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Supervisory Issues for Nurses in the Health Care Industry

By Roger P. Gilson Jr.
  • February 10, 2000

In its recent "Memorandum OM 99-44," the Office of the General Counsel of the National Labor Relations Board addressed what it termed "legal issues often confronted in representation and unfair labor practice cases arising in the health care industry." Specifically, the Memorandum explores the current state of the law regarding the supervisory status of charge nurses. This issue, which becomes critical when a labor union seeks to organize nursing personnel, continues to generate controversy and litigation despite a 1994 decision by the U. S. Supreme Court. The Court disagreed with the Labor Board's position that charge nurses are not supervisors because they exercise supervisory authority only in the interests of patient care, not in the interests of the employer.

The General Counsel's Guideline Memorandum was discussed in the Fall 1999 issue of The Health Care Employer. Reprinted below is Part Two of the Guideline, "Checklist for Supervisory Issues for Nurses in the Health Care Industry." The checklist is designed "for the use of Board agents serving as case investigators, hearing officers and decision writers in matters involving these issues." For health care employers, it is a useful tool for assessing whether your charge nurses meet the Labor Board's criteria for supervisory status.

Independent Judgment and Professional Responsibility

  • Describe the managerial and supervisory hierarchy at the facility.
  • What is the function that an RN or LPN is trained and licensed to perform?
  • Are nurses trained to work with less skilled aides in caring for patients?
  • To what extent does the nurse's function involve providing oversight and guidance for a small number of lower skilled, less educated employees performing routine health care tasks?
  • To what extent do nurses function in the context of the ready availability, particularly during the normal workday, of other individuals who hold Section 2(11) status (such as a Director of Nursing, Assistant Director of Nursing or other admitted supervisors)?
  • Is the relationship between nurses and aides at the facility in question any different than the relationship that nurses are normally trained to have or that prevails at other comparable facilities?
  • Do nurses work sometimes as charge nurses and sometimes as staff nurses?
  • Is the relationship between nurses and aides different depending on whether the nurse is functioning as a charge nurse or a staff nurse?
  • Does the facility have detailed protocols spelling out management's policy with respect to various aspects of patient care? [Rest Haven Living Center, Inc., 322 NLRB 210, 211 (1996)]
  • Do individual patients have detailed care plans specifying how they are to be treated? Who pre-pares them?
    • VIP Health Services, Inc. v. NLRB, 164 F.3d 644, 649 (D.C. Cir. 1999)
  • Are there Medicaid and Medicare patients, so that the facility is subject to the guidelines that Medicaid and Medicare provides for such patients?
  • How are these Medicaid, Medicare, or state requirements communicated and enforced in the facility?
  • If such guidelines must be followed to meet regulatory and other requirements, who is responsible for making sure that the "letter of the law" is carried out?
  • What responsibility do the DON, the ADON, and other conceded supervisors have to ensure compliance?
  • How do the DON, the ADON, and other conceded supervisors inform themselves about whether their subordinates are complying with external regulations and the facilities' own guidelines?
  • How are they and their subordinates evaluated with respect to these matters?
  • Do nurses have authority to depart from the facility's guidelines, protocols, and individual patient care plans?
    • American Radiator & Standard Sanitary Corp., 119 NLRB 1715, 1717-1718 (1958)
  • Are these materials the bases for the nurses' instructions to aides concerning their patient care duties?
    • VIP Health Services, Inc. v. NLRB, supra.
  • If the guidelines or regulations allow discretion, who exercises that discretion?
  • If there is uncertainty concerning what guidelines mean because of ambiguities or apparent conflicts, who has authority to decide what action the guidelines require?
  • Does the charge nurse have authority to resolve such doubtful issues by herself or by himself, or do persons higher in authority, such as the director of nursing or a doctor, have to be consulted?
  • How frequently do such issues arise and how are they resolved in practice?
  • What mechanisms are in place for ensuring compliance with the facility's guidelines and external regulations during evenings, nights, or weekends when the DON is not on site?
  • To what extent are the activities on the evening and nightshift more routine than those on the day shift?
  • Are higher authorities available by telephone if nonroutine problems arise on the evening or night shift or on weekends?
    • Children's Habilitation Center, Inc. v. NLRB, 887 F.2d 130, 133, 134 (7th Cir. 1989);
    • NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1279 (5th Cir. 1986);
    • NLRB v. Heid, 615 F.2d 962, 964 (2d Cir. 1980);
    • Oil, Chemical and Atomic Workers Int. Union v. NLRB, 445 F.2d 237, 241-242 (D.C. Cir. 1971);
    • NLRB v. City Yellow Cab Co., 344 F.2d 575, 581-582 (6th Cir. 1965);
    • Lowery Trucking Co., 200 NLRB 672, 673-674 (1972);
    • Contra, Grancare Inc. v. NLRB, 137 F.3d 372, 376 (6th Cir. 1998);
    • Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 341-342 (4th Cir. 1998)]
  • What are the standing orders concerning when off-duty supervisors should be called and what are the sanctions if they are not called when they should be? How frequently are such calls made?
    • Northcrest Nursing Home, 313 NLRB 491, 500 (1993);
    • Compare, NLRB v. American Medical Services, Inc., 705 F.2d 1472, 1473 (7th Cir. 1983) and
    • Northwoods Manor, Inc., 260 NLRB 854, 854-855 (1982) with
    • NLRB v. Orr Iron, Inc., 508 F.2d 1305, 1305 (7th Cir. 1975) and
    • Diversified Health Services, 180 NLRB 461, 461 (1969)
  • Are there established procedures for handling emergency situations? Are nurses and aides trained how to respond to emergencies in accordance with the facility's procedures?
  • Are the nurses subject to state licensing requirements and professional codes of ethics in their dealings with aides?
  • Do nurses have a professional obligation to prevent patient abuse and to report misconduct?
  • Does the facility consider that professional obligation in deciding whether its staffing pattern is adequate to ensure sound patient care?
  • To what extent is the nurses' authority with respect to the aides limited to making sure they keep busy?
    • Polynesian Hospitality Tours, 297 NLRB 228, 228-229 (1989);
    • Precision Fabricators, Inc. v. NLRB, 204 F. 2d 567, 568-569 (2d Cir. 1953)
  • If someone puts in an IV incorrectly or fails to refill a drip in a timely manner, is the charge nurse responsible for correcting the situation?
  • Does that correction involve more than a more skilled and experienced person's directing an aide to follow standard operating procedures? Does the nurse have discretion about whether to make the correction?

