Some Charge Nurses Promise Revolt Over NLRB Decision
On Tuesday, the National Labor Relations Board ("NLRB") rendered three decisions that clarified the test applicable to determine whether an individual qualifies as a "supervisor" or an "employee" under the National Labor Relations Act ("NLRA"). One of the NLRB's decisions in particular has left many nurses outraged.
Under Section 2(11) of the NLRA, the term "supervisor" includes "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" (emphasis added). The distinction regarding whether an individual is a supervisor or an employee under the NLRA is a meaningful one because, while employees have the right under the NLRA to collectively bargain, supervisors do not have the same rights and protections.
Until these three decisions were handed down, the NLRB rather narrowly construed the term "supervisor." In a 2001 United States Supreme Court decision, NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), the Court addressed the status of similar types of employees and criticized the NLRB's interpretation of the term "independent judgment." The NLRB has now seized upon the opportunity to clarify its interpretation of the phrase "independent judgment" and at the same time also altered its interpretation of the terms "assign" and "responsibility to direct."
In Oakwood Healthcare, Inc., 348 NLRB No. 37 (Sept. 29, 2006), the NLRB held that charge nurses employed by an acute care hospital executed supervisory authority within the meaning of Section 2(11) of the NLRA because they assigned responsibilities to other nurses and exercised independent judgment in making such assignments. Specifically, the charge nurses in Oakwood independently exercised their own judgment in "assigning nursing personnel to patients." The NLRB did, however, distinguish between these nurses and rotating nurses, holding that, because the rotating nurses in this case did not exercise supervisory authority a substantial amount of the time, they were properly characterized as employees under the NLRA.
The NLRB stated that "assign" means to designate "an employee to a place (such as a location, department or wing), appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties, i.e. tasks, to an employee . . . and refers to the . . . designation of significant overall duties to an employee, not to the . . . ad hoc instruction that the employee perform a discrete task." An individual has the "responsibility to direct" other employees if the individual "decides what job shall be undertaken next or who shall do it," as long as the individual is also "responsible" and carries out the tasks with "independent judgment." Finally, an individual exercises "independent judgment" if the individual exercises judgment that is not controlled by another authority and if the degree of discretion arises above the "routine or clerical."
The NLRB has applied this new interpretation in two companion cases. In Croft Metals, Inc., 348 NLRB No. 38 (Sept. 29, 2006), the NLRB held that lead persons at a manufacturing plant were not supervisors because their employer retained so much control over their decisions that the direction they gave to other employees was simply routine and clerical. Similarly, in Golden Crest Healthcare Center, 348 NLRB No. 39 (Sept. 29, 2006), the NLRB concluded that the charge nurses at issue were not supervisors because they did not have the authority to assign tasks to other nurses, to require other nurses to stay beyond their shift or to call in off-duty nurses. Moreover, the annual rating of these nurses based upon their ability to direct other nurses was insufficient to establish that these nurses were actually accountable for the job performance of other nurses.
Many nurses have already begun to revolt against this new interpretation. The Sacramento Business Journal reports, for example, that over 30,000 nurses have signed pledges promising to strike if their employers attempt to exploit the decision.
