GLENMARK ASSOCIATES, INCORPORATED, d/b/a Cedar Ridge Nursing and Rehabilitation Center, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. GLENMARK ASSOCIATES, INCORPORATED, d/b/a Carehaven of Point Pleasant, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GLENMARK ASSOCIATES, INCORPORATED, d/b/a Cedar Ridge Nursing and Rehabilitation Center, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GLENMARK ASSOCIATES, INCORPORATED, d/b/a Carehaven of Point Pleasant, Respondent.
Nos. 97-1403, 97-1404, 97-1514 and 97-1515.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 3, 1997. Decided June 19, 1998.
Before NIEMEYER and WILLIAMS, Circuit Judges, and JONES, United States District Judge for the Western District of Virginia, sitting by designation.
Petitions for review granted and cross-applications for enforcement denied by published opinion. Judge WILLIAMS wrote the majority opinion, in which Judge NIEMEYER concurred. Judge JONES wrote a dissenting opinion.
OPINION
WILLIAMS, Circuit Judge:
This case requires us to decide whether nurses employed in nursing homes who have
I.
This case arises on Glenmark‘s consolidated petitions for review of two NLRB Decisions and Orders in which the Board determined that Glenmark had committed unfair labor practices at two of its West Virginia nursing homes, Cedar Ridge Nursing and Rehabilitation Center (Cedar Ridge) and Carehaven of Point Pleasant (Point Pleasant), by refusing to deal with the newly organized nursing unions at those facilities in violation of
A. Cedar Ridge
Cedar Ridge is a 120-bed nursing home located in Sissonville, West Virginia. The nursing staff consists of: one Director of Nursing, one Assistant Director of Nursing, three full-time Registered Nurses (RNs), one part-time RN, twenty-two Licensed Practical Nurses (LPNs), and between fifty-eight and sixty CNAs. Because Cedar Ridge provides twenty-four hour care to its patients, its staff works on a three shift schedule, i.e., each twenty-four hour day is divided into three eight-hour shifts. The Director of Nursing and the Assistant Director of Nursing generally work only during the day shift on Monday through Friday. The RNs operate on a separate twelve-hour shift schedule. RNs sometimes work weekend hours and participate in an on-call rotation system. RNs serve as charge nurses when they are on the floor. When there is no RN coverage, however, the senior LPN on the shift takes over the charge nurse‘s responsibilities.2 Any LPN employed at Cedar Ridge could potentially serve as the charge nurse for a particular shift.
Cedar Ridge is divided into two wings. Each wing contains sixty beds and is divided into two halls known as the “long hall” and the “short hall.” Each long hall contains thirty-five beds, whereas each short hall contains twenty-five beds. Of the two short halls, one is reserved for patients requiring a higher degree of nursing care. The LPNs and CNAs on staff are each assigned to one of the four halls.
On May 1, 1995, District 1199, The Health Care and Social Services Union, SEIU, AFL-CIO (the Union) filed a petition in the NLRB‘s regional office requesting that an election be held so that the Union could be certified as the exclusive bargaining representative for the twenty-two LPNs at Cedar Ridge. On June 14, 1995, the NLRB‘s Regional Director3 for Region 9 determined that the unit comprised of “[a]ll full-time and regular part-time licensed practical nurses (LPNs) employed by [Glenmark] at its Sissonville, West Virginia facility, excluding all professional employees, guards, and supervisors as defined in the act” was appropriate. (J.A. at 510.) Thus, the Director ordered an election to determine whether the LPNs in the unit were interested in union representation. Twenty-one LPNs voted in the election. Eleven LPNs voted in favor of union representation and ten voted against it. A simple majority having been attained in the representation vote, the Director certified the Union as the exclusive collective bargaining representative of the Cedar Ridge LPNs.
