Guidelines Memo Concerning Oakwood Healthcare Inc

OFFICE OF THE GENERAL COUNSEL

MEMORANDUM GC 07-05

April 10, 2007

TO:

All Regional Directors, Officers-in-Charge,

and Resident Officers

FROM:

Ronald Meisburg, General Counsel

SUBJECT:

Guideline Memorandum Concerning Oakwood

Healthcare, Inc., 348 NLRB No. 37 (2006), and

related cases

I.

Introduction

This memorandum is intended to provide casehandling

guidance in unfair labor practice proceedings regarding the

Board's definitions, in Oakwood Healthcare, Inc. ("Oakwood")1

and related cases,2 of two indicia of supervisory status in

Section 2(11) of the Act3 -- to "assign" and "responsibly to

direct" employees -- as well as the relationship of these

critical terms with the Section 2(11) requirement that they

be exercised with "the use of independent judgment."

Detailed below are: (1) general guidance regarding the

quality of evidence necessary to meet the burden of proof to

establish Section 2(11) status; (2) a summary of the

definitions discussed in the Oakwood cases and the evidence

relevant to each; and (3) issues regarding rotating

supervisors that warrant further consideration.

1 348 NLRB No. 37 (2006).

2 Croft Metals, Inc. ("Croft"), 348 NLRB No. 38 (2006);

Golden Crest Healthcare Center ("Golden Crest"), 348 NLRB

No. 39 (2006).

3 Section 2(11) provides:

[t]he 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.

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.

2

II. Burden of Proof

The Board reiterated in the Oakwood cases that the

burden of proving supervisory status rests on the party

asserting that such status exists, and that the assertion

must be established by a preponderance of the evidence.4

That evidentiary burden, the Board made clear, is

significant and substantial. "Purely conclusory" evidence

is not sufficient to establish supervisory status; a party

must present evidence that the employee "actually

possesses" the Section 2(11) authority at issue.5 A "paper

showing" alone -- job titles, descriptions, or evaluation

forms -- is insufficient.6

Similarly, testimony merely

asserting as a general matter that individuals exercised

particular supervisory duties is insufficient; rather, to

meet the burden of proof, testimony must include specific

details or circumstances making clear that the claimed

supervisory authority exists.7 Further, asserted

supervisors will not be found to have such authority if

they were not told that they possess it and if they

exercised it only sporadically.8

4 Oakwood, 348 NLRB No. 37, slip op. at 9.

5 Golden Crest, 348 NLRB No. 39, slip op. at 5. See also

Avante at Wilson, Inc., 348 NLRB No. 71, slip op. at 2

r circumstances making clear that the claimed

supervisory authority exists.7 Further, asserted

supervisors will not be found to have such authority if

they were not told that they possess it and if they

exercised it only sporadically.8

4 Oakwood, 348 NLRB No. 37, slip op. at 9.

5 Golden Crest, 348 NLRB No. 39, slip op. at 5. See also

Avante at Wilson, Inc., 348 NLRB No. 71, slip op. at 2

(2006) (finding no supervisory status where the testimony

was "utterly lacking in specificity" and the employer

failed to show that the individuals at issue actually

possessed the authority asserted); Chevron Shipping Co.,

317 NLRB 379, 381 fn. 6 (1995) (conclusory statements

without supporting evidence do not establish supervisory

authority); Sears Roebuck & Co., 304 NLRB 193, 193 (1991)

(same).

6 Golden Crest, 348 NLRB No. 39, slip op. at 5; Avante at

Wilson, 348 NLRB No. 71, slip op. at 2-3.

7 See, e.g., Avante at Wilson, 348 NLRB No. 71, slip op. at

2-3 (testimony regarding staff nurses' authority to

discipline insufficient where it lacked specifics regarding

asserted incidents of exercise of such authority such as

time, identity of those involved and details of

circumstances; job descriptions and other documents

asserting staff nurses had a role in grievance processing

insufficient to show supervisory status where staff nurses

denied having been notified they had such authority and

employer's "generalized" testimony did not establish

specifically what staff nurses did).

