NLRB Definition of Supervisors
by Roger T. Manwaring
In a series of recent decisions applauded by employers but decried by organized labor, the National Labor Relations Board (NLRB or Board) expanded the definition of employees who are “supervisors” and therefore prohibited joining unions. The new definition is expected to have significant and widespread impact. The dissenting Board members predicted that the decisions would “create a new class of workers who are excluded from the Act but do not exercise the genuine prerogatives of management.” Any employer whose workforce is or might become unionized should take note of the new rules.
The NLRA Definition of Supervisor
The National Labor Relations Act (NLRA) excludes “supervisors” from its definition of “employees,” thereby prohibiting supervisors from unionizing. Unions, seeking to include as many employees as possible in the collective bargaining unit, and employers, seeking to limit the size and influence of unions, often disagree as to whether a particular employee or group of employees has supervisory status. While there is little doubt concerning the extremes -- workers with no authority over others obviously are not supervisors while white collar, high-level executives clearly are -- the status of workers in the gray middle area, those who perform jobs similar to regular employees but also have authority to direct other employees, has been hotly disputed. The recent NLRB decisions focus on the status of those intermediate workers.
According to the United States Supreme Court, §2(11) of the NLRA sets forth a three part test for supervisor status: “(1) they hold the authority to engage in any [one of 12 supervisory functions, including to ‘assign’ work or to ‘responsibly ... direct’ other employees], (2) their ‘exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,’ and (3) their authority is held ‘in the interest of the employer.’” In Oakwood Healthcare, Inc., Beverly Enterprises-Minnesota, Inc. and Croft Metals, Inc., the NLRB redefined and applied the three critical terms emphasized above.
The Oakwood Healthcare Decision
In the primary case, Oakwood, the employer argued that “charge nurses” at its hospital were supervisors. The hospital employed more than 100 registered nurses (RNs), some of whom worked permanently as charge nurses, some rotated through the charge nurse position temporarily and some did not hold that position at all. In addition, the duties of the charge nurses for regular units of the hospital differed from those of the charge nurses in the emergency room. Charge nurses other than in the emergency room often had their own patients to tend to, but also “were responsible for overseeing their patient care units, ... assign[ing] other RNs, licensed practical nurses, technicians and paramedics to patients on their shifts, ... monitor[ing] patients ... meet[ing] with doctors and the patients’ family members, and follow[ing] up on unusual incidents.”
The employer argued that all employees who acted at any time as charge nurses were supervisors because they either “assigned” or “responsibly directed” other staff, and did so exercising the type of independent judgment required by the NLRA. The union argued that none of the RNs were supervisors. In its decision, the NLRB staked out a middle ground.
“Assign”
The Board defined 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.” According to the Board,
the assignment of an employee to a certain department (e.g., housewares) or to a certain shift (e.g., night) or to certain significant overall tasks (e.g., restocking shelves) would generally qualify as “assign” within our construction. However, choosing the order in which the employee will perform discrete tasks within those assignments (e.g., restocking toasters before coffeemakers) would not be indicative of exercising the authority to “assign.”
In the context of healthcare, the Board explained that,
the term ‘assign’ encompasses the charge nurses’ responsibility to assign nurses and aides to particular patients.... [I]f a charge nurse designates an LPN to be the person who will regularly administer medications to a patient or a group of patients, the giving of that overall duty to the LPN is an assignment. On the other hand, the charge nurse’s ordering an LPN to immediately give a sedative to a particular patient does not constitute an assignment.... [T]o “assign” ... refers to the charge nurse’s designation of significant overall duties to an employee, not to the charge nurse’s ad hoc instruction that the employee perform a discrete task.
The Board held that both the emergency room charge nurse assigning other RNs to particular geographic locations within that department, and the charge nurses for other hospital units assigning of patients to particular RNs and other staff, constituted “assigning” for purposes of the NLRA because the charge nurses were “giving significant overall tasks to” those other employees.
“Responsibly Direct”
The Board rejected the employer’s claim that the charge nurses’ duties included “responsible direction” of other employees. According to the Board,
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....
Thus, to establish accountability for purposes of responsible direction, it must be shown that the employer delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary. It also must be shown that there is a prospect of adverse consequences for the putative supervisor if he/she does not take these steps.
The Board held that the charge nurses in Oakwood did not engage in responsible direction because there was no evidence that they were required to take corrective action if a subordinate failed to complete a task properly, and no evidence that charge nurses were subject to discipline or lower evaluations if staff under their direction failed to perform adequately.
“Independent Judgment”
Despite holding that the charge nurses did not responsibly direct others, the NLRB’s ruling that the charge nurses “assigned” meant that they would be supervisors if they did so using “independent judgment” as opposed to judgment that is “routine or clerical.” Prior to 2001, the NLRB had applied a rule that judgment was not independent if the alleged supervisor was exercising “ordinary professional or technical judgment in directing a less skilled employee to deliver services.” In that year, the Supreme Curt held that the test for independent judgment is the degree of discretion the alleged supervisor exercises, not the type of judgment (professional or technical).
