The Definition of “Supervisor” Under the
National Labor Relations Act
Gerald Mayer
Analyst in Labor Policy
Jon O. Shimabukuro
Legislative Attorney
July 5, 2012
Congressional Research Service
7-5700
www.crs.gov
RL34350
CRS Report for Congress
Pr
epared for Members and Committees of Congress
The Definition of “Supervisor” Under the National Labor Relations Act
Summary
The National Labor Relations Act (NLRA) establishes certain protections for private sector
employees who want to form or join a labor union. These protections do not extend to
supervisors. Historically, Congress has debated where to draw the line between employees who
have different levels of management responsibility. It is generally agreed that employees who
have significant supervisory duties, such as hiring and firing, are supervisors. However,
disagreement occurs with respect to employees who have minor supervisory duties.
In 2001, the U.S. Supreme Court ruled that the test administered by the National Labor Relations
Board (“NLRB” or the “Board”) to determine whether an employee is a supervisor was
inconsistent with the NLRA. In response to NLRB v. Kentucky River Community Care, Inc., the
Board issued a September 2006 decision in Oakwood Healthcare, Inc. in which it established new
definitions for three key terms that are used to identify supervisors for purposes of the NLRA: to
“assign” and “responsibly to direct” employees and to exercise “independent judgment.”
Applying the new definitions, the NLRB concluded that 12 permanent charge nurses employed
by Oakwood Healthcare were supervisors. The Board found that the nurses exercised independent
judgment in assigning employees to patients and assigning overall tasks to other employees.
However, the Board found that none of the charge nurses at Oakwood Healthcare responsibly
directed other employees.
In the 112th Congress, Senator Richard Blumenthal introduced the Re-Empowerment of Skilled
and Professional Employees and Construction Tradesworkers (RESPECT) Act (S. 2168). The
legislation was also introduced in the 110th Congress by Representative Robert Andrews and
Senator Chris Dodd (H.R. 1644/S. 969).
The RESPECT Act would narrow the definition of the term “supervisor” in the NLRA. The
legislation would eliminate “assign” and “responsibly to direct” from the current definition of
supervisor in the NLRA. In addition, the act would add a limiting phrase to the definition of
supervisor. Under the act, employees would be classified as supervisors if they are engaged in
supervisory activities more than 50% of the time. Currently, an employee may be classified as a
supervisor if the employee acts as a supervisor for at least 10%-15% of the employee’s worktime.
This change would reduce the number of employees who are classified as supervisors and,
therefore, increase the number of employees protected by the NLRA
The RESPECT Act, if it were enacted, may have a significant impact on foremen. In 1947, the
Supreme Court upheld the position that the Board followed at the time that supervisors were
included in the definition of employee. In response, Congress amended the NLRA to exclude
supervisors from the definition of employee. The new definition was included in the Labor
Management Relations Act of 1947 (P.L. 80-101). Because the RESPECT Act would eliminate
“responsibly to direct” as a supervisory function, foremen and employees with similar duties may
no longer be classified as supervisors. They could, therefore, receive the same protections as
other employees under the NLRA.
Congressional Research Service
The Definition of “Supervisor” Under the National Labor Relations Act
Contents
The Definition of Employee Under the NLRA................................................................................ 1
The Kentucky River Case and Oakwood Healthcare, Inc. .............................................................. 2
Dissent in Oakwood Healthcare, Inc. ........................................................................................ 5
The RESPECT Act........................................................................................................................... 6
Potential Impact of the RESPECT Act ............................................................................................ 7
Foremen..................................................................................................................................... 7
Estimating the Impact of Oakwood Healthcare, Inc. and the RESPECT Act.................................. 8
Contacts
Author Contact Information............................................................................................................. 9
Congressional Research Service
The Definition of “Supervisor” Under the National Labor Relations Act
he National Labor Relations Act (NLRA) establishes certain protections for private sector
employees who want to form or join a labor union. These protections do not extend to
T supervisors. Historically, Congress has debated where to draw the line between employees
who have different levels of management responsibility. It is generally agreed that employees
who have significant supervisory duties, such as hiring and firing, are supervisors. However,
disagreement occurs with respect to employees who have minor supervisory duties.
In 2001, the U.S. Supreme Court ruled that the test administered by the National Labor Relations
Board (hereinafter referred to as the “NLRB” or the “Board”) to determine whether an employee
is a supervisor was inconsistent with the NLRA.1 In response to NLRB v. Kentucky River
Community Care, Inc., the Board issued a decision in September 2006 in Oakwood Healthcare,
Inc. in which it established new definitions for key terms that are used to identify supervisors
under the NLRA.
