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National Labor Relations Board Defines Supervisory Status

By James P. Wilkins

In what may prove to be a landmark case that impacts employers for years to come, the National Labor Relations Board recently clarified the types of duties and responsibilities that make an employee a supervisor under the Act. Oakwood Healthcare, Inc. Under the National Labor Relations Act, a supervisory employee is not permitted to join a labor union, cannot engage in union activity, and is not otherwise protected by the Act. Therefore, the determination of who is or is not a “supervisor” is crucial during a union organizing effort.

In a 3-2 decision, a majority of the Board criticized past Board decisions for being “result-oriented.” In the majority’s view, the Board in the past too often has decided cases with one eye on whether its decision would result in too many workers being deemed supervisors, thereby falling outside the protection of the Act. Instead, the Board majority in Oakwood sought to apply the statutory definition by giving key words and phrases their ordinary meaning. The result is a much broader definition that is likely to result in more employees being excluded from the protections of the Act.

Section 2(11) of the Act defines “supervisor” as an employee who has “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,” provided the exercise of such authority “is not of a merely routine or clerical nature, but requires the use of independent judgment.”

In its decision, the Board grappled with what it means to “assign” employees and “responsibly to direct them.” According to the Board, to “assign” an employee means the act of designating an employee to a place (e.g., a location or department), appointing an employee to a shift, or giving significant overall duties to an employee. The majority rejected the contention that to “assign” necessarily entails determining an employee’s actual job classification.

The Board also determined that the phrase “responsibly to direct” means the alleged supervisor is held fully accountable and responsible for the performance and work product of the employees being directed. For example, if an employee is subject to discipline if work is not adequately performed by those working under his or her direction, then the employee is likely to be deemed a supervisor. The alleged supervisor also must have authority to take corrective action if necessary.

The mere exercise of the functions referenced in the statutory definition of “supervisor”—to assign, discipline, promote, etc.—is not sufficient to make an employee a supervisor unless the employee uses “independent judgment” in exercising those functions. For instance, if a decision to assign or transfer an employee is dictated or controlled by detailed instructions, such as company policies or rules, by the verbal instructions of a higher authority, or by the terms of a collective bargaining agreement, then such a decision is not made with independent judgment. On the other hand, if an employee is making decisions to assign or transfer and such decisions are free of the control of others and require forming an opinion or making an evaluation, then it is more probable that the employee will be regarded as a supervisor.

Even an employee who functions as a “supervisor” only on a part-time basis can be regarded as a supervisor. To be a supervisor, an employee only needs to perform supervisory functions on a patterned or scheduled basis for at least 10 to 15 percent of his or her total work time.

The determination of which employees are “supervisors” under the Act can have profound consequences if a union is attempting to organize an employer’s workforce. A true “supervisor,” as determined by the Board, is not eligible to vote in a union election and will not be part of the bargaining unit if the union wins the election. Many employers have found that inclusion of supervisory employees in a bargaining unit impairs an employer’s ability to manage the workforce.

Employers that are interested in assuring the supervisory status of selected employees should consider taking several proactive steps to set the stage for future evaluation of employee supervisory status. Job descriptions should explicitly state that supervisors have the type and degree of discretion and authority to meet the statutory definition of “supervisor.” Obviously, it is equally important to be able to demonstrate that the employee actually exercises such authority. Employers also should create and preserve documentation that reflects the supervisory actions and judgments of its supervisors, such as documents showing supervisory decisions to transfer, assign, and discipline subordinate employees.

ABOUT THE AUTHOR

James P. Wilkins has been practicing labor and employment law for over 20 years. His practice is devoted to advising employers on employment and labor matters, including compliance with all state and federal employment laws.

Reprinted with permission from the Fall 2006 issue of kwwlaborlaw.communicator, published by Kastner Westman & Wilkins LLC.

riskVue | The webzine for risk management professionals
February 2007