In a landmark 3-2 ruling, the National Labor Relations Board Oct. 3 issued new guidelines for determining who is a supervisor not entitled to have union representation and engage in collective bargaining, a ruling that may result in removing certain workers in a wide variety of industries from coverage under federal labor law (Oakwood Healthcare Inc., 348 N.L.R.B. No. 37, 9/29/06 [released 10/3/06]).

In applying the guidelines to a unit of 181 registered nurses at Oakwood Heritage Hospital in Taylor, Mich., operated by Oakwood Healthcare Inc., the board found that only the 12 RNs who serve as charge nurses on a permanent basis, not those who undertake charge nurse duties on a rotating basis, are supervisors for purposes of the National Labor Relations Act. The permanent charge nurses regularly assign other personnel to specific patients and exercise independent judgment in doing so, the board said. However, it found that the rotating charge nurses do not exercise supervisory authority for a substantial part of their work time.

Definition Includes 12 Actions, Two Requirements.

NLRA Section 2(11) defines a supervisor as an employee who has the authority to perform any of 12 tasks and to do so in the interest of the employer and using independent judgment. The board issued new interpretations of certain parts of the definition--what it means to “assign” other employees, to responsibly “direct” others, and to use “independent judgment.”

Chairman Robert J. Battista and Members Peter C. Schaumber and Peter N. Kirsanow joined in the majority opinion in Oakwood Healthcare. Members Wilma B. Liebman and Dennis P. Walsh dissented regarding the majority's interpretations of the statutory language and asserted that the RNs who serve as permanent charge nurses as well as those who serve in that capacity on a rotating basis are not supervisors.

In two other cases issued the same day, the board applied the new guidelines and held that all charge nurses at a nursing home in Hibbing, Minn., operated by Beverly Enterprises-Minnesota Inc. and lead persons at an aluminum and vinyl products manufacturing facility in McComb, Miss., are not supervisors (Beverly Enterprises-Minn. Inc., d/b/a Golden Crest Healthcare Ctr., 348 N.L.R.B. No. 39, 9/29/06 [released 10/3/04] Croft Metals Inc., 348 N.L.R.B. No. 38, 9/29/06 [released 10/3/06]).

The two other cases were decided by panels composed of Battista, Schaumber, and Kirsanow. The board held 3-0 that the nursing home charge nurses lack the authority to assign and responsibly direct other employees and held 3-0 that the lead persons do not have authority to assign other employees, and although they have the authority to responsibly direct other workers, the lead persons do not exercise independent judgment in doing so.

According to an NLRB spokeswoman, the board plans to remand approximately 47 pending representation cases to regional directors for reconsideration in light of the lead decision in Oakwood Healthcare.

Interpreted Three Parts of 'Supervisor' Definition.

In Oakwood Healthcare, the board majority interpreted “assign” as the act of “designating 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.” However, the board said that “choosing the order in which the employee will perform discrete tasks within those assignments (e.g., restocking toasters before coffeemakers) would not be indicative of exercising the authority to assign.

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“In the health care setting, the term 'assign' encompasses the charge nurses' responsibility to assign nurses and aides to particular patients,” the board said. It explained that “if a charge nurse designates an LPN to be the person who will regularly administer medications to a patient or a group of patients, the giving of that overall duty to the LPN is an assignment,” but that “the charge nurse's ordering an LPN to immediately give a sedative to a particular patient does not constitute an assignment.”

“In sum, to 'assign' for purposes of Section 2(11) refers to the charge nurse's designation of significant overall duties to an employee, not to the … ad hoc instruction that the employee perform a discrete task.”

The board interpreted “responsibly to direct” using the following example. “If a person on the shop floor has men under him, and if that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, provided that the direction is both 'responsible' … and carried out with independent judgment.”

“We agree with the circuit courts that have considered the issue and find that for direction to be 'responsible,' the person directing and performing the oversight of the employee must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly,” the board said.

The board explained that “responsible” direction requires a showing that the “employer delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary” and that “there is a prospect of adverse consequences for the putative supervisor” arising from his or her direction of other employees.

