Beverly Enterprises-Massachusetts, Inc. v. N.L.R.B.

• Decision Date: 02 February 1999
• Docket Number: No. 97-1672,INC,ENTERPRISES--MASSACHUSETT,97-1672
• Parties: 160 L.R.R.M. (BNA) 2342, 334 U.S.App.D.C. 173 BEVERLY, d/b/a East Village Nursing & Rehabilitation Center, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 960

165 F.3d 960

160 L.R.R.M. (BNA) 2342, 334 U.S.App.D.C. 173

BEVERLY ENTERPRISES--MASSACHUSETTS, INC., d/b/a East Village Nursing & Rehabilitation Center, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 97-1672.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 14, 1999.

Decided Feb. 2, 1999.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Howard M. Bloom argued the cause and filed the briefs for petitioner.

Charles Donnelly, Supervisory Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel at the time the brief was filed, and Christopher W. Young, Attorney. John D. Burgoyne, Acting Deputy Associate General Counsel, entered an appearance.

Before: WALD, SILBERMAN and SENTELLE, Circuit Judges.

Opinion for the court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Employer East Village Nursing & Rehabilitation Center ("East Village") petitions for review of an order of the National Labor Relations Board ("NLRB" or "Board") finding that it violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5). East Village acknowledges that it refused to bargain with the union certified as the representative of licensed practical nurses ("LPNs") and registered nurses ("RNs") at the Center, but argues that certification was improper because the LPNs and RNs serve as "charge nurses" and are "supervisors" within the meaning of the National Labor Relations Act. East Village contends that the nurses are supervisors based on their independent disciplinary authority over the certified nursing assistants, yet cannot point to any instance in which that purported independent authority was exercised. While the exercise of supervisory authority is not always necessary to establish that authority is possessed, the repeated failure to exercise putative authority in circumstances where such exercise would be appropriate can be evidence that the authority is more imagined than real. Concluding that the Board was justified in viewing this as such a case, we deny the petition for review and grant the Board's cross-petition for enforcement of its order.

I.

East Village Nursing & Rehabilitation Center has four nursing units, each supervised by a Unit Coordinator who reports to the Director of Nursing. Each unit is at all times staffed with from one to three nurses (one or more of whom serve as "charge nurses") and from one to six certified nursing assistants ("CNAs"). The job description of a charge nurse includes, inter alia, independently disciplining CNAs. In numerous training seminars, charge nurses have been instructed in how to exercise their independent discipline over CNAs, and charge nurses have been criticized on their job evaluations for failing to exercise their authority over CNAs.

In 1995, the Service Employees International Union, Local 285 ("Union"), petitioned to represent all RNs and LPNs employed by East Village. East Village contended that representation was impermissible because the nurses were statutory supervisors under § 2(11) of the National Labor Relations Act. The Regional Director issued a decision in 1995 concluding that the nurses were not supervisors. An election was held, in which there were insufficient votes in favor of representation, and the Union was not certified.

In November 1996, the Union again petitioned to represent the East Village nurses. East Village again objected that the nurses were supervisors under the Act, emphasizing that all RNs and LPNs sometimes act as "charge nurses," and as such have independent authority to discipline certified nursing assistants. However, the Regional Director issued a Decision and Direction of Election finding that the nurses were not "supervisors." The Director acknowledged that the nurses had been instructed that they have independent authority to discipline. However, she noted that in none of the seven recorded incidents of discipline of CNAs in the record had the charge nurse exercised independent authority--in practice, charge nurses always reported the incident to their shift supervisor, unit coordinator, or the Director of Nursing or Administrator. The Regional Director acknowledged East Village's contention that it is the existence and not the exercise of the power to discipline that is dispositive, but concluded that the giving of "paper authority" which is not exercised does not make an employee a supervisor. East Village argued that the nurses' failure to exercise their disciplinary authority was due to fear of retaliation by the CNAs, who had allegedly threatened them and vandalized their vehicles. However, the Director found the nurses' motives for refusing to follow East Village's directives to exercise independent discipline "irrelevant," noting that "[t]he fact remains that the charge nurses have not performed the supervisory duties the Employer has attempted to confer on them and the Employer has permitted this situation to go on." Accordingly, the Director directed election. East Village filed a Request for Review, which the Board denied, 2-1.

In the ensuing election, there were 22 votes in favor of representation and 5 against. The Union was certified. However, East Village refused to bargain with the Union, leading to the present unfair labor charge alleging violations of sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5). After the unfair labor practice charge was filed, East Village requested reconsideration of the Board's decision not to grant review of the underlying issues. The NLRB denied East Village's reconsideration request in its final Decision and Order, issued on September 30, 1997, which ordered East Village to cease and desist from refusing to bargain with the Union. The employer petitions for review, and the Board seeks enforcement of its order.

II.

Under Section 2(11) of the Act, the definition of "supervisor" includes an individual "having authority, in the interest of the employer, to ... discipline other employees, ... or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 29 U.S.C. § 152(11). The Board's findings regarding supervisory status are entitled to affirmance on review if supported by substantial evidence on the record as a whole. Passaic Daily News v. NLRB, 736 F.2d 1543, 1550 (D.C.Cir.1984). The burden of proving supervisory status rests upon the party asserting it. Beverly Enters.-Pennsylvania, Inc. v. NLRB, 129 F.3d 1269 (D.C.Cir.1997).

In construing Section 2(11), the Board has often noted that it is the possession of supervisory authority and not its exercise which is critical. See, e.g., Cherokee Heating and Air Conditioning Co., 280 NLRB 399, 404, 1986 WL 53926 (1986); Sheet Metal Workers Local 85, 273 NLRB 523, 526, 1984 WL 37056 (1984); Hook Drugs, Inc., 191 NLRB 189, 191, 1971 WL 31885 (1971). At the same time, " 'theoretical [or] paper power will not suffice' to make an individual a supervisor." Food Store Employees Union, Local 347 v. NLRB, 422 F.2d 685, 690 (D.C.Cir.1969) (quoting NLRB v. Security Guard Serv., 384 F.2d 143, 149 (5th Cir.1967)). Accord NLRB v. Sayers Printing Co., 453 F.2d 810, 813-15 (8th Cir.1971); Sunset Nursing Homes, Inc., 224 NLRB 1271, 1272, 1976 WL 7150 (1976) ("[T]he mere use of a title or the giving of 'paper authority' which is not exercised does not make an employee a supervisor."); Great Lakes Towing Co., 168 NLRB 695, 700, 1967 WL 18998 (1967). Appellant urges that these two principles are in such tension that their coexistence is unreasonable and invites arbitrariness. We do not agree.

Supervisory status determinations carry important consequences for the workers whose status is in question. Section 2(3) of the National Labor Relations Act, 29 U.S.C. § 152(3), excludes from the definition of the term "employee" "any individual employed as a supervisor," and, under Section 14(a) of the Act, 29 U.S.C. § 164(a), an employer cannot be required to bargain about the working conditions of supervisors. Thus when a worker is found to be a "supervisor" within the meaning of the Act, she is excluded from the NLRB's collective bargaining protections. VIP Health Servs., Inc. v. NLRB, 164 F.3d 644, 644, 1999 WL 7831, * 4 (D.C.Cir.1999). In light of this, the Board must guard against construing supervisory status too broadly to avoid unnecessarily stripping workers of their organizational rights. See Williamson Piggly Wiggly v. NLRB, 827 F.2d 1098, 1100 (6th Cir.1987). Because of the serious consequences of an erroneous determination of supervisory status, particular caution is warranted before concluding that a worker is a supervisor despite the fact that the purported...