OFFICE OF THE GENERAL COUNSEL
MEMORANDUM OM 04-09
Division of Operations-Management
October 31, 2003
TO: All Regional Directors, Officers-in-Charge, and
FROM: Richard A. Siegel, Associate General Counsel
SUBJECT: Evidentiary Guidelines for Determining
On July 24, 2003, the Board included three R cases1
in a single notice
inviting parties and interested amici to file briefs addressing supervisory
issues in light of the United States Supreme Court's decision in NLRB
v. Kentucky River Community Care, 532 U.S. 706 (2001). In response to
the invitation, the General Counsel filed the attached amicus brief on September
18, suggesting evidentiary guidelines for the Board to utilize in making
The Board's invitation listed ten specific questions for
the parties to address, focusing on how it should determine whether an
individual "responsibly directs," "assigns," or exercises
"independent judgment." The General Counsel's brief provided an
evidentiary framework for analyzing these three terms. Regardless of whether the
Board accepts the General Counsel's suggestions as to what weight to accord the
factors discussed in the brief, we believe that decision-makers and the Board
will benefit from having a fully developed record on these issues. Accordingly,
hearing officers should familiarize themselves with the analytical framework set
forth in the brief so they can create a complete evidentiary record in hearings.3
Similarly, when supervisory issues arise in the context of unfair labor practice
proceedings, Regions should be guided by the same principles.
The newly revised Hearing
Officer's Guide should be of assistance in developing a record on
supervisory status. In Part VI, Section E, on pages 99 through 108 of the Guide,
questions designed to elicit testimony related to whether an individual
"responsibly directs," "assigns," or exercises
"independent judgment," and related to part-time and rotating
supervisors can be found. The Supervisor section of the Guide has been
substantially revised and separated by indicia. Specific sections are provided
for general questions, assignment and responsible direction, secondary indicia
and substitute and intermittent supervisors. As you know, the Hearing Officer
Guide is available now on the intranet and hard copies will be available to each
of the regional offices in the near future. Once the Board rules on these
issues, we will evaluate whether further revisions to the Hearing Officer's
Guide are warranted.
The guidelines, in short, are as follows:
A. General Principles For Evaluating All Section 2(11)
1. Each 2(11) Case Raises Conflicting Interests that
Congress Sought to Reconcile in Enacting Section 2(11).
- In enacting Section 2(11), Congress sought to
distinguish between truly supervisory personnel, who are vested with
"'genuine management prerogatives,'" and employees, such as
"'straw bosses, leadmen, and set-up men, and other minor supervisory
- Persons vested with genuine management authority were
denied organizational rights because, in Congress' judgment, they should
have an undivided loyalty to management interests when they exercise
independent judgment with respect to personnel matters or the responsible
direction of work. Similarly, employees are entitled to protection from
supervisory influence within the union's organization.
- Section 2(11) raises conflicting policy goals:
Congress' policy to give Section 7 rights to leadpersons and its equally
important policy of preventing the conflicts of interest created by
supervisory involvement in unions.
2. The Record in Each Section 2(11) Case Should Include
Evidence as to How Supervisory Authority is Actually Delegated in a Particular
- In determining whether an individual is a supervisor,
critical factors include the individual's level of responsibility and
discretion, who else within the organization has such authority, and how
that other authority limits or accentuates the authority of the individual
- Because workplaces are structured in a myriad of ways
that are constantly changing, the critical inquiry in all 2(11) cases is
what authority has been delegated to the purported supervisor and what has
been retained. The employer has the authority to determine its own
management structure, and can thus structure a workplace to include many or
B. The Proposed Evidentiary Test Assists in Determining
Whether Individuals Possess The Authority Responsibly To Direct Or To Assign
With Independent Judgment.
1. Meaning of "Responsibly Direct" with
The General Counsel suggests that an individual who
responsibly directs with independent judgment within the meaning of Section
a. has been delegated substantial authority to ensure
that a work unit achieves management's objectives and is thus "in
The following factors identify evidence that will be
relevant to whether the individual is "in charge:"
i. The individual in question has sole or significant
authority over the work unit and is not closely overseen by superior(s).
- The presence or availability of superiors may indicate
that the individual in question is not "in charge."
