Labor E-Bulletin - Who is a Supervisor Under the NLRA?
October 5, 2006
The National Labor Relations Board issued this week a 3-2 decision in Oakwood Healthcare described by the dissenters as “among the most important in the Board’s history.” At stake is who is a “supervisor” excluded from the definition of “employee” under the National Labor Relations Act. A “supervisor” generally has no right to engage in union activity. The case involved charge nurses at a hospital, but the decision applies in every industry.
The NLRA says employees who use “independent judgment” to “assign . . . other employees” or “responsibly to direct them” are “supervisors.” This is so even though these “supervisors” may not be “exempt” for purposes of overtime pay laws.
Oakwood rejected union attempts to classify as “employees” many nurses who are “supervisors” as defined by the NLRA.
Oakwood addresses what qualifies under the NLRA as “assigning” or “responsibly directing.” Does “assigning” mean assign a task or assign to a position? How much accountability does “responsibly directing” require? What qualifies as “independent judgment” in these cases, when the “supervisor” may be adhering to policies or rules?
The NLRB also addressed individuals who are “supervisors” only part of the time: if they supervise at least 10-15 percent of the time, regularly, they may be “supervisors” and not “employees” under the NLRA. “Rotating” charge nurses did not regularly work as charge nurses and were not “supervisors” regardless of how much time a charge nurse “rotated” into the position spent supervising other employees. “Temporary” supervisors are normally “employees.”
Unions are conducting rallies to protest the NLRB’s decision. However, in our view, Oakwood reflects a return to the plain language and original intent of the Act as drafted by Senator Robert A. Taft and J. Mack Swigert, founder of our Labor and Employment Department.
In two other decisions issued the same day as Oakwood, the NLRB found that certain charge nurses and lead persons were not statutory supervisors based on the specific evidence in those cases (Golden Crest Healthcare Center and Croft Metals, Inc). These cases show that every situation needs to be addressed carefully on its merits.
As a 3-2 decision with both Democratic NLRB members dissenting, Oakwood could be overruled in the future if Democrats gain a majority on the NLRB.
Employers should review the supervisory status of charge nurses, lead persons, foremen, and other similar positions in light of Oakwood to determine whether these positions may be “supervisory” under the NLRA. Job descriptions may be reworded or responsibilities adjusted. With the direction provided by these cases, we recommend that employers make adjustments necessary to eliminate any doubt as to which side of the line an employee or group of employees fall. It is much easier and safer to do this now rather than in the middle of a union organizing drive.
An employer is usually responsible for unfair labor practices committed by “supervisors” of any level. Individuals not previously recognized as “supervisors” may need training to help them comply with federal labor law.
Any attorney in the Labor and Employment Department would be happy to discuss Oakwood and its implications and applications to any particular situation.
The NLRA says employees who use “independent judgment” to “assign . . . other employees” or “responsibly to direct them” are “supervisors.” This is so even though these “supervisors” may not be “exempt” for purposes of overtime pay laws.
Oakwood rejected union attempts to classify as “employees” many nurses who are “supervisors” as defined by the NLRA.
Oakwood addresses what qualifies under the NLRA as “assigning” or “responsibly directing.” Does “assigning” mean assign a task or assign to a position? How much accountability does “responsibly directing” require? What qualifies as “independent judgment” in these cases, when the “supervisor” may be adhering to policies or rules?
The NLRB also addressed individuals who are “supervisors” only part of the time: if they supervise at least 10-15 percent of the time, regularly, they may be “supervisors” and not “employees” under the NLRA. “Rotating” charge nurses did not regularly work as charge nurses and were not “supervisors” regardless of how much time a charge nurse “rotated” into the position spent supervising other employees. “Temporary” supervisors are normally “employees.”
Unions are conducting rallies to protest the NLRB’s decision. However, in our view, Oakwood reflects a return to the plain language and original intent of the Act as drafted by Senator Robert A. Taft and J. Mack Swigert, founder of our Labor and Employment Department.
In two other decisions issued the same day as Oakwood, the NLRB found that certain charge nurses and lead persons were not statutory supervisors based on the specific evidence in those cases (Golden Crest Healthcare Center and Croft Metals, Inc). These cases show that every situation needs to be addressed carefully on its merits.
As a 3-2 decision with both Democratic NLRB members dissenting, Oakwood could be overruled in the future if Democrats gain a majority on the NLRB.
Employers should review the supervisory status of charge nurses, lead persons, foremen, and other similar positions in light of Oakwood to determine whether these positions may be “supervisory” under the NLRA. Job descriptions may be reworded or responsibilities adjusted. With the direction provided by these cases, we recommend that employers make adjustments necessary to eliminate any doubt as to which side of the line an employee or group of employees fall. It is much easier and safer to do this now rather than in the middle of a union organizing drive.
An employer is usually responsible for unfair labor practices committed by “supervisors” of any level. Individuals not previously recognized as “supervisors” may need training to help them comply with federal labor law.
Any attorney in the Labor and Employment Department would be happy to discuss Oakwood and its implications and applications to any particular situation.
