This National Labor Relations Board (NLRB) decision addresses SWCA, Incorporated d/b/a SWCA Environmental Consultants' ("the Employer") Request for Review of the Acting Regional Director's Decision and Direction of Election in Case 27-RC-321091. The Board denied the Employer's request, finding that it raised no substantial issues warranting review.

The core of the Employer's argument for review centered on the classification of Staff Archaeologists and Assistant Staff Archaeologists as supervisors, and therefore, excludable from the bargaining unit. The Acting Regional Director had previously concluded that these individuals did not possess the authority to assign within the meaning of Section 2(11) of the National Labor Relations Act. The Board affirmed this conclusion, even considering the possibility that these individuals assigned significant overall duties as described in Oakwood Healthcare, Inc., 348 NLRB 686 (2006). The critical failure, according to the Board, was the Employer's inability to demonstrate that such assignments were made using independent judgment. The Employer's assertions of discretion were deemed too broad, lacking evidence that the putative supervisors engaged in the process of "form[ing] an opinion or evaluation by discerning and comparing data," as required by Oakwood Healthcare, Inc., rather than simply assigning tasks based on routine considerations like employee skill sets.

Furthermore, the Employer had raised an argument that non-fulltime Cultural Resource Technicians (CRTs) should be excluded from the unit as seasonal employees. However, the Employer did not adequately present this argument in its Request for Review. It merely cited the legal standard for seasonal employees without applying it to the specific facts of the case, rendering the argument not properly before the Board, as per Section 102.67(e) of the Board's Rules and Regulations. Despite this procedural deficiency, the Board indicated that even if it had reached the merits of the seasonal employee argument, it would have found the non-fulltime CRTs to be appropriately included in the unit. The Board's established precedent for determining the eligibility of seasonal employees focuses on their reasonable expectation of future employment. Factors considered include the size of the local labor force, the stability of the employer's labor needs and reliance on seasonal labor, the actual reemployment history of seasonal workers, and the employer's recall or preference policies. In this instance, the Board concluded that the relevant factors indicated the non-fulltime CRTs possessed a reasonable expectation of future employment, supporting their inclusion in the bargaining unit.

Significant Cases Cited

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): This case established that for an employee to be considered a supervisor under the Act based on the authority to assign, the assignments must involve independent judgment.
• Macy's East, 327 NLRB 73 (1998): This case affirmed that in determining the voting eligibility of seasonal employees, the Board assesses their expectation of future employment.
• Maine Apple Growers, Inc., 254 NLRB 501 (1981): This case outlined several factors the Board considers when assessing seasonal employees' expectation of future employment for voting eligibility.

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