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NLRB excludes charge nurses from union eligibility in supervisor ruling

[JURIST] The US National Labor Relations Board (NLRB) [official website] on Tuesday excluded from union eligibility [press release] workers who "assign others to a location, shift or significant tasks" in a case involving 12 charge nurses in a Minnesota hospital. In its decision [text], a three-member NLRB panel interpreted the definition of the terms "assign," "responsibility to direct," and "independent judgment," in a broad sense so as to include the nurses.

Under the National Labor Relations Act [text] and interpretative case law, individuals are supervisors if (1) they hold the authority to engage in any 1 of the 12 supervisory functions listed in Section 2(11); (2) their "exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment;" and (3) their authority is held "in the interest of the employer." Section 2(11) 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."

Responding to the 2001 US Supreme Court decision in NLRB v. Kentucky River Community Care [text], the Board concluded that the employer challenging the unionization of the hospital staff presented enough evidence for the Board to find that the 12 charge nurses were supervisors based on their "authority to assign employees using independent judgment." The charge nurses were responsible for assigning other nurses to various tasks, and the Board found that:

A charge nurse's analysis of an available nurse's skill set and level of proficiency at performing certain tasks, and her application of that analysis in matching that nurse to the condition and needs of a particular patient, involves a degree of discretion markedly different than the assignment decisions exercised by most leadmen.
The Board concluded that this determination constituted "independent judgment," therefore qualifying the 12 charge nurses as supervisors.

Two dissenting panel members, both Democrats, wrote that the broad interpretation of "independent judgment" used by the majority threatens to "create a new class of workers under federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees." In two related opinions, the NLRB held [opinion 1; opinion 2] that other workers with limited supervisory duties cannot be considered employees. The New York Times has more.

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