Beverly Enterprises, West Virginia, Inc. v. N.L.R.B.
| Decision Date | 13 February 1998 |
| Docket Number | Nos. 96-2778,97-1037,s. 96-2778 |
| Citation | 136 F.3d 353 |
| Parties | 157 L.R.R.M. (BNA) 2499, 135 Lab.Cas. P 10,118, 135 Lab.Cas. P 10,143 BEVERLY ENTERPRISES, WEST VIRGINIA, INCORPORATED, d/b/a Glasgow Rehabilitation and Living Center, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BEVERLY ENTERPRISES, WEST VIRGINIA, INCORPORATED, d/b/a Glasgow Rehabilitation and Living Center, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Thomas Vincent Walsh, Jackson, Lewis, Schnitzler & Krupman, White Plains, NY, for Petitoner. Joseph Anthony Oertel, NLRB, Washington, DC, for Respondent. ON BRIEF: James D. Williams, Jr., Jackson, Lewis, Schnitzler & Krupman, White Plains, NY, for Petitioner. Frederick L. Feinstein, Gen. Counsel, Linda Sher, Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, NLRB, Washington, DC, for Respondent.
Before HALL and NIEMEYER, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
Review denied and order enforced by published opinion. Judge HALL wrote the opinion, in which Senior Judge PHILLIPS joined. Judge NIEMEYER wrote a dissenting opinion.
Beverly Enterprises, West Virginia, Inc., petitions for review of an order of the National Labor Relations Board (NLRB) finding that Beverly violated §§ 8(a)(1) and (5) of the National Labor Relations Act 1 by refusing to bargain with a certified unit of licensed practical nurses at a nursing home it operates in Glasgow, West Virginia. The NLRB cross-petitions for enforcement of the same order. We deny the petition for review and enforce the order.
This case arises in one of the most difficult areas of labor law--drawing the line between employer and employee. The theory is simple: "supervisors" are the representatives of the employer directing the work and are not "employees" under the Act. In practice, drawing that line is much more difficult, because employees at all levels of an organization, even those performing the most menial tasks, often "lead" or "direct" (and hence "supervise" in the broadest sense) other employees.
Beverly Enterprises, West Virginia, Inc., operates a nursing home called "Glasgow Rehabilitation and Living Center." The home's service and maintenance employees; laundry, dietary, and housekeeping aides; and certified nurse assistants (CNAs) are already members of a bargaining unit represented by the United Steelworkers of America (the union). This case concerns the efforts of the 24 licensed practical nurses (LPNs) to be represented by the union as well.
The home has one overall administrator, James Mitchell. There are several departments each with its own supervisor, as well as a registered nurse (RN) Care Plan Coordinator. The nursing department is headed by a director of nursing, who reports directly to Mitchell. There are also two RN supervisors and an assistant director of nursing.
The home has 120 beds and is divided into two 60-bed wings. Care must be rendered around the clock, but upper management is not present all the time. The director of nursing, assistant director, and Care Plan Coordinator work ordinary business hours--8 to 4, Monday through Friday. The RN supervisors are present on two daytime shifts, 7-3 and 3-11, Monday through Friday. LPNs are present on all shifts--four on the daytime shifts and two overnight. Thus, for eight hours each weeknight and for the entire weekend, the LPNs are the senior persons (at least in terms of professional training) physically present at the home. However, an RN is on-call at all times.
At the time of the hearing, CNAs were paid $4.55, LPNs $9-$9.50, and RNs over $16 per hour. Fringe benefits are generally equivalent among all three classes, except that CNAs are not eligible to participate in Beverly's § 401(k) savings plan.
CNAs are the front-line care providers. They bathe, feed, and clean up after residents. They have regular assignments to their shifts and wings as set under the seniority provisions of their collective bargaining agreement. LPNs perform these primary care tasks, plus charting and dispensing medications. However, in addition to these prosaic duties, the LPNs are nominally "in charge" at night and on weekends, and this case boils down to whether these "charge" duties suffice to make them "supervisors."
