By: Anne D. Harris, Esq.

On July 2, 2013, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated an NLRB ruling and found that registered nurses employed by a nursing home were supervisors under the National Labor Relations Act. 

The dispute arose in 2011 when the International Association of Machinists and Aerospace Workers petitioned the NLRB to represent the RNs in collective bargaining. The employer opposed the petition, arguing that the nurses had the authority to discipline, assign, and responsibly direct nursing assistants using independent judgment— therefore establishing supervisory authority and precluding union representation. 

The Board’s Regional Director rejected this argument; the union won the election among the RNs; and the employer refused to bargain with the union.

At issue in the subsequent unfair labor practice proceedings was an RN’s authority to deal with certain types of misconduct by nursing assistants. Specifically, in response to such misconduct, the RNs had authority to do nothing, provide verbal counseling, or draft a written memorandum. Although the panel majority agreed with the NLRB that verbal warnings were educational and not disciplinary, it found that the memorandum counted as a “step” in the employer’s disciplinary system. As such, the panel majority concluded that, “the authority that RNs have to issue memoranda to [nursing assistants] is the authority to discipline.” Furthermore, it found that the RN’s ability to decide which method to use constituted an exercise of independent judgment. 

Judge Merritt argued in a heated dissent that the majority expanded the definition of “discipline” beyond the longstanding definition of the term and created “a standard designed simply to foreclose collective bargaining, avoid unions, and go back to the unstable labor-management relations that existed prior to the New Deal.”

**A final word on this case. The Court was confronted (in a letter from the employer, after briefing was complete) with a Noel Canning argument concerning the Board’s authority to issue the underlying order. The Court agreed with the NLRB that the employer’s challenge to the recess appointments to the Board was not a jurisdictional issue, and the employer had waived the argument by not raising it earlier in the litigation. Whether its reasoning is correct, the Sixth Circuit’s decision underscores the importance to employers of raising the “recess appointments” issue at the earliest stage of any NLRB proceeding in which the employer is involved, at least until the Supreme Court rules on this issue.