In the 112th Congress, Senator Richard Blumenthal introduced the Re-Empowerment of Skilled
and Professional Employees and Construction Tradesworkers (RESPECT) Act (S. 2168). The
legislation would narrow the definition of the term “supervisor” in the NLRA. The RESPECT Act
was introduced in the 110th Congress by Representative Robert Andrews and Senator Chris Dodd
(H.R. 1644/S. 969).
This report examines the potential impact of the RESPECT Act in terms of the NLRB’s decision
in Oakwood Healthcare, Inc. The report begins with the definitions of “employee” and
“supervisor” under the NLRA. Next, it examines the decision in Oakwood Healthcare, Inc. The
report then summarizes the RESPECT Act and examines its potential impact on the number of
employees protected by the NLRA.
The Definition of Employee Under the NLRA
Section 7 of the NLRA identifies the collective bargaining rights of most employees in the private
sector. Section 7 provides, in relevant part:
Employees shall have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing ... and
shall also have the right to refrain from any or all of such activities.2
Section 2(3) of the act states that an employee “shall include any employee ... but shall not
include any individual ... employed as a supervisor.”3 An employee’s job title does not determine
whether the employee is a supervisor.4 Rather, the term “supervisor” is defined to include any
individual with the authority to perform any one of 12 specified functions, if the exercise of such
authority requires the use of independent judgment and is not merely routine or clerical.
1 NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001).
2 29 U.S.C. §157.
3 29 U.S.C. §152(3).
4 For example, see Frenchtown Acquisition Co. v. NLRB, 6th Circuit, Nos. 11-1418/1499, June 20, 2012, p. 6.
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According to Section 2(11) of the NLRA:
The 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.5
Because the 12 functions and the term “independent judgment” are not further defined, the NLRB
and Supreme Court have sought to provide meaning to this language.
The Kentucky River Case and Oakwood
Healthcare, Inc.
In NLRB v. Kentucky River Community Care, Inc., the U.S. Supreme Court considered whether
certain nurses should be classified as supervisors for purposes of the NLRA when their judgment
was based on professional or technical training or experience. Kentucky River Community Care,
the operator of a care facility for individuals with mental retardation and illness, sought to
exclude six registered nurses from a bargaining unit on the grounds that they were supervisors.
The NLRB concluded that the nurses were not supervisors because they failed to exercise
sufficient independent judgment. According to the Board, the nurses used “ordinary professional
or technical judgment” in directing less-skilled employees to deliver services in accordance with
employer-specified standards.6 The U.S. Court of Appeals for the Sixth Circuit rejected the
Board’s position, and the Supreme Court affirmed the Sixth Circuit’s decision.
The Kentucky River Court understood Section 2(11) of the NLRA to set forth a three-part test for
determining supervisory status. Employees will be considered supervisors if (1) they hold the
authority to engage in any one of the 12 supervisory functions identified in Section 2(11); (2)
their exercise of authority is not of a “merely routine or clerical nature, but requires the use of
independent judgment,” and (3) their authority is held in the interest of the employer.7 At issue in
Kentucky River was the second part of the test. Although the Court recognized the NLRB’s
discretion to clarify the meaning of the term “independent judgment,” it maintained that it was
inappropriate for the Board to characterize judgment that reflects “ordinary professional or
technical judgment” as failing to be independent judgment.
The Court said that the NLRB’s reference to “ordinary professional or technical judgment”
established a “startling categorical exclusion” that was not suggested by the statutory text of the
NLRA.8 The Court observed:
What supervisory judgment worth exercising, one must wonder, does not rest on
‘professional or technical skill or experience?’ If the Board applied this aspect of its test to
5 29 U.S.C. §152(11).
6 532 U.S. at 713.
7 Id (quoting 29 U.S.C. §152(11)).
8 532 U.S. at 714.
