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NLRB Calls Charge Nurses Supervisors

“The NLRB has shown that it equates patient advocacy with supervision. That’s just not accurate.” says Kathy Sackman, RN, president of UNAC/UHCP, AFSCME and UNA Co-Chair.The National Labor Relations Board  (NLRB) has dealt a severe blow to nurses’ and other workers’ rights to join unions and bargain collectively. By a straight party line vote of 3 to 2, the Republican-appointed majority on the board ruled that many charge nurses were supervisors, and therefore excluded from the protections under the National Labor Relations Act. The board’s decision is likely to have a chilling effect on new nurse organizing.

The NLRB essentially gave employers an instruction manual on how to reclassify workers as “supervisors” and thereby strip away their rights to a voice on the job. “The NLRB ignored what common sense tells us: Nurses use independent judgment and direct the flow of work during their shifts,” says Kathy Sackman, RN, UNAC/UHCP president. “That makes nurses responsible caregivers and patient advocates, not supervisors.”

The three decisions (Oakwood Healthcare, Inc., Golden Crest Healthcare Center and Croft Metals) are commonly called the Kentucky River cases, getting their name from a previous case that was heard by the Supreme Court in 2001. The NLRB decisions address four issues: (1) the meaning of “assign,” (2) the meaning of “responsibly to direct,” (3) the meaning of “independent judgment,” and (4) the status of employees who hold supervisory duties only some of the time. On the whole, the board defines these terms in a manner that is likely to place many nurses, as well as other employees with only minor authority to direct the work of others, into the category of supervisors.

Oakwood Healthcare Inc. was used as the lead case and involved charge nurses in an acute care hospital. The board ruled that many of the charge nurses were supervisors, even if they do not act as such on an everyday basis. The board decided that employees can be excluded from bargaining units if they exercise the authority to “assign” and/or “responsibility to direct” the work of other employees on a “regular and substantial” basis. The board defined “regular” to mean according to a set schedule or pattern and “substantial” to mean at least 10–15 percent of the employee’s work time. For nurses, this new standard could result in many otherwise eligible nurses being excluded simply because they are designated by the employer as being the charge or lead nurse on a single evening or weekend shift.

The National Labor Relations Act defines supervisor as: 

...any individual having the 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.

An employee needs only to engage in ONE of these activities to be classified as a supervisor.

The Board did not clearly define the term “independent judgment.” However, according to the board in the nursing context, the assignment of patients to nurses requires “independent judgment” if the charge nurse making the assignments considers the qualification and experience of the available nurses and the needs of the patients. On the surface, the decisions in Golden Crest Healthcare Center and Croft Metals do not seem as damaging as Oakwood. In Golden Crest, the board ruled that charge nurses — both RNs and LPNs — working in a nursing home were employees, not supervisors. Similarly, in the Croft Metals case, the employer failed to prove that the degree of discretion by leadpersons involved in responsible direction was anything more than routine or clerical in nature rather than independent judgment, and therefore they were not supervisors. However, it is critical to note that the favorable decisions were reached largely because the employers did not present evidence using the standards laid out in Oakwood. It is likely that if these employers refiled their petitions using Oakwood standards, the decisions would be reversed.

In anticipation of an adverse ruling, United Nurses Associations of America/Union of Healthcare Professionals (UNAC/UHCP) negotiated contract language with Kaiser Permanente that will protect its members from exclusion from the bargaining unit based on the NLRB decision. That language reads: 

The Employer agrees that during the term of this Agreement it will not challenge the bargaining unit status of any nurse or job classification covered by this Agreement. The Employer further agrees that during the term of this Agreement it will neither claim that any nurse or job classification covered by this Agreement exercises supervisory authority within the meaning of Section 2(11) of the NLRA, nor assign any nurse such duties for the purpose of removing that nurse from the bargaining unit. Finally, the Employer also agrees that during the term of this Agreement it will not challenge the Union’s right to represent any nurse in any job classification covered by this Agreement based on a claim that such nurse is a supervisor within the meaning of the NLRA.

This and other sample contract language is available from AFSCME’s Department of Research and Collective Bargaining Services at una@afscme.org.

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