By Nelson Cary and James Pauley III
An important subject of debate for health care employers is whether an RN can be a “supervisor” under the NLRA. This is a significant decision because “supervisors” under the NLRA are treated differently from non-supervisors. In particular, they cannot be included in a group of employees that a union seeks to represent.
In a recently decided case, a union sought to represent a group of RNs at a nursing home in Tennessee. The NLRB permitted the union election to go forward, finding that the RNs were not supervisors. In a 2-1 decision (pdf), a federal appeals court reversed this decision, determining that the RNs possessed adequate disciplinary authority to qualify as supervisors. Accordingly, the RNs were not entitled to vote in a union election administered by the NLRB. Crucial for labor professionals is the analysis followed to determine that the employer’s RNs were supervisors.
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, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
A supervisor must have the authority to exercise at least one of these duties, must do so in a way that is not merely routine or clerical, but that requires independent judgment, and must exercise it in the interest of the employer. In the recently decided case, the employer contended that its RNs were supervisors because they had independent authority to discipline, assign, and direct Certified Nursing Assistants (“CNAs”). With respect to discipline, when faced with CNA misconduct, RNs could (1) do nothing, (2) give verbal counseling, or (3) issue a written memorandum.
The NLRB found that the RNs involved were not supervisors because they lacked the necessary authority to discipline CNAs. The RNs only reported misconduct to the Director of Nursing, which action “d[id] not constitute supervisory authority.” Issuing written memoranda had no purpose other than to inform management about the employee misconduct, and thus lacked disciplinary effect.
The court of appeals disagreed, finding that the RNs’ role in issuing written memoranda was disciplinary in nature because it constituted “th[e] very act that [led] directly and automatically to a written warning – a ‘step’ in the company’s policy of progressive discipline.” The court found significant the fact that RNs exercised independent authority when determining whether to give verbal counseling or issue a written memorandum (i.e., RNs did not have to consult with a superior before issuing a memorandum).
The court also rejected the idea that RNs lacked disciplinary authority because they could not suspend or terminate CNAs unilaterally. “Discipline cannot be synonymous with suspension or termination, for the statute lists these supervisory functions individually, and in the disjunctive: A supervisor is ‘any individual having authority . . . to . . . suspend, . . . discharge, . . . or discipline other employees. . . .” In sum, the court held that “the written warnings that follow from receipt of an employee memoranda satisfy the criteria for discipline.” This means that the RNs in this case were considered “supervisors” under the NLRA, and thus could not participate in a union election.
For labor professionals, this decision is important for four reasons:
- First, it does not categorically state that all RNs are “supervisors” under the NLRA; rather, it provides a guide by which to determine whether an employee has sufficient authority to be considered a “supervisor” under the NLRA.
- Second, it underscores the importance of having a clearly defined disciplinary process. Knowing which employees have independent authority over taking disciplinary actions better ensures that employers will know whether certain of their workers should be classified as supervisors.
- Third, the case is an important reminder that, when it comes to the question of which employees may be “supervisors,” the details of their duties, and the employer’s ability to prove those duties, will be of paramount importance.
- Fourth, the NLRB’s view of supervisory status can be different, and less friendly to employers, than a court’s view.