The United Mine Workers petitioned the National Labor Relations Board (NLRB) for an election at the Carter Hall Nursing Home operated by Beverly Enterprises Virginia Inc. The union requested that 40 non-supervisory employees, six of whom were LPNs, be permitted to vote.
Beverly objected, claiming they were excluded as supervisors under the National Labor Relations Act (NLRA). Following an election won by the union, the NLRB attempted unsuccessfully to bargain with Beverly. The NLRB ordered Beverly to bargain with the union and petitioned the U.S. Court of Appeals for the Fourth Circuit for enforcement.
The Fourth Circuit rejected the Board’s position, and held that the LPNs were supervisors because, for two thirds of each day, LPNs were the most senior employees on duty supervising activities and employing independent judgment. Beverly Enterprises Virginia Inc. vs. NLRB, 4th Cir., Nos. 96-2779, 97-1098, 01/19/99.
Health care employees who direct, assign and discipline other employees are supervisors and cannot collectively bargain.
Source: D. Diane Hatch, Ph. D., a human resources consultant based in San Francisco, and James E. Hall, an attorney with the law firm of Barlow, Kobata & Denis, with offices in Los Angeles and Chicago.