NLRB definition of 'supervisor' could cut union strength

By Allen Smith Oct 4, 2006

In a 3-2 opinion announced Oct. 3, the National Labor Relations Board (NLRB) expanded the definition of “supervisor” under the National Labor Relations Act (NLRA), which labor officials predicted would bar millions from the law’s protections. The decision reignited the long-standing conflict over who is a “supervisor” excluded from the protections of the NLRA.

The decision in Oakwood Healthcare Inc. (Case 7-RC-22141) actually is the lead case of three rulings issued Sept. 29 but made public Oct. 3. The three collectively are referred to as the “Kentucky River cases” because the U.S. Supreme Court ordered the NLRB in 2001 to redefine its test for determining who is a supervisor under the NLRA in NLRB v. Kentucky River Community Care (121 S. Ct 1861 (2001). The Society for Human Resource Management (SHRM) filed a friend-of-the-court brief in Kentucky River in support of the employer’s position.

The expanded definition of supervisor in Oakwood will mean that “up to 8 million workers, including nurses, building trades workers, newspaper and television employees and others may be barred from joining unions,” the AFL-CIO stated in an Oct. 3 release. “In Oakwood, the board agreed with the employer that charge nurses are supervisors. But the ruling also sets broad definitions for determining who is a supervisor that invites employers to classify nurses and many low-level employees with minor authority as supervisors,” according to the AFL-CIO.

“The board’s new definition essentially enables employers to make a supervisor out of any worker who has the authority to assign or direct another and uses independent judgment. Amazingly, the board also ruled that a worker can be classified as a supervisor if he or she spends as little as 10 percent to 15 percent of his or her time overseeing the work of others,” it added. John Sweeney, president of the AFL-CIO, called the decision “outrageous and unjustified.”

The dissenting board members in Oakwood predicted even more far-reaching consequences of the ruling, saying that “today’s decision threatens to create a new class of workers under federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees. Into that category may fall most professionals (among many other workers), who by 2012 could number almost 34 million, accounting for 23.3 percent of the workforce.”

However, in its Oakwood decision, the three board members said they “anticipate no such sea change in the law, and will continue to assess each case on its individual merits.” The board determined that 12 charge nurses at Oakwood Heritage Hospital in Taylor, Mich., should be excluded from the bargaining unit as statutory supervisors. To be a supervisor under the NLRA, any one of the supervisory functions listed in the law is necessary, the NLRB stated. These functions include the separate responsibilities of assigning and directing.

“In the health care setting, the term ‘assign’ encompasses the charge nurses’ responsibility to assign nurses and aides to particular patients,” the majority opinion stated. While the dissent thought that assignment must affect basic terms and conditions of employment or a worker’s overall status or situation, the majority opinion said “that assertion is supported neither by precedent nor the language of the statute.” They added that “it is enough that the assignment affect the employment of the employee in a manner similar to the other supervisory functions” in the series of 12 supervisory functions listed in the law.

One with responsibility to direct is not a “straw boss” but someone who has “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 NLRB ruled. In other words, the supervisor must be accountable for the work of those he or she supervises.

The board concluded that 12 charge nurses were supervisors despite a written policy for assigning nursing personnel to deliver care to patients. Although the policy guides the charge nurses’ decision-making process, it was “not so detailed as to eliminate a significant discretionary component involved in matching nursing personnel to patients,” the majority opinion stated.

By contrast, emergency department charge nurses were not supervisors because the employer did not demonstrate that they exercised independent judgment in making patient care assignments. Their main role instead seemed to be to perform triage and keep other units in the facility informed of possible admissions from the emergency room.

The employer also failed to persuade the NLRB that rotating charge nurses were supervisors. The NLRB concluded that the employer offered only superficial evidence as to the regularity of the rotating charge nurses serving in the charge nurse role.

Two other rulings

In one of the other two decisions, the NLRB ruled that “lead persons” at Croft Metals Inc. in McComb, Miss., were not supervisors and could be included in the bargaining unit. The NLRB noted that the lead persons “spend a great deal of their time actually performing hands-on work of the type performed by undisputed unit employees” (Croft Metals Inc. and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Case 15-RC 8393).

And in the third decision, the NLRB decided that charge nurses at a nursing home are employees, not supervisors. It observed that there is no evidence that the charge nurses had the authority to require certified nursing assistants to stay past the end of their shifts or come in from home.

“Because the employer has not established that the charge nurses possess the authority to require that certified nursing assistants shift their assignments, we find that the employer has not established that the charge nurses exercise supervisory authority,” the NLRB stated (Beverly Enterprises-Minnesota d/b/a Golden Crest Healthcare Center and United Steelworkers of America, AFL-CIO, CLC (Cases 18-RC-16415 and 18-RC-16416)).

Allen Smith, J.D., is SHRM’s manager of workplace law content.


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