On September 29, 2006, the National Labor Relations Board issued three long-awaited decisions reinterpreting the definition of "supervisor" in Section 2(11) of the National Labor Relations Act (NLRA). The decisions are important both to employers with bargaining units now and those who may face a union organizing campaign in the future.

"Supervisors" are excluded, for the most part, from the protection given employees under the NLRA. They cannot vote in union elections or be represented by unions in their work. An employer can require supervisors to support the employer position in a union campaign. In addition, their statements and actions can be attributed to the employer, so unlawful conduct by a supervisor can cause liability for the company. For these reasons it is important to know who is a supervisor and who is not.

However, the statutory definition is not a simple one. Section 2(11) of the Act, 29 U.S.C. § 152(11), defines "supervisor" 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 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

Some of the key terms in the definition, such as "authority in the interest of the employer", "assign", "responsibly to direct", and "requires the use of independent judgment", have been closely interpreted by the Board and the courts in the past.

In NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), the Supreme Court criticized the Board's choice to exclude from "independent judgment" the exercise of ordinary professional or technical judgment or expertise, such as when a registered nurse directs the work of a nurse's aide in caring for a patient. Since then the Board has been reconsidering the definition.

The three new Board decisions are:

• Oakwood Healthcare, Inc., 348 NLRB No. 37 (Sept. 29, 2006),
• Croft Metals, Inc., 348 NLRB No. 38 (Sept. 29, 2006), and
• Golden Crest Healthcare Center, 348 NLRB No. 39 (Sept. 29, 2006).

In Oakwood Healthcare, Inc., by a 3-2 vote, the Board responded to the Court and redefined the terms", "assign", "responsibly to direct" and "independent judgment". "Assign" was said to mean the assignment of an employee to a certain department or to a certain shift or to certain significant overall tasks, as opposed to choosing the order in which the employee will perform discrete tasks within those assignments, or directing a particular discrete task to be done on a particular occasion. "Responsibly to direct" encompasses accountability for discharging the authority to direct the work and to take corrective action, if necessary, in doing so, with a prospect of adverse consequences for the putative supervisor if those steps are not taken. Consistent with the Court's mandate in Kentucky River, the Board adopted an interpretation of "independent judgment" that applies irrespective of whether the judgment is exercised using professional or technical expertise. The Board noted that to be independent is to be free from the control of others, and includes actions not dictated or controlled by detailed instructions, whether in policies, rules, verbal instructions from a higher authority, or terms of a contract.

Applying these terms to the facts, the Board in Oakwood concluded that the employer's regular charge nurses were statutory supervisors, but the fill-in or relief charge nurses were not.

In Croft Metals, which involved a door and window manufacturing plant, the Board applied the definition and the Oakwood interpretations to the facts and found that the employer's lead persons were not supervisors.

In Golden Crest Healthcare Center, a case involving a nursing home, the Board found under the facts that the charge nurses did not have authority to "assign" or "responsibly to direct" employees and therefore were not supervisors under the Act.

The Board's press release concerning the three decisions, with links to them, is found at: http://www.nlrb.gov/press/releases/r2603.htm.

This Newsletter is designed to provide information of a general nature only and is not intended to replace or provide professional legal advice.