Report in which the committee requests to be kept informed of development - REPORT_NO349, March 2008

1. 794. The complaint is contained in communications from the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO), dated 20 and 23 October 2006.
2. 795. The Government transmitted its reply in a communication dated 25 September 2007.
3. 796. The United States has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 797. In communications dated 20 and 23 October 2006, the AFL–CIO alleges that the decisions of the United States National Labor Relations Board (NLRB) in Oakwood Healthcare Inc. (348 NLRB No. 37), Croft Metal Inc. (348 NLRB No. 38), and Golden Crest Healthcare Center (348 NLRB No. 33, 2 October 2006), known as the “Oakwood trilogy” violate Conventions Nos 87 and 98 by setting out a new, expanded interpretation of the definition of “supervisor” under section 2(3) of the National Labor Relations Act (NLRA); this section excludes supervisors from the NLRA’s protection of the right to organize and bargain collectively. Section 2(11) of the NLRA defines “supervisor” as “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 judgement”.
2. 798. The complainant explains that the original NLRA, commonly known as the Wagner Act, granted organizing and bargaining rights to supervisors in bargaining units separate from those of supervised employees. According to the complainant, if those rights had survived, the Act would be consistent with the principle, established by the Committee on Freedom of Association, that managerial or supervisory employees have the right to form their own associations to defend their interests though a country’s law may require them to form bargaining units separate from those of supervised employees.
3. 799. According to the complainant, tens of thousands of supervisors formed and joined trade unions under the protection of the Wagner Act. But in 1947 a reactionary Congress stripped supervisors of these rights, meeting employers’ demands that supervisors should be under management’s strict hierarchical control and discipline with no independent form of association. The supervisor exclusion was one of several amendments, in what was called the Taft-Hartley Act, that to this day violate workers’ freedom of association.
4. 800. According to the complainant, section 2(3) of the NLRA, as amended, on its face violates the principles of freedom of association. However, the blanket exclusion of supervisors is not the focus of this complaint. The focus is on a change in United States law expanding the interpretation of “supervisor” under the NLRA, and thus depriving workers who are not supervisors, of protection of their organizing and bargaining rights. Under the new definition, employers can classify or reclassify as “supervisors” employees with minor or sporadic oversight over co-workers even when such oversight is far short of genuine managerial or supervisory authority.
5. 801. This exclusion from coverage by the NLRA is not a mere technical change, but has enormous repercussions for those workers who have now become “supervisors” under the Act. It means that employers can fire such “supervisors” for trade union activity. They can fire “supervisors” for resisting participation in employers’ anti-union activity. And employers can refuse to bargain with unions of “supervisors” – all this with complete immunity, since supervisors are not “employees under the Act” – that is, workers protected by the NLRA against discrimination for union activity and workers who, with majority status in a bargaining unit, can compel employers to bargain in good faith with their union.
6. 802. The decision is especially ominous in light of the claim of many employers, whether or not they operate within the health-care industry, to be “pushing authority down” through new forms of work organization in “job enrichment” programmes purporting to “empower” employees. As declared in one major business journal, “the accelerated pace and complexity of business will continue to force corporations to push authority down through increasingly horizontal management structures. The ILO has itself noted a widespread pattern of “changes in the organization of work toward flatter hierarchies and project-based teams (World Employment Report 2001, Geneva, 2001)” (Business Week, 28 August 2000).
7. 803. According to the complainant, although empowering employees to have more say in workplace decisions may well be a laudable goal, the Oakwood trilogy sets the stage for misusing such practices to destroy workers’ collective power by denying their right to form and join trade unions and to bargain collectively, in violation of the principles of freedom of association. Stripping all protection of these fundamental rights from employees mislabelled as supervisors violates international human rights standards and ILO Conventions.
8. 804. The complainant further explains that the NLRB’s new decision in the Oakwood trilogy follows an earlier Supreme Court decision. In its 2001 Kentucky River decision, the court nullified the results of a 1997 NLRB election where a majority of the Kentucky River hospital’s 110 employees voted in favour of union representation. The employer refused to bargain with the union, arguing that six “charge nurses” (defined below) in the voting group were supervisors, but the NLRB held that the nurses were properly included in the unit. The Supreme Court agreed with the employer, and held that the NLRB’s rationale for deciding that charge nurses who oversaw the work of lower ranking nurses and nurses’ aides, but who lacked disciplinary authority over them, were not supervisors, was inconsistent with the NLRA’s definition of “supervisor”. Health-care employers crowed that the decision gave them new ammunition to break workers’ organizing efforts, calling it “welcome news” that “could give you an edge in union organizing campaigns”.
9. 805. The NLRB is the federal agency with primary responsibility for interpreting and enforcing the NLRA, although the United States Supreme Court has final authority to decide over the meaning of statutory terms. The United States labour law community has long waited to see how the NLRB would change its analysis of who is a “supervisor” after the Kentucky River decision in new cases arising before the Board. New cases present new fact situations requiring new analysis of evidence of employees’ duties. The opportunity came in the Oakwood trilogy. In each of these cases, an NLRB regional director considered an election petition by employees seeking to form a union and to bargain collectively and ordered an election. The NLRB granted discretionary review of the regional director’s decision in each case upon request of the employers involved and used the occasion to set forth an expanded definition of “supervisor”.
10. 806. The lead Oakwood trilogy case involves 12 registered nurses (RNs) who act as permanent “charge nurses” in a hospital, and many more RNs who work as rotating charge nurses. However, the ramifications of the decision extend potentially to millions of workers with minor or sporadic oversight tasks unrelated to hiring, firing, discipline or other markers of true supervision. “Charge nurse” is the term commonly used for a RN who leads the work of other RNs on a hospital floor or unit. The NLRB’s regional director heard the evidence in the Oakwood case. He found that charge nurses are not supervisors, a decision that prompted the employers’ appeal to the NLRB. The regional director’s decision went into lengthy details about the role of charge nurses. The decision begins with the regional director’s discussion of genuine managers and supervisors. These are RNs who hold the position of clinical manager and assistant clinical manager:
11. Clinical managers are responsible for several units in distinct geographical areas within the hospital. Clinical managers are all RNs … They are not regularly engaged in actual clinical work/nursing functions. … There are eight assistant clinical managers (also referred to as assistant nurse managers or ACMs) who report to the nurse managers. … The parties stipulated, and I find that ACMs are supervisors as defined in section 2(11) of the Act based on their discipline and independently direct other employees.
