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Letter to the Editor

  • The article on lateral violence (LV) in nursing and the theory of the nurse as wounded healer (Christie & Jones, 2014) in the March issue really captured the damaging effect of LV on the entire organization and how important early intervention is to eradicate its cycle repetition.

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When Does Delegating Make You a Supervisor?

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Jennifer Matthews, PhD, RN, ACNS-BC

Abstract

An important aspect of the professional nurse role is that of delegating certain activities to others. In 1935 the United States (U.S.) Congress enacted the National Labor Relations Act (NLRA), and the associated National Labor Relations Board (NLRB), to protect the rights of employees and employers and to encourage collective bargaining in industrial settings. In 1947 the Act was amended to exclude supervisors from the definition of “employees” for the purposes of collective bargaining. In 1974 Congress provided for collective bargaining for various professional personnel, including staff nurses in all work settings. Nursing supervisors, because they were supervisors, were excluded from collective bargaining. Over subsequent years the definition of a nursing supervisor has been debated in courts of law. These debates have implications for nurses who practice in agencies that have collective bargaining units. This article considers the NLRA and NLRB activities related to delegation in nursing by reviewing the history of the NLRA and NLRB; defining key terms; presenting the various interpretations, rulings, and decisions of the NLRB; and providing a summary of recent decisions related to workplace supervisory practices. Delegation-related activities of the U.S. Executive Branch and activities of professional nursing organizations are described. Nursing implications of these laws, rulings, and interpretations are addressed.

Citation: Matthews, J., (May 31, 2010) "When Does Delegating Make You a Supervisor?" OJIN: The Online Journal of Issues in Nursing Vol. 15, No. 2, Manuscript 3.

DOI: 10.3912/OJIN.Vol15No02Man03

Key words: delegation, supervision, NLRA, NLRB, assign, independent judgment, responsibly direct, charge nurse, American Nurses Association, National Council of States Boards of Nursing, advocacy, collective bargaining

This article offers a review of the National Labor Relations Act, rulings by the National Labor Relations Board (NLRB), and the decisions of the United States (U.S.) Supreme Court that affect the practice of each registered nurse. Few nurses realize how federal laws shape their work environment and their work relationships with their nurse colleagues. It is important that all nurses inform themselves as to how these laws and rulings control nursing practice.

Legal rulings determine which nurses are classified as ‘management’ and as such are ineligible to participate in union activities...These federal laws categorize who is eligible to be a member of a union, define supervision, and determine who is classified as a ‘supervisor’ and who is classified as a ‘professional' employee. Legal rulings determine which nurses are classified as ‘management’ and as such are ineligible to participate in union (collective bargaining) activities, and which nurses are classified as ‘staff’ and are thus eligible to hold membership in a collective bargaining unit. The interpretations of these federal laws over the years have affected nurses and their career progression as they have made decisions and choices to accept or bypass supervisory positions during the course of their careers.

Additionally, every state and U.S. territory has a Board of Nursing (BON) with the legal regulatory authority to define nursing and the practice of nursing and also to enforce its regulations. State Nurse Practice Acts describe the acceptable nursing activities in a given state, such as the delegation of tasks and use of labor-related phrases including ‘transfer of responsibility,’ ‘authorizing provision of services,’ and ‘assigning the authority to perform selected nursing tasks under supervision.’ Generally BONs note that the nurse is expected to be accountable and/or responsible for the tasks delegated; however, a few state practice acts refer to the nurse as responsible for ‘supervising’ the delegate to perform a task (NCSBN, 2005).

In this era of instant communication regionally, nationally, and globally, nurses share freely with each other their best practices regarding delegation. As nurses learn new delegation and supervisory practices from each other, they must be able to determine what is compatible in their work setting. Nurses must be aware not only of the regulations of their Board of Nursing (BON) but also of federal regulations that impact who can delegate to other individuals, who is a supervisor, and who is eligible to participate in collective bargaining.

This article considers the NLRA and NLRB activities related to delegation in nursing by reviewing the history of the NLRA and NLRB; defining key terms; presenting the various interpretations, rulings, and decisions of the NLRB; and providing a summary of recent decisions related to supervisory practices. Delegation-related activities of the U.S. Executive Branch and professional nursing organizations are described. Nursing implications of these laws, rulings, and interpretations are addressed.

The National Labor Relations Act and the National Labor Relations Board

...the NLRB is responsible for preventing and remedying unfair labor practices. This section will discuss the history of the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB). It will also present important NLRA definitions, along with interpretations, and rulings and decisions by the NLRB. It will conclude with a summary of recent decisions related to supervisory practices. In this article the various acts and rulings are referenced in Table 1. The acts/rulings each have a bracketed number assigned in the order in which they are discussed. These numbers correspond with the bracket-numbered references in Table 1.

History of the National Labor Relations Act and National Labor Relations Board

In 1935 Congress enacted the National Labor Relations Act [1], (referred to as the Act or NRLA) (NLRB, 1935) with the intent to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices that could harm the general welfare of workers, businesses, and the U.S. economy. Congress created the National Labor Relations Board (NLRB) and invested it with the authority to administer the laws of the Act [2]. The NLRB administers the law, receives arguments from parties contesting interpretations of the Act, and provides rulings on these cases which then become part of U.S. labor law. In hearing and providing rulings, the NLRB serves as a quasi-judicial board. This means that although the Board is not a court of law, its interpretations of the law add to the body of U.S. labor law. These interpretations must be adhered to; anyone ignoring them is subject to the penalty of the law.

