Glenmark Associates, Inc. v. N.L.R.B.
| Decision Date | 19 June 1998 |
| Docket Number | Nos. 97-1403,97-1404,97-1514 and 97-1515,s. 97-1403 |
| Parties | 158 L.R.R.M. (BNA) 2582, 135 Lab.Cas. P 10,188 GLENMARK ASSOCIATES, INCORPORATED, d/b/a Cedar Ridge Nursing and Rehabilitation Center, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. GLENMARK ASSOCIATES, INCORPORATED, d/b/a Carehaven of Point Pleasant, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GLENMARK ASSOCIATES, INCORPORATED, d/b/a Cedar Ridge Nursing and Rehabilitation Center, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GLENMARK ASSOCIATES, INCORPORATED, d/b/a Carehaven of Point Pleasant, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Glenn Patrick Hare, Steptoe & Johnson, Martinsburg, WV, for Glenmark. Susan M. Pavsner, N.L.R.B., Washington, DC, for Board. ON BRIEF: Frederick L. Feinstein, Gen. Counsel, Linda Sher, Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Charles Donnelly, Supervisory Atty., N.L.R.B., Washington, DC, for Board.
Before NIEMEYER and WILLIAMS, Circuit Judges, and JONES, United States District Judge for the Western District of Virginia, sitting by designation.
Petitions for review granted and cross-applications for enforcement denied by published opinion. Judge WILLIAMS wrote the majority opinion, in which Judge NIEMEYER concurred. Judge JONES wrote a dissenting opinion.
This case requires us to decide whether nurses employed in nursing homes who have significant management responsibility in the facilities during the evening shifts and on weekends and who also have meaningful roles in the assignment and discipline of certified nursing assistants (CNAs) meet the statutory definition of supervisor under § 2(11) of the National Labor Relations Act (the NLRA or the Act). See 29 U.S.C.A. § 152(11) (West 1973). We join the Sixth Circuit 1 in finding untenable the National Labor Relations Board's (NLRB or the Board) conclusion that these nurses, who are the senior staff members and patient care coordinators for more than two-thirds of the week, do not exercise independent judgment in the performance of their duties. Therefore, we grant Glenmark Associates, Inc.'s (Glenmark) petitions for review and deny the NLRB's cross-petitions for enforcement.
This case arises on Glenmark's consolidated petitions for review of two NLRB Decisions and Orders in which the Board determined that Glenmark had committed unfair labor practices at two of its West Virginia nursing homes, Cedar Ridge Nursing and Rehabilitation Center (Cedar Ridge) and Carehaven of Point Pleasant (Point Pleasant), by refusing to deal with the newly organized nursing unions at those facilities in violation of § 8(a)(1) and (a)(5) of the Act. See 29 U.S.C.A. § 158(a)(1), (a)(5) (West 1973). Glenmark does not deny its refusal to bargain with the unions. It, however, contends that the refusal was justified, and therefore not an unfair labor practice, because the Cedar Ridge and Point Pleasant bargaining units were illegally organized. Glenmark claims that both bargaining units contain nurses who meet the definition of "supervisor" under NLRA § 2(11), see 29 U.S.C.A. § 152(11) (West 1973), and therefore are prohibited from unionizing. The nurses at issue at the Cedar Ridge and Point Pleasant facilities are somewhat differently situated. Therefore, we will discuss separately the factual backgrounds leading to the present dispute.
Cedar Ridge is a 120-bed nursing home located in Sissonville, West Virginia. The nursing staff consists of: one Director of Nursing, one Assistant Director of Nursing, three full-time Registered Nurses (RNs), one part-time RN, twenty-two Licensed Practical Nurses (LPNs), and between fifty-eight and sixty CNAs. Because Cedar Ridge provides twenty-four hour care to its patients, its staff works on a three shift schedule, i.e., each twenty-four hour day is divided into three eight-hour shifts. The Director of Nursing and the Assistant Director of Nursing generally work only during the day shift on Monday through Friday. The RNs operate on a separate twelve-hour shift schedule. RNs sometimes work weekend hours and participate in an on-call rotation system. RNs serve as charge nurses when they are on the floor. When there is no RN coverage, however, the senior LPN on the shift takes over the charge nurse's responsibilities. 2 Any LPN employed at Cedar Ridge could potentially serve as the charge nurse for a particular shift.
