A South Carolina nursing home must bargain with a union because its nurses are not ineligible supervisors, according to a Nov. 1 opinion by the 4th U.S. Circuit Court of Appeals.
The court’s panel unanimously upheld the National Labor Relations Board’s ruling that nurses at Palmetto Prince George Operating in Georgetown are not supervisors under the National Labor Relations Act because they do not exercise sufficient independent judgment.
Palmetto argued that its nurses are supervisors because they have the authority to discipline and responsibly direct certified nursing assistants.
The court disagreed.
“Substantial evidence supports the Board’s finding that the nurses are not supervisors because their duties do not require the exercise of independent judgment,” Judge Diana Gribbon Motz wrote.
Last year, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union sought to represent the nurses as their exclusive bargaining representative. Palmetto claimed that the nurses had no bargaining rights under the NLRA, and refused to recognize the union as the nurses’ representative and bargain with it.
After being ordered to bargain with the union, Palmetto filed a petition for review. The Board cross-petitioned for enforcement of its order.
The board’s call
Court documents show that Palmetto’s management team consists of a director of nursing, an assistant director of nursing, and three unit managers, all of whom discipline the nursing staff and arrange the nurses’ schedules and assignments. Twenty-three nurses work at the center and each is tasked with assessing patients, answering call lights, administering medications and performing general patient care duties. Nurses are described in Palmetto’s handbook as the “first line of authority” for the center’s 40 CNAs and are listed above CNAs in the company’s organizational chart.
Palmetto contended its nurses were supervisors because they could discipline and direct other employees, but conceded that they lacked the authority to perform 10 other functions that define a supervisor under the NLRA: the ability to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, and to adjust employees’ grievances.
So, does what nurses do rise to “independent judgment”? Depends on the definition.
The court noted that the Act left the term undefined and that the Supreme Court held that it “is ambiguous with respect to the degree of discretion required for supervisory status.”
Palmetto asserted that the definition should come from prior 4th Circuit rulings rather than the board’s decision.
But in 2001, the U.S. Supreme Court ruled in NLRB v. Kentucky River Community Care, Inc. that it “falls clearly within the Board’s discretion to determine, within reason, what scope of discretion qualifies.”
With this discretion, the board determined that to exercise independent judgment, an individual must act or recommend action “free of the control of others and form an opinion or evaluation by discerning and comparing data.”
If you say so
Five years later, the board concluded in In re Oakwood Healthcare, Inc. that “a judgment is not independent if it is dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective bargaining agreement.”
Palmetto did not contest the board’s interpretation of “independent judgment,” but argued that 4th Circuit analyses of the term in prior cases involving nurses were “consistent” with Kentucky River and Oakwood, and should control.
The court noted that this is the first case requiring it to address the precedential value of pre-Oakwood cases, writing: “It is settled law that an agency construction entitled to deference supersedes a prior judicial construction of an ambiguous statute.”
“In Oakwood, the Board adopted a reasonable interpretation of ‘independent judgment,’ Motz wrote. “As we recently noted, there is no conflict between the Board’s interpretation and the text of [the Act] or Congress’s intent to distinguish ‘true supervisors’ from employees whom the Act protects.”
Palmetto’s insistence that nurses use independent judgment in disciplining CNAs fell on deaf ears.
“The record before us contains very scant evidence of oral counseling and only three instances in more than three years … of nurses filing written reports of CNA misconduct,” the court wrote.
An attorney for Palmetto, Jennifer Fowler-Hermes of Sarasota, Florida, said that she is disappointed that the court diverged from the way it weighed facts in prior similar circumstances.
“In prior decisions, the Court’s repeatedly pronounced that the primary focus in this Circuit in determining supervisor status should be on the vesting of authority, as opposed to the frequency with which the authority is used,” she wrote in an email.
Palmetto also contended that nurses must use independent judgment when they responsibly direct the work of CNAs. Testimony showed that nurses are responsible for making sure CNAs follow all policies, from bathing residents to dealing with patient abuse. The court observed that in addition to extensive in-house policies, state law and OSHA regulations provide additional protocols.
On-site but not in charge
Palmetto leaned on the fact that managers are at home each night and on the weekends, leaving nurses as the senior staff on duty. But under Oakwood, the court found that Palmetto’s instructions control the nurses’ discretion, even when no manager is present.
“In every case, the Nurses’ responsibility seems to amount to the same thing: making
sure the CNAs follow the written instructions,” Motz wrote. “This suggests that the Nurses serve merely as conduits for these instructions.”
“The Court’s determination, that by providing specific training to all nursing staff as to how care is to be given eliminates the need for the nurses to use independent judgment in assessing patients’ needs and directing their care, is confounding,” Fowler-Hermes wrote.
Fowler-Hermes added that with the right case, she believes the ruling can be challenged “on the grounds that the burden imposed on employers to establish supervisory status is greater than contemplated by section 2(11) of the NLRA,” she wrote.
A spokesperson for NLRB, Jessica Kahanek, declined to comment, saying only that “The decision speaks for itself.”
The 17-page decision is Palmetto Prince George Operating LLC v. NLRB (Lawyers Weekly No. 001-154-16). A digest of the opinion is available online at sclawyersweekly.com.
Follow Heath Hamacher on Twitter @SCLWHamacher