from the January 2012 LERA LEL Newsletter
Only employees may vote in an NLRB election, and only employees are protected by the National Labor Relations Act. The Act specifically excludes supervisors from the definition of employee (Sec.2(3)). Determining who is an employee versus a supervisor requires applying Sec. 2(11). Titles are not relevant. Rather, Sec. 2(11) defines supervisors as those who have specific listed powers (such as hiring, firing, and disciplining employees). It also requires that to be a supervisor, those person must having authority to exercise those powers “in the interest of the employer”. The party that claims a person is a supervisor has the burden of proof.
A recent case raised the issue whether DirecTV “field supervisors” were employees or supervisors, as defined by the NLRA. If the field supervisors were supervisors their activities in support of the union before the petition for election was filed would require overturning the election, which the union had won. DirecTV, 357 NLRB No. 149 (Dec. 22, 2011).
The issue was whether DirecTV field supervisors had authority to “effectively recommend discipline”. The Board majority found that the field supervisors did not possess supervisory authority and, as a result, their prounion activity was not objectionable conduct that was grounds for overturning the NLRB election results.
The case provides an analysis that should be helpful for those dealing with similar issues. It describes the duties of the field supervisors in detail, focusing on their authority to issue verbal warnings. The field supervisors acted essentially as leaders, rather than supervisors. Although they could initiate a disciplinary process, they had no authority to issue disciplines directly to technicians. Rather, the disciplines were issued only after several levels of management review took place. The Board majority says, “The authority to ‘effectively recommend’ an action ‘generally means that the recommended action is taken without independent investigation by superiors, not simply that the recommendation is ultimately followed.’” The majority found that the evidence did not demonstrate that the field supervisors’ authority to recommend discipline met that standard. All field supervisor recommendations of discipline were reviewed at three levels and were subject to independent investigation.
The dissent disagreed with these findings and contended that the field supervisors had authority to “use independent judgment in effectively recommending discipline” and that review of disciplines before issuing them does not necessarily mean that the field supervisors lacked the power to make effective recommendations.
One reason the employer failed to prevail was that the majority found that it had failed to present evidence to support its claims about how disciplines were actually handled.
