NLRB Defies Common Sense to Rule a Supervisor is Not a Supervisor

A small hospital, with 15 in-patient beds, operates 24 hours a day, 7 days a week with a nursing staff that includes 6 PCC (who are registered nurses) and their subordinates: 8-9 registered nurses, 3 licensed practical nurses, and 1 certified nurse assistant.

The PCC position was created specifically to have someone accountable for the shift-by-shift work flow of the department in addition to supervising the employees on their shift. The PCCs provided overall supervision of staff and patient care during shift and serve as the bedside leader for the nursing team during shift. Moreover, from 7:00 PM until 8:00 AM Monday through Friday, and every weekend from 5:00 PM Friday through 8:00 AM Monday, the PCC is the only person present most of the time who can give directions and assignments to the nursing staff. Sounds like PCCs are supervisors to me.

Despite these facts, the National Labor Relations Board majority (also known as the two pro-union Members) affirmed the Regional Director’s finding that the PCCs do not exercise any supervisory functions. Member Miscimarra disagreed. He disagreed that the PCCs were not accountable for the performance of the nurses given the undisputed testimony that the employer created the position to ensure that there was accountability for how the department operated on a day-to-day basis. He pointed to additional factors evidencing the PCCs’ supervisory status, primarily that the PCC is the highest-level official at the hospital 13 hours of each day ad approximately 63 hours straight each weekend. He also left us with this gem:

The Regional Director determined that the PCCs are not supervisors, so the question arises, who is in charge in this life-or-death situation? If there are four acute in-patients at the time a critical patient arrives and two nurses on duty, who decides which nurse will take care of which patient? Who decides what treatment to begin? Who evaluates the condition of the patients and the abilities of each nurse? To state the obvious, these are not appropriate judgments to resolve by a coin toss or drawing straws. Someone has to be in charge of this facility at all times, including times when no manager and perhaps no physician is present.

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The notion that nobody exercises ‘supervisory’ authority in this type of work setting for such extended periods of time fails the ‘test of common sense.’ The Regional Director and my colleagues endeavor in this case to ensure that the Board’s supervisory determinations are consistent with our statute. However, I believe the finding that PCCs are not supervisors under Section 2(11) provides yet another illustration of the principle that ‘common sense’ is not so common.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.