By Denise Barton Ward

In a line of decisions known as the Kentucky River cases, the Board took aim at re-defining “assign,” “responsibly to direct,” and “independent judgment” in Section 2(11) of the NLRA  as it relates to supervisory status. In DirecTV U.S. DirecTV Holdings LLC, 357 NLRB No. 149 (2011), the Board took the opportunity to dissect the meaning of “effectively recommend” as it relates to supervisory status. In light of the Board’s conclusions, employers should consider how much post-supervisor review is built into disciplinary processes, especially with respect to statutory supervisor status issues under the NLRA.

In DirecTV, a hearing officer concluded that field supervisors possessed the authority to effectively recommend discipline, making them supervisors within the meaning of the Act and rendering their pro-union activity in the pre-election period an interference with the free choice of employees. Having made this finding, the hearing officer recommended a new election. 

At the Board level, Members Pearce and Becker disagreed. Although field supervisors have the authority to initiate a disciplinary “employee consultation form” and their recommendations are ultimately followed, the Board emphasized the fact that all of the employee consultation forms are subject to three levels of review by the operations manager, the site manager, and the human resources department. In addition, such forms are subject to independent investigation. Given the review process, the Board stated it could not find that the field supervisors effectively recommended discipline. It further concluded there was no evidence – such as evidence of progressive discipline – that the employee consultation forms affected an employee’s job status or tenure. Without supervisor status, the election was not subject to interference from the field supervisors, and the Board affirmed the election results in favor of union representation. Member Hayes, in a strong dissent, argued that higher levels of review do not negate the independent discretionary authority to initiate and effectively recommend discipline. Citing case law that review is immaterial, Member Hayes argued review is necessary to ensure compliance with various federal and state laws. 

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