Earlier this month, Senators Richard Blumenthal (D-CT), Dick Durbin (D-IL), and Tom Harkin (D-IA), reintroduced the Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers (RESPECT Act). The Act would amend the National Labor Relations Act (NLRA) by changing the definition of a “supervisor.” Currently, the NLRA 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.
The RESPECT Act eliminates “assign” and “responsibly to direct” from the current definition and adds the requirement that to be considered a supervisor, the individual must perform the defined supervisory duties during a majority of his/her work time. Since statutory supervisors are not covered by the NLRA, the proposed changes would increase the opportunity for unions to organize classifications of employees like lead men, charge nurses, and other groups which may meet the current definition of a supervisor by “assigning” or “directing the work” of other employees.
With apologies to Otis Redding (and Aretha Franklin), given two recent decisions – one by the NLRB and one upholding a NLRB decision – unions don’t really need RESPECT to expand their organizing opportunities.
In Direct TV, 357 NLRB No. 149 (2011), the NLRB held in a 2-1 decision that the employer failed to prove that its “Field Supervisors” met the definition of supervisor under the NLRA. The Hearing Officer found that the Field Supervisors, among other things, possessed authority to effectively recommend discipline, up to and including discharge, by virtue of their initiation and issuance of employee consultation forms (ECFs). The Hearing Officer noted that, although various levels of management reviewed ECFs, the reviewing officials did not conduct an independent investigation and accepted the Field Supervisor’s version of events at face value. Accordingly, the Hearing Officer found the Field Supervisors to be supervisors under the NLRA.
On review, the Board focused its analysis on the meaning of the phrase “effectively to recommend” and found no evidence regarding the “extent” or the “components” of the ECF review process. The Board acknowledged that the evidence demonstrated that the recommendations of the Field Supervisors were followed in the “majority of instances,” but did not establish that the recommendations were taken without an independent investigation by a reviewing manager. Thus, the Board overruled the Hearing Officer and found supervisory status had not been proved.
In his dissent, NLRB Member Hayes criticized the majority opinion and the analysis of what constitutes “effectively to recommend” discipline. Member Hayes wrote:
multiple levels of review are a virtual necessity to assure procedural compliance of proposed disciplinary actions with myriad Federal and State employment law regulations. The existence of such a review process certainly does not preclude finding that a front-line supervisor who initiates the process does not effectively recommend discipline, particularly where, as here, the ECFs include specific recommendations for disciplinary action that have ultimately been followed in all but few instances.
It would be rare indeed for a recommendation of discipline not to be reviewed by other managers or Human Resources.
In another recent case, Veritas Health Services, Inc. v. NLRB, the U.S. Court of Appeals for the District of Columbia Circuit upheld the NLRB’s ruling rejecting the employers claim that a union election was tainted because charge nurses (later determined to be statutory supervisors) encouraged registered nurses to attend union meetings, support the union and sign union authorization cards. The Court found it significant that when the charge nurses were determined to be supervisors, they stopped their support of the union and participated in the employer’s campaign to remain union-free. Apparently, at the time they supported the union, the charge nurses did not know that their employer viewed them as supervisors.
Taken together, the two cases illustrate several important points. Both cases dealt with situations in which supervisory status was not clear – even though in each case the employer believed the classifications met the definition of a statutory supervisor. What should we take from the cases?
If you contend that an employee is a supervisor – tell him/her. Don’t leave room for doubt or misunderstanding. Explain his/her role and your expectations. If the employee is not comfortable in that role, you’ll need to make a change
Review any borderline or front-line supervisory classifications, now. Do not wait until union organizing activity is underway. Remember, it is the actual duties, not the title, which controls. Calling someone a “supervisor” is not enough.
Respect the supervisor’s decisions. That is not to say decisions should not be reviewed. However, be mindful that if others review the actions taken by the supervisor, you must be prepared to explain that the process does not mean conducting an independent investigation at every level of review.
Finally, be prepared to prove your case to the NLRB. The burden of proving supervisory status rests with the party asserting it.