By Robert Wolff and Jeff Seidle
In Frenchtown Acquisition Co. v. NLRB, the Sixth Circuit Court of Appeals ruled that nursing home charge nurses were not “supervisors” under the National Labor Relations Act (NLRA) and therefore were free to unionize. The court rejected the nursing home operator’s argument that the charge nurses were supervisors of the nursing aides, finding that they did not engage in supervisory activities, as defined by the NLRA.
The NLRA defines a supervisor as an individual who has the authority to engage in any one of the following 12 supervisory functions: hiring, transferring, suspending, laying off, recalling, promoting, discharging, assigning, rewarding, disciplining, or responsibly directing other employees.
In Frenchtown, the Sixth Circuit rejected the employer’s claim that charge nurses disciplined, hired, assigned, transferred, and responsibly directed nursing aides, engaging in a fact-intensive analysis of each of the employer’s claims. The court dissected the examples of the activities the nurses performed, reflecting not only the high level of scrutiny that is given to such claims, but also providing insight into the court’s view of the requirements for each of the supervisory functions alleged.
As to the authority to discipline aides, the nursing home operator argued that although charge nurses could not issue formal discipline, they issued informal discipline known as “in-services” (where charge nurses correct the performance of aides), which could lead to formal discipline. The court rejected this argument and held that bringing performance issues to management’s attention is insufficient to qualify as discipline. The employer also argued that charge nurses sent aides home for misconduct, but the court rejected this argument as well, stating that this activity did not require independent judgment.
The court also rejected the nursing home operator’s argument that charge nurses could hire aides. Charge nurses only rarely interviewed candidates for the aide position and, though they occasionally made hiring recommendations, the court found this was insufficient to qualify as “hiring” because the recommendations were not considered when the final hiring decisions were made.
As to the authority to assign work, the court found that while the nurses made some assignment adjustments, such as removing an aide in response to a resident’s request or directing an aide to assist another aide, these activities were insufficient to constitute authority to “assign.” The NLRA requires that assignments must be of “significant overall duties,” not simply instructing an individual “to perform a discrete task.”
The court also rejected the nursing home operator’s final two arguments – that nurses had authority to transfer, and responsibly directed nursing aides. When transferring aides from one facility to another, the nursing home operator used a float sheet that made selection routine, requiring no independent judgment. Under the “responsibly directs” theory, the nursing home claimed that charge nurses were held accountable for the performance of the aides, but it was unable to show the charge nurses suffered adverse consequences for the poor performance of the aides. In this regard, the court found that performance reviews that rewarded “leadership” were insufficient to show that the charge nurses were held accountable for directing the aides.
Although the court’s ruling certainly does not negate the possibility that charge nurses may qualify as supervisors under the NLRA, depending on the particular facts and circumstances of their duties and responsibilities, this case provides guidance on the elements that will – and won’t – satisfy the supervisory test in the Sixth Circuit.
Photo credit: SmithMaxfield