03/25/2024: Union Staff Are Not Managers.

An amusing staff conflict at IBEW Local 111 comes to the Board.

1. Stericycle, Inc., 01-RC-331065 (Regional Election Decision). The Teamsters represent a unit of drivers and dispatchers at Stericycle and are petitioning for an election to add a group of warehouse workers to the unit. The Regional Director applies the relevant standard for self-determination elections and finds that the unit is appropriate for such an election and so directs the election.

2. International Brotherhood of Electrical Workers, Local 111, 27-UC-312527 (Unpublished Board Decision). In June of 2022, the IBEW voluntarily recognized Union Professionals International as the representative for a unit of IBEW union staffers. The unit consisted of union representatives called business representatives and assistant business managers. Apparently, the IBEW changed its mind on this and, in February of 2023, filed a unit clarification petition seeking to have every single unit member declared as managers so that they would be excluded from the bargaining unit. The regional director concluded that the IBEW had not met its burden to prove that these union staffers are managers. IBEW requested a review of this decision to the Board and the Board denied the request.

The IBEW case is bizarre and amusing. It’s a union-ception situation where there is a union of union staff. There was voluntary recognition followed by an effort to have the entire unit declared as managers just 8 months later, suggesting some kind of wild animosity between the union’s leader and the union staff.

The IBEW case also provides a peg for talking about the difference between supervisors and managers. These seem like interchangeable terms, but they are distinct categories under the NLRA and Board law.

“Supervisor” is a defined in Section 2(11) of the NLRA as:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

The definition of “employee” in Section 2(3) of the NLRA specifically excludes supervisors, so defined, and Section 14(a) allows employers to object to including supervisors in collective bargaining units.

“Manager” is not a defined term in the NLRA but managers have nevertheless been excluded from bargaining units as a matter of Board policy. Current Board law (Republican Co.) describes them this way:

Managerial employees are defined as those who formulate and effectuate high-level employer policies or who have discretion in the performance of their jobs independent of their employer’s established policy. . . . Although the Board has no firm criteria for determining managerial status, an employee will not ordinarily be excluded as managerial unless he represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy.

The rationale for this managerial exclusion, as given by the Supreme Court in Yeshiva University, is to “ensure that employees who exercise discretionary authority on behalf of the employer will not divide their loyalty between employer and union.”

In the IBEW case, IBEW is attempting to argue that its staff, in their role as bargaining representatives for the local’s various units, are discretionarily controlling the policies of IBEW-as-employer. But the regional director correctly points out many times that this this argument confuses “bargaining positions” with “employer policies.” Employer policies are things that apply to employees of the employer. The members of the various units represented by the local are not employees of the IBEW local. So the bargaining positions taken by the union staff on behalf of the members of the various units are not employer policies.