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Court Affirms Unfair Labor Practice Finding Based On Anti-Union Retaliation Against Supervisor

July 5, 2001

The National Labor Relations Act ("NLRA") protects the right of employees to engage in union activity, and prohibits discrimination or retaliation against employees who exercise that right. The NLRA, however, explicitly excludes from its coverage supervisors -- individuals who have the authority to hire, fire, discipline, or responsibly direct other employees. Accordingly, employers generally have the right to prohibit their supervisory employees from engaging in union activity and to discipline or discharge supervisors who fail to comply with such a directive. In a recent decision, however, a federal appeals court carved out a narrow exception to this rule. In Tasty Baking Co. v. NLRB, No. 00-1030 (D.C. Cir., June 22, 2001), the U.S. Court of Appeals for the District of Columbia Circuit, following the lead of two other federal appeals courts, affirmed an NLRB decision that it violates the NLRA for an employer to take action against a supervisor in retaliation for a non-supervisory relative's union activities.

The Tasty Baking case arose in the context of a union organizing campaign. One of the key union supporters was the husband of a company supervisor, Edwina Flannery. Flannery was precipitously demoted from the supervisory position she had held for five years, even though she had recently been characterized by a company manger as one of the company's "rising stars." Flannery was also told that the fact that her husband was distributing union literature "was not helping her chances of staying on the day shift," and shortly thereafter her shift was changed. The union filed unfair labor practices with the NLRB, which found that Flannery's demotion and change of shift constituted unlawful discrimination under the NLRA.

The Court of Appeals affirmed the NLRB's ruling. The court reasoned that while supervisors themselves are not protected by the NLRA, action taken against a supervisor is unlawful "when it interferes with the right of employees to exercise their rights." According to the court, retaliation against a supervisor because of his or her relative's union activity clearly has such an effect. In reaching this conclusion, the court relied upon prior cases holding that an employer violates the NLRA by discharging a supervisor for refusing to commit unfair labor practices.

The Tasty Baking case illustrates that while supervisors are generally excluded from the protections of the NLRA, that exclusion is not without limits. Retaliatory actions against a supervisor because of his her relative's union activities, or because of his or her refusal to commit unfair labor practices, will leave the employer m vulnerable to a valid unfair labor practice charge.