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OFFICE OF THE GENERAL COUNSEL 
Division of Operations-Management 

MEMORANDUM OM 04-09 
October 31, 2003

TO: All Regional Directors, Officers-in-Charge, and Resident Officers

FROM: Richard A. Siegel, Associate General Counsel

SUBJECT: Evidentiary Guidelines for Determining Supervisory Status

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 supervisory determinations.2

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) Cases.

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 employees.'"

  • 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 Workplace.

  • 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 in question.

  • 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 few supervisors.

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 "Independent Judgment."

The General Counsel suggests that an individual who responsibly directs with independent judgment within the meaning of Section 2(11):

a. has been delegated substantial authority to ensure that a work unit achieves management's objectives and is thus "in charge."

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 supervisor.

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 charge.

  • While "secondary indicia" are not set forth in the statute's text, they can provide insight into the existence of supervisory status.

  • 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 highly routine.

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 authority.

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 independent judgment.

  • 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 require discretion.

2. Meaning of "Assign" with "Independent Judgment."

  • 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 employee.

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" basis.

  • 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.

/s/
R.A.S.

Attachment
cc: NLRBU
Release to the Public

MEMORANDUM OM 04-09


1 Oakwood Healthcare, 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 factor.

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