Supreme Court Broadens Class of " Supervisors" Excluded from the Protection of the National Labor Relations Act
 
July 3, 2001
 
Todd D. Steenson- Chicago

On May 29, 2001, the United States Supreme Court substantially broadened an employer's ability to show that employees are supervisors who are not covered under the National Labor Relations Act (NLRA). In NLRB v. Kentucky River Community Care, Inc. (2001) the Court rejected the National Labor Relations Board's (NLRB or Board) rule that employees who direct or manage other employees using professional or technical judgment are not supervisors. The decision will make it more difficult for unions to organize nurses and other skilled employees, give employers more freedom in dealing with such employees, and potentially allow unionized employers to exclude certain employees from existing bargaining units.

The NLRA defines a "supervisor" as:

. . .any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees, or responsibility 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.

Thus, employees are statutory supervisors if they

• engage in any one of the 12 listed supervisory functions

• use independent judgment rather than making routine or clerical decisions, and

• act "in the interest of the employer"

Supervisors do not have the right to form or join unions or engage in other union or concerted activity protected by the NLRA.

The NLRB repeatedly has attempted to limit employers' ability to claim that an employee's direction of other employees based upon professional or technical judgments demonstrates supervisory status. Prior to 1994, the NLRB ruled that nurses did not act "in the interest of the employer" when their "independent judgment was exercised incidental to professional or technical judgment" instead of "for disciplinary or other matters." After the Supreme Court rejected this effort in NLRB v. Healthcare & Retirement Corp. of America (1994), the Board switched gears and ruled that employees do not use "independent judgment" when they exercise "ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards."

In Kentucky River, the Supreme Court addressed the Board's revised limit on supervisory status. During a union organizing campaign, the employer argued that its six registered nurses were supervisors who should not be allowed to vote in the union election or be represented by the union. It claimed that the nurses met the supervisory test because they had responsibility to direct other employees using independent judgment.

The NLRB disagreed. It applied its general rule that employees do not use "independent judgment" when they exercise "ordinary professional or technical judgment in directing less-skilled employees to deliver services," and concluded these nurses were not supervisors.

On appeal, the Supreme Court rejected the NLRB's conclusion that "professional judgment" is not "independent judgment." Rather, it ruled that, as long as nurses or other professionals have substantial latitude in directing the work of subordinate or less-skilled employees, they qualify as supervisors under the NLRA even if their direction is based only on "professional" or "technical" judgments.

The importance of the Kentucky River decision is shown by the reaction of affected organizations. For example, the American Nurses Association stated that the decision would have a "chilling effect" on nurses' ability to form unions. More significantly, the American Medical Association responded by disbanding Physicians for Responsible Negotiation, the entity it had established to organize physicians and residents.

But the significance of Kentucky River is not limited to health care employees. The decision allows all employers to claim that employees who manage or lead others through the exercise of independent professional or technical judgment qualify as supervisors. Employees who qualify as supervisors under the Supreme Court's broadened test will not be eligible to join unions, will not be entitled to a representative in disciplinary investigation meetings under the NLRB's Epilepsy Foundation decision, and may be disciplined for engaging in union activity. Additionally, unionized employers may be able to request the NLRB to exclude from existing bargaining units individuals who qualify as supervisors under the Supreme Court's test.

Employers should be cautious in applying the new definition of "supervisor." The Supreme Court gave the NLRB some wiggle room to limit supervisory status, stating that "the Board could offer a limiting interpretation of the supervisory function of responsible direction by distinguishing employees who direct the manner of others' performance of discrete tasks from employees who direct other employees." In other words, telling a licensed practical nurse to move a patient in and of itself would not establish supervisory status. If, however, the registered nurse regularly directed that LPN as a part of a patient care team, she would be a supervisor provided the direction was not of a "routine nature" but required the use of "independent judgment." In addition, whether an employee exercises "independent judgment" is a fact issue to be determined on a case-by-case basis. In light of the Board's history of limiting "supervisory" status and the fact-based nature of the issue, employers should seek legal advice before denying an employee NLRA rights as a "supervisor."

For more information please contact Todd D. Steenson at 1-888-688-8500 or at tsteenso@hklaw.com.

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