Nat'l Labor Relations Bd. v. Nursing
| Decision Date | 29 August 2017 |
| Docket Number | No. 11-3440 Nos. 12-1027 & 12-1936.,11-3440 Nos. 12-1027 & 12-1936. |
| Citation | 870 F.3d 113 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner 1199 SEIU United Healthcare Workers East, N.J. Region, Intervenor v. NEW VISTA NURSING AND REHABILITATION, Respondent New Vista Nursing and Rehabilitation, LLC, Petitioner v. National Labor Relations Board, Respondent 1199 SEIU United Healthcare Workers East, N.J. Region, Intervenor |
| Court | U.S. Court of Appeals — Third Circuit |
Beth S. Brinkmann, Melissa N. Patterson, United States Department of Justice, Civil Division, Room 3135, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Julie B. Broido, Linda Dreeben, Milakshmi V. Rajapakse, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570, Scott R. McIntosh, United States Department of Justice, Civil Division, Room 7259, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Benjamin M. Shultz, United States Department of Justice, Civil Division, Room 7211, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, William S. Massey,
Gladstein Reif & Meginniss, 817 Broadway, 6th Floor, New York, NY 10003, Counsel for Petitioner
Louis J. Capozzi, Jr., Capozzi Adler, 1200 Camp Hill Bypass, Camp Hill, PA 17011, Morris Tuchman, 2nd Floor, 134 Lexington Avenue, New York, NY 10016, Counsel for Respondent
Victor Williams, Catholic University of America, School of Law, Faculty Suite 480, 3600 John McCormack Road, N.E., Washington, DC 20064, Counsel for Amicus-petitioner
Before: SMITH, Chief Judge, GREENAWAY, JR., and FISHER, Circuit Judges
Respondent-Petitioner New Vista Nursing and Rehabilitation, LLC ("New Vista"), contends that the licensed practical nurses ("LPNs") employed at its nursing home could not unionize because they were "supervisors." The LPNs are supervisors, New Vista argues, because they have the "authority" to "discipline other employees[ ] ... or effectively to recommend such action." 29 U.S.C. § 152(11). New Vista explains that the LPNs had such authority because their duties included filling out forms known as "Employee Warning Notices" or "Notices of Corrective Action," which recommended discipline for certified nursing assistants ("CNAs").
After New Vista refused to bargain with the LPNs' union, the National Labor Relations Board (the "Board") held that New Vista's refusal to bargain was unlawful because, among other things, the nurses did not have the authority to effectively recommend discipline. To determine whether the LPNs had 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 doing so, we will remand this case to the Board to allow it to determine whether the LPNs have the authority to effectively recommend discipline under Attleboro .
Before we can move to the analysis by which the Board should determine whether the LPNs are statutory supervisors, we will first address the sundry procedural arguments advanced by New Vista. After the Supreme Court's decision in NLRB v. Noel Canning , ––– U.S. ––––, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), and our post– Noel Canning remand to the Board to clear up procedural and jurisdictional issues, we conclude that New Vista's procedural arguments are meritless.
There are three levels of nursing staff at the New Vista home who are supervised by the Director of Nursing: (1) the "nursing supervisor" during the evening shift or "unit manager" during the morning shift; (2) LPNs1 ; and (3) "Certified Nurse Aides" also known as "certified nursing assistants" or "CNAs." See New Vista Nursing & Rehab., LLC , 357 N.L.R.B. 714, 715 (2011) ; JA0073–75; JA0079; JA0881. In January 2011, 1199 SEIU United Healthcare Workers East (the "Union") filed a petition to represent the LPNs.2
The Board approved the bargaining unit and required that an election be held to determine whether the Union would serve as the LPNs' bargaining representative. JA0848–50, 0878–79. The bargaining unit was defined to include "[a]ll full-time and regular part-time Licensed Practical Nurses employed by the Employer at its Newark, New Jersey facility, excluding all other employees, guards, and supervisors as defined by the Act." JA0849–50.
One of New Vista's main objections to the bargaining unit was that the LPNs were supervisors under 29 U.S.C. § 152(11) because they have the "authority" to "discipline other employees[ ] ... or effectively to recommend such action." If they were supervisors, the LPNs would not have a statutory right to be represented in collective bargaining. See 29 U.S.C. § 152(3) (); see also NLRB v. Ky. River Cmty. Care, Inc. , 532 U.S. 706, 718, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001) (). To determine whether an individual is a supervisor, the Supreme Court has provided a three-part test:
Employees are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 listed supervisory functions [in 29 U.S.C. § 152(11) ], (2) their "exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment," and (3) their authority is held "in the interest of the employer."
