Grancare, Inc. v. N.L.R.B.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation137 F.3d 372
Docket Number96-6086,Nos. 96-5838,s. 96-5838
Parties157 L.R.R.M. (BNA) 2513 GRANCARE, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
Decision Date19 May 1998

Page 372

137 F.3d 372
157 L.R.R.M. (BNA) 2513
GRANCARE, INC., Petitioner/Cross-Respondent,
NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
Nos. 96-5838, 96-6086.
United States Court of Appeals,
Sixth Circuit.
Argued Sept. 9, 1997.
Decided Feb. 23, 1998.
Rehearing and Suggestion for Rehearing En Banc Denied May 19, 1998.

Page 373

David W. Miller, Todd M. Nierman (argued and briefed), Baker & Daniels, Indianapolis, IN, for Petitioner/Cross-Respondent.

Richard A. Cohen (argued and 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: JONES, SUHRHEINRICH, and MOORE, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court. JONES, J. (pp. 376-377), delivered a separate concurring opinion. MOORE, J. (pp. 377-386), delivered a separate opinion concurring in the judgment.


SUHRHEINRICH, Circuit Judge.

Petitioner-Cross-Respondent Grancare, Inc. d/b/a Heritage Manor ("Heritage") petitions for review of a final decision of the National Labor Relations Board ("NLRB") concluding that Heritage's registered and licensed practical nurses, collectively known as

Page 374

"charge nurses" are not supervisors within the meaning of Section 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11) (NLRA or Act). The NLRB has cross-petitioned for enforcement of its order that Heritage violated section 8(a)(5), 29 U.S.C. § 158(a)(1), by refusing to recognize and bargain with Local 332, of the International Brotherhood of Teamsters, as the representatives of Heritage's charge nurses. For the following reasons, we REVERSE order of the Board and therefore DENY the Board's cross-application for enforcement of its order.


Heritage is a 180-bed, long-term nursing care facility located in Flint, Michigan. The facility consists of three floors, each with 60 beds. The Nursing Department consists of one Executive Director of Nurses (DON), who is responsible for coordinating and managing the Nursing Department and directing its policies and procedures to provide appropriate resident care. Heritage has two Assistant Directors of Nurses (ADON). In addition, Heritage has two Staff Development/In-Service Directors in its Nursing Department. This position is responsible for orienting and training new and current staff. The Staff Development Directors do not directly supervise charge nurses or nurses' aides.

The Nursing Department also has thirty-three RNs and LPNs, known as charge nurses, and approximately 100 certified educated nurses' aides. The charge nurses report to the DON and ADONs. The aides report to the charge nurses.

The Nursing Department operates twenty-four hours a day, seven days a week, on a three-shift schedule. Each floor is staffed by roughly two or three charge nurses and six or seven nurses' aides. During the night shift, there is typically one charge nurse and three nurses' aides assigned to each floor. In all, approximately eighteen nurses and forty-seven nurses' aides staff the facility on any given day.

The DON and one ADON generally work 9:00 a.m. to 5:00 p.m. Monday through Friday. The other ADON comes in early. Thus, one or more of these persons may be present in the facility between 6 a.m. and 5 p.m., Mon-Fri. During their off-hours, the DON and the ADONs are available by phone. One is also designated as the "on-call manager" and is available by beeper. Charge nurses are the highest authority in the facility from approximately 6:00 p.m. to 6:00 a.m., Monday through Friday. On weekends, management is present for four to six hours per day. At all other times on the weekends, the charge nurses are the highest authority in the building.

The Charge Nurse job description describes a charge nurse's "essential duties and responsibilities," as including supervising nursing and ancillary personnel, implementing nursing care plans, participating in progressive discipline and orientation, monitoring and assisting in the evaluation of nursing staff performance, assigning staff based on facility needs, approving overtime, sending employees home as necessary to maintain satisfactory staffing ratios, maintaining rules and regulations of the facility, and instructing nursing staff in the provision of nursing care. DON Kim Runci testified that, except for interviewing, hiring, and calling outside agencies to fill in for absent nurses' aides, the job description accurately depicts the charge nurse's duties. Additionally, charge nurses assign lunch and rest breaks, approve changes in lunch and break times, assign and reassign patient and nonpatient care duties, act as the facility supervisor in the absence of other facility management, and adjust nurses' aides' grievances at the first step under the collective bargaining agreement between the aides and Heritage.

