In a 2-1 decision, the National Labor Relations Board elected to deny the employer’s request for review of the Regional Director’s Decision and Direction of Election in Chi LakeWood Health, 365 NLRB No. 10 (Dec. 28, 2016), a case where the employer asserted that its patient care coordinators (PCCs) are supervisors under the National Labor Relations Act. Member Miscimarra dissented as he believed substantial questions existed regarding whether the PCCs possess authority to assign and responsibly direct other employees, and he took issue with the fact that “many of the Board’s supervisor determinations have become increasingly abstract and out of touch with practical realities of the workplace.”

The employer in Chi LakeWood Health is a small but full-fledged acute care medical facility operating 24 hours a day, 7 days a week with 15 in-patient beds and a nursing staff that includes 6 PCCs (who are registered nurses) and their subordinates: 8-9 registered nurses, three licensed practical nurses, and one certified nurse assistant. The employer created the PCC position just four months before the NLRB hearing because it wanted to ensure that someone was accountable for the shift-by-shift work flow of the department in addition to supervising the employees on their shift. The PCC job description included, among others, the following duties:

• Responsible for Daily Nursing Assignments–assesses, identifies and communicates unit staffing needs for current and oncoming shifts and assigns admissions and/or transfers based on patient activity level, nurse/patient ratio, and nursing skill levels;
• Coordinates daily patient care activities with acute care nursing staff and other related services;
• Communicates with staff to assure assignment made is appropriate to promote team building and cohesiveness; and
• Retains overall accountability for the workflow for their shift, and remains unaccountable if duties are delegated to another qualified staff member.

In addition, the evidence established that PCCs provide overall supervision of staff and patient care during shift and serve as the bedside leader for the nursing team during shift. Moreover, from 7 p.m. to 8 a.m. Monday through Friday, and every weekend from 5 p.m. Friday through 8 a.m. Monday, the PCC is the only person present most of the time who can give directions and assignments to the nursing staff.

Despite these facts, the Board majority affirmed the Regional Director’s finding that the PCCs do not exercise any supervisory functions:

The Board has consistently held that Sec. 2(11) supervisory status cannot be established merely by ‘paper’ authority or conclusory testimony. … Rather, ‘what the statute requires is evidence of actual supervisory authority visibly translated into tangible examples demonstrating the existence of such authority.’

Disagreeing, Member Miscimarra took the Board majority to task. First, Miscimarra found sufficient evidence demonstrating that the PCCs have authority to make assignments and that they exercise independent judgment in doing so.

PCCs take into account the needs of the patient and the skill of the nurses, but the Regional Director dismissed this testimony because no one specifically testified that nurses have differing levels of skill and ability. … I do not believe that specific testimony is needed to establish the commonsense fact that some employees are more skilled than others, which in any event is implied by the undisputed testimony that skill level is taken into account. As I have previously explained, the Board should not disregard unrebutted evidence ‘merely because it could have been stronger, more detailed, or supported by more specific examples.’

Miscimarra also disagreed with the Regional Director’s finding that the PCCs were not accountable for the performance of the nurses given the undisputed testimony that the employer created the position to ensure that there was accountability for how the department operated on a day-to-day basis.

Miscimarra pointed to additional factors evidencing the PCCs’ supervisory status, primarily that the PCC is the highest-level official at the hospital 13 hours of each day and approximately 63 hours straight each weekend:

The Regional Director determined that the PCCs are not supervisors, so the question arises, who is in charge in this life-or-death situation? If there are four acute in-patients at the time a critical patient arrives and two nurses on duty, who decides which nurse will take care of which patient? Who decides what treatment to begin? Who evaluates the condition of the patients and the abilities of each nurse? To state the obvious, these are not appropriate judgments to resolve by a coin toss or drawing straws. Someone has to be in charge at this facility at all times, including times when no manager and perhaps no physician is present.

…

[T]he notion that nobody exercises ‘supervisory’ authority in this type of work setting for such extended periods of time fails the ‘test of common sense.’ The Regional Director and my colleagues endeavor in this case to ensure that the Board’s supervisory determinations are consistent with our statute. However, I believe the finding that PCCs are not supervisors under Section 2(11) provides yet another illustration of the principle that ‘common sense’ is not so common.

In addition to the points addressed by Miscimarra’s dissent, it is interesting to note that the majority refused to rely on the PCC job description in its decision (especially where the position was brand new) given the Board’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), where the Board placed great emphasis on “paper authority” in its new joint employer standard:

[The Board no] longer require[s] that joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority. Reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employer inquiry. 

(emphasis added).