On July 2, 2013, a divided panel of the United States Court of Appeals for the Sixth Circuit in GGNSC Springfield LLC, d/b/a Golden Living Center-Springfield v. NLRB, No. 12-1529 (6th Cir. July 2, 2013), held that registered nurses (“RNs”) who worked as charge nurses in a nursing home were supervisors under the National Labor Relations Act. In so holding, the Court determined that the RNs exercised sufficient independent judgment in issuing discipline to non-RN employees to be considered supervisors. The net impact of this decision was to make clear that the RNs in this case did not have the right to organize and collectively bargain.
FACTS AND PROCEDURAL BACKGROUND
The nursing home at issue in this case, Golden Living Center, is located in Springfield, Tennessee. Golden Living Center has approximately 100 employees, including 12 registered nurses (“RNs”), 10 licensed practical nurses (“LPNs”), and 46 certified nursing assistants (“CNAs”). Under the organizational structure of Golden Living Center, RNs and LPNs are considered “charge nurses,” who report directly to the Director of Nursing.
In 2011, the International Association of Machinists and Aerospace Workers, AFL-CIO filed a petition with the National Labor Relations Board (“NLRB”) seeking to represent the RNs employed by Golden Living Center in collective bargaining. Golden Living Center challenged the petition, arguing that the RNs, as charge nurses, were supervisors under the National Labor Relations Act and, thus, not allowed to unionize. In November 2011, the Regional Director of the NLRB determined that for the purposes of the Act, the RNs were not supervisors. The Regional Director, therefore, granted the petition, certified the bargaining unit, and ordered an election. Subsequently, an election was held and the RNs elected the union as their bargaining representative. However, Golden Living Center refused to recognize or to bargain with the union. As a result of this refusal to bargain, an unfair labor practice complaint was filed with the NLRB by the union. The NLRB upheld the complaint and ordered Golden Living Center to bargain. A petition for review of the NLRB decision was then filed by Golden Living Center.
COURT OF APPEALS DECISION
The first issue addressed by the Court of Appeals was whether the NLRB even had the authority to issue an order. This argument centered on the decision by the Court of Appeals of the D.C. Circuit in Noel Canning v. N.L.R.B., 705 F.3d 490 (D.C. Cir. 2013), holding that three of the Board’s five members, whom President Obama had appointed during a Congressional recess, had been appointed in violation of the Constitution because they were appointed without the advice and consent of the Senate. The Court of Appeals refused to consider this argument, asserting that “[e]rrors regarding the appointment of officers under Article II are ‘nonjurisdictional.’”
In considering the merits of the case before them, the Court of Appeals focused on whether or not the RNs, as charge nurses, had the authority to “discipline” CNAs, such that they would be considered supervisors under the Act. A majority of the panel found that the RNs in question did have disciplinary authority, such that they were supervisors. Under Golden Living Center’s discipline policy, CNAs were to receive four written warnings before being terminated. Under this disciplinary policy, RNs were given the authority to issue written memoranda in the event of misconduct by a CNA, with the written memorandum by the RN immediately triggering a written warning. A majority of the panel found that these written memoranda constituted “discipline” because they “’lay a foundation’ for future adverse employment action.” Additionally, the majority found that under the policies of Golden Living Center, the RNs exercise independent judgment when issuing discipline, in that they “can either do nothing, provide verbal counseling (and decide whether to document the counseling), or draw up a written memorandum.” In dissent, Judge Merritt strongly disagreed with the findings of the majority, arguing that the majority’s decision was simply results driven and anti-union. Judge Merritt asserted that the majority was indulging in “linguistic wordplay over the word [discipline] without even referring to or trying to understand the purpose of the statutory language at issue.”
While this decision is certainly a victory for healthcare workers and provides some guidance to employers as to what may constitute the exercise of discipline for the purposes of determining the supervisory status of an employee, the split in the decision certainly makes it clear that disagreement remains in the courts as to what constitutes “discipline” for the purposes of determining whether an employee is or is not a supervisor. However, this decision does make it clear that, at least in some situations, the exercise of discipline may include more than just suspensions and terminations. Prudent employers should continue to pay attention to the roles various employees may play within their disciplinary policies and programs and continue to monitor developments in the courts regarding these issues.