How to turn Employees into Supervisors - One Example

The difference between employees and supervisors is a crucial one for employers who have unionized employees or may have them in the future.  Supervisors can be required to represent or carry out an employer's goals, employees may be unwilling or prohibited from doing so.  For example, during a union organizing campaign, supervisors can be required to participate and support the employer's education campaign, and employees may not be required to do so.  Further, supervisors generally do not belong to unions, and do not negotiate as a group over wages, benefits and working conditions.  

These distinctions can be crucial where you have employees who perform some supervisory functions, but also work alongside unionized employees.  It is especially complex where you have a situation where the duties of lead employees who belong the union have changed over time to include discipline, scheduling, hiring and firing and similar duties.  In that case, these lead employees may be pressured or required by their union not to participate in some of their duties. For example, some unions prohibit union members from testifying in an arbitration against brother or sister union members.  Other unions may not have an official policy, but you may find that some of your 'management' witnesses suddenly have a very shaky recollection of why they imposed the discipline that they imposed as a supervisor.

The typical process is to file a 'UC' or 'Unit Clarification' petition with the NLRB.  This can be a long and involved process, depending on what region of the NLRB your business is located and how vigorously the union opposes the petition.  In other cases, you can negotiate changes to the bargaining unit successfully with the union.

A third option requires the sale or contracting out of the work done by the bargaining unit.  In that case, there may be a window of opportunity for the new employer to make substantial changes to the way the work is done by the employees.

In an advice memorandum issued by the NLRB's Office of the General Counsel, the OGC advised the regional office to dismiss the charge filed by the Teamsters, who represented the RNs affected by the changes.  This decision, although not binding, resulted from the fact that the new (or 'successor') employer correctly followed the procedures created by the NLRB v. Burns International Security Services, Inc. and Spruce Up Corporation cases.

Specifically, Blue Hills Health and Rehabilitation, LLC. announced that it had been awarded the contract to operate the facility, that it would recognize SEIU Local 1199 as the representative of the LNs and CNAs (Certified Nursing Assistants), and that it was changing the duties of the RNs represented by the Teamster, consistent with how Blue Hills managed other facilities.  RNs would now have the ability to independently issue discipline and prepare employee appraisals that would affect pay increases and bonuses.

The Teamsters objected to these changes after Blue Hills took the position that it would not bargain with the union regarding the RNs, as they were now supervisory employees.  However, the Teamsters did not object to the changes Blue Hills had announced several months ago.  Because Blue Hills had properly announced their changes to the initial terms and conditions of employment of the RNs when they were awarded the contract, they were not 'perfectly clear' successors under the Spruce Up Corporation case.

Navigating the balancing test created by the Burns and Spruce Up cases is difficult even in perfect circumstances.  The most crucial factors in this case were:

  • There was no anti-union animus against the Teamsters by Blue Hills (or the original employer) as the changes were based on the way Blue Hills managed other facilities.
  • Blue Hills recognized SEIU as representing the LNs and CNAs without complaint.
  • Blue Hills recognized the opportunity created by the new contract prior to taking over the facility, so they were able to announce the new responsibilities for the RNs from Day 1.
  • Blue Hills maintained a consistent position throughout the entire process.
  • The RNs were in fact given the authority to issue discipline and assess employees, and that award of authority was not a subterfuge to get rid of the Teamsters.

The supervisory status of Registered Nurses under Section 2(11) of the NLRA is the focus point of much of the litigation about whether someone is a supervisor or an employee.  However, these issues affect every employer who has lead employees, foremen or any other kind of quasi-supervisor.  

 

If you have any questions, please do not hesitate to contact me at tor@tor.org.  This post is a publication of Christensen Law, LLC.  More details can be found at www.tor.org