                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-1998

Passavant Ret Health v. NLRB
Precedential or Non-Precedential:

Docket 97-3311,97-3380




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Recommended Citation
"Passavant Ret Health v. NLRB" (1998). 1998 Decisions. Paper 171.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/171


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Filed July 24, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-3311/3380

PASSAVANT RETIREMENT & HEALTH CENTER,

       Petitioner No. 97-3311

v.

NATIONAL LABOR RELATIONS BOARD,

       Respondent

NATIONAL LABOR RELATIONS BOARD,

       Petitioner No. 97-3380

v.

PASSAVANT RETIREMENT & HEALTH CENTER,

       Respondent

ON APPEAL FROM THE
NATIONAL LABOR RELATIONS BOARD
Case No. 6-CA-28468

Argued Thursday, February 12, 1998

Before: GREENBERG, NYGAARD, and McKEE,
Circuit Judges

(Opinion Filed: July 24, 1998)
       John E. Lyncheski (argued)
       Joseph M. McDermott
       Cohen & Grigsby
       625 Liberty Avenue
       2900 CNG Tower
       Pittsburgh, PA 15222-3115

       Counsel for Petitioner/
       Cross-Respondent Passavant
       Retirement & Health Center

       Aileen A. Armstrong
       Peter D. Winkler
       William M. Bernstein
        (argued on behalf of
        Aileen A. Armstrong)
       National Labor Relations Board
       1099 14th Street, N.W.
       Washington, DC 20570-0001

       Counsel for Respondent/
       Cross-Petitioner National Labor
       Relations Board

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Passavant Retirement & Health Center requests that we
review a decision of the National Labor Relations Board
which concluded that Passavant committed an unfair labor
practice violating section 8(a)(1) and (5) of the National
Labor Relations Act (NLRA), 29 U.S.C. S 158(a)(1), (5).
Passavant refused to bargain with the General Teamsters,
Chauffeurs, Warehousemen and Helpers Local Union No.
538 a/w International Brotherhood of Teamsters, AFL-CIO,
the certified exclusive bargaining representative of a group
of Licenced Practical Nurses,1 working as Passavant's
Charge Nurses. The Board cross-petitions us to enforce its
decision. Because we find that the LPN Charge Nurses are
_________________________________________________________________

1. Standard nomenclature for nurses is LPN, for Licensed Practical
Nurse, and RN, for Registered Nurse.

                               2
supervisors under the Act, we will grant Passavant's
Petition For Review, reverse the Board's ruling, and deny its
Petition to Enforce.

I.

Passavant is a continuing care retirement community,
providing various levels of nursing services in its skilled
nursing facility, separate assisted-living units, and
independent-living apartments and cottages. The facility is
under the overall supervision of an Executive Director.
Directly below the Executive Director in Passavant's
hierarchy is the Director of Clinical Services, who
supervises the Independent Living Supervisor and the
Director of Nursing. The Director of Nursing has an
Assistant Director of Nursing, and both oversee the House
Supervisors. Under the House Supervisors are the Head
Nurses, who in turn supervise the Charge Nurses. The
remainder of the nursing staff includes Nurses Aides and
Resident Assistants. In the Independent Living portion of
the facility, the Independent Living Supervisor directly
oversees the Charge Nurses and Resident Assistants
working there. Passavant's Nurses Aides and Resident
Assistants are already governed by a collective bargaining
agreement.

The Union originally petitioned for representation of all
Passavant's LPNs. LPNs work alongside Registered Nurses
as Charge Nurses and Head Nurses. To avoid confusion, it
is worth noting that "Head Nurse" and "Charge Nurse" are
job titles at Passavant, and the terms "Registered Nurse"
and "Licenced Practical Nurse" denote different degrees of
state licensure. The LPNs and RNs employed in those
positions perform the same duties, except that RNs are
qualified to perform a few more medical procedures such as
drawing blood, and inserting feeding tubes and intravenous
tubes. The Union amended its petition to exclude LPN Head
Nurses from the proposed bargaining unit, as it recognized
that they were supervisors, but did not amend the petition
to include RNs employed as Charge Nurses. Thus, the
bargaining unit here comprises only LPN Charge Nurses.

While the representation petition was before the NLRB
Regional Director, Passavant moved to transfer the

                                3
proceeding to the Board, which had scheduled oral
argument in two cases that also concerned the supervisory
status of nurses. See Nymed, Inc., d/b/a Ten Broeck
Commons, 320 N.L.R.B. 806 (1996); Providence Hosp., 320
N.L.R.B. 717 (1996). After finding that the LPN Charge
Nurses were not supervisors and were an appropriate
bargaining unit, the Regional Director denied Passavant's
Motion to Transfer and ordered a representation election.

