Related Practices

• Healthcare Business
• Labor and Employment

On August 24, 1999, the National Labor Relations Board (“NLRB”) Office of the General Counsel issued a Guideline Memorandum on Charge Nurse Supervisory Issues (the “Guideline”).  It provides the NLRB General Counsel’s summarization of the current state of the law concerning the supervisory status of Charge Nurses, and provides a Checklist for use by NLRB agents in determining whether Charge Nurses are “supervisors” as defined by the National Labor Relations Act (“NLRA”).

The issue of whether Charge Nurses are “supervisors” excluded from coverage under the NLRA, or “employees” entitled to union representation, can be crucial for healthcare employers faced with union organizing activities.  Although many Charge Nurses exercise significant supervisory authority on behalf of their healthcare employers, the NLRB has historically been very reluctant to find Charge Nurses to be supervisors.  Despite the Supreme Court’s 1994 decision in NLRB v. Health Care & Retirement Corp. rejecting the NLRB’s holding that nurses are not supervisors (because of the NLRB’s view that authority exercised incidental to the treatment of patients was not exercised in the interest of the employer), the NLRB has oftentimes continued to view nurses differently than supervisors in other industries, and courts have frequently refused to enforce such NLRB decisions involving Charge Nurses.

The new NLRB Guideline instructs the NLRB’s Regional Offices how to elicit facts to distinguish an employee’s exercise of technical or professional judgment in directing less-skilled employees from the exercise of “independent judgment” needed to make that employee a “supervisor” under the NLRA.  NLRB agents are directed to focus on whether the Charge Nurse relies on the normal standards of the nursing profession to routinely govern the assignment and direction of work.  A Checklist is provided to assist 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.

The Office of the General Counsel is responsible for oversight of the NLRB’s Regional Offices and gives legal advice to NLRB agents in the field.  This Guideline, while not binding on employers in the same way as court or NLRB decisions, will be used by NLRB agents serving as case investigators, hearing officers and decision-writers in matters involving these issues.

Determinations as to whether certain nurses are “supervisors” or “employees” can be very instrumental to a healthcare employer’s ability to successfully deal with union organizing.  These determinations are extremely fact-specific and can often turn on seemingly minor differences in the exercise of authority.  Healthcare employers should use the Guideline as a tool to review and take steps necessary to maximize the chances of a favorable determination of supervisory status of its Charge Nurses.  It remains to be seen whether the courts will defer to the NLRB Guideline.