What’s a Supervisor?
A supervisor is not able to form, join, support, or discourage organizing activities. Don’t fret, yet - these terms were set out before our field existed, and as a result, we must spend some time learning what they mean and how they apply to our field.
Workers in ABA (often BCaBAs or BCBAs) are called “supervisors” as they supervise a treatment plan. This terminology stems from the BACB’s hierarchy: the BCBA supervises the BCaBA and the RBT, and the BCaBA supervises the RBT. The work is primarily intellectual, though it often involves a direct care component. Additionally, these workers design and implement a treatment plan, train others to perform the plan as designed, adjust the plan when necessary based upon ongoing monitoring of the performance of others implementing the plan, such as parents and lower-skilled workers, and, of course, the client’s progress towards the plan's goals.
In this context, the “supervision” used by the BACB is rooted in promoting adherence to a treatment plan created by the BCBA to serve the needs of a client. This work is intellectual in nature and highly variable; as a result, it most clearly fits the definition of “professional work” and entitles the worker to labor organizing rights. Nurses, doctors, educators (such as teachers and professors), and dentists are able to organize - and these workers often supervise the implementation of the work rendered by dental hygienists, teacher’s assistants, CNAs, etc.
It is important to know this, as many employers will try to argue that their employees are “supervisors” and not entitled to organizing rights. Do not let a misunderstanding stymie your campaign! Know your rights, and teach others!
In a business context, a “supervisor” is a different type of employee who serves the employer's interests and works for the employer in the capacity of hiring, firing, promoting, discipling, etc., and otherwise responsibly directing (managing) employees. The terminology in the ABA industry can lead to confusion, as it often does, since “supervisors” in a business context are not eligible for union representation per the NLRA, but “supervisors” in the purely ABA context do not necessarily exclude those workers from organizing rights.
An example of a BCBA who cannot organize would be a location or center director. This person is a statutory supervisor in their work, similar to other BCBAs, exercises discretion and independent judgment in the interest of the employer, and is often able to hire, fire, discipline, promote, or reward other employees. They are responsible for the performance of the staff at their location, whereas BCBAs are not held responsible for underperforming employees. For example, if an RBT were unable to implement a treatment plan designed by a BCBA, the RBT would receive additional training and be disciplined in accordance with the company’s progressive discipline policy. The BCBA supervising the case would not be held accountable (or “responsible”) for their performance, but could be held accountable for their own (e.g., failing to attend an adequate supervision schedule or using unclear terminology when designing the plan).
This is all very confusing; if you have questions, please reach out to a member of this organization.
The NLRA?
The National Labor Relations Act (NRLA) was enacted in 1935 to govern labor relations in the United States.
The NLRA makes clear that some workers - managers, supervisors - cannot collectively bargain. Many BCBAs consider themselves supervisors, as their managers (location directors, regional directors, etc.) delegate some of their tasks to them.
Key Distinctions
The BCBA performs on-the-job tasks that resemble managerial functions: for example, the BCBA creates a treatment plan and provides routine training, observation, and feedback. This is
“it must be the employees who are being assigned, not the tasks.” (Emphasis in original.)
Key Criteria for Supervisor Status
According to Section 2(11) of the NLRA and NLRB case law, a 'supervisor' must:
- Have clear authority to perform at least one of the 12 listed supervisory functions:
- hire,
- fire,
- transfer,
- promote,
- reward,
- discipline,
- lay off,
- recall,
- discharge,
- assign,
- responsibly direct,
- Or adjusting grievances
( or may effectively recommend such action)
- Exercise that authority using independent judgment (i.e., not clerical or routine; has the ability to inform or interpret policy with discretion)
- The performance is not professional (ordinary to the performance of that profession or a technical judgment directing less-skilled employees to deliver services in accordance with employer-specified standards)
- Perform those actions in the interest of the employer rather than in a professional capacity
(See Oakwood Healthcare, Inc., 348 NLRB 686 (2006); NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001))
NLRA Supervisor Test
According to Section 2(11) of the NLRA and NLRB case law, a 'supervisor' must:
- Have independent authority to take employment actions (e.g., hire, fire, promote, discipline)
- Be accountable for directing others
- Use independent judgment, not just follow protocols
(See Oakwood Healthcare, Inc., 348 NLRB 686 (2006))
Does the BCBA Meet The Definition of “Supervisor”?
These licensed providers work directly with clients and support RBTs/techs across varied settings, including with clients and their clinical teams.
Exercising discretion and judgment in a primarily professional capacity does not constitute supervisory status.
That is to say, if the judgment is specific to work that is primarily intellectual and varied, that work is not necessarily supervisory in nature - it must meet the 12 criteria detailed above in a manner consistent that is ultimately responsible for another employee’s performance while utilizing independent judgment.
| NLRA Supervisory Function | Does the BCBA do this? |
| Hire, Transfer, Suspend, Lay Off, or Recall | No – The BCBA works directly with clients, 1-on-1, develops treatment plans, and/or supports RBTs/techs with challenging cases 2-on-1.
They may collect performance data on the client or technician using a checklist in consultation with the program supervisor and/or superior. The development of these checklists is similar to professional work (in that it is purely intellectual in nature) and these checklists are derived from best practice standards per the company’s policy and ethical guidelines. |
Promote, Discharge, or Assign
| No – All duties are delegated by others completely. |
| Reward or Discipline Other Employees | No – the BCBA does not participate in the evaluation process in any capacity. |
| Responsibly Directs Other Employees | No - They may collect performance data on the client or RBT/tech using a checklist, in consultation with the program supervisor and/or LD, and these checklists are derived from best-practice standards in ABA or company policy. |
| Use Independent Judgment | No – BCBA uses discretion to guide staff and evaluate skills in a professional capacity. In the aforementioned categories, as described, the program supervisor can always ask (“have a conversation”) the location director, but they and they alone may exercise independent judgment. |
| Accountable for Staff Performance | No – Provides oversight, but in a role framed as “developmental” (mentorship) while a RBT/tech acquires skills necessary to complete the work via on-the-job training.
The BCBA is ultimately not responsible for the performance of an RBT/tech in any capacity, but instead asked to provide ongoing on-the-job training in a professional capacity. |
| Acts in Employer’s Interest | No – Works toward company and client goals, but not autonomously/independently, and held to the same values statement that other employees are held to. |
Conclusion
The BCBA role involves guidance, support, and staff development, but strictly in a professional, on-the-job training capacity. They lack the authority to hire, fire, discipline, or adjust grievances. It also lacks clear accountability for other employees' performance in a way that meets the NLRA's supervisor test. Therefore, it does not meet the NLRA’s legal definition of a supervisor.
Legal Citations
• NLRA, Section 2(11), 29 U.S.C. § 152(11)
• Oakwood Healthcare, Inc., 348 NLRB 686 (2006)
• NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001)
• Croft Metals, Inc., 348 NLRB 717 (2006)