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Supervisors Defined
Under the National Labor Relations Act (NLRA), "employees" have the right to unionize. However, to protect management's legitimate business interests, "supervisors" are excluded from the NLRA's definition of "employees" and thus not eligible for NLRA protections.

Accordingly, which workers qualify as "supervisors" is often disputed when unionization efforts are underway. Recently, the National Labor Relations Board (NLRB) helped clarify the issue by defining the type of duties and independence individuals must have to be "supervisors" under the NLRA.

The case involved 181 registered nurses (RNs) at Oakwood Heritage Hospital in Michigan. Many RNs served as "charge nurses" who oversaw patients and gave assignments to other RNs and staff. Twelve RNs were permanent charge nurses, while the others took turns rotating into the position.

According to the hospital, all RNs who worked as charge nurses were supervisors under the NLRA, so it sought to exclude them from the RN bargaining unit. The union wanted to include all the charge nurses in the RN unit.

According to the NLRB, only the permanent charge nurses were NLRA supervisors. The NLRB ruled that workers qualify as supervisors under federal labor law if (1) they have authority to "assign" or "responsibly to direct" other employees, and (2) their supervisorial duties require the use of independent judgment.

The NLRB explained that "the term 'assign' [means] designating an employee to a place[,] to a time[,] or giving significant overall duties, i.e., tasks, to an employee." Likewise, an individual may have authority "responsibly to direct" if "the employer delegated ... the authority to direct the work and the authority to take corrective action, if necessary. It also must be shown that there is a prospect of adverse consequences for the putative supervisor if he/she does not take these steps."

Next, the NLRB explained that supervisors must use "independent judgment" rather than simply apply pre-established procedures. The "individual must at minimum act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data. [A supervisor's] judgment is not independent if it is dictated or controlled by detailed instructions."

Finally, the NLRB noted that workers must spend a "substantial" amount of time doing supervisorial duties to be supervisors. The NLRB pointed to previous cases that "found supervisory status where the individuals have served in a supervisory role for at least 10-15 percent of their total work time."

Applying these rules to the Oakwood RNs, the NLRB observed that the charge nurses "assigned" other RNs and used "independent judgment." Thus, it ruled that the hospital's 12 permanent charge nurses qualified as NLRA supervisors.

But, the NLRB found that the nurses in the emergency room did not exercise independent judgment, and that the 112 RNs who rotated through the charge nurse position were not supervisors for a "substantial" part of their worktime. Thus, these nurses were nonsupervisors and included in the RN bargaining unit. [Oakwood Healthcare (2006) no. 348 NLRB no. 37]

Two dissenting members of the NLRB decried the decision. They wrote, "Today's decision threatens to create a new class of workers under Federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees."

For information on this topic tailored to your company profile, request Memos:
1180 Fed National Labor Relations Act: Overview
1185 Fed National Labor Relations Act: Employee Rights
1660 Union Rights for Non-Unionized Workers

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