On February 4, 2002,
the Acting Regional Director for Region 7 issued a Decision and Direction
of Election (pertinent portions
of which are attached as an appendix) finding that the Employer’s
charge nurses, whose supervisory status is in dispute, should be included
in the petitioned-for unit of all registered nurses (RNs) working
for the Employer at its Oakwood Heritage Hospital located in Taylor,
Michigan. In accord
with Section 102.67 of the National Labor Relations Board’s Rules and
Regulations, the Employer filed
a timely request for review. By
Order dated March 5, 2002, the Board granted review solely with respect to
the issue of whether the Employer’s charge nurses are supervisors under
the Act.
The Employer and
the Petitioner filed briefs on review.
On July 25, 2003, the
Board issued a notice and invitation to the
Employer, the Petitioner, and interested amici curiae
to file briefs addressing the supervisory issue in this case in light of
the Supreme Court’s decision in NLRB
v. Kentucky River Community
Care, 532 U.S. 706 (2001).
The Board sought,
inter alia, comments relating to (1) the meaning of “assign,”
“responsibly to direct,” and “independent judgment,” as those
terms are used in Section 2(11)
of the Act; and (2) an appropriate test for determining the unit placement
of employees who take turns or “rotate” as supervisors.
In response, the Employer, the Petitioner, and a number of amici curiae
filed extensive briefs on these subjects and urged various analytical
methods for interpreting the terms of Section 2(11).
Having considered the
record and briefs of the parties and amici, and the Supreme Court’s
decision in
Kentucky River
, we refine the analysis to be applied in assessing supervisory status.
That refined analysis honors our responsibility to protect the
rights of those covered by the Act; hews to the language of Section 2(11)
and judicial interpretation thereof, most particularly the guidance
provided by the Supreme Court in Kentucky
River and other decisions; and endeavors to provide clear and broadly
applicable guidance for the Board’s regulated community.
Applying that analysis in the instant case, we reverse the decision
of the Acting Regional Director and find that certain charge nurses
should be excluded from the unit
as statutory supervisors.
i.
facts
The Employer has
approximately 181 staff RNs who provide direct care to patients in 10
patient care units at
Oakwood
Heritage
Hospital
, an acute care hospital with 257 licensed beds.
The patient care units are behavioral health, emergency room,
intensive care, intermediate care, medical/surgical east, medical/surgical
west, operating room, pain clinic, post-anesthesia care/recovery, and
rehabilitation. The RNs
report to the on-site nursing manager, clinical managers, clinical
supervisors, and assistant clinical managers—all stipulated supervisors.
In providing patient care, RNs follow the doctors’ orders and
perform tasks such as administering medications, running blood tests,
taking vital signs, observing patients, and processing admissions and
discharges. RNs may direct
less-skilled employees to perform tasks such as feeding, bathing, and
walking patients. RNs may
also direct employees to perform tests that are ordered by doctors for
their patients.
Many RNs at the
hospital serve as charge nurses. Charge
nurses are responsible for overseeing their patient care units, and they
assign other RNs, licensed practical nurses (LPNs), nursing assistants,
technicians, and paramedics to patients on their shifts.
Charge nurses also monitor the patients in the unit, meet with
doctors and the patients’ family members, and follow up on unusual
incidents. Charge nurses may
also take on their own patient load, but those who do assume patient loads
will sometimes, but not always, take less than a full complement of
patients. When serving as
charge nurses, RNs receive an additional $1.50 per hour.
Twelve RNs at the
hospital serve permanently as charge nurses on every shift they work,
while other RNs take turns rotating into the charge nurse position.
In the patient care units of the hospital employing permanent
charge nurses,
other RNs may serve as charge nurses on the permanent charge nurses’
days off or during their vacations. Depending
on the patient care unit and the work shift, the rotation of the charge
nurse position may be worked out by the RNs among themselves, or it may be
set by higher-level managers. The
frequency and regularity with which a particular RN will serve as a
“rotating” charge nurse depends on several factors (i.e., the size of
the patient care unit in which the RN works, the number of other RNs who
serve as rotating charge nurses in that unit, and whether the unit has any
permanent charge nurses). However,
some RNs do not serve as either rotating or permanent charge nurses at the
hospital. Most individuals
who fit in this category are either new employees at the hospital
or those who work in the operating room or pain clinic units.There are also a handful of RNs at the hospital who choose not to
serve as charge nurses.
The Petitioner, joined
by several amici, would include all the charge nurses in the RN unit.
The Employer, joined by other amici, seeks to exclude the permanent
and the rotating charge nurses from the unit on the basis that they are
supervisors within the meaning of Section 2(11) because they use
independent judgment in assigning and responsibly directing employees.
The Acting Regional Director found that none of the charge nurses
are 2(11) supervisors and directed an election in the RN unit including
them.
ii.
legal principles
A.
Introduction
In 1947, the Supreme
Court held in Packard Motor Car Co.
v. NLRB, 330 U.S. 485, that supervisors were included in the
definition of “employee” as used in Section 2(3) of the Act.
In response, Congress
amended the National Labor Relations Act that same year, adding Section
2(11) to specifically exclude supervisors from the Act’s definition of
“employee.”
Section 2(11) defines
“supervisor” 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 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.
Pursuant
to this definition, individuals are statutory supervisors if (1)
they hold the authority to engage in any 1 of the 12 supervisory functions
(e.g., “assign” and “responsibly to direct”) listed in Section
2(11); (2) their “exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judgment;” and
(3) their authority is held “in the interest of the employer.”
Supervisory status may be shown if the putative supervisor has the
authority either to perform a supervisory function or to effectively
recommend the same. The
burden to prove supervisory authority is on the party asserting it.
Both the drafters of
the original amendment and Senator Ralph E. Flanders, who proposed adding
the term “responsibly to direct” to the definition of supervisor,
agreed that the definition sought to distinguish two classes of workers:
true supervisors vested with “genuine management prerogatives,” and
employees such as “straw bosses, lead men, and set-up men” who are
protected by the Act even though they perform “minor supervisory
duties.” NLRB
v. Bell Aerospace Co., 416
U.S.
267, 280–281 (1974) (quoting S. Rep. No. 105, 80th Cong., 1st Sess., 4
(1947)).
Thus, the dividing line between these two classes of workers, for
purposes of Section 2(11), is whether the putative supervisor exercises
“genuine management prerogatives.”
Those prerogatives are specifically identified as the 12
supervisory functions listed in Section 2(11) of the Act.
If the individual has authority to exercise (or effectively
recommend the exercise of) at least one of those functions, 2(11)
supervisory status exists, provided that the authority is held in the
interest of the employer and is exercised neither routinely nor in a
clerical fashion but with independent judgment.
Whether an individual
possesses a 2(11) supervisory function has not always been readily
discernible by either the Board or reviewing courts.
Indeed, in applying Section 2(11), the Supreme Court has recognized
that “[p]hrases [used by Congress] such as ‘independent judgment’
and ‘responsibly to direct’ are ambiguous.”
As a general principle,
the Board has exercised caution “not to construe supervisory status too
broadly because the employee who is deemed a supervisor is denied rights
which the Act is intended to protect.”
Chevron Shipping Co.,
317 NLRB 379, 381 (1995) (internal quotations omitted).
However, in applying that principle, the Board has occasionally
reached too far. Indeed, on
two occasions involving the healthcare industry, the industry at issue in
this case, the Supreme Court rejected the Board’s overly narrow
construction of Section 2(11) as “inconsistent with the Act.”
Accordingly, although we seek
to ensure that the protections of the Act are not unduly circumscribed, we
also must be mindful of the legislative and judicial constraints that
guide our application and interpretation of the statute.
Thus, exercising our discretion to interpret ambiguous language in
the Act,
and consistent with the Supreme Court’s instructions in Kentucky
River, we herein adopt definitions for the terms “assign,”
“responsibly to direct,” and “independent judgment” as those terms
are used in Section 2(11) of the Act.
In interpreting those
statutory terms, we do not, as the dissent maintains, blindly adopt
“dictionary-driven” definitions.
Rather, we begin our analysis with a first principle of statutory
interpretation that “in all cases involving statutory construction, our
starting point must be the language employed in Congress, . . . and we
assume that the legislative purpose is expressed by the ordinary meaning
of the words used.” INS
v. Phinpathya, 464
U.S.
183, 189 (1984) (citations and internal quotation marks omitted).
Thus, we eschew a results-driven approach and we start, as we must,
with the words of the statute. We
thereafter consider the Act as a whole and its legislative history,
applicable policy considerations, and Supreme Court precedent.
In so doing, our goal is faithfully to apply the statute while
providing meaningful and predictable standards for the adjudication of
future cases and the benefit of the Board’s constituents.
We do not, as the dissent contends, ignore potential
“real-world” consequences of our interpretations.
Rather, we simply decline to engage in an analysis that seems to
take as its objective a narrowing of the scope of supervisory status and
to reason backward from there, relying primarily on selective excerpts
from legislative history.
B.
Assign and Responsibly to Direct
Possession of the
authority to engage in (or effectively recommend) any one of the 12
supervisory functions listed in Section 2(11) is necessary to establish
supervisory status. Since the
Act delineates 12 separate functions, and since
canons of statutory interpretation caution us to eschew a
construction that would result in redundancy, we start from the
premise that each supervisory function is to be accorded a separate
meaning.
That the terms “assign”
and “responsibly to direct” were not intended to be synonymous is also
readily apparent from the legislative history of the 1947 amendment to the
Act. Senator Flanders, who
offered the amendment adding the phrase “responsibly to direct” to
Section 2(11), believed that the amendment addressed an element of
supervisory status missing from an earlier amendment, which included
“assign” as 1 of 11 supervisory functions.
NLRB, Legislative History of the Labor Management Relations Act of
1947, 103–104. Consequently, consistent both with the text of the Act
and its legislative history, we ascribe distinct meanings to “assign”
and “responsibly to direct.”
1.
Assign
The ordinary meaning of
the term “assign” is “to appoint to a post or duty.”
Webster’s Third New International
Dictionary 132 (1981). Because
this function shares with other 2(11) functions—i.e., hire, transfer,
suspension, layoff, recall, promotion, discharge, reward or
discipline—the common trait of affecting a term or condition of
employment, we construe the term “assign” to refer to the act of
designating an employee to a place (such as a location, department, or
wing), appointing an employee to a time (such as a shift or overtime
period), or giving significant overall duties, i.e., tasks, to an
employee. That is, the place,
time, and work of an employee are part of his/her terms and conditions of
employment. In the health
care setting, the term “assign” encompasses the charge nurses’
responsibility to assign nurses and aides to particular patients.
It follows that the decision or effective recommendation to affect
one of these—place, time, or overall tasks—can be a supervisory
function.
The assignment of an
employee to a certain department (e.g., housewares) or to a certain shift
(e.g., night) or to certain significant overall tasks (e.g., restocking
shelves) would generally qualify as “assign” within our construction.
However, choosing the order in which the employee will perform
discrete tasks within those assignments (e.g., restocking toasters before
coffeemakers) would not be indicative of exercising the authority to
“assign.” To illustrate
our point in the health care setting, if a charge nurse designates an LPN
to be the person who will regularly administer medications to a patient or
a group of patients, the giving of that overall duty to the LPN is an
assignment. On the other
hand, the charge nurse’s ordering an LPN to immediately give a sedative
to a particular patient does not constitute an assignment.
In sum, to “assign” for purposes of Section 2(11) refers to the
charge nurse’s designation of significant overall duties to an employee,
not to the charge nurse’s ad hoc instruction that the employee perform a
discrete task.
Our dissenting
colleagues take the view that, for purposes of Section 2(11), an
assignment is an act that must affect “basic” terms and conditions of
employment or an employee’s “overall status or situation.”
That assertion is supported neither by precedent nor the language
of the statute, and we see no basis for superimposing a unique and
heightened standard on the supervisory function of assigning. It is enough
that the assignment affect the employment of the employee in a manner
similar to the other supervisory functions in the series set forth in
Section 2(11). For example,
there can be “plum assignments” and “bum
assignments”—assignments that are more difficult and demanding than
others. The power to assign
an employee to one or the other is of some importance to the employee and
to management as well. Certainly,
in the health care context, the assignment of a nurse’s aide to patients
with illnesses requiring more care rather than to patients with less
demanding needs will make all the difference in the work day of that
employee. It may also have a
bearing on the employee’s
opportunity to be considered for future promotions or rewards.
From the employer’s perspective, matching a patient’s needs to
the skills and special training of a particular nurse is among those
factors critical to the employer’s ability to successfully deliver
health care services. In
short, we do not find the dissent’s interpretation of “assign” to be
in accord with the statutory language.
The dissent responds
that the authority to assign employees to “more onerous or more
desirable” tasks should be “considered in relation to the Section
2(11) authority to ‘discipline’ or ‘reward.’”
We disagree. The
purpose behind assigning an employee to a more demanding job may be to see
if that employee is up to the challenge.
Far from an imposition of discipline, it could well be a prelude to
advancement. By the same
token, assigning an employee to comparatively easy overall tasks is not
necessarily a reward. It
could signal lack of confidence in the employee’s ability to accomplish
anything more challenging. And,
quite apart from any of the foregoing considerations, the assignment of
“plum” and “bum” jobs may well reflect nothing more than the fact
that both sorts of jobs must be done, and somebody must do them.
