In Piedmont Health Services, Inc. and Piedmont Health Services Medical Providers United, Case No. 10-RC-286648, Region 10 of the National Labor Relations Board (Region) issued a Decision and Direction of Election (DDE) in which it held that physicians are not supervisors under the National Labor Relations Act (the Act) simply by virtue of their position in the healthcare institution.

Petition Filed by Union

On November 23, 2021, Piedmont Health Services United (Union) filed a petition seeking to represent approximately fifty employees at ten of Piedmont Health Services, Inc.’s (Employer or Piedmont) facilities throughout North Carolina. The petitioned-for unit included all community health center medical providers, defined as physicians, nurse practitioners, certified nurse-midwives, and physicians assistants (providers).

In response, among other things, Piedmont sought to dismiss the petition on the grounds that the physicians are statutory supervisors under the Act. Piedmont argued that the physicians’ authority to direct other employees and their ability to hire, promote, discipline, assign work, and adjust others’ grievances rendered them supervisors under the Act. Piedmont asserted further the physicians did not share a sufficient community of interest with the other providers to warrant inclusion in the petitioned-for unit.

Decision and Direction of Election

The Region held a two-day hearing and ultimately held that the physicians are not supervisors under the Act and thus are eligible for union representation. Under the Act, an employee is considered a “supervisor” when they have the authority to perform any number of personnel actions, including hiring, firing, transferring, suspending, laying-off, recalling, promoting, discharging, assigning, disciplining, directing, and adjusting employees’ grievances. An employee who possesses the ability to effectively recommend these actions can also be considered a supervisor, so long as the recommendation requires the use of independent judgment and is not routine or clerical in nature.

In its reasoning, the Region first focused on the fact that the physicians’ roles are to provide healthcare to patients, not participate in the administrative and personnel functions reserved for other lead medical providers (who were excluded from the petitioned-for unit). For example, the physicians do not assign work or overtime to employees, and do not assign employees to work at specific locations. The Region then found that the physicians are not held responsible for the performance of other employees but provide only sporadic supervision of employees. The Region specifically discredited the fact that some of the petitioned-for physicians were found to be the “supervising physician” of another credentialed provider, as required by North Carolina’s professional licensing law. The Region based this finding on a prior NLRB decision, which held that a governmental requirement that a healthcare provider be supervised by a physician does not necessarily establish the physician as a supervisor under the Act.

In addition, the Region found the physicians are not held accountable by Piedmont for mistakes made by medical assistants working with their patients. Moreover, the Region found that the physicians’ relaying of patient care needs to other employees does not rise to the level of responsible direction. Additionally, the Piedmont physicians have no authority to promote or discipline other employees, and there is no connection between their recommendations for promotions and disciplinary action and the ultimate decisions made on these matters.

The Region further concluded there is a sufficient community of interests between the physicians and the other medical providers named in the petitioned-for unit to render the petitioned-for unit appropriate.¹ The fact that all providers are organized in the same department, regardless of medical degree or intensive training, supports the community of interest finding. The Region found the physicians and other petitioned-for employees are functionally integrated, share frequent contact with one another, and share common supervision.  Also, the providers use their similar skills to perform similar or identical work while providing medical care for patients, which supports a community of interest.

Takeaways

This DDE is notable, as it confirms that physicians will not automatically be considered supervisors under the Act and may seek union representation. Indeed, Piedmont’s physicians and providers ultimately voted in favor of union representation. Healthcare employers should consider reviewing their physicians’ job descriptions and job duties to determine whether they potentially can be considered supervisors under the Act.