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Eighth Circuit Finds that News Producers and Assignment Editors Are Not Supervisors under the National Labor Relations Act

November 29, 2001

In a 2-to-1 decision of particular significance to employers in broadcast industries, the U.S. Court of Appeals for the Eighth Circuit recently ruled that television assignment editors and news producers are not supervisors under the National Labor Relations Act (the "NLRA"). Affirming a decision of the National Labor Relations Board (the "NLRB"), the court found that while these employees were responsible for directing the work of other employees, they were not required to exercise independent judgment in doing so. Consequently, the assignment editors and news producers did not fall within the statutory definition of "supervisor," and they were therefore entitled to form a union. KSDK, Inc. v. National Labor Relations Board, 2001 U.S.App. LEXIS 24504 (November 15, 2001).

The case arose when the assignment editors and news producers employed by television station KSDK in St. Louis attempted to organize, and the station challenged their right to do so, arguing that they were supervisors as defined by Section 2(11) of the NLRA. That section removes supervisors from the protections of the NLRA and defines a supervisor as "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." While the court observed that prior NLRB cases interpreting this Section reflected "inconsistent decisionmaking," it nevertheless upheld the NLRB's ruling that neither assignment editors nor news producers were supervisors.

The court made quick work of assignment editors. The court found that the editors did not exercise independent judgment when they "assigned" work to others. Their function of assigning work, although important to the news process, was deemed mechanical. They simply reacted to incoming news sources and then assigned photographers and editors to work on the story, a routine process. The court also noted that the assignment editors could not hire, fire or discipline employees, and found it telling that assignment editors were hourly employees who earned less than the photographers they assigned.

News producers presented a closer call. The court acknowledged that the producers made key decisions: they determined the format, length and sequence of stories, instruct reporters and photographers on the kind of video and graphics to use, assigned individuals to write scripts for stories, checked scripts, and decided which anchor would read the story. The court nevertheless found that these actions required little independent judgment because they were performed within a collaborative process. Specifically, the court found that producers work as part of an integrated team of news professionals, where professional staffers each carry out their substantive work in a highly independent manner. The court analogized to the legend of King Arthur: "To the extent that producers coordinate news-gathering and news-covering processes, they occupy the head chair at a round table, to borrow a metaphor from Arthurian mythology." The court also again took note of pay, pointing out that many other news professionals on the team earned more than the producers.

The court was not deterred by the fact that the "collaboration" theory relied upon by the NLRB arose out of an earlier decision in McGraw-Hill Broad. Co., 329 N.L.R.B. 454 (1999), which was overruled by the Supreme Court in NLRB v. Kentucky River Cmty. Care, Inc., 121 S.Ct. 1861 (2001). See Supreme Court Overturns NLRB Standard on Supervisory Status (June 1, 2001). The KSDK court reasoned that Kentucky River rejected only the NLRB's position that employees who rely on their professional or technical expertise to direct less-skilled employees do not use independent judgment and therefore cannot be considered supervisors on the basis of that direction. Thus, according to the Eighth Circuit, the NLRB's theory that collaborative decisionmaking does not give rise to supervisory status was not affected by the Supreme Court's Kentucky River decision.

In a dissenting opinion, Chief Judge Wollman wrote that the majority was parsing too finely the Supreme Court's decision in Kentucky River. Moreover, according to Judge Wollman, the collaboration theory rests upon the false assumption that there can be only one supervisor. After all, he noted, all of the knights at the Round Table certainly had supervisory authority over the vassal-attendants. And as for producers being paid less than other news professionals, he observed that "many professional athletes are paid at a rate greatly exceeding that of the coaches of their respective teams, yet no doubt arises as to who is the supervisor in that situation."

Notwithstanding the logic of the dissent and the court's acknowledgement of the inconsistency in the NLRB's application of the standards for determining supervisory status, the KSDK decision demonstrates that the collaboration theory still survives. Employers need to be mindful that employees who direct others and make key decisions may still not be considered "supervisors" under the NLRA if they are viewed as part of a team of fellow professionals, especially if they are paid less than the others on the team.