In defining “employees,” Section 2(3) of the Act specifically excludes agricultural laborers, domestic service employees, individuals employed by their parent or spouse, independent contractors, supervisors, individuals employed by employers subject to the Railway Labor Act, and employees of any other person who is not an employer within the meaning of the statutory definition.
We consider these statutory exclusions in the order in which they appear in Section 2(3).
Annually, since July 1946, Congress has added to the Board’s appropriation a rider which in effect directs the Board to be guided by the definition set forth in Section 3(f) of the Fair Labor Standards Act in determining whether an employee is an agricultural laborer within the meaning of Section 2(3) of the National Labor Relations Act.
The Board has frequently stated that its policy is to consider, whenever possible, the interpretation of Section 3(f) adopted by the Department of Labor, which is charged with the responsibility for administering the Fair Labor Standards Act. See, for example, Bayside Enterprises v. NLRB, 429 U.S. 298 (1977); Davis Grain Corp., 203 NLRB 319 (1973); Jack Frost, Inc., 201 NLRB 659 (1973); CPA Trucking Agency, 185 NLRB 452 (1970); D’Arrigo Bros. Co. of California, 171 NLRB 22 (1968); Samuel B. Gass, 154 NLRB 728 (1965); Bodine Produce Co., 147 NLRB 832 (1964); Imperial Garden Growers, 91 NLRB 1034 (1950).
Thus, in Jack Frost, supra, the Board referred to Section 3(f) of the Fair Labor Standards Act which reads, in pertinent part, as follows:
[A]griculture includes farming in all its branches and among other things includes . . . the production, cultivation, growing and harvesting of any agricultural . . . commodities . . . and any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.
As the truckdrivers and egg processing plant employees involved in this case were not engaged in direct farming operations of the type enumerated in the primary definition of agriculture, the question was whether they were engaged in activities included in the secondary definition of that term (see Farmers Reservoir Irrigation Co. v. McComb, Wage & Hour Administrator, 337 U.S. 755, 762 (1949)). The Board then relied on a Labor Department Interpretive Bulletin (see 29 CFR § 780.135), indicating that when processors enter into contractual agreements with independent farmers whereby the farmers agree to raise poultry to marketable size and the processor supplies the baby chicks, furnishes the required feed, and retains title to the chickens until they are sold, the activities of the independent farmers and their employees in raising the poultry are clearly exempt, but the activities of the processors are not considered “raising of poultry” and their employees are therefore not exempt on that ground. The Board’s position was affirmed by the Supreme Court in Bayside Enterprises, supra. See also Holly Farms Corp. v. NLRB, 116 S.Ct. 1396 (1996).
The burden of proving that individuals are exempt as
agricultural laborers rests on the party asserting the exemption. Agrigeneral L.P., 325 NLRB 972 (1998). And the question of employee status is not
decided on an employerwide basis, but on a classification by classification
analysis.
A thorough discussion of several of the criteria used by the Board in determining whether or not employees are “agricultural laborers” may be found in Bodine Produce Co., supra. These depend in major measure on the nature of the employer’s business.
One criterion is whether the operation is an established part of agriculture, is subordinate to the farming aspect involved, and does not amount to an independent business. See Labor Department Interpretive Bulletin, 29 CFR § 780; Jack Frost, Inc. and Bayside Enterprises, supra.
Where the employer produced and supplied the feed which enabled the production of the poultry and then processed and marketed the product, with the agricultural function of tending and feeding the live birds performed by the independent growers intervening in the chain, the agricultural phase of the entire operation was an incident of the employer’s nonagricultural activities rather than the converse. CPA Trucking Agency, supra. See also Draper Valley Farms, 307 NLRB 1440 (1992), finding that chicken catchers are not agricultural when working on the farms of independent growers. The Supreme Court upheld as reasonable, the Board’s conclusion that “livehaul crews” are employees. The Court found that the work of these crews was tied to the employers processing operations rather than incidental to farming operations. Holly Farms Corp. v. NLRB, supra.
Another criterion is whether the employer confines the operation in question to his own produce.
Where the employer was engaged in the production,
processing, and wholesaling of eggs, had been purchasing about half of its eggs
from outside sources, and could not substantiate his claim that new production
facilities would be able to replace the outside sources, the Board could not
find that the employer came within the terms of the agricultural exemption. Cherry Lane Farms, 190 NLRB 299 (1971). See also CPA Trucking Agency,
supra; D’Arrigo Bros. Co.
of California, supra. More recently, the Board has declined to set a
standard based on the percentage coming from outside sources. Rather the Board
will assert jurisdiction “if any amount of farm commodities other than those of
the employer-farmer are regularly handled by the employees in question.” Camsco Produce Co., 297 NLRB 905 (1990). See
also
A different test applies when considering whether workers who perform agricultural and nonagricultural work are exempted from the definition of “employee.” In these cases the test is substantiality, not regularity. Thus, where cutter packers spent 50 percent of their time performing nonagricultural work, they were considered to be employees because the amount of nonagricultural work was substantial. Produce Magic, Inc., 311 NLRB 1277 (1993). But in Pictsweet Mushroom Form, 329 NLRB 852 (1999), the Board denied review of a Regional Director finding that mushroom slicers were agricultural employees. In doing so, the Director relied on the fact that all the other workers were agricultural laborers, that the slicing did not essentially change the natural state of the mushroom and that the slicers were only a small part of the employers operation.
Other cases holding that employees were not exempt from the coverage of the Act: Mario Saikhon, Inc., 278 NLRB 1289 (1986) (field packing employees); Davis Grain Corp., 203 NLRB 319 (1973) (grain elevator employees); Batley-Janss Enterprises, 195 NLRB 310 (1972) (drivers of freshly cut alfalfa); John Bagwell Farms, 192 NLRB 547 (1971) (feed mill employees).
A Fifth Circuit decision rejected a distinction between workers on large mechanized farms and those employed on family farms. The court held that both groups are excluded from the Act’s coverage because the agricultural exemption “is not measured by the magnitude of [the farmer’s] planting nor in the prolificacy of his harvest.” Food & Commercial Workers Local 300 v. McCulloch, 428 F.2d 396, 399 (5th Cir. 1970).
Adverting again to the legislative rider to the Board’s appropriation act, mention should be made of the fact that annually, since 1954, Congress has added in the definition of agricultural laborers, and thus exempts from the Board’s jurisdiction “employees engaged in the maintenance and operation of ditches, canals, reservoirs, and waterways when maintained or operated on a mutual, nonprofit basis and at least 95 percent of the water stored or supplied thereby is used for farming purposes.”
Thus, where employees were found by the Board to have engaged solely in the functions here described and more than 95 percent of the water stored or supplied by their employer was used for farming purposes, the Board found that it was precluded from asserting jurisdiction by reason, inter alia, of the fact that these employees were agricultural employees as defined in the rider to the Board’s current appropriation act. Minidoka Irrigation District, 175 NLRB 880 (1969). See also Truckee-Carson Irrigation District, 164 NLRB 1176 (1967); and Sutter Mutual Water Co., 160 NLRB 1139 (1966).
