Executive Material? Court Defers to NLRB on Status of ‘Supervisors’ at Polyester Plant
What does it take to make the cut as a “supervisor” excluded from the coverage of the National Labor Relations Act? A recent Fourth Circuit decision reviewing a searching NLRB order shows how much more than a job title can make a difference.
Deferring to the NLRB’s finding that four employees who oversaw the daily work of between 22 and 40 hourly workers were not “supervisors” at a polyester recycling plant, the court enforced an order finding that their pro-union activities didn’t justify setting aside a representation election in which they cast contested ballots. Pac Tell Grp., Inc v. NLRB, 205 LRRM 3120, 2015 BL 422656 (4th Cir. 2015, unpublished).
What, this old thing?
The employer, U.S. Fibers, recycles polyester fibers at a plant in South Carolina where it used a two-tiered management structure. On top, a vice president, director of manufacturing, production manager and quality assurance manager were definitely in charge. On a second tier, four employees who were designated “supervisors” each oversaw the daily work performed by hourly workers during each 12-hour shift. Workers on each shift were divided into smaller teams and assigned a “team lead.” The team leads, in turn, reported to the “supervisors.”
A Steelworkers local filed a petition with the NLRB to represent certain employees at the plant, and the board directed an election over the employer’s objection that the “supervisors” should not be included in the proposed unit.
The union won the election by a 12-vote margin, with four contested ballots that were cast by the “supervisors,” and the employer objected to the results of the election. After the board’s regional director certified the union as the employees’ exclusive representative, the employer refused to recognize or bargain with it, arguing that the election should be set aside.
The board ordered the employer to recognize and bargain with the union, the employer petitioned for review, and the board filed a cross-application for enforcement of its order.
Suit makes the man?
The employer first argued that the board erred in concluding that the four employees at issue were not supervisors under the National Labor Relations Act.
The employer tailored its challenge around the notion that the employees performed four of the 12 supervisory functions spelled out in Section 2(11) of the NLRA. The characteristics that allegedly bespoke their supervisory status were authority to assign work, authority to reward, authority to discipline, and authority to responsibly direct other employees.
The court first found that the record indicates that the employees' “assignment” functions were made according to parameters set by management or to equalize workload. They made assignments, but only based on forms and instructions prepared by the production manager.
Looking at authority to reward, the court found that the evidence was ambiguous about the weight given to the employees' opinions. They made recommendations about which workers should receive raises, but their recommendations went up the chain, and the vice president made the ultimate decision.
Finally, the court found that evidence supports the board's conclusion that the employees did not act free of control of others when they issued discipline, and that work performed at the plant was routine enough that hourly workers didn’t require a lot of direction.
Concluding that the board reasonably found that the employer did not show that the four employees were supervisors, the court declined to set aside the results of the election on that basis.
One size fits all?
Assuming that the employees were not supervisors within the meaning of the NLRA, the employer argued in the alternative that the results of the election should be set aside under the standard for objectionable conduct by third-party employees. In particular, the employer said two of the employees “threatened” other workers that they could lose their jobs if the union didn’t win the election.
Here, the court noted that the NLRB may set aside an election based on employee, rather than supervisor, misconduct if the conduct “was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible.”
The court didn’t ultimately think that tough standard had been met. In one case, for instance, an employee told others that “there could be a possibility” of the employer letting workers go if they supported the employer. Another employee said it would be “a lot easier for the Company to be able to let employees go” if they didn’t “sign the union form.” These challenged statements, the court found, were merely general comments about potential future job loss.
Some common threads
A bright trend that the case demonstrates is the great deference that courts typically give to board-supervised elections as a matter of federal administrative law. The results of such elections are considered presumptively valid, and federal appellate courts won’t look too closely at the stitching.
A second significant point is the intensity of the board’s fact-specific inquiry into who qualifies as a supervisor under the NLRA. A title, position and even some subordinates may be nice, but the board ultimately looks to certain kinds of practical workplace authority as a sign of the mantle of supervisory status.
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