Mid-America Care Foundation v. N.L.R.B.
| Decision Date | 08 July 1998 |
| Docket Number | MID-AMERICA,Nos. 97-5433,97-5535,s. 97-5433 |
| Citation | 148 F.3d 638 |
| Parties | 158 L.R.R.M. (BNA) 2705, 135 Lab.Cas. P 10,193 CARE FOUNDATION, d/b/a Fair Oaks Health Care Center, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Douglas M. Nabhan (argued and briefed), Williams, Mullen, Christian & Dobbins, Richmond, Virginia, for Petitioner/Cross-Respondent.
David Habenstreit (briefed), National Labor Relations Board, Office of the General Counsel, Washington, DC, Aileen A. Armstrong (briefed), Deputy Associate General Counsel, National Labor Relations Board, Appeal Court Branch, Washington, DC, Fred B. Jacob (argued and briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent/Cross-Petitioner.
Before: NELSON, BOGGS, and CLAY, Circuit Judges.
Once again we confront the question of whether licensed practical nurses ("LPNs") employed in a nursing home are "supervisors" as that term is defined by the National Labor Relations Act ("NLRA"). As in many prior cases, we must vacate the order of the National Labor Relations Board ("NLRB"), which found the LPNs at issue not to be statutory supervisors.
For those who have followed our cases involving the supervisory status of nurses over the last 11 years, the facts of this case will seem familiar. Petitioner/Cross-Respondent Mid-America Care Foundation ("Mid-America") operates a 48-bed long-term nursing facility in South Beloit, Illinois, called Fair Oaks Health Care Center ("Fair Oaks"). 1 The management structure at Fair Oaks consists of an Administrator, a Director of Nursing ("DON"), and an Assistant Director of Nursing ("ADON"). There are two organizational layers below the DON/ADON level at Fair Oaks: nurses, including both registered nurses and LPNs; and certified nursing assistants ("assistants"). From Mid-America's perspective, there appears to be no distinction between the duties of registered nurses and LPNs; most internal documents refer to registered nurses and LPNs interchangeably as "nurses."
Fair Oaks operates on a three-shift schedule. During the day shift, which is defined as 6:30 a.m. to 2:30 p.m., either the DON or the ADON (or both) is on duty, along with two nurses and four or five assistants. Neither the DON nor the ADON is on duty during the 2:30 p.m.-to-10:30 p.m. afternoon shift or the 10:30 p.m.-to-6:30 a.m. night shift. The afternoon-shift duty roster includes one nurse and four or five aides. The night shift is staffed with one nurse and two or three aides. In short, as the NLRB's Regional Director found in an earlier proceeding in this matter, "[d]uring the afternoon and night shifts and on weekends, the nurse on duty is the highest authority present in the facility."
Nurses at Fair Oaks exercise authority over assistants in several areas. For example, nurses fill out evaluation forms on assistants. 2 2 These forms require nurses to evaluate assistants on a four-point scale on 41 different performance measures; in addition, at the bottom of the form nurses must fill out the following statement:
Recommendations to the Administrator. The services of this employee have _____ have not _____ been consistently up to [Fair Oaks] standards. I recommend dismissal _____ continuation _____ other action _____.
Nurses also have the authority to take disciplinary action against aides. While Mid-America policy provides that disciplinary recommendations from nurses are subject to management review, the Administrator of Fair Oaks testified that she has never overturned a nurse's disciplinary recommendation. Under Mid-America's policy, an assistant is to be automatically terminated upon receiving three disciplinary notices.
Nurses at Fair Oaks also are responsible for supervising employees and handling problems outside the nursing department during the afternoon and night shifts. Moreover, nurses are required to deal with temporary staffing shortages in the nursing department. In fact, according to the Administrator of Fair Oaks, nurses have the power to require assistants to work overtime in the event that a scheduled assistant fails to report for a shift, though the record indicates that the usual practice is for nurses to request (rather than require) assistants to work overtime.
On May 1, 1996, Local 325 of the International Brotherhood of Teamsters ("Union") filed a petition with the NLRB seeking to represent a bargaining unit of Fair Oaks employees that included registered nurses and LPNs. Mid-America objected to the inclusion of nurses in the bargaining unit on the ground that the nurses were supervisors within the meaning of the NLRA. The Regional Director of NLRB Region 19 (in Seattle, Washington 3) rejected Mid-America's arguments and directed that a representation election be held. Because the Regional Director found that Mid-America's registered nurses were "professional" employees, however, he directed that the registered nurses vote in a voting group separate from the voting group that included the LPNs.
Mid-America immediately requested that the NLRB review the Regional Director's decision, but the NLRB upheld the Regional Director's findings and order. On July 24, 1996, a union representation election was held. While the registered nurses voted against representation by the Union, the voting group that included the LPNs voted 21 to 18 to designate the Union as its exclusive representative for collective-bargaining purposes. Shortly thereafter, the Union requested that Mid-America bargain and Mid-America refused, arguing that the LPNs were supervisors and therefore could not be included in the bargaining unit. The General Counsel of the NLRB then filed a complaint against Mid-America under Section 8(a)(1) and 8(a)(5) of the NLRA, 29 U.S.C. §§ 158(a)(1) & (a)(5). On April 2, 1997, the NLRB granted the General Counsel's motion for summary judgment.