Similarly, employees engaged in the revegetation of mined land as a part of a reclamation project, are exempt from Board jurisdiction. Drummond Coal Co., 249 NLRB 1017 (1980).
Individuals who are in the domestic service of any family or person at his home are excluded from the coverage of the Act. See the definition of “employees” in Section 2(3). Individuals employed by a business rather than a family are employees. The Board’s “focus is on the principals to whom the employer-employee relationship in fact runs and not merely to the undisputely ‘domestic’ nature of the services rendered.” Ankh Services, 243 NLRB 478, 480 (1979). See also NLRB v. Imperial House Condominiums, 831 F.2d 999 (11th Cir. 1987).
The problems encountered by the Board under this heading go beyond problems with the statutory language. The question is in some cases one of Board policy underlying the unit treatment of “relatives of management” when corporate ownership is involved. This is treated specifically in the chapter on Categories Governed by Board Policy, infra.
Section 2(3) of the Act excludes from the definition of “employee,” as spelled out in that section, “any individual having the status of an independent contractor.”
In meeting this provision, Congress did not define the
status, but intended that in each case the issue should be determined by the
application of general agency principles. NLRB
v. United Insurance Co., 390
Under agency principles, each case is determined on its own facts. Frito-Lay, Inc. v. NLRB, 385 F.2d 180 (7th Cir. 1967).
In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
(a) the extent of control which . . . the master may exercise over the details of work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the . . . occupation;
(e) whether the employer or top workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business. [Restatement of the Law of 220 Agency 2d, pp. 485–486.]
With respect to item (c) above—Community Custom—see Amerihealth Inc./Amerihealth HMO, 329 NLRB 870 (1999), holding physicians to be independent contractors.
The major principle, regularly enunciated by the Board and the courts in this phase of the law, is that the appropriate test to apply in determining whether certain individuals are independent contractors (and not under the Act) or “employees” (and therefore under the Act) is the common law of agency right-to-control test. NLRB v. United Insurance Co., supra; Ace Doran Hauling Co. v. NLRB, 462 F.2d 190 (6th Cir. 1972); Gary Enterprises, 300 NLRB 1111 (1990); Portage Transfer Co., 204 NLRB 787 (1973); Associated General Contractors, 201 NLRB 311 (1973).
Under this test, an employer-employee relationship exists
when the employer reserves the right to control not only the ends to be
achieved, but also the means to be used in achieving such ends. See for
The Board does not consider requirements imposed by the government to constitute employer control; it is considered government control, Air Transit, 271 NLRB 1108, 1110 (1984), and Elite Limousine Plus, 324 NLRB 992 (1997).
In Standard Oil Co., 230 NLRB 967, 968 (1977), the Board described the test:
Among factors considered significant at common law in connection with the “right to control” test in determining whether an employment relationship exists are (1) whether individuals perform functions that are an essential part of the Company’s normal operation or operate an independent business; (2) whether they have permanent working arrangement with the Company which will ordinarily continue as long as performance is satisfactory; (3) whether they do business in the Company’s name with assistance and guidance from the Company’s personnel and ordinarily sell only the Company’s products; (4) whether the agreement which contains the terms and conditions under which they operate is promulgated and changed unilaterally by the Company; (5) whether they account to the Company for the funds they collect under a regular reporting procedure prescribed by the Company; (6) whether particular skills are required for the operations subject to the contract; (7) whether they have proprietary interest in the work in which they are engaged; and, (8) whether they have the opportunity to make decisions which involve risks taken by the independent businessman which may result in profit or loss.
The Board does not regard as determinative the fact that the written agreement defines the relationship as one of “independent contractor” (National Freight, 153 NLRB 1536 (1965), and Big East Conference, 282 NLRB 335, 345 (1986)), or that the employer does not make payroll deductions and the drivers pay their own social security and other taxes (Miller Road Dairy, 135 NLRB 217, 220 (1962)), or that the drivers are free to solicit their own passengers in addition to complying with the employer’s dispatch orders, or that the employer does not give the drivers written driving instructions (Southern Cab Corp., 159 NLRB 248 fn. 4 (1966)); Diamond Cab, 164 NLRB 859 (1967)). In BKN, Inc., 333 NLRB 143 (2001), the Board found the freelance writers, designers and artists for a television production company to be employees noting extensive supervision by that company.
In any analysis of the cases presenting independent contractor issues, once the general rule has been stated, its application can only be discussed in empiric terms for, as the Seventh Circuit, among others, has said, each case must be determined on its own facts (Frito-Lay, Inc. v. NLRB, supra at 188). In these circumstances, several illustrative cases will be considered here in the light of the factual content in which they were decided. It may be helpful to divide our examples along the more typical industry lines. As the independent contractor issue arises with some degree of frequency in the trucking industry, we shall begin with that industry.
Before doing so, note that the Board held oral argument on two independent contractor cases and then found the pickup and delivery drivers in Roadway Package System, 326 NLRB 842 (1998), to be employees and the customer delivery drivers to be independent contractors in Dial-A-Mattress Operating Corp., 326 NLRB 884 (1998). In Argix Direct, Inc., 343 NLRB No. 108 (2004), the Board found independent contractor status in a unit of truckdrivers on facts similar to Dial-A-Mattress.
The trucking industry has generated a large number of cases presenting the independent contractor issue. Because, as indicated, the determinations are so fact-based, little purpose is served by summarizing the facts of particular cases. Rather, we have listed below a series of cases presenting independent contractor issues with different results. Among the factors considered by the Board in reaching its decisions are: (1) right to reject loads; (2) right to perform hauling for other carriers; (3) right to determine work schedules; (4) obligations to pay for fuel and maintenance; and (5) requirements to run predetermined routes.
Cases Finding Independent Contractor Status
– Central Transport, 299 NLRB 5 (1990).
– Precision Bulk Transport, 279 NLRB 437 (1986).
– Don Bass Trucking, 275 NLRB 1172 (1985).
– Austin Tupler Trucking, 261 NLRB 183 (1983).
– C. C. Eastern, Inc., 309 NLRB 1070 (1992).
– Diamond L Transportation, 310 NLRB 630 (1993).
– Dial-A-Mattress Operating Corp., 326 NLRB 884 (1998).
– – Argix Direct, Inc., 343 NLRB No. 108 (2004).
– AAA Cab Services, Inc., 341 NLRB No. 57 (2004).
–
Cases Finding Employee Status
–
Corporate Express Delivery System, 332
NLRB 1522 (2000).
–
Slay Transportation Co., Inc., 331 NLRB
1292 (2000).
– R. W. Bozel Transfer, 304 NLRB 200 (1991).
– Roadway Package System, 288 NLRB 196 (1988).
– North American Van Lines, 288 NLRB 38 (1988).
– Redieh’s Interstate, 255 NLRB 1073 (1980).
– Standard Oil Co., 230 NLRB 967 (1977).
– Roadway Package System, Inc., 326 NLRB 842 (1998).
