This is good news for employers – especially those in Ohio, Kentucky, Michigan, and Tennessee. If you want to help insulate RNs (or other employees) from unionizing, allow them to give a written memorandum that causes the initiation of a step in a disciplinary policy (written warning). This qualifies as “discipline” under the National Labor Relations Act, and employees with this authority are statutory supervisors.
A statutory supervisor is defined by Section 2(11) NLRA 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.
The list of supervisory functions is written in the disjunction (“or”), so an individual must generally possess authority to exercise only one of these functions in order to qualify as a supervisor.
Here, a written warning was expressly included in the policy as a step in the progressive discipline process. Since the RNs had the authority to independently write memoranda that automatically resulted in a written warning, these RNs were supervisors because they exercised authority to discipline.
Like most decisions involving the determination of supervisory status, this one only applies to these facts. Labeling workers as “charge nurses” or “supervisors” is not enough. Nor would it be sufficient to include language in a job description that appears to give certain authority, especially if it is paper authority only and never actually exercised by the employees. Companies that want to delegate supervisory authority to RNs or other employees should make sure that their policies and job descriptions reflect this intention, and those workers should be trained along with other management employees concerning their responsibility for discipline.
Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.