Business groups focus on statute language in arguing NLRB's 'Supervisory' definition.

The National Labor Relations Board (NLRB) should adopt a straightforward interpretation of the federal labor law's definition of "supervisor" based on the plain language and intent of the statute, according to briefs recently filed by business groups.

The NLRB in July invited interested

parties to express their views in connection with the appeals of its regional directors' rulings in three union election cases involving supervisory status. Generally speaking, employers favor a more expansive definition of the supervisor exclusion, while organized labor supports a more restrictive interpretation that brings more individuals into the realm of collective bargaining.

Congress adopted the National Labor Relations Act (NLRA) section 2(11) definition of supervisor "to ensure to employers the complete loyalty of those employees who direct and 'supervise' an employer's business," argued the Society for Human Resource Management, the U.S. Chamber of Commerce and the Ohio Hospital Association in their joint brief. The NLRB's past interpretations "extended coverage of the [NLRA] beyond the limits defined by Congress," the three groups contend.

The American Nurses Association and United American Nurses Association, AFL-CIO, however, filed a brief arguing that the definition of supervisor "was only intended to apply to those employees who have 'genuine management prerogatives.'"

Application of the supervisor definition has been particularly troublesome with much of the recent "supervisor" litigation, including two of the cases currently before the board involving the status of charge nurses.

How Much Independence?

The pending cases raise an assortment of issues the NLRB is grappling with in light of the Supreme Court's 5-to-4 ruling in NLRB v. Kentucky River Community Care Inc. In that 2001 decision, the high court said the NLRB had applied the wrong standard for judging whether certain charge nurses exercised "independent judgment" in performing certain job duties listed in the statute, thus qualifying them for supervisor status.

The majority ruling said there was no statutory basis for the board to exclude "professional or technical judgment"--such as that exercised by the charge nurses in directing less skilled employees--from the definition of "independent judgment."

However, the court said, the term "independent judgment" is ambiguous with respect to the degree of discretion required for supervisor status and left it up to the NLRB to decide what qualifies.

In the two pending health care cases, the agency's regional director concluded that the charge nurses did not exercise independent judgment because their actions were constrained by the employers' policies and procedures.

SHRM, the Chamber and the Ohio Hospital Association argue, however, that "an employer's standing orders, policies, and procedures reduce judgment to a level below independent thought only where such directions and policies preclude the exercise of autonomous decision making."

The HR Policy Association, which represents senior HR officials in more than 200 large companies, said, "a reasonable interpretation of independent judgment must take into account management's legitimate interest in vesting its supervisors with the authority to make business decisions, enforce workplace rules, and direct the workforce without fear that those same individuals will abandon their responsibilities to seek protections to which they are not, and never were intended to be, entitled."

The nurses' groups say that hospital policies and procedures, nurses' code of ethics, standards of practice and state nurse practice acts all strictly circumscribe registered nurses' decision making and practice.

Professional Tension

The board also asked the parties to address possible tension between NLRA section 2(12), which grants "professional employees" the act's protections, and section 2(11), which excludes supervisors from coverage.

SHRM and the others agreed that "the alleged conflict between the two sections has been greatly overstated. Furthermore, to the extent that any such conflict exists, it does not and cannot justify interpretations of section 2(11) that distort the plain and ordinary language of that section."

Supervisory status should not be denied just because an individual exercises supervisory powers only on a part-time or rotating status, or also performs bargaining unit work, said the HR Policy Association.

What's more, the NLRA does not limit the number of supervisors compared to other workers in a workplace. "As long as any employee possesses at least one of the section 2(11) powers and uses independent judgment in the exercise of that authority, he or she ought to be considered a 'statutory supervisor,'" the association stated.

MARGARET M. CLARK, J.D., SPHR