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every exercise of a supervisory function, it would virtually eliminate ‘supervisors’ from
the Act.9
Moreover, the Court indicated that it was unaware of any NLRB decision that concluded that a
supervisor’s judgment ceased to be independent judgment because it depended on the
supervisor’s professional or technical training or experience.10 The Court maintained that when an
employee exercises one of the functions identified in Section 2(11) with judgment that possesses
a sufficient degree of independence, the NLRB “invariably finds supervisory status.”11
Four justices dissented from the majority’s position on independent judgment.12 The dissent
maintained that the NLRB’s interpretation of independent judgment was fully rational and
consistent with the NLRA. The dissent noted: “The term ‘independent judgment’ is indisputably
ambiguous, and it is settled law that the NLRB’s interpretation of ambiguous language in the
[NLRA] is entitled to deference.”13
In September 2006, the NLRB revisited the issue of supervisory status in Oakwood Healthcare,
Inc.14 Oakwood Healthcare employed approximately 181 registered nurses (RNs) in 10 patient
care units at an acute care hospital. Many of the nurses served as charge nurses who were
responsible for overseeing their patient care units and assigning other RNs, technicians, and
medical personnel on their shifts. Some of the RNs worked permanently as charge nurses, while
others rotated into the charge nurse position. Oakwood Healthcare sought to exclude both the
permanent and the rotating charge nurses from a proposed bargaining unit on the grounds that the
nurses were supervisors within the meaning of Section 2(11). Oakwood Healthcare maintained
that the charge nurses were supervisors because they “used independent judgment in assigning
and responsibly directing employees.”15
The NLRB viewed Oakwood Healthcare, Inc. as an opportunity to define the terms “assign,”
“responsibly to direct,” and “independent judgment” as those terms are used in Section 2(11) of
the NLRA.16 For each term, the NLRB considered the language used by Congress, as well as the
NLRA’s legislative history, applicable policy considerations, and Supreme Court precedent.17 The
NLRB concluded that the term “assign” should be construed to refer to the act of designating an
employee to a place (such as a location or department), appointing an employee to a time, or
giving significant overall duties or tasks to an employee.18 The NLRB noted that in the health
care setting, the term “encompasses the charge nurses’ responsibility to assign nurses and aides to
9 532 U.S. at 715.
10 532 U.S. at 716.
11 Id.
12 Justice Stevens filed an opinion, joined by Justices Souter, Ginsburg, and Breyer, that dissented from the majority
opinion on the question of independent judgment. However, Justice Stevens’ opinion concurred with the majority
opinion on the question of which party bears the burden of proving or disproving an employee’s supervisory status in
an unfair labor practice proceeding.
13 532 U.S. at 725-726.
14 348 NLRB No. 37 (2006).
15 Id. at 2.
16 348 NLRB at 3 (“Thus, exercising our discretion to interpret ambiguous language in the Act, and consistent with the
Supreme Court’s instructions in Kentucky River, we herein adopt definitions for the terms ‘assign,’ ‘responsibly to
direct,’ and ‘independent judgment’ as those terms are used in Section 2(11) of the Act.”).
17 See 348 NLRB at 4.
18 Id.
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particular patients.”19 The term would not apply, however, to an individual who simply chooses
the order in which an employee will perform discrete tasks within an assignment.
Citing the legislative history of Section 2(11), the NLRB interpreted the term “responsibly to
direct” to apply to individuals who not only oversee the work being performed, but are held
responsible if the work is done poorly or not at all. The NLRB observed:
for direction to be ‘responsible,’ the person directing and performing the oversight of the
employee must be accountable for the performance of the task by the other, such that some
adverse consequence may befall the one providing the oversight if the tasks performed by the
employee are not performed properly. This interpretation of ‘responsibly to direct’ is
consistent with post-Kentucky River Board decisions that considered an accountability
element for ‘responsibly to direct.’20
According to the Board, to establish accountability for purposes of responsible direction, it must
be shown that the employer delegated to the putative supervisor the authority to direct the work
and the authority to take corrective action.21 The possibility of adverse consequences for the
putative supervisor must also be established.
With regard to the term “independent judgment,” the NLRB maintained that at a minimum an
individual must act or effectively recommend action that is “free of the control of others and form
an opinion or evaluation by discerning and comparing data.”22 The Board further elaborated that a
judgment is not independent if it is dictated or controlled by detailed instructions in company
policies, the verbal instructions of a higher authority, or the provisions of a collective bargaining
agreement.23 The NLRB sought to interpret the term “independent judgment” in light of the
phrase “not of a merely routine or clerical nature,” which appears before “independent judgment”
in Section 2(11). The NLRB stated:
If there is only one obvious and self-evident choice ... or if the assignment is made solely on
the basis of equalizing workloads, then the assignment is routine or clerical in nature and
does not implicate independent judgment.24
Applying the new definitions for the terms “assign,” “responsibly to direct,” and “independent
judgment,” the NLRB concluded that 12 permanent charge nurses employed in 5 of 10 patient
care units at Oakwood Healthcare were supervisors for purposes of the NLRA.25 Within the new
meaning of the terms:
• Assign. The Board found that 12 charge nurses assigned employees to patients
and assigned overall tasks to other employees.