B. Point Pleasant
Point Pleasant is a 68-bed facility in Point Pleasant, West Virginia. The nursing staff consists of: one Director of Nursing, one Administrative Nurse/MDS Coordinator, two RNs, ten LPNs, and between thirty-one and forty CNAs. Point Pleasant also provides twenty-four hour care to its patients. The staff works on a three shift schedule; each twenty-four hour day is divided into three eight and one-half hour shifts. The Director of Nursing and the Administrative Nurse/MDS Coordinator generally work traditional forty hour schedules during the day shift on Monday through Friday. None of the administrative staff are on call or carry a beeper. The RNs and LPNs perform essentially identical tasks at Point Pleasant, with the exception of the Administrative Nurse/MDS Coordinator4 who has additional responsibilities for scheduling staff and training CNAs.
At Point Pleasant, if one of the RNs is on duty she is automatically designated the charge nurse. On any shift with only LPNs, one is designated the charge nurse on the basis of seniority.5 Any of the LPNs could be the senior LPN on a given shift and could be designated as the charge nurse. As part of their responsibilities, LPNs and RNs at
The terms and conditions of the Point Pleasant CNAs’ employment are governed by a collective bargaining agreement.7 That agreement dictates the procedures for: seniority, lay-off, promotion, hours of work, overtime, call-in work, overtime pay, holidays, personal days, bonus days, vacation, sick leave, bereavement leave, leave of absence, medical leave, military leave, jury duty, union leave, discipline and discharge, and grievances.
The disciplinary system mandated by the CNA agreement is a progressive one. When an infraction occurs, the first step in CNA discipline is verbal counseling which is documented by a written verbal correction report. The second step of the progressive discipline procedure is the issuance of a written warning. The third step is suspension without pay, and the final step is discharge. As noted earlier, RNs and LPNs complete the first step in the disciplinary process by filing written verbal correction reports.
On January 16, 1996, the Union sought certification as the exclusive bargaining representative of the LPNs and RNs at Point Pleasant. After a hearing, the Director determined that an election should be held in which the RNs and LPNs would have an opportunity to vote for union representation. In the election held on June 20, 1996, eleven nurses voted. Nine nurses voted for representation in a unit containing both RNs and LPNs. Shortly thereafter, the Director certified the bargaining unit as the exclusive collective bargaining representative of the Point Pleasant nurses.
II.
After the Union was certified at each facility, it requested that Glenmark enter into negotiations. Glenmark, so that it could obtain judicial review of the certification, refused. The Union thereafter filed unfair labor practice charges. The NLRB‘s General Counsel brought unfair labor practice claims against Glenmark based on its refusal to bargain. The Board granted summary judgment against Glenmark because “[a]ll representation issues raised by [Glenmark] were or could have been litigated at the prior representation proceeding.” (J.A. at 1127, 1131.)
Glenmark filed petitions seeking review of the Board‘s final orders determining that their refusal to bargain with the Union at its Cedar Ridge and Point Pleasant facilities was violative of
III.
The question of whether a specific employee is a supervisor is a particularly important one. While the Act protects the rights of certain employees to unionize, see
The Board applies an ad hoc, case-by-case analysis when deciding whether employees are supervisors as defined by
If a review of the record, including all evidence presented to the Board, both in favor of the Board‘s position and opposed to the Board‘s position, reveals that the evidence in support of the Board‘s determination is deficient, we may deny enforcement of the Board‘s order. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 95 L. Ed. 456 (1951). Additionally, “courts must carefully scrutinize the Board‘s finding and the record on supervisory status.” St. Mary‘s Home, Inc., 690 F.2d at 1067. As we said in St. Mary‘s Home:
And this [thorough examination of the evidence] should be particularly true when the Board is determining supervisory status because of the inconsistency in the Board‘s application of the statutory definition and of the factors to be used in determining such application. So manifest has this inconsistency been that a commentator recently has aptly observed that “the Board has [so] inconsistently applied the [statutory] definition” of supervisor as to cause one necessarily to speculate “that the pattern [of Board decisions on supervisory status] displays an institutional or policy bias on the part of the Board‘s employees” as illustrated by a practice of adopting that “definition of supervisor that most widens the coverage of the Act, the definition that maximizes both the number of unfair labor practice findings it makes and the number of unions it certifies.”
Id. (quoting Note, The NLRB and Supervisory Status: An Explanation of Inconsistent Results, 94 Harv. L. Rev. 1713, 1713-14, 1721 (1981) (all but first alteration in original)).
