Registered nurses, employed as charge nurses in a nursing home, were supervisors under the National Labor Relations Act, the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, has ruled. GGNSC Springfield LLC, d/b/a Golden Living Center-Springfield v. NLRB, No. 12-1529 (6th Cir. July 2, 2013). The Court found the nurses exercised sufficient independent judgment when issuing discipline to be considered supervisors.

The Court sidestepped addressing whether the National Labor Relations Board had authority to issue a bargaining order under Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert. granted, 81 U.S.L.W. 3629 (U.S. June 24, 2013). In that case, the U.S. Court of Appeals for the D.C. Circuit ruled that an order of the Board was void because it was issued at a time when the Board did not have at least three lawfully appointed members. It found that three of the Board’s five members had been appointed by the President without “the Advice and Consent of the Senate,” in violation of the Constitution’s Appointments Clause. The Sixth Circuit found this issue was non-jurisdictional and therefore had to be presented to the Board in this case (which it was not) before the Court could consider it. The Court also declined to reach the question whether the employer had failed to preserve its Noel Canning argument for review, because it granted relief based on the employer’s “non-constitutional challenge.”

The Sixth Circuit has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee.

Background

Golden Living Center operates a licensed nursing home in Springfield, Tennessee, that employs approximately 100 individuals. Those primarily responsible for patient care include 12 registered nurses (“RNs”), 10 licensed practical nurses (“LPNs”), and 46 certified nursing assistants (“CNAs”). RNs and LPNs are considered “charge nurses.” Charge nurses report directly to the Director of Nursing or her designee.

In October 2011, the International Association of Machinists and Aerospace Workers, AFL-CIO (the “Union”), petitioned the Board to represent the Center’s RNs in collective bargaining. The Center opposed the petition, claiming its RNs (all charge nurses) were supervisors under the National Labor Relations Act and, therefore, not permitted to unionize. A hearing was held where evidence was received. In November 2011, the Board’s Regional Director concluded that the RNs were not supervisors, certified the requested bargaining unit, and directed an election. The Board declined further review. The following day, the RNs elected the Union as their bargaining representative, the Union was certified, and the Union asked the Center to begin bargaining. The Center refused, prompting a complaint with the Board that alleged unfair labor practices. The Center admitted its refusal to bargain and contested only the Regional Director’s decision to certify the bargaining unit. The Board sustained the Union’s complaint and ordered the Center to bargain. This petition for review and cross-application for enforcement followed.

Applicable Law

Under the NLRA, a supervisor is defined 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.” 29 U.S.C. § 152(11). The U.S. Supreme Court has explained that individuals are supervisors if:

  1. they hold the authority to engage in any one of the twelve listed supervisory functions,
  2. their “exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,” and
  3.  their authority is held “in the interest of the employer.”

NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 713 (2001).

Charge RNs are Supervisors

The Center argued to the Board’s Regional Director that its RNs are supervisors because they have authority to discipline, assign, and responsibly direct CNAs, all by using independent judgment. It argued that substantial evidence did not support the Regional Director’s contrary determination.

The NLRB Regional Director found that the RNs were not supervisors because they lacked authority to discipline other staff; rather, they only reported misconduct to the Director of Nursing and did not determine what level of discipline to impose. The Court rejected the Regional Director’s finding because it was based on “a fundamental misunderstanding of the Center’s disciplinary regime.” The Court noted that, when confronted by employee misconduct, the RNs have the choice to do nothing, provide verbal counseling, or issue a written memorandum. While the Court agreed that verbal counseling alone is not disciplinary, the issuance of a memorandum was part of the Center’s progressive discipline system because it automatically led to a written warning. Thus, the Court found that, because the RNs had authority to issue memoranda to other employees, they had the authority to discipline. In addition, the Court noted the RNs could consult with the Director of Nursing regarding issuing a memorandum, but they were not required to do so. They also were not required to follow any advice the Director suggested; thus, they exercised independent judgment.

The Regional Director also found the RNs were not supervisors because the employees did not suffer some immediate adverse employment action, such as suspension or termination, as a result of receiving an employee memorandum. The Court rejected this as counter to the Act’s plain text. The Court stated, “Equating the term discipline with the terms suspend or discharge would render it superfluous.” Accordingly, the Court determined that the RNs were supervisors under the Act, and the Center was not required to bargain with the Union.

Circuit Judge Gilbert Stroud Merritt dissented in the 2-1 decision. He argued that the RNs should not be considered supervisors because they did not use independent judgment in assessing discipline. Rather, he maintained, the RNs reported misconduct, which did not rise to the level of taking disciplinary action against other employees.

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This decision provides guidance to employers regarding supervisory duties, particularly discipline, under the NLRA. For an individual to be considered a supervisor, he or she must exercise discretion regarding whether to issue any discipline, in the first instance, and to decide the appropriate level of discipline for employee misconduct. Supervisory status is not destroyed simply because the employee has the option to consult with a superior regarding a situation that may require discipline; however, if the individual is required to follow a superior’s recommendation, the employee may not be considered a supervisor.

In addition, the case reminds employers to consider a Noel Canning challenge in NLRB cases.