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HR Solutions

But some charge nurses

are not “supervisors”

---------------------------

Why the Board went

the other way in

Beverly Enterprises-Minnesota

As widely reported the NLRB decided recently in Oakwood Healthcare that the permanent charge nurses in this case were “supervisors” and couldn’t vote in elections because of their independent judgment in assigning other nurses to patients. 

But in another case the Board ruled that permanent charge nurses working for Beverly Enterprises-Minnesota were protected under the National Labor Relations Act.  348 NLRB ____, No. 39 (September 29, 2006).

Beverly runs an 80-bed, two-floor nursing home.  The higher care residents are on the second floor.  Five agreed supervisors ran the nursing department (director, assistant director, three RNs serving as residential care managers).  Beverly also employs eight other RNs, 12 LPNs (most of whom sometimes work as charge nurses), and 36 nursing assistants. When the Steelworkers in April 1999 won an election involving a unit of RNs and LPNs, Beverly refused to bargain, contending that the charge nurses “assigned” the CNAs as that term is interpreted under Section 2(11) of the Act.

In Oakwood Healthcare the Board decided that “assigning” meant either  a) designating an employee to a place (“this morning you’re on the second floor”),  b) appointing an employee to a time (“I need you on third shift next week”),  or  c) giving significant overall tasks to an employee (“From now on you are full time helping Carol with the meds”).

Beverly failed to meet its burden that the charge nurses ordered CNAs to go home early, to work on the second floor if it was understaffed, to stay late, or to come into work from home.  The evidence showed that on the contrary charge nurses had no authority to send CNAs home early or to go to the second floor.  There was evidence that occasionally charge nurses could request, not direct, assistants to stay past their shift time or come into work from home.   It was true that RNs could “mandate” that an employee come in to work from home, but the RN in each case was passing along the directive from the stipulated supervisor she or he worked for.

Beverly contended also that charge nurses altered CNAs’ section assignments to compensate for absent employees or to balance workloads.  The Board found that in fact the CNAs themselves redistributed their work themselves, and to the extent the RNs were involved, they did not require CNAs to change their work assignments.

The Board found that while the RNs directed the CNAs by overseeing their job performance and corrected them when their care to residents was incorrect, but there was no evidence that an RN could or did face adverse consequences – in performance evaluations or otherwise – if this oversight was mishandled.   Here the Board buried its head in the sand, concluding that although performance evaluations rated RNs specifically as to how well they “direct[ed] CNAs to assure quality of care,”  that did not make RNs accountable for the manner in which they directed CNAs.  The “prospect of adverse consequences” was “merely speculative.”

Overall, however, this decision is consistent with Oakwood Healthcare.  Had the RNs in fact possessed the authority to send employees home and to work on the second floor, and had they directed, rather than requested, employees to stay late or come in to work, Beverly would have won this fight.

 

The employer may continue, on appeal to the federal appellate court, but given the likely turnover at this facility in the ensuing seven plus years, the employees may have no interest in the USW representing them as their bargaining agent anyway.

10/17/06