Beverly California Corp. v. N.L.R.B.
| Decision Date | 29 July 1992 |
| Docket Number | Nos. 91-5660,90-5856,s. 91-5660 |
| Citation | 970 F.2d 1548 |
| Parties | 140 L.R.R.M. (BNA) 2960, 122 Lab.Cas. P 10,290 BEVERLY CALIFORNIA CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Applicant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Andrew A. Peterson (argued), Jackson, Lewis, Schnitzler & Krupman, Thomas V. Walsh (briefed), Jackson, Lewis, Schnitzler & Krupman, White Plains, N.Y., Kathleen Achterhol, Fort Smith, Ark., for petitioner, cross-respondent.
Aileen A. Armstrong, Deputy Associate Gen. Counsel, Howard E. Perlstein (briefed), Marilyn O'Rourke (argued), N.L.R.B., Office of the General Counsel, Washington, D.C., Gerald Kobell, Regional Counsel, N.L.R.B. Pittsburgh, Pa., for respondent, cross-petitioner.
Before: NELSON and BOGGS, Circuit Judges; and BERTELSMAN, Chief District Judge. *
This is a labor relations case that presents a frequently recurring question: how to apply the term "supervisor," as defined in 29 U.S.C. § 152(11), in determining eligibility for union representation.
As often happens in such cases, the individuals whose status is in question here--a group of registered nurses employed at a nursing home--had jobs that put them close to the dividing line between labor and management. The health care field is one in which the task of figuring out where the line runs has been particularly troublesome and there is some tension within the caselaw in this area. See Children's Habilitation Center, Inc. v. NLRB, 887 F.2d 130, 134 (7th Cir.1989), contrasting NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076 (6th Cir.1987), with NLRB v. Res-Care, Inc., 705 F.2d 1461 (7th Cir.1983), and NLRB v. American Medical Services, Inc., 705 F.2d 1472 (7th Cir.1983).
As to the registered nurses in the case at bar, a Regional Director of the National Labor Relations Board decided after a representation hearing that they were not statutory supervisors. Finding that the duties of the registered nurses were "generally limited to giving directions toward the quality treatment of patients," the Regional Director concluded that "such directions do not constitute supervisory authority in the Employer's interest." The nurses were therefore held to be employees eligible for placement in a collective bargaining unit.
A three-member panel of the Board denied a request for review, over the dissent of one member, and the employer was ultimately ordered to engage in collective bargaining with the nurses' union representative. The employer has petitioned for review of that order, and the Board has filed a cross-application for enforcement.
Applying the substantial evidence test, and adhering to the interpretation of 29 U.S.C. § 152(11) adopted by this court in Beacon Light, we conclude that the registered nurses came within the "supervisor" definition and that the Board's decision to the contrary was factually and legally unsupportable. "Where nurses otherwise meet the statutory definition of supervisors, they are not disqualified because the activity they are supervising is patient care." Beacon Light, 825 F.2d at 1079. We shall therefore grant the petition for review and deny enforcement of the contested order.
The petitioner, Beverly California Corporation, is a renamed version of the same company that was before us in Beverly Enterprises v. NLRB, 661 F.2d 1095 (6th Cir.1981). One of the nursing homes it operates is Richland Manor, a long-term care facility located in Johnstown, Pennsylvania. At the time of the representation hearing, which was conducted before an NLRB hearing examiner in October of 1990, Richland Manor had 26 skilled nursing beds, 54 intermediate care beds, and space for 22 residential care patients. 1
The person in overall charge of Richland Manor held the title of Administrator. Reporting to him were the heads of seven departments: Housekeeping/Laundry, Maintenance, Nursing, Business Office, Dietary Services, Social Services, and Activities. The record does not disclose the size of the staff of any of these departments other than Nursing.
There were, it appears, 63 people in the Nursing Department: a Director of Nursing, an Assistant Director of Nursing, 9 registered nurses 2 (the majority of whom worked only part-time), 11 licensed practical nurses, and 41 nurse's aides or nursing assistants. The licensed practical nurses (LPNs) were covered by a collective bargaining agreement at the time of the hearing, but the registered nurses (RNs), although paid on an hourly basis like the LPNs, were not.
Because of the need for around-the-clock patient care, the work of the Nursing Department was divided into three shifts. State regulations required that each shift include a registered nurse. On the day shift there were one RN, two LPNs, and 10 nurse's aides. The second shift had one RN, two LPNs for part of the shift and one for the remainder, and eight nurse's aides. The night shift had one RN, one LPN, and four nurse's aides.
The registered nurses--whose official job title was "R.N. Charge Nurse Supervisor," or, for brevity's sake, "RN Supervisor"--reported to the Director of Nursing or her assistant. The Director of Nursing was responsible for the entire facility when the Administrator was absent, and the Assistant Director of Nursing was in charge when both the Administrator and Director were absent. At times when all three were away--on weekends and during 15 or 16 hours of each weekday--the person in charge of the nursing home was the RN Supervisor. During such times, the evidence showed, the management responsibilities of the RN Supervisor extended to supervision of personnel outside the Nursing Department.