Assignment and Direction of Work

  • Does the facility have policies dictating the staffing coverage that is required?
  • Do the charge nurses have the authority to call in additional nurses or aides or to authorize over-time for nurses or aides?
  • Under what circumstances can the charge nurses call in additional personnel, or to authorize over-time?
  • Do the charge nurses need permission from higher authority before calling in additional personnel or authorizing overtime?
  • Are the charge nurses in dispute subject to discipline if they call in additional personnel or authorize overtime without securing permission from higher authority?
  • If approval was not obtained from higher management authority, do the employees called in or asked to work overtime by the charge nurses receive overtime?
  • Do existing staffing guidelines address or cover situations requiring employees to work overtime? Are existing staffing guidelines mandatory? Is there any scope for independent judgment, or is the charge nurse, in authorizing overtime or calling in additional staff, merely the conduit for transmit-ting decisions made by higher management?
  • Can charge nurses reassign personnel to different floors or wings of a facility to compensate for under-staffing or over-staffing, or if a wing is not busy?
  • Before reassigning personnel among the floors or wings, do charge nurses have to obtain approval from higher management?
  • Who decides what constitutes "understaffing"? Do charge nurses determine when a floor or wing is under-staffed?
  • Are understaffing determinations made by reference to a standard formula that factors in the number of staff, the number of patients, and the relative acuteness of the patients' symptoms? Is the under-staffing decision a routine or clerical discharge of professional duties, or is it an exercise of supervisory independent judgment?
  • Do charge nurses have the authority to require employees to come in or stay at work beyond their regular shift? Or do charge nurses merely request that employees do so?
    • Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir. 1997);
    • Children's' Habilitation Center, Inc. v. NLRB, supra.; NLRB v. City Yellow Cab Co., supra.
  • Does the facility have a prescribed staff-patient ratio that must be maintained or is there discretion with respect to determining the level of staffing?
  • When calling in employees or seeking employees to work overtime, do charge nurses have discretion to determine who should be called in or asked to stay beyond their shift? Is there an established routine to determine which employees are called or asked?
  • Do charge nurses make assignments to other staff personnel? What kinds of judgments are involved in making assignments nurses or aides?
  • Assuming that charge nurses are responsible for making assignments to other personnel, to what extent are the assignments rotated, altered or made in accordance with an established routine?
  • Do the charge nurses make assignments based on the generally known skills associated with an employee's classification?
    • Providence Hospital, 320 NLRB 717, 727, 731 (1996);
    • NLRB v. Aquatech, Inc., 926 F.2d 538, 543, 549 (6th Cir. 1991), enforcing 297 NLRB 711, 717 (1990);
    • Quadrex Environmental Co., 308 NLRB 101 (1992);
    • Clark Machine, 308 NLRB 555, 555-556 (1992);
    • Scranton Tribune, 294 NLRB 692, 693 (1989)
  • Do charge nurses have discretion to determine which among several employees should be assigned a particular task? Do the charge nurses make assignments without consultation with the employees? To what extent are assignments a matter of give and take between the charge nurse and the staff?
    • Washington Post Co., 254 NLRB 168 (1981);
    • Skaggs Drug Centers, 197 NLRB 1240 (1972);
    • Peoria Journal Star, Inc., 117 NLRB 708 (1957)
  • Do the charge nurses have authority to grant employees' lunch or other breaks?
    • Washington Nursing Home, Inc., 321 NLRB 366 (1996);
    • Northcrest Nursing Home, 313 NLRB 491 (1993)
  • Are lunch and other breaks regularly scheduled?
  • If breaks are regularly scheduled, do charge nurses have authority to alter the break times?
    • Washington Nursing Home, supra
  • Do employees bring disputes regarding breaks to the harge nurses?
    • Northcrest Nursing Home, supra
  • Do charge nurses have the authority to grant time off? To allow employees to leave early or arrive late?

