Summary of 2006 NLRB Decisions on Supervisors

The rights and protections bestowed on employees by the National Labor Relations Act (“NLRA”), the federal law governing labor relations, generally do not apply to persons employed as supervisors. Section 2(11) of the NLRA defines a supervisor as one –

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, 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.

Despite the statutory definition, the National Labor Relations Board (“NLRB”), the agency charged with enforcing the NLRA, has repeatedly struggled with developing a workable test for determining when a worker is a supervisor. A standard for determining supervisory status adopted by the NLRB in the 1990s was struck down by the Supreme Court in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), and since that Supreme Court decision, the standards for determining supervisory status under the NLRA have largely been in limbo. On September 29, 2006, however, the NLRB issued decisions in three cases, Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37, Croft Metals, Inc., 348 N.L.R.B. No. 38, and Golden Crest Healthcare Center, 348 N.L.R.B. No. 39, that set forth and applied new tests for identifying supervisors under the NLRA.

The NLRB’s Ruling in Oakwood Healthcare, Inc.

To qualify as a supervisor under the NLRA, an individual must have the authority to perform on behalf of the employer (or effectively recommend the performance of) at least one of the twelve supervisory functions described in the statutory definition of “supervisor” and must use independent judgment, rather than acting in a routine or clerical manner, in exercising that authority. In Oakwood, the NLRB addressed two of the supervisory functions identified in the NLRA and defined what is meant by assigning and responsibly directing employees. The NLRB ruled that an individual has the authority to “assign” if he or she makes decisions or effective recommendations regarding the time of work, the place or location where the work will be performed, or the overall tasks to be performed by an employee. The NLRB explained that “assigning” employees requires more than just instructing an employee to perform a discrete task. The NLRB further ruled that the supervisory function of responsibly directing employees means that a worker (1) directs the work of employees, (2) can take corrective action if necessary, and (3) personally faces the prospect of “adverse consequences” if the corrective action is not taken.

In addition to defining these supervisory functions, the NLRB addressed what is meant by the requirement of “independent judgment” in the exercise of a supervisory function. The NLRB explained that “independent judgment” requires that a putative supervisor “effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data.” Moreover, the exercise of judgment must be more than “routine or clerical” in nature. There is, for example, no supervisory exercise of independent judgment when a decision is “dictated or controlled by detailed instructions.” The mere existence of a policy listing standards to be considered in making a decision does not, however, eliminate independent judgment from the decision-making process if the policy leaves room for discretionary choices.

Having established the foregoing guidelines for interpreting parts of the statutory definition of “supervisor,” the NLRB then applied them to the challenged supervisory status of hospital charge nurses. It concluded that charge nurses who told other nurses the physical location of the department at which they were to begin work based simply on the need for a nurse – any nurse – at that location did exercise the supervisory function of assigning other nurses, but did not exercise a sufficient degree of independent judgment in doing so to bring them within the statutory definition of “supervisor” because their exercise of authority was of a routine nature. On the other hand, charge nurses who assigned other nurses to care for particular patients based on an assessment of an individual nurse’s skills and an individual patient’s needs did exercise independent judgment of a nonroutine nature, and the NLRB concluded that charge nurses who performed those functions on a regular basis were supervisors for NLRB purposes. However, it held that nurses who performed charge nurse functions on only a sporadic and unpredictable basis and otherwise worked as rank-and-file nurses did not qualify as statutory supervisors because a regular and substantial part of their work time was not devoted to supervisory functions. In reaching that conclusion, the NLRB relied on decisions it had rendered in the past regarding “part-time” or substitute supervisors.

The NLRB’s Ruling in Croft Metals, Inc.

In Croft Metals, the NLRB applied the standards articulated in Oakwood and refused to accord supervisory status to lead persons in a manufacturing plant. The NLRB declined to accept that lead persons “assigned” other employees where the employees’ duties were governed by their work schedules and job classifications, neither of which were determined by lead persons. The NLRB did find, however, that lead persons responsibly directed employees because “lead persons are held accountable for the level and quality of production on their lines, and are expected to monitor production, correct problems as they occur, and insure that employees remain busy.” Nonetheless, the NLRB concluded that the lead persons were not supervisors because the authority they exercised in their jobs was “routine” and did not involve the exercise of independent judgment.

The NLRB’s Ruling in Golden Crest Healthcare Center

In Golden Crest, the NLRB was asked to determine whether charge nurses in a nursing home were supervisors because they allegedly had the authority to “assign” and “responsibly direct” nursing assistants. Applying the Oakwood standards, the NLRB concluded that the charge nurses in this case performed neither of those supervisory functions. There was no authority to assign nursing assistants to particular shifts or to work beyond their regular shifts because nursing assistants suffered little or no adverse consequences for disregarding a charge nurse’s instruction. In effect, the charge nurses could merely request that nursing assistants work particular hours, and the NLRB distinguished such authority from the statutory function of assigning employees to work particular times. The NLRB also found that the charge nurses did not responsibly direct the work of the nursing assistants because they were not held accountable for the nursing assistants’ work. Although charge nurses were evaluated on their direction of nursing assistants, there was no evidence that “any adverse consequences could or would befall the charge nurses as a result of the rating” they received on that factor. Because the charge nurses did not perform any supervisory functions within the meaning of the NLRA, they could not be classified as supervisors.

Practical Implications

Although the NLRB announced its new standards for determining supervisory status in a case dealing with the healthcare industry, its definitions are applicable to all industries. Despite the fact that the NLRB found that nearly all of the workers whose supervisory status was at issue in Oakwood and its companion cases were not supervisors, organized labor has reacted to these decisions by claiming that the NLRB has greatly expanded the concept of “supervisors” under the NLRA and removed large numbers of workers from the protections of that law, thereby depriving those workers of the right to support and be represented by labor unions. The consequences of the NLRB’s new decisions on supervisory status are not likely to be as widespread as organized labor is predicting, but these decisions, by clarifying and providing guidance on some of the most commonly challenged aspects of supervisory status, will have a significant impact on the determination of which workers may be excluded from bargaining units because they are supervisors and which workers will have their actions and statements to employees legally attributed to the employer because of their status as supervisors. Employers with unionized work forces and those facing union-organizing activity should carefully review the status of workers such as lead persons, assistant supervisors, and workers who fill in for absent supervisors to determine whether they qualify as supervisors under the standards announced in Oakwood and its companion cases.