Congress has amended the Act several times, most notably in 1947 with the Taft-Hartley Amendments or the Labor Management Relations Act [3]. These amendments provided, among other things, that while supervisors can join labor unions, employers shall not be compelled to deem individuals defined as supervisors as employees for the purposes of collective bargaining [4]. In 1974 Congress added amendments to the NLRA to place non-industrial-setting employees, such as employees in higher education (for example university faculty) and healthcare institutions (notably nurses), under the NLRA’s statutory regulation. This amendment provided for collective bargaining for staff nurses in all work settings (Huckell, 2008) [5].

Laws that are created by the U.S. Congress or a state legislature are statutes, or statutory laws. Laws created by the Congress are the highest level of law because federal law supersedes state or municipal law. Regulatory law is created by the executive branch or its agencies at either the state or federal level. Regulations enacted by state boards of nursing are examples of regulatory laws. The NLRA is considered federal statutory law and the rulings of the NLRB become law as part of the Act. The NLRB is an independent federal agency with two principal functions:

    (a) to determine through a secret ballot process the free democratic choice by employees whether they wish to be represented by a union in dealing with their employers and if so, by which union; and

    (b) to prevent and remedy unlawful acts, called unfair labor practices, by either employers or unions (NLRB, n.d.).

Under the NLRA [6], the NLRB is responsible for preventing and remedying unfair labor practices. Based on the NRLA, charges of unfair labor practices and petitions for employee union elections are filed with the NLRB in one of its 51 regional or resident offices. Decisions regarding the conduct of representation elections and whether to issue a complaint of an unfair labor practice are made by the Regional Director where the election or unfair labor practice claim arises. Decisions as to whether an unfair labor practice has been committed are rendered by administrative law judges who are delegated the authority to make rulings based on evidentiary hearings and prior decisions under the NLRA. Appeals of a NLRB Administrative Law Judge decision may be made to the NLRB which makes decisions and issues rulings (NLRB, n.d.). The NLRB does not have the power to enforce its rulings. Rather, enforcement of the rulings occurs through the court system, usually by written notices called injunctions from the federal district or circuit court in the region where the complaint originated [6] (NLRB, n.d.).

Table 1. References Related to the NLRA and Subsequent Rulings

Bracketed
Number

Act Citation

1

The National Labor Relations: Act 29 U.S.C. § 151–169; Title 29, Chapter 7, Subchapter II, United States Code (U.S.C.)

2

Act Sec. 3. § 153)

3

Taft Hartley Labor Management Relations Act (LMRA) 29 U.S.C. §§ 141–197, Title 29, Chapter 7, U.S.C.)

4

Act § 2(3), 61 Stat. 137, as amended, 29 U. S. C. § 152(3); Act § 14(a), as amended, 29 U. S. C. § 164(a).

5

Public Law 93–360, Act § 1(b), July 26, 1974, 88 Stat. 395, added par. (14)

6

Act 29 U.S.C. § 151–169; Title 29, Chapter 7, Subchapter II, Sec. 10. §160(a) & §164(a)

7

Act § 2(3), 61 Stat. 138, codified at 29 U.S.C. §152 [11, 12]

8

Act § 2(3), 61 Stat. 138, codified at 29 U.S.C. §152 [11]

9

Act § 2(3), 61 Stat. 138, codified at 29 U.S.C. §152 [12]

10

NLRB v. Health Care & Retirement Corp. of America, 511 U.S.571, 1994

11

Kentucky River Community Care 323 NLRB No. 209, (1997) [NLRB 9–CA–34926]

12

NLRB v. Kentucky River Community Care, 532 U.S. 706, 2001

13

In re Oakwood Healthcare, Inc. 348 NLRB 727 (2002, 2006) [NLRB case 7-RC-22141]

14

Beverly Enterprises-Minnesota, Inc., doing business as Golden Crest Healthcare Center, 348 NLRB (1999); 727 (2006) [NLRB cases 18-RC-16415 and 18-RC-16416]

15

Croft Metals, Inc., 348 NLRB, 2002; 717 (2006) [NLRB case 15-RC-8393]

16

In re Oakwood Healthcare, Inc; 348 NLRB 686, (2006) [NLRB 7-RC–22141]

Key Definitions in the NLRA

The NRLA definitions (See Table 2), found in Section 2 (11) and 2 (12), have been a source of contention within the healthcare and other arenas since the 1974 amendments [7].

Table 2. NRLA Definitions- Supervisor and Professional Employee (8)

(11) The term "supervisor" means 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.

(12) The term "professional employee" means--

(a) any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes; or

(b) any employee, who (i) has completed the courses of specialized intellectual instruction and study described in clause (iv) of paragraph (a), and (ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in paragraph (a).

