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NLRB
Provides Standards For How A Supervisor Is Defined by Michael D. Oesterle • King & Ballow In a long-anticipated decision, the National Labor Relations Board set forth specific standards to use to determine individuals who have the authority to make assignments to other employees or responsibly to direct employees are supervisors under the National Labor Relations Act (NLRA). While this case involved nurses at a hospital, this decision also applies to the construction industry and makes it easier for contractors to prove foremen and general foremen are supervisors. If the foremen and general foremen are supervisors, they would not be covered under a union contract. Under the NLRA, it only takes one of the listed authorities to make an individual, such as a foreman and general foreman, a supervisor. The NLRA lists the following authorities: 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. The exercise of any of these authorities must be in the interest of the employer, not merely routine or clerical in nature and requires independent judgment. According to the NLRB, the meaning of the term “assign” is an act of designating an employee to a place, such as a location or department, appointing an employee to a time, such as a shift or overtime period, or giving significant overall tasks to an employee. However, the order in which an employee performs discrete tasks within the assignment is not indicative of exercising the authority to “assign.” Rather, the NLRB found that in order for an assignment to rise to the level of supervisory authority, it must involve the “designation of significant overall duties to an employee”, not an “ad hoc instruction that the employee perform a discrete task.” An assignment does not need to affect basic terms and conditions of employment or an employee’s overall status or situation in order to prove supervisory status. The NLRB cited the power to assign an employee to a “plum assignment” or a “bum assignment” as an example of supervisory authority but not affecting an employee’s basic terms and conditions of employment or an employee’s overall status. The words “responsibly to direct” are meant to ensure individuals, who exercise basic supervision but lack the authority or opportunity to perform other statutory supervisory functions, are still considered statutory supervisors. Thus if a foreman has employees under him at a jobsite and that person decides what job shall be undertaken next or who shall perform it, that foreman is a statutory supervisor as long as the direction was both “responsible” and used independent judgment. A direction is “responsible” when the foreman or general foreman is held accountable for the employee’s task so that some negative consequence may occur to the foreman or general foreman, who made the direction, if the task is not properly performed. Furthermore, the foreman or general foreman must have authority to take corrective action if the task is not performed properly or be subject to corrective action for failing to see the work was properly performed. The last term defined was independent judgment. The NLRB found a judgment is not independent if it is controlled by detailed instructions, whether from company policies or rules, verbal instruction from a higher authority or collective bargaining agreement provisions. Thus, if the collective bargaining agreement dictated that seniority was required in making the assignment, this is not an independent judgment. However, if a company policy does not eliminate independent judgment from decision-making and allows for discretionary choices, it is an independent judgment under the NLRA. Furthermore, the degree of discretion must be more than routine or clerical. In determining whether a foreman or general foreman, contractors should ask the following questions to determine whether their ability to make assignments makes them a statutory supervisor:
If the answer is yes to any of these three questions, an additional question is whether the assignment involves independent judgment or is controlled by detailed instructions, such as company policies or rules, verbal instructions from a higher supervisor or manager, or covered by the collective bargaining agreement. If so, the assignment does not involve independent judgment and is not the basis of a finding of supervisory status. However, if the assignment does involve independent judgment, supervisory status will be established. In order to determine whether a foreman or general foreman has the authority responsibly to direct employees, one should ask the following questions:
If the answer is yes to each one of the above questions, the foreman or general foreman individual is a statutory supervisor. |