The National Labor Relations Act (the "Act") generally excludes "supervisors" from its protection. After the Supreme Court's 2001 decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (finding the National Labor Relations Board's (NLRB) test for determining supervisory status inconsistent with the Act), the NLRB invited interested parties to file briefs in three representation cases addressing the definition of "supervisor."
NLRB Position
In response, the NLRB's General Counsel filed an amicus brief on September 18, 2003, articulating the guidelines the NLRB uses when determining supervisory status. Although the NLRB has not yet determined whether it will accept the General Counsel's position, the General Counsel has ordered hearing officers to utilize these guidelines, and has incorporated them into its Hearing Officer's Guide. Thus, these guidelines will be in effect until the NLRB issues its decision.
To fully understand the guidance, a restatement of the Act's definition of "supervisor" is necessary:
The term "supervisor" means any individual having 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.
There is no dispute about most of this definition. Those who hire, transfer, discharge, etc., or effectively recommend such actions are supervisors, even if they have responsibility for only one of those functions. The more difficult words are "responsibly directs," "assigns," and "independent judgment." Under the NLRB's previous test, independent judgment and thus supervisory status, was not present where the potential supervisor exercised "ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards." Kentucky River, 532 U.S. 706. In the Kentucky River decision, the Supreme Court rejected this test as being inconsistent with the statute. Id.
Guidelines
To replace the former NLRB test, the Hearing Officer's guidelines incorporate the following suggested analysis for supervisory inquiries:
Responsibly Directs With Independent Judgment. To determine whether a potential supervisor has authority to responsibly direct other employees with the use of independent judgment, the General Counsel suggested (in amici briefs filed on three different cases) that the NLRB consider three primary factors. The first factor is whether the individual "has been delegated substantial authority to ensure that a work unit achieves management's objectives and is thus 'in charge.'" An individual is considered "in charge" if he or she has a high level of authority over employees in the work unit, is not "closely overseen by superiors," and/or if he or she is relied upon by management to make sure that policies and rules are enforced. The second factor is whether the potential supervisor is "held accountable for the work of others." The third factor is whether the individual exercises "significant discretion and judgment in directing his or her work unit." The General Counsel notes that the direction of routine and repetitive tasks and merely restating another superior's directions, as well as the existence of established procedures and rules, cut against a finding of independent judgment.
Assigns With Independent Judgment. The General Counsel defines this term to mean that the potential supervisor assigns work to other employees, where the work is of differing degrees of difficulty or desirability, and the individual makes assignment decisions based on "his or her assessment of an employee's ability or attitude." This factor is not satisfied where the assigned work does not differ with regards to difficulty or desirability, or where the potential supervisor relies on nondiscretionary factors in making the assignments.
According to the General Counsel, an individual should not be considered a supervisor unless he or she meets the evidentiary tests discussed above on a "regular and substantial" basis, and "sporadic" supervision would not be enough to satisfy the statutory requirement. Of course, employers can also still prove supervisory status through more traditional factors that do not require explanation, such as if the supervisor in question is responsible for the hiring, transfer, discharge, or discipline of other employees. The party attempting to prove supervisory status has the burden of proving that such status exists.
Comment
These recommendations about the interpretation of the term "supervisor" could have an impact on which individuals are entitled to protection as employees under the National Labor Relations Act. Although it has not yet been determined whether these guidelines will be adopted by the NLRB, it is clear that for the time being the General Counsel's guidance will be used by NLRB hearing examiners in representation hearings and unfair labor practice cases. Accordingly, unionized employers (or those facing potential representation issues) should become familiar with these new guidelines.