NLRB
Clarifies Standards for "Supervisor" Status
The National Labor
Relations Board has set forth guidelines for determining
whether an individual is a supervisor under the National
Labor Relations Act and thus ineligible for union
membership. The guidelines came in three highly awaited
decisions involving the supervisory status of “charge”
nurses in healthcare facilities and “lead” persons at a
manufacturing facility.
In the main case, the
Board held that the permanent (as opposed to rotating)
charge nurses employed by the Oakwood Heritage Hospital,
an acute care hospital, exercised supervisory authority
in assigning employees within the meaning of the labor
relations act. In reaching its decision the Board
interpreted the terms “assign,” “independent judgment”
and “responsibly to direct” as they are set forth in the
act.
The Board found that at
Oakwood the permanent charge nurses, as a regular part
of their duties, assigned nursing personnel to the
specific patients for whom they would care during their
shift. The Board found that such assignments, which
consisted of giving “significant overall duties” to an
employee, met the statutory definition of “assign” under
the law. The Board further found that the hospital met
its burden to show that its charge nurses exercised
independent judgment in making such assignments.
However, the Board found that the rotating charge nurses
did not exercise supervisory authority for a
“substantial” part of their work time so they were not
considered to be supervisors.
Analysis
The Board defined “assign”
as the act of “designating an employee to a place (such
as a location, department, or wing), appointing an
individual to a time (such as a shift or overtime
period), or giving significant overall duties, i.e.
tasks, to an employee” but it does not include the
occasional instruction to perform a specific task.
The Board then defined the
statutory term “responsibly to direct” as follows: “If
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 Board held that the
element of “responsible” direction involved a finding of
accountability, so that it must be shown that the
putative supervisor has the authority to direct the work
and the authority to take corrective action, if
necessary and that “there is a prospect of adverse
consequences for the putative supervisor” arising from
his/her direction of other employees.
The Board defined the
statutory term “independent judgment” in relation to two
concepts. First, to be independent, the judgment
exercised must not be effectively controlled by another
authority. Thus, where a judgment is dictated or
controlled by detailed instructions or regulations, the
judgment would not be found to be sufficiently
“independent” under the Act. The Board further found
that the degree of discretion exercised must rise above
the “routine or clerical” in order to constitute
“independent judgment” under the Act.
In the other two cases
decided at the same times as Oakwood, the Board found in
both instances that the employees in question were not
supervisors. In the decision involving the Golden Crest
Healthcare Center, a nursing home, the Board found that
the Golden Crest’s charge nurses did not exercise
supervisory authority under the Act.
First, the Board found
that the charge nurses at issue lacked the authority to
“assign” other employees under the Act, emphasizing that
Golden Crest failed to establish that the charge nurses
possessed the authority to require other employees to
stay past the end of their shifts, to come in from
off-duty status, or to shift section assignments.
The Board further found
that the charge nurses at issue lacked the authority to
“responsibly direct” other employees under the Act,
insofar as Golden Crest failed to establish that the
charge nurses were actually held accountable for the job
performance of other employees. The Board found that
the “accountability” requirement set forth in Oakwood
was not satisfied by Golden Crest’s evidence that it had
a practice of rating charge nurses in their annual
evaluations on their performance in directing other
employees. The Board found that this evidence
constituted merely “paper” accountability and was
insufficient to establish that there was an actual
prospect that the charge nurses’ terms and conditions of
employment could be affected, either positively or
negatively, as a result of their performance in
directing other employees. Having found that the charge
nurses at issue neither “assigned” nor “responsibly
directed” other employees, the Board found that the
Golden Crest charge nurses were statutory employees, not
supervisors.
The final decision
involved Croft Metals, Inc., a manufacturing facility.
In Croft, the Board applied the definitions for “assign”
and “responsibly to direct” to find that the lead
persons at issue did not exercise supervisory authority.
After finding that the
lead persons did not possess the authority to “assign”
under the Act, the Board then found that the lead
persons responsibly directed their line or crew
members. The Board found that the lead persons were
required to manage their assigned teams, to correct
improper performance, to shift employees, and to decide
the order in which work was to be performed in order to
achieve production goals. The Board further found that
the lead persons were held accountable for the
performance of their crew or line members.
The Board then found that
the Croft failed to meet its burden to establish that
the lead persons exercised independent judgment in
directing their crew or line members. The Board found
that the lead persons’ exercise of judgment was either
fundamentally controlled by pre-established guidelines,
such as delivery schedules, or was simply routine.
Accordingly, the Board found that the lead persons did
not exercise supervisory authority under the Act.
Discussion
These three decisions
provide much needed guidance regarding which employees
are considered supervisors under the National Labor
Relations Act. However, the Board’s thorough analysis
undertaken in each decision illustrates that determining
if an employee has supervisory status is individually
fact-based and established by examining the duties of
the employees in question, both on paper and in
actuality.
Also, although these three
supervisory cases were decided in the context of who is
eligible for union membership, the guidance provided by
them can be applied in nonunion situations to help
employers determine who is a supervisor.
Essentially, to be
considered a supervisor an individual must engage in
certain activities for a substantial part of their work
time. In addition to the obvious attributes such as the
authority to hire or fire, these activities include the
authority to direct and assign work, the expectation by
management that they will be held accountable for the
performance of work by their subordinates, and the
exercise of independent judgment in carrying out their
duties.
Because of issues such as
harassment or discrimination, it is important to know
who in your organization courts would likely rule to be
a supervisor. Employers, whether unionized or not,
should examine their job descriptions and actual work
duties to determine which employees would meet the
supervisory criteria outlined in these decisions and
make sure that they are receiving proper training.
If you have
any questions regarding the NLRB's guidelines or any other human
resources topic, please contact Jack Lipovac at (515)
221-1718 or
lipovacj@hr-onesource.com.
