On September 30, in one of its most prolific moves of 2010, the National Labor Relations Board (NLRB) issued 28 decisions addressing a variety of issues affecting labor-management relations and the scope of prohibited employer conduct in the context of union elections.
With the addition of three new NLRB members, two of whom have backgrounds advocating on behalf of unions, observers of the Board have predicted a shift in favor of greater restrictions on employers, particularly in the context of union campaigns. This article examines three of the most notable decisions issued on September 30 and their significant implications for employers.
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Board clarifies outer boundaries of supervisory status
In the first decision, the NLRB confronted the complex issue of who is a supervisor for purposes of the National Labor Relations Act (NLRA). It’s a critical determination because supervisors aren’t subject to the rights and protections created by the Act and therefore cannot organize or vote in union elections. Further, given their regular contact with employees, supervisors are often a critical asset for employers in the context of union campaigns in both providing information about employee concerns and disseminating employer messages.
The NLRA defines “supervisor” as an individual with the authority to undertake — or to effectively recommend — “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.” However, a supervisor’s actions in carrying out these acts cannot be routine or clerical in nature. Rather, they must involve “the use of independent judgment.” It was this requirement that foiled the employer in the following case.
The employer manufactured automotive parts. In 2006, it became the subject of a union-organizing campaign. The campaign targeted two types of individuals — “team members” and “team leaders.” The employer argued that the team leaders should be considered supervisors within the meaning of the NLRA and therefore outside the scope of the proposed bargaining unit.
The employer identified several functions performed by the team leaders that it claimed justified supervisory status, but each of the arguments was rejected by the NLRB. The Board’s statements regarding the various job functions of the alleged supervisors provide a useful guide for employers in evaluating the potential status of their own “supervisors” and are therefore worth reviewing.
The initial justification offered by the employer to support its claim that the team leaders were supervisors was that they train new team members. That contention was rejected out of hand by the NLRB because training isn’t one of the indicia of supervisory status set forth in the NLRA.
The Board likewise rejected the employer’s reliance on the fact that team leaders complete evaluations of team members because the evaluations don’t affect team members’ wages or job status. Further, while the team leaders sign time sheets and make time clock corrections, the NLRB found that those acts are clerical in nature and don’t involve the exercise of independent judgment.
The employer identified two other statutory indicia of supervisory status that the team leaders allegedly possessed — namely, the ability to assign and discipline employees. These assertions, however, were also dismissed by the Board.
The employer claimed that team leaders have the ability to “assign employees” within the meaning of the NLRA in that they create rotation schedules in which employees are assigned to various tasks in the course of their shifts. Team leaders apply the schedules daily and, on occasion, modify them as necessary.
Nevertheless, the NLRB concluded that those actions don’t involve the exercise of independent judgment because team leaders don’t consider the relative skills of team members when assigning them to various positions. Rather, workers are rotated evenly among all tasks. Such routine direction was held not to involve sufficient discretion on the part of the team leaders.
Finally, the NLRB rejected the employer’s argument that its team leaders have the authority to discipline employees. The Board found that team leaders’ ability to issue discipline forms for employee a was irrelevant because the discipline is “clerical and nondiscretionary” in nature. While the team leaders have the authority to issue discipline forms for issues not related to attendance, the Board found that fact immaterial because the disciplinary forms require a manager’s signature before they can serve as a basis for actual discipline and because the employer couldn’t produce evidence that a form issued by a team leader had ever resulted in a change of a worker’s employment status.
The NLRB’s decision that the team leaders aren’t supervisors under the NLRA had significant consequences for the employer because they were made part of the bargaining unit and given the right to cast ballots in the election. Further, the employer’s termination of a team leader for actions on behalf of the union was found to be an unfair labor practice based on the Board’s finding that the employee wasn’t a supervisor and was therefore entitled to the Act’s protections against retaliation. Pacific Coast M.S. Industries Co., 355 NLRB No. 226.
Bottom line. Employers, particularly those that anticipate a union-organizing campaign, will want to review the job functions of employees that they consider supervisors. Job titles are irrelevant to the NLRB’s analysis. The question of supervisory status turns on the employer’s ability to identify at least one of the functions named in the statute that is actually performed by the employee. Moreover, the performance of the statutory functions must involve a measure of true discretion as opposed to merely acting in accordance with detailed instructions from the employer. Given the critical role that supervisors play in union-organizing campaigns, properly identifying who is a supervisor is a necessity for employers.