Interpretation of the NLRB

The questions that surface repeatedly are ‘who is a supervisor?’ and ‘in what capacity must a nurse be in to be assigned the role of supervisor?’ The NLRA [8] defines a supervisor as an individual who (in the interest of the employer), in the course of one’s work, does any single act among 12 actions that are listed in Table 2, and that require the use of independent judgment, and that are not routine or clerical in nature. The legal debate regarding the definition of a supervisor centers on the meaning of the phrase “supervisor” who uses “independent judgment,” and on how the term “supervisor” is applied in the workplace for professional employees, such as nurses. The questions that surface repeatedly are ‘who is a supervisor?’ and ‘in what capacity must a nurse be in to be assigned the role of supervisor?’ Nurses are employees who perform “predominantly intellectual … work … involving the consistent exercise of discretion and judgment in its performance” [9]. The educational preparation of nurses consists of courses of specialized intellectual instruction and study; culmination of these courses allows a candidate to take the National Council Licensure Examination (NCLEX)® (National Council of State Boards of Nursing, 2005). Nursing is a profession in which each nurse demonstrates elements of independent judgment and discretion throughout the professional provision of patient care. Rarely would the work of a nurse be considered either rote or ‘standard clerical routine’ as might be found on an assembly line where a distinct task is completed with minimal thought or decision. Additionally, each nurse has regulatory authority, provided by each state’s nurse practice act, to assign or delegate routine tasks to professionals and non-professionals and to direct them in performance of the task (ANA & NCSBN, 2006).

The position of the charge nurse role has evolved over time. The charge nurse has traditionally been the nurse who served as the unit leader for a work period (a shift) and who was selected based on his/her demonstrated knowledge, clinical competence, and experience as a staff nurse. More recently healthcare organizations have moved to formalize the activities and responsibilities of the shift charge nurse and establish eligibility requirements, such as level of education, aptitude in managing stressful situations, and experience as a nurse or length of residency on the unit. Some organizations now assign charge nurses on a rotating basis and others have created permanent charge nurse positions so there is stability and consistency for the unit staff and work environment. Organizations have also moved toward developing position descriptions and requiring more formal preparation by up-skilling these nurses with continuing education in areas such as time management, management of conflict and conflict resolution, and safety issues.

The majority of the activities of a charge nurse require quick and perceptive analysis of the unit’s point-in-time status and imminent changes. These activities include:

  1. coordinating pending admissions, transfers, and discharges
  2. knowing the patients’ health conditions and needs
  3. knowing and making judgments about the competencies of all team members
  4. understanding of the processes and needs of the interdisciplinary teams
  5. facilitating customer and staff relationships
  6. anticipating and preparing for smooth transitions
  7. managing an immediate response and being present at any patient care crisis
  8. making decisions regarding daily assignments

...over time, the charge nurse position in some facilities has become more similar to the role of a shift supervisor. In summary, the charge nurse is responsible for the coordination and provision of patient care throughout the unit. Thus, over time, the charge nurse position in some facilities has become more similar to the role of a shift supervisor.

About 15 years after nurses were granted the right to participate in collective bargaining, a series of rulings delivered by the NLRB Board became the basis of subsequent decisions related to the definition of a nursing supervisor. Some of these decisions were contested and brought to the higher courts, including the U.S. Courts of Appeals and the U.S. Supreme Court. These courts have issued decisions that deemed nurses to be supervisors if they responsibly directed other employees in the interest of the employer [italics added]. Several significant cases are outlined and referenced in Table 3. Throughout the NLRB’s fact-finding investigations and at official hearings, the American Nurses Association (ANA) provided input via amici curiae briefs and counsel in support of nurses, the profession, and the rights of nurses to advocate through collective bargaining (ANA, 2003a). These briefs and counsel became part of the official court record and were entered into the file for each case. Additional detail is found at the ANA website (ANA, 2010).

Table 3. Select NLRB Rulings Addressing Charge Nurses as Supervisors

NLRB case

Circuit Court of Appeals
OR
US Supreme Court Opinion

 

 

1970

Doctors’ Hospital of Modesto, Inc., 193 NLRB 833 (1970)

found charge nurses were not statutory supervisors when directing less skilled employees but were exercising professional responsibility in the interest of patient care

1973

United States Court of Appeals, Ninth Circuit

NLRB v. Doctor’s Hospital of Modesto, Inc., 489 F.2d 772 (9th Cir. 1973)

agreed with the NLRB stating the NLRB did not abuse its discretion and its fact-finding was not clearly wrong; the court granted enforcement of the decision

 

 

1986

Beacon Light Christian Nursing Home, Case 277 NLRB No. 109 (1987)

found nurses were not supervisors when responsibly directing employees in professional judgment

 

1987

US Sixth Circuit Court of Appeals

NLRB v. Beacon Light Christian Nursing Home, 825 F 2d; 1076 (6th Cir. 1987)

disagreed with NLRB analysis and criticized the NLRB as irrational in its finding

The Court of Appeals found individuals who responsibly direct employees are supervisors whether in healthcare or other industries

 

 

1993

Health Care & Retirement Corp of America; 306 NLRB 63 (1992)

found that certain nurses’ supervisory activity is incidental to the treatment of patients and is not authority exercised in the interest of the employer

1993, 1994

US Sixth Circuit Court of Appeals

Health Care & Retirement Corp. v. NLRB, 987 F.2d 1256 (6th Cir.1993)

reversed the NLRB ruling and stated that the decision that the Board's test for determining nurses' supervisory status based on nurses’ work being in the patent’s (not the employer’s interest) was inconsistent with the statute

US Supreme Court

NLRB v. Health Care and Retirement Corp. of America, 511 U. S.571, (1994)

affirmed the Court of Appeals and found that the staff nurse is a supervisor because the NLRB's test for determining whether nurses are supervisors is inconsistent with the statute

5 to 4 decision

 

 

