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Making More Paper Might be the Only Way to Keep Supervisors on Your Side – For Now

In unionized and non-union workforces alike, whether a worker is considered a “supervisor” under the National Labor Relations Act (the “NLRA”) can affect how a company interacts with its workers and what information it provides them. The basic idea is that the company should be able to rely on the undivided loyalty of certain employees. Conversely, employees should be free to organize without supervisory interference. The National Labor Relations Board (the “Board”) has recently made it more difficult to know which employees qualify as supervisors. It seems likely that any Trump appointments to the Board will shift the balance and hopefully provide more clarity. In any event, companies would be well-advised to heed the message of these decisions — to be sure your supervisors stay on your side, it is important to have the paperwork to back it up.

As the sole dissenter in recent supervisor cases, Member Miscimarra points out that the Board’s analysis has become “increasingly abstract” in focusing on the employer’s ability to put forward extensive documentation rather than the realities of the workplace. In one case, the Board determined that road supervisors were not supervisors under the NLRA, based in part on the company’s documentation that did not reflect some of the duties of a statutory supervisor. Member Miscimarra noted that the majority view failed the “test of common sense,” because it meant that there were 615 field employees who had no supervisors in the field at all. To avoid results like this, Member Miscimarra proposes that the Board look at three additional factors: (1) the nature of the company’s operations; (2) the type of work performed by employees the company classifies as non-supervisors; and (3) the plausibility that some other employees other than those in dispute perform all of the company’s supervisory duties. The Board’s composition will presumably shift to a majority of Republicans once Trump makes his appointments. So we can hope that the slippery standard that the Board uses in supervisor cases will either be applied in a more employer-favorable way in the future, or that the Board may even adopt the modified standard advocated by Member Miscimarra.

Generating more paper is the last thing most companies want to do, but doing so is often more helpful than relying on testimony and argument. Companies should check written job descriptions to make sure they include supervisory activities. Disciplinary forms should show that the supervisors make recommendations or directly take disciplinary action. Performance evaluations of supervisors should include an evaluation of supervisory duties. No matter what happens to the Board’s composition or what specific factors and evidence are considered, creating helpful documentation makes it more likely that a company can keep its supervisors on its side.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.