                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-11-1996

Nat'l Lab. Rel. Bd. v. Konig
Precedential or Non-Precedential:

Docket 95-3085




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT




                    Nos. 95-3085 and 95-3129




NATIONAL LABOR RELATIONS BOARD
                                          Petitioner

                                 v.

                 MICHAEL KONIG t/a NURSING HOME
                       CENTER AT VINELAND
                                        Respondent/
                                        Cross-Petitioner



          * COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO
                                       Intervenor-Petitioner

             *(Granted as per Court's 4/7/95 Order)




           On Application for Enforcement of an Order
              of the National Labor Relations Board



                    Argued October 30, 1995

                   BEFORE: NYGAARD, ALITO and
                     SAROKIN, Circuit Judges



                 (Opinion filed March 11, 1996)


                                      Linda J. Dreeben
                                      John D. Burgoyne (argued)
                                      Aileen A. Armstrong
                                      Angela Washington
                                      National Labor Relations


                                 1
                                         Board
                                    1099 14th St., NW
                                    Suite 8101
                                    Washington, DC 20570

                                         Attorneys for Petitioner


                                    Steven P. Weissman
                                    Weissman & Mintz
                                    One Executive Drive, Suite 200
                                    Somerset, NJ 08873

                                         Attorney for Intervenor


                                    David Lew (argued)
                                    Peckar & Abramson, P.C.
                                    70 Grand Avenue
                                    River Edge, NJ 07661

                                         Attorney for Respondent/
                                         Cross-Petitioner




                       OPINION OF THE COURT



SAROKIN, Circuit Judge:


     This case comes before this court on an application of the

National Labor Relations Board ("NLRB" or "the Board") to enforce

an Order against Michael Konig t/a Nursing Center at Vineland

("the Home") to cease and desist from engaging in unfair labor

practices.   The Board had issued a Decision and Order concluding

that the Home had violated sections 8(a)(1), (3), (4) and (5) of

the National Labor Relations Act ("NLRA"), 29 U.S.C. §§158(a)(1),

(3), (4) & (5), by committing unfair labor practices against


                                2
several licensed practical nurses ("LPNs") engaged in union

activities.   The Home contests this Decision and Order on the

ground that an intervening Supreme Court case, NLRB v. Health

Care & Retirement Corp. of America,       U.S.    , 114 S. Ct. 1778

(1994), overturned Board precedent, rendering LPNs supervisory

employees who are not covered by the NLRA.       Because the Home

waived this contention by failing to raise it in the prior

proceedings, we deny review and grant enforcement.



                                I.

     The Home is a long-term nursing home in Vineland, New

Jersey.   In June 1992, the Communications Workers of America,

Local 1040, AFL-CIO ("CWA" or "the union") began seeking to

organize the LPNs working at the Home.0    Several LPNs became

interested in the union.   The union filed a petition for

representation of the Home's LPNs on June 8, 1992.

     On July 8, 1992, the Board held a representation hearing to

address three questions:   (1) whether the LPNs were already

represented by another union; (2) whether the unit was

appropriately limited to LPNs; and (3) whether three of the LPNs

were "charge nurses" and thus supervisors within the meaning of

0
The following brief summary of the facts in this case is based
on the findings of the Board in its Decision and Order issued in
Michael Konig t/a Nursing Center at Vineland, 314 NLRB 947
(1994). The Home has not raised any objections with respect to
the Board's factual findings, nor did it object to the Board's
conclusion that these facts constituted unfair labor practices
under the Act. They have thus waived any objection as to the
Board's findings, see NLRB v. Browning-Ferris Industries, Etc.,
691 F.2d 1117, 1125 (3d Cir. 1982), and we will accept them as
true.

                                3
section 2(11) of the NLRA, 29 U.S.C. § 152(11).    The Regional

Director found in favor of the union on all three issues and

issued a Decision and Direction of Election on September 17,

1992.   The election was conducted, and on October 27, 1992 the

union was certified as the exclusive bargaining representative of

the LPNs.