Following the Supreme Court’ directive, the Board in Oakwood held that, at a minimum, to exercise independent judgment an individual must “act ... free of the control of others and form an opinion or evaluation by discerning and comparing data.” According to the Board, judgments form a continuum from those in which no discretion is exercised (as where the individual is subject to detailed instructions as to how a decision is to be made) to those where the “actor is wholly free from constraints.” The Board noted that “if there is only one obvious and self-evident choice” such as assigning the one RN fluent in sign language to a deaf patient, then independent judgment is not exercised. Nor is there any independent judgment in a staffing decision made solely to equalize the workloads of other employees. Similarly, 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. Thus, ... 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.”
Conversely, the existence of company policies does not prevent a decision from being made with independent judgment if the policies leave discretionary choices to the employee. For example, a decision to assign a particular RN to a given patient, which requires the charge nurse to use discretion and judgment in weighing various factors such as the patient’s condition, and the skills and training of available RNs, would involve independent judgment even if hospital policies instructed the charge nurse to consider those factors.
Applying this definition of independent judgment, the Board held that the charge nurses in the emergency room did not exercise independent judgment because their decisions were limited to assigning RNs to geographic locations of the ER to equalize workloads, without taking into account patient needs, the skills of particular nurses, or other factors. In contrast, the Board held that charge nurses in other units were exercising independent judgment because “[a] charge nurse’s analysis of an available nurse’s skill set and level of proficiency at performing certain tasks, and her application of that analysis in matching that nurse to the condition and needs of a particular patient, involves a degree of discretion markedly different than the assignment decisions exercised by most leadmen.”
Having determined that the charge nurses outside of the ER “assigned” staff using “independent judgment”, the Board concluded that they were supervisors, and, therefore, could not become union members.
Rotating Charge Nurses Not Supervisors
However, the Board limited its finding of supervisory status to only the permanent charge nurses. While stating that a person who performs supervisory functions regularly, even if only for 10-15% of his or her work time, may be a supervisor, the Board held that the employer had not submitted evidence that the rotating charge nurses took on that responsibility pursuant to any regular schedule. Therefore, they were not supervisors. Nor, according to the NLRB, were the remaining RNs who, while not charge nurses, nevertheless gave instructions to other less skilled staff.
Companion Decisions Limit The New Definition of Supervisor
Does Oakwood Healthcare deal a crippling blow to unions, stripping collective bargaining units of millions of members and much of their power? The answer will depend to a great degree on the outcome of planned appeals, and on how later decisions of the Board and the courts apply the rules set forth in Oakwood. Certainly, it is likely that many workers who’s exercise of independent professional or technical judgment in managing subordinates would not have made them supervisors under prior law will not find themselves ineligible for union membership. The new rules present an opportunity for employers who may now gain additional bargaining power when negotiating collective bargaining agreements and may have a new basis for challenging the inclusion of certain workers under existing agreements.
However, it is evident even now that the Board did not, in Oakwood, effect a wholesale conversion of every shop foreman and lead person into a supervisor. The Beverly and Croft companion cases make that much clear.
In Beverly, the Board held that a different group of charge nurses, at a different hospital, were not supervisors because they neither assigned nor responsibly directed. With respect to assignment, the Board required evidence that the alleged supervisor have authority to require or mandate that other employees comply with the assignment. While ordering a nurse to come in to work from home or stay at work past the end of a shift would be an assignment, the Board held that the employer had failed to prove that the charge nurses could require these actions on their own authority. In fact, the evidence showed that the charge nurses in Beverly gave orders of that kind only after, on each occasion, obtaining the authorization of an upper level supervisor.
Beverly also set a high bar for evidence of responsible direction. To prove that the alleged supervisor was accountable for the performance of those she directed, the Board said that the employer must introduce evidence “of actual accountability.” While the employer need show only a prospect of adverse consequences flowing from inadequate performance by those directed, the prospect must be based on more than just paper policies.
In Croft, the Board rejected an employer’s claim that various Lead Persons and Load Supervisors were supervisors within the meaning of the NLRA. These workers punched the clock like other employees, spent much of their time doing the same work as the regular employees they directed, and enjoyed the same benefits as regular employees. The Board held that they did not “assign” because there was no evidence that they prepared work schedules, appointed workers to shifts, or gave overall duties to other employees. Although the Board found that the Lead Persons and Load Supervisors did “responsibly direct” (they managed teams, corrected improper performance, and were disciplined for sub-par results), the Board held that in doing so the alleged supervisors had not exercised independent judgment. Because the Load Supervisors based their decisions on a pre-established delivery schedule and a standard loading pattern, their decisions lacked the necessary discretion to be independent judgment. The production line Lead Persons also lacked discretion because there was no evidence as to any factors they considered in making production decisions and directing other employees, and those decisions were, in any event, “routine.”
Nevertheless, the refusal of the Board in Oakwood to classify most RNs as supervisors, as well as its decisions in Beverly and Croft, indicate that there are still limits on who is a supervisor. Questions of supervisor status will continue to be highly fact dependent and will be decided on a case-by-case basis. The changes wrought by Oakwood may yet turn out to be more incremental than cataclysmic.
If you have questions regarding this or any other legal matter, please contact Roger T. Manwaring at rtm@barronstad.com or (617) 531-6584.