727 F.3d 552 (6th Cir. 2013), 12-1027, Kindred Nursing Ctrs. East, LLC v. National Labor Relations Bd.

Docket Nº:12-1027, 12-1174
Citation:727 F.3d 552
Opinion Judge:BOYCE F. MARTIN, JR., Circuit Judge.
Party Name:KINDRED NURSING CENTERS EAST, LLC, dba Kindred Transitional Care and Rehabilitation-Mobile, fka Specialty Healthcare and Rehabilitation Center of Mobile, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, UNITED STEEL, PAPER AND FORESTRY, RUBBER MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS I
Attorney:Matthew J. Ginsburg, AFL-CIO LEGAL DEPARTMENT, Washington, D.C., for Intervenor. Charles P. Roberts III, CONSTANGY, BROOKS & SMITH, Winston-Salem, North Carolina, for Petitioner/Cross-Respondent. Robert J. Englehart, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitione...
Judge Panel:Before: MARTIN and ROGERS, Circuit Judges; TARNOW, District Judge[*].
Case Date:August 15, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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727 F.3d 552 (6th Cir. 2013)

KINDRED NURSING CENTERS EAST, LLC, dba Kindred Transitional Care and Rehabilitation-Mobile, fka Specialty Healthcare and Rehabilitation Center of Mobile, Petitioner/Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, UNITED STEEL, PAPER AND FORESTRY, RUBBER MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, Intervenor

Nos. 12-1027, 12-1174

United States Court of Appeals, Sixth Circuit

August 15, 2013

Argued January 23, 2013.

On Petition for Review and Cross Application for Enforcement of a Decision and Order of the National Labor Relations Board. No. 15-CA-68248.

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ARGUED:

Matthew J. Ginsburg, AFL-CIO LEGAL DEPARTMENT, Washington, D.C., for Intervenor.

Charles P. Roberts III, CONSTANGY, BROOKS & SMITH, Winston-Salem, North Carolina, for Petitioner/Cross-Respondent.

Robert J. Englehart, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.

ON BRIEF:

Matthew J. Ginsburg, AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS LEGAL DEPARTMENT, Washington, D.C., for Intervenor.

Charles P. Roberts III, CONSTANGY, BROOKS & SMITH, Winston-Salem, North Carolina, Clifford H. Nelson, Jr., CONSTANGY, BROOKS & SMITH, Atlanta, Georgia, Edward Goddard, KINDRED HEALTHCARE, Wrentham, Massachusetts, for Petitioner/Cross-Respondent.

Robert J. Englehart, Amy H. Ginn, Linda Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.

Thomas V. Walsh, JACKSON LEWIS LLP, White Plains, New York, Ronald E. Meisburg, James F. Segroves, Lawrence Z. Lorber, PROSKAUER ROSE LLP, Washington, D.C., Mark Theodore, PROSKAUER ROSE LLP, Los Angeles, California, Jonathan C. Fritts, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., Michael J. Hunter, HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN, Columbus, Ohio, Ryan Griffin, SERVICE EMPLOYEES INTERNATIONAL UNION, Washington, D.C., Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Amici Curiae.

Before: MARTIN and ROGERS, Circuit Judges; TARNOW, District Judge[*].

OPINION

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BOYCE F. MARTIN, JR., Circuit Judge.

Under federal labor law, workers in the private sector who wish to be represented by a union must petition the National Labor Relations Board to hold an election to determine if a majority of the workers wants union representation. Federal labor law gives the Board wide discretion to delineate the " bargaining unit," the term for the group of workers that will vote on union representation. Kindred Nursing Centers East, LLC, a nursing home operator, has petitioned for review of the Board's order that a bargaining unit of Certified Nursing Assistants " constitute[d] an appropriate unit." Specialty Healthcare and Rehab. Ctr. of Mobile, 357 N.L.R.B. No. 83, 2011 WL 3916077 at *2 (2011). The Board has petitioned for enforcement of the order. The central issue in this case is whether the Board acted within its discretion in deciding Specialty Healthcare . We conclude that it did, and we therefore DENY Kindred's petition for review and GRANT the Board's cross-petition for enforcement.

We derive the facts in this case from the Board's opinion in Specialty Healthcare, 357 N.L.R.B. No. 83, 2011 WL 3916077 (2011), which we will call Specialty Healthcare II to distinguish it from the Board's previous case, Specialty Healthcare, 356 N.L.R.B. No. 56, 2010 WL 5195445 (2010), which we will call Specialty Healthcare I .

Kindred operates a nursing home and rehabilitation center in Mobile, Alabama. Specialty Healthcare, 357 N.L.R.B. No. 83, 2011 WL 3916077, at *2 (2011). There is no history of collective bargaining at this nursing home. Id. The facility, which the parties agree is a non-acute healthcare facility, consists of four floors and has beds for about 170 residents. Id.