12. 807. The regional director then described the work of charge nurses:
13. On every shift in each unit, except the pain clinic, there is one RN assigned to work as a charge nurse. … Rotating charges are individuals who occasionally take charge nurse responsibilities in a unit. … A permanent charge is a person who has requested to and agreed to be in permanent charge; each time they work, they work as a charge nurse. The duties of a charge nurse, where rotating or permanent, are the same. RNs are paid hourly. They earn $1.50 more per hour when they are working as a charge nurse. …
14. Charge nurses are responsible for overseeing the unit for the shift that they are working, with the staff who are working the unit that day. They do the assignments of all the staff that are working on that shift. They monitor in general all the patients that are in the unit that day, and meet with physicians if a physician has an issue with a nurse or with a patient. They also meet the patients or family members who have a complaint. …
15. The charge nurse does not assign employees to shifts; that is done by a staffing office. When the charge nurse comes in, she is handed a list (prepared by the supervisor on the previous shift) of the nurses who are supposed to be working that day on her shift. If nurses on the list do not show up, the charge nurse calls the staffing office to find out where that person is. …
16. In making assignments, the charge nurse must determine the acuity of the patient and determine the level of skill required to care for the patient – i.e. RNs can perform certain tasks that cannot be performed by LPNs, etc. …
17. The charge nurse also assigns nursing assistants or mental health workers either to particular patients or to work alongside specific RNs. After receiving their general assignment, the RN and/or the charge nurse may assign them more specific tasks such as giving a patient a bath, etc.
18. Charge nurses are also responsible for assigning breaks and lunches to other employees. However, they do this by asking the other nurses when they would like to take their break, and their main goal in assigning breaks is to make sure the unit is covered at all times. …
19. The assignment of work is generally rotated, or based on where a person worked the previous day. When making assignments as a charge nurse, reference is made to a staffing sheet showing where everyone worked the day before. It usually takes only a few minutes to do the assignments …
20. 808. The regional director concluded that these limited duties did not qualify charge nurses as supervisors:
21. Generally, it is the clinical manager who hires, fires and handles conflicts within the unit. They also handle performance evaluations, finalize schedules, and handle staffing issues and patient complaints. The assistant manager also does these things. Charge nurses do not make the decision to hold someone past the end of their shift if they are short staffed, nor do they authorize overtime. Charge nurses can be, and have been, disciplined by clinical managers.
22. [There is] no evidence that the [charge nurses] have independent authority with respect to the hire, promotion, demotion, lay-off, recall, reward or discharge of employees. They do not make staffing decisions, and they do not authorize overtime … There is no evidence that the charge nurses are empowered to adjust any formal employee grievances … The limited authority exercised by charge nurses to resolve interpersonal conflicts among employees does not confer supervisory status … [M]anagers are present or on call 24 hours a day to handle any problems that may arise. Consequently, I find that the RN staff nurses/charge nurses are not statutory supervisors.
23. 809. In its 3–2 ruling in Oakwood, the NLRB stretched the meaning of the term “assign” and “responsibly to direct” in section 2(11) of the NLRA to find that charge nurses are supervisors. As is evident from the Board’s analysis, discussed below, this new definition has significant consequences not only in the health-care industry, but in many other industries as well.
24. 810. The Board in Oakwood created a sweeping definition of “assign” that is not confined to making non-transitory assignments having a significant impact on employees’ terms of employment (for example, assignment to a shift or assignment to a particular job). Instead, the Board held that the term “assign” “refer[s] to the act of 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 overall duties, i.e. tasks, to an employee”. In the health-care context, according to the Board, this includes such transitory acts as “assign[ing] nurses and aides to particular patients”, even if such an assignment is only for a single shift.
25. 811. Similarly, the Board broadly construed the term “direct” to include direction to perform a single, discrete task. The Board held that direction means deciding “what job shall be undertaken next or who shall do it”. In a nursing home, the Board found authority to direct based on the following responsibilities of charge nurses with respect to certified nursing aides (CNAs):
26. Charge nurses oversee the CNA’s performance and act to the CNAs when they are not providing adequate care. For instance, a charge nurse will correct a CNA if she perceives that the CNA is not using proper procedures in giving a resident a bath … [and] will direct the CNAs to perform certain tasks, “for example, clip[ping] residents’ toenails and fingernails … empty[ing] catheters, or … chang[ing] an incontinent resident”. In a factory, the Board found lead persons had authority to direct because they instruct employees how to perform jobs properly, and tell employees what to load first on a truck or what jobs to run first on a line to ensure that orders are filled and production completed in a timely manner.
27. 812. In addition, the Board held that an employee need not possess even these minor forms of authority on a full-time basis in order to be classified as a supervisor, so long as they have this authority on a “regular and substantial” basis. The Board defined “regular” to mean according to a set schedule or pattern and “substantial” to mean at least 10–15 per cent of the employee’s work time. Thus, a group of ten nurses in a department, each of whom rotates into a charge nurse position once every ten days, can all be excluded from the protections of the Act as supervisors.
28. 813. The complainant adds that a powerful, compelling dissent by Board members Wilma B. Liebman and Dennis P. Walsh shows how the Board’s 3–2 majority reached beyond the facts to fashion an ideologically driven management agenda to weaken trade unions and collective bargaining. They said:
29. Today’s decision threatens to create a new class of workers … who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees … If the National Labor Relations Act required this result – if Congress intended to define supervisors in a way that swept in large numbers of professionals and other workers without true managerial prerogatives – then the Board would be duty bound to apply the statute that way. But that is not the case …
30. The result could come as a rude shock to nurses and other workers who for decades have been effectively protected by the National Labor Relations Act, but who now may find themselves treated, for labor law purposes, as members of management, with no right to pursue collective bargaining or engage in other concerted activity at the workplace. Indeed, supervisors may be conscripted into employers’ anti-union campaigns, while their pro-union activity is now strictly limited. The majority’s decision thus denies the protection of the Act to yet another group of workers, while strengthening the ability of employers to resist the unionization of other employees.
31. 814. According to the complainant, anti-union elements in the management community are already demonstrating their delight at the prospect of union-busting under the new Board ruling. A leading management law firm that routinely assists employers in defeating employee attempts to achieve union representation stated, in an analysis for corporate clients published the week before the NLRB issued its decision, that the decision “would remove thousands of workers from the NLRA’s protection, prevent them from unionizing, and even result in the termination of bargaining obligations for some existing nurse units”.
