A manager’s involvement in the disciplinary process isn’t necessarily enough to make them a "supervisor" under the National Labor Relations Act, according to a recent NLRB decision.

In DirecTV, 357 N.L.R.B. No. 149 (Dec. 22, 2011)  the Board, in a 2-1 decision, held that DirecTV’s "field supervisors" weren’t actually supervisors as defined in the National Labor Relations Act. Section 2(11) of the NLRA defines supervisors as individuals who have certain authority with respect to other employees, including the ability to discipline or "effectively recommend" discipline for other employees. The issue arose following a representation election won by the union. DirecTV argued that the field supervisors were "supervisors" under the NLRA and that the field supervisors’ pro-union activities during the pre-election period interfered with the employees’ free choice in the election. DirecTV asked the NLRB to invalidate the election.

In addition to leading team meetings, answering their team members’ technical questions, and examining their work, field supervisors had authority to issue verbal warnings to their team members and, using a separate process, to initiate other levels of discipline, including termination. This process involved a form that field supervisors completed with the relevant facts and, in the form, the field supervisor identified the discipline that he thought appropriate. Then the field supervisor’s manager, the site manager, and human resources would review the form, and in some cases review the performance and disciplinary history of the employee to be disciplined and consult with the field supervisor before making a final decision. In the majority of cases, the field supervisor’s recommended action would be taken.

The Board found that the field supervisors’ involvement in the disciplinary process didn’t give them the authority to "effectively recommend" discipline to meet the NLRA’s definition of supervisor. Noting that such authority exists when the employer takes the supervisor’s recommended action without independent investigation, the majority found that DirecTV was performing independent investigations when others in management reviewed the field supervisors’ forms, and in particular, when the site manager reviewed the disciplinary and performance history of employees to be disciplined. They also found it unpersuasive that DirecTV usually followed the actions that field supervisors recommended.

The Board’s DirecTV decision is just another example of Board decisions that can make things more difficult for companies faced with organizing activity. It is essential that an employer can identify with confidence those employees who are supervisors because the role, responsibilities and authority of supervisors during union organizing is so crucial to the employer mounting an effective and legal response to the organizing.

One key takeaway from this decision is that employees who perform some traditionally supervisory duties may still not meet the definition of supervisor under the NLRA, even when they are involved in the disciplinary process. Even before union activity ever occurs companies are wise to evaluate the scope of duties and responsibilities given to supervisors with an eye toward how those jobs might be viewed by the NLRB if organizing does occur.