Employees Who Recommend Candidates for Jobs Are Supervisors Under the NLRA

By Michael A. Warner Jr. and Melissa D. Sobota May 18, 2017

​Employees who have the authority to make hiring recommendations and who exercise independent judgment in making these recommendations are supervisors under the National Labor Relations Act (NLRA), according to the 8th U.S. Circuit Court of Appeals.

Steve Johnston is employed by Missouri Red Quarries Inc. as a foreman. Missouri Red is owned and operated by Tom Oglesby. Oglesby oversees a quarry pit in Ironton, Mo., and quarry pits in Georgia and Oklahoma, and his company employs approximately 140 individuals. Oglesby's primary office is in Elberton, Ga., and he stays informed about what goes on at the Ironton quarry by talking with Johnston.

In June 2013, when the supervisor of the Ironton quarry left his employment, Johnston along with three other individuals were elevated to the role of foreman, but none were named supervisors. Employees viewed Johnston as the head foreman even though he spent approximately 90 percent of his time performing bargaining-unit work and 10 percent of his time completing administrative tasks for his role as foreman. In 2014, Johnston recommended that Oglesby hire two specific individuals to fill two openings at the Ironton quarry. Oglesby told Johnston to send the prospective employees in for a drug test and if they passed to send them to work. Both individuals passed their drug test and began working at the Ironton quarry.

In April 2015, the union filed a petition to represent all employees of the quarry except those excluded by the NLRA.

[SHRM members-only HR Q&A: What is the function of the NLRA?]

An election was held and the vote was 5-4 in favor of the union.  Johnston's vote was sealed and not counted because the union claimed that he was a supervisor. Ultimately, the National Labor Relations Board (NLRB) certified the results of this election and ordered Missouri Red to bargain with the union.

Missouri Red appealed this ruling to the 8th U.S. Circuit Court of Appeals. The 8th Circuit affirmed the board's decision.  In doing so, the court held that Johnston was a supervisor and that his vote was properly excluded from the election results.

The court found that Johnston had the authority to effectively recommend hiring the two new employees because his recommendations were accepted by Oglesby without an independent investigation of the candidates. The court further found that Johnston used his independent judgment in making these recommendations because he had an independent basis for assessing their readiness for work based on his prior interactions with them.

Finally, the court found that secondary indicia also supported the board's determination that Johnston was a supervisor. The court pointed to the fact that the quarry would be left without supervision the majority of the time if Johnston was not the supervisor, which the court found to be unlikely. That other employees perceived Johnston as the supervisor, that he received a wage increase when he was promoted to foreman and because Johnston was referred to as "quarry supervisor" were all secondary indicia of his supervisory status, the court found.

NLRB and Eastern Missouri Laborers' District Council v. Missouri Red Quarries Inc., 8th Cir., No. 16-1682 (April 6, 2017).

Professional Pointer: As long as an employee is exercising independent judgment while carrying out one of the 12 indicia of supervisory status under the NLRA, the employee will likely be considered a supervisor. An employer should act cautiously when it allows its employees to use their independent judgment to effectively recommend hiring or perform any one of the other 12 indicia of supervisory status.

Michael A. Warner Jr. and Melissa D. Sobota are attorneys with Franczek Radelet, the Worklaw® Network member firm in Chicago.


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