New NLRB Cases That Address Who Is a “Supervisor” Are Excluded From Union Representation and Collective Bargaining
- United States
- 10/06/2006
- Morgan, Lewis & Bockius LLP
In three long-awaited cases decided on September 29, 2006, the National Labor Relations Board (NLRB or Board) provided important new guidance as to when an individual is a supervisor— and therefore ineligible to be a member of a collective bargaining unit—under the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (the Act). These highly anticipated decisions may affect millions of employees around the country by determining whether they qualify as “supervisors” who, therefore, cannot be represented by a union for purposes of collective bargaining.
Two of the three recent cases, Oakwood Healthcare, Inc. and Beverly Enterprises-Minnesota, Inc. (Golden Crest Healthcare Center), involve the supervisory status of charge nurses employed by health care employers. A third case, Croft Metals, Inc., addresses whether certain employees occupying “lead person” manufacturing positions were statutory supervisors. These matters have been informally called the Board’s “Kentucky River” cases, based on a 2001 decision (NLRB v. Kentucky River Community Care), where the U.S. Supreme Court rejected aspects of the Board’s prior approach when evaluating supervisory status.
A narrow 3-2 Board majority (consisting of NLRB Chairman Robert Battista and Members Peter Schaumber and Peter Kirsanow) issued Oakwood Healthcare decision. Dissenting Board members Wilma Liebman and Dennis Walsh wrote that the new Board standards threatened to create a “new class of workers” who “have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees.”
The New Standards
The Act excludes “supervisors” from most of its legal protections, and defines the word with reference to twelve different functions: the authority 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.” Though an individual may be a supervisor if he or she satisfies any one of the factors listed in the statute (or effectively recommends the exercise of at least one of the factors) the Board focused its analysis in these cases on the meaning of two terms in particular—“assign” and “responsibly to direct”— plus the additional requirement that supervisors use “independent judgment” in exercising their authority. Taken together, the three cases set forth the following guidelines:
Assign
The Board now interprets the term “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.” The authority to perform any one of those functions can establish supervisory status. A supervisor must also be able to require that anemployee take a certain action, not simply request it. But an individual, such as a lead person, who provides only “ad hoc instruction that an employee perform a discrete task” will not normally be a supervisor under the Act.
Responsibly to Direct
The Board now interprets the term “responsibly to direct”— when evaluating someone’s potential status as a supervisor—as involving whether the individual has (a) accountability for, and (b) authority to correct, the work of employees. “Accountability” demands more than a rating on an evaluation form: it means the person performing oversight “must be accountable for the performance of the task by the other, such that some adverse consequences may befall the one providing the oversight if the tasks performed by the employee are not performed properly.”
Independent Judgment
A supervisor must use “independent judgment” in performing his or her tasks. The Board now interprets this term to mean that the judgment be free of control by detailed instructions, whether written (in the form of a company policy or a collective bargaining agreement) or verbal. But the existence of a policy detailing factors that an individual might consider in using independent judgment will not bar supervisory status.
Additionally, the judgment must be more than simply “routine or clerical.” For example, an individual assigning work solely in order to ensure an equal load amongst employees is not acting independently, and therefore will not be considered a supervisor under the Act. Independent judgment exercised using professional or technical expertise qualifies as independent judgment under the Act. This is a significant shift from the Board’s prior view.
The Board also explained that individuals who are supervisors only part of the time, and a “regular” employee the rest of the time, will be considered supervisors under the Act if they spend a “regular” and “substantial” portion of their work performing supervisory duties. Under this test, “regular” means according to a pattern or schedule, and “substantial” means at least 10–15% of an individual’s total work
time.
Implications for Management
The Board’s recent “_Kentucky River_” rulings highlight the type of detailed scrutiny that governs whether or not certain employees will be considered supervisors who are excluded from possible union representation in collective bargaining, as compared with non supervisors who can be represented and, therefore, can vote in any union representation elections. Among several important implications for management are the following points:
- On balance, these decisions may make it easier for employers to establish the supervisory status of various employees. However, all three of the recent decisions involved a detailed examination of the particular facts of each case, and all determinations in this area will involve substantial scrutiny into the actual authority and responsibility of those employees who are believed to be supervisors.
- It is prudent for all nonunion employers to review these new decisions and carefully evaluate the authority and responsibilities of all employees who the company regards as supervisors. It is especially advisable to conduct this review long before any type of possible union organizing so that employers can adjust or clarify particular responsibilities, job descriptions, and other items to eliminate questions about whether particular employees exercise supervisory authority.
- Unionized employers should also reexamine whether certain job classifications—currently part of the represented bargaining unit—should now be considered excluded supervisory positions in light of these new NLRB decisions.
- In all of these cases, employers are well-advised to seek advice from labor counsel concerning the new standards and appropriate steps that should be taken to address situations where supervisory status might be unclear. Please feel free to contact your Morgan Lewis attorney or any of the following individuals for more information about the issues discussed in this Morgan Lewis LawFlash:
Chicago
Philip A. Miscimarra 312.324.1165 [email protected]
Irvine
Peter J. Hurtgen 949.399.7130 [email protected]
Philadelphia
Doreen S. Davis 215.963.5376 [email protected]
Washington, D.C.
Charles I. Cohen 202.739.5710 [email protected]
Joseph E. Santucci Jr. 202.739.5398 [email protected]