8 Golden Crest, 348 NLRB No. 39, slip op. at 4 fn. 9. See

also Avante at Wilson, 348 NLRB No. 71, slip op. at 2

(although possession of supervisory authority – even

without actual exercise of authority - is sufficient to

status where staff nurses

denied having been notified they had such authority and

employer's "generalized" testimony did not establish

specifically what staff nurses did).

8 Golden Crest, 348 NLRB No. 39, slip op. at 4 fn. 9. See

also Avante at Wilson, 348 NLRB No. 71, slip op. at 2

(although possession of supervisory authority – even

without actual exercise of authority - is sufficient to

3

These explications of the type and quantum of evidence

that satisfies the burden of proof underscore the

importance of fully investigating all factors relevant in

determining supervisory status, and evaluating whether the

evidence is sufficiently specific to demonstrate that the

claimed indicia have been shown.

III.

Section 2(11) elements discussed in Oakwood

A. Assignment

The authority to "assign" refers to "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 over-all duties,

i.e., tasks, to an employee . . ."9

These are designations

of an employee's "significant overall duties," not an "ad

hoc instruction that the employee perform a discrete

task."10 Thus, the designation of an employee to a certain

department (e.g., housewares) or to a certain shift (e.g.,

night) or to certain significant overall tasks (e.g.,

restocking shelves) would qualify as "assignment," while

merely choosing the order in which the employee will

perform discrete tasks within those assignments (e.g.,

restocking toasters before coffeemakers) would not.11 A

lead person's "sporadic" rotation of tasks among employees

in a work group in order to finish projects or achieve

production goals is not "assignment" because it is not the

designation of significant overall duties.12

Similarly, in

a health care setting, "assignment" encompasses the

designation of nursing personnel to patients they will care

for over the duration of a shift, i.e., "significant

overall tasks," or assigning employees to geographic ar

in a work group in order to finish projects or achieve

production goals is not "assignment" because it is not the

designation of significant overall duties.12

Similarly, in

a health care setting, "assignment" encompasses the

designation of nursing personnel to patients they will care

for over the duration of a shift, i.e., "significant

overall tasks," or assigning employees to geographic areas

within an emergency room, i.e., assignment to a particular

place.13

Designating a nursing staff person to regularly

administer medications to a patient or group of patients

would constitute a significant overall task, but a one time

show supervisory status, "the evidence still must suffice

to show that such authority actually exists."

9 Oakwood, 348 NLRB No. 37, slip op. at 4.

10 Ibid.

11 Ibid.

12 Croft, 348 NLRB No. 38, slip op. at 6.

13 Oakwood, 348 NLRB No. 37, slip op. at 10.

4

directive to give a medication to a specific patient would

not be "assignment."14

The party seeking to establish supervisory authority

must show that the putative supervisor has the ability to

require that a certain action be taken. Supervisory

authority is not established where the putative supervisor

has the authority merely to request that the action be

taken.15 Even if an asserted supervisor purportedly has the

authority to require action, if the consequences to the

employee of refusing to take such action are de minimis,

the claimed authority is such in name only and does not

reflect a genuine authority to require the requested

action.16

Lead persons who have responsibility to see that their

work group completes projects or meets production goals,

and who sometimes switch tasks among employees to

accomplish these tasks, do not have the authority to

assign, where the leads do not prepare the posted work

schedules for employees, do not appoint employees to the

production lines, departments, shifts, or any overtime

periods, or give significant overall duties to employees,

and where they have no choice or flex

ts or meets production goals,

and who sometimes switch tasks among employees to

accomplish these tasks, do not have the authority to

assign, where the leads do not prepare the posted work

schedules for employees, do not appoint employees to the

production lines, departments, shifts, or any overtime

periods, or give significant overall duties to employees,

and where they have no choice or flexibility concerning the

personnel assigned to them.17

B.

