The tugboat captains case makes painfully clear that identifying and clarifying who is --- and who is not --- a supervisor in the eyes of the NLRB is fraught with difficulty and risk for employers. Getting it wrong one way or the other can result in unfair labor practice charges, re-running of union elections, the overturning of employees choice to decertify their union, and other serious consequences for an employer.
(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.
- hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees
- responsibly direct other employees
- adjust grievances of other employees
- effectively recommend such action.
- Gathering and analyzing available evidence of the actual exercise of supervisory authority, in terms of each individual employee. Such evidence might include documents such as:
- Train managers and those identified as supervisors about expectations for supervisors, and how they will be held accountable.
- Include supervisors as much as appropriate in management communications generally.
- If necessary, make modifications such as increasing the authority given to the employees in question --- or, move in the opposite direction with an objective of assuring that they will not be found to be supervisors.
- Partner
Mark Mathison advises and represents a wide range of employers, including corporations, nonprofits, and educational organizations, on labor and employment law issues in the workplace. Mark’s practice has a significant focus ...
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