The fact remains that the authority to determine which kind of
overall tasks an employee will perform affects the employee’s terms and
conditions of employment in a significant way that is distinct from the
concepts of “reward” or “discipline.”
The dissent says that
our interpretation of “assign” to include the assignment of employees
to significant overall tasks violates the canon against redundancy by
failing to draw a line between assigning and directing.
That is not so. As
discussed below, direction may encompass ad hoc instructions to perform
discrete tasks; assignment does not.
Our dissenting
colleagues also criticize our interpretation of “assign” as somehow
inconsistent with the way the term is used in everyday speech, despite the
fact that the Board has construed the term in precisely this way.
In their view, “it must be the employees
who are being assigned, not the tasks.”
(Emphasis in original.) Thus,
while the dissent takes issue with us first drawing upon the ordinary
meaning of the statutory words used, it relies on overly subtle and
debatable grammatical distinctions to interpret the statutory terms.
The term “assign” encompasses the assignment of employees to
significant overall tasks; and the mere fact that, in common usage,
speakers refer interchangeably to assigning employees to tasks and tasks
to employees does not persuade us to adopt the dissent’s definition of
“assign.” And, contrary
to the dissent, the Supreme Court’s
Kentucky River
decision does not support their position in this regard.
In any event, debating linguistic niceties does little to
realistically assist in formulating workable definitions that fit both the
language of Section 2(11) and the overall intent of the provision.
Our dissenting
colleagues would interpret “assign” to apply to a determination of an
employee’s (1) position, i.e., his or her job classification, (2)
designated work site, i.e., facility or departmental unit, or (3) work
hours, i.e., shift. While
that interpretation overlaps in part with ours, it does not adequately
differentiate between the other related supervisory functions of Section
2(11). For example, instead
of interpreting “assign” to include, as we do, assigning overall
tasks, the dissent would require that the assignment be to an overall job
classification. However, the
dissent does not explain where the 2(11) function “assign” ends and
the other supervisory function “transfer” begins.
In the dissent’s view, to “transfer” means, inter alia, to
“reassign . . . to a different [job] classification.”
On this view, however, “transfer” becomes merely a subset of
“assign,” rendering “transfer” redundant.
Finally, the dissent
also criticizes our interpretation of “assign” on the ground that it
“threatens to sweep almost all staff nurses outside of the Act’s
protection.” As we stated
above, however, we decline to start with an objective—for example,
keeping all staff nurses within the Act’s protection--and fashioning
definitions from there to meet that targeted objective.
We have given “assign” the meaning we believe Congress
intended. We are not swayed
to abandon that interpretation by predictions of the results it will
entail.
We also do not prejudge what the result in any given case will be.
We shall continue to analyze each case on its individual facts,
applying the standards set forth herein in a manner consistent with the
Congressional mandate set forth in Section 2(11).
2.
Responsibly to Direct
We now address the term
“responsibly to direct.” The
phrase “responsibly to direct” was added to Section 2(11) after the
other supervisory functions of Section 2(11) already had been enumerated
in the proposed legislation. Senator
Flanders, who made the proposal to add “responsibly to direct” to
Section 2(11), explained that the phrase was not meant to include minor
supervisory functions performed by lead employees, straw bosses, and
set-up men. Rather, the
addition was designed to ensure that the statutory exemption of Section
2(11) encompassed those individuals who exercise basic supervision but
lack the authority or opportunity to carry out any of the other statutory
supervisory functions (e.g., where promotional, disciplinary and similar
functions are handled by a centralized human resources department).
Senator Flanders was concerned that the person on the shop floor
would not be considered a supervisor even if that person directly oversaw
the work being done and would be held responsible if the work were done
badly or not at all.
Consequently, the authority “responsibly to direct” is not
limited to department heads as the dissent suggests.
The “department head” may be a person between the personnel
manager and the rank and file employee, but he or she is not necessarily
the only person between the manager and the employee.
If a person on the shop floor has “men under him,” and if that
person decides “what job shall be undertaken next or who shall do it,”
that person is a supervisor, provided that the direction is both
“responsible” (as explained below) and carried out with independent
judgment. See footnote 19,
supra. In addition, as the
statute provides and Senator
Flanders
himself recognized, the person who effectively recommends action is also a
supervisor.
Since the enactment of
Senator Flanders’ amendment, the Board rarely has sought to define the
parameters of the term “responsibly to direct.”
In
Providence
Hospital
,
the Board majority
summarized past efforts on the part of several courts of appeals, namely
the First,
Fifth,
Sixth,
Seventh,
and Ninth
Circuits, to ascertain the limits of this term.
The Board majority in Providence
Hospital concluded that these courts endorsed, for the most part, an
accountability definition for the word “responsibly” that was
consistent with the ordinary meaning of the word.
The majority cited to the Fifth Circuit’s interpretation, which
is set forth in NLRB v. KDFW-TV,
Inc., supra at 1278, as follows:
“To
be responsible is to be answerable for the discharge of a duty or
obligation.” . . . In
determining whether “direction” in any particular case is responsible,
the focus is on whether the alleged supervisor is “held fully
accountable and responsible for the performance and work product of the
employees” he directs. . . . Thus,
in NLRB v. Adam [&] Eve
Cosmetics, Inc., 567 F.2d 723, 727 (7th Cir. 1977), for example, the
court reversed a Board finding that an employee lacked supervisory status
after finding that the employee had been reprimanded for the performance
of others in his Department.
The majority in
Providence
Hospital
, however, found it unnecessary to pass on the courts’ accountability
definition.
We have decided to adopt that definition.
We agree with the
circuit courts that have considered the issue and find that for direction
to be “responsible,” 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. This interpretation
of “responsibly to direct” is consistent with post–
Kentucky River
Board decisions that considered an accountability element for
“responsibly to direct.”
Thus, to establish
accountability for purposes of responsible direction, it must be shown
that the employer delegated to the putative supervisor the authority to
direct the work and the authority to take corrective action, if necessary.
It also must be shown that there is a prospect of adverse
consequences for the putative supervisor if he/she does not take these
steps.
Our dissenting
colleagues express the concern that our definition of “responsibly to
direct” will result in supervisory authority being extended to “every
‘person on the shop floor.’” In
our view, however, the emphasis on accountability contained in the
definition will prevent such an occurrence.
Significantly, the
concept of accountability creates a clear distinction between those
employees whose interests, in directing other employees’ tasks, align
with management from those whose interests, in directing other employees,
is simply the completion of a certain task.
In the case of the former, the dynamics of hierarchical authority
will arise, under which the directing employee will have, if and to the
extent necessary, an adversarial relationship with those he is directing.
The directing employee will rightly understand that his interests,
in seeing that a task is properly performed, are to some extent distinct
from the interests of those under his direction.
That is, in directing others, he will be carrying out the interests
of management – disregarding, if necessary, employees’ contrary
interests. Excluding from
coverage of the Act such individuals whose fundamental alignment is with
management is at the heart of Section 2(11).
C.
Independent Judgment
In
Kentucky River
, supra at 713, the Supreme Court took issue with the Board’s
interpretation of “independent judgment” to exclude the exercise of
“ordinary professional or technical judgment in directing less skilled
employees to deliver services.” That
is, in the Board’s then-extant view, even if the Section 2(11) function
is exercised with a substantial degree of discretion, there was no
independent judgment if the judgment was of a particular kind, namely,
“ordinary professional or technical judgment in directing less-skilled
employees to deliver services.” While
recognizing that the Board has the discretion to resolve ambiguities in
the Act,
the Supreme Court found that the Board had improperly inserted “a
startling categorical exclusion into statutory text that does not suggest
its existence.” The Court said that the Board had gone “beyond the
limits of what is ambiguous and contradicted what in our view is quite
clear.”
Id.
at 714. The Court held that
it is the degree of discretion
involved in making the decision, not the kind
of discretion exercised—whether professional, technical, or
otherwise—that determines the existence of “independent judgment”
under Section 2(11).
Id.
We are guided by these
admonitions.
Consistent with the
Court’s
Kentucky River
decision, we adopt an
interpretation of the term “independent judgment” that applies
irrespective of the Section 2(11) supervisory function implicated, and
without regard to whether the judgment is exercised using professional or
technical expertise. In
short, professional or technical judgments involving the use of
independent judgment are supervisory if they involve one of the 12
supervisory functions of Section 2(11).
Thus, for example, a registered nurse who makes the “professional
judgment” that a catheter needs to be changed may be performing a
supervisory function when he/she responsibly directs a nursing assistant
in the performance of that work. Whether
the registered nurse is a 2(11) supervisor will depend on whether his or
her responsible direction is performed with the degree of discretion
required to reflect independent judgment.
To ascertain the
contours of “independent judgment,” we turn first to the ordinary
meaning of the term.
“Independent” means
“not subject to control by others.”
Webster’s Third New
International Dictionary 1148 (1981).
“Judgment” means “the action of judging; the mental or
intellectual process of forming an opinion or evaluation by discerning and
comparing.” Webster’s
Third New International Dictionary 1223 (1981).
Thus, as a starting point, to exercise “independent judgment”
an individual must at minimum act, or effectively recommend action, free
of the control of others and form an opinion or evaluation by discerning
and comparing data. As more
fully explained below, however, these requisites are necessary, but not in
all instances sufficient, to constitute “independent judgment” within
the meaning of the Act. As we
said above, although we start with the “ordinary meaning of the words
used,” INS v. Phinpathya,
supra, 464
U.S.
at 189, we also consider the Act as a whole, its legislative history,
policy considerations, and judicial precedent.
Here, we must interpret “independent judgment” in light of the
contrasting statutory language, “not of a merely routine or clerical
nature.” It may happen that
an individual’s assignment or responsible direction of another will be
based on independent judgment within the dictionary definitions of those
terms, but still not rise above the merely routine or clerical.
We will expand upon and illustrate this point below, after a fuller
explanation of the meaning of “independent.”
In our view, and that
of the Supreme Court, actions form a spectrum between the extremes of
completely free actions and completely controlled ones, and the degree of
independence necessary to constitute a judgment as “independent” under
the Act lies somewhere in between these extremes.
As the Court indicated in
Kentucky River
, supra at 713–714, there are, at one end of the spectrum, situations
where there are detailed instructions for the actor to follow.
At the other end, there are other situations where the actor is
wholly free from constraints. In
determining the meaning of the term “independent judgment” under
Section 2(11), the Board must assess the degree
of discretion exercised by the putative supervisor.
Consistent with the
Court’s view, we find that a judgment is not independent if it is
dictated or controlled by detailed instructions, whether set forth in
company policies or rules, the verbal instructions of a higher authority,
or in the provisions of a collective-bargaining agreement.
Thus, for example, a decision to staff a shift with a certain
number of nurses would not involve independent judgment if it is
determined by a fixed nurse-to-patient ratio.
Similarly, if a collective-bargaining agreement required that only
seniority be followed in making an assignment, that act of assignment
would not be supervisory.
On the other hand, the
mere existence of company policies does not eliminate independent judgment
from decision-making if the policies allow for discretionary choices.
Thus a registered nurse, when exercising his/her authority to
recommend a person for hire, may be called upon to assess the
applicants’ experience, ability, attitude, and character references,
among other factors. If so,
the nurse’s hiring recommendations likely involve the exercise of
independent judgment. Similarly,
if the registered nurse weighs the individualized condition and needs of a
patient against the skills or special training of available nursing
personnel, the nurse’s assignment involves the exercise of independent
judgment. As Senator Flanders
remarked, the supervisor determines “who shall do [the job]” and in
making that determination the supervisor makes “[a] personal judgment
based on personal experience, training, and ability.”
As stated above,
Section 2(11) contrasts “independent judgment” with actions that are
“of a merely routine or clerical nature.”
Thus, the statute itself provides a baseline for the degree of
discretion required to render the exercise of any of the enumerated
functions of 2(11) supervisory. The
authority to effect an assignment, for example, must be independent, it
must involve a judgment, and the judgment must involve a degree of
discretion that rises above the “routine or clerical.”
See, e.g., J.C. Brock Corp.,
314 NLRB 157, 158 (1994) (quoting Bowne
of Houston, 280 NLRB 1222, 1223 (1986)) (“[T]he exercise of some
supervisory authority in a merely routine, clerical, perfunctory, or
sporadic manner does not confer supervisory status.”).
If there is only one obvious and self-evident choice (for example,
assigning the one available nurse fluent in American Sign Language (ASL)
to a patient dependent upon ASL for communicating), or if the assignment
is made solely on the basis of equalizing workloads, then the assignment
is routine or clerical in nature and does not implicate independent
judgment, even if it is made free of the control of others and involves
forming an opinion or evaluation by discerning and comparing data.
By contrast, if the hospital has a policy that details how a charge
nurse should respond in an emergency, but the charge nurse has the
discretion to determine when an emergency exists or the authority to
deviate from that policy based on the charge nurse’s assessment of the
particular circumstances, those deviations, if material, would involve the
exercise of independent judgment.
The dissent portends
that our analysis in assessing supervisory status under Section 2(11) may
exclude “most professionals” from coverage under the Act.
We disagree. An
individual is a professional employee under Section 2(12) of the Act if
he/she, inter alia, consistently exercises discretion and judgment in the
performance of “predominantly intellectual and varied” work.
