Caremore, Inc. v. N.L.R.B., s. 96-6114

Citation129 F.3d 365
Decision Date14 November 1997
Docket NumberNos. 96-6114,96-6228,s. 96-6114
Parties156 L.R.R.M. (BNA) 2865, 134 Lab.Cas. P 10,088 CAREMORE, INC., d/b/a Altercare of Hartville, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Gary W. Dubin (argued and briefed), Dubin, Joseph & Shagrin, Cleveland, OH, for Petitioner/Cross-Respondent.

David B. Schwartz (argued and briefed), Margaret Gaines Neigus (briefed), National Labor Relations Board, Office of the General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent/Cross-Petitioner.

Before: NELSON, BOGGS, and COLE, Circuit Judges.


BOGGS, Circuit Judge.

In this case, we are called upon for the fourth time in a reported decision to revisit the question we initially addressed a decade ago in NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076 (6th Cir.1987): under what circumstances do nurses qualify as "supervisors" within the meaning of Section 2(11) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 152(11)? As in our four prior decisions, we must vacate the order of the National Labor Relations Board ("NLRB") because we conclude that the NLRB erroneously found the licensed practical nurses ("LPNs") employed by Caremore not to be supervisors for purposes of the NLRA.


At the time the NLRB began the proceedings on which this appeal is based, Caremore operated a 66-bed extended-care nursing home in Hartville, Ohio. 1 The nursing home was under the overall supervision of an Administrator. Caremore's nursing department was headed by a registered nurse who served as Director of Nursing ("DON") and reported to the Administrator. The DON was assisted by an Assistant Director of Nursing ("ADON"), who was an LPN during the relevant period. 2 Residents of Caremore's nursing home were cared for both by LPNs and by nurses' aides. Caremore operated on a three-shift schedule. On the first shift, the nursing home was staffed by the Administrator, the DON, the ADON, two LPNs, and seven aides. On the second shift, the nursing home was staffed by two LPNs and four or five aides. The third shift staff consisted of two LPNs and four aides. Neither the Administrator, the DON, nor the ADON was present on-site during the second or third shift, although either the Administrator or the DON generally carried a pager and was designated as "on call" during these shifts.

The required qualifications and job benefits for LPNs at Caremore were somewhat more extensive than those for aides. LPNs and aides were both required to be certified by the State of Ohio. LPNs, however, were required to have completed a one-year training program, while aides were only required to have completed a 75-hour program. Although LPNs and aides were both considered hourly employees, LPNs earned $10.75 per hour on average while aides averaged $5.50 per hour.

Caremore's LPNs spent the majority of their time providing direct patient care. However, LPNs also were called upon to assign or provide direction to aides in certain circumstances. For example, LPNs were responsible for assigning aides to particular patients in the event of a staff shortage. LPNs also were responsible for calling in off-duty aides, or asking on-duty aides to work overtime, in the event a scheduled aide failed to report for a shift (although the LPNs did not have the power to compel off-duty aides to report or to require on-duty aides to work overtime). The record reveals that the NLRB regional director recognized that LPNs at Caremore provided direction to aides, although in his view this responsibility did not confer supervisory status because "any direction from LPNs typically involves aspects of patient care."

Caremore's LPNs also were involved in the evaluation and discipline of aides. LPNs filled out forms with numerical performance ratings of aides. Aides were asked to sign these evaluation forms, which then were submitted to the DON and became part of the aides' employee files. In addition, LPNs filed disciplinary notices relating to aides. In some cases, LPNs even recommended the immediate dismissal of aides. While the LPNs' disciplinary recommendations were not operative of their own force, the Administrator gave them weight in determining whether to discipline an aide. 3