Responsible direction

The authority "responsibly to direct" employees is not

limited to department heads. It is exercised by persons

below the department head who have rank and file employees

under them and who decide what job shall be undertaken next

or who shall do it, provided that the direction is

"responsible."18

Direction is "responsible" if the person

performing the oversight is accountable for others'

performance of the task, such that some adverse consequence

14 Ibid.

15 Golden Crest, 348 NLRB No. 39, slip op. at 3-4.

16 Id., slip op. at 3. The Board also rejected arguments

that the charge nurses were supervisors because they "OK'd"

or "initialed" changes to nursing assistants' computerized

timeclock entries or because they were the highest ranking

employee on site during the night shift and every other

weekend, citing long-standing Board precedent that these

are insufficient bases for supervisory status. Id., slip

op. at 4 fn. 10.

17 Croft, 348 NLRB No. 38, slip op. at 5-6.

18 Oakwood, 348 NLRB No. 37, slip op. at 6.

"

or "initialed" changes to nursing assistants' computerized

timeclock entries or because they were the highest ranking

employee on site during the night shift and every other

weekend, citing long-standing Board precedent that these

are insufficient bases for supervisory status. Id., slip

op. at 4 fn. 10.

17 Croft, 348 NLRB No. 38, slip op. at 5-6.

18 Oakwood, 348 NLRB No. 37, slip op. at 6.

5

may befall the one providing the oversight if the tasks

performed are not performed properly.19

That consequence

may be positive, such as a merit increase, bonus, or

promotion, or negative, such as the denial of one of these

(or some form of counseling or discipline).20 This concept

of accountability creates a distinction between those

employees whose interest in directing other employees'

tasks aligns with management, from those whose interest in

directing other employees is simply the completion of a

certain task. The former envisions, to the extent

necessary, an adversarial relationship with those the

supervisor is directing, in that the supervisor will be

carrying out the interests of management in directing

others even if they are contrary to employees' interests.21

Thus, direction includes authority to manage an

assigned team to ensure timely completion of projects by

deciding the order in which work is to be performed and

telling employees to follow that order, instructing

employees how to perform jobs properly, correcting improper

performance, and moving employees, when necessary, to do

different tasks.22

In the health care setting, "direction"

may be established by evidence that charge nurses oversee

nursing assistants' job performance and act to correct them

when they do not follow proper procedures or provide

adequate care, or that the charge nurses direct assistants

to perform certain tasks such as to clip residents' toe-

nails and fingernails, empty catheters, or change an

incontinent resident.23

For such authority to be "responsible direction,"

however, the asserted supervisors mu

ee

nursing assistants' job performance and act to correct them

when they do not follow proper procedures or provide

adequate care, or that the charge nurses direct assistants

to perform certain tasks such as to clip residents' toe-

nails and fingernails, empty catheters, or change an

incontinent resident.23

For such authority to be "responsible direction,"

however, the asserted supervisors must be held accountable

for the job performance of the employees assigned to them.

That is, the asserted supervisors must be subject to

discipline or other adverse consequence because of the

failure of their crews to meet production goals or because

of other shortcomings of their crews.24

The accountability

19 Id., slip op. at 7.

20 Golden Crest, 348 NLRB No. 39, slip op. at 5 fn. 13. The

consequence need not flow from an evaluation of the

putative supervisor's direction of others alone; the

consequence may result from accountability for the

performance of others in combination with other performance

factors.