Cedar Ridge is divided into two wings. Each wing contains sixty beds and is divided into two halls known as the "long hall" and the "short hall." Each long hall contains thirty-five beds, whereas each short hall contains twenty-five beds. Of the two short halls, one is reserved for patients requiring a higher degree of nursing care. The LPNs and CNAs on staff are each assigned to one of the four halls.
LPNs' duties primarily relate to direct patient care including: dispensing medication, performing supplemental feedings, assisting regular feedings, checking room conditions, ensuring that residents are clean, dry, and regularly turned, charting vital signs, noting residents' intake and output, and reporting patient conditions at the end of the shift. LPN duties, however, also include managing CNAs in certain circumstances. If a staff shortfall occurs for any reason, floor or charge LPNs reassign CNAs to ensure adequate patient care. Additionally, if a CNA assigned to a particular shift does not report to work, the LPN charge nurse calls off-duty CNAs to attain an adequate staff level at the facility. If a CNA makes a special scheduling request during a shift, the LPN floor nurse has the authority to approve or disapprove the request. LPNs are also involved in the discipline of aides. If a CNA does not perform his job in accordance with facility procedures, an LPN can take one of several steps. For a minor infraction, the LPN may counsel the CNA on the proper procedure, may file a written "verbal correction notice" with the Director of Nursing, or take both actions. For serious infractions, the LPN witnessing the behavior may immediately suspend the CNA. The duties of CNAs at Cedar Ridge involve more basic, personal hygiene-oriented duties than do the LPNs' responsibilities. For example, CNAs turn, bathe, dress, provide ice for, brush the teeth of, and change the linens and clothing for patients.
On May 1, 1995, District 1199, The Health Care and Social Services Union, SEIU, AFL-CIO (the Union) filed a petition in the NLRB's regional office requesting that an election be held so that the Union could be certified as the exclusive bargaining representative for the twenty-two LPNs at Cedar Ridge. On June 14, 1995, the NLRB's Regional Director 3 for Region 9 determined that the unit comprised of "[a]ll full-time and regular part-time licensed practical nurses (LPNs) employed by [Glenmark] at its Sissonville, West Virginia facility, excluding all professional employees, guards, and supervisors as defined in the act" was appropriate. (J.A. at 510.) Thus, the Director ordered an election to determine whether the LPNs in the unit were interested in union representation. Twenty-one LPNs voted in the election. Eleven LPNs voted in favor of union representation and ten voted against it. A simple majority having been attained in the representation vote, the Director certified the Union as the exclusive collective bargaining representative of the Cedar Ridge LPNs.
Point Pleasant is a 68-bed facility in Point Pleasant, West Virginia. The nursing staff consists of: one Director of Nursing, one Administrative Nurse/MDS Coordinator, two RNs, ten LPNs, and between thirty-one and forty CNAs. Point Pleasant also provides twenty-four hour care to its patients. The staff works on a three shift schedule; each twenty-four hour day is divided into three eight and one-half hour shifts. The Director of Nursing and the Administrative Nurse/MDS Coordinator generally work traditional forty hour schedules during the day shift on Monday through Friday. None of the administrative staff are on call or carry a beeper. The RNs and LPNs perform essentially identical tasks at Point Pleasant, with the exception of the Administrative Nurse/MDS Coordinator 4 who has additional responsibilities for scheduling staff and training CNAs.
At Point Pleasant, if one of the RNs is on duty she is automatically designated the charge nurse. On any shift with only LPNs, one is designated the charge nurse on the basis of seniority. 5 Any of the LPNs could be the senior LPN on a given shift and could be designated as the charge nurse. As part of their responsibilities, LPNs and RNs at Point Pleasant oversee the work of the CNAs. For example, they file an absence report when a CNA does not show up for work. In addition, the LPN or RN serving as charge nurse on a particular shift assures that, whenever CNA staffing is deficient, adequate coverage is restored through a combination of calling in non-scheduled staff and reorganizing the coverage arrangement of the staff present at the facility. All LPNs and RNs have disciplinary responsibilities. When an RN or LPN sees that a CNA is not properly caring for a patient or has violated administrative policy, 6 she has several options. She may counsel the CNA on proper procedure, file a written "verbal correction notice," or both.
The terms and conditions of the Point Pleasant CNAs' employment are governed by a collective bargaining agreement. 7 That agreement dictates the procedures for: seniority, lay-off, promotion, hours of work, overtime, call-in work, overtime pay, holidays, personal days, bonus days, vacation, sick leave, bereavement leave, leave of absence, medical leave, military leave, jury duty, union leave, discipline and discharge, and grievances.
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