19 Id.
20 348 NLRB at 8.
21 Id.
22 348 NLRB at 9.
23 348 NLRB at 10. The NLRB did indicate, however, that the mere existence of company policies would not eliminate
independent judgment from decision-making if the policies allow for discretionary choices.
24 348 NLRB at 8-9.
25 In two other decisions issued on the same day as Oakwood Healthcare, Inc., the NLRB applied its new definitions
and concluded that charge nurses at a nursing home in Hibbing, MN, and so-called “lead persons” at a manufacturing
facility in McComb, MS, were not supervisors. See Beverly Enterprises-Minnesota, Inc., d/b/a/ Golden Crest
Healthcare Center, 348 NLRB No. 39 (2006); Croft Metals, Inc., 348 NLRB No. 38 (2006).
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• Responsibly to Direct. The Board did not find that any of the charge nurses at
Oakwood Healthcare responsibly directed other employees. The Board concluded
that the charge nurses were not subject to discipline or lower evaluations if
employees they directed failed to adequately perform their tasks.
• Independent Judgment. Finally, the Board found that the 12 charge nurses
exercised independent judgment in assigning other staff. The charge nurses made
assignments in light of the skills of employees and the nursing time that would be
required during a given shift. The NLRB noted that the “process of equalizing
work loads at the hospital involves independent judgment.”26 Although Oakwood
Healthcare maintained a written policy for assigning nursing personnel to deliver
care to patients, the Board observed that charge nurses were given considerable
latitude in making decisions on how to assign nursing personnel. The Board
concluded that when a charge nurse makes an assignment based on the skill,
experience, and temperament of nursing personnel and the patients, that nurse
has “exercised the requisite discretion to make the assignment a supervisory
function ‘requir[ing] the use of independent judgment’.”27
In addition, the Board found that, because the 12 charge nurses served in that capacity on every
shift that they worked, they spent a “regular and substantial” portion of their work time
performing supervisory functions.
The Board also found that charge nurses in the emergency room were not supervisors. The Board
concluded that the nurses did not exercise independent judgment in assigning employees to places
within the emergency room.
Finally, the Board found that none of the rotating charge nurses was a supervisor.
Dissent in Oakwood Healthcare, Inc.
The dissent in Oakwood Healthcare, Inc. maintained that the definitions established by the NLRB
would have the effect of removing collective bargaining rights from many employees with only
minor supervisory responsibilities. The dissent noted that the language of the NLRA, its structure,
and its legislative history “all point to significantly narrower interpretations of the ambiguous
statutory terms ‘assign ... other employees’ and ‘responsibly to direct them’ than the majority
adopts.”28
The dissent was especially critical of the majority’s definition of the term “assign.” By defining
the term to include the assignment of tasks, the dissent said that the majority disregarded the
syntax of Section 2(11), which states, in relevant part: “The term ‘supervisor’ means any
individual having authority, in the interest of the employer, to ... assign ... other employees.”
Citing Kentucky River, the dissent noted that the word “employees” serves as the grammatical
object of the verbs identifying supervisory functions in Section 2(11). The dissent stated simply:
“In short, it must be the employees who are being assigned, not the tasks.”29
26 348 NLRB at 16.
27 Id.
28 348 NLRB at 20.
29 348 NLRB at 24.
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The dissent also challenged the majority’s definition of the term “responsibly to direct.” Citing
the legislative history of the term, the dissent maintained that the term refers to the “general
supervisory authority delegated to foremen overseeing an operational department and the
accountability that goes with it, in contrast to the kind of one-on-one task direction” that would be
given to an employee.30 The dissent noted that the majority’s definition failed to recognize the
“scope and scale of supervisory function that ‘responsibly to direct’ was intended to capture.”31
The RESPECT Act
In the 110th Congress, following the decision in Oakwood Healthcare Inc., Representative Robert
Andrews and Senator Chris Dodd introduced the Re-Empowerment of Skilled and Professional
Employees and Construction Tradesworkers (RESPECT) Act (H.R. 1644/S. 969).32 The
legislation was not introduced in the 111th Congress. The RESPECT Act was introduced in the
112th Congress by Senator Richard Blumenthal (S. 2128).
The RESPECT Act would create a narrower definition of supervisor than exists under current law.
