A long-standing battle has been waging between a nursing facility and the union trying to be recognized as the facility's nurses' and CNAs' bargaining agent. The controversy centers on the question whether the facility's LPN charge nurses fit the legal definition of supervisors. If the LPN charge nurses are supervisors, and not rank-and-file employees, they are not entitled to join the union and the union that claims to represent them as well as the rank-and-file employees cannot be validly recognized as the facility's caregivers' bargaining agent.
The US Court of Appeals for the Third Circuit (New Jersey), in its most recent ruling in the case, reviewed the factors that are taken into consideration in deciding whether a given employee of the company is a supervisor as opposed to a rank-and-file employee
Employees are supervisors if they use their own independent judgment to initiate disciplinary actions and make decisions themselves which are in effect final decisions by the company, even if those decisions are subject to re-view by higher-ups as to the supervisor's own supervisory competence.
Employees are not supervisors, even if they oversee other employees, if they only report possible disciplinary violations to those above them who make the actual disciplinary decisions.
In this case the LPN charge nurses who oversaw the CNAs' patient care could write up a CNA and make a disciplinary recommendation to the charge nurse's own supervisor, an RN. Usually, but not always, the RN, the DON and the administrator followed the LPN charge nurse's recommendation. However, it was unclear how much of the actual decision-making was done by higher-ups and not by the LPN charge nurses. The Court could not resolve the case with the evidence it has and sent it back to the hearing officers at the National Labor Relations Board for further consideration.
NLRB v. Nursing Home, __ F. 3d __, 2017 WL 3710747 (3rd Cir., August 29, 2017).