Assignment Authority and Independent Judgment as Determinative of Supervisory Status under the NLRA

Introduction

The consolidated appeals in NLRB v. Northeastern University (First Cir. 2025) address a fundamental question under the National Labor Relations Act (NLRA): when does the authority to assign tasks and exercise independent judgment convert an employee into a “supervisor,” thereby excluding them from collective bargaining units? Northeastern University’s campus police department (NUPD) employs Sergeants and Sergeant Detectives who performed various oversight functions. The American Coalition of Public Safety (ACOPS) sought to include these positions in a bargaining unit. When the National Labor Relations Board (NLRB) certified that unit over Northeastern’s objection, Northeastern refused to bargain, triggering an unfair-labor-practice finding by the Board. The University then invoked judicial review in the First Circuit, challenging both the Board’s interpretation of “supervisor” under 29 U.S.C. § 152(11) and the evidentiary basis for its conclusions.

This commentary examines the First Circuit’s ruling, which vacated the Board’s order and held that Sergeants and Sergeant Detectives indeed meet the statutory definition of “supervisors” because they have the authority to assign subordinates and exercise independent judgment in doing so. The decision clarifies the interplay of agency precedents, statutory criteria, and evidentiary standards in determining supervisory status under the NLRA.

Summary of the Judgment

The First Circuit denied the Board’s petition to enforce its unfair-labor-practice order and vacated the finding that Northeastern violated §§ 8(a)(1) and (5) of the NLRA. It held that (1) Sergeants and Sergeant Detectives possess “assign” authority within the meaning of § 152(11), (2) in exercising that authority they use independent judgment beyond routine or clerical discretion, and (3) they hold that authority in the interest of the employer. The court found that the Board had diverged from its own precedents—particularly Oakwood Healthcare and NSTAR Electric—without sufficient explanation and had overlooked record evidence showing that Sergeants and Sergeant Detectives routinely and independently assign patrol duties, investigative caseloads, emergency-response roles (ICT), and special “detail” assignments.

Because the University had carried its burden of proof, the court remanded with instructions for the Board to decertify Sergeants and Sergeant Detectives as part of the bargaining unit or otherwise adjust the unit in accordance with the statutory supervisory exclusion.

Analysis

Precedents Cited

• 29 U.S.C. § 152(11) – Defines “supervisor” by listing functions such as hire, transfer, assign, or direct, which must be exercised with independent judgment and in the interest of the employer.
• NLRB v. Kent. River Cmty. Care, Inc., 532 U.S. 706 (2001) – Confirms the employer’s burden to prove supervisory status and clarifies the three-part statutory test.
• In re Oakwood Healthcare, Inc., 348 NLRB 686 (2006) – Establishes that assignment involves designating personnel for locations, shifts, or overall duties, and that independent judgment is negated only if decisions are dictated by rigid rules or self-evident choices.
• NLRB v. NSTAR Electric Co., 798 F.3d 1 (1st Cir. 2015) – Explains how independent judgment requires choices free of detailed control by others and not purely clerical or routine.
• In re Croft Metals, Inc., 348 NLRB 717 (2006) – Differentiates ad hoc direction of discrete tasks from true assignment of broader responsibilities.
• NLRB v. Quinnipiac College, 256 F.3d 68 (2d Cir. 2001) – Holds that emergency response decisions (e.g., deploying a SWAT‐style team) involve independent judgment.

Legal Reasoning

The First Circuit’s analysis proceeded in three steps aligned with § 152(11)’s text:

1. Authority to Assign – The court found uncontroverted evidence that Sergeants assign patrol officers to geographical sectors, adjust those assignments mid‐shift, oversee detective caseloads based on “specialty” and workload, deploy the Incident Containment Team (ICT), and staff special event details. These activities satisfy the “assign” function within the statute and Board precedent.
2. Independent Judgment – The Board had held that a generic deployment plan circumscribed Sergeant discretion, but the court rejected that view. It emphasized Oakwood’s principle that a policy manual setting baselines does not destroy independence when supervisors must weigh real‐time intelligence, officer skills, incident severity, and resource availability. Assigning bicycle-theft plainclothes patrols, selecting which detectives investigate a rape or bomb threat, and forcing officers to cover unscheduled events all required non‐routine, discretionary decision-making.
3. Interest of the Employer – Both parties agreed, and the court accepted, that Sergeants and Sergeant Detectives hold their authority in the University’s interest.

Because all three statutory criteria were met, the court concluded that Sergeants and Sergeant Detectives are “supervisors” and thus excluded from the bargaining unit.

Impact

This decision has significant implications for labor relations in public safety and analogous sectors:

• It reaffirms that assignment authority—even when guided by policy or collective-bargaining baselines—can constitute independent judgment when supervisors adapt deployment in response to evolving conditions.
• Emergency and detail assignments—once thought to be “direction” rather than “assignment”—will now more likely trigger supervisory exclusion if they involve broad redeployment decisions or staffing determinations.
• Unions and employers must carefully analyze job duties and record evidence of day-to-day decision-making to determine which positions qualify as supervisors.
• The ruling encourages the NLRB to adhere strictly to its own precedents and to explain any departures clearly to avoid arbitrary shifts in labor policy.

Complex Concepts Simplified

• Supervisor (NLRA § 152(11)) – An employee who can assign or direct others, not just follow a script, and does so for the employer’s benefit.
• Assign vs. Direct – “Assign” means allocating an employee to a place, time, or set of duties; “direct” typically covers on-the-spot instructions to perform single tasks.
• Independent Judgment – Requires weighing facts and making choices, not merely applying a checklist or repeating orders.
• Substantial Evidence Review – Courts uphold agency findings if a reasonable mind could accept the record as adequate, but must “fairly consider” evidence cutting the other way.

Conclusion

The First Circuit’s decision in NLRB v. Northeastern University sharpens the line between “supervisory” and “rank-and-file” employees by emphasizing the pivotal role of assignment authority exercised with genuine discretion. It underscores the employer’s burden to prove supervisory status and reaffirms that agency precedent must guide—and limit—the Board’s analyses. For universities, hospitals, municipalities, and private firms alike, the ruling mandates a close examination of which mid‐level managers and lead-person roles truly perform supervisory functions under the NLRA. In so doing, it strengthens the predictability and coherence of labor-law governance in settings where split responsibilities and overlapping chains of command once obscured the boundary of the supervisory exclusion.