Section 15.53 Exceptions

• Library: Construction Law 2016 Supp

1. (§15.53) Exceptions

Section 7, 29 U.S.C. § 157, rights are guaranteed only to “[e]mployees.” Under NLRB and court precedent, an employee is ineligible to vote as a “temporary employee” only if a definite termination date has been established. NLRB v. New England Lithographic Co., 589 F.2d 29, 33–34 (1^st Cir. 1978); see also U.S. Aluminum Corp.-Northeast, 305 N.L.R.B. 719 (1991). No protection is afforded by NLRA § 7 to employers or labor organizations. Certain groups of workers are not included in the NLRA’s definition of employee, such as agricultural workers, independent contractors, supervisors, and other managerial employees.

Section 2(3) of the NLRA, 29 U.S.C. § 152(3), excludes supervisors from the definition of “employee.” The Act sets forth a test for determining supervisory status. Employees are statutory supervisors if:

· they hold the authority to engage in any 1 of the 12 listed supervisory functions;

· their exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment; and

· their authority is held in the interest of the employer.

Franklin Hosp. Med. Ctr., 337 N.L.R.B. No. 132, p. 8 (2002); see also NLRB v. Ky. River Cmty. Care, 532 U.S. 706, 710–14 (2001).

To support a finding of supervisory status, an individual must possess one or more of the indicia set forth in NLRA § 2(11), 29 U.S.C. § 152(11), and exercise that authority in a manner that is not merely routine or clerical in nature. NLRA § 2(11) defines a supervisor as:

[A]ny 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 term “responsibly to direct” involves whether an employee is held fully accountable and responsible for the performance and work product of the employees he or she directs. Me. Yankee Atomic Power Co. v. NLRB, 624 F.2d 347, 361 (1^st Cir. 1980).

The NLRB has consistently held that these statutory indicia of supervisory status are to be read in the disjunctive. If an individual possess any one of the indicia, exercised with independent judgment, that individual is a supervisor. See, e.g., Ingram Barge Co., 336...