NLRB Rules Hotel Front-Desk Supervisor Could Legally Be Fired for Union Activity
 
March 5, 2008
 
Colleen A. Sorrell- New York

A recent decision of the National Labor Relations Board (NLRB or Board) helps the hospitality industry respond to unionization threats and issues. In Sheraton Universal Hotel, decided August 31, 2007, the Board ruled that a front desk supervisor, Kevin Grace, qualified as a supervisor who is excluded from the coverage and protection of the National Labor Relations Act (Act). The Board therefore held that the hotel’s decision to discharge Grace for refusing to remove a one-inch union button he was wearing on his lapel while on duty at the front desk could not, and did not, violate the Act. This decision adopts an expansive definition of the “supervisors” who are excluded from the Act’s protection.

The Act defines a supervisor as an employee who has “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.” Thus, a supervisor is anyone who has the authority to perform any of the 12 listed tasks and to do so in the interest of the employer and using independent judgment.

In its analysis, the Board looked to whether Grace had disciplinary authority, hiring authority, and if there were any other indicia of supervisory status. Though the majority of the Board agreed that Grace was a supervisor, one Board member dissented, categorizing Grace as a “minor supervisory employee” who was meant to be protected by the Act.

The majority found that Grace possessed the authority to effectively recommend discipline using independent judgment. As the front desk supervisor, he “coached-and-counseled” employees to correct their errors using the employer’s corrective action notice forms. Grace documented all of his coach-and-counsel sessions through emails he sent to management. He had the authority to decide whether to send employees home. He investigated incidents and management relied on his investigations. He also made discipline recommendations that higher management followed. As the hotel manager stated, “what he says goes.” The dissenting Board member, however, pointed out that the coach-and-counsel sessions were meant as training and not discipline, and that Grace’s failure to recommend any specific disciplinary action, such as a written warning or suspension, showed that he lacked the authority to issue written warnings on his own.

The Board also determined that Grace possessed the authority to make effective hiring recommendations. The majority noted that Grace reviewed applications and resumes, interviewed applicants, and made hiring recommendations. Even though the people Grace recommended were still interviewed by a manager, those whom he did not recommend were not interviewed further. According to the majority, such authority to effectively recommend against hiring can establish supervisory authority. Further, the supervisor need only have, and the hotel need only show, the possession of authority to carry out a supervisory function, not its actual exercise. So, whether the hotel could point to any specific examples of Grace giving a negative recommendation was inconsequential. It was enough that, according to the hotel manager, a negative recommendation from Grace “would be fatal” to that candidate being hired. The dissenting Board member, however, would not have found the manager’s bare statement sufficient to establish that Grace had the ability to reject applicants for hire.

The Board majority also relied on several secondary indicia of supervisory status – factors that show the hotel held Grace out as a supervisor. Importantly, Grace regularly served as the manager on duty while performing as the front desk supervisor. His job title of “front desk supervisor,” while not itself determinative, showed that he was the “front desk
supervisor.” His name tag reflected that title, and further distinguished him from those he supervised by including both his first and last names, rather than his first name only. Grace attended management meetings, received management memos and signed documents at the inception of his employment that only other members of management had to sign. He had a work email account like other managers and supervisors, and unlike non-management employees. In addition, he was paid more than those he supervised. The dissenting member of the Board found that the secondary indicia need not be considered since there was not enough indicia of supervisory status in the first place. Further, he pointed out that Grace spent most of his shift checking in guests alongside the employees he oversaw, utilizing a detailed checklist of instructions from upper management, and though he was paid at a higher rate, he was still paid hourly.

Nonetheless, the Board considered all of these secondary facts as evidence that the hotel treated and held Grace out to others as a supervisor. Thus, this secondary evidence supported the Board’s determination that Grace was a supervisor under the Act based upon his authority to make effective recommendations concerning discipline and hiring. Since his supervisory status removes Grace from protection of the Act, his termination could not violate the Act, the majority ruled.

In the past two years, the NLRB has made it easier for employers to show that an employee qualifies as a supervisor who is not protected by the Act. This decision continues that trend in the hospitality industry. But conclusions about whether an employee is a supervisor can be tricky. Hospitality employers as well as other employers would be wise to review their job descriptions with counsel to ensure that those who they treat as supervisors truly are.

For more information, email Colleen A. Sorrell at colleen.sorrell@hklaw.com or call toll free, 1.888.688.8500.