17. STATUTORY EXCLUSIONS 

In defining “employees,” Section 2(3) of the Act specifically excludes agricultural laborers, 

domestic service employees, individuals employed by their parent or spouse, independent

contractors, supervisors, individuals employed by employers subject to the Railway Labor Act,

and employees of any other person who is not an employer within the meaning of the statutory 

definition. 

We consider these statutory exclusions in the order in which they appear in Section 2(3). 

17-100 Agricultural Employees 

177-2484-1200 et seq. 

460-7550-1200 

Annually, since July 1946, Congress has added to the Board’s appropriation a rider which in

effect directs the Board to be guided by the definition set forth in Section 3(f) of the Fair Labor 

Standards Act in determining whether an employee is an agricultural laborer within the meaning 

of Section 2(3) of the National Labor Relations Act. 

The Board has frequently stated that its policy is to consider, whenever possible, the 

interpretation of Section 3(f) adopted by the Department of Labor, which is charged with the

responsibility for administering the Fair Labor Standards Act. See, for example, Bayside

Enterprises v. NLRB, 429 U.S. 298 (1977); Davis Grain Corp., 203 NLRB 319 (1973); Jack

Frost, Inc., 201 NLRB 659 (1973); CPA Trucking Agency, 185 NLRB 452 (1970); D’Arrigo

Bros. Co. of California, 171 NLRB 22 (1968); Samuel B. Gass, 154 NLRB 728 (1965); Bodine

Produce Co., 147 NLRB 832 (1964); Imperial Garden Growers, 91 NLRB 1034 (1950). 

Thus, in Jack Frost, supra, the Board referred to Section 3(f) of the Fair Labor Standards Act

which reads, in pertinent part, as follows: 

[A]griculture includes farming in all its branches and among other things includes . . . the 

production, cultivation, growing and harvesting of any agricultural . . . commodities . . . and 

any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with 

such farming operations, including preparation for market, delivery to storage or to market

or to carriers for transportation to market. 

As the truckdrivers and egg processing plant employees involved in this case were not engaged in 

direct farming operations of the type enumerated in the primary definition of agriculture, the 

question was whether they were engaged in activities included in the secondary definition of that 

term (see Farmers Reservoir Irrigation Co. v. McComb, Wage & Hour Administrator, 337 U.S. 

755, 762 (1949)). The Board then relied on a Labor Department Interpretive Bulletin (see 29 CFR 

§ 780.135), indicating that when processors enter into contractual agreements with independent 

farmers whereby the farmers agree to raise poultry to marketable size and the processor supplies 

the baby chicks, furnishes the required feed, and retains title to the chickens until they are sold,

the activities of the independent farmers and their employees in raising the poultry are clearly

exempt, but the activities of the processors are not considered “raising of poultry” and their

employees are therefore not exempt on that ground. The Board’s position was affirmed by the 

Supreme Court in Bayside Enterprises, supra. See also Holly Farms Corp. v. NLRB, 116 S.Ct. 

1396 (1996).

The burden of proving that individuals are exempt as agricultural laborers rests on the party 

asserting the exemption. Agrigeneral L.P., 325 NLRB 972 (1998). And the question of employee 

status is not decided on an employerwide basis, but on a classification by classification analysis.

Id. at fn. 1. 

A thorough discussion of several of the criteria used by the Board in determining whether or 

not employees are “agricultural laborers” may be found in Bodine Produce Co., supra. These

depend in major measure on the nature of the employer’s business. 

197
198 STATUTORY EXCLUSIONS

One criterion is whether the operation is an established part of agriculture, is subordinate to

the farming aspect involved, and does not amount to an independent business. See Labor

Department Interpretive Bulletin, 29 CFR § 780; Jack Frost, Inc. and Bayside Enterprises, supra. 

Where the employer produced and supplied the feed which enabled the production of the 

poultry and then processed and marketed the product, with the agricultural function of tending 

and feeding the live birds performed by the independent growers intervening in the chain, the 

agricultural phase of the entire operation was an incident of the employer’s nonagricultural

activities rather than the converse. CPA Trucking Agency, supra. See also Draper Valley Farms, 

307 NLRB 1440 (1992), finding that chicken catchers are not agricultural when working on the 

farms of independent growers. The Supreme Court upheld as reasonable, the Board’s conclusion 

that “livehaul crews” are employees. The Court found that the work of these crews was tied to the 

employers processing operations rather than incidental to farming operations. Holly Farms Corp. 

v. NLRB, supra. 

Another criterion is whether the employer confines the operation in question to his own 

produce. 

Where the employer was engaged in the production, processing, and wholesaling of eggs, had

been purchasing about half of its eggs from outside sources, and could not substantiate his claim

that new production facilities would be able to replace the outside sources, the Board could not 

find that the employer came within the terms of the agricultural exemption. Cherry Lane Farms, 

190 NLRB 299 (1971). See also CPA Trucking Agency, supra; D’Arrigo Bros. Co. of California, 

supra. More recently, the Board has declined to set a standard based on the percentage coming 

from outside sources. Rather the Board will assert jurisdiction “if any amount of farm

commodities other than those of the employer-farmer are regularly handled by the employees in 

question.” Camsco Produce Co., 297 NLRB 905 (1990). See also Campbells Fresh, 298 NLRB 

432 (1990); Cal-Maine Farms, 307 NLRB 450 (1992); and Agrigeneral L.P., 325 NLRB 972

(1998). 

A different test applies when considering whether workers who perform agricultural and 

nonagricultural work are exempted from the definition of “employee.” In these cases the test is 

substantiality, not regularity. Thus, where cutter packers spent 50 percent of their time

performing nonagricultural work, they were considered to be employees because the amount of 

nonagricultural work was substantial. Produce Magic, Inc., 311 NLRB 1277 (1993). But in 

Pictsweet Mushroom Form, 329 NLRB 852 (1999), the Board denied review of a Regional 

Director finding that mushroom slicers were agricultural employees. In doing so, the Director

relied on the fact that all the other workers were agricultural laborers, that the slicing did not

essentially change the natural state of the mushroom and that the slicers were only a small part of

the employers operation. 

Other cases holding that employees were not exempt from the coverage of the Act: Mario

Saikhon, Inc., 278 NLRB 1289 (1986) (field packing employees); Davis Grain Corp., 203 NLRB 

319 (1973) (grain elevator employees); Batley-Janss Enterprises, 195 NLRB 310 (1972) (drivers 

of freshly cut alfalfa); John Bagwell Farms, 192 NLRB 547 (1971) (feed mill employees). 

A Fifth Circuit decision rejected a distinction between workers on large mechanized farms

and those employed on family farms. The court held that both groups are excluded from the Act’s 

coverage because the agricultural exemption “is not measured by the magnitude of [the farmer’s] 

planting nor in the prolificacy of his harvest.” Food & Commercial Workers Local 300 v. 

McCulloch, 428 F.2d 396, 399 (5th Cir. 1970). 

Adverting again to the legislative rider to the Board’s appropriation act, mention should be

made of the fact that annually, since 1954, Congress has added in the definition of agricultural 

laborers, and thus exempts from the Board’s jurisdiction “employees engaged in the maintenance

and operation of ditches, canals, reservoirs, and waterways when maintained or operated on a

mutual, nonprofit basis and at least 95 percent of the water stored or supplied thereby is used for 

farming purposes.” 
STATUTORY EXCLUSIONS 199

Thus, where employees were found by the Board to have engaged solely in the functions here

described and more than 95 percent of the water stored or supplied by their employer was used 

for farming purposes, the Board found that it was precluded from asserting jurisdiction by reason, 

inter alia, of the fact that these employees were agricultural employees as defined in the rider to 

the Board’s current appropriation act. Minidoka Irrigation District, 175 NLRB 880 (1969). See 

also Truckee-Carson Irrigation District, 164 NLRB 1176 (1967); and Sutter Mutual Water Co., 

160 NLRB 1139 (1966). 

Similarly, employees engaged in the revegetation of mined land as a part of a reclamation 

project, are exempt from Board jurisdiction. Drummond Coal Co., 249 NLRB 1017 (1980). 

17-200 Domestics 

177-2484-2500 

Individuals who are in the domestic service of any family or person at his home are excluded 

from the coverage of the Act. See the definition of “employees” in Section 2(3). Individuals 

employed by a business rather than a family are employees. The Board’s “focus is on the

principals to whom the employer-employee relationship in fact runs and not merely to the

undisputely ‘domestic’ nature of the services rendered.” Ankh Services, 243 NLRB 478, 480 

(1979). See also NLRB v. Imperial House Condominiums, 831 F.2d 999 (11th Cir. 1987). 

17-300 Individuals Employed by Their Parent or Spouse 

177-2484-3700 

The problems encountered by the Board under this heading go beyond problems with the 

statutory language. The question is in some cases one of Board policy underlying the unit

treatment of “relatives of management” when corporate ownership is involved. This is treated

specifically in the chapter on Categories Governed by Board Policy, infra. 

