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Recent NLRB Decisions Address Who Is A Supervisor

November 07, 2006

The National Labor Relations Board (NLRB) issued a trilogy of decisions on September 29, 2006 that provide guidelines for determining whether an individual is a supervisor under the National Labor Relations Act (the Act). These new decisions are important to both employers and unions because they clarify when employees are protected by the Act and can be represented by a union.

This trio of cases is commonly known as the “Kentucky River Trilogy” because of the 2001 U.S. Supreme Court case (NLRB v. Kentucky River Community Care) that criticized the NLRB’s earlier interpretation of “supervisor.” Specifically, the cases address the meaning of the ambiguous terms “assign,” “responsibly to direct” and “independent judgment” as they relate to the definition of supervisor under the Act. The Act, in § 2(11), specifically excludes supervisors from its definition of “employee,” and 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 to direct them … or effectively to recommend such action, if … such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Under the Act, individuals are considered to be supervisors if: (1) they hold the authority to engage in any one of the Act’s 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.”

Oakwood Healthcare , Inc.
In the lead case, Oakwood Healthcare, Inc., the NLRB held that the hospital’s charge nurses (although not rotating charge nurses) had supervisory authority to assign employees under the Act and, therefore, were supervisors. The NLRB defined “assign” to mean designating an employee to a certain place or time (such as a particular location or shift) or “giving significant overall duties, i.e. tasks, to an employee” (not designating ad hoc or discreet tasks). The NLRB distinguished “the assignment of an employee to a certain department (e.g., housewares) or to a certain shift (e.g., night) or to certain significant overall tasks (e.g., restocking shelves)” from the assignment of ad hoc or discrete tasks, such as “restocking toasters before coffeemakers.” The latter would not indicate that the individual giving direction was exercising the authority to “assign.”

In addition, the NLRB clarified its interpretation of the terms “responsibly to direct” and “independent judgment.” The NLRB held that “responsibly to direct” means to decide which tasks will be performed by which employees and that the person directing the work is authorized to take corrective action, if necessary, and will be held accountable for the work performed. The NLRB stated that “[i]f a person on the shop floor has men under him, and if that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, provided that the direction is both ‘responsible’…and carried out with independent judgment.” The term “responsible” direction relates to the individual’s accountability, meaning that adverse consequences could result from the individual’s direction of other employees.

Consistent with Kentucky River, the NLRB defined “independent judgment” to mean acting without being controlled by another authority (which could include detailed instructions or regulations). In addition, the degree of discretion exercised must be more than “routine or clerical.” In Kentucky River, the Supreme Court had disagreed with the Board’s earlier interpretation of “independent judgment” and excluded the exercise of “ordinary professional or technical judgment in directing less skilled employees to deliver services” in defining independent judgment. The Kentucky River Court held that it is the degree of discretion involved in making the decision, not the kind of discretion exercised, that determines the existence of independent judgment under the Act. The NLRB agreed in Oakwood Healthcare, reasoning 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.”

For example, the NLRB explained, the decision to staff a shift with a certain number of nurses would not involve independent judgment if it is determined by a fixed nurse-to-patient ratio. Similarly, if a collective-bargaining agreement required that only seniority be followed in making an assignment, that act of assignment would not be supervisory. On the other hand, the NLRB reasoned that if an individual were called upon to assess job applicants’ experience, ability, attitude, and character references, the individual’s hiring recommendations likely involve the exercise of independent judgment. Similarly, if a registered nurse weighs the condition and needs of a particular patient against the skills of available nursing staff, the nurse’s assignment involves the exercise of independent judgment.

Companion Cases
Based on the standards set forth in Oakwood Healthcare, the NLRB determined in Golden Crest Healthcare Center that the charge nurses did not assign staff, as they did not have the authority to require employees to stay past the end of their shifts or to report to work when they were off-duty. In addition, the charge nurses did not responsibly direct other employees because they were not accountable for the job performance of other employees.

In Croft Metals, the NLRB found that the lead persons did not exercise independent judgment in directing employees on the production floor. While the lead persons did manage their teams, correct performance and decide the order in which work was to be performed, the NLRB found that the lead persons’ exercise of judgment was either controlled by pre-established guidelines, such as delivery schedules, or was considered routine and, therefore, was not independent judgment. Consequently, the NLRB found that the lead persons did not exercise supervisory authority under the Act.

New Decisions Offer Guidance to Employers
These new decisions offer some welcome guidance to employers regarding whether workers who direct other employees, including “lead persons,” are supervisors under the Act. For non-union employers, these cases assist in determining which employees are eligible to join a union. Further, union employers have clarification to assess current and future positions with regard to supervisor status. If you have any questions or believe that one or more positions within your organization may be affected by these decisions, please contact a member of Godfrey & Kahn’s Labor and Employment Law Team. u

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