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Employment Blog

Are Your Supervisors Really Supervisors?

Authored by Dean R. Dietrich
Posted on January 27, 2016
Filed under Employment

A recent decision from the Federal Fourth Circuit Court of Appeals has created some question regarding the definition of supervisor under the National Labor Relations Act (NLRA).  In a recent, unpublished decision, the Fourth Circuit upheld the finding by the National Labor Relations Board (Board) that certain supervisors of the company did not actually qualify as supervisors under the definition in the NLRA. 

The gravamen of this case was whether the employees, who were called supervisors and who oversaw the daily work of between 20 and 40 workers, actually used “independent judgment” when performing their supervisory duties.  It was determined by the Court of Appeals that there was some evidence these employees performed supervisory duties by managing the workforce, but they did not exercise independent judgment in performing their supervisory duties.  The Fourth Circuit then held that the employees were not considered supervisors under the NLRA and their conduct was not inappropriate to overturn a successful union organizing election.

Essentially, the Fourth Circuit Justices upheld the decision of the Board by finding that the employees involved did not perform sufficient independent activities and did not take action or recommend actions that were “free of the control of others” and therefore did not use independent judgment in performing their supervisory duties.  Because of this, the Board held that these employees were eligible to be in the union and the conduct they engaged in during the union election process did not taint the process to such a degree to allow the company to seek an overturning of the election results.

The importance of this decision is that the Board will look at the degree of independent judgment and degree of independent discretion that a supervisor will use when making supervisory decisions and if it appears their decisions are programmed by higher-level management, the Board will conclude that these employees are not truly supervisors and do not exercise the degree of independence required under the NLRA to be excluded from union eligibility.  Companies should be careful to ensure their supervisory/management employees are truly exercising independent judgment and have the ability to make decisions on their own with some limited oversight by higher-level management.