Employment: Interpretation of the National Labor Relation Board's Definition of Supervisor-Beverly Enterprises V. National Labor Relations Board

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Employment: Interpretation of the National Labor Relation Board's Definition of Supervisor-Beverly Enterprises v. National Labor Relations Board1-The U.S. Court of Appeals for the Eighth Circuit held that nurses employed as team leaders were not supervisors under the definition set forth in section 2(11) of the National Labor Relations Act (NLRA)2 because their duties required them to "follow routine procedures" and not "exercise independent judgment."3

Beverly owns and operates a fifty-four bed nursing home which employs ten full or part-time licensed practical nurses (LPNs), eight registered nurses (RNs) and twenty-eight registered nursing assistants (NARs).4 In January 1997, Minnesota's Health Care Union, Local 113, Service Employees International Union, AFL-CIO petitioned the National Labor Relations Board (NLRB) for certification as the nurses' collective bargaining agent.5 Beverly argued that the nurses were supervisors as defined under section 2(11) of the NLRA and were precluded from joining the collective bargaining unit. The NLRB conducted a hearing in which it was determined that the nurses were not supervisors as defined in section 2(11).6 Accordingly, it was determined that the nurses were to be included in the collective bargaining unit.7 Beverly's request for review was denied, and the Union was elected as the nurses' bargaining representative. After Beverly's refusal to bargain, the Union filed an unfair labor practice charge. Beverly petitioned for judicial review after the Board granted the NLRB's request for summary judgment.8

The parties agree that four of the RNs were supervisors within the meaning of section 2(11).9 The four supervisors worked daytime hours and were not present on weekends.10 At least one of the supervisors, however, was always available for consultation via telephone or pager.11 Minnesota state law requires that a nursing home must designate a particular person to be in charge when a supervisor is not present.12 In compliance with this regulation, Beverly designates one of the on-duty nurses as the "charge nurse" when a supervising nurse is not present.13 Charge nurses possess authority to alter break schedules and patient care priorities, to oversee and monitor the performance of NARs, to seek volunteers to fill shift vacancies created when NARs are absent, to initial NAR time cards, to report disciplinary problems, and to evaluate NARs.14 Additionally, the nurses have authority to issue disciplinary counseling to NARs, although this authority is apparently limited to reprimanding verbally individuals who deviate from policies and procedures.15

Section 2(3) of the NLRA excludes "any individual employed as a supervisor" from the definition of "employee."16 By doing so, section 2(3) excludes supervisors from its protection.17 Section 2(11) defines the term "supervisor" as:

[A]ny 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 direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.18

The court set forth two components of this definition.19 First, the employee must have the authority to exercise any one of the enumerated functions set forth in section 2( 11 ). …