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On March 31, 2026, Region 21's Regional Director dismissed an election petition for a proposed unit of workers at a shipping facility, finding that they were all supervisors. See American President Lines, LLC, 21-RC-337981 (Mar. 31, 2026). The decision offers a detailed example for transportation and logistics employers seeking to understand how the NLRB evaluates supervisory status under Section 2(11) of the NLRA, and it provides practical lessons on how to structure frontline supervisory roles to withstand legal scrutiny.
Background
The employer operates an international shipping network. The clerks at its Long Beach facility were already represented by the Longshoremen's union. The petitioned-for unit consisted of four classifications: a Detention Demurrage Storage and Monitoring Manager ("DDSMM"), a Regional Collections Manager ("RCM"), four Cargo Flow Supervisors ("CFSs"), and two Cargo Flow Managers ("CFMs"). These eight individuals served as the immediate supervisors of the clerks.
The employer contended that the petitioned-for unit was improper because each of the individuals was a statutory supervisor excluded from the Act's protections. The hearing lasted 13 days, and the matter itself was left pending for almost two years while the Regional Director assessed the evidence.
Supervisory Status and Section 2(11)
Section 2(11) of the NLRA defines a "supervisor" as 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, provided the exercise of such authority is not merely routine or clerical in nature but requires the use of independent judgment. As the Board explained in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), the party asserting supervisory status must demonstrate that the individual (1) possesses authority over at least one of the twelve enumerated supervisory functions, (2) exercises that authority with independent judgment rather than in a merely routine or clerical fashion, and (3) does so in the interest of the employer. In almost all situations, the employer bears the burden of proof. Purely conclusory evidence is insufficient.
Regional Director's Analysis
Assignment of Work
The Regional Director found that the employer did not present sufficient evidence to establish that the supervisors had authority to "assign" work within the meaning of Section 2(11). Under Oakwood, "assignment" involves designating an employee to a place, appointing an employee to a time, or giving significant overall duties to an employee. Here, the clerks' overall duties were determined by their respective job descriptions set forth in the collective bargaining agreement, and the clerks generally performed the same types of tasks each day without requiring detailed instructions from their supervisors. When supervisors directed clerks to perform specific tasks — such as handling an urgent customer dispute, following up on an overdue account, or sending transport orders to truckers — those amounted to discrete task assignments rather than the significant overall designation of duties contemplated by the statute.
Responsible Direction of Work
By contrast, the Regional Director did find that the supervisors "responsibly direct" the work of clerks, exercising independent judgment in doing so. This finding turned on the concept of accountability: unlike mere assignment, responsible direction requires proof that the supervisor is accountable for the proper performance of tasks by subordinate employees.
There was significant evidence supporting this factor, as each supervisor oversaw a team of four to eleven clerks and provided daily oversight to ensure tasks were completed timely and correctly. Examples included: (1) preparing priority dispute reports and directing how the dispute should be handled; (2) establishing deadlines for collectors to follow up on overdue accounts and having authority to approve sending accounts to third-party collections; (3) managing excessive storage fees and taking action to reduce costs; and (4) having aspects of their performance metrics based on the performance of their subordinates.
The performance evaluation piece was key. The supervisors could face positive or negative consequences based on the performance of their clerks. And, their performance evaluations served as the basis for merit-pay increases and promotions. Thus, the supervisors were held accountable for how the employee clerks performed.
Adjustment of Grievances
The Regional Director also found that the supervisors had authority to adjust grievances (i.e., to resolve workplace complaints beyond minor disputes and to use independent judgment in doing so).
In this case the clerks were in a union. While, as a legal matter, subordinate employees do not have to be in a union for this factor to apply, here, the Regional Director found that the direct supervisors had authority to address certain contractual grievances pursuant to the CBA's grievance procedures.
Specifically, the first step of the CBA's grievance procedure required certain disputes to be discussed with the employee's immediate supervisor, and the supervisors at issue here served in that capacity. The Regional Director found that adjudicating these disputes required the exercise of independent judgment because certain CBA provisions could be vague and the supervisors were tasked with interpreting their meaning and weighing multiple factors to assess whether the grievance had any merit.
Effective Recommendation of Hiring
The Regional Director also found that the supervisors effectively recommended the hiring of ten new clerks earlier that year. The supervisors served as the sole interview panel, were supplied with candidates' resumes and rating sheets, conducted the interviews, completed written evaluations, and provided the recommendations, which the company adopted. Record evidence also showed that supervisors had interviewed and recommended candidates for hire on at least one prior occasion, in 2021.
Secondary Indicia
Finally, the Regional Director further found that secondary indicia supported the conclusion of supervisory status.
Secondary indicia are factors other than those enumerated in Section 2(11) of the Act. Secondary indicia, standing alone, are insufficient to establish supervisory status. But, they can help tip the scales. Secondary indicia of supervisory status include, but are not limited to, the individual's: designation as a supervisor; attendance at supervisory meetings; receipt of management memos; responsibility for a shift or phase of the employer's operation; authority to grant time off to other employees; responsibility for inspecting the work of others; responsibility for reporting rule infractions; receipt of privileges exclusive to members of management; and compensation at a rate higher than the employees supervised.
Here, the Regional Director found evidence that clerks viewed the supervisors as their supervisors; that the supervisors attended supervisory meetings; that they managed time-off requests and team attendance; that they inspected clerks' work for errors; and that they had authority to request temporary employees from the hiring hall.
Confidential and Managerial Status
Separately, the Regional Director declined to find the DDSMM and RCM were confidential employees, concluding that the record was insufficient to show they had regular access to advance information regarding the employer's bargaining strategy. Similarly, the Regional Director rejected the employer's argument that the CFMs were managerial employees, finding that the CFMs did not formulate employer policy but merely implemented strategies to ensure timely completion of team work.
Key Takeaways for Employers
A key issue for employers in any union organizational campaign is the identification of supervisors and higher-level managers, as these individuals are not covered by the Act and should be excluded from any bargaining unit. When it comes to the frontline, direct supervisors, the line-drawing can be difficult, as there is often overlap in the performance of tasks. But, it is an important line to draw.
Employers need to think about this issue now; waiting until a union issues a demand for recognition or files an election petition to figure out if a worker is a supervisor or an employee puts an employer on the back foot. Under current election rules, an employer may have as little as one week to put together its positions and prepare for a hearing. The more clear-cut an employee's supervisory status is, the less likely that supervisor is to be swept up in a union organizing petition (and if they are, the more likely that the employer can establish sufficient evidence to properly exclude them from the unit).
Things to consider:
- Are direct supervisors held responsible for the work of their subordinates? What evidence is there of this responsibility?
- Do the direct supervisors exercise independent discretion in making decisions? Is this clearly encapsulated by their job description? How is such decision-making documented?
- Do employees understand that the individual directly above them is their supervisor? Do supervisors attend separate management meetings? In what ways are the supervisors treated differently from the employees they oversee?
Conclusion
This decision is a relatively thorough application of the Board's Oakwood Healthcare framework and a reminder that supervisory status under Section 2(11) must be grounded in concrete, specific evidence rather than conclusory assertions.
For employers in the transportation and logistics sector, the case underscores the importance of building a deliberate supervisory infrastructure — one in which direct supervisors have authority to exercise independent discretion with such authority clearly documented. Employers who proactively structure and document these supervisory functions will be better positioned to defend the exclusion of their supervisors from bargaining units if challenged.
Note: At the time of publishing, this Regional Director decision had not been formally adopted by the Board.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
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