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As for “independent judgment,” the board followed the U.S. Supreme Court's decision in NLRB v. Kentucky River Community Care Inc., 532 U.S. 706, 167 LRRM 2164 (2001) (104 DLR AA-1, 5/30/01), and adopted an interpretation “that applies irrespective of the Section 2(11) supervisory function implicated, and without regard to whether the judgment is exercised using professional or technical expertise.”

“Consistent with the Court's view, we find that a judgment is not independent if it is dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective-bargaining agreement,” the board said.

“Thus, for example, a decision to staff a shift with a certain number of nurses would not involve independent judgment if its is determined by a fixed nurse-to-patient ratio. Similarly, if a collective-bargaining agreement required that only seniority be followed in making an assignment, that act of assignment would not be supervisory,” the board said.

“On the other hand, the mere existence of company policies does not eliminate independent judgment from decision-making if the policies allow for discretionary choices,” the board said. It observed that an RN's hiring recommendations involve the exercise of independent judgment if he or she is “called upon to assess the applicants' experience, ability, attitude, and character references, among other factors.”

“Similarly, if the [RN] weighs the individualized condition and needs of a patient against the skills or special training of available nursing personnel, the nurse's assignment involves the exercise of independent judgment,” the board said.

Under Section 2(11), “the judgment must involve a degree of discretion that rises above the 'routine or clerical,' ” the board said. “If there is only one obvious and self-evident choice (for example, assigning the one available nurse fluent in American Sign Language (ASL) to a patient dependent upon ASL for communicating, or if the assignment is made solely on the basis of equalizing workloads, then the assignment is routine or clerical in nature and does not implicate independent judgment, even if it is made free of the control of others and involves forming an opinion or evaluation by discerning and comparing data.”

“By contrast, if the hospital has a policy that details how a charge nurse should respond in an emergency, but the charge nurse has the discretion to determine when an emergency exists or the authority to deviate from that policy based on the charge nurse's assessment of the particular circumstances, those deviations, if material, would involve the exercise of independent judgment,” the board said.

Dissent: 'Most Professionals' Will Lose Rights.

The two dissenting members disagreed with the board majority's interpretations of “assign” and “responsibly to direct” and said the majority's decision “threatens to create a new class of workers under Federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees.” They predicted that “most professionals” will end up losing their NLRA rights because most professionals “have some supervisory responsibilities in the sense of directing another's work.”

“The language of the Act, its structure, and its legislative history all point to significantly narrower interpretations of the ambiguous statutory terms 'assign … other employees' and 'responsibly to direct them' than the majority adopts,” the dissenters said.

The assigning of tasks to other employees is a “quintessential function of minor supervisors whom Congress clearly did not intend to cover in Section 2(11),” Liebman and Walsh said. They asserted that “the more natural reading would limit the phrase 'assign employees' to a significant employment decision on the order of determining (1) an employee's position with the employer (in most settings identified by job classification); (2) designated work site (i.e., facility or departmental unit); or (3) work hours (i.e., shift).”

The dissenters also maintained that Congress only intended “responsibly to direct” to include “persons who were effectively in charge of a department-level work unit, even if they did not engage in the other supervisory functions identified in Section 2(11).”

The floor statement of the senator who proposed the amendment that added “responsibly to direct” shows that the phrase “refers to the general supervisory authority delegated to foremen overseeing an operational department and the accountability that goes with it, in contrast to the kind of one-on-one task direction (mistakenly covered by the majority's interpretation of 'assign') that would be given by minor supervisory employees (persons who themselves answered to the foreman) to other employees,” the dissenters said.

Liebman and Walsh endorsed the test proposed by the NLRB general counsel in a brief filed with the board--that an employee responsibly directs with independent judgment when the individual “has been delegated substantial authority to ensure that a work unit achieves management's objectives and is thus 'in charge,' ” the employee “is held accountable for the work of others,” and the employee exercises significant discretion and judgment in directing his or her work unit.”

