Job Title Alone Does Not Make an Employee a Supervisor

By W. Kevin Smith and Jacob W. Crouse May 25, 2017

An employer could not consider members of a proposed bargaining unit statutory supervisors, ruled the U.S. Circuit Court of Appeals for the District of Columbia, though the employees in that unit had the word "supervisor" in their job titles.

A group of 44 employees sought representation by a union. They worked for Allied, which contracted to provide fueling services to approximately 50 airlines at Newark, N.J., Liberty International Airport. These employees generally ensured the smooth provision of fuel service at the airport. Their job titles all included the word "supervisor."

In March 2012, the union filed a petition seeking to represent the employees. Allied opposed the petition, arguing that the employees were supervisory within the meaning of the National Labor Relations Act (NLRA) and therefore exempt from its coverage. A National Labor Relations Board (NLRB) regional director found, however, that the workers were nonsupervisory employees and directed an election in the petitioned-for bargaining unit.

[SHRM members-only HR Q&A: What is the function of the NLRA?]

Allied sought board review of the nonsupervisory finding. The board affirmed the decision of the regional director but found that there was a substantial issue as to whether three of the employees, whose titles were training supervisor, were statutory supervisors.

In the interim, the union won the election. After the election, Allied argued that the training supervisors, whose votes would be sufficient to defeat union representation, should be considered nonsupervisory and eligible to participate in the election. The NLRB ultimately determined that these employees were statutory supervisors whose votes should be excluded.

Allied refused to bargain with the newly certified bargaining unit, asserting that the NLRB had erred in certifying the unit. The union charged Allied with refusal to negotiate a collective bargaining agreement in violation of the NLRA. The NLRB held in the union's favor and ordered Allied to bargain.

Allied petitioned the D.C. Circuit to review the decision of the NLRB. Allied contended that the board erred in classifying the unit members as nonsupervisory under the NLRA. Under the NLRA, statutory supervisors are those with the authority to act "in the interest of the employer" to carry out or "effectively to recommend" at least one of 12 indicia of supervisory authority, provided that the exercise of that authority requires "the use of independent judgment."

Allied argued that the unit members were statutory supervisors because they exercised disciplinary authority over other employees. The record evidence showed to the contrary that the unit members merely filed forms recounting employee misconduct, which were then considered by management employees who actually made the disciplinary decisions. While the unit members' filing the reports played a role in substantiating conduct on which discipline might be based, they were "never involved in the ultimate [disciplinary] decision," according to the court.

As to the training supervisors, the court found that their recommendations concerning whether probationary employees be retained for employment were routinely followed "without independent investigation by superiors" and that they must be considered statutory supervisors because of this authority.

Finding that substantial evidence supported the conclusions of the NLRB, the D.C. Circuit upheld the decision of the board.

Allied Aviation Serv. Co. v. NLRB, D.C. Cir., No. 15-1321 (April 18, 2017).

Professional Pointer: Job titles alone are not sufficient to determine whether an employee is a statutory supervisor who would not be covered by the NLRA. Employers should give careful consideration to the supervisory activities listed in the NLRA and how they may apply to the employees that the employer has designated as supervisors. By pre-emptively reviewing the descriptions and job duties of supervisory employees, an employer may avoid future litigation over whether an employee properly is considered a statutory supervisor under the NLRA.

W. Kevin Smith and Jacob W. Crouse are attorneys with Smith and Smith Attorneys, the Worklaw® Network member firm in Louisville, Ky.

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