EXCLUSIONS FROM COVERAGE• Statutory (Sec 2)

– Employers• Government• Railway Labor Act• No effect on commerce

– Employees• Agricultural Workers• Domestic• Ee of parent or spouse• Independent Contractor

– “right to control” test

• Supervisor

– Activities• Individual (not concerted)

• Nonstatutory – Employees

• Confidential ees with a labor nexus (Hendricks Cty.)

• Managerial Employees (Bell Aerospace, 416 U.S. 267, 1974)

• Graduate assistants in covered (private) universities, Brown Univ., 342 NLRB No. 42, 2004 (students, not employees), rvsg., NYU, 332 NLRB 1205, 2000

• Disabled employees in a “primarily rehabilitative” rather than a “primarily economic” relationship with er,” Brevard Achievement Ctr., 342 NLRB No. 101, 2004

– Activities• Unlawful

– NLRB v, Fansteel Metl., 306 U.S. 240, 1939

• Disloyal– NLRB v. Local 1229 IBEW

(“Jefferson Std.”), 346 U.S. 464, 1953

Independent Contractor• Right to Control Test

– Individual is an “employee” under NLRA if the putative employer supervises “means and manner“ over which the work is performed

– Individual an “independent contractor” under the NLRA if the putative supervisor monitors, evaluates, and improve the results of person’s work rather than supervises means by and manner in which he/she does the work