– Metro-Taxicab Co., 341 NLRB No. 103 (2004).
Persons in the “motor routemen” classification ordinarily
delivered to single subscribers in rural areas but also delivered in bulk to
carriers and dealers. In holding them to be “employees,” the Board addressed
itself to “the result to be accomplished,” i.e., the circulation and sale of
newspapers, as well as the right to control the manner and means. Thus, it
found that they must purchase the newspapers at the cost established by the
employer and sell them at a price no higher than the published price in the
area or territory defined and controlled by the employer; their risk of loss
and capacity to draw on personal initiative to increase earnings were minimized
significantly by the extent of the employer’s practices and policies of
preventing competition between the motor routemen, of accepting return for
credit, of adjusting the wholesale rate, and of granting subsidies, apparently
to compensate for added expenses, thus affecting their earnings; and the motor
routemen had no proprietary interest in their routes. Beacon Journal Publishing
In a case involving carrier boys, the Board found that
their opportunities for profits were limited by the company’s regulation and
control of their work, having, to a large extent, reserved the right to control
the manner and means, in addition to the result, of their work. They were
therefore held to be “employees.” A. S.
Abell Co., 185 NLRB 144 (1970).
For other “employee” findings in the newspaper industry,
see Vindicator Printing Co., 146 NLRB 871 (1964) (contract distributors engaged in
the sale and distribution of newspapers to newstands and carriers); Sacramento Union, 160 NLRB 1515 (1966) (district dealers); Citizen-News Co., 97 NLRB 428 (1951) (carrier boys); News Syndicate Co., 164 NLRB 422 (1967) (franchised dealers); El Mundo, Inc., 167 NLRB 760 (1967) (newspaper dealers who, under contract,
distribute and sell the employer’s newspapers to stores, newsstands, and
newsboys, and by means of vending machines); Herald
In Hearst Corp., 174 NLRB 934 (1969), distributors were found to be
supervisors rather than either “employees” or “independent contractors.” The
fact that several news deliverers threatened suit to enforce “their individual
contractor status” was held insufficient, when weighed against other factors,
to change the finding that they were “employees” and not “independent
contractors.” News-Journal Co., supra. On the other hand, in
. . . supervisors of the Company in recent
years have spent little time with distributors and then only as observers,
whether or how they perform their distribution is not monitored by the Company;
suggestions and criticism of distributors by the Company are solely to
stimulate sales of its newspapers; extension of credit to subscribers is
determined solely by the distributor, who sustains any loss which may result;
the route, dress, time off, and substitutes or helpers or their pay, are not
regulated by the Post; the distributor determines where the Company will drop
off their papers; the method of a distributor’s credit bonding to secure
payment to the Company is subject to negotiations, as is the method of the
credit bonding of his carriers; distributors determine whom to put on as
carrier boys and motor routemen and designate their territory and the price
which they must pay for the newspaper; complaints are serviced by the
distributors and action concerning stops and starts must be initiated by
distributors; the Company does not accept returns or reimburse the distributors
for damaged or lost newspapers; their income is based on the difference between
the price at which they buy, plus labor costs, and the price at which they sell
to customers or carriers; the contract of the parties is not observed in
practice; the Company’s price to distributor is subject to negotiations;
distributors own, operate, and maintain their own vehicles, which have no
markings identifying them with the Company; and they may carry anything they
wish, including rival newspapers. Fort
Cab drivers’ status presents a frequent occasion for litigation of the independent contractor issue.
As with any determination of this issue, the right to control test will apply. The Board has, however, been inclined to find independent contractor status where the cab drivers lease their own cabs and there is no relationship between their base fees and the fares generated. For cases holding independent contractor status see City Cab of Orlando, 285 NLRB 1191 (1987); Air Transit, 271 NLRB 1108 (1984).
In Metropolitan Taxicab Board of Trade, Inc., 342 NLRB No. 130 (2004), an administrative law judge found most of the cab drivers in New York are independent contractors. In doing so, he recounts the history of the conversion of these drivers from employees to independent contractors. See also AAA Cab Services, Inc., 341 NLRB No. 57 (2004), finding independent contractors status and Metro-Taxicab Co., 341 NLRB No. 103 (2004), find employee status.
In Yellow Taxi of Minneapolis, 262 NLRB 702 (1982), in which the Board, sua sponte, reconsidered its original decision that the drivers were employees and reached the same result notwithstanding adverse decisions by the courts in other factually similar cases.
The Board was reversed by the court in Suburban Yellow Taxi Co. v. NLRB, 721 F.2d 366 (D.C. Cir. 1983). The Board later distinguished Suburban Yellow Taxi and a number of
other taxi cases in which the courts refused to enforce Board orders. See Yellow
Cab of
In Stamford Taxi, Inc., 332 NLRB 1372 (2000), the Board found taxi drivers to be employees based on a Roadway Package System, 326 NLRB 842 (1998), analyses.
For an analysis of limousine drivers see Elite Limousine Plus, 324 NLRB 992 (1997).
Where American Oil Company leased a service station to a lessee, and the lease contained no requirements or limitations on the method or manner of operating the station; the lessee being free to set his own hours, hire and fire whomever he pleased, set his employees’ wage rates, and, except for the sale of American Oil gasoline, sell either its products or those of its competitors at his own prices, the lessee was found to be an independent contractor. The Board did not regard a “Financial Assistance Plan” available to the lessee as a sufficient basis for changing the result. American Oil Co., 188 NLRB 438 (1971).
A franchisee was held to be an independent contractor in the factual context of the case. Citing Clark Oil & Refining Corp., 129 NLRB 750 (1960), the Board pointed out that it has never held that the right to terminate a franchise agreement, standing alone, negates the existence of independent contractor status. Speedee 7-Eleven, 170 NLRB 1332 (1968).
Where a photographer used his own equipment, paid for his own photographic supplies, received payment only for each picture accepted for publication, stood the loss for each picture not accepted, sold copies of pictures to any customers other than the employer’s competitors, he was found to be an independent contractor, particularly since the employer did not control the manner or means by which he was to perform the work. La Prensa, Inc., 131 NLRB 527 (1961). See also Young & Rubicam International, 226 NLRB 1271 (1976).
In Pennsylvania Academy of the Fine Arts, 343 NLRB No. 93 (2004), the Board found that artists models were independent contractors. In doing so the Board panel majority relied on the facts that these models could choose the classes before which they will model, that they were paid by the class and not by the hour, that they supply their own robes and that they can work for other schools or independent artists. The Board also noted the high degree of skill of the models in striking and holding a pose.
On the other hand, where contract salesmen at a dairy products plant were used exclusively in the company’s service, and the company built up their routes, limited the prices they could charge, made charge accounts subject to its approval, and required daily reports and cash settlements each day of the day’s receipts, the salesmen were found to be employees. Albert Lea Creamery Assn., 119 NLRB 817 (1957).
Consideration was accorded the fact that the employers “reserved the right to control the manner and means as well as indirectly the result of the work performed” in finding drivers “employees” rather than independent contractors. Okeh Caterers, 179 NLRB 535 (1969).
