The NLRB continues to scrutinize closely cases presenting issues of supervisory status. In Veolia Transportation Services, Inc., 363 NLRB No. 98 (slip op. January 20, 2016), an NLRB panel voted 2 to 1 to overturn a Regional Director’s decision that a transportation company’s road supervisors possessed the authority to discipline and reward employees and therefore were supervisors within the meaning of Section 2(11) of the NLRA.

Veolia provides public bus transportation services in the Las Vegas, Nevada metropolitan area. The Amalgamated Transit Workers Union Local 1637, which already represented a unit of some 750 drivers, filed a petition seeking to represent Veolia’s 43 road supervisors. The road supervisors drive vans marked "supervisor" to follow Veolia buses to determine whether the drivers are making timely stops, abiding by speed limits, and driving safely. When the road supervisors observe rule infractions, they may complete an Observation Notice ("OBN") to document the incident. Alternatively, the road supervisors may choose to simply counsel the driver and not prepare an OBN. The OBNs are reviewed and relied upon by other managers, both for purposes of issuing discipline and in evaluating employee performance. The road supervisors also are responsible for investigating and reporting on driver accidents and are authorized to remove a driver from the vehicle on suspicion of intoxication or similar serious infractions.

The Board’s panel majority concluded that the road supervisors’ role in preparing OBNs was "merely reportorial" and thus insufficient to establish supervisory status. The panel further concluded that the additional responsibilities for reporting on accidents and removing intoxicated drivers did not involve the exercise of "independent judgment" and were therefore also insufficient to demonstrate supervisory status under the NLRA. The Board also discounted evidence that road supervisors could effectively recommend bonus awards. The Board remanded the matter to the Regional Director to proceed with direction of an election.

Board Member Philip Miscimarra, dissenting, noted that the majority’s decision resulted in a 100 to 1 ratio of employees to supervisors, a ratio that under other NLRB decisions was absurdly high. The road supervisors, Miscimarra observed, were the only management personnel in a position to observe driver compliance with safety and conduct rules out in the field, and the road supervisors exercised discretion and independent judgment in deciding whether to write up the infractions or to simply verbally coach the driver. The dissent further questioned whether the NLRB’s decision would result in divided loyalty, suggesting that the road supervisors might be unwilling to write up their union brethren if the drivers engaged in an improper work slow-down.

Notably, the petition was filed in 2012, before the new "expedited election" rules took effect. In a case such as this, where the supervisory status of the entire unit is in question, presumably the Regional Director would still conduct a pre-election hearing to determine whether an election should be held. In most cases, however, under the new election procedures, the NLRB Regional Directors will not rule on supervisory status issues until after the election has been held. 

The added uncertainty introduced by decisions such as this will require that employers carefully evaluate the degree of authority exercised by their supervisors well before an election petition has been filed. Under the new election rules, there will be little time to explore these matters in depth in the run-up to an election, and in most cases no opportunity for a hearing on the issue. Moreover, altering duties in order to clarify supervisory status after a petition has been filed will likely result in a charge of election interference. In situations where the degree of authority presents a close question, employers should conduct a careful analysis now and consider conferring additional supervisory authority before any organizing activities begin to maintain management team loyalty.