The Government Helps Us Out
The Human Resources field is now buzzing with the aftermath of the NLRB decisions relating to “team leaders” and similar roles being excluded from collective bargaining. A lot of very polarizing rhetoric has issued from organized labor, indicating that these long-anticipated decisions will disenfranchise workers from their rights to organize.
In the midst of all this rhetoric, HR leadership risks missing an important opportunity for developing a more robust leadership pipeline: the new relationship we can have with our team leaders.
Background
“Supervisors” are not allowed to organize or join unions. The National Labor Relations Act has, from 1947 onward, excluded “supervisors” from coverage. The definition of what a “supervisor” is has thus been debated and litigated for some time.
In October 2006, the National Labor Relations Board issued a series of rulings clarifying their determination of what a “supervisor” is in health care and other organizations[1]. Unions active in health care and other spheres have already voiced their considerable objections to these decisions, and there is a high likelihood that they will be brought to appeal in Federal court. However, until that happens, these decisions stand and govern union organizing in health care. As we’ll see, they also follow closely Supreme Court precedent.
However, these rulings represent a rare thing for us: a government regulatory ruling which actually has synergy with effective leadership development practice! You’ll see how further ahead.
The Supreme Court Case
Kentucky is the location of a 2001 Supreme Court case which started this new direction[2]. In Pippa Passes, Kentucky, Kentucky River Community Care, Inc., operates a care facility for residents who suffer from substance abuse, mental retardation and mental illness. The facility, named the Caney Creek Developmental Complex (Caney Creek), employed approximately 110 professional and nonprofessional employees in addition to roughly a dozen concededly managerial or supervisory employees. In 1997, a union, the Kentucky State District Council of Carpenters, wanted to represent a single unit of all 110 potentially eligible employees at Caney Creek.
Management objected to including six RNs in the proposed bargaining unit and election, saying that the RNs were supervisors. When the case made it to the Supreme Court, the Court said several things:
· Contrary to the Board’s interpretation, management does not have a “burden of proof” to show that the RNs were “supervisors”
· Employees are statutory supervisors if
(1) they hold the authority to engage in any 1 of 12 listed supervisory functions listed below,
(2) their “exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,” and
(3) their authority is held “in the interest of the employer.”
· In this case, the RNs did what RNs mostly do: administer nursing care to residents and patients. The Court determined that thus being “independent” as “professionals” did not automatically mean they would not be considered “supervisors.”
In other words, in the past, nurses and physicians who direct other less-skilled employees in providing patient care services, routinely have been included in the bargaining unit on the grounds that the alleged supervisor was using ordinary professional or technical judgment in directing less-skilled employees. Under the test articulated by the Supreme Court in Kentucky River, the test for supervisory status applies no differently to professionals than other employees.
For five years, the NLRB “dodged the bullet” and did not issue any rulings of their own regarding bargaining unit determinations to conform to this case. They solicited legal arguments from all interested parties, looking to issue a new, final set of guidelines about who would or would not be considered supervisors and eligible to vote in elections. Now they have.
Charge Nurses: Oakwood Healthcare
In this case[3], management wanted to exclude a group of “permanent” and “rotating” charge nurses from a proposed bargaining unit and election. The Board now more exactly defined some words for us: “assign,” “responsibility to direct,” and “independent judgment” defining the role of a charge nurse.
“Assign” Designating an employee to a place (such as a location, department, or wing); appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee.” However, this is not the same as “the ad hoc instruction that the employee perform a discrete task.” For example, the Board distinguished between “assigning” a nurse the responsibility for caring for particular patient or group – very different from telling that nurse to give a sedative to a particular patient.
“Direct” “If a person on the shop floor has men under him, and if that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, provided that the direction is both ‘responsible’ . . . and carried out with independent judgment.”[4] In particular, Board majority specified that the person directing the work must be held accountable if the directives are not properly carried out. The Board said, “for direction to be ‘responsible,’ the person directing and performing the oversight of the employee must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly.”
“Independent Judgment” “Independent judgment” in supervisory authority is different from “professional” judgment. The supervisor’s “independent judgment” exercised must not be controlled by another authority. The determination whether a “supervisor” exercises independent judgment depends on the “degree” of discretion exercised by the employee rather than the “kind of discretion exercised -- whether professional, technical, or otherwise.” Thus, where an employee’s work is controlled or dictated by “detailed instructions,” company manuals or guidelines, “instructions from a higher authority,” or provisions contained in the collective bargaining agreement, the Board does not consider the employee’s actions sufficiently “independent.” The degree of discretion exercised must be more than merely “routine or clerical.”
