Supervisory Status under the NLRA - Clear as Mud?
October 6, 2006
by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2006
Is a particular worker an employee – subject to the full panoply of protections under the National Labor Relations Act (NLRA) – or a statutory supervisor excluded from the law’s protection? Companies and unions likely will continue to argue over such important issues, notwithstanding an October 3, 2006 landmark decision by the National Labor Relations Board (Board) that was intended to help resolve such disputes.
Landmark Decision – The Board, on October 3, 2006, refined its analysis used to determine whether an individual is an "employee" – and is entitled to form, join or assist labor organizations (and vote in union representation elections), to bargain collectively and to engage in other concerted activities – or is an "supervisor" or agent of the employer for unfair labor practice liability and election objection cases. Oakwood Healthcare Inc.,
Background – The Oakwood case stems from the Supreme Court’s 2001 rejection of the Board’s overly narrow construction of the definition of a supervisor. Under Section 2(11) of the NLRA, individuals are considered supervisors if they (1) hold the authority to engage in any one of 12 enumerated supervisory functions (including the ability to "assign" or "responsibly to direct"), (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. Answering the Supreme Court, the Board in Oakwood set out definitions (discussed below) for the terms "assign," "responsibly to direct," and "independent discretion."
Assign – The Board construed “assign” to refer to the act of (1) designating an employee to a place (such as a location, department, or wing), (2) appointing an employee to a time (such as a shift or overtime period), or (3) giving significant overall duties. This definition does not cover an individual choosing the order in which an employee performs discrete tasks or to an individual’s ad hoc instruction to a discrete task.
Responsibly to Direct – The Board adopted an approach developed by a number of circuit courts in finding that for "direction" to be "responsible" the person directing and performing the oversight of the employee must be accountable for the performance of the task. To establish accountability, it must be shown that the employer delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary. It must also be shown that there is a prospect of consequences for the putative supervisor stemming from the directed employee’s performance.
Independent Judgment – The Board held that to exercise independent judgment an individual must act or effectively recommend action free of the control of others or form an opinion or evaluation by discerning and comparing data. The use of such independent judgment must rise above the merely routine or clerical. Thus, a judgment is not independent if it is dictated by or controlled by detailed instructions whether set forth in company polices or verbal instructions from a higher authority.
Results – The Board applied these new rules in three cases, all decided on October 3, 2006, with the results being decidedly mixed:
- Charge Nurses are supervisors - In Oakwood, the Board found that 12 permanent charge nurses were supervisors by virtue of their ability to assign nurses to patients based on their independent assessment of the nurse’s abilities and the patient’s needs. In the same case however, the Board rejected the employer’s argument that 112 rotating charge nurses were supervisors because they did not serve in those positions on a regular basis.
- Charge Nurses are not supervisors - In Golden Crest Healthcare Center, the Board found that, although the employer’s charge nurses responsibly directed certified nursing assistants (CNAs), the charge nurses were not accountable for the performance of the CNAs, and thus were not supervisors. This was so even though the charge nurse’s annual evaluation included a section on the direction of CNAs, since there was no evidence that any action (either positive or negative) had been or might have been taken as a result of that factor.
- Lead persons are not supervisors – In Croft Metals, Inc., the Board found that the employer’s lead persons in its manufacturing facility were not supervisors. While the Board found that these employees responsibly directed others, it ultimately found that such direction was not exercised with independent judgment. In loading trucks, for example, the lead persons used a pre-established delivery schedule and employed a standard loading pattern, whereas on the production floor the employer’s own witnesses described the lead persons’ directions as "routine."
Organized Labor’s Response – Organized labor’s response to the Board’s decisions was swift and sweeping. The AFL-CIO proclaimed that while the Supreme Court’s 2001 decision "cracked open the door" to a redefinition of who is a supervisor, the decision by the NLRB "virtually kicked it in." The Change to Win labor federation similarly claimed that the Board’s decisions, if upheld, "would allow corporations to strip millions of hard working men and women of their right to unite and form unions."
Bottom Line - Despite the vociferous response from organized labor, the jury is still out on whether the Board’s new rules will result in the reclassification of large number of employees as supervisors. The three decisions reflect a continuation of the Board’s case-by-case approach on this issue and heavy reliance on the particular facts of a given case – with particular emphasis on the individual’s use of independent judgment.
Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 335 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.
Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.
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