N.L.R.B. v. Attleboro Associates, Ltd.

Decision Date30 April 1999
Docket NumberNo. 98-6211,No. 98-6168,Nos. 98-6168,98-6211,98-6168,s. 98-6168
Citation176 F.3d 154
Parties161 L.R.R.M. (BNA) 2139 NATIONAL LABOR RELATIONS BOARD, Petitioner in, v. ATTLEBORO ASSOCIATES, LTD.; Attleboro, Inc., Individually and as Partners d/b/a Attleboro Nursing & Rehabilitation Center, Respondents. Attleboro Associates, Ltd.; Attleboro, Inc., Individually and as Partners d/b/a Attleboro Nursing & Rehabilitation Center, Petitioners in, v. National Labor Relations Board, Respondent.
CourtU.S. Court of Appeals — Third Circuit

Charles Donnelly, Supervisory Attorney, Anne Marie Lofaso (argued), Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, John D. Burgoyne, Acting Deputy Associate General Counsel, National Labor Relations Board, Washington, D.C., for petitioner in No. 98-6168.

Stephen J. Cabot (argued), Maria L. Petrillo, Michael E. Lignowski, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, PA, for petitioners in No. 98-6211.

Before: GREENBERG, LEWIS, and BRIGHT, * Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

These proceedings for enforcement and review of orders of the National Labor Relations Board arising from a dispute over employees' representation requires us again to consider the supervisory status under section 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11) ("section 2(11)"), of licensed practical nurses (LPNs) employed as charge nurses by a nursing home. In this case, the Attleboro Nursing & Rehabilitation Center ("Attleboro") in Langhorne, Pennsylvania, employs the LPNs. In Passavant Retirement & Health Ctr. v. NLRB, 149 F.3d 243 (3d Cir .1998), rejecting the contrary conclusions of the Board, we held that similarly situated LPN charge nurses were supervisors under section 2(11) so that the nursing home did not have to bargain collectively with a union representing them. Id. at 247. We likewise reject the Board's conclusions that Attleboro's LPN charge nurses are not supervisors according to section 2(11), and specifically take issue with the Board's restrictive interpretation of the term "independent judgment" with respect to the LPNs' employment responsibilities as that term is used in section 2(11).

II. FACTUAL AND PROCEDURAL HISTORY
A. Factual history

Attleboro operates a 180-bed nursing and rehabilitation center which is a three-floor facility that operates 24 hours per day, seven days a week. The center divides its operations into three shifts, starting at 7:00 a.m., 3:00 p.m., and 11:00 p.m. Attleboro divides its nursing department into four units: Unit One is on the first floor and has a diverse, long-term resident population of approximately 60; Unit Two, on the second floor, also has 60 beds and serves residents with dementia or dementia-related illnesses that typically require total care; Unit Three, on the third floor, has 48 beds and is devoted to short-term care Medicare patients; and Unit Four, also on the third floor, is an 11-bed subacute unit for short-term, high acuity stays. The Administrator of the facility, Kathy Krick, is responsible for its overall operation and the Director of Nursing, Kathy Delcambre, and the Assistant Director of Nursing, Cheryl Donsbach, are in charge of the nursing staff.

Attleboro employs unit managers to oversee each of the four units. The unit managers are registered nurses ("RNs"), responsible for all three shifts on their units, although they typically work only the 7:00 a.m. to 3:30 p.m. shift Monday to Friday. The unit managers deal with personnel issues, coordinate shifts that conform with the overall care plan, and ensure that the staff meets residents' needs and follows the center's policies and state regulations. Attleboro also employs shift supervisors who are RNs responsible for the center's operations during the shifts when the Unit Managers are not present. Inasmuch as state law requires the presence of an RN at the facility at all times, the center employs one shift supervisor per shift to oversee all four units.

The center employs LPNs as charge nurses, unit coordinators, and treatment nurses. LPN charge nurses administer medication, give treatment, and oversee the certified nursing assistants (CNAs), who undertake most of the direct resident care duties. LPN charge nurses ensure that CNAs complete required documentation and, in addition, respond to CNA reports of resident care issues. The LPNs collaborate with the unit managers in preparing the assignments of CNAs who do not have regular daily assignments. The non-charge nurse LPNs' duties are not relevant to this dispute.

