Catherine L. Fisk, Supervisors in a World of Flat Hierarchies, 64 Hastings L.J. 1403 (2013).
Under the National Labor Relations Act (“NLRA”), employees who are supervisors do not have the rights to join or assist labor unions or engage in other concerted activities for mutual aid and protection. The federal courts and the National Labor Relations Board (“NLRB”) have longstanding disagreements between and among them over how much authority over what types of working conditions is necessary to render one a supervisor. Recent cases reach conflicting results over issues such as whether nurses who can report co-workers for disciplinary infractions or can direct other employees to perform certain tasks are statutory supervisors who exercise independent judgment. The Supreme Court has twice rejected the NLRB’s efforts to clarify the law by narrowing the breadth of vague statutory terms defining supervisors. Because the statutory language invites the meaning of supervisor to be fact dependent and tethered closely to the policy bases for protecting employees’ rights to unionize and for excluding supervisors from the protection of those rights, deference to the Board’s judgment in line drawing is important. As the Supreme Court prepares to resolve a circuit split over the definition of supervisor under Title VII, it is particularly important to remember that, although the NLRB and the Equal Employment Opportunity Commission (“EEOC”) have adopted similar tests under the two different statutes, the policies underlying the legal definition of supervisor are dramatically different and call for a broad definition of supervisor for Title VII and a narrow definition of supervisor under the NLRA.