The U.S. Court of Appeals for the 6th Circuit (covering Tennessee, Kentucky, Ohio, and Michigan) has upheld a National Labor Relations Board’s (NLRB) determination that a unit of 43 charge nurses in an employer’s nursing home facility are not statutory supervisors.
Under the National Labor Relations Act (NLRA), supervisors are not entitled to unionize. This case sets out the requirements that the party asserting supervisory status must prove to show that someone is a supervisor rather than an employee. The NLRA defines who is a "supervisor" using a three-part test. In order to be considered a supervisor, an individual has to: (1) have the authority to do at least one of the following: hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, adjust their grievances, or effectively recommend such action; (2) use independent judgment in exercising that authority; and (3) hold that authority in the interest of the employer.
With respect to the element of "independent judgment," the purported supervisor must, at a minimum, act or effectively recommend action free of the control of others and form an opinion or evaluation by discerning and comparing data. A judgment is not "independent" if it is dictated or controlled by detailed instructions or company policies or rules, the verbal instructions of a higher authority, or the provisions of a collective bargaining agreement.
Deciding whether or not an employee is a supervisor thus is a highly fact-intensive inquiry. The party asserting supervisory status has the burden of proving all of the elements described above by a preponderance of the evidence.
In this case, the employer sought to escape its bargaining obligation on the theory that the unit of charge nurses was composed of supervisors who were not entitled to unionize. The employer alleged, but failed to sufficiently prove, that its charge nurses exercised the power to discipline subordinate employees, effectively made hiring recommendations, had supervisory authority to make employee work assignments, had independent discretion to transfer employees, and responsibly directed the work of subordinates.
The Court also rejected the employer’s argument that the charge nurses were supervisors because they were the highest ranking employees in the nursing home on weekends and between day and night-manager shifts. This was viewed as "secondary indicia" of supervisory status and irrelevant, since the employer failed to prove any of the 12 statutory criteria listed above. Additionally, even when the charge nurses were working alone on a shift, a manager was always on-call to assist them.
Perhaps the most critical reason for rejecting the employer’s position was that if all 43 charge nurses were deemed "supervisors," when added to the 7 managers whom all parties acknowledged were supervisors, there would have been 50 supervisors to manage 45 employees! This simply didn’t pass muster with the Sixth Circuit Court of Appeals.
The case is obviously a valuable tool for employers in the health care industry who wish to assert supervisory status of charge nurses or other purported supervisors. It is also a good reminder to those in other industries of the factors the NLRB and courts are going to consider under the NLRA regarding who has the power to vote a union in versus who does not. As with wage and hour laws, employee “job titles” are not the defining elements.
By reviewing what the employer in this case failed to show, future employers may be able to tailor their arguments to sufficiently prove the supervisory criteria needed to obtain a favorable ruling - or even change the outcome of a “borderline” case in their favor by making a few subtle changes to the job responsibilities of the employees at issue before such arguments have to be made.
