Employees who are “supervisors” as defined in the National Labor Relations Act (NLRA) are not entitled to have union representation or engage in collective bargaining. Three recent related rulings by the National Labor Relations Board interpreting who is a “supervisor” under the NLRA should, with assistance of legal counsel, help employers determine which employees are excluded from union participation. Employers should find this determination important for several reasons. First, the employer is bound by the actions of its supervisors, thus, for example, if a supervisor disciplines an employee because of that employee’s union activity, the employer will be held accountable. Second, supervisor participation in a collective bargaining campaign constitutes interference with the bargaining process, so an employer must ensure its supervisors refrain from such participation. Finally, since supervisors are not covered by the protective provisions of the NLRA, a supervisor’s union activity is grounds for termination.
In Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37, 9/29/06 [released 10/3/06], the Board ruled registered nurses who serve as charge nurses on a permanent basis are supervisors and thus not covered by the NLRA, because the nurses regularly designate significant duties for other employees, are accountable for those employees’ performances, and exercise independent judgment involving discretionary choices in making those assignments.
The Board’s ruling interpreted section 2(11) of the NLRA, which defines a supervisor as an individual who has, among other things, either the authority to assign or the responsibility to direct other employees, as long as that exercise of authority or responsibility requires independent judgment. The Board ruled authority to assign for NLRA purposes requires the designation of significant overall duties to an employee, rather than just providing ad hoc instruction to perform a discrete task. The Board provided as an example the assignment of an employee to a certain department or shift, or to certain significant overall tasks. For responsibility to direct, the Board ruled the employee must be accountable for the performance of the directed task and have authority to take corrective action if the task is performed improperly. The Board ruled judgment is not independent when it is dictated by company policies or rules, detailed instructions from a higher authority, or a collective bargaining agreement’s provisions. But if an employee is still permitted to make discretionary choices, a requirement to follow company dictates does not necessarily negate the employee’s independent judgment. Finally, while the new supervisor definition will be applied consistently across different types of workplaces, the Board advised that the designation of who is a supervisor must be made “on a case by case basis.”
The Board applied its new supervisor definition in Oakwood Healthcare to a group of registered nurses who oversee other nurses, nurses’ aides, and technicians, and ruled the permanent charge nurses are supervisors for NLRA purposes. While the Board ruled the permanent charge nurses do not have the responsibility to direct other employees because they are not held accountable for the performance of the others’ tasks, the Board ruled the permanent charge nurses do have authority to assign other employees because they assign other nurses to patients, designate nurses to particular hospital locations, and determine what work employees will be required to perform during their shifts. The Board also ruled the permanent charge nurses exercise independent judgment in making those assignments because they choose among staff members on each shift, matching each employee’s skill set to the particular task, which involves a high degree of discretion. On the other hand, the rotating charge nurses were ruled not to be supervisors. Although they exercise supervisory functions, they do not regularly and substantially perform those functions under an established or predictable schedule.
Applying its new supervisor definition from Oakwood Healthcare, the Board also ruled a group of charge nurses in Beverly Enterprises-Minnesota, Inc., 348 N.L.R.B. No. 39, 9/29/06 [released 10/3/06], and lead persons at a manufacturing facility in Croft Metals Inc., 348 N.L.R.B. No. 38, 9/29/06 [released 10/3/06], are not supervisors for NLRA purposes. In Beverly Enterprises, the Board ruled the charge nurses do not have authority to assign because they cannot require other nurses to stay past the end of their shifts or come in to work from home, nor can they require nurses to change their section assignments. The Board also ruled the charge nurses do not have responsibility to direct other nurses because they are not held accountable for the others’ performance. In Croft Metals, the Board ruled lead persons at the facility do not have authority to assign because they cannot assign employees to production lines, departments, shifts, or overtime. But the Board ruled the leads do have responsibility to direct because they allocate work to others in order to meet production goals during their shifts, and are disciplined when those goals are not met. The Board ultimately ruled, however, that the leads are not supervisors for NLRA purposes because their functions are routine and do not require discretionary decisions.
Critical reaction to these decisions has been strong. Organized labor has suggested it will seek Congressional action, stage demonstrations, and authorize strikes if employers attempt to exploit the decisions. Given this strong reaction, the likely prospect for future appeals, and the fact the Board’s rulings will be interpreted on a case by case basis, employers should be cautioned to seek legal advice before relying on the rulings to classify groups of employees as supervisors for NLRA purposes.
For more information on this and other topics in Labor and Employment Law or labor and employment law training, please contact Robert L. Hobbins or Douglas R. Christensen, Partners in the Labor and Employment Law practice at Dorsey & Whitney LLP’s Minneapolis office, at (612) 340-2919/8875, or Michael Droke, Partner in the Labor and Employment law practice at the Firm’s Seattle office, at (206) 903-8709.