Kentucky River Comm. v. Nat'l Labor Rel.
| Decision Date | 05 November 1998 |
| Docket Number | 97-5983,AFL-CI,I,Nos. 97-5885,s. 97-5885 |
| Citation | 193 F.3d 444 |
| Parties | (6th Cir. 1999) Kentucky River Community Care, Inc., Petitioner/Cross-Respondent, v. National Labor Relations Board, Respondent/Cross-Petitioner, Kentucky State District Council of Carpenters,ntervenor. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Cheryl E. Bruner, Dinsmore & Shohl, Cincinnati, OH; Michael W. Hawkins, DINSMORE & SHOHL, Covington, Kentucky, for Petitioner.
Fred L. Cornnell, Jr., Daniel J. Michalski, NATIONAL LABOR RELATIONS BOARD, OFFICE OF THE GENERAL COUNSEL, Washington, D.C., Aileen A. Armstrong, NATIONAL LABOR RELATIONS BOARD, APPELLATE COURT BRANCH, Washington, D.C., for Respondent.
Thomas J. Schulz, KENTUCKY STATE DISTRICT COUNCIL OF CARPENTERS, AFL-CIO, Frankfort, Kentucky, for Intervenor.
Before: JONES, RYAN, and BATCHELDER, Circuit Judges
RYAN, J., delivered the opinion of the court, in which BATCHELDER, J., joined. JONES, J. (pp. 21-23), delivered a separate dissenting opinion.
This is another in an increasing number of cases involving the question whether nurses are supervisors within the meaning of the National Labor Relations Act, 29 U.S.C. § 152(11), in which we are required to direct the National Labor Relations Board to apply the law as this court has announced it, and not as the Board would prefer it to be.
The petitioner, Kentucky River Community Care, Inc. (KRCC), seeks to avoid union certification, claiming that (1) it is a political subdivision and therefore not an "employer" subject to the National Labor Relations Act, and (2) even if it is an employer for purposes of the NLRA, its registered nurses and rehabilitation counselors are "supervisors" and, therefore, exempt from the collective bargaining unit.
The National Labor Relations Board cross petitions, seeking enforcement of its order requiring KRCC to bargain with the union. We hold that KRCC is not a political subdivision, and that while the registered nurses KRCC employs are supervisors, the rehabilitation counselors are not. We therefore enforce the NLRB's order except insofar as it includes the registered nurses in the bargaining unit.
KRCC is a nonprofit organization operating numerous mental health facilities throughout an eight-county region of Kentucky. One such facility is the Caney Creek Rehabilitation Center, which is the subject of this appeal. These facilities are transitional residential centers whose mission is to help patients become self sufficient.
Because we first address the issue whether KRCC is a political subdivision, our review of the facts entails an inquiry into the KRCC corporate structure.
The then-Chairman of the East Kentucky Health Planning Council, C. Vernon Cooper, Jr., filed the articles of incorporation for KRCC on May 21, 1979. Cooper signed the articles as "a citizen of the Commonwealth of Kentucky," and there is no indication from the articles or the manner in which Cooper signed his name that he was acting in any official capacity. The articles enumerate various purposes of the corporation. Principal among them is that KRCC was formed to provide mental health care; to serve as a regional mental health-mental retardation board; and to apply for, receive, and administer public and private funds. The articles are silent as to whether KRCC is to operate as an arm of the state or local government.
According to the minutes of KRCC's first board of directors meeting, "the [eight] County Judges . . . file[d] names for new mental health board members." Subsequent vacancies have been filled by a vote of the remaining directors. The minutes also offer an insight into the reason KRCC was organized. Prior to KRCC's incorporation, the Upper Kentucky River Regional Mental Health/Mental Retardation Comprehensive Care Center was responsible for providing mental health care to people living in the affected communities. Unnamed "local agencies" expressed concerns about the quality of mental health services being provided in the area due to staffing and personnel difficulties within the Board. In order to rectify the situation, the Kentucky Cabinet for Human Resources sent in a caretaker/administrator to run Upper Kentucky. In due course, Upper Kentucky dissolved, and KRCC was formed.
