Employment Alerts

Employment Alerts

NLRB CLARIFIES RULES FOR FINDING SUPERVISORY STATUS UNDER THE LABOR ACT

The NLRB significantly increases the number of employees under the Labor Act who will be deemed “supervisors,” by defining a “supervisor” as one who “assigns” and is given significant overall duties, is “responsible” or accountable for individual decisions and uses “independent judgment.”

The National Labor Relations Board recently set forth guidelines for determining whether an individual is a supervisor under the National Labor Relations Act.

In Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006), the Board held that twelve RNs assigned as “permanent charge” nurses by their employer, exercised supervisory authority in assigning employees within the meaning of Section 2(11) of the Act, and therefore, should not be included in the bargaining unit. In 2001, the Supreme Court criticized the Board’s interpretation of the term “independent judgment” when it reviewed NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). The Board used Oakwood Healthcare, Inc. as an opportunity to revisit and clarify its interpretation of the term “independent judgment” along with the terms “assign” and “responsibly to direct,” as set forth in Section 2(11). The Board also issued two other decisions on the same day applying the guidelines from Oakwood.

Under the National Labor Relations Act “supervisors” are excluded from most of the Act’s protections. A “supervisor” is defined through different functions, and the Board focused its analysis on three terms in particular: Assign, responsibly to direct, and the supervisor’s use of independent judgment when exercising.

Assign

The Board defined the term “assign” as the act of “designating an employee to a place (such as a location, department, or wing), appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties, i.e. tasks, to an employee.” Additionally, the Board determined that an employee who gives only, “ad hoc instruction that an employee may perform a discrete task” will not typically fall within the Act’s definition of a supervisor.

Responsibly to Direct

The Board found that “responsible” required a finding of accountability to the point where the putative supervisor had the authority to direct work and take corrective action, in addition to any adverse consequences he/she may face in the direction of other employees. The Board provided an example of “responsibly to direct,” “If a person [who is both responsible and using independent judgment] 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.”

Independent Judgment

The Board defined “independent judgment” to be judgment exercised without the control of another authority. The Board went on to note that the degree of discretion exercised must rise above the “routine or clerical” in order to constitute “independent judgment” under the Act. Under the Act, independent judgment exercised using professional or technical expertise will suffice.

The Decision

The Board, in finding that the twelve permanent charge nurses were supervisors under the Act, determined that as a regular part of their duties as charge nurses, they assigned nursing personnel to the specific patients for whom they would care during their shift. According to the Board, such assignments consisted of giving “significant overall duties” to an employee and met the statutory definition of “assign” under the Act. The Board also found that the Employer met its burden, showing that its charge nurses exercised independent judgment in making such assignments. The Board further stated that employees, who work supervisory shifts only on a rotating basis, may not qualify as supervisors under the Act. The Board noted that the supervisory status of such employees would depend on the frequency and consistency of the supervisory shifts.

Tips for Employers

The Board’s decision in Oakwood has many implications for employers. It may now be easier to establish the supervisory status of some employees. Supervisory employees do not enjoy the protections of the Act and can not be included in a bargaining unit with rank and file employees. This will likely lead to more threshold challenges over unit composition and post election objections and voter challenges. However, the high level of scrutiny used in determining the outcome of these cases will lead to a very detailed, fact specific examination of each situation. The party urging supervisory status will have the burden of proof on the issue. Therefore, employers who wish to exclude certain employees from the unit on the grounds he/she is a supervisor must be prepared to produce evidence that the employees meet the criteria under Section 2(11) as interpreted by the Board. Nonunion employers should carefully review and clarify particular job descriptions, responsibilities, and any uncertain classifications or terms about whether certain employees exercise supervisory authority. This is important in developing and implementing union avoidance strategies. Unionized employers should also reevaluate whether certain employees are or are not in supervisory positions under the new terms laid out by the Board.

Practice Areas

Supreme Court Rules that "whistleblower" statements by Public Employees are afforded no Constitutional protection when made pursuant to job-related duties.

