Are a company’s lead persons actually the company’s legal agents under the National Labor Relations Act?

An individual meeting the definition of “supervisor” under the Act is not eligible to vote in a union election and, as an agent of the employer, the supervisor’s wrongful statements and actions may be imputed to the employer, making the employer liable for violating the NLRA. The employer also may have its supervisors communicate with employees about union issues on its behalf (e.g., while off shift or in languages other than English). The National Labor Relations Board’s new expedited representation case rules, scheduled to go into effect on April 14, eliminating an employer’s right to a pre-election determination about the supervisory status of its employees, makes it more important than ever before for employers to determine in advance who is a “supervisor” under the Act. 

One of the most litigated issues before the NLRB since its beginnings has been whether lead persons qualify as supervisors. When Congress first debated the NLRA during the Great Depression, business owners reacted with universal dismay. If we were sitting in a business leaders’ legislative affairs meeting at the time, we might have heard the following: 

Our working foremen cannot be eligible to support, vote for, and join a union. They are our eyes, ears, and de facto managers of other hourly employees. We are entitled to their total loyalty, provided we require they act lawfully in resisting a union organizing drive. If you allow them to unionize, they will be placed in an untenable conflict of interest. For example, if a foreman was voted in as the local union president, how could he discipline a fellow union member? 

Congress decided the business community was right and included a section to the Act defining who qualifies as a company’s supervisor — legal agent — regardless of job title: 

Section 2(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.

Eighty years after the NLRA became law, the legal status of leads still presents an issue. Here is an example of how it can arise: 

• The company had been advised to reduce the number of plant-level first line supervisors to “inform Wall Street” the company has reduced indirect headcount to be more productive and streamlined. 

• At the same time, an outside consultant has advised Human Resources to implement self-directed work teams, further reducing the need for supervisors. 

• Finally, the few remaining supervisors spend the majority of their time sending spreadsheets of production data to the corporate office. They rarely appear on the plant floor. Day-to-day “management” of the hourly work force has been left to leads who are hourly workers. 

• On Friday afternoon at 4:30 p.m. a copy of a union election petition filed with the NLRB Regional office is faxed to the plant manager. 

• The union petition proposes the following employees be eligible to vote: “All production leads, operators, technicians, and all maintenance employees.”

• The plant manager states, “We cannot have our leads vote because they are managing our folks.” 

• The company’s CEO asks, “What do we do now?” 

Currently, the employer in this example almost always has the right to insist that a pre-election NLRB evidentiary hearing be held to determine whether the “leads” are statutory supervisors. The employer may present evidence in support of its position and the Director of the NLRB Regional Office will make a decision. If the decision is adverse, the employer may appeal it to the Board in Washington, D.C. 

That right, however, will disappear on April 14, the date the NLRB’s new election rule takes effect. Under the rule, whether leads are statutory supervisors may be litigated only after the election is held. 

The dilemma the new rule presents to an unprepared employer is this: if an election petition seeks to include leads as eligible voters, and the company believes the leads truly are statutory supervisors who should be excluded, the company would have to mount its pre-election campaign without an NLRB determination on the leads’ supervisory status. It would not know if the leads are supervisors, who may communicate the employer’s message to employees, or members of the bargaining unit, who are protected by the NLRA and eligible to vote. Moreover, if the leads engage in misconduct before the vote and the union loses the election, the union then may allege the leads actually are supervisors whose unfair labor practices should overturn the vote. The uncertainty is likely to hamstring many employers in the run-up to a representation election.