Hunton Employment & Labor Perspectives

In prior postings, we have reported about the potential effects that the National Labor Relations Board’s (“NLRB”) recent pro-labor composition could have on non-union employers and how it will become increasingly easier for unions to organize employees as a result of the NLRB’s recent decisions and procedural changes.  This posting focuses on the convergence of two potential developments – the likely change in the definition of “supervisor” under the National Labor Relations Act (the “Act”) and the NLRB’s recent proposal to expedite the procedures for union elections – and how these two developments combined could hamper an employer’s ability to effectively oppose a union-organizing campaign.

Supervisor Status Under the Act

The Act defines the term “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 definition is significant because supervisors are not protected under the Act and cannot be part of a bargaining unit.  They are the employer’s agents and, should employees elect a union and some day go on strike, the supervisors would be the core group left to operate the business.  Supervisors can be ordered to assist the employer in responding to organizing campaigns and are many times an employer’s most important asset in mounting an effective opposition.  It is often, though not always, in the best interests of employers to have the supervisor term interpreted as broadly as possible so as to narrow the number of employees covered by the Act.

The current leading precedent on the definition of “supervisor” is Oakwood Healthcare, Inc., a 2006 decision in which the NLRB interpreted the supervisor definition broadly and held that lead employees who merely assign duties to other employees on a daily basis are statutory supervisors under the Act.  The supervisor definition outlined in Oakwood Healthcare was a major victory for employers, and organized labor has made it clear that this is a case it would like to see the NLRB revisit and reverse.

The Oakwood Healthcare decision was decided by 3-2 margin and a Republican majority NLRB.  Former Board Member Wilma Liebman issued a scathing dissent in Oakwood, opining that an individual should not be classified as a supervisor if the only supervisory duty performed is simply designating a task or tasks.  If Oakwood is revisited, the current composition of the NLRB would likely adopt Liebman’s dissent, thus resulting in a narrower interpretation of “supervisor.”  This would make it more difficult for employers to classify lead employees who merely assign duties on a daily basis as supervisors.  Thus, in a union organizing drive, these individuals could be part of the bargaining unit, could advocate unionization to the workers they oversee, and could not be used by the employer in its response to organizing efforts.

The NLRB’s “Quickie Election” Proposals

The impact of a potentially narrower definition of supervisor is compounded by the NLRB’s proposed rules to expedite the union election process – commonly referred to as a “quickie election” process.  These proposed changes have been discussed in detail in our prior postings and are scheduled to take effect on April 30, 2012.  One of the most notable proposed changes will give the hearing officer authority to limit pre-election hearings to genuine questions concerning representation, an extremely rare occurrence and a standard not typically met when employers raise issues about whether a particular employee is a supervisor under the Act and thus not entitled to vote in the election.

The problem this change creates for employers as it relates to the statutory supervisor issue is significant and will no doubt lead to significant union gamesmanship during the petition and election process.  Among other things, a union’s election petition could seek a proposed bargaining unit that includes lead employees who are potentially on the borderline between supervisory and employee status.  Though an employer may want to challenge their inclusion in the proposed bargaining unit prior to the election, the NLRB hearing officer can exclude such the issue from the pre-election hearing if it does not create a genuine question concerning representation.  And even if the hearing does focus on the issue, the hearing officer may be able to avoid ruling on the challenge until after the election is conducted.  The employer could thus be handcuffed in its use of these arguable supervisors in opposing the union’s organizing efforts prior to the election due to the risk that the hearing officer could retroactively rule after the election that the individuals were not supervisors and thus were protected under the Act.  The net effect is that the employer has no choice but to rely only on upper-level management employees who clearly fall within the supervisor definition.

What Can Employers Do?
In anticipation of the likely reversal of Oakwood and the corresponding effect that the NLRB’s quickie election rules would have on the supervisor issue, employers should review the job duties and responsibilities of lead persons at locations particularly at risk to union organizing efforts and ensure that these employees are doing more than merely assigning tasks (e.g., evaluating employees for raises, hiring subordinates, making effective recommendations for hire, and authorizing time off or overtime) to ensure that those individuals will be classified as supervisors in future organizing campaigns and elections.  To the extent additional supervisory responsibilities can be assigned to these individuals, such changes should be made to remove any doubt about the supervisory status of these key employees.  Without such certainty, employers may have to forego using one of their most effective campaign tools, while at the same time operating under a much more expedited election process that gives the employer less time to respond to the campaign and educate its employees regarding their voting decision.