July 25, 2018

In a unionized setting, employees who are “supervisors” have a special status. Legally, under the National Labor Relations Act (“NLRA”), “[t]he 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.” 29 U.S.C. § 152(11). Such individuals are known, in the parlance of the National Labor Relations Board (“NLRB”), as “2(11) supervisors” or “statutory supervisors.”

The NLRB has explained: “An individual need only exercise one of the functions enumerated in Section 2(11) to be found to be a supervisor. The burden of proof lies with the party asserting that an individual is a supervisor. Where the possession of any one of the powers listed in Section 2(11) is not conclusively established, the Board looks to secondary indicia to determine supervisory status. Those indicia include the individual's job title or designation and authority to grant time off, higher compensation and the perceptions of others as to the individual's authority. However, when there is no evidence that an individual possesses any one of the statutory indicia, the secondary indicia are insufficient by themselves to establish supervisory status. (Citations omitted.)” Sam’s Club, 349 NLRB 1007 (2007).

The task of identifying supervisors is a very fact-specific and often litigated matter before the NLRB. Whether a person has supervisory status will determine, among other matters, that person’s eligibility to vote in a union election, whether he/she has rights protected by the NLRA, and whether he/she can bind the employer by statements and actions. The following briefly describes some important aspects of supervisory status when the employer is unionized.

A. Union Organizing

Statutory supervisors may not be included in a bargaining unit with nonsupervisory personnel. They are not covered by the NLRA and thus are not protected by the law. Therefore, they are subject to discipline for engaging in union or “concerted activity.” E.g., Westwood Health Care Center, 330 NLRB 935, 966 (2000) (Employer legally terminated supervisors “for defying management’s instructions to cease advocating and supporting [the union’s] campaign to organize the [the employer’] nurses and to support [the employer] in its opposition thereto.”) Moreover, if supervisors are involved in supporting a union by, for example, encouraging employees to sign union authorization cards, this can be determined to be objectionable conduct that can lead to overturning a pro-union election result. In Harborside Healthcare, Inc., 343 NLRB No. 100 (2004), the NLRB explained that the issue of whether prounion supervisory conduct upsets the laboratory conditions necessary for a fair election is determined by two factors:
(1) Whether the supervisor's prounion conduct reasonably tended to coerce or interfere with the employees' exercise of free choice in the election. This inquiry includes:

(a) consideration of the nature and degree of supervisory authority possessed by those who engage in the prounion conduct; and (b) an examination of the nature, extent, and context of the conduct in question.

(2) Whether the conduct interfered with freedom of choice to the extent that it materially affected the outcome of the election, based on factors such as (a) the margin of victory in the election; (b) whether the conduct at issue was widespread or isolated; (c) the timing of the conduct; (d) the extent to which the conduct became known; and (e) the lingering effect of the conduct. Id. at 4.

More typical is the case where a supervisor’s anti-union statements during a campaign cross a legal line and lead to the overturn of a pro-employer outcome: “Election campaign statements by supervisors which reasonably cause prounion employees to fear reprisal or to expect reward if they exercise their Section 7 rights will ordinarily be attributed to the employer and found objectionable.” Id. at 1. This is why training of supervisors about what to do in a union organizing effort is critical. Such training is often summarized by the acronym “TIPS”: NO TIPS stands for what is not allowed:

NO T - Threats Do not threaten employees to cause them to refrain from union activity.
NO I -Interrogations Do not ask questions of employees about their union sentiments or activities. (It’s ok to carry on a discussion if it is friendly and voluntary.)
NO P - Promises Do not promise employees benefits to have them reject the union.
NO S - Surveillance Do not spy on or maintain surveillance on employees in the exercise of their right to engage in union activity.

If supervisors are involved in campaigning for the employer, it is recommended that they receive detailed training about what to say, how to say it, and when to seek help from upper management and/or human resources personnel. The “Obama Board” continues its attempts to implement rules that will make it easier for unions to organize unrepresented employees. These so-called “quickie election” rules, very recently reintroduced after some initial legal challenges in the courts, would provide for faster elections, in part by postponing the decision about who is a “statutory supervisor” and thus ineligible to vote, until after a vote is actually taken.

Additionally, since its decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (Aug. 26, 2011), aff’d, KindredNursing Centers East, LLC v.NLRB , 2013 US App LEXIS 16919 (6th Cir. Aug. 15, 2103) the Board has continued to approve the use of so-called “micro-unions.” In that decision, the NLRB found when a union petitions “for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which could also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger uni share an overwhelming community of interest with those in the petitioned-for unit.” 357 NLRB at 12 (footnotes omitted).

