Assignment:
The election was conducted under a Stipulated Election Agreement. The tally of ballots shows 85 ballots cast for, and 80 ballots cast against, the Union, with two challenged ballots, some insufficient to affect the outcome of the election. The Employer provides digital television services to residential and commercial customers. At its Rancho, AZ facility, the Employer employs approximately 215 employees in the following classifications: field technicians, warehouse employees, and dispatchers.
The vast majority of these employees are field technicians, who install or repair digital equipment at customers locations. Also, the Employer employs a site manager, three operations managers, and 22 field supervisors. Of the 22 field supervisors, 13 are designed field supervisors with a team [from now on referred to as field supervisors], and nine are designated field supervisors without a team. Each field supervisor oversees a team of approximately 10 to 15 field technicians.
In contrast, field supervisors without a team do not oversee anyone; instead, they primarily perform installation and repair work on complex jobs or jobs for valuable customers.
Field supervisors respond to their team members telephone calls seeking answers to technical questions, requesting additional equipment, or reporting problems with particular job assignments (e.g., a customer is unavailable or a site is inaccessible). Field supervisors monitor the productivity of the field technicians on their team, examine their work, and inspect their vehicles. Field supervisors have the authority to give verbal warnings to technicians for performance issues or for tardiness, such as being late to a team meeting. Such verbal counselings are documented by field supervisors in manager notes, which are not reviewed by management and not retained in employees personnel files.
If a field supervisor determines that a technician performance or infraction warrants more than verbal counseling, he has the authority to initiate the disciplinary process associated with an employee consultation form (ECF). Field supervisors do not have the authority to prepare and issue ECFs directly to technicians; rather, ECFs are subject to management review. More specifically after a field supervisor prepares a draft ECF, the ECF is reviewed, first, by the operations manager to whom the field supervisor reports; next, by the site manager, and, finally, by the human resources department. At each stage of review, the reviewer may alter the language of the ECF, change the proposed level of discipline, or decide that the ECF should not be issued. Following that review, the field supervisor meets with the technician to present and explain the ECF. The field supervisor after that affords the technician the opportunity to set forth his version of events or add other comments, on the ECF form. Finally, the field supervisor asks the technician to sign the ECF form and then signs it himself, after which the ECF is placed in the employee personnel file.
Any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
Questions
1. If the NLRB decides that the field supervisors are supervisors under the National Labor Relations Act, what does the NLRB do about the representation election?
2. Are the field supervisors supervisors under the NLRA?
3. How should the NLRB rule on the field supervisors?
4. How should the NLRB rule in the case of the election? Why?