On July 8, 1992, after an evidentiary hearing, the NLRB regional director concluded that Caremore's LPNs (other than the ADON) were not supervisors within the meaning of the NLRA. He therefore directed that an election be held to determine whether the Health Care and Social Service Union ("Union"), an affiliate of the Service Employees International Union, AFL-CIO, should be the exclusive collective bargaining representative for a unit of Caremore personnel including the LPNs. In reaching this conclusion the regional director relied, inter alia, on the fact that the NLRB "has consistently refused to confer supervisory status on health care employees whose instructions to other employees are merely in furtherance of patient care." 4 On April 2, 1993, following an election held on August 14, 1992, and the resolution of certain objections raised by Caremore, the NLRB certified the Union as the exclusive bargaining representative of Caremore employees in a designated bargaining unit that included all Caremore LPNs other than the ADON. Notwithstanding the NLRB's certification, Caremore refused to bargain with the Union. In response, on May 7, 1994, the General Counsel of the NLRB filed a complaint alleging that Caremore had committed an unfair labor practice in violation of the NLRA.

Caremore denied the allegations contained in the General Counsel's complaint and raised as an affirmative defense the argument that the designated bargaining unit contained supervisory personnel with whom Caremore could not be required to bargain--to wit, the LPNs. After discovery, the General Counsel moved the NLRB for summary judgment. In his brief supporting entry of summary judgment, the General Counsel conceded that Caremore's LPNs are responsible for providing direction to aides; however, he noted that "any direction from LPNs typically involves aspects of patient care." The General Counsel further recognized the LPNs' responsibility for imposing discipline on aides; again, however, he asserted that this responsibility was carried out "only under circumstances where patient care is impacted." Caremore opposed the General Counsel's motion, quoting, inter alia, our repeated admonition that "where nurses otherwise meet the statutory definition of supervisors, they are not disqualified because the activity they are supervising is patient care." Beverly California Corp. v. NLRB, 970 F.2d 1548, 1549 (6th Cir.1992).

The NLRB granted the General Counsel's motion for summary judgment by a 2-1 vote and, in an order dated July 26, 1996, ordered Caremore to bargain with the Union. In doing so, the NLRB declined to rely on the regional director's rationale that Caremore's LPNs exercised supervisory authority "merely in furtherance of patient care," inasmuch as an intervening Supreme Court decision had affirmed one of our decisions rejecting exactly this rationale. See NLRB v. Health Care & Retirement Corp., 511 U.S. 571, 577, 114 S.Ct. 1778, 1782, 128 L.Ed.2d 586 (1994). Instead, the NLRB relied in large part on the proposition that the supervisory authority it recognized Caremore's LPNs to possess was exercised only in "sporadic or isolated instances that are insufficient to confer supervisory status." In the wake of the NLRB's decision, Caremore and the NLRB cross-petitioned this court for review and enforcement, respectively, of the NLRB's order pursuant to 29 U.S.C. §§ 160(e) and (f).


The NLRA protects employees' right to form and join labor unions and to bargain collectively through a labor union acting as their bargaining representative. See 29 U.S.C. § 157. The right to organize and bargain collectively does not extend to "supervisors," who are excluded from the statutory definition of "employee." See 29 U.S.C. § 152(3). Under the NLRA, a "supervisor" not covered by the collective bargaining provisions of the NLRA is:

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 actions, if in connection with the foregoing, the exercise of such authority is not of a merely routine nature but requires the use of independent judgment.

29 U.S.C. § 152(11). As a convenient shorthand, we have distilled three elements from the statutory definition of supervisor. To be considered a supervisor, (1) an individual must exercise authority in at least one of the areas listed in the statute, (2) when exercised, that authority must be exercised in the interests of the employer, and (3) the exercise of authority must require the use of independent judgment. See Beverly California, 970 F.2d at 1552. In reviewing the NLRB's determination that Caremore's LPNs were not statutory supervisors, we must ascertain whether that determination is supported by substantial evidence on the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951). The "substantial evidence" standard does not leave factual questions wholly to the NLRB; to the contrary, it requires us to take account of the evidence that undermines the NLRB's conclusions. See Hickman Harbor Svc. v. NLRB, 739 F.2d 214, 219 (6th Cir.1984).

At oral argument, counsel for the NLRB contested the proposition that Caremore's LPNs exercise any statutorily cognizable supervisory authority. Both the record evidence and the NLRB's own findings make this a...

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