The federal National Labor Relations Act (the “NLRA”) protects the rights of most private sector employees to form a labor union or other organization with the purpose of protecting worker rights and improving terms and conditions of employment. The NLRA specifically excludes “supervisors” from the ranks of employees who enjoy these rights. Who is a supervisor under this federal law?
Under the NLRA, an individual with authority to perform any one of twelve (12) specified job functions may be a supervisor, if the individual’s exercise of authority requires the use of independent judgment.
The twelve supervisory functions basically involve things you would expect supervisors to do. Specifically, the twelve job functions listed by the law are “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.”
The law further specifies that an individual’s authority to perform these job functions must not be clerical or routine, but it must require the use of independent judgment. This may depend on whether the supervisor can act independently or requires the approval of others in the company before acting.
Especially because someone can be a supervisor if he or she can recommend these actions, even if the final decision belongs to another manager, it is difficult to determine, in the abstract, when an individual is or is not exercising independent judgment in his or her job. It is therefore likely that any court or agency dealing with this issue will examine it on a case by case basis, assessing the particular circumstances to determine whether a particular individual is an employee or a supervisor.
As noted above, supervisors are not afforded the same rights and union protections as employees under the NLRA. The question of who is or is not a supervisor may arise in several situations, such as when employees seek to form a union or other labor organization (supervisors would not be included), or when an employee the employer believed was a supervisor tried to file a union grievance.
The participation of supervisors in employee unionizing efforts may affect the employees’ rights and the employer’s obligations. As such, employers should consult with counsel regarding the specific facts of any situation to determine which employees may be supervisors under any applicable federal, state or local law.