The National Labor
Relations Board (NLRB)
issued much-anticipated
decisions in a trio of
cases intended to refine
the standard for determining
supervisory
status under the
National Labor Relations Act (NLRA). Known as the
Kentucky River cases, these rulings were the NLRB’s
response to the 2001 decision in NLRB v. Kentucky
River Community Care, Inc. in which the US Supreme
Court ruled that the NLRB had been applying the
wrong standard in deciding whether individuals
(especially nurses) are “supervisors” under federal
labor law.
What did the decisions do?
The issue of who is a supervisor under the NLRA is
extremely important. Supervisors do not have the right
to be represented by a union, which means that an
employer can have them excluded from all bargaining
units. In addition, an employer may legally forbid
supervisors from engaging in union activities, and may
even require that they participate in implementing the
employer’s labor relations strategy. Further, supervisors
are considered “agents” of the employer such that the employer can be held responsible for conduct on their
part amounting to unfair labor practices (i.e., violations
of the NLRA).
Under the law, a supervisor is –
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. |
Employees are supervisors if they perform any one of
the twelve listed supervisory functions, provided that
the exercise of that authority requires the use of
independent judgment.
Oakwood Healthcare, Inc. was the lead case of the
three; the other two cases merely apply the principles
announced in Oakwood. In Oakwood Healthcare, the
NLRB set out new definitions for what it means to “assign” and “responsibly to direct” employees (the
two most ambiguous of the twelve indicia of
supervisory status), and adopted a refined
interpretation of the term “independent judgment."
Authority to assign
The NLRB now construes the term “assign” as “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.”
This is contrasted with merely instructing employees to
perform a discrete task, or to perform one discrete task
before another.
Responsibly to direct
The NLRB now interprets the term “responsibly to
direct” to mean that the individual is accountable for the performance of the employees that they supervise.
The NLRB clarified this as follows: “[T]o establish
accountability for purposes of responsible direction, it
must be shown that the employer delegated to the putative
supervisor the authority to direct the [employees’]
work and the authority to take corrective action, if
necessary. It must also be shown that there is a
prospect of adverse consequences for the putative
supervisor if he/she does not take these steps.”
Independent judgment
The term “independent judgment” applies to all of the
twelve signs of supervisory status listed in the
definition above. The NLRB wrote that “a judgment is
not independent if it is dictated or controlled by
detailed instructions, whether set forth in company
policies or rules, the verbal instructions of a higher
authority, or in the provisions of a collective-bargaining
agreement.” At the same time, however, they were
careful to note that “the mere existence of company
policies does not eliminate independent judgment from
decision-making[.]” The key issue is whether the
individual makes discretionary choices while
exercising supervisory authority, as opposed to just
making “routine or clerical” decisions.
Response to decisions
The impact of these cases has yet to be seen. Not
surprisingly, labor organizations and pro-labor groups
(including the AFL-CIO) have criticized these
decisions, predicting that it will be much easier to prove
that individuals are supervisors and thereby preclude
them from forming or joining a union. While this
remains to be seen, these decisions make it clear that
each such issue will be decided by an analysis of the
unique, individual set of facts presented in each case.
Now that we have some more guidance on this issue,
employers should review and evaluate their labor
relations strategy as it relates to supervisors.
For example—
An employer that is currently non-union (at least as to the relevant group or bargaining unit of employees) should evaluate the likelihood that borderline individuals would, or would not, qualify as supervisors under the new, refined standards. After performing this analysis, adjustments can be made to ensure that the probable result is consistent with the employer’s labor relations strategy.
A similar evaluation should be performed by an employer whose employees are already represented by a union, but some might now qualify as supervisors as the result of these new decisions. If it appears that employees in the union might be considered as supervisors, you should consult with a labor relations specialist to decide how you might want to respond. |
Although these refined standards for supervisory status
apply to employers in all industries, they are particularly
important for health care employers. The need to staff
the hospitals around the clock means a larger number of
employees might possess some of the indications of
supervisory status. Disputes over the supervisory status
of nurses have already reached the US Supreme Court
twice (in 1994 and 2001), and two of the three
Kentucky River cases also involved litigation over the
supervisory status of nurses.