1997

Kentucky River Community Care, Inc. et al. 323 NLRB No. 209 (1997)

determined that the respondent, Kentucky River, was an ”employer” and must bargain with the union

1999

US Sixth Circuit Court of Appeals
Kentucky River Community Care. Inc. v. NLRB, 193 F.3d 444, (6th Cir.1999)

Affirmed the employer status and rejected the NLRB test for independent judgment of nurses as reflecting expertise in patient care, and further reiterated the court’s ruling that “nurses are supervisors when they direct assistants with respect to patient care, rectify staffing shortages, fill out evaluation forms, and serve as the highest ranking employee in the building during off-peak shifts”

US Supreme Court

NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001)

rejected the NLRB’s ruling and determined that the exercise of “independent judgment” in directing the work of others can be supervisory judgment and not only professional judgment thereby creating a platform for finding that charge nurses are supervisors

5 to 4 decision

 

 

The Kentucky River Community Care decision became known as a “landmark case”. Three cases, post-decision of the actual Kentucky River Community Care case, are collectively known as the Kentucky River Trilogy or the “Kentucky River Cases”

 

 

2002, 2003, 2006

In re Oakwood Healthcare, Inc. 348 NLRB 686 (2006)

Broadly defined “assign” “responsibly to direct” and “independent judgment” and found supervisory status for permanent charge nurses in that case; rotating charge nurses were considered non-supervisory

 

 

 

1999, 2006

Beverly Enterprises-Minnesota, Inc., doing business as Golden Crest Healthcare Center, 348 NLRB 727 2006) (on remand from 266 F. 3d 786 (8th Cir. 2001)

found that on the facts presented, charge nurses did not responsibly direct employees and were not supervisors

U.S. Court of Appeals for the Eighth Circuit

Beverly Enterprises- Minnesota, Inc. v. NLRB, 266 F.3d 786 (8th Cir., 2001)

remanded this case to afford the [NLRB] Board the opportunity to reconsider its decision to include the employer's RNs and LPNs in the bargaining unit in light of the Supreme Court's decision in NLRB v. Kentucky River Community Care, Inc. ("Kentucky River"), 532 U.S. 706 (2001)

 

 

2002, 2006

Croft Metals, Inc., 348 NLRB 717, (2006), (a manufacturing facility using leadpersons to provide directions and task assignments)

found that leadpersons in the case provided responsible direction but did not exercise independent judgment, therefore were not supervisors

 

 

 

Discussion of Rulings and Decisions

NLRB rulings that followed the U.S. Supreme Court’s decision in Health Care and Retirement Corp [10] were split decisions and centered on the applied meaning of the following terms and phrases: supervisor, independent judgment, assignment, and responsibly directing employees. Prior to the Supreme Court’s decision in Health Care and Retirement, the NRLB decisions generally followed a ‘patient care analysis’ perspective in that the work of nurses’ ‘supervision’ and directing others to do the care was part of the process of making patient care decisions, rather than part of acting in the interest of the employer.

In 1999, the NLRB Office of General Counsel issued guidelines to its offices on charge nurse supervisory issues (NLRB, 1999). Issues from NLRA Section 2, 11 and 12 [7] (see also Table 2) dominated this memorandum and included a determination of (a) who is a professional, (b) parameters of independent judgment, (c) assignment and direction of work, (d) administering discipline, and (e) evaluation of employees. The essence of the guidelines revolved around the question of what is ‘independent judgment.’ The analysis noted it is necessary to distinguish between ‘professional or technical independent judgment’ versus ‘supervisory independent judgment’ (NLRB, 1999). The NLRB Associate General Counsel summarized the decisions by noting that “supervisory authority does not include the authority of an employee to direct another to perform discrete tasks stemming from the directing employee's experience, skills, training, or position” (p. 18). These lines of cases provided that nurses who worked within their scope of practice and directed other employees, were not deemed to be supervisors, thus allowing them to participate in collective bargaining activities. The outlier in the decision-rendering process was the U.S. Sixth Circuit Court of Appeals which consistently ruled that nurses directing aides’ performances and tasks were supervisors under the NLRA and that because nurses worked for the interest of the employer, rather than the interest of the patient, they could not participate in collective bargaining activities (Huckell, 2008).

In the Kentucky River case before the NLRB [11], the employer argued that six RNs were statutory supervisors (i.e., supervisors according to the law) since they were “charge nurses and supervised other employees.” The NLRB disagreed and stated these nurses were not supervisors and were eligible to participate in collective bargaining activities. This ruling was remanded to the NLRB by the Sixth Court of Appeals. The NLRB noted a trend in appeals and determined that this case was sufficiently precedential to warrant petitioning the U.S. Supreme Court to review the case.

One important issue is that there are 12 functions listed in NLRA (Table 2) that are actions ascribed to a supervisor. Many laypersons had assumed that all or a majority of the 12 activities must be present for a supervisor to be so labeled. The U.S. Supreme Court upheld the Sixth Circuit Court decision which centered on rejecting the NLRB’s position that supervision by charge nurses was not “in the interest of the employer.” This meant that this type of “directing” of others was not part of the professional responsibility of RNs’ work but was “in the interest of the employer” [12] and therefore the individual was a supervisor, not a staff nurse, and therefore unable to bargain collectively.

