Wednesday, August 21, 2013

6th Circuit Overturns NLRB Decision, Finds Nursing Home RNs Are Supervisors

A highly contested and litigated issue in labor law is the issue of whether certain employees are "supervisors" or "employees" for purposes of organizing under the National Labor Relations Act ("NLRA") as supervisors and managers are not able to organize and become part of bargaining units.  Even though some workers have labels and job descriptions suggesting they are a manager or supervisor, these inquiries are highly fact-specific.  A recent case, GGNSC Springfield LLC v. NLRB, highlights exactly that issue.   

In GGNNSC, the International Association of Machinists and Aerospace Workers, AFL-CIO (the “Union”), petitioned the Board and sought to represent the Center’s RNs in collective bargaining. The Center opposed the petition, claiming that its RNs (all charge nurses) were “supervisors” under the Act and therefore not permitted to unionize. See 29 U.S.C. §§ 152(3), 157. A hearing was held where evidence was received. In November 2011, the Board’s regional director concluded that the RNs are not supervisors, certified the requested bargaining unit, and directed an election. The Board declined further review. The following day, the RNs elected the Union as their bargaining representative.

A week later, the Union asked the Center to bargain with it. The Center refused, prompting a complaint with the Board that alleged unfair labor practices. See 29 U.S.C. § 158(a)(1), (5). The Center admitted its refusal to bargain and contested only the regional director’s decision to certify the bargaining unit. The Board sustained the Union’s complaint and ordered the Center to bargain with it. A petition for review to the 6th Circuit and cross-application for enforcement followed.

The NLRA creates “a three-part test for determining supervisory status.” NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 712–13 (2001). Individuals are supervisors if (1) they hold the authority to engage in any one of the twelve listed supervisory functions, (2) their “exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,” and (3) their authority is held “in the interest of the employer.” 29 U.S.C. 152(11); see Kentucky River, 532 U.S. at 713. The burden of proving supervisory status falls on the party asserting it. Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298, 305 (6th Cir. 2012).

In reversing the Board's decision, the 6th Circuit found that the NLRB had misapplied the term “discipline” contained in the statute by concluding that discipline meant the employee must suffer some immediate adverse employment action, such as suspension or termination. The problem with the NLRB’s view was that the term “discipline” was one of twelve supervisory functions, including suspension and termination:  “any individual having authority . . . to . . . suspend, . . . discharge, . . . or discipline other employees . . . .”  

Since the RNs had the authority independently to write memoranda that automatically resulted in a written warning, it was clear to the Sixth Circuit that RNs were supervisors because they exercised authority to discipline.  The GGNSC disciplinary policy did not include verbal warnings as a step in the disciplinary process. As a result, the Sixth Circuit found that merely deciding whether to give a verbal warning would not constitute discipline. Presumably, if the employer’s policy had included verbal warnings in the process, this might have been sufficient also. 

The key take away in cases like these is that giving a certain type of employee a supervisory title and having a job description filled with supervisory functions and responsibilities will not make them "supervisors" under the NLRA unless this is all actually occurring in the workplace and in practice.  

August 2013 Employment Law Blog Carnival is Live

The August edition of the Employment Law Blog Carnival is live and available over at The Employer Handbook.  Be sure to check it out and enjoy!

Monday, August 19, 2013

Wounded Veteran Wins Disability Discrimination Lawsuit Against FBI

Late last month I wrote a brief article on the trial set in Wisconsin native Justin Slaby's lawsuit against the FBI when he was dismissed from FBI  training academy due to his prosthetic hand.  The trial has since ended and a jury awarded Slaby $75,000 in damages and reinstatement back into the academy.

