National Labor Relations Board
Law Memo - Weekly email
NLRB - "Kentucky River" Cases
Where is the line between an "employee" and a "supervisor"
under the National Labor Relations Act?
1 p.m., Tuesday, October 3, 2006
ISSUES LEAD CASE ADDRESSING SUPERVISORY STATUS
IN RESPONSE TO SUPREME COURT’S DECISION IN
The National Labor Relations Board has
set forth guidelines for determining whether an individual is a supervisor
under the National Labor Relations Act. In
a major decision made public today, with a 3-2 vote, the Board held
that the permanent charge nurses employed by the Employer,
, an acute care hospital, exercised supervisory
authority in assigning employees within the meaning of Section 2(11) of the
348 NLRB No. 37 (Sept. 29, 2006).
The Board found that the charge nurses, as a regular part of their
duties, assigned nursing personnel to the specific patients for whom they
would care during their shift. The
Board found that such assignments, which consisted of giving “significant
overall duties” to an employee, met the statutory definition of “assign”
under the Act. The Board further
found that the Employer met its burden to show that its charge nurses
exercised independent judgment in making such assignments.
Finally, the Board found that the Employer failed to establish that the
rotating charge nurses exercised supervisory authority for a “substantial”
part of their work time. As a
result, the Board found that only the Employer’s permanent charge nurses
were supervisors, rather than employees, under the Act.
The majority opinion is signed by Chairman Robert J. Battista and
Members Peter C. Schaumber and Peter N. Kirsanow.
Members Wilma B. Liebman and Dennis P. Walsh dissented.
The decision is posted on the Board’s website at www.nlrb.gov.
In NLRB v. Kentucky River
Community Care, 532 U.S. 706 (2001), the Supreme Court criticized the
Board’s extant interpretation of the Section 2(11) term “independent
judgment.” As a result, the
Board endeavored in today’s Oakwood
Healthcare decision to reexamine
and clarify its interpretations of the term “independent judgment” as well
as the terms “assign” and “responsibly to direct,” as those terms are
set forth in Section 2(11). The
Board proffered the following definitions.
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.”
The Board then defined the statutory term “responsibly to direct”
as follows: “If a person on the
shop floor has men under him, and if that person decides what job shall be
undertaken next or who shall do it, that person is a supervisor, provided that
the direction is both ‘responsible’ . . . and carried out with independent
judgment.” The Board held that
the element of “responsible” direction involved a finding of
accountability, so that it must be shown that the “employer delegated to the
putative supervisor the authority to direct the work and the authority to take
corrective action, if necessary” and that “there is a prospect of adverse
consequences for the putative supervisor” arising from his/her direction of
Finally, consistent with the Supreme Court’s decision in
, the Board adopted an interpretation of the term “independent judgment”
that applies irrespective of the Section 2(11) supervisory function
implicated, and without regard to whether the judgment is exercised using
professional or technical expertise.
The Board defined the statutory term “independent judgment” in
relation to two concepts. First,
to be independent, the judgment exercised must not be effectively controlled
by another authority. Thus, where
a judgment is dictated or controlled by detailed instructions or regulations,
the judgment would not be found to be sufficiently “independent” under the
Act. The Board further
found that the degree of discretion exercised must rise above the “routine
or clerical” in order to constitute “independent judgment” under the
In dissent, Members Liebman and Walsh disagreed with the majority’s
definitions of the statutory terms “assign” and “responsibly to
direct,” and further disagreed with the majority’s finding that the
employer’s charge nurses exercise supervisory authority in “assigning”
The dissent contends that the majority erred in defining the term
“assign” to include the act of assigning overall tasks to employees.
In the dissent’s view, the assigning of tasks to employees is a
“quintessential function of the minor supervisors whom Congress clearly did not
intend to cover in Section 2(11).” Accordingly,
the dissent would define “assign” under the Act as the act of determining
“an employee’s position with the employer,” an employee’s
“designated work site,” or an employee’s “work hours.”
The dissent also disagrees
with the majority’s definition of “responsibly to direct,” contending
that the drafters of Section 2(11) only intended the phrase to include
“persons who were effectively in charge of a department-level work unit,
even if they did not engage in the other supervisory functions identified in
Section 2(11).” As a result,
the dissent would require the following showing to establish that a putative
supervisor has the authority to “responsibly direct”:
The individual has been delegated substantial authority to ensure that
a work unit achieves management’s objectives and is thus “in charge”;
the individual is held accountable for the work of others; and the individual
exercises significant discretion and judgment in directing his or her work
The Board also released today its 3-0 decision in Golden
Crest Healthcare Center,
348 NLRB No. 39 (Sept. 29, 2006), signed by Chairman Battista and
Members Schaumber and Kirsanow. Applying
the definitions for “assign” and “responsibly direct” set forth in Oakwood
Healthcare, the Board found that the Golden Crest’s charge nurses at a
nursing home did not exercise supervisory authority under the Act.
First, the Board found that the charge nurses at issue lacked the
authority to “assign” other employees under the Act, emphasizing that
Golden Crest failed to establish that the charge nurses possessed 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.
The Board further found that the charge nurses at issue lacked the
authority to “responsibly direct” other employees under the Act, insofar
as Golden Crest failed to establish that the charge nurses were actually held
accountable for the job performance of other employees.
The Board found that the “accountability” requirement set forth in Oakwood
Healthcare was not satisfied by
Golden Crest’s evidence that it had a practice of rating charge nurses in
their annual evaluations on their performance in directing other employees.
The Board found that this evidence constituted merely “paper”
accountability and was insufficient to establish that there was an actual
prospect that the charge nurses’ terms and conditions of employment could be
affected, either positively or negatively, as a result of their performance in
directing other employees. Accordingly,
having found that the charge nurses at issue neither “assigned” nor
“responsibly directed” other employees within the meaning of Section 2(11)
of the Act, the Board found that the Golden Crest charge nurses were statutory
employees, not supervisors.
The Board issued another decision using the Oakwood
Healthcare test for supervisory status, in Croft
348 NLRB No. 38 (Sept. 29, 2006), signed by Chairman Battista and
Members Schaumber and Kirsanow. In
Croft, the Board applied the
definitions for “assign” and “responsibly to direct” set forth in the Oakwood
Healthcare decision to find that the lead persons at the manufacturing
facility at issue did not exercise supervisory authority under the Act.
After finding that the lead
persons did not possess the authority to “assign” under the Act, the Board
then found that the lead persons responsibly directed their line or crew
members. The Board found that the
lead persons were 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.
The Board further found that the lead persons were held accountable for
the performance of their crew or line members.
The Board then found that the Croft failed to meet its burden to
establish that the lead persons exercised independent judgment in directing
their crew or line members. The
Board found that the lead persons’ exercise of judgment was either
fundamentally controlled by pre-established guidelines, such as delivery
schedules, or was simply routine. Accordingly,
the Board found that the lead persons did not exercise supervisory authority
under the Act.
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