Health Care & Retirement Corp. of America v. N.L.R.B.

• Decision Date: 10 March 1993
• Docket Number: Nos. 92-5291,92-5469,s. 92-5291
• Parties: 142 L.R.R.M. (BNA) 2728, 61 USLW 2596, 124 Lab.Cas. P 10,591 HEALTH CARE & RETIREMENT CORPORATION OF AMERICA, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1256

987 F.2d 1256

142 L.R.R.M. (BNA) 2728, 61 USLW 2596,

124 Lab.Cas. P 10,591

HEALTH CARE & RETIREMENT CORPORATION OF AMERICA, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

Nos. 92-5291, 92-5469.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 4, 1992.

Decided March 10, 1993.

Cary Rodman Cooper, Margaret J. Lockhart (argued and briefed), Cooper, Straub, Walinski & Cramer, Toledo, OH, for Health Care & Retirement Corp. of America.

Aileen A. Armstrong, Deputy Associate Gen. Counsel, Howard E. Perlstein, David A. Fleischer (argued and briefed), N.L.R.B., Office of the Gen. Counsel, Washington, DC, James L. Ferree, Engrid E. Vaughan, N.L.R.B., Region 9, Cincinnati, OH, for N.L.R.B.

Before: JONES and SILER, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Petitioner and Cross-Respondent, Health Care & Retirement Corporation of America, hereinafter referred to as either "petitioner" or "HCR", timely filed a petition to review the Order of the National Labor Relations Board, ("the Board"), dated March 3, 1992. Respondent and Cross-Petitioner, the National Labor Relations Board, hereinafter referred to as either "General Counsel" or "respondent", filed a cross-petition for enforcement of the Board's Order.

I.

Petitioner operates a nursing home facility in Urbana, Ohio. In April, 1989, one of the facility's employees, Ruby Wells, filed a charge with the NLRB claiming three HCR employees, including herself, had been discharged for participating in activities protected by the National Labor Relations Act. The charge also alleged that she and two other employees received warnings from the nursing home for their participation in protected activities. On May 25, 1989, the Board issued a complaint alleging respondent had committed an unfair labor practice as defined by the National Labor Relations Act, 29 U.S.C. § 151 et seq. ("the Act"). Specifically, the complaint accused HCR of disciplining certain employees who were licensed practical nurses (LPNs) and that the employees were being disciplined for engaging in concerted protected conduct for the purpose of collective bargaining and other mutual aid and protection in violation of Section 8(a)(1) of the Act.

A hearing was held before an Administrative Law Judge ("ALJ") during which both sides presented evidence. HCR contended that the nurses were not protected by the Act because they were supervisors. The General Counsel conceded that if the nurses were found to be supervisors, then they were not to be given protected status. Moreover, HCR maintained that it acted against the nurses for entirely appropriate, lawful, reasons.

The ALJ initially found the nurses to be "employees" within the meaning of the Act and, therefore, cloaked with the protections provided for by the Act. Nevertheless, the ALJ held that HCR had not committed an unfair labor practice by discharging employees for engaging in allegedly protected activities. Rather, the ALJ found the discharges were based on justifiable considerations. Furthermore, the ALJ determined that HCR had not, except in one instance, improperly issued written warnings.

The General Counsel filed exceptions to the decision of the ALJ disputing the lack of a finding of unfair labor practices. HCR filed cross-exceptions challenging the ALJ's determination that the nurses were employees and not supervisors within the meaning of § 2(11) of the Act. On January 21, 1992, the Board issued its Decision and Order. Regrettably, the Board's Order barely addressed HCR's cross-exceptions, upholding the ALJ's determination the nurses were employees and not supervisors, merely referring to it in a footnote. The Board, upon review, however, concluded that the ALJ had incorrectly determined that HCR did not commit an unfair labor practice. Instead the board found that HCR had, in fact, discriminated against the employees for engaging in concerted protected activity in violation of § 8(a)(1) of the Act. The Board ordered HCR to cease and desist from engaging in unfair labor practices and to reinstate the nurses with back pay.

