Providence Alaska Medical Center v. National Labor Relations Board

Opinion by Judge THOMPSON; Dissent by Judge NOONAN.

The issue we decide in this case is whether registered nurses (RNs) who are employed by a medical center as “charge nurses” are “supervisors” within the meaning of Section 2(11) of the National Labor Relations Act (NLRA), 29 U.S.C. § 152 (11).

The Alaska Nurses Association (Alaska Nurses) petitioned the National Labor Relations Board (the Board) to become the union representative for the RNs employed by Providence Alaska Medical Center (Providence). The Board conducted a representation hearing and the Regional Director determined which nurses belonged in the proposed bargaining unit. Providence requested review by the Board. The Board affirmed the decision of the Regional Director, an election was held, and a majority of the RNs in the bargaining unit voted for Alaska Nurses to become their bargaining representative.

To test the propriety of the Alaska Nurses’ certification as the bargaining representative of the Providence RNs, Providence declined to bargain. The Alaska Nurses filed with the Board an unfair labor practice charge alleging that Providence’s refusal to bargain violated Sections 8(a)(1) and 8(a)(5) of the NLRA,…

dissenting:

This case is rightly considered a close one. It is close because the governing decision by the Supreme court, NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571 , 114 S.Ct. 1778 , 128 L.Ed.2d 586 (1994) (hereafter H.C.R.) was decided by a five-to-four vote of the Court and because of the existence in this circuit of precedents which give more deference to the Board than H.C.R. permits. Applying H.C.R., we must decide against the Board.

The case is governed by the same statute, whose relevant terms bear repeating: A supervisor is

As in H.C.R. the Board has created an ambiguity in the statute that it purports to resolve by its interpretation. The Board declares:

Finding professional judgment “indistinguishable” from supervisory independent judgment, the Board in effect declares that a professional who is supervising other professionals cannot be a supervisor. The Board seriously distorts the statute which requires only two things of a supervisor: the ability “responsibly to direct” and “the use of independent judgment.” Making the use of independent judgment a disqualifying factor, the Board reads the statute backwards.

What the Board has done in this…