Waverly-Cedar Falls Health Care Center, Inc. v. N.L.R.B., WAVERLY-CEDAR

• Decision Date: 14 May 1991
• Docket Number: No. 90-2240,WAVERLY-CEDAR,90-2240
• Parties: 137 L.R.R.M. (BNA) 2393, 118 Lab.Cas. P 10,724 FALLS HEALTH CARE CENTER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 626

933 F.2d 626

137 L.R.R.M. (BNA) 2393, 118 Lab.Cas. P 10,724

WAVERLY-CEDAR FALLS HEALTH CARE CENTER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 90-2240.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 14, 1991.

Decided May 14, 1991.

Paul Lindemann, Greenville, S.C., for petitioner.

William Baudler, Washington, D.C., for respondent.

Before McMILLIAN, ARNOLD and LOKEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Waverly-Cedar Falls Health Care Center, Inc. ("Waverly") petitions this court for review of a decision ¹ of the National Labor Relations Board ("Board") ordering Waverly to bargain with Teamsters Local No. 238 ("Union"). For reversal, Waverly argues that the Board misapplied the law in certifying a bargaining unit composed of Waverly's licensed practical nurses ("LPNs") because the LPNs are supervisors within the meaning of Sec. 2(11) of the National Labor Relations Act, 29 U.S.C. Sec. 152(11) ("Act"), and thus are not protected under the Act. The Board filed a cross-petition for enforcement of the order. For the reasons discussed below, we deny the petition for review and enforce the order of the Board.

Waverly operates a nursing care facility in Cedar Falls, Iowa. The facility maintains one hundred beds, providing intermediate nursing care for the infirm elderly. The facility operates twenty-four hours a day, seven days per week. The Administrator and Director of Nursing of the facility are present from 8:00 a.m. to 5:00 p.m., Monday through Friday. An Assistant Director of Nursing works from 8:00 a.m. to 2:30 p.m., Monday through Friday. The Director of Nursing oversees the Nursing Department and reports directly to the Administrator. The Director of Nursing and the Assistant Director of Nursing are on call twenty-four hours per day.

In addition to the seven LPNs, Waverly employs four med-aides, and approximately thirty-five orderlies. Two LPNs and eight orderlies work on the day shift from 6:00 a.m. to 2:00 p.m.; two LPNs and seven orderlies work on the night shift from 2:00 p.m. to 10:00 p.m.; and one LPN and four orderlies work on the late night shift from 10:00 p.m. to 6:00 a.m.

On November 2, 1988, the Union filed a petition seeking to be certified to represent Waverly's seven LPNs. On December 6, 1988, following a hearing, the Acting Regional Director ² of the Board found that the LPNs were "supervisors" as defined under the Act and dismissed the petition. The Acting Regional Director found that the LPNs were supervisors because they are the only supervisory personnel present during evenings and on weekends, assign and evaluate orderlies' work, excuse absences, and approve overtime. The Acting Regional Director noted that if the LPNs are not supervisors, there would be an unrealistic ratio of two supervisors (the Director and Assistant Director of Nursing) for forty-six nursing department employees (the seven LPNs, four med-aides, and thirty-five orderlies).

The Union appealed this decision to the Board. The Board concluded that "the LPNs do not possess supervisory authority" and reversed the Acting Regional Director's decision. 297 N.L.R.B. No. 40, slip op. at 3 (Nov. 28, 1989). In reversing, the Board noted that the LPNs lacked authority to transfer, lay off or recall employees. Id. at 7. The Board also concluded that the LPNs lacked supervisory status in regard to work assignments for other employees at the facility. The Union won the representation election and was certified as the exclusive collective bargaining representative of all LPNs employed by Waverly.

On March 9, 1990, the Union filed an unfair labor practice charge against Waverly alleging that Waverly violated Secs. 8(a)(1) and 8(a)(5) of the Act by refusing to bargain with the Union. Waverly admitted that it had refused to recognize or bargain with the Union, but argued that LPNs employed at the Cedar Falls facility did not constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act because the LPNs are supervisors.

On May 17, 1990, the General Counsel filed a Motion for Summary Judgment with the Board. On May 21, 1990, the Board issued an order transferring the proceeding to the Board. On June 29, 1990, the Board granted the General Counsel's Motion for Summary Judgment and ordered Waverly to cease and desist from refusing to bargain with the Union. 298 N.L.R.B. No. 151, slip op. at 3-4 (June 29, 1990). The Board concluded that all representation issues were or could have been litigated in the prior representation hearing. Id. at 2. On July 30, 1990, Waverly petitioned this Court for review of the Board's decision.