Supporters of the legislation argue that the RESPECT Act would ensure that only true supervisors
are excluded from protection under the NLRA.33 Opponents maintain that the legislation would
change the definition of supervisor that has been in place for 60 years.34
The RESPECT Act would amend the NLRA’s definition of “supervisor” by removing two
supervisory functions from the existing 12 functions and by adding a limiting phrase. The
legislation would eliminate “assign” and “responsibly to direct” from the current supervisory
functions.35 In addition, the act would add (immediately after “in the interest of the employer”)
the phrase “and for a majority of the individual’s worktime.” This addition would seem to
respond to the NLRB’s decision in Oakwood Healthcare, Inc. In its decision, the Board
maintained:
Where an individual is engaged part time as a supervisor and the rest of the time as a unit
employee, the legal standard for a supervisory determination is whether the individual
spends a regular and substantial portion of his/her work time performing supervisory
functions. Under the Board’s standard, “regular” means according to a pattern or schedule, as
opposed to sporadic substitution. The Board has not adopted a strict numerical definition of
substantial and has found supervisory status where the individuals have served in a
30 348 NLRB at 28.
31 Id.
32 On May 8, 2007, the House Education and Labor Subcommittee on Health, Employment, Labor, and Pensions held a
hearing on the RESPECT Act. On September 19, 2007, the full committee approved the measure by a vote of 26 to 20.
The Senate did not consider the legislation.
33 Honorable George Miller, Markup of H.R. 1644, The Re-Empowerment of Skilled and Professional Employees and
Construction Tradesworkers (RESPECT) Act, opening statement, September 19, 2007, p. 2.
34 Honorable Howard P. “Buck” McKeon, Markup of H.R. 1644, Re-Empowerment of Skilled and Professional
Employees and Construction Tradesworkers (RESPECT) Act, press release, September 19, 2007, p. 1.
35 As introduced in the 110th Congress, H.R. 1644 provided for the elimination of the clause “responsibility to direct
them” from the NLRA’s definition of the term “supervisor.” During consideration of H.R. 1644 by the House
Committee on Education and Labor, the language was corrected to provide for the elimination of the clause
“responsibly to direct them.” S. 2168, from the 112th Congress, would also eliminate the phrase “responsibly to direct
them.”
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supervisory role for at least 10-15 percent of their total work time. We find no reason to
depart from this established precedent.36
Under the RESPECT Act, an employee would be classified as a supervisor if he or she was
engaged in supervisory activities at least 50% of the time.
The RESPECT Act would not apply to railroad or airline employees. Workers in both industries
are covered by the Railway Labor Act. Nor would the legislation apply to most federal
employees, who are covered by Federal Labor-Management Labor Relations Statute.
Potential Impact of the RESPECT Act
The RESPECT Act would create a more restrictive definition of supervisor than exists since the
decision in Oakwood Healthcare, Inc. The measure would reduce the number of supervisory
functions from 12 to 10. For a larger employer, many of the remaining functions (e.g., hiring,
firing, or transferring) may be performed by a human resource department. Because the act would
eliminate “responsibly to direct” as a supervisory function, foremen and employees with similar
duties may no longer be classified as supervisors.
Under current law, an employee may be classified as a supervisor if the employee performs
supervisory functions at least 10%-15% of the employee’s worktime. The RESPECT Act would
raise this threshold to anything more than 50%. Even if the functions “assign” and “responsibly to
direct” were not removed from the current definition of supervisor, this change would reduce the
number of employees who are classified as supervisors. Because they would be included in the
definition of employee, they would receive the protections provided by the NLRA.
Foremen
The RESPECT Act may have a significant effect on foremen and employees with similar duties.
In 1947, the Supreme Court upheld the position that the Board followed at the time that
supervisors were included in the definition of employee. In response, Congress amended the
NLRA to exclude supervisors from the definition of employee. The new definition was included
in the Labor Management Relations Act of 1947 (P.L. 80-101), commonly called the Taft-Hartley
Act after its main sponsors Robert Taft and Fred Hartley Jr.
The House report on legislation approved in the House said that the legislation excluded
“foremen and other supervisory personnel from the definition of ‘employee.’” In the Senate,
Senator Ralph Flanders offered an amendment to add “responsibly to direct” to a list of 11
supervisory functions that were in the Senate bill. Senator Flanders said:
The definition of “supervisor” in this act seems to cover adequately everything except the
basic act of supervising. Many of the activities described in [section 2(11)] are transferred in
modern practice to a personnel manager or department.... In fact, under some modern
management methods, the supervisor might be deprived of authority for most of the
functions enumerated.... He is charged with the responsible direction of his department and
36 348 NLRB at 11.
