Recent NLRB Decision Provides Guidelines for Determining if an Employee is a Supervisor Under NLRA

October, 2006

The National Labor Relations Board (NLRB) recently issued a decision which provides guidelines to help employers determine whether an employee qualifies as a supervisor under the National Labor Relations Act (NLRA).

In Oakwood Healthcare, Inc., the issue before the NLRB was whether the charge nurses employed at an acute care hospital met the definition of supervisors under the NLRA. Employers have long struggled with this issue and this case endeavored to provide better guidelines. Section 2(11) defines a "supervisor" as:

"any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, 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 independent judgment."

Until now, there has been little guidance about the definitions of the terms "assign," "responsibly to direct," and "independent judgment."

The NLRB construed "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 Board also pointed out that choosing the order in which an employee performs tasks within those assignments does not indicate authority to "assign."

In addressing the term "responsibly to direct," the Board held that "for direction to be 'responsible' the person directing and performing the oversight of the employee must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly." In other words, the person directing the work must be held accountable and responsible for the performance and work of the employees he or she directs.

Finally, "independent judgment" "must involve a judgment, and the judgment must involve a degree of discretion that rises above the 'routine or clerical.'" More specifically, an individual must have the authority to "act or recommend action free from the control of others and form an opinion based or evaluation by discerning and comparing data." The Board also held that judgment is not considered independent if the person is simply following detailed instructions, such as those outlined in a company handbook or collective bargaining agreement. However, just because those policies exist, does not mean that someone lacks independent judgment.

Importantly, the decision also provides that the Board will apply the guidelines based on the individual facts and circumstances of each case.

In this case, the Board applied the guidelines and held that the permanent charge nurses met the definition of a supervisor under the NLRA.

If you have questions about this decision or would like assistance,  please contact Cascade.


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