Employment Law Daily UPS dispatcher not supervisor; his ‘pro-union’ conduct not objectionable anyway
Tuesday, August 1, 2017

UPS dispatcher not supervisor; his ‘pro-union’ conduct not objectionable anyway

By Ronald Miller, J.D.

UPS failed to establish that a dispatcher was a statutory supervisor, ruled the NLRB in a 2-1 decision. Examining the employee’s dispatch duties, the Board majority observed that, although it was his responsibility to ensure that all scheduled routes were covered, he did not have the authority to require a driver to accept a particular route. He did not possess authority to hire or to effectively recommend hiring in his role as a safety instructor. At any rate, the Board concluded that the employer failed to provide sufficient evidence to support its contention that the dispatcher had engaged in objectionable pro-union supervisory conduct. Accordingly, the employer’s request for review of a regional director’s decision and direction of an election was denied as it raised no substantial issues warranting review. Chairman Miscimarra dissented, taking issue with the election rule itself and its procedural shortcuts that could, he said, result in a denial of due process (UPS Ground Freight, Inc., July 27, 2017).

Supervisory status: the test. The employee spent approximately 80 percent of his time as a dispatcher over the past year, 10 percent as a safety instructor, and 10 percent as a road driver. To establish that he was a supervisor under Section 2(11), UPS had to show that (1) he held the authority to engage in at least one of the 12 supervisory functions listed in that provision; (2) his exercise of such authority was not of a merely routine or clerical nature, but required the use of independent judgment; and (3) his authority was held in the interest of the employer. UPS could prove the employee possessed the requisite supervisory authority either by demonstrating that he actually performed a supervisory function or by showing that he effectively recommended the same. Further, to exercise “independent judgment,” the employee must, at minimum, act or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data.

Authority to assign. In his role as a dispatcher, the employee received an email each day from the employer’s sole customer, providing him with the dispatch schedule. The schedule detailed the routes to be driven and the stops to be made on those routes. Based on that information, the employee assigned the drivers to routes. However, the majority of drivers were permanently assigned to a specific route, so the employee only assigned drivers to routes that did not have permanent drivers. In so doing, he relied primarily on driver preferences, but sometimes considered their skills. In the event the dispatcher assigned a driver to a route the driver deemed undesirable, he could switch drivers to different routes if one was available. If an alternate route was not available, he was required to direct the driver to a management official for resolution of the dispute. If there were more routes to be assigned than drivers, the employee was to notify the facility’s operations manager to obtain temporary drivers. However, at one point when the facility was without an operations manager, the employee was authorized to obtain temporary drivers without prior approval. That authority was rescinded when a new operations manager was hired.

Drivers were required to contact a manager to report an absence. Although the dispatcher recorded drivers’ requests for vacation and sick leave, he was not authorized to approve such requests. He had to refer such requests to a management official.

On these facts, the Board majority determined that the employer failed to adduce evidence sufficient to establish that the employee’s responsibilities met the definition of the term “assign” under Oakwood Healthcare, Inc.

Authority to hire. In his capacity as a safety instructor, the employee was responsible for administering road tests to potential new hires, as well as performing semi-annual safety tests on current drivers. In conducting these evaluations, he simply completed the appropriate forms and provided them to management. If a potential new hire failed one of the required tests, he could not he hired. The employee was not otherwise involved in the hiring process. Under such circumstances, the employee’s role in conducting driver tests and reporting the results did not establish that he possessed authority to hire or to effectively recommend hiring, the Board found.

Pro-union conduct. Even assuming the dispatcher was a supervisor, the employer failed to offer evidence that he engaged in objectionable conduct. The only instance of pro-union conduct cited by the employer involved allegations that a union organizer called the employee’s cell phone, and that he made a pro-union statement to a non-unit employee. Even if proven, such conduct would not be objectionable, concluded the Board.

Dissent takes issue with election rule. Chairman Miscimarra would have granted review of procedural rulings by a hearing officer and/or acting regional director as contrary to Section 9(c) and a violation of the employer’s due process rights. He argued that substantial issues existed regarding the impact of the procedural rulings on other issues being litigated. Those issues were serious enough to warrant Board evaluation of the challenged procedural rulings and corresponding provisions of the Election Rule, which results from the rule’s preoccupation with having elections occur on the “earliest date practicable.”

To Miscimarra, this case demonstrates that the election rule’s extensive changes to the Board’s pre-election procedures inevitably draw the parties into a game of “hurry up and wait.” Here, the petition was filed on December 10, 2015, and the deadline for returning mail ballots was January 29, 2016 (50 days after petition filing). Yet more than 17 additional months have passed, and the parties have not obtained a definitive resolution of issues from the election. Moreover, he noted, the more serious problem was that the election rule’s procedural shortcuts may produce an outcome that is unfair, arbitrary, contrary to the NLRA, and a denial of due process.

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