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NLRB - National Labor Relations Board |
Oakwood
Healthcare, Inc.
Case 7–RC–22141
September 29, 2006
DECISION
ON REVIEW AND ORDER
By
Chairman Battista and Members Liebman, Schaumber, Kirsanow, and Walsh
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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.1
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).2
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 curiae3
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 i.
facts The Employer has
approximately 181 staff RNs who provide direct care to patients in 10
patient care units at 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.7
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,8
while other RNs take turns rotating into the charge nurse position.
In the patient care units of the hospital employing permanent
charge nurses,9
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 hospital10
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.11
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.”12
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.13 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,14
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 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.”17 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.”18
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,19
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 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.21
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.22
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 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.25 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.26
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.27
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 Since the enactment of
Senator Flanders’ amendment, the Board rarely has sought to define the
parameters of the term “responsibly to direct.”
In “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 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– 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).38 C.
Independent Judgment In Consistent with the
Court’s To ascertain the
contours of “independent judgment,” we turn first to the ordinary
meaning of the term.40
“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 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 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.41
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.42 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.43
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.”44 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.45
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 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.46
Under the Board’s standard, “regular” means according to a
pattern or schedule, as opposed to sporadic substitution.47
The Board has not adopted a strict numerical definition of
substantiality48
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.49
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; 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.50 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,51
and as new patients are admitted thereafter, the charge nurses for each
patient care unit (except the emergency room) assign the staff52
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.53 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 room54
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,55
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.”56 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.57
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, ______________________________________ 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.1
“[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.”2 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 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.”4
There would seem to be no dispute that these terms are ambiguous
and thus open to interpretation, as the Supreme Court has observed.5 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. In this case, a narrow
focus on dictionary definitions of individual words in isolation leads the
majority astray.6
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).7
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.8
Indeed, in the words of one academic commentator, 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. . . . 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 employees9—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.10 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.11
The definitive report of the Senate Committee on Labor and Public
Welfare explained that: |