On the other hand, an individual has the status of a supervisor
under Section 2(11) if he/she exercises independent judgment in connection
with one or more of the 12 specific functions listed by that provision of
the Act. For example, in the
case of assignment and direction, even if the charge nurse makes the
professional judgment that a particular patient requires a certain degree
of monitoring, the charge nurse is not a supervisor unless and until he or
she assigns an employee to that patient or responsibly directs that
employee in carrying out the monitoring at issue.
Thus, a charge nurse is not automatically a “supervisor”
because of his or her exercise of professional, technical, or experienced
judgment as a professional employee.
And it is equally true that his or her professional status does not
prevent the charge nurse from having statutory supervisory status if he or
she exercises independent judgment in assigning employees work or
responsibly directing them in their work.
To hold otherwise would come dangerously close to recommitting the
very error the Supreme Court corrected in
Kentucky River
.
D.
Persons Who Are Supervisors Part of the Time
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.
We find no reason to depart from this established precedent.
iii.
the case at bar
It is well established
that the “burden of proving supervisory status rests on the party
asserting that such status exists.”
Dean & Deluca New York,
Inc., 338 NLRB 1046, 1047 (2003); accord Kentucky
River, 532 U.S. at 711–712 (deferring to existing Board precedent
allocating burden of proof to party asserting that supervisory status
exists). The party seeking to
prove supervisory status must establish it by a preponderance of the
evidence. Dean
& Deluca, 338 NLRB at 1047;
Bethany
Medical
Center
, 328 NLRB 1094, 1103 (1999).
As discussed below, we
find that the Employer has failed to establish that its charge nurses
possess the authority to “responsibly to direct” employees within the
meaning of Section 2(11). However,
we also find that the Employer has adduced evidence sufficient to
establish that certain of its permanent charge nurses are supervisors
based on their delegated authority to assign employees using independent
judgment. Finally, we find
that the Employer has failed to establish that its rotating charge nurses,
as opposed to the 12 permanent charge nurses we find to be supervisors,
spend a regular and substantial portion of their work time performing
supervisory functions. Consequently,
we exclude only the 12 permanent charge nurses from the unit.
A.
Responsible Direction
The Employer alleges
that its charge nurses responsibly direct nursing staff by directing them
to perform certain tasks. As
part of their duties, the charge nurses are responsible for checking the
crash cart, taking an inventory of narcotics, and providing statistical
information to Heritage’s administrative staff for their shifts.
The charge nurses may undertake these tasks themselves or delegate
them to another staff member working that shift.
The delegation of these charge-nurse specific tasks is the sole
basis for the Employer’s claim that the charge nurses responsibly direct
the nursing staff.
We find that the
Employer failed to carry its burden of proving that the charge nurses
responsibly direct the nursing staff within the meaning of Section 2(11).
As explained above, to constitute “responsible”
direction the person performing the oversight must be held accountable for
the performance of the task, and must have some authority to correct any
errors made. The Employer has
not demonstrated that the charge nurses meet this accountability standard.
The record reveals no evidence that the charge nurses must take
corrective action if other staff members fail to adequately check the
crash cart, take the narcotics inventory, or provide the statistical
information to management. There
is no indication that the charge nurses are subject to discipline or lower
evaluations if other staff members fail to adequately perform these charge
nurse-specific tasks. Instead,
the Employer points to an instance in which it disciplined a charge nurse
for failing to make fair assignments.
This evidence, however, shows that the charge nurses are
accountable for their own
performance or lack thereof, not the performance of others,
and consequently is insufficient to establish responsible direction.
B.
Assignment
The record establishes
that charge nurses assign nursing personnel to patients.
At the beginning of each shift,
and as new patients are admitted thereafter, the charge nurses for each
patient care unit (except the emergency room) assign the staff
working the unit to the patients that they will care for over the duration
of the shift.
In the emergency room,
the process of assigning work operates differently.
There, the charge nurses have primary responsibilities to
“triage” the incoming patients and keep the other patient care units
in the hospital informed about possible admissions from the emergency
room. The charge nurses do
not assign nursing personnel to patients in this department.
Rather, the charge nurses assign employees to geographic areas
within the emergency room. In
making these assignments, the charge nurses do not take into account
employee skill or the nature or severity of the patient’s condition.
After these initial assignments, the employees then rotate
geographical locations within the emergency room among themselves on a
periodic basis.
The charge nurses’
assignment of patients to other staff and assignment of nurses to specific
geographic locations within the emergency room fall within our definition
of “assign” for purposes of Section 2(11).
In patient care units other than the emergency room, the actions of
the charge nurses involve assigning nurses to patients in rooms and
“giving significant overall tasks to an employee.”
The charge nurses in the emergency room designate employees to a
particular place. The charge
nurses’ assignments determine what will be the required work for an
employee during the shift, thereby having a material effect on the
employee’s terms and conditions of employment.
Unlike the case of Senator Flanders’ “straw bosses, leadmen,
and set-up men,” the charge nurse’s duties of assignment are not
“incidental” to the charge nurse’s own nursing duties.
The charge nurse has his or her own patients, but independently of
that, he or she will assign other nursing personnel to other patients.
Having found that the
charge nurses hold the authority to engage in one of the supervisory
functions of Section 2(11), our next step is to determine whether the
charge nurses exercise independent judgment in making these assignments.
C.
Independent Judgment
The charge nurses at
the hospital make their assignments by choosing between or among the
members of the staff available on each shift.
In addition to the charge nurse, there are two to six RNs on each
shift, depending on the time of day and the unit, and many of the units
also have licensed practical nurses or other licensed staff working each
shift. In the health care
context, choosing among the available staff frequently requires a
meaningful exercise of discretion. Matching
a nurse with a patient may have life and death consequences.
Nurses are professionals, not widgets, and may possess different
levels of training and specialized skills.
Similarly, patients are not identical and may require highly
particularized care. A charge
nurse’s analysis of an available nurse’s skill set and level of
proficiency at performing certain tasks, and her application of that
analysis in matching that nurse to the condition and needs of a particular
patient, involves a degree of discretion markedly different than the
assignment decisions exercised by most leadmen.
As discussed below, the record evidence establishes that a number
of the Employer’s charge nurses exercise independent judgment in
assigning other staff to patients and therefore possess supervisory
authority under Section 2(11) of the Act.
Employer witnesses
Brenda Theisen, Carolyn Carney, Sue Caines, and Nicholas Paul Mikaelian
Jr., and Petitioner witness Nancy Coffee principally testified about how
charge nurses at the hospital make their selections of staff for patient
assignments in units other than the emergency room.
The testimony of Employer witness Deborah Vogel and Petitioner
witness Carol Welch focused on the charge nurses’ assignments in the
emergency room.
As the nursing site
leader and director of patient care services at the Hospital, Brenda
Theisen has overall responsibility for nursing care delivered within the
hospital. She has been
associated in various nursing positions with the hospital since 1985, and
is very familiar with the assignment duties of charge nurses throughout
the hospital, particularly the intermediate care unit based on her 10
years of service working as a staff nurse and later as nurse manager in
that unit. According to her
testimony, the Employer’s general patient care policy guides the charge
nurses in making the patient care assignments at the hospital.
On its face, this written policy is not so detailed or thorough as
to be outcome determinative, but rather the policy permits the charge
nurses, in making assignments, to take into account “the ability of the
patient to do self care, degree of illness, complexity of nursing skills
required, and the competency and qualification of the staff.”
Theisen testified that the charge nurses can choose personnel for
assignments based on judgments as to the particular condition and medical
needs of a given patient and the skill sets or specialized training of the
available staff. Theisen
testified, for example, that a charge nurse would select a nurse “who is
particularly good [at peritoneal dialysis] to take care of [a] patient who
requires [such treatment]” or assign a nurse with a proficiency in
“vasoactive drug monitoring” to take care of a patient requiring such
attention. Theisen also
testified that charge nurses take into account a host of other factors in
making assignments, including the amount of time required to perform
specific patient care functions (which, in turn, would limit a nurse’s
availability to attend to other patients), competence levels, licensing,
personalities, and compatibility of staff members.
Like Theisen, Carolyn
Carney has a long history of working at the hospital, with 13 years of
service as a mental health staff nurse.
As the assistant clinical manager for the mental health unit,
Carney has the opportunity to observe new nurses perform charge nurse
duties during their training period.
Carney testified that based on her observations she determines when
the new nurses are ready to assume the role of charge nurse on their own.
As did Theisen, Carney testified that charge nurses are required to
make informed judgments about their patients and staff in order to make
patient care assignments. As
an example, she testified that if a patient in the behavioral health unit
had medical as well as psychiatric problems, the charge nurse could
exercise her discretion to assign an RN rather than a mental health worker
to that patient. Similarly,
Carney testified that charge nurses would take into account a myriad of
factors, such as the aggressiveness of the patient and a care giver’s
ability to respond to the same, in making assignment decisions.
Carney further testified that there is no written document that
would tell a charge nurse which particular staff to assign to which
patients on any given day.
Sue Caines, the
assistant clinical manager for the medical/surgical east and
medical/surgical west units since 2000, testified that charge nurses
consider specific patient conditions and needs, staff’s special training
or certifications, the continuity of care, and geographic location of the
patient’s room
in making assignments. She
testified, for example, that if a chemotherapy, orthopedic, or pediatric
patient is involved, the charge nurse considers whether the staff to be
assigned has the special training and can perform the necessary care for
that type of patient before making the assignments.
She further testified that a nurse is not consistently assigned to
patients in a certain set of rooms on either the medical/surgical east or
west units.
Nicholas Paul Makaelian
Jr., the assistant clinical manager for in-patient rehabilitation since
2000, testified about his experience and knowledge relating to charge
nurse’s assignments in his unit. He
has made staff assignments in his unit.
He testified that the charge nurse takes several factors—such as
the nature and severity of the patient’s condition, patients’
gender-based sensitivities, patient population number and length of stay,
and staff licensing—into consideration when making assignment decisions.
Nancy Coffee has worked
as an RN in the intermediate care unit for 10 years prior to the hearing.
She worked a part-time schedule allowing her to rotate into the
charge nurse position in her unit about one day per week.
She testified that the charge nurse in her unit makes staff
assignments based on several factors.
She explained that the charge nurse considers such factors as the
patient’s condition, continuity of care, gender and personality of the
staff and patients, and specific skills and abilities (especially if flex
nurses are temporarily assigned to her unit).
She testified that as charge nurse she reassessed patient care
assignments during a shift because of personality clashes between a
patient and a nurse.
Deborah Vogel, the
assistant clinical manager of the emergency room, and Carol Welch, an
emergency room RN, gave testimony about the assignment authority exercised
by the emergency room charge nurses.
They testified that the initial staff assignments in the emergency
room are geographically based. According
to their consistent testimony, the emergency room, unlike other in-patient
units of the Hospital, is arranged into three divisions and the charge
nurse assigns staff to a division (i.e. room) on a rotational basis to
equalize the workload. Their
testimony reveals that if one area of the emergency room becomes
particularly busy during the shift, the charge nurse directs the RN
assigned to the section for noncritical patients to assist the RN in the
busy section of the emergency room.
The Employer provided
evidence that the charge nurses at the hospital relied upon their
assessments of the patients’ conditions and needs, the nursing
personnel’s ability, and other factors they deemed relevant depending on
their unit. Witnesses
repeatedly testified that the charge nurses’ assignments are based on
“informed judgments” about the patients and staff.
For example, there was testimony that charge nurses take other
nurses’ individual expertise into account, such as assigning a nurse who
is particularly proficient in administering dialysis to a kidney patient.
In addition, other testimony shows that in making patient care
assignments, the charge nurses look to whether the available staff has
particular skill or training in dealing with certain kinds of patients,
such as chemotherapy, orthopedic, or pediatric patients.
There was further testimony that the charge nurse tries to assign
the same patients to the same staff if possible, to ensure continuity of
care and familiarity with particular patient needs.
The Employer
demonstrated that the charge nurses exercise discretion in deciding how to
allocate the resources available for the shift.
For example, there was testimony that if a charge nurse assigned a
patient who needed a blood transfusion to an RN, the charge nurse would
not assign that RN to any other seriously ill patients or a newly admitted
patient, because of the close monitoring required of a patient receiving
blood. The record also shows
that in the behavioral health unit, the charge nurses had to make
decisions about how to allocate the differently licensed staff.
For example, the charges nurses in the behavioral health unit had
to assess whether an RN should be assigned to a psychiatric patient who
also had medical problems, as opposed to assigning a mental health worker.
In addition, the witnesses testified that charge nurses had to
determine for themselves whether to take a patient load and how many
patients to take.
While in the past the
Board has found that mere equalization of workloads does not require the
exercise of independent judgment, here the Employer’s evidence shows
that the charge nurses make assignments that are both tailored to patient
conditions and needs and particular nursing skill sets, and a fair
distribution based upon as assessment of the probable amount of nursing
time each assigned patient will require on a given shift.
Equalizing workloads requires only that the putative supervisor be
able to assess the quantity of
work to be assigned. Here,
the charge nurses assess the quantity of work to be assigned, the relative
difficulty of the work involved, and the competence of the staff available
to do the work. Thus, the
charge nurse can decide that a particular task is very difficult for a
given nurse to perform, and that fact must be taken into account when
deciding whether to assign that nurse to other work.
Thus, the charge nurses assign each member of the nursing staff the
number and type of patients that each staff member is capable of handling
during the shift. In this
context, contrary to the dissent’s assertion, the process of equalizing
work loads at the hospital involves independent judgment.
