By Dave Strausfeld, J.D. In a December 2015 decision recently slated for publication at the NLRB’s request, the Fourth Circuit found that substantial evidence supported the Board’s finding that four individuals who advocated for the union in the lead-up to a representation election were not “supervisors” within the meaning of NLRA Section 2(11). Thus, their pro-union activity did not taint the election. The employer’s petition for review was denied, and the Board’s cross-application for enforcement of its order directing the employer to recognize and bargain with the union was granted (Pac Tell Group Inc. v. NLRB, amended March 15, 2016, Keenan, B.). An important issue. Supervisory status under the NLRA is an oft-disputed issue, as the NLRB noted in its motion for publication of the appellate panel’s decision in the Board’s favor. Urging that the case involved “a legal issue of continuing public interest,” the Board also pointed out that the previously unpublished opinion was “the first and only one” in the Fourth Circuit to explain and apply the standard set forth in the Oakwood Healthcare trilogy, which remains the Board’s governing standard for resolving supervisory-status issues, and it did so “in a very thorough and nuanced manner.” Independent judgment. The four putative supervisors worked at a polyester recycling plant, overseeing between 22 to 40 hourly workers in their daily shift work. Employees on each shift were subdivided into smaller teams of three to five workers, and each team was assigned a “team lead,” who reported to the putative supervisors. The main issue here was whether the putative supervisors exercised independent judgment for Sec. 2(11) purposes. Judgment is not independent if it is “dictated or controlled by detailed instructions” set forth in company policies or rules, or in the verbal instructions of a higher authority, the appeals court explained, citing Board precedent. The employer asserted four bases for a finding of supervisory status, and the appeals court discussed them one by one. Authority to assign work. Even though the putative supervisors were responsible for assigning employees to work groups, this was insufficient to make them “supervisors” because they did so only within the team lead structure imposed by management. They also did not use independent judgment in creating employee work schedules because the decisions were made according to parameters set by management. The same was true of instructing employees whether to clean their work areas when machines malfunctioned or instead to move to another work station—or at least the Board reasonably so found. Authority to reward. Although the putative supervisors recommended employee raises, sometimes even proposing specific monetary amounts, it was unclear how often their recommendations affected the employer’s ultimate decision. While there was certainly evidence supporting the employer’s position that their recommendations were often followed, the Board viewed the evidence as ambiguous, and reasonably held that the employer failed to meet its burden of proving supervisory status. Authority to discipline. The putative supervisors acted merely as conduits for management’s directive to enforce particular safety protocols. All disciplinary warnings were subject to approval by management before issuance. Any discretion the putative supervisors had regarding the severity of appropriate discipline was limited to determining whether a first or subsequent warning was warranted given the employee’s prior disciplinary history. At any rate, the Board’s finding that the putative supervisors did not exercise independent judgment in issuing discipline was supported by substantial evidence. Authority to direct. Although other employees confirmed they received direction and oversight from the putative supervisors, which would support a finding of supervisory status, the Board could reasonably find that the work performed by hourly employees at the plant was “sufficiently routine” that employees did not require extensive direction. In sum, while the Board could have reached a different decision, it was reasonable for the Board to determine that the employer did not meet its burden of establishing that the four individuals were statutory supervisors. No other grounds for setting aside election. As to whether the election could be set aside based on the four individuals’ statements—in their capacity as nonsupervisors—that employees would have better job security if they voted for the union and might lose their jobs otherwise, these “general comments” did not meet the rigorous standard for objectionable third-party conduct. Consequently, the Board did not abuse its discretion in declining to invalidate the results of the election on the basis of these challenged statements, the appeals court held.
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