NLRB Expands Scope of “Supervisors”
October 12, 2006 by Beeson Tayer & Bodine
In late September the NLRB issued its long-anticipated decision in Oakwood Healthcare, Inc., 348 NLRB No. 37, redefining who is a “supervisor” under the National Labor Relations Act. Who is and is not a supervisor is of course important in organizing drives, especially now that the Board will toss out election petitions where supervisors have been involved in the solicitation of authorization cards. It is also important in organizing drives because supervisors may be terminated by their employer for supporting a union or even for harboring pro-union sentiments. And it is important because, while it is perfectly legal for employers to include supervisors under union contracts, when a contract that includes supervisors expires, the employer may insist that supervisors be excluded from the bargaining unit. Recall that the NLRA’s definition of “supervisor” is quite broad:“The term ‘supervisor’ means any individual having 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.”In Oakwood the Board examined two of these terms in detail – “assign” and “responsibly to direct” – and gave each a broad definition. The Board construed the term “assign” to mean “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 coverall duties, i.e., tasks, to an employee.” In Oakwood the Board ruled that a charge nurse’s assignment of a patient to a nurse for the duration of a single shift was an assignment under this test. Similarly, the Board held that the decision to give an employee a single, discrete task, the decision is carried out with “independent judgment” and if the person making the decision is “responsible” for the decision. To be “responsible” for the direction, the Board explained that the alleged supervisor “must have the authority to take corrective action to ensure the task is carried out, and the alleged supervisor must be held accountable for the results. The Board refined the term “independent judgment,” explaining that for judgment to be independent it must (1) be “free of the control of others” and (2) not be “dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instruction of a higher authority, or in the provision of a collective bargaining agreement.” Finally, the Board addressed employees who perform supervisory duties only part of the time. The Board held that if an employee spends “a regular and substantial portion of his/ her work time performing supervisory functions” he is a supervisor. “Regular,” the Board says, means “according to a pattern or schedule.” And “substantial” ordinarily means “at least 10-15 percent of their total work time.” In two companion cases to Oakwood, the Board applied its new tests to deny employer claims that the leads at issue were supervisors. In the first, a nursing home case, the Board ruled that charge nurses were not supervisors where the employer failed to prove that the charge nurses had the authority to require worked to comply with their work assignments, or that any charge nurses had “experience any material consequences to her terms of employment … as a result of her performance in directing” the work of others. In the second case, the employer failed to prove that factory lead persons exercised independent judgment in directing the work of others, as the employer “adduced almost no evidence regarding the factors weighed or balanced by the lead person in making production decisions and directing employees.” The Board’s decisions in these cases must be carefully considered in any organizing campaign. As for existing bargaining relationships, employers generally cannot remove supervisors from a unit during the terms of an existing contract, and an employer’s unilateral assignment of additional duties or responsibilities to unit employees to render them supervisors may be challenged as an unlawful unilateral change in employment terms, and perhaps challenged as an unlawful transfer of unit work to non-unit employees.
The Oakwood Tests
You are a supervisor if you do either Number 1 or 2, and you do so “with independent judgment.” With Independent Judgment means:- You act free of the control of others, AND
- Your actions are not dictated or controlled by detailed instructions (written or verbal)
- Refer employees to a place (location or dept.) OR
- Appoint employees to a time (shift or O.T. assignment) OR
- Give employees significant overall duties or tasks
- You decide what will be done next and who will do it AND
- Your direction is responsible (i.e., you will suffer an adverse consequence if the employee you are overseeing does not perform)
The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.
