NLRB Decision Clarifies the Definition of Supervisor

October 5, 2006

In its first opinion applying the 2001 United States Supreme Court decision in NLRB v. Kentucky River Community Care, Inc., the National Labor Relations Board has set forth new guidelines for determining whether an employee qualifies as a supervisor under Section 2(11) of the National Labor Relations Act.  In Oakwood Healthcare, the Board held that permanent charge nurses who, as a regular part of their duties, exercise independent judgment in assigning nursing personnel to specific patients are supervisors, and, therefore, are excluded from the protection of the Act.  348 NLRB No. 37 (Sept. 29, 2006).  Although this decision deals specifically with the health care industry, its guidelines will have wide applicability.  

Under the Act, an individual is a supervisor if he/she has the authority to perform one of the 12 functions listed in Section 2(11).  Among those functions are the authority to assign or responsibly direct the work of employees provided that the assignment or direction requires the use of independent judgment. 

In Oakwood Healthcare, the Board clarified these key terms.  First, the Board defined the term “assign” as the act of “designating an employee to a place (such as location, department, or wing), appointing an individual to a time (such as shift or overtime period), or giving significant overall duties, i.e. tasks, to an employee.”  Second, the Board described “responsibly to direct” as involving an element of accountability, such that the individual has the ability to require work be performed and take corrective action against other employees.  Such accountability requires that the individual be subject to adverse consequences arising from his/her direction of other employees’ work.  Finally, the Board explained that the term “independent judgment” encompasses decision-making that is not only exercised with a level of discretion rising above routine or clerical, but that is also not effectively controlled by another authority.

This is a long-awaited decision that hopefully will provide assistance to employers in determining which employees are “supervisors.”

For further information about this decision, please contact Ray Neusch at 513-651-6704 or any other member of our Labor and Employment Law Department.

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