Since the new “ambush” election rules went into effect on April 14, 2015, there have been over 1,000 petitions for elections filed with the National Labor Relations Board (NLRB). Approximately 60 of those petitions have led to pre-election representation-(R-case) hearings to determine unit issues. I participated in one of those 60 or so cases earlier this month and had the opportunity to glean insights on how the new procedures impact employers.

Section 2(11) Supervisory Status

The issues facing employers in these cases are difficult to comprehend until you are in the midst of one of these campaigns. One of the issues in our case was whether a large number of employees in the proposed unit were “supervisors” as defined in Section 2(11) of the National Labor Relations Act. In recent years, the NLRB has continuously squeezed the statutory definition of “supervisor” to include as many individuals as possible in proposed units. This approach was exemplified by the Board in its recent decision in Cook Inlet Tug & Barge, Inc., 362 NLRB No. 111, in which the Board found that tugboat captains were not statutory supervisors. One of the issues the Board highlighted in that case was how poorly the company had developed the record with respect to the supervisor issue. Under the new “ambush” election rules, this problem is even greater.

The case I had before the Regional Director involved a highly complex employer whose supervisors exercised special technical skill and knowledge in the performance of their roles within the company. During the process of the case, we encountered a number of difficulties. First, the compressed timeline for a hearing made it exceptionally difficult to meet with potential witnesses and to understand the highly technical and complex nature of the work the supervisors performed.

The next difficulty was taking that knowledge and translating it into the Board’s test for supervisory status. Section 2(11) defines “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.

This analysis is reasonably straightforward, except with regard to the “responsibly to direct” and “assign” work functions. Given the difficulty in meeting with witnesses and boiling down the duties of their complex positions, the employer was at an immediate disadvantage in preparing for the expedited hearing.

Further, the Regional Director ruled in advance of the hearing that while evidence on the issue would be taken, post-hearing briefs would not be allowed. This meant the witnesses, who were themselves highly-trained individuals working in technical fields, had to “dumb down” their testimony to create a full and understandable record with minimal time to prepare. Thus, preparing the evidence was a difficult task for everyone involved.

Key Takeaways

The key takeaway was that employers should consciously and thoroughly review their supervisor positions ahead of any petition to prepare for these inquiries. Even if an employer is lucky enough to obtain an evidentiary hearing before the election is scheduled, it can be very difficult to prepare the case if the supervisory status of employees in the proposed unit is not clear cut. Performing the analysis ahead of time and creating a plan of attack to protect the supervisory status of your employees is critical in the new reality of “ambush” elections.

If you have borderline Section 2(11) supervisors, you should review those positions and prepare evidence of their status in advance. Further, employers whose analysis fails to pass muster should take the opportunity to review Section 2(11), consult with legal counsel, and determine the most practical way to ensure that their supervisors will not be dragged into a union election.



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Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

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