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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