Labor fears ruling could hurt efforts to organize

By Diane E. Lewis
Boston Globe
July 11, 2006

Massachusetts labor leaders are awaiting a decision that could level a powerful blow to labor's organizing efforts in the rapidly growing retail and healthcare industries.

At issue: a pending National Labor Relations Board ruling unions fear will broaden the definition of a supervisor, giving employers the right to exempt many more workers from union membership, including registered nurses, factory foremen, and retail managers.

With just 12.5 percent of the nation's workforce in unions, down from 12.9 percent in 2004, labor leaders have increased organizing in the services sector where demand for professionals and lower-wage workers remains high. As a result, the newest union recruit is just as likely to be a supermarket meat manager as a janitor. Unions fear that a decision to expand the definition of a supervisor could hinder their recruitment efforts, further reducing their ranks.

"This case has the potential to change the rules across many, many industries," said Boston lawyer Burton Rosenthal of Segal, Roitman & Coleman . "No matter what industry, the employer is looking to determine whether some of its employees could be declared statutory supervisors and, therefore, not eligible to join a union."

Hoping to garner public support, Massachusetts unions will demonstrate downtown today outside the NLRB's regional headquarters. Elsewhere, labor leaders are planning protests throughout the week. An NLRB decision is expected within a couple of months.

Business groups are supporting a more expansive definition of supervisors. "We strongly believe that anybody who has supervisory authority should be exempt," said Stephen Bokat , senior vice president and general counsel for the US Chamber of Commerce. "You cannot have double loyalty in a unionized facility. If you are directing subordinates, then you should report to management. But that won't work if you are also a member of a union because your loyalties are divided."

Unions, meanwhile, worry that with three newly appointed Republican members on the NLRB, the panel is more likely to agree with the business community. Patricia Gilbert, a spokeswoman for the NLRB, says labor's fears are unfounded. "The board will examine the facts and that will determine the final decision," she said.

Questions about what constitutes a supervisor stem from a 2001 Supreme Court ruling in which the high court said an NLRB's analysis of the supervisory status of six registered nurses at a Kentucky nursing facility was flawed.

Earlier, a mostly Democratic board had ruled that nurses at the facility were not supervisors because they did not exercise independent judgment. The court remanded the case back to the board, and recommended that it review the role and duties of a supervisor more carefully.

Some nurses are concerned the board's decision will exempt them from collective bargaining because they sometimes work as charge nurses, a role that allows the nurse to determine which patients will be seen by his or her colleagues.
"We have had collective bargaining for 30 years, and we don't want to lose it now," said Beth Piknick, a registered nurse and the president of the 20,000-member Massachusetts Nurses Association .

The 275,000-member Service Employees International Union Local 1199 , which represents 12,000 Massachusetts healthcare workers, said about 10 percent of its overall membership could be affected by the decision.

"Our concern is that there could be an impact on registered nurses," said Mike Fadel , Local 1199's executive vice president. "That would be a terrible backwards step if the most effective advocates for patients were stripped of protections."

Joseph Dart , the president of the Massachusetts Building Trades Council , worries a decision to bar low-level managers from unions could upset existing union contracts. He represents 75,000 members who belong to the state's trade unions, including foremen who direct the work of their peers.

Employers "may seek to extract managers from bargaining units," said Dart.

Gene Giacobbe , 52, says he is concerned about losing union status, too. He runs the flower shop at a Stop & Shop in Saugus, and supervises the activities of four part-time employees.

"I do some evaluations, but as far as hiring, firing and suspensions, that is done by the store manager and not by me," said Giacobbe. If the NLRB sides with employers and he gets reclassified as an exempt manager, Giacobbe said he would rather remain in the union.

"I'd look at stepping down from department manager to a clerk," he said. "It would cost me some money, but in the long run, I'd be better off."