Confusing? Well, yes. Many, many supervisors act under the conditions of approval from higher authorities before their decisions are considered final or binding. However, the Board provides some practical examples which are helpful. For example, a nurse may exercise independent judgment in making hiring recommendations if, during the process, the nurse is asked to assess the applicant’s experience, ability, attitude, and character references. Similarly, the Board explained that if the nurse weighs the individualized conditions and needs of a patient against the skills or special training of available nursing personnel, the nurse’s assignment involves the exercise of independent judgment.
The existence of company policies “does not eliminate independent judgment from decision-making if the policies allow for discretionary choices.” For instance, if the hospital has a policy that details how a nurse responds in an emergency, but the nurse has the discretion to “determine when an emergency exists” or has the authority to “deviate from that policy based on the charge nurse’s assessment of the particular circumstances, those deviations, if material, would involve the exercise of independent judgment.” The key factor in determining whether the “judgment” is “independent” is the amount of discretion allowed.
The “permanent charge nurses” were held to be supervisors. The “rotating charge nurses” were not supervisors because they did not rotate with any seeming regularity. The Board’s criteria will be whether a nurse takes on charge with any regularity.
Charge Nurses: Golden Crest Healthcare Center
In one of the other cases[5], the Board determined that the charge RNs were not supervisors, mostly because they were not (seemingly) held accountable for the performance of the other workers (CNAs). In the language of this decision, the Board clearly indicated that evidence of clear leadership expectation and holding charge RNs accountable for the performance of those employees in their charge would make a difference.
Team Leaders and Lead Workers
The third decision makes a very similar determination for “Team Leaders.” The essence of this is that if the duties and responsibilities of a team leader role could be said to have the same characteristics as recited above for Charge Nurses, we will see Team Leaders and Lead Workers out of bargaining units as well.
What’s Next?
Unions active in health care will now want to review job definitions for “lead workers,” charge RNs and others to determine whether they can be included in election petitions.
In HR Leadership, here are some immediate action steps that make sense:
Review existing “charge” and “lead” job descriptions.
Make sure that they contain at least one of the 12 attributes of supervisory status which appear in the National Labor Relations Act. The more of these can be included, and the more discretion, the better:
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
Since, among these items, “Assign” was most often seen with charge nurses, make sure that the definition includes their authority to plan work for subordinates, as opposed to routine or ad hoc instructions.
“Independent judgment” can be demonstrated by assessment skills, particularly regarding the hiring or disciplinary decision.
Assuring strong job definitions is a good thing. But there is a much greater development opportunity waiting for us here.
Take Advantage of This To Develop Strong Front-Line Leaders
It’s a natural. The more we can empower our team leaders and charge RNs, the more it serves a labor relations objective of bargaining unit determinations being made as narrowly as possible. But empowerment is a hallmark of a strong leadership culture.
We can help transform department-level leadership into a new phase of trust and effectiveness. We, and the managers we serve, now more than ever must:
· Listen to your team leaders and charge RNs.
· Ask for their assessments of other workers, of clinical situations and
· Use their “independent” assessments and opinions in taking leadership actions.
· Actively develop their leadership abilities through
o training and
o opportunities to use their developed judgment in the workplace.
The time to start this new focus is right now. Plan to bring together your team leaders, either as a whole group or in focus groups. These sessions must allow plenty of time for careful listening. For example, unions have clearly expressed exasperation and hostility with these NLRB decisions. Your listening sessions can help determine whether these concerns are shared by your team leaders. It’s my bet that the actual affected individuals have relatively little concern for their union status – you might be really surprised.
And, whether they have strong negative sentiments or not, you can use this opportunity to assure them that meaningful efforts are underway to assist in giving them the leadership knowledge and tools to assure success. Being pro-active in addressing their concerns is the most important first step.
And you then can plan, collaboratively, a comprehensive leadership development process focused on not only assuring their existing competencies but also creating a stronger pipeline of potential candidates for internal promotion to future leadership positions. As always, be careful of promising or assuring “automatic promotion” into supervisory and other managerial positions, but this special moment must not be left behind.
These NLRB decisions have offered HR and leadership a great opportunity to synergize a legal objective with leadership development advancement. Take full advantage of it and build a stronger and more effective culture!
[1] Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37 (Sept. 29, 2006), Golden Crest Healthcare Center, 348 N.L.R.B. No. 39 (Sept. 29, 2006), and Croft Metals, Inc., 348 N.L.R.B. No. 38 (Sept. 29, 2006)
[2] NLRB V. KENTUCKY RIVER COMMUNITY CARE, INC. (99-1815) 532 U.S. 706 (2001)
193 F.3d 444, affirmed.
[3] Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37 (Sept. 29, 2006)
[4] Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37 (Sept. 29, 2006)
[5] Golden Crest Healthcare Center, 348 N.L.R.B. No. 39 (Sept. 29, 2006)
In the midst of all this rhetoric, HR leadership risks missing an important opportunity for developing a more robust leadership pipeline: the new relationship we can have with our team leaders.