A factor in arriving at a finding that “auto shuttlers,” also known as “car transporters,” were not independent contractors was that no opportunity existed for the individuals in question “to make business decisions affecting their profit or loss.” Avis Rent-A-Car System, 173 NLRB 1366 (1968). See also Avis Rent-A-Car System, 173 NLRB 1368 (1968); A. Paladini, Inc., 168 NLRB 952 (1967).
In Lakes Pilots Assn., 320 NLRB 168 (1995), the Board found that pilots in training—applicant maritime pilots—were employees not independent contractors. The Board noted that the employer retained the right to control the manner in which these pilots performed their services.
See also Cardinal McCloskey Services, 298 NLRB 434 (1992), in which the Board found day care providers to be independent contractors. Compare People Care, Inc., 311 NLRB 1075 (1993), finding the providers there to be employees.
In Ameri Health HMO, 326 NLRB 509 (1998), the Board remanded for further proceedings the question of whether physicians are employees of a health maintenance organization.
Author’s Note:
In September 2003, the Board accepted briefs in a series of cases
implicating the Supreme Court’s decision in NLRB v. Kentucky River Community
Care, 532 U.S. 706 (2001).
Those cases, Oakwood Healthcare Inc., Beverly
Enterprises-Minnesota, Inc. d/b/a Golden Crest Healthcare Center; and Craft
Metals, Inc., were pending decision at the time of publication of this
edition of the text. The briefs filed in these cases are on the Board’s website
www.nlrb.gov.
Supervisory status under the Act depends on whether an individual possesses authority to act in the interest of the employer in the matters and in the manner specified in Section 2(11) of the Act, which defines the term “supervisor” as:
The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly 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.
In discussing the above statutory definition, the Sixth
Circuit declared that Section 2(11) is to be interpreted in the disjunctive and
that “the possession of any one of the authorities listed in [that section]
places the employee invested with this authority in the supervisory class.”
It is axiomatic, of course, that the existence of the power determines whether an individual is an employee or a supervisor (see, for example, West Penn Power Co. v. NLRB, 337 F.2d 993, 996 (3d Cir. 1964)), but the real task which confronts the Board is the difficult one of finding whether the supervisory power in fact exists, and this can only be ascertained as a result of a painstaking analysis of the facts in each case. In Hogan Mfg., 305 NLRB 861 (1991), the testing of welders as part of the hiring process was not considered to be an effective recommendation.
Supervisory issues are among the most common in representation cases, and the Board volumes are replete with findings of both supervisory and nonsupervisory status in a veritable myriad of factual situations, sometimes simple but more often complex. A number of factors are considered in resolving supervisory issues. These, of course, include the statutory requirements described above. The problem, however, lies mainly in the application of these factors in order to ascertain from the relevant facts and circumstances whether or not the terms of the statutory definition are met. It is an individual’s duties not job title that determines status. Dole Fresh Vegetables, Inc., 339 NLRB 785 (2003).
Supervisory status cannot be measured in individually distinct terms, nor can hard-and-fast rules be laid down. In each case, the differentiation must be made between the exercise of independent judgment and the routine following of instructions, between effective recommendation and forceful suggestion, and between the appearance of supervision and supervision in fact. See, e.g., Chevron Shipping Co., 317 NLRB 379 (1995); J. C. Brock Corp., 314 NLRB 157 (1994); Clark Machine Corp., 308 NLRB 555 (1992); McCollough Environmental Services, 306 NLRB 565 (1992); and Quadrex Environmental Co., 308 NLRB 101 (1992), all of which involved finding of no independent judgment. Compare Virginia Mfg. Co., 311 NLRB 992 (1993), and Allen Services Co., 314 NLRB 1060 (1994), supra.
The burden of establishing supervisory status rests on the
party asserting that status. NLRB v. Kentucky River Community Care, 532 U.S. 706, 711–712 (2001);
Benchmark Mechanical Contractors, Inc., 327 NLRB 829 (1999); Alois
Box Co., Inc., 326 NLRB 1177 (1998), and Youville
Health Care Center, Inc., 326 NLRB 495 (1998). And, any lack of evidence is
construed against the party asserting supervisory status.
Listed below is a series of recent cases in which the Board found that the burden was not met. Spentonbush/Red Star Cos., 319 NLRB 988 (1995) (tugboat captains), enf. denied 106 F.3d 484 (2d Cir. 1997); Northwest Florida Legal Services, 320 NLRB 92 (1995) (supervisory attorney); K.G. Knitting Mills, 320 NLRB 374 (1995); Azusa Ranch Market, 321 NLRB 811 (1996) (department manager in grocery store); New Jersey Newspapers, 322 NLRB 394 (1996) (pressroom foremen); Pine Brook Care Center, 322 NLRB 740 (1996) (charge nurses); PECO Energy Co., 322 NLRB 1074 (1997) (lead maintenance technicians at a public utility); Illinois Veterans Home at Anna L.P., 323 NLRB 890 (1997) (registered nurses); and Chrome Deposit Corp., 323 NLRB 961 (1997) (crew leaders).
A discussion of criteria follows:
Individuals who possess the authority spelled out in the
statutory definition contained in Section 2(11) are, of course, “supervisors”
and can be held to be supervisors even if the authority has not yet
exercised. Fred Meyer Alaska, Inc.,
334 NLRB 646 fn. 8 (2001). United States Gypsum Co.,
93 NLRB 91 (1951), and Wasatch
Oil Refining
Accordingly, supervisory findings resulted where “news
producers” at a television station, among other responsibilities, assigned
overtime (Westinghouse Broadcasting Co., 195 NLRB 339 (1972)), or made work assignments (Westinghouse Broadcasting Co., 188 NLRB 157 (1971)); “strip supervisors” and
“dispatchers” discharged drivers in a trucking operation for serious
misconduct, which was one indication of their authority (Pennsylvania Truck Lines, 199 NLRB 641 (1972)); an individual in a welding
operation scheduled work, assigned it to employees, gave them orders, and had
sole responsibility for the workload (Custom
Bronze & Aluminum Corp., 197 NLRB
397 (1972)); a personnel manager actively engaged in the hiring process (Lawson Milk Co., 143 NLRB 916, 919–920 (1963)); an individual had the
authority to grant time off and furlough employees during slack periods (Birmingham Fabricating Co., 140 NLRB 640, 642 (1963)); “shift leaders” had the
responsibility for transmitting work orders and for seeing to it that these
orders were carried out (Little Rock Hardboard Co., 140 NLRB 264, 265 (1962)); a “working foreman”
who, among other indicia of authority, granted employees time off (Western Saw Mfrs., 155 NLRB 1323, 1329 fn. 11 (1965)); “line leaders” who
had the authority to maintain discipline (Lee-Rowan
Mfg. Co., 129 NLRB 980, 984 (1960)); department and line
supervisors who have disciplinary authority and who could make effective hiring
recommendations Venture Industries,
327 NLRB 918 (1999);
licensed practical nurses who had disciplinary authority (Heartland of Beckley, 328 NLRB 1056 (1999)); and assistant supervisors whose evaluations
led to automatic wage increases (Harbor
City Volunteer Ambulance Squad, 318 NLRB
764 (1995)). Compare
Nonsupervisory findings resulted in situations where a dentist's reassignment authority was a means of assuring compatibility. (Robert Greenspan, D.D.S., P.C., 318 NLRB 7 (1995)); where the authority to order intoxicated employees to leave was not disciplinary (Chevron Shipping, supra); where “associate architects” had no authority as statutorily defined, the firm principal reserving for himself “the final determination on all architectural decisions” (Howard A. Friedman & Associates, 192 NLRB 919 (1971)); work assignments are routine in nature (Sears, Roebuck & Co., 292 NLRB 753, 754 (1989)); authority had not in fact been exercised (Northwest Steel, 200 NLRB 108 (1972)); airport bus dispatchers were not required to exercise independent judgment or test their own initiative (Greyhound Airport Services, 189 NLRB 291 (1971)); “district managers” employed by a newspaper publishing company possessed minimal discretion (Suburban Newspaper Group, 195 NLRB 438 (1972)); telephone company “traffic supervisors” who, despite enlarged responsibilities and new title, nonetheless did not possess the kind of responsibility contemplated by Section 2(11) (Hawaiian Telephone Co., 186 NLRB 1 (1970)). See also Blue Star Ready-Mix Concrete Corp., 305 NLRB 429 (1991), in which the Board held that “batchers” employed by a concrete producer do not exercise independent judgment; and Hogan Mfg., supra, testing welders was not authority to recommend hire. The presence or absence of the exercise of independent judgment is an important factor weighed by the Board in making its supervisory determinations. Sears, Roebuck & Co., 304 NLRB 193 (1991).