We turn now to the specific questions of whether the LPNs at Cedar Ridge and the LPNs and RNs at Point Pleasant meet the statutory definition of supervisor under the NLRA. Upon a thorough examination of the record, we determine that there is not substantial evidence supporting the Board‘s conclusion that these nurses are not supervisors.
The NLRA defines the term “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 the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
A. Independent Judgment
The Board‘s interpretation of the independent judgment requirement is central to the present dispute. The NLRB concludes that the nurses at Cedar Ridge and Point Pleasant are not supervising the CNAs within the meaning of
Professionals are by definition highly skilled employees whose jobs require the use of independent judgment. Not all professionals, however, are supervisors. Professionals routinely use their skills and exercise independent judgment in the performance of their own responsibilities. In the case of nurses, they routinely make judgments regarding how appropriately to treat patients. Some of those professional judgments would require action by CNAs.9 The Board concludes, however, that because the nurses at Cedar Ridge and Point Pleasant are highly skilled and routinely exercise independent judgment in the performance of their own duties, sometimes affecting the duties of a CNA in the process, supervisory status is precluded. The Board is incorrect. It fails to appreciate the distinction between using skill and professional judgment to perform a complex job and using related skills and judgment to manage others. Clearly there is “a distinction between authority arising from professional knowledge and authority encompassing front-line management prerogatives.” NLRB v. Health Care & Retirement Corp., 511 U.S. 571, 583 (1994). On the facts of this case, however, the Board has not correctly drawn that distinction.
At the core of
B. Cedar Ridge
Glenmark asserts that the LPNs at Cedar Ridge are statutory supervisors because they utilize independent judgment in performing two of the Act‘s enumerated criteria: assignment and discipline. The Board, by summarily adopting the findings made by the Director, conceded that the LPNs were involved in the assignment and direction of CNA work because they transferred CNAs among wings to remedy staff imbalances caused by absenteeism. The Board found, however, that because LPNs were instructed to follow routine procedures in handling these situations the LPNs were not required to exercise independent judgment. Moreover, while acknowledging that LPNs may issue “verbal correction reports” to CNAs, the Board determined that “any final decision on appropriate discipline only occurs after a thorough review by admitted supervisors.” (J.A. at 375.) According to the Board, the LPNs “simply did not have the independent authority to impose discipline on other employees.” (J.A. at 375.)
In its arguments before us, the Board conceded that the LPNs had the authority to call CNAs in to work and to change their hall assignments at Cedar Ridge if circumstances dictated. The Board does not argue that this work did not constitute “assignment,” one of the twelve listed supervisory activities under
The Board‘s finding that LPNs exercised no independent judgment in carrying out their assignment duties is simply unsupported by the record. There is no evidence presented that LPNs called RNs for consultation about whether to call additional CNAs into work, allow CNAs to alter their hallway assignments, change CNA break schedules, or let CNAs go home early due to illness or family emergency. Rather, the record is replete with uncontradicted evidence that LPNs consistently made independent scheduling decisions like those outlined above throughout the course of their shifts. This power to authorize schedule changes and reassign workers rises above the mere incidental direction of assistants.
For two out of three shifts during the day, and all three shifts over the weekend, there is no higher authority than the charge nurse at Cedar Ridge.11 The record testimony of the facility administrator confirms this:
Q: [D]o the LPNs have any responsibilities if something should go awry on that shift when you‘re not there?
A: When we leave the building and turn the building over to the charge or the LPNs, RNs in charge, they have total run of the building....
(J.A. at 323 (Testimony of Rodney Hannah, Cedar Ridge Administrator).) Thus, the charge nurse, often the senior LPN scheduled for the shift, is “‘the highest ranking employee’ on the job site at the time to whom other employees must look for direction.” St. Mary‘s Home, Inc., 690 F.2d at 1066.
