Beverly Enterprises, Virginia, Inc. v. NLRB, 96-2779

Citation165 F.3d 290
Decision Date19 January 1999
Docket NumberNo. 96-2779,97-1098.,96-2779
PartiesBEVERLY ENTERPRISES, VIRGINIA, INCORPORATED, d/b/a Carter Hall Nursing Home, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. American Federation Of Labor And Congress Of Industrial Organizations (AFL-CIO), Amicus Curiae. National Labor Relations Board, Petitioner, v. Beverly Enterprises, Virginia, Incorporated, d/b/a Carter Hall Nursing Home, Respondent. American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), Amicus Curiae.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

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ARGUED: Andrew Allen Peterson, Jackson, Lewis, Schnitzler & Krupman, White Plains, NY, for Petitioner. Linda Jill Dreeben, N.L.R.B., Washington, D.C., for Respondent. ON BRIEF: James D. Williams, Jr., Thomas V. Walsh, Jackson, Lewis, Schnitzler & Krupman, White Plains, NY, for Petitioner. Frederick L. Feinstein, General, Linda Sher, Associate General, Aileen A. Armstrong, Deputy Associate General, Joseph A. Oertel, N.L.R.B., Washington, D.C., for Respondent. Jonathan P. Hiatt, AFLCIO, Washington, D.C.; David M. Silberman, Laurence Gold, Washington, D.C., for Amicus Curiae.

Before WILKINSON, Chief Judge, and WIDENER, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Petition for review granted and cross-application for enforcement denied by published opinion. Judge NIEMEYER wrote the majority opinion, in which Chief Judge WILKINSON and Judges WIDENER, WILKINS, HAMILTON, LUTTIG, and WILLIAMS joined. Senior Judge PHILLIPS wrote a dissenting opinion, in which Judges MURNAGHAN, ERVIN, MICHAEL, and MOTZ joined.

OPINION

NIEMEYER, Circuit Judge:

After Beverly Enterprises, Virginia, Inc., refused to bargain with a unit certified by the National Labor Relations Board that included licensed practical nurses who were functioning as "charge nurses," the Board found that Beverly Enterprises had committed an unfair labor practice under §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act. Beverly Enterprises filed this petition for review, arguing that the licensed practical nurses were "supervisors" under § 2(11) of the Act and thus were not entitled to organize and bargain collectively pursuant to § 7. Because we hold that these licensed practical nurses are "supervisors" under the Act, we grant Beverly Enterprises' petition and deny the Board's application for enforcement of its order.

I

Beverly Enterprises, Virginia, Inc., operates Carter Hall Nursing Home in Dryden, Virginia, a home which serves 50 patients housed in two wings with 32 and 18 beds, respectively. The top level of management at Carter Hall consists of an Administrator and three registered nurses who hold the positions of Director of Nursing, Assistant Director of Nursing, and RN Supervisor. Direct patient care is provided by six licensed practical nurses ("LPNs") (one of whom is part-time) who function as charge nurses and 21 certified nursing assistants. The Director and Assistant Director of Nursing and the RN Supervisor do not directly supervise the nursing assistants.

The Director and Assistant Director of Nursing work at the nursing home during the first shift (8:00 a.m. to 4:30 p.m.) each weekday and the RN Supervisor works eight hours each day on Saturday and Sunday. During the second and third shifts of each day, the LPN charge nurses are the most senior employees present at the nursing home.

The written job descriptions for LPN charge nurses and certified nursing assistants specify that nursing assistants report to the LPNs and that the LPNs supervise the nursing assistants. In particular, the nursing assistants' job description directs the nursing assistants to adhere "to the instructions issued by the LPN charge nurse and nursing department policies and procedures," to "perform other duties that may be assigned by charge nurse," and to "be able to work under close supervision." Similarly, the job description for the LPNs instructs that they are to develop a plan with team members for the care of the patients assigned to the team, "to direct and supervise the number of the nursing team carrying out the plan," and to establish procedures whereby the team "continuously evaluates and revises the plan to meet changing needs of the patients." The job description assigns to LPNs the responsibility for supervising nursing assistants, assigning them nursing care tasks, teaching them nursing procedures, and, when the Administrator and Director of Nursing are absent from the facility, "taking action necessary for continued operation of the nursing home."