Background
“Supervisors” are not allowed to organize or join unions. The National Labor Relations Act has, from 1947 onward, excluded “supervisors” from coverage. The definition of what a “supervisor” is has thus been debated and litigated for some time.
In October 2006, the National Labor Relations Board issued a series of rulings clarifying their determination of what a “supervisor” is in health care and other organizations[1]. Unions active in health care and other spheres have already voiced their considerable objections to these decisions, and there is a high likelihood that they will be brought to appeal in Federal court. However, until that happens, these decisions stand and govern union organizing in health care. As we’ll see, they also follow closely Supreme Court precedent.
However, these rulings represent a rare thing for us: a government regulatory ruling which actually has synergy with effective leadership development practice! You’ll see how further ahead.
The Supreme Court Case
Kentucky is the location of a 2001 Supreme Court case which started this new direction[2]. In Pippa Passes, Kentucky, Kentucky River Community Care, Inc., operates a care facility for residents who suffer from substance abuse, mental retardation and mental illness. The facility, named the Caney Creek Developmental Complex (Caney Creek), employed approximately 110 professional and nonprofessional employees in addition to roughly a dozen concededly managerial or supervisory employees. In 1997, a union, the Kentucky State District Council of Carpenters, wanted to represent a single unit of all 110 potentially eligible employees at Caney Creek.
Management objected to including six RNs in the proposed bargaining unit and election, saying that the RNs were supervisors. When the case made it to the Supreme Court, the Court said several things:
· Contrary to the Board’s interpretation, management does not have a “burden of proof” to show that the RNs were “supervisors”
· Employees are statutory supervisors if
(1) they hold the authority to engage in any 1 of 12 listed supervisory functions listed below,
(2) their “exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,” and
(3) their authority is held “in the interest of the employer.”
· In this case, the RNs did what RNs mostly do: administer nursing care to residents and patients. The Court determined that thus being “independent” as “professionals” did not automatically mean they would not be considered “supervisors.”
In other words, in the past, nurses and physicians who direct other less-skilled employees in providing patient care services, routinely have been included in the bargaining unit on the grounds that the alleged supervisor was using ordinary professional or technical judgment in directing less-skilled employees. Under the test articulated by the Supreme Court in Kentucky River, the test for supervisory status applies no differently to professionals than other employees.
For five years, the NLRB “dodged the bullet” and did not issue any rulings of their own regarding bargaining unit determinations to conform to this case. They solicited legal arguments from all interested parties, looking to issue a new, final set of guidelines about who would or would not be considered supervisors and eligible to vote in elections. Now they have.
Charge Nurses: Oakwood Healthcare
In this case[3], management wanted to exclude a group of “permanent” and “rotating” charge nurses from a proposed bargaining unit and election. The Board now more exactly defined some words for us: “assign,” “responsibility to direct,” and “independent judgment” defining the role of a charge nurse.
“Assign” Designating an employee to a place (such as a location, department, or wing); appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee.” However, this is not the same as “the ad hoc instruction that the employee perform a discrete task.” For example, the Board distinguished between “assigning” a nurse the responsibility for caring for particular patient or group – very different from telling that nurse to give a sedative to a particular patient.
“Direct” “If a person on the shop floor has men under him, and if that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, provided that the direction is both ‘responsible’ . . . and carried out with independent judgment.”[4] In particular, Board majority specified that the person directing the work must be held accountable if the directives are not properly carried out. The Board said, “for direction to be ‘responsible,’ the person directing and performing the oversight of the employee must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly.”
“Independent Judgment” “Independent judgment” in supervisory authority is different from “professional” judgment. The supervisor’s “independent judgment” exercised must not be controlled by another authority. The determination whether a “supervisor” exercises independent judgment depends on the “degree” of discretion exercised by the employee rather than the “kind of discretion exercised -- whether professional, technical, or otherwise.” Thus, where an employee’s work is controlled or dictated by “detailed instructions,” company manuals or guidelines, “instructions from a higher authority,” or provisions contained in the collective bargaining agreement, the Board does not consider the employee’s actions sufficiently “independent.” The degree of discretion exercised must be more than merely “routine or clerical.”