     Throughout this period, particularly following the CWA's

filing of its representation petition and around the time of the

representation hearing, the LPNs' unionization efforts met with

serious impediments by the Home management.   The LPNs were

threatened, harassed, and some eventually were terminated as a

result of their union activities.

     The union filed unfair labor practice charges against the

Home, alleging that the Home had violated sections 8(a)(1), (3),

(4) and (5) of the NLRA in July, August and September of 1992.

The case was heard during March and May of 1993.    On August 31,

1994, the NLRB issued a Decision and Order.   Michael Konig t/a

Nursing Center at Vineland, 314 NLRB 947 (1994).   The Board found

that the Home had discouraged employees from engaging in union

activities and had discharged three LPNS and reduced the pay of a

fourth because of their union activities and had thus engaged in

unfair labor practices in violation of the NLRA.    The Board

accordingly ordered the Home to reinstate the three who had been

terminated to their former positions or substantially similar

positions and to make them whole for losses incurred, and to

restore pay to the one whose salary had been reduced, including

backpay.    The Order also required the Home to bargain with the


                                 4
CWA as the exclusive representative of the employees in the LPN

unit on terms and conditions of employment.   It is this Decision

and Order that the Board seeks to enforce before this Court.

     Meanwhile, on May 23, 1994, after the case had been heard

but before the Board had issued its opinion, the Supreme Court

issued its decision in Health Care & Retirement Corp., in which

it held that nurses who engage in patient care are acting "in the

interest of the employer" and therefore may be supervisors within

the meaning of the NLRA.   NLRB v. Health Care & Retirement Corp.,

114 S. Ct. 1778 (1994).0    Based on this Supreme Court decision,

the Home has since refused to bargain with the CWA on the ground

that the LPNs are supervisors not protected by the NLRA.

     In an action separate from the instant one, the union filed

another unfair labor practice charge for refusal to bargain with

the LPNs in July 1994, and a hearing was held on this issue in

February 1995.   Prodded by the decision in Health Care &

Retirement Corp. the Home presented evidence that the LPNs were

supervisors within the meaning of the NLRA and therefore

unprotected by the Act.    On May 12, 1995, the Administrative Law

Judge ("ALJ") issued a Decision and Order in Case No. 4-CA-22933,

concluding that the Home was barred from raising the objection to

the representation unit on the basis that the LPNs were


0
As explained, infra, the Supreme Court did not alter the Board's
statutory interpretation of the other two prongs of the
definition of supervisor, i.e. that (1) the individual engages in
at least one of twelve designated supervisory activities; and (2)
that the individual exercises independent judgment in performing
these activities. See Health Care & Retirement Corp., 114 S.Ct.
at 1780.


                                 5
supervisors at this unfair labor practices hearing when they had

not raised this issue at the original representation proceeding,

and that, in any event, the evidence introduced at the original

representation hearing and the findings from that hearing did not

support the contention that the LPNs were supervisors, even under

Health Care & Retirement Corp.        The Home was thus ordered to

bargain with the union as the representative of the certified LPN

unit.     The Board later affirmed the ALJ's decision, accepting its

rulings, findings and conclusions and explicitly noting that

there was "no showing that the LPNs . . . exercise independent

judgment in performing" assignments and that Health Care &

Retirement Corp. was therefore inapplicable.      Michael Konig t/a

Nursing Center at Vineland, 318 NLRB No. 64 at 1 n.1 (1995). This

court summarily denied the Home's petition to review this

decision and granted the NLRB's cross-petition for enforcement on

December 14, 1995.     Konig v. NLRB, No. 95-3507 (December 14,

1995) (order).



                                 II.

        The NLRB had jurisdiction to hear the unfair labor practice

proceeding under section 10(a) of the NLRA, 29 U.S.C. § 160(a).

This court has jurisdiction over the Board's appeal for

enforcement of the Order under section 10(e) of the NLRA, 29

U.S.C. § 160(e), and over the Home's petition for review of the

Order under section 10(f).     29 U.S.C. § 160(f).

