Beverly Enterprises v. N.L.R.B.
| Decision Date | 08 October 1981 |
| Docket Number | No. 79-1323,79-1323 |
| Citation | 661 F.2d 1095 |
| Parties | 108 L.R.R.M. (BNA) 2746, 92 Lab.Cas. P 13,046 BEVERLY ENTERPRISES, dba Beverly Manor Convalescent Centers, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Ronald J. Santo, Joseph A. Ritok, Jr., Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for petitioner.
Elliott Moore, Linda Weisel, Deputy Associate Gen. Counsel, Washington, D. C., N. L. R. B., Bernard Gottfried, Detroit, Mich., for respondent.
Before LIVELY and KEITH, Circuit Judges, and RICE, * District Judge.
Beverly Enterprises (Beverly), a California corporation, operates one of its convalescent care centers in Petoskey, Michigan. The Petoskey center is capable of providing 24-hour basic and skilled nursing services for up to 120 resident patients.
In this case, Beverly seeks review of an order by the National Labor Relations Board (the Board) directing Beverly to cease and desist from refusing to bargain with the certified exclusive collective bargaining representative of certain employees at the Petoskey home. Beverly admits the refusal to bargain but maintains that the Board's order should be set aside because the bargaining unit certified by the Board, upon which the order is predicated, is incorrect. By cross-application, the Board seeks enforcement of its order.
Beverly's Petoskey facility is a one-story structure divided into three residential wings. The residents at the home are assigned among the wings according to the degree of care they require. Patients in the new south wing generally require more care than those in the north wing, and patients in the south wing generally require less care than those in either the new south or north wings.
The nursing staff at Petoskey consists of seven registered nurses (RNs), seven licensed practical nurses (LPNs), one graduate nurse (GN), and approximately thirty-five aides and orderlies. The nursing service department operates on three shifts with staff assignments made among the wings during each shift in order to achieve a level of coverage appropriate for the time of day and required degree of patient care. For example, there is generally no more than one aide or orderly assigned to the south wing during any given shift, but there may be as many as four aides or orderlies and two nurses assigned to the new south wing during the same shift. Similarly, the nurses assigned to the new south wing are ordinarily RNs, although an LPN or the GN may be assigned there during the afternoon or night shift; the north wing nurses are ordinarily LPNs or the GN, but an RN may be assigned there on occasion.
Beverly uses a "charge nurse" system to oversee nursing care on the wings. Normally, the RNs, LPNs, and GN are all designated as charge nurses, and have the responsibility of overseeing patient care on the wings and during the shifts to which they are respectively assigned. When two nurses are assigned to a particular wing during a given shift, one of them will assume the role as the charge nurse. The charge nurse on the new south wing also oversees the south wing since there is ordinarily no nurse assigned to that wing. Moreover, if no nurse is assigned to the north wing, as has happened during certain shifts in the past, the new south wing charge nurse will oversee patient care on all wings.
The aides and orderlies answer to the charge nurse for their wing. The charge nurses ordinarily report directly to the Director of Nursing who, in turn, reports to the Administrator of the facility. The Administrator and the Director generally work weekday hours paralleling the day shift. When the Administrator and Director are away from the home, the new south wing charge nurse is the most responsible employee at the facility.
Beverly also employs a single Ward and Central Supply Clerk at Petoskey. The supply clerk is responsible for the medical supplies inventory and prepares billing data for patient charges. The clerk's office is located on the new south wing, which is physically remote from the administrative offices. Medical supplies are stored in a room on the north wing but, from time to time, the clerk releases supplies from the storeroom for inventory at the nurses station on the north and new south wings. Items of supply delivered to the nurses station have charge slips attached which are filled in with the patient's name when the items are used. The supply clerk maintains billing control through these slips and must contact the nurses regarding discrepancies. The nurses contact the supply clerk when in need of specific supplies. The supply clerk also assists the center's social worker in reviewing medical records, and fills in for the Administrator's secretary during absences.
