“LPNs held to be Supervisors in Union Campaign”
On October 2, 2012, the Eleventh Circuit held that licensed practical nurses (LPNs) employed at a long-term health care facility were not supervisors under the National Labor Relations Act (NLRA). This rejection of the National Labor Relations Board’s prior ruling can help long-term healthcare employers fight efforts to unionize LPNs at their facilities.
Lakeland Healthcare Associates, LLC operates a long-term care facility in Lakeland, Florida. The United Food and Commercial Workers Union Local 1625 represents the CNAs and the service employees at the facility. During the summer of 2010, the union filed a petition for representation of the LPNs.
The employer contended that its LPNs were supervisors and supervisors are ineligible for union representation. If the LPNs are “employees,” they are guaranteed the right to unionize; if declared to be “supervisors,” they are not entitled to unionize under the NLRA. Section 2 of the Act, 29 U.S.C. section 152(11), defines a supervisor as:
- 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.
Under the Lakeland disciplinary coaching program, LPNs have the authority to issue level one or level two coachings to certified nursing assistants (CNAs). Level two coachings are issued for serious infractions and can result in immediate suspension or termination. Level one coachings address less serious infractions but can result in termination after four prior level one coachings in a 12-month period.
The Eleventh Circuit found that the LPNs had authority to perform one of the 12 supervisory functions described in the statute with independent discretion and judgment.
The Eleventh Circuit may not hold that LPNs in all long-term care facilities are supervisors under the NLRA. This will depend on the facts at each facility.
Employers can strengthen the argument for supervisory status of LPNs by re-wording LPN job descriptions and evaluations, employee handbooks, disciplinary and performance action forms to clearly designate LPNs as responsible for supervising and disciplining CNAs.
By Don Benson
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