The U.S. Supreme Court affirmed that ‘independent judgment’ is an indefinite expression required for supervisory status and could be left to the discretion of the NLRB’s reasonable judgment in future cases. Additionally, judgment is routine (and not supervisory) if it is restricted by instructions provided by higher officials and the subordinate’s judgment is constrained by these instructions [12] (Huckell, 2008). For example, in the case of a nurse who is assigned to charge nurse duty, if the nurse manager instructs the charge nurse to make the assignments according to room numbers and the numbers of patients assigned to each staff person and does not allow the charge nurse to match needs of the patients to the skill and competencies of the nurses, the work of the charge nurse would be considered routine clerical work since it follows orders from the manager. On the other hand, if the charge nurse independently makes assignments according to competencies of the staff and the needs of the patients, the charge nurse is using independent judgment based on her/his expert assessment and analysis of the care situation and it is not restricted by directions from higher officials.

Recent Decisions Regarding Workplace Supervisory Practices

At the end of the 1990s and in the early 2000s, the NLRB continued its review of cases. Rulings on three cases tested supervisory status as established in the Kentucky River case: Oakwood Healthcare [13], Golden Crest Healthcare Center [14], and Croft Metals [15]. These cases were reviewed and the parties involved continued to submit briefs and comments to the NLRB over the next several years.

Then the NLRB asked the parties involved in these three cases to file briefs to address ten issues that surfaced during the proceedings (Clark, 2004; NLRB, 2003), describing ‘how supervisory authority is actually delegated in a particular workplace.’ The parties were also directed to answer the question of what is independent judgment, to address the degree of discretion required for supervisory status, to define the terms ‘assign’ and ‘responsibly direct’ others, and to describe the status of rotating supervisory roles. ANA responded to this request by emphasizing that the professional responsibilities of nurses have long been outlined in the ANA Code of Ethics and that nurses practice within the Code of Ethics (ANA, 2001). Furthermore, ANA argued that equating such delegation for the provision of care with the exercise of independent judgment or with the assignment or direction of work as defined by the [NLRA] Act ignores the strictly circumscribed legal and ethical environment under which all RNs, including charge RNs, must operate (ANA, 2003). ANA’s goal was to clarify that all RNs base their practice on foundational principles and standards in which they delegate tasks, direct work, and assign patient care to others, including other RNs, while the delegating RN assesses and evaluates the patient outcomes of the care provided. More than three years passed before the parties requested by the NLRB to provide these briefs for supervisory status in the Kentucky River cases submitted their responses. As time passed without more direction, the NLRB requested that the field offices and other parties should review similar cases because the standing Kentucky River ruling did interpret the key phrases broadly (Huckell, 2008).

...the Oakwood ruling [is]in effect today, specifying that nurses...with less than 10-15% of their time as charge nurse are considered staff nurses, while nurses working more than 15% of...time as charge nurses are considered supervisors. One of the more controversial rulings has been the Oakwood decision [16] that permanent charge nurses are supervisors but rotating charge nurses are not supervisors if this role is less than 10-15% of their work time. The three issues involved in this decision were the nurses’ activities to assign, to responsibly direct others, and to use independent judgment. The majority of the NLRB determined that many of the permanent charge nurses do have the authority of a supervisor in these areas because their work involves making assignments with independent judgment and their work as a charge nurse is regular and substantial in their responsibilities. ANA contended this was a flawed ruling that had an impact on the nurses’ workplace rights and that advanced administrative political priorities (ANA, 2007a).

This Oakwood case has set precedence and has figured in approximately 35 subsequent decisions in both healthcare and industrial settings, although only 15 of the cases were based only on the merits of the supervisory argument (Huckell, 2008). There have been no further rulings addressing the charge nurse/supervisor status. Hence the Oakwood ruling continues in effect today, specifying that nurses, on average, with less than 10-15% of their time as charge nurse are considered staff nurses, while nurses working more than 15% of their professional time as charge nurses are considered supervisors. This amount of time (10-15%) is equal to about one shift per pay period.

U.S. Executive Branch Activities Related to Nurse Delegation

Nurses need to remain aware of national-level decisions made by Congress, the NLRB, and the Courts because decisions... may affect their status as employees and their rights to bargain or advocate for themselves.Several years ago, congressional leaders, including Representatives Robert Andrews (D) and Don Young (R) and Senator Christopher Dodd (D), became concerned about the NLRB’s ruling in the Oakwood case and sought a legislative ‘fix’ to the supervisory situation. In March 2007, these legislators introduced the RESPECT (Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers) Act (S-969). This proposed Act (S-969) was intended to repeal two far-reaching supervisory functions enumerated in NLRA Section 2(11) [8], namely, the responsible direction and the assignment of employees, so that those in part-time supervisory duties would not be considered supervisors. The Act would have included the activities of a supervisor (see NLRB definition, Table 2) to be engaged in ‘for a majority of the individual’s work-time.’ The ANA was a proponent of this legislation and continues to champion the concepts of this legislation as being a practical measure for addressing activities of nurses and other professionals. No action occurred on the proposed bill and it was cleared from the Legislature docket in January 2009.

The issues surrounding the definition of the term ‘supervisor’ and the activities of a supervisor are complex. In recent years the politics involved have become even stickier and more partisan. The NLRB consists of five members. As vacancies arise in four-year-cycle rotations, the President of the United States appoints new members. Since December 2007, there have been only two members on the NLRB, Chairperson Wilma Liebman (D), who has been on the board for eight years and whose term expires in 2011, and Member Peter C. Schaumber (R). In July 2009, President Obama sent to the Senate the nominations of Craig Becker, Mark Gaston Pearce, and Brian Hayes for membership on the National Labor Relations Board (NLRB, 2009, July). As of this writing, there continues to be little movement on these nominations in the Senate.

