Have you ever really thought about the question? Most of us certainly have a notion or loose definition of the term and we probably know one when we see one. Under the current National Labor Relations Board this question has taken on much greater importance than many of us think. So let’s explore what defines a supervisor and look at why it is important.
In Section 2 of the National Labor Relations Act the law gives a definition of who is considered a supervisor. This definition reads:
(11) The term “supervisor” means 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.
This probably matches what most of us thought a supervisor was and may reflect what they do in your organization. But what happens when they don’t do all that stuff? What if they only do some of it? The answer is that someone may try to unionize them.
Making supervisors“just” employees
Unions have been trying to get the definition of a supervisor changed for years. Supervisors are often the first line of defense in warding off unionization and if they are redefined and become part of the employee group a union is trying to organize the company is put at a severe disadvantage. This is what happened in the case of Lakeland Health Care Associates. A union represented a group of Certified Nursing Assistants (CNAs) and they wanted to represent the Licensed Practical Nurses (LPNs) as well. They argued that the LPNs were not supervisors and the NLRB bought it. So the union was certified as the representative of the LPNs. Lakeland protested and filed an appeal.
11 Circuit Judges overturn the NLRB
On appeal Lakeland said that the LPNs supervised the work of the CNAs, albeit, not all the time, but enough to meet the definition of “supervisor” under the NLRA, Section 2. The judges (the two judge majority anyway) applied a commonly held standard that an individual is a “supervisor” for NLRA purposes if “(1) he or she has the authority to perform one of the twelve supervisory functions described in the statute; (2) the exercise of that authority requires the use of independent judgment; and (3) such authority is held in the interest of the employer.”
The judges found that the LPNs did have the ability to coach in the disciplinary process and had the ability to recommend suspension or termination. They did not do this all the time (I am glad they were not, that would have been a pretty unstable workforce) which was noted by the judges who said that frequency of supervision was not the issue.
Their conclusion was that the NLRB had wrongfully certified the union and overturned their representation of the LPNs. The even better news is that the LPNs can no longer be targets of representation attempts because supervisors are NOT covered by the National Labor Relations Act.
The lesson from this is to make sure anyone you define as a supervisor does indeed perform one of these twelve functions. “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.” Make sure you allow them the opportunity to exercise that independent judgment, as that does seem to be an important component.
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