How can you determine whether an individual is a supervisor under the NLRA?

Not all persons labelled as supervisors are actually supervisors under the National Labor Relations Act. Supervisory status under the NLRA is determined by an individual's actual duties, not by the individual's title or job classification. In a series of decisions known as the Kentucky River Trilogy, issued by the NLRA in September 2006, the National Labor Relations Board set forth guidelines for determining whether an individual is a supervisor under the Act.

NLRA definition. Section 2(11) of the NLRA defines supervisor as any individual having the 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 merely routine or clerical nature but requires the use of independent judgment.

As explained by the Board, individuals are statutory supervisors if:

1. they have the authority to engage in any one of the 12 supervisory functions (e.g., assign, and responsibly to direct) listed in Section 2(11) of the Act;

2. their exercise of this authority is not of a merely routine or clerical nature, but requires the use of independent judgment;

3. their authority is held in the interest of the employer.

Responsible direction.Responsible direction involves accountability according to the Board. The employer must delegate to the supervisor the authority to direct the work and the authority to take corrective action, if necessary. The supervisor must be accountable for the performance of the task such that the prospect of adverse consequences exists for the supervisor arising from the supervisor's direction of other employees.

Assignment of other employees. The Board defined assign as the act of designating an employee to a place (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee. Further, to assign for purposes of the Act, refers to the … designation of significant overall duties to an employee, not to the … ad hoc instruction that the employee perform a discrete task.

Independent judgment. According to the Board, to be independent, the judgment exercised must not be effectively controlled by another authority. Thus, where a judgment is dictated or controlled by detailed instructions or regulations, the judgment would not be sufficiently independent under the Act. Moreover, the degree of discretion exercised must rise above the routine or clerical in order to be independent judgment under the Act.