32. 815. The complainant goes on to explain that, although it has not ratified them, the United States is obligated by virtue of ILO membership to respect Conventions Nos 87 and 98. Moreover, its obligations in this respect arise under the ILO Declaration on Fundamental Principles and Rights at Work, and human rights instruments like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
33. 816. The United States has also affirmed the importance of international norms and obligations regarding workers’ freedom of association in its own trade statutes and trade agreements. In these statutes governing trade relationships with other countries, Congress has defined freedom of association and the right to organize and bargain collectively as internationally recognized workers’ rights and has relied on ILO guidance in formulating the labour rights clauses in these instruments. And, in its report on legislation governing United States participation in international financial institutions, Congress pointed to “the relevant Conventions of the International Labour Organization, which had set forth, among other things, the rights of association [and] the right to organize and bargain collectively”. Congress has added labour rights amendments to statutes governing the Generalized System of Preferences (GSP) in 1984, the Overseas Private Investment Corporation in 1985, the Caribbean Basin Initiative in 1986, section 301 of the Trade Act of 1988, Agency for International Development (AID) funding for economic development grants overseas, and United States participation in the World Bank, International Monetary Fund and other international lending agencies. Labour rights clauses are included, at the insistence of the United States, in trade agreements with Chile, Jordan, Singapore, Australia, Central America and other trading partners. In every case, freedom of association and the right to organize and bargain collectively are the first rights listed. The North American Free Trade Agreement (NAFTA) between the United States, Canada and Mexico brought with it a labour side agreement, the North American Agreement on Labor Cooperation (NAALC). Freedom of association and protection of the right to organize is the first “labor principle” of the NAALC, characterized as “the right of workers exercised freely and without impediment to establish and join organizations of their own choosing to further and defend their interests”. With its North American trading partners, the United States has committed itself to promote the NAALC labour principles and to “effectively enforce its labor law” to achieve their realization. These ILO, United Nations and regional human rights instruments have forged an international human rights consensus that the United States has joined on the importance of workers’ freedom of association. The consensus is strengthened by the international engagement of the United States at the ILO and in regional and multilateral trade arrangements, where it actively supports the promotion and enforcement of internationally recognized workers’ rights. To fulfil both the obligations it has assumed and the objectives that it promotes in the international community, the United States must live up in its own labour law and practice to international labour rights norms on workers’ freedom of association and the rights to organize and bargain collectively.
34. 817. The complainant considers, moreover, that, in violation of Article 2 of Convention No. 87, the NLRB’s Oakwood trilogy creates a new distinction in United States labour law denying freedom of association to employees deemed “supervisors” under the new test for supervisory status. Moreover, in violation of Article 1 of Convention No. 98, the NLRB’s Oakwood trilogy strips employees in the new “supervisor” status of any and all protection. Employers may fire them with impunity if they do not relinquish union membership or if they participate in union activities. Employers can even force these employees, under pain of dismissal, to participate in management’s anti-union campaigns. In further violation of Article 2 of Convention No. 98, the NLRB’s Oakwood trilogy opens the door for management to interfere with trade unions by challenging the status of union-represented workers deemed “supervisors” under the ruling. In many cases, employees caught in the new definition are elected trade union leaders and activists. Employers’ moves to remove them from bargaining units will interfere with union members’ choice of their leaders and with the functioning of those leaders.
35. 818. Finally, in violation of Article 4 of Convention No. 98, the Oakwood trilogy allows employers to challenge unions’ representative status by claiming that the bargaining unit contains “supervisors”. Instead of using members’ resources to engage in collective bargaining, unions will face years of protracted, expensive litigation before the NLRB and the courts, examining in minute detail all the duties and tasks of each employee management seeks to exclude from the union. The nurses at Oakwood Healthcare Inc. began their organizing efforts in 1999; the regional director ordered an election in early 2002, and the NLRB decided the case in late 2006. The same pattern will most likely repeat itself in new cases involving questionably supervisory tasks, since employers will use the distinctive facts of each new organizing drive to challenge – first at the Board and then in the courts – the right of employees to belong to a union on the grounds that they are “supervisors”. Thus, rather than encouraging and promoting collective bargaining, the Oakwood trilogy discourages and retards bargaining. The Oakwood trilogy severely undermines the efforts of workers seeking to form trade unions in hitherto unorganized workplaces because it eliminates a critically important group of employees whose support for the union might otherwise help create majority support for collective bargaining. Not only that, but the decision also allows management to create a cadre of the same supposed supervisors who can be “conscripted”, as the dissenting opinion says, even against their will and under pain of dismissal, into an anti-union force in the midst of co-workers seeking to organize. This can have devastating negative effects on workers’ organizing rights.
36. 819. The complainant then makes reference to previous complaints brought before the Committee on similar issues (in particular, Cases Nos 1534 (Pakistan), 1751 (Dominican Republican), 1771 (Pakistan), 1878 (Peru), 1951 (Canada), 1959 (United Kingdom)). According to the complainant, the Committee’s cases set out these key principles:
37. - the expression “supervisors” should be limited to cover only those persons who genuinely represent the interests of employers;
38. - legal definitions of “supervisors” or other excluded categories of workers should not give rise to an expansive interpretation excluding large numbers of workers from the negotiating scope of a certified bargaining agent;
39. - “excluded” employees should not be defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present and potential membership;
40. - changing employees’ status to undermine the membership of workers’ trade unions is contrary to the principle of freedom of association;
41. - even true supervisors have the right to form and join trade unions and to bargain collectively, though the law may require that their bargaining units be separate from those of supervised employees. According to the complainant, on all these points, the NLRB’s Oakwood trilogy runs afoul of the Committee’s criteria.
42. 820. The complainant adds that the NLRB’s Oakwood trilogy has provoked the broadest public concern about United States labour law in many decades. Although earlier decisions by this labour board, excluding university teaching assistants, temporary workers, disabled workers and other categories of employees from coverage of the NLRA were mainly known to labour law “insiders”, the Oakwood trilogy prompted intense media coverage and interest. Major newspapers not known for their sympathy to trade unions, and which rarely comment on labour law issues, sounded editorial alarms over the decision. The complainant cites in this regard articles from the Washington Post and the New York Times.
