Fourth Circuit Affirms NLRB Finding That Nurses Are Not Supervisors

Garrett Wozniak
Garrett Wozniak
11/08/2016

In Palmetto Prince George Operating, LLC v. NLRB, No. 15-2143 (4th Cir. Nov. 1, 2016), the Fourth Circuit Court of Appeals ordered a South Carolina nursing home to bargain with its nurses’ union.

Palmetto, a provider of 24-7 nursing home care, employs 23 nurses — six RNs and 17 LPNs.  Those nurses exercise authority over 40 certified nursing assistants (CNAs).  All of the nurses assess patients, answer patient calls, administer medications, and provide patient care.  The CNAs assist nursing home residents with daily tasks such as bathing and restroom use.  The company’s management team includes a nursing director, assistant nursing director, and three managers.  The managers monitor and evaluate the quality of Palmetto’s nursing care, supervise and discipline nursing staff, and schedule the nurses.  The nurses and CNAs are the first line of authority, though the nurses are above the CNAs on Palmetto’s organizational chart.

In early 2015, the nurses voted for representation by the United Steelworkers, however, Palmetto refused to bargain.

The issue before the Fourth Circuit was whether the nurses were supervisors under the NLRA.  The NLRA defines “supervisor” as “any 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 to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

This definition has been distilled into a three-part test.  See NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 703, 712-13 (2001).  An employee is a supervisor if she:  (1) has authority to perform any one of 12 functions listed in § 152(11) or effectively recommend such action; (2) exercises that authority in a manner that is not merely clerical or routine but requires the use of independent judgment; and (3) uses that authority in the interest of the employer.

 

Palmetto argued that the nurses are supervisors because they use independent judgment when disciplining and directing the CNAs.  The court’s decision turned on whether the nurses actually exercised authority requiring independent judgment free from the control of others.  The court found that the nurses did not use independent judgment.  In support of this finding, the court recounted that only three written warnings were issued in a three-plus year period and there was “scant” evidence of verbal counseling being issued.  Further, two of the warnings involved no discretion whatsoever.

Palmetto also argued that the nurses are responsible for a variety of supervisory tasks vis-à-vis the CNAs.  In each case, however, Palmetto had implemented comprehensive policies that left no discretion to the nurses.  The “[n]urses serve merely as conduits for these instructions.”  While “the mere existence of company policies does not eliminate independent judgment from decision-making if the policies allow for discretionary choices,” Oakwood, 348 NLRB at 693, there was no evidence of discretion in this case.

Thus, the Fourth Circuit concluded, the nurses were not supervisors because they did not exercise independent judgment.  In its ruling, the court deferred to the Board’s reasonable interpretation of independent judgment.

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