From the article on the jury award and trial:

During the trial, Slaby showed the jury that he could hold a gun and pull the trigger with his prosthetic hand, which resembles a mechanical claw. Lawyers for the FBI argued that a piece of the claw could accidentally bump the trigger because of his grip. 
But Slaby’s attorney, Kathy Butler, argued that the FBI prejudged Slaby even before he was tested and decided they were not going to give him a chance. 
John Griffin, another attorney for the veteran, argued that Slaby, who is right-handed, can fire a gun with his uninjured right hand, and that there is no FBI requirement that an agent prove he can fire a gun with his non-dominant hand. He also argued that other FBI agents have injuries similar to Slaby’s.
Any time a plaintiff wins a disability discrimination case it is a big deal because it is difficult to win such claims, even in light of the Americans with Disabilities Act Amendments Act.  Slaby still has hurdles as the FBI could appeal and even if they do not, he still has to get through training academy.  Congrats to Mr. Slaby either way.

Wednesday, August 7, 2013

7th Circuit Holds a Party's Affidavit May Create a Material Factual Dispute for Summary Judgment Purposes

The Court of Appeals for the Seventh Circuit, although upholding grant of summary judgment in favor of the employer, took a moment to issue a ruling overruling a string of precedent that suggested a plaintiff may not rely on “self-serving” evidence to create a material factual dispute for summary judgment purposes. 

(See, e.g., Broaddus v. Shields, 665 F.3d 846, 856 (7th Cir. 2011); Keri v. Bd. of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006); Scaife v. Cook Cnty., 446 F.3d 735, 741 (7th Cir. 2006); Smith v. Potter, 445 F.3d 1000, 1009 (7th Cir. 2006); Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006); Witte v. Wis. Dep’t. of Corrections, 434 F.3d 1031, 1037 (7th Cir. 2006); Evans v. City of Chicago, 434 F.3d 916, 933 (7th Cir. 2006); Rogers v. City of Chicago, 320 F.3d 748, 751 (7th Cir. 2003); Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002); Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); United States v. Raymond, 228 F.3d 804, 814 (7th Cir. 2000); McPhaul v. Bd. of Comm’rs of Madison Cnty., 226 F.3d 558, 564 (7th Cir. 2000); Cable v. Ivy Tech State College, 200 F.3d 467, 478 (7th Cir. 1999); Shank v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999); Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999); Taylor v. Monsanto Co., 150 F.3d 806, 809 (7th Cir. 1998); Patterson v. Chicago Ass’n for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998); U.S. for and on Behalf of Small Bus. Admin. v. Torres, 142 F.3d 962, 968 (7th Cir. 1998); Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir. 1997); Darnell v. Target Stores, 16 F.3d 174, 177(7th Cir. 1994); Unterreiner v. Volkswagen of Am., Inc., 8 F. 3d 1206, 1210 (7th Cir. 1993); Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993); McDonnell v. Cournia, 990 F.2d 963, 969 (7th Cir. 1993); Kornacki v. Norton Performance Plastics, 956 F.2d 129, 132 (7th Cir. 1992).)

The issue came about in Hill v. Tangherlini, No. 12-3447 (7th Cir. Aug. 2013) when the lower district court discredited Hill’s testimony about his interactions with coworkers because of its “self-serving” nature. Hill v. Johnson, No. 11 C 2144, 2012 WL 4483442, at *2 n.6 (N.D. Ill. Sept. 27, 2012).  The Court stated:

This was error. Deposition testimony, affidavits, responses to interrogatories, and other written statements by their nature are self-serving. Payne v. Pauley, 337 F.3d 767, 771 (7th Cir. 2003). As we have repeatedly emphasized over the past decade, the term “self- serving” must not be used to denigrate perfectly admissible evidence through which a party tries to present its side of the story at summary judgment. ...
Hill described the three encounters in his deposition based on his personal knowledge and set forth specific facts and the district court should have considered his statements as evidence. See Fed. R. Civ. P. 56(c); Kellar v. Summit Seating Inc., 664 F.3d 169, 175 (7th Cir. 2011); Whitlock v. Brown, 596 F.3d 406, 411–12 (7th Cir. 2010). 
Despite this holding, the 7th Circuit still upheld summary judgment because the plaintiff failed in other aspects of his case at the summary judgment phase--namely, he couldn't prove pretext.