21 Oakwood, 348 NLRB No. 37, slip op. at 7.

22 Croft, 348 NLRB No. 38, slip op. at 6.

23 Golden Crest, 348 NLRB No. 39, slip op. at 4.

24 Croft, 348 NLRB No. 38, slip op. at 6.

6

must be more than a mere paper showing of prospective

adverse consequences. For example, if the cited

accountability is that the purported supervisor's

performance is reflected in his or her evaluation, evidence

must show that the rating for direction of subordinates may

affect the putative supervisor's terms and conditions of

employment.25 The evidence must also indicate that the

purported supervisors have been informed that they will

experience material consequences to their terms and

conditions of employment as a result of their crew's

deficiencies.26 Delegation of tasks to another staff member

is not responsible direction if there is no evidence that

the purported supervisors are required to take corrective

action, or are subject to discipline or lower evaluations,

if the other staff members fail to adequately

they will

experience material consequences to their terms and

conditions of employment as a result of their crew's

deficiencies.26 Delegation of tasks to another staff member

is not responsible direction if there is no evidence that

the purported supervisors are required to take corrective

action, or are subject to discipline or lower evaluations,

if the other staff members fail to adequately perform these

tasks.27 Similarly, purported supervisors are not engaged

in responsible direction when they themselves undertake to

perform tasks for which they are responsible, such as a

charge nurse's checking the "crash cart," taking an

inventory of narcotics, or providing statistical

information to administrative staff for their shifts.28

Finally, for the prospect of adverse consequences to

establish "responsible direction," the consequences must

flow from the other employees' performance failures, not

the purported supervisors' own performance in their

direction. Thus, discipline of a charge nurse for failing

to make fair assignments merely shows that the charge

nurses are accountable for their own performance or lack

thereof. Only if the charge nurse is accountable for the

performance of others is responsible direction

established.29

C.

Independent judgment

Only if the record establishes that the asserted

supervisor satisfies the definition of assigning or

responsibly directing other employees (or one of the other

Section 2(11) indicia), does the analysis proceed to

determining whether he or she does so using "independent

judgment."30 For one or more of the supervisory indicia to

25 Golden Crest, 348 NLRB No. 39, slip op. at 5.

26 Ibid.

27 Oakwood, 348 NLRB No. 37, slip op. at 10.

28 Ibid.

29 Ibid.

30 Ibid.

It is important to note that "independent

judgment" is indicative of supervisory status only when

tion 2(11) indicia), does the analysis proceed to

determining whether he or she does so using "independent

judgment."30 For one or more of the supervisory indicia to

25 Golden Crest, 348 NLRB No. 39, slip op. at 5.

26 Ibid.

27 Oakwood, 348 NLRB No. 37, slip op. at 10.

28 Ibid.

29 Ibid.

30 Ibid.

It is important to note that "independent

judgment" is indicative of supervisory status only when

7

be exercised with "independent judgment," the authority

must be "independent," that is, "free of the control of

others," it must "involve a judgment," that is, it requires

"forming an opinion or evaluation by discerning and

comparing data," and the judgment must involve a "degree of

discretion that rises above the 'routine or clerical.'"31

The touchstone is the degree of discretion exercised by the

purported supervisor.

Actions form a spectrum between the extremes of

completely free actions and completely controlled ones; the

degree of discretion necessary to constitute "independent"

judgment lies somewhere in between those extremes.

Judgment is not independent if dictated or controlled by

detailed instructions, whether set forth in company policy

or rules, by the verbal instructions of higher authority,

or by the provisions of a collective bargaining agreement.

But the mere existence of company policies does not

eliminate independent judgment if the policies allow for

discretionary choices.32

Persons exercising authority to recommend a person for

hire do so with independent judgment, if they are called

upon to assess the applicants' experience, ability,

attitude, and character references. A charge nurse's

assignment of staff to patients involves exercise of

independent judgment if the charge nurse analyzes an

available nurse's skill set and level of proficiency and

weighs it against the condition and needs of a particular

patient.33

used in exercising one of the Section 2(11) indicia

upon to assess the applicants' experience, ability,

attitude, and character references. A charge nurse's

assignment of staff to patients involves exercise of

independent judgment if the charge nurse analyzes an

available nurse's skill set and level of proficiency and

weighs it against the condition and needs of a particular

patient.33

used in exercising one of the Section 2(11) indicia.

