NLRB Creates Heightened Supervisory Standard

Two security force lieutenants at a nuclear power plant participated in presenting complaints on behalf of rank-and-file security officers. The lieutenants were fired and as a result alleged that their termination violated the National Labor Relations Act because they were terminated for engaging in protected concerted activity. The administrative law judge concluded that the two lieutenants were supervisors and rejected their claim.

But on appeal, the Board concluded that there was not sufficient evidence to demonstrate that the lieutenants were supervisors and found them to be employees despite exercising discretion, independent judgment, and having the authority to discipline. The Board found that this evidence fell short of demonstrating supervisory status because the manager did not describe what “procedures, protocols, criteria, or other factors, if any, govern lieutenants’ disciplinary actions.” The company provided disciplinary notices issued by other lieutenants, but the Board found that there was no testimony from the lieutenants or evidence indicating that they exercised discretion to show that they were supervisors. The Board found this evidence insufficient to show supervisory status.

A dissent issued by Member Miscimarra criticized the Board’s interpretation of the evidence noting that the managers’ description of their authority was not contradicted by any other testimony. Notably, both lieutenants had signed an acknowledgement that they were responsible for imposing progressive discipline on employees. Miscimarra further noted that although the majority said that they were applying the preponderance standard, they actually applied an “undefined, higher-level threshold of proof” – a level that has commonly plagued the current Board. This case, like so many others reported in Roetzel’s Recaps, highlights the great lengths the NLRB will go to bend and disregard facts to fit its desired outcome. This case unfortunately blurs the line of what evidence is sufficient to establish supervisory status and leaves companies guessing whether their managers are in fact supervisors.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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