In order to challenge certification of a collective bargaining unit, an employer must refuse to recognize a union after its certification. Board certifications under Sec. 9(c) of the Act are not reviewable as final orders of the Board, see, e.g., AFL v. NLRB, 308 U.S. 401, 404-07, 60 S.Ct. 300, 301-03, 84 L.Ed. 347 (1940); Technicolor Government Services, Inc. v. NLRB, 739 F.2d 323, 326 (8th Cir.1984) (Technicolor ), but an order to bargain following an unfair labor practice hearing is a final, appealable order. 29 U.S.C. Sec. 160(e), (f). If a union files an unfair labor practice charge for refusal to bargain, the employer may then challenge the certification of the unit as an affirmative defense ³ to the charges. Technicolor, 739 F.2d at 326.

Thus, it is procedurally appropriate for Waverly to challenge the certification determination via an appeal of the unfair labor practice charge. Review of the Board's unit certification decision is limited to a determination of whether the decision is arbitrary, capricious, an abuse of discretion, or lacking in substantial evidentiary support. NLRB v. Metal Container Corp., 660 F.2d 1309, 1313 (8th Cir.1981).

The determination of who is a supervisor is a fact question which calls upon the Board's special function of applying the general provisions of the Act to the infinite gradations of the authority within a particular industry. Therefore the Board may exercise a large measure of informed discretion and a court must accept its determinations so long as they have "warrant in the record" and a reasonable basis in law.

NLRB v. Chem-Fab Corp., 691 F.2d 1252, 1256 (8th Cir.1982) (citations omitted) (quoting Jas. H. Matthews & Co. v. NLRB, 354 F.2d 432, 435 (8th Cir.), cert. denied, 384 U.S. 1002, 86 S.Ct. 1924, 16 L.Ed.2d 1015 (1966)).

[A] reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light the record in its entirety furnishes, including the body of evidence opposed to the Board's view.

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We hold that the Board's decision that the LPNs are not supervisors is supported by substantial evidence.

Title 29 U.S.C. Sec. 152(3) excludes "any person employed as a supervisor" from the definition of the term "employee." The Act does not require employers to bargain with unions which represent supervisors. 29 U.S.C. Sec. 164. Section 2(11) of the Act, 29 U.S.C. Sec. 152(11), defines "supervisor" as

[A]ny 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 foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

By excluding "supervisors" from the definition of "employee," Sec. 2(3) of the Act, 29 U.S.C. Sec. 152(3), excludes supervisors from protection under the Act. Iowa Electric Light & Power Co. v. NLRB, 717 F.2d 433, 434 (8th Cir.1983), cert. denied, 466 U.S. 903, 104 S.Ct. 1677, 80 L.Ed.2d 153 (1984); NLRB v. Res-Care, Inc., 705 F.2d 1461, 1465 (7th Cir.1983) (Res-Care ).

As Waverly notes, Sec. 2(11) of the Act is to be read disjunctively, that is, if an employee "exercises, or possesses the authority to exercise, any one of the enumerated functions listed in the statute, he [or she] has supervisory status." NLRB v. Harmon, 565 F.2d 1047, 1049 (8th Cir.1977) (Harmon ) (emphasis in original). Moreover, 29 U.S.C. Sec. 152(11) does not require the exercise of supervisory power, merely the existence of the power. Harmon, 565 F.2d at 1049. However, "the possession or exercise of the authority must involve the use of independent judgment." Id.

Waverly contends that the LPNs possess and exercise the following indicia of supervisory status: assigning and directing nurse aides, enforcing nursing and personnel policies, issuing oral and written disciplinary warnings, conducting performance evaluations, authorizing overtime, and possessing the authority to call in off-duty personnel.

The Board found that the Assistant Director of Nursing, not the LPNs, scheduled and assigned the nurse aides. 297 N.L.R.B. No. 40, slip op. at 6. The Board acknowledged the LPNs' "day-to-day" direction of the aides, but found such authority "routine" and primarily related to patient care. Id. at 10. Authority exercised in a merely routine manner is not supervisory authority. Harmon, 565 F.2d at 1049; NLRB v. Sayers Printing Co., 453 F.2d 810, 814 (8th Cir.1971) (employees who had authority to "assign" and "responsibly direct" others were not supervisors because they did not exercise independent judgment, but instead merely carried out the policies of management).

In Res-Care, the Seventh Circuit reviewed a Board decision which found LPNs not to be supervisors under Section (2)(11). The court enforced the decision despite the LPNs' authority to assign nurse aides. 705 F.2d at 1468. The court noted that the LPNs exercise this authority within "tight...