The National Labor Relations Board petitions to enforce its order against Hillard Development Corporation,
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doing business as Provident Nursing Home. The Board
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(H),
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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,
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.,
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
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 insubor-dinately 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
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 increase than would otherwise correlate to the MHA’s evaluation score.
II. Procedural History
On October 12, 1993, Local 285 of the Service Employees International Union filed a petition with the Board seeking certification as the representative of a unit composed of Provident employees, including both the MHAs and the district and charge nurses. Provident contended that the Board should exclude the district and charge nurses from the bargaining unit because the nurses are supervisors under § 2(11) and thus ineligible for union representation under the Act. After conducting a hearing, the Board’s Regional Director issued a decision on November 24, 1993, in which she directed an election and rejected Provident’s contention that the nurses are supervisors.
Provident then sought Board review. While the request for review was pending, the Board’s regional office conducted an election and impounded the ballots cast. The Board later agreed to review the Regional Director’s decision “solely with respect to the Regional Director’s finding that evaluations prepared by the Employer’s district nurses and charge nurses ... are not indicative of supervisory status,” denying Provident’s request for review “[i]n all other respects.” Provident filed a request for reconsideration of the portion of its request denied by the Board.
In June 1996, the Board granted Provident’s request for reconsideration and remanded the case to the Regional Director for further consideration in light of the Supreme Court’s decision in
Health Care & Retirement Corp.
and the Board’s decisions in
Ten Broeck Commons,
The Regional Director’s supplemental decision concluded once again that the nurses were not supervisors under the Act. On review, the Board affirmed the Regional Director’s conclusion that “the nurses’
In order to obtain judicial review of the bargaining unit, Provident refused to bargain with the Union, prompting the Union to file a charge with the Board under §~ 8(a)(5) and (1) of the Act. Provident's answer to the complaint admitted its refus-alto bargain but disputed the propriety of the Board's certification. The Board's Decision and Order reaffirmed its earlier finding that Provident's district and charge nurses are not supervisors under § 2(11) of the Act. See Hilliard Dev. Corp., 324 N.L.R.B. No. 46,
III. Standard of Review
This court must accept the Board's factual findings as to which employees are supervisors unless those findings are not supported by substantial evidence in the record as a whole. See 29 U.S.C. § 160(e); Telemundo de Puerto Rico, Inc. v. NLRB,
Statutory interpretation questions are reviewed de novo. See 5 U.S.C. § 706. Where the intent of Congress is clear, that intent must be given effect. See Chevron,
PrOvident suggests that the Board is not entitled to deferential review of its interpretation of ambiguous portions of § 2(11) because, it says, the Board is biased and has a metaphorical thumb on the scale, tilting the balance toward a finding of non-supervisory status. It points out that a number of the circuits have rejected Board orders finding mid-level nurses in nursing homes not to be supervisors
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and
We reject Provident’s suggestion. After
Health Care & Retirement Corp.,
the Board held that it would no longer use a special test to evaluate whether nurses are supervisors under § 2(11) but would “treat ... nurses the same as all other employee classifications and ... apply to them the same test as [that] applied] to all other employees.”
Ten Broeck Commons,
IV. Analysis
A. ■ The § 2(11) Test
The NLRA at § 2(11) defines as a supervisor:
[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, oreffectively to recommend such actions, 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). This definition is disjunctive: any one of the listed aspects of authority may signify supervisory status, as long as the exercise of that authority involves the use of independent judgment.
See Telemundo de Puerto Rico,
B. The Board’s Interpretation of “Independent Judgment”
The Court in
Health Care & Retirement Corp.
rejected the Board’s “patient care” analysis of the phrase “in the interest of the employer,” noting that “[w]ith respect to that particular phrase, we find no ambiguity supporting the Board’s position.”
Id.
at 579,
The ambiguity of this phrase stems in part from its similarity to the phrase “consistent exercise of discretion and judgment” in § 2(12) of the Act. See 29 U.S.C. § 152(12). The latter phrase describes the work of professional employees, who are covered under the Act. See 29 U.S.C. § 152(3), (12). The Act’s simultaneous exclusion of supervisors and inclusion of professional employees creates an inherent tension which the Board and the courts have tried to resolve since enactment of the Taft-Hartley Act in 1947. See D. Rab-ban, Distinguishing Excluded Managers from Covered Professionals Under the NLRA, 89 Colum. L.Rev. 1775, 1798 (1989); see also D. Barker, Note, NLRB v. Health Care & Retirement Corp.: Erosion of NLRA Protection for Nurses and Other Professionals?, 1996 Wis. L.Rev. 345, 346 (1996).
