|
NLRB Clarifies Definition of Supervisor
By Rebecca
Shapiro Cohen and Henry
E. Farber
[Dec. 2003]
The National Labor Relations Act (the "Act")
generally excludes "supervisors" from its protection.
After the Supreme Court’s 2001 decision in NLRB v. Kentucky
River Community Care, 532 U.S. 706 (finding the National Labor
Relations Board's (NLRB) test for determining supervisory status
inconsistent with the Act), the NLRB invited interested parties
to file briefs in three representation cases addressing the definition
of "supervisor."
In response, the NLRB’s General Counsel filed an amicus
brief on September 18, 2003, articulating the guidelines the NLRB
uses when determining supervisory status. Although the NLRB has
not yet determined whether it will accept the General Counsel’s
position, the General Counsel has ordered hearing officers to utilize
these guidelines, and has incorporated them into its Hearing Officer’s
Guide. Thus, these guidelines will be in effect until the NLRB issues
its decision.
To fully understand the guidance, a restatement of the Act’s
definition of “supervisor” is necessary:
The term “supervisor” means any individual having
authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward,
or discipline other employees, or responsibly to 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.
There is no dispute about most of this definition. Those who hire,
transfer, discharge, etc., or effectively recommend such actions
are supervisors, even if they have responsibility for only one of
those functions. The more difficult words are “responsibly
directs,” “assigns,” and “independent judgment.”
Under the NLRB’s previous test, independent judgment and thus
supervisory status, was not present where the potential supervisor
exercised “ordinary professional or technical judgment in
directing less-skilled employees to deliver services in accordance
with employer-specified standards.” Kentucky River,
532 U.S. 706. In the Kentucky River decision, the Supreme
Court rejected this test as being inconsistent with the statute.
Id.
To replace the former NLRB test, the Hearing Officer’s guidelines
incorporate the following suggested analysis for supervisory inquiries:
Responsibly Directs With Independent Judgment.
To determine whether a potential supervisor has authority to responsibly
direct other employees with the use of independent judgment, the
General Counsel suggested that the NLRB consider three primary
factors. The first factor is whether the individual “has
been delegated substantial authority to ensure that a work unit
achieves management’s objectives and is thus ‘in charge.’”1
An individual is considered “in charge” if he or she
has a high level of authority over employees in the work unit,
is not “closely overseen by superiors,” and/or if
he or she is relied upon by management to make sure that policies
and rules are enforced. The second factor is whether the potential
supervisor is “held accountable for the work of others.”
The third factor is whether the individual exercises “significant
discretion and judgment in directing his or her work unit.”
The General Counsel notes that the direction of routine and repetitive
tasks and merely restating another superior’s directions,
as well as the existence of established procedures and rules,
cut against a finding of independent judgment.
Assigns With Independent Judgment. The General
Counsel defines this term to mean that the potential supervisor
assigns work to other employees, where the work is of differing
degrees of difficulty or desirability, and the individual makes
assignment decisions based on “his or her assessment of
an employee’s ability or attitude.” This factor is
not satisfied where the assigned work does not differ with regards
to difficulty or desirability, or where the potential supervisor
relies on nondiscretionary factors in making the assignments.
According to the General Counsel, an individual should not be considered
a supervisor unless he or she meets the evidentiary tests discussed
above on a “regular and substantial” basis, and “sporadic”
supervision would not be enough to satisfy the statutory requirement.
Of course, employers can also still prove supervisory status through
more traditional factors that do not require explanation, such as
if the supervisor in question is responsible for the hiring, transfer,
discharge, or discipline of other employees. The party attempting
to prove supervisory status has the burden of proving that such
status exists.
Comment:
These recommendations about the interpretation of the term “supervisor”
could have an impact on which individuals are entitled to protection
as employees under the National Labor Relations Act. Although it
has not yet been determined whether these guidelines will be adopted
by the NLRB, it is clear that for the time being the General Counsel’s
guidance will be used by NLRB hearing examiners in representation
hearings and unfair labor practice cases. Accordingly, unionized
employers (or those facing potential representation issues) should
become familiar with these new guidelines.
FOOTNOTES:
1
Quoted language is from the General Counsel’s
amicus brief, filed September 18, 2003, with the National Labor
Relations Board in the following three cases: Oakwood Healthcare,
Inc., Case 7-RC-22141; Beverly Enterprises – Minnesota,
Inc., Cases 18-RC-16415 and 18-RC-16416; and Croft Metals,
Inc., Case 15-RC-8393.
For further information, please contact the authors or
your usual DWT employment law attorney:
Rebecca
Shapiro Cohen, Seattle, (206) 903-3951, rebeccashapirocohen@dwt.com
Henry
E. Farber, Bellevue, (425) 646-6138, henryfarber@dwt.com
This Employment Law Advisory is a publication
of the Employment Law Department of Davis Wright Tremaine LLP. Our
purpose in publishing this Advisory is to inform our clients and
friends of recent developments in employment law. It is not intended,
nor should it be used, as a substitute for specific legal advice
as legal counsel may only be given in response to inquiries regarding
particular situations.
Copyright © 2003, Davis Wright Tremaine
LLP.
return to Advisory Bulletins
main page
|