We now have before us HCR's petition to review the Board's decision. The Board has also filed a cross-petition to enforce the Board's Order.

II.

HCR's nursing home in Urbana, Ohio, known as Heartland of Urbana, contains 100 beds and provides skilled long-term care for its residents. Heartland employs approximately 100 people. The Nursing Department is staffed by a Director of Nursing ("DON") and an Assistant Director of Nursing ("ADON"), thirteen to fifteen registered nurses and LPNs (known as staff nurses), and fifty to fifty-five aides. The nursing home is physically divided into two fifty-unit wings. During the day, each wing is staffed with one nurse and six aides. During the evening shift, there are one nurse and four aides per wing, and at night there is one nurse per wing and four or five aides on duty for the entire facility. The aides report directly to the staff nurse on duty. There is also a treatment nurse and a patient assessment nurse, whose duties, along with the DON and the ADON, are performed during normal business hours.

During late 1988, and continuing into 1989, the atmosphere at Heartland deteriorated. There was animosity among the employees and morale was low. This manifested itself in a series of disputes between management and employees. Three of the LPNs requested a meeting with Brenda Stabile, the nursing home Administrator, to discuss their plight. Ms. Stabile refused to meet with them at that time, asserting that she was too busy. She did, however, instruct them to make an appointment for later in the week. Rejecting this approach, the nurses drove to Toledo, Ohio with a mission of meeting with Jim Millspaugh, HCR's Director of Human Resources, and Bob Possanza, HCR's Vice-President of Operations. The two men met with the nurses and during the discourse, Millspaugh agreed to investigate their complaints.

Millspaugh did indeed conduct an investigation, the results of which led to the hiring of more aides, increasing the wages aides were paid, the disciplining of four nurses and ultimately terminating three nurses. ¹ HCR maintains the nurses who were disciplined, were disciplined because of their uncooperative attitude and not because of their participation in allegedly protected activities.

III.

Petitioner contends on appeal that both the ALJ and the Board erred by not finding the staff nurses to be supervisors, as defined by the Act, hence outside the scope of the Act's protection. On appeal, both parties acknowledge, as they did in the proceedings below, that should the staff nurses' positions be determined to be "supervisory" within the meaning of the Act, then the nurses are not protected by the provisions of the Act.

The ALJ properly recognized that the issue of whether the nurses were supervisors or employees must first be resolved before the merits of the unfair labor practice charges could be addressed. He addressed the matter extensively, concluding as follows:

It is clear that in common parlance Heartland's nurses are "supervisors." They give orders (of certain kinds) to the aides, and they follow those orders. In a manner of speaking, certainly, the nurse on duty is in charge of a wing of the facility.

But Section 2(11)'s definition of supervisor is different from Webster's. And as I understand the meaning of that provision, Heartland's nurses were not supervisors during the period under consideration.

Decision of the ALJ, p. 10.

The Board, in reviewing the ALJ's decision, barely addressed this controversy. In a footnote, the Board stated its agreement with the ALJ's finding that the staff nurses were employees within the meaning of the Act. The Board further stated that the burden to prove supervisory status rested with HCR, though it acknowledged that this court has stated that it is the Board and not the employer who must prove employee status. NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076 (6th Cir.1987). Yet, in spite of this acknowledgement, the Board opined that it, "has not acquiesced on this point." Finally, the Board summarily stated that, in any event, the preponderance of the evidence established the nurses were employees as defined by the Act.

In the case at bar, this court's analysis must be guided by the need for a distinction between supervisor and employee. The exclusion of supervisors from coverage under the Act was considered essential to allow employers to have the undistracted allegiance of employees in key positions. See Florida Power & Light Co. v. International Brotherhood of Electrical Workers, Local 641, 417 U.S. 790, 806, 94 S.Ct. 2737, 2745, 41 L.Ed.2d 477 (1974). By not providing coverage to supervisors, Congress maintained a reasonable balance of power between employers and unions which could potentially arise if supervisors were themselves union members. Children's Habilitation Center, Inc. v. N.L.R.B., 887 F.2d 130, 131 (7th Cir.1989).

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