Do Your Supervisors Actually Make Decisions?
By Ruder Ware Alumni
March 31, 2016
A recent decision of the Fourth Circuit Court of Appeals puts a spotlight on that question: Do your supervisors exercise discretion when supervising others? This question is important because the recent Court of Appeals decision held that several employees who were identified as supervisors actually did not exercise sufficient discretion to meet the definition of supervisory status and a union election result was allowed to continue because the employees that were identified as supervisors did not actually qualify as a supervisor.
The nuances of this Court of Appeals decision as it relates to an election for union membership is not as important as the findings by the Court that the four employees did not qualify as a supervisor under the NLRB definition. The Court of Appeals held that these employees did not exercise discretion when performing their supervisory duties and therefore did not meet the definition of a supervisor. One example was that employees were given blank discipline notices (like written reprimands) and told to issue those written reprimands every time an employee violated a company policy or directive. The Court found that this lack of discretion in deciding whether or not to issue a discipline notice showed the employees actually were not supervisory and did not exercise the appropriate level of supervisory discretion.
This decision was rendered in a union election case but it re-emphasizes and reinforces the narrow view of what is a supervisor under federal law. The conclusion is that the employee must exercise discretion and be given the authority to use that discretion when supervising employees and making employment-based decisions in order for the individual employee to qualify as a supervisor. If the employee has no discretion or is directed by higher-level management in all instances, the individual employee may not be considered a supervisor and may be eligible for union representation and other types of protections. Employers should be careful to make sure their individual employees do exercise discretion while acting as a supervisor.
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