- Where the individual has discretion over whether to
call a superior (as opposed to being required to call in particular
circumstances), he or she is more likely to be in charge and, therefore, a
ii. The employer relies on the individual to ensure
that management policies and rules are implemented in the work unit.
iii. Circumstantial evidence (i.e., so-called
"secondary indicia") supports a finding that the individual is in
- While "secondary indicia" are not set forth
in the statute's text, they can provide insight into the existence of
- Evidence of supervisor-to-employee "ratios"
is most useful if it goes beyond sheer numbers and includes the workplace
context. A seemingly disproportionate ratio may be reasonably explained in a
high-risk industry, where employers may conclude that closer supervision is
necessary, but considerably less plausible in cases in which the work is
b. is held accountable for the work of others; and
- Accountability or responsibility for the work of others
is a strong indication that an individual is responsible for the work unit,
and thus, that he or she "directs responsibly" that group.
c. exercises significant discretion and judgment in
directing his or her work unit.
- While an individual may "responsibly direct"
a unit, the statute requires separate analysis as to whether the direction
is exercised with "independent judgment."
- After Kentucky River, the distinction between
professional or technical judgment and independent judgment is invalid.
Thus, a record demonstrating the type of judgment (e.g., professional
or technical) that is used is not probative. Rather, hearing officer record
makers should develop evidence focusing on the degree to which the
alleged supervisor must use discretion in exercising the delegated
Four principles are relevant to assessing the degree of
judgment exercised. Evidence as to whether these conditions exist should be
included in the record.
i. Established procedures and rules may reduce the
level of discretion required to make decisions below the threshold for
- The mere existence of rules and procedures does not,
however, necessarily eliminate independent judgment if the procedures still
require significant discretionary decision-making or if the individual can
deviate substantially from the protocol.
ii. Discretion may more likely be required, or even
inherent, in directing others in critical situations and emergencies.
iii. The direction of routine and repetitive tasks, by
its nature, often does not require discretion.
iv. Merely conveying superiors' directions does not
2. Meaning of "Assign" with "Independent
- The power to assign is a separate and distinct
statutory indication of supervisory status under Section 2(11). While there
is a close relationship between the assignment and responsible direction
indicia, hearing officers should develop the record on both factors
separately. The plain language of 2(11) lists "assign" and
"responsibly to direct" separately, and the statute's legislative
history indicates that Congress intended "responsibly to direct"
to encompass something other than "assignment" power.
- The power to assign may include the power to assign
tasks if the purported supervisor exercises independent judgment or
discretion in making the assignment based on his or her own assessment of an
a. The record should include evidence as to whether the
alleged supervisor has discretion to assign work of differing degrees of
difficulty or desirability on the basis of his or her own assessment of an
employee's ability or attitude.
b. The record should include evidence as to whether the
work to be performed differs significantly in difficulty or desirability or
whether the choice of whom to assign is dictated by nondiscretionary factors.
c. Application of Analysis To Difficult Fact Pattern:
Part-Time Or Rotating "Supervisors."
- The Board has long held that part-time supervisors are
Section 2(11) supervisors as long as the individual possesses true 2(11)
authority on a "regular and substantial" basis. Thus, the mere
fact of part-time exercise of authority does not necessarily negate the
individual's supervisory status.
1. The record should reflect whether the purported
"supervisor" is actually vested with Section 2(11) authority on the
days in which the individual acts as a "supervisor," utilizing the
evidentiary tests for "responsible direction" and
"assignment" outlined above.
- The classification of part-time supervisors, like all
supervisors, turns on the actual delegation of authority by management.
Thus, if management has conferred supervisory authority upon a part-time
employee and the individual serves as a supervisor on a regular and
substantial basis, the individual is more likely to be a supervisor.
- The fact that an individual is only in charge on a
limited number of days may indicate that the individual is neither
"responsibly directing" employees nor exercising "independent
judgment," as the terms are defined above.
2. The record should indicate whether the individual is
vested with actual 2(11) authority on a "regular and substantial"
- The Board has reasoned that, for purposes of collective
bargaining, "sporadic" supervision does not ally an individual
with management so as to create a more generalized conflict of interest and
the risk of divided loyalties that Congress sought to avoid when it amended
the NLRA to exclude supervisors.
- To be "regular and substantial," a part-time
supervisor only needs to serve in the supervisory capacity a limited amount
of his or her work time - certainly not 50 percent. The Board has defined
"substantial" broadly; an employee who is regularly scheduled to
exercise supervisory authority as little as one or two times per month may
be a statutory supervisor.
If you have any questions regarding this memorandum,
please contact your Assistant General Counsel or Deputy or the undersigned.
Release to the Public
MEMORANDUM OM 04-09
7-RC-22141, Beverly Enterprises - Minnesota, d/b/a Golden Crest Healthcare
Center, 18-RC-16415, and Croft Metals, 15-RC-8393.
2 The General Counsel did not take a position
on the merits of the R cases.
3 For instance, a complete record would include
testimony indicating that the parties do not have evidence on a particular