08/20/2024: Legal Services Attorneys Not Supervisors
A simple regional election decision illustrating the high bar for supervisory status.
Root & Rebound, 32-RC-344835 (Regional Election Decision)
Background and Facts:
The case involves Root & Rebound, a nonprofit organization operating in California and South Carolina, and the National Organization of Legal Services Workers-United Auto Workers Local 2320 (the Petitioner). The Union filed a petition seeking to represent approximately 24 professional and non-professional employees working in various capacities at Root & Rebound. The Employer, Root & Rebound, challenged the inclusion of five specific job classifications in the proposed bargaining unit, arguing that these individuals should be excluded as statutory supervisors under Section 2(11) of the National Labor Relations Act (NLRA).
The five disputed classifications were:
California Policy Director
Managing Staff Attorney, Record Cleaning Program
Supervising Attorney, In-Prison Programs
National Director of Litigation for Economic Opportunity
Communications & Educations Manager
Legal Analysis:
Supervisory Status under Section 2(11) of the Act:
The central issue in this case was whether the individuals in the five disputed classifications were statutory supervisors under Section 2(11) of the NLRA. According to the Act, a supervisor is defined as any individual who has the authority, in the interest of the employer, to undertake actions such as hiring, transferring, suspending, laying off, recalling, promoting, discharging, assigning, rewarding, or disciplining other employees, or responsibly directing them, provided that the exercise of such authority requires the use of independent judgment and is not of a merely routine or clerical nature.
Burden of Proof:
The burden of proving supervisory status lies with the party asserting it, in this case, the Employer. The Employer must demonstrate by a preponderance of credible evidence that the employees in question possess supervisory authority. The decision emphasized that any lack of evidence or conflict in the record is construed against the party claiming supervisory status.
Findings for Each Disputed Classification:
California Policy Director (Gail Yen): The decision found that Yen did not qualify as a statutory supervisor. While Yen directed the work of her team, her role was more in the nature of a professional responsibility as an attorney rather than as a supervisor. Her ability to assign work, hire, or discipline employees was either collaborative or lacked independent judgment.
Managing Staff Attorney, Record Cleaning Program (Mona Patel): Similarly, Patel was not deemed a supervisor under the Act. Her authority to assign tasks and direct work was part of her professional role as an attorney, and she lacked independent judgment in hiring and discipline decisions.
Supervising Attorney, In-Prison Programs (Jamie Popper): Popper’s role involved mentoring and providing guidance to her team, but this was consistent with her professional responsibilities and did not elevate her to supervisory status. The decision highlighted that her recommendations and assignments were routine and did not involve independent judgment.
National Director of Litigation for Economic Opportunity (Joshua Kim): Kim was also not considered a statutory supervisor. While he led a litigation team, his role in assigning work and managing cases was professional in nature. His involvement in hiring and discipline was minimal and did not involve the requisite independent judgment.
Communications & Educations Manager (John Rodriguez): Rodriguez was responsible for overseeing a VISTA volunteer but had no authority to hire, discipline, or independently direct work. His role did not meet the criteria for supervisory status under the Act.
Conclusion and Direction of Election:
The Regional Director concluded that the Employer did not meet the burden of proof to establish that any of the individuals in the disputed classifications were statutory supervisors. Therefore, the petitioned-for unit was deemed appropriate for collective bargaining. The decision directed that a secret ballot election be held among the employees in the proposed bargaining unit, including those in the disputed classifications.
Significant Cases Cited:
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Established that the burden of proving supervisory status lies with the party asserting it and must be proven by a preponderance of the evidence.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Provided definitions for key terms like "assign," "responsibly direct," and "independent judgment" used in determining supervisory status under Section 2(11).
Dean & Deluca New York, Inc., 338 NLRB 1046 (2003): Emphasized that the party asserting supervisory status must provide detailed evidence, and any lack of evidence is construed against them.
Neighborhood Legal Services., 236 NLRB 1269 (1978): Found that the direction of work by professionals, like attorneys, does not confer supervisory status unless it involves independent judgment beyond their professional responsibilities.