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Possible Impact of New NLRB on Employers

by Brian R. Garrison

By now, most everyone has heard about organized labor’s biggest priority, the Employee Free Choice Act (EFCA) — an unprecedented attempt by labor unions to organize non-union employers. But while the EFCA has garnered the lion’s share of media attention, a recent less publicized change may have a similar impact on federal labor law: the composition of the National Labor Relations Board (NLRB).

President Barack Obama is charged with filling three vacancies on the NLRB. His nominations for two of the spots indicate that the new Board will be much more prolabor than in the recent past. Consequently, employers should expect several proemployer NLRB rulings to be overturned. This article looks at two areas of the law that the Obama NLRB is likely to reverse. It also provides tips on how employers should prepare for the changes that may lie ahead.

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Nonunion employees and the right to coworker representation
In a 1975 decision, the U.S. Supreme Court upheld an NLRB decision giving employees the right to union representation during investigative interviews (also known as Weingarten rights, named after the Supreme Court case establishing the privilege). Then, in 2000, the NLRB ruled that workers in nonunionized workplaces also had Weingarten rights. That meant employees had the right to have a coworker present during any investigative interview they reasonably believed might result in disciplinary action.

That was the rule until 2004, when the NLRB overruled its 2000 decision and found that Weingarten rights for non-union employees were outweighed by the “employer’s right to conduct prompt, efficient, thorough and confidential workplace investigations.”

Although that is still the law today, under the Obama Board, the pendulum may swing back to the NLRB’s 2000 holding entitling both union and non-union employees to Weingarten rights. If that happens, non-union employers will have to make significant changes to their current investigation policies and practices. At a minimum, employers will have to incorporate broader employee rights into their current policies and ensure that all managers and supervisors are prepared to implement those policies in accordance with the scope of employee rights granted by the NLRB.

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Who is a supervisor under the NLRA?
Only “employees” are entitled to protection under the National Labor Relations Act (NLRA), meaning anyone classified as a “supervisor” is excluded from coverage. The NLRA defines a “supervisor” as a person who has the authority, in the interest of the employer, to do any one of the following using “independent judgment and discretion”:

  • hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline employees;
  • responsibly direct employees; or
  • adjust or recommend action for employee grievances.

In 2006, the NLRB clarified its interpretation of “independent judgment,” “assign,” and “responsibly direct.” It ruled that to “assign” means “designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee.”

The NLRB defined the authority to “responsibly direct” to mean that the individual has “men under him . . . and decides what job shall be undertaken next or who shall do it” and is “accountable for the performance of the task.” For him to be “accountable,” an employer must have “delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary.” Additionally, there must be “a prospect of adverse consequences for the putative supervisor” resulting from his direction of other employees.

It’s important to note that Board Member Wilma Liebman strongly dissented from the 2006 ruling and argued that the definitions would result in certain individuals being “supervisors” when they should be “employees” under the NLRA.

NLRB Member Liebman is now Board Chair Liebman. Thus, if given the opportunity to review the decision with new Board members appointed by President Obama, who represents a more pro-labor view of the law, the NLRB could reverse its stance and return to a stricter definition of supervisory status. That would mean that fewer individuals would be exempt from the NLRA’s coverage because of their status as supervisors, and unions would have more employees as organizing targets.

Also, remember that congressional Democrats have been attempting to gather support for the Re-Empowerment of Skilled Professional Employees and Construction Tradeworkers (RESPECT) Act. The RESPECT Act would amend the NLRA to the extent that individuals who “assign” or “responsibly direct” other employees would not be deemed supervisors. Thus, they would be subject to organization by labor unions. The RESPECT Act also would require that an individual spend the majority of his work time on supervisory duties to be deemed a supervisor.

So what does it all mean? Basically, there are two pending threats to the current interpretation of a “supervisor” under the NLRA. It’s not known how long it will be before the interpretation changes. In the meantime, employers must make sure that individuals who are currently designated as “supervisors” are assigned and actually possess the responsibilities outlined above, which are essential to supervisory status under the NLRA.

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Bottom line
For now, employers are free to operate under the employer-friendly decisions that have come from the NLRB in recent years. But beware: Because the constitution of the NLRB shifts with political tides, there is no guarantee that those decisions will continue to stand.