The NLRB Revisits the Definition of “Supervisor”

By October 5, 2006Articles

The National Labor Relations Board recently issued a group of decisions in an attempt to clarify the term “supervisor” as it applies to employees.  The board’s decisions were aimed at clarifying whether or not an individual should be classified as a “supervisor” under the National Labor Relations Act.  The cases, collectively known as the “Kentucky River Cases” are Oakwood Healthcare Inc., Golden Crest Healthcare, and Croft Metals.    Though we can not speculate on the true impact of these clarifications, it is inevitable that unionized and non-unionized employers should be encouraged to re-evaluate the term within their organizations. 

In Golden Healthcare, the board defined three terms useful in assigning supervisory status to employees and thus excluding individuals from the NRLB’s definition of “employee” under the Act.  All three cases established new definitions in an attempt to clarify which persons were allowed to participate in bargaining units at issue.  Also, employers and unions have previously found it difficult to distinguish “lead” duties versus supervisory duties.  

The current definition for “supervisor” is “someone who has the authority, in the interest of the employer, to perform and/or effectively recommend at least one supervisory action that indicates alignment with management interests.”  The board considers common supervisory tasks to be: hiring, promoting, discharging, assigning, disciplining, directing employees, and must be able to exercise independent judgment.  Under Oakwood, the board focused redefining three terms: assigning, directing employees, and exercising independent judgment.  

The term “assign” is now defined as “designating an employee to a place, appointing an individual to a time, or giving overall significant duties.”  The board excluded “ad hoc instruction that [an] employee perform a task” from the term.  “Directing employees” means having the “authority to direct [other employees] work and the authority to take corrective action, if necessary.”  Additionally, the individual is accountable for the performance of the task, and will be subjected to ramifications if the task is not performed satisfactorily.  Finally, “independent judgment” has been clarified to mean non-routine judgment not “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.”  In essence, the board found the degree of discretion involved to be of more importance than the type of discretion executed.

Given these revisions, the board has found that permanent charge nurses are supervisors but permanent charge nurses working only in the emergency department are not.   Also, the board excluded rotating charge nurses from supervisory status.  In Golden Crest Healthcare and Croft Metals, the board’s definitions excluded charge nurses at a nursing home and employees known as “leads” in a production facility did not classify as supervisors.

These recent revisions have not been welcomed throughout nursing unions as many have vowed to strike if such definitions are to apply to the workplace and thus restrict nurses already included in bargaining units.  Unionized employers are encouraged to consult legal counsel when reviewing and applying these new definitions to their organizations since specific restrictions exist on altering bargaining units.  Non-unionized employers are encouraged to reclassify the tasks performed by each employee with consideration of the new supervisory terms.

For any questions or comments regarding this Labor Law Update please contact attorney Michael Daly of the Daly Law Firm at (619) 525-7000 or daly@dalylawfirm.co.

Leave a Reply