The two dissenters agreed with the majority's test for “independent judgment” and emphasized that it would have to be applied on a case-by-case basis. “The Board's determinations in specific cases should be guided not by the dictionary or abstract considerations, but by practical realities viewed in light of the Congressional intent to exclude foremen and their equivalent, but not minor supervisory employees, from the Act,” Liebman and Walsh said.

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Circumstances of the Three Cases Vary.

The 257-bed hospital involved in Oakwood Healthcare has approximately 181 RNs who provide direct care to patients in 10 units. The RNs report to a nursing manager, clinical managers, clinical supervisors, and assistant clinical supervisors, all of whom are indisputably supervisors for purposes of the NLRA.

According to the board, the RNs follow doctors' orders and perform tasks such as administering medication, running blood tests, taking vital signs, observing patients, and processing admissions and discharges. They sometimes direct less-skilled employees to feed, bathe, and walk patients and to perform doctor-ordered tests. Twelve RNs serve as charge nurses on every shift they work, while some RNs take turns serving as charge nurse, and others never take on the duty.

The United Auto Workers filed a representation petition seeking an election to represent all of Oakwood's RNs. The hospital argued that all the charge nurses, including both permanent and rotating, are supervisors who should be excluded from the bargaining unit. An NLRB regional director found in February 2002 that none of the charge nurses are supervisors and allowed them to vote in the election. The board in March 2002 granted the hospital's request for review of the regional director's decision. As a result of the board's decision in Oakwood Healthcare, the ballots will now be opened and counted, excluding the ballots of the 12 permanent charge nurses.

The Golden Crest case involves an 80-bed nursing home in Hibbing, Minn. The parties agreed that the director of nursing, the assistant director of nursing, and three RNs who serve as resident care managers are supervisors under the NLRA. At least one of the five supervisors is present at the facility from 6 a.m. to 6 p.m. on weekdays and on alternate weekends. At other times, the director and assistant director of nursing are available by telephone.

There also are eight other RNs, who all work part-time and work solely as charge nurses, 12 licensed professional nurses, 11 of whom occasionally serve as a charge nurse, and 36 certified nursing assistants. The assistant director of nursing approves the work schedules for RNs, LPNs, and CNAs.

The United Steelworkers filed two representation petitions in January 1999, seeking elections to represent separate units of the RNs and the LPNs. The nursing home argued that all the RNs and the LPNs who sometimes act as charge nurses should be excluded from the units as supervisors. A regional director found in March 1999 that none of the RNs or LPNs are supervisors. The board denied the nursing home's request for review. The union won both elections held on April 8, 1999, and was certified as exclusive bargaining representative a week later.

The nursing home refused to bargain, and the board held that it committed an unfair labor practice. The U.S. Court of Appeals for the Eighth Circuit in October 2001 remanded the case to the board for reconsideration in light of the Supreme Court's Kentucky River decision. An administrative law judge issued a supplemental decision in September 2002 finding once again that the RNs and LPNs are not supervisors. The board granted the nursing home's request for review in October 2002.

The Croft Metals case involves a manufacturing facility in McComb, Miss., that produces aluminum and vinyl doors and windows and employs approximately 350 production and maintenance workers. The parties agreed that there are 15 supervisors who report to a plant manager, who reports to the vice president and director of manufacturing.

There are approximately 25 to 35 lead persons in three categories. They spend much of their time performing the same type of work as other production and maintenance workers. Lead persons receive from their supervisors a list of projects to be accomplished during the shift and have the authority to decide the order in which the work will be performed and who on the crew will perform which tasks. However, crew members generally perform the same tasks each day.

For nearly 30 years, the lead persons were included in the bargaining unit with production and maintenance workers. Then the International Brotherhood of Boilermakers and Forgers filed a representation petition seeking an election to replace another union as the bargaining representative. A regional director found in May 2002 that the lead persons are not supervisors. An election was conducted on May 29, 2002, and the ballots were impounded. The board remanded the case to the regional director to hear additional evidence. The regional director again ruled in August 2002 that the lead persons are not supervisors, and the board granted review in October 2002.

Susan J. McGolrick

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