Nat'l Labor Relations Bd. v. Hilliard Dev. Corp.

• Decision Date: 07 April 1999
• Docket Number: No. 98-1610,98-1610
• Parties: (1st Cir. 1999) NATIONAL LABOR RELATIONS BOARD, Petitioner, and SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 285, Intervenor, v. HILLIARD DEVELOPMENT CORPORATION, d/b/a PROVIDENT NURSING HOME, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 133

187 F.3d 133 (1st Cir. 1999)

NATIONAL LABOR RELATIONS BOARD, Petitioner, and SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 285, Intervenor, v. HILLIARD DEVELOPMENT CORPORATION, d/b/a PROVIDENT NURSING HOME, Respondent.

No. 98-1610.

United States Court of Appeals For the First Circuit.

Heard April 7, 1999.

Decided July 22, 1999.

ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Preston L. Pugh, Attorney, with whom David Habenstreit, Supervisory Attorney, Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, and John D. Burgoyne, Acting Deputy Associate General Counsel, National Labor Relations Board, were on brief, for petitioner.

David B. Rome, with whom Pyle, Rome, & Lichten and Craig Becker were on brief, for intervenor.

Keith H. McCown, with whom Allison K. Romantz, Stacy L. Miller, and Morgan, Brown & Joy were on brief, for respondent.

Before Torruella, Chief Judge, Selya and Lynch, Circuit Judges.

LYNCH, Circuit Judge.

The National Labor Relations Board petitions to enforce its order against Hillard Development Corporation,¹ doing business as Provident Nursing Home. The Board found that Provident violated §§ 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5), (1), by refusing to bargain with the Union as a representative of a bargaining unit that includes thirteen district and charge nurses. Provident argues that its refusal to bargain was not an unfair labor practice because the district and charge nurses are supervisors, as that term is defined in § 2(11) of the Act, 29 U.S.C. § 152(11), and the nurses as such are precluded from participating in collective bargaining. See 29 U.S.C. § 152(3),(11).

Whether mid-level care providers such as Provident's district and charge nurses are supervisors under § 2(11) is a significant legal issue that has divided the circuits. It is also an issue of some societal significance, affecting increasing numbers of people who will need nursing home care as the post World War II baby boomer generation ages.² The issue is significant in part because labor costs in the healthcare industry comprise a large portion of overall costs (estimated to be roughly 60% of hospital costs).³ The issue is important both to management, concerned with economic viability, and to employees, concerned about job security and workplace rights.

Historically, the NLRB itself has proven unsympathetic to employers' arguments that such nurses may not be unionized. Indeed, the NLRB earlier adopted a unique, more hostile test than that used for other professions to determine whether nurses were supervisors. Under the Board's "patient care" test, nurses were not considered to be exercising authority "in the interest of the employer," as required under the definition of supervisor in § 2(11),⁴ if they directed less-skilled employees only "in the exercise of professional judgment incidental to the treatment of patients." NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 574 (1994) ("Health Care & Retirement Corp.") (internal quotation marks omitted). The Supreme Court set aside that test in 1994 as contrary to the Act. See id. at 574-84.

This history leads Provident to suggest that less deference should be given to the Board's interpretation of § 2(11) than would normally be required under Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Provident also argues that the Board's conclusions are not, in any event, supported by substantial evidence. While some of the issues are close, we enforce the Board's order. We find no reason not to apply our usual standard of deference to the Board's interpretations of ambiguous portions of the Act, and we determine, upon reviewing the record, that the Board's findings of fact are adequately supported.

I. Background

We recount the facts, drawing supportable inferences in a manner consistent with the Board's findings. Provident operates a for-profit 112-bed residential nursing home in Brighton, Massachusetts. It provides intermediate care for geriatric residents with major mental illnesses. The home has two floors. The first floor houses fifty-two residents and is divided into two districts, or units, both of which are served by one nursing station. The second floor has sixty patients, and is divided into two districts, each of which has its own nursing station. The nurses provide both nursing care and general assistance with residents' daily activities. The Director of Nursing has overall charge of the Nursing Department. Under her are three registered nurses who serve as Unit Managers. The Unit Managers and the Director of Nursing are concededly supervisors.

