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WASHINGTON-In a break with historical practice, the National Labor Relations Board hasn’t heard oral arguments in major labor cases in nearly six years, but 30 labor law professors now are urging the board to return to arguments in a trio of pending cases among the most significant in the board’s 71-year history. The three cases are known collectively as the “Kentucky River cases.” With these cases, the board is expected to decide-perhaps as early as the end of August-who is a supervisor for purposes of self-organization, collective bargaining and other labor rights under Section 7 of the National Labor Relations Act. The act excludes “supervisors” from its definition of “employee.” In their letter asking the board to reconsider an earlier decision against holding arguments, the law professors, led by Catherine Fisk of Duke Law School, said: “These cases may radically shift the line between labor and management, not only in the healthcare industry, but in virtually every industry and occupation. They could redefine both the category of employees protected by the Act and the category of workers who can be required to act as agents of employers in respect to labor relations.” A recently released study by the Economic Policy Institute-a labor think tank in Washington-said that the board’s decisions potentially could affect a wide range of industries, including building and construction, media, energy, shipping, accounting and health care. 1.4 million affected Based on all cases pending before the board on this issue, the study said, 1.4 million employees could be reclassified as supervisors under the broader definition of supervisor sought by employers in the Kentucky River cases. Across all occupations, that definition could affect an additional 8 million workers. In late June, the five-member board, with one member dissenting, rejected requests for oral arguments made by the AFL-CIO and the Service Employees International Union. The board said at the time that “the record and briefs adequately present and address the issues and the positions of the parties and amici.” The Kentucky River cases have been pending before the board since 2002. In July 2003, the board issued an invitation to file briefs in the three cases and 22 interested parties responded, in addition to eight briefs that previously had been filed by the parties. “Invariably the party anticipating its ox being gored asks for oral argument,” said former board member John N. Raudabaugh of the Chicago office of Baker & McKenzie, who served from 1990 to 1993. “On balance, is the marginal contribution of oral argument from people who already have written articles and assisted the parties worth further delay?” he asked. “It’s a value judgment, but in this particular matter, on the margin, I think it’s time for getting a decision.” The Kentucky River trio ( Oakwood Healthcare Inc., Case 7-RC-22141; Golden Crest Healthcare Center, cases 18-RC-16415 and -16416, and Croft Metals Inc., Case 15-RC-8393) takes its name from one of two U.S. Supreme Court decisions rejecting the board’s interpretation of “responsibly direct” and “independent judgment,” key factors in defining who is a supervisor under the act. In those two Supreme Court cases, the board unsuccessfully defended its rulings that nurses who direct other employees in their patient-care duties are not statutory supervisors. NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 579-580 (1994); NLRB v. Kentucky River Community Care Inc., 532 U.S. 706, 721 (2001). The statute defines supervisor as an individual who has the authority to undertake or to recommend effectively any one of 12 actions, said Baker & McKenzie’s Raudabaugh, including to hire, transfer or discipline other employees or responsibly direct them. This authority, he added, cannot be merely routine or clerical in nature, but requires the use of independent judgment. The board traditionally has had three members of the political party represented by the White House and two from the other party, said Duke’s Fisk. It also traditionally has had balance between representatives of management and labor perspectives, with one member in the ” sort of neutral” position, she explained. “Liberal critics of the current board believe the current White House has not honored that tradition and has, instead, appointed among the most conservative members ever,” she said. “Conservatives would dispute that characterization.” Fisk, who says, “I’m not representing anyone,” rejects suggestions by Raudabaugh and others that the law professors’ request for oral arguments in the Kentucky River cases is intended to delay further a decision that may be unfavorable to labor interests. All prior boards in the last 25 years granted oral arguments in significant cases, she said, but this board has not heard arguments in any case for 51/2 years. This board itself, she added, has called the Kentucky River cases “significant.” Laura J. Cooper of the University of Minnesota Law School, who also signed the professors’ letter and is a former board attorney, said: “It is certainly true the board decides hundreds of cases a year and many of them are quite routine. But everyone knows supervisor-definition issues are central to the rights of millions of American workers. If that doesn’t justify an extra two hours of attention, it’s hard for me to explain why the agency can’t afford to do this.” But any need for oral argument in the Kentucky River trio has been obviated by the board’s request three years ago that the parties and interested amici address 10 specific questions of concern to the board, according to Raudabaugh and others. “If you’ve been at the U.S. Supreme Court twice and you’re still at the point of working out a definition, a definition put into the statute 35 years ago, and you spell out in detail three years ago what you want the parties to address and you have carefully drafted briefs, are you going to add more by oral argument?” asked Raudabaugh. “In this case, I think it would be deleterious to getting a decision out.” And the lack of a decision seemingly frustrates both sides in this labor-management battle. “The delay has been unfortunate because it has significantly dented the ability, certainly of nurses, to organize,” said Susan Davis of New York’s Cohen, Weiss & Simon, counsel to the American Nurses Association and United American Nurses, AFL-CIO. “There are 50 to 60 cases backed up behind this trilogy of cases,” she said. “I have a case where an election was held almost three years ago. The hospital made a claim the nurses were supervisors; the board took review and the ballots have been impounded for almost three years. “I think both sides will be looking for some degree of guidance and clarity from the board so we do not end up with ballots impounded for years and elections deferred for years.” The Kentucky River issue is only one of at least eight issues considered fundamental under the statute that have been pending in cases before the board for a number of years, said labor and management lawyers. The board traditionally has sought to decide major cases with a full five-member complement because it lends authority to the decision and it avoids criticism that would occur if one of the two political parties wasn’t represented. But the board has been plagued with vacancies during the Bush administration. “At this point, the board has two [Senate] recess appointments and again that is a circumstance where they may be reluctant to lead,” said Cooper.

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