In G4S Regulated Security Solution 358 NLRB 160 (September 29, 2012), the NLRB recently raised the bar that employers must meet in order to establish that individuals are supervisors under Section 2(11) of the NLRA.  That case involved an employer guard service that provided security at a nuclear power plant and that employed approximately 170 union-represented guards at the facility.  The employer terminated two lieutenants who were not part of the bargaining unit because they were considered to be supervisors by both the employer and the union.  Notwithstanding their classification as supervisors, the two lieutenants filed a charge alleging that they were illegally terminated for engaging in protected, concerted activities.  At a hearing before an ALJ, the employer argued that the charge should be dismissed because the individuals were supervisors and, therefore, the legality of their terminations was outside the purview of the Act.  The ALJ found that the individuals were supervisors and dismissed the charge.

In finding that the lieutenants were Section 2(11) supervisors, the ALJ relied on the testimony of the local union president, who worked as a guard at the facility and testified that the guards view the lieutenants as their supervisors and the testimony of both the facility’s primary manager and of terminated individuals who corroborated testimony that lieutenants both evaluated the guards and had the authority independently to administer discipline and to assign guards to particular duty stations.  The ALJ also relied on documentary evidence of disciplinary actions authorized by lieutenants and noted that the “lieutenants are paid more than security guards, receive additional training not given to guards, are included in management meetings that guards did not attend, and perform little actual guard work.” Finally, the ALJ observed that if the lieutenants were not supervisors, each captain would be responsible for supervising over 30 security guards—an implausibly large number given the size, complexity and sensitivity of the facility. 

Despite what would appear to be more than sufficient evidence to support the ALJ’s findings, the Board majority (Chairman Mark Pearce and Member Sharon Block) overruled the ALJ, found the individuals not to be supervisors and, as a result, held that the individuals are entitled to the protections of the Act.  In so finding, the majority, in essence, simply chose to second guess the ALJ as to the weight of the evidence provided by the employer.

Member Brian Hayes, in dissent, argued that the preponderance of evidence clearly established that the terminated individuals were supervisors and that the majority now “effectively imposes a higher standard of proof on employers than is appropriate.”

This heightened standard of proof is troublesome for employers in any case involving the discipline of individuals and in union organizing campaigns where the penalties for mischaracterizing a purported supervisor can be significant.  If management erroneously treats an employee as a Section 2(11) supervisor, they have violated that employee’s Section 7 rights.  Conversely, if management erroneously treats a Section 2(11) supervisor as an employee, such an error could result in the overturning of an election result, if, for example, the Section 2(11) supervisor attended union meetings or otherwise made statements that would constitute lawful free speech by an employee but amount to unlawful coercive speech by a supervisor.  In light of this decision, management will need to redouble its efforts in establishing Section 2(11) supervisory status.