43. 821. According to the complainant, the widespread public revulsion at the NLRB’s supervisor ruling in Oakwood creates an opportunity to correct this violation of workers’ rights through legislative amendments to the NLRA. An amendment can restore the traditional, more balanced test for supervisory status. Recognizing that the ILO Committee on Freedom of Association does not accuse governments, nor does it “enforce” its decisions, the complainant requested the Committee to lend its authoritative voice and its moral standing to support workers’ freedom of association in the United States. To this end, it requested that the Committee urge Congress and the administration to amend the NLRA to ensure that:
44. - “supervisors” under the NLRA are limited to only those persons who genuinely represent the interests of employers;
45. - legal definitions of “supervisors” or other excluded categories of workers do not give rise to an expansive interpretation excluding large numbers of workers from protection of the right to organize and bargain collectively;
46. - employers may not change employees’ status to undermine trade union organization in unorganized workplaces or to undermine the membership and effectiveness of workers’ trade unions in union-represented workplaces.
47. 822. The complainant wished to leave for future consideration, the question of whether the NLRA should be amended to permit genuine supervisors who are not part of senior management to organize and bargain in separate supervisors’ bargaining units. Finally, it asked the Committee to send a direct contacts mission to the United States to examine the effects of the NLRB’s Oakwood trilogy. Such direct contact with workers, union representatives, employers and their representatives, and labour law authorities would, in the complainant’s view, provide the Committee with “on the ground” understanding of the issues.
48. B. The Government’s reply
49. 823. In a communication dated 25 September 2007, the Government indicates in the first place that the United States has not ratified ILO Conventions Nos 87 and 98, and therefore has no international law obligations pursuant to these instruments and thus no obligation to accord their provisions domestic effect in US law. Nonetheless, the US Government has on numerous occasions demonstrated that its labour law and practice are in general conformance with Conventions Nos 87 and 98, and the ILO supervisory bodies have generally upheld this view. Likewise, the ILO Declaration is a non-binding statement of principles, is not a treaty and gives rise to no legal obligations. However, the US Government has submitted annual reports under the follow-up procedures established by the ILO Declaration that demonstrate that it respects, promotes and realizes the fundamental principles and rights at work embodied in the ILO Constitution.
50. 824. In the second place, the Government indicates that the NLRB’s Oakwood cases do not conflict with ILO principles of freedom of association, the right to organize, or collective bargaining. Rather, the Oakwood cases illustrate reasonable interpretations of statutory language as applied to particular facts by an administrative body. Furthermore, these decisions have not, as asserted by the AFL–CIO, resulted in workers with only “minor or sporadic oversight tasks” being improperly classified as supervisors. Nor have they led to large numbers of workers losing their right to organize or bargain collectively, as predicted by the complainant.
51. 825. The Government recalls that the NLRA which is the principal statute for the extension of freedom of association rights to private sector employees, defines “supervisor” in section 2(11) as
52. … 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 judgement.
53. 826. In the Kentucky River decision, the US Supreme Court interpreted the Act as providing a three-part test for determining supervisory status. Employees are deemed “supervisors” under the NLRA if “(1) they hold the authority to engage in any one of the 12 listed supervisory functions, (2) their ‘exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgement’, and (3) their authority is held ‘in the interest of the employer.’” NLRB v. Kentucky River Community Care, Inc., 532 US 706, 712–713 (2001) (quoting NLRB v. Health Care & Retirement Corp. of America, 511 US 571, 573–574 (1994)).
54. 827. It should be emphasized that for supervisory status to be obtained it must be established that any of the 12 supervisory functions listed in the NLRA definition of “supervisor” is accompanied by the exercise of independent judgement. The burden of proving supervisory status is on the party asserting that such status exists. The NLRB has held that an individual engaged as a supervisor for part of that person’s work time, and the rest of the time as a unit employee, must spend a regular and substantial portion of work time performing supervisory functions in order to satisfy the legal standard for a supervisor. Under the Board’s standard, “regular” means according to a pattern or schedule, as opposed to sporadic substitution. The NLRB has stated that the dividing line between supervisors and non-supervisors is whether the individual exercises “genuine management prerogatives” and that, as a general principle, the Board exercises caution “not to construe supervisory status too broadly”. Consistent with this approach, the NLRB noted in Oakwood that the main purpose of the section 2(11) definition of “supervisor” is to exclude from coverage of the Act “individuals whose fundamental alignment is with management.”
55. 828. In response to the US Supreme Court’s decision in Kentucky River, in June 2003 the NLRB issued a notice and invitation to the parties in the Oakwood cases to address the issue of supervisory status of individuals who exercise judgement in assigning and directing employees. The NLRB considered the cases together since all three cases involved two of the 12 indicia of supervisory status under section 2(11): “to assign” and “responsibly to direct”.
56. 829. On September 29, 2006, the Board issued decisions in the Oakwood cases. Oakwood was decided first, and the other two cases followed the standards enunciated in Oakwood. The Board initially refined the definition of the common relevant terms: “assign”, “responsibly to direct”, and “independent judgement”, consistent with Kentucky River, and then applied these terms in each of the three cases to determine which individuals were supervisors.
57. 830. Oakwood Healthcare Inc. operates the Oakwood Heritage Hospital in Taylor, Michigan, and at the time the case was under consideration employed approximately 181 staff registered nurses (RNs). Twelve RNs were permanent charge nurses; 112 other RNs acted as charge nurses on a rotating basis.
58. 831. The NLRB applied the definitions of “assign”, “responsibly to direct”, and “independent judgement” to the facts in Oakwood and determined that the 112 RNs who were non-permanent, rotating charge nurses were not supervisors and, therefore, were within the representational unit. The 12 permanent charge nurses were found to assign work and exert independent judgement and, therefore, were found to be supervisors outside the representational unit. Thus, of the approximately 181 RNs at the facility, only 12 – those determined by the NLRB to regularly perform significant supervisory functions – were found to meet the NLRA’s definition of supervisor.
59. 832. The NLRB then applied these definitions to the facts in the other Oakwood cases. In Croft Metals and Golden Crest, the Board found that none of the individuals whose non-supervisory status was challenged (lead persons in Croft Metals and/or charge nurses in Golden Crest) was a supervisor as defined in section 2(11). Consequently, in three cases where the supervisory status of approximately 173 individuals was challenged, the Board concluded that only 12 individuals met the Act’s definition of supervisor.
60. 833. The results in the Oakwood cases are consistent with the Board’s general principle, as stated in Oakwood, to exercise caution not to construe supervisory status broadly. This principle has been reaffirmed in a number of subsequent cases where supervisory status was at issue [Avante at Wilson, Inc., 348 NLRB No. 71 (31 October 2006) (reversal of a Regional Director’s finding that RNs and licensed practical nurses (LPNs) were supervisors); East Buffet and Restaurant, Inc., 2007 WL 1035161 (NLRB Div. of Judges) (3 April 2007) (finding restaurant captains not to be supervisors under the Act); Paramus Ford, Inc., 2007 WL 313430 (NLRB Div. of Judges) (31 January 2007) (finding that evidence was insufficient to establish that an assistant parts department manager was a supervisor under the Act)].