Kindred places its employees in one of eight separate departments: nursing, nutrition

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services, resident activity, maintenance, administration, medical records, central supply, and social services. 357 N.L.R.B. No. 83, [WL] at *3. The facility's executive director is the highest-ranking management official on site. The nursing director and business office manager report to the executive director. Id. The individual heads of all but one department report to the nursing director, as do the staffing coordinator, the medical records clerk, and the data entry clerk. Id.

The nursing department consists of fifty-three Certified Nursing Assistants (CNAs) not including the Licensed Practical Nurses (LPNs) and Registered Nurses (RNs). Id. The LPNs directly supervise the CNAs on each nursing wing. Id. The RNs supervise the LPNs and report to the nursing director. Id. The CNAs work one of three eight-hour shifts and work directly with up to seventeen residents each. Id. Kindred typically assigns three to five CNAs to work on each nursing floor and usually assigns each CNA to work in a particular area of a nursing floor. Id.

As for job duties, CNAs help residents with daily functions, such as grooming, oral hygiene, bathing and dressing, and incontinence care. Id. CNAs get food trays for residents who have their meals on a nursing floor and help these residents eat. Id. CNAs turn and lift residents in their beds, move residents to their wheelchairs, assist with walking short distances, and help them get around the facility. Id. CNAs also accompany residents to appointments outside the nursing home. Id. CNAs take residents' vital signs and monitor their daily food and fluid intake and output. Id. CNAs complete an " Activities for Daily Living" flow sheet on which they record the residents' vital signs and daily functions and activities, such as bathing, dressing, and walking. Id. CNAs also note on their medical charts the services and therapies that residents receive, and note residents' progress or lack thereof. Id. CNAs are the only employees other than the RNs and LPNs who are certified or licensed to provide certain aspects of residents' care, such as feeding and positioning. Id.

Kindred has designated several CNAs as " restorative CNAs" who help residents in therapeutic programs to maintain functions such as walking and eating or to increase their range of motion. Id. The restorative CNAs also help residents with their meals in the dining room and transport them back to their rooms after therapeutic activities or meals. Id.

When a new resident comes to the nursing home, an interdisciplinary team of employees from the nursing, nutrition-services, resident-activity, and social-services departments assesses the new resident's medical, dietary, and social needs. Id. The CNAs attend these meetings and contribute to formulating the new resident's care plan. Id. CNAs may also attend additional meetings of the interdisciplinary team if a resident's care plan needs to be changed. Id. CNAs also attend in-service training sessions. Id.

The CNAs retrieve food carts from the first floor kitchen and take them to their assigned nursing floors for residents who eat meals in their rooms or on their floor's sun porch. 357 N.L.R.B. No. 83, [WL] at *4. CNAs may contact the central-supply clerk if there is a shortage of supplies on the floor, and the clerk may contact a CNA if the clerk has a question about specific items that a resident under the CNA's care may need. Id. The social-services assistant may contact the CNA to get certain information about a resident, such as whether the resident met with a particular doctor. Id.

Kindred prefers that its CNAs have a high-school diploma. Id. CNAs must be

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certified by the state, with certification requiring completion of sixteen hours of classroom training and seventy-two hours of general education. Id. The certification course includes the basic components of caring for geriatric and incapacitated patients, such as bathing, dressing, feeding, and the like. Id. To maintain their certification, the state requires CNAs to periodically attend specialized training. Id.

Kindred pays the CNAs a starting wage of $8.50 per hour, and may pay them raises of ten cents per hour for each year of experience up to fifteen years. Id. Kindred pays the CNAs time-and-a-half for overtime work. Id. The CNAs' immediate supervisors evaluate the CNAs annually; the evaluation provides the basis for possible pay increases (typically three percent) that the nursing home's executive director must approve. Id. The CNAs wear the same uniforms as the LPNs and RNs. Id. The Board stated that the record did not show that any employees from other classifications had transferred into a CNA position, although the record did show that one CNA transferred to a unit-clerk position. Id.

Kindred sought to include in the bargaining unit with the CNAs about thirty-three other employees whom it deems service and maintenance employees. Id. These employees include: resident activity assistants, who design and lead individual and group recreational activities for the residents; the social services assistant, who works with residents and their families to identify residents' needs and to resolve problems as they arise; the staffing coordinator, who prepares work schedules for the nursing staff, contacts replacement personnel as necessary, and determines which CNA will accompany a resident to an appointment outside the nursing home; the maintenance assistant, who performs routine maintenance, upkeep, and repair services on the building, grounds and equipment; and the central-supply clerk, who maintains an inventory of items used by each resident, and orders, receives, and stocks supplies. Id.

Kindred would also include: cooks, who prepare meals for...

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