17-400 Independent Contractors 

177-2414 

177-2484-5000 

460-7550-6200 

Section 2(3) of the Act excludes from the definition of “employee,” as spelled out in that 

section, “any individual having the status of an independent contractor.” 

In meeting this provision, Congress did not define the status, but intended that in each case 

the issue should be determined by the application of general agency principles. NLRB v. United

Insurance Co., 390 U.S. 254 (1968). The party asserting independent contractor status bear the 

burden of establishing that status. Community Bus Lines, 341 NLRB No. 61 (2004). 

Under agency principles, each case is determined on its own facts. Frito-Lay, Inc. v. NLRB, 

385 F.2d 180 (7th Cir. 1967). 

In determining whether one acting for another is a servant or an independent contractor, the

following matters of fact, among others, are considered: 

(a) the extent of control which . . . the master may exercise over the details of work; 

(b) whether or not the one employed is engaged in a distinct occupation or business; 

(c) the kind of occupation, with reference to whether, in the locality, the work is usually 

done under the direction of the employer or by a specialist without supervision; 

(d) the skill required in the . . . occupation; 

(e) whether the employer or top workman supplies the instrumentalities, tools, and the place 

of work for the person doing the work; 

(f) the length of time for which the person is employed; 

(g) the method of payment, whether by the time or by the job; 

(h) whether or not the work is part of the regular business of the employer; 
200 STATUTORY EXCLUSIONS

(i) whether or not the parties believe they are creating the relation of master and servant; and 

(j) whether the principal is or is not in business. [Restatement of the Law of 220 Agency 2d, 

pp. 485–486.] 

With respect to item (c) above—Community Custom—see Amerihealth Inc./Amerihealth 

HMO, 329 NLRB 870 (1999), holding physicians to be independent contractors. 

The major principle, regularly enunciated by the Board and the courts in this phase of the 

law, is that the appropriate test to apply in determining whether certain individuals are 

independent contractors (and not under the Act) or “employees” (and therefore under the Act) is

the common law of agency right-to-control test. NLRB v. United Insurance Co., supra; Ace Doran

Hauling Co. v. NLRB, 462 F.2d 190 (6th Cir. 1972); Gary Enterprises, 300 NLRB 1111 (1990); 

Portage Transfer Co., 204 NLRB 787 (1973); Associated General Contractors, 201 NLRB 311

(1973). 

Under this test, an employer-employee relationship exists when the employer reserves the 

right to control not only the ends to be achieved, but also the means to be used in achieving such 

ends. See for example Lakes Pilots Assn., 320 NLRB 168 (1995). On the other hand, when

control is reserved only as to the result sought, an independent contractor relationship exists. Gold

Medal Baking Co., 199 NLRB 895 (1972). 

The Board does not consider requirements imposed by the government to constitute employer

control; it is considered government control, Air Transit, 271 NLRB 1108, 1110 (1984), and Elite 

Limousine Plus, 324 NLRB 992 (1997). 

In Standard Oil Co., 230 NLRB 967, 968 (1977), the Board described the test: 

Among factors considered significant at common law in connection with the “right to 

control” test in determining whether an employment relationship exists are (1) whether

individuals perform functions that are an essential part of the Company’s normal operation 

or operate an independent business; (2) whether they have permanent working arrangement 

with the Company which will ordinarily continue as long as performance is satisfactory; (3)

whether they do business in the Company’s name with assistance and guidance from the

Company’s personnel and ordinarily sell only the Company’s products; (4) whether the 

agreement which contains the terms and conditions under which they operate is promulgated 

and changed unilaterally by the Company; (5) whether they account to the Company for the 

funds they collect under a regular reporting procedure prescribed by the Company; (6) 

whether particular skills are required for the operations subject to the contract; (7) whether 

they have proprietary interest in the work in which they are engaged; and, (8) whether they 

have the opportunity to make decisions which involve risks taken by the independent 

businessman which may result in profit or loss. 

The Board does not regard as determinative the fact that the written agreement defines the

relationship as one of “independent contractor” (National Freight, 153 NLRB 1536 (1965), and 

Big East Conference, 282 NLRB 335, 345 (1986)), or that the employer does not make payroll 

deductions and the drivers pay their own social security and other taxes (Miller Road Dairy, 135

NLRB 217, 220 (1962)), or that the drivers are free to solicit their own passengers in addition to

complying with the employer’s dispatch orders, or that the employer does not give the drivers 

written driving instructions (Southern Cab Corp., 159 NLRB 248 fn. 4 (1966)); Diamond Cab, 

164 NLRB 859 (1967)). In BKN, Inc., 333 NLRB 143 (2001), the Board found the freelance 

writers, designers and artists for a television production company to be employees noting 

extensive supervision by that company.

In any analysis of the cases presenting independent contractor issues, once the general rule

has been stated, its application can only be discussed in empiric terms for, as the Seventh Circuit, 

among others, has said, each case must be determined on its own facts (Frito-Lay, Inc. v. NLRB, 

supra at 188). In these circumstances, several illustrative cases will be considered here in the light

of the factual content in which they were decided. It may be helpful to divide our examples along 
STATUTORY EXCLUSIONS 201

the more typical industry lines. As the independent contractor issue arises with some degree of 

frequency in the trucking industry, we shall begin with that industry. 

Before doing so, note that the Board held oral argument on two independent contractor cases

and then found the pickup and delivery drivers in Roadway Package System, 326 NLRB 842

(1998), to be employees and the customer delivery drivers to be independent contractors in DialA-Mattress Operating Corp., 326 NLRB 884 (1998). In Argix Direct, Inc., 343 NLRB No. 108 

(2004), the Board found independent contractor status in a unit of truckdrivers on facts similar to

Dial-A-Mattress. 

17-410 Trucking Industry 

177-2484-5067 

The trucking industry has generated a large number of cases presenting the independent 

contractor issue. Because, as indicated, the determinations are so fact-based, little purpose is 

served by summarizing the facts of particular cases. Rather, we have listed below a series of cases

presenting independent contractor issues with different results. Among the factors considered by

the Board in reaching its decisions are: (1) right to reject loads; (2) right to perform hauling for 

other carriers; (3) right to determine work schedules; (4) obligations to pay for fuel and 

maintenance; and (5) requirements to run predetermined routes. 

Cases Finding Independent Contractor Status 

– Central Transport, 299 NLRB 5 (1990). 

– Precision Bulk Transport, 279 NLRB 437 (1986). 

– Don Bass Trucking, 275 NLRB 1172 (1985). 

– Austin Tupler Trucking, 261 NLRB 183 (1983). 

– C. C. Eastern, Inc., 309 NLRB 1070 (1992). 

– Diamond L Transportation, 310 NLRB 630 (1993). 

– Dial-A-Mattress Operating Corp., 326 NLRB 884 (1998). 

– – Argix Direct, Inc., 343 NLRB No. 108 (2004). 

– AAA Cab Services, Inc., 341 NLRB No. 57 (2004). 

– Pennsylvania Academy of the Fine Arts, 343 NLRB No. 93 (2004).

Cases Finding Employee Status 

– Corporate Express Delivery System, 332 NLRB 1522 (2000).

– Slay Transportation Co., Inc., 331 NLRB 1292 (2000).

– R. W. Bozel Transfer, 304 NLRB 200 (1991). 

– Roadway Package System, 288 NLRB 196 (1988). 

– North American Van Lines, 288 NLRB 38 (1988). 

– Redieh’s Interstate, 255 NLRB 1073 (1980). 

– Standard Oil Co., 230 NLRB 967 (1977). 

– Roadway Package System, Inc., 326 NLRB 842 (1998). 

– Metro-Taxicab Co., 341 NLRB No. 103 (2004). 

17-420 Newspaper Industry 

177-2484-5033-0133 

177-2484-5076 

177-8540-2700 

Persons in the “motor routemen” classification ordinarily delivered to single subscribers in

rural areas but also delivered in bulk to carriers and dealers. In holding them to be “employees,” 

the Board addressed itself to “the result to be accomplished,” i.e., the circulation and sale of 

newspapers, as well as the right to control the manner and means. Thus, it found that they must 

purchase the newspapers at the cost established by the employer and sell them at a price no higher 
202 STATUTORY EXCLUSIONS

than the published price in the area or territory defined and controlled by the employer; their risk 

of loss and capacity to draw on personal initiative to increase earnings were minimized

significantly by the extent of the employer’s practices and policies of preventing competition 

between the motor routemen, of accepting return for credit, of adjusting the wholesale rate, and of 

granting subsidies, apparently to compensate for added expenses, thus affecting their earnings; 

and the motor routemen had no proprietary interest in their routes. Beacon Journal Publishing 

Co., 188 NLRB 218 (1971). Compare Las Vegas Review Journal, 223 NLRB 744 (1976). 