We cannot fathom the Board‘s position that for more than two-thirds of the week at a nursing home providing twenty-four hour care, where patient conditions can change on a moment‘s notice, there is no one present at the facility exercising independent judgment regarding proper staff levels and patient assignments. The Administrator‘s testimony cited above confirms that the LPNs are left in total control of the nursing home during evening and weekend hours. Quite obviously, many scheduling decisions made “routinely” by the LPNs at Cedar Ridge must require independent judgment. The Board mistakenly assumes that because there is an established procedure for handling a particular scheduling situation, nobody is required to think. In the Board‘s view, LPNs just mechanically follow established procedure. The record before us reveals the fallacy of the Board‘s logic. Although there is a general procedure in place regarding whom to call to work should an absence occur, on some occasions the LPNs, either the charge nurse or
The authority to assign workers constitutes the power “to put [the other employees] to work when and where needed.” Monongahela Power Co., 657 F.2d at 613. Such decisions are, in our view, inseverable from the exercise of independent judgment, especially in the health care context where staffing decisions can have such an important impact on patient health and well-being. An emergency decision regarding the appropriate staff level to accommodate ill patients requires a fact-specific individualized analysis of not only the patient‘s condition and the appropriate care, but also of the special skills of particular staff members. The conclusion that the Cedar Ridge LPNs exercise the authority to assign CNAs utilizing their independent judgment is sufficient for us to find that the Cedar Ridge LPNs are supervisors under the act. See St. Mary‘s Home, Inc., 690 F.2d at 1066 n. 4 (collecting additional cases in support of the proposition that finding that an employee meets one of the twelve listed criteria is enough to confer supervisory status).
2. Discipline
We next address the Board‘s finding that Cedar Ridge LPNs did not discipline CNAs in a manner contemplated by the Act. The Board determined that the LPNs’ verbal counseling of CNAs on how to properly perform job duties was merely the instruction of less skilled workers. It found that the verbal correction reports filed by LPNs with the Director of Nursing were not independent exercises of disciplinary authority because the LPNs did not have the final word on what disciplinary action would be taken against the CNAs. The Director of Nursing, in testimony at the hearing before the Director, flatly contradicted the Board‘s conclusion that LPNs did not participate in disciplining CNAs.13
The NLRA requires only that a supervisor have the ability “effectively to recommend” “discipline.”
LPNs also had the authority immediately to suspend CNAs for serious breaches of patient care protocol. The Assistant Director of Nursing at Cedar Ridge confirmed that an LPN suspended a CNA for rough treatment of a resident. (J.A. at 196 (noting that a CNA had been “rough with a resident and held a resident‘s arms and bruised the resident“).) The suspension took place on the 3:00 p.m.—11:00 p.m. shift without prior consultation with any RN or administrative staff member. The decision to suspend the CNA required that the LPN assess the seriousness of the incident and determine that the CNA‘s immediate removal from the presence of patients was appropriate. The LPN took this non-routine action without consulting any other staff member. This example illustrates that the LPNs at Cedar Ridge had the authority to take serious disciplinary actions when exigent circumstances required that they do so. It further shows that the LPNs were authorized by their employer to take such actions without prior management approval or consultation. This suspension is another example of the exercise of independent judgment to discipline a CNA.
C. Point Pleasant
Glenmark contends that the LPNs and RNs comprising the bargaining unit at Point Pleasant are statutory supervisors because, especially when acting in their charge nurse capacity, they have the authority to exercise independent judgment to assign and discipline CNAs.
1. Assignment
The Board, by summarily adopting the findings the Director made in his Decision and Direction of Election for Point Pleasant, decided that RNs’ and LPNs’ duties in scheduling CNAs, though assignment as contemplated by the Act, did not require the exercise of independent judgment because the order in which individuals were to be called in was governed by the CNAs’ collective bargaining agreement and the CNAs had regular hall assignments. Though it is undisputed that permanent staffing levels are determined by the facility administrator and the Director of Nursing, the decision of whether to utilize the call-in procedure to fill an emergency staff shortage at the shift level rests with the charge nurse. Additionally, as the Director acknowledged, “if an emergency involving a resident arises” an RN or LPN may alter a CNA‘s break schedule to accommodate the emergency. (J.A. at 1088.) As we discussed in Part III.B.1 in reference to Cedar Ridge, the decisions of whether to call in additional staff and whether to reorganize the schedule to accommodate patient emergencies require the exercise of independent judgment.15
2. Discipline
The Board also determined in the Point Pleasant context that the verbal correction reports issued by RNs and LPNs were not “discipline” or the effective recommendation thereof such that the RNs and
Q: Do [the RNs and LPNs] discipline ... employees?