Moreover, although an individual’s duties may include
relaying to management complaints against other employees, also reports of
inefficiency, if these are investigated independently by higher management, he
is not a supervisor within the meaning of the statutory definition. Pepsi-Cola Bottling Co., 154 NLRB 490, 493–494 (1965). Nor is he a supervisor
if the control he exercises is merely that which is derived from job
experience. Sanborn Telephone
Quality control work—inspecting and reporting the work of others—is not supervisory. Nor is the testing of welds. Brown & Root, Inc., 314 NLRB 19, 21 fn. 6 (1994). Authority to issue instructions and minor orders based on greater job skills does not amount to supervisory authority, Byers Engineering, 324 NLRB 740 (1997).
In an unfair labor practice case, the Board described the proper balancing of interests in assessing supervisory authority. The case involved a series of disciplinary actions by the alleged supervisor. The Board found that some of the incidents did not establish supervisory authority but concluded that one incident was sufficient to find supervisory status rejecting an argument that it was a sporadic exercise of authority. Biewer Wisconsin Sawmill, 312 NLRB 505 (1993).
In a recent case the Board reversed prior precedent and found that distribution and system dispatchers in the utility industry are not supervisors. Mississippi Power & Light Co., 328 NLRB 965 (1999), reversing Big Rivers Electric Corp., 266 NLRB 380 (1983).
Section 2(11) requires that the alleged supervisor exercise authority “in the interest of the employer.” In Allstate Insurance Co., 332 NLRB 759 (2000), the Board found that the individual in question had complete discretion whether to work alone or to have assistance. The Board found that the essential components of the employers business were not affected by such a decision and therefore the individual was not exercising authority in the interest of the employer.
Generally speaking, the Board uses the terms “responsible direction” and “independent judgement” interchangeably.
Employees who must and do use independent judgment in directing other employees are supervisors within the meaning of Section 2(11). See, e.g., Sears, Roebuck & Co., supra. See also DST Industries, 310 NLRB 957 (1993). Similarly, those who use independent judgment in effectively recommending discipline are supervisors. Progressive Transportation Services, 340 NLRB No. 121 (2003). See also Mountaineer Park, Inc., 343 NLRB No. 135 (2004). Compare Armstrong Machine Co., 343 NLRB No. 122 (2004).
In NLRB v. Kentucky River Community Care, Inc., 532
The facts in Custom Bronze & Aluminum Corp., supra, are illustrative of Board analysis in traditional industrial settings. While it was not contended that the individual in question had the authority to hire or discharge, reward, promote, suspend, layoff, discipline, reprimand employees, effectively recommend such action, or handle grievances, it was nonetheless found that he alone was responsible for the work of the shop employees and the daily production of the shop; he was in charge of the shop and its workload, exercised responsibilities and duties that his colleague did not, scheduled and assigned work, gave employees their orders and instructions, helped them in performing their jobs, made certain that the work was done and done properly, and determined whether overtime or additional help was needed. Compare Dean & Deluca New York, Inc., 338 NLRB 1046 (2003) (being in charge of store does not evidence supervisory authority in absence of showing of use of independent judgment).
For other cases, in which a supervisory finding was made on the basis of responsible direction or independent judgment, see Arlington Masonry Supply, Inc., 339 NLRB 817 (2003); Wal-Mart Stores, 335 NLRB 1310 (2001); Venture Industries, 327 NLRB 918 (1999); Superior Bakery, 294 NLRB 256 (1989); Rose Metal Products, 289 NLRB 1153 (1988); Illini Steel Fabricators, 197 NLRB 303 (1972); Consolidated Freightway Corp., 196 NLRB 807 (1972); Wolverine World Wide, 196 NLRB 410 (1972); and Westinghouse Broadcasting Co., 195 NLRB 339 (1972).
Illustrative of the opposite result under this heading is Mid-State Fruit, Inc., 186 NLRB 51 (1970). While the individual in question recruited substitute drivers and occasionally directed “an extra delivery to a good customer,” a company principal was always on call and was reached on the telephone for instructions in matters involving substitution of drivers or other emergencies. He worked the same hours and received the same benefits as other members of the crew. In assigning overtime, he did so at his principal's specific instructions. And although the individual in question claimed to have discharged an employee, there was no evidence that he actually did, and it was clear from the facts that he possessed no such authority. As he was “not free to use his own independent judgment,” concluded the Board, “he could not be said to responsibly direct other employees.” See also Wal-Mart Stores, 340 NLRB No. 31 (2003).
In two television station cases, a divided Board found that producers did not have the independent authority to make work assignments and thus were not supervisors. KGW-TV, 329 NLRB 378 (1999), and KGTV-TV, 329 NLRB 454 (1999).