Passavant appealed the Regional Director's decision to
the Board. Meanwhile, after an election, the ballots were
impounded pending the Board's ruling. The Board denied
Passavant's Request for Review, concluding that the
Regional Director's analysis followed the Supreme Court's
recent decision in NLRB v. Health Care & Retirement Corp.,
511 U.S. 571, 114 S. Ct. 1778 (1994), and Board precedent.

The impounded ballots were then counted, and the Union
won the election. The Regional Director certified the Union
as the exclusive bargaining representative of Passavant's
LPN Charge Nurses. The Union requested that Passavant
enter into collective bargaining, but Passavant refused. The
Union then filed unfair labor practice charges with the
Board, and the Board's General Counsel filed a Complaint
against Passavant. The Board granted the General
Counsel's Motion for Summary Judgment, finding that
Passavant had violated the NLRA by refusing to bargain.
Passavant Retirement and Health Center, 323 N.L.R.B. No.
99 (Apr. 30, 1997).

The underlying decision of the Regional Director as to the
representation election is before us pursuant to section 9(d)
of the NLRA, 29 U.S.C. S 159(d). We have jurisdiction over
this appeal under 29 U.S.C. S 160(e), (f). Our standard of
review is deferential. We will uphold the Board'sfindings of
fact if supported by substantial evidence in the record as a
whole:

       "The Board's findings are entitled to respect; but they
       must nonetheless be set aside when the record before
       a Court of Appeals clearly precludes the Board's
       decision from being justified by a fair estimate of the
       worth of the testimony of witnesses or its informed
       judgment on matters within its special competence or
       both."

                                4
Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71
S. Ct. 456, 466 (1951). We exercise plenary review over
questions of law and the Board's application of legal
precepts, Tubari, Ltd. v. NLRB, 959 F.2d 451, 453 (3d Cir.
1992); however, "[b]ecause of the Board's`special
competence' in the field of labor relations, its interpretation
of the Act is accorded special deference." Pattern Makers'
League of N. Am., AFL-CIO, 473 U.S. 95, 100, 105 S. Ct.
3064, 3068 (1985). Moreover, a determination of "[w]hether
a [bargaining] unit is appropriate involves a large measure
of informed discretion vested in the Board and is rarely to
be disturbed." St. Margaret Mem'l Hosp. v. NLRB, 991 F.2d
1146, 1152 (3d Cir. 1993).

II.

The Board concluded that by refusing to bargain with the
Union, Passavant engaged in an unfair labor practice in
violation of section 8(a)(1) and (5) of the National Labor
Relations Act:

       (a)   It shall be an unfair labor practice for an e mployer
       --

       (1) to interfere with, restrain, or coerce employees in
       the exercise of the rights guaranteed in section 157 of
       this title;

       ...

       (5) to refuse to bargain collectively with the
       representatives of his employees, subject to the
       provisions of section 159(a) of this title.

29 U.S.C. S 158(a)(1), (5) (emphasis added). "The term
`employee' shall include any employee ... but shall not
include ... any individual employed as a supervisor ...." 29
U.S.C. S 152(3). The meaning of the term supervisor, of
course, determines this case. In interpreting that term we
turn first to the statute itself, which defines a "supervisor"
as:

       "any individual having authority, in the interest of the
       employer, to hire, transfer, suspend, lay off, recall,
       promote, discharge, assign, reward, or discipline other

                                5
       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. S 152(11).

If the LPN Charge Nurses fall within the Act's definition
of supervisors, then it was not an unfair labor practice to
refuse to bargain with them. Only two of our past decisions
are relevant to this question. Neither, however, directly
resolves the issue. In Tressler Lutheran Home for Children
v. NLRB, 677 F.2d 302, 307 (3d Cir. 1982), after analyzing
a First Amendment challenge, we noted that factually
"[t]here is substantial evidence that [the LPNs] were not
supervisory personnel." In NLRB v. Konig, 79 F.3d 354 (3d
Cir. 1996), we did not reach the supervisory issue because
the employer had waived it by failing to raise it properly.

Historically, the Board utilized a test for the supervisory
status of nurses based on the "interests of the employer"
language of section 2(11). Beverly Enterprises--Ohio d/b/a
Northcrest Nursing Home, 313 N.L.R.B. 491, 493-94 (1993).
That test "examines whether the alleged supervisory
conduct of the charge nurses is the exercise of professional
judgment incidental to patient care or the exercise of
supervisory authority in the interest of the employer." Id. at
493.