A: Yes, they do.
Q: Are they expected to issue discipline to employees?
A: Yes, they are.
Q: Do they have the discretion to decide whether or not the form of the discipline will be a quiet talking to or if it‘s something that‘s put in writing that goes into their personnel file?
A: Yes, they do have that discretion.
Q: Does the discipline that is issued by the nurses become part of the progressive discipline system used by the nursing home?
A: Yes, it does.
...
Q: Have you relied upon the discipline of any of the nurses to make a determination as to what level of discipline you will give to a nursing assistant?
A: Yes, that discipline would become part of the progressive disciplinary procedure.
(J.A. at 425-26.) Accordingly, the written report of the LPN or RN is more than the recommendation of discipline, as it was at Cedar Ridge. Because of the progressive disciplinary system mandated by the Point Pleasant CNA collective bargaining agreement, filing a written report is in itself a disciplinary action.
3. Charge Nurse
Additionally the Board determined that charge nurse duties of RNs and LPNs were not supervisory because the charge nurses, although they had the additional authority to file incident and accident reports, otherwise had little, if any, extra responsibility.
This finding is not supported by substantial evidence or this Circuit‘s precedent. See St. Mary‘s Home, Inc., 690 F.2d at 1065-66. In St. Mary‘s Home, we repeatedly emphasized the importance of the designation “charge nurse” at a nursing home that operated on a twenty-four hour schedule. We held that that designation was important because the charge nurse was the “highest ranking official present at the home” during her shift. Id. at 1067. At Point Pleasant, the charge nurse‘s job description tells the charge nurse that she may be responsible for all staff in the entire facility. “The ... charge nurse ... plans, organizes, directs and supervises the activities of all employees as-signed to his/her tour of duty. This may be a unit, or may be the entire facility on holidays, weekends, evenings or nights.” (J.A. at 1010.) As we said in St. Mary‘s Home, Inc., “charge nurse” brings with it the responsibility of handling day-to-day crises that might arise with staff or patients at the home. See 690 F.2d at 1067-68. The charge nurse is the employer‘s designated representative to whom the other employees will first turn in the case of any unusual happening or emergency. Being designated “charge nurse” is more significant than acquiring a mere title, it is acceding to full responsibility for the nursing home. “‘[J]ob titles are meaningless; it is the authority vested in the employee, be it expressly or by implication, that is the controlling factor.‘” Id. at 1066 (quoting Mid-Continent Refrigerated Service Co., 228 N.L.R.B. 917, 920, 1977 WL 8469 (1977)). For those shifts when the Director of Nursing is absent from the facility, the charge nurse is the “‘highest ranking employee’ on the jobsite at the time to whom
IV.
In sum, the Board‘s interpretation of “independent judgment” is not consistent with the evidence in this case. Evidence supporting the Board‘s determination that the nurses at Cedar Ridge and Point Pleasant do not exercise management prerogatives when overseeing CNAs is simply absent from the record. Therefore, the Board lacked substantial evidence for its conclusion that the LPNs at Cedar Ridge, and the RNs and LPNs at Point Pleasant do not meet the definition of supervisor under
PETITIONS FOR REVIEW GRANTED, CROSS-PETITIONS FOR ENFORCEMENT DENIED.
JONES, District Judge, dissenting:
As the majority notes,
[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 the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
Recognition by the Act‘s drafters of the need to address professional employees explicitly speaks to the difficulty frequently encountered in determining when such employees become supervisors. With little effort, one can identify numerous employees in a host of professional fields who regularly make decisions, many of them complex, involving the exercise of their professional judgment, and many of which effect the direction or control of other employees. In such complex circumstances, it is ultimately the degree of discretion exercised by the individual that controls whether they are an employee or a supervisor. See Beverly Enterprises-Pennsylvania, Inc. v. NLRB, 129 F.3d 1269, 1270 (D.C. Cir. 1997). Where an employee‘s discretion is substantially constrained by her superiors, exercise of that authority, even where complex decisions are involved, is “routine” and therefore does not constitute an exercise of “independent judgment” under the Act. Id. Determination of whether an employee‘s authority is substantially restrained requires that the Board engage in a close scrutiny of the particular facts and circumstances on a case-by-case basis. See American Fed‘n of Television and Radio Artists, Cleveland Local v. Storer Broad., 745 F.2d 392, 399 (6th Cir. 1984).