When "in charge," LPNs are of course expected to unilaterally deal with dire emergencies--Beverly proffers the example of a fire, in which LPNs must, without awaiting instructions, evacuate the building. LPNs also verbally instruct the CNAs on the performance of their duties and can, if abuse of a patient be suspected, remove a CNA from the building. LPNs cannot, however, independently impose disciplinary measures against a CNA. The LPN may simply write a report of any perceived misconduct; discipline is left to the home's administration. Similarly, LPNs have sporadically prepared written evaluations of CNAs' job performance, but these contain no recommendations as to raises, promotions, or discharge.
An LPN can move CNAs between wings to meet any imbalance in the workload, but must first ask for volunteers and then assign strictly by seniority. If a CNA calls in sick, an LPN or sometimes another CNA takes the call. When only one CNA is absent, no replacement is summoned. If more than one is absent, the LPN calls an RN to obtain permission to call a replacement. With permission in hand, the LPN's authority is still closely circumscribed. She must contact CNAs from an on-call list in order of seniority. On at least one occasion, an LPN has required a CNA to work a double shift because excessive absences threatened inadequate staffing. 2
The existing collective bargaining agreement between the union and the CNAs requires CNAs to submit grievances to their "supervisors." Mitchell testified that if two CNAs had a dispute, they could ask an LPN to adjust the grievance. There is no evidence that an LPN has ever done so, and none of the written grievances that Beverly submitted into evidence shows any involvement by an LPN in their adjustment. Moreover, though adjustment of a grievance would require interpretation and application of the collective bargaining agreement, the record is undisputed that LPNs have neither been trained nor instructed to learn about the agreement.
On February 16, 1994, the union requested in writing that Beverly recognize it as the LPNs' collective bargaining representative. Beverly filed an objection with the NLRB's Regional Director on the ground that the LPNs are "supervisors" ineligible for the protections of § 7 of the Act. 3 After a two-day hearing on the issue before an NLRB hearing officer, the Regional Director issued a decision directing an election, finding that the LPNs are not "supervisors." Beverly petitioned the NLRB for review. The NLRB denied review, citing its decisions in Providence Hospital, 320 NLRB 717, 1996 WL 46343 (1996), and Nymed, Inc. d/b/a Ten Broeck Commons, 320 NLRB 806, 1996 WL 48265 (1996). 4 The union won the election by a wide margin (15 to 4) and was certified as the LPNs' bargaining representative. Beverly refused to bargain, and the current unfair labor practice charges were brought. Because Beverly admitted that it refused to bargain and it raised no issue other than the earlier certification of the alleged "supervisors" as a unit, the NLRB transferred the case to itself and granted summary judgment finding that Beverly had violated the Act.
Beverly petitions for review of this order, and the NLRB cross-petitions for its enforcement.
The standard of review is familiar: the order of the NLRB must be enforced if it is in accordance with law and the findings of fact have substantial support in the record as a whole. NLRB v. Nueva Engineering, Inc., 761 F.2d 961, 965 (4th Cir.1985).
Section 2(3) of the National Labor Relations Act 5 exempts "supervisors" from the definition of "employees" eligible to bargain collectively. Under § 2(11), 6 a "supervisor" is
[a]ny 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.
(emphasis added). Thus, there are three essential elements to supervisor status. First, the person must actually have the authority to do one--but not necessarily more than one 7--of the twelve things listed (hiring, transferring, etc.). It is not essential that the purported supervisor's authority ever be used. NLRB v. Tio Pepe, Inc., 629 F.2d 964, 969-970 (4th Cir.1980). On the other hand, evidence of the authority's use (or lack thereof) is obviously relevant to whether it exists at all. 8 See id. Second, the authority to act must be "in the interest of the employer." Finally, exercise of the authority must require independent judgment and not be merely routine or clerical. This last point is by far the most difficult.
Formerly, the NLRB relied on the second part of the test in charge nurse cases. According to the NLRB, purportedly supervisory actions taken by charge nurses were not "in the interest of the employer," but rather "in the interest of patient care." In NLRB v. Health Care & Retirement Corp., 511 U.S. 571, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994), the Supreme Court rejected the NLRB's theory as a "false dichotomy." Because the employer's business is patient care, an action can be in both the interest of the employer and of patients. The Court took pains to specify, however, that its opinion "cast[ ] no doubt on Board or court decisions...
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