N.L.R.B. v. Beacon Light Christian Nursing Home, 86-5294

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before LIVELY, Chief Judge, MARTIN and BOGGS; BOGGS
• Citation: 825 F.2d 1076
• Parties: 125 L.R.R.M. (BNA) 3414, 56 USLW 2131, 107 Lab.Cas. P 10,066 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BEACON LIGHT CHRISTIAN NURSING HOME, Respondent.
• Docket Number: No. 86-5294,86-5294
• Decision Date: 07 August 1987

Page 1076

825 F.2d 1076 125 L.R.R.M. (BNA) 3414, 56 USLW 2131,
107 Lab.Cas. P 10,066 NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
BEACON LIGHT CHRISTIAN NURSING HOME, Respondent. No. 86-5294. United States Court of Appeals,
Sixth Circuit. Argued Nov. 4, 1986.
Decided Aug. 7, 1987.

Page 1077

Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., Helen Morgan, Richard Cohen (argued), Bernard Gottfried, Director, Region 7, NLRB, Detroit, Mich., for petitioner.

Scott E. Dwyer (argued), Grand Rapids, Mich., for respondent.

Before LIVELY, Chief Judge, MARTIN and BOGGS, Circuit Judges.

BOGGS, Circuit Judge.

This case arises from a petition for enforcement of a National Labor Relations Board ("Board") order against an employer for refusal to bargain based on a disputed union certification election. The employer argues that the bargaining unit was wrongly determined because twenty licensed practical nurses (LPN's) were included in the unit, in spite of the employer's contention that they exercised such independent professional judgment in the interest of the employer that they should be considered supervisors and thus excluded from the unit. We find that the Board's order is not supported by substantial evidence, and we deny enforcement.

I

Beacon Light Christian Nursing Home ("employer") is a nursing home located in Marne, Michigan. The home contains five wings providing nursing care to the aged residents. The home has a capacity of 239 beds. The employer has about 200 employees, including 27 dietary employees, 19 housekeeping and maintenance employees, a social worker, and 124 nursing employees including nurse's aides, LPN's, and registered nurses (RN's). All of these employees, except for the dietary personnel, are responsible to the Director of Personnel. The nursing employees include 100 nurse's aides, 20 LPN's, and 4 RN's. They are under the authority of Sue Davis, the Director of Nursing. The Chief Administrator at the home, Kenneth Jordan, is responsible for all aspects of operations.

The employer operates three nursing shifts, seven days a week. The number of LPN's and RN's varies on each shift. On most days, an RN is not scheduled to be on duty in a wing. There is at most one LPN or RN working a wing per shift. The uncontradicted testimony at the bargaining unit certification hearing, including the statements of a few LPN's, showed that the LPN's and RN's have virtually the same duties to direct patient care and supervise and instruct aides.

The LPN's and RN's are responsible for evaluating the nurse's aides at the three-month probation period and annually. The evaluations are discussed with the nurse's aides and become a part of their personnel files. The evaluations are considered in promotion and demotion decisions. The LPN's and RN's are responsible for reporting

Page 1078

violations of patient care duties and personnel rule infractions by nurse's aides on forms called "Counseling Forms." These disciplinary reports become a part of the nursing aides' personnel files and normally result in formal disciplinary action after three or four reports are lodged for the same violation of the rules. It was undisputed at the hearing that the Director of Nursing and the Chief Administrator have the actual authority to promote, hire, discharge, demote and indefinitely suspend a nurse's aide.

The LPN's and RN's assign patients to nurse's aides, cover unexplained absences for nurse's aides, and have the power also to suspend them temporarily for misconduct. The concepts of LPN "supervision" and "direct supervision" are explained in the job description for LPN's, and the concept of LPN "team leadership" is explained in the employee's handbook, both introduced at the hearing.

The testimony of the Chief Administrator established that on the day shift there are normally 35 nursing care personnel and therefore a ratio of 5.7 patients per 1 nursing care personnel. On the afternoon shift there are normally 30 nursing care personnel and 6.6 patients per nursing care person. On the evening shift there are normally 15 nursing care personnel and 13.3 patients per nursing care person. Thus, the ratio of patients to nursing care personnel is considerably more favorable than the statutory requirement in Mich.Stat.Ann. 14.15(21720a)(2) [333.21720a(2) ] (Callaghan 1980), which requires an 8:1 ratio on the first shift, a 12:1 ratio on the second shift, and a 15:1 ratio on the evening shift. Mich.Stat.Ann. 14.15(21720a)(1), 333.21720a(1), (Callaghan 1980) also requires the presence of one licensed nurse on duty at all times. The testimony at the hearing showed that on most shifts, there are no RN's present.

The United Furniture Workers of America ("union") petitioned the Board on July 24, 1984 for certification of its representation of the workers at the home. The union requested the inclusion of all service and maintenance employees including dietary, housekeeping, laundry, social service, activity, and scheduling employees, and the LPN's and the nurse's aides. When the employer contested the union's definition of the bargaining unit, the administrative law judge held a hearing and determined that the unit included the LPN's. The union won the election by a vote of 68 to 65. Subsequently, after review was denied, the Regional Director issued a complaint against the employer for a refusal to bargain in violation of Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act ("NLRA"). The Board entered an order against the employer without...