To an employer faced with unionization efforts, the classification of an employee as a supervisor is a critical distinction.  Over the years, numerous disputes have been heard by the National Labor Relations Board itself, by the circuit courts of appeal, and by the United States Supreme Court.  In a recent decision, the Supreme Court overturned a longstanding NLRB interpretation that had previously resulted in denial of supervisory status to many who are now entitled to such standing.  National Labor Relations Board v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). 

The National Labor Relations Act sets forth a three part test for determining supervisory status.  Employees are supervisors if (1) they hold the authority to engage in any one of 12 listed supervisory functions , (2) the employee’s exercise of such authority is “not of a merely routine or clerical nature, but requires the use of independent judgment,” and (3) the employee’s authority is held “in the interest of the employer.”  The NLRB, however, has historically taken the position that the exercise of judgment by employees who are permitted by their employer to exercise a significant degree of discretion is not “independent judgment” if it is a particular kind of judgment, namely, ordinary professional or technical judgment in directing less skilled employees to deliver services.  Thus, even though an employee might appear to be responsibly directing employees and exercising independent judgment in doing so, the NLRB took the position that if the judgment consisted of “ordinary professional or technical judgment” in directing less skilled employees, such actions were not sufficient to qualify those employees as supervisors.
In a strongly worded decision, the majority of the Supreme Court described the exclusion as “startling” and held that the Board’s interpretation could not be enforced.  The Court noted that the Board’s interpretation based supervisory status on a factor that was cited nowhere in the statutes or in their legislative history.  The case centered on a challenge to the status of six registered nurses in a facility providing care for individuals suffering from mental retardation and mental illness.  Prior to this decision, nurses whose only indicia of supervisory status was the authority to direct less skilled nurses in delivering medical services would be eligible for union membership based on the NLRB’s interpretation.  Now, that exercise of “ordinary professional or technical judgment” in directing less skilled nurses is sufficient to qualify those nurses as supervisors.

The decision will have significant impact on the healthcare industry, where unionization efforts continue to flourish.  The decision will not only impact those efforts, but may result in a wave of unit clarification actions whereby employers seek to have excluded from their current union membership those nurses who would be now classified as supervisors under the Supreme Court’s decision.