61. 834. Examination of the Board’s definitions, and the application of those definitions in the Board’s factual analysis to discern the status of the relevant employees in the Oakwood cases, confirms that the Oakwood cases designate as supervisors only individuals who represent genuine management interests, and do not create an overly broad definition of “supervisor” or exclude a large number of individuals from NLRA coverage. A discussion of each definition relevant to each of the Oakwood cases follows.
62. Assignment
63. 835. Examining whether the individuals “assigned” work for the purposes of section 2(11), the Board defined the term, consistent with the ordinary meaning of the statutory word, as the designation of an employee to a place (e.g. location or wing), time (e.g. shift or overtime), or task (which must involve “significant overall duties” not ad hoc instruction that the employee perform a discrete task). The Board applied this definition in the Oakwood cases, and determined that only 12 individuals – the permanent charge nurses at Oakwood – assigned work, for the following reasons:
64. – In Oakwood, 12 permanent charge nurses were found to “assign.” In each nursing unit, at the beginning of each shift and as new patients were admitted, these charge nurses assigned staff working in their unit to the patients that they would care for during the shift. The charge nurses were assigning “significant overall duties”. The charge nurses’ assignments determined what would be the required work for an employee during the shift, thereby having a material effect on the employee’s terms and conditions of employment.
65. – In Croft Metals, none of the lead persons were found to “assign”. Lead persons did not: prepare posted work schedules; appoint employees to production lines, departments, shifts or overtime; or give significant overall duties to employees.
66. – In Golden Crest, none of the charge nurses were found to “assign”. Charge nurses did not exercise supervisory authority in assigning certified nurse assistants (CNAs) as they did not have authority to require CNAs to go home early or stay past the end of a shift; assign location of CNAs’ work; call CNAs in to work; alter CNAs’ section assignments to compensate for absent employees or to balance workloads. The fact that the charge nurses verified time cards was found to be routine and clerical and not indicative of supervisory authority. Similarly, the fact that the charge nurses were the highest ranking employees on site during the night shift and every other weekend was insufficient to confer supervisory status.
67. Responsible direction
68. 836. While the Supreme Court in Kentucky River rejected a Board limitation on the type of “independent judgement” required to establish the supervisory criteria of “responsibly to direct”, it did not define either term. In Oakwood, the NLRB adopted the standard established by the US Circuit Court of Appeals for the Fifth Circuit in NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1278 (fifth Cir. 1986), in defining “responsibly to direct” under section 2(11) to include accountability. Therefore, for purposes of “responsible direction”, it must be shown that the employer delegated to the employee the authority to direct the work and the authority to take corrective action, if necessary. It also must be shown that there is a prospect of adverse consequences for the employee if the work is performed poorly or no corrective action is taken. The Board applied this definition in the Oakwood cases, and only 25–30 individuals – the lead persons in Croft Metals – were found to responsibly direct, for the following reasons:
69. – In Oakwood, the Board determined that the employer failed to establish that the charge nurses who direct others were accountable if the tasks were not completed. Although the charge nurses had the discretion to direct other nursing staff to check the crash carts, take an inventory of narcotics, and provide statistical information to administrators, there was no evidence that the charge nurses were required to take corrective action if the nursing staff failed to adequately perform such duties, or that charge nurses were subject to discipline or lower evaluations if other nursing staff failed to adequately perform such duties.
70. – In Croft Metals, lead persons were found to responsibly direct. Lead persons were required to manage their assigned teams, correct improper performance, move employees to do different tasks, and decide the order of work to be performed, all to achieve management-targeted goals. They were held accountable for the job performance of the employees.
71. – In Golden Crest, charge nurses were found not to responsibly direct. While these nurses directed the work of CNAs, they were not accountable for their actions in directing the CNAs. The charge nurses were evaluated on their direction of the CNAs, but this fact alone did not establish that any adverse consequences could or would befall the charge nurses as a result of such rating.
72. Independent judgement
73. 837. Under the NLRA, a finding of one of the 12 supervisory indicia of section 2(11), alone, is not sufficient to determine supervisory status: independent judgement is also required. Consequently, in the Oakwood cases, where one of the supervisory indicia under section 2(11) was found, the Board was required to examine whether the assignment or direction required “independent judgement”. Defining the term in light of the Supreme Court’s views in Kentucky River, the Board held that using “independent judgement” is to act free of the control of others and form an opinion or evaluation by discerning and comparing data, provided that the act is “not of a merely routine or clerical nature”. The NLRB stated that “a judgement is not independent if it is dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective-bargaining agreement”. The Board applied this definition in the Oakwood cases, and determined that the 12 charge nurses who assigned work in Oakwood exercised independent judgement, but the lead persons in Croft Metals did not, for the following reasons:
74. – In Oakwood, the Board concluded that the employer adduced evidence sufficient to establish that certain of its permanent charge nurses were supervisors based on their delegated authority to assign employees using independent judgement. The Board focused on the substantial degree of professional discretion that the 12 permanent charge nurses exercised in making assignments in life or death situations. The Board found that where the charge nurse made an assignment based upon the skill, experience, and temperament of other nursing personnel and on the condition of the patients, that charge nurse had exercised the requisite discretion to make the assignment a supervisory function requiring independent judgement. The NLRB’s decision did not extend to permanent charge nurses employed in the emergency room, as it was found that they did not exert sufficient independent judgement to be deemed supervisors under the Act. The facts revealed that those charge nurses were not required to take into account patient conditions or staff nursing skills in making patient care assignments. The Board also found that the employer failed to establish that its 112 rotating charge nurses, as opposed to the 12 permanent charge nurses found to be supervisors, regularly performed supervisory functions.
75. – In contrast, in Croft Metals, lead persons were found not to exercise independent judgement. Although lead persons were found to responsibly direct the work of other employees, the Board determined that the direction (e.g. in directing production and maintenance employees and in directing the loading of trucks) did not require a degree of discretion that rose above the routine or clerical. As a specific example, evidence indicated that lead persons followed pre-established delivery schedules and generally employed a standard loading pattern that dictated the placement of different products in the trucks.
