Update: Nurses Not Supervisors

Article excerpt

In a 1994 decision, the U.S. Supreme Court struck down the National Labor Relations Board's (NLRB) "patient care" test for deciding whether nurses are supervisors under the National Labor Relations Act (NLRA). The Court's ruling in NLRB V. Health Care & Retirement Corp.(8) deemed licensed practical nurses (LPN's) at an Ohio nursing home to be supervisors not protected by the NLRA. The Court reasoned that directing less skilled workers was a supervisory function, rather than part of the LPN's professional duties in treating patients. Because patient care is the business of a nursing home, the Court held, the nurses were acting in the interest of their employer when they directed others in caring for patients.

The NLRB recently issued decisions in its first two cases on the supervisory status of nurses since the Health Care & Retirement Corp. holding.(9) A divided Board found charge nurses at Providence Hospital in Alaska and licensed practical nurses at the fen Broeck Commons nursing facility in New York to be employees, not supervisors.

The Board's opinion in the Providence case noted that supervisory activities, such as assigning work, must be done with independent judgment to be considered supervisory under the relevant section of the NLRA, Section 2(11). Whatever authority the charge nurses have to assign registered nurses and other staff does not require independent judgment, said the Board. Charge nurses do not prepare monthly schedules, their assignment of LPN's and aides is clerical or routine in nature, and their authority over matters such as overtime and breaks is curtailed, the Board concluded after reviewing the evidence presented.

The NLRB found the term "responsibly to direct" in the statute more difficult to analyze than "assign." They chose not to develop a full, abstract analysis of that phrase, but recommended treating it on a case-by-case basis: only in cases in which the traditional analysis of whether direction is done with independent judgment is inadequate will it be necessary to consider the meaning of "responsibly direct," said the Board. …