Hunton Employment & Labor Perspectives

In 2015 the National Labor Relations Board (the “Board”) issued two opinions, Cook Inlet Tug & Barge, Inc. and Buchanan Marine, L.P., each finding that tugboat captains did not qualify as “supervisors” for the purposes of the National Labor Relations Act (the “Act”). These decisions demonstrate a trend in recent Board decisions narrowing the definition of a supervisor.

Under Section 2(11) of the Act, a supervisor must have the authority to perform one of several enumerated functions, including “assigning” or “responsibly directing” employees, using “independent judgment” in the interest of the employer. In 2006, the Board issued three decisions defining these terms. Oakwood Healthcare, 348 NLRB No. 37 (2006); Croft Metals, Inc., 348 NLRB No. 38 (2006); Golden Crest Healthcare Center, 348 NLRB No. 39 (2006).

Last Monday, the United States Supreme Court heard oral argument in Vance v. Ball State University in order to resolve a circuit split over how much authority an alleged harasser must have to be considered a supervisor.  The definition of supervisor is important because two earlier Supreme Court cases, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), establish that employers may be found vicariously or strictly liable for the conduct of supervisors who discriminate against or harass subordinate employees.

The Supreme Court recently announced the cases for which it has granted certiorari for the 2012-2013 term.  Among these, and now slated to be adjudicated in the nation’s highest court next term, are the appeals of three cases that will surely impact employment litigation.  In these cases, the Court will discuss (1) what the evidentiary standard is in federal courts, post-Dukes,  for class certification, (2) whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims, and (3) what constitutes a “supervisor” for a vicarious liability claim under Title VII.

While “employees” have the right to form, join, or assist labor organizations under the National Labor Relations Act (NLRA), supervisors are not employees under the statute and do not have the same rights.  Under current case law, “supervisor” is interpreted broadly and employees who merely assign duties to other employees on a daily basis are statutory supervisors under the Act.  As expected and as we previewed in a prior posting, Senate Democrats recently announced new legislation that would narrow the definition of “supervisor” under the NLRA, increasing the number of workers eligible to join unions.

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.

President Obama’s recent recess appointments to the NLRB leave one Republican among three liberal Democrats.  Should the opportunity present itself, the Board’s new composition will likely result in the overturning of two employer-friendly cases, Register Guard (email policy) and Oakwood Healthcare, Inc. (supervisory status). Overturning either of these cases may produce highly unfavorable results for employers.  The Board already has such an opportunity in Register Guard.  The D.C. Circuit recently remanded Register Guard for reconsideration on a limited basis, but the Board may seize the opportunity to reverse its initial holding.