As a practical matter, this means that unions will often be allowed to organize small groups of employees within a facility and “cherry-pick” the small groups they wish to unionize. An example was the approval of a bargaining unit consisting of all women’s shoes associates in the Bergdorf Goodman department store in New York City. Decision and Direction of Election, Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, NLRB Case No. 2-RC-076954 (May 4, 2012). The full NLRB is still reviewing the Bergdorf Goodman case.

B. Administering the Contract
Once a union is in place, supervisors play a critical role in administrationof the collective bargaining agreement. They are the day-to-day representatives of management and it is important that they understand the contractual provisions that apply to their areas of supervision.

1. The Importance of Consistency

Arbitrators sometimes look at the “past practice” of the parties to determine whether a contract has been violated. Generally, arbitral authority recognizes that a collective bargaining agreement may not be changed or modified by past practice of the parties.

However when the contract is silent on a particular point then such demonstrated agreements may be elevated to the level of a contractual undertaking. It is also possible that where the contract lacks detail or specificity on a subject even through it is generally dealt with an arbitrator may uphold the asserted definition or put flesh on the bones of that language based upon how the parties have acted over the years. As this arbitrator noted in Oakland University,106 LA 872:

[Such past practice should not be] inconsistent with the contract, is regularly followed over an extended period of time, with the knowledge of both parties and with acceptance. The more overt and regular the particular action is, the less doubt there is that both parties knew what was going on. This, combined with many years of repetition continuing through numerous new collective bargaining agreements, emphasizes the intent of a contractual commitment.

Siemens Energy & Automation, 121 LA 825, 828 (Arb. Daniel, 2005). The danger for an employer is that if supervisors are not acting consistently, the employer may not be able to establish an enforceable “past practice” in ambiguous areas, or the supervisors may create an ambiguity where it otherwise would not exist. For example, where consistency is lacking, an arbitrator reviewing a supervisor’s decision may overturn that decision. As one arbitrator has explained:

“At least two general principles are common to most, if not all, arbitration cases involving discharges, and these are nothing more or less than ingredients of due process: (1) There must be reasonable rules or standards, consistently applied and enforced and widely disseminated; and the consequences of their violation must be fairly predictable; (2) Management’s charges must be supported by substantial evidence, although this requirement may be relaxed if the employee has committed similar transgressions in the past. [In this case,] [t]he Company has met the second test by presenting substantial evidence of violation of the attendance policy. Satisfying the first test, on the other hand, is another matter. While the reasonableness of the rules, agreed to by the Union, is not in question, the basic flaw in the Company’s position, according to the weight of the evidence, is that the disciplinary rules have not been consistently applied and enforced. Supervisory bias and poor maintenance of attendance records are the reasons for

the latter conclusion.” Worcester Quality Foods, 90 LA 1305, 1309 (Arb. Rocha 1988) (emphasis added) (quoting National Academy of Arbitrators, Arbitration Awards in Discharge Cases, 28 LA 930, 931-32 (1957)).

Some areas where questions about contract interpretation typically arise include:

• Overtime
• Scheduling
• Seniority (e.g., when determining temporary layoffs or scheduling)
• Discipline
• Grievances

Supervisors are encouraged to take the time to familiarize themselves with the collective bargaining agreements that apply to employees they supervise, to consult with applicable provisions in the agreements when dealing with unionized employees, to apply the provisions consistently, and to talk to appropriate human resources/labor relations specialists if any questions arise.

2. “Unilateral Changes” in Working Conditions and Refusal to Bargain in Good Faith

Under the National Labor Relations Act, is it generally unlawful to make changes in employees’ “wages, hours, and working conditions” without first bargaining with the employees’ union. The law defines such “mandatory subjects of bargaining” very broadly. Seemingly trivial issues might become the subject of an unfair labor practice charge, especially if it involves some change that the employees (or even a single employee) oppose(s).

Thus, operational changes that affect unionized employees should be discussed with appropriate human resources/labor relations personnel before implementation. Many times, of course, the change may be non-controversial or a decision will be made that the change is clearly within the employer’s “management rights,” but the issue should be addressed before a “unilateral” change is made.

3. Probationary Period for Union Employees

Closely tracking an employee’s performance in his/her early days is a critical management responsibility. Usually, a CBA provides that unionized employees do not have recourse to the CBA grievance procedure until they have successfully completed a probationary period of a specified duration. While such a provision does not preclude aggrieved probationary employees from filing certain claims (e.g., federal or state discrimination or harassment claims), it does preclude a union grievance and, as a practical matter, the number of probationary employees who file claims against employers is low. Thus, managers have much more discretion to take action against unionized employees early in their employment.

