Last week, the Sixth Circuit affirmed a NLRB decision that 43 charge nurses from a Michigan nursing home were not statutory supervisors exempt from collective bargaining. Frenchtown Acquisition Co. v. NLRB, No. 11-1418 (6th Cir. 6/20/2012). The employer had argued that the charge nurses – who had been in a collective bargaining unit since 2003 -- should not be entitled to negotiate a successor bargaining agreement because they were in reality supervisors. The NLRB and the Court, however, found the employer could not meet its burden of proof. Among other things, the bargaining agreement for the 45 nurse aides (the employees arguably supervised by the 43 charge nurses) precluded the charge nurses from issuing any disciplinary action and the employer could only provide one example of a charge nurse having done so. The Court rejected the argument that educational coaching constituted disciplinary action and found that sending employees home for egregious misconduct did not involve independent discretion. There were no examples proved of charge nurses hiring any employees and only a few had even interviewed applicants. The Court also agreed that it had not been proven that the charge nurses assigned work. Finally, the Court was skeptical of a need for more than one supervisor per supervised employee (considering there were also 7 nurse managers).
As the Court explained, under the NLRA,
Only employees have the right to unionize and bargain collectively under the Act. 29 U.S.C. § 157. The Act defines employee so as to exclude “any individual employed as a supervisor.” Id. § 152(3). A supervisor is
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.
Id. § 152(11). The Act therefore establishes “a three-part test for determining supervisory status.” NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 712- 13 (2001). Individuals are supervisors under the Act if they (1) have the authority to engage in any 1 of the 12 enumerated supervisory actions; (2) use “independent judgment” in exercising that authority; and (3) hold that authority “in the interest of the employer.” 29 U.S.C. § 152(11); accord Kentucky River, 532 U.S. at 713.
The Board has held that a person directs other employees when “that person decides what job shall be undertaken next or who shall do it.” Oakwood Healthcare, 348 NLRB at 691. If that direction “is both ‘responsible (as explained below) and carried out with independent judgment,” then that person is a supervisor. Id. Direction is responsible only if “the person directing and performing the oversight of the employee [is] 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.” Oakwood Healthcare, 348 NLRB at 691- 92.The Court also rejected the argument “that the charge nurses are supervisors because they are the highest-ranking employees in the nursing home on weekends and during the gaps between the day- and night-manager shifts because, as explained above, the nurses did not exercise any of the 12 supervisory actions listed in 29 U.S.C. § 152(11). Moreover, at least one nurse manager was always on call.
Finally, the Court was skeptical that the charge nurses could be supervisors along with the 7 nurse managers because that would mean more than one manager for each supervised employee.
If charge nurses were supervisors, then there would be more supervisors than employees. Such a result stands at odds with reason. Indeed, we have previously reasoned that even a ratio of one supervisor for every two employees is “suspect.” Highland Superstores, 927 F.2d at 923.NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