In the aftermath of
Health Care & Retirement Corp.,
the Board found there to be a distinction between the “independent judgment” exercised by statutory supervisors and the judgment routinely exercised by professional employees. The Board found that “making decisions requiring expert judgment is the quintessence of professionalism; mere communication of those decisions and coordination of their implementation do not make a professional a supervisor.”
Providence Hospital,
The Regional Director applied the Providence Hospital rule in her supplemental decision, which once again found Provident’s district and charge nurses not to be supervisors. On review, the Board affirmed this conclusion. In arguing against enforcement of the Board’s order, Provident suggests that the interpretation of “independent judgment” which the Board adopted in Providence Hospital should be rejected as unfounded.
We disagree. The Board’s interpretation is not irrational or inconsistent with the statute. To the contrary, it harmonizes the Act’s definitions of “supervisor”
C. The Board’s Application of the § 2(11) Test
In addition to challenging the Board’s interpretation of “independent judgment,” Provident says the Board disregarded record evidence in its conclusions and ignored substantial evidence concerning the supervisory authority of the district and charge nurses. Because Provident makes a manifold attack, we group the challenges and discuss each separately. Under Board precedent, the burden of proving supervisor status falls on the party making the assertion of supervisory status.
See Beverly Enterprises-
Ohio,
1. Evaluations and Effective Recommendation of Reward
Provident’s keystone argument is that the district and charge nurses complete annual performance evaluations for the MHAs and that these evaluations directly determine the level of merit wage increases for the MHAs. This, Provident says, means that these nurses effectively recommend the reward for the MHAs, which brings them within the statutory meaning of “supervisor.”
The Board found that “the evidence fails to establish that the evaluations performed by these nurses directly affect the employees’ job status; therefore, the nurses’ role in evaluating employees is insufficient to confer supervisory status.” Hilliard Dev. Corp., Case 1-RC-20057, at 2 (NLRB Feb. 6, 1997).
We describe the Board’s conclusions and the employer’s rejoinders. The Board concedes that there is some relationship between the evaluations by the district and charge nurses and the award of merit pay in some instances, but says that this relationship does not suffice to create supervisory status.
First, the Board notes that the instances of influence over merit pay increases are neither universal nor inevitable. About half of the MHAs are per diem employees who do not receive merit pay increases at all. Even among the MHAs who are not per diems, another group does not receive merit increases because they are at or near the maximum wage or cap. There was evidence that these two groups combined constituted more than half of the MHAs in 1992. In 1993, nine of the nineteen MHAs who were otherwise eligible for merit increases — that is, who were neither per diem employees nor had reached Provident’s wage cap — were nonetheless removed from the merit increase system by an across-the-board administrative merit increase, without any input from the district and charge nurses.
Provident presents the facts differently. Provident contends that in 1992, the majority of aides received raises based on evaluations by the district and charge nurses. Further, Provident says, in 1993, ten of twenty-three did; of the thirteen remaining, four were not eligible because they were per diem employees, and nine received the administrative merit increase, which was a one-time, atypical event.
Second, the Board found it was not clear how many of the district and charge nurses actually completed evaluations of MHAs or whether they knew what effect the evaluations would have on the aides. Nurses who testified said that they did not know their evaluations would affect the merit increases for the MHAs.
Third, and most significantly for our purposes, the Board found there was no consistent or direct correlation between the scores received on the evaluations by the charge and district nurses and the percentage of the merit increases (where awarded). There were several reasons for this. The increases awarded did not always match the evaluation scores given, and the range of merit pay increases awarded varied from time to time even within a year due to budgetary factors. In addition, the determination by the district and charge nurses of the evaluation score was subject to review by others and to independent assessment by the Director of Nursing.
With respect to the variance in range of increases received, the Board found that employees with the same ratings, but who were evaluated at different times of the year, received different percentage pay increases. The Board refers to several instances in which specific merit increases awarded by the administrator had no correlation to the ratings awarded, even under the formula in effect at the time: in 1992, two MHAs who received the same evaluation score were awarded different increases, and two MHAs with different evaluation scores received the same increase, contrary to the formula in effect at the time.
