Executive Summary: The Fourth Circuit recently upheld a finding of the National Labor Relations Board (NLRB) that four employees were not supervisors, even though each employee oversaw the daily work of between 22 and 40 workers. The Fourth Circuit acknowledged that there was some evidence of supervisory authority but deferred to the NLRB's conclusions that the employees at issue were not supervisors. See Pac Tell Grp., Inc. v. NLRB, No. 15-1111, unpublished (Dec. 23, 2015).
Background
U.S. Fibers, a polyester recycling plant in Trenton, South Carolina, utilizes a tiered management structure that includes several senior managers, four "supervisors," and team leads. The team leads report to the supervisors. The four putative supervisors each oversee the daily work performed by workers during a 12-hour shift.
The union filed an election petition to cover certain workers at the plant. The Board directed an election over U.S. Fibers' objections that the putative supervisors should not be included in the bargaining unit because of their alleged supervisory status. The employer then filed objections to the results of the election, arguing that the putative supervisors had engaged in objectionable conduct, and the results should be set aside. The Regional Director concluded that U.S. Fibers failed to establish that the putative supervisors were supervisors as defined by the National Labor Relations Act (NLRA), and the Board adopted those findings and affirmed his decision.
Analysis
According to U.S. Fibers, the individuals in question engaged in the following supervisory functions: (1) assignment of work; (2) rewarding employees; (3) disciplining employees; and (4) responsibly directing employees. Based on those activities, the employer contended that the employees were supervisors and that the election should be set aside because of pro-union activity by the putative supervisors.
The NLRB disagreed, finding that none of the putative supervisors exercised the necessary "independent judgment" to qualify as a true supervisor. The NLRA defines a "supervisor" as:
A]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline any other employees, . . . if in connection with the foregoing, the exercise of such authority is not merely routine or clerical in nature, but requires the use of independent judgment.
29 U.S.C. § 152(11). The Board and the Fourth Circuit heavily relied on the last part of the definition – the use of independent judgment – in denying the supervisory status of the employees at issue.
The Court began by reviewing the putative supervisors' authority to assign work. The Court pointed out that the authority to assign work does not include assignments made solely on the basis of equalizing workloads. The Board and the Court both focused on the fact that the putative supervisors made the assignments within the structure set by upper management, and accordingly, as the assignment function did not require the use of independent judgment, the employees were not supervisors based on that function.
The Court also looked to whether the putative supervisors had the authority to reward by evaluating employee performance for the purpose of recommending raises. The Board found that the evidence was inconclusive as to the extent to which the putative supervisors' recommendations influenced the employer's ultimate decisions. The putative supervisors evaluated employees on a biannual basis to determine which employees should receive a raise. However, the Board concluded that because the Vice President of Operations made the final determination – even though he agreed with the recommendations 90 percent of the time – the evidence was ambiguous with respect to the weight given to the recommendations. Although the Court acknowledged that the Board could have concluded that the putative supervisors had the authority to recommend raises, it again deferred to the Board's conclusions.
The Court next considered whether the putative supervisors had the authority to discipline employees. U.S. Fibers asserted that they disciplined employees by issuing written warnings. The Board focused on the fact that the managers provided blank warning forms to the putative supervisors and instructed them to issue a warning every time a worker disobeyed safety rules. Moreover, all warnings were subject to approval by management. Again, the Court admitted that there was evidence of independent judgement, but not enough to "erode the substantial evidence supporting the Board's conclusion." The Court upheld the Board's conclusion that the putative supervisors did not act or recommend actions "free of the control of others" and did not use independent judgment in exercising this supervisory function.
Finally, the Court considered whether the putative supervisors had the authority to responsibly direct employees by instructing them regarding the manner in which they were to perform their duties. According to the Board, a supervisor "responsibly directs" when he or she "directs or performs the oversight of the employee." The Board concluded that the putative supervisors did not use independent judgment when directing work because the employer failed to show that they were held accountable for the employees' work. Although one of the putative supervisors testified that he told employees what to do and how to do it, and employees confirmed that they received direction from the putative supervisors, the Board held that the evidence was not dispositive of the responsible direction inquiry even though the putative supervisors were on duty at times when there were no managers. The Fourth Circuit agreed, finding that the work was "sufficiently routine that the employees did not require extensive direction."
The Court acknowledged once again that there was evidence in the record to support the employer's view; however, the Court applied the deferential standard of review and concluded that the Board reasonably determined that the employer did not meet its burden of establishing supervisory status. Thus, it declined to set aside the results of the election on the basis of objectionable conduct by statutory supervisors.
Employers' Bottom Line
Although the opinion is unpublished, and thus not binding precedent in the Circuit, it still provides insight into how much evidence an employer may have to submit to support a supervisory status claim. The Fourth Circuit is generally considered to be a pro-employer Appellate Court, but here it strongly deferred to the NLRB. In its last year under the Obama Administration, employers can expect the Board to continue to issue pro-union decisions, including efforts to increase the likelihood of joint employer findings and attacks on employer policies it perceives as "chilling" employees' Section 7 rights. If the Fourth Circuit continues to give the Board the type of substantial deference it did in this case, more NLRB decisions will likely be affirmed at the appellate level.
Employers can also expect the Board to continue to apply a narrow definition of supervisor to bring more individuals under the auspices of the NLRA. Because the NLRA does not cover supervisors, they are excluded from bargaining units. A finding of fewer supervisors will result in larger bargaining units and more potential dues-paying members for unions. Additionally, the smaller the number of supervisors, the less opportunity for the employer to deliver its message during union campaigns.
This issue is especially significant in light of April 2015 changes to the Board's election rules, which allow the Board to decline to resolve the supervisory status of an employee prior to a union election. These changes will make it even more difficult for the employer to determine which of its employees satisfy the Board's demanding interpretation of supervisory functions. Employers seeking to designate an employee as a supervisor should be prepared to put forth tangible evidence of the employee's supervisory function, particularly the use of independent judgment.
Jacquelyn L. Thompson, jthompson@fordharrison.com, is a Senior Associate in our Washington, D.C. and Tysons Corner offices. If you have any questions about the decision or other labor or employment related questions, please feel free to contact her. You may also contact the FordHarrison attorney with whom you usually work.