Kentucky River

Volume CVII, No. 1January, 2007

Lenoard Leibowitz, Esq.

This is a longer and more detailed version of a story that appeared in the January 2007 issue of Allegro on page 7.

The attack on working people and their unions continues unabated. The Supreme Court’s decision in Kentucky River 532 U.S. 706 (2001), and the implementation of the decision in the latest trilogy of NLRB decisions under the heading of the lead case, Oakwood Healthcare, Inc., 348 NLRB No. 37, are just the latest in the ongoing effort to weaken the rights of working people and unions which actually started as far back as 1947 with the passage of the Taft-Hartley amendments to the original NLRA of 1935 (the “Wagner Act”).

In terms of their effect on American workers, the Kentucky River line of cases is a telling blow which threatens to disenfranchise millions of workers.

Since 1947 the Act has defined supervisory status in Section 2(11) as follows:

The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, **1866 or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. (Emphasis added)

Despite the enormity of the adverse effect of this recent line of cases on working people in general, it is nevertheless difficult to assess their impact on musicians.

For many years prior to the decision in Kentucky River, the definition of the term “independent judgment” did not include the advice or “direction” given to an employee which was based purely on the professional or technical expertise of the individual giving the advice or “direction”. So, for example, when a doctor gives a nurse “direction” in the operating room, or in connection with the administering of medicine, dosage, etc. that was not considered the kind of “independent judgment” referred to in the statute.

In Kentucky River, the Supreme Court rejected this definition and included such discussions as “direction” within the meaning of NLRA Sec. 2(11). In the very recent trilogy of cases decided by the NLRB following the teaching of Kentucky River, the Board has now indicted with some specificity how it is interpreting and implementing this teaching.

In reading these cases, one must keep in mind that they are dealing with only two (2) of the activities which can be deemed “supervisory”, i.e. “assign”, and “responsibly to direct”, as well as a far broader definition of the term “independent judgment.” The other 11 activities, e.g. hire, fire, etc. remain as previously defined and all must require the use of “independent judgment”. The exercise of any one of these functions, if requiring the use of “independent judgment” will classify an employee as a “supervisor”.

In this greatly expanded definition of a “supervisor” there is now the likelihood of thousands of workers being denied inclusion in bargaining units covered by the National Labor Relations Act.

In essence the Court was directing the NLRB to redefine the terms “assign”, “responsibility to direct”, and “independent judgment.”

As stated by Justice Scalia, for the 5 – 4 majority,

The text of § 2(11) of the Act that we quoted above sets forth a three-part test for determining supervisory status. Employees are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their “exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,” and (3) their authority is held “in the interest of the employer.” NLRB v. Health Care and Retirement Corp. Of America, 511 U.S. 571, 573-574, 114 S.Ct. 1778, 128 L.Ed2d 586 (1994). The only basis asserted by the Board, before the Court of Appeals and here, for rejecting respondent’s proof of supervisory status with respect to directing patient care was the Board’s interpretation of the second part of the test – to wit, that employees do not use “independent judgment” when they exercise “ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards.” The Court of Appeals rejected that interpretation, and so do we.

What all this means to musicians is that some of our bargaining units, and most specifically, all symphony, opera and ballet orchestras, are at risk of the exclusion of principal players from the bargaining unit. Such exclusion would deprive them of the protection of the National Labor Relations Act, and the protections and working conditions of the collective bargaining agreement.

In the Club Date field, leaders and sub-leaders would likewise be at risk, as would Broadway conductors, and possibly some members of Broadway orchestras.

On October 2, 2006, the NLRB decided 3 new cases involving the issues raised in Kentucky River.

In the lead case, Oakwood Healthcare, Inc. 348 NLRB No. 7 (nurses in an acute care hospital) the Board, following the Supreme Court’s direction in Kentucky River, addressed four issues: (1) the meaning of “assign”, (2) the meaning of “responsibly to direct”, (3) the meaning of “independent judgment”, and (4) the status of nurses who held allegedly supervisory duties only some of the time.

