Over the past decade, the status of the charge nurse has been the subject of a great deal of uncertainty under the National Labor Relations Act (the Act). The key question has been whether a charge nurse is a "supervisor" under the Act, and thus does not have the right to engage in concerted activity under Section 7 of the Act.

This uncertainty has real consequences for healthcare employers. Some employers may be reluctant to invest charge nurses with any real authority due to concern that charge nurses may one day be part of a bargaining unit. This can affect operating efficiency -- and patient safety. Most importantly, these half-measures will not work. As a recent decision of the U.S. Court of Appeals makes clear, through their policies and practices, employers must definitely and affirmatively vest charge nurses with supervisory authority or not do so at all.

In Frenchtown Acquisition Company v. NLRB, 683 F.3d 298 (6th Cir. 2012), the Court of Appeals for the Sixth Circuit rejected the employer's claim that charge nurses at a long-term care and rehabilitation facility were supervisors. The court's detailed decision reviewed eight separate supervisory actions related to discipline, hiring and giving work assignments. In each case, the court agreed with the National Labor Relations Board (NLRB) that the employer's evidence was insufficient to prove supervisory status.

Under the express language of the Act, a supervisor must perform any of the following specifically enumerated duties:

  • Hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees;
  • Responsibly direct other employees;
  • Adjust employee grievances; or
  • Effectively recommend any of these actions.

In addition, a supervisor must exercise the authority to perform these duties in the interest of the employer, and, most importantly, an employee claimed as a supervisor must use "independent judgment." See 29 U.S.C. § 152 (11); NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 712-612 (2001).

An employee exercises "independent judgment" when he or she may take or effectively recommend action "free from the control of others and form an opinion or evaluation by discerning and comparing data." In re Oakwood Healthcare, Inc., 348 NLRB 686, 692-693 (2006). Merely following company policies or rules, verbal instructions from a supervisor or other higher authority or a collective bargaining agreement will not suffice. Id.

The court's analysis in Frenchtown should serve as a cautionary tale for long-term care and acute care facilities. First, job descriptions alone were inadequate to establish supervisory status. The NLRB (and the court) delved into actual practice to determine what duties charge nurses actually performed.

The bottom line is that claimed supervisory authority must be backed up in writing and in practice. If, for example, an employer claims that charge nurses are dispensing discipline, then employee personnel files should contain written warnings or other notices of discipline signed by charge nurses.

Second, written policies (including collective bargaining agreements) or practices may negate claimed supervisory status. In Frenchtown, the employer argued that in-service counselings delivered by charge nurses were disciplinary in nature (or part of the discipline process). However, the collective bargaining agreement for nurse's aides did not allow aides to have union representation with them when they received an in-service. The NLRB and the court concluded that this was evidence that in-services were educational and not disciplinary in nature.

Third, the supervisory duties must entail the exercise of independent judgment. Thus, in Frenchtown, transferring aides to ensure adequate staffing levels was not considered an exercise of independent judgment, even though the ability to transfer employees is one of the enumerated supervisory duties under the Act.

In the wake of Frenchtown, we encourage healthcare employers who consider charge nurses to be supervisors to examine their own policies and practices and evaluate how well they reflect the claimed supervisory status.

We also encourage healthcare employers to consider whether or how well they can manage the risk that charge nurses may not be deemed supervisors. At least one large healthcare provider in California -- the University of California -- avoids the issue altogether. In the UC system, "charge nurse" is not a job classification. Rather, it is a set of duties that may be assigned to nonsupervisory or supervisory nurses as needed. This practice has both operating and financial benefits. From an operating standpoint, nurses given charge assignments no longer occupy a "no man's land," where their supervisory status is unclear. From a financial standpoint, because a charge nurse is out of ratio for purposes of complying with California's mandatory staffing ratios, the provider saves the additional expense of assigning another nurse to every shift.