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Richard A. Ross

Richard A. Ross Employment & Labor

rross@fredlaw.com
612.492.7022
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Definition of Supervisor Expanded by the National Labor Relations Board

By: RICHARD A. ROSS

December 2006

The National Labor Relations Board (“NLRB” or “Board”) is the federal agency charged with enforcement of the National Labor Relations Act (“NLRA” or “Act”), which governs the relationships between employers, their employees, and unions. The Act also covers non-union employees who engage in group activities relating to terms, conditions, and privileges of employment. In 1947, the Act was amended to exclude supervisors from its protection.

The amended Act defines in Section 2(11), a “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 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 employee has the authority to engage in any one of those twelve functions, they are considered a supervisor. Their conduct cannot be routine or clerical; they must exercise independent judgment.

Because “statutory supervisors” are not covered or protected under the NLRA, they cannot organize or be part of any bargaining unit. If, for example, a supervisor in a union or non-union shop engages in what would otherwise be considered protected activity under the Act, the employer would lawfully be entitled to discipline or discharge the supervisor for his or her conduct.

The NLRB, in Oakwood Healthcare, Inc., __ NLRB ___ (2006), recently “refined” the analysis used in determining the meaning of the words “assign,” “responsibly to direct,” and “independent judgment.”

Assign

The Board construed the word “assign” to:

refer 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 a shift or overtime period), or giving significant overall duties, i.e. tasks, to an employee.

This does not include assigning the order in which certain tasks are performed or an ad hoc direction to perform a discrete task. In the context of a health care facility, for example, a charge nurse who directs an LPN to give a patient a sedative immediately does not constitute an assignment, as LPNs regularly dispense medicine as part of their duties. On the other hand, if the charge nurse assigns a nurse to a different shift or directs him or her to perform a significant task (outside normal duties), such conduct qualifies as “assigning” work. The Board stated:

In sum, to “assign” for purposes of Section 2(11) refers to the [supervisor’s] designation of significant overall duties to an employee, not to the [supervisor’s] ad hoc instruction that the employee perform a discrete task.

Responsibly to Direct

In reviewing past court decisions, the Board decided to adopt the concept of accountability in its analysis of the term “responsibly to direct.” In other words, if an individual who directs another employee is responsible and accountable for completion of an assigned task, this is evidence of supervisory status. The assigning individual must be subject to adverse consequences or discipline if the task is not properly completed. If the “buck stops” with the individual assigning the task, that person is likely to be considered a supervisor.

Thus, the Board stated:

Thus, to 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.

Independent Judgment

Finally, the Board clarified the definition of independent judgment. It stated, in the negative, that:

. . . we find 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.

If certain assignments are required by seniority or if staffing ratios were contained in the collective bargaining agreement, they would not be considered the exercise of independent judgment. The judgment must “involve a degree of discretion that rises above the ‘routine or clerical’.” For example (again in a health care facility), if the employer’s policy sets forth how a charge nurse should respond in an emergency, but he/she has the discretion to determine when an emergency exists or deviate from the plan, such judgment is evidence of supervisory status.

Conclusion

The NLRB is considered to have expanded the definition of “supervisor.” Because supervisors are not protected or covered by the Act, this decision is potentially very significant in labor relations. Many federal and state courts have looked to interpretations of the Act to interpret other employment-related statutes, such as Title VII, and determine whether a individual is an employee or an independent contractor. This could have ramifications throughout the employment context.

To help determine whether an individual is a supervisor, please consult with legal counsel.