RC-22141) was the lead case of three NLRB rulings issued Sept. 29, 2006, but made public Oct. 3. The three collectively are referred to as the “Kentucky River” cases because the U.S. Supreme Court ordered the NLRB in 2001 to redefine its test for determining who is a supervisor under the NLRA in NLRB v. Kentucky River Community Care(121 S. Ct 1861 (2001). The Society for Human Resource Management (SHRM) filed a friend-of-the-court brief in Kentucky River in support of the employer’s position.

King, testifying on behalf of SHRM, the U.S. Chamber of Commerce and the HR Policy Association, told the congressional panel that the proposed changes to the NLRA, in H.R. 1644, “would negatively impact a wide variety of employers, not just the health care industry.”

According to King, the fixes are not necessary. He said he has reviewed NLRB and federal court of appeals decisions since 1995 interpreting a key portion of the NLRA that defines who is a supervisor. His conclusion is that in a significant majority of cases “the employees at issue were not found to be statutory supervisors.”

King stated that the proposed amendments to the NLRA “would seriously disturb the necessary but delicate equilibrium between management and labor in determining the scope and authority of employers’ supervisory workforce.”

The amendments particularly would hurt small and medium businesses that use supervisors to also perform non-management duties, King said. In a union workplace, these supervisors would be barred from performing non-management work, forcing employers to hire additional workers.

[To see a webcast of the hearing, click here.]

Continued King, if the “balance of power tilts too far in one direction or the other, the nation’s economy can be severely and adversely impacted.”

“Employers ultimately must have the complete loyalty of a sufficient number of ‘supervisors’ in their respective workforces if they are to deliver products, goods and services in an effective, productive and safe manner.”

This issue is particularly important because of employers’ need to comply with a host of laws and regulations, he said. Among them are safety and health laws and rules, measures on sexual and other forms of harassment, leave statutes, and wage and overtime laws and regulations.

Steve Bates is manager of online editorial content for SHRM. He can be reached at sbates@shrm.org.

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