Witnesses Theisen, Carney, Caines, and Makaelian testified that the
charge nurse considers a variety of factors in making a particular
assignment and must use his or her own independent judgment in weighing
those factors. Their
testimony was corroborated by the Petitioner witness Coffee’s testimony
showing that a balancing of several factors occur and no one factor
dictates the staff selections made by the charge nurse.
The Employer also has a
written policy for assigning nursing personnel to deliver care to
patients. The policy
statement provides that the charge nurses, in making assignments, should
take into account, i.e., “the ability of the patient to do self care,
degree of illness, complexity of nursing skills required, and the
competency and qualification of the staff.”
While this statement guides the charge nurses’ decision-making
process, it is not so detailed as to eliminate a significant discretionary
component involved in matching nursing personnel to patients.
First, the policy statement does not prescribe a formulary approach
that must be followed by the charge nurses.
Rather, the policy identifies factors that permit individual input
or evaluation based on a given charge nurse’s perspective of the
situation. That is, the
charge nurses draw on their own training and experience to assess such
things as patient acuity, skills complexity, and staff competency, and
they make certain judgments using these assessments.
The charge nurses have considerable latitude in weighing such
factors in reaching a final decision on how to assign nursing personnel.
Based on this cognitive process, an assignment on that shift will
be made. Second, the policy
statement does not articulate all the factors frequently considered by the
charge nurses in making assignments.
For example, the charge nurses typically take into account
continuity of care, even though that factor is not specified in the
Employer’s written policy statement on assignments.
Thus, the Employer has shown that, despite the existence of the
policy statement, the charge nurses still must exercise a substantial
degree of discretion in making assignments.
Phrased differently, the Employer has shown that charge nurses
exercise a degree of discretion sufficient to constitute independent
judgment, as that term is used in Section 2(11).
In our view, where the charge nurse makes an assignment based upon
the skill, experience, and temperament of other nursing personnel and on
the acuity of the patients, that charge nurse has
exercised the requisite discretion to make the assignment a
supervisory function “requir[ing] the use of independent judgment.”
At the hearing, the
parties stipulated that all the charge nurses at the hospital have the
same authority. However, we
are unwilling to accept such a broad stipulation where, as here, the
specific evidence is to the contrary.
The record shows that the charge nurse role in the emergency room
unit is structured in such a way as not to necessitate the exercise of
independent judgment. The
evidence shows that the role of the charge nurse differs in significant
respects from the role of the other charge nurses.
Most significantly, the emergency room charge nurses do not take
into account patient acuity or nursing skill in making patient care
assignments. Whereas the
record contains evidence of situations in other units in which the charge
nurses must assess individual professional or personal attributes of the
nursing staff, there is no similar evidence for the charge nurses in the
emergency room unit. Instead,
the charge nurses in the emergency room assign the nursing staff to
geographic areas of the emergency room.
Furthermore, a charge nurse in the emergency room testified without
contradiction that the staff nurses rotated assignments, without input
from the charge nurse. This
evidence does not show discretion to choose between meaningful choices on
the part of the charge nurses in the emergency room.
Therefore, we find that
the Employer failed to demonstrate that the charge nurses in the emergency
room unit exercise independent judgment in making patient care
assignments. Although making
patient care assignments is a primary function of the charge nurse in the
rest of the facility, the emergency room charge nurses’ primary
functions are to perform a triage and to keep other units within the
facility informed of possible admissions from the emergency room. A comparison of the
assignments made by charge nurses in the rest of the facility with the
assignments made by the emergency department charge nurses serves to
emphasize that the former perform supervisory functions with independent
judgment and the latter do not. Because,
as discussed above, the exercise of independent judgment is a necessary
element of establishing supervisory status, we find that the Employer has
failed to prove that the charge nurses in the emergency room are
supervisors, despite the parties’ stipulation.
We shall include the emergency room charge nurses in the unit.
D.
“Rotating” Charge Nurses
As with other aspects
of establishing supervisory status, the burden is on the Employer who
asserts supervisory status to prove regularity and substantiality, i.e.,
the charge nurse spends a regular and substantial portion of his/her work
time performing supervisory functions.
We find that the Employer has carried its burden of proof with
respect to the 12 permanent charge nurses that are assigned to the
following 5 units: behavioral health, intensive care, intermediate care,
medical/surgical east, and medical/surgical west.
The Employer offered uncontradicted testimony that the permanent
charge nurses in those units serve in that capacity on every shift they
work. Indeed, the permanent
charge nurses do not really fit the definition of a “rotating”
supervisor. They serve
full-time as supervisors on a regular basis.
These RNs are Linda L. Bennett, Valerie Christensen, Kimberly
Clark, Pat Conley, Elizabeth Daupan, Susan H. Dey, Vicky Lowe, Leo Moises,
Suzanne Mudge, Deborah L. Murphy, Lourdes Pacot, and Liza E. Saclayan.
Accordingly, we shall exclude these individuals from the unit.
In contrast, the
Employer has failed to demonstrate regularity for the “rotating”
charge nurses assigned to behavioral health, intensive care, intermediate
care, medical/surgical east, medical/surgical west, post-anesthesia
care/recovery, and rehabilitation units. The Employer offered only
superficial evidence as to the regularity with which these 112
nonpermanent or “rotating” charge nurses serve in the charge nurse
role. The record reveals that
none of the units involved have an established pattern or predictable
schedule for when and how often RNs take turns in working as charge
nurses.
In those units where the RNs decide among themselves who will serve
as charge nurses, the record does not demonstrate any pattern for these
selections. In those units
where the managers are in charge of making assignments, the managers
likewise do not use any particular system or order for assigning charge
nurses.
The following examples
illustrate this lack of regularity. Most
RNs work one of three shifts—day, afternoon, or midnight.
In intermediate care unit, a permanent charge nurse serves in that
capacity for 10 out of 14 days each 2-week pay period on the midnight
shift and the other RNs rotate into the charge nurse position for the
remaining 4 days. On the day
shift in intermediate care unit, the RNs rotate the charge nurse position
when the assistant nurse manager, a stipulated supervisor who usually does
the charge nurse duties, is not there.
In the behavioral health unit, the RNs on the day shift decide
among themselves at the beginning of each shift who will be the rotating
charge nurse for that day, but there is no information as to whether they
follow any particular pattern in making these designations.
In medical/surgical east unit, the RNs on the day shift keep a log
of who served as charge nurse to determine the rotation, and on the night
shift the RNs decide among themselves who will be charge nurse for that
night. In medical/surgical
west unit, the day shift nurses decide among themselves who will be charge
nurse for that day. On the
afternoon shift in that same unit, two RNs generally trade shifts as
charge nurse, unless they ask one of the other RNs to fill in when they
want a break. In the
rehabilitation unit, the assistant clinical manager, a stipulated
supervisor, chooses in no particular order who will serve as charge nurse
for each shift. Likewise, for
the remaining shifts and units not mentioned above, no further evidence of
a pattern or structured schedule was offered by the Employer.
In the absence of a
sufficient showing of regularity for assigning the “rotating” charge
nurses, we need not decide whether these RNs possess the “rotating”
charge nurse duties for a “substantial” part of their work time.
Accordingly, we shall include in the unit, as non-supervisors, the
112 RNs who are not permanent charge nurses but rather irregularly rotate
through the charge nurse position at the hospital.
Conclusion
In interpreting the
statutory terms “assign,” “responsibly to direct,” and
“independent judgment” as set forth in this decision, we have
endeavored to provide clear and broadly applicable guidance for the
Board’s regulated community. Our
dissenting colleagues predict that our definitions will “create a new
class of workers” who are excluded from the Act but do not exercise
“genuine prerogatives of management.”
We anticipate no such sea change in the law, and will continue to
assess each case on its individual merits.
In deciding this case, moreover, we intentionally eschewed a
results-oriented approach; rather, we analyzed the terms of the Act and
derived definitions that, in our view, best reflect the meanings intended
by Congress in passing Section 2(11) and would best serve to effectuate
the underlying purposes of the Act.
If our adherence to the text of and intent behind the Act should
lead to consequences that some would deem undesirable, the effective
remedy lies with the Congress.
In
this particular case, we have concluded that Linda L. Bennett
(behavioral health unit), Valerie Christensen (behavioral health unit),
Kimberly Clark (behavioral health unit), Pat Conley (medical/surgical
east), Elizabeth Daupan (behavioral health unit), Susan H. Dey (behavioral
health unit), Vicky Lowe (intermediate care unit), Leo Moises (intensive
care unit), Suzanne Mudge (medical/surgical west), Deborah L. Murphy
(behavioral health unit), Lourdes Pacot (behavioral health unit), and Liza
E. Saclayan (behavioral health unit) are
statutory supervisors. Accordingly,
we shall remand this case to the Regional Director for further processing
in accordance with this decision.
ORDER
The National Labor
Relations Board orders that this proceeding be remanded to the Regional
Director to open and count the ballots of all eligible voters, to prepare
a tally of ballots, and to issue the appropriate certification or take
other appropriate action in accord with this Decision and Order.
Dated,
Washington
,
D.C.
September 29, 2006
______________________________________
Robert
J. Battista,
Chairman
______________________________________
Peter
C. Schaumber,
Member
______________________________________
Peter
N. Kirsanow,
Member
(seal)
National
Labor Relations Board
Members
Liebman and Walsh, dissenting in part and concurring in part in the
result.
Today’s decision
threatens to create a new class of workers under Federal labor law:
workers who have neither the genuine prerogatives of management, nor the
statutory rights of ordinary employees.
Into that category may fall most professionals (among many other
workers), who by 2012 could number almost 34 million, accounting for 23.3
percent of the work force.
“[M]ost professionals have
some supervisory responsibilities in the sense of directing another’s
work—the lawyer his secretary, the teacher his teacher’s aide, the
doctor his nurses, the registered nurse her nurse’s aide, and so on.”
If the National Labor
Relations Act required this result—if Congress intended to define
supervisors in a way that swept in large numbers of professionals and
other workers without true managerial prerogatives—then the Board would
be dutybound to apply the statute that way.
But that is not the case. The
language of the Act, its structure, and its legislative history all point
to significantly narrower interpretations of the ambiguous statutory terms
“assign . . . other employees” and “responsibly to direct them”
than the majority adopts. The
majority rejects what it calls a “results-oriented approach” in
interpreting the Act. But the
reasonableness of the majority’s interpretation can surely be tested by
its real-world consequences. Congress
cared about the precise scope of the Act’s definition of
“supervisor,” and so should the Board.
Instead, the majority’s decision reflects an unfortunate failure
to engage in the sort of reasoned decision-making that Congress expected
from the Board, which has the “primary responsibility for developing and
applying national labor policy.” NLRB
v. Curtin Matheson Scientific, Inc., 494
U.S.
775, 786 (1990).
I.
This case involves the
interpretation of three terms incorporated in Section 2(11) of the Act,
the statutory definition of a “supervisor”: (1) “assign . . . other
employees;” (2) “responsibly to direct them [other employees];” and
(3) “independent judgment.”
There would seem to be no dispute that these terms are ambiguous
and thus open to interpretation, as the Supreme Court has observed.
Where statutory
language is ambiguous, it is not enough to consult the dictionary. As the
Supreme Court has recently explained:
The
definition of words in isolation . . . is not necessarily controlling in
statutory construction. A
word in a statute may or may not extend to the outer limits of its
definitional possibilities. Interpretation
of a word or phrase depends upon reading the whole statutory text,
considering the purpose and context of the statute, and consulting any
precedents or authorities that inform the analysis.
Dolan
v.
U.S.
Postal Service, ___
U.S.
___, 126 S.Ct. 1252, 1257 (2006). See,
e.g., NLRB v. Lion Oil Co., 352
U.S.
282, 288–289 (1957) (articulating similar principles with respect to
interpretation of National Labor Relations Act).
In this case, a narrow
focus on dictionary definitions of individual words in isolation leads the
majority astray.
If we read the whole
statutory text, consider the context and purpose of the National Labor
Relations Act, and consult authoritative legislative history, then the
majority’s statutory interpretation is revealed as untenable.
Despite its claim to the contrary, the majority proceeds as if the
“ordinary meaning of the words used” in Section 2(11) can dictate a
choice among potential alternative interpretations.
But where the words of a statute are ambiguous, the text alone
cannot tell us which interpretation is best and why.
The majority never offers a clear and carefully reasoned
explanation of its choices.
Certainly, we are
constrained by the decisions in Kentucky
River and Health Care &
Retirement, supra, where the Supreme Court rejected the Board’s
prior attempts to devise an approach to supervisory issues under the Act,
which focused on the statutory phrases “in the interest of the
employer” (Health Care &
Retirement) and “independent judgment” (Kentucky
River).
The Court’s decisions require respect for the text and structure
of Section 2(11), which the Board’s interpretation may not contradict.
But the Court did not dictate the largely dictionary-driven
approach taken by the majority. Nor
did it hold that the Board may not be guided by the structure of the Act
as a whole, by its legislative history, or by policy concerns.
Indeed, in the words of one academic commentator,
Kentucky River
has
reopened, rather than settled, the issue of where and how to draw the line
between “employees” and “supervisors”. . . . At
the least, it will entail a change in the Board’s analytical
methodology. . . .
Weiss
, Kentucky River at the
Intersection, supra, at 395.
As will become clear,
the majority’s interpretations of “assign . . . other employees” and
“responsibly to direct” are flawed purely with reference to the text
and structure of the statute. Those
interpretations violate the syntax of Section 2(11), as well as the canons
of statutory construction.
