Regional Director Orders Election at NYC Bike Share, Unit To Include Seasonal Employees And Purported Supervisors

In a Decision and Direction of Election dated August 20, 2014, the Regional Director for Region 2 of the National Labor Relations Board in Manhattan directed an election to determine whether NYC Bike Share LLC employees will be represented by the Transportation Workers Union. The employer operates Citi Bike in New York City, the nation’s largest bike sharing program. The union petitioned for a unit all full-time and all regular part-time employees, including seasonal employees, at three facilities in Manhattan and Brooklyn, New York. The employer protested the inclusion of several supervisory positions and seasonal employees, the latter of which comprises approximately 40 percent of the petitioned-for unit.

The Regional Director disagreed. He found 15 of the 17 purported “supervisors” to be employees eligible to vote under the Act because they failed to actually exercise real authority over the employees. Moreover, he found that the seasonal employees were properly included in the bargaining unit because they had a “reasonable expectation of reemployment” with the employer in the future.

To assess whether challenged individuals are exempt supervisors, the Board considers whether they use independent judgment in the exercise of authority as set forth in Section 2(11) of the Act:

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 responsibly 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.

In the Citi Bike case, the Regional Director expressly recognized the legislative intent that only supervisory personnel vested with “genuine management prerogatives” should be considered supervisors and not “straw bosses, leadmen, set-up men and other minor supervisory employees.” In reviewing the facts at issue, he specifically noted that there was little evidence presented in the record to support the employer’s assertions that these individuals had the authority to hire, discipline, evaluate, assign and direct employees. There was little, if any, documentary evidence (e.g., written disciplinary notices, evaluation forms, performance reviews, etc.) offered, and the verbal testimony was tentative. Some of the purported supervisors apparently admitted never actually exercising the authority or even knowing they had it. Ultimately, although the employer’s job descriptions showed an obvious intent to differentiate the purported supervisors and afford them authority over many employee functions, citing Golden Crest Healthcare, 348 NLRB 727, 731 (2006), the Regional Director saw this as “mere paper authority” insufficient to establish supervisory status.

Regarding inclusion of the seasonal employees in the unit, the Regional Director summarily found that they shared the requisite “community of interest” with the regular part-time and full-time employees. He noted that seasonal and permanent employees worked alongside each other, earned the same wages, had the same shifts, reported to the same supervisors, received the same training, were covered by the same employee handbook, had the same probationary period, and had access to the same facilities. Accordingly, per L&B Cooling, 267 NLRB 1 (1983), he turned to consider whether these seasonal employees had a reasonable expectation of future re-employment. The record indicated that the past two seasonal periods, the employer hired and then laid-off approximately 100 workers each time; and, the employer testified it anticipated a need to hire seasonal employees for the same period next year. Finally, relying on a small sample size, the Regional Director concluded that the 30% rate at which the employer rehired specific individuals as seasonal employees, further buttressed a “reasonable expectation of reemployment” in the future. Accordingly, he found the seasonal employees properly included within the bargaining unit.

The time, date and place for the election will be set by the Regional Office in the near future. Subject to possible review by the Board, this Decision and Direction of Election still provides a helpful reminder to employers who seek to establish exempt status of supervisory personnel under the National Labor Relations Act. It is not enough to intend supervisors to possess such authority. Prudent employers will ensure that intended supervisors understand, actually exercise and effectively document the extent of their authority over their subordinates’ terms and conditions of employment.