Union election campaigns are becoming more common as unions more aggressively attempt to re-establish their membership and recover from recent declines. Given the continuously high unemployment rate, it can be expected that unions will actively seek to expand the number of entities which are subject to union representations.
A common issue in close election campaigns is the question of who is eligible to vote. One of the areas of greatest controversy concerns the definition of supervisors. Under the National Labor Relations Act, supervisors are excluded from voting and are not part of the collective bargaining unit. Rather, supervisors are part of management.
In traditional companies, management and workers had clear distinctions. Now, however, many companies blur the distinctions. Often persons who were not traditionally part of management now have supervisory functions. This blurred distinction is most often found when considering positions such as "crew leader," "team leader," "head nurse, etc."
Recent decisions of the United States Supreme Court and the National Labor Relations Board provide some additional guidance.
The United States Supreme Court, in Kentucky River Community Care, Inc., 532 U.S. 706 (2001) in a 5-4 decision, recently examined this question of supervising status. The Supreme Court held that the party claiming an employee is a supervisor has the burden of proof.
The Supreme Court also clarified that the independent judgment an employee must use in exercising his/her supervisory authority does not have a blanket exception for ordinary professional or technical judgment in directing less skilled employees. To the contrary, independent judgment may include professional judgments. As the Supreme Court held, registered nurses who professionally supervise less skilled nurses may still be supervisors excluded from the collective bargaining unit.
The practical issues and burden of proof required to show supervisory status has been reviewed by the National Labor Relations Board in many decisions.
The National Labor Relations Board has recently reaffirmed the burden of proof required by a party seeking to exclude an individual from voting due to a claim of supervisory status.
"The party seeking to exclude an individual from voting for a collective bargaining representative has the burden of establishing that the individual is ineligible to vote. Golden Fan Inn, 381 NLRB 225, 229-230 fn. 12 (1986). As stated in Ohio Masonic Home, 295 NLRB 390, 393 (1989): 'in representation proceedings such as this, the burden of proving that an individual is a supervisor rests on the party alleging that supervisory status exists. Tucson Gas & Electric Co., 241 NLRB 181 (1979).' Accord: Carlisle Engineered Products, 330 NLRB No. 189 (2000); Fleming Cos., 330 NLRB No. 32 fn. 1 (1999); Bennett Industries, 313 NLRB 1363 (1994). Conclusory evidence, "without specific explanation that the [disputed person or classification] in fact exercised independent judgment," does not establish supervisory authority. Sears, Roebuck & Co., 304 NLRB 193 (1991). Similarly, it is an individual's duties and responsibilities that determine his or her status as a supervisor under the Act, not his or her job title. New Fern Restorium Co., 175 NLRB 871 (1969)."
Dynamic Science, Inc., 334 NLRB 56 (2001).
Further, the exercise of any Section 2(11) authority must be by a person who "uses independent judgment in conjunction with those authorities, and does so in the interest of management and not in a routine manner. Hyrdo Conduit Corp., 254 NLRB 433, 437 (1981). Thus, the exercise of a Section 2(11) authority in a merely routine, clerical, perfunctory, or sporadic manner does not confer supervisory status. Chicago Metallic Corp., 273 NLRB 1677 (1985)." Dynamic Science, supra, at 3.
It is also well established that "As pointed out in Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970), cited in Hydro Conduit Corp.: 'the Board has a duty to employees to be alert not to construe supervisory status too broadly because the employee who is deemed a supervisor is denied employee rights which the Act is intended to protect.' See also Quadrex Environmental Co., 308 NLRB 101, 102 (1992). In this regard, employees who are mere conduits for relaying information between management and other employees are not statutory supervisors. Bowne of Houston, 280 NLRB 1222, 1224 (1986)." Dynamic Science, supra, at 3.
This admonition is especially critical in cases, involving "crew leaders" or other leadmen and set up men.
"In enacting Section 2(11), Congress emphasized its intention that only supervisory personnel vested with 'genuine management prerogatives' should be considered supervisors, and not 'straw bosses, leadmen, setup men, and other minor supervisory employees.' See S. Rep. No. 105 at 4, 80th Cong., 1st Sess., reprinted 1 Leg.Hist. (LMRA 1947)."
Dynamic Science, supra, at 3.
Assigning people to fill in for others who are absent is not sufficient to establish supervisory status. In Brown & Root, 314 NLRB 19 (1994), the Board specifically rejected the argument that Greer, a leadman, was a supervisor because he assigns workers to a particular crew based on compatibility of employees and the skills required to do the job. The Board held, "we find that Green's crew assignments do not require the independent judgment necessary for supervisory status, but instead are based on his experience as leadman in working with various crew members, as well as on whether the employee has the craft skill required for the particular job." Brown & Root, supra, at 21. Further, in Brown & Root, supra, at 22, the Board held that "the occasional changes they [alleged supervisors] may make in the ordering of work in response to 'field conditions'" was insufficient to make them supervisors.