...as the White House political party changes, the Board changes the rulings...decisions from the former administration are usually overruled according to the party line during the first years of the new administration. Since December 2007, the two-member Board has issued more than 500 decisions involving a broad range of labor issues (NLRB, 2009, September). In September 2009 the Solicitor General of the US, representing the NLRB, requested that the U.S. Supreme Court rule on a case that was decided against the NLRB. In a legal procedure and document called a ‘petition for a writ of certiorari’ the Solicitor General appealed the rejection by the D.C. Circuit of a ruling by the two-member Board, thus contesting the two-member-Board’s authority to make these rulings (NLRB, 2009, September). In November, 2009, the U.S. Supreme Court agreed to hear the case (NLRB, 2009, November).

The rulings and decisions of the NLRB have vacillated over the decades. The character of the rulings has changed as the political environment has changed. Two specialists in labor and employment law, Fisk and Malamud, have provided a helpful background regarding the political aspects of the NLRB activities. They have explained that as the White House political party changes, the Board changes the rulings, in that decisions from the former administration are usually overruled according to the party line during the first years of the new administration. Fisk and Malamud (2009) have written, “… it is apparent that the Bush II [George W. Bush, 2000-2008] labor policy made a decisive shift in favor of protecting managerial prerogative and augmenting the ability of employers and employees to oppose unionization” (p. 2020). These changes in the Bush years were in reaction to Clinton-era changes which had reversed more than 40 Board precedents (Dolin, 2005). This influence of the White House on labor decisions and rulings began already as early as the Eisenhower administration (Fisk & Malamud, 2009).

Labor law analysts agree that these opinions of the U.S. Courts in appealed cases (a) have not considered more modern precedents but have focused on older rulings that may have flawed reasoning, (b) have not considered the work requirements of varied workplaces, (c) reject the interpretations of definitions applied, and (d) are not clear in distinguishing between law and policy (Dolin, 2005; Fisk & Malamud, 2009; Huckell, 2008). Nurses need to remain aware of national-level decisions made by Congress, the NLRB, and the Courts because decisions at these levels may affect their status as employees and their rights to bargain or advocate for themselves.

Activities by Professional Nursing Organizations Related to Nurse Delegation

Nursing organizations, such as the ANA and the National Council of State Boards of Nursing (NCSBN), have worked to present documents that address delegation in nursing. The current ANA Code of Ethics states, “The RN takes responsibility and accountability for individual nursing practice and determines the appropriate delegation of tasks consistent with the nurse’s obligation to provide optimum care” (ANA, 2001, p. 16). In 2005, the ANA published its statement, Principles for Delegation, and the NCSBN adopted the statement, Working with Others: A Position Paper to guide nurses and their employers in nurses’ responsibilities and activities.

Because there was some variation in the use of terms pertaining to delegation, both organizations sought common ground and released a joint statement on nursing and delegation that addressed the professional obligations inherent in delegation as well as the regulatory statutes involved in delegation (ANA & NCSBN, 2006). This collaborative effort between nursing’s most broad-based professional organization (the ANA) and the representative for nursing’s regulatory boards (the NCSBN) provided unity and clarity on the use of the term ‘delegation.’ Together, they defined delegation as “the process for a nurse to direct another person to perform nursing tasks and activities” (ANA & NCSBN, p. 1). The ANA referred to this process as a transfer of responsibility, while NCSBN described the process as a transfer of authority. The joint statement also defined some of the terms used when referring to delegation. ‘Assignment’ was defined as “the distribution of work that each staff member is responsible for during a given work period” (ANA & NCSBN, p. 1). Supervision was defined as “the provision of guidance and oversight of a delegated nursing task” (ANA & NCSBN, p. 1). The ANA used the term ‘on-sight supervision’ while the NCSBN used the term ‘direct supervision.’ The ANA and NSCBN, (p. 1), both stated clearly that “individuals engaging in supervision of patient care should not be construed to be managerial supervisors on behalf of the employer under federal labor law.”

In considering the changes in today’s work place, the shortage of nurses, and the rise of auxiliary assistant personnel in healthcare settings, ANA adopted a position statement that reaffirms its belief that the utilization of nursing assistive personnel (NAP) in the provision of specific aspects of direct and indirect patient care, as the result of delegation and direction by a registered nurse in accordance with state nurse practice acts, is an appropriate, safe, and resource-efficient method of providing nursing care (ANA, 2007b). This statement is in alignment with the ANA principles for delegation and the joint statement by the NCSBN and the ANA (2006).

Implications for Nurses

Nurses must be aware of the changing labor developments on all fronts. As the healthcare system faces continued nursing shortages and declines in reimbursement, the contributions of nursing assistive and unlicensed personnel in the provision of patient care will only increase.

One example is the developing role of unlicensed assistive personnel in medication administration (med-techs), which is supported to some degree in specific settings by some boards of nursing. Nurses must become knowledgeable regarding rules proposed by their state boards of nursing that impact nursing care and patient safety. After regulatory rules and changes are proposed, sufficient time is allotted for comments by the healthcare professionals and the public. Nurses are encouraged to scrutinize the language proposed by the regulatory agencies to ensure that the definitions included and the intended application of the changes are consistent with the nursing profession’s definitions and intentions, especially as these changes provide for new categories of workers in healthcare settings.