As to the responsibility of other supervisory personnel in the process, the evaluation form itself had a space for the Unit Manager to fill out. The job’ description for both the district nurse and charge nurse positions state that those nurses write the evaluations “[w]ith the ... Unit Manager.” In fact, both the Unit Manager and the Director of Nursing review the evaluations. The Board relied on the testimony of the Director of Nursing, who said that while she had never changed an individual rating herself, if she disagrees with a rating, she will “ask the unit manager to ask the nurse to redo it again to make sure that’s the score they want to put in.” There was also evidence that the independent evaluation made by the Director of Nursing resulted in higher pay raises for those who emerged with the same scores from the district and charge nurse evaluations but whom the Director gave a good evaluation.
As to the Board’s conclusion that there was no consistent or direct correlation between scores received and percentage of merit increases, Provident responds that this is the inevitable result of a rolling (year by year) relationship between evaluation points and percentage increase. Regarding the potential for intervention in the evaluation process by the nurses’ superiors, Provident says that such intervention rarely occurred. It also says this point is irrelevant, because the statute only requires the power to recommend reward. Provident relies on the Sixth Circuit’s decision in
Caremore
to support this argument.
See Caremore,
None of the various circuit cases in the wars of the nurses, described above, turned on the phrase in § 2(11) which is the employer’s lead argument here — the authority “effectively to recommend” re
The Board, in turn, has appropriately noted that § 2(11) does not list “evaluate” as a supervisory function. The employee effectively recommends reward, the Board says, only when an employee’s evaluation leads to pay changes, there is a “direct correlation” between the evaluations and merit increases or bonuses to the evaluated employees, and the employee’s supervisors do not independently investigate or change the ratings.
See First Healthcare Corp.,
Two themes undergird the Board’s conclusion: that there is no direct link between the evaluations and merit pay and that management independently reviews and can change the evaluations. Our review of the record shows that substantial evidence supports the Board’s findings on both points. We focus on those themes and do not reach each individual argument made by Provident.
There is some merit in Provident’s reproach that the mere use by management of rolling performance evaluations cannot turn a supervisor into a non-supervisor. If the Board’s conclusion rested on this point, we might well' agree with Provident. But we understand the Board to have concluded something else — that there really is no direct connection between the evaluation of an MHA given by a charge or district nurse and the merit pay increase, if any, that the MHA receives. Management retained and exercised the power over several' intervening factors. The 1993 across-the-board administrative merit increase serves as an example. Provident rightly says a one-year exception should not create a rule. We have no way of knowing, from this record, whether the 1993 administrative merit increase was unique. More importantly, even, in 1992 there was adequate evidence to support the Board’s conclusion that merit pay is not directly linked to the evaluations. Two MHAs received different merit increases although they received exactly the same scores; two receiving different evaluation scores received the same increase. The evaluation themselves are independently reviewed by the Unit Managers, the Director of Nursing and the home’s administrator. At least once a nurse was directly told to change a rating; several other times mere diplomatic suggestions to that effect were made. Management in fact reviewed and Signed every evaluation and the Director of Nursing entered her own comments on most of the evaluations based on her own observations. This combination of factors differs from that in the case relied on by Provident, the Sixth Circuit decision in Care-more, Inc., and, in our view, suffices.
2. Assigning and Effectively Recommending Assignment of Work
Provident also argues that the district and charge nurses participate in and effectively recommend the assignment of work. It makes the following arguments in support of its contention that the nurses have authority to assign work
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to the
The Board found that while the district and charge nurses possess some assignment power, the power is circumscribed and does not amount to the exercise of independent judgment. The Board placed great weight on the fact that the Unit Managers select groups of residents for assignment to the MHAs; the nurses’ only authority is to assign MHAs to those predetermined groups. The Unit Managers also determine the specific duties to be performed for each resident, as well as the shift or floor to which each MHA is assigned. Once MHAs are assigned to a group of residents, the assignments tend to remain the same. As to the occasional reassignment when MHAs are absent, the Board found that, although the nurses consider the needs of individual residents, the matching of skills to requirements was essentially routine. Further, all floating work or beyond shift work is based on predetermined requirements that there be a certain number of MHAs per unit. While nurses can request that an MHA work overtime, they cannot compel the MHA to do so. Once nurses do exercise their limited authority to transfer, they must immediately notify the Unit Manager, who reviews the decision. Finally, the determination of order of lunch and other breaks is essentially clerical.
The Board’s conclusion that such hemmed-in, limited authority to assign work — authority which is confined by predetermined groupings and schedules and is subject to post-action recission by a Unit Manager — is not the independent judgment required by the Act is both rational and supported. See
Northeast Utils. Serv. Corp. v. NLRB,
3. Adjusting Grievances
The Board found that the nurses can resolve minor grievances, such as a complaint by an MHA about an assignment. If the complaint is not resolved, it is brought to the Unit Manager.