For other cases decided along similar lines, see Dynamic Science, Inc., supra; Health Resources of Lakeview, 332 NLRB 878 (2000); Arlington Electric, 332 NLRB 845 (2000); Carlisle Engineered Products, 330 NLRB 1359 (2000); Freeman Decorating Co., 330 NLRB 1143 (2000); Fleming Co., 330 NLRB 277 fn. 1 (1999); Crittenton Hospital, 328 NLRB 879 (1999); Tree-Fiber, 328 NLRB 389 (1999); Millord Refrigeration Services, 326 NLRB 1437 (1998); Ryder Truck Rental, 326 NLRB 1386 (1998); Alois Box Co., Inc., 326 NLRB 1177 (1998); Greenhorne & O’Mara, Inc., 326 NLRB 514 (1998); Youville Health Care Center, Inc., 326 NLRB 495 (1998); General Security Services Corp., 326 NLRB 312 (1998); Hausner Hard Chrome of KY, Inc., 326 NLRB 426 (1998); Hydro Conduit Corp., 254 NLRB 433 (1981); Suburban Newspaper Group, supra; Willis Shaw Frozen Food Express, 173 NLRB 487 (1968); John Stalfort & Sons, 156 NLRB 84, 86 (1965); and Bakersfield Californian, 316 NLRB 1211 (1995).
In Armstrong Machine Co., 343 NLRB No. 122 (2004), a panel majority found no supervisory status
for the most senior employees in the department who answered questions
concerning work and who made work assignments based on “a priority list
generated by management.” In absence of
the owner, the employee answered customer inquiries. The panel found that the work assignments
were routine not “based on anything other than the common knowledge, present in
any small workplace, of which employees have certain skills and which employees
do not work well together.” Citing Hausner
Hard Chrome of KY, Inc., supra,
the panel found that the employees work did “not demonstrate the exercise of
independent judgment as envisioned
by Section 2(11) of the Act.
Direction of work that is routine in nature and typical of
a leadperson was held not to be supervisory in the following cases: Central
Plumbing Specialties, 337 NLRB 973 (2002); Byers Engineering Corp., 324 NLRB 740 (1997); S.D.I. Operating Partners, L.P., 321 NLRB 111
(1996); Consolidated Services, 321 NLRB 845 (1996); Azusa
Ranch Market,
321 NLRB 811 (1996); and St. Francis
Medical Center, 323 NLRB 1046 (1997).
Authority to initial timecards is not generally considered supervisory
authority.
Persons with the power “effectively to recommend” the actions described in Section 2(11) are supervisors within the statutory definition. See, e.g., Entergy Systems & Service, 328 NLRB 902 (1999); Detroit College of Business, 296 NLRB 318 (1989); and Westwood Health Care Center, 330 NLRB 935 (2000).
In Mountaineer Park, Inc., 343 NLRB No. 135 (2004), a divided panel found two individuals to be supervisors where they could “on their own volition . . . bring a potential disciplinary issue” to their superiors and discipline is imposed at the level recommended.
A supervisory finding was made, based in part, on the
power effectively to recommend hiring and firing. A factual situation served as
a predicate: When an employee was discharged, he asked a company official for
another chance and was told that the company official must abide by the
decision of the individual found to be a supervisor. Elliott-Williams
The Board has rejected the contention that mere
suggestions are effective recommendations. Brown
& Root, Inc., 314 NLRB 19 (1994),
and that signatures on a discipline form amounted to an effective
recommendation. Rather in this latter case, the Board adopted the hearing
officer's conclusion that such signatures were for witness purposes. Necedah Screw Machine Products, 323 NLRB 574 (1997). See also Children’s Farm Home, 324 NLRB 61 (1997). Accord:
The Board has held that the mere issuance of a directive
to alleged supervisors setting forth supervisory authority is not determinative
of their supervisory status.
Authority to submit reports on employee conduct that are
merely records of instruction or are investigated independently, does not
establish supervisory status. Williamette
Industries, 336 NLRB 743 (2001); Ken-Crest Services, 335 NLRB 777 (2001); Tree-Fiber
Co., 328 NLRB 389 (1999); Green
Acres Country Care Center, 327 NLRB 257 (1998); Custom Mattress Mfg., 327 NLRB 111 (1998);
Ryder Truck Rental, Inc., 326 NLRB
1386 (1998); Hausner Hard Chrome of KY, Inc., 326
NLRB 426 (1998); F.A.
Bartlett Tree Expert Co., 325 NLRB 243 (1997); MJ Metal Products, 325 NLRB 240 (1997); and Mount Sinai Hospital, 325 NLRB 1136 (1998). Nor is the assessment of an applicant for
employments technical skills an effective recommendation to hire that
individual. Aardvark Post, 331
NLRB 320 (2000).
Individuals must have been notified of their authority if they are to be supervisors. Volair Contractors, Inc., 341 NLRB No. 98 (2004).
Employees who spend a substantial part of each workday or
workweek as supervisors are customarily excluded as such from the bargaining
unit. Benchmark Mechanical Contractors, Inc., 327 NLRB 829 (1999), and U.S.
Radium Corp., 122 NLRB 468 (1958). Those who exercise
supervisory authority for a portion of the year and perform rank-and-file
functions for the remainder are described as “seasonal supervisors” and are
included in the bargaining unit with respect to their rank-and-file
duties. Great Western Sugar Co., 137 NLRB 551 (1962). This does not mean that
persons exercising only sporadic or irregular supervisory functions meet the
statutory definition of supervisor. Latas de Alumino Reynolds, 276 NLRB 1313
(1985); Meijer
Supermarkets, 142 NLRB 513 (1963);
Occasional isolated instances of actions which might
otherwise be indicative of supervisory authority are generally insufficient to
predicate a supervisory finding. Volair Contractors, Inc., 341 NLRB No.
98 (2004). Kanawha Stone Co., 334
NLRB 235 (2001). Commercial
Where an employee completely takes over the supervisory
duties of another, he is regarded as a supervisor under the Act.
In St. Francis Medical Center-West, 323 NLRB 1046 (1997), the Board found that substitution for a substantial period of time (5 of the 10 months before the election) was not regular because it was caused by extraordinary circumstances and was not likely to reoccur. Thus, the Board found that the individual was not a supervisor. Merely being “in charge” of store on weekends is not sufficient to establish supervisory authority in absence of use of independent judgment. Dean & Deluca New York, Inc., 338 NLRB 1046 (2003).
For an interesting discussion of this point see Benchmark Mechanical Contractors, Inc., 327 NLRB 829 (1999), where the Board found that an employee who quit on the day of the election but who had been promoted to a supervisory position at that time would not have spent a substantial portion of his time as a supervisor even if he had not quit.
The possibility of promotion to a supervisory position in the future does not in and of itself warrant exclusion from a unit. Weaver Motors, 123 NLRB 209 (1959). See also International General Electric, 117 NLRB 1571 (1957). Thus, individuals whose future assignment to supervisory status is contingent on demonstration of required qualifications are, if otherwise warranted by the facts, included in the unit. Continental Can Co., 116 NLRB 1202 (1956).
Management trainees are generally treated the same as
other individuals who are in line for elevation to supervisory positions. Thus,
“manager trainees” who were in a training program ranging from 3 to 6 years, a
period devoted to learning all store duties, but who had no indicia of
supervisory authority and shared the same fringe benefits and working
conditions with other employees, were included in the unit. Neisner Bros., Inc., 200 NLRB 935
(1972). Compare, however, M. O'Neil Co., 175 NLRB 514 (1969). The latter case involved “management
trainees,” who were given broad experience in the employer’s operation with the
hope that they would eventually qualify for positions as supervisors,
management personnel, or administrative personnel. Gradually, those who did not
so graduate left the company. Finding that these employees had a community of
interest different from that of regular employees, the Board excluded them from
the unit. Note, however, that the exclusion was not on a supervisory ground.
