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‘To Be, or Not To Be: That Is the Question’
Ivan D. Butts
NAPS Executive Vice President
Albeit tempting, I will not start this column with the title character’s famous soliloquy from Shakespeare’s “Hamlet.” Over my years of advocacy on behalf of the members of our great association, I have heard, from time to time, members talk about NAPS filing charges with the National Labor Relations Board (NLRB). My response consistently has been that we cannot file with the NLRB because we are considered white-collar employees.
I recently had the opportunity to look more closely at the law to better educate myself on the issue. I would like to share the reasons why I believe we are not recognized under the National Labor Relations Act (NLRA) of 1935.
The first point of reference under the law we need to examine or question the answer to is “What is an employee?” The answer is found in 29 U.S. Code §_152, “Definitions:”
“(3) The term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act [this subchapter] explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor [emphasis added], or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. § 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.”
The second point of reference to consider is regarding the answer to the question in the law of “What is the definition of the term ‘supervisor?’” This answer is found in the same “Definitions” section referenced in the column at left:
“(11) The term ‘supervisor’ means 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.”
When the USPS made it mandatory that any non-career (supplemental) employee removal had to have the authorization and approval of a district manager, I was contacted by and had discussions with members over the question, “Are we really supervisors?” The basis of this question stems from all the various directives supervisors are mandated to implement or enact, such as that noted in the previous sentence. There are those EAS employees who feel that the implementation of mandated directives do not fall within the NLRA’s definition of “supervisor.” EAS employees who merely are following instructions are not supervisors who actually have authority.
This is a challenging assertion that may be becoming more applicable, in part. However, the various and numerous supervisory functions outlined in the law do not disqualify the work of supervisory and other managerial personnel in the USPS as “supervisor” work under the definition of the 1935 NLRA.