        We will uphold the Board's findings of fact if they are

supported by substantial evidence on the record considered as a


                                  6
whole.    Universal Camera Corp. v. NLRB, 340 U.S. 474, 485-87

(1951).   Our review of questions of law is plenary.   Tubari Ltd.

v. NLRB, 959 F.2d 451, 453 (3d Cir. 1992).



                                III.

     The NLRA does not provide protection for individuals who are

supervisors within the meaning of the Act. See 29 U.S.C. §152(3);

see also Waverly-Cedar Falls Health Care Center v. NLRB, 933 F.2d

626, 629 (8th Cir. 1991) ("By excluding 'supervisors' from the

definition of 'employee,' § 2(3) of the Act . . . excludes

supervisors from protection under the Act.").   Section 2(11) of

the NLRA defines "supervisor" as follows:
     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) (emphasis added).   An individual is a

supervisor within the meaning of the statute, then, if she (1)

has the authority to engage in one of the twelve listed

activities; (2) exercises that authority with "the use of

independent judgment;" and (3) holds the authority "in the

interest of the employer."    Health Care & Retirement Corp., 114
S. Ct. at 1780.

     Prior to Health Care & Retirement Corp., the Board

consistently had held that "'a nurse's direction of less skilled

employees, in the exercise of professional judgment incidental to


                                 7
the treatment of patients, is not authority exercised "in the

interest of the employer."'"   Id. (citation omitted).    See, e.g.,

Northcrest Nursing Home, 313 NLRB 491, 493-94 (1993); Beverly

Enters., Alabama Inc., 304 NLRB 861, 864 (1991) ("[W]e further

find that assignment and direction of nurses aides' work by LPNs

is routine and primarily in connection with patient care and does

not establish that the LPNs are supervisors."); Phelps Community

Medical Center, 295 NLRB 486, 490 (1989) (same); The Ohio Masonic

Home, 295 NLRB 390, 395 (1989) (LPNs not supervisors because

their direction of aides' work was done in "connection with

patient care and did not go beyond into 'personnel authority

which more directly promote the interests of the employer and

which is not motivated by patient care needs.'") (citation

omitted).

     The Supreme Court overturned the Board's statutory

interpretation in its opinion in Health Care & Retirement Corp,

114 S. Ct. 1778 (1994).   There, the Court concluded that

"[p]atient care is the business of a nursing home, and it follows

that attending to the needs of the nursing home patients, who are

the employer's customers, is in the interest of the employer."

Id. at 1782.   It thus found that four LPNs who performed some of

the twelve activities listed in the statute in the interest of

patient care necessarily did so "in the interest of the employer"

and were therefore supervisors under the Act.   Id. at 1781, 1785.

                               A.

     The Home argues that in light of this recent decision, this

court should deny enforcement of the Board's Order because it


                                8
renders the LPNs in the instant case supervisors and thus not

entitled to the protection of the Act.   Initially, we emphasize

that Health Care & Retirement Corp. did not rule that all LPNs

are necessarily supervisors; rather it ruled that all LPNs who

perform one of the twelve tasks listed in section 2(11),

exercising their own independent judgment and in the interest of

patient care, are supervisors.   Id.

     The Home claims that the record from the hearing before the

administrative law judge in Michael Konig t/a Nursing Center at

Vineland, Case No. 4-CA-22933, the action filed by the union in

July of 1994 for the Home's refusal to bargain, demonstrates that

the LPNs are supervisors under Health Care & Retirement Corp.       We

first note that case No. 4-CA-22933 was not consolidated with the

instant case and is thus not presently before this panel on

appeal.0   Therefore, we decline to consider the record from that

case in this appeal.   In any event, the Board in case No. 4-CA-

22933 ruled that the record failed to demonstrate that the LPNs

were supervisors, even in light of Health Care & Retirement

Corp.,0 and this court has affirmed the Board.0   Thus, even were
0
 On October 3, 1995, this court denied a motion to consolidate
the instant appeal with the appeal from the Board's decision in
case No. 4-CA-22933. Case No. 4-CA-22933 was then appealed
separately from the instant matter, and a panel of this court
denied review and granted enforcement. See Konig v. NLRB, No.
95-3507 (December 14, 1995) (order).
0
 In affirming the ALJ, the Board specifically noted that any
evidence in the record suggesting that LPNs assigned and directed
nurses' aides indicated that such actions were not taken with the
exercise of independent judgment and therefore Health Care &
Retirement Corp. was not applicable. Konig, 318 NLRB No. 64 at 1
n.1.
0
 We note that, because the Board's decision in case No. 4-CA-
22933 was based on alternative grounds (i.e. that the Home waived

                                 9
we to consider the record, it seems doubtful that it would

support the Home's contentions.