On April 25, 1995, the Union filed a representation petition with the NLRB seeking to represent Heritage's charge nurses. On June 22, 1995, the Regional Director for NLRB Region 19 issued a Decision and Order finding that Heritage's charge nurses were not supervisors, and directed an election. Heritage sought review of that decision by the NLRB, which the NLRB ultimately denied. An election was held and the Union was certified as the exclusive bargaining representative. Heritage, however, refused to

Page 375

recognize and bargain with the Union. The Union filed an unfair labor practice charge with the NLRB, and on June 5, 1996, the NLRB issued a Decision and Order finding that Heritage had unlawfully refused to bargain. Heritage seeks review of the Board's rulings.


The Act defines a supervisor to be an individual who, having authority on behalf of the employer, uses independent judgment to, among other things, assign and direct work, discipline, adjust grievances, or effectively recommend such action. 29 U.S.C. § 152(11). 1 Thus, an individual is a supervisor within the meaning of § 2(11) if she (1) has the authority to engage in one of the twelve enumerated activities; (2) uses independent judgment in exercising that authority; and (3) holds that authority in the "interest of the employer." NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 573-74, 114 S.Ct. 1778, 1780-81, 128 L.Ed.2d 586 (1994); Manor West, Inc. v. NLRB, 60 F.3d 1195, 1197 (6th Cir.1995); Health Care & Retirement Corp. of America v. NLRB, 987 F.2d 1256, 1261 (6th Cir.1993), aff'd, 511 U.S. 571, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994).

Any individual who meets the statutory test is a supervisor; members of the health care field are not excepted. Beverly California Corp. v. NLRB, 970 F.2d 1548, 1556 (6th Cir.1992). Further, because "[p]atient care is the business of a nursing home, [ ] it follows that attending to the needs of the nursing home patients, who are the employer's customers, is in the interest of the employer." Health Care, 511 U.S. at 577, 114 S.Ct. at 1782. "It also bears emphasis that § 2(11) uses the disjunctive 'or' in listing the numerous indicia of supervisory status." Beverly California Corp., 970 F.2d at 1552.

The Board has the burden of proving that employees are not supervisors. NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076, 1080 (6th Cir.1987); Health Care, 987 F.2d at 1260 (following Beacon Light ). In concluding whether substantial evidence supports the Board's decision, the court must consider the entire record. Hickman Harbor Serv. v. NLRB, 739 F.2d 214, 219 (6th Cir.1984). Evidence which the Board has ignored but is directly relevant cannot be disregarded. Kurz-Kasch, Inc. v. NLRB, 865 F.2d 757, 761 (6th Cir.1989).

Our review of the record reveals that the Board impermissibly shifted the burden of proof to the employer, (see Decision and Direction of Election, dated June 22, 1995, p. 21, J.A. 28), ignored substantial evidence, and misconstrued our precedent. For example, the NLRB found that Heritage's charge nurses have the authority to assign aides to specific patients and specific tasks, but found that "the record evidence with respect to the nurses' authority to assign CENAs [nurses' aides] is minimal." (Id. at 21). This finding ignores language in the nurses' aides' collective bargaining agreement that provides that a charge nurse "has the authority and responsibility to direct [the aide's] work activities." (J.A. 110). It also ignores the Charge Nurse job description, which states that a charge nurse's "essential duties and responsibilities" include "supervis[ing] nursing and ancillary personnel in implementation of nursing care plans as assigned," (Id. 128), and "assign[ing] staff based on unit/facility needs." (Id. at 129). Furthermore, various witnesses testified that charge nurses assign and reassign aides to particular patients and tasks, as well as authorize lunch and rest breaks. (Id. 321-26; 990-91). Although the Regional Director did not address it, the employer introduced evidence that charge nurses have the authority to delay or cancel an aide's break if necessary. (Id. 1128-29; 403-04; 612-13).

Page 376

The Regional Director concluded that this evidence "does not establish any real independent judgment." This conclusion is clearly contrary to Sixth Circuit precedent. See, e.g., Caremore, Inc. v. NLRB, 129 F.3d 365 (6th Cir.1997) (holding that LPNs were supervisors where Regional Director found that LPNs provided direction to aides involving "aspects of patient care" and record also demonstrated that LPNs are substantially involved in evaluation and discipline of aides); Manor West, 60 F.3d at 1195 (finding that substantial evidence did not support the Board's conclusion that LPNs were not "supervisors" where employer offered evidence that nurses had authority to direct care of patients); Health Care, 987 F.2d 1256 (holding that LPNs and RNs were "supervisors" where it was clear that...

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