Government Affairs Corner

Determining which employees are supervisors is critically important for all employers, whether they are unionized, union free, or somewhere in between. The most obvious distinction between "supervisors" and "employees" involves the rights guaranteed by the National Labor Relations Act to engage in concerted and protected activities, and to join or form a union.

Decisions Answer a Basic Question: Who Is a Supervisor?

Beyond the decisional history and legal reasoning, the National Labor Relations Board September 29th Kentucky River trilogy of cases provides the framework for employers to answer the question, who are supervisors? Everyone understands they are the face of management and the people who see that tasks are accomplished, directives carried out, and standards maintained. They are also the organization's ambassadors who can be expected to motivate others and help the organization achieve its objectives.

Historically, challenges to supervisory status have come in the context of union campaigns: who is, and who is not, protected by law when engaging in organizing activities and given the right to vote in a union election. However, supervisory status becomes important whether or not a union comes knocking:

• Who should be included in management training sessions on understanding the law of equal employment opportunity and maintaining an issue-free workplace;
• Who can be counted on to communicate and implement positive employee relations programs and policies;
• Who may be considered an agent of the employer but behaving outside the bounds of lawful or acceptable workplace conduct, thereby creating a liability risk for the organization?

What Should Employers Be Doing Now

Given the importance and significance of understanding and clarifying who are supervisors, employers should scrutinize job descriptions and actual work duties to determine which employees meet the supervisory criteria identified by the Board.

In non-union workplaces, employers can take modest steps to enhance the supervisory status of individuals who meet some of the criteria but not all. These steps include the clear articulation of the authority to direct and assign work, and the expectation by management that they will be held accountable for the performance of that work by their subordinates. Employers also can advise the individuals meeting the criteria for supervisory status what their status means in terms of ineligibility for unionization and how to respond to signs of union activity.

Employers with unionized workplaces should review the current responsibilities of employees and determine if any of them satisfy the Labor Board's clarified definition of "supervisor." If so, there may be an opportunity to raise this issue before the NLRB with the assistance of labor counsel.

Additionally, during contract negotiations, management should be aware of union attempts to include language that will undermine any possibility of supervisory status for positions that may be susceptible.

Jackson Lewis LLP is a national law firm representing management exclusively in workplace law and related litigation coast to coast. For more information about the firm, please visit www.jacksonlewis.com. For questions concerning this article, or workplace law generally, please contact Dallas Managing Partner Chris Antone, (214) 647-2095; AntoneC@jacksonlewis.com. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis LLP. © 2006 Jackson Lewis, LLP

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