How Will Employers Respond to Oakwood?
A colleague recently speculated that some employers will respond to Oakwood by giving their employees the authority to “assign” or “responsibly direct” other employees in order to render them statutory supervisors. In the case of rotating charge nurses, he predicted that some employers with the same motive will increase the regularity and substantiality of the time the nurses spend as charge nurses.
Statutory supervisors have no bargaining rights, and employers may lawfully discharge them for supporting a union. By increasing their employees’ authority and thereby rendering them statutory supervisors, an employer could sidestep the Act; or so the argument goes.
I think that an employer risks being held to have violated Sections 8(a)(3) and (1) if it increases its employees’ authority out of a desire to avoid a bargaining obligation. Cf. Matson Terminals, Inc. v. NLRB, 114 F.3d 300, 302 (D.C. Cir. 1997) (“Both the Board and the courts have long held that an employer who promotes employees to supervisory positions to strip them of their right to self-organization because of a union campaign violates [Sections 8(a)(3) and (1)].”); Comcast Cablevision of Philadelphia, L.P., 313 NLRB 220, (1993) (holding that employer violated Section 8(a)(1) by promoting a union supporter to a position outside the unit to dilute the union’s support); American Tissue Corp., 336 NLRB 435, 445 (2001) (holding that employer violated Section 8(a) (3) and (1) by changing the job duties of an employee because of his union support); Regency Manor Nursing Home, 275 NLRB 261 (1985) (holding that employer violated Section 8(a)(1) by coercing employees into accepting supervisory positions in a scheme to undermine union support).
Of course, it may be difficult for the NLRB’s General Counsel to prove that an employer acted with an anti-union motive. But the proof problem is not insurmountable given the GC’s authority to subpoena documents and witnesses.