Facts of the Case

In Garcetti v. Ceballos, 126 S. Ct. 1645 (2006), the United States Supreme Court addressed the issue of whether a public employee may invoke First Amendment protection from discipline based on speech made pursuant to the employee's job-related duties. In Garcetti, the employee ("Ceballos") worked as a calendar deputy for the Los Angeles County District Attorney's Office ("D.A."). In February 2000, a defense attorney contacted Ceballos after becoming concerned with potential inaccuracies used to obtain a search warrant for his client. The attorney stated that he intended to challenge the warrant and also asked Ceballos to review materials for the case - a task that was not unusual for a calendar deputy to undertake.

After conducting an on-site investigation and speaking with the warrant affiant, Ceballos became concerned that the affidavit contained several inaccuracies. Ceballos prepared a memo for his supervisors which addressed his concerns and recommended that the case be dismissed. A heated meeting was later held that included Ceballos' supervisors, the warrant affiant and members of the sheriff's department. Despite the concerns illustrated by Ceballos' memo the prosecution decided to proceed with the case, pending the outcome of the defense's challenge. Ceballos was called by the defense in the hearing to explain and clarify his concerns but the trial court rejected the challenge.

Ceballos claimed that after the hearing he was the victim of several retaliatory employment actions. These actions included reassignment to another position, transfer to another courthouse and the denial of a promotion. After unsuccessfully filing a grievance, Ceballos filed a lawsuit in federal court alleging that retaliation by the D.A. in response to his earlier memo violated his First Amendment rights.

The Court's Opinion

The Court held that an employee who makes statements pursuant to their official duties on behalf of a public employer is not speaking as a citizen for First Amendment purposes and may not invoke Constitutional protection in response to workplace discipline. The Court noted that the controlling factor in this case was that Ceballos' memo was written "pursuant to his duties." In this case, neither party disputed the fact that Ceballos' prepared the memo pursuant to his duties as a calendar deputy. The Court explained that drafting a disposition memo in this situation is exactly the type of task that Ceballos is employed to perform. Ceballos' First Amendment rights were not implicated because he did not act as a private citizen when he conducted the activities associated with his profession - he acted as a public employee. His duties included speaking and writing as a representative of the D.A.'s office and his employer was entitled to evaluate this type of work.

The Court was careful to limit and explain this ruling, with an eye towards balancing the rights of employees as citizens and the important function of public employers such as government agencies. The Court made clear that an employee will still have First Amendment protection when speaking in a capacity that is clearly that of an ordinary "citizen" and not a matter concerning public employment. However, the employer retains an important interest in being able to operate in an efficient manner by restricting speech that is tied to professional responsibilities and does not restrict any individual liberties of the employee. The Court noted that a citizen, when working in an area such as government service, must accept some limitations on their freedom to ensure that the agency will run in a manner to best serve the public interest. Nonetheless, the Court also recognized that a public employee is still a citizen and the employment relationship cannot be allowed to restrict rights which are outside of the employment context.

Implications for Public Employers

A public employer must ensure that if an employee is disciplined in relation to speech, that the speech at issue was related to the employee's job duties. Therefore, a public employer must make a careful distinction between speech that the employee is making as a citizen and that which relates directly to their professional responsibilities. The Court pointed to the important role an "informed, vibrant dialogue" serves in a democratic society and how public employees, such as school teachers or government attorneys, have traditionally had much to offer in this capacity. A public employee is free to participate in the same public forums as any other citizen- a town hall meeting, a letter-to-the-editor or a debate around the water cooler. However, this case also made clear that a public employer has an interest in operating efficiently. Therefore, a public employer does not implicate the First Amendment's protections by disciplining an employee that speaks in the capacity of his or her job related duties.

This case made several additional points that should also be noted. First, the Court noted that an employee's written job description usually bears little resemblance to their actual professional duties on a daily basis. Therefore, the fact that a particular task is included in a job description is neither "necessary or sufficient" to show that it was part of an employee's duties. This language is intended to discourage a public employer from creating an overly-broad job description for the purpose of restricting an employee's rights. This is important to remember in situations where the context of some type of speech is legitimately disputed. Second, this case made clear that the fact the employee's speech occurred in the office, rather than in a public forum, is not dispositive. Third, it is important to remember that this decision is in the context of public employers - schools, government offices and public agencies are the types of employers that are implicated by this holding, not private sector employees. State whistleblower laws that cover public and private sector employers are not impacted by this decision.

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