Sixth Circuit Avoids Noel-Canning Challenge and Finds RN Charge Nurses are Supervisors When They Issue Progressive Written Warnings.

Yesterday, a divided Sixth Circuit Court of Appeals reversed a finding of the NLRB Regional Director and concluded that registered nurses employed as charge nurses by a nursing home employer were statutory supervisors and not entitled to bargain with the employer under the NLRA.   GGNSC Springfield LLC v. NLRB, No. 12-1529 (6^th Cir. 6-2-13).  The Court side-stepped considering a belated Noel-Canning challenge to the Board’s jurisdiction because it was not raised until after briefing had been completed on the substantive issues, because it was not a jurisdictional challenge which the Court was compelled to consider even when it was not raised below, and because it decided to resolve the case on non-constitutional grounds in favor of the employer.  Instead, it found that the RNs exercised independent judgment in issuing disciplinary written warnings under the employer’s progressive disciplinary policy.  This evidence was sufficient to show that they were statutory supervisors.

Two charge nurses were responsible for overseeing 2-6 certified nursing assistants on each shift and reported disciplinary matters to the Director of Nursing.  The 12 RNs were organized by the IAM and petitioned for collective bargaining.  The Regional Director found they were not supervisors and the Board ordered the employer to bargain.  When the employer refused to bargain, the Court was petitioned for review and cross-petitioned for enforcement.

Under the NLRA, only employees have the right to bargaining collectively.  This does not include supervisors, which are defined as: 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.

Under NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 712–13 (2001), “individuals are supervisors if (1) they hold the authority to engage in any one of the twelve listed supervisory functions, (2) their “exercise of such authority is not of a

merely routine or clerical nature, but requires the use of independent judgment,” and (3) their authority is held “in the interest of the employer.”

 The employer argued that its RNs are supervisors because they have authority to discipline, assign, and responsibly direct CNAs, all by using independent judgment.

The Regional Director found that the RNs did not have authority to discipline, other than sending CNAs home for the rest of their shift for egregious violations and flagrant misconduct.  This, by itself, does not constitute independent judgment or establish supervisory authority.  Moreover, when confronted with a disciplinary infraction, RNs could ignore it, provide verbal counseling or draw up a written memorandum.  However, a verbal counseling is educational, and not disciplinary in nature.  Therefore, issuing verbal warnings does not show that RNs are exercising disciplinary authority.

 Nonetheless, the evidence established that the RNs exercised more authority than this because, as mentioned, they had the authority to issue the CNAs written memoranda --- which automatically lead to written warnings by the Director of Nursing under the progressive disciplinary policy.  The receipt of four written warnings in 12 months leads to termination. The RNs sometimes sign on the line for “supervisor.”

 

Receipt of an employee memorandum leads automatically to a written warning, which is a “step” in the Center’s system of progressive discipline. Therefore, the authority that RNs have to issue memoranda to CNAs is the authority to discipline. And because RNs exercise independent judgment in choosing whether to issue a memoranda or provide verbal counseling, they are supervisors under the Act. The Board’s failure to acknowledge that receipt of a written warning is itself discipline renders its contrary determination unsupported by substantial evidence.

That the RNs do not complete the entire form,  have no access to the employee’s disciplinary file to determine at what step the employee is in the disciplinary process or the number or type of prior disciplinary infractions and do not have the authority to suspend or terminate the employee does not affect their supervisory status.  The statute discusses the ability to suspend, discharge or discipline an employee.  An individual can be a supervisor if that person has the authority to discipline, but not the authority to suspend or discharge.

Equating the term discipline with the terms suspend or discharge would render it superfluous, a reading we must try to avoid.

The warnings also constitute disciplinary action because they are not second-guessed or investigation after issuance, unless it is the fourth and final warning in the disciplinary process.

Finally, the RNs showed independent judgment in issuing disciplinary action because, as already discussed, they had discretion to do nothing, give a verbal/educational warning or issue a written warning.  They are not required and usually do not consult with their supervisor before issuing a written warning. That they sometimes receive feedback is indicative that they usually do not receive any suggestions from their superiors.

 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.