Passavant Retirement & Health Center v. N.L.R.B.

• Decision Date: 24 July 1998
• Docket Number: 97-3380,Nos. 97-3311,s. 97-3311
• Citation: 149 F.3d 243
• Court: U.S. Court of Appeals — Third Circuit
• Parties: 158 L.R.R.M. (BNA) 2897, 135 Lab.Cas. P 10,204 PASSAVANT RETIREMENT & HEALTH CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PASSAVANT RETIREMENT & HEALTH CENTER, Respondent.

Page 243

149 F.3d 243

158 L.R.R.M. (BNA) 2897, 135 Lab.Cas. P 10,204

PASSAVANT RETIREMENT & HEALTH CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PASSAVANT RETIREMENT & HEALTH CENTER, Respondent.

Nos. 97-3311, 97-3380.

United States Court of Appeals, Third Circuit.

Argued Feb. 12, 1998.

Decided July 24, 1998.

John E. Lyncheski (argued), Joseph M. McDermott, Cohen & Grigsby, Pittsburgh, PA, for Petitioner/Cross-Respondent Passavant Retirement & Health Center.

Aileen A. Armstrong, Peter D. Winkler, William M. Bernstein, (argued on behalf of Aileen A. Armstrong), National Labor Relations Board, Washington, DC, for Respondent/Cross-Petitioner National Labor Relations Board.

Before: GREENBERG, NYGAARD, and McKEE, Circuit Judges

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Passavant Retirement & Health Center requests that we review a decision of the National Labor Relations Board which concluded that Passavant committed an unfair labor practice violating section 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), (5). Passavant refused to bargain with the General Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 538 a/w International Brotherhood of Teamsters, AFL-CIO, the certified exclusive bargaining representative of a group of Licenced Practical Nurses, ¹ working as Passavant's Charge Nurses. The Board cross-petitions us to enforce its decision. Because we find that the LPN Charge Nurses are supervisors under the Act, we will grant Passavant's Petition For Review, reverse the Board's ruling, and deny its Petition to Enforce.

I.

Passavant is a continuing care retirement community, providing various levels of nursing services in its skilled nursing facility, separate assisted-living units, and independent-living apartments and cottages. The facility is under the overall supervision of an Executive Director. Directly below the Executive Director in Passavant's hierarchy is the Director of Clinical Services, who supervises the Independent Living Supervisor and the Director of Nursing. The Director of Nursing has an Assistant Director of Nursing, and both oversee the House Supervisors. Under the House Supervisors are the Head Nurses, who in turn supervise the Charge Nurses. The remainder of the nursing staff includes Nurses Aides and Resident Assistants. In the Independent Living portion of the facility, the Independent Living Supervisor directly oversees the Charge Nurses and Resident Assistants working there. Passavant's Nurses Aides and Resident Assistants are already governed by a collective bargaining agreement.

The Union originally petitioned for representation of all Passavant's LPNs. LPNs work alongside Registered Nurses as Charge Nurses and Head Nurses. To avoid confusion, it is worth noting that "Head Nurse" and "Charge Nurse" are job titles at Passavant, and the terms "Registered Nurse" and "Licenced Practical Nurse" denote different degrees of state licensure. The LPNs and RNs employed in those positions perform the same duties, except that RNs are qualified to perform a few more medical procedures such as drawing blood, and inserting feeding tubes and intravenous tubes. The Union amended its petition to exclude LPN Head Nurses from the proposed bargaining unit, as it recognized that they were supervisors, but did not amend the petition to include RNs employed as Charge Nurses. Thus, the bargaining unit here comprises only LPN Charge Nurses.

While the representation petition was before the NLRB Regional Director, Passavant moved to transfer the proceeding to the Board, which had scheduled oral argument in two cases that also concerned the supervisory status of nurses. See Nymed, Inc., d/b/a Ten Broeck Commons, 320 N.L.R.B. 806, 1996 WL 48265 (1996); Providence Hosp., 320 N.L.R.B. 717, 1996 WL 46343 (1996). After finding that the LPN Charge Nurses were not supervisors and were an appropriate bargaining unit, the Regional Director denied Passavant's Motion to Transfer and ordered a representation election.

