Ken Dolin published in National Law Journal

Ken Dolin’s article, “Oakwood Healthcare,” on the recent NLRB ruling that set new guidelines on union status of supervisors was published in the October 30 issue of the National Law Journal. He explains the definition of “supervisor” as holding the authority to engage in any one of 12 supervisory functions under the NLRB’s section 2(11), and requiring the use of independent judgment. Formerly, the burden to prove supervisory authority was on the party asserting it. The new set of cases, however, offer guidance to construe supervisory status. The NLRB has been accused of reaching too far trying not to construe supervisory status too broadly because the employee who is deemed a supervisor is denied rights which the Act is intended to protect. As a result, the board, in Oakwood Healthcare, re-examined and clarified its interpretation of the term "independent judgment.”

Ken notes: “Oakwood is perhaps the Bush board's most significant decision because supervisory status is critical in many labor relations contexts. This decision appears to have been carefully drafted to address concerns frequently expressed by the Supreme Court and many circuits, and it eschews the results-oriented approach favored by the dissent and often criticized by the courts. While the employer actually lost two of the three cases decided by the board under its new standard, the clarity of the opinion should help practitioners on both sides of the issue better assess the viability of their position, as well as better advocate their positions on the issue of supervisory status. Practitioners seeking to prove supervisory status must still be prepared to establish "independent judgment," now fully defined, and link the putative supervisor's exercise of independent judgment to any of the enumerated functions listed in § 2(11); "responsible direction," by showing that the employer holds the putative supervisor accountable for the performance of the work of the employees he or she directs; and "assign" responsibilities, by showing the designation of significant overall duties, work location and work time, and not by merely presenting ad hoc instructions that employees perform discrete tasks.”