Health Care & Retirement Corp. of America v. N.L.R.B., s. 92-5291

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: CELEBREZZE
• Citation: 987 F.2d 1256
• 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.
• Docket Number: Nos. 92-5291,92-5469,s. 92-5291
• Decision Date: 10 March 1993

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.

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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

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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

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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.

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