The LPN charge nurses train new CNAs, assign them tasks, teach them to perform medical procedures, and generally supervise their work. During an emergency, an LPN will assume the responsibility for a resident's care, and may direct CNAs to perform assisting tasks. Although some CNAs who work the day-shift have regular daily assignments, LPN charge nurses coordinate with their unit managers to prepare most of the CNAs' assignments. The evening and night-shift charge nurses have more responsibility in this regard as they are the only supervisors in their units. Similarly, in the event a unit is understaffed, an LPN charge nurse may initiate the transfer of a CNA, although a unit manager or the shift supervisor makes the ultimate decision to call in unscheduled CNAs or transfer CNAs from one floor to another. The nursing staff is placed roughly as follows: each unit has a unit manager, two LPN charge nurses, and six CNAs during the first shift, and the same staffing minus the unit managers but adding one shift supervisor during the other shifts.

Attleboro's written progressive disciplinary policy provides for oral warnings, written warnings, suspensions, and discharges for various types of misconduct. LPN charge nurses initiate this process by issuing "Employee Disciplinary Notices" to CNAs. These notices provide three alternative designations, Oral Warning, 1st Written Warning or 2nd Written Warning. The notices also have spaces to record specific details, disciplinary action taken, and recommended corrective action, and bear signature lines for the "Supervisor" who prepared the form and the "Department Head." Once an LPN charge nurse completes a disciplinary notice, she passes it on to the Director of Nursing, who ensures that the discipline is at the proper step of the progressive disciplinary policy. The Director of Nursing sometimes investigates the infraction, and may meet with the LPN charge nurse or the CNA to discuss the disciplinary action.

We recognize that notwithstanding Attleboro's policy, the Board's Regional Director, in her Decision and Direction of Election, ultimately doubted the LPN charge nurses' authority to recommend discipline. Nevertheless, the Regional Director acknowledged that "[t]he record shows that disciplinary notices were, at least in part, filled out and, in some instances, signed by LPN charge nurses. Some of the notices contain recommended corrective action or indicate that the employee received oral counseling." App. at 333. The Regional Director also noted that while Attleboro authorized its LPN charge nurses to suspend a CNA immediately for a flagrant violation of policy, the LPN charge nurses who testified at the representation hearing denied knowing that they had this authority.

B. Procedural history

The case combines two proceedings concerning the same decision of the Board. First, the Board is applying to this court for enforcement of its May 18, 1998 Decision and Order finding that Attleboro violated sections 8(a)(1) and (5) of the NLRA, 29 U.S.C. § 158(a)(1) and (5), by refusing to bargain with Teamsters Local Union No. 628 a/w International Brotherhood of Teamsters ("the Union") as the collective bargaining representative of 26 full-time and regular part-time LPNs. The second proceeding is Attleboro's Cross-Petition for Review of this Decision and Order.

The Union petitioned the Board's Regional Office for representation of LPNs on November 4, 1997. Attleboro challenged this petition at a November 20, 1997 representation hearing, arguing that Attleboro's LPN charge nurses in the proposed collective bargaining unit are "supervisors" within the meaning of section 2(11) of the Act. 29 U.S.C. § 152(11). Despite Attleboro's protests, the Regional Director found that the LPN charge nurses are not supervisors. Thus, she approved the Union's requested bargaining unit and ordered an election by her decision of January 2, 1998.

In her Decision and Direction of Election approving the Union's bargaining unit, the Regional Director began her analysis with the statement that "[t]here is no evidence that the Employer's LPN charge nurses or LPNs have the authority to discharge, transfer, lay off, recall or promote employees, or to adjust complaints or grievances. The Employer's claim of supervisory status rests on the LPN charge nurses' involvement in directing and assigning work to, issuing discipline to and completing performance evaluations of, CNAs." App. at 336.

The Regional Director then made an analysis of the assignment issue. She noted that "LPN charge nurses set, or assist in setting, daily assignments for CNAs" but indicated that "distributing daily assignments to employees whose skills are not significantly varied, or to employees with different skills whose abilities are well known, is generally routine and not supervisory." Id. Thus, she found this authority insufficient to indicate supervisory status.