Consistent with these written job descriptions, the LPNs at Carter Hall assign the nursing assistants to particular patients and direct their work. While the Director and Assistant Director of Nursing formulate an overall work schedule that outlines the services to be provided to each patient, the LPNs implement the schedule and direct "everything that happens on the unit." Based on the LPNs' knowledge of the nursing assistants' skills, experience, and personalities, the LPNs match the nursing assistants with the patients, filling out daily assignment sheets and adjusting them as needed. The LPNs monitor the nursing assistants' break time and adjust breaks as needed, and they allow nursing assistants to go home early when sick. In those circumstances, the LPNs may procure replacements as necessary, but they may not discipline a replacement who refuses to show up.

While LPN charge nurses are not authorized to directly discipline nursing assistants for not coming to work or for other work infractions, the LPNs do have authority to send them home for misbehavior. In addition, the LPNs provide input for disciplinary decisions made by the Director and Assistant Director of Nursing and are authorized to "write up" nursing assistants. While this authority has only been used sporadically, in at least one situation, an LPN charge nurse sent a nursing assistant home for misbehavior and, solely on the recommendation of the LPN, that nursing assistant was discharged.

For two-thirds of the time during any given week, the LPN charge nurses are the most senior representatives of Beverly Enterprises present at Carter Hall and, during that period, they are authorized to ensure the continued operation of the nursing home in a proper manner. Thus, in cases of emergency or disaster, the LPNs are authorized to order the evacuation of the home and to direct the plan of evacuation.

On January 21, 1993, the United Mine Workers of America (the "Union") petitioned the National Labor Relations Board (the "NLRB" or the "Board") to hold a representational election to allow the Union to represent a unit of approximately 40 non-supervisory employees at Carter Hall, including the six LPN charge nurses. Beverly Enterprises contested the inclusion of its LPNs in the unit, but the Regional Director concluded, following a hearing, that the LPN charge nurses were covered employees and not supervisors, thus including them in the potential bargaining unit. In his findings, the Regional Director acknowledged the various responsibilities given to the LPN charge nurses, but he acted on the Board's "reticence to find such care-givers to be supervisors":

The Board has carefully avoided applying a 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.

(quoting St. Mary's Infant Home, 258 NLRB 1024, 1039 (1981)).

Following an election, which the Union won, the Board certified the unit. The Union then attempted to bargain with Beverly Enterprises, but Beverly Enterprises refused. Shortly thereafter, the Supreme Court handed down its decision in NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994), which rejected the analysis upon which the NLRB had relied to decide the employment status of the LPNs at Carter Hall. Accordingly, the Board allowed the Regional Director to reconsider his decision. The Regional Director issued a supplemental decision which reached the same outcome as his previous decision, but on different grounds. The Regional Director evaluated a few, but not all, of the responsibilities assigned to LPN charge nurses at Carter Hall and then concluded summarily that the LPNs' functions were "routine and essentially clerical in nature" and therefore did not satisfy the requirements of 29 U.S.C. § 152(11) (defining the meaning of "supervisor").

Through a separate proceeding, the Board ordered Beverly Enterprises to begin bargaining with the Union and, upon Beverly Enterprises' refusal, found that Beverly Enterprises committed an unfair labor practice in violation of 29 U.S.C. § 158(a)(1) (prohibiting employers from interfering with employees' exercise of rights under the NLRA) and § 158(a)(5) (requiring employers to bargain with certified representatives).

On appeal from the Board's order, a divided panel of this court granted the Board's petition for enforcement, holding that Beverly Enterprises' LPNs were not supervisors under the National Labor Relations Act. See Beverly Enterprises, Virginia, Inc. v. NLRB, 136 F.3d 361 (4th Cir.1998) (per curiam). By order dated March 30, 1998, the full court vacated that panel opinion and ordered that the case be reheard en banc.

II

While the National Labor Relations Act ("NLRA") grants "employees" the right to self-organize and bargain collectively, see 29 U.S.C. § 157; Hanna Min. Co. v. Marine Eng'rs Beneficial Ass'n, 382 U.S. 181, 188 n. 11, 86 S.Ct. 327, 15 L.Ed.2d 254 (1965), the Act's coverage does not apply to "any individual employed as a supervisor," 29 U.S.C. § 152(3). Accordingly,...

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