When is a Supervisor Not a Supervisor? The NLRB Finds No Proof of Supervisory Authority

Think that just because an employee has the title "supervisor" and is involved in the disciplinary process that the employee will necessarily be a supervisor under the NLRA?  Think again. 

In a recent decision, the NLRB examined the duties of an employee with the title "field supervisor."  This employee was the first level of leadership for hourly, non-supervisory employees.  The field supervisor monitored the productivity of those employees, examined their work, and inspected their vehicles.  The field supervisor could give verbal warnings to those employees for performance or attendance issues.  The field supervisor could also initiate what the employer called an "employee consultation form" (ECF), recommending to higher management that more significant disciplinary action be taken.  Following the referral of the ECF to higher management, multiple levels of management, along with a human resources manager, would review the ECF before accepting or rejecting it.  The employer established that higher management rarely rejected an ECF from a field supervisor.

In DirectTV, 357 N.L.R.B. No. 149 (Dec. 22, 2011) (pdf), the NLRB held in a 2-1 decision that the employer failed to prove that the field supervisor was a "supervisor" under the NLRA.  To be a supervisor under the NLRA, an employee must possess certain authority with respect to other employees.  One such authority is the power to discipline another employee, or to effectively recommend that disciplinary action be taken.

The NLRB noted that "effectively recommend" means that the recommended action is taken without an independent investigation by superiors, and not simply that the recommendation is ultimately followed.  The NLRB then found that the employer proved merely that management ultimately followed the recommendation.  According to the majority, the employer didn’t prove what weight higher management attached to the field supervisor’s recommendation.  It also found that the review by other levels of management constituted "independent investigation" by the superiors.  Finally, the majority found fault with the employer’s proof because it didn’t demonstrate what impact the ECFs had on an employee’s job status, future tenure or discipline.

Member Hayes (R) dissented.  He found that the record clearly established that the field supervisor had the independent, discretionary authority to discipline other employees.  The subsequent review by higher levels of management was not unique and to be expected to "assure procedural compliance with myriad Federal and State employment law regulations."  He also noted that the record contained evidence that ECF’s seeking discipline up to and including termination have been approved and implemented.  Accordingly, Member Hayes would have held that the field supervisors are supervisors under the NLRA.

For the labor professional, the NLRB’s decision is an important reminder of four points:

• Titles don’t matter; duties do.  Regardless of what title an employer bestows upon an employee, it is important to match the duties to that title.
• "Effectively recommend" is not easily proved.  The NLRB will clearly look closely at how the alleged supervisor interacts with other members of management and what authority the person actually exercises.
• The burden of proving supervisory status is on the party asserting it.  If an employer anticipates taking the position that an employee is a supervisor, then the employer should be prepared with documentary evidence to prove that the employee exercises the statutorily required authority.
• Knowing which employees are supervisors is critical.  In this case, the evidence suggested that the field supervisors were involved in prounion activity.  The union won the election by only a five vote margin.  Because the field supervisors were not "supervisors" under the NLRA, their prounion activities didn’t require a second election.