This matter is now before us on Mid-America's petition for review of the NLRB's order, and on the NLRB's cross-petition for enforcement.
In six prior reported decisions, we have vacated NLRB decisions that found nurses not to be supervisors within the meaning of the NLRA. See Grancare, Inc. v. NLRB, 137 F.3d 372 (6th Cir.1998); Caremore Inc. v. NLRB, 129 F.3d 365 (6th Cir.1997); Manor West, Inc. v. NLRB, 60 F.3d 1195 (6th Cir.1995); Health Care & Retirement Corp. v. NLRB, 987 F.2d 1256 (6th Cir.1993), aff'd, 511 U.S. 571, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994); Beverly California Corp. v. NLRB, 970 F.2d 1548 (6th Cir.1992); NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076 (6th Cir.1987). This case is controlled by these precedents, and we find the facts here to be particularly analogous to the facts of Caremore.
In Caremore, we noted that Section 2(11) of the NLRA defines a "supervisor" as any employee who (1) exercises authority in one of 11 statutorily listed areas, (2) exercises the authority in the interests of the employer, and (3) uses independent judgment in the exercise of the authority. See Caremore, 129 F.3d at 369. We held that Caremore's LPNs satisfied the statutory definition of "supervisor" in several ways. First, because the LPNs provided direction to nurses' aides involving "aspects of patient care," assigned aides to various wings of the nursing home, and on occasion asked aides to work overtime, they had the statutory authority to "assign" and "responsibly to direct" nurses' aides. See ibid. Second, because the LPNs' duties included filling out evaluation forms with a recommendation that the evaluated aide be either retained or terminated, and filing disciplinary reports with respect to aides, and because the Director of Nursing accorded deference to LPNs' recommendations, we concluded that the LPNs had the statutory authority "effectively to recommend" discipline and discharge of nurses' aides. See ibid. As in this case, the NLRB argued that Caremore's LPNs exercised whatever authority they had only in a routine fashion, without using independent judgment; we rejected the NLRB's argument, noting that the "kinds of sensitive and nuanced judgments" entailed by evaluating nurses' aides on a complex evaluative scale, coupled with the power to run the nursing home without any other on-site supervision during the afternoon and night shifts, mandated a conclusion that the LPNs used independent judgment. See id. at 370.
The similarities between this case and Caremore are extensive. Here, Mid-America's LPNs have the authority not only to direct the activities of certified nursing assistants under a prescribed care plan, but also to direct the activities of personnel in other departments during the afternoon and evening shifts. Here, the LPNs' duties not only involve asking assistants to work overtime in the event of a staffing shortage, but include the power to "mandate" overtime, according to the Fair Oaks Administrator. Mid-America's LPNs fill out complex evaluation forms just like Caremore's LPNs, and they similarly recommend either retention or dismissal of the evaluated assistants; moreover, in each case, LPN recommendations are given great weight by nursing-home management. As in Caremore, Mid-America's LPNs are the highest-ranking employees on duty on the afternoon and evening shifts, and on those shifts a single LPN is responsible for supervising several assistants. While no one of these facts would necessarily require that the NLRB's order be vacated, taken together they compel the conclusion that the NLRB's order is not supported by substantial evidence. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ().
Because of the close factual similarities between...
To continue reading
Request your trial
-
Hudak v. Elmcr T of Sagamore Hills
...(citing Strong, 78 F.3d at 261 ). Further, Chevron deference does not apply to non-binding advisory opinions. Mid–Am. Care Found. v. NLRB, 148 F.3d 638, 642 (6th Cir. 1998) (citations omitted). The author of the Advisory Opinion (HHS’ general counsel) concludes his opinion by stating that i......
-
Greenbaum v. U.S. E.P.A.
...tools of statutory construction,'" an agency's interpretation is not entitled to Chevron deference. Mid-America Care Found. v. Nat'l Labor Relations Bd., 148 F.3d 638, 642 (6th Cir.1998) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)); see also Che......
-
Guillermety v. Secretary of Educ. of U.S.
...of the statute. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291-92, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988); Mid-America Care Foundation v. NLRB, 148 F.3d 638, 642 (6th Cir. 1998). Statutory language contained in section 3716 supports the Department of Treasury's conclusion that the statute......
-
Owner-Operator Independ. Drivers v. Arctic Exp.
...advisory opinions, or to an interpretation that stems from the agency's litigation posture in a case. Mid-America Care Found. v. NLRB, 148 F.3d 638, 642 (6th Cir.1998) (citations omitted). When an agency has adopted an interpretation of a given statute through adjudication, however, such in......