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Clarification on "Supervisors" Gives Employers Strategic, Operational and Training Opportunities

  • October 4, 2006

Determining which employees are supervisors is critically important for all employers, whether they are unionized, union free, or somewhere in between.  The most obvious distinction between "supervisors" and "employees" involves the rights guaranteed by the National Labor Relations Act to engage in concerted and protected activities, and to join or form a union.  And although two of the three historic decisions issued by the National Labor Relations Board in the "Kentucky River trilogy" involved health care providers, the Board's interpretation and clarification of who is a supervisor sheds light in every workplace on the important questions of what employee actions are protected, who is subject to discipline, and how management can enforce expectations of loyalty.

As widely reported in the press and in prior communications from Jackson Lewis, the Labor Board decisions issued on September 29, 2006 establish that employees who assign other employees to overall duties, are held accountable for directing subordinates to undertake specific tasks, and have the discretion to do so without close direction from management will be recognized as "supervisors."   The Board's standard is a clarification of its interpretation of Section 2(11) of the NLRA, which defines who is a "supervisor" under the Act. 

The proper interpretation of Section 2(11) as to who is a "supervisor" has been the subject of intensive litigation for decades.  Two times prior to the Kentucky River trilogy of cases, the U. S. Supreme Court considered the Labor Board's interpretation and twice rejected it, most recently in the 2001 decision, NLRB v. Kentucky River Community Care.  Mindful of the implications for future decisions involving supervisory status, the Labor Board invited a discussion of the issues and received numerous legal briefs from a variety of interested parties from labor and business.  After more than three years of consideration, the Board issued what have been widely considered to be clearly reasoned decisions providing much needed guidance on who is, and who is not, a "supervisor" under the Act. 

Much of the press surrounding the decisions focused on organized labor's predictions of the demise of statutory protection for millions of workers.  However, the fact is that in two of the three cases, the individuals asserted to be "supervisors" were deemed by the Labor Board to be "employees" and protected by the National Labor Relations Act's anti-discrimination provisions.  Rather than being a partisan action heavily influenced by the Bush Administration appointees, the Board's key decision defining supervisory status, Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37 (Sept. 29, 2006), demonstrates a recognition of real life ambiguities and the need for employers clearly to define their management structure and operate efficiently, a concept taken directly from the statute itself and its legislative history.

Decisions Answer a Basic Question:  Who Is a Supervisor?

Beyond the decisional history and legal reasoning, the Kentucky River trilogy of cases provides the framework for employers to answer the question, who are the supervisors?  Everyone understands they are the face of management and the people who see that tasks are accomplished, directives carried out and standards maintained.  They are also the organization's ambassadors who can be expected to motivate others and help the organization achieve its objectives.  

Historically, challenges to supervisory status have come in the context of union campaigns:  who is, and who is not, protected by law when engaging in organizing activities and given the right to vote in a union election.  However, supervisory status becomes important whether or not a union comes knocking:

  • who should be included in management training sessions on understanding the law of equal employment opportunity and maintaining an issue-free workplace;
  • who can be counted on to communicate and implement positive employee relations programs and policies;
  • who may be considered an agent of the employer but behaving outside the bounds of lawful or acceptable workplace conduct, thereby creating a liability risk for the organization? 

What Should Employers Be Doing Now

Three years since the Labor Board called for comments from the business and labor communities, the Kentucky River trilogy cases have spelled out the definition of "supervisor."  Employers should act now in light of the guidance these decisions provide.  

Given the importance and significance of understanding and clarifying who are supervisors, employers should scrutinize job descriptions and actual work duties to determine which employees meet the supervisory criteria identified by the Board.  Experienced labor counsel can advise not only how to structure job descriptions, but how properly to implement them in a manner which will be sustainable over time.  This could include advising managers as to their relationship with first line supervision, and advising supervisors how effectively to supervise their subordinates. 

In non-union workplaces, employers can take modest steps to enhance the supervisory status of individuals who meet some of the criteria but not all.  These steps include the clear articulation of the authority to direct and assign work, and the expectation by management that they will be held accountable for the performance of that work by their subordinates.  Employers also can advise the individuals meeting the criteria for supervisory status of such, what that means in terms of ineligibility for unionization, and how to respond to signs of union activity. 

Employers with unionized workplaces should review the current responsibilities of employees and determine if any of them satisfy the Labor Board's clarified definition of "supervisor."  If so, there may be an opportunity to raise this issue before the NLRB with the assistance of labor counsel.   Additionally, during contract negotiations, management should be aware of union attempts to include language that will undermine any possibility of supervisory status for positions that may be susceptible. 

Unionized employers that make a determination of supervisory status for personnel currently included in a bargaining unit can file a Unit Clarification petition with the Labor Board, requesting that it clarify the status of the employees and declare them to be "supervisors" thereby excluding them from the unit.  While the Board will not generally entertain a UC petition during the middle of a contract, it will entertain a petition toward the end of the contract term, or if the parties cannot agree regarding questions of supervisory status during contract negotiations.

Practically Speaking . . .

It is one thing for a job description to articulate supervisory authority and another for an employer to delegate and compel the use of actual supervisory authority.  To ensure that supervisory personnel actually exercise such authority, employers can coach, counsel or discipline supervisors for any failure to properly exercise that authority.  The employer also can base performance evaluations on how well they exercise their authority.

To assess whether individuals would be considered "supervisors," employers should consider the following (non-exhaustive) list of questions:

To what extent do they provide oversight and guidance to lower skilled, less educated employees performing routine tasks?

Do they have the authority to call in additional personnel or to authorize overtime?

Do they make assignments to other personnel?

Has the employer authorized or expected them to discipline employees, or to make disciplinary recommendations that will be given effective weight?

Are they authorized or expected to evaluate employees?

What authority or expectation is there for them to resolve disputes between employees or address complaints about the treatment of employees?

Efforts by employers to buttress the supervisory status of employees may meet resistance from the employees themselves and other supervisors and managers who may not want to diminish their subordinate ranks.  In addition, many employees may not want to be distinguished from or put at odds with their peers.  To overcome these objections, it may be necessary to enhance the pay and stature of the supervisory employees and to provide support and training to motivate them to assume additional supervisory duties.

Organized Labor's Likely Response

In response to what they perceive as adverse decisions, unions – especially those concentrating on health care facilities and nursing personnel -- now may seek legislation on the state level to prohibit charge nurses from engaging in duties which would be considered "supervisory."   Also, unions may seek to amend the NLRA to exclude nurses and other personnel from the definition of "supervisor."  Unions also may attempt to pressure employers through media campaigns, demonstrations, and at the bargaining table to refrain from withdrawing recognition or seeking unit clarification where there are supervisory personnel who are members of existing bargaining units.

Jackson Lewis attorneys are available to assist employers with supervisory status issues, including review and modification of job descriptions, documentation of work performance, and counsel regarding disciplinary actions.  Our attorneys have represented employers in hundreds of challenges to supervisory status, and we filed a "friend of the court" brief with the NLRB on behalf of multiple employer associations in the Kentucky River trilogy.

©2006 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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