C. Conducting Investigations

1. The Weingarten Rule For Disciplinary Interviews

For over thirty years, as part of protected concerted activities, unionized employees may request union representation during a disciplinary interview. Specifically, under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), a unionized employee is entitled to request union representation at any investigative interview that the employee reasonably believes might result in disciplinary action. The following Weingarten rules apply:

• An employee who is being interviewed and who reasonably believes that the interview may lead to discipline may request the presence of a union representative. The rationale is that the presence of a representative may help deter the employer from “imposing punishment unjustly.”
• This right does not arise if the meeting could not reasonably lead to discipline. For example, if the meeting is intended to communicate an already-rendered disciplinary decision, there is no right to representation. (However, it is arguable that a drug test, based upon reasonable cause, might reasonably lead to discipline, in which case the employee may be entitled to request a union representative at the drug test.)
• The employer need not affirmatively inform the employee of his or her Weingarten rights -- i.e., there is no Miranda-type duty to read the employee his or her rights. Accordingly, the employee has no right to representation if he or she never requests it.
• Supervisors and independent contractors are not covered by the NLRA and, thus, may not assert Weingarten rights.
• If the union representative specifically requested by the employee is not available, the employer should give the employee the opportunity to have another, available union representative. If the employee refuses the opportunity, then the employer may proceed with the interview without violating the NLRA (i.e., the employer need not delay the meeting, so long as any qualified union representative is available).
• If an appropriate representative is available, the employee must be allowed a reasonable opportunity to speak with that representative before the interview can proceed.
• Once the interview begins, the representative cannot be required to remain silent but, instead, may speak and counsel the employee or even propose alternatives. However, the employer does not have to bargain with or make concessions to the representative.
• Generally, the employee should be compensated for the time spent at the interview, regardless of whether the interview is during working hours or not.
• If the employee is terminated for asserting his Weingarten rights, the Board may order reinstatement with backpay.

2. Confidentiality Concerns

In Banner Health System, 358 NLRB No. 93 (July 30, 2012), the Board found that a blanket prohibition on discussing human resources complaints during the pendency of an investigation violated the NLRA because it failed to minimize the impact on employees’ Section 7 rights to engage in protected, concerted activity. During interviews, the employer’s HR consultant “routinely” asked employees not to discuss HR complaints until the investigation was complete. The ban was one of six bullet points included on the employer’s “interview of complainant” form, but the consultant never issued a threat of discipline in connection with the ban. The Board majority found that the employer’s concern with protecting the integrity of its investigations did not outweigh the its potential impact on employees’ Section 7 rights because the ban did not take into account whether witnesses needed protection, whether there was a threat of destruction of evidence or fabrication of testimony, or whether there was danger of a cover-up. Thus, the majority found the blanket ban on discussing HR complaints would tend to interfere with employees’ right to discuss terms and conditions of employment and held that it violated the Act.

In American Baptist Homes of the West dba Piedmont Gardens, 359 NLRB No. 46 (Dec. 15, 2012), the NLRB has overruled its 1978 decision in Anheuser- Busch and will apply a balancing test when a union requests the production of witness statements that are necessary and relevant to its representational role, but in which an employer has a legitimate and substantial confidentiality interest.

In the case at hand, several employees of a continuing-care facility notified their HR director that they had seen another employee sleeping while on duty. At the director’s request, witness statements were prepared, and following their review, the employee was terminated. A union representative then sent an information request to the employer for “[a]ny and all statements that [were used] as part of your investigation into [the employee]” as well as “[t]he names and job title of everyone [who] was involved in the investigation.” The employer refused, citing Anheuser-Busch, but offered an accommodation to disclose.

The Board would not be persuaded that there is some fundamental difference between witness statements and other types of information that justifies a blanket rule exempting such statements from disclosure. The Board now finds it more appropriate to apply the same flexible approach that it applies in cases involving witness names. That test, as set forth in Detroit Edison, requires that if the requested information is determined to be relevant, the party asserting the confidentiality defense has the burden of proving that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information. “We find that this approach will effectively protect both the employer and the witnesses where the employer demonstrates a reasonable concern regarding confidentiality, harassment, or coercion, while also safeguarding the union’s statutory right to obtain information relevant to grievance processing,” the Board stated.

