The U.S. Supreme Court Has Opened the Door to Supervisory Status for Charge Nurses

April 24, 2002

Most healthcare employers consider their charge nurses to be an integral part of their management team. In fact, charge nurses are often relied upon to regularly make staffing decisions which not only impact the quality of patient care, but also the institution’s “bottom line.” Despite this fact, the National Labor Relations Board (“NLRB”) for years has been repeatedly denying charge nurses supervisory status by treating them differently than comparable supervisors in other industries. Fortunately, a recent United States Supreme Court decision has again rejected the NLRB’s approach to deciding if charge nurses are supervisors, which has opened the door to more favorable outcomes.

Prior to the Supreme Court’s decision several years ago in the Health Care & Retirement Corp. case, the NLRB routinely found “charge nurses” to not be supervisors on the basis that they did not act “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 numerous charge nurse decisions which attempted to make an end-run around the Supreme Court’s HCR directives by reasoning that the supervisory-type duties performed by charge nurses are “not beyond their normal professional and technical expertise” and, thus, not demanding of “independent judgment” as required by Section 2(11) of the Act.

Even though some of the post-HCR NLRB decisions have been enforced by the circuit courts, many were not. In response, the NLRB Office of the General Counsel issued a guideline memorandum (“Guideline”) which set forth its view of the law and provided a comprehensive checklist for use in making charge nurse determinations. As you might expect, it was heavily slanted toward non-supervisory status.

The Supreme Court has again addressed the issue. In NLRB v. Kentucky River Community Care, Inc., a decision favorable to healthcare employers issued on May 29, 2001, it has once more rejected the NLRB’s approach.

In Kentucky River, the NLRB included six charge nurses in the bargaining unit, even though the employer argued that they were “supervisors” who should be excluded from voter eligibility. The NLRB maintained that the charge nurses do not use “independent judgment,” as required by definition, when they exercise “ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specific standards.” Judge Antonin Scalia, writing for the Supreme Court, reasoned that “if the Board applied this aspect of its test to every exercise of a supervisory function, it would virtually eliminate ‘supervisors’ from the Act. … What supervisory judgment worth exercising, one must wonder, does not rest on ‘professional or technical’ skill or experience.”

In essence, the Court points out that it remains within the NLRB’s discretion to determine the amount of independent judgment necessary to satisfy the definition of supervisor but, in doing so, the NLRB erred by excluding a particular “kind” of judgment, i.e., “ordinary professional or technical judgment in directing less skilled employees to deliver services.”

The Supreme Court decision in Kentucky River did, however, approve the NLRB’s requirement that the party asserting that an individual is a supervisor bears the burden of proving that status.

In the meantime, healthcare facilities that consider their charge nurses to be supervisors, and want them to be treated as such, can increase their odds by following these recommendations:

Become familiar with the Kentucky River decision and the NLRB Guideline
“Audit” how charge nurses stack up as supervisors
Make sure that job descriptions reflect all supervisory responsibilities
Give charge nurses as much authority as possible in the 12 supervisory attributes enumerated in Section 2(11) of the NLRA
Give charge nurses independence to act when feasible
In other situations, provide for effective recommendations
Resist unnecessary second-guessing or oversight
Have charge nurses evaluate employees and rely upon their judgment
Document charge nurses’ supervisory functions
Treat charge nurses as members of management in more than name only

Charge nurses play an important role in providing quality patient care and efficiently operating many institutions. Clearly, subjecting them to unionization threatens their effectiveness. Although the Supreme Court has left the door open for the NLRB to determine the extent to which “independent judgment” is exercised, the decision nevertheless creates the potential for more favorable outcomes. Healthcare employers should be proactive -- don’t wait until you are involved in litigation before the NLRB to get your house in order.

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