The IUPA
responds to the NLRB ruling
Yesterday the National Labor Relations Board issued three highly
anticipated decisions defining the term supervisor under the
National Labor Relations Act (“NLRA”). In the lead case, called
Oakwood Healthcare, Inc., the NLRB expanded its interpretation of
the term supervisor to cover more employees, thus denying them the
right to join unions under the NLRA. The other two cases apply the
new interpretations to charge nurses (Golden Crest) and
manufacturing employees (Croft Metals, Inc.). The cases are
available on line at
http://www.nlrb.gov/nlrb/shared_files/decisions/slip348.asp. I
also have pdf copies which I can email, though they are large files.
While there will be a lot of publicity
on these case, particularly from other unions, their impact on law
enforcement labor unions will be mixed. Most importantly
the NLRB, and the statute it interprets, only govern to private
sector employees. Therefore, these cases are not directly
applicable to law enforcement personnel. Further, NLRB
case law generally applies only to cases involving union
certification and bargaining issues. Thus, for example, the Fair
Labor Standards Act has a very different statutory definition for
supervisors, and the NLRB decisions would have little if any
influence on employees’ entitlement to overtime. Similarly, it
would be a large stretch for any law enforcement employer to argue
that the NLRB definition of supervisor would be relevant at all in
any case other than a definition of a unit for collective bargaining
purposes. However, law enforcement employers may attempt to use the
decisions to carve certain law enforcement employees out of
collective bargaining units, particularly in states with collective
bargaining laws that follow or are similar to the NLRA.
Throughout the country, law
enforcement personnel are subject to literally hundreds of different
laws regarding unionization: some laws prohibit union certification
and bargaining, some laws have extensive provisions regarding
certification and bargaining, and some laws allow certification and
bargaining, but with very little specification. The localities that
would be most affected by the NLRB decisions are those where the
local collective bargaining law is modeled after the NLRA. In many
such localities the local labor boards may look to NLRB decisions
for guidance. However, NLRB decisions are rarely binding even on
these labor boards. In other localities that have bargaining
statutes, employers may seek to use these decisions as a policy
reason to justify changing the status of certain law enforcement
employees. In localities that have a definition of supervisor in a
statute that is different than the definition in the NLRA, the cases
should have little impact.
Even where the decisions may be
influential, their impact should be limited. These decisions are
much like the recent Supreme Court decision in
Garcia
– bad,
but not as bad as they could have been. While I will send out a
more detailed analysis of the decisions shortly, the bottom line is
that they expand the number of working foremen who would be
considered “supervisors” under the NLRA. In the law enforcement
field, employers may assert that this would include employees in job
categories such as Sergeant and possibly Corporal.
Hopefully, given the differences between the private
sector and law enforcement, we will be able to defeat any proposed
changes.
As a practical matter, even if the
cases applied in a given locality, and even if the employer sought
to exclude employees from the bargaining units based on these
decisions, it will still take some time for the issues to be
decided. In localities where a collective bargaining unit is
certified, the employer will generally have to file a request to
change the certification, at which time the union can contest the
proposed change. In localities where the scope of the unit is
established by the Collective Bargaining Agreement, or by local
ordinance enacting such an agreement, the localities will likely
need to bargain with the union over the scope of the unit or at
least give notice of the desire to change the unit.
Thus,
since the decisions do not automatically apply to law enforcement
unions, there will be time to fight any proposed changes.
In the short term, I recommend the
following:
1)
If commenting about these decisions,
sympathize with the plight of the private sector workers, but be
clear that the laws and definitions that apply to law enforcement
employees are very different.
2)
Watch for any movement by employers to
change the scope of any certification or bargaining unit.
3)
Watch for any changes in job duties
or job descriptions for intermediate level officers, such as
Sergeants or Corporals.
We will assist locals in responding to
these decisions, and will serve as a resource for information on the
subject. Please contact me if you have any questions, or if you
have seen any response from your local government on these cases.
Aaron Nisenson
General Counsel
I.U.P.A.
Office: 800-247-4872
Cell: 202-441-5334
Fax: 941-487-2570
