Thursday, December 10, 2015

The Labor Law Versus Common Sense: Do You Know Who Your Supervisors Are?

The National Labor Relations Board (NLRB) has just approved a ruling that certain employees (in this instance, tugboat captains) are not supervisors within the meaning of the federal labor law (the National Labor Relations Act, or “NLRA”). The NLRB said it drew this conclusion because the employer did not show the employer held the captains accountable for the performance of the mates whom they directed. A dissenting NLRB member complained that the Board’s conclusion in this case “fails the test of common sense.”

The tugboat captains’ case makes painfully clear that identifying and clarifying who is --- and who is not --- a supervisor in the eyes of the NLRB is fraught with difficulty and risk for employers. Getting it wrong one way or the other can result in unfair labor practice charges, re-running of union elections, the overturning of employees’ choice to decertify their union, and other serious consequences for an employer.

Labor Law Protection of Non-Supervisory Employees. The NLRA broadly protects the rights of employees to work together for their own “mutual aid or protection,” to organize into unions, and to bargain collectively with their employer. These employee rights do not protect supervisors, however. Supervisors are conceived as acting in the interest of the employer, and consequently supervisors generally cannot vote in a union election, be included in a collective bargaining unit, or be covered under a union contract.

The NLRA definition for supervisory status seems relatively straightforward:
(11) The term "supervisor" means 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.
Notwithstanding the relative clarity of this definition, the U.S. Supreme Court itself has noted the NLRB’s “running struggle to limit . . . . the number of employees qualifying for supervisory status” and thus being excluded from the Act’s protection. In his tugboat captain-dissent NLRB Member Miscimarra charges that the NLRB’s “analysis of supervisory status has become increasingly abstract and out of touch with the practical realities of running a business.”

Risks to Employers and Tugboat Lessons. Regardless of the NLRB’s political agenda or business acumen, unionized and non-unionized employers alike will be well-advised to consider and address this issue before facing it in the context of an organizing drive, or an election to decertify a union, or an unfair labor practice charge at the NLRB. Though it may be difficult to predict the NLRB’s ruling on supervisory status in any given case, here is some of what we do know, including lessons learned from the tugboat case.

For an employee to be found a supervisor under the NLRA, the employer must produce evidence showing that the individual has exercised independent, non-routine judgment in the interest of the employer in at least one of the following ways, which are indicators of supervisory status”:
  • hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees
  • responsibly direct other employees
  • adjust grievances of other employees
      --- or---
  • effectively recommend such action.
It becomes clear from the tugboat case that where an employer relies on the factor of “responsible direction” it will be the employer’s burden to produce evidence that it has actually held the employee accountable for the performance of those whom he or she directs.

Employer Action Steps. On the issue of supervisory status it is very important for employers to be well prepared before a union ever files for an election; or before employees file for a union decertification. Action steps that will be key to good preparation include:
  • Gathering and analyzing available evidence of the actual exercise of supervisory authority, in terms of each individual employee. Such evidence might include documents such as:
               o    job descriptions
               o    grievance adjustments
               o    performance reviews
               o    compensation factors
  • Train managers and those identified as supervisors about expectations for supervisors, and how they will be held accountable.
  • Include supervisors as much as appropriate in management communications generally.
  • If necessary, make modifications such as increasing the authority given to the employees in question --- or, move in the opposite direction with an objective of assuring that they will not be found to be supervisors. 

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