In a case involving carrier boys, the Board found that their opportunities for profits were 

limited by the company’s regulation and control of their work, having, to a large extent, reserved 

the right to control the manner and means, in addition to the result, of their work. They were 

therefore held to be “employees.” A. S. Abell Co., 185 NLRB 144 (1970). St. Louis PostDispatch, 205 NLRB 316 (1973). 

For other “employee” findings in the newspaper industry, see Vindicator Printing Co., 146 

NLRB 871 (1964) (contract distributors engaged in the sale and distribution of newspapers to 

newstands and carriers); Sacramento Union, 160 NLRB 1515 (1966) (district dealers); CitizenNews Co., 97 NLRB 428 (1951) (carrier boys); News Syndicate Co., 164 NLRB 422 (1967)

(franchised dealers); El Mundo, Inc., 167 NLRB 760 (1967) (newspaper dealers who, under

contract, distribute and sell the employer’s newspapers to stores, newsstands, and newsboys, and 

by means of vending machines); Herald Co., 181 NLRB 421 (1970), enfd. 444 F.2d 430 (2d Cir. 

1971) (distributors); News-Journal Co., 185 NLRB 158 (1970), enfd. 447 F.2d 65 (3d Cir. 1971);

Long Beach Press-Telegram, 305 NLRB 412 (1991) (area managers and district advisers); 

Evening News, 308 NLRB 563 (1992); and North Shore Weeklies, Inc., 317 NLRB 1128 (1995) 

(comparing press supervisors and press operators). 

In Hearst Corp., 174 NLRB 934 (1969), distributors were found to be supervisors rather than

either “employees” or “independent contractors.” The fact that several news deliverers threatened 

suit to enforce “their individual contractor status” was held insufficient, when weighed against

other factors, to change the finding that they were “employees” and not “independent

contractors.” News-Journal Co., supra. On the other hand, in Denver Post, 196 NLRB 1162, 1164

(1972), the Board held that “distributors” engaged principally in the delivery of newspapers to 

subscribers, either directly or through carriers, were independent contractors. In reaching this 

determination, it applied, as in the other cases, the “right-of-control” test, and relied on the 

following factors as outbalancing those which might have tended toward a contrary conclusion: 

. . . supervisors of the Company in recent years have spent little time with distributors and

then only as observers, whether or how they perform their distribution is not monitored by 

the Company; suggestions and criticism of distributors by the Company are solely to 

stimulate sales of its newspapers; extension of credit to subscribers is determined solely by 

the distributor, who sustains any loss which may result; the route, dress, time off, and 

substitutes or helpers or their pay, are not regulated by the Post; the distributor determines 

where the Company will drop off their papers; the method of a distributor’s credit bonding 

to secure payment to the Company is subject to negotiations, as is the method of the credit

bonding of his carriers; distributors determine whom to put on as carrier boys and motor 

routemen and designate their territory and the price which they must pay for the newspaper;

complaints are serviced by the distributors and action concerning stops and starts must be

initiated by distributors; the Company does not accept returns or reimburse the distributors

for damaged or lost newspapers; their income is based on the difference between the price at 

which they buy, plus labor costs, and the price at which they sell to customers or carriers;

the contract of the parties is not observed in practice; the Company’s price to distributor is 

subject to negotiations; distributors own, operate, and maintain their own vehicles, which 

have no markings identifying them with the Company; and they may carry anything they 

wish, including rival newspapers. Fort Wayne Newspapers, 263 NLRB 854 (1982). 
STATUTORY EXCLUSIONS 203

17-430 Taxi Industry 

177-2482-5067-6000 

Cab drivers’ status presents a frequent occasion for litigation of the independent contractor

issue. 

As with any determination of this issue, the right to control test will apply. The Board has, 

however, been inclined to find independent contractor status where the cab drivers lease their

own cabs and there is no relationship between their base fees and the fares generated. For cases

holding independent contractor status see City Cab of Orlando, 285 NLRB 1191 (1987); Air

Transit, 271 NLRB 1108 (1984). 

In Metropolitan Taxicab Board of Trade, Inc., 342 NLRB No. 130 (2004), an administrative 

law judge found most of the cab drivers in New York are independent contractors. In doing so,

he recounts the history of the conversion of these drivers from employees to independent 

contractors. See also AAA Cab Services, Inc., 341 NLRB No. 57 (2004), finding independent 

contractors status and Metro-Taxicab Co., 341 NLRB No. 103 (2004), find employee status. 

In Yellow Taxi of Minneapolis, 262 NLRB 702 (1982), in which the Board, sua sponte, 

reconsidered its original decision that the drivers were employees and reached the same result

notwithstanding adverse decisions by the courts in other factually similar cases. 

The Board was reversed by the court in Suburban Yellow Taxi Co. v. NLRB, 721 F.2d 366

(D.C. Cir. 1983). The Board later distinguished Suburban Yellow Taxi and a number of other taxi 

cases in which the courts refused to enforce Board orders. See Yellow Cab of Quincy, 312 NLRB 

142 (1993). 

In Stamford Taxi, Inc., 332 NLRB 1372 (2000), the Board found taxi drivers to be employees 

based on a Roadway Package System, 326 NLRB 842 (1998), analyses. 

For an analysis of limousine drivers see Elite Limousine Plus, 324 NLRB 992 (1997). 

17-440 Other Industries 

177-2484-5033-0167 

177-2484-5067 

Where American Oil Company leased a service station to a lessee, and the lease contained no 

requirements or limitations on the method or manner of operating the station; the lessee being 

free to set his own hours, hire and fire whomever he pleased, set his employees’ wage rates, and, 

except for the sale of American Oil gasoline, sell either its products or those of its competitors at 

his own prices, the lessee was found to be an independent contractor. The Board did not regard a 

“Financial Assistance Plan” available to the lessee as a sufficient basis for changing the result.

American Oil Co., 188 NLRB 438 (1971). 

A franchisee was held to be an independent contractor in the factual context of the case. 

Citing Clark Oil & Refining Corp., 129 NLRB 750 (1960), the Board pointed out that it has never 

held that the right to terminate a franchise agreement, standing alone, negates the existence of 

independent contractor status. Speedee 7-Eleven, 170 NLRB 1332 (1968). 

Where a photographer used his own equipment, paid for his own photographic supplies,

received payment only for each picture accepted for publication, stood the loss for each picture 

not accepted, sold copies of pictures to any customers other than the employer’s competitors, he

was found to be an independent contractor, particularly since the employer did not control the

manner or means by which he was to perform the work. La Prensa, Inc., 131 NLRB 527 (1961).

See also Young & Rubicam International, 226 NLRB 1271 (1976). 

In Pennsylvania Academy of the Fine Arts, 343 NLRB No. 93 (2004), the Board found that 

artists models were independent contractors. In doing so the Board panel majority relied on the 

facts that these models could choose the classes before which they will model, that they were paid

by the class and not by the hour, that they supply their own robes and that they can work for other 
204 STATUTORY EXCLUSIONS

schools or independent artists. The Board also noted the high degree of skill of the models in

striking and holding a pose.

On the other hand, where contract salesmen at a dairy products plant were used exclusively in

the company’s service, and the company built up their routes, limited the prices they could 

charge, made charge accounts subject to its approval, and required daily reports and cash 

settlements each day of the day’s receipts, the salesmen were found to be employees. Albert Lea 

Creamery Assn., 119 NLRB 817 (1957). 

Consideration was accorded the fact that the employers “reserved the right to control the 

manner and means as well as indirectly the result of the work performed” in finding drivers

“employees” rather than independent contractors. Okeh Caterers, 179 NLRB 535 (1969). 

A factor in arriving at a finding that “auto shuttlers,” also known as “car transporters,” were 

not independent contractors was that no opportunity existed for the individuals in question “to

make business decisions affecting their profit or loss.” Avis Rent-A-Car System, 173 NLRB 1366

(1968). See also Avis Rent-A-Car System, 173 NLRB 1368 (1968); A. Paladini, Inc., 168 NLRB 

952 (1967). 

In Lakes Pilots Assn., 320 NLRB 168 (1995), the Board found that pilots in training—

applicant maritime pilots—were employees not independent contractors. The Board noted that the

employer retained the right to control the manner in which these pilots performed their services.

See also Cardinal McCloskey Services, 298 NLRB 434 (1992), in which the Board found day 

care providers to be independent contractors. Compare People Care, Inc., 311 NLRB 1075

(1993), finding the providers there to be employees. 

In Ameri Health HMO, 326 NLRB 509 (1998), the Board remanded for further proceedings 

the question of whether physicians are employees of a health maintenance organization. 

17-500 Supervisors 

177-8501 

177-8540 

177-8580 

Author’s Note: In September 2003, the Board accepted briefs in a series of cases 

implicating the Supreme Court’s decision in NLRB v. Kentucky River Community Care, 532 

U.S. 706 (2001). Those cases, Oakwood Healthcare Inc., Beverly Enterprises-Minnesota, Inc. 

d/b/a Golden Crest Healthcare Center; and Craft Metals, Inc., were pending decision at the 

time of publication of this edition of the text. The briefs filed in these cases are on the 

Board’s website www.nlrb.gov. 

