Excerpted from
Arkansas Employment Law Letter written by attorneys at the law firm
Jack, Lyon & Jones, P.A.
The
National Labor Relations Board (NLRB) has recently decided two more "supervisor" cases under its new standard. The decisions are in addition to one the Board recently issued that shed some light on the often murky question of which employees are considered supervisors rather than "lead employees" under the
National Labor Relations Act (NLRA).
That distinction is important because supervisors are obligated to act in the best interests of their employer and can't join bargaining units (where they would likely be in leadership roles), while lead employees are free to unionize.
Let's take a look at how the Board ruled in its two latest decisions on supervisors.
More accountability needed
In setting the new standard, the NLRB held that permanent, full-time charge nurses at a Michigan hospital were supervisors because of their authority to assign duties, "responsible direction" of other employees, and use of independent judgment in exercising authority.
"Responsible direction" was the key in that case because the charge nurses were evaluated on their direction of others, there were adverse consequences to their employment if they performed poorly, and they had the authority to take corrective measures if needed.
In a subsequent decision, however, the Board found that charge nurses at a nursing home weren't supervisors. Although the charge nurses were responsible for directing nursing assistants and that was one of the factors they were evaluated on, there were no consequences if they scored poorly on that aspect of their evaluations.
In other words, the mere fact they were rated on the responsible-direction factor didn't establish that any adverse consequences could or would befall them because of the rating. Consequently, the "prospect of adverse consequences" for the charge nurses was merely speculative and insufficient to establish accountability.
Golden Crest Healthcare Center
, Cases 18-RC-16415 and 18-RC-16416.
The NLRB also found that lead persons at a manufacturing plant weren't supervisors. The employer was unable to show that their independent judgment rose above the level of discretion of "routine or clerical" decisions.
That was especially true for employees who perform mostly the same tasks every day and, once trained, require little direction from lead employees aside from "where to put it and how to put it."
Croft Metals Inc.,
Case 15-RC-8393.
Bottom line
Although these decisions by no means settle all the confusion about who is or isn't a "supervisor," they do help a little. According to the responsible-direction test, just being superior to another employee doesn't make someone a supervisor under the NLRA.
Responsible direction requires that the "directing" employee has the authority to discipline a subordinate who doesn't follow directions and that she's held accountable for the quality of her direction.
Copyright 2007 M. Lee Smith Publishers LLC.
ARKANSAS EMPLOYMENT LAW LETTER ARKANSAS EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. The State Bar of Arkansas does not certify specialists in labor law, and we do not claim certification in any listed area. For further information about the content of any article in this newsletter, please contact any of the editors.