In July, 1978, the United Steelworkers of America, AFL-CIO-CLC (the Union), filed two petitions 1 with the Board seeking certification as the exclusive bargaining representative for certain employees at the Petoskey center, including LPNs and the supply clerk. The petitions were consolidated and, on September 20, 1978, following three days of hearings, the Board's Regional Director issued a Decision and Direction of Election. In that Decision, the Regional Director determined that LPN charge nurses at Petoskey are not "supervisors" under the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., and that the Ward and Central Supply Clerk at Petoskey has a "substantial community of interest" with other service and maintenance employees. The Regional Director therefore concluded that LPNs and the supply clerk would be included in the bargaining unit. The Board denied Beverly's request for review of the Regional Director's decision.
The representation election was held on October 18, 1978. Thirty-one out of fifty-four ballots cast favored the Union, with one ballot challenged. Beverly's objections to the conduct of the election were overruled. The Union was certified by the Regional Director as the exclusive bargaining representatives of service and maintenance employees at Petoskey, including LPNs and the supply clerk, on December 1, 1978.
Thereafter, Beverly refused to bargain with the Union. On June 4, 1979, in unfair labor practice proceedings based upon Beverly's refusal to bargain, the Board declined to reconsider inclusion of the LPNs and supply clerk in the bargaining unit as certified in the 1978 representation proceedings. Since Beverly otherwise admitted its refusal to bargain with the Union, the Board issued its order directing Beverly to bargain.
This Court has jurisdiction over Beverly's petition for review, and the Board's cross-application for enforcement of the June 4, 1979, order pursuant to section 10 of the NLRA, 29 U.S.C. § 160. Because Beverly admits its refusal to bargain but justifies its conduct solely upon the over-inclusiveness of the certified bargaining unit, our review is effectively and appropriately directed only to the correctness of the Regional Director's September 20, 1978, bargaining unit determination, upon which the Board's June 4, 1979, order is based. 2 See Boise v. Greyhound Corp., 376 U.S. 473, 476-77, 84 S.Ct. 894, 896-97, 11 L.Ed.2d 849 (1964).
Section 2(11) of the NLRA, 29 U.S.C. § 152(11), defines a "supervisor" as:
... any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, 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.
The kinds of supervisory authority enumerated in section 2(11) are in the disjunctive but, regardless of the specific kind of supervisory authority at issue, its exercise must involve the use of true independent judgment in the employer's interest before such exercise of authority becomes that of a supervisor. NLRB v. City Yellow Cab Co., 344 F.2d 575, 580-82 (6th Cir. 1965); Eastern Greyhound Lines v. NLRB, 337 F.2d 84, 87 (6th Cir. 1964). Supervisors are not employees under the NLRA, 29 U.S.C. § 152(3), and no employer may be required to bargain with his supervisors, 29 U.S.C. § 164(a).
In 1974, Congress indicated its awareness of the difficulties in applying the section 2(11) definition of supervisor to professionals in the health care field. The problem in application is due to the fact that health care professionals often exercise certain kinds of supervisory authority in treating those under their care, but they do so in the exercise of independent professional judgment not always strictly "in the interest of the employer." Nonetheless, Congress declined to amend section 2(11) to exclude health care professionals from the definition of supervisor, as was suggested at the time of the 1974 NLRA Health Care amendments. Rather, the Senate Labor Committee report accompanying the 1974 law indicated that the proposed exclusion was thought "unnecessary because of existing Board decisions." S.Rep.No. 766, 93d Cong., 2d Sess. ---, reprinted in (1974) U.S.Code Cong. & Ad.News 3946, 3951. The Committee expressed its approval of pre-1974 Board Decisions in the following manner:
The Committee notes that the Board has carefully avoided applying the definition of "supervisor" to a health care professional who gives direction to other employees in the exercise of professional judgment, which direction is incidental (to) the professional's treatment of patients, and thus is not the exercise of supervisory authority in the interest of the employer.
The Committee expects the Board to continue evaluating the facts of each case in this manner when making its determinations.
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