Discipline

  • Has the Employer authorized the charge nurses to discipline employees? Or to make recommendations that will be given effective weight?
    • Misericordia Hospital v. NLRB, 623 F.2d 808 & n.20 (2d Cir. 1980)
  • If the Employer has authorized charge nurses to administer discipline, have other employees been notified that charge nurses have authority to discipline them?
  • Do charge nurses carry out discipline of staff personnel based on delegated authority? Or, does a charge nurse's authority to affect other employees' job status derive solely from the respect accorded to their professional or technical knowledge?
    • Southern Bleachery & Print Works, 115 NLRB 787 (1956);
    • aff'd 118 NLRB 299 (1957), enf'd. 257 F.2d 235 (4th Cir. 1958);
    • Soil Engineering Co., 269 NLRB 55, 56 (1984);
    • Stop & Shop Companies, Inc. v. NLRB, 538 F.2d 17, 19 (1st Cir. 1977)
  • Do the recommendations reflect more than a routine or technical judgment that the employee has failed to perform routine work assignments in accordance with standard operating procedures that are part of the job, regardless of who is immediately in charge?
    • NLRB v. Dickerson-Chapman, Inc., 964 493, 500 (5th Cir. 1992);
    • NLRB v. Adco Elec., Inc., 6 F.3d 1111, 1117 (5th Cir. 1993)]
  • In disciplining employees, do charge nurses complete any type of form or place any notations in employees' personnel files? Are they limited to oral counseling?
    • Beverly Enterprises d/b/a Lynwood Health Care Center v. NLRB, 148 F.2d 1042 (8thCir. 1998);
    • Waverly-Cedar Falls Health Care Center, 297 NLRB 390 (1989)
  • If charge nurses prepare written reports of discipline, what happens to these reports? Are they placed in the employees' personnel file? Do such reports affect the status of employees? Are such reports relied on as a basis for discipline or in performance appraisals? To what extent are incident reports prepared by charge nurses independently investigated?
    • Passavant Health Center, 284 NLRB 887 (1987);
    • Esco Corp., 298 NLRB 837, 838, 839 (1990);
    • Waverly-Cedar Falls Health Care Center, supra.;
    • NLRB v. Security Guard Service, Inc., 384 F.2d 143, 148 (5th Cir. 1967);
    • NLRB v. City Yellow Cab Co., supra.;
    • United States Gypsum Co., 105 NLRB 931, 934, 938 (1953);
    • E.I. Dupont de Nemours & Co., 69 NLRB 507, 517 (1946);
    • Contra, Caremore, Inc. v. NLRB, 129 F.3d 365, 370 (6th Cir. 1997);
    • Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 342-343 (4th Cir. 1998);
    • Eastern Greyhound Lines v. NLRB, 337 F.2d 84,88-91 (6th Cir 1964)
  • Do reports prepared by charge nurses contain a recommendation as to appropriate action to take against employees?
  • If charge nurses make a recommendation, how much weight do higher level officials give such rec-ommendations?
    • Legal Aid Society, 324 NLRB 796 (1997); Venture Industries, Inc., 327 NLRB No. 169, 1999 WL 161049, *3 (March 19, 1999);
    • Presbyterian Medical Center, 218 NLRB 1266, 1268 (1975)
  • Does the employer have a progressive disciplinary system?
  • Does a warning given by a nurse under the employer's progressive disciplinary system have an effect on the job status of the disciplined employee?
  • Do the charge nurses have the discretion to decide on their own whether to issue a warning that places an employee within a progressive disciplinary system, or do they need higher level approval to issue such a warning?
    • Heartland of Beckley, 328 NLRB No. 156 (July 27, 1999);
    • Passavant Health Center, supra.; Concourse Village, 276 NLRB 12, 13 (1985)
  • Is such approval granted as a matter of course, or only if higher management agrees with the pro-posed action? What evidence is there that higher management defers to the nurse's recommendation with respect to progressive discipline?
  • Do charge nurses as a condition of retaining their professional licenses have an obligation to report incidents of employee patient abuse to higher officials?
  • In practice, do other members of the staff, as well as the charge nurses, report misconduct by other employees to higher management?
  • Is the obligation of charge nurses to report misconduct any different from that of other employees?
  • Are reports from charge nurses given greater weight than from other employees or are all reports subject to independent investigation?
    • United States Gypsum Co., supra.
  • To what extent does the facility accommodate a charge nurse's request not to work with a particular aide or other nurse?
    • Southern Bleachery & Print Works, supra; Willis Shaw Frozen Food Express, 173 NLRB 487 (1968);
    • Kenosha News Publishing Corp., 264 NLRB 270 (1980); Greenspan, D.D.S., P.C., 318 NLRB 70 (1995)
  • Does charge nurse have the authority to suspend, relieve from work or send home an employee for serious misconduct, such as intoxication or patient abuse?
    • G.H. Skipper, Inc., 254 NLRB 453 (1981);
    • Phelps Community Medical Center, 295 NLRB 486 (1989);
    • Waverly-Cedar Falls Health Care Center, supra.;
    • NLRB v. Hilliard Development Corp., supra.;
    • Contra, Passavant Retirement & Health Center v. NLRB, 149 F.3d 243, 248, 249 (3rd Cir. 1998);
    • Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 343 (4th Cir. 1998)
  • Do the facility's policies and procedures require charge nurses to take certain action in case of specific misconduct by staff members?
  • Do charge nurses have the authority to send employees home? Must they obtain approval of higher officials before sending an employee home or relieving an employee from duty?
    • NLRB v. City Yellow Cab Co., 344 F.2d 575 (6th Cir. 1965);
    • NLRB v. Security Guard Service, Inc., 384 F.2d 148 (5th Cir. 1967);
    • NLRB v. Res-Care, Inc., 705 F.2d 1461, 1467 (7th Cir. 1983)
  • Does the facility have an established policy under which charge nurses can remove an employee from duty or send a staff member home for misconduct?
  • In the event an employee is relieved of duty or sent home by a charge nurse, does the employee lose any pay? Does the impact on pay turn on whether the higher authority approves the charge nurse's action?
  • Do charge nurses have the responsibility to correct faulty work by staff members? Or, do charge nurses report faulty work to higher management officials and leave any discipline to that official?