Confusing? Well, yes. Many, many supervisors act under the conditions of approval from higher authorities before their decisions are considered final or binding. However, the Board provides some practical examples which are helpful. For example, a nurse may exercise independent judgment in making hiring recommendations if, during the process, the nurse is asked to assess the applicant’s experience, ability, attitude, and character references. Similarly, the Board explained that if the nurse weighs the individualized conditions and needs of a patient against the skills or special training of available nursing personnel, the nurse’s assignment involves the exercise of independent judgment.
The existence of company policies “does not eliminate independent judgment from decision-making if the policies allow for discretionary choices.” For instance, if the hospital has a policy that details how a nurse responds in an emergency, but the nurse has the discretion to “determine when an emergency exists” or has the authority to “deviate from that policy based on the charge nurse’s assessment of the particular circumstances, those deviations, if material, would involve the exercise of independent judgment.” The key factor in determining whether the “judgment” is “independent” is the amount of discretion allowed.
The “permanent charge nurses” were held to be supervisors. The “rotating charge nurses” were not supervisors because they did not rotate with any seeming regularity. The Board’s criteria will be whether a nurse takes on charge with any regularity.
Charge Nurses: Golden Crest Healthcare Center
In one of the other cases[5], the Board determined that the charge RNs were not supervisors, mostly because they were not (seemingly) held accountable for the performance of the other workers (CNAs). In the language of this decision, the Board clearly indicated that evidence of clear leadership expectation and holding charge RNs accountable for the performance of those employees in their charge would make a difference.
Team Leaders and Lead Workers
The third decision makes a very similar determination for “Team Leaders.” The essence of this is that if the duties and responsibilities of a team leader role could be said to have the same characteristics as recited above for Charge Nurses, we will see Team Leaders and Lead Workers out of bargaining units as well.
What’s Next?
Unions active in health care will now want to review job definitions for “lead workers,” charge RNs and others to determine whether they can be included in election petitions.
In HR Leadership, here are some immediate action steps that make sense:
Review existing “charge” and “lead” job descriptions.
Make sure that they contain at least one of the 12 attributes of supervisory status which appear in the National Labor Relations Act. The more of these can be included, and the more discretion, the better:
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
Since, among these items, “Assign” was most often seen with charge nurses, make sure that the definition includes their authority to plan work for subordinates, as opposed to routine or ad hoc instructions.
“Independent judgment” can be demonstrated by assessment skills, particularly regarding the hiring or disciplinary decision.
Assuring strong job definitions is a good thing. But there is a much greater development opportunity waiting for us here.
Take Advantage of This To Develop Strong Front-Line Leaders
It’s a natural. The more we can empower our team leaders and charge RNs, the more it serves a labor relations objective of bargaining unit determinations being made as narrowly as possible. But empowerment is a hallmark of a strong leadership culture.
We can help transform department-level leadership into a new phase of trust and effectiveness. We, and the managers we serve, now more than ever must:
· Listen to your team leaders and charge RNs.
· Ask for their assessments of other workers, of clinical situations and
· Use their “independent” assessments and opinions in taking leadership actions.
· Actively develop their leadership abilities through
o training and
o opportunities to use their developed judgment in the workplace.
The time to start this new focus is right now. Plan to bring together your team leaders, either as a whole group or in focus groups. These sessions must allow plenty of time for careful listening. For example, unions have clearly expressed exasperation and hostility with these NLRB decisions. Your listening sessions can help determine whether these concerns are shared by your team leaders. It’s my bet that the actual affected individuals have relatively little concern for their union status – you might be really surprised.
And, whether they have strong negative sentiments or not, you can use this opportunity to assure them that meaningful efforts are underway to assist in giving them the leadership knowledge and tools to assure success. Being pro-active in addressing their concerns is the most important first step.
And you then can plan, collaboratively, a comprehensive leadership development process focused on not only assuring their existing competencies but also creating a stronger pipeline of potential candidates for internal promotion to future leadership positions. As always, be careful of promising or assuring “automatic promotion” into supervisory and other managerial positions, but this special moment must not be left behind.
These NLRB decisions have offered HR and leadership a great opportunity to synergize a legal objective with leadership development advancement. Take full advantage of it and build a stronger and more effective culture!
[1] Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37 (Sept. 29, 2006), Golden Crest Healthcare Center, 348 N.L.R.B. No. 39 (Sept. 29, 2006), and Croft Metals, Inc., 348 N.L.R.B. No. 38 (Sept. 29, 2006)
[2] NLRB V. KENTUCKY RIVER COMMUNITY CARE, INC. (99-1815) 532 U.S. 706 (2001)
193 F.3d 444, affirmed.
[3] Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37 (Sept. 29, 2006)
[4] Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37 (Sept. 29, 2006)
[5] Golden Crest Healthcare Center, 348 N.L.R.B. No. 39 (Sept. 29, 2006)
posted by John Bernat @ 12:28 PM
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