The majority fails, as
well, to take account of the Act’s explicit recognition that
professionals, and certain persons who perform work under the supervision
of professionals, may be statutory employees—a
factor that surely weighs against a broad interpretation of supervisory
functions as defined in the statute, given the general oversight that
professionals typically exercise over less-skilled employees.
In turn, the majority
gives little, if any, weight to the context and purpose of the Act’s
definition of a supervisor, as reflected in the legislative history of the
Taft-Hartley Act, which overruled the Supreme Court’s decision in Packard
Motor Car Co. v. NLRB, 330 U.S. 485 (1947), and added Section 2(11) to
the statute.
The definitive report of the Senate Committee on Labor and Public
Welfare explained that:
A recent development
which probably more than any other single factor has upset any real
balance of power in the collective-bargaining process has been the
successful efforts of labor organizations to invoke the Wagner Act for
covering personnel, traditionally regarded as part of management, into
organizations composed of or subservient to the unions of the very men
they were hired to supervise.
.
. .
In drawing an amendment
to meet this situation, the committee has not been unmindful of the fact
that certain employees with minor supervisory duties have problems which
may justify their inclusion in that act.
It therefore distinguished between straw
bosses, leadmen, set-up men, and other minor supervisory employees, on
the one hand, and the supervisor
vested with such genuine management prerogatives as the right to hire
or fire, discipline, or make effective recommendations with respect to
such action.
.
. .
It is natural to expect
that unless this Congress takes action, management will be deprived of the
undivided loyalty of its foremen.
S. Rep. No. 105, 80th
Cong., 1st Sess. 4-5 (1947) (emphasis added), reprinted in National Labor
Relations Board, Legislative
History of the Labor Management Relations Act, 1947 410-411 (1985)
(cited as Legislative History).
The legislative history
explains that Congress “exercised great care, desiring that the
employees . . . excluded from the coverage of the act be truly
supervisory.” Legislative History,
supra at 425 (Senate Report No. 105) (emphasis added).
The Board must be sensitive, then, to the distinction between
“minor supervisory employees” (persons Congress intended to treat as
employees) and the equivalent of “foremen” (persons Congress intended
to exclude from statutory coverage).
That distinction is especially significant with respect to the
supervisory function of “assign[ing] ... other employees.”
With respect to the statutory phrase “responsibly to direct,”
in turn, there is authoritative legislative history that is directly on
point, illuminating a phrase that was added to the bill by a floor
amendment in the Senate and that must be regarded as the sponsor’s own
term of art and interpreted in that light.
As we will explain, our
disagreement with the majority on the interpretation of “assign”
focuses on the treatment of task assignments made to employees, which we
view as a quintessential function of the minor supervisors whom Congress
clearly did not intend to cover
in Section 2(11). As to
responsible direction, we differ principally concerning the scope and
scale of the authority required to satisfy the statutory test.
In our view, the phrase “responsibly to direct” was intended to
reach persons who were effectively in charge of a department-level work
unit, even if they did not engage in the other supervisory functions
identified in Section 2(11). Our
differences with the majority might seem arcane and insignificant.
But the real-world consequences of the competing interpretations,
in terms of who is (and is not) a statutory supervisor, could prove
dramatic.
ii.
The majority’s
approach seems based on the premise that any
statutory interpretation that does not contradict the text and
structure of the Act is sufficient, even if competing interpretations more
accurately reflect original Congressional intent and better serve the
policy interests underlying the Act.
More is required to satisfy an administrative agency’s obligation
to engage in reasoned decision-making.
As we explain next, the majority’s reading of the key terms is
both inconsistent with the statutory text and structure and inferior to
alternative interpretations, if other indications of Congressional intent
are considered.
A.
“Assign . . . other employees”
“The Board has never
fully resolved whether ‘assignment’ is limited to assigning individual
workers to shifts, departments, and job classifications, or whether it
also reaches assigning individual tasks to a worker.”
Today, the majority endeavors to resolve that question, by holding that
assignment does reach at least some task assignments.
Careful consideration demonstrates that the majority’s
interpretation of the statutory phrase “assign . . . other
employees” is flawed in several respects, at least insofar as it
addresses task assignment. The
majority’s interpretation violates the syntax of Section 2(11), it is
inconsistent with the canon of statutory construction against redundancy,
and it leads to treating “minor supervisory employees” as statutory
supervisors, a result Congress disclaimed.
Depending on its application, the majority’s interpretation
threatens to exclude almost all hospital nurses—as well as countless
professionals and others who oversee less-skilled coworkers—from the
protection of the Act.
1.
The majority begins by
observing that the “ordinary meaning of the term ‘assign’ is ‘to
appoint to a post or duty.’” It
then interprets the term in its context, as one of a series of supervisory
functions listed in Section 2(11) that share the “common trait of
affecting a term or condition of employment.” Accordingly, it construes
“assign” to refer to the act of:
designating an employee
to a place (such as location, department, or wing); appointing an employee
to a time (such as a shift or overtime period); or giving significant
overall duties, i.e., tasks, to an employee.
With respect to task
assignments, the majority distinguishes between a “designation of
significant overall duties” and an “ad hoc instruction that the
employee perform a discrete task.”
But the majority’s decision makes clear that even a single
assignment of daily duties—in contrast, for example, to designating the
employee’s job classification, which entails the expected performance of
certain tasks during the employee’s tenure—would satisfy its test.
(Moreover the majority holds that, for purposes of defining the
supervisory function responsible direction, “direction may encompass ad
hoc instructions to perform discrete tasks.”
Contrary to the
majority, Section 2(11) cannot properly be read to encompass task
assignments, whether the assignment of discrete individual tasks or of
significant overall tasks (in the majority’s broad sense).
Using the dictionary
definition of “assign” adopted by the majority (“to appoint to a
post or duty”), the more natural reading would limit the phrase
“assign employees” to a significant employment decision on the order
of determining (1) an employee’s position with the employer (in most
settings, identified by job classification); (2) designated work site
(i.e., facility or departmental unit), or (3) work hours (i.e., shift).
This limited reading better fits the idea of appointing an employee
to a post or duty.
It is further supported
by the syntax of the whole statutory phrase: “assign . . . other
employees.” As the Supreme
Court’s
Kentucky River
decision confirms, the word “employees” serves as the grammatical
object of each of the verbs identifying supervisory functions in Section
2(11).
In short, it must be the employees
who are being assigned, not the tasks. In common speech, one generally
refers to assigning tasks to
employees. In the healthcare
sector, for example, nursing tasks are commonly distributed by assigning
patients to individual
nurses and other direct care staff.
In the present case, notably, the Employer’s written assignment
policy states that “[a]n RN must assign the care of each
patient to other members of the healthcare team”
(E. Exh. 7; emphasis added). Its listing of charge nurse responsibilities
similarly indicates that charge nurses “make daily pt [patient]
assignments to RNs, LPNs and NA
[nursing assistant] and Secretary” (E. Exh. 5; emphasis added).
2.
Reading the phrase
“assign . . . other employees” in its statutory context confirms that
it contemplates something beyond mere task assignment.
The majority recognizes the need for such a contextual
interpretation, but its actual reading misses the mark.
The majority asserts that each of the supervisory functions listed
in Section 2(11)—”hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or
discipline”—”affect[s] a term or condition of employment.”
In fact, the listed functions do more.
The terms in this series speak either to altering employment tenure
itself (“hire,” “suspend,” “lay off,” “recall,”
“discharge”) or to actions that affect an employee’s overall status
or situation (“promote,” “reward,” “discipline,”
“transfer”).
Viewed as a member of
this series, “assign” must denote authority to determine the basic
terms and conditions of an employee’s job, i.e., position, work site, or
work hours. Indeed, no other Section 2(11) duty in the series addresses
this elementary supervisory function.
“Assign” is the corollary to the authority to “transfer”
employees (i.e., to reassign
them to a different classification, location, or shift).
By contrast, the act of
assigning tasks—whether on a daily basis or task-by-task—from
among those already included within an employee’s overall job
responsibilities effects no real change in basic terms and conditions of
employment. That employees
may perceive certain tasks to be more onerous or more desirable is a fact
that appropriately is considered in relation to the Section 2(11)
authority to “discipline” or “reward.”
3.
As a matter of
statutory construction, treating task assignments as a supervisory
function leads to unacceptable results.
First, it violates the
canon against redundancy.
Assigning tasks to an
employee is essentially the same thing as directing
the employee to do them. As the Board has observed, the “distinction
between assignment and direction in these circumstances is unclear.”
Providence
Hospital
, 320 NLRB 717, 727 (1996). “Certainly there are times when the
assignment of tasks overlaps with direction.
For example, ordering a nurse to take a patient’s blood pressure
could be viewed as either assigning the nurse to that procedure or
directing the nurse in the performance of patient care.”
Id.
By defining “assign” to
mean the assignment of tasks, the majority makes the statutory term
“direct” (for which it never offers a specific definition)
superfluous. Indeed, if every
worker who could assign tasks to an employee were a statutory supervisor,
then (as discussed below) Senator Flanders would surely have felt no need
to close the perceived loophole in Section 2(11) by adding the phrase
“responsibly direct.”
Senator Flanders observed that in some workplaces, many of the
other supervisory functions listed were performed by personnel officials.
But it is hard to imagine a workplace where a personnel manager,
away from the shop floor, made mere task assignments.
The majority’s interpretation, then, subverts the clear intent of
Congress to base supervisory status on only an assignment to a position,
work site, or shift and/or on a limited kind of direction, as reflected in
the phrase “responsibly to direct.”
Second, the
majority’s construction is inconsistent with the Congressional intent to
define “supervisor” to include “foremen,” but to exclude “straw
bosses, leadmen, set-up men, and other minor supervisory employees,” as
the Senate committee report explained.
As evidenced in the Board’s pre-Taft-Hartley Act case law
(including decisions cited positively in the Senate report), distributing
the day’s work and assigning tasks to a crew of employees was typical of
the type of responsibility held by those “minor supervisors” who were
to remain within the Act’s protection.
The defining characteristic of such minor supervisors, in turn, was
that their supervisory duties were incidental to their production duties,
in contrast to foremen. A
contemporary reference work, for example, defined “straw boss” as:
A term applied to a
worker who takes a lead in a team or gang, usually small in number,
including himself, performing all the duties of the other workers in the
gang. His supervisory
functions are incidental to the production duties he performs.
U.S.
Employment Service, Dictionary of
Occupational Titles 1506 (1949). Workers who have no supervisory
duties except for assigning tasks necessarily will spend the overwhelming
part of their workday engaged in other, non-supervisory work—as is true
of the charge nurses here.
They can hardly be regarded as the equivalent of foremen,
supervisors who, when the Taft-Hartley Act was passed, were “expected to
perform manual work only in emergency and training situations.”
G. Gardiner & R. Gardiner, Vitalizing
the Foreman’s Role in Management 59 (1949).
Finally, and
significantly, the majority’s interpretation of “assign” as
encompassing the daily assignment or distribution of tasks (or, in the
healthcare context, patients) threatens to sweep almost all staff nurses
outside of the Act’s protection.
Presumably, most nurses—as well as other professionals who work
with assistants or as team leaders—routinely play a role in assigning
out the day’s work. The
record in this case, for example, indicates that all hospital staff nurses
have authority to give task assignments to other team members, such as
nursing assistants and mental health workers.
This is not an anomaly. It
is commonplace in institutional health care settings for staff nurses to
work with assistive personnel, such as nursing aides, to whom they assign
and delegate work.
As of 2004, there were 2.2 million registered nurses, of whom 50
percent are employed in private sector hospitals, and another 6.5 percent
are employed in nursing homes. Another 370,000 licensed practical nurses
(“LPNs”) are employed in hospitals and nursing homes.
It seems highly unlikely, to say the least, that Congress would
take away with one hand (the definition of “supervisor”) what it gave
with another (the explicit statutory coverage of “professional
employees”). And even if
the statutory text permitted such a drastic result, what reasons of
federal labor policy would support it?
Denying the Act’s protection to workers who have only minor
supervisory responsibilities, and who are closely aligned not with
management but with rank-and-file employees, is both contrary to
Congressional intent and a recipe for workplace discord.
The majority says that it is “not swayed to abandon [its]
interpretation by predictions of .
. . what the result in any given case will be.”
But the Board’s proper function in this case, one of the most
important in its history, must be to calculate the possible consequences
of its reading of the Act and to weigh them against the evidence of
Congressional intent. Nothing
in the legislative history of the Taft-Hartley Act suggests that Congress
intended to greatly broaden the scope of supervisory status, as it was
understood at the time. Rather,
as explained, it sought to exclude from statutory coverage an already
well-recognized segment of supervisory employees, foremen and their
equivalents. The majority’s
interpretation threatens to go much farther.
B. “Responsibly
to direct”
It is because the
“gradations of authority ‘responsibly to direct’ the work of others
from that of general manager or other top executive to ‘straw boss’
are so infinite and subtle that of necessity a large measure of informed
discretion is involved in the exercise by the Board of its primary
function to determine those who as a practical matter fall within the
statutory definition of a ‘supervisor.’” NLRB
v. Swift & Co., 292 F.2d 561, 563 (1st Cir. 1961).
The majority fails to exercise that discretion adequately here.
1.
The majority’s
discussion of the statutory phrase “responsibly to direct” narrowly
focuses on the meaning of the word “responsibly.”