76. – In Golden Crest, even though the employer failed to establish one of the 12 indicia of supervisory functions, which precluded the establishment of supervisory status under the NLRA, the Board nonetheless discussed whether charge nurses exercised independent judgement. The Board found that charge nurses’ ability to call CNAs to work was merely ministerial as the nurses needed to be approved and that reassignment authority was without regard to individualized assignments of CNAs’ skills and patient needs. Accordingly, the Board held that it was not established that the charge nurses used independent judgement.
77. 838. The Oakwood cases represent a small refinement in the application of the NLRA’s definition of “supervisor”. The tests developed in these cases to determine supervisory status are reasonably conceived and judiciously applied to appropriately limit the NLRA’s definition of “supervisor” to individuals who exercise independent judgement in carrying out the genuine interests of employers. As illustrated above, as applied, the tests employed in the Oakwood cases do not, despite the assertions by the AFL–CIO, represent an expansive definition of supervisor that “extend[s] potentially to millions of workers with minor or sporadic oversight tasks…”. The cases do illustrate the scope of evidence, both testimonial and documentary, that the Board considers and the degree of scrutiny that the Board exercises in applying the legal standard to the facts of a case. This process of determining supervisory status is, as it should be, “heavily fact-dependent”, Jochims v. NLRB, 480 F.3d 1161, 1168 (DC Cir. 2007) (quoting Brusco Tug & Barge v. NLRB, 247 F.3d. 273, 276 (DC Cir. 2001)), in order to correctly distinguish which individuals are, or are not, supervisors as defined in section 2(11) of the NLRA.
78. 839. A review of all of the post-Oakwood decisions addressing the issue of supervisory status under the NLRA that employed the definitions adopted in the Oakwood cases reveals virtually no cases where workers were found to be outside a bargaining unit based on those definitions. This result does not reflect the tumultuous outcome predicted in the complaint. In fact, a review of cases applying the Oakwood standard decided over the 60 days following the decision, during some of which time the AFL–CIO’s complaint was being drafted, reveals none in which the Board, including its administrative law judges, determined that an employer established supervisory functions under section 2(11). See, e.g. Rite Aid Corp., Case 31-RC-8587 (11 October 2006) (employer failed to establish that leads are supervisors); Biosource Landscaping Services, Inc., Case 9 RC 18101 (23 October 2006) (employer failed to establish that foremen are supervisors); Healthlink Holdings at Bear Creek, Case 18 RC 17111 (15 November 2006) (employer failed to establish that LPNs are supervisors); Haven Health Center of Windham, Case 34 RC 2134 (16 November 2006) (employer failed to establish that charge nurses are supervisors); North Coast Opportunities, Inc., Case 20 RC 18104 (20 November 2006) (employer failed to establish that lead teachers are supervisors); Sara Lee Bakery Group, Case 9 RC 18109 (20 November 2006) (employer failed to establish that lead persons and lead retail clerks are supervisors); Walker Methodist Health Center, Case 18 RC 17157 (22 November 2006) (employer failed to establish that LPNs are supervisors); St. Mary Home, Case 34 RC 2119 (27 November 2006) (employer failed to establish that licensed practical nurses LPN or RN charge nurses are supervisors); Eby Brown Co., Case 9 RC 18105 (27 November 2006) (employer failed to establish that “supervisors” satisfy the Oakwood indicia); Flint Hill Resources, LP, Case 18 RC 17418 (1 December 2006) (employer failed to establish that firefighter captains are supervisors).
79. 840. Furthermore, the Government indicates that US law and practice are consistent with freedom of association principles and the NLRB’s decisions in the Oakwood cases have not altered this. With regard to the principle that supervisors should be limited to those who “genuinely represent the interests of employers”, the Government indicates that the NLRB recognizes that the main purpose of the section 2(11) definition of “supervisor” is to exclude from coverage of the Act “individuals whose fundamental alignment is with management”, and the discussion of the Oakwood cases above demonstrates that these cases respect this principle. With regard to the need to avoid an expansive interpretation of “supervisor” in order not to exclude “large numbers of workers” from the bargaining unit, the Government indicates that there is no evidence that the decisions in the Oakwood cases have changed the law so that workers are improperly labelled as “supervisors” under the NLRA. There is no evidence that the decisions have caused “large numbers of workers” to lose their right to organize or bargain collectively.
80. 841. Similarly, there is no evidence to support the allegations that the Board’s pronouncement in the Oakwood cases is so broad as to exclude a “substantial proportion” of a union’s membership and that the decisions have led to wholesale changes in worker status aimed at undermining union organizing efforts. Once again, in Oakwood, 12 charge nurses were deemed supervisors out of 181 RNs employed at the facility. No employees were deemed outside the bargaining unit or the scope of the NLRA in Croft Metals or Golden Crest Healthcare.
81. 842. With regard to the principle relating to the right of supervisors to form and join trade unions and to bargain collectively, which is outside the scope of the complaint as defined by the complainant, the Government indicates nonetheless that the US Constitution guarantees workers, regardless of supervisory status, freedom of association and the right to organize. The NLRA similarly endorses the notion that supervisors enjoy the freedom of association. See 29 USC 164(a) (stating that “[n]othing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization”). The US Supreme Court has recognized that supervisors can form unions and engage in collective bargaining. See NLRB v. News Syndicate Company, 365 US 695 (1961).
82. 843. In conclusion, the Government states that the complainant has failed to support its assertions. The Board’s Oakwood decisions do not conflict with ILO principles of freedom of association, the right to organize, or collective bargaining. The Oakwood cases illustrate reasonable application of the law based on the specific facts of each case. These decisions, and the relevant cases that have followed, have not resulted in the alleged dramatic loss for workers of their right to organize or bargain collectively or in workers being improperly classified as supervisors. The complainant’s predictions of dire limitations on the rights of individual workers as a result of the Board’s Oakwood decisions, based to some extent on views expressed before the decisions were issued, have simply not come to pass. Nor do the remaining assertions withstand a fair review of the application of the law. While it is unclear how the ever-changing workplace will affect the evolution of the NLRA’s interpretation, it is clear that the Oakwood definitions provide for reasonable consideration of fact-dependent situations while providing appropriate protections of worker rights.
83. 844. In fact, in response to the Oakwood cases, in an April 2007 memorandum, the NLRB General Counsel reminded the NLRB regional offices that:
84. … [t]he 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. 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. A “paper showing” alone – job titles, descriptions, or evaluation forms – is insufficient. 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. 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.
