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The
National Labor Relations Board Refines Important
Test to Determine Which Employees Are Entitled to
the Protections of
Federal Labor Law
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The National Labor Relations Board Refines Important
Test to Determine Which Employees Are Entitled to
the Protections of Federal Labor Law
The National Labor Relations Act excludes “supervisors” from
its coverage, meaning that such employees have no
protected right to unionize or bargain with their
employers. In three decisions released on September
29, 2006, the National Labor Relations Board refined
the test determining whether employees fall within
the definition of “supervisor.” See
Oakwood Healthcare, 348 NLRB No. 37; Croft Metals,
348 NLRB No. 38; and Golden Crest Healthcare Center,
348 NLRB No. 39. The decisions are significant
in that they may have the effect of decreasing the
population of employees that unions can seek to organize,
and it may mean that employers with unionized workforces
no longer have an obligation to bargain with respect
to certain employees who now qualify as “supervisors” under
the Board’s test.
The recent cases involve so-called “charge nurses” at
hospitals and nursing homes, and “leadmen” at
a manufacturing plant. The Board found that
some of the nurses were supervisors, some nurses were
not supervisors, and that none of the leadmen were
supervisors. The employees’ job titles
were not determinative; rather, the Board looked to
the particular day-to-day responsibilities possessed
by each group. At issue was the circumstances
under which employees “assign” work to
other employees, “responsibly [] direct” other
employees, and utilize “independent judgment” in
doing so.
The charge nurses who qualified as supervisors had
the authority to “assign” other nurses
to particular patients within the hospital and they
used “independent judgment” in doing so. The
nurses who failed to qualify as supervisors admittedly
had certain supervisory responsibilities, but were
not considered supervisors by the Board because they
failed to exercise independent judgment in carrying
out such responsibilities, did not spend a “regular
and substantial” amount of their work time performing
such responsibilities, or were not held accountable
for the performance of employees under their direction.
With respect to the leadmen, the facts demonstrated
that the leadmen had no authority to hire, discipline,
discharge, evaluate, or assign employees. Although
the leadmen had authority to direct certain employees
in their work, the direction did not rise to the level
of supervisory authority because the discretion involved
was “merely routine or clerical,” as opposed
to discretion involving the leadmen’s exercise
of “independent judgment.”
The parties in these cases could appeal the Board’s
rulings to the federal courts. Unless and until
the cases are reversed, however, the tests established
to determine supervisory status are good law. Employers
who become targets of organizing drives – and
those employers who are currently unionized – should
closely review these decisions to determine whether
the scope of their obligations has now changed. Currently
unionized employers should review the decisions prior
to their next round of contract negotiations and,
in the short term, may consider formally clarifying
the scope of existing bargaining units.
* Muskat, Martinez & Mahony, LLP represents
employers in labor and employment law matters. For
more information, visit our website at www.m3law.com,
or contact any of our partners:
Mike Muskat, (713) 987-7851, mmuskat@m3law.com
Samantha Martinez, (713) 987-7852, smartinez@m3law.com
Michelle Mahony, (713) 987-7849, mmahony@m3law.com
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