National Labour Relations Act

The National Labour Relations Act [1] (NLRA) was enacted in 1935. With the aim of protecting the rights of employees and employers, promote collective bargaining, and restrain certain labour practises that impact negatively on people’s welfare [2] . This Act begins by stating that the purpose is to improve the bargaining powers of workers:

The inequality of bargaining power between employees......and employers.....substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions by depressing wage rates and the purchasing power of wage earners.....and by preventing the stabilization of competitive wage rates and working conditions within and between industries....

It is hereby declared to be the policy of the United States to eliminate the cause of substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practise and procedure of collective bargaining.....

The NLRA is administered and enforced by the National Labour Relations Board (NLRB) [3] which is a federal agency that deals with the enforcement of the Act. The Board implements the law, interprets the Act rules on contested issues. In addition it safeguards employees’ rights to organize and determine whether to have unions as their bargaining representative.

The NLRA applies only to dealings that fall within the federal jurisdiction. [4] The federal government ability to regulate labour management relations is limited by the commerce clause of us constitution [5] .The congress for that reason regulates labour-management relations where employers enterprise affects interstate commerce.

Who is protected by the NLRA?

The NLRA covers private sector employees in industries other than airlines, railways and agriculture. Managers, supervisors and domestic workers are not protected by the protections of the Act.

Section 7 [6] , of NLRA provides employees with the right to.....

form, join, or assist labour organization to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual or protection.

The above section is enforced by section 8(a) (1) of the NLRA which prohibits employers from interfering with, restraining, or coercing employees in their exercise of their right to self organization. All employees in both union and non union are conferred with the right to engage in protected activities which are usually group activities of two or more employees acting together in an attempt to improve working conditions. An employer who disciplines or otherwise interferes with employee by engaging in section 7 activity may be committing an unfair labour practise.

The NLRA excludes certain categories of employees from its protections and privileges despite the fact that the employees work for enterprise engaged in interstate commerce [7] and amongst them is a supervisor. As a result, they have no organizations rights and no rights to engage in protected activities. What then is required to achieve a supervisor status? Under Section 2(11) of the Act [8] , a “supervisor" is defined as,

any individual having the 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 this exercise is not of a routine or of any clerical nature, but needs the use of autonomous judgment.

From the definition, individuals are supervisors under the statute if :they have the power, to involve in any of the 12 named supervisory functions [9] ; their use of this power is not a routine no is it of a clerical nature, but makes use of autonomous judgement and their power is in the attention of the employer [10] .

Within Oakwood Healthcare case [11] , the Board finally provided the clarification by defining 3 statutory terms used to determine who a supervisor is as follows;

Independent judgement

The Board defined independent judgement to be judgment that is exercised in a non-routine manner and non- clerical matter that is free of control by others and not dictated or controlled by detailed instructions. In the Oakwood healthcare, 12 permanent charge nurses at an acute care hospital were deemed to be supervisor since they assigned work to other nurses using independent judgement. The Board was of the opinion that this assignment involved independent judgement because it required the nurses to assess;

a) Various patients’ conditions and nurses needs

b) Various patients’ conditions and nurses needs

.c) The quantity of work to be assigned to each nurse.

On the other hand, in the golden crest case [12] the Board held that the charged nurses were not supervisors because they lacked the independent judgement to make assignments because most assignments were mere requests rather than mandates. Secondly, mandate communicated by charged nurses to nursing assistants were the results of directions from one of the charge nurses.

Also, in the croft metals the Board held that the person at a manufacturing facility did not exercise supervisory authority under the Act. The board was of the opinion that the employer could not establish that lead persons exercise independent judgement in directing their crew or line members. The Board went on and explained that the leads persons exercise of judgement was fundamentally controlled by pre-established guidelines.

2. Assign

The word “assign [13] " was defined by the board as one of the following:

a) Designation of an employee to any given place (like a location, wing, or department),

b) Appointment of an employee to time (like shift and overtime period), or

c) The Giving of significant duties, such as tasks to the employee.

To the Board, the assigning of an employee to a department (like housewares) or to a shift (like day) or to significant tasks (like restocking shelves) will qualify as “assign". However, selecting the manner in which an employee will perform distinct tasks within these assignments (for example, restocking toasters before filling coffeemakers) is not indicative of exercising the power to “assign."

By way of example, in the healthcare aspect, the Board has explained that,

The word ‘‘assign’’ includes the charge of the responsibility of nurses’ in order to assign nurses and aides to particular patients.... [I]if the nurse in charge designates an LPN to be the one who will normally administer medication to patients or group of patients, the assigning of that duty to the LPN is in effect an assignment. On the other hand, the action of the nurse in charge to order an LPN to effectively give a sedative to a patient does not amount to an assignment.... [T]o “assign" ... means the charge nurse’s description of significant duties to employees, not to the charge nurse’s informal instructions that the employees carry out the discrete task.

3) RESPONSIBILITY TO DIRECT

NLRB construed the phrase ‘‘responsibly to direct’’ as not limited to managerial employees such as departments heads, but to any person who has ‘‘men under him’’, who decides ‘‘what job shall be undertaken next or who shall do it,’’ and who provides ‘‘responsible’’ direction carried out with independent judgement. For this direction to be ‘‘responsible ,’’the individual directing and performing the overseeing of the employees should be accountable for their performance of the task and by those of others, in such a manner that some difficult consequences may happen to the one doing the overseeing where the task done by the employee is not performed correctly.

