South Florida Hospital News
Saturday February 24, 2018
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January 2006 - Volume 2 - Issue 7

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Charge Nurses: Hello, NLRB – Are You Out There?

Will 2006 be the year in which the National Labor Relations Board will finally give us definitive guidance on which of our nurses can be classified as "supervisors" for purposes of the National Labor Relations Act? We hope so and we believe so.

The issue of whether "charge nurses," and other managers similarly-situated, can reliably be treated as supervisors for purposes of the National Labor Relations Act has been lingering before the NLRB for several years. The uncertainty created by the NLRB’s failure to address the open issues on the status of charge nurses and other first-level supervisors as "statutory supervisors" has impacted the entire spectrum of health care -- from acute care to long-term care to assisted living. This ambiguity is particularly problematic in the context of union organizing activity when it can be critical for an employer to know whether a particular nurse in a front-line leadership position will be considered a "supervisor" or an "employee" by the NLRB for purposes of the NLRA’s entitlements, limitations, restrictions and obligations. The National Labor Relations Act draws a very distinct line in the sand between employees and supervisors and effectively places them on one "team" or the other. Only "employees" are entitled to the rights set forth in Section 7 of the NLRA, most notably the right to join, form and assist unions. Others Sections of the Act, most notably Section 2, specifically exclude "supervisors" from employee status and recognize that their loyalties must lie with management and that they cannot participate in, join, form or assist union activity. This determination of status can be painfully critical in terms of a health care employers’ ability to respond to a union organizing effort. Among other things, for example, the health care employer will be bound by the statements, acts and omissions and, in most cases, will be deemed to have their knowledge imputed for purposes of unfair labor practices and other objectionable conduct if the individual is a supervisor, under the statute, whether previously authorized or not, and regardless of whether the statement, act or conduct is subsequently ratified. It is important to know who is on your team and who is not if their actions and conduct will be potentially legally binding.

The United States Supreme Court in 2001, in the case of NLRB v. Kentucky River Community Care, Inc., disposed of several of the issues involved in determination of supervisory status for charge nurses and other front-line supervisors, but the Supreme Court left open a number of important questions that almost always arise in cases involving a determination of supervisory status for first-level supervisors. The Supreme Court deferred to the National Labor Relations Board to further clarify the terms "responsibly direct," "effectively recommend" and "independent judgment" as they apply to front-line supervisors who do not, on their own, have the authority to hire or fire or discharge the other major attributes of supervisory status. In a case involving a determination of whether or not a charge nurse, or other front-line manager, is or is not a statutory supervisor under the NLRA, the NLRB’s decision almost always turns on an analysis and application of these statutory terms from Section 2(11) as compared to the charge nurses’ actual duties and responsibilities. The NLRB needs to speak to these issues and to provide health care employers with some degree of certainty in determining which of their first-level managers can reliably be treated as supervisors for purposes of the NLRA and which cannot.

It is fully expected by those in the know that the NLRB will finally address these issues and eliminate much of the uncertainty in the upcoming months. There are several cases squarely presenting the issues which have been pending before the Board for a number of years. For a variety of reasons, the Board has not been able to issue precedent-setting decisions in cases such as the charge nurse cases pending before them. Now that the Board will be back at full strength, it is highly likely that decisions on the charge nurse cases will be among the first significant issues the new Board will address. These decisions are long overdue and the NLRB is well aware that clarification and certainty in this area is both much needed and much anticipated. Stay tuned. We should finally hear from the National Labor Relations Board very soon.

John E. Lyncheski chairs the Healthcare Practice Group and is senior Director in the Labor & Employment Group of Cohen & Grigsby, P.C., a full-service national law firm with offices in Pittsburgh, Naples and Bonita Springs. He can be reached at jlyncheski@cohenlaw.com or (412) 297-4900.
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