Supervisors are excluded from coverage of the National Labor Relations Act under the Section 2 definition of “employee.” Section 14(a) also exempts employers from the duty to consider supervisors as employees under any law relating to collective bargaining.
Notably, the Board has overruled a rigid rule that once excluded professionals from supervisory status if they supervised non-unit employees less than 50 percent of the time. The current requirement is for “a complete examination of all the factors present to determine the nature of the individual’s alliance with management.” Some of the factors considered are the business of the employer, the duties of the individuals exercising supervisory authority versus those of the bargaining unit employees, the particular supervisory functions exercised, and the degree of control exercised over the non-unit employees.
Unlike supervisors, managerial employees, who have no supervisory functions, are not explicitly excluded from the protection of the Act. For example project engineers, unit heads in a legal clinic, ship pilots, nurses, and payroll / personnel administrators have been found to not be managerial employees. However, the managing attorney and an assistant training in a legal clinic, a credit manager, and a buyer for a manufacturer of paper products have been considered managerial.
The nuances of whether an employee is managerial or supervisory are slim. Prudent companies engage competent legal counsel to help identify whether employees are managerial and subject to unionization or supervisory and exempt from the NLRA.
Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.