In dismissing employer’s allegations that the nurses’ in charge duties involve “responsible direction" for other employees, the Board argued that, ‘for this direction to be “responsible," the one with the duty of directing and performing the oversight of the employee should be responsible for the results of the tasks by the others, in such a manner that some adverse consequence may happen to the one giving the oversight where the tasks being performed by the employee are not done correctly.’’

To prove responsibility for reasons of responsible direction, it should be proven that the employer assigned to the supposed supervisor the right to give direction to the work and the power to take a proactive action, where necessary. In addition, there should be a vision of adverse penalty for the supposed supervisor if they do not take these steps.

The Board held the position that the nurse in charge in Oakwood did not show any responsible direction since there wasn’t any evidence which showed that they were needed to take counteractive action in case a subordinate refused to finish a task correctly, and that there was no evidence to show that the charge nurses were question to discipline or to lower levels of evaluations where the staff under their direction botched to perform adequately.

From the foregoing, it is evident that supervisors are not covered by the NLRA .However, in exceptional situation supervisors are covered if they have suffered adverse employment action because they:

a) Gave testimony adverse to employer interest during an NLRB proceeding (see Kessel Food Markets v NLRB 868 F.2d881 (6th Cir.1989)

b) Refused to commit unfair labour practices (Country Boy Markets 283 NLRB 122(1987)

c)Failed to prevent unionization (Talladega Cotton Factory106 NLRB 295 (1953))

DO PROFESSIONALS QUALIFY TO BE SUPERVISORS?

After the major amendment to the NLRA in 1947, the Act extended its coverage to professionals in the field of engineering, chemistry, science, architecture and nursing [14] . Precedents have demonstrated that this criterion is not applicable in all situations. The Supreme Court ruled in NLRB v Yeshiva University [15] , the Supreme Court rejected the Board’s decision when it held that university professor who exercised independent judgement in determining curriculum, raging system, admission, and other academic policies were not excluded because they were supervisors. The board also held [16] that the faculty exercised this independent judgement in its professional interest and not in the interest of its employers. The Supreme Court rejected this distinction and held that the faculty interest could not be separated from those of the university. They found that the employers were supervisors but it did not rule out that all professionals were supervisors and not covered by the Act.

To sum up who qualifies to be under the umbrella of a supervisor, issues should be decided to fact specific case by case approach. Policies that are influential in the administration of the NLRA which can be factored in include: free choice protection against employer manipulation which could follow from permitting representative of management to take part in the election process; Employees who don’t need to be protected since they enjoy protection by virtue of employment status; permitting a union voice that would hinder employees from performing their task satisfactorily.

Can a supervisor be included in a private sector bargaining unit?

A bargaining unit [17] is defined as a group of workers within a plant, firm, occupation or industry that, on the basis of commonality of interest or production process; is determined by the NLRB for the purposes of collective bargaining. Union is the exclusive representative of all employees in the bargaining unit. Union membership outside a bargaining unit has less power.

Collective bargaining is organized around the concept of a bargaining unit. If workers show sufficient interest in a particular workplace, NLRB determines the appropriate unit and conduct elections among employees working in the union to determine whether majority favor the union. If the union wins elections, it is certified and becomes representative of the unit. Once certified the employer and the union have the duty to bargain for a collective agreement that will govern the condition of employment for all workers in the union [18] . If the collective agreement is achieved the union has a duty to administer and enforce the contract on behalf of the covered employee. Once employees are unionized and the union requests recognition by the employer, the union becomes employees’ exclusive bargaining representative, and the employer is prohibited from acting directly with represented employee concerning terms and conditions of work.

Employees who are ‘supervisors’ as defined in the NLRA are not allowed to have union representation or take part in collective bargaining. Supervisors with the help of lead counsel should help employers to determine which employees are excluded from union participation. The employer is bound by the actions of a supervisor. If a supervisor participates in collective bargaining campaign chances of interference with the bargaining process are high and employers should ensure its supervisors refrain from such actions. Since a supervisors are not covered by the protective provisions of the NLRA, a supervisor union activity is a ground for termination.

An employer can voluntarily recognize a union as the representative of unit which includes supervisors’ [19] .Once the union gains recognition, it may engage in collective bargaining on behalf of its supervisors if the employer consents or waives the right to challenge the inclusion of particular employees on the basis of their supervisory status. If an employer keeps potential supervisors in a unit, voluntary recognition agreements must be drafted. [20] This is because an employer has waived his statutory right to withdraw its agreement. Once the employer has agreed to recognize the union as the representative of the disputed individuals and has executed an agreement with the union, the employer cannot unilaterally eliminate anyone from the unit during the subsistence of the contract despite the fact that members of the unit are potentially statutory supervisors [21] . The agreement should clearly and explicitly state that the employer waives any statutory right it posses to withdraw recognition or seek to alter the scope of the unit through filing a UC petition with the NLRB on grounds that some or all of employees at issues are supervisors after expiration of any future collective bargaining agreement. [22]