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Proving "Supervisory Status" Under the NLRA

In 1935, Congress enacted the National Labor Relations Act (NLRA) in order to regulate labor relations and negotiations, including collective bargaining, between unionized employees and their employers. Collective bargaining is further regulated by state statutes, administrative regulations and judicial decisions. When federal law and state laws address the same issues, federal law controls.

Union Formation Procedures and Requirements

Section 7 of the NLRA states that “employees have the right to self-organization…” Employees may form labor organizations and “bargain collectively through a representative of their own choosing.” However, the NLRA excludes numerous types of employment from coverage by restricting the definition of an employee. Among other limitations, where an individual is employed as a supervisor, they may not expect to enjoy coverage of the NLRA. According to the NLRA, the term “supervisor” is defined as:

“[A]ny 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.” 29 U.S.C. §152(11).

The interpretation of “independent judgment” was recently addressed by the Supreme Court.

Supervisory Status and Independent Judgment

In 2001, in NLRB v. Kentucky River Community Care, the U.S. Supreme Court reviewed, among other questions, “whether judgment is not ‘independent judgment’ to the extent that it is informed by professional or technical training or experience.” In 1997, a Kentucky labor union (union) petitioned the NLRB to represent a group of health care providers at a mental care facility called the Caney Creek Development Complex (employer). The employer objected to the inclusion of six registered nurses in the bargaining unit. The employer argued that these individuals were supervisors and, thus, did not qualify to be members under the NLRA. The NLRB’s Regional Director (the Board), disagreed and allowed their inclusion.

Subsequent to several administrative actions, the employer appealed to the United States Court of Appeals for the Sixth Circuit, which reversed the Board’s decision, rejecting the Board’s interpretation of “independent judgment.” The court explained that:

“the Board had erred by classifying ‘the practice of a nurse supervising a nurse’s aide in administering patient care’ as ‘routine’ [simply] because the nurses have the ability to direct patient care by virtue of their training and expertise, not because of their connection with ‘management.'”

The Supreme Court affirmed the appellate court’s decision. In doing so, it reviewed the NLRA’s definition of “supervisor,” stating:

“Employees are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 listed supervisory functions [see definition of “supervisor” above.] (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.'”

At issue was the Board’s interpretation of “independent judgment,” the second element in this three-part test. Specifically, the Board asserted that “employees do not use ‘independent judgment’ when they exercise ‘ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards.'”

In its analysis, the Court agreed with part of the Board’s interpretation. Specifically, it stated that the phrase “independent judgment” is ambiguous. Many supervisory functions are nominally supervisory and do not require the judgment or discretion generally necessary to categorize such responsibilities as supervisory per se. For this reason, “[i]t falls clearly within the Board’s discretion to determine, within reason, what scope of discretion qualifies” as satisfying the “independent judgment” threshold.

However, the Court took issue with the Board’s decision to essentially alter the definition of “supervisor” by limiting the scope of independent judgment. The Board asserted that where an employee is given a sufficient degree of discretion to exercise judgment, the employee’s judgment should be recharacterized as not being independent if it involves “ordinary professional or technical judgment in directing less skilled employees to deliver services.” The Court rejected this exception, indicating that it was “directly contrary to the text of the statute.”

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