Exercising professional judgment (see Section 2(12)) will

not automatically result in supervisory status, absent some

exercise of supervisory authority. Thus, a charge nurse's

professional judgment that a patient requires a certain

degree of monitoring does not alone confer supervisory

status; it does so only if the charge nurse assigns an

employee to that patient or responsibly directs an employee

in carrying out the monitoring at issue while, in either

case, using independent judgment. Id., slip op. at 9.

31 Id., slip op. at 8.

32 Ibid.

33 Id., slip op. at 7-8, 13. In Oakwood, Member Kirsanow

based his finding that charge nurses assigned with

independent judgment on a "narrower range of evidence" than

that relied on by Chairman Battista and Member Schaumber --

namely, that the charge nurses matched the nurses' special

training or particular skills with the particular medical

needs of patients. See id., slip op. at 13 fn. 56. In

finding the requisite exercise of discretion to establish

8

In contrast, assignment decisions are not made with

independent judgment if a decision to staff a shift with a

certain number of nurses is determined by a fixed nurse-to-

patient ratio or assignments are made solely by seniority

as required by a collective-bargaining agreement.34

Similarly, staff assignments that involve merely the

equalization of work loads do not involve independent

judgment.35

The mere existence of company policies does not

eliminate independent judgment from decision-making,

however, if the policies allow for discretionary choices.36

Likewise, a policy that details how a charge nurse

y seniority

as required by a collective-bargaining agreement.34

Similarly, staff assignments that involve merely the

equalization of work loads do not involve independent

judgment.35

The mere existence of company policies does not

eliminate independent judgment from decision-making,

however, if the policies allow for discretionary choices.36

Likewise, a policy that details how a charge nurse should

respond in an emergency does not preclude the exercise of

independent judgment where the charge nurse has the

discretion to determine when an emergency exists or the

authority to deviate materially from that policy based on

the charge nurse's assessment of the particular

circumstances.37

independent judgment, Chairman Battista and Member

Schaumber also noted evidence that charge nurses consider

other factors such as "continuity of care," "the

temperament of other nursing personnel" (id., slip op. at

13). Other factors disclosed in the record included the

amount of time required to perform specific patient care

functions and the personalities and compatibility of staff

members (id., slip op. at 11).

Regions should submit to Advice cases in the health

care industry that present the issue of whether a charge

nurse's consideration of factors other than the training or

skills of the health care provider and the acuity of the

patient demonstrates the use of independent judgment.

34 Id., slip op. at 8.

35 Id., slip op. at 13 (emergency room charge nurses did not

exercise independent judgment in assigning emergency room

staff to a geographically-based location on a rotational

basis, where charge nurses did not take into account

patient acuity or nursing skill in making assignments, and

the staff nurses subsequently rotated assignments during

shift without input from the charge nurse).

36 Id., slip op. at 8

at 13 (emergency room charge nurses did not

exercise independent judgment in assigning emergency room

staff to a geographically-based location on a rotational

basis, where charge nurses did not take into account

patient acuity or nursing skill in making assignments, and

the staff nurses subsequently rotated assignments during

shift without input from the charge nurse).

36 Id., slip op. at 8. Thus, in Oakwood, despite a written

employer assignment policy, the 12 permanent charge nurses

were found to be supervisors based on their exercise of a

substantial degree of discretion in making assignments.

Id., slip op. at 12-13.

37 Id., slip op. at 9.

9

Conversely, if there is only one obvious and self-

evident choice (for example, assigning the one available

nurse fluent in American Sign Language (ASL) to a patient

dependent upon ASL for communicating), then the assignment

is routine or clerical in nature and does not implicate

independent judgment, even if it is made free of the

control of others and involves forming an opinion or

evaluation by discerning and comparing data.38 Similarly,

there is no exercise of independent judgment in responsible

direction where lead persons follow a pre-established

delivery schedule and generally employ a standard loading

pattern that dictates the placement of different products

in trucks. Their instructions to crew members consisting

of matters such as "where to put it and how to put it," and

directions to retrieve loading bands or missing items

slated for delivery are insufficient to show the exercise

of independent judgment, particularly where production and

maintenance employees generally perform the same job or

repetitive tasks on a regular basis and, once trained in

their positions, require minimal guidance. Such a limited

degree of discretion does not rise above the routine or

clerical.