Supervisory status under the Act depends on whether an individual possesses authority to act

in the interest of the employer in the matters and in the manner specified in Section 2(11) of the 

Act, which defines the term “supervisor” as: 

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. 

In discussing the above statutory definition, the Sixth Circuit declared that Section 2(11) is to

be interpreted in the disjunctive and that “the possession of any one of the authorities listed in

[that section] places the employee invested with this authority in the supervisory class.” Ohio

Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949), cert. denied 338 U.S. 899 (1949). See also 

American Commercial Barge Line Co., 337 NLRB 1070 (2002) Mfg. Co., 169 F.2d 571 (6th Cir. 

1948), cert. denied 335 U.S. 908 (1948); Harborside Healthcare Inc., 330 NLRB 1334 (2000);
STATUTORY EXCLUSIONS 205

Pepsi-Cola Co., 327 NLRB 1062 (1998); Allen Services Co., 314 NLRB 1060 (1994); and Queen

Mary, 317 NLRB 1303 (1995). 

It is axiomatic, of course, that the existence of the power determines whether an individual is

an employee or a supervisor (see, for example, West Penn Power Co. v. NLRB, 337 F.2d 993, 996 

(3d Cir. 1964)), but the real task which confronts the Board is the difficult one of finding whether 

the supervisory power in fact exists, and this can only be ascertained as a result of a painstaking 

analysis of the facts in each case. In Hogan Mfg., 305 NLRB 861 (1991), the testing of welders as 

part of the hiring process was not considered to be an effective recommendation. 

Supervisory issues are among the most common in representation cases, and the Board 

volumes are replete with findings of both supervisory and nonsupervisory status in a veritable

myriad of factual situations, sometimes simple but more often complex. A number of factors are 

considered in resolving supervisory issues. These, of course, include the statutory requirements

described above. The problem, however, lies mainly in the application of these factors in order to 

ascertain from the relevant facts and circumstances whether or not the terms of the statutory 

definition are met. It is an individual’s duties not job title that determines status. Dole Fresh 

Vegetables, Inc., 339 NLRB 785 (2003). 

Supervisory status cannot be measured in individually distinct terms, nor can hard-and-fast 

rules be laid down. In each case, the differentiation must be made between the exercise of

independent judgment and the routine following of instructions, between effective 

recommendation and forceful suggestion, and between the appearance of supervision and 

supervision in fact. See, e.g., Chevron Shipping Co., 317 NLRB 379 (1995); J. C. Brock Corp., 

314 NLRB 157 (1994); Clark Machine Corp., 308 NLRB 555 (1992); McCollough

Environmental Services, 306 NLRB 565 (1992); and Quadrex Environmental Co., 308 NLRB 

101 (1992), all of which involved finding of no independent judgment. Compare Virginia Mfg. 

Co., 311 NLRB 992 (1993), and Allen Services Co., 314 NLRB 1060 (1994), supra. 

The burden of establishing supervisory status rests on the party asserting that status. NLRB v.

Kentucky River Community Care, 532 U.S. 706, 711–712 (2001); Benchmark Mechanical 

Contractors, Inc., 327 NLRB 829 (1999); Alois Box Co., Inc., 326 NLRB 1177 (1998), and

Youville Health Care Center, Inc., 326 NLRB 495 (1998). And, any lack of evidence is construed

against the party asserting supervisory status. Elmhurst Extended Care Facilities, 329 NLRB 535

fn. 8 (1999). Conclusionary statements without supporting evidence do not establish supervisory

authority. Volair Contractors, Inc., 341 NLRB No. 98 (2004). 

Listed below is a series of recent cases in which the Board found that the burden was not met.

Spentonbush/Red Star Cos., 319 NLRB 988 (1995) (tugboat captains), enf. denied 106 F.3d 484

(2d Cir. 1997); Northwest Florida Legal Services, 320 NLRB 92 (1995) (supervisory attorney);

K.G. Knitting Mills, 320 NLRB 374 (1995); Azusa Ranch Market, 321 NLRB 811 (1996) 

(department manager in grocery store); New Jersey Newspapers, 322 NLRB 394 (1996) 

(pressroom foremen); Pine Brook Care Center, 322 NLRB 740 (1996) (charge nurses); PECO

Energy Co., 322 NLRB 1074 (1997) (lead maintenance technicians at a public utility); Illinois

Veterans Home at Anna L.P., 323 NLRB 890 (1997) (registered nurses); and Chrome Deposit

Corp., 323 NLRB 961 (1997) (crew leaders). 

A discussion of criteria follows: 

17-501 Supervisory “Authority” as Defined in Section 2(11) 

177-8520 

177-8560 

Individuals who possess the authority spelled out in the statutory definition contained in 

Section 2(11) are, of course, “supervisors” and can be held to be supervisors even if the authority 

has not yet exercised. Fred Meyer Alaska, Inc., 334 NLRB 646 fn. 8 (2001). United States 

Gypsum Co., 93 NLRB 91 (1951), and Wasatch Oil Refining Co., 76 NLRB 417 fn. 17 (1948).
206 STATUTORY EXCLUSIONS

Accordingly, supervisory findings resulted where “news producers” at a television station,

among other responsibilities, assigned overtime (Westinghouse Broadcasting Co., 195 NLRB 339 

(1972)), or made work assignments (Westinghouse Broadcasting Co., 188 NLRB 157 (1971)); 

“strip supervisors” and “dispatchers” discharged drivers in a trucking operation for serious 

misconduct, which was one indication of their authority (Pennsylvania Truck Lines, 199 NLRB 

641 (1972)); an individual in a welding operation scheduled work, assigned it to employees, gave 

them orders, and had sole responsibility for the workload (Custom Bronze & Aluminum Corp., 

197 NLRB 397 (1972)); a personnel manager actively engaged in the hiring process (Lawson

Milk Co., 143 NLRB 916, 919–920 (1963)); an individual had the authority to grant time off and 

furlough employees during slack periods (Birmingham Fabricating Co., 140 NLRB 640, 642

(1963)); “shift leaders” had the responsibility for transmitting work orders and for seeing to it that

these orders were carried out (Little Rock Hardboard Co., 140 NLRB 264, 265 (1962)); a 

“working foreman” who, among other indicia of authority, granted employees time off (Western

Saw Mfrs., 155 NLRB 1323, 1329 fn. 11 (1965)); “line leaders” who had the authority to 

maintain discipline (Lee-Rowan Mfg. Co., 129 NLRB 980, 984 (1960)); department and line 

supervisors who have disciplinary authority and who could make effective hiring 

recommendations Venture Industries, 327 NLRB 918 (1999); licensed practical nurses who had 

disciplinary authority (Heartland of Beckley, 328 NLRB 1056 (1999)); and assistant supervisors 

whose evaluations led to automatic wage increases (Harbor City Volunteer Ambulance Squad, 

318 NLRB 764 (1995)). Compare Arizona Public Service, 310 NLRB 477 (1993). 

Nonsupervisory findings resulted in situations where a dentist's reassignment authority was a 

means of assuring compatibility. (Robert Greenspan, D.D.S., P.C., 318 NLRB 7 (1995)); where 

the authority to order intoxicated employees to leave was not disciplinary (Chevron Shipping, 

supra); where “associate architects” had no authority as statutorily defined, the firm principal

reserving for himself “the final determination on all architectural decisions” (Howard A. 

Friedman & Associates, 192 NLRB 919 (1971)); work assignments are routine in nature (Sears, 

Roebuck & Co., 292 NLRB 753, 754 (1989)); authority had not in fact been exercised (Northwest

Steel, 200 NLRB 108 (1972)); airport bus dispatchers were not required to exercise independent

judgment or test their own initiative (Greyhound Airport Services, 189 NLRB 291 (1971)); 

“district managers” employed by a newspaper publishing company possessed minimal discretion

(Suburban Newspaper Group, 195 NLRB 438 (1972)); telephone company “traffic supervisors” 

who, despite enlarged responsibilities and new title, nonetheless did not possess the kind of 

responsibility contemplated by Section 2(11) (Hawaiian Telephone Co., 186 NLRB 1 (1970)).

See also Blue Star Ready-Mix Concrete Corp., 305 NLRB 429 (1991), in which the Board held

that “batchers” employed by a concrete producer do not exercise independent judgment; and

Hogan Mfg., supra, testing welders was not authority to recommend hire. The presence or

absence of the exercise of independent judgment is an important factor weighed by the Board in

making its supervisory determinations. Sears, Roebuck & Co., 304 NLRB 193 (1991). 