It proposes a statutory test that rests on finding (1) that “the
person performing the oversight 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 are not performed
properly;” and (2) that the individual in question has “the authority
to take corrective action, if necessary.”
This test, the majority explains, is derived from federal appellate
court decisions and is “consistent with the ordinary meaning of the word
[‘responsibly’].”
The majority’s
approach is puzzling given its recognition of the origin of the statutory
phrase: a floor amendment in the Senate, made by Senator Ralph Flanders of
Vermont
. He explained what the
language was intended to accomplish:
[T]he definition of
“supervisor” in this act seems to me to cover adequately everything
except the basic act of supervising.
Many of the activities described in paragraph (11) are transferred
in modern practice to a personnel manager or department.
The supervisor may recommend more or less effectively, but the
personnel department may, and often does, transfer a worker to another
department on other work instead of discharging, disciplining or otherwise
following the recommended action.
In
fact, under some modern management methods, the supervisor might be
deprived of authority for most of the functions enumerated and still have
large responsibility for the exercise of personal judgment based on
personal experience, training, and ability.
He is charged with the responsible direction of his department and
the men under him. He
determines under general orders what job shall be undertaken next and who
shall do it. He gives
instructions for its proper performance.
If needed, he gives training in the performance of unfamiliar
tasks to the worker to whom they are assigned.
Such
men are above the grade of “straw bosses, lead men, set-up men, and
other minor supervisory employees” as enumerated in the report [the
report of the Senate Committee].
Their essential managerial duties are best defined by the words, “direct
responsibly,” which I am suggesting.
In
a large measure, the success or failure of a manufacturing business
depends on the judgment and initiative of these men.
The top management may
properly be judged by its success or failure in picking them out and in
backing them up when they have been properly selected.
Legislative
History, supra, at 1303; 93 Cong.
Rec. 4804 (May 7, 1947) (emphasis added).
In light of this
legislative history, the concededly ambiguous phrase “responsibly to
direct” must be recognized as a term of art and interpreted in light of
Senator Flanders’ statement on the floor.
That statement (and not the dictionary or later judicial decisions)
provides the best guide to Congressional intent.
2.
What Senator
Flanders’ statement demonstrates, in turn, is that the phrase
“responsibly to direct” refers to the general supervisory authority
delegated to foremen overseeing an operational department and the
accountability that goes with it, in contrast to the kind of one-on-one
task direction (mistakenly covered by the majority’s interpretation of
“assign”) that would be given by minor supervisory employees (persons
who themselves answered to the foreman) to other employees.
What is missing from the majority’s interpretation, then, is the
recognition of the scope and scale of the supervisory function that
“responsibly to direct” was intended to capture.
More than simply the responsible oversight of another worker’s
performance of a task is involved.
Rather, the test
proposed by the General Counsel in this case accurately captures the
intent of Congress in articulating the analytical factors for determining
the existence of “responsibly to direct” authority:
An individual
responsibly directs with independent judgment within the meaning of
Section 2(11) when it is established that the individual:
a.
has been delegated substantial authority to ensure that a work unit
achieves management’s objectives and is thus “in charge”;
b.
is held accountable for the work of others; and
c.
exercises significant discretion and judgment in directing his or
her work unit.
This test differs
crucially from the majority’s construction in requiring oversight with
respect to a work unit.
3.
Contrary to the
majority’s apparent suggestion, the aim of the
Flanders
amendment was not to cover
every “person on the shop floor” with any sort of supervisory
authority, but rather to insure that foremen
would be treated as statutory supervisors, even if they lacked the types
of supervisory authority listed in the bill when it came to the Senate
floor. The acknowledged
purpose behind the Taft-Hartley Act’s express exclusion of supervisors
was to overturn the result of the Supreme Court’s decision in Packard
Motor Car, supra, which had upheld the rights of foremen to organize
under the provisions of the Wagner Act.
Replete in the legislative history are statements demonstrating
that it was “unions of foremen” that Congress was intent on
addressing. See Legislative History,
supra, at 299, 304–307, 410–411, 539, 603–604, 1008–1009, and
1496. Senator Flanders’
statement echoed the Board’s own contemporaneous description of the
authority and duties of foremen in the Packard
Motor Car case, which emphasized the foreman’s reduced authority
over personnel matters such as hiring, firing, and discipline, coupled
with his critical oversight role in the production process.
See Packard Motor Car Co.,
61 NLRB 4, 10-12 (1945), enfd. 157 F.80 (6th Cir. 1946), affd. 330
U.S.
485 (1947).
The
Flanders
amendment, then, clearly sought to capture the essential elements of the
manufacturing foreman’s authority and responsibility, with regard to
“responsible direction of his department
and the men under him.” Legislative
History, supra, at 1303 (emphasis added).
A contemporary treatise described the foreman as “a manager of a
business within a business,” observing that “[i]n his department he is
responsible for a considerable investment in equipment, work space,
material, and labor.” Vitalizing
the Foreman’s Role in Management, supra, at 4.
Similar descriptions were commonplace at the time.
See, e.g., U.S. Dept. of Labor, Div. of Labor Standards, The
Foreman’s Guide to Labor Relations (Bulletin No. 25) 3–4 (1944).
The foreman, in turn,
was distinct from the “minor supervisory employees” referred to in the
Senate committee report. As
explained, such workers may have directed certain other employees in the
performance of their tasks—and might well have been held accountable in
that connection. But their
supervisory duties were incidental to their own productive work, and they
were not in charge of a work unit, nor did they exercise (in Senator
Flanders’ words) “essential managerial duties,” in the same sense as
the foreman, their superior.
As the legislative
history makes clear, the statutory phrase “responsibly to direct” was
premised on the management model then common in manufacturing.
The Board’s task, of course, is to apply the Act today and to all
economic sectors. It is not
free, for example, to hold that the responsible-direction test can be
satisfied only in workplaces that are indistinguishable from the
automobile-manufacturing plants of the 1940s.
But, in determining whether a putative supervisor has the authority
“responsibly to direct” other employees, the Board must consider that
person’s place in the supervisory hierarchy of the workplace and
determine whether her function is analogous to that of the traditional
foreman. The majority’s
narrow test fails to do so and thus fails to capture the intent of
Congress.
The majority’s
interpretation of responsible direction eliminates the Congressionally
intended distinction between individuals with “essential managerial
duties” and those with only “minor supervisory” duties. Under the
majority’s test, any worker who instructs another to perform a task, no
matter how minor it may be, would be a statutory supervisor, if he
exercises independent judgment and is held accountable by the employer in
connection with that instruction. Thus, in
Golden
Crest
Healthcare
Center
, 348 NLRB No. 39 (2006), issued today, the majority’s application of
its test leads to a conclusion that nurses who tell certified nursing
assistants “to clip residents’ toenails and fingernails, to empty
catheters, or to change an incontinent resident” would be supervisors,
so long as the responsibility and independent judgment elements of the
majority’s definition were satisfied—and employers eager to take
nurses out of the Act’s protection might well choose to hold them
accountable for such minor matters. By taking such an expansive approach
to the interpretation of responsible direction, the majority dramatically
increases the number of potential statutory supervisors. Indeed, it is
difficult to see who would be left in the category of minor supervisory
employees that Congress clearly intended to protect.
C. “Independent
Judgment”
Under Section 2(11),
the exercise of supervisory authority must “require[] the use of
independent judgment” before a person will be deemed a statutory
supervisor. We agree with the
majority’s view that, in the wake of the Supreme Court’s decisions in
this area, the Board must apply a uniform test with respect to
“independent judgment,”
irrespective of the
Section 2(11) supervisory function implicated, and without regard to
whether the judgment is exercised using professional or technical
expertise.
The majority’s
proposed test, in turn, is a reasonable one.
First, “to exercise ‘independent judgment’ an individual must
at minimum act, or effectively recommend action, free of the control of
others and form an opinion or evaluation by discerning and comparing
data.” Second, even if this
standard is met, the individual’s action or effective recommendation
must not be “of a merely routine or clerical nature” (in the words of
the Act).
The difficulty here
lies not in the statement of a general test, but in the application of
that test to specific cases. What
does it mean, for example, for a putative supervisor to act “free of the
control of others”? We
agree with the majority that “judgment is not independent if it is
dictated or controlled by detailed instructions, whether set forth in
company policies or rules, the verbal instructions of a higher authority,
or in the provisions of a collective-bargaining agreement.”
The very existence of policies, rules, and instructions surely
demonstrates that a putative supervisor is
subject to the control of others, insofar as he is neither the author of
those standards or the final arbiter of their meaning.
And because rules are rarely self-executing—apart from applying
mathematical formulas—it seems inevitable that there will often be some
room for judgment in interpreting them.
The question is how much and what measure of discretion is
sufficient. The majority
properly acknowledges that “[t]here may be instances where instructions
do not strictly dictate a sequence of actions, but nonetheless constrain
the exercise of discretion below the statutory threshold.”
We see no way to
resolve these issues except on a case-by-case basis, rather than through
hypothetical examples. The
Board’s determinations in specific cases should be guided not by the
dictionary or abstract considerations, but by practical realities viewed
in light of the Congressional intent to exclude foremen and their
equivalent, but not minor supervisory employees, from the Act.
We take no view, then, on the specific examples offered by the
majority, except to disagree that, in the health care setting, assigning
patients to nursing personnel or making other task assignments confers
supervisory status, even if it is done using independent judgment.
iii.
Applying our
interpretations of “assign . . . other employees” and “responsibly
to direct,” none of the charge nurses whose status is at issue in this
case are statutory supervisors. This case illustrates well the gradations
of supervisory authority possible in a workplace and why the Board must
carefully take them into account, if it wants to be faithful to
Congressional intent.
A.
In each of the
Employer’s hospital units, there exists an established hierarchy of
admitted supervisors.
At the top level in the
hospital is the nurse site leader, a position comparable to a director of
nursing in other hospitals.
Below this position are
clinical supervisors who rotate serving as the principal nursing
supervisor and highest-ranking administrative officer during holidays,
weekends and off-hour shifts when the nurse site leader is not present.
These clinical supervisors make daily rounds of all the units and
are responsible for ensuring adequate unit staffing and, as described by
the hospital’s nurse site leader, “keeping the hospital open and
running.”
Each unit is then
directly overseen by a clinical manager who develops the budgets,
finalizes schedules, develops policy for the unit and does the hiring,
firing and disciplining of employees. These managers generally are
responsible for more than one nursing unit.
They perform no clinical nursing work. The clinical managers are
listed as the designated supervisors for staff nurses on job descriptions
and serve as the Employer’s first step representative under its written
grievance procedure. In all
but two departments, the clinical managers are assisted by assistant
clinical managers who are part of the management team, substitute in the
absence of the clinical manager, assist the clinical manager in
evaluations, scheduling staff, handling patient, physician and employee
complaints, and directly oversee the individual unit to which they are
assigned. The assistant clinical managers also have no bedside patient
care responsibilities.
In contrast, charge
nurses spend the vast majority of their time in line work—a fact that
strongly tends to establish their status as minor supervisory employees.
Charge nurses, among other duties: (1) monitor patients in the
unit; (2) check doctor’s orders for each patient; (3) respond to
requests and questions from the patients’ doctors and family members;
(4) take inventory of the “crash” carts and restricted narcotic
medications; (5) report acute changes in a patient’s status or unit
problems to the clinical manager; (6) gather factual information and fill
out incident reports; and (7) provide statistical information to the
Hospital’s administrative staff. It
is also common for charge nurses to take on individual patient
assignments, engaging in the same direct patient care work as other staff
nurses. Charge nurses have no formal role in the employee grievance
process and do not otherwise serve as management representatives on
matters that impact employee status.
B.
With
respect to assignment authority, the charge nurses have no authority to determine
an employee’s job classification, designated nursing unit, or work
shift. Rather, nurse managers
and nursing supervisors assign the staff nurses to the particular units
and work shifts.
As demonstrated
earlier, the authority of charge nurses to assign patients to staff
nurses, or generally to assign tasks already within the basic job duties
of staff employees, is not a supervisory function under Section 2(11),
properly interpreted.
Job descriptions define
the staff nurses’ essential job responsibilities and reflect that each
staff nurse “[u]nder general direction, provides direct care to patients
utilizing the nursing process.” Under
the Employer’s evaluation system, bedside staff nurses are held
expressly accountable for meeting a basic set of competencies, which
includes “knowledge of the special needs and behaviors of specific
patient age groups and the ability to produce the results expected from
clinical interventions” (E. Exhs. 16 & 15).
In short, once assigned to a particular unit, staff nurses are
expected to be able to care for any unit patients.
That a unit staff nurse is tasked on one day to provide nursing
care to unit patients in rooms “A”, “B” and “C” and on another
day to care for unit patients in rooms “D”, “E”, and “F” does
not affect the nurse’s overall status or situation, much less alter her
tenure or other basic terms and conditions of employment.
Such an assignment is simply a means of distributing the day’s
work among peers and/or other staff.
C.
With
respect to responsible-direction authority, charge nurses do not
have basic operational responsibility for their units: they do not decide
staffing, scheduling or budgets that determine the overall direction and
functioning of the unit. They
are not held accountable for the overall performance of their unit. Indeed,
as the majority correctly recognizes, charge nurses are not even
accountable for the performance of assigned tasks by other employees.
In no real sense, then, are the charge nurses in
charge of their units, despite
their titles. That status,
rather, belongs to the clinical managers.
