NLRB Clarifies the Meaning of "Supervisor" Under the National Labor Relations Act
On September 29, 2006, the National Labor Relations Board (NLRB) issued a long-anticipated decision in Oakwood Healthcare, Inc., 348 NLRB No. 37, clarifying which employees are considered “supervisors” for purposes of the National Labor Relations Act (NLRA). Section 2(11) of the NLRA, which was enacted by Congress in 1947 to exclude supervisors from the protections of the NLRA, defines “supervisor” 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 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.
“Pursuant to this definition, individuals are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 supervisory functions (e.g. ‘assign’ and ‘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.’” In Oakwood Healthcare, the NLRB sought to clarify the meaning of the terms “assign,” “responsibly to direct,” and “independent judgment” for purposes of determining supervisory status under the NLRA.
The NLRB explained that the term “assign” refers to “the act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee.” By contrast, “choosing the order in which the employee will perform discrete tasks within those assignments…would not be indicative of exercising the authority to ‘assign.’”
With respect to the phrase “responsibly to direct,” the Board held 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 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.” “[T]o establish accountability for purposes of responsible direction, 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 also must be shown that there is a prospect of adverse consequences for the putative supervisor if he/she does not take these steps.”
Finally, with respect to “independent judgment,” the Board explained that “a 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.” The Board further noted: Section 2(11) contrasts “independent judgment” with actions that are “of a merely routine or clerical nature.” Thus, the statute itself provides a baseline for the degree of discretion required to render the exercise of any of the enumerated functions of 2(11) supervisory. The authority to effect an assignment, for example, must be independent, it must involve a judgment, and the judgment must involve a degree of discretion that arises above the routine or clerical.
Applying these principles to the facts at hand, the NLRB ruled that Oakwood’s permanent charge nurses, who had the authority to assign patients to other nursing personnel and whose assignments were “based upon the skill, experience, and temperament of the other personnel and on the acuity of the patient,” were supervisory employees and thereby excluded from the protections of the Act. The Board, however, held that Oakwood’s “rotating” charge nurses were not “supervisors” because they did not regularly exercise such supervisory authority.
The principles articulated in Oakwood Healthcare extend well beyond the healthcare context at issue in that case. In fact, the dissent describes the majority opinion’s consequences as “among the most important in the Board’s history.”
In two companion decisions issued on the same day, the NLRB applied the new analysis of supervisory status articulated in Oakwood Healthcare. In Croft Metals, Inc., 348 NLRB No. 38, the Board held that “lead persons” at a door and window manufacturing facility did not qualify for supervisory status under the NLRA. Specifically, the Board found that the lead persons, who did not prepare the posted work schedules for employees, appoint employees to the production lines, departments, shifts, or any overtime periods, or give significant overall duties to employees, did not have the authority to “assign” work to other employees within the meaning of the NLRA. Although the Board concluded that the lead persons did “responsibly direct” the work of their line or crew members, the lead persons nevertheless did not qualify as “supervisors” because their “responsible direction” did not involve the exercise of “independent judgment.” Rather, the Board ruled that the degree of discretion involved did not rise above the “routine or clerical.”
In Golden Crest Healthcare Center, Inc., 348 NLRB No. 39, the Board concluded that the charge nurses at issue did not qualify for supervisory status because they lacked the authority to either “assign” or “responsibly direct” the work of other employees. In concluding that the charge nurses lacked the authority to “assign,” the Board emphasized that the charge nurses could not require other employees to stay past the end of their shifts, to come into work from home, or to shift section assignments. The Board further concluded that the charge nurses did not “responsibly direct” because the charge nurses were not truly held accountable for the performance of the other employees.
In light of new decisions, employers should carefully examine their policies and their employees’ job duties and responsibilities in determining whether certain employees will be considered supervisors under this new standard.
For more information, please contact Will Manuel at wmanuel@bradleyarant.com
