are not “supervisors”
Why the Board went
the other way in
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.
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).
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
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”).
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.
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.
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.”
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.