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Appeals Court: Labor Board Supervisor Ruling 'Fatally Flawed'
by Mike Hall, Mar 28, 2007

A RECENT National Labor Relations Board (NLRB) ruling that a registered nurse was a supervisor so that the Missouri nursing home where she worked could lawfully fire her for circulating a petition "borders on the frivolous" and contains "blatant flaws," the U.S. Court of Appeals for the District of Columbia Circuit ruled March 23. Supervisors are not protected by the nation's National Labor Relations Act (NLRA).

In unusually harsh language, the court lambasted the NLRB's action and overturned its ruling that the nurse, Lisa Jochims, was legally fired after she circulated a petition in 2002 criticizing management's plan to change RN duties at the Wilshire at Lakewood nursing home in Missouri. Writing for the court, Judge Harry T. Edwards called the NLRB's decision "fatally flawed" because the Board misapplied its own precedent and issued a judgment that is devoid of substantial evidence.

After Jochims was fired, an NLRB administrative law judge ruled she was not protected by the NLRA because she was a supervisor. But the NLRB in 2004 overruled the judge 2 to 1. After the nursing home appealed the case to the circuit court, the NLRB in 2005, with a newly constituted majority of Bush administration appointees, reversed itself and ruled 2-1 that Jochims was a supervisor.

The appeals court found that Jochims, by completing written reports concerning misconduct, sending employees home on instructions from management and permitting employees to leave early in emergencies, did not meet any of the criteria needed to classify a worker as a supervisor under prior board decisions.

The evidence cited by the Board does not support the conclusion that [Jochims] was a supervisor under the Act. Therefore, the Board's judgment in this case rests on nothing. Obviously, such a judgment must fail both for want of reasoned decision making and lack of substantial evidence.

The court sent the case back to the NLRB. But more than five years after she was fired, Jochims still doesn't have her job back.

While this case is not connected to the 2006 NLRB rulings that reinterpreted the definition of "supervisor" in a way that greatly expanded the number and types of workers who may be classified as supervisors, worker advocates say it shows how far the Bush-dominated NLRB will go to deny workers' basic workplace rights.

The most recent NLRB action amending the definition of supervisor came in three cases, collectively known as the Oakwood decisions after the lead case, Oakwood Healthcare Inc. In its Oakwood decision, the NLRB expanded the definition of supervisors so that potentially 8 million workers in every industry, including nurses, building trades workers, newspaper and television employees and others, could be classified as supervisors and so be barred from joining unions. Under federal labor law, supervisors are not protected against retaliation for forming unions.

Last week, a bipartisan bill was introduced in the House and Senate that would begin to reverse some of the most egregious of those NLRB decisions. The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act would reverse the September 2006 NLRB move that slashes longtime federal labor law protections of workers' freedom to form unions. FYI: It was a Republican party-line vote by the board.

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