If employers do...take advantage of the NLRB decisions and restructure their policies or position descriptions, it may become more difficult for nurses to organize and/or to remain unionized [without] specific protection written into their contracts. Employers today are seeking means to cut expenses, including labor costs, by limiting the number of employees who are allowed to participate in collective bargaining activities. As a result of the Oakwood ruling, employers can now review which nurses are ‘not eligible’ to bargain and reclassify them as supervisors by naming them charge nurses, thus limiting the number of nurses who may be included in the bargaining unit. In 2005, 14,000 RNs, including nurse practitioners, who were working at Kaiser Permanente included language in their contract stating that the hospital system would not challenge the bargaining unit status of any nurse. The contract language specified that the hospital not challenge a nurse’s right to be a member of the collective bargaining unit if then-pending NLRB rulings changed the nurse’s status to that of a supervisory status (Kaiser RNs, 2006).

If employers do choose to take advantage of the NLRB decisions and restructure their policies or position descriptions, it may become more difficult for nurses to organize and/or to remain unionized if they do not have specific protection written into their contracts. Today, and in the future, as nurses negotiate contracts, they may want to consider adding language that relates to their roles in delegation to assure that they may continue as members of a collective bargaining unit if labor laws regarding supervision change.

It is important to emphasize that charge nurses are assigned the role of overseeing the coordination of care at the bedside based on their experience and education, and not on management prerogatives. Charge nurses, whether permanent or rotating, generally do not make significant personnel decisions, such as hiring, firing, and promoting. Those decisions remain prerogatives of members of management who clearly function as supervisors.

Conclusion

As the healthcare system faces continued nursing shortages and declines in reimbursement, the contributions of nursing assistive and unlicensed personnel in the provision of patient care will only increase. Professional nursing functions include both delegation and directing other professionals and non-professionals to complete tasks related to patient care and also supervising the work and evaluating the outcomes of these tasks. In labor regulatory laws that stem from NLRB rulings, the terms ‘assign,’ ‘responsibly to direct,’ and ‘independent judgment’ are terms that separate a supervisor from a staff employee. The role of the charge nurse has been part of the nursing environment for many years without the charge nurse being considered a supervisor. Yet in recent years because of the statutory law, nurses have been assigned to supervisor/management status while performing basic nursing functions, such as delegating work to others. One of the Kentucky River cases, the Oakwood case section D [16], provided guidance to differentiate persons who are supervisors, i.e., permanent charge nurses, from those who are part-time charge nurses.

Yet, these combined Kentucky River rulings, as decided by the U.S. Supreme Court, changed the labor regulatory environment and may have forced some nurses to choose between the career-advancing opportunity of being a charge nurse or not assuming the charge nurse role so as to maintain their right to participate in collective bargaining activities. Today nurses who function more than 10–15% of their time as charge nurses are considered supervisors, while rotating charge nurses who work less than 15% of their time as charge nurses are employees with eligibility for participation in collective bargaining activities.

Nurses in all settings and at all levels must remain aware of the legislative activities related to the labor environment since these activities may impact the practice of nursing and nurse advocacy. Remaining aware of and involved in legislative activities and policy developments at the state and national levels will allow nurses to influence decisions in directions that are in the best interest of both patients and professional nurses.

Acknowledgements

The author thanks Richard Barry, Librarian and Archivist at the ANA, for his assistance in researching information for this article, and Barbara Sapin, Esquire, former ANA General Counsel, for her thoughtful comments during the preparation of this article.

Author

Jennifer Matthews, PhD, RN, ACNS-BC
E-mail: jmatthewsRN@comcast.net

Dr. Matthews is an Associate Professor of Nursing at Shenandoah University in Winchester, VA. She is also an Adult-Health Clinical Nurse Specialist and clinical staff nurse at Warren Memorial Hospital, Front Royal, VA. Dr. Matthews is a member of the American Nurses Association’s Congress on Nursing Practice & Economics and is a Senior Magnet Appraiser for the Magnet Nursing Services Recognition Program, American Nurses Credentialing Center. She has a long history of involvement in nursing practice and workforce development. Dr. Matthews received her Ph.D. in Nursing Administration and Policy from George Mason University, VA; her Master of Science in Business Management from Troy State University (European Division), Wiesbaden, Germany; and her Master of Science in Nursing from the Medical College of Virginia.

References

AFL-CIO. (2009). New NLRB Chairwoman Liebman a Welcome Change. Legislation & Politics, Organizing & Bargaining. Retrieved March 12, 2010 from http://blog.aflcio.org/2009/01/26/new-nlrb-chairwoman-liebman-a-welcome-change/

ANA. (2010). ANA addresses registered nurses legal rights. Retrieved March 12, 2010 from www.nursingworld.org/MainMenuCategories/ThePracticeofProfessionalNursing/workplace/Work-Environment/RightsofNurses/KentuckyRiverCase.aspx

ANA. (2007a). Issues up close: Flawed ruling. American Nurse Today, 2007, p. 45-46.

ANA.. (2007b). Position Statement: Registered Nurses Utilization of Nursing Assistive Personnel in All Settings. Silver Spring: ANA Publisher

ANA & NCSBN. (2006). Joint statement on delegation. Retrieved March 12, 2010 from http://www.nursingworld.org/readroom/position/joint/ana_ncsbn_jointdelegation.pdf

ANA. (2005). Principles for delegation. Silver Spring, MD: ANA Publisher.

