NLRB Issues New Decision On Charge Nurses' Supervisory Issue

Summary

On September 29, 2006, the NLRB issued two decisions discussing the supervisory status of charge nurses. The NLRB ruled that individuals regularly working as charge nurses in an acute care hospital are supervisors and are excluded from union representation. However, the NLRB also held that charge nurses in a nursing home are not supervisors and are eligible for union representation. The results in both cases are based on their unique facts, and DO NOT bar later holdings that nursing home charge nurses are supervisors, where the right facts are proven.

Background

For nearly 30 years, the NLRB has, with rare exception, held that charge nurses in a nursing home are not supervisors as defined by the National Labor Relations Act.  This holding is important because individuals correctly classified as supervisors are not permitted to vote in NLRB elections and can be excluded from union representation.  Indeed, supervisors may be terminated for engaging in union activity. 

Historically, the NLRB's view has been that charge nurses only qualify as supervisors if they have the authority to prepare performance evaluations that directly impact wage increases or effectively recommend, or issue, disciplinary action that results in an employee's suspension or termination. The NLRB historically has rejected the contention that nurses are supervisors based on their assignment of tasks to, and direction of, nursing assistants.

The NLRB's refusal broadly to find nursing home charge nurses to be supervisors has been frequently rejected by some federal courts.  In those courts' view, the assignment and direction of work of nursing assistants by charge nurses demonstrates the judgment and discretion necessary to make the nurses supervisors.

The U.S. Supreme Court has reviewed the NLRB's interpretation of the Act concerning the supervisory status of charge nurses on two occasions, and, in both cases, substantially ruled against the NLRB. However, the NLRB has just as consistently, and obdurately, persisted in its view. The NLRB's decisions issued in the past few days reaffirm its long-standing view that nursing home charge nurses are not supervisors and are eligible for unionization, but establish the standards, when proven, that will allow a nursing home to escape unionization of its charge nurses.

Analysis of New NLRB Decisions

To meet the NLRB's statutory definition of a supervisor, the person must do any one of the following:

. . . hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly direct them, or adjust their grievances, or effectively recommend such action. . .

If the charge nurse has, and exercises, one of the above powers, she is a supervisor. Of course, the challenge is proving the possession of the power to the NLRB and its Regional Directors, who seem more supportive of assisting union organizing than they do following the law as developed by the courts.

In Oakwood Healthcare (the hospital case) and Golden Crest Healthcare (the nursing home case), the NLRB defined what is needed to prove a nurse's authority to "assign" and "responsibly direct" subordinates. According to the NLRB, "assignment of work" means telling an employee the place (i.e., location, wing or unit), time (shift or overtime) to work, or designating the significant overall duties of the employee. Further, "responsible direction" means the supervisor decides what task shall be done next or who shall do it, provided the nurse can hold the subordinate accountable for not doing the task and the nurse herself is held accountable, through pay or discipline, if the subordinate does not do the work.

As to "assignment," a nurse in a nursing home will not normally assign an aide to a place of work. That is done by the Director of Nurses or a scheduler. Similarly, a nurse will not assign an aide to a shift nor designate the aide's overall duties. However, a charge nurse may reassign an aide from one unit to another based on staffing, call-offs, etc. Also, a nurse may direct an aide to report early or stay late to cover for an open shift or special conditions. Thus, a nursing home can meet the NLRB's "assignment" standard by making certain its nurses have, and are told in writing they have, the authority to, and actually perform, these duties. However, a word of caution. The nurses' assignment of aides must be at the nurses' discretion and not based on an established system, such as seniority or rotation. For example, if a charge nurse can select any aide to move from one unit to the other based on whom the nurse deems is best suited to be moved, that is "assignment." Similarly, if the nurse can require the aide to come in early or stay late under penalty of discipline if she does not, then the nurse is a supervisor. In contrast, if the nurse simply selects the most senior or junior aide to be moved, rotates the moves, gets permission from higher management to make the move, or the aides decide among themselves who moves, then the nurse is not "assigning work."

As to "responsible direction," nurses daily set priorities as to the tasks to be performed and daily tell aides which work to do first, second, etc. From the NLRB's standpoint, the problem is it is not documented that the nurse is told she is accountable for the work performed by the aides and is not disciplined nor given a greater or lesser pay increase based on the quality of work of her aides. Also, the nurses do not hold the aides accountable by disciplining them for failure to follow the nurses' directives. To address, and prove, this point to the NLRB's standard, a nursing home must communicate to its nurses that their performance will be evaluated, and their pay increases will be partly based, on their ability to assure quality work by the aides, and that one of the nurses' tools to achieve good aide work is the right to issue discipline to the aides.

In Oakwood Healthcare (the hospital case), the NLRB ruled charge nurses are supervisors based on their assignment of work to subordinates. The NLRB found that the charge nurses determined which subordinates cared for which patients and, in some instances, designated the locations at which the subordinates worked. The NLRB concluded the nurses made these decisions based on the needs and conditions of the patients, taking into account the employees' skills and experience. In other words, there was a conscious effort to put the right staff with the right patients. The NLRB, however, found that while the charge nurses also gave direction to subordinates, and set priorities, there was no proof the charge nurses were held accountable, through discipline or pay levels, for their subordinates' work, or could discipline subordinates for not doing as directed. Thus the "responsible direction" standard was not proven. Recall, only one standard need be proven, so the hospital won the case. But it is better to win with two or more good arrows than rely on only one.

