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Circuit Court Rules Nurses are Supervisors

“Nurses can no longer assume our right to belong to a union will always be there.” notes Bonnie Marpoe, LPN, and UNA Co-Chair.

While we wait for the National Labor Relations Board (NLRB) to issue its final ruling on the definition of “supervisor,” the U.S. Court of Appeals for the Sixth Circuit found that a group of nurses who were allowed to vote in a 2003 representation election were supervisors and thus ineligible for union representation. The ruling overturns a previous decision by the NLRB. The election was at a nursing home in St. Paul, Minn., and covered RNs and LPNs.

“This court decision is a wake-up call to all unionized nurses. We can no longer assume that our right to belong to a union will always be there,” says Bonnie Marpoe, LPN, UNA co-chair.

The judge in the case found that the nurses exercised independent judgment because they directed the care provided by nursing assistants (NAs) and had some discretion in imposing
discipline.

In this nursing home, five RNs and 25 LPNs, known collectively as floor nurses, report to four nurse managers. About 65 NAs report to the floor nurses, one of whom acts as “house supervisor” when the director of nursing and nurse managers are not in the building.
The job description for floor nurses requires that they “adhere to the standards of care, manage the environment to maintain resident/patient safety, and supervise the resident/patient care activity performance by the NAs.”
The NLRB had ruled that the nursing home failed to demonstrate that either the LPNs or RNs were supervisors. The board’s regional director found that the floor nurses did not exercise independent judgment in assigning work to NAs, monitoring the NAs’ performance and directing NAs to perform particular tasks. He also found that the floor nurses had only a reporting function with respect to discipline of NAs.

In overturning this ruling, however, the court held that the nurses in question were “statutory supervisors” and that the NLRB’s determination to the contrary was not supported by the evidence. For example, if a floor nurse observed a NA committing misconduct, she had the option of not intervening at all, speaking to the NA regarding the incident, educating the assistant if needed or initiating formal disciplinary proceedings by completing an action report.

Although the board did not view the writing of action reports as establishing supervisory status, the court found that the floor nurses “decide independently whether a NA’s misconduct is severe enough to warrant disciplinary proceedings,” and that such judgment is a supervisory function.

The case now goes back to the NLRB regional office that handled the election for final processing.

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