Legal Alert: NLRB Provides Guidelines for Determining Supervisory Status Under NLRA

Date   Oct 4, 2006
The National Labor Relations Board (NLRB) has issued a trilogy of decisions providing long-awaited guidance for determining whether an individual is a supervisor under the National Labor Relations Act (NLRA).

The National Labor Relations Board (NLRB) has issued a trilogy of decisions providing long-awaited guidance for determining whether an individual is a supervisor under the National Labor Relations Act (NLRA). See Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37 (Sept . 29, 2006) (3-2); Golden Crest Health Care Center, 348 NLRB No. 39 (Sept. 29, 2006); Croft Metals Inc., 348 NLRB No. 38 (Sept. 29, 2006). In Oakwood Healthcare, the Board defined the terms “independent judgment,” “assign,” and “responsibly direct” as those terms are used in the NLRA’s definition of supervisor. The Board revised its definition of the term “independent judgment” in light of the U.S. Supreme Court’s 2001 decision that the Board had defined that term too narrowly. See NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001).

Section 2(11) of the NLRA excludes supervisors from the definition of employee. Supervisor is defined in the Act as:

any individual having the 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, 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.

If an individual has the authority to exercise or effectively recommend the exercise of at least one of the functions described above, supervisory status will be found if that authority is held in the interest of the employer and is exercised with independent judgment.

In 2001, the U.S. Supreme Court criticized the Board’s interpretation of the term “independent judgment.” See Kentucky River Community Care. The Court held that the Board created a “startling categorical exclusion” by excluding from this term the exercise of ordinary professional or technical judgment in directing others. In analyzing the term “independent judgment,” the Supreme Court held that it is the degree of discretion involved in making the decision, not the kind of discretion exercised (whether professional, technical or otherwise), that determines the existence of independent judgment.

Independent Judgment: The Board reexamined this definition in light of the Court’s ruling in Kentucky River. The Oakwood Healthcare decision adopts a new definition for that term, as well as the terms “assign” and “responsibly direct” as those terms are used in § 2(11). Consistent with the Kentucky River decision, the Board held that the term “independent judgment” applies regardless of whether the judgment is exercised using professional or technical expertise. “In short, professional or technical judgments involving the use of independent judgment are supervisory if they involve one of the 12 supervisory functions of Section 2(11).” The Board held that judgment is not independent if it is 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.

Assign: The Board defined “assign” as the “act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee.” Assign refers to the designation of significant overall duties, not the discrete instruction to perform a specific task. In the healthcare setting, the Board held that “assign” encompasses the charge nurses’ responsibility to assign nurses and aides to particular patients.

Responsibly Direct: In defining “responsibly direct” the Board held that the person directing and performing the oversight of the employee 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.” Thus, to establish accountability for the purposes of responsible direction, the Board held that the employer must show that it delegated to this person the authority to direct the work and take corrective action if needed. Additionally, it must be shown that there is a possibility of adverse consequences to the supervisor if he or she does not properly direct the work or take the necessary corrective action. The Board also noted that in directing others, this person is carrying out the interests of management. Excluding from the coverage of the Act individuals who are aligned with management is the heart of § 2(11).

In Oakwood Healthcare, the Board held that permanent charge nurses employed by Oakwood Heritage Hospital exercised supervisory authority within the meaning of § 2(11) and, thus, should be excluded from the bargaining unit of RNs. The Board found that the permanent charge nurses met the definition of “assign” when they assigned nurses to specific patients for whom they would care during their shift. The permanent charge nurses also exercised independent judgment in making such assignments. However, rotating charge nurses did not exercise supervisory authority for a substantial part of their work time, thus they were not considered supervisors.

In Golden Crest Health Care Center, a three-member panel of the Board applied the terms “assign,” “responsibly direct,” and “independent judgment” as defined in Oakwood Healthcare and held that charge nurses employed by Golden Crest Health Care Center were not supervisors under § 2(11) of the Act.

In Golden Crest, which involved the status of charge nurses at a nursing home, the Board determined that the charge nurses did not have actual authority to assign employees; the assistant director of nursing (an undisputed supervisor) performed this duty. While there was evidence that charge nurses could request employees stay beyond the end of their shift, there was no evidence they could require an employee to do so. In some situations, the charge nurse could issue a “mandate” that an employee report to work, but only if the admitted supervisors authorized this. The penalty for refusing such a mandate was de minimis, which is another factor the Board considered in finding that the charge nurses did not exercise supervisory authority in assigning employees.

The Board also held that while the charge nurses had the authority to direct nursing assistants, they were not accountable for the job performance of the employees they directed. Thus, the charge nurses employed by Golden Crest were not supervisors under § 2(11).

In Croft Metals, also a decision by a three-member panel, the Board held that the lead persons in a manufacturing facility were not supervisors under the standards articulated in Oakwood Healthcare. In this case, the Board determined that the lead persons did not have the authority to “assign” under the Act; however, the Board did find that they responsibly directed their line crew or members. This was not sufficient to establish supervisory status, however, because the Board found that the lead persons did not exercise independent judgment. This decision highlights the fact that even if the worker performs one of the twelve duties in the NLRA's definition of supervisor, he or she must also exercise independent judgment to be considered a supervisor under the Act.

Employers’ Bottom Line

The Board’s decision in Oakwood Healthcare provides much needed direction regarding which employees should be considered supervisors under the NLRA. These three decisions also demonstrate that a determination of supervisory status is fact specific based on the individual's actual duties.

If you have any questions regarding this decision or any other labor or employment related issue, please contact the Ford & Harrison attorney with whom you usually work.