On November 1, 2016, the Fourth Circuit Court of Appeals issued an opinion holding that registered nurses (“RNs”) and licensed practical nurses (“LPNs”) at Prince George Healthcare Center in Georgetown, SC (the “Center”) do not qualify as “supervisors” under the National Labor Relations Act (“NLRA”). Palmetto Prince George Operating, LLC v. Nat’l Labor Relations Bd., 841 F.3d 211, 213 (4th Cir. 2016). The case arose when RNs and LPNs (collectively “Nurses”) employed at the Center – a nursing home – attempted to unionize and engage in collective bargaining. The Center refused to deal with the Nurses’ union as it claimed the Nurses were ineligible to unionize because the Nurses supervised certified nursing assistants (“CNAs”). The Nurses sought relief from the National Labor Relations Board (“NLRB”), which found that the Nurses could unionize. The Center disagreed with that finding and directly petitioned the Fourth Circuit Court of Appeals to review the NLRB’s order. The Fourth Circuit held that the Nurses’ job duties and responsibilities did not involve a sufficient exercise of “independent judgment,” which ultimately paved the way to permit the Nurses to unionize and engage in collective bargaining.
The court held that the Center did not carry its burden of proving that: (1) the Nurses had the authority to perform any one of twelve supervisory functions listed in 29 U.S.C. § 152(11), (2) the Nurses exercised that authority with independent judgment in a manner that is not clerical or routine, and (3) the Nurses held that authority in the interest of the Center. See NLRB v. Kentucky River Cmt. Care, Inc., 532 U.S. 706, 712-13 (2001). The Center’s argument was primarily based on the nursing home’s organizational structure that placed the RNs and LPNs in a tier above the CNAs. The Center claimed that the Nurses used independent judgment because they had authority to discipline and responsibly direct the CNAs, which met two of the twelve supervisory functions listed in § 152(11). The Center did not dispute that the Nurses did not perform any of the ten other functions listed in § 152(11).
The Fourth Circuit noted that the NLRA does not define the term “independent judgment,” but per U.S. Supreme Court precedent, the NLRB has the discretion to determine what qualifies as “independent judgment,” and “a court defers to the Board’s interpretation of ‘independent judgment’ so long as it is ‘reasonable and consistent with the Act.’” Palmetto Prince George Operating, 841 F.3d at 215 (citing Kentucky River, 532 U.S. at 711–12). Also, the Court held that the phrase “independent judgment” under the NLRA was ambiguous, thus the Court stated it would defer to the NLRB’s construction of the term in reviewing the order. Id. at 216–17.
The Court ultimately affirmed the NLRB’s order, holding that the Nurses were not “supervisors” because substantial evidence supported the NLRB’s finding that the Nurses did not exercise sufficient independent judgment related to disciplining or directing the CNAs. Though the Center argued that the Nurses had disciplinary authority over the CNAs, the Court held that such disciplinary reporting was mandatory at the Center, and so did not require any exercise of a Nurse’s judgment. Id., at 217–18. Further, any employee could report misconduct, including the CNAs, and realistically, it was only the Center’s managers who made final disciplinary decisions in accordance with the Center’s written policies. Id. Similarly, although the Center claimed the Nurses exercised significant supervisory authority in how they directed the daily scheduling and tasks of CNAs, the Court held that such “direction” did not involve the exercise of independent judgment because the Center’s extensive written policies controlled how the Nurses directed CNAs. Id. at 218. With such a controlling system of policies, the Nurses were effectively never granted the discretion to direct the CNAs’ activities absent the written policies’ instructions and guidance, and therefore the Nurses did not have “independent judgment.” Id. Based on these factual showings, the court upheld the Nurses eligibility to engage in collective bargaining with the Center.
The Fourth Circuit’s holding in Palmetto Prince George Operating, LLC v. Nat’l Labor Relations Bd., provides an important example of the fact-specific showing an employer must make in order to claim any class of employees are “supervisors” under the NLRA. The attorneys at Chilivis Grubman represent all types of businesses – particularly in the healthcare industry – in connection with employment-related matters. For any questions, or if we can be of any assistance with such a matter, please contact us at (404) 262-6505 or sgrubman@cglawfirm.com.