Under the Unit Managers are approximately thirteen nurses who are employed as district nurses and charge nurses. These nurses, who are either registered nurses or licensed practical nurses, directly provide patient care. The district nurses work the day shift and have some responsibility for reviewing the work and documentation from the other two shifts. Charge nurses perform the same duties as district nurses, but without any monitoring responsibilities outside of their own shift. Charge nurses work on the evening and night shifts. Under these district and charge nurses are approximately thirty Mental Health Assistants ("MHAs"). MHAs are responsible for assisting residents with their daily activities, including bathing, dressing, eating, and walking. Each district and charge nurse oversees the work of two to three MHAs. Between six at night and six in the morning, the charge nurses are the highest level of authority at the facility.

Unit Managers organize residents into groups and determine the duties to be performed by MHAs during each shift for each group. A district or charge nurse then assigns each MHA to one of these predefined groupings, based on the residents' needs and particular MHA skills. Nurses also determine the order in which MHAs take lunches and breaks, within boundaries established by Provident. Because the resident group assignments are not often changed, the MHAs are generally familiar with their assigned duties and do not need to be directed closely. If an MHA is absent and is not replaced for the day, a nurse redistributes the absent MHA's duties to the remaining MHAs on shift. If an MHA has a complaint about an assignment or other work issue, the MHA can bring the complaint to a nurse. If the MHA and nurse cannot resolve the problem, the two will bring it to a Unit Manager. In emergency situations requiring extra MHA assistance, nurses may ask MHAs to work after their shifts have ended or temporarily transfer MHAs between floors. In either event, the nurse will inform the Unit Manager of the nature of the emergency and the solution implemented.

District or charge nurses who observe MHAs abusing residents or acting insubordinately document their observations on an "Employee Counseling Form" or an "Anecdotal Record." MHAs are also required to document any instances of MHA misconduct on an Anecdotal Record. These forms do not ask for a recommended disciplinary measure. Unit Managers decide whether the reports will be labeled verbal or written warnings within Provident's progressive disciplinary system.

A district or charge nurse who finds that an MHA is inappropriately dressed, intoxicated, fighting with other staff members, or sleeping on the job has the authority to send the MHA home. In this situation, the nurse will call a Unit Manager to suggest that the MHA be sent home or to notify the Unit Manager that he or she plans to do so.

Provident's MHAs receive annual written evaluations of their work. Unit Managers assign the nurse who works most frequently with each MHA to prepare the MHA's evaluation. The nurse comments on different areas of the MHA's performance and gives the MHA a score between one and five in each area. Both the Unit Manager and the Director of Nursing then review the evaluation form. They may question the nurse if they feel that a particular rating is too high or low and may ask the nurse to change it or at least review its accuracy before showing the evaluation to the MHA. An MHA who disagrees with a rating can also ask the nurse to change it.

In 1991, Provident began using the evaluation scores as a basis for an annual merit pay increase for some of the MHAs. Certain MHAs do not receive merit pay tied to their evaluation scores: MHAs who are paid per diem, MHAs already earning maximum wages under Provident's salary structure, and MHAs who receive merit pay based on administrative decisions apart from the evaluation system. In early 1993, for example, the administrator raised the pay range for a substantial number of MHAs and changed the evaluation anniversary date for those MHAs. Accordingly, those MHAs were evaluated in 1993 but did not receive merit increases based on those evaluations.

For those employees who are eligible for merit increases, Provident uses a scale that matches a range of evaluation scores with a certain level of pay increase. Provident's administrator and Director of Nursing change the scale periodically and may eliminate merit increases altogether, depending on the nursing home's financial circumstances. Although the charge and district nurses are aware that the evaluation scores they give may affect an MHA's pay, they are generally unaware at the time they write the evaluation of the precise correlation between any given score and the pay increase to which it corresponds. Once the evaluation is complete, the nurse gives the form to the Director of Nursing, who compiles an average score, determines the increase associated with that score, writes on the form the increase that she recommends, and then sends it to the administrator for review. The administrator may approve or disapprove the increase or give the MHA a higher...