On October 3, 2006, the National Labor Relations Board (NLRB or Board) released a series of cases that address when certain employees may be considered supervisors under the National Labor Relations Act (NLRA or Act), thereby removing them from the protections of the Act. In its 2001 NLRB v. Kentucky River Community Care decision, the U.S. Supreme Court criticized the NLRB for its interpretation of the term “independent judgment” contained in Section 2(11) of the NLRA. With its trio of cases released this week, the Board reinterpreted the term “independent judgment” along with the terms “assign” and “responsibly to direct” for the purposes of determining which employees are statutory “supervisors.” While the decisions are arguably more pro-employer than prior Board decisions, the Board remained steadfastly committed to reviewing these issues on a case-by-case basis.

In the principal case in the series, Oakwood Healthcare, Inc., the Board reinterpreted the terms “assign,” “responsibly to direct,” and “independent judgment” and held that Oakwood’s permanent charge nurses, other than those in the emergency room, are Section 2(11) supervisors based on their authority to exercise independent judgment in assigning nursing personnel to specific patients. Using the Oakwood Healthcare definitions, the Board held in Golden Crest Healthcare Center that Golden Crest’s charge nurses were not statutory supervisors under the Act because they lacked the authority to “assign” or “responsibly to direct” other employees. In Croft Metals, Inc., the Board found that lead persons at Croft’s manufacturing facility were not supervisors because they did not exercise independent judgment while directing other employees.

The Act is designed to protect the rights of employees but does not afford those same protections to “supervisors” as defined in Section 2(11). An individual qualifies as a supervisor if: (1) she holds the authority to engage in any one of twelve statutorily listed supervisory functions (e.g., “assign” and “responsibly to direct”); (2) her exercise of such authority is not routine or clerical in nature, but requires the use of independent judgment; and (3) her authority is held in the interest of the employer. The Board’s Oakwood Healthcare decision provides new guidance for employers attempting to determine which individuals meet this test.

Using the Oakwood Healthcare test for supervisory status, the Board Croft Metals, Inc., applied the definitions for "assign" and "responsibly to direct" to find that the lead persons at the manufacturing facility at issue did not exercise supervisory authority under the Act. After determining that the lead persons did not possess the authority to "assign" under the Act, the Board found that the lead persons responsibly directed their line or crew members because they were required to manage their assigned teams. The Board concluded that the lead persons were held accountable for the performance of their crew or line members but that Croft failed to meet its burden to establish that the lead persons exercised independent judgment in directing their crew or line members. The Board found that the lead persons' exercise of judgment was fundamentally controlled by pre-established guidelines and was routine. Accordingly, the Board held that the lead persons did not exercise supervisory authority under the Act.

For more information on these cases, please contact Tom Wilson, 713.758.2042 or twilson@velaw.com or Sean Becker at 713.758.2646 or sbecker@velaw.com.