You Say Tomāto, I Say Tomäto: Federal Appeals Court Upholds NLRB Ruling That ‘Landfill Supervisor’ Was Not a Supervisor

Contributed by Beverly Alfon

On March 8, 2012, the Seventh Circuit Court of Appeals upheld a National Labor Relations Board ruling that a “landfill supervisor” was unlawfully fired in retaliation for engaging in union organizing activities.  Rochelle Waste Disposal LLC v. NLRB, 7th Cir. No. 10-3212 (3/8/2012).  This is significant because supervisors are excluded from the protections of the National Labor Relations Act.

The court agreed with the NLRB that despite his title, Jeff Jarvis was not a supervisor as defined by Section 2(11) of the Act because he lacked the authority or “responsibility to direct” the work of other employees.  In its analysis, the court referred to the NLRB’s holding in Oakwood Healthcare, Inc, 348 NLRB No. 686 (2006), where it held that an employee has supervisory authority if s/he can take action to correct other employees’ work and can be held accountable for how they perform. 

No authority to take corrective action:  The court noted that ability to take corrective action is not enough.  Such corrective action “must have some force behind it or place some ‘small burden on the employee’” – i.e. something more than telling an equipment operator that his machine was idling too long – as Jarvis did on one occasion.  Jarvis claimed that he only monitored other employees’ work when their performance affected his work.  Accordingly, the court found that the record did not show that Jarvis took actions to correct other employees’ work. 

No accountability for other employees’ performanceThe court agreed that Jarvis had no supervisory authority because he was not accountable for other employees’ performance. Jarvis was never at risk of experiencing “adverse consequences” based on the actions of others and “[r]egardless, the Board has specifically held that ‘paper accountability,’ (accountability in name or job description only), is by itself insufficient to establish supervisory authority.”

As a non-supervisory employee, the NLRB and the court concluded that Jarvis fell within the protections of the Act.  The court upheld the Board’s finding that the employer violated the Act by firing Jarvis in retaliation for his union organizing activities.  It relied upon the employer’s knowledge of Jarvis’ union activity, the timing of the discharge (8 days before a representation election), the employer’s failure to investigate the events allegedly leading up to the discharge, and the employer’s change in rationale for the discharge (from unsatisfactory work performance to a reduction in force). 

BOTTOM LINE:  If you are going to rely on an employee’s supervisory status to save you from potential unfair labor practice charges, be sure that you can demonstrate the employee’s authority to responsibly and meaningfully direct employees.  You also want to be able to provide evidence of the employee taking corrective action with regard to others’ work and show that the employee was at risk for adverse consequences himself as a result of subordinate employees’ work.