At KRCC's first meeting, the Deputy Commissioner for Mental Health of the Bureau for Health Services, "assured [the KRCC directors of] support from the [Kentucky] Cabinet for Human Resources." Within a few weeks, the Cabinet for Human Resources issued an administrative order stating:
WHEREAS, Kentucky River Community Care, Inc. has submitted a request to the [Cabinet] for Human Resources to be recognized as a regional community mental health-mental retardation board pursuant to the provisions of KRS 210.370 to 210.480; and
WHEREAS, Kentucky River Community Care, Inc. has expressed its intention to bring its board composition, by-laws, articles of incorporation and operations into compliance with all [Cabinet] for Human Resources standards as rapidly as possible;
NOW, THEREFORE, by the authority vested in me by KRS 210.370 to 210.480 and 902 KAR 6:030(2) relating to regional mental health-mental retardation boards, I, Peter D. Conn, Secretary of the [Cabinet] for Human Resources, do hereby recognize Kentucky River Community Care, Inc. as the regional mental health-mental retardation board for the counties of Breathitt, Knott, Lee, Leslie, Letcher, Owsley, Perry, and Wolfe, contingent upon full compliance with all applicable laws, regulations and policies within one hundred and twenty days (120) from the effective date of this Order.
KRCC's bylaws refer to the provisions of the Kentucky Revised Statutes addressing mental health and mental retardation services. The bylaws require the board of directors to "[r]eview and evaluate mental health and mental retardation services provided pursuant to KRS 210.370 to 210.480, and report thereon to the Secretary for Health Services . . . ." In addition, KRCC's board of directors must ensure that its programs comply with the regulations issued under Kentucky Revised Statutes sections 210.370 to 210.480. The bylaws also contain a provision requiring the board of directors to be representative of the counties KRCC serves as specified in Kentucky Revised Statutes section 210.380. Although referring to the statutory scheme, the bylaws, like the articles of incorporation, are silent as to whether KRCC was formed to act as an administrative arm of the state.
KRCC and the Kentucky Cabinet for Health Services, Department for Mental Health and Mental Retardation Services entered into a contract in which KRCC agreed to provide mental health services within its eight-county region. A separate contract governed the operations of the Caney Creek Rehabilitation Center. These contracts incorporated by reference the statutory scheme found in Chapter 210 of the Kentucky Revised Statutes. The contracts contained guidelines for the services KRCC provides and eligibility restrictions for patients. For example, KRCC must meet certain staffing requirements, submit budget proposals, and develop personnel policies. KRCC must comply with these provisions in order to receive state funding.
Early in 1997, the Kentucky State District Council of Carpenters, AFL-CIO, an intervenor in this suit, petitioned the NLRB for certification as the collective bargaining representative for Caney Creek's 110 employees. There are four, 20-bed units at the facility, and each is staffed with five rehabilitation counselors and 10 rehabilitation assistants. Caney Creek employs six registered nurses and a licensed practical nurse to provide care throughout all the units. The facility is staffed 24 hours per day, with a full staff in place only on the first shift.
At the NLRB representation hearing, KRCC objected to union certification, claiming that it was a "political subdivision" within the meaning of section 2(11) of the NLRA, and therefore not an employer whose employees could be organized. KRCC also argued that even if it were not a political subdivision, its registered nurses and rehabilitation counselors could not be included in any proposed bargaining unit because these employees were supervisors. The NLRB conducted a hearing on the issues.
After the hearing, but before a decision was issued, KRCC moved to reopen the record, seeking to introduce certain evidence that had been excluded by the hearing officer. The additional evidence comprised information concerning the control or potential control by state agencies of KRCC's operations. The NLRB denied this request, concluding that the evidence at issue "went merely to the financial or administrative governmental control or potential control over its operations," and that the decision of the hearing officer to exclude the proffered evidence was not prejudicial error.
The NLRB Regional Director then issued a decision and direction of election, rejecting KRCC's claim that it was a political subdivision and its claim that the registered nurses and rehabilitation counselors were supervisors. KRCC requested review of the Regional Director's decision, but the NLRB denied the request.
Shortly thereafter, an election was held, and the employees voted in favor of union representation. The Regional Director certified the Union as the exclusive collective-bargaining representative, but KRCC refused the Union's requests to bargain. The NLRB then issued a complaint alleging that KRCC's refusal to bargain violated sections 8(a)(1) and 8(a)(5) of the NLRA. KRCC responded that the union certification was invalid because it is not an employer within the meaning of section 2(2) of the NLRA. The NLRB upheld the union certification, and found...
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