On July 2, 2013, the United States Court of Appeals for the Sixth Circuit in GGNSC Springfield LLC v. NLRB denied enforcement of an order of the National Labor Relations Board (NLRB) that found registered nurses (RNs) at a nursing home were not “supervisors,” and, therefore, they were ineligible to unionize under the National Labor Relations Act (the Act). The court reasoned that the NLRB’s decision was not supported by substantial evidence and that the RNs, in fact, possessed supervisory authority over certified nursing assistants (CNAs) by deciding whether to ignore infractions, provide verbal counseling, or issue written memoranda that automatically resulted in written warnings under the employer’s disciplinary policy. According to the court, which has jurisdiction in federal cases arising in Tennessee, Kentucky, Ohio and Michigan, a written memorandum that causes the initiation of a step in a disciplinary policy (written warning) qualifies as “discipline” under the Act, so that RNs having such authority are statutory supervisors.
The Statute Specifically Defines Who is a “Supervisor”
The Act provides that only “employees” have the right to bargain collectively under federal law, and broadly defines “employee” but states that the term does not include “any individual employed as a supervisor.” A supervisor, in turn, is defined by the statute 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 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.
Because the listing of supervisory functions is not conjunctive (“and”), but rather disjunctive (“or”), an individual must possess authority to exercise only one of these functions in order to qualify as a supervisor.
The NLRB Misapplied the Term “Discipline”
In GGNSC, the Sixth Circuit found that the NLRB had misapplied the term “discipline” contained in the statute by concluding that discipline meant the employee must suffer some immediate adverse employment action, such as suspension or termination. The problem with the NLRB’s view was that the term “discipline” was one of twelve supervisory functions, including suspension and termination: “any individual having authority . . . to . . . suspend, . . . discharge, . . . or discipline other employees . . . .”
In this particular case, the employer’s written disciplinary policy did not reference verbal warnings. However, a written warning was expressly included in the policy as a step in progressive discipline. Since the RNs had the authority independently to write memoranda that automatically resulted in a written warning, it was clear to the Sixth Circuit that RNs were supervisors because they exercised authority to discipline. The court rejected the NLRB’s contention that the RNs exercised only a reporting function, which under case precedent does not constitute the exercise of independent judgment. The record showed that although RNs sometimes consulted with their own superiors in issuing memoranda, they did not always do so because GGNSC did not require RNs to consult before issuing memoranda.
The GGNSC decision, like most decisions involving the determination of supervisory status, is factually dependent. Labeling RNs as “charge nurses” or “supervisors” is not enough. Nor would it be sufficient to include language in a job description which appears to give certain authority, especially if the record otherwise shows that it is paper authority only and never actually exercised by RNs. The GGNSC disciplinary policy did not include verbal warnings as a step in the disciplinary process. As a result, the Sixth Circuit found that merely deciding whether to give a verbal warning would not constitute discipline. Presumably, if the employer’s policy had included verbal warnings in the process, this might have been sufficient also.
Employers who wish to delegate supervisory authority to RNs or other employees should make sure that their policies and job descriptions reflect this intention. Further, employees should be trained concerning their responsibility for discipline, and the accomplishment of this training should be documented. Finally, authority that is granted but then routinely disallowed is not real authority, but this does not mean that disciplinary actions initiated by RNs or other employees should never be overruled or reversed. All discipline should be subject to review to ensure fairness, which is why most healthcare employers have a formal disciplinary review process.
If you have any questions regarding labor laws administered by the NLRB or other questions regarding suspension, discipline or termination, please contact the author of this article or any member of the Butler Snow Labor and Employment group.