In Glenmark Associates, Inc. v. NLRB, the Fourth Circuit Court of Appeals (which reviews decisions of federal trial courts in North and South Carolina, Virginia, West Virginia, and Maryland) held that the National Labor Relations Board (NLRB) improperly determined that Glenmark committed unfair labor practices by refusing to negotiate with bargaining units which contained nurses who met the definition of "supervisor" under the National Labor Relations Act (NLRA).
Glenmark operates two nursing homes in West Virginia, which employ Registered Nurses (RNs), Licensed Practical Nurses (LPNs), and Certified Nursing Assistants (CNAs). The CNAs already had been organized by the Health Care and Social Services Union, which had filed a petition for an election to certify the union as the bargaining representative of the LPNs and RNs at the two facilities. The elections proceeded, with majority votes in favor of the union at both locations. However, Glenmark refused to negotiate with the union, claiming that the LPNs and RNs were supervisors. Bargaining units that include supervisors are improper under the NLRA, which only gives "employees" the right to organize and bargain collectively. Section 2(11) of the NLRA defines a "supervisor" 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 responsibility to 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.
After its review of the responsibilities of the nurses, the NLRB decided that they were not supervisors because they did not exercise the independent judgment which section 2(11) requires. Rather, the NLRB found that the nurses were simply providing "routine guidance to less, skilled employees" when they directed the CNAs work.
The Fourth Circuit chastised the NLRB for its poorly-reasoned conclusion and for its established policy of assuming that nurses are employees, rather than supervisors. The court found that the nurses clearly were required to exercise independent judgment in the assignment and discipline of CNAs, especially when RNs and LPNs served as "charge nurse." At each facility, any RN could be assigned to charge nurse duties. If no RNs were on duty, any LPN might serve as the charge nurse on any particular shift. As far as assigning employees, the court found that the nurses exercised independent judgment by calling additional CNAs to work, allowing the CNAs to switch assignments with each other, changing CNA break schedules, and deciding whether CNAs should be allowed to go home early for illnesses or family crises.
Concerning discipline, the court noted that both the LPNs and RNs at each facility had the authority to initiate disciplinary action against CNAs who failed to perform in accordance with the facility's procedures, although the facility's management was responsible for the final action taken. The nurses were expected to counsel the CNAs and issue verbal or written correction reports to management if they noted poor performance or behavior.
Because this authority to assign and discipline employees extended beyond mere "authority arising from professional knowledge" and actually encompassed front-line management responsibilities, the court overturned the elections at both facilities and dismissed the unfair labor practices charges.
Although the Glenmark Associates decision is favorable for medical employers in the Carolinas, it should put facilities and practices on notice that nursing and health services unions are increasing their activities in the South. The case also demonstrates the benefit of knowing which employees are likely to be considered "supervisors" before an election campaign begins, as "straw bosses," working foremen, and the like can become "instant organizers" during a union election campaign. Finally, medical employers and other organizations with a flat management structure might benefit from rotating floor, unit, or facility supervisory duties -- much like the charge nurse responsibilities at Glenmark -- to increase the employees in the organization who qualify as "supervisors" under the NLRA.