In his dissent, then-Member Member Hayes argued that the bright-line rule of Anheuser-Busch serves long-recognized important labor policies. The rule protects the integrity of the arbitration process, protects employee witnesses who participate in workplace investigations from coercion and intimidation, and enables employers to conduct effective investigations into workplace misconduct, stated Hayes.

Hayes also noted that requiring the production of witness statements absent an employer’s provn superior confidentiality claim conflicts with existing guidance from the EEOC regarding confidentiality. The EEOC has stated that confidentiality is a key component of an effective workplace investigation of harassment. The EEOC’s “Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors” provides that “an antiharassment policy and complaint procedure should contain, at a minimum, the following elements: . . . Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.” The guidance continues: “An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible.”

D. Issues for All Employees: Protected, Concerted Activity

All employees (including non-unionized employees) of covered employers are protected by the NLRA to the extent that they engage in: (a) concerted activity; (b) that is for mutual aid or protection (i.e., relating to some employment-related issue); and (c) that is not deliberately false or otherwise unduly disloyal or disruptive. Reef Indus., Inc., 300 NLRB 956 (1990).

“Protected, concerted activity” is defined broadly. In Datwyler Rubber and Plastics, Inc., 350 NLRB 669 (2007), for example, the Board found that the Employer violated the law by discharging an employee for speaking at a meeting on behalf of herself and her co-workers about their terms and conditions of employment and for telling the employer’s general manager that he was a devil and that Jesus Christ would punish him and the employer for requiring seven-day workweek. The circumstances of the case included: (1) the employee’s outburst occurred during an employee meeting in a breakroom, (2) the outburst occurred during discussion of employee complaints about the seven-day workweek, (3) the outburst did not contain profane language and was spontaneous, brief, and unaccompanied by physical contact or threat of physical harm, and (4) the outburst was provoked by a manager’s unlawful threats of discharge.

Similarly, where a number of employees distributed a t-shirt that made fun of a supervisor’s comments concerning a labor issue (i.e., the supervisor had claimed during a representation hearing that the workforce was poorly educated, and the t-shirt depicted an exaggeratedly moronic character), the Board held that such activity was protected and that it was improper for the company to have terminated the responsible employees. Id.

By contrast, an employer may ban union slogans or apparel “when their display may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, or when necessary to maintain decorum and discipline among employees.” Komatsu Am. Corp., 342 NLRB 649, 650 (2004). In Komatsu, after the employer decided to outsource work to Japan, the employees designed and wore t-shirts that said, “December 7, 1941” and “History Repeats; Negotiate Not Intimidate.” Finding that the employer could lawfully bar such shirts, the Board reasoned that, even if wearing the shirts were protected activity, the ban was justified where the shirts were inflammatory, offensive, and “appeal[ed] to ethnic prejudices,” and the parties had a longstanding bargaining relationship with no showing of hostility.

In Caterpillar Tractor Co., 276 NLRB 1323 (1985), employees distributed an unflattering cartoon of a supervisor with “animal-like characteristics,” having “clearly defined male genitals” and “engaged in excretory functions.” Even if this cartoon were designed by two or more employees who had a disagreement with the supervisor over a labor issue, the Board concluded that it was sufficiently “malicious” to not be treated as protected concerted activity.

Even when a “group” of employees is not clearly involved in the activity, the activity may nevertheless be protected. According to the NLRB, it is “well settled that the activity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much ‘concerted activity’ as is ordinary group activity.” An individual who “attempts to bring a group complaint to the attention of management” also is engaged in concerted conduct that is protected by the law. See, e.g., Phillips Petroleum Co., 339 NLRB 916, 918 (2003).

Moreover, “[n]o union need be involved, any activity by a single employee may be protected if it seeks to initiate, induce or prepare for group action.” Prill v. NLRB (Meyers Indus.), 835 F.2d 1481 (D.C. Cir. 1987). This protection includes, for example, discussions about safety related issues between two or more employees. Systems with Reliability, Inc., 322 NLRB 757 (1996); Transit Mgmt. of Southeast La., 331 N.L.R.B. 248, 249 (2000).

