What a Difference a Day Makes

And it’s a dark day, indeed. While in theory, it might sound good to be instantly promoted from rank-and-file worker to supervisor, Tuesday, October 3 will not be a day that those who received the “instant promotion” will ultimately remember fondly. When the National Labor Relations Board (NLRB) decided to decimate the meaning of the word “supervisor” to support its overtly political agenda, workers paid the price.

The decision had been anticipated for weeks, and not with glee. (See CommonDreams.org story.) And as it turns out, all the worry was not for naught — it was as bad as people expected. On October 3, in a group of decisions known as the Kentucky River decisions, the NLRB voted, in a split 3-2 decision, to dramatically expand the number of people who are considered supervisors. (Kentucky River was a 2001 case about this issue, but it was the Oakwood decision issued yesterday where the most damage was done.) Voting against workers in the Oakwood decision, as it has done in several other anti-worker cases were three Bush Administration appointees to the NLRB. (See Rep. George Miller’s NLRB Report.)

Oakwood addressed the question of whether RNs who served as “charge nurses” should be considered supervisors. Under the new test, as explained in the Oakwood decision, the assignment of routine tasks is sufficient to confer supervisory status, even if the assignment is a reflection of professional judgment and even if the employee in question has no input into the general allocation of work assignments. (See American Rights at Work press release.) In terms of how much is too much, the case holds that workers should be considered to have supervisory status where they have served in a supervisory role for at least 10–15 percent of their total work time. That’s only fifty minutes of an eight-hour shift. (See Huffington Post blog entry.)

Trouble is, this decision doesn’t come with a pay raise, but is more likely to represent a pay cut. The reason is that by expanding the definition of who is considered a supervisor, the NLRB has simultaneously reduced the number of people who can be members of unions. Neat trick, eh? And de-unionization explains about 15 percent of the increase in wage inequality among men over the past quarter-century (See Washington Post article.)

The dissent says that “Today’s decision threatens to create a new class of workers under Federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees.” (See Oakwood Healthcare, Inc. decision.) Does the majority care? No, they instead attacked the dissent, by saying:

We do not, as the dissent contends, ignore potential “real-world” consequences of our interpretations. Rather, we simply decline to engage in an analysis that seems to take as its objective a narrowing of the scope of supervisory status and to reason backward from there, relying primarily on selective excerpts from legislative history.

(See Oakwood Healthcare, Inc. decision.)

One group has calculated that this decision will affect 8 million people — all kinds of people who do the same kind of work as their peers and get paid the same amount, but because they occasionally direct other employees in the performance of their tasks, voilà, they’re now a supervisor. (See EPI Analysis.) As John Sweeney, AFL-CIO President, points out,

“[The decision] completely ignored the realities of today’s workforce, which is more skilled and educated than those of previous generations. Workplace hierarchies have flattened out. Few employees today are in jobs that don’t require them to exercise some independent judgment, to show someone else how to perform a task, to pass assignments on to co-workers. This should not cost them their right to a union voice on the job.

(See Huffington Post blog entry.)

So now there are eight million people who may find themselves out of their unions whenever their employers attempt to challenge their involvement, and it’s probably not a coincidence that they are the very folks the employer would prefer not be union members. (If someone is good enough to occasionally take charge and give their co-workers some guidance and direction, they also may very well be doing the same within their union.) But let’s not kid ourselves — these are not people that the CEO is listening to or who are participating in management-level decisions. This would encompass anyone who takes charge only one day a week. Instead of that day representing temporarily increased pay and a potential step up the career ladder, it now could mean the day the union died — the day that workers lose a significant force advocating on their behalf.

Want to know what a difference a day can make? Just ask Thomas Ouellette. Ouellette was an employee with Verizon, who asked for a day off to attend the funeral of his wife’s grandfather. Now, you can call me crazy (and some probably have), but I could never understand why companies don’t automatically grant time off to attend funerals when an employee requests it. I don’t know a single person — including people who are in some pretty bad job situations — who would rather attend a funeral than go to work. A policy which purports to decide for an employee which deaths deserve leave and which don’t is simply ludicrous and ignores the reality of human relationships. But I digress…

Mr. Oeullette attended the funeral on December 2, 2002, and accordingly was suspended by Verizon for three days, due to his unauthorized absence. His union, Local 2322 of the IBEW, cried foul and processed his grievance. In the grievance process, the suspension was reduced to one day (December 3), but the union pressed on and took Ouellette’s case to arbitration. The arbitrator issued a ruling that was not entirely clear, saying that the suspension was without cause, so the discipline should be removed from his file. The parties asked the arbitrator to clarify the ruling, and he made clear that Ouellette should be paid for December 3 and that there should be nothing in his file reflecting disciplinary action. Verizon still refused to pay Ouellette and change his record, so IBEW appealed his case to the federal district court. When Verizon lost, it appealed this case to the 1st Circuit Court of Appeals (See IBEW v. Verizon.)

The court ruled that Verizon should just comply with the arbitrator and lower court’s ruling already (with a huge dose of procedural mishmash included in the opinion.) The more important implication of this case however is: do you think Mr. Ouellette would have had the resources on his own to fight for nearly four years over one day’s pay? Especially when it’s clear that Verizon refused to be reasonable during the grievance process, wouldn’t listen to the arbitrator, and wouldn’t listen to a federal district court. (Who knows, they still could try to make a Supreme Court case out of a one-day absence.) Ouellette needed someone to fight on his behalf, and here it was his union.

It’s clear that Mr. Ouellette will never forget December 2, as that single day has meant years of grief (and not just due to losing a family member). And workers shouldn’t forget Tuesday, October 3, especially not on Tuesday, November 7, when they get a chance to make their own political decision about who is going to best protect their rights. (Hint, it’s not the candidates that restrict workers’ rights to form and join unions at every opportunity.)

More Information

Workplace Fairness: Labor Unions (new page added to our website)

Tracking image for JustAnswer widget
Tracking image for JustAnswer widget
Scroll to Top

Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.