*2 McMILLIAN, Before ARNOLD and LOKEN, Judges. Circuit McMILLIAN, Judge. Waverly-Cedar Falls Health Care Cen- ter, Inc. (“Waverly”) petitions this court for review of a decision1 of the National (“Board”) Labor Relations Board ordering Waverly with Teamsters Local (“Union”). reversal, No. 238 For Waverly argues that the misapplied the law certifying bargaining composed unit Waverly’s practical licensed nurses (“LPNs”) because the sors within meaning Act, National Labor Relations 152(11)(“Act”), and protect- thus are not ed under the Act. The Board filed a cross- petition for enforcement of the order. For below, the reasons deny discussed we petition for review and enforce the order of the Board.
Waverly operates
nursing
facility
care
Falls,
in Cedar
Iowa. The
main-
beds, providing
tains one hundred
interme-
nursing
elderly.
diate
care for the infirm
facility operates twenty-four
The
hours a
day,
days per
seven
week. The Adminis-
Nursing
trator and Director of
of the facili-
p.m.,
from 8:00 a.m. to 5:00
Monday through Friday. An
Di-
Assistant
Nursing
rector of
works from 8:00 a.m. to
p.m., Monday through Friday.
2:30
Nursing
Director of
oversees
Department
reports directly
to the Ad-
Center, Inc.,
Waverly-Cedar
(June
Falls Health Care
298 N.L.R.B. No. 151
Nursing and
March
Director of
On
Union filed an
ministrator.
Nursing are on
practice charge against
unfair
the Assistant
labor
Waver-
per day.
hours
twenty-four
8(a)(1)
call
ly alleging
violated §§
8(a)(5) of the
by refusing
Act
to bar-
LPNs, Waverly
to the seven
In addition
gain
Union.
admitted
med-aides,
*3
employs four
recognize
bargain
that it had refused to
or
eight
Two LPNs and
thirty-five orderlies'.
Union,
argued
from 6:00 with the
but
that LPNs em-
day
on the
shift
work
orderlies
p.m.; two LPNs and seven ployed
to 2:00
at the Cedar Falls
did not
a.m.
night
the
shift from 2:00
work on
orderlies
appropriate
pur-
a unit
the
constitute
for
LPN and four
p.m.;
to 10:00
one
p.m.
bargaining
poses of collective
within the
night shift from
work on the late
orderlies
9(b)
meaning of
of the Act because the
§
a.m.
p.m. to 6:00
10:00
supervisors.
1988,
2,
filed a
the Union
On November
17, 1990,
May
On
the General Counsel
represent
seeking to be certified to
petition
Summary Judgment with
filed a Motion for
6,
December
Waverly’s seven LPNs. On
21, 1990,
the Board. On
the Board
Acting Re-
1988, following
hearing, the
transferring
proceeding
issued an order
the
that
of the Board found
gional Director2
1990,
to the Board. On
the Board
June
“supervisors” as defined
the LPNs were
granted the
Motion for
General Counsel’s
petition.
the Act and dismissed
under
Judgment
Summary
and ordered
Acting Regional Director found
The
refusing
to cease and desist from
to bar-
supervisors
because
gain
298 N.L.R.B. No.
with
Union.
only supervisory personnel
are the
(June 29, 1990).
slip op. at 3-4
weekends, assign
during evenings and on
representation
Board concluded that all
is-
work,
orderlies’
excuse ab-
and evaluate
litigated in
sues were or could have been
sences,
Acting
approve
overtime.
prior representation hearing.
at 2.
Id.
Regional
noted that if the LPNs
Director
July
Waverly petitioned this
On
an un-
there would be
for review of the Board’s decision.
Court
(the
Di-
realistic ratio of two
Nursing)
rector and Assistant
challenge
In order to
certification
department employees
forty-six nursing
for
unit,
bargaining
employer
of a collective
an
med-aides,
(the
LPNs, four
and thir-
seven
recognize
must refuse to
a union after its
orderlies).
ty-five
certification. Board certifications under
to the
appealed
The Union
this decision
9(c)of the Act are not reviewable as final
that “the
Board. The Board concluded
Board, see,
orders of the
AFL v.
e.g.,
supervisory authori-
LPNs do not
401, 404-07,
308 U.S.
60 S.Ct.
ty”
Acting Regional Di-
and reversed the
301-03,
(1940);
person employed supervisor” as a from the The Board found that the Assistant Di- definition of the term “employee.” The LPNs, Nursing, rector of not the scheduled Act require employers does not to assigned the nurse aides. 297 N.L. which represent supervisors. unions R.B. slip op. No. at 6. The Board Act, 29 164. U.S.C. Section acknowledged “day-to-day” di- LPNs’ 152(11), aides, U.S.C. defines rection of the but found such author- as ity primarily pa- “routine” related to law, compelled purpose any shall be to deem individuals de- either national or local, supervisors employees relating bargaining.