Here, it is undisputed that an LPN‘s job affords the LPN discretionary authority over certified nursing assistants employed by Glenmark. However, the record makes clear that the LPNs’ discretionary control of CNAs at both the Cedar Ridge and Point Pleasant facilities is substantially constrained. The decisions made by the LPNs regarding CNAs are limited to set options. The majority of CNAs are given permanent assignments by registered nurses. The remaining CNAs are assigned various work duties by daily work sheets posted by RNs at the beginning of each shift. When CNAs are absent, LPNs can fill the vacancy, but they are required to first request any volunteers, and then to fill the vacancy in accord with CNA seniority. LPNs are also authorized to permit a CNA to leave work early because of an illness or emergency, but the LPN is required to inform the supervising RN of the action. LPNs have no authority to schedule CNAs on a given day or week, nor do they decide whether or when a CNA will be laid off, or can take vacation.
The LPNs’ disciplinary powers are similarly constrained. LPNs can remove a CNA from the presence of a resident only if they suspect the CNA of abusing the resident. An LPN can also instruct a CNA on how to perform a given task, or correct their performance of a task. However, LPNs are not formally involved in the evaluation process of CNAs and LPNs make no decisions regarding the promotion or discharge of CNAs. The LPNs’ only formal disciplinary power consists of issuing a written “verbal correction notice,” which is given to the RNs. The RNs then take whatever steps they deem appropriate, including taking no action. LPNs cannot discharge a CNA, nor can they compel action by an RN on the basis of a written correction notice.
The collective bargaining agreement in place at the Point Pleasant facility further restricts the discretionary authority of LPNs working at that facility. There, seniority governs the procedure for calling in part-time and off-duty full-time CNAs. If a CNA wishes to change shifts or jobs, the contractual bidding procedure dictates. CNA grievances are controlled by the agreement‘s grievance procedure which requires that first step grievances be presented to the nursing director, who is authorized to resolve the grievances. As at Cedar Ridge, LPNs can issue written “verbal correction notices,” but they must be reviewed by the nursing director.
The record clearly reflects the Board‘s assessment of the LPNs’ roles. As nurses, they make professional judgments regarding the care and treatment of their patients, which frequently require the actions of the CNAs. While the LPNs exercise judgment in making these decisions, it is exactly the type of judgment-making contemplated by section
The majority contends that the Board‘s decision is incorrect because it fails to recognize that while the LPNs undoubtedly exercise professional judgment in performing their own duties, they also exercise independent judgment in managing the CNAs. Assuming that such a dichotomy exists, the record makes clear that the LPNs’ discretion with regard to the assignment, discipline and other statutory factors is extremely limited. As the D.C. Circuit noted in Beverly Enterprises-Pennsylvania, 129 F.3d at 1270, considering facts similar to those of the instant case, the LPNs’ discretion “[b]asically ... consists of assigning and monitoring the performance of discrete patient care tasks,” and scheduling CNAs so as to minimize the disruption of that care. Id. This limited authority is so constrained as to render exercise of it routine and therefore devoid of the independent judgment specifically required by the Act.
Despite the limited nature of the LPNs’ authority, Glenmark also advances the proposition, adopted by the majority, that the LPNs must be supervisors because they are often the senior personnel present at the facility, and are appointed as “charge nurses” at those times. Glenmark reasons that the LPNs must be supervisors, since otherwise there would be no one in charge at the facility a substantial portion of the time. Such an argument ignores the plain evidence in the record that although the LPNs are often the senior personnel on duty, there is always an on-call RN who remains ultimately responsible for each facility at all times. The essence of this distinction was well made by the Seventh Circuit in NLRB v. Res-Care, Inc., 705 F.2d 1461 (7th Cir. 1983), in which the court observed that “[a] night watchman is not a supervisor just because he is the only person on the premises at night, and if there were several watchmen it would not follow that at least one was a supervisor.”
