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NLRB Finds Employee not to be a Supervisor as defined by the NLRA

By:  R. Eddie Wayland, TCA Legal Counsel

In late 2015, a Union filed a petition seeking to represent drivers, dispatchers and safety instructors for a single distribution center that primarily serviced only one customer. Prior to the election, the employer challenged a number of issues related to the election; all challenges were unsuccessful. Approximately two months later an election was conducted via mailed in ballots, and the distribution center employees voted 27 to 1 in favor of joining the Union. After the election was completed, the employer requested the National Labor Relations Board (NLRB) to review the Acting Regional Director’s decisions on the pre-election issues.

The Pre-Election Hearing

The employer requested the NLRB address a host of issues. The request to review went before a three-member panel of the NLRB. The NLRB panel chose to only grant review on the points relating to whether an allegedly pro-union employee was a supervisor within the meaning of the NLRA and whether the employee engaged in pro-union supervisory conduct. The NLRB declined to review the remaining points on the basis that the employer’s requests raised no substantial issues warranting review.

Decision on Review

On review, the NLRB found that that the employer failed to establish that the employee at issue was a supervisor, as defined by the NLRA or that he engaged in conduct that would be objectionable even if the employee was deemed a supervisor. The party asserting that an employee is a supervisor under the NLRA must establish that (1) the employee held the authority to engage in certain supervisory functions; (2) the employee’s use of such authority was not merely routine but required some form of independent judgment; and (3) the employee’s authority was held in the interest of the employer.

Here, the employer argued that the employee at issue had the authority to assign work to other employees, an activity defined as a supervisory function by the NLRA. The employee’s primary job responsibility was a dispatcher. In this role, the employee would create the schedules for drivers which detailed the routes to be taken and the stops to be made. The vast majority of these routes were permanently assigned, and, as a result, the employee rarely made any independent decisions on this matter. However, if a driver requested a different route than what was assigned, the employee could switch the driver to another route if one was available. If one was not available then the employee was required to direct the driver to a management official to resolve the dispute.

The NLRB found the employee’s role in these matters did not require significant independent judgment. Although the employee was responsible for ensuring that all scheduled routes were covered, he did not have the authority to require a driver to accept a route that was assigned. That authority was assigned to management. Since the employee did not have the necessary authority to assign routes the NLRB found that he was not a supervisor within the meaning of the NLRA.

Beyond creating the dispatch schedule, the employee also spent approximately ten percent of his time working as a certified safety instructor. As a safety instructor the employee was responsible for administering road and back-up tests for potential new hires and performing semi-annual safety tests for current drivers. If a driver failed one of these tests, the employee was required to pass that information along to the employer. The employer argued that the authority to pass or fail potential employees or current employees was sufficient to show that the employee had the authority to hire, or to effectively recommend hiring which should be considered having supervisory authority.

Similarly, the NLRB found that administering tests to an applicant or current employee and reporting the results to management does not constitute effective recommendations to hire or fire. As such, the NLRB found that the employee was not a supervisor within the meaning of the NLRA.

Although the NLRB found that the employee was not a supervisor within the meaning of the NLRA, the panel nonetheless briefly addressed the employer’s argument that the employee engaged in objectionable pro-union conduct. The employer cited two activities which it argued demonstrated pro-union activity: (1) the employee received a call on his cell phone from a union organizer, and (2) the employee made a pro-union statement to another employee. After a review of the facts alleged, the NLRB found that this minor activity was not sufficient to be considered objectionable.

Based on the above facts, the NLRB found that the Acting Regional Director correctly ruled on all of the employer’s objections.

Dissent

The recently elected Chairman of the NLRB was the sole dissent to the majority’s findings. It was the Chairman’s position that the NLRB should have also reviewed the procedural rulings by the Hearing Officer who presided over the pre-election hearing and the rulings made by the Acting Regional Director.

Specifically, the Chairman took issue with the Election Rule requiring the employer to file a comprehensive statement of their position within seven days of the petition without a corresponding requirement on the Union to file any statement whatsoever. Requests for time extensions, no matter how minimal, on this filing deadline are only allowed under “special circumstances.” Additionally, the Chairman argued that the Election Rule’s almost complete elimination of Post-Hearing Briefs also raised due process concerns. The Chairman argued that these issues, and similar issues caused by the Election Rule’s procedural shortcuts, create a risk of producing results which are “unfair, arbitrary, contrary to the Act, and a denial of due process.”

Takeaway

Whether an employee is a supervisor as defined by the NLRA requires a detailed analysis of the employee’s actual work responsibilities. This analysis must be performed on a case-by-case basis. It is important to analyze what type of independent judgment the employee actually has in executing his or her duties or responsibilities. The written job description for the position should further clearly reflect the supervisory duties and responsibilities. Employers should consider consulting with experienced legal counsel if questions arise.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

October 16, 2017

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