The Supreme Court held, in an important decision for the health care industry, that Licensed Practical Nurses (LPNs) working in a nursing home were supervisors, and therefore not protected by the National Labor Relations Act (NLRA). The LPNs in question were the ranking employees on duty most of the time. They ensured adequate staffing, made daily work assignments, and monitored and evaluated the work of Nurse's Aides (as part of their duties). The Court stated that the National Labor Relation Board's (NLRB) long-standing test for determining whether nurses are supervisors was inconsistent with the statutory definition of "supervisors."
Under the NLRA, a supervisor is defined as:
"...any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay-off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct, or adjust their grievances, or effectively recommend such action, if in connection with the foregoing, the exercise of such authority is not of merely a routine or clerical nature, but requires the use of independent judgment."
This definition contains three elements which must be present for an employee to be considered a supervisor. The employee must:
- Have the authority to engage in one or more of the twelve activities listed in the definition;
- Exercise this authority through use of independent judgment, and not merely the routine performance of employer policies; and,
- Hold such authority in the interest of the employer.
If all of these elements are met, the employee will be considered a supervisor.
Nurses as Supervisors
With respect to the third element, the NLRB had historically said that when nurses, in the exercise of professional judgment, direct Nurses' Aides and other lesser skilled employees incidental to the treatment of patients, they are not exercising authority "in the interest of the employer," but in the interest of the patient. Based upon this conclusion, the NLRB consistently held that nurses do not satisfy the third element and, therefore, are not supervisors excluded from coverage under the NLRA.
In National Labor Relations Board v. Health Care and Retirement Corporation of America, the Supreme Court has rejected the NLRB's reasoning, stating that the interest of the patient and the interest of the employer are not mutually exclusive. The Court said that, in fact, the interests of the patient is the employer's business: "The welfare of the patient, after all, is no less the object and concern of the employer than it is of the nurses. And the statutory dichotomy the Board first created is no more justified in the healthcare field than it would be in any other business where supervisory duties are a necessary incident to the production of goods or the provision of services."
The Supreme Court stated that to uphold the NLRB's position would distort the statutory language regarding the definition of a supervisor. The NLRB had argued that the Court should defer to the NLRB's test, because granting organizational rights to nurses -- whose supervisory authority concerns patient care -- is not a threat to the conflicting loyalties that the supervisor exception was created to avoid. But the Court noted that divided loyalties could arise when a nursing home employer implements policies directed toward the best possible patient care, despite potential adverse reactions from employees working under a nurse's direction. The nurse will often be designated to direct other employees to carry out those policies.
Professional Employees Have Some Supervisory Authority
The NLRB also argued that the statutory phrase "in the interest of the employer" must not be read so broadly as to override the protections of the Act accorded to professional employees. The Board noted that almost all professional employees have some level of supervisory authority if the definition of a supervisor is given a broad reading and, therefore, practically no professional employees would be afforded protection under the Act. The Court rejected this argument as being contrary to the clear language of the Act. Although the Court said its decision would have "almost no effect" outside the context of nurses, it seems entirely possible that this rule could impact a number of industries in which professional employees exercise supervision and direction over other employees as part of their professional judgment.
The facts in the Health Care and Retirement Corp. of America case involved a nursing home that had a nursing department staffed by a Director and an Assistant Director of Nursing, 13 to 15 RNs and LPNs, and 50 to 55 aides who reported to the nurses. When three of the LPNs were discharged, the nurses filed unfair labor practice charges with the NLRB. The Board determined that the nurses were not supervisors, and therefore protected by the NLRA. The Supreme Court's ruling that they were supervisors could have a substantial impact on the health care industry.
It is entirely possible that many registered nurses working in hospitals and nursing homes can be considered "supervisors," and are therefore unprotected by the NLRA. Both RNs and LPNs who are now represented for purposes of collective bargaining, and who possess the requisite statutory authority, may be removable from their existing bargaining units. Health care providers should assess the duties of their nurses and determine whether they meet the clarified definition articulated by the Supreme Court. If they do, it may be appropriate to propose their exclusion from existing bargaining units to the bargaining representative. If the bargaining representative refuses, it is possible to file a unit clarification petition with the NLRB. If the Board agrees that the nurses meet the statutory definition of supervisor, nurses may be removed from the bargaining unit in a unit clarification proceeding.
Obviously, this situation creates difficult and complicated problems. Health care facilities whose nurses are organized and currently members of existing bargaining units must carefully consider all of the ramifications. It may make health care institutions less vulnerable to work stoppages by nursing personnel because of a potentially larger group of supervisory employees available to perform patient care duties. It will also make it harder for unions to organize health care professionals, since many may be supervisors.