How the National Labor Relations Board Determined Supervisors Could Organize into a Union

A transportation company employed 40 road supervisors who monitor drivers to ensure they follow company policies. They recommend discipline by filling out “observation notices” when a driver breaks a rule and “pats on the back” when drivers do something positive. The notices and pats on the back are forwarded to a senior supervisor who metes out discipline and puts the positive notes in the drivers’ files. Observation notes can result in termination. Pats on the back can result in cash awards. The Regional Director dismissed the union’s organizing petition seeking to organize road supervisors determining road supervisors were supervisors under the National Labor Relations Act because they had authority to “discipline, reward, or effectively recommend such action.”

The NLRB overruled the Regional Director. According to the Board, “evidence did not indicate who determines whether to grant [the award] or how that determination is reached.” Therefore, no evidence establishes that road supervisors effectively recommend rewards without an independent investigation by whoever actually decides to grant the award. Similarly, the Board found that road supervisors did not have a critical role in the discipline process because the observational notices were “reportorial” by containing just a description of what happened; they did not contain a recommendation of discipline.

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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