Good News for Private Sector Businesses

The National Labor Relations Board (NLRB) has finally classified a longstanding dispute over whether certain “charge nurses” can be considered “supervisory” and therefore excluded from coverage under the NLRA. This case may also serve to clarify the status of other managerial employees.

The NLRB determined that nurses, who serve permanently as charge nurses “on every shift they work” must be considered “supervisors.” Even though these nurses do not have employees who report to them, they are responsible for “overseeing their patient care units” that includes “assigning other registered nurses to patients on their shifts based upon the skill, experience and temperament of other nursing personnel” and matching the nursing personnel to the specific needs of the patients. (Oakwood Health, Inc. and the U.A.W., Case No. 7-RC-22141).

The three member majority explained that an employee is a “supervisor” within the meaning of the NLRA if that employee engages in any one of 12 supervisory functions listed in the Act. Examples applicable to this case included such functions as to “assign” employees and to “responsibly direct” them, where such functions involve the use of “independent judgment.”

The NLRB analysis, while focused on the specific facts of each case, does broaden the scope of those who may be considered supervisors despite lack of those functions more commonly associated with supervision, such as in-line authority over disciplinary matters. The majority interpretation more faithfully follows the intent of the legislators in recognizing the importance of not allowing supervisors to be lumped into a union organizing campaign where an employer has to depend on the loyalty of its supervisors in order to carry out its functions. Those who assign employees to “significant overall tasks” are encompassed in the Act’s definition of a supervisory function. Those who are engaged in the function – “responsibility to direct” means the person doing the directing must be accountable for the performance of the task by others. Finally, the direction given must involve a degree of discretion – not simply appointing individuals to tasks based on some pre-determined criteria such as seniority or productivity records.

While this decision may not mean sweeping changes in the number of employees excluded from joining unions, it does provide a measure of flexibility for management and recognition on the part of this important governmental agency of the real-world needs of employers.

Recommendation: If an employer has one or more employees who may fit under this more expansive view of Asupervision,@ legal counsel should be obtained to fully evaluate whether such individuals are properly to be excluded from being included among the unionized employees.