Ky. River , 532 U.S. at 713, 121 S.Ct. 1861 (quoting NLRB v. Health Care & Ret. Corp. of Am. , 511 U.S. 571, 573–74, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994) ). One of the twelve listed supervisory functions is "disciplin[ing] other employees." 29 U.S.C. § 152(11).
New Vista argued that it showed that the LPNs effectively have the power to discipline other employees because LPNs submitted disciplinary forms known as a "Notice of Corrective Action" or "Employee Warning Notice." E.g. , JA0872–73, JA0884–86.
The facts surrounding these forms were fiercely contested. See JA0856–0862. Some testimony suggested LPNs did not use the forms to effectively recommend discipline. One of the nurses had never seen the Employee Warning Notice until just prior to her testimony. See JA0276; see also JA0329. Similarly, testimony by another nurse was that LPNs rarely (if ever) recommended a specific kind of discipline. See JA0330.
There was, however, countervailing evidence that supported New Vista's position. Most notably, Director of Nursing Victoria Alfeche testified that LPNs, in the exercise of their own discretion, frequently filled out these forms. Further, Alfeche explained that LPNs could recommend a specific type of discipline and that she acted on the forms as a matter of course. See JA0098–99, 0148.
In his March 9, 2011 order, NLRB Regional Director J. Michael Lightner rejected New Vista's argument, applying a four-part test based on a vacated NLRB opinion: "To prevail, the Employer must prove that: (a) LPNs submit actual recommendations, and not merely anecdotal reports, (b) their recommendations are followed on a regular basis, (c) the triggering disciplinary incidents are not independently investigated by superiors, and (d) the recommendations result from the LPNs' own independent judgment." JA873 (citing ITT Lighting Fixtures , 265 N.L.R.B. 1480, 1481 (1982), vacated on other grounds sub nom. ITT Lighting Fixtures, Div. of ITT Corp. v. NLRB , 712 F.2d 40 (2d Cir. 1983) ). Director Lightner's conclusion rested heavily on his finding that LPNs "simply report[ed] factual findings to their superiors without any specific recommendation for disciplinary action" and that the "higher authorities" at New Vista proceeded with independent investigations upon receiving the forms. See JA0873–74. Director Lightner also noted that there were very few examples in the record of LPNs who filled out the forms other than Grace Tumamak. See JA0875. Director Lightner further found that forms filled out by Ms. Tumamak could not show the authority of other LPNs because Ms. Tumamak served as the unit manager on one shift and as an LPN on another. See JA0850.
The election to determine whether the Union would serve as the LPNs' bargaining representative was held on April 8, 2011. See JA0039. A majority of LPNs voted to be represented by the Union by a vote of 26 to 7. See id. Four additional votes were challenged. See id.
That same day, the Board denied New Vista's request for review of Director Lightner's order that directed the election would occur. See JA0911, available at http://apps.nlrb.gov/link/document.aspx/09031d45804718e4.
Because such denials are nonreviewable, New Vista pursued the standard course of testing the Union's certification by refusing to bargain. See NLRB v. FedEx Freight, Inc. , 832 F.3d 432, 435 n.1 (3d Cir. 2016) ; JA0021; JA0042 ("Dear All; We are testing the certification and will not be bargaining."). New Vista asserted that the LPNs were statutory supervisors and, even if they had not been prior to the certification, they were as of March 25, 2011, because of a change in the LPNs' duties. See JA0049, 0053.
In a decision and order dated August 26, 2011, the Board (Liebman, Becker, Hayes)3 unanimously granted summary judgment in favor of the Union and against New Vista. See New Vista Nursing & Rehab., LLC , 357 N.L.R.B. 714.
The Board's order granting summary judgment on the refusal to bargain charge and many of its subsequent orders denying New Vista's motions for reconsideration took place during what may fairly be described as unusual times for the Board. The political branches had not filled many of the vacancies on the Board. This led then-President Obama to make a series of recess appointments to fill the vacancies. See NLRB v. Noel Canning , –––...
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