Evaluation of Employees

  • Do charge nurses authorized to evaluate employees?
    • Providence Hospital, supra;
    • Ten Broeck Commons, supra;
    • Beverly Enterprises d/b/a Lynwood Health Care Center, supra
  • If charge nurses are authorized to evaluate employees, do the evaluations contain recommenda-tions concerning wage increases, promotions, retention and the like?
    • Beverly Enterprises d/b/a Lynwood Health Care Center, supra;
    • Providence Hospital, supra
  • If charge nurses prepare evaluations, how much weight does higher level management officials give such evaluations or recommendations?
    • First Healthcare Corp., et al., 323 NLRB 1171 (1997)
  • Are charge nurses the sole source of information about employee performance?
  • Do higher-level management officials obtain input of an employee's performance from sources other than the evaluations prepared by charge nurses?
  • If so, what is the evidence that the charge nurses' evaluations have a direct causal relationship in affecting the ultimate determination whether to reward, promote or otherwise alter the job status of the evaluated employees?

Adjustment of Grievances

  • Is there a formal grievance procedure? If so, what role does the charge nurse play? Are charge nurses involved in handling grievances?
    • Passavant Health Center, 284 NLRB 887 (1987; Lakeview Health Center; NLRB 75 (1992)]
  • Regardless of whether the grievance procedure is formal, what authority does the nurse have to resolve disputes between employees or gripes about the employer's treatment of employees with respect to work assignments, rewards, discipline and the like?
    • NLRB v. Hilliard Development Corp., supra.; St. Francis Medical Center-West, 323 NLRB 1046, 1047-48 (1997);
    • Laborers & Hod Carriers Local No 341 v. NLRB, 564 F.2d 843,837 (9th Cir. 1977)
  • What disputes must be referred to higher management? What disputes, if any, can the charge nurse resolve by himself or by herself?
  • What discretion does the nurse have in resolving grievances?
  • To what extent do the limitations on the nurse's authority to assign, direct, discipline, or reward also limit his or her authority to resolve grievances?

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