A recent NLRB decision once again demonstrates that intuition and logical conclusions are no substitute for documentation of supervisory acts when it comes to classifying employees as supervisors under the NLRA.  At issue this time was a registered nurse whom the employer hired to assign and supervise the work of other nurses during shifts in which no other management is present.  Like the tugboat captain in 2015 and the security guard lieutenant in 2016, the NLRB held the RN was not a supervisor.

The case involved a union’s efforts to organize a hospital’s employees. The employer argued that Patient Care Coordinators (PCCs), the RN position described above, were “supervisors” under the NLRA.  If the PCCs were indeed supervisors, then they could be excluded from the bargaining unit.

An employee is a supervisor under the NLRA if the employee exercises, or effectively recommends the exercise of, at least one of 12 powers while using “independent judgment” in the “interest of the employer.”  The employer relied upon three specific powers:  the PCC’s ability to assign work to employees, their responsibility for directing work of other employees, and their power to discipline, suspend and even terminate other employees.

With most things in life, timing is essential. That certainly held true for the employer in this instance.  The NLRB held that the employer failed to provide concrete examples demonstrating the use of supervisory powers by the PCCs. The employer’s lack of such examples, however, could have had something to do with the fact that the PCC position had only existed for about 3½ months prior to the election petition.  There was a job description that clearly laid out supervisory powers, but there had not been (not surprisingly) much opportunity for the PCCs to exercise the authority the job description granted.

The employer attempted to use e-mails the PCCs sent reminding employees to do certain tasks. But, the NLRB discredited these because they were mass e-mails and gave no direct supervisory instruction to particular persons.  The PCC’s ability to assign work was both acknowledged but discredited by the Board, because in many situations, only one other nurse worked in addition to the PCC.  According to the Board, this arrangement meant that assigning work to that nurse was an “obvious and self-evident choice,” not requiring the use of independent judgment.

While the employer’s Vice President testified that PCC’s are accountable for, and do “responsibly direct” the other nurses, there was again no documentary evidence to suggest that PCCs were held accountable for the work of employees that they directed.  Similarly, no documentation existed of the PCCs disciplinary power, mainly because no other nurses had been hired or fired in the short months after the creation of the position, but before the union election petition.

Member Miscimarra (R) dissented, arguing that the majority’s holding failed “the common sense test.” Looking to the reality of the hospital’s operations as opposed to its formal documentation, Miscimarra found it self-evident that any employee who was the only person present in the facility with any authority to make patient care decisions “from 7 p.m. to 8 a.m., Monday through Friday, and every weekend” should easily qualify as a supervisor.  Member Miscimarra further reasoned, among other points, that if a new patient in critical condition arrives at the hospital after hours, “someone has to be in charge,” and that someone is clearly the PCC.

For the labor professional, there will be no good substitute for the documentation of the exercise of supervisory authority.  Job descriptions are certainly a helpful staring point, but will not be sufficient by themselves.  This most recent case underscores these general principles, even when the position is newly created.