By Ross Eisenbrey & Lawrence Mishel
Economic Policy Institute

The National Labor Relations Board (NLRB) will soon decide three cases, known collectively as the Kentucky River cases, which could change the basic rights of workers in America.

If the NLRB accedes to the demands the employers are making in these cases to significantly broaden the definition of "supervisor," hundreds of thousands of employees could be stripped of their contract protections and millions more across the economy could be denied the right to form unions or engage in collective bargaining.

The National Labor Relations Act (NLRA), the nation's primary law determining the rights of employees to join unions and bargain collectively, excludes "supervisors" from the definition of "employee" (29 USC 152 (3)). A "supervisor" is defined as:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. (29 USC 152 (11))

The three cases are: Oakwood Healthcare Inc., Golden Crest Healthcare Center, and Croft Metals, Inc. The cases deal respectively with registered nurses (RNs) acting as "charge" nurses in a hospital; "charge" nurses (RNs and LPNs) in a long-term care facility; and "leadmen" and "load supervisors" in a manufacturing facility.

The upcoming cases all involve whether these employees can be classified as supervisors and thus excluded from NLRA protections and participation in collective bargaining because they "responsibly direct other employees" while using "independent judgment." But until now no one would have called these employees "supervisors" in the traditional sense because they do not have authority to hire, fire, discipline, evaluate, or promote the employees they supposedly supervise.

Skilled and experienced workers such as registered nurses, who give instructions to co-workers about how and when to perform certain tasks, are particularly vulnerable to reclassification as supervisors under this push for a broader reinterpretation of the term. For example, nurses who tell orderlies or nurse aides to do certain things for particular patients are at high risk of reclassification, as are journeymen construction workers who guide other workers on a crew.

These forthcoming decisions have the potential to affect a wide range of workers, including many in the building and construction, broadcast, energy, shipping, accounting, and health care industries. The very broad definition of "supervisor" employers are seeking ultimately could take away the right to join a union and bargain collectively from 8 million Americans throughout the labor market.

We have analyzed the potential impact of the decisions in two ways: by examining the supervisory duties associated with the occupations involved in dozens of cases pending before the NLRB or its hearing officers, and by examining the supervisory duties of the entire U.S. private sector workforce that is covered by the NLRA.

Looking just at the dozens of pending cases, the position advocated by the employers involved would lead to the exclusion of approximately 1.4 million employees as supervisors. Across all occupations, this extreme employer-centric position would strip 8 million more workers of their right to participate in a union and bargain collectively, adding to the approximately 8.6 million first-line supervisors that the Government Accounting Office estimates have already been excluded by prior interpretations of the NLRA.