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A Better Partnership


Jun 2006
June 01, 2006

Sixth Circuit Rules Floor Nurses are Supervisors Under the National Labor Relations Act

On May 9, 2006, the Sixth Circuit Court of Appeals (whose jurisdiction includes Michigan) overturned the National Labor Relations Board and ruled that certain nurses in a long-term care facility are "supervisors" under the National Labor Relations Act and cannot create or join a labor union.

In Extendicare Health Services, Inc. v. NLRB , the employer at issue operated a 125-bed long-term nursing care facility in St. Paul, Minnesota. The nursing department at the facility was run by a Director of Nursing with four Nurse Managers reporting to the Director. Reporting to the Nurse Managers were five Registered Nurses and 23 Licensed Practical Nurses who were collectively referred to as "floor nurses." Approximately 65 Nursing Assistants reported to the Floor Nurses.

In finding that the floor nurses were supervisors under the Act, the Court relied on the fact that the floor nurses exercised independent judgment by monitoring and directing the nursing assistants' work and recommending discipline for the nursing assistants. Although each resident had orders and care plans, the floor nurses still needed to assess resident's needs, decide what care was necessary and direct an assistant to provide the necessary care. In addition, the floor nurses were authorized to provide written direction and initiate formal disciplinary proceedings in the event that a floor nurse witnessed misconduct. Although the floor nurses had no authority to make the final decision on discipline, the fact that they could file reports indicated that they played an effective part in the disciplinary process. Based on these indicia of supervisory status, the Court ruled that the floor nurses were in fact supervisors and could not be organized.

This case continues a long-running feud between the NLRB and the Courts on whether or not charge nurses constitute supervisors under the Act. The NLRB has recently granted review on a number of cases involving charge nurses as supervisors, however, and may be preparing to reverse its position. A larger issue is the implications of these decisions on nurses practicing in acute-care hospitals. These decisions open the door for a hospital to argue that those nurses who assign, direct and recommend discipline to other employees could constitute supervisors and, therefore, be unable to join or form labor unions.

If you have any questions about this decision or the underlying issues it presents, please contact me or any member of WN&J's Labor Practice Group.


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