A divided Sixth Circuit panel recently held in GGNSC Springfield, LLC v. National Labor Relations Board that registered nurses (RNs) at a nursing home are “supervisors” under the National Labor Relations Act (NLRA) and therefore have no right to unionize. This is welcome news for employers in the healthcare industry, which has seen a sharp increase in union organizing efforts in recent years.
The RNs in question worked at the Golden Living Center (Center) in Springfield, Tennessee, which provides short- and long-term care to approximately 120 residents. The Center employs 12 RNs, 10 licensed practical nurses (LPNs), and 46 certified nursing assistants (CNAs). A director of nursing and two assistant directors of nursing oversee patient care at the Center, with the RNs reporting directly to the director of nursing.
In October 2011, the International Association of Machinists and Aerospace Workers (the union) petitioned the National Labor Relations Board (Board) to become the RNs’ bargaining representative. The Center opposed the petition, arguing that the RNs are supervisors under the NLRA and therefore are not entitled to join a union. The Board’s regional director rejected this argument, and the RNs elected the union to be their bargaining representative. The Center subsequently refused to bargain with the union, based on its contention that the RNs are supervisors. The Board, however, ordered the Center to bargain with the union, a decision the Center appealed to the Sixth Circuit.
At the outset, the Sixth Circuit rejected the Center’s argument that the Board’s order was void on its face because the Board lacked jurisdiction. This argument was based on the D.C. Circuit Court’s decision in Noel Canning v. N.L.R.B., 705 F.3d 490 (D.C. Cir. 2013), in which the court held that three of the Board’s five members had been appointed without the advice and consent of the Senate, as required by the Constitution, when President Obama appointed them during a recess of Congress while Congress was still in session. The appeals court declined to consider the Center’s Noel Canning argument, noting that “[e]rrors regarding the appointment of officers under Article II are ‘nonjurisdictional.’” The court then turned to the merits of the appeal.
The Sixth Circuit’s holding turned on whether the RNs have the authority to “discipline” CNAs as contemplated by the NLRA. The majority found that they do. Under the Center’s progressive discipline policy, CNAs receive four written warnings before they are terminated. RNs have the authority to issue written memoranda in response to CNA misconduct. Each written memorandum leads automatically to a written warning, which is a “step” in the chain of progressive discipline. Although the RNs do not recommend disciplinary action or ultimately make the decision whether to terminate, the majority nonetheless found that the memoranda constitute “discipline” because they “’lay a foundation’ for future adverse employment action.” According to the majority, “where an employer maintains a defined progressive discipline policy, and cited violations of company policy count toward the number of missteps permitted before termination, those with independent authority to issue the citations are supervisors.” The majority further noted that the RNs exercise independent judgment when issuing discipline, as they “can either do nothing, provide verbal counseling (and decide whether to document the counseling), or draw up a written memorandum.” Accordingly, the majority found that the Center’s RNs are supervisors under the NLRA. Judge Merritt issued a vigorous dissent, in which he accused the majority of engaging in “linguistic wordplay over the word [discipline] without even referring to or trying to understand the purpose of the statutory language at issue.”
The GGNSC Springfield decision represents a victory for healthcare employers, as it recognizes the reality that discipline encompasses more than suspensions and terminations and extends to “steps” in the chain of progressive discipline. As the dissent makes clear, however, there is not yet a consensus on this issue, so employers should remain alert for continued legal developments.