IV

ieve loading bands or missing items

slated for delivery are insufficient to show the exercise

of independent judgment, particularly where production and

maintenance employees generally perform the same job or

repetitive tasks on a regular basis and, once trained in

their positions, require minimal guidance. Such a limited

degree of discretion does not rise above the routine or

clerical.

IV.

Part-time and rotating supervisors

Finally, individuals who work part time in supervisory

positions and the remainder as unit employees will be found

to be Section 2(11) supervisors if they spend a "regular

and substantial" portion of their work time performing

supervisory functions. By "regular," the Board means

according to a pattern or schedule, as opposed to sporadic

substitution. The Board has not adopted a strict numerical

definition of "substantiality," but individuals have been

found to be supervisors where they have served in a

supervisory role for as little as 10-15% of their total

work time.39

The first issue to determine in evaluating the status

of putative part-time supervisors is whether the

individuals act as supervisors when they hold those

positions. One cannot assume that rotating supervisors

38 Ibid. See also Golden Crest, 348 NLRB No. 39, slip op.

at 3-4, 4 fn. 9 (no exercise of independent judgment in

assignments where charge nurses can telephonically

"mandate" assistants to report to work when the facility is

understaffed, but "mandate" has to be authorized by an

admitted supervisor -- indicating that the "mandate" is

merely a ministerial function, and that the charge nurses

do not exercise true independent judgment).

39 Oakwood, 348 NLRB No. 37, slip op. at 9.

of independent judgment in

assignments where charge nurses can telephonically

"mandate" assistants to report to work when the facility is

understaffed, but "mandate" has to be authorized by an

admitted supervisor -- indicating that the "mandate" is

merely a ministerial function, and that the charge nurses

do not exercise true independent judgment).

39 Oakwood, 348 NLRB No. 37, slip op. at 9.

10

have the same authority as a permanent supervisor, simply

because they hold the same job title or position

description. As the Board noted in Oakwood, it "has long

held that job titles and descriptions prepared by employers

are not controlling; rather the Board looks to the

authority actually possessed and the work actually

performed by the alleged supervisor."40 The very part-time

status of the individual may alter the nature of the job

such that, although a permanent incumbent "assigns" or

"responsibly directs" employees using "independent

judgment," the part-time individual does not.

Inherent in the "part-time supervisor" situation is

the possibility that the employer has not given supervisory

authority to the part-time supervisor, but rather retained

that authority in the "part-time supervisor's" superiors.

Accordingly, when faced with a case involving part-time

supervisors, Regions should investigate whether the

authority of the part-time supervisor may be more

circumscribed than that of a permanent supervisor. For

example, a part-time supervisor may be less likely to be

held accountable for the work of others. Or, because the

job is rotated among unit employees, it is more likely that

assignment or direction is done by group consensus

part-time

supervisors, Regions should investigate whether the

authority of the part-time supervisor may be more

circumscribed than that of a permanent supervisor. For

example, a part-time supervisor may be less likely to be

held accountable for the work of others. Or, because the

job is rotated among unit employees, it is more likely that

assignment or direction is done by group consensus.

Further, even if there is responsible direction of

employees, it may be more likely that the direction is

constrained by established rules and procedures, or there

is a requirement to call upon higher authority rather than

exercising independent judgment.41 Particularly where all

employees in a classification rotate into a position in

which they purportedly supervise each other, the

investigation must probe whether these individuals

possesses true supervisory authority.