On July 22, 2008, the General Counsel of the NLRB issued a guideline memorandum to help determine when political advocacy by employees (such as participating in pro-immigration demonstrations) amounts to protected concerted activity under the NLRA. According to the guideline memorandum, the test for determining whether political advocacy is protected is “whether there is a direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employees.” For example, “employee appeals to legislators or governmental agencies [are] protected” where they involve such topics as the minimum wage, hospital staffing levels, employee drug testing, and workplace and environmental safety laws. By contrast, nurses whose advocacy relates to patient-care quality are not engaging in protected activity, and the distribution of materials relating to certain candidates “without reference to any particular employment-related issues” is not protected. The guideline memorandum further explains that even if the political advocacy would otherwise be protected, it may lose its protection if it is carried out by unprotected means. Advocacy that is disruptive in the workplace, that takes place while an employee is on duty, or that involves employees leaving or stopping work to engage in it “is subject to restrictions imposed by [an employer’s] lawful and neutrally-applied work rules.”

More recently, the issue of protected, concerted activity has been coming up in the context of social media policies. In September 2012 the NLRB issued two decisions involving employers’ social media policies. In Costco Wholesale Club, 358 NLRB No. 106 (Sept. 7, 2012), found the company’s electronic posting rules overly broad. Costco's policy had banned workers from posting statements online that harmed the company's reputation — or anyone else's. The Board's decision did not establish specialized criteria for evaluating whether social media use restrictions inhibit employee rights under the NLRA, but rather applied traditional principles to the new technology and found that broad prohibitions could interfere with employees' rights to discuss their working conditions. The Board held that although Costco's rule did not explicitly bar employees from engaging in the concerted activities the Act protects, it was nonetheless too broad because employees could read it as a ban on protesting the company's treatment of its workers.

Then, in Karl Knauz BMW, 358 NLRB No. 164 (Sept. 28, 2012), while the Board found than an automobile dealership did not wrongfully discharge a car salesperson for his Facebook postings, the dealership’s “courtesy” rule was overly broad and tended to chill Section 7 rights. The salesperson and several coworkers were unhappy with the quality of refreshments served at a dealership event promoting a new BMW model and were concerned that the subpar offerings of hotdogs, cookies, and chips would have a detrimental effect on sales of the luxury vehicles and, thus, their sales commissions. The salespersons discussed their concerns with each other (including the fact that a Mercedes Benz dealership had hors d’oeuvres and servers at a similar sales event), but they did not complain to management. After the event, the salesperson posted photos and several critical comments on his Facebook page, including “I was happy to see that Knauz went “All Out” for the most important launch of a new BMW in years … the new 5 series. A car that will generate tens in millions of dollars in revenues for Knauz over the next few years. The small 8 oz. bags of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch … but to top it all off…the Hot Dog Cart. Where our clients could attain an overcooked wiener and a stale bun …” The salesperson had 95 Facebook friends, 15 or 16 of whom were coworkers, and several commented on his postings.

Also that day, the salesperson posted photos of an embarrassing and potentially dangerous accident involving a vehicle from an adjacent dealership (also owned by his employer) that had been driven into a pond. Apparently, the salesperson there had allowed a customer’s 13-year-old son to sit behind the wheel following a test drive, and the boy hit the gas, ran over his parent’s foot, jumped the wall and drove into a pond. “OOPS,” the salesperson noted sarcastically on his Facebook page. The general manager confronted the salesperson with printouts of his Facebook posts. “What were you thinking?” he asked, noting that he had received calls from other dealers and that the employee had embarrassed the dealership. The salesperson responded that it was “none of your business.” Despite a later attempt to apologize, he was discharged, and he filed a charge with the NLRB asserting that his termination violated the Act.

An administrative law judge found the postings about the sales event (and subsequent exchange of comments) were protected because they involved coworkers who were concerned about the effect of the low-cost food on the dealership’s image and, ultimately, their commissions. Moreover, the comments did not rise to the level of disparagement to deprive him of the Act’s protections. However, the Facebook postings involving the car accident were not protected. Thus, the question came down to whether the salesperson was fired exclusively for posting the accident photos or was also discharged in part for the mocking comments and photos about the sales event.

Concluding that the salesperson had been terminated for the accident-related Facebook postings and not the sales event postings, the law judge concluded that the salesperson was not unlawfully terminated for engaging in protected activity. In a ruling issued precisely one year later, the NLRB agreed.

The Board panel also adopted the law judge’s finding that the employer promulgated an unlawfully overbroad “courtesy” work rule. The challenged provision stated: “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” The law judge concluded such a directive could reasonably be interpreted as curtailing Section 7 rights, citing the Board’s previous concern about the use of the inherently subjective term “disrespectful.” The Board majority agreed that the language of the work rule would lead employees to reasonably believe that any statements of protest or criticism, even those protected by the Act, were prohibited. “There is nothing in the rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule’s broad reach,” the majority observed.