The RN Supervisor was always in direct charge of the nursing staff assigned to the skilled nursing unit, while an LPN--who reported to the RN Supervisor--had charge of the intermediate care unit. The RN Supervisor was ultimately responsible for nursing care in both units, and the evidence showed that she was expected to oversee the work of all nurse's aides and LPNs to insure that proper health care was being provided across the board. The current Director of Nursing (who worked as an RN Supervisor from 1983 through 1989) testified that the RN Supervisors did not spend more than 10 or 15 percent of their time providing direct hands-on care themselves. One part-time RN Supervisor estimated, however, that she spent approximately 50 percent of her workday providing such care.
The Assistant Director of Nursing made the primary assignment of LPNs and nurse's aides to a particular unit or wing. The RN Supervisors, in turn, had authority to call people in (according to seniority) to cover for absent employees; to transfer LPNs and nurse's aides between wings to compensate for temporary personnel shortages; to authorize and deny overtime; to excuse tardiness; and to let members of the nursing staff leave early in emergency situations. RN Supervisors could also make scheduling changes, in the absence of the Assistant Director of Nurses, when members of the nursing staff wanted to exchange workdays. The RN Supervisors resolved complaints made by non-supervisory employees, prepared absence reports, and initialed the time cards of nurse's aides to verify overtime and correct occasional errors. The RN Supervisors had certain responsibilities for on-the-job training of new people, were responsible for the security of the building, and, most importantly, were responsible for making sure that nursing staff employees were providing acceptable care to the patients and were complying with the employer's work rules.
The RN Supervisors had clear disciplinary responsibility. According to their written job description, RN Supervisors were empowered "to counsel and discipline employees and to effectively recommend disciplinary action." Richland Manor had a "progressive discipline" policy, and there was evidence that an RN Supervisor could, without prior approval, take any disciplinary step--counseling, oral warning, first written warning, final written warning or suspension--short of discharge. On one occasion two RN Supervisors recommended that the employment of a member of the nursing staff be terminated, and that recommendation was accepted. 3
On another occasion, a nurse's aide committed a blunder that called for disciplinary action and the RN Supervisor on duty at the time did nothing about it. Her superiors talked to her about this, and the employer then called an in-service meeting of the RN Supervisors at which a "human resources representative" lectured them on their responsibilities in administering employee discipline.
RN Supervisors were responsible for preparing periodic written evaluations of the LPNs and nurse's aides. The main purpose of the evaluations was to identify areas where additional training might be called for and to improve the performance of the nursing staff in providing patient care.
On October 2, 1990, a unit of the National Union of Hospital and Health Care Employees, Service Employees International Union, AFL-CIO, filed a petition with the National Labor Relations Board seeking certification as the representative of a bargaining unit consisting of all full-time and part-time registered nurses at Richland Manor. A representation hearing was held before a Board-appointed hearing examiner, following which the Board's Regional Director in Pittsburgh issued a decision directing that a representation election be held in a bargaining unit comprised of such nurses. Supervisors were expressly excluded from the bargaining unit, and it was agreed that the Director of Nursing and the Assistant Director belonged in the supervisor category. The Regional Director accepted the union's contention that the rest of the registered nurses at Richland Manor were non-supervisory employees.
The employer petitioned the Board for review of the decision, and review...
To continue reading
Request your trial
-
Grancare, Inc. v. N.L.R.B.
...individual who meets the statutory test is a supervisor; members of the health care field are not excepted. Beverly California Corp. v. NLRB, 970 F.2d 1548, 1556 (6th Cir.1992). Further, because "[p]atient care is the business of a nursing home, [ ] it follows that attending to the needs of......
-
Nat'l Labor Relations Bd. v. Hlth. Care 7 Retirement Corp.
...cases that the Board's test for determining the supervisory status of nurses was inconsistent with the statute. See Beverly California Corp. v. NLRB, 970 F.2d 1548 (1992); NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076 (1987). In Beverly, for example, the court had stated that "......
-
Integrated Health v. Nat'l Labor Rel.
...existence of disciplinary authority that counts under the statute, and not the frequency of its exercise." Beverly California Corp. v. NLRB, 970 F.2d 1548, 1550 n.3 (6th Cir. 1992). We hold that substantial evidence does not support the Board's decision, because the staff nurses have the au......
-
N.L.R.B. v. Dole Fresh Vegetables, Inc.
...also bears emphasis that § 2(11) uses the disjunctive `or' in listing the numerous indicia of supervisory status." Beverly Cal. Corp. v. NLRB, 970 F.2d 1548 (6th Cir.1992) (citing NLRB v. Medina County Publ'ns, Inc., 735 F.2d 199, 200 (6th Cir.1984)). An individual who possesses authority i......
-
Time to Rein in the Nlrb
...the Sixth Circuit in NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076 (6th Cir. 1987), and Beverly California Corp. v. NLRB, 970 F.2d 1548, 1553 (6th Cir. 1992). Eventually, the Supreme Court also rejected the Board's position, in another Sixth Circuit case, Health Care & Retireme......