Moreover, although an individual’s duties may include relaying to management complaints 

against other employees, also reports of inefficiency, if these are investigated independently by 

higher management, he is not a supervisor within the meaning of the statutory definition. PepsiCola Bottling Co., 154 NLRB 490, 493–494 (1965). Nor is he a supervisor if the control he 

exercises is merely that which is derived from job experience. Sanborn Telephone Co., 140

NLRB 512, 515 (1963). Similarly, the authority to evaluate is not a supervisory indicia if the 

evaluation does not affect employee status or tenure. Volair Contractors, Inc., 341 NLRB No. 98

(2004); Williamette Industries, 336 NLRB 743 (2001). Compare Trevella of Golden Valley, 330

NLRB 1377 (2000). 

Quality control work—inspecting and reporting the work of others—is not supervisory. Nor

is the testing of welds. Brown & Root, Inc., 314 NLRB 19, 21 fn. 6 (1994). Authority to issue 

instructions and minor orders based on greater job skills does not amount to supervisory 

authority, Byers Engineering, 324 NLRB 740 (1997). 
STATUTORY EXCLUSIONS 207

In an unfair labor practice case, the Board described the proper balancing of interests in

assessing supervisory authority. The case involved a series of disciplinary actions by the alleged

supervisor. The Board found that some of the incidents did not establish supervisory authority 

but concluded that one incident was sufficient to find supervisory status rejecting an argument 

that it was a sporadic exercise of authority. Biewer Wisconsin Sawmill, 312 NLRB 505 (1993). 

In a recent case the Board reversed prior precedent and found that distribution and system 

dispatchers in the utility industry are not supervisors. Mississippi Power & Light Co., 328 NLRB 

965 (1999), reversing Big Rivers Electric Corp., 266 NLRB 380 (1983). 

Section 2(11) requires that the alleged supervisor exercise authority “in the interest of the 

employer.” In Allstate Insurance Co., 332 NLRB 759 (2000), the Board found that the individual

in question had complete discretion whether to work alone or to have assistance. The Board

found that the essential components of the employers business were not affected by such a 

decision and therefore the individual was not exercising authority in the interest of the employer. 

17-502 Assignment/Responsible Direction/Independent Judgment 

177-8520 

177-8560 

Generally speaking, the Board uses the terms “responsible direction” and “independent

judgement” interchangeably. 

Employees who must and do use independent judgment in directing other employees are

supervisors within the meaning of Section 2(11). See, e.g., Sears, Roebuck & Co., supra. See also

DST Industries, 310 NLRB 957 (1993). Similarly, those who use independent judgment in 

effectively recommending discipline are supervisors. Progressive Transportation Services, 340

NLRB No. 121 (2003). See also Mountaineer Park, Inc., 343 NLRB No. 135 (2004). Compare 

Armstrong Machine Co., 343 NLRB No. 122 (2004).

In NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001), the Supreme Court 

rejected the Boards interpretation of “independent judgment.” Specifically the Court concluded

that the Board incorrectly held that “employees do not use independent judgment” when they

exercise ordinary professional or technical judgment in directing less skilled employees to deliver

services in accordance with employer specified standards. The Court saw this as a “categorical 

exclusion” and rejected it. Thus the Court found that the nature of the judgment, whether 

professional, technical, or experimental, does not determine whether a judgment is “independent”

in the sense used in Section 2(11). The Court’s holding did not reject the Boards traditional 

holding that the judgment of a subordinate is “routine” if it is limited by the directions of higher 

officials who have not delegated the power to make significant judgments or if the subordinates 

judgments are constrained by employer specified standards. In Dynamic Science, Inc., 334 

NLRB 391 (2001). The Board found that test leaders of a military test facility were not

supervisors applying the Kentucky River analysis. Accord: American Commercial Barge Line 

Co., 337 NLRB 1070 (2002) (tugboat pilots). 

Kentucky River was a health care case involving registered nurses. The Court did not rule 

that all nurses are supervisors. See Beverly Health & Rehabilitation Services, 335 NLRB 635

(2001). 

The facts in Custom Bronze & Aluminum Corp., supra, are illustrative of Board analysis in 

traditional industrial settings. While it was not contended that the individual in question had the 

authority to hire or discharge, reward, promote, suspend, layoff, discipline, reprimand employees, 

effectively recommend such action, or handle grievances, it was nonetheless found that he alone 

was responsible for the work of the shop employees and the daily production of the shop; he was 

in charge of the shop and its workload, exercised responsibilities and duties that his colleague did 

not, scheduled and assigned work, gave employees their orders and instructions, helped them in

performing their jobs, made certain that the work was done and done properly, and determined
208 STATUTORY EXCLUSIONS

whether overtime or additional help was needed. Compare Dean & Deluca New York, Inc., 338 

NLRB 1046 (2003) (being in charge of store does not evidence supervisory authority in absence 

of showing of use of independent judgment). 

For other cases, in which a supervisory finding was made on the basis of responsible 

direction or independent judgment, see Arlington Masonry Supply, Inc., 339 NLRB 817 (2003);

Wal-Mart Stores, 335 NLRB 1310 (2001); Venture Industries, 327 NLRB 918 (1999); Superior

Bakery, 294 NLRB 256 (1989); Rose Metal Products, 289 NLRB 1153 (1988); Illini Steel 

Fabricators, 197 NLRB 303 (1972); Consolidated Freightway Corp., 196 NLRB 807 (1972);

Wolverine World Wide, 196 NLRB 410 (1972); and Westinghouse Broadcasting Co., 195 NLRB 

339 (1972). 

Illustrative of the opposite result under this heading is Mid-State Fruit, Inc., 186 NLRB 51

(1970). While the individual in question recruited substitute drivers and occasionally directed “an 

extra delivery to a good customer,” a company principal was always on call and was reached on 

the telephone for instructions in matters involving substitution of drivers or other emergencies. 

He worked the same hours and received the same benefits as other members of the crew. In

assigning overtime, he did so at his principal's specific instructions. And although the individual 

in question claimed to have discharged an employee, there was no evidence that he actually did, 

and it was clear from the facts that he possessed no such authority. As he was “not free to use his

own independent judgment,” concluded the Board, “he could not be said to responsibly direct 

other employees.” See also Wal-Mart Stores, 340 NLRB No. 31 (2003). 

In two television station cases, a divided Board found that producers did not have the 

independent authority to make work assignments and thus were not supervisors. KGW-TV, 329

NLRB 378 (1999), and KGTV-TV, 329 NLRB 454 (1999). 

For other cases decided along similar lines, see Dynamic Science, Inc., supra; Health

Resources of Lakeview, 332 NLRB 878 (2000); Arlington Electric, 332 NLRB 845 (2000);

Carlisle Engineered Products, 330 NLRB 1359 (2000); Freeman Decorating Co., 330 NLRB 

1143 (2000); Fleming Co., 330 NLRB 277 fn. 1 (1999); Crittenton Hospital, 328 NLRB 879 

(1999); Tree-Fiber, 328 NLRB 389 (1999); Millord Refrigeration Services, 326 NLRB 1437

(1998); Ryder Truck Rental, 326 NLRB 1386 (1998); Alois Box Co., Inc., 326 NLRB 1177

(1998); Greenhorne & O’Mara, Inc., 326 NLRB 514 (1998); Youville Health Care Center, Inc., 

326 NLRB 495 (1998); General Security Services Corp., 326 NLRB 312 (1998); Hausner Hard 

Chrome of KY, Inc., 326 NLRB 426 (1998); Hydro Conduit Corp., 254 NLRB 433 (1981);

Suburban Newspaper Group, supra; Willis Shaw Frozen Food Express, 173 NLRB 487 (1968); 

John Stalfort & Sons, 156 NLRB 84, 86 (1965); and Bakersfield Californian, 316 NLRB 1211

(1995). 

In Armstrong Machine Co., 343 NLRB No. 122 (2004), a panel majority found no

supervisory status for the most senior employees in the department who answered questions 

concerning work and who made work assignments based on “a priority list generated by

management.” In absence of the owner, the employee answered customer inquiries. The panel

found that the work assignments were routine not “based on anything other than the common

knowledge, present in any small workplace, of which employees have certain skills and which 

employees do not work well together.” Citing Hausner Hard Chrome of KY, Inc., supra, the panel 

found that the employees work did “not demonstrate the exercise of independent judgment as 

envisioned by Section 2(11) of the Act. 

Direction of work that is routine in nature and typical of a leadperson was held not to be 

supervisory in the following cases: Central Plumbing Specialties, 337 NLRB 973 (2002); Byers 

Engineering Corp., 324 NLRB 740 (1997); S.D.I. Operating Partners, L.P., 321 NLRB 111

(1996); Consolidated Services, 321 NLRB 845 (1996); Azusa Ranch Market, 321 NLRB 811

(1996); and St. Francis Medical Center, 323 NLRB 1046 (1997). Authority to initial timecards is 

not generally considered supervisory authority. Los Angeles Water & Power Employees’ Assn.,

340 NLRB No. 146 (2003). 
STATUTORY EXCLUSIONS 209

17-503 Power Effectively to Recommend 

177-8520 

Persons with the power “effectively to recommend” the actions described in Section 2(11) are 

supervisors within the statutory definition. See, e.g., Entergy Systems & Service, 328 NLRB 902

(1999); Detroit College of Business, 296 NLRB 318 (1989); and Westwood Health Care Center, 

330 NLRB 935 (2000). 

In Mountaineer Park, Inc., 343 NLRB No. 135 (2004), a divided panel found two individuals 

to be supervisors where they could “on their own volition . . . bring a potential disciplinary issue” 

to their superiors and discipline is imposed at the level recommended. 

A supervisory finding was made, based in part, on the power effectively to recommend hiring 

and firing. A factual situation served as a predicate: When an employee was discharged, he asked

a company official for another chance and was told that the company official must abide by the

decision of the individual found to be a supervisor. Elliott-Williams Co., 143 NLRB 811, 816

(1963). On the other hand, where recommendations concerning discipline and reward “were not 

shown to be effective or to result in personnel action being taken without resort to individual 

investigation by higher authority,” a nonsupervisory determination followed. Hawaiian

Telephone Co., supra. See also Mower Lumber Co., 276 NLRB 766 (1985). 

The Board has rejected the contention that mere suggestions are effective recommendations. 

Brown & Root, Inc., 314 NLRB 19 (1994), and that signatures on a discipline form amounted to 

an effective recommendation. Rather in this latter case, the Board adopted the hearing officer's

conclusion that such signatures were for witness purposes. Necedah Screw Machine Products, 

323 NLRB 574 (1997). See also Children’s Farm Home, 324 NLRB 61 (1997). Accord: Los 

Angeles Water & Power Employees’ Assn., supra (initialing timecards). 

The Board has held that the mere issuance of a directive to alleged supervisors setting forth

supervisory authority is not determinative of their supervisory status. Connecticut Light & Power 

Co., 121 NLRB 768, 770 (1958). See also Bakersfield Californian, supra. In Security Guard 

Service, 154 NLRB 8 (1965), despite some evidence that certain “sergeants” had at one time been 

advised that they had supervisory authority, including the power to make effective 

recommendations, there was no evidence that this had been exercised. See also World Theatre

Corp., 316 NLRB 969 (1995), where unit employees routinely recommended hires. 

Authority to submit reports on employee conduct that are merely records of instruction or are

investigated independently, does not establish supervisory status. Williamette Industries, 336 

NLRB 743 (2001); Ken-Crest Services, 335 NLRB 777 (2001); Tree-Fiber Co., 328 NLRB 389

(1999); Green Acres Country Care Center, 327 NLRB 257 (1998); Custom Mattress Mfg., 327 

NLRB 111 (1998); Ryder Truck Rental, Inc., 326 NLRB 1386 (1998); Hausner Hard Chrome of 

KY, Inc., 326 NLRB 426 (1998); F.A. Bartlett Tree Expert Co., 325 NLRB 243 (1997); MJ Metal 

Products, 325 NLRB 240 (1997); and Mount Sinai Hospital, 325 NLRB 1136 (1998). Nor is the 

assessment of an applicant for employments technical skills an effective recommendation to hire 

that individual. Aardvark Post, 331 NLRB 320 (2000).

Individuals must have been notified of their authority if they are to be supervisors. Volair

Contractors, Inc., 341 NLRB No. 98 (2004). 

17-504 Limited, Occasional or Sporadic Exercise of Supervisory Power 

177-8560-5000 

Employees who spend a substantial part of each workday or workweek as supervisors are 

customarily excluded as such from the bargaining unit. Benchmark Mechanical Contractors, 

Inc., 327 NLRB 829 (1999), and U.S. Radium Corp., 122 NLRB 468 (1958). Those who exercise 

supervisory authority for a portion of the year and perform rank-and-file functions for the

remainder are described as “seasonal supervisors” and are included in the bargaining unit with

respect to their rank-and-file duties. Great Western Sugar Co., 137 NLRB 551 (1962). This does 
210 STATUTORY EXCLUSIONS

not mean that persons exercising only sporadic or irregular supervisory functions meet the

statutory definition of supervisor. Latas de Alumino Reynolds, 276 NLRB 1313 (1985); Meijer

Supermarkets, 142 NLRB 513 (1963); Indiana Refrigerator Lines, 157 NLRB 539 (1966). 

Occasional isolated instances of actions which might otherwise be indicative of supervisory 

authority are generally insufficient to predicate a supervisory finding. Volair Contractors, Inc.,

341 NLRB No. 98 (2004). Kanawha Stone Co., 334 NLRB 235 (2001). Commercial Fleet

Wash, 190 NLRB 326 (1971). Thus, where a “crew leader” had occasionally been consulted 

about an employee’s progress and an employee had been granted a raise after his crew leader had 

recommended the raise, these isolated instances, without more, were not regarded sufficient to 

establish supervisory indicia. Highland Telephone Cooperative, 192 NLRB 1057 (1971). See also 

Robert Greenspan, D.D.S., P.C., 318 NLRB 7 (1995); Hygeia Coca-Cola Bottling Co., 192 

NLRB 1127 (1971); Billows Electric Supply, 311 NLRB 878 (1993); Biewer Wisconsin Sawmill, 

312 NLRB 506 (1993); and Brown & Root, Inc., supra. Compare Union Square Management, 

Inc., 326 NLRB 70 (1998), where the Board reversed a Regional Director’s finding of sporadic 

hiring by an individual. Instead the Board found that that authority was “part and parcel” of their 

duties. 

17-505 Substituting for a Supervisor 

177-8520-8500 

177-8560-1800 

Where an employee completely takes over the supervisory duties of another, he is regarded as 

a supervisor under the Act. Birmingham Fabricating Co., 140 NLRB 640 (1963); Illinois Power 

Co., 155 NLRB 1097 (1965). However, isolated supervisory substitution does not warrant a 

supervisory finding. Latas de Alumino Reynolds, supra. The Board has stated that, where

intermittent supervision of unit employees is involved, the test is whether the part-time 

supervisors spent a “regular and substantial” portion of their time performing supervisory duties, 

or whether such substitution is sporadic and insignificant. Carlisle Engineered Products Inc., 330 

NLRB 1359 (2000), and Aladdin Hotel, 270 NLRB 838 (1984). This test applies even if there is 

a clear demarcation between the individuals’ supervisory and rank-and-file duties. Canonie

Transportation, 289 NLRB 299 (1988). See also Billows Electric Supply, 311 NLRB 878 (1993); 

Brown & Root, Inc., supra; and OHD Service Corp., 313 NLRB 901 (1994). 

In St. Francis Medical Center-West, 323 NLRB 1046 (1997), the Board found that

substitution for a substantial period of time (5 of the 10 months before the election) was not

regular because it was caused by extraordinary circumstances and was not likely to reoccur. Thus,

the Board found that the individual was not a supervisor. Merely being “in charge” of store on 

weekends is not sufficient to establish supervisory authority in absence of use of independent 

judgment. Dean & Deluca New York, Inc., 338 NLRB 1046 (2003). 

For an interesting discussion of this point see Benchmark Mechanical Contractors, Inc., 327 

NLRB 829 (1999), where the Board found that an employee who quit on the day of the election

but who had been promoted to a supervisory position at that time would not have spent a 

substantial portion of his time as a supervisor even if he had not quit. 

17-506 Promotions to Supervisory Positions and Management Trainees 

177-8520-6200 

177-8560-6000 

The possibility of promotion to a supervisory position in the future does not in and of itself 

warrant exclusion from a unit. Weaver Motors, 123 NLRB 209 (1959). See also International

General Electric, 117 NLRB 1571 (1957). Thus, individuals whose future assignment to 

supervisory status is contingent on demonstration of required qualifications are, if otherwise 

warranted by the facts, included in the unit. Continental Can Co., 116 NLRB 1202 (1956). 
STATUTORY EXCLUSIONS 211

Management trainees are generally treated the same as other individuals who are in line for

elevation to supervisory positions. Thus, “manager trainees” who were in a training program 

ranging from 3 to 6 years, a period devoted to learning all store duties, but who had no indicia of

supervisory authority and shared the same fringe benefits and working conditions with other

employees, were included in the unit. Neisner Bros., Inc., 200 NLRB 935 (1972). Compare, 

however, M. O'Neil Co., 175 NLRB 514 (1969). The latter case involved “management trainees,” 

who were given broad experience in the employer’s operation with the hope that they would 

eventually qualify for positions as supervisors, management personnel, or administrative 

personnel. Gradually, those who did not so graduate left the company. Finding that these 

employees had a community of interest different from that of regular employees, the Board 

excluded them from the unit. Note, however, that the exclusion was not on a supervisory ground. 

See also Gibson Discount Center, 191 NLRB 622 (1971). 

A person in supervisory training who exercises some supervisory authority, is excluded from 

the unit. Augusta Chemical Co., 124 NLRB 1021 (1959). The probationary character of 

supervisory authority does not affect supervisory status, and probationary supervisors are 

excluded from the unit. Shelburne Shirt Co., 86 NLRB 1308 (1949). Nor will the fact that an 

individual may in the future exercise supervisory authority on a sporadic basis support a 

supervisory determination. Indiana Refrigerator Lines, supra. See also Du-Tri Displays, 231

NLRB 1261 (1977). 

For an excellent summary of the four-part test for determining whether management trainees

(nonsupervisory) are included in the unit under community-of-interest principles, see Nationsway 

Transport Service, 316 NLRB 4 (1995).

See also section 20-620 (Trainees). 

17-507 Secondary Indicia 

Non-statutory indicia can be used as background evidence on the question of supervisory

status but are not themselves dispositive of the issue in the absence of evidence indicating the

existence of one of the primary or statutory indications of supervisory status. See Training 

School of Vineland, 332 NLRB 1412 (2000), and Chrome Deposit Corp., 323 NLRB 961, 963 fn.

9 (1997). Three such secondary indicia are the ratio of alleged supervisors to employees,

differences in terms and conditions of employment and attending management meetings. 

a. Ratio of supervisors to nonsupervisors 

The ratio of supervisors to rank-and-file employees is a background factor which may enter 

into Board consideration when resolving a supervisory issue, but it is not itself statutory indicia.

Ken-Crest Services, 335 NLRB 777 (2001). Where the ratio is unrealistic, a practical evaluation 

of employees' functions in this context is normally made. 

The Board pointed out, for example, in Pennsylvania Truck Lines, 199 NLRB 641 (1972), 

that “if strip supervisors and dispatchers were found to be nonsupervisory, there would be no

more than three supervisors . . . at any of the employer's terminals, some of which have as many

as 100 drivers, and there would be no supervisors at the terminals on weekends, when a 

dispatcher or strip supervisor is in charge.” 

See also Harborside Healthcare, Inc., 330 NLRB 1334 (2000); Naples Community Hospital, 

318 NLRB 272 (1995); Essbar Equipment Co., 315 NLRB 461 (1994); Sears, Roebuck & Co.,

292 NLRB 753 (1989); Washington Beef Producers, 264 NLRB 1163 (1982); Ridgely Mfg. Co.,

198 NLRB 860 (1972); Maryland Cup Corp., 182 NLRB 686 (1970); U. S. Gypsum Co., 178 

NLRB 85 (1969); Welsh Farms Ice Cream, 161 NLRB 748 (1966); and West Virginia Pulp & 

Paper Co., 122 NLRB 738 (1958). 
212 STATUTORY EXCLUSIONS

b. Difference in terms and conditions of employment 

177-8250-5500 

A substantial difference in terms and conditions of employment, while also not a statutory 

indicia, may be condensed as a background factor or secondary critira militating in favor of 

finding supervisory status. American Commercial Barge Line Co., 337 NLRB 1070 (2002); North 

Shore Weeklies, Inc., 317 NLRB 1128 (1995); Essbar Equipment Co., supra; Illini Steel

Fabricators, 197 NLRB 303 (1972); Grand Union Co., 193 NLRB 525 (1971); Little Rock 

Hardboard Co., 140 NLRB 264 (1962). It is however, a secondary indication and is not 

dispositive. General Security Services Corp., 326 NLRB 312 (1998); St. Francis Medical

Center-West, supra, and S.D.I. Operating Partners, L.P., 321 NLRB 111 fn. 2 (1996). Tri-City 

Motor Co., 284 NLRB 659 (1987). See also Waterbed World, 286 NLRB 425 (1987). Compare 

Brown & Root, Inc., 314 NLRB 19 (1994), and Custom Mattress Mfg., 327 NLRB 111 (1998), 

where the difference in pay was due to technical skills not supervisory duties. See also Ken-Crest

Services, supra, difference in salary and being highest ranking person on premises did not 

establish supervisory status. Central Plumbing Specialties, 337 NLRB 973 (2002). 

In Illini Steel Fabricators, supra, the Board considered as one of the elements the higher rate 

of pay received by the individual found to be a supervisor. Among the factors relied on for a 

supervisory finding in Grand Union Co., supra, was the fact that the employer raised the scale of 

salaries to accord with newly assigned “supervisory responsibilities.” And in Little Rock 

Hardboard Co., 140 NLRB 264 (1962), the Board took into consideration, among other factors,

the higher rate of pay, as compared with the pay of the production employees, which the disputed

“shift leaders” received. 

c. Attendance at management meetings

The fact that an individual may attend management meetings is a secondary indicator of

supervisory authority and does not in and of itself establish such authority. Dean & Deluca New

York, Inc., 338 NLRB 1046 (2003). 

17-508 Ostensible or Apparent Authority 

177-8520-7000 

Ostensible or apparent authority can be a basis for making the supervisory determination. 

Poly-America, Inc., 328 NLRB 667 (1999), and Hausner Hard Chrome of KY, Inc., 326 NLRB 

426 (1998). 

For example, where two “all around” men and four “floor girls” were in dispute, it appeared

that all six were held out as supervisors to employees by the respective department foremen and 

the employees were instructed to do as they were told by them. That was one circumstance noted 

by the Board in making a supervisory finding. Wolverine World Wide, 196 NLRB 410 (1972).

See also SAIA Motor Freight, Inc., 334 NLRB 979 (2001), where the Board said that “the test is 

whether under all the circumstances,” the employees would reasonably believe that the employee 

in question was reflecting company policy and speaking and acting for management. Accord: 

Facchina Construction Co., 343 NLRB No. 98 (2004); Ready Mix, Inc., 337 NLRB 1189 (2002); 

Mid-South Drywall Co., 339 NLRB 480 (2002); and D&F Industries, 339 NLRB 618 (2002).

The Board found an individual was reasonably perceived by the employees to be a supervisor 

where the employer permitted him to continue to function as a supervisor during a transition

period between his supervisory position and a nonsupervisory position. A. O. Smith Automotive 

Products Co., 315 NLRB 994 (1994). 

Where the employees looked on the individual in question as a supervisor and “there is valid 

basis for such judgment on their part,” this was given some weight in the resolution of the 

supervisory question. Bama Co., 145 NLRB 1141 (1964). However, the fact that an individual is 

held out as a supervisor is not necessarily dispositive of supervisory status. Williamette 
STATUTORY EXCLUSIONS 213

Industries, 336 NLRB 743 (2001); Pan-Oston Co., 336 NLRB 305 (2001); Blue Star Ready-Mix 

Concrete Corp., 305 NLRB 429 (1991). In Carlisle Engineered Products, 330 NLRB 1359 

(2000), the Board stated: “It is well established that rank and file employees cannot be 

transformed into supervisors merely being invested with that title.”

See also Thriftway Supermarket, 276 NLRB 1450 (1985); Washington Beef Producers, supra; 

G.T.A. Enterprises, 260 NLRB 197 (1982); Waterbed World, supra, for other ostensible authority

holdings. 

17-509 Supervision of Nonunit Employees 

177-8501-7000 

The Board is often confronted with the question of whether an individual is a supervisor 

when only a portion of the individual's time is spent in supervising nonunit employees. In Detroit 

College of Business, 296 NLRB 318 (1989), the Board rejected what it believed had become a 

misapplication of its decision in Adelphi University, 195 NLRB 639 (1972). Adelphi involved the 

status of the director of admissions in a unit of faculty where the director supervised his secretary,

an out-of-unit employee. As more fully described in Detroit College, supra, the Adelphi principle 

soon became the 50-percent rule, “any individual who supervises nonunit employees less than 50 

percent of his time is not a supervisor.” 

In Detroit College, the Board rejected “any such shorthand approach” to the resolution of

these cases. Instead, the Board stated that it would “make a complete examination of all the

factors present to determine the nature of the individuals alliance with management.” 

The Board described these factors as including: 

[T]he business of the employer, the duties of the individuals exercising supervisory authority 

and those of the bargaining unit employees, the particular supervisory functions being 

exercised, the degree of control being exercised over the nonunit employees and the relative 

amount of interest the individuals at issue have in furthering the policies of the employer as

opposed to those of the bargaining unit in which they would be included. 

See also Pepsi-Cola Co., 327 NLRB 1062 (1999); Union Square Management, Inc., 326

NLRB 70 (1998); Rite Aid Corp., 325 NLRB 717 (1998); and Legal Aid Society of Alameda 

County, 324 NLRB 796 (1997). 

In the case of supervision of employees of another employer, the Board will not find the 

individual to be Section 2(11) supervisor. In order to qualify as a supervisor, one must supervise 

the employees of the employer in question. Crenulated Co., 308 NLRB 1216 (1992). 

17-510 Supervisory Issues Affecting Educational Institutions 

177-8540-8200 

177-8540-8200 

A concomitant to the Board’s assertion of jurisdiction over colleges and universities in recent

years has been the need for resolving supervisory issues in cases involving such institutions.

Some of the more typical determinations in this area follow: 

“Department chairmen” with authority effectively to recommend the hire and reappointment 

(or nonreappointment) of all part-time faculty members, and to allocate merit increases without

the approval of the department’s faculty, were found to be supervisors within the meaning of

Section 2(11). Berry Schools, 234 NLRB 942 (1978); University of Vermont, 223 NLRB 423

(1976); Adelphi University, supra. See also C. W. Post Center, 189 NLRB 904 (1971). It should

be noted, however, that in Fordham University, 193 NLRB 134 (1971), the “department 

chairmen” were found to be nonsupervisory and included in the unit. The distinction is explained 

in the text and in footnote 19 in the decision in Fordham. And in University of Detroit, 193 

NLRB 566 (1971), the university was said to regard the “department chairmen” as faculty

members, not administrators. They did not sign an administrative agreement on being appointed; 
214 STATUTORY EXCLUSIONS

they represented the faculty at university senate meetings; they received no additional

compensation; and they taught courses albeit fewer than their fellow faculty members. Thus, as in

Fordham, they were held not to be supervisors within the meaning of the statutory definition. 

In Adelphi University, supra, the Board also considered, inter alia, whether the members of a

“personnel committee” and those of a “grievance committee” are supervisors within the statutory

definition and concluded that, “We are not disposed to disenfranchise faculty members merely 

because they have some measure of quasi-collegial authority either as an entire faculty or as 

representatives elected by the faculty.” Accordingly, several members of these committees were 

held not to be supervisors within the meaning of the Act “solely by reason of such membership”

and were included in the bargaining unit (p. 648). Consult the text of this decision for a thorough 

discussion of supervisory and nonsupervisory determinations in an educational institution. On the 

other hand consider the effect of the Supreme Court’s Yeshiva decision, there regarding 

managerial status, on the concept of collegiality as a factor to be considered. (NLRB v. Yeshiva 

University, 444 U.S. 672 (1980).) 

A contention that the bargaining unit cannot consist of faculty members because they are 

supervisors and managerial employees was rejected in C. W. Post Center, supra, and in 

Manhattan College, 195 NLRB 65 (1972). The Board observed in the latter: “That faculty 

members participate, by various means, in decisions regarding the operation of the college is no

more persuasive here than it was in the earlier cases in establishing faculty members as members

of management or as supervisors. As in those cases we find the faculty members to be 

professional employees under the Act who are entitled to vote for or against collective-bargaining 

representation.” See also Fordham University, supra at 135. 

The relationship between a faculty member and a graduate student is basically a teacherstudent relationship which does not make the faculty member a supervisor. Fordham University, 

supra at 136. See Detroit College of Business, supra, for analysis of the effect of supervisory 

authority over nonunit clerical employees. See also section 17-510 of this chapter. 

17-511 Health Care Supervisory Issues 

177-8540-8000 

177-8560-2800 

177-8580-8000 

Health care jurisdiction has occasioned considerable litigation of a number of supervisory

issues especially those involving charge nurses. The litigation often centered on a line drawn by

the Board between decisions and actions taken as part of patient care and more general Section 

2(11) actions.

In Northcrest Nursing Home, 313 NLRB 491 (1993), the Board discussed at length the issue 

of whether LPN charge nurses responsibly direct nurses aides. In finding the nurses not to be 

statutory supervisors, the Board reaffirmed its “patient care” analysis, i.e., a nurse’s direction of 

less-skilled employees, in the exercise of professional judgment incidental to the treatment of 

patients, is not authority exercised “in the interest of the employer.” Northcrest, 313 NLRB at 

493–497. 

Shortly thereafter however, in NLRB v. Health Care & Retirement Corp., 511 U.S. 571

(1994), the Supreme Court considered the Board’s patient care analysis for determining the

supervisory status, specifically the phrase “in the interest of the employer.” In a five to four 

decision, the Court found the Board’s test to be inconsistent with the statutory criteria of Section 

2(11). Succinctly put, the Court majority found no basis for the Board’s assertion that

supervisory authority exercised in connection with patient care is somehow not in the interest of 

the employer. “Patient care is the business of a nursing home and it follows that attending to the

needs of the nursing home patients, who are the employer's customers, is in the interest of the

employer.” Health Care & Retirement, supra at 577. The Court also admonished the Board for 
STATUTORY EXCLUSIONS 215

devising a test that was industry specific. According to the Court, the Board erred in giving such 

statutory terms as “responsibly to direct” and “independent judgment” a different meaning in the 

health care industry than it does in other industries. 

In early 1996, after oral argument, the Board issued two key decisions on the supervisory 

status of registered nurses (RNs), charge nurses (CNs), and licensed practical nurses (LPNs). 

Providence Hospital, 320 NLRB 717 (1996); and Ten Broeck Commons, 320 NLRB 806 (1996).

The Board was divided in its opinions with the majority concluding that it would not find

supervisory status in the absence of a showing that the individual exercised independent judgment

with respect to the 2(11) criteria. In each case the Board acknowledged that the determination had

to be made on a case-by-case basis. In Providence, supra, the Board found that the assignment of 

work authority of RNs did not require independent judgment. See also Altercare of Hartville, 321

NLRB 847 (1996); Washington Nursing Home, 321 NLRB 366 fn. 4 (1996); and Bozeman

Deaconess Hospital, 322 NLRB 1107 (1997). 

The Board repeated this analysis in Ten Broeck Commons, 320 NLRB 806 (1996), a LPN 

case where, inter alia, the majority found that “incident reports” that contained no 

recommendations for discipline and which were the subject of independent investigation “by the 

Director of Nursing” did not establish that the LPNs were supervisors. See also Illinois Veterans

Home at Anna L.P., 323 NLRB 890 (1997). Compare, Hillhaven Kona Healthcare Center, 323 

NLRB 1171 (1997), finding that evaluations prepared by LPNs and RNs had a direct correlation

on merit increases and thus, the individuals were supervisors. 

Recently the Supreme Court decided important issues of healthcare supervisory analysis on 

the independent judgment question. For more detail see, NLRB v. Kentucky River Community 

Care, Inc., 532 U.S.706 (2001), discussed at sec. 17-502. 

For “effective recommendation” cases see Coventry Health Center, 332 NLRB 52 (2000) 

(nurse role in evaluation procedure not effective recommendation); Trevilla of Golden Valley, 

330 NLRB 1377 (2000) (nurse evaluations had direct linkage to merit pay increase); Third Coast 

Emergency Physicians, P.A., 330 NLRB 756 (2000) (physicians did not make effective 

recommendation to hire, discipline or evaluate), and Michigan Masonic Home, 332 NLRB 1409

(2000) (recommendations for discipline not effective).

In a nonnurse health care case the Board rejected a contention that a maintenance employee

was a supervisor. The Board found that his involvement in discipline was reportorial only.

In Harbor City Volunteer Ambulance Squad, 318 NLRB 764 (1995), the Board did find that

that authority of assistant supervisors with respect to annual evaluations was sufficient to 

conclude that they were supervisors. 

For discussion of related supervisory issues involving the exercise vel non of independent

judgment see section 17-501. 

17-600 Railway Workers 

177-1683-7500 

177-2484-7500 

460-7550-3700 

Individuals employed by employers subject to the Railway Labor Act are excluded from the

coverage of the National Labor Relations Act. 

The definition of an employer subject to the Railway Labor Act is reasonably clear, and 

individuals employed by such employers are, of course, not covered by the National Labor 

Relations Act. 

In interpreting this statutory exclusion, a question arose in relation to individuals employed

by a labor organization which regularly acts as bargaining agent for railway workers. As the

union was acting “in its capacity of an employer” with respect to its employees, the

considerations appropriate to other employers under the National Labor Relations Act were 
216 STATUTORY EXCLUSIONS

applicable, and the union was found not to be “an employer subject to the Railway Labor Act.” 

Neither the National Mediation Board nor the National Railroad Adjustment Board had

jurisdiction because “the Railway Labor Act is only applicable to carriers and employees of

carriers, and does not regulate labor unions and their employees as such.” Locomotive Firemen & 

Enginemen, 145 NLRB 1521 (1964). 

For a fuller discussion of the interplay between the National Labor Relations Act and the 

Railway Labor Act, see chapter on Jurisdiction, ante. 

17-700 Employees of “Nonemployers” 

177-1683 

Individuals employed by employers who do not come within the meaning of the definition of 

“employer” in Section 2(2) of the Act are excluded from its coverage. Similarly, individuals who

“supervise” persons who are not employees are not supervisors. See North General Hospital, 314 

NLRB 14 (1994), where attending physicians who “supervise nonemployee” residents and interns

were held not to be supervisors.