Attorneys

• John E. Lyncheski

Related Practices

• Labor and Employment

The issue of whether Charge Nurses are “supervisors” excluded from coverage under the National Labor Relations Act (“NLRA”), or “employees” entitled to union representation, is critical for healthcare employers faced with union organizing.  Charge Nurses play an important role in any union effort to organize nursing employees.  Although Charge Nurses at many facilities exercise significant supervisory authority, the National Labor Relations Board (“NLRB”) continues to view Charge Nurses differently than comparable supervisors in other industries.  

Prior to the U.S. Supreme Court's decision in the Health Care & Retirement Corp. (“HCR”) case, the NLRB routinely found “Charge Nurses” to not be supervisors under the NLRA.  The NLRB had then reasoned that the “supervisory-type” duties they performed were not “in the interest of the employer,” but only in the interest of the patient.  The Supreme Court in HCR rejected this distinction and directed the NLRB to abandon its so-called patient care analysis.

Subsequent to HCR, the NLRB issued over a dozen Charge Nurse decisions and, to the surprise of no one, attempted to make an end run around the Supreme Court's HCR directives.  The NLRB held that the Charge Nurses were not supervisors in all but one of the cases which reached the Board.  In post-HCR cases, the NLRB often reasoned that the supervisory-type duties performed by Charge Nurses are only “routine” or “clerical in nature” and, thus, not demanding of independent judgment as required by Section 2(11).

Even though some of the post-HCR NLRB decisions have been enforced by the Circuit Courts, many have been struck down.  The U.S. Sixth Circuit Court of Appeals, for example, with jurisdiction over federal cases in Kentucky, Michigan, Ohio and Tennessee, has overturned the NLRB in every recent Charge Nurse case brought before it.  The Court of Appeals for the Fourth Circuit, covering Maryland, North Carolina, South Carolina, Virginia and West Virginia, recently reversed the NLRB on two decisions involving Beverly Enterprises and found Beverly’s LPN Charge Nurses to qualify as supervisors.  In the Third Circuit U.S. Court of Appeals, which has jurisdiction over NLRB cases from Delaware, New Jersey, Pennsylvania and the Virgin Islands, the Court rejected the NLRB’s attempt to minimize the authority of Charge Nurses at “LAS”/Passavant Retirement and Health Center in Zelienople, Pennsylvania (Cohen & Grigsby, P.C. represented Passavant).

In response to the growing trend of court reversals, the NLRB Office of the General Counsel recently issued a Guideline Memorandum on Charge Nurse Supervisory Issues (the “Guideline”).  It sets forth the NLRB General Counsel’s view of the law on the supervisory status of Charge Nurses, and provides a Checklist for use by NLRB agents for determining whether Charge Nurses are “supervisors” under the NLRA.

The new NLRB Guideline instructs the NLRB’s Regional Offices on how to elicit facts to distinguish a nurse's exercise of technical or professional judgment in directing less-skilled employees from the exercise of “independent judgment” needed to make that nurse a “supervisor” under the NLRA.  A 92-point Checklist is included with the Guideline to assist NLRB agents in probing the amount of independent judgment and professional responsibility exercised by a particular nurse, as well as the nurse’s ability to direct work, mete out discipline, evaluate employees and adjust grievances.  According to the NLRB, if the Charge Nurse merely follows professional norms or institutional routines required in a particular situation (i.e., telling an aide “this is how we do it here”), as opposed to making management policy on the spot or exercising independent judgment, that nurse is not exercising the appropriate authority to be a supervisor.  Under NLRB law, the party asserting supervisory status will have the burden of proof.

Healthcare executives should stay tuned.  Additional NLRB cases relying upon the Guideline will work their way up to the Courts of Appeal.  There is hope that the NLRB will not only be tackled on its end run, but be thrown for a loss.

In the meantime, healthcare facilities that consider their Charge Nurses to be supervisors and that want them to be treated as such at the NLRB, particularly in union organizing efforts, can increase their odds by following these recommendations:

• Become familiar with the NLRB Guideline and its accompanying Checklist.
• “Audit” how Charge Nurses stack up against the NLRB Checklist.
• Make sure that Charge Nurse job description accurately and completely reflect all supervisory duties and responsibilities.
• Give Charge Nurses as much authority as possible in the attributes of a supervisor enumerated in Section 2(11) of the NLRA, using the Checklist as a guide.
• Give Charge Nurses independence to act in as many matters affecting employees’ wages, hours and terms of employment as feasible.
• Where the Charge Nurses cannot be given total independence, involve them, have them recommend and seriously consider their recommendations.
• Resist the temptation to routinely second-guess, review, approve or investigate the authority Charge Nurses exercise.
• Have Charge Nurses evaluate employees and use those evaluations, as submitted, in wage and promotion decisions.
• Where possible, distinguish between clinical and personnel responsibilities and emphasize the latter.
• Treat Charge Nurses as members of your management team in more than name only.

Charge Nurses play an important role in the provision of quality patient care.  Subjecting Charge Nurses to unionization makes them potentially less effective in discharging that role in the interest of the employer and forces them to deal with mixed loyalties and peer pressure.  Treating Charge Nurses as not part of the management team or taking them out of play in countering unionization efforts has serious downsides.  Be proactive in doing what you can to improve your chances before the NLRB.  Don’t wait until you are involved in litigation or a union representation case, it will be much too late to have any meaningful influence on the NLRB’s findings as to the supervisory status of your Charge Nurses.

For more information, please contact jlyncheski@cohenlaw.com.