85. 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. Accordingly, as the assertions underlying the complaint are unsupported and in many cases inaccurate, the remedies requested by the complainant are not appropriate or necessary.
86. 845. The Government attaches certain observations made by the United States Council for International Business and the United States Chamber of Commerce independently of the US Government and on their own initiative – as indicated by the Government. The observations aim to demonstrate that the complaint is unfounded for the following reasons:
87. – The Committee lacks jurisdiction under the principles of international law to apply the elements of Conventions Nos 87 and 98 to the United States which has not ratified either Convention.
88. – The United States honours the principle of freedom of association and the NLRB decisions that are subject to the complaint do nothing to restrict that freedom.
89. – Even under the existing freedom of association principles, as elaborated by the Committee, the NLRB decisions further the principle of freedom of association in that they serve to define when an employee’s interests genuinely represent the interests of an employer. Through the NLRB’s dissection of the authority to assign, responsibly direct and its analysis of the use of independent judgement in each of the three Oakwood cases, the NLRB was looking for only those situations in which employees genuinely represented the interests of employers in conformity with freedom of association principles; for example, the NLRB found evidence of supervisory authority to assign only where the assignment was made within the supervisor’s sole discretion, and was based upon the needs of the employer and the qualifications of the employees assigned; in other words, the individual is deemed to be acting in the interests of the employer because he/she was creating the criteria for assignment. The decision furthers sound labour relations policy as well, because it addresses and correctly resolves the inherent conflict of interest created when workers and those who legitimately supervise them are part of the same union.
90. – The complainant lacks any empirical evidence to support its arguments that the NLRB decisions have had the effect of denying numerous employees the right to organize a union, and in fact there is no evidence that any non-supervisory employee has been denied their representational rights as a result of the decisions. The complainant relies upon anecdotal evidence and supposition to substantiate its case to the Committee. It cites a report of the Economic Policy Institute and a law firm publication which had been produced before the NLRB decision in Oakwood was issued and therefore were based on conjecture about the expected outcome of this decision and not on the actual analysis of the case; moreover, marketing material by law firms is hardly evidence of an adverse impact of a decision on the rights of employees. Indeed, in an informal survey of management law firms conducted by the US Chamber of Commerce about the extent to which any law firm clients had reclassified workers as supervisors in light of the NLRB’s decision in Oakwood, not a single firm reported such a case. Moreover, reference to news articles and newspaper editorials is not evidence of the actual impact of a law on the rights of workers. The fact is that in the year since the Oakwood trilogy, there has not been any significant change in the United States in terms of whether workers are classified as supervisory. Thus, the complainant has failed to present a credible argument that the principle of freedom of association is not honoured in the United States.

C. The Committee’s conclusions

1. 846. The Committee notes that the present case concerns allegations that, in three recent decisions, the NLRB sets out a new expanded interpretation of the definition of “supervisor” so as to exclude large categories of workers from the protection of the right to organize and bargain collectively under the NLRA, with severe repercussions on tens of thousands of workers who had previously been covered by the NLRA.
2. 847. In the first place, noting that the Government reiterates its views on the obligations pertaining to it with regard to freedom of association, the Committee recalls as it had done when examining Cases Nos 2227 and 2460 [332nd Report, para. 600 and 344th Report, para. 985], that since its creation in 1951, it has been given the task to examine complaints alleging violations of freedom of association whether or not the country concerned has ratified the relevant ILO Conventions. Its mandate is not linked to the 1998 ILO Declaration – which has its own built-in follow-up mechanisms – but rather stems directly from the fundamental aims and purposes set out in the ILO Constitution. The Committee also recalls in this respect that when a State decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association. The ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 15 and 17].
3. 848. Turning to the case at hand, the Committee notes by way of background, that under the NLRA, employees are deemed to be “supervisors” and thereby excluded from protection under the Act if they have “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 judgement” (section 2(11) of the NLRA). In the process of applying this definition to specific cases over the years, the NLRB, which is the federal agency with primary responsibility for interpreting and enforcing the NLRA has, in principle, exercised caution “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” (Chevron Shipping Co., 317, NLRB, 379, 381). However, on two occasions involving the health-care industry, the Supreme Court found that the NLRB had adopted an overly narrow construction of section 2(11) which was inconsistent with the letter and spirit of the NLRA. As noted by the complainant, one of these occasions was the Kentucky River decision in which the Supreme Court reversed the NLRB’s decision that charge nurses who oversaw the work of lower-ranking nurses and nurses’ aides but who lacked disciplinary authority over them, were not supervisors. This decision largely set the stage for the three NLRB decisions which are the subject of the present complaint.
4. 849. The Committee notes from the complainant’s allegations that in the leading decision, which is the subject of this complaint (Oakwood Healthcare Inc.), the NLRB reversed a decision by a regional NLRB director in order to expand the definition of “supervisor” and therefore exclude certain categories of workers like “charge nurses” from the NLRA provisions which guarantee freedom of association rights. The Committee notes in particular from the complainant’s allegations that, according to the initial decision of the NLRB regional director, there is “no evidence” that charge nurses “have independent authority with respect to the hire, promotion, demotion, lay-off, recall, reward or discharge of employees” and therefore they do not qualify as “statutory supervisors”. However, according to the final decision of the NLRB, charge nurses fall under the definition of supervisor found in section 2(11) of the NLRA because the terms “assign” and “responsibly to direct” apply to them; the term assign is not confined to non-transitory assignments, e.g. assignment to a particular job, which would have a significant impact on an employee’s terms of employment, but rather refers “to the act of 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 overall duties, i.e. tasks, to an employee” (Oakwood Healthcare Inc., op. cit., page 4). According to the complainant, in the health-care context, this would include “assign[ing] nurses and aides to particular patients” even if such assignment is only for a single shift. The NLRB also found that the term “responsibly to direct” means that “[i]f a person on the shop floor has ‘men under him,’ and if that person decides ‘what job shall be undertaken next or who shall do it,’ that person is a supervisor, provided that the direction is both ‘responsible’ … and carried out with independent judgement” (Oakwood Healthcare Inc., op. cit., page 6). The NLRB recalled that the inclusion of this term in section 2(11) of the NLRA was designed to ensure that the statutory exemption of section 2(11) encompassed those individuals who exercise basic supervision but lack the authority or opportunity to carry out any of the other statutory supervisory functions, e.g. where promotional, disciplinary and similar functions are handled by a centralized human resources department.