Similarly, in Carlisle Engineered Products, Inc., 330 NLRB No. 189, at 1 (2000), processors were held not to be supervisory employees even though they directed operators "to move to another machine or to sweep up if the processor needs to be adjusted or repaired." As stated by the Board in reversing the Hearing Officer, "However, the processors' exercise of this authority to assign work is simply based on common sense, efficiency, and the job priorities set by the Employer. We find that their assignment of work on this basis is routine and insufficient to establish supervisory status." Carlisle, supra, at 1.
In Ryder Truck Rental, 326 NLRB 1386 (2000) the hearing officer's "supervisor" finding was reversed by the Board. In Ryder, supra, the Board noted that Preston, the employee in question, followed management job assignments "unless presented with an unanticipated job that needs to be handled, in which case he chooses a technician to perform the work on the basis of Chase's [management's] prior assessment of the employees special skills or training. Assignment of work by area of expertise does not involve the exercise of independent judgment when carried out according to instructions of management." Ryder, supra, at 1387.
Similarly, in Sears Roebuck & Co., 304 NLRB 193 (1991), at 197, the assignment or reassignment of work by Weaver, a lead mechanic, when others were absent did not make Weaver a supervisor.
Perhaps most instructive, in Panaro and Grimes, 321 NLRB 811 (1996), the Board, at 811, overruled the hearing officer's finding of supervisory status despite the findings that Virgen, "makes decisions about when to take cashiers and box persons off the register lines to work in other parts of the store," Felix "often changed employees' assignments from checker to other duties such as stocking shelves", and Graham "telling employees whether to open a register, or perform other tasks such as sweeping or stocking shelves." The Board held, at 812, "We find that the limited authority of these individuals to assign routine duties to employees and direct employees to change their duties is insufficient to warrant a finding of supervisory status. In our view, the Petitioner has not met its burden of showing that this authority to assign is anything other than routine, not requiring the exercise of independent judgment within the meaning of Section 2(11)."
The title of the employee is not what is important. Nor is it critical as to whether the supervising authority is actually used, so long as it is available. As the United States Court of Appeals stated in Beverly Enterprises - Massachusetts, Inc., 165 F.3d 900, 962-963 (U.S. App. D.C. 1990):
"In construing Section 2(11), the Board has often noted that it is the possession of supervisory authority and not its exercise which is critical. See, e.g., Cherokee Heating and Air Conditioning Co., 280 NLRB 399, 404, 1986 WL 53926 (1986); Sheet Metal Workers Local 85, 273 NLRB 523, 526, 1984 WL 37056 (1984); Hook Drugs, Inc., 191 NLRB 189, 191, 1971 WL 31885 (1971). At the same time, "'theoretical [or] paper power will not suffice' to make an individual a supervisor." Food Store Employees Union, Local 347 v. NLRB, 422 F.2d 685, 690 (D.C. Cir. 1969) (quoting NLRB v. Security Guard Serv., 384 F.2d 143, 149 (5th Cir. 1967). Accord NLRB v. Sayers Printing Co., 453 F.2d 810, 813-15 (8th Cir. 1971); Sunset Nursing Home, Inc., 224 NLRB 1271, 1272, 1976 WL 7150 (1976) ("[T]he mere use of a title or the giving of 'paper authority' which is not exercised does not make an employee a supervisor."); Great Lakes Towing Co., 168 NLRB 695, 700, 1967 WL 18998 (1967)."
See also Chevron USA, Inc., 309 NLRB 59, 69 (1992) (No weight given "job descriptions that attribute supervisory authority where there is no independent evidence of its possession or exercise.")
The factual and legal question of who is a supervisor does not address the practical business and labor question of whether a supervisor designation is in the union's or the employer's best interest. Persons who have jobs which fall in the gray area may be expected to vote against the union, but this is not always the case. Further, if the union wins the election and these "crew leaders" vote, then they are part of the collective bargaining unit, something which both the company and the union may not want. The company may not want these quasi-management positions subject to collective bargaining. The union may not want to have to bargain for "hostile" workers.
A careful analysis of job conditions and actual job responsibilities is important when examining these quasi-supervisory positions.
If you have any questions about union representation elections, or collective bargaining, or any matters concerning labor and employment relations, including matters related to discrimination, FMLA, and ADA, please contact Richard B. Sandow at rbs@jgcg.com or David M. Huntley at dmh@jpcg.com.
