Wednesday, August 21, 2013

6th Circuit Overturns NLRB Decision, Finds Nursing Home RNs Are Supervisors

A highly contested and litigated issue in labor law is the issue of whether certain employees are "supervisors" or "employees" for purposes of organizing under the National Labor Relations Act ("NLRA") as supervisors and managers are not able to organize and become part of bargaining units.  Even though some workers have labels and job descriptions suggesting they are a manager or supervisor, these inquiries are highly fact-specific.  A recent case, GGNSC Springfield LLC v. NLRB, highlights exactly that issue.   

In GGNNSC, the International Association of Machinists and Aerospace Workers, AFL-CIO (the “Union”), petitioned the Board and sought to represent the Center’s RNs in collective bargaining. The Center opposed the petition, claiming that its RNs (all charge nurses) were “supervisors” under the Act and therefore not permitted to unionize. See 29 U.S.C. §§ 152(3), 157. A hearing was held where evidence was received. In November 2011, the Board’s regional director concluded that the RNs are not supervisors, certified the requested bargaining unit, and directed an election. The Board declined further review. The following day, the RNs elected the Union as their bargaining representative.

A week later, the Union asked the Center to bargain with it. The Center refused, prompting a complaint with the Board that alleged unfair labor practices. See 29 U.S.C. § 158(a)(1), (5). The Center admitted its refusal to bargain and contested only the regional director’s decision to certify the bargaining unit. The Board sustained the Union’s complaint and ordered the Center to bargain with it. A petition for review to the 6th Circuit and cross-application for enforcement followed.

The NLRA creates “a three-part test for determining supervisory status.” NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 712–13 (2001). Individuals are supervisors if (1) they hold the authority to engage in any one of the twelve listed supervisory functions, (2) their “exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,” and (3) their authority is held “in the interest of the employer.” 29 U.S.C. 152(11); see Kentucky River, 532 U.S. at 713. The burden of proving supervisory status falls on the party asserting it. Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298, 305 (6th Cir. 2012).

In reversing the Board's decision, the 6th Circuit found that the NLRB had misapplied the term “discipline” contained in the statute by concluding that discipline meant the employee must suffer some immediate adverse employment action, such as suspension or termination. The problem with the NLRB’s view was that the term “discipline” was one of twelve supervisory functions, including suspension and termination:  “any individual having authority . . . to . . . suspend, . . . discharge, . . . or discipline other employees . . . .”  

Since the RNs had the authority independently to write memoranda that automatically resulted in a written warning, it was clear to the Sixth Circuit that RNs were supervisors because they exercised authority to discipline.  The GGNSC disciplinary policy did not include verbal warnings as a step in the disciplinary process. As a result, the Sixth Circuit found that merely deciding whether to give a verbal warning would not constitute discipline. Presumably, if the employer’s policy had included verbal warnings in the process, this might have been sufficient also. 

The key take away in cases like these is that giving a certain type of employee a supervisory title and having a job description filled with supervisory functions and responsibilities will not make them "supervisors" under the NLRA unless this is all actually occurring in the workplace and in practice.  

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