fined herein as to collective investigation Authority pendent by or review other exercised care. tient Center, supervisors.” Passavant not Health manner is merely routine in a 9, 1987). (July No. 62 1049; 284 N.L.R.B. Harmon, F.2d at authority. sory Co., 453 F.2d Printing Sayers NLRB that if the also contends LPNs Cir.1971)(employees who had supervisors super- then the ratio of are not “responsibly di- “assign” and authority to employees is too low. If the visors to not because rect” others supervisors, LPNs are not there would be judg- not exercise they did supervisor approximately one to ratio of merely carried out the ment, instead but employees. super- If fifteen management). policies of visors, super- of one there would be ratio employees. four visor Res-Care, Circuit re- the Seventh arguably The Board found both ratios to be found LPNs decision which a Board viewed and therefore did not use the unreasonable (2)(11). Section supervisors under in determining as a factor the LPNs’ ratio despite the the decision enforced The court op. slip status. 297 N.L.R.B. No. at 12. assign nurse aides. 705 authority to LPNs’ noted that The court F.2d at notes, if As the LPNs are not authority “tight within exercise “unsuper- then the their “discretion *5 and that constraints” majority during the of its hours of vised” pro- a in accordance with exercised However, operation. both the Director and [was] as to the best interests judgment fessional Nursing Assistant Director of are on call managerial than a patient rather Moreover, of the twenty-four day. hours the employer’s best inter- judgment as supervisory requires test for status the ests.” independent judgment; exercise of the merely record indicates that LPNs follow emergency re- Similarly, if sickness procedures they routine while are “in Waverly facility may LPN at the quires, an charge.” by following the call- replacement call in a However, Waverly standing has a in list. supports proposition Res the Care list, the call-in policy LPNs to use necessarily supervisors the LPNs are not procedure does not following this involve frequently highest they even if the independent judgment. If a of an exercise present facility. ranking employees at the found, employee cannot ei- replacement Care, stated, In Res the Seventh Circuit Nursing of or the Assist- ther the Director night “[although evening on the shifts Nursing of is called. The ant Director practical high- the licensed nurses are the carrying policies out simply the ranking employees premises, on the this est management. of ipso does not facto make them at sors.” 705 F.2d 1467. matters, disciplinary the regard
In
although
Board found that
Finally,
court’s
in Wright
this
decision
authority to issue written and oral
the
Hospital v.
631 “possessed] authority nurses the same decision does do a job credible of applying department stipulated heads who statutory relevant factors to the facts supervisors.” to be N.L.R.B. 1319 of this case and of attempting to harmonize (1981) case, however, In the many at least prior of its decisions on this Board found that the LPNs exercised no issue. judgment in exercising their This is obviously a close case. Since the authority. 297 N.L.R.B. slip op. No. Board has engaged in neither unsupported Moreover, holding in Wright con- fact-finding nor arbitrary decision-making, the validity representation cerned of the agree I with those reviewing courts that pro-union election in activities of have concluded that the Board’s order in a charge nurses, of the some not the Board’s close case of this nature should be en charge determination that the nurses were forced. See Res-Care, N.L.R.B. v. Inc., supervisors. Cir.1983); Miseri carefully We have reviewed the record Hosp. Center, cordia Medical 623 F.2d at and conclude that substantial evidence 818; N.L.R.B. v. St. Hosp., Francis ports the Board’s determination that (9th Cir.1979). Solely for this LPNs employed facility are reason, I concur. 2(11) within of the Act. Accordingly, deny petition we for re-
view and enforce the order of the Board.
LOKEN, Judge, concurring.
Bearing in purpose mind the underlying exception in
Act, as well as the statutory definition of 2(11), in I believe that the America, UNITED Appellee, STATES of Acting Regional
Board’s Director was on ground sound in concluding that the LPNs MITHUN, Appellant. Todd Andrew in “supervisors.” issue this case are As Sixth succinctly deny- stated No. 90-5430MN. ing enforcement of comparable order N.L.R.B. v. Light United Beacon Chris- States Appeals, Court of Home, tian Eighth Circuit. (6th Cir.1987): Submitted Feb. If the LPN’s were not then Decided 15 to 30 nursing personnel frequently providing patient care with no on- supervision. site This is not a reasonable
conclusion for a nursing home, well-run
and there is no substantial evidence to
support it.
The Board’s stated reasons for rejecting Acting Regional Director’s decision in case, though effectively marshalled in
Judge opinion, McMillian’s do persuade
me seem to reflect a pattern of incon
sistent Board decisions on this issue that See,
several courts have e.g., noted. N.L. Mary’s Home,
R.B. v. St. (4th Cir.1982); Hosp. Misericordia N.L.R.B.,
Medical Center v. (2d Cir.1980). Still, 21n. the Board’s