On October 3, 2006, the National Labor Relations Board (NLRB or Board) released a series of cases holding that certain charge nurses may be considered supervisors under the National Labor Relations Act (NLRA or Act), thereby removing them from the protections of the Act. In its 2001 NLRB v. Kentucky River Community Care decision, the U.S. Supreme Court criticized the NLRB for its interpretation of the term “independent judgment” contained in Section 2(11) of the NLRA. With its trio of cases released this week, the Board reinterpreted the term “independent judgment” along with the terms “assign” and “responsibly to direct” for the purposes of determining which employees are statutory “supervisors.” While the decisions are arguably more pro-employer than prior Board decisions, the Board remained steadfastly committed to reviewing these issues on a case-by-case basis.

In the principal case in the series, Oakwood Healthcare, Inc., the Board reinterpreted the terms “assign,” “responsibly to direct,” and “independent judgment” and held that Oakwood’s permanent charge nurses, other than those in the emergency room, are Section 2(11) supervisors based on their authority to exercise independent judgment in assigning nursing personnel to specific patients. Using the Oakwood Healthcare definitions, the Board held in Golden Crest Healthcare Center that Golden Crest’s charge nurses were not statutory supervisors under the Act because they lacked the authority to “assign” or “responsibly to direct” other employees. In Croft Metals, Inc., the Board found that lead persons at Croft’s manufacturing facility were not supervisors because they did not exercise independent judgment while directing other employees.

Why the issue matters

The Act is designed to protect the rights of employees but does not afford those same protections to “supervisors” as defined in Section 2(11). An individual qualifies as a supervisor if: (1) she holds the authority to engage in any one of twelve statutorily listed supervisory functions (e.g., “assign” and “responsibly to direct”); (2) her exercise of such authority is not routine or clerical in nature, but requires the use of independent judgment; and (3) her authority is held in the interest of the employer. The Board’s Oakwood Healthcare decision provides new guidance for employers attempting to determine which individuals meet this test.

Application of the new definitions

Using these definitions, the Board determined that the permanent charge nurses at Oakwood Heritage Hospital routinely assigned nursing personnel to specific patients for whom they care during their shift. These were considered assignments of “significant overall duties” to an employee, meeting the Board’s new-enunciated definition of “assign.” The Board also determined that the permanent charge nurses exercised independent judgment in making these assignments. As a result, the Board held that most of the permanent charge nurses at Oakwood were statutory supervisors. The Board did, however, exclude from supervisory status charge nurses who worked in the emergency room. Emergency room charge nurses, the Board concluded, do not use “independent judgment” because they do not take into account patient acuity or nursing skill in making patient care assignments, but instead perform a triage and keep other units within the facility informed of possible admissions from the emergency room. The Board also excluded rotating charge nurses from this holding because Oakwood could not prove that rotating charge nurses spent a “substantial” amount of work time performing supervisory duties.

For more information on these cases, please contact Tom Wilson, 713.758.2042 or twilson@velaw.com or Sean Becker at 713.758.2646 or sbecker@velaw.com.

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