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NLRB Defines Which Employees are “Supervisors” Under the National Labor Relations Act
The National Labor Relations Board (NLRB) recently issued decisions in three cases that further define which employees can be characterized as “supervisors” for the purposes of Section 2(11) of the National Labor Relations Act (NLRA). So why is being characterized as a “supervisor” important under the NLRA? Because unlike your other employees, employees characterized as supervisors do not have the right to join labor unions under the NLRA, nor can they actively participate or vote in the union’s organizing campaign.Section 2(11) of the NLRA defines a “supervisor” as any individual having the authority, in the interest of an employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of authority is not of a merely routine or clerical nature, but requires use of independent judgment.
Pursuant to this definition, individuals are statutory supervisors if (1) they possess the authority to engage in any one of the twelve supervisory functions listed above or can effectively recommend any one of the twelve functions; (2) their exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment; and (3) their authority is held “in the interest of the employer.” The three recent NLRB decisions clarified and further defined the terms “assign,” “responsibility to direct,” and “independent judgment” as those terms are used under the NLRA.
The NLRB held that a supervisor met the definition of “assign” when he or she had the independent authority to designate an employee to a place of work (such as a location, department or wing within the company), appoint an employee to a specific working time (such as a shift or to assign overtime), or had the independent authority to assign overall duties or tasks to an employee to complete. In considering a supervisor’s ability to assign duties and tasks to an employee, the NLRB cautioned that a supervisor who only had the authority to choose the order in which the employee would perform those duties or tasks would not be indicative of exercising authority to “assign.”
Next, the NLRB clarified what it means to have a “responsibility to direct.” If a person on the shop floor has “men under him” and that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, provided that his or her direction of other employees is both “responsible” and carried out with “independent judgment.” For the direction to be “responsible,” the person directing and performing the oversight of the employee must be held accountable for the overall performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly. Therefore, to establish accountability for purposes of “responsible” direction, it must be shown that the employer delegated to the putative supervisor not only the authority to direct the work, but also the authority to take corrective or disciplinary action with regard to the employee, if needed.
Last, the NLRB determined that in order to exercise “independent judgment,” an individual must at a minimum act, or effectively recommend action, free from the control of others and form an opinion or evaluation by discerning and comparing data. A judgment is not independent if it is dictated or controlled by a detailed set of instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective-bargaining agreement. On the other hand, the mere existence of company policies does not eliminate independent judgment from decision-making if the policies allow for discretionary choices. It is ultimately the degree of discretion involved in making the decision, not the kind of discretion exercised (whether professional, technical, or otherwise) that determines the existence of “independent judgment” under Section 2(11).
For example, the authority to effect an assignment must be independent, must involve a judgment, and the judgment must involve a degree of discretion that rises above “routine or clerical.” If there is only one obvious and self-evident choice when a putative supervisor is faced with a particular set of facts, or if the assignment is made solely on the basis of equalizing workloads according to company policy and procedure, then the assignment is “routine or clerical” in nature and does not implicate independent judgment, even if it is made free of the control of others and involves forming an opinion or evaluation by discerning and comparing data. Essentially, a person who has the independent authority to make two different decisions when faced with a particular set of facts regarding employee hiring, transfers, suspensions, lay offs, recalls, promotions, discharges, assignments, rewards, or discipline will be considered a supervisor under the NLRA; in other words, choosing to discipline an employee versus terminating him or her for an violation of company policy.
Classifying certain employees as supervisors can be the difference between winning and losing an organizing campaign. Although the factors discussed above provide guidance and are informative, ultimately a Board Agent will determine supervisory status for each employee on a case-by-case basis. For more information regarding whether some of your employees would be considered “supervisors” under Section 2(11) of the NLRA, please feel free to contact Alan Ross or Nick Nykulak. It is never too early to develop an effective legal strategy to address potential organization and collective bargaining issues.