     Accordingly, there is nothing in the record before us to

support the Home's contention that the LPNs are supervisors under

Health Care & Retirement Corp.     However, because we decide,

infra, that the Home may not object to the Board's Order on the

ground that the LPNs are supervisors at this juncture in the

proceeding, it will not be necessary to remand this case to

determine whether the LPNs are supervisors.

                                  B.

     In the original proceeding before the Board, the Home failed

to raise its current contention that the Act did not apply to the

LPNs because they were supervisors.0   Section 10(e) of the NLRA

bars an appellate court from reviewing an issue that was not

its opportunity to raise this issue and that the record did not
demonstrate that the LPNS were supervisors), this court's denial
of review and grant of enforcement in that action does not
preclude the Home from litigating the supervisory status of the
LPNs in this action. The Board's findings regarding the
supervisory status of the LPNs was not essential to the court's
judgment. See Restatement (Second) of Judgments, § 27 cmt. h
(1982) ("If issues are determined but the judgment is not
dependent upon the determinations, relitigation of those issues
in a subsequent action between the parties is not precluded.").
0
 During the hearing regarding the union's petition for
representation, the Home did raise the claim that certain LPNs
were supervisors within the meaning of § 2(11) because they are
charge
nurses. First, we note that this objection was proffered in a
different proceeding from the one at issue in this appeal for
review and therefore has no bearing on the instant action.
Second, even had this objection been raised in the instant
action, it was only in reference to these three LPNs as charge
nurses. The objection did not apply to the remaining LPNs in the
bargaining unit. In fact, by claiming supervisory status
specifically as to these three employees, the Home implicitly
accepted that the other LPNs were not supervisors.

                                  10
raised in the Board proceeding:    "No objection that has not been

urged before the Board . . . shall be considered by the court,

unless the failure or neglect to urge such exception shall be

excused because of extraordinary circumstances."   29 U.S.C.

§160(e).   The Supreme Court has construed this rule strictly.

See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66

(1982).    In Woelke & Romero Framing, the Board had addressed an

issue sua sponte which had not been raised or argued by either

party.    When the petitioner sought review of the court of

appeals' ruling on that issue before the Supreme Court, the Court

held that under section 10(e), the court of appeals had no

jurisdiction to consider the question because the petitioner had

not raised it before the Board.    The Court specifically noted

that the petitioner "could have objected to the Board's decision

in a petition for reconsideration or rehearing" and its "failure

to do so prevents consideration of the question by the courts."

Id. at 666.

     The Home argues, however, that the Supreme Court's decision

in Health Care & Retirement Corp. constitutes an "extraordinary

circumstance," and that, thus, by the terms of section 10(e) of

the NLRA, its failure to raise the issue of the LPNs' supervisory

status before the Board should be excused in this case.

     The Supreme Court has held on at least one occasion that

intervening Supreme Court case law may be considered an

"extraordinary circumstance" under section 10(e), allowing a

reviewing court to decide an issue that was not raised originally




                                  11
before the Board.   In Sure-Tan, Inc. v. NLRB, the petitioners

sought to raise for the first time a First Amendment argument

suggested by a Supreme Court decision, Bill Johnson's Restaurant,

Inc. v. NLRB, 461 U.S. 731 (1983), which had been issued six

months after the petition for certiorari in Sure-Tan had been

filed. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896 & n.7 (1984).

The Court held that it could address this argument even though

petitioners had not raised it before the Board as required by

section 10(e) because the intervening and substantial change in

controlling law occasioned by Bill Johnson's Restaurant qualified

as an extraordinary circumstance.    Sure-Tan, 467 U.S. at 896 n.7.

