Tuesday, October 3, 2006
As predicted, the Board has finally come down with its so-called "Kentucky River" cases. (To show just how long this has taken, although this is my third year of teaching, I worked on the General Counsel's amicus brief while I was at the Board. Humorously, the Board had also denied the General Counsel's motion for an extension of time to file the brief.) I've only briefly read the cases, but here are the highlights.
The main case for purposes of precedent is Oakwood Healthcare, Inc. 348 N.L.R.B. No. 37. In Oakwood, the Board (3-2) set forth several definitions under Section 2(11) of the NLRA. First, the majority construed "the term 'assign' to refer to the act
of 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. That is, the place, time, and work of an employee
are part of his/her terms and conditions of employment. In the health care setting, the term 'assign'
encompasses the charge nurses’ responsibility to assign nurses and aides to
particular patients." In contrast, the dissent "would limit the phrase 'assign employees”' to a
significant employment decision on the order of determining (1) an employee’s
position with the employer (in most settings, identified by job classification);
(2) designated work site (i.e., facility or departmental unit), or (3) work
hours (i.e., shift). This limited
reading better fits the idea of appointing an employee to a post or duty." In short, the majority includes assigning tasks to employees, while the dissent includes only the assignment of employees to particular jobs or sites.
Second, the majority concluded that "'responsibly to direct' is not limited to department heads as the dissent suggests. The 'department head' may be a person between the personnel manager and the rank and file employee, but he or she is not necessarily the only person between the manager and the employee. If a person on the shop floor has 'men under him,' and if that person decides 'what job shall be undertaken next or who shall do it,' that person is a supervisor, provided that the direction is both 'responsible' (as explained below) and carried out with independent judgment." In order for a direction to be considered "'responsible,' the person directing and performing the oversight of the employee must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly." The dissent would use the General Counsel's recommended definition, under which "[a]n individual responsibly directs with independent judgment within the meaning of Section 2(11) when it is established that the individual: a. has been delegated substantial authority to ensure that a work unit achieves management’s objectives and is thus “in charge”; b. is held accountable for the work of others; and c. exercises significant discretion and judgment in directing his or her work unit. This test differs crucially from the majority’s construction in requiring oversight with respect to a work unit." [emphasis added]
Finally, all 2(11) acts must be made with "independent judgment," which the majority defined as requiring "an individual [to] at minimum act, or
effectively recommend action, free of the control of others and form an opinion
or evaluation by discerning and comparing data." To be made with "independent judgment," an act must also be more than merely "dictated or
controlled by detailed instructions, whether set forth in company policies or
rules, the verbal instructions of a higher authority, or in the provisions of a
collective-bargaining agreement." Further, acts of "independent judgment" must "rise above the
merely routine or clerical." The Board was unanimous on this issue with the dissenting stressing that the Supreme Court's definition in Kentucky River was controlling and suggesting that it would differ with the majority in its application.
The scorecard for the cases is as follows. In Oakwood, the Board found that permanent charge nurses "assigned" other nurses with independent judgment under 2(11). However, the employer failed to show that rotating charge nurses were supervisors because they exercised supervisory authority for a substantial portion of their work time. In Golden Crest Healthcare Center, 348 N.L.R.B. No. 39, the Board (3-0) found that the charge nurses neither assigned nor responsibly directed others because they lacked authority to assign and had no accountability in their direction of others. In the final case, Croft Metals, Inc., 348 N.L.R.B. No. 38, the Board (3-0) found that manufacturing lead persons lacked the authority to assign, but did responsibly direct their line and crew members.
My personal take on these cases is that they're not great for unions, but they could have been worse. The sky has been falling in this area for a long time--driven mainly by the courts' repeated rejection of the Board's attempt to classify employees as nonsupervisors--and this is just another piece. The main problem here is the antiquated definition of supervisor in Section 2(11). To the extent that the definition ever made sense, the current economy's stress on more autonomy and skills for all levels of employees makes 2(11) a very poor fit with the NLRA's goal of protecting workers' right to engage in collective action.