In the Golden Crest (the nursing home case), the NLRB ruled the charge nurses were not supervisors. The NLRB found the aides were assigned to units and shifts by upper management. The charge nurses were not allowed to move an aide from one unit to another without approval, and the nurses could request, but not require, an aide to come early or stay late. Also, the charge nurse handled call-offs by seniority, and, thus, lacked real authority in filling open slots. As to "responsible direction," the NLRB found, as in Oakwood, the nurses did tell the aides what to do and when to do it, but there was no proof the nurses were held accountable through adjusted pay raises or discipline for aides' performance and the nurses did not issue discipline to aides for poor work. The NLRB held Golden Crest lost on all points, and its nurses could unionize.

Neither of the new cases address the NLRB's other standards for proving nurses are supervisors (i.e., preparation of evaluations that impact raises, right to suspend, authority to adjust grievances, power to recommend hire or termination, etc.). These factors remain important points to assure nurses are supervisors.

Though the NLRB ruled against the nursing home, the NLRB's two new decisions do make clear the fact a nursing home needs to have in place a program to avoid the decay unionization of its nurses would certainly bring.

Action Steps

It is important to remember that the NLRB's decisions do not mean that nursing home charge nurses are never, or cannot be, supervisors. Instead, they should be read as identifying the types of authority a charge nurse must have to be a supervisor. They are a roadmap that nursing home operators may use to assure the supervisory status of their charge nurses. The following Action Steps should immediately be reviewed and implemented:

• Charge nurses should regularly exercise the following responsibilities:
  • Prepare nursing assistant performance evaluations that directly impact the aide's wage increase. Nursing assistants' wage increases should vary based on merit. A system under which all nursing assistants receive the same wage increase is not adequate. The charge nurse should also review the completed evaluation with her subordinate.
  • Write and issue disciplinary actions to subordinates for rule infractions. This includes determining whether the disciplinary action is issued as a verbal, written, or final written warning. It is not necessary for the charge nurse to have the independent authority to issue multi-day suspensions or directly terminate an employee.
  • Have the authority to suspend immediately an employee for a serious violation of a work rule (i.e., reporting to work intoxicated, theft, resident abuse, etc.), with subsequent action to be determined by higher management.
  • Receive and resolve employee complaints concerning workplace issues such as job assignments, resident assignments, duties, and co-worker disputes.
  • Schedule and release employees to take lunch and rest breaks.
  • Exercise the responsibility to assign the nursing assistants on the unit to particular residents, or groupings of residents, as the nurse deems consistent with the nursing assistants' skills and the residents' changing needs.  This includes the responsibility to change nursing assistant/resident assignments as residents' conditions warrant.
  • Prepare and give to aides daily assignment sheets that detail the aides' duties and priorities, with the understanding that the nurse is accountable through pay raises and discipline for assuring the aides do as directed.
• Charge nurses should also play a role in timekeeping and payroll procedures. Employees who fail to clock in or out should be required to obtain their nurse's initials to the time card or signature to a time error correction form.  Employees working through a lunch break, or beyond their scheduled hours, should similarly be required to obtain their charge nurse's written approval on a time record.  Their record should show the charge nurse authorized and approved the additional pay.
• Nurses on the second and third shifts should play a role in replacing call-offs. This includes determining whether or not to replace an absent worker and selecting the individual to call for replacement.  Systems that dictate the individual who is "up next" to be offered overtime or replacement work should be avoided in favor of systems that allow the charge nurse's discretion as to whom she calls and requires to work.
• The charge nurse job description should include a detailed listing of each of the above responsibilities. The charge nurse should be told, at orientation, that she has the above duties and should receive training in the exercise of those duties.
• The nursing assistant job description should reflect that they report "to the charge nurse" and include in the listed duties that they work under the "supervision and direction of the charge nurse." Nursing assistants should be told at orientation, and at least annually in an in-service, that the charge nurses are their "supervisors" and the supervisory duties of charge nurses (discussed above) should be reviewed with the nursing assistants.
• Document! Document! Document! Experience shows that nurses who do not want to be found supervisors, and nursing assistants who want to help their nurses unionize, will testify that nurses have no authority to supervise the nursing assistants' work. The NLRB is all too eager to accept this. Thus, it is essential that all of the above duties be documented, not only in job descriptions and in-services, but in the daily exercise of those responsibilities. This includes performance evaluations prepared and signed by the charge nurses, disciplinary actions written and signed by charge nurses, timekeeping records initialed by charge nurses, absenteeism and call-off records prepared, and initialed by, charge nurses showing they contacted replacement help, and nursing assistant assignment sheets filled out by the nurses showing their assignment of duties, lunch, and rest breaks. 

Conclusion and Opinion

For many years, Baker & Daniels has counseled long-term care clients concerning how to establish the supervisory status of charge nurses.  In too many cases it has been necessary to appeal NLRB decisions to the federal courts to establish charge nurses' supervisory status. The NLRB's Golden Crest decision will undoubtedly encourage unions to renew their efforts directed at nursing home charge nurses. Those efforts can be defeated, and long-term care providers can ensure the supervisory status of their charge nurses by taking the time to review and implement the necessary steps.  Delaying until union organizing is at the door is too late. 

The NLRB's decision, which has been awaited for approximately six years, is regrettable.  Again, the NLRB demonstrated its lack of understanding of its relationship to the federal courts in interpreting the Act. The NLRB, again, has chosen to ignore the clear message of the federal courts and insisted on helping unions. The prudent employer will take steps to ensure that its business does not become needlessly entangled with unions.