5. 850. The Committee further notes that in the Golden Crest Healthcare Center and Croft Metal Inc., the NLRB – while finding that in the specific circumstances of the case and the evidence presented, the workers in question did not qualify as “supervisors” – further elaborated on the nature of tasks that might be considered as responsibly directing by referring to such acts as correcting a nursing aide if the latter is not using proper procedures in giving a resident a bath and directing aides in performing certain tasks like clipping residents’ toenails, and fingernails, emptying catheters or changing an incontinent resident, or for workers in a factory, tasks like telling employees what to load first on a truck or what jobs to run first on a line to ensure that orders are filled and production completed in a timely manner.
6. 851. Moreover, the Committee notes that, according to the complainant, an employee need not possess these minor forms of authority on a full-time basis but rather on a “regular and substantial” basis, that is to say, for 10–15 per cent of the employee’s work time. Thus, according to the complainant, a group of ten nurses each of whom rotates into a charge nurse position once every ten days, can all be excluded from the protection of the NLRA as supervisors.
7. 852. The Committee further notes from the complaint’s allegations, that, under the newly interpreted definition of supervisor, employers can classify or reclassify as “supervisors” employees with minor or sporadic oversight over co-workers even when such oversight is far short of genuine managerial or supervisory authority. According to the complainant, this exclusion has enormous repercussions for those workers who have now become “supervisors” under the NLRA. The decision is especially ominous in light of job enrichment programmes purporting to empower employees by pushing authority down – an otherwise laudable goal. According to the dissenting opinion of two of the five board members in Oakwood Healthcare Inc., the decision created a new class of workers who have neither the genuine prerogatives of management nor the statutory rights of ordinary employees. According to the complainant, the decision is likely to remove thousands of workers from the NLRA’s protection, thus preventing them from unionizing, running for trade union office, engaging in collective bargaining and enjoying protection against acts of discrimination and employer interference, all this in violation of Articles 2 and 3 of Convention No. 87 and Articles 1, 2 and 4 of Convention No. 98. Finally, the Committee notes that, according to the complainant the Oakwood trilogy allows employers to engage unions in years of protracted, expensive litigation before the NLRB and the courts, examining in minute detail all the duties and tasks of each employee that the employer seeks to exclude from the bargaining unit as a “supervisor”, thus preventing unions from effectively engaging in collective bargaining.
8. 853. The Committee notes that the thrust of the reply, provided by the Government and the observations made independently of the Government by the Council for International Business and the Chamber of Commerce, is that the complainant has exaggerated the impact of the Oakwood trilogy and has failed to provide an appropriate picture of case law with regard to supervisory employees. For supervisory status to be obtained, any of the 12 supervisory functions listed in the NLRA definition of “supervisor” must be accompanied by the exercise of “independent judgement” and the burden of proving that such status is applicable falls on the employer. Thus, even though employees may be found to qualify as supervisors under one of the 12 criteria set out in section 2(11) of the NLRA, in particular, under the terms “assign” and “responsibly direct”, the employer must also prove that they act with “independent judgement” to obtain their exclusion from the bargaining unit, and more generally from the freedom of association rights guaranteed under the NLRA. The need to fulfil a combination of criteria operates as an adequate safeguard to ensure that large categories of workers are not unnecessarily excluded. Indeed, the Government emphasises that only 12 out of 181 registered nurses were found to qualify as supervisors in Oakwood Inc. while no employee was found to qualify in Golden Crest Healthcare Center and Croft Metal Inc. Moreover, a review of all the post-Oakwood decisions addressing the issue of supervisory status under the NLRA reveals virtually no cases where workers were found to be outside a bargaining unit based on the definitions elaborated in Oakwood. An informal survey of management law firms conducted by the US Chamber of Commerce about the extent to which any law firm clients had reclassified workers as supervisors in light of the NLRB’s decision in Oakwood, did not reveal any such cases. Finally, a memorandum of the NLRB General Counsel, issued in response to the Oakwood cases in April 2007, makes it clear that the evidentiary burden on the employer is “significant and substantial”. The cases themselves illustrate the scope of evidence, both testimonial and documentary, that the NLRB considers and the degree of scrutiny that the NLRB exercises in applying the legal standard to the facts of a case, a process which is “heavily fact-dependent”.
9. 854. The Committee recalls that all workers without distinction whatsoever, including without discrimination in regard to occupation, should have the right to establish and join organizations of their own choosing, engage through these organizations in collective bargaining and enjoy effective protection against acts of anti-union discrimination and employer interference [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 216, 770, 855 and 881]. As regards provisions which prohibit supervisory employees from joining workers’ organizations, the Committee has taken the view that the expression “supervisors” should be limited to cover only those persons who genuinely represent the interests of employers [see Digest, op. cit., para. 248]. The Committee has previously recognized that limiting the definition of managerial staff to persons who have the authority to appoint or dismiss is sufficiently restrictive to meet the condition that these categories of staff are not defined too broadly, and that a reference in the definition of managerial staff to the exercise of disciplinary control over workers could give rise to an expansive interpretation which would exclude large numbers of workers from workers’ rights [see Digest, op. cit., paras 249 and 250]. While taking due note of the Government’s indication that for supervisory status to be obtained, any of the 12 supervisory functions listed in the NLRA definition of “supervisor” must be accompanied by the exercise of “independent judgement”, the Committee also notes that certain situations found by the NLRB interpretation in the Oakwood trilogy to involve authority to “assign” or “responsibly direct” appear to give rise to an overly wide definition of supervisory staff that would go beyond freedom of association principles.
10. 855. Observing that the impact of the definition of “supervisor” in the Oakwood trilogy is still unclear, the Committee also notes the serious concerns raised by the complainant to the effect that this definition might lead to the exclusion of wide categories of workers from protection of their freedom of association rights, and to a clogging of the representation and collective bargaining process through an increase in appeals filed by employers with a view to challenging the status of employees in bargaining units.
11. 856. In light of the above, the Committee requests the Government to take all necessary steps, in consultation with the social partners, to ensure that the exclusion that may be made of supervisory staff under the NLRA is limited to those workers genuinely representing the interests of employers. The Committee requests to be kept informed of progress made in this respect.
12. 857. The Committee also requests the Government to keep it informed of the impact of the Oakwood trilogy, on the one hand with regard to future decisions applying the Oakwood interpretation as to what constitutes authority to “assign” or “responsibly direct”, and on the other hand, with regard to the concerns raised by the complainant on possible clogging of the representation and collective bargaining process through an increase in appeals filed by employers with a view to challenging the status of employees in bargaining units.