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Employer lands in hot water over statement regarding ‘frozen’ benefits
The NLRB’s next decision examined the much-litigated issue of employer speech in the context of a union-organizing campaign. The type of statements that an employer can lawfully make during a campaign turns on a balancing of the NLRA’s prohibition on conduct by an employer that interferes with or coerces employees’ exercise of their right to organize with the employer’s right to express its views on unionization, which is not itself an unfair labor practice.
The conduct at issue in the case was the employer’s statement that in the event the union was victorious in the upcoming election, “all of [the employees’] wages and benefits would be frozen pending the outcome of negotiations.” In evaluating the comment, the NLRB started with two widely acknowledged principles.
First, an employer is barred from making any threat to withdraw a benefit from employees in the event of an unfavorable election result. Second, an employer has the right to explain to employees that if they elect to be represented by a union, their terms of employment will be determined by the results of collective bargaining and that the bargaining may result in a given benefit being increased, being decreased, or staying the same.
At first glance, the employer’s statement that wages and benefits would be frozen pending negotiations in the event of a union victory would appear not to run afoul of the rule barring threats to reduce benefits. Indeed, similar statements have previously been deemed in compliance with the strictures of the NLRA. However, in this case, the employer was undone by an additional fact that tipped the NLRB’s decision.
The employer had a practice of granting regular wage increases to employees. The threat of withholding scheduled wage increases if the employer loses an election cannot be used as a tool to sway an employee’s vote. Thus, the employer’s statement that wages would be “frozen” in the event of a union victory was not a protected statement that the status quo would remain following the election. Instead, it was deemed an unfair labor practice based on the NLRB’s conclusion that it amounted to an implied threat to withhold a previously promised wage increase in the event of an unfavorable election result. DHL Express, Inc., 355 NLRB No. 224.
Bottom line. Any statement made by an employer during a union campaign is subject to scrutiny by the NLRB, meaning you should make campaign pronouncements only after consulting with counsel. Statements made to employees cannot include a threat to take away a previously promised benefit, and any predictions about the potential adverse effects of unionization must be based on objective facts and limited to addressing consequences that are beyond the employer’s control. However, you remain free to explain to employees the mechanics of the collective bargaining process and make clear that future decisions affecting wages and benefits will depend on the outcome of the bargaining process if a union is elected.
Lack of written policy undoes employer in retaliation case
The final case demonstrates the dangers of making employment decisions during a union campaign when the decisions aren’t supported by workplace policies previously disseminated to employees. The employer in the case terminated an employee for allegedly abusing Family and Medical Leave Act (FMLA) leave by attending a union campaign rally during the first 20 minutes of a shift from which he had been excused to care for his daughter. (It was undisputed that the employee used the remainder of his leave time to care for his daughter.) He alleged that his termination was an act of retaliation for his vocal support of the union.
In defending its decision, the employer introduced evidence that it had previously terminated nine other employees who had been granted FMLA leave but used the leave for an improper purpose. However, the employer had no written policy providing for the termination of employees who used FMLA leave for a nonqualifying reason. The NLRB ultimately found the instances of FMLA abuse for which the employer had terminated other employees were distinguishable because the employee at issue had used only part of his leave time for an improper purpose.
The absence of a written policy, coupled with several statements by the employer that suggested antiunion animus, ultimately prevented the employer from satisfying its burden to refute the evidence that the employee’s union activity was a motivating factor for his discharge by showing that it would have taken the same disciplinary action in the absence of his union activity. The NLRB ordered reinstatement of the employee and back pay. Bally’s Park Place, Inc., 355 NLRB No. 218.
Bottom line. You should carefully review your employment policies to ensure they fully reflect expectations for employee conduct. Once the policies are in place, they should be applied consistently to all workers. Consistency is critical in refuting an assertion of retaliatory intent, whether it’s based on union activity or anything else protected by law. Moreover, you must avoid expressions of union animus. Failure to do so can result in wide-ranging difficulties for an employer attempting to resist a union-organizing campaign.
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Employer takeaway
Presumably, you have noticed a common theme in these decisions — all three cases were resolved against the employer. Numerous observers have speculated that recent changes in the NLRB’s membership will portend stricter regulation of employer conduct during the course of union campaigns and a more robust interpretation of the NLRA’s protections for employees.
Regardless of the extent to which those predictions are borne out in the coming months, it is readily apparent that employers, particularly those apt to be targeted for organization, should consult with counsel to ensure a proper and effective response to a union-organizing campaign. That’s particularly true in light of the heightened scrutiny to which your conduct is likely to be subjected.