The Board's conclusion that this limited role did not involve independent judgment is ntore than `supported. See Northeast Utils. Serv. Corp.,
4. Disciplining And Effectively Recommending Discipline
The district and charge nurses do exercise some limited authority in the area of disciplining and recommending discipline. First, they document any instances of patient abuse or insubordination on forms. Second, the nurses send MHAs home when they observe certain defined infractions such as intoxication, fighting, sleeping on the job, or inappropriate dress.
In the first situation, the nurse will document the incident on one of the forms provided, which contain no designated space for the reporter to recommend' discipline. Nonetheless, at times the nurse does include a written recommendation as to discipline or label an incident as a disciplinary infraction. The form is given to the Unit Manager and becomes part of the personnel file of the MHA.
The Board found there was no authority to discipline under § 2(11), only reportorial authority. Nurses can only report; others make the actual discipline decisions. This supportable finding is adequate to sustain the Board's conclusion.
D. The Sum of the Parts and the Whole
Treating Provident's challenge on a clause by clause basis under § 2(11), we conclude that it has not met its burden, despite an able challenge. Because an atomized analysis may mislead, we step back to review the entire picture. Matching the Board's conclusions against the purposes for the exclusion of supervisors from the Act, we find no mismatch. Testing the Board's conclusions against the structure of the ~vorkplace, we again find no mismatch.
"To achieve a balanced picture, it is important to note what [the employees at issue] do not do." Telemundo de Puerto Rico,
The claim that the district and charge nurses are supervisors rests on their relationship with the aides, who are a rung below them on the organizational ladder. These charge and district nurses are primarily care givers. The central responsibility of these nurses'is to care for their patients, and their supervisory authority over the aides is relatively modest. That there are employees lower on the organizational ladder whom higher level employees evaluate and to whom the' higher level employees give some direction surely cannot be enough to make the higher level employees supervisbrs. The NLRB has generally and correctly said that employ
The reasons that supervisors are excluded from coverage under the Act are not offended when employees such as the charge and district nurses are covered. The exclusion of “supervisors” from the Act is thought to be of benefit to both management and labor. It represents the principle “[t]hat an employer is entitled to the undivided loyalty of its representatives.”
NLRB v. Yeshiva Univ.,
The structure of the organization also supports the Board’s determination. This is a small nursing home, providing service at full capacity to 112 patients. The management of the home is primarily handled by four nurses: the Director of Nursing and three Unit Managers. Basic, nonprofessional services are provided by thirty aides. In between are thirteen district and charge nurses. It would be an odd managerial and supervisory structure to have the care of 112 patients entrusted to thirty non-professionals and have seventeen supervisors or managers, all of whom are nurses and professionals.
See Children’s Habilitation Ctr., Inc. v. NLRB,
For these reasons, we grant the Board’s petition and enforce the Board’s order.
Notes
. The caption reflects the erroneous spelling of "Hillard'’ in the underlying Board proceedings.
. The recently enacted Nursing Home Resident Protection Amendments demonstrate concern at the national level for the problems that nursing home residents face. See Nursing Home Resident Protection Amendments of 1997, Pub.L. No. 106-4, 113 Stat. 7 (1999).
. See G.R. King, Where Have All The Supervisors Gone? — The Board’s Misdiagnosis of Health Care & Retirement Corp., 13 Lab. Law. 343, 344 (1997).
. Section 2(11) categorizes as a supervisor:
[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 actions, 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) (emphasis added).
. See NLRB v. Attleboro Assocs., Ltd.,
Other circuits, in contrast, have enforced Board conclusions that mid-level nurses are not supervisors.
See NLRB
v.
GranCare, Inc.,
.See, e.g., Beverly Enterprises, Virginia,
. Alternatively, unions and management can attempt to negotiate agreements which specifically address the issue of supervisory status of nurses. See J.P. Osgood, Note, NLRB v. Health Care & Retirement Corporation of America: A Setback for Nurses’ Unions? 46 Syracuse L.Rev. 135, 153 & nn. 129-30 (1995) (describing such an agreement).
. This result is consistent with the Court's warning in
Health Care & Retirement Corp.
not to read its holding too broadly. The Court cautioned that its decision "casts no doubt on Board or court decisions interpreting parts of § 2(11) other than the specific phrase 'in the interest of the employer.' ”
Health Care & Retirement Corp.,
. While Provident argues that the nurses also “responsibly direct” the MHAs, it effectively