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Employment Law/union advice follow up question


I am part of a support staff union at the school district were I work at. Union members and leaders have been pushing for our bosses position to be in the same union with the rest of us. his job title is DIRECTOR of BUILDINGS and GROUNDS. I didn't know if that would be legal to do that? thank you jimmy

ANSWER: Jimmy:

As is the case with so many issues under the National Labor Relations Act, there is no easy answer to your question.  Under Section 2(11) of the NLRA, a “supervisor” is any individual having the authority, in the interest of an employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of authority is not of a merely routine or clerical nature, but requires use of independent judgment.  

Thus, individuals are statutory supervisors if (1) they possess the authority to engage in any one of the twelve supervisory functions listed above or can effectively recommend any one of the twelve functions; (2) their exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment; and (3) their authority is held “in the interest of the employer.”  

Applying this definition to specific cases has caused numerous legal disputes over the years, and the courts as well as the NLRB have often had difficulty reaching a conclusion.  

The only thing that is clear is that if a person is a "supervisor" under this definition, he or she is not covered by the Act and does not have a legal right to be represented by a union.  But it depends on the specific facts of each case.

As a general rule, the more actual authority an employee has in the areas outlined in the Act, the more likely he will be classified as a "supervisor."  But since I don't know anything about the job duties of the employee who is the subject of your question, I can't give you a more definite opinion as to whether he lawfully could be placed in the bargaining unit.

I hope you find this helpful.

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QUESTION: thank you for getting back to me. As far as with his job duties he is in charge of day to day operations of the custodial and maintence staff and functions of the operations of our buildings there. He does have the power to write up and terminate employments of employees. Our union tried to get the school board to change his position into a union position from a salary position ,but the school board voted against it from my understanding. I just feel this is a bad move from the union trying to do this. I just didn't know if there were any labor laws preventing this? Thank you for your time and help in this matter.

Jimmy-- given those duties I would say there is little chance he can lawfully be placed in a bargaining unit.  Perhaps the union's own counsel sees it differently, or feels those supervisory duties are not the predominant features of his job.  But even if it should turn out to be lawful, it would be something of a conflict of interest for him, since he would be administering disciplinary action against fellow union members.  Maybe that's what the union's strategy is.  But I agree with you, based on what I know, it doesn't seem like a very good strategy.

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Frank C. Magill


I can answer questions about any U.S. labor or employment law question. I cannot answer questions about non-US law. I am not a specialist in employee benefit law (ERISA and HIPAA) or Workers' Compensation law, but will do my best to point questioners toward good resources availabe online. Expertise includes, without limitation, EEO/Affirmative Action/Employment discrimination (Title VII, Age Discrimination in Employment Act, Americans With Disabilities Act, GINA, Fair Credit Reporting Act as applied to employment); Fair Labor Standards Act; Texas labor code; Family Medical Leave Act; employee compensation; discipline and dismissal; force reductions, severance pay programs and administration; collective bargaining, union representation, grievances and arbitration, National Labor Relations Act and National Labor Relations Board; employee handbooks; staffing; dispute resolution outside of traditional labor agreements; employee communications; employment policies and compliance programs; codes of ethics; employment or labor litigation.


30+ years experience as corporate counsel for a Fortune 100 telecom company, specializing in labor and employment law issues. In addition to providing day-to-day advice to my company's internal HR leadership and staff, I've represented the company in numerous labor arbitration cases and at the bargaining table.

Texas, Illinois and Missouri state bars

J.D. 1979, Harvard Law School. B.A., Summa Cum Laude, 1976, Illinois Wesleyan University.

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