40 Id., slip op. at 5, fn. 24.

41 See, e.g., NLRB v. St. Francis Hosp. of Lynwood, 601 F.2d

404, 421 (9th Cir. 1979) (assistant head nurses were not

supervisors where they filled in for head nurses when they

were absent from shifts; insufficient evidence that the

hospital had a "consistent and established" policy

empowering the individuals to act as supervisors); Meharry

Med. College, 219 NLRB 488, 490 (1975) (registered nurses

who rotated on a daily or weekly basis into a charge nurse

position were held not to be statutory supervisors in part

because clinical supervisors continued to have 24-hour

responsibility for the nursing service divisions; charge

nurse could not grant time off or excuse employees for

reasons other than immediate illness without checking with

the clinical supervisor and only reported disciplinary

problems).

daily or weekly basis into a charge nurse

position were held not to be statutory supervisors in part

because clinical supervisors continued to have 24-hour

responsibility for the nursing service divisions; charge

nurse could not grant time off or excuse employees for

reasons other than immediate illness without checking with

the clinical supervisor and only reported disciplinary

problems).

11

Although the Board found no reason in Oakwood to

depart from established precedent regarding the "regular

and substantial portion of work time" test for determining

supervisory status of part-time "supervisors," the outcome

in any particular circumstance under this test is not

certain. For example, the Board found none of the rotating

charge nurses at issue in Oakwood were Section 2(11)

supervisors, even though some rotating charge nurses

arguably spent a substantial amount of their work time as

charge nurses. It found the evidence was insufficient to

show the rotating charge nurses were assigned with

"regularity."42

In Oakwood the Board did not specifically focus on the

crucial issue of how the part-time nature of the rotating

supervisor's duties affects their authority.

It may be

that this factor can and should be expressly incorporated

into the test, because a rotating supervisor assuming that

role with more limited "regularity" and "substantiality"

may indicate that the individual has more limited

authority. At bottom, the question is whether the

individual should be seen as aligned with management or

with rank-and-file employees. In excluding supervisors

from the protection of the Act, "Congress was gravely

concerned lest rank-and-file employees be interfered with

or dominated by their supervisors, and lest employers lose

the loyalty of, and control over, their supervisors."43

Both management and unions must have agents and

representatives whom they can trust

aligned with management or

with rank-and-file employees. In excluding supervisors

from the protection of the Act, "Congress was gravely

concerned lest rank-and-file employees be interfered with

or dominated by their supervisors, and lest employers lose

the loyalty of, and control over, their supervisors."43

Both management and unions must have agents and

representatives whom they can trust. Finding part-time

supervisors who truly serve in that capacity to be 2(11)

supervisors solves the conflict of interest problem:

management can demand their loyalty, and employees and

labor unions do not have to fear supervisory involvement in

their organizations. But individuals who may work

substantial periods as employees are also thereby excluded

from the protection of the Act. Such a result is legally

justifiable only where the record evidence establishes that

the part-time supervisor is vested with sufficient Section

2(11) authority. "To put the issue in homely terms, do the

other employees feel, assuming the alleged supervisor is

one who reasonably respects his duties, 'Here comes that

so-and-so, get to work,' or is he, basically, but one of

the gang who merely gives routine instructions?"44

42 Oakwood, 348 NLRB No. 37, slip op. at 14, 28.

43 Great W. Sugar Co., 137 NLRB 551, 555-556 (1962) (citing

H.R. Rep. No. 245 on H.R. 3020, 409-411, 1 Leg. Hist. 304-

308; S. Rep. No. 105 on S. 1126, 1 Leg. Hist. 409-411; 2

Leg. Hist. 1008-1009 (Sen. Taft)).

44 Stop & Shop Cos. v. NLRB, 548 F.2d 17, 19 (1st Cir.

1977).

12

Accordingly, Regions should submit all unfair labor

practice cases involving the supervisory status of rotating

supervisors to the Division of Advice in order to determine

whether any alternate or additional legal standard should

be put forward for the Board's consideration.

V.

Conclusion

Any questions regarding the implementation of this

memorandum should be directed to the Division of Advice.

/s/

R. M.

cc: NLRBU

Release to the Public

MEMORANDUM GC 07-05