Supreme Court: When are supervisors not supervisors?
When they are racist/sexist and company wants to avoid liability
By Jeff Bigelow
Defining when someone is a supervisor and when they are not may seem like a ridiculous word game when by “common sense” everyone knows what a supervisor is. But common sense is often formed and manipulated by who controls the media, the message and the levers that create the dominant culture.
On the other hand, common sense formed by struggle leads to a clear understanding that definitions like this are part of the struggle for power between capital and labor. When the owners of banks, factories and companies find it in their interest to claim that people are supervisors—they are. When the opposite is in their interest, they claim that.
The June 24 Vance v. Ball State University decision by the Supreme Court hinged on the definition of “supervisor.” Since a company is liable for sexual harassment carried out by a supervisor, defining the harasser as not being a supervisor relieves the employer of responsibility for the harassment.
Struggle over definition of ‘supervisor’
On September 21, 1945, over 200,000 coal miners went out on strike to demand the right of supervisors to be in the union and have bargaining rights. The strike ended a month later on October 17 and was part of a huge wave of strikes following the war.
The following year, the United Mine Workers set as one of its bargaining goals that only the mine superintendent and one foreman would be exempted from the definition of a mine worker covered by the union at each mine.
Why would the miners want supervisors in their union? And, were they excluded by law from bargaining rights?
The 1935 Wagner Act established the law governing union representation from 1935 to 1947. The law was created in the context of a tremendous upsurge in labor with massive general strikes that had never been seen before in the United States. The law itself was both a concession and a means to control labor.
During the years immediately after its passage, the CIO was founded on the principle of organizing on an industrial basis—getting everyone in the industry in the union. In comparison, the American Federation of Labor was based primarily on craft unionism, organizing workers by specific trades or crafts. Unions and the workers affiliated with each federation fought over who would have representation rights at factories across the U.S. The Labor Board was supposed to decide which bargaining unit was the most appropriate for representation—craft or industrial.
Who would be in and out of a bargaining unit was a fiercely fought matter both in the streets and at the NLRB. The Wagner Act did not exclude supervisors or foremen in its definition of an “employee” whose rights to a union were supposed to be respected. Yet management wanted them out and by 1943, during the war, finally got the NLRB to issue a ruling excluding them.
Excluding supervisors from unions a top priority for bosses
In 1946 and 1947, the National Association of Manufacturers and the Chamber of Commerce launched a huge media campaign as a part of a political assault on labor at the national level. They used their local victories as leverage to create momentum at the national level. They framed their message as one of “fairness.” They wanted “free speech” for employers. They demanded that simple acts of labor solidarity like secondary boycotts and hot cargo agreements be declared illegal. They wanted unions subjected to an array of unfair labor practice claims. They wanted to attack union power by ending union shops where everyone who benefited from a contract had to be in the union. They wanted “Right to Work” laws to proliferate everywhere based now on federal law. They most of all wanted loyalty oaths to the system of corporate control, in other words to the political structure of the U.S., and they wanted communists thrown out of every union office and job.
When figuring out their priorities and deciding which to list as demands and which to wait till later to raise, they decided that the issue of excluding supervisors was so important it had to be added to the list.
In 1947, many bankers and corporate leaders knew that they could not end the National Labor Relations Board as they had wished. As ineffectual as it was in putting capital in the place that it should be, it still was more than an irritant to them. From 1938 to 1947:
- 76,268 workers were reinstated to their jobs because they had been discriminated against due to their support for the union
- 226,448 strikers were reinstated and 727 workers were placed on preferential hire list
- Back pay of $12,418,000 was ordered for 40,691 workers
- 36,969 elections for union representation were held; unions won over 80 percent with the total vote being 6,145,834 to 1,531,301. The AFL won 12,353 elections in the 12 years of the Wagner Act, and the CIO won 13,837 while unaffiliated unions won 3,920. No union was the choice in only 6,859 elections.
