United States: Your Employees May Qualify for Supervisory Status under the NLRA

Last Updated: October 17 2006
Article by Eve I. Klein

The National Labor Relations Board (the "Board") recently issued three decisions defining what it means to be a "supervisor" that will have a tremendous impact in the formulation and maintenance of bargaining units in the healthcare industry, as well as in all unionized sectors. The Board's newly articulated guidelines now provide employers with a framework for arguing that "employees" who were previously covered by the National Labor Relations Act (the "Act") are properly excludable from the Act's protections as statutory "supervisors."

By way of background, section 2(11) of the Act specifically excludes supervisors from its definition of "employee" and from the rights afforded employees by the Act, such as the right to organize. The Act defines "supervisor" as "any individual having the 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 other words, an individual is a statutory supervisor if: (1) he holds the authority to engage in any one of the 12 supervisory functions listed in the definition; (2) his "exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment"; and (3) his authority is held "in the interest of the employer."

In its 2001 decision in NLRB v. Kentucky River Community Care, Inc., the U.S. Supreme Court rejected the Board's narrow interpretation of "independent judgment" and asked the Board to clarify not only its interpretation of "independent judgment," but also its interpretation of two of the 12 supervisory functions, namely "assign" and "responsibility to direct." In Oakwood Healthcare Inc., the Board finally responded to the Supreme Court's request to define these three terms in a case considering whether charge nurses were supervisors. In two decisions issued the same day, the Board also applied the new definitions in a healthcare setting in Beverly-Enterprises-Minn. Inc., d/b/a Golden Crest Healthcare Ctr. and to a manufacturing facility in Croft Metals, Inc.

The Board defined "independent judgment" to be judgment that is exercised without recourse to detailed instructions, whether dictated by a higher authority, a company manual or the provisions of a collective bargaining agreement. Likewise, the judgment cannot be simply "routine or clerical," but must require some independent thought and discretion.

The Board also clarified that to "assign" means the act of "designating an employee to a place (such as a location, department or wing), appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee." Further, according to the Board, directing LPNs to perform regular duties satisfies the "assignment" test, while directing the performance of ad hoc ones does not. By way of example, the Board explained that "if a charge nurse designates an LPN to be the person who will regularly administer medications to a patient or a group of patients, the giving of that overall duty to the LPN is an assignment." In contrast, "the charge nurse's ordering of an LPN to immediately give a sedative to a particular patient does not constitute an 'assignment.'"

Further, the Board advised that to establish that a supervisor "responsibly directs" other employees, it must be shown that the supervisor determines what tasks are undertaken, in what order and by whom. It must further be shown that "the employer delegated to the putative supervisor the authority to direct the work and to take corrective action, if necessary," and that "the supervisor is accountable for the actions of his subordinates in that there is a prospect of adverse consequences for the putative supervisor" arising from his subordinates' failure to properly carry out the tasks assigned.

The Oakwood Healthcare Inc. and Golden Crest Healthcare Ctr. decisions are important for employers in the healthcare field because they demonstrate that RNs who use independent judgment to assign nurses and aides to particular patients are supervisors excluded from the Act's coverage, whereas those who lack the authority to either assign or responsibly direct are not.

The Croft Metals, Inc. decision demonstrates application of the new guidelines beyond the healthcare industry. In Croft Metals, Inc., the Board applied its new guidelines to lead persons at a manufacturing facility and found that lead persons at the facility did not have the authority to assign other employees. Further, although they had the authority to responsibly direct the other workers, they did not exercise independent judgment in doing so.

Despite the employer's failure to meet its burden of demonstrating that the lead persons were supervisors, the Croft Metals, Inc. decision provides helpful guidance to employers seeking to exclude lead persons from bargaining units. For example, as the Board points out, lead persons who exercise independent judgment in managing their assigned teams, correcting improper performance, moving employees when necessary to do different tasks, and making decisions about the order in which work is to be performed likely "responsibly direct" under the Act.

What This Means for Employers

Employers should evaluate their workforce and their job descriptions in light of the Board's new guidelines for the application of the terms "assign," "responsibly direct" and "independent judgment." A union attempting to organize a workplace may be proposing to represent a unit that includes workers who can now be successfully challenged as supervisors — a challenge which may make the difference between winning and losing an election. Alternatively, an employer who already has a union in place may be able to take steps to clarify the scope of the bargaining unit so as to exclude workers who fit within the definition of supervisor, thereby improving the management of its workforce. Finally, employers should review and update job descriptions to ensure that supervisory duties are clearly and adequately defined and fully address the Board's new guidelines. You may want to seek out legal counsel to assist you with all of the above strategies, actions and documentation so you can take advantage of the Board's important clarification of supervisory status under the Act.

If you have any questions about this Alert or would like more information, please contact Eve Klein of our Employment Law and Management Labor Relations Practice Group or the attorney in the firm with whom you are regularly in contact.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, among the 100 largest law firms in the United States, is a full-service firm of more than 600 lawyers. In addition to legal services, Duane Morris has independent affiliates employing approximately 100 professionals engaged in other disciplines. With offices in major markets, and as part of an international network of independent law firms, Duane Morris represents clients across the nation and around the world.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions