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11/10/2026: Supervisory Status and Health Care Rule Quirks
Union Electric Company D/B/a Ameren Missouri, 14-RM-394835 (Regional Election Decision) A Regional Director dismissed the Employer's petition after finding that Distribution System Operating Supervisors (DSOS) II are statutory supervisors under Section 2(11) of the NLRA, but not managerial employees. The Employer, an electric and gas utility, filed the petition after the Union demanded recognition for DSOS I and II positions. Because the DSOS II are supervisors excluded from the NLRA's protection, no election was ordered. The DSOS I position was not decided, since no one currently holds it, and ordering an election for a unit with zero employees would be contrary to Board policy. As a preliminary matter, the Union was precluded from litigating supervisory or managerial status because it filed its Statement of Position with the Region but did not serve it on the Employer by the deadline. The Regional Director still took evidence sufficient to decide unit appropriateness, as the Board's rules require. Supervisory status rested on the authority to assign. The DSOS prioritize work tickets, choose which Line Troubleman or Traveling Operator to send, pull employees off lower-priority jobs, hold employees past shift end, decide whether to call in crews and how large they should be, and handle sick call-outs, all without consulting anyone. Relying on Oakwood Healthcare and Entergy Mississippi, the Regional Director found this resembled utility dispatchers who used independent judgment in assigning employees to places. It did not matter that the record did not show who selects the specific employees who respond to a call-out. The Employer failed to prove responsible direction because nothing showed DSOS face adverse consequences for field employees' performance. The one Performance Improvement Plan involved a DSOS's own errors. The Employer also failed to prove discipline authority, since switching error forms merely report incidents and upper management decides whether discipline follows. The managerial claim failed because there was no evidence the DSOS formulate high-level employer policy. They exercise technical discretion, sit below Superintendents and a Manager, and are first-level supervisors. Significant Cases Cited Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined "assign" and "responsibly direct" under Section 2(11) and placed the burden of proving supervisory status on the party asserting it. Entergy Mississippi, Inc., 367 NLRB No. 109 (2019): Held utility dispatchers were supervisors because they used independent judgment in prioritizing outages and assigning field employees. NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Established the three-part test for supervisory status under Section 2(11). NLRB v. Yeshiva University, 444 U.S. 672 (1980): Described managerial employees as those who formulate and effectuate management policies and are aligned with management. Ikea Distribution Services, Inc., 370 NLRB No. 109 (2021): Affirmed preclusion of issues for a late-served Statement of Position while confirming the Regional Director must still determine unit appropriateness. NLRB Edge is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. Subscribe Prime Healthcare Services – St. Michael’s, LLC D/B/a Saint Michael’s Medical Center, 22-RC-392696 (Regional Election Decision) The Regional Director dismissed a petition seeking an Armour-Globe self-determination election for two full-time radiation therapists at a Newark hospital. The union wanted the therapists to vote on joining its existing nonconforming unit of registered nurses, nurse anesthetists, and technical employees. The Regional Director found the union had not shown the therapists could appropriately be added to that unit under the Board's Health Care Rule and the community-of-interest factors. The Regional Director first explained that the Health Care Rule does not categorically bar an Armour-Globe election in a partially organized hospital with existing nonconforming units. Under St. Vincent Charity Medical Center, such an election does not create a new unit and so does not offend the Rule's concern with unit proliferation. The petitioner still bears the burden of showing the group is identifiable and distinct and shares a community of interest with the existing unit. The therapists were an identifiable, distinct group because they do identical work in the same department under the same managers. On community of interest, the evidence was mostly unfavorable to the union. The therapists work in the Cancer Center alongside unit nurses but have separate supervision (apart from occasional coverage), separate break areas, and distinct equipment and functions. Their contact with nurses is limited to routine patient handoffs, and they do not interact with or fill in for technical employees such as radiology technicians. The Regional Director found some overlap in certifications and training, which might tip the scale on those factors, but the union did not establish common terms and conditions. The Regional Director added that shared benefits or work rules would not suffice given separate supervision, no interchange, and physical separation. The decisive problem was the Health Care Rule's classifications. The therapists are professionals who fall within the Rule's "all other professionals" category. The parties' contract expressly excludes "all other professionals," and the union's attempt at hearing to classify some respiratory therapists as professionals contradicted that contract. Adding the therapists would create yet another nonconforming grouping and leave other unrepresented professionals in that category. A separate therapist-only unit would also be inappropriate because the record shows other unrepresented professional employees. A unit of all unrepresented employees in that category may be appropriate. Significant Cases Cited St. Vincent Charity Medical Center, 357 NLRB 854 (2011): An Armour-Globe election in an acute care hospital does not violate the Health Care Rule because it adds employees to an existing unit rather than creating a new one. Rush University Medical Center v. NLRB, 833 F.3d 202 (D.C. Cir. 2016): Section 103.30(c) of the Health Care Rule applies only to petitions for additional units, not to Armour-Globe elections adding employees to an existing unit. Warner-Lambert Co., 298 NLRB 993 (1990): A self-determination election requires that the employees share a community of interest with the existing unit and form an identifiable, distinct segment constituting an appropriate voting group. United Operations, Inc., 338 NLRB 123 (2002): Sets out the community-of-interest factors, and common supervision alone does not require inclusion in one unit absent interchange, contact, or functional integration. Wheatland Electric Cooperative, Inc., 375 NLRB No. 16 (2026): Functional integration requires that positions depend on one another to accomplish their tasks, and minor differences between groups should not be given too much weight.