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NLRB Clarifies Test Used to Determine Exempt Supervisory Status

Volume 5, Issue 13
October 10, 2006

On September 29, 2006, the National Labor Relations Board ("NLRB") issued a long-anticipated clarification and refinement of the analysis it uses to determine supervisory status under the National Labor Relations Act ("NLRA"). Supervisors are exempt from the protections of the NLRA, including those related to unionization. The NLRB's new and improved supervisory status test was issued in response to a 2001 opinion of the United States Supreme Court, NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), in which the Court found that the NLRB's prior test for determining supervisory status was inconsistent with the NLRA.

Section 2(11) of the NLRA provides that 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.

29 U.S.C. § 152(11). To be a supervisor, an individual only has to have the authority and independent judgment to engage in or "effectively recommend" one of the foregoing twelve (12) specifically enumerated supervisory activities. In its most recent cases, the NLRB has attempted to clarify the meaning of the terms "assign", "responsibly to direct", and "independent judgment."

First, the NLRB has clarified the term "assign" as the act of "designating an employee to a place (such as a location, department, or wing), appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties, i.e. tasks, to an employee." The decision or effective recommendation to affect one of these three conditions of employment can be considered a supervisory function. This definition, however, does not extend to decisions by individuals who merely choose the order in which discrete tasks will be done within such assignments.

Second, the NLRB explained that the definition of "responsibly to direct" was intended to encompass "those individuals who exercise basic supervision but lack the authority or opportunity to carry out any of the other statutory supervisory functions (e.g., where promotional, disciplinary and similar functions are handled by a centralized human resources department)." "If a person on the shop floor has 'men under him,' and if that person decides 'what job shall be undertaken next or who shall do it,' that person is a supervisor, provided that the direction is both 'responsible' . . . and carried out with independent judgment." The NLRB determined that the term "responsibly" requires the individual to be held accountable for the performance of the task by the employee and face potential adverse consequences for the failure or improper performance of the task by the employee.

Third, "independent judgment" requires decision-making or recommendations which must not be restricted by another authority or "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." For example, "a decision to staff a shift with a certain number of nurses would not involve independent judgment if it is determined by a fixed nurse-to-patient ratio. Similarly, if a collective-bargaining agreement required that only seniority be followed in making an assignment, that act of assignment would not be supervisory." Additionally, independent judgment does not include actions that are merely routine or clerical in nature. Thus, "if there is only one obvious and self-evident choice . . . or if the assignment is made solely on the basis of equalizing workloads, then the assignment is routine or clerical in nature and does not implicate independent judgment, even if it is made free of the control of others and involves forming an opinion or evaluation by discerning and comparing data."

In the cases recently decided, the NLRB applied these refined definitions to conclude that certain individuals were supervisors and others were not. For those individuals deemed not to be supervisors, the NLRB relied upon the fact that the individuals at issue lacked accountability and/or the actual exercise of independent judgment.

For employers, these decisions are extremely significant in that they arguably broaden the definition of a statutory supervisor which will allow employers to exempt a larger section of its workforce from bargaining unit eligibility and the other protections afforded to employees covered by the NLRA. However, the application of the NLRB's modified supervisory status test remains highly fact-specific, thereby requiring a careful case-by-case analysis. Ultimately, it will remain the employer's burden to show that a particular individual fits the definition of "supervisor."

The NLRB's trio of decisions setting forth the clarified supervisory status test can be found at:

Oakwood Healthcare, Inc. http://www.nlrb.gov/nlrb/shared_files/decisions/348/348-37.htm

Golden Crest Healthcare Center http://www.nlrb.gov/nlrb/shared_files/decisions/348/348-39.htm

Croft Metals, Inc. http://www.nlrb.gov/nlrb/shared_files/decisions/348/348-38.htm

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.