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Definition Of Supervisor

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					National Labor Relations Board Broadens
Definition of “Supervisor” Under Federal Law
Lori K. Londis, Esq. | October 18, 2006

The National Labor Relations Board has just made it easier for an employee to
qualify as a “supervisor” under federal law. In Oakwood Healthcare, Inc.,
(9/29/06), the Board broadened the definition of supervisor, making it easier to
exclude supervisors from union membership.

This decision matters to employers operating in a union environment because
it clarifies how management can create new, non-union supervisory positions.

For those working in a non-union environment, this definition will become
important if and when a union launches a campaign to organize your workers.
Should such a campaign occur, you will need to think carefully about which
members of your supervisory team truly qualify as statutory “supervisors” in
order to best organize your response.

The Oakwood decision addressed only part of the definition of “supervisor,”
namely what it means to “assign” or “responsibly direct” other employees in a way
that requires the use of “independent judgment.” To “assign” now means
“designating an employee to a place (such as a location, department, or wing),
appointing an employee to a time (such as a shift or overtime period), or giving
significant overall duties, i.e., tasks, to an employee.” The tasks assigned must
involve “significant overall duties” rather than discrete or ad hoc tasks.

The phrase “responsibly to direct” now means that supervisors must be held
accountable to management for the performance of the employees they supervise.
Finally, supervisors must assign or direct other employees in a manner that requires
“independent judgment,” meaning they must make “professional or technical
judgments” that require discretion, as distinguished from performing merely
routine, clerical tasks. Judgments will not be considered “independent” if they are
“dictated or controlled by detailed instructions” (written or verbal).

Applying these definitions, the Board found that “charge nurses” in an Illinois
Hospital who were responsible for assigning nurses to particular patients for the
duration of a shift were “supervisors.” Charge nurses, therefore, were not held to
be part of the union. The Board found that when the charge nurses assigned other
shift nurses to particular patients, they had to exercise “independent judgment,”
meaning they had to call on their professional/technical expertise to match the skills
of a particular nurse to the needs of a particular patient. In addition, these charge
nurses would suffer real, adverse employment consequences if they made poor
assignments. As this and other Board decisions make clear, to determine whether a
given position in your organization is supervisory under federal law, you should
methodically undertake an analysis of the facts and compare them to the facts in
other cases.

In sum, the Oakwood decision could impact your business in that it will:

   •   Guide how you assign tasks and responsibilities to the different supervisory
       positions;
   •   Dictate to some extent how you defend against unionization campaigns; and
   •   Refine your analysis when unions challenge you to explain why a particular
       position in your organization is classified as supervisory and therefore non-
       union.

For more information on this recent NLRB ruling or related questions, please
contact Bernstein Shur Labor and Employment Attorneys Linda McGill, Glenn
Israel, Pat Peard or Lori Londis at 207 774-1200.




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