Pyle Rome and SEIU 509 Defeat Attack on Nurses Right to Organize

A common management response to petitions for a union election is to challenge the right of some or all of the workers to vote for the union. As the National Labor Relations Act does not entitle certain supervisors to join or form unions, management frequently alleges that one or more workers meet the statutory definition of supervisor.

A recent decision by Region One of the National Labor Relations Board rejected this gambit used by a Massachusetts human services organization that operates group homes.

The Board's decision recounted that the standard of establishing supervisory requires more than rhetoric or wishful thinking by management:

The burden of establishing supervisory status rests on the party asserting that such status exists. The party seeking to prove supervisory status must establish it by a preponderance of the evidence. As the Board stated in Veolia Transportation, above, “Purely conclusory evidence does not satisfy that burden. Lack of evidence is construed against the party asserting supervisory status.” 363 NLRB slip op. at 7 It is well-settled that job descriptions, job titles, employee handbooks, and similar items that constitute “paper authority” do not, without more, demonstrate actual supervisory authority. Likewise, conclusory statements are insufficient to establish supervisory authority. Rather, the statute requires evidence of actual supervisory authority visibly translated into tangible examples demonstrating the existence of such authority, rather than unsupported assertions that supervisory authority has been conferred on a particular person. Where the evidence is in conflict or otherwise inconclusive on particular indicia of supervisory authority, the Board will find that supervisory status has not been established, at least on the basis of those indicia.

The Regional Director determined that the employer, Bridgewell, failed to provide sufficient credible evidence in support of its claims that the Registered Nurses at issue were materially involved in hiring or disciplining LPNs.

While the employer was unsuccessful in establishing supervisory status, it was successful in delaying an election by several months, thus frustrating the rights of employees to organize and form unions.