Nick Geannacopulos Quoted in California Lawyer

The article "Contested Terrain" in the "Full Disclosure" column in the January issue of California Lawyer notes that "Decisions of the National Labor Relations Board (NLRB) rarely make scintillating reading, but its ruling last fall parsing the meaning of "supervisor" could be used for anesthesia. Chairman Robert J. Battista referred repeatedly to Webster's dictionary to define three statutory terms—"assign," "responsibility to direct," and "independent judgment"—that are used in determining who is eligible to vote in a union-representation election and to join a bargaining unit under the National Labor Relations Act (NLRA). The majority in the board's 3—2 vote was responding to a recent U.S. Supreme Court case holding that the board erred when it permitted nurses using ordinary professional or technical judgment to join unions. (NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706 (2001).) In fact, the Court and the board have struggled since the Nixon administration to distinguish management prerogatives from minor supervisory duties, especially among "charge nurses." In the recent ruling, however, Battista seemed to get lost in the details—finding, for example, that "a registered nurse who makes the 'professional judgment' that a catheter needs to be changed may be performing a supervisory function when he/she responsibly directs a nursing assistant in the performance of that work." The reason all this matters from a labor law standpoint is that supervisors are exempt from NLRA protections. In two sections of the 1947 Taft-Hartley Act—2(11) and 2(12)—Congress established a "contested terrain." Section 2(11) prohibited foremen from unionizing, but also "distinguished between straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such action." (S. Rep. No. 105, 80th Cong., 1st Sess. 4—5 (1947).) But section 2(12) explicitly recognized professionals' rights to unionize under the Act. Through the decades, the U.S. Supreme Court has tried to resolve the tension between these sections, while the NLRB generally ruled according to the political ebb and flow of its appointees. "The NLRB is a very political agency," says Nick C. Geannacopulos, a partner in the San Francisco office of Seyfarth Shaw. "Stare decisis does not always apply. Because the board is so political, we'll have to wait to see how these latest words [in Oakwood] can be massaged." Geannacopulos adds, "Whether the 'lead' is a supervisor or not is always the focus of negotiations. Sometimes if leads do not want a union, the company may let them vote in a representation election. The leads could go either way-they're the people in between."