Wednesday, October 17, 2012
The National Labor Relations Board has been aggressively seeking to narrow the interpretation of "supervisor" in an effort to expand the opportunities for unions to organize "employees," who, by definition under the National Labor Relations Act, are not "supervisors." The U.S. Court of Appeals for the Eleventh Circuit recently refused to enforce a Board decision against Lakeland Health Care Associates, LLC.
The Act's Definition of Supervisor
Under Section 2(11) of the NLRA, a supervisor is … any individual having authority, 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.
Given the continuing and possibly accelerating leftward tilt of the Board and the Regions, we expect an increasing number of petitions to the U.S. Courts of Appeal for review of the Board's expansive interpretations of the NLRA. Employers can be expected to resist and challenge any Board efforts to "meticulously exclude or disregard" evidence. Supervisory status was the issue central to the Lakeland case -- and it is a big issue -- but other areas where the Board positions are vulnerable to court challenge include social media policies, non-unionized workplaces, employee rules, and employment-at-will and other statements in employee handbooks and policy manuals. Read More