As for the term “assign”, the Board interpreted that word “to refer to the act of designating an employee to a place (such as a location, department or wing), appointing an employee to a time (e.g. a shift or overtime period), or giving significant overall duties, i.e. tasks, to an employee. Specifically in this context, they found that the charge nurses who assigned patients to nurses (at the start of a shift or when a new patient arrived) or assigned nurses to particular geographic areas (e.g. the emergency room), even though those assignments were only for the duration of the shift, had the requisite authority to “assign”.

As for “responsibly to direct”, the Board held that “direction” includes instructing other employees to perform discrete tasks, as well as “what job shall be undertaken next or who shall do it.” For such direction to be “responsible” the alleged supervisor “must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly”, or if the putative supervisor does not take the steps necessary to assure that the task(s) are performed properly. In this particular case, the Board found that the direction was not “responsible” because the employer did not offer any evidence “that the charge nurses are subject to discipline or lower evaluations if other staff members fail to adequately perform the tasks assigned to them by the charge nurses.”

As for the definition of “independent judgment”, it must be (1) “free of the control of others”, (2) not be “dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective bargaining agreement.”

Finally, as for employees who perform supervisory duties only part of the time the Board held that if an employee spends “a regular and substantial portion of his/her work time performing supervisory functions” he or she is a supervisor. Regular means “according to a pattern or schedule.” Substantial ordinarily means “at least 10-15 percent of their total work time” (citing Rhode Island Hospital, 313 NLRB 343, 349 (1993) (holding an employee serving as a supervisor every fourth weekend was a supervisor)).

The Board’s decisions in these cases were disputed by two dissenting members. Those dissents are far narrower in the definitions of the various terms than the majority, and would surely be more acceptable to the labor movement in general, and certainly to members of the AFM.

However, it is noteworthy that in each case the definitions were applied rather strictly resulting in a finding of no supervisory status in most of the petitions.

In addition to the initial organizing petition for certification, for existing bargaining units, the legal proceeding at which the issue of supervisory status can be challenged is called a Petition for Unit Clarification. All of the cases decided thus far, Kentucky River, as well as the Oakwood trilogy have dealt with newly-proposed units, rather than the “clarification” of existing units.

We do not yet know whether the Board will stray from its previous position on many Petitions for Unit Clarifications that (1) they should be granted only when there has been a change in the duties and/or the responsibilities of the subject employees, or (2) they should be reluctant to tamper with long-standing Basically, it is simply too soon to make any meaningful predictions of whether or not orchestra boards or managements of other musical ventures will seek “unit clarifications” before the NLRB, asking that certain musicians in the symphony orchestra, or in other fields, e.g. Broadway musicals, Club Dates, opera or ballet musicians, etc. should be deprived of union representation on the ground that they are “supervisors”. As discussed above, surely these cases significantly broaden the heretofore-accepted definition of that title. units for fear of destabilization thereof.

While there are some rays of hope in some of the limitations imposed on the applications of the new definitions in the Oakwood trilogy, it is still, in my opinion, too soon to predict the ultimate impact of these cases on musician bargaining units.

We must still hope that Congress will act to reverse, or at least substantially limit the Kentucky River line of cases, but until then perhaps the “burdens of proof” being applied to employers by the Board will provide sufficient protection to many AFM members and their families, as well as the members of all other unions faced with such issues.

Immediately, orchestras or other bargaining units with the equivalent of “principal players” should try to add job descriptions to their collective bargaining agreements which minimize the kinds of authority or activities which could lead to a finding of supervisory status. However, changing of the contract will not necessarily provide the desired protection unless the actual authority and behavior of these employees are also changed to eliminate some of the more glaring activities, e.g. hiring of substitutes, assigning parts, etc.

We will continue to monitor NLRB and court cases involving the Kentucky River issues, and report any significant decisions.