The impact of recent NLRB decisions on supervisory status

Florida Bar Journal, March, 2007 by Scott T. Silverman, Jennifer L. Watson

On September 29, 2006, the National Labor Relations Board (NLRB or board) issued a trilogy of landmark decisions that could have significant and far-reaching implications for as many as eight million American workers. (1) In these decisions, the board set forth important guidelines for determining whether an employee is a "supervisor" for purposes of the National Labor Relations Act (NLRA). Labeling a worker as a supervisor has important implications for that worker's rights to unionize because supervisors are not permitted to bargain collectively.

History of Supervisor Status Under the NLRA

In 1935, Congress enacted the NLRA to protect the rights of industrial workers. (2) The NLRA granted "employees" the rights to self-organize; to form, join, and assist labor organizations; and to bargain collectively through representatives. (3) At the time, the NLRA defined the term "employee" expansively to include any employee and both the U.S. Supreme Court and the board interpreted the NLRA as including supervisors. (4) Soon after its enactment, however, employers began urging Congress to exclude all workers holding managerial and supervisory positions from the protections of the NLRA. In 1947, Congress responded to these demands by passing the Taft-Hartley Act, which expressly excluded supervisors from the definition of "employee" and changed the NLRB's requirement that a supervisor both direct the work of other employees and perform another stated function to permitting direction alone to suffice for supervisor status. (5) As a result, many workers previously protected by the NLRA lost their authority to unionize and bargain collectively. Since the passage of the Taft-Hartley Act, the NLRB has sought to exclude as many employees as possible from the definition of "supervisor."

Currently, supervisors are still specifically excluded from the NLRA's protection. Whether an individual qualifies as a "supervisor" now depends on three important factors, enumerated in [sections]152(11) of the NLRA. (6) First, the individual must have the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, responsibly direct, or adjust grievances of other employees. Second, the individual's exercise of such authority may not be of a merely routine or clerical nature, but must require the use of independent judgment. Finally, the individual's authority must be held in the interest of the employer. Thus, whether an employee qualifies as a supervisor is a highly fact-intensive question. (7)

Supreme Court's Decision in Kentucky River Community Care v. NLRB

Kentucky River Community Care (KRCC) is a nonprofit organization that operates numerous mental health care facilities throughout the state of Kentucky. (8) In 1997, a labor union sought to represent 110 employees at KRCC's Caney Creek Rehabilitation Center, 12 of whom

were registered nurses. (9) KRCC refused to bargain with the union because it objected to the inclusion of the RNs in the bargaining unit on the grounds that they were "supervisors" excluded from the protection of the NLRA. (10)

The NLRB strongly disagreed with KRCC's position. For years, the NLRB had denied supervisory status to RNs, ruling that these nurses, in directing subordinates, acted in the interest of patients, not in the interest of their employers. (11) In response to KRCC's refusal to bargain, the NLRB's general counsel filed an unfair labor practice complaint against the health care center, and the board granted summary judgment and ordered KRCC to commence bargaining with the unit. (12)

In Kentucky River Community Care, Inc. v. NLRB, 193 F.3d 444 (6th Cir. 1999), the Sixth Circuit Court of Appeals reversed, holding that the RNs were supervisors because their duties, which included ensuring adequate staffing and overseeing the rendering of medical services, were supervisory in nature, were conducted in the interest of their employer, and involved the use of independent judgment.

In 2000, the U. S. Supreme Court accepted the case on appeal and affirmed the Sixth Circuit's decision against the NLRB by a 5-4 decision the following year. (13) Although the justices agreed with the board that the burden of proof falls on the party asserting supervisory status, the court criticized the board's conclusion that employees do not use "independent judgment" pursuant to [section] 152(11) of the NLRA when they exercise ordinary technical or professional judgment in directing subordinate employees to deliver services. (14) The court found that although the degree of discretion an employee exercises is a relevant factor in determining supervisory status, the board's interpretation of the term "independent judgment" included determinative factors not pertaining to degree: Even significant judgment only loosely constrained by the employer would not be considered independent if it were professional or technical. (15) Ultimately, the court ordered the NLRB to redefine its test for determining supervisory status of RNs and other workers who use professional or technical judgments in directing less skilled workers. (16)