The Regional Director recognized that the charge nurses' authority to recall CNAs when Attleboro was understaffed was in dispute. While Attleboro's witnesses claimed that the LPN charge nurses had the authority to require unscheduled CNAs to report for work, they also admitted that a unit manager or a higher authority ultimately would decide to call unscheduled CNAs in to work. In these...

To continue reading

Request your trial
23 cases
  • Nat'l Labor Relations Bd. v. FedEx Freight, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 9, 2016
    ......83 (2011), enforced sub nom. Kindred Nursing Centers East, LLC v. NLRB , 727 F.3d 552 (6th Cir. 2013). It contends this decision violated Board ...FCC , 824 F.3d 33, 53 (3d Cir.2016) ; John Wyeth & Bro. Ltd. v. CIGNA Int'l Corp. , 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (Alito, ...Attleboro Assocs., Ltd. , 176 F.3d 154, 160 (3d Cir. 1999). We have previously held ......
  • Nat'l Labor Relations Bd. v. Nursing
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 29, 2017
    ...such authority, the Board applied a four-part test squarely at odds with our controlling precedent—specifically NLRB v. Attleboro Associates, Ltd. , 176 F.3d 154 (3d Cir. 1999). Therefore, we will deny the Board's petition for enforcement and grant New Vista's cross-petitions for review. In......
  • Mace v. Willis
    • United States
    • U.S. District Court — District of South Dakota
    • April 21, 2017
    ...F.Supp.2d 310 (D.P.R. 2011) (citing Empress Casino Joliet Corp. v. NLRB, 204 F.3d 719, 721 (7th Cir. 2000) ; NLRB v. Attleboro Assocs., Ltd., 176 F.3d 154, 164 (3d Cir. 1999) ; Caremore, Inc. v. NLRB, 129 F.3d 365, 369–70 (6th Cir. 1997) ).In Brandsasse v. City of Suffolk, VA, 72 F.Supp.2d ......
  • Nat'l Labor Relations Bd. v. Nursing, 11-3440
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 29, 2017
    ...the Board applied a four-part test squarely at odds with our controlling precedent—specifically NLRB v. Attleboro Associates, Ltd., 176 F.3d 154 (3d Cir. 1999). Therefore, we will deny the Board's petition for enforcement and grant New Vista's cross-petitions for review. In doing so, we wil......
  • Request a trial to view additional results
7 books & journal articles
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 46 No. 2, March 2009
    • March 22, 2009
    ...have the power to hire and fire, train new employees, and schedule overtime are supervisors). Compare NLRB v. Attleboro Assoc., Ltd., 176 F.3d 154, 165 (3d Cir. 1999) (holding charge nurses are supervisors), with Beverly Enters.-Mass., Inc. v. NLRB 165 F.3d 960, 964 (D.C. Cir. 1999) (holdin......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 47 No. 2, March 2010
    • March 22, 2010
    ...have the power to hire and fire, train new employees, and schedule overtime are supervisors). Compare NLRB v. Attleboro Assoc., Ltd., 176 F.3d 154, 165 (3d Cir. 1999) (holding charge nurses are supervisors), with Beverly Enters.-Mass., Inc. v. NLRB 165 F.3d 960, 964 (D.C. Cir. 1999) (holdin......
  • EMPLOYMENT LAW VIOLATIONS
    • United States
    • American Criminal Law Review No. 58-3, July 2021
    • July 1, 2021
    ...have power to hire and f‌ire, train new employees, and schedule overtime, are supervisors). Compare NLRB v. Attleboro Assocs., Ltd., 176 F.3d 154, 165 (3d Cir. 1999) (holding charge nurses are supervisors), with Beverly Enters.-Mass., Inc. v. NLRB, 165 F.3d 960, 964 (D.C. Cir. 1999) (holdin......
  • Employment law violations
    • United States
    • American Criminal Law Review No. 60-3, July 2023
    • July 1, 2023
    ...(1st Cir. 2015); Empress Casino Joliet Corp. v. NLRB, 204 F.3d 719, 720, 722–23 (7th Cir. 2000). Compare NLRB v. Attleboro Assocs., Ltd., 176 F.3d 154, 165 (3d Cir. 1999) (holding charge nurses are supervisors), with Beverly Enters.-Mass., Inc. v. NLRB, 165 F.3d 960, 964 (D.C. Cir. 1999) (h......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT