04/11/2024: Board Reverses Region's Decision to Exclude Some UPenn Grad Students

What is a management trainee?

1. Spike Enterprise, Inc., 373 NLRB No. 41, 14-CA-281652 (Published Board Decision). Spike violated Section 8(a)(3) by discharging employees Robert Rossey and Cody Franzen due to their union activity, including wearing a union shirt to work. Spike violated Section 8(a)(1) of the NLRA through several actions by supervisor David Allen, including threatening employees with loss of pay, stricter rule enforcement, discharge for striking, and futility of unionizing. In addition to reinstatement and backpay, the Board issued a Gissel bargaining order which requires the employer to recognize and bargain with the union without there being a union election. The Board did not issue a Cemex bargaining order in this case because the General Counsel did not allege a Section 8(a)(5) refusal-to-bargain, which is the procedural path to getting a Cemex order.

2. Trustees of the University of Pennsylvania, 04-RC-327396 (Unpublished Board Decision). The Board overturned the Regional Director’s decision to exclude Educational Fellowship Recipients (EFRs) from the union election (the RD decision was covered here previously). The Regional Director had decided to exclude the EFRs because they had been excluded in a stipulation for a 2017 election involving UPenn grad students. The Board decided this was a mistake for three reasons: (1) an agreement to exclude classifications from a petitioned-for unit in an RC case is not binding in future proceedings, (2) even if the parties had stipulated to the EFRs' employee status in the 2017 case, the Board found it would not have preclusive effect under, because the issue was not fully litigated or an essential component of the 2017 decision, and (3) any 2017 stipulation was superseded by the pre-hearing stipulation in the present case, which addressed the unit placement and eligibility of certain EFRs.

3. Cesar Chavez Foundation, 16-RC-337935 (Regional Election Decision). The Regional Director applied Oakwood Healthcare to determine that the assistant property manager in dispute was not a supervisor, Yeshiva University to determine that he was not a manager, and Curtis Industries to determine that he was not a management trainee. Thus, the assistant property manager can be in the bargaining unit and is eligible to vote in the union election.

Management trainees are an interesting problem for the NLRA. The statute, by its terms and interpretation, tries to make a distinction between employees that are “low level” enough in terms of the authority inside the firm that they can unionize and employees that are “high level” enough that they should be seen as essentially extensions of ownership (or capital, if you will).

Management trainees are not really high level enough yet to be extensions of ownership but they are, as the name suggests, training to be precisely that. So where do they fall?

The answer, as often with law, is “it depends.” To determine whether to sort management trainees into or out of a bargaining unit, the Board uses the four-factor test first outlined in Curtis Industries. From today’s Regional Election Decision:

The four factors laid out by the Board are: (1) selectivity in hiring based on alleged management trainee’s possession of relevant education or experience, (2) specificity of future employment prospects where the alleged management trainee must have no alternatives other than to go into management or to leave, (3) existence of a planned management-trainee program, and (4) distinction of wages and working conditions between the alleged management trainees and the employees whom they work with.

The Regional Director concluded that only factor number one was satisfied and thus declined to exclude the disputed assistant property manager from the bargaining unit.