Thus, it might appear that under Sure-Tan, the Home may raise the

issue of the LPNs' supervisory status in light of the Health Care

& Retirement Corp. decision.

     We find, however, that the facts of the instant matter are

substantially different from those in Sure-Tan, rendering that

holding inapplicable to the instant case.   As noted above, the

decision in Bill Johnson's Restaurant was issued six months after

the petition for certiorari in Sure-Tan was filed.     The

petitioner in that case thus could not have raised the issue

before the Board or even the court of appeals because Bill

Johnson's Restaurant had not yet been decided.   Here, by

contrast, the Supreme Court's decision in Health Care &

Retirement Corp. was issued on May 24, 1994, three months before

the Board's August 31, 1994 decision in this matter.    Thus, the

Home easily could have informed the Board of the Health Care &

Retirement Corp. decision and raised the issue of the LPNs'


                                12
supervisory status before the Board during those three months.

Indeed, as made clear in Woelke & Romero Framing, the Home had

the obligation to raise the argument itself because, even had the

Board addressed the issue sua sponte, any reviewing court would

not have had jurisdiction due to the parties' failure to argue

the point before the Board.   Woelke & Romero Framing, 456 U.S. at

665-66.   The Home could even have filed a petition for

reconsideration as permitted by 29 CFR § 102.48(d)(1) following

the Board's decision.0   Yet, it failed to do so.

      Unlike in Sure-Tan, then, where the petitioner could not
have raised the argument suggested by intervening precedent until

after the petition for certiorari was granted, there were no

extraordinary circumstances here that would have prevented the

Home from raising the issue of the LPNs' supervisory status until

now. The Home's failure to raise the argument, and certainly its

failure to file a petition for reconsideration, deprives this

court of jurisdiction to address this question under section

10(e) of the NLRA.   See Woelke & Romero Framing, 456 U.S. at 665-

66.

                                 C.




0
The text of 29 CFR § 102.48(d)(1) reads, in relevant part, as
follows:
     A party to a proceeding before the Board may, because
     of extraordinary circumstances, move for
     reconsideration, . . . after the Board decision or
     order. A motion for reconsideration shall state with
     particularity the material error claimed and with
     respect to any finding of material fact shall specify
     the page of the record relied on.

                                 13
      We now briefly address the question of whether, assuming the

LPNs at issue in the current action are supervisory personnel,

the Board had jurisdiction to issue an order compelling

reinstatement and backpay for supervisors.    We address this issue

despite our conclusion, supra, that the Home has waived its

objection because the Home claims that a challenge regarding lack

of jurisdiction can be raised at any time.   Petitioner's Brief at

27.

      The Home's argument fails to recognize the distinction

between jurisdiction in the sense of the overall authority of the

Board to hear the case under the NLRA and the jurisdiction of the

Board to issue an order based upon a factual determination made

by the Board.    "While the Board's statutory jurisdiction may be

raised at any time, the facts upon which the Board determines it

has jurisdiction may be challenged only upon timely exception."

NLRB v. Peyton Fritton Stores, Inc., 336 F.2d 769, 770 (10th Cir.

1964) (per curiam); see also Polynesian Cultural Center, Inc. v.

NLRB, 582 F.2d 467, 472 (9th Cir. 1978).

      The question of whether the Board had the jurisdiction to

order reinstatement and backpay to the LPNs rests on the factual

determination by the Board regarding their supervisory status.

The Home cannot raise this type of jurisdictional objection for

the first time before this court absent extraordinary

circumstances.

      Indeed, in NLRB v. International Health Care, Inc., 898 F.2d

501, 506-507 (6th Cir. 1990), the Sixth Circuit arrived at the

same conclusion when addressing an issue virtually identical to


                                 14
the one currently before us.   There, as here, the court was

called upon to decide whether the employer could raise an

objection for the first time that the Board lacked jurisdiction

to order the employer to bargain with a unit of LPNs because the

LPNs were supervisors under the reasoning of the Sixth Circuit's

case NLRB v. Beacon Light, 825 F.2d 1076 (6th Cir. 1987).      The

court concluded that this sort of jurisdictional challenge based

on factual determinations could not be raised for the first time

before the court of appeals.   International Health Care, 898 F.2d

at 506-07 (citing NLRB v. Ferraro's Bakery, Inc., 353 F.2d 366

(6th Cir. 1965) (holding that the Board had jurisdiction to

determine whether certain workers were "employees" within the

NLRA and failure of respondent to file timely exception to

factual determination was not an exceptional circumstance)).

