Whether one is protected under the National Labor Relations Act (NLRA) depends on whether he is considered an “employee” or a “supervisor” under the definitions of the Act. The NLRA guarantees the rights of workers to unionize without interference or reprisals from management and prohibits unfair labor practices that might interfere with union activities. But the protections do not extend to those who fall under the definition of “supervisor” under the statute. Thus, being able to distinguish between who is an employee and who is a supervisor will guide you in determining how to treat your personnel.
Section 2(3) of the NLRA expressly defines what a “supervisor” is, listing twelve specific supervisory functions, including the authority to: hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, responsibly direct them or adjust their grievances. In addition, the authority must be exercised “in the interest of the employer” and must not be routine or clerical in nature but rather require some use of independent judgment.
What it Means
The precise meaning of the various categories and terms used in the statute have not always been clear. The National Labor Relations Board recently decided a series of cases in which it clarified its current interpretation of the language. There is now considerable debate about whether the Board’s interpretations extend the class of “supervisors” too far, leaving too few employees covered by the law. Nonetheless, understanding the Board’s views is important to both employers and employees. The Board adopted definitions for three of the statute’s terms, covering “assign,” “responsibly to direct,” and “independent judgment.”
What does “Assign” Mean?
The Board noted that “assign” does not extend so far as to cover any instance of one person instructing another employee to perform a discrete, specific task. Instead, it covers those who designate “significant overall duties” of the employee. Thus, the act of designating the location or department where an employee is to work, the work period or shift the employee is to work or the general tasks to be performed are all within the meaning of “assign.” Those who assign work to employees or employees to work are considered supervisors and are not covered by the protections of the NLRA.
What does “Responsibly to Direct” Mean?
To avoid redundancy in the statute, the Board distinguished “responsibly to direct” from “assign” and held that the former is generally concerned with accountability. The term “responsibly to direct” means that the person has the authority to direct the work being done, to take corrective action as necessary, and also faces the prospect of adverse consequences if the end result or the performance of those he directs is inadequate. By being accountable for failure, the supervisor’s interests diverge from those of the ordinary employees he supervises.
What is “Independent Judgment”?
Finally, the Board articulated the meaning of “independent judgment.” In short, this term means that the person’s position allows him to make discretionary choices that are not directed or controlled by company policies, rules, or previous verbal instructions. The exercise of discretion is thus the basic requirement of “independent judgment.”
Even those who undertake supervisory tasks as little as 10-15% of the time can be considered “supervisors,” so employers need to have a good understanding of what types of jobs are defined as supervisory ones. The assistance of an attorney in this area is advisable.