March 6, 2024: Nurse Not Supervisor. No Extraordinary Relief for Dartmouth.
Another application of Oakwood Healthcare.
The NLRB put out two documents today:
Trustees of Dartmouth College, 373 NLRB No. 34, Case No. 01-RC-325633 (Published Board Decision). Dartmouth’s request for extraordinary relief to pause the union election of its mens basketball team was denied. For full coverage of this, read Are College Athlete Unions Legal Under the NLRA?
South Nassau Communities Hospital d/b/a Mount Sinai South Nassau, JD(NY)-05-24, 29-CA-312425 (ALJ Decision). Administrative Law Judge Benjamin Green found that the charging party, a nurse, was not a supervisor and that the employer, a hospital, violated Section 8(a)(1) by interrogating her about her union activities and threatening to discharge her and violated Section 8(a)(3) by actually discharging her for engaging in union activities.
The employer’s defense in South Nassau Communities Hospital was solely that the charging party was a supervisor. The ALJ applied the supervisory status test established in Oakwood Healthcare to conclude that the employer had not met its burden to prove that the charging party was a supervisor. Since it was decided in 2006, Oakwood Healthcare has been cited by 797 Board documents, including 129 Board decisions and 114 ALJ decisions. In 2007, the GC published guidance about how Oakwood Healthcare should be applied (GC 07-05).
The key factors that the ALJ relied upon to conclude that the charging party, Teopengco-Merritt, was not a supervisor include:
Lack of Independent Judgment in Assignments: The decisions regarding operating room assignments were significantly influenced by surgeons' preferences. The authority to assign staff or recommend assignments was not independent but was under the control of surgeons, suggesting that any such authority did not meet the criterion of independent judgment as required by the Act.
Exercise of Authority Was Not Regular or Consistent: Evidence showed that Teopengco-Merritt's recommendations for assignments were not always followed, indicating her authority to assign was not effectively exercised or recognized consistently.
Absence of Accountability for Performance Oversight: For direction to be considered "responsible" under Section 2(11), the individual must be accountable for the task's performance. There was no evidence that Teopengco-Merritt or other SLCs were held accountable for the performance of RNs or techs, which is a crucial factor in determining supervisory status.
Secondary Indicia Did Not Support Supervisory Status: Factors such as Teopengco-Merritt's pay raise upon promotion to SLC, her wage range, and her involvement in instructional activities did not sufficiently indicate a supervisory or managerial status, especially in the absence of evidence comparing these to other genuine supervisors or managers within the hospital.
Involvement in Hiring Interviews Was Not Decisive: Although SLCs, including Teopengco-Merritt, might participate in interview panels, this involvement did not amount to exercising supervisory authority since hiring decisions were not made at the interview level, and SLCs' recommendations were part of a collective decision-making process rather than an independent judgment.