See also
A person in supervisory training who exercises some supervisory authority, is excluded from the unit. Augusta Chemical Co., 124 NLRB 1021 (1959). The probationary character of supervisory authority does not affect supervisory status, and probationary supervisors are excluded from the unit. Shelburne Shirt Co., 86 NLRB 1308 (1949). Nor will the fact that an individual may in the future exercise supervisory authority on a sporadic basis support a supervisory determination. Indiana Refrigerator Lines, supra. See also Du-Tri Displays, 231 NLRB 1261 (1977).
For an excellent summary of the four-part test for determining whether management trainees (nonsupervisory) are included in the unit under community-of-interest principles, see Nationsway Transport Service, 316 NLRB 4 (1995).
See also section 20-620 (Trainees).
Non-statutory indicia can be used as background evidence
on the question of supervisory status but are not themselves dispositive of the
issue in the absence of evidence indicating the existence of one of the primary
or statutory indications of supervisory status.
The ratio of supervisors to rank-and-file employees is a background factor which may enter into Board consideration when resolving a supervisory issue, but it is not itself statutory indicia. Ken-Crest Services, 335 NLRB 777 (2001). Where the ratio is unrealistic, a practical evaluation of employees' functions in this context is normally made.
The Board pointed out, for example, in Pennsylvania Truck Lines, 199 NLRB 641 (1972), that “if strip supervisors and dispatchers were found to be nonsupervisory, there would be no more than three supervisors . . . at any of the employer's terminals, some of which have as many as 100 drivers, and there would be no supervisors at the terminals on weekends, when a dispatcher or strip supervisor is in charge.”
See also Harborside Healthcare, Inc., 330 NLRB 1334 (2000); Naples Community Hospital, 318 NLRB 272 (1995); Essbar Equipment Co., 315 NLRB 461 (1994); Sears, Roebuck & Co., 292 NLRB 753 (1989); Washington Beef Producers, 264 NLRB 1163 (1982); Ridgely Mfg. Co., 198 NLRB 860 (1972); Maryland Cup Corp., 182 NLRB 686 (1970); U. S. Gypsum Co., 178 NLRB 85 (1969); Welsh Farms Ice Cream, 161 NLRB 748 (1966); and West Virginia Pulp & Paper Co., 122 NLRB 738 (1958).
A substantial difference in terms and conditions of employment, while also not a statutory indicia, may be condensed as a background factor or secondary critira militating in favor of finding supervisory status. American Commercial Barge Line Co., 337 NLRB 1070 (2002); North Shore Weeklies, Inc., 317 NLRB 1128 (1995); Essbar Equipment Co., supra; Illini Steel Fabricators, 197 NLRB 303 (1972); Grand Union Co., 193 NLRB 525 (1971); Little Rock Hardboard Co., 140 NLRB 264 (1962). It is however, a secondary indication and is not dispositive. General Security Services Corp., 326 NLRB 312 (1998); St. Francis Medical Center-West, supra, and S.D.I. Operating Partners, L.P., 321 NLRB 111 fn. 2 (1996). Tri-City Motor Co., 284 NLRB 659 (1987). See also Waterbed World, 286 NLRB 425 (1987). Compare Brown & Root, Inc., 314 NLRB 19 (1994), and Custom Mattress Mfg., 327 NLRB 111 (1998), where the difference in pay was due to technical skills not supervisory duties. See also Ken-Crest Services, supra, difference in salary and being highest ranking person on premises did not establish supervisory status. Central Plumbing Specialties, 337 NLRB 973 (2002).
In Illini Steel Fabricators, supra, the Board considered as one of the elements the higher rate of pay received by the individual found to be a supervisor. Among the factors relied on for a supervisory finding in Grand Union Co., supra, was the fact that the employer raised the scale of salaries to accord with newly assigned “supervisory responsibilities.” And in Little Rock Hardboard Co., 140 NLRB 264 (1962), the Board took into consideration, among other factors, the higher rate of pay, as compared with the pay of the production employees, which the disputed “shift leaders” received.
The fact that an individual may attend management meetings is a secondary indicator of supervisory authority and does not in and of itself establish such authority. Dean & Deluca New York, Inc., 338 NLRB 1046 (2003).
Ostensible or apparent authority can be a basis for making the supervisory determination. Poly-America, Inc., 328 NLRB 667 (1999), and Hausner Hard Chrome of KY, Inc., 326 NLRB 426 (1998).
For example, where two “all around” men and four “floor
girls” were in dispute, it appeared that all six were held out as supervisors
to employees by the respective department foremen and the employees were
instructed to do as they were told by them. That was one circumstance noted by the Board
in making a supervisory finding. Wolverine
World Wide, 196 NLRB 410 (1972). See also SAIA Motor Freight, Inc., 334
NLRB 979 (2001), where the Board said that
“the test is whether under all the circumstances,” the employees would reasonably
believe that the employee in question was reflecting company policy and
speaking and acting for management. Accord: Facchina Construction Co.,
343 NLRB No. 98 (2004); Ready Mix, Inc., 337
NLRB 1189 (2002); Mid-South Drywall Co.,
339 NLRB 480 (2002); and D&F Industries,
339 NLRB 618 (2002).
The Board found an individual was reasonably perceived by the employees to be a supervisor where the employer permitted him to continue to function as a supervisor during a transition period between his supervisory position and a nonsupervisory position. A. O. Smith Automotive Products Co., 315 NLRB 994 (1994).
Where the employees looked on the individual in question
as a supervisor and “there is valid basis for such judgment on their part,”
this was given some weight in the resolution of the supervisory question. Bama Co., 145 NLRB 1141 (1964). However, the fact that an
individual is held out as a supervisor is not necessarily dispositive of
supervisory status. Williamette Industries, 336 NLRB 743 (2001); Pan-Oston Co., 336 NLRB 305 (2001); Blue Star Ready-Mix Concrete Corp., 305 NLRB 429 (1991). In Carlisle Engineered
Products, 330 NLRB 1359 (2000), the Board stated: “It is well established that
rank and file employees cannot be transformed into supervisors merely being invested
with that title.”
See also Thriftway Supermarket, 276 NLRB 1450 (1985); Washington Beef Producers, supra; G.T.A. Enterprises, 260 NLRB 197 (1982); Waterbed World, supra, for other ostensible authority holdings.
The Board is often confronted with the question of whether
an individual is a supervisor when only a portion of the individual's time is spent
in supervising nonunit employees. In Detroit
College of Business, 296 NLRB 318 (1989), the Board rejected what it
believed had become a misapplication of its decision in Adelphi University, 195 NLRB 639 (1972). Adelphi involved the status of the director of admissions in a unit
of faculty where the director supervised his secretary, an out-of-unit
employee. As more fully described in
In
The Board described these factors as including:
[T]he business of the employer, the duties of the individuals exercising supervisory authority and those of the bargaining unit employees, the particular supervisory functions being exercised, the degree of control being exercised over the nonunit employees and the relative amount of interest the individuals at issue have in furthering the policies of the employer as opposed to those of the bargaining unit in which they would be included.
