NLRB To Expand Definition of Effective Recommendation of Discipline?

By Chad M. Horton - Shawe Rosenthal LLP

December 27, 2019

In its unpublished decision in Bloomsburg Care and Rehabilitation Center, the National Labor Relations Board (NLRB or Board) expressed a willingness to reconsider, and likely expand, what constitutes an alleged supervisor’s ability to “effectively recommend” discipline. The National Labor Relations Act (NLRA) provides that if an individual performs one of several functions, including the ability to discipline, or can “effectively recommend” one of these functions (e.g., discipline or hire), the individual is a supervisor. Under current law, which was applied by one of the Board’s Regional Directors, the Board will not find that an individual effectively recommends discipline if the recommendation is reviewed or independently investigated by upper management.

The Board agreed with the Regional Director that the Licensed Practical Nurses (LPNs) were not supervisors in Bloomsburg. However, the Board took issue with the test applied by the Regional Director in reaching that conclusion. The Board cited the Third Circuit’s 2017 holding in NLRB v. New Vista Nursing and Rehabilitation that employees may effectively recommend discipline, and, thus, be supervisors, if they (1) verbally counsel employees, (2) these actions start a disciplinary process, and (3) the actions make future punishment more severe.

The Board noted that the LPNs in Bloomsburg did not meet the latter two criteria set forth in New Vista. More importantly, though, the Board stated that it would be open to reconsidering existing Board law on this issue in a future appropriate case. In doing so, the Board seemed to signal an intention to adopt the Third Circuit’s test, which would effectively expand what constitutes effective recommendation of discipline.

We will continue monitoring the issue and provide you with an update if (and, likely, when) the Board revisits the standard for effective recommendation of discipline.