In the Employer’s workplace, these clinical managers—not the
charge nurses—are the equivalent of foremen.
D.
In sum, none of the
charge nurses whose status is at issue are supervisors within the meaning
of Section 2(11) of the Act. We
accordingly concur in the result reached by the majority with respect to
the emergency room charge nurses and the rotating charge nurses.
We dissent from the majority’s finding that the permanent charge
nurses are statutory supervisors.
iv.
The consequences of
today’s decision, among the most important in the Board’s history,
will take time to play out. They
depend, in some measure, on how the Board applies in practice the
principles announced here, on whether the federal appellate courts uphold
those principles, and on the extent to which employers seek to take
advantage of the Board’s decision.
In our view, the majority has followed a mistaken approach to
statutory interpretation that, not surprisingly, leads it far beyond what
Congress contemplated in 1947 when it addressed the unionization of
foremen. The result could
come as a rude shock to nurses and other workers who for decades have been
effectively protected by the National Labor Relations Act, but who now may
find themselves treated, for labor-law purposes, as members of management,
with no right to pursue collective bargaining or engage in other concerted
activity in the workplace. Indeed,
supervisors may be conscripted into an employer’s anti-union campaign,
while their pro-union activity is now strictly limited.
The majority’s decision thus denies the protection of the Act to
yet another group of workers, while strengthening the ability of employers
to resist the unionization of other employees.
Accordingly, we dissent.
Dated,
Washington
,
D.C.
September 29, 2006
______________________________________
Wilma
B. Liebman,
Member
______________________________________
Dennis
P. Walsh,
Member
National Labor Relations Board
APPENDIX
.
. .
The Employer, Oakwood
Healthcare, Inc. (OHI) owns and operates a large network of hospitals and
related health care enterprises. Its
Oakwood Healthcare System (OHS) operates four acute-care hospitals;
neighborhood and occupational health care centers; specialty care centers
for mammography, cardiac rehabilitation, sports medicine, and adolescent
health; numerous foundations; and various ancillary services such as
laboratories and pharmacies. The
Petitioner seeks to represent a unit of approximately 220 registered
nurses (RNs) employed at a single acute-care hospital, Heritage.
.
. .
Heritage
Hospital
is an acute-care hospital with 257 licensed beds.
Heritage has medical surgical areas, intensive care and
intermediate care, ER and OR services, rehab services, and
psychiatric/behavioral health services.
These services are divided into the following units within the
hospital: Medical/surgical
west (MSW), medical/surgical east (MSE), behavioral health (BH), post
anesthesia care unit/recovery (PACU); rehab, intermediate care unit (IMU),
intensive care unit (ICU), emergency department (ER), and operating
room/anesthesia department (OR). The pain clinic at Heritage is an
outpatient clinic for patients who are being treated for chronic pain.
.
. .
The chief
administrative officer at Heritage is Rick Hillbom, who reports to
[Joseph] Diedrich, the chief operating officer of OHI.
Brenda Theisen, nursing site leader and director of patient care
services at Heritage, reports to Hillbom regarding daily operations at
Heritage. Theisen also
reports to Barb Medvec, the chief nursing officer of OHS. The nursing site
managers at Seaway, OHMC, and
Annapolis
also report to Medvec.
Medvec and Diedrich do not work on site at the Heritage facility.
As the nursing site leader at Heritage, Theisen is responsible for
anything having to do with nursing care that is delivered by the hospital,
although she does not directly supervise nurses on a day-to-day basis.
Reporting to Theisen at
Heritage are clinical supervisors (also known as nurse supervisors or
house supervisors) and clinical managers (also known as nurse managers).
Clinical supervisors generally work on off shifts, such as
afternoon shifts, midnights, holidays, and weekends.
When they work they cover the entire hospital, nursing as well as
every department within the hospital.
Only one clinical supervisor works on a particular shift at a given
time. The clinical
supervisors do not spend too much time in a particular unit because they
are overseeing the entire hospital. They
spend considerable time in the ER, because they have to attend to any code
(code blue, respiratory or cardiac arrest of a patient) that occurs.
They also look at staffing for the next shift, call agencies or
additional staff if needed, and document call-offs if someone is calling
in sick. They also address
any problems that may arise during their shift (i.e., fire alarm going
off, flood). When on duty,
the clinical supervisor is the highest ranking administrative officer in
the facility.
Clinical managers are
responsible for several units in distinct geographical areas within the
hospital. Clinical managers
are all RNs. They normally
work the day shift, and they oversee the units that they are responsible
for as far as developing a unit budget, finalizing schedules, and drafting
schedules that have been submitted by the nursing staff.
They work on development of policy for their units, and attend
meetings, corporate as well as site meetings and department meetings.
They are not regularly engaged in actual clinical work/nursing
functions. They each have an
office located within one of their units.
They are on call 24 hours a day, and address the day-to-day issues
and problems that arise within their units, assuming such problems cannot
be addressed at a lower level. Clinical
supervisors and clinical managers are salaried positions.
There are eight
assistant clinical managers (also referred to as assistant nurse managers
or ACMs) who report to the nurse managers.
The ACMs are part of the management team and as such attend
meetings, assist with schedules, and cover the clinical manager’s
responsibilities when the clinical manager is not in the building doing
administrative functions. Not
every unit has an ACM. The
clinical managers direct the duties of the ACMs.
They work various shifts, determined by the clinical manager with
whom they work. The position
was created to enable the clinical manager to cover multiple units.
The ACMs also handle day-to-day issues and problems if needed.
All registered nurses
at the hospitals report directly to on-site nursing supervisors.
With the recent advent of “service line” reporting
configurations, however, the upper reach of supervisory hierarchy for
nurses in certain specialties includes individuals who oversee that
nursing specialty at more than one site.
Nonetheless, the development of “service lines” has not erased
the primacy of first-line supervision nor diminished the authority of the
nursing site leader. A
communication chain of command is contained in several written directives
issued by the corporate human resources department and approved by the
acute-care nursing operations council.
These policies specify that a nurse or charge nurse encountering
any sort of patient, operational, or ethical problem is expected to notify
a clinical manager or clinical nurse supervisor.
The latter contacts the nursing site leader, who consults with the
site administrator, service line leader, or risk manager as deemed
necessary. (Footnote
omitted.)
Staffing and scheduling
guidelines emanate from the corporate human resources department.
These precepts are further refined by the acute-care nursing
operations council. The work
schedule for nurses on each nursing unit must be posted for 4 weeks.
The corporation has adopted what is considered a standard work day,
and also offers nurses the option of working alternative schedules.
Within these parameters, specific choices of unit shifts (days,
evenings, midnights, or rotation) and hour patterns (4-hour, 8-hour,
10-hour, or 12-hour) are established by the unit’s clinical manager.
Requests for shift changes must be made in writing and submitted to
the clinical manager. Employees
may adjust their schedules by trading with colleagues, but all trades must
be requested of and approved in advance by the clinical manager.
The amounts of allotted vacation time, sick leave, and personal
time are centrally prescribed, but specific requests for vacation time and
other leave are submitted to and acted upon by the nurse’s immediate
site supervisor. In
particular, the clinical manager sets the limit on the number of
simultaneous vacations that she will allow.
OHS enforces an
across-the-board policy forbidding mandatory overtime, but overtime will
be scheduled and offered in emergencies.
The clinical manager or clinical nurse supervisor determines
whether an emergency exists, and all overtime must be approved in advance
by those individuals. The
corporation has a uniform attendance program that correlates discipline
with the number of unexcused absences.
The clinical manager has discretion to characterize an
“emergency” absence as excused and an undocumented absence as
unexcused.
Staffing guidelines are
centrally determined, and are based on prescribed criteria such as patient
census and acuity. The
clinical nurse supervisor is responsible for assuring that adequate staff
is available and for initiating the use of overtime, system or in-house
flex pool nurses, or outside agency nurses to cover staffing shortages.
Each hospital’s nursing site leader maintains 24-hour
accountability and availability to assure that appropriate staffing levels
are continuous.
An inter-site nursing
leadership council has devised detailed job descriptions for each nursing
position. As noted above,
each job has a set wage range from which site managers may not vary.
A newly hired or transferred nurse is assigned a wage rate within
the range based upon her level of experience, in accordance with a
centrally determined grid. How
years of experience for this purpose are counted or weighted is not
disclosed in the record. The
wage ranges for each job classification are uniform across the four
acute-care hospitals.
All employees subject
to the handbook receive periodic performance appraisals, prepared by
immediate site supervisors on centrally prescribed forms.
The supervisor assigns a numerical rating in specific areas, and
the individual ratings are converted, in accordance with a predetermined
formula, into an overall score. As
stated in the handbook, all employees with a final score of 100 or more
are entitled to whatever across-the-board pay increase that the Employer
chooses to implement. Any
applicable pay increase will be the same for all eligible employees,
regardless of the exact appraisal score.
.
. .
At Heritage, there is
some variability with the staff nurse position depending on the
department, but in general, there is one written job description that
generally applies to RNs working throughout the hospital.
The description states that RNs are responsible for providing
direct care to patients utilizing the nursing process under general
direction, guiding and supervising nursing personnel, collaborating with
other health care professionals, and coordinating ancillary staff.
The clinical manager
reviews the job description with the nurses when they have their annual
performance appraisals. Among
other things, the RNs are evaluated in their performance appraisals on
their ability to act as a resource person for trouble-shooting,
contributing to the professional growth of peers, colleagues, and others;
precepting and mentoring; and ability to perform as a charge RN.
The type of work
performed is basically what is dictated by their profession, based on the
education and experience of an RN. They
follow doctor’s orders, which are usually written instructions as to
what type of treatment is needed, including administering blood tests,
passing medications, and observing patients more closely.
For every task performed by a nurse, there is a very specific
policy and procedure in writing. However,
long-time RNs generally do not need to refer to the policy and procedure
manuals because of their experience, and many of the RNs working at
Heritage have worked for the Employer for over 10 years.
The employees working
with the RNs are typically employees such as mental health workers, who
assist in the behavioral health department; licensed practical nurses (LPNs),
who are licensed to perform certain nursing tasks but not the full duties
of an RN; nursing assistants, who generally work with and assist RNs with
daily tasks; desk secretaries, who answer telephones, answer call lights
from patients, and enter orders for patients; nurse externs, who are
nursing students who have not yet graduated; graduate nurse externs, who
are nursing students who have graduated but have not yet passed their
exams or received their license; or techs and surgical techs, who assist
staff nurses with the care of a patient undergoing surgical intervention,
and ER techs and paramedics, who work in the emergency department to
assist the staff working in the ER.
The job descriptions of the majority of these positions state that
they work under the direction of the RN.
Most are also evaluated on whether they follow directions
appropriately to meet the demands of the unit and the staff.
The RNs are responsible for anyone else working under the RN level.
This responsibility of “guiding and supervising nursing
personnel” and/or “demonstrat[ing] effective leadership and
professional development” is a criterion under which RNs are evaluated
during their performance appraisals.
RNs may assign mental
health workers, nursing assistants, techs, or other less-skilled employees
to do certain tasks that are within their ability.
For example, they may assign a mental health worker to work with a
group of patients, or they may instruct a nurse assistant to give a
patient a bath, walk a patient to the bathroom, or give a patient a meal.
They assign these tasks to the nurse assistants because that is
what a nursing assistant’s job is—to assist the staff.
If something more important comes up, the RN may interrupt that
task and assign the nurse assistant to something else.
Nursing assistants and techs are also aware of certain jobs they
can do and will take it upon themselves to do these jobs, without first
being told. It would be
insubordination if a nurse assistant refused to listen to the RN, and the
RN could go to a superior to intervene.
However, it could be proper for an assistant to refuse a task for
good reason, such as if they were busy on a different assignment.
Regardless, no situation has arisen where an assistant or other
worker refused to perform a task. If
this did occur, RNs do not believe that they have the authority to do very
much about it other than going to the clinical manager, as they have no
role in disciplining employees.
The RNs do not rotate
shifts. They work straight
shifts; day, afternoon, or midnight, or 12-hour shifts, which are
ordinarily day shifts (7 a.m. to 7 p.m.) or midnight shifts (7 p.m. to 7
a.m.). However, they do take
turns rotating the responsibility of charge nurse.
On every shift in each unit, except the pain clinic, there is one
RN assigned to work as a charge nurse.
At times, however, assistant clinical managers have filled in as
charge nurses. In particular,
in late 2001, assistant managers filled in as charge nurses to decrease
agency nurse hours.
Rotating charges are
individuals who occasionally take charge nurse responsibilities in a unit.
The frequency with which it happens depends on the size of the unit
and the number of RNs that occasionally rotate.
A permanent charge is a person who has requested to and agreed to
be in permanent charge; each time they work, they work as a charge nurse.
The duties of a charge nurse, whether rotating or permanent, are
the same. RNs are paid hourly. They
earn $1.50 more per hour when they are working as a charge nurse.
In the IMC department,
if the assistant nurse manager is not there to take charge, they rotate
the responsibility of charge nurse. Sometimes
it is assigned by the clinical manager on the schedule, and sometimes it
is not. If it is not
assigned, then they take turns. RN
Coffee testified that she is a charge nurse approximately one to two times
during a 2-week schedule.
Similarly, RN Welch testified that her work schedule in the ER
indicates when she is assigned to the charge nurse responsibility.
The schedules come out in a 4-week timeframe.
