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NLRB Finds Foremen Are Statutory Supervisors

By Jean Faure posted 03-28-2016 10:34 AM

  

International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO v. ADF International, Inc.  

NLRB Case 19-UC-168515

March 23, 2016

 

Following a four day trial, Region 19 of the National Labor Relations Board held that the 11 Foreman working for the Employer ADF International, Inc. were Supervisors under Section 2(11) of the National Labor Relations Act.  The Employer fabricates and paints complex structural steel components for industrial and commercial buildings and projects such as manufacturing plants, bridges, retail centers, office buildings, and recreation facilities, including the Atlanta Falcon Stadium. In arguing that the Employer has not met its burden under § 2(11), the Ironworkers Union asserted that ADF failed to establish by the preponderance of the evidence that foremen are supervisors as they do not meaningfully hire, transfer, promote, assign, discipline, or control employees' time. Relying on Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006) the Board disagreed and found the individuals to be statutory supervisors because they held the authority to engage in any 1 of the 12 supervisory functions (e.g., "assign" and "responsibly to direct") listed in § 2(11);  their "exercise of such authority was not of a merely routine or clerical nature, but required the use of independent judgment"; and their authority was held "in the interest of the employer." Among other factors, the foremen play a critical role in the interview by asking applicants technical questions to evaluate their ability to perform the requisite job duties. The foremen are responsible for evaluating the performance of the employees that report to them and these evaluations are used by the Employer to impact the wages of evaluated crew members. The foremen also have the authority to discipline, including shift suspensions, and to effectively recommend termination. Persons with the power "effectively to recommend" the actions described in § 2(11) are supervisors within the statutory definition. The foremen constantly observe employees and work on the floor with employees. Accordingly, foremen are properly suited to recommend promotion and corresponding pay increases based on their direct observation of employees. Foremen prioritize work on the floor and they are primary participants in the daily process of determining which employees should undertake necessary tasks that are part of the entire production process of the shop. Evidence of foremen's abilities to assign, and effectively recommend, significant overall tasks and assign overtime is sufficient to meet the Employer's § 2(11) burden.

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