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the men under him. He determines under general orders what job shall be undertaken next
and who shall do it. He gives instructions for its proper performance.
The Senate report on its version of the Labor Management Relations Act said that the amended
definition of employee distinguishes “between straw bosses, leadmen, set-up men, and other
minor supervisory employees, on the one hand, and the supervisor vested with such genuine
management prerogatives as the right to hire or fire, discipline, or make effective
recommendations with respect to such action.” The Report went on to say that, without the
change in definition, “management would be deprived of the undivided loyalty of its foremen.”37
By eliminating the function “responsibly to direct” employees from the definition of supervisor,
the RESPECT Act may increase the number of employees protected by the NLRA.
Estimating the Impact of Oakwood Healthcare, Inc.
and the RESPECT Act
Regardless of how the decision in Oakwood Healthcare, Inc. is applied, it is difficult to estimate
how many employees may be affected. Similarly, it is difficult to estimate how many employees
may be affected by the RESPECT Act, if it were enacted. Data from household and employer
surveys that are often used to estimate the potential impact of policy changes may not include
enough information to identify whether an employee is a supervisor under the NLRA. For
example, a person’s occupation or job title may not be sufficient to determine whether an
employee should be classified as a supervisor. Equally important, surveys usually do not ask
respondents how much time they spend on different tasks—information that would be needed to
determine the percentage of time that an employee spends on supervisory activities.
Nevertheless, removing the phrase “responsibly to direct” from the definition of supervisor may
result in many foremen and similar workers being reclassified as employees for purposes of
collective bargaining. A 2002 report by the Government Accountability Office (GAO) estimated
that, in February 2001, there were an estimated 8.6 million full-time foremen in the private sector
who were not covered by the NLRA. In the GAO report, foremen are “first-line” supervisors.38
Using data from the Current Population Survey (CPS), in 2011, there were an estimated 6.8
million full-time, first-line supervisors in the private sector. If part-time employees are included,
there were an estimated 7.4 million first-line supervisors in the private sector in 2011.39 Because
of the slow economic recovery following the 2007-2009 recession, the number of private sector
37 National Labor Relations Board, Legislative History of the Labor Management Relations Act, 1947, Washington:
U.S. Govt. Print. Off., 1985, pp. 304, 410-411, 1303.
38 “First-line” supervisors are employees who direct staff in face-to-face meetings (instead of through an intermediate
supervisor) and who do not have as their principal duty the same work as their subordinates. U.S. Government
Accountability Office, Collective Bargaining Rights: Information on the Number of Workers With and Without
Bargaining Rights, GAO-02-835, September 2002, pp. 12, 30-31.
39 Calculated by CRS from the monthly Current Population Survey (CPS). The CPS is the source of the monthly
national unemployment rate and other labor market information.
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jobs in 2011 was below the number in 2001 (109.3 million in 2011 versus 110.7 million in
2001).40
According to an estimate by the Economic Policy Institute, if Oakwood Healthcare’s
interpretation of the definition of supervisor were to stand (i.e., applying the definition of
supervisor to all charge nurses, including rotating charge nurses), 8 million workers would no
longer be protected by the NLRA.41 In the Oakwood Healthcare, Inc. decision, however, the
NLRB concluded that 12 permanent charge nurses were supervisors and that none of the rotating
charge nurses was a supervisor. In the two other decisions announced on the same day, the Board
concluded that, in Croft Metals, none of approximately 25-35 lead persons were supervisors.42
And in Golden Crest Healthcare, the Board decided that none of 19 nurses was a supervisor.
Author Contact Information
Gerald Mayer
Jon O. Shimabukuro
Analyst in Labor Policy
Legislative Attorney
gmayer@crs.loc.gov, 7-7815
jshimabukuro@crs.loc.gov, 7-7990
40 The economic recession that began in the United States in December 2007 officially ended in June 2009. (National
Bureau of Economic Research, U.S. Business Cycle Expansions and Contractions, http://www.nber.org/cycles/
cyclesmain.html.) U.S. Department of Labor, Bureau of Labor Statistics, Current Employment Statistics,
http://stats.bls.gov/ces/.
41 Ross Eisenbrey and Lawrence Mishel, Supervisor in Name Only: Union Rights of Eight Million Workers at Stake in
Labor Board Ruling, Issue Brief 225, July 12, 2006, available at http://www.epinet.org/issuebriefs/225/ib225.pdf, pp.
1-2.
42 See note 25.
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