A Supervisor Must Act Like a Supervisor: “Paper Power” is Not Sufficient

By Nelson Cary and Micah Dawson

The NLRB has made clear that simply bestowing a title describing an employee as a “supervisor” does not automatically mean that the employee is a supervisor under the NLRA. Instead, the NLRB requires employers to provide specific evidence that employees whom an employer maintains are supervisors truly act like supervisors before bestowing supervisory status on the employee.

In Frenchtown Acquisition Company, Inc. v. NLRB(pdf), a federal court of appeals upheld the NLRB’s determination that charge nurses in a long-term care facility were not responsible for the actions of other employees and could not be considered statutory “supervisors” under the NLRA. The court undertook a fact intensive analysis into what authority charge nurses wielded over nurse aides in respect to discipline, hiring, assigning, transferring, and directing.

The Company argued that the charge nurses’ job descriptions demonstrated their ability to assign, responsibly direct, discipline, hire and transfer other employees. Upon review of the Company’s arguments, however, the court found that such descriptions were only “paper power.” The evidence did not demonstrate that the charge nurses had any actual responsibility for other employees.

In reviewing the charge nurses’ actual duties, the court was not persuaded by the charge nurse’s ability to send aides home for egregious policy violations. Sending an employee home in such a situation does not require independent judgment, a necessary prerequisite of supervisory status. Additionally, charge nurses’ ability to give “one-on-one in-services” to correct performance and educate aides on their expected performance was not “discipline” because no evidence demonstrated that such actions lead to progressive discipline.

Furthermore, the employer provided no evidence to demonstrate that charge nurse’s interviewing and recommending potential aides played a significant role in the final decision to hire. There were only a handful of actual interviews, charge nurse incumbents minimized their rule in the process, and the manager’s testimony was vague about how the charge nurses were involved.

Similarly, the charge nurse’s ability to recommend transfers of aides was unhelpful where the Company provided no record that such recommendations were relied upon by directors. The claimed authority to assign aides was equally unconvincing because such assignments came via a cooperative discussion between the charge nurses and the aides themselves. Lastly, the charge nurses did not engage in responsible direction of the aides because the charge nurses were not accountable for the aides performance.

In sum, the recent decision demonstrates that the courts will support the NLRB’s general approach to the determination of supervisor status. It is the actual duties, not job title or position description, that matters. As labor professionals assess their workforce in an effort to determine whom the employer’s supervisors might be, they should keep in mind that the burden of proof rests on the employer to demonstrate the authority the employee actually exercises.