Passavant appealed the Regional Director's decision to the Board. Meanwhile, after an election, the ballots were impounded pending the Board's ruling. The Board denied Passavant's Request for Review, concluding that the Regional Director's analysis followed the Supreme Court's recent decision in NLRB v. Health Care & Retirement Corp., 511 U.S. 571, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994), and Board precedent.

The impounded ballots were then counted, and the Union won the election. The Regional Director certified the Union as the exclusive bargaining representative of Passavant's LPN Charge Nurses. The Union requested that Passavant enter into collective bargaining, but Passavant refused. The Union then filed unfair labor practice charges with the Board, and the Board's General Counsel filed a Complaint against Passavant. The Board granted the General Counsel's Motion for Summary Judgment, finding that Passavant had violated the NLRA by refusing to bargain. Passavant Retirement and Health Center, 323 N.L.R.B. No. 99, 1997 WL 225463 (Apr. 30, 1997).

The underlying decision of the Regional Director as to the representation election is before us pursuant to section 9(d) of the NLRA, 29 U.S.C. § 159(d). We have jurisdiction over this appeal under 29 U.S.C. § 160(e), (f). Our standard of review is deferential. We will uphold the Board's findings of fact if supported by substantial evidence in the record as a whole:

"The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both."

Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951). We exercise plenary review over questions of law and the Board's application of legal precepts, Tubari, Ltd. v. NLRB, 959 F.2d 451, 453 (3d Cir.1992); however, "[b]ecause of the Board's 'special competence' in the field of labor relations, its interpretation of the Act is accorded special deference." Pattern Makers' League of North Am., AFL-CIO v. NLRB, 473 U.S. 95, 100, 105 S.Ct. 3064, 3068, 87 L.Ed.2d 68 (1985). Moreover, a determination of "[w]hether a [bargaining] unit is appropriate involves a large measure of informed discretion vested in the Board and is rarely to be disturbed." St. Margaret Mem'l Hosp. v. NLRB, 991 F.2d 1146, 1152 (3d Cir.1993).

II.

The Board concluded that by refusing to bargain with the Union, Passavant engaged in an unfair labor practice in violation of section 8(a)(1) and (5) of the National Labor Relations Act:

(a) It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

...

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.

29 U.S.C. § 158(a)(1), (5) (emphasis added). "The term 'employee' shall include any employee ... but shall not include ... any individual employed as a supervisor...." 29 U.S.C. § 152(3). The meaning of the term supervisor, of course, determines this case. In interpreting that term we turn first to the statute itself, which defines a "supervisor" as:

"any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

29 U.S.C. § 152(11).

If the LPN Charge Nurses fall within the Act's definition of supervisors, then it was not an unfair labor practice to refuse to bargain with them. Only two of our past decisions are relevant to this question. Neither, however, directly resolves the issue. In Tressler Lutheran Home for Children v. NLRB, 677 F.2d 302, 307 (3d Cir.1982), after analyzing a First Amendment challenge, we noted that factually "[t]here is substantial evidence that [the LPNs] were not supervisory personnel." In NLRB v. Konig, 79 F.3d 354 (3d Cir.1996), we did not reach the supervisory issue because the employer had waived it by failing to raise it properly.

Historically, the Board utilized a test for the supervisory status of nurses based on the "interests of the employer" language of section 2(11). Beverly Enterprises--Ohio d/b/a Northcrest Nursing Home, 313 N.L.R.B. 491, 493-94, 1993 WL 513158 (1993). That test "examines whether the alleged supervisory conduct of the charge nurses is the exercise of professional judgment incidental to patient care or the exercise of supervisory authority in the interest of the employer." Id. at 493.

The Supreme Court rejected this analysis in Health Care. First, the Court set forth the proper framework for determining the supervisory status of employees:

"[T]he statute requires the resolution of three questions; and each must be answered in the affirmative if an employee is to be deemed a supervisor. First, does the employee have authority to engage in one of the 12 listed activities? Second, does the exercise of that authority require 'the use of independent judgment'? Third, does the employee hold the authority 'in the interest of the employer'?"

Health Care, 511 U.S. at 573-74, 114 S.Ct. at 1780. The Court then reasoned that the Board's "patient care" test was inconsistent with the NLRA:

"[T]he Board has created a false dichotomy--in this case, a dichotomy between acts taken in connection with patient care and acts taken in the interest of the employer. That dichotomy makes no...