As with Coffee, in a 2-week timeframe, she is usually in charge
once or twice.
RNs must have at least
1 year of nursing experience to act as charge nurses.
RNs learn the responsibilities of a charge nurse through their
education, and by initially working with a preceptor, or mentor.
Preceptors will work along with the RNs as charge nurses until the
RNs are able to perform the job on their own.
Some RNs choose not to
be in charge at all and there is not necessarily a permanent charge on
each unit. However, a review
of Employer’s Exhibit 12 reflects that a majority of RNs, with the
exception of those working at the pain clinic and in the operating room,
take turns rotating as charge nurse.
It appears from the record that most of the RNs who are not
rotating are newer employees who are not yet ready to take on the charge
nurse responsibilities. Also
shown by Exhibit 12 is that only approximately 11 nurses are permanent
charges.
In the behavioral health unit, every RN is a rotating charge or a
permanent charge. Where there
is a permanent charge on a particular shift, the rotating charges on that
shift take turns acting as a charge nurse on the days when the permanent
charge is not working.
Charge nurses are
responsible for overseeing the unit for the shift that they are working,
with the staff who are working the unit that day.
They do the assignments of all the staff that are working on that
shift. They monitor in
general all the patients that are in the unit that day, and meet with
physicians if a physician has an issue with a nurse or with a patient.
They also meet with patients or family members who have a
complaint. Some
responsibilities vary within each unit.
If a variance occurs during a shift, such as a medication error,
patient fall, or any other incident, a form called a “quality assessment
report” is filled out. The
charge nurse is responsible for following up with the incident by
examining the patient, and signing the report as the “person in
charge.” If necessary, the
charge nurse will call a physician to evaluate the patient.
RNs are sometimes
pulled to work in other units, but not if they are assigned to work on
charge duty. If it is a
nurse’s turn to be pulled, and she is on charge duty, she will stay on
that shift and go the next time. When
RNs are pulled to work in other units, it usually happens at the start of
the shift. The charge nurse
is informed that a nurse is needed in another department, and is given the
names of the nurses who are to be pulled by the clinical supervisor from
the previous shift. Charge
nurses can also be called in the middle of the shift—a supervisor may
inform the charge nurse that one of her nurses is needed in another unit.
The charge nurse cannot refuse that request.
If the charge nurse refused to send someone, there would be
disciplinary action. The
charge nurse does not assign employees to shifts; that is done by a
staffing office. When the
charge nurse comes in, she is handed a list (prepared by the supervisor on
the previous shift) of the nurses who are supposed to be working that day
on her shift. If nurses on
the list do not show up, the charge nurse calls the staffing office to
find out where that person is.
OHS has a policy for
the assignment of nursing personnel to provide adequate numbers of
licensed staff and other personnel to deliver care to patients.
Under this policy, assignments are to be made in accordance with
the patient’s need. In
making assignments, the charge nurse must determine the acuity of the
patient and determine the level of skill required to care for the
patient—i.e., RNs can perform certain tasks that cannot be performed by
LPNs, etc. Level of
experience of the nurse, determining which nurses work well together as a
team, as well as other activities that a particular nurse may also be
responsible for, are also considered.
On occasion, assignments will be changed mid-shift; for example, if
there is a change in a patient’s condition such that different care is
warranted. The charge nurse
also assigns nursing assistants or mental health workers either to
particular patients or to work alongside specific RNs.
After receiving their general assignment, the RN and/or the charge
nurse may assign them more specific tasks such as giving a patient a bath,
etc. Charge nurses are also
responsible for assigning breaks and lunches to other employees.
However, they do this by asking the other nurses when they would
like to take their break, and their main goal in assigning breaks is to
make sure the unit is covered at all times.
At times RNs may
complain about particular assignments.
The charge nurse can reevaluate and make changes in assignments if
appropriate. This could occur
if a patient requires more work than expected, or if a patient’s
condition changes which requires more treatment or attention.
However, the record does not indicate any instances of a serious
conflict based on job assignments. Furthermore,
RNs usually work together to help each other out, as a common courtesy of
their profession. If RNs need
help with a patient, they may go directly to another nurse and ask rather
than going to the charge nurse. Many
of the tasks handled by the charge nurse, including complaints of family
members, can be handled by any RN. One
RN testified that she does not interact any differently with other RNs on
staff when she is a charge nurse compared to when she is not.
Some charge nurses may
take patient assignments in addition to their other responsibilities.
Whether or not a charge nurse takes an assignment typically depends
on what department they work in and on what shift they work.
Charge nurses on each shift are responsible for deciding whether or
not they take assignments. Charge
nurses frequently do take patients, although they will often take fewer
patients than the other staff nurses on duty.
The assignment of staff
nurses to patients is much more perfunctory in practice than the
Employer’s written assignment policy indicates.
The assignment of work is generally rotated, or based on where a
person worked the previous day. When
making assignments as a charge nurse, reference is made to a staffing
sheet showing where everyone worked the day before.
It usually takes only a few minutes to do the assignments.
There was testimony that the main responsibility of the charge
nurses is to be familiar with what is going on in their particular units,
and to basically be the go-to person for questions or issues that arise.
For example, in the ER the charge nurse has to answer the clinical
supervisor’s or manager’s inquiries about whether there will be
patient admissions. This will
determine whether extra staffing is needed for a particular unit, such as
ICU.
When the nurses arrive
for their shifts in the IMU, they all listen to the report from the charge
nurse of the previous shift. Then
the charge nurse makes the assignments by asking who knows which patients
have the highest acuity (these patients are referred to as the
“completes”). They get a
slip from the staffing office showing who is supposed to be there that
day. The charge nurse then
makes out the assignments. First,
the completes are divided up evenly.
After that, they look at who was there the day before, and try and
give them the same assignment they had in order to maintain continuity.
In IMU, nurse assistants make out their own assignments.
The charge nurse in IMU
is also responsible for assigning beds to new patients or transfers from
ICU. When determining where
to assign the new patient as far as the staff is concerned, the charge
nurse will go by who did an admission the day before—or, who currently
has three patients instead of four. If
necessary, the charge nurse may assign the patient to herself. If
everyone had a full load, she would go to the manager.
It also becomes necessary to reassign patients to different staff,
if, for example, there is a personality conflict between a nurse and a
patient. This could be
handled by asking another nurse if she would take the patient.
It is questionable whether the charge nurse has the authority to
force another nurse to take another patient.
Generally, it is the
clinical manager who hires, fires, and handles conflicts within the unit.
They also handle performance evaluations, finalize schedules, and
handle staffing issues and patient complaints.
The assistant manager also does these things.
Charge nurses do not make the decision to hold someone past the end
of their shift if they are short staffed, nor do they authorize overtime.
Charge nurses can be, and have been, disciplined by clinical
managers.
.
. .
Section 2(3) of the Act
excludes from the definition of the term “employee” “any individual
employed as a supervisor.” Section
2(11) of the Act 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 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 merely
of a routine or clerical nature, but requires the use of independent
judgment.
Section 2(11) is to be
interpreted in the disjunctive and the possession of any one of the
authorities listed in that section places the employee invested with this
authority in the supervisory class. Ohio
Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949), cert. denied 338 U.S.
899 (1949); Allen Services Co.,
314 NLRB 1060 (1994).
On May 29, 2001, the
Supreme Court issued its decision in
NLRB v Kentucky River Community Care, 532 U.S. 706, 121 S.Ct. 1861
(2001), wherein the Court upheld the Board’s longstanding rule that the
burden of proving Section 2(11) supervisory status rests with the party
asserting it. See Ohio Masonic Home,
295 NLRB 390, 393 fn. 7 (1989); Bowne
of Houston, Inc., 280 NLRB 1222, 1223 (1986).
However, the Court rejected the Board’s interpretation of
“independent judgment” in Section 2(11)’s test for supervisory
status, i.e., that registered nurses will not be deemed to have used
“independent judgment” when they exercise “ordinary professional or
technical judgment in directing less-skilled employees to deliver services
in accordance with employer-specified standards.”
121 S.Ct. at 1863. Although
the Court found the Board’s interpretation of “independent judgment”
in this respect to be inconsistent with the Act, it recognized that it is
within the Board’s discretion to determine, within reason, what scope or
degree of “independent judgment” meets the statutory threshold.
See Beverly Health &
Rehabilitation Services, 335 NLRB 635 (2001).
However, the Court did agree with the Board in that the term
“independent judgment” is ambiguous as to the degree
of discretion required for supervisory status and that such degree of
judgment “that might ordinarily be required to conduct a particular task
may be reduced below the statutory threshold by detailed orders and
regulations issued by the employer.” 121 S.Ct. at 1867.
In discussing the tension in the Act between the Section 2(11)
definition of supervisors and the Section 2(12) definition of
professionals, the Court also left open the question of the interpretation
of the Section 2(11) supervisory function of “responsible direction,”
noting the possibility of “distinguishing employees who direct the
manner of others’ performance of discrete tasks from employees who
direct other employees.” 121 S.Ct. at 1871.
See Majestic Star Casino,
335 NLRB 407 (2001).
For instance, direction
as to a specific and discrete task falls below the supervisory threshold
if the use of independent judgment and discretion is circumscribed by the
superior’s standing orders and the employer’s operating regulations,
which require the individuals to contact a superior when anything unusual
occurs or when problems occur. Dynamic
Science, Inc., 334 NLRB 381 (2001);
Chevron Shipping Co., 317 NLRB 379, 381 (1995).
In the instant case,
there is no evidence that the RNs, whether acting as a charge nurse or a
staff nurse, have independent authority with respect to the hire,
promotion, demotion, layoff, recall, reward, or discharge of employees.
They do not make staffing decisions, and they do not authorize
overtime. The Employer rests
its claim of supervisory authority primarily upon other indicia, i.e., the
alleged ability to adjust grievances, and the alleged authority to assign
and direct the work of less-skilled employees.
There is no evidence
that the charge nurses are empowered to adjust any formal employee
grievances. Charge nurses are
not part of the grievance process outlined in the Local 79 contract
covering other members of the nursing staff.
For the most part, complaints or disputes brought by the nursing
staff to the charge nurse that cannot be resolved quickly in an informal
manner are relayed to supervision. See
Ken-Crest Services,
335 NLRB 777 (2001). Furthermore,
there is a lack of evidence that RNs have actually adjusted grievances.
The limited authority exercised by charge nurses to resolve
interpersonal conflicts among employees does not confer supervisory
status. St.
Francis Medical Center-West, 323 NLRB 1046, 1047–1048 (1997).
For every task
performed by an RN, there is a very specific policy and procedure in
writing. These procedures are
available for review by the RNs in their work area; however, some of the
more experienced RNs do not need to refer to the policies and procedures
on a regular basis due to their length of experience.
The limited authority of RNs to assign discrete tasks to
less-skilled employees, based on doctor’s orders, hospital policy and
procedures or standing orders, or what is dictated by their profession,
does not require the use of independent judgment in the direction of other
employees. Ferguson
Electric Co., 335 NLRB 142 (2001).
The RNs do not evaluate the work of the less-skilled employees or
ensure that they have completed a task or done so correctly.
The Employer asserts
that charge nurses exercise independent judgment when they assign staff
nurses to particular patients or beds, by matching the level of experience
of the employee with the level of acuity of the patient.
However, the Employer has a very detailed written policy for the
assignment of patients by charge nurses or assistant clinical managers.
Pursuant to this policy, it is the responsibility of clinical
managers or assistant clinical managers to ensure adequate staffing levels
and the composition of staff as to skill level when it comes to caring for
the patients in a particular unit. Direction
as to specific and discrete tasks and even the assignment of employees
detailing when and where they are to carry out their duties falls below
the supervisory threshold if the use of independent judgment and
discretion is supervised by the superior’s standing orders and the
employer’s operating regulations. Dynamic
Science, Inc., supra, 334 NLRB at 381; Chevron
Shipping Co., 317 NLRB 379, 381 (1995).
Furthermore, the weight of the evidence suggests that in practice,
the assignments are routine in nature, and are based mainly on principles
of fairness and the even distribution of work.
Byers Engineering Corp.,
324 NLRB 740 (1997);
Providence
Hospital
, supra; Ohio Masonic Home,
supra. For the most part, the
schedule is based on the schedule from the previous day, and providing
continuity for the patients. Finally,
the RNs work together to resolve any problems with patient assignments,
based on the very nature of the rotating charge nurse position.
A charge nurse assigning a patient to a staff nurse one day can the
next day be assigned a patient from that same staff nurse when the roles
are reversed. A charge nurse
also assigns break times for other employees.
However, the charge nurse generally sets up the break times in
order to ensure coverage on the floor, and receives input from the nursing
staff as to when they would like to take their break.
The Employer submits
that if RNs are not supervisors, the ratio of nursing supervisors to
nursing staff would be preposterous.
However, on the other hand, if all staff nurses are found to be
supervisors, the ratio of nursing supervisors to nursing staff would be
one supervisor for less than every two employees.
Naples
Community
Hospital
, 318 NLRB 272 (1995); Essbar
Equipment Co., 315 NLRB 461 (1994); Beverly
California Corp. v. NLRB, 970 F.2d 1548, 1550 fn. 3 (6th Cir. 1992).
Furthermore, clinical supervisors, assistant clinical managers
and/or clinical managers are present or on call 24 hours a day to handle
any problems that may arise. Consequently,
I find that the RN staff nurses/charge nurses are not statutory
supervisors.
.
. .
