Once again, an employer has gone to battle with the National Labor Relations Board over employees’ supervisory status.  To businesses faced with unionization efforts, the distinction is a critical one.  Supervisors, as defined by statute and the decisions interpreting that statute, are excluded from eligibility for union membership.  In a recent case involving a nursing home, the Board limited the application of the statutory definition of supervisor, thus increasing the potential pool of employees subject to unionization. Heritage Hall, E.P.I. Corp., 333 N.L.R.B. No. 63 (2001).

[T]he National Labor Relations Act defines a supervisor 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.” In applying the definition, the Board relied on a U.S. Supreme Court case, N.L.R.B. v. Health Care & Retirement Corp. of America, 511 U.S. 571 (1994), which set forth the standard:

The statute requires the resolution of three questions; and each must be answered in the affirmative if an employee is to be deemed a supervisor.  First, does the employee have the authority to engage in one of the twelve listed activities?  Second, does the exercise of that authority require “the use of independent judgment”? Third, does the employee hold the authority “in the interest of the employer”?

In its examination of the potential supervisory status of certain of the nursing home employees, the Board also noted the longstanding requirement that the burden of establishing supervisory status be on the employer, the party traditionally asserting that status. The Board’s analysis honed in on the second prong of the Supreme Court’s test, the requirement that independent judgment be exercised when engaging in any of the twelve enumerated activities.  The Board accepted the employer’s evidence demonstrating that Licensed Practical Nurses (LPNs) assigned shifts to Nurses’ Assistants (NAs) and called in substitutes to cover absences.  Regardless, the Board found that those activities were insufficient to qualify those LPNs as supervisors.  Such activities, while admittedly falling under the ambit of “assigning” work, were deemed to be of a routine nature not requiring the exercise of independent judgment.  Similarly, the Board found that the issuance of verbal counselings and written reprimands by LPNs was “essentially reportorial authority” and insufficient to confer supervisory status.  Despite uncontroverted evidence that an LPN had sent an NA home early for misconduct, the Board held that such disciplinary actions were “routine in nature” and insufficient indicia of supervisory status.

The decision has significant implications for all employers where union representation is or may become an issue.  In order to confer supervisory status, it is insufficient for employers to grant employees the authority to assign work, discipline others, or engage in any of the other enumerated activities.  Any such authority must truly require the use of the supervisor’s independent judgment, thus allowing that individual genuine freedom to act as he or she feels appropriate, and not according to routine practice.  The Board has shown that it will look well beyond written job descriptions and apparent sole authority and instead closely examine how and under what conditions the authority is exercised.  Only those employees with significant independence will survive the scrutiny of the NLRB and emerge as statutory supervisors ineligible for union membership.