On Jan. 13, 1946, GIs in Paris adopted “The Enlisted Man’s Magna Carta,” and others around the world demanded and some mutinied to get faster demobilization and an end to orders for continued colonial repression. Closer to home, there was the Port Chicago mutiny against racism and for safety. Many returning GIs used their organizing skills and militancy against the brass to fill the labor movement with energy and power.
In the midst of mass strikes as well as mutinies in the military in 1945-1947, President Truman called for more repression. After taking over industries to stop strikes, in January 1947 he now called for a ban on secondary boycotts and supported other restrictions.
Capital wanted much more than that and used its political power to ram through the Taft Hartley anti-labor law that was designed to break the back of labor. This operated in tandem with the U.S. government’s increased political repression at home and its policies and military actions abroad in breaking movements for real independence, from Greece and Turkey to the rest of the world
It was in this context that supervisors were excluded by law from the National Labor Relations Act, in 1947 known as the Taft Hartley Act.
In 1960, the Westinghouse Professional Engineers union, which had represented workers since 1952, was challenged by the company and NLRB on who was in and out of the bargaining unit—and on the basis of that decision lost the unit of 6,750 workers. In this case, the union had tried to bar “sub-professionals” from doing their work (better known as erosion when non-union workers, usually lower paid are assigned work done by the bargaining unit to undermine the union). Instead of trying to organize them, they fought their inclusion in the unit in the new election and lost.
So who is a supervisor and why?
This is related to the supervisor issue because unions do not want non-bargaining unit supervisors doing bargaining unit work. It undermines the power of the union.
On the other hand, the more people that a company can designate as supervisors, the fewer people they have as workers who have any rights. Under the law, even a union-friendly supervisor cannot help to circulate a petition to get a union.
So who is defined as a supervisor is important. Is it a lead worker? Is it a foreman? Is it someone directing work who can effectively recommend discipline or effectively give input in an evaluation? What is effective? Is a supervisor just someone with the power to hire and fire?
The fight over whether a “charge nurse” in a private hospital is a supervisor highlights the continuing battle over definitions and the relation of that battle to the underlying struggle for power on the job.
In the 1970s, the NLRB and courts found that nurses were not supervisors when directing “less skilled” employees—they were only exercising “professional responsibility.” In the 1980s, the NLRB said that registered nurses were not supervisors and then the courts said that was irrational: Directing employees was supervisor work, the court said.
In the 1990s, the NLRB ruled that certain nurse duties were not supervisory, so it depended on what an employee did. The courts held that the board improperly considered the nurses’ duties in relation to patient needs. So they overruled the NLRB and required them to consider the matter in relation to the employer’s needs. Later in the 1990s, “independent judgment” was the key factor. Then in 2006, the NLRB ruled in the Kentucky River and Oakwood cases (after a Supreme Court action) that charge nurses are supervisors (at least in many cases). The original Oakwood case arose out of a UAW organizing campaign in Oakwood, Mich., where a unit of 180 RNs, many of whom were assigned charge nurse duties, wanted to have a union. In fact, 112 RNs rotated in and out of the position with those duties.
The National Labor Relations Board, in a 3-2 ruling, also said people who work supervisory shifts only on a rotating basis may be exempt from supervisory status in some cases but not others depending on the frequency and consistency of the supervisory shifts
Similar battles raged over telecom supervisors
In Illinois, the state recently passed a law to take thousands of people out of collective bargaining. Years ago the labor movement had pressed for and won a state law that defined a supervisor in narrow terms as having to do with hiring and firing. Confidential employees were defined as having a meaningful role in the development of bargaining positions—not just a secretary with access to personnel files. The objective was to organize everyone or as many as possible in order to have the greatest power possible. In the last few years, big business groups have been lobbying hard to change the definition of “employee” and “supervisor” to limit union power.
It is ironic that the narrower definition of “supervisor,” originally promulgated by the labor movement in the interest of strengthening unions, has been used to limit bosses’ liability for worksite sexual harassment. While the Vance v. Ball State University decision is a setback, the court’s decision in the DOMA and Prop. 8 cases shows that this reactionary decision can be overturned with mass struggle.
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