ANA. (2003). Brief of amici curiae by the ANA, and the United American Nurses, AFL-CIO. Filed with the NRLB 23. Retrieved March 12, 2010 from www.nursingworld.org/MainMenuCategories/ThePracticeofProfessionalNursing/workplace/Work-Environment/RightsofNurses/TheRESPECTAct/KentuckyRiverBrief.aspx

ANA. (2003b). Nursing: Scope and Standards of Practice. Silver Spring, MD: ANA Publisher

ANA. (2001). Code of Ethics for Nurses: With interpretive statements. Silver Spring, MD: ANA Publisher.

Clark, M.M. (2004). NLRB general counsel’s office issues liberal criteria for defining ‘supervisor’. Human Resources Magazine, 49(2), p 30.

Dolin, K.R. (2005). Analyzing recent developments at the National Labor Relations Board. Labor Law Journal, 56(2), p.120 (beginning). Retrieved March 12, 2010 from http://w3.nexix.com/new/delivery

Fisk, C.L., & Malamud, D.C. (2009). The NLRB in administrative law exile: Problems with its structure and function and suggestions for reform. Thirty-ninth Annual Administrative Law Symposium. Duke Law Journal, 58(8), pg 2013(73). ISSN: 0012-7086. ACC-NO 204074717; journal code 6179 ASAP. Retrieved March 12, 2010 from http://w3.nexis.com/

Huckell, B. (2008, Fall). Who’s the boss? Supervisors, professionals, independent judgment, and the NRLA: A post-Oakwood healthcare review. Labor Law Journal, 59(3), p236 (beginning). Retrieved March 12, 2010 from http://w3.nexix.com/new/delivery

Kaiser RN. (2006). Kaiser RNs win stunning gains in new contract, making it perhaps best in nation Registered Nurse: Journal of Patient Advocacy, 102(8), p. 8-9. Retrieved March 12, 2010 from http://web.ebscohost.com/ehost/pdf?vid=9&hid=13&sid=f8242849-b490-4cd7-8ef5-7e06c47f323b%40sessionmgr4

NCSBN. (2005a). Working with others. Chicago: Author

NCSBN. (2005b). Business book: NCSBN 2005 annual meeting. Section II: Committee reports. Retrieved March 12, 2010 from www.ncsbn.org/2005_Section_II_forweb.pdf

NLRB. (1935). The national labor relation act, Title 29, Chapter 7, Subchapter II, §§ 151-169, United States Code. [Access to the entire Act at this site). Retrieved March 12, 2010 from www.nlrb.gov/about_us/overview/national_labor_relations_act.aspx

NLRB. (n.d.). National labor relations board fact sheet. Retrieved March 12, 2010 from www.nlrb.gov/About_Us/Overview/fact_sheet.aspx

NLRB. (2009a, July 10). NLRB bulletin: White House announces three NLRB nominations. Retrieved March 16, 2010 from www.nlrb.gov/shared_files/Press%20Releases/2009/B071009.pdf.

NLRB. (2009b, September). Press release: Supreme court is asked to settle the question of two-member rulings by the NLRB, September 29, 2009. Retrieved March 16, 2010 from www.nlrb.gov/shared_files/Press%20Releases/2009/R-2704.pdf.

NLRB. (2009c, November). Press release: Supreme court agrees to hear NLRB case, November 2, 2009. Retrieved March 16, 2010 from www.nlrb.gov/shared_files/Press%20Releases/2009/R-2709.pdf

NLRB. (2003). Request for briefs in the KRCC case. Office of General Counsel, 25 July 2003. Retrieved March 16, 2010 from http://www.nlrb.gov/About_Us/Overview/fact_sheet.aspx

NLRB. (1999). Memorandum: Guideline memorandum on charge nurse supervisory issues. OM 99-44; Office of the General Counsel, August 24, 1999. Retrieved March 16, 2010 from www.nlrb.gov/shared_files/OM%20Memo/1999/Om99-44.pdf

NLRB. (1997). NLRB v. Kentucky River Community Health Care, 9–CA–34926; 323 NLRB No. 209 (July 10, 1997). Retrieved March 16, 2010 from http://www.nlrb.gov/About_Us/Overview/fact_sheet.aspx

NLRB. (2006). MEMORANDUM OM 07-04: Cases involving issues under Oakwood Healthcare Inc., 348 NLRB No. 37, Croft Metals, 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39. Office of the General Council, 11 October 2006. nlrb.gov/shared_files/OM%20Memo/2007/OM%2007-04%20Cases%20Involving%20Issues%20under%20Oakwood%20Healthcare%20Inc.pdf

National Right to Work Legal Defense Foundation (NRTW). (2009) Retrieved March 16, 2010 from www.nrtw.org/

Oakwood. (2006). Oakwood Healthcare Hospital, Inc. 7-RC–22141; 348 NLRB 686 (September 29, 2006).

Siegle, RA. (Oct, 2006). NLRB: Cases Involving Issues under Oakwood Healthcare Inc., 348 NLRB No. 37, Croft Metals, 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39. MEMORANDUM OM 07-04


© 2010 OJIN: The Online Journal of Issues in Nursing
Article published May 31, 2010


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