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Effect given to the recommendations of the Committee and the Governing Body
Effect given to the recommendations of the Committee and the Governing Body
- 70. The Committee last examined this case, which concerns three decisions (“Oakwood trilogy”) of the National Labor Relations Board (NLRB) setting out a new expanded interpretation of the definition of “supervisor” so as to potentially exclude large categories of workers from the protection of the right to organize and bargain collectively under the National Labor Relations Act (NLRA), at its March 2008 meeting [see 349th Report, paras 794–858]. On that occasion, the Committee made the following recommendations:
- (a) The Committee requests the Government to take all the necessary steps, in consultation with the social partners, to ensure that the exclusion that may be made of supervisory staff under the NRLA is limited to those workers genuinely representing the interests of the employers. The Committee requests to be kept informed of progress made in this respect.
- (b) The Committee requests the Government to keep it informed of the impact of the Oakwood trilogy, on the one hand with regard to future decisions applying the Oakwood interpretation as to what constitutes authority to “assign” or “responsibly direct”, and on the other hand, with regard to the concerns raised by the complainant on possible clogging of the representation and collective bargaining process through an increase in appeals filed by the employers with a view to challenging the status of employees in bargaining units.
- 71. In a communication dated 8 October 2009, the Government indicates that it has reviewed the court decisions that have used the standards enunciated in the Oakwood cases. According to the Government, there are no cases where individuals have been deemed to be supervisors, using the Oakwood interpretation, other than workers genuinely representing the interests of employers. In particular, the Government refers to NLRB v. Atlantic Paratrans of NYC, Inc., 300 Fed. Appx. 54 (2d Cir. 2008), enforcing a bargaining order against the employer and finding that dispatchers were not supervisors as they did not use independent judgement in assigning drivers to their routes or responsibly direct others; Family Healthcare Inc., 354 NLRB No. 29 (2009), declaring that a doctor was not a supervisor and ruling that the employer had violated the NLRA in discharging her; and Metropolitan Interpreters and Translators, 2009 WL 330606 (NLRB Div. of Judges) (5 February 2009) in which a shift supervisor linguist was found to be a supervisor, having the authority to “assign” and “responsibly direct”, but also authority, indicating supervisory status, to “transfer” and “discipline” other employees. The Government indicates that because the decisions applying the Oakwood standard have resulted in few workers being deemed supervisors under the NLRA, the standard alone does not appear to be an incentive for employers to challenge employee status. Moreover, according to the information from the NLRB, Oakwood-related challenges account for less than 1 per cent of Board cases.
- 72. The Committee notes the information provided by the Government on the three cases where the Oakwood standard was applied. It requests the Government to continue keeping it informed of the impact of the Oakwood trilogy, on the one hand, with regard to future decisions applying the Oakwood interpretation as to what constitutes authority to “assign” or “responsibly direct”, and on the other hand, on the number of appeals filed by the employers with a view to challenging the status of employees in bargaining units.
