NLRB Revises Definition of "Supervisors"
The recent National Labor Relations Board (NLRB) ruling in Oakwood Healthcare, Inc. [click here for opinion] provides a much needed clarification of the standards to determine which employees qualify as “supervisors” under the National Labor Relations Act. By a 3-2 vote, the Board held that the permanent charge nurses employed by the Employer, Oakwood Heritage Hospital, an acute care hospital, exercised supervisory authority in assigning employees within the meaning of Section 2(11) of the National Labor Relations Act.
The definition of supervisor under the Act is critical because employees who qualify as supervisors under the National Labor Relations Act are excluded from bargaining units and may be prohibited from supporting unionization. Employers across the country are pleased with the outcome because the ruling provides a rational and clear standard for determining which employees are supervisors. However, unions are already expressing concerns that the Board’s decision is too narrow and excludes too many employees from the union’s control.
Supervisors Under the National Labor Relations Act
Section 2(11) of the Act defines supervisors as “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off , recall, promote, discharge, assign, reward, or discipline other employees, or responsibly 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.” In Oakwood, the Board clarified the terms “assign,” “responsibly to direct,” and “independent judgment.”
Assign
The Board defined “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.” Further, to “assign” for purposes of the Act, “refers to the . . . designation of significant overall duties to an employee, not to the . . . ad hoc instruction that the employee perform a discrete task.”
Responsibly to Direct
The Board also determined that the term “responsibly to direct” means the individual at issue must provide oversight to other employees and must be directly responsible for the other employee’s performance of the task. The individual must have the ability to take necessary corrective action against employees for poor performance, and the employer must show that the individual could face disciplinary measures for failing to take the necessary corrective actions with the subordinate.
Independent Judgment
In reversing prior cases, the NLRB held that independent judgment means “not subject to control by others” and “the action of judging; the mental or intellectual process of forming an opinion or evaluating by discerning and comparing.” The supervisor is not using independent judgment if he or she is governed by policies or detailed instructions promulgated by supervisors or the employer. The Board also held that the degree of discretion exercised must rise above the “routine or clerical” in order to constitute “independent judgment” under the Act.
Persons Who Are Supervisors Part of the Time
The Board also explained that when an individual is engaged a part of the time as a supervisor and the rest of the time as a unit employee, the legal standard for a supervisory determination is whether the individual spends a regular and substantial portion of his/her work time performing supervisory functions. The board stated:
Under the Board’s standard, “regular” means according to a pattern or schedule, as opposed to sporadic substitution. The Board has not adopted a strict numerical definition of substantiality and has found supervisory status where the individuals have served in a supervisory role for at least 10–15 percent of their total work time. We find no reason to depart from this established precedent.
Next Step For Employers
The Oakwood ruling applies not only to hospitals and medical providers, but to employers subject to the NLRA. Therefore, employers should re-examine their job descriptions for supervisory employees and ensure that the responsibilities discussed above are reflected in the job descriptions. The job descriptions should be clear that the individuals are granted authority to perform the supervisory duties, and the employer should evaluate and hold the supervisors accountable for performing such duties.
For example, an employer would need to show the follow in order for its employee to qualify as a supervisor under the NLRA:
- Supervisors must possess the authority to require other employees to stay past the end of their shifts, to come in from off-duty status, or to shift section assignments.
- Supervisors are actually held accountable for the job performance of other employees. Merely having this factor as one of many factors in their annual performance review might not be sufficient, and employers need to show that there is an actual prospect that the supervisors’ terms and conditions of employment could be affected, either positively or negatively, as a result of their performance in directing other employees.
- Supervisors in a warehouse are required to manage their assigned teams, to correct improper performance, to shift employees, and to decide the order in which work was to be performed in order to achieve production goals and that the supervisors are held accountable for the performance of their crew or line members.
- A factory or warehouse supervisor’s exercise of judgment cannot be either fundamentally controlled by pre-established guidelines, such as delivery schedules, or are simply routine.
Employers need to be aware that many employees previously thought to be members of a bargaining unit may actually be excluded members of management. Employers should conduct an audit to determine if some employees previously not treated as supervisors may now qualify as a supervisor given the recent Oakwood ruling.