See also Pepsi-Cola Co., 327 NLRB 1062 (1999); Union Square Management, Inc., 326 NLRB 70 (1998); Rite Aid Corp., 325 NLRB 717 (1998); and Legal Aid Society of Alameda County, 324 NLRB 796 (1997).
In the case of supervision of employees of another
employer, the Board will not find the individual to be Section 2(11)
supervisor. In order to qualify as a supervisor, one must supervise the
employees of the employer in question. Crenulated
A concomitant to the Board’s assertion of jurisdiction over colleges and universities in recent years has been the need for resolving supervisory issues in cases involving such institutions. Some of the more typical determinations in this area follow:
“Department chairmen” with authority effectively to
recommend the hire and reappointment (or nonreappointment) of all part-time
faculty members, and to allocate merit increases without the approval of the
department’s faculty, were found to be supervisors within the meaning of
Section 2(11).
In Adelphi University, supra, the Board also considered, inter alia, whether the members of a “personnel committee” and those of a “grievance committee” are supervisors within the statutory definition and concluded that, “We are not disposed to disenfranchise faculty members merely because they have some measure of quasi-collegial authority either as an entire faculty or as representatives elected by the faculty.” Accordingly, several members of these committees were held not to be supervisors within the meaning of the Act “solely by reason of such membership” and were included in the bargaining unit (p. 648). Consult the text of this decision for a thorough discussion of supervisory and nonsupervisory determinations in an educational institution. On the other hand consider the effect of the Supreme Court’s Yeshiva decision, there regarding managerial status, on the concept of collegiality as a factor to be considered. (NLRB v. Yeshiva University, 444 U.S. 672 (1980).)
A contention that the bargaining unit cannot consist of
faculty members because they are supervisors and managerial employees was
rejected in C. W. Post Center, supra,
and in Manhattan College, 195 NLRB 65
(1972).
The Board observed in the latter: “That faculty members participate, by various
means, in decisions regarding the operation of the college is no more
persuasive here than it was in the earlier cases in establishing faculty
members as members of management or as supervisors. As in those cases we find
the faculty members to be professional employees under the Act who are entitled
to vote for or against collective-bargaining representation.” See also
The relationship between a faculty member and a graduate
student is basically a teacher-student relationship which does not make the
faculty member a supervisor.
Health care jurisdiction has occasioned considerable litigation of a number of supervisory issues especially those involving charge nurses. The litigation often centered on a line drawn by the Board between decisions and actions taken as part of patient care and more general Section 2(11) actions.
In Northcrest Nursing Home, 313 NLRB 491 (1993), the Board discussed at length the issue of whether LPN charge nurses responsibly direct nurses aides. In finding the nurses not to be statutory supervisors, the Board reaffirmed its “patient care” analysis, i.e., a nurse’s direction of less-skilled employees, in the exercise of professional judgment incidental to the treatment of patients, is not authority exercised “in the interest of the employer.” Northcrest, 313 NLRB at 493–497.
Shortly thereafter however, in NLRB v. Health Care & Retirement Corp., 511 U.S. 571 (1994), the Supreme Court considered the Board’s patient care analysis for determining the supervisory status, specifically the phrase “in the interest of the employer.” In a five to four decision, the Court found the Board’s test to be inconsistent with the statutory criteria of Section 2(11). Succinctly put, the Court majority found no basis for the Board’s assertion that supervisory authority exercised in connection with patient care is somehow not in the interest of the employer. “Patient care is the business of a nursing home and it follows that attending to the needs of the nursing home patients, who are the employer's customers, is in the interest of the employer.” Health Care & Retirement, supra at 577. The Court also admonished the Board for devising a test that was industry specific. According to the Court, the Board erred in giving such statutory terms as “responsibly to direct” and “independent judgment” a different meaning in the health care industry than it does in other industries.
In early 1996, after oral argument, the Board issued two
key decisions on the supervisory status of registered nurses (RNs), charge
nurses (CNs), and licensed practical nurses (LPNs).
The Board repeated this analysis in Ten Broeck Commons, 320 NLRB 806 (1996), a LPN case where, inter
alia, the majority found that “incident reports” that contained no
recommendations for discipline and which were the subject of independent
investigation “by the Director of Nursing” did not establish that the LPNs were
supervisors. See also Illinois Veterans
Home at Anna L.P., 323 NLRB 890 (1997). Compare,
Recently the Supreme Court decided important issues of healthcare supervisory analysis on the independent judgment question. For more detail see, NLRB v. Kentucky River Community Care, Inc., 532 U.S.706 (2001), discussed at sec. 17-502.
For “effective recommendation” cases see Coventry
Health Center, 332 NLRB 52 (2000) (nurse
role in evaluation procedure not effective recommendation); Trevilla of
Golden Valley, 330 NLRB 1377 (2000) (nurse evaluations had direct linkage to merit
pay increase); Third Coast Emergency Physicians, P.A., 330 NLRB 756
(2000) (physicians did not make effective
recommendation to hire, discipline or evaluate), and Michigan Masonic Home,
332 NLRB 1409 (2000) (recommendations for discipline not
effective).
In a nonnurse health care case the Board rejected a contention that a maintenance employee was a supervisor. The Board found that his involvement in discipline was reportorial only.
In Harbor City Volunteer Ambulance Squad, 318 NLRB 764 (1995), the Board did find that that authority of assistant supervisors with respect to annual evaluations was sufficient to conclude that they were supervisors.
For discussion of related supervisory issues involving the exercise vel non of independent judgment see section 17-501.
Individuals employed by employers subject to the Railway Labor Act are excluded from the coverage of the National Labor Relations Act.
The definition of an employer subject to the Railway Labor Act is reasonably clear, and individuals employed by such employers are, of course, not covered by the National Labor Relations Act.
In interpreting this statutory exclusion, a question arose in relation to individuals employed by a labor organization which regularly acts as bargaining agent for railway workers. As the union was acting “in its capacity of an employer” with respect to its employees, the considerations appropriate to other employers under the National Labor Relations Act were applicable, and the union was found not to be “an employer subject to the Railway Labor Act.” Neither the National Mediation Board nor the National Railroad Adjustment Board had jurisdiction because “the Railway Labor Act is only applicable to carriers and employees of carriers, and does not regulate labor unions and their employees as such.” Locomotive Firemen & Enginemen, 145 NLRB 1521 (1964).
For a fuller discussion of the interplay between the National Labor Relations Act and the Railway Labor Act, see chapter on Jurisdiction, ante.
Individuals employed by employers
who do not come within the meaning of the definition of “employer” in Section
2(2) of the Act are excluded from its coverage. Similarly, individuals who
“supervise” persons who are not employees are not supervisors.