In 2001, the United States Supreme Court criticized the National Labor Relations Board’s (“Board”) interpretation of the definition of a supervisor under Section 2(11) of the National Labor Relations Act (“NLRA”) as applied to charge nurses in the healthcare industry.  NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001).  Yesterday, the Board issued a decision that squarely addresses the Supreme Court’s criticism.  Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37 (2006).  In the Oakwood decision, the Board changed course, and will now interpret Section 2(11) in a way which will make it easier for a healthcare employer to argue that charge nurses are statutory supervisors who should not be included in an RN bargaining unit.  Of course, the decision will also have broad application and will apply to supervisory employees in all industries.

Section 2(11)

Section 2(11) of the Act defines supervisors as “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”  The Oakwood decision focused primarily on three of the Section 2(11) factors, namely, “assign,” “responsibly direct,” and “independent judgment.”

Assign

The Board held that “assign” means “to appoint to a post or duty.”  In the healthcare setting, “assign” was deemed to encompass the charge nurses’ responsibility to assign nurses and aides to particular patients or areas, or to assign particular duties or responsibilities.  The Board concluded that the decision or effective recommendation to affect one of these ? place, time, or overall tasks ? can be a supervisory function.

Responsibly Direct

The term “responsibly direct” has been the subject of much litigation before the Board and in the courts.  In Oakwood, the Board held that in order to “responsibly direct,” the person directing and performing the oversight of the employee must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly.  In other words, an employer must have delegated to the supervisor the authority to direct the work, as well as the authority to take corrective action, if necessary.  The employer must also show that there is a prospect of adverse consequences for the supervisor if the supervisor does not take the corrective action when necessary.

Independent Judgment

Prior to the Oakwood decision, the Board took the view that the exercise of independent judgment for purposes of deciding supervisory status did not include “ordinary professional or technical judgment in directing less skilled employees to deliver services.”  For example, if an RN made a professional decision that a catheter needed to be changed and directed another employee to perform the task, the Board did not count that decision as the type of decision that was supervisory in nature.  The U.S. Supreme Court in Kentucky River took issue with this portion of the Board’s analysis of supervisory duties.

In Oakwood, the Board changed course.  The Board will now consider professional or technical judgments involving the use of independent judgment to be supervisory if they involve one of the 12 supervisory functions outlined in Section 2(11).  Thus, in the above example, the Board would now consider the RN’s direction to another employee to change a catheter to be a supervisory function.

Rotating Charge Nurses

Many healthcare employers rotate charge nurse functions among their RNs on a particular unit, or among a group of RNs.  The Board articulated the standard to determine when rotating charge nurses, who otherwise meet the standards set forth above when performing charge nurse functions, are supervisors:

Where an individual is engaged a part of the time as a supervisor and the rest of the time as a unit employee, the legal standard for a supervisory determination is whether the individual spends a regular and substantial portion of his/her work time performing supervisory functions.  Under the Board’s standard, “regular” means according to a pattern or schedule, as opposed to sporadic substitution.  The Board has not adopted a strict numerical definition of substantiality and has found supervisory status where the individuals have served in a supervisory role for at least 10-15 percent of their total work time.

What does all of this mean?

For employers whose RNs, including charge nurses, are not already unionized or part of a union bargaining unit, the employer should audit the duties and responsibilities of its charge nurses to ensure that the charge nurses are delegated authority to perform supervisory duties as outlined above and are held responsible for the performance of those duties.  An employer should also review its job descriptions and performance evaluation forms to ensure that they comply with the foregoing principles.

Employers whose charge nurses are part of a collective bargaining unit must carefully weigh how to deal with the issue.  In the right situation, there is a procedure through the Board, called a “Unit Clarification Petition,” which enables an employer to have the NLRB determine whether employees are properly included in a bargaining unit.

As stated at the outset, the decision also merits careful consideration outside the healthcare industry.