In sum, the record contains ample facts to sustain the Board‘s finding that the LPNs employed by Glenmark at their Point Pleasant and Cedar Ridge facilities do not exercise “independent judgment” in controlling or otherwise directing the CNAs. Therefore, the Board‘s decision should be affirmed in accord with the well-established standard that its factual determination regarding the supervisory status of an employee should be overturned only if there is not substantial evidence in the record as a whole to support the finding. See NLRB v. St. Mary‘s Home, Inc., 690 F.2d 1062, 1067 (4th Cir. 1982).
For the foregoing reasons, I would deny the petition for review and grant the Board‘s cross-petition for enforcement.
Notes
The Supreme Court intervened to resolve the dispute in the lower courts and determined that the NLRB‘s interpretation of the act—that supervisory actions promoting patient care in the health care industry were not for the benefit of the employer—was not rational and consistent with the NLRA. See NLRB v. Health Care & Retirement Corp., 511 U.S. 571, 576, 114 S. Ct. 1778, 128 L. Ed. 2d 586 (1994). The Court concluded that the Board “has chosen ... to rely on an industry-wide interpretation of the phrase ‘in the interest of the employer’ that contravenes precedents of this Court and has no relation to the ordinary meaning of the language.” Id. at 583, 114 S. Ct. 1778.
After the Supreme Court‘s ruling, the NLRB corrected its interpretation of “in the interest of the employer,” and it began this latest litigation—attacking the supervisory status of nurses on the ground that nurses do not exercise independent judgment, but rather just provide routine guidance to less skilled employees. See Caremore, Inc. v. NLRB, 129 F.3d 365 (6th Cir. 1997); Beverly Enters.—Penn., Inc. v. NLRB, 129 F.3d 1269 (D.C. Cir. 1997); Providence Alaska Med. Ctr. v. NLRB, 121 F.3d 548 (9th Cir. 1997).
We are not the first court to wonder whether this new interpretation is an end run around an unfavorable Supreme Court decision in order to promote policies of broadening the coverage of the Act, maximizing the number of unions certified, and increasing the number of unfair labor practice findings it makes rather than explicate a well-reasoned interpretation of the NLRA. See Caremore, Inc., 129 F.3d at 371 (“The NLRB‘s position generally has been that supervisory status is almost never to be accorded nurses whose supervisory authority is exercised over less skilled professionals in the interest of patient care .... the NLRB continues to misapprehend both the law and its own place in the legal system .... “); St. Mary‘s Home, Inc., 690 F.2d at 1067 (noting that the Board had been criticized for its policy bias).
Credibility is as important to an agency appearing before us as it is to any other litigant. In this regard, we note that this Court has been sharply critical of supervisory status determinations, see St. Mary‘s Home, Inc., 690 F.2d at 1067, and that we have recently criticized the Board‘s questionable positions in several other areas, see Case Farms of North Carolina, Inc. v. NLRB, 128 F.3d 841, 850 (4th Cir. 1997) (Williams, J. concurring) (expressing “concern with the Board‘s apparent disregard for the decisions of the Circuit Courts“), cert. denied, U.S.,
(J.A. at 162 (Testimony of Robin Batten, LPN).)Q: [H]ow do you determine where a floater is needed?
A: By the number of sick—well, you know if you have an even amount of people and you have one extra, then you‘re going to put the extra one sometimes where the highest, heaviest workload is.
Q: And, how do you know where the highest, heaviest workload is?
A: The number of ill patients on that side.
(J.A. at 42 (Testimony of Cindy Hamon, Director of Nursing).)Q: Do [the LPNs] discipline employees?
A: Yes, they do.
Q: Do they discipline employees on their own authority or do they have to have approval from you before they can issue discipline?
A: They don‘t have to have my approval. They discipline themselves on their own judgment.
(J.A. at 75 (Testimony of Cindy Hamon, Director of Nursing).)Q: Are there CNAs that without the input from the LPN, you would not be able to say anything about whether they‘re a good performer, or a poor performer?
A: Yes, sir, I depend on their input for that, particularly on the off shifts.