In Labor Management Relations, there has always been a fairly clear divide between management and labor. And in that division, supervisors have consistently been considered part of management. They schedule employees, discipline employees, give them assignments and instruction on what to do, and generally act as the employer’s frontline contact with the employees who work for them. As part of that basic understanding, Section 2(3) of the National Labor Relations Act (“NLRA”) specifically excludes supervisors from the bargaining units containing the employees they supervise. In a rather transparent election year gift to organized labor, however, several Democratic senators are seeking to change those rules and include almost any current supervisor in the very same bargaining unit with the employees they lead.
OnMarch 7, 2012, Senators Tom Harkin (D-IA), Richard Blumenthal (D-CT), and Dick Durbin (D-IL) reintroduced in the Senate the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act to significantly modify who is a supervisor that would be excluded from a potential bargaining unit. Currently, Section 2(11) of the NLRA defines a supervisor as “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.” The RESPECT Act would make two major changes to this definition. First, it would eliminate the most common supervisory duties of “assigning” and “responsibly directing” other employees. Second, the proposed Act would also require that supervisors spend a majority of their work time performing the remaining duties. Since assigning and directing employees would no longer be supervisory responsibilities, a “supervisor” would need to spend a majority of his or her time performing what are essentially human resources functions: hiring, transferring, suspending, laying off, recalling, promoting, discharging or disciplining employees, or adjusting grievances. Even in a large corporate human resources or labor relations department, we encounter few people who spend a majority of their time performing these limited tasks.
Under the proposed definition, almost any current supervisor could be included in the same bargaining unit with the employees who report to them. Unlike now where frontline supervisors are a key in communicating management’s messages and responding to employees’ questions during a union organizing drive, they will no longer be available to speak for the employer during those campaigns. And since these newly “unionized” supervisors might still discipline the employees who work for them (which, like now, would be an occasional event and not the majority of their time), many bargaining units would contain both the individual imposing the discipline and the employee that received it. It will be an interesting arbitration hearing where management must rely on a union-represented supervisor to provide the evidence sustaining his recommendation to discharge a union brother or sister. It will also be interesting to see what happens when many workplaces (in fact, most retail stores, construction worksites, warehouses, and even manufacturing facilities) have no one who is exempt from union organizing. Like where the fox is being asked to guard the henhouse, we suspect that many facilities will have no one present to represent the employer’s interests. And when a workplace becomes unmanageable because there is no management left, perhaps the last supervisor under this new definition will be asked to turn off the lights (unless even that is determined to be bargaining unit work).