In July, the Sixth Circuit vacated the National Labor Relations Board’s determination ordering the operator of the Golden Living Center Nursing Home to bargain with a unit that was elected by registered nurses (RN). Through its decision in GGNSC Springfield, Corp. v. NLRB, ___F.3d ___, 2013 U.S. App. LEXIS 13472 (6th Cir. 2013), the Sixth Circuit determined that the RNs constituted supervisors under the National Labor Relations Act and were therefore not permitted to unionize, because they were authorized to issue employee memoranda to certified nursing assistants (CNA). The Sixth Circuit determined that the issuance of employee memoranda constituted an act of discipline and required the RNs to exercise independent judgment in making a determination as to whether to issue a memoranda or to give a verbal counseling. 

Under the act, only employees are permitted to unionize, and the definition of employee excludes any individual employed as a supervisor. There is a three-part test for determining supervisory status under the act: 

1. The group of employees holds the authority to engage in any one of the listed 12 supervisory functions (hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, direct other employees, adjust their grievances, or effectively to recommend such action);
2. The exercise of such foregoing action is not merely routine or clerical, but requires the exercise of independent judgment;
3. Their authority is held in the interest of the employer. 

The burden to prove supervisory status is on the party asserting it. 

Golden Living’s nursing staff was comprised of two directors of nursing, 12 RNs, 10 licensed practical nurses (LPN) and 46 CNAs. The RNs and the LPNs reported directly to the director of nursing or her designee and both the RNs and the LPNs were referred to as “charge nurses” and had the same duties. However, only the RNs attempted to unionize. 

When confronted with CNA misconduct, the RNs had the ability to issue a verbal counseling, which was not part of Golden Living’s four-part progressive discipline system; issue an employee memorandum; or do nothing. When an RN issued an employee memorandum, it went to the director of nursing for review and led directly to a written warning, which was one of the steps in the progressive discipline system.   

The Sixth Circuit concluded that the RNs’ authority to issue employee memoranda constituted a discipline, because it led directly to a step in the Golden Living’s progressive discipline process, and thus, the CNAs suffered an immediate adverse employment action. Furthermore, the Sixth Circuit concluded that this constituted a supervisory function, because issuing an employee memorandum required the RNs to exercise independent judgment in making the determination as to whether to do nothing, issue a verbal counseling or to issue an employee memorandum.  

Through its decision, the Sixth Circuit emphasized that the term discipline did not just mean to suspend or to terminate — it determined that even where the disciplinary act lays a foundation under a progressive disciplinary system for later personnel action, it constitutes a form of discipline. 

Accordingly, we encourage you to reexamine what duties your unionized employees are performing and to evaluate whether they are performing anything that may constitute a supervisory function under the act. 

For more information about how this case may impact your business, contact: 

• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Matthew C. Van Vessem (716.566.5476; mvanvessem@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Labor and Employment Practice Group.