by Geoffrey K. Cummings, Esq. 

The National Labor Relations Board (“NLRB”) recently issued three long anticipated opinions as a follow up to the United States Supreme Court’s 2001 decision in NLRB v. Kentucky River Community Care, Inc.  All four decisions involved the definition of the term “supervisor.”  The three NLRB decisions arose out of union efforts to organize employees of three different employers.  Two were health care institutions while the third was a manufacturer of doors and windows.  The Board’s decisions are now being commonly referred to as the “Kentucky River Decisions.”  The opinions provide additional and valuable guidance to employers in determining, for National Labor Relations Board purposes, who is a supervisor.  The decisions are viewed as expanding the number of employees who qualify for that status.  Because supervisors normally do not have the right to join labor organizations, the distinction is critical to many employers.

National Labor Relations Act (“Act”) cites twelve indicia of authority under which an individual can qualify as a supervisor.  An individual is considered by the NLRB to be a supervisor if he or she has the authority to (1) hire, (2) transfer, (3) suspend, (4) lay-off, (5) recall, (6) promote, (7) discharge, (8) assign, (9) award, (10) discipline, (11) adjust grievances of, or (12) responsibly direct other employees.  The presence of any one (or more) of the indicia qualifies an individual as a supervisor.  However, the exercise of authority may not be of a “merely routine or clerical nature, but [must] require the use of independent judgment.”  The Kentucky River Decisions center on two of the statutory criteria.  They are the ability to “assign” and the ability to “responsibly direct.”

The NLRB ruled that a purported supervisor must have the authority to direct an employee to a particular place (such as a location, department, or wing), direct an individual to work a particular time (such as a shift or overtime), or direct an employee to perform “significant overall duties, i.e. tasks.”  With respect to the term “responsibly direct,” the Board ruled that purported supervisors must be held accountable for the performance of employees reporting to them and that there must be some evidence of actual adverse consequences to the supervisors if the employees they supervise fail to perform their duties.

The Board also refined its interpretation of the requirement that a purported supervisor perform his or her tasks in a fashion that requires the use of “independent judgment.”  Independent judgment requires that a supervisor act, or effectively recommend action “free from the control of others.”  The Board pointed out that “detailed instructions, whether set forth in company policies or rules, the verbal instructions of higher authority, or in the provisions of a collective bargaining agreement” would disqualify an individual from supervisory status.

The NLRB’s articulation of the definition of a supervisor provides a sound basis for employers to consider changes or improvements in the organizational structure of their businesses.  Job descriptions and job duties may be redefined to include the supervisory functions specifically recognized by the Board.  Where an individual’s status is doubtful, he or she may be given additional responsibilities that are indicative of supervisory status.  Job evaluations and pay increases can be tied in with an individual’s performance as a supervisor, thus demonstrating the accountability required by the NLRB.

The Kentucky River Decisions have been viewed with dismay by labor organizations throughout the country.  AFL-CIO President John Sweeney described the decisions as “outrageous and unjustified.”  He placed blame and responsibility for the decisions on the “Bush-appointed NLRB.”  While the decisions no doubt expand the number of employees who will qualify for supervisory status, the full impact is yet to be determined.  Regardless of what the future holds, prudent employers, particularly those providing health care, will act now to reap the potential benefits of the decisions.