Jordan Ramis pc. Attorneys at law
Some Foremen Eligible for Union Membership
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

By John Hickey
From the Jordan Ramis Archives

Sometimes construction foremen are on a union's list of employees to organize. But if an organizer thinks the foremen are not going to vote for the union, the organizer may argue that they should not be included in the voting unit.

To exclude them, the organizer will argue that the foremen are supervisors — a class not eligible for union membership under the National Labor Relations Act (the "Act"). Certainly, many construction foremen perform functions like those of a supervisor. But whether the organizer will win the argument depends on the definition of supervisorunder the Act.

The Act defines supervisor as any person who engages in supervisory functions, exercises that authority with independent judgment and holds that authority in the interest of the employer. Often, the issue is whether a foreman actually performs a supervisory function. The Act lists 12 supervisory functions: hiring, transferring, suspending, laying off, recalling, promoting, discharging, assigning, rewarding, disciplining, responsibly directing, or effectively recommending any of the prior 11 functions.

For years the National Labor Relations Board (the "Board") failed to give much guidance. In September, however, the Board decided two cases that clarify whether an employee is asupervisor because that employee assigns or responsibly directs other employees.

In Oakwood Healthcare, a hospital argued that its charge nurses engaged in supervisory functions because they assigned work to other nurses. Regular charge nurses assigned other nurses to patients and emergency room charge nurses assigned nurses to cover areas within the emergency room. The Board found that regular charge nurses performed a supervisory function because they gave overall tasks to other nurses by assigning them to patients, and emergency room charge nurses performed a supervisory function because they designated other nurses to a place. The Board noted that the power to give "bum assignments" and "plum assignments" was important to the employees and to management but the power to designate the order of tasks within those assignments was not.

In Croft Metals, Inc., the Board refined its definition of assigning. A manufacturer of aluminum and vinyl doors and windows asserted that its lead persons were supervisors because they had the authority to assign tasks to other employees. The lead persons did not schedule the work to be completed on any particular day but switched tasks among employees of their crew in order to meet daily production goals. The Board concluded that the lead persons did not perform a supervisory function because they assigned only discrete tasks, not overall duties, to their crew.

Thus, if a construction company's foremen had the authority to choose the work their crew would complete on a particular day, the Board would probably determine that they performed a supervisory function similar that of the charge nurses in Oakwood Healthcare.But if they merely directed employees to certain tasks after the superintendent had set the schedule, the Board would probably determine that, just like the lead persons in Croft Metals, they did not perform the supervisory function of assigning because they did not influence their crew's overall duties.

The Board's decisions also addressed whether an employee had the authority to "responsibly direct" as a supervisor. In Oakwood Healthcare, charge nurses were accountable for properly assigning nurses to patients but not for the nurses' performance. The Board determined that charge nurses did not perform a supervisory function because they were accountable for only their own performance, not that of the nurses they directed.

Conversely, in Croft Metals, the employer issued written warnings to lead persons if their crew failed to meet production goals or if their crew failed in other ways to meet the standard expected. The Board concluded that written warnings adequately satisfied the accountability standard and concluded that the lead persons did perform a supervisory function.

Thus, to perform the supervisory function of responsibly directing, a foreman must be accountable for the performance of his crew to the extent that there would be some punishment for the foreman if the tasks performed by the crew were not performed properly.