     We accept the reasoning of the Sixth Circuit, as well as the

Ninth and Tenth Circuits, and conclude that the Home cannot raise

for the first time before this court an objection to the Board's

jurisdiction to award backpay and reinstatement to LPNs on the

theory that they are supervisors.0

     We further mention here, as an aside, that even if the LPNs

are in fact supervisors, the Board may still have jurisdiction to

order their reinstatement and backpay.   First, "it is settled law

that, notwithstanding the statutory exclusion of supervisors from

the Act's protection . . . an employer's discharge of a

supervisor may give rise to an 8(a) (1) violation."   Kenrich

0
Judge Alito does not join the portion of Part III of this
opinion that comes after this footnote.


                                15
Petrochemicals, Inc. v. NLRB, 893 F.2d 1468, 1475 (3d Cir.),

enforced on other grounds, 907 F.2d 400 (3d Cir. 1990) (in banc)

(citations omitted).    Specifically, the Board has the authority

"to order the reinstatement of a supervisor whose firing resulted

not from her own pro-union conduct, but from the employer's

efforts to thwart the exercise of section 7 rights by protected

rank-and-file employees."   Kenrich Petrochemicals, 907 F.2d at

406.

       We recognize that, assuming arguendo that the LPNs are

supervisors under Health Care & Retirement Corp., this case does

not involve the discharge of supervisors for purposes of

thwarting the exercise of rights of non-supervisory employees.

Rather, the LPNs in this case were discharged for engaging in

pro-union activity to protect their own rights.    This court has

held that in instances where a supervisor is discharged for

seeking to invoke the Board's protection on her own behalf, the

Board lacks jurisdiction to grant reinstatement and backpay.      Hi-

Craft Clothing Co. v. NLRB, 660 F.2d 910, 917-18 (3d Cir. 1981).

       Nonetheless, we cannot ignore the reality that, at the time

that the LPNs were engaged in pro-union activity and the Home

actively discouraged it, the Home knew that under the Board's

legal precedent in force at the time, the LPNs were employees not

supervisors.    It would be ironic to deny enforcement of the

Board's Order merely because the Home's egregious violations of

the Act were perpetrated against individuals who subsequently

were determined to be supervisors and thus not protected.       Such a

conclusion would violate the spirit of the Act.    Thus, while


                                 16
there is no precedent on this exact question, there are strong

policy arguments that militate in favor of finding that the Board

has jurisdiction to order reinstatement and backpay of

supervisors in this type of situation.    These policy reasons,

considered in tandem with the well-settled rule that the Board

has jurisdiction to reinstate supervisors in instances where

their discharge was accomplished to thwart the exercise of rights

of protected employees, could support a conclusion that the Board

has jurisdiction to order reinstatement and backpay to

supervisors under these circumstances.    See, e.g., Oil City Brass

Works v. NLRB, 357 F.2d 466, 471 (5th Cir. 1966) (ordering

reinstatement of supervisor discharged for testifying before the

Board on behalf of the union so as to ensure that "the overriding

purpose of the Act [is not] frustrated.").

     The Home engaged in deliberate conduct intended to

discourage, prevent and punish union activity by those whom it

believed were entitled to engage in such activity.    If subsequent

events fortuitously rendered those employees not subject to the

protection of the Act, the intentional wrongful conduct of their

employers should not be without remedy.    However, because of our

decision that the Home is barred from challenging the LPNs

supervisory status in this appeal, we do not decide this issue.



                              IV.

     For the foregoing reasons, we will deny review of the

Board's Decision and grant enforcement of the Board's Order.




                               17
