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June 22, 2012

Sixth Circuit Holds That Charge Nurses Are Not Supervisors Under The National Labor Relations Act

On June 20, 2012, the United States Court of Appeals for the Sixth Circuit ruled that charge nurses employed at a long-term-care and rehabilitation-services facility were not supervisors under the National Labor Relations Act (the “Act”), and thus not excluded from the NLRA’s definition of “employee.”  Frenchtown Acquisition Company, Inc. v. National Labor Relations Board, No. 11-1418/1499 (6th Cir. June 20, 2012) (Doc. No. 006111342816).

The Court applied the 3-part test for determining supervisory status enunciated by the United States Supreme Court in NLRB v. Kentucky River Commission, 532 U.S. 706 (2001), and interpreted the NLRB’s later decision in Oakwood Healthcare, Inc., 348 NLRB 686 (2006).  Ironically, in both of those cases the nurses had been found to be supervisors.  Under Kentucky River, the Supreme Court determined that a supervisor must: (1) have authority to engage in any 1 of the 12 enumerated supervisory actions (listed in 29 U.S.C. § 152(11)); (2) use independent judgment in exercising that authority; and (3) hold that authority in the interests of the employer.  The Sixth Circuit ruled that Frenchtown’s charge nurses did not actually have the authority to assign, responsibly direct, discipline, hire, or transfer other employees, or effectively recommend these actions.  At best, this authority existed only on paper, according to the Court.

The Sixth Circuit found that, although the tasks were listed in their job descriptions, the charge nurses were not involved in the formal disciplinary process (oral or written counseling, suspensions or discharges) but were involved in issuing “in-service” training.  The Court found that such training was not part of the discipline process.  Nor was it sufficient that charge nurses sometimes sent employees home for engaging in egregious conduct, as “true” supervisors or managers subsequently investigated the conduct and made the decision whether to use formal discipline.  The Court found the charge nurses’ assignment of work and their involvement in transfers (limited to “floating” nurse’s aides based on a float list) were routine tasks not involving the exercise of independent judgment.

We invite your questions regarding the significance of the Frenchtown Acquisitions Company decision.