The Supreme Court rejected this analysis in Health Care.
First, the Court set forth the proper framework for
determining the supervisory status of employees:

       "[T]he statute requires the resolution of three
       questions; and each must be answered in the
       affirmative if an employee is to be deemed a supervisor.
       First, does the employee have authority to engage in
       one of the 12 listed activities? Second, does the
       exercise of that authority require `the use of
       independent judgment'? Third, does the employee hold
       the authority `in the interest of the employer'?"

Health Care, 511 U.S. at 573-74, 114 S. Ct. at 1780. The
Court then reasoned that the Board's "patient care" test
was inconsistent with the NLRA:

                               6
       "[T]he Board has created a false dichotomy--in this
       case, a dichotomy between acts taken in connection
       with patient care and acts taken in the interest of the
       employer. That dichotomy makes no sense. Patient
       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. We thus see no basis for the
       Board's blanket assertion that the supervisory
       authority exercised in connection with patient care is
       somehow not in the interest of the employer."

511 U.S. at 577-78, 114 S. Ct. at 1782 (citation omitted).
Its conclusion does not render the interest of the employer
requirement meaningless, however. Rather, the statutory
"language ensures, for example, that union stewards who
adjust grievances are not considered supervisory employees
and deprived of the Act's protections." Id. at 579, 114 S. Ct.
at 1783.

Health Care was decided on very narrow grounds. It did
not interpret the meaning of "independent judgment" or
"responsibly to direct." Instead, the Court agreed with the
Board that those phrases "are ambiguous, so the Board
needs to be given ample room to apply them to different
categories of employees." Id. The Court also noted that "in
applying S 2(11) in other industries, the Board on occasion
reaches results reflecting a distinction between authority
arising from professional knowledge and authority
encompassing frontline management prerogatives." Id. at
583, 114 S. Ct. at 1785. Finally, the Court noted 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.' " Id.

Since Health Care, the Board has purported to analyze
the supervisory status of "charge nurses the same as all
other employee classifications and shall apply to them the
same test [it] applies to all other employees." Nymed, 320
N.L.R.B. at 810. In doing so, the Board has come to lean
heavily upon the question of nurses' independent judgment
to determine their supervisory status. See, e.g., id. ("[T]he
LPNs do not exercise independent judgment in making
assignments or directing the work of the [certified nursing

                               7
assistants]."); Providence Hosp., 320 N.L.R.B. at 727 ("As
with every supervisory indicium, assignment must be done
with independent judgment before it is considered to be
supervisory under Section 2(11).").

III.

We need not enumerate every duty performed by
Passavant's LPN Charge Nurses to conclude that they are
supervisors. Only one of the twelve statutory indicia need
be shown to support a finding of supervisory status. Health
Care, 511 U.S. at 573, 114 S. Ct. at 1780. Here, upon the
Board's own findings we can conclude that the LPN Charge
Nurses exhibit two of the twelve possible statutory criteria
of a supervisor, i.e., disciplinary authority and adjustment
of grievances, and that those attributes were exercised
using independent judgment, and in the interests of the
employer.

A. Supervisory Criteria

The Board concluded that Passavant's Charge Nurses
possessed the authority to send Aides home for flagrant
conduct violations, such as resident abuse. Earlier, in a
nonhealth care case, we determined that this type of
authority is clearly disciplinary in nature. See Warner Co. v.
NLRB, 365 F.2d 435, 439 (3d Cir. 1966) ("It can scarcely be
denied that sending a man home is discipline ...."). The
Board does not refer us to any authority that contradicts
this rule. The only Board precedent we have found is Dad's
Foods, Inc., 212 N.L.R.B. 500, 500-501 (1974) (The "limited
authority ... to discharge employees for intoxication on the
job and involvement in a fight ... is only a very restricted,
and sporadic kind of authority, limited to certain specific
predetermined kinds of misconduct. We do not believe that
`authority' so narrowly confined both in time and scope, if
it can be said to exist at all, is sufficient to establish
supervisory status."). Our jurisprudence, however, is to the
contrary and leads us to conclude, based on the Board's
own factual findings, that Passavant's LPN Charge Nurses
indeed possessed the authority to discipline.

                                8
The Board also opined that the "charge nurses can
resolve minor problems or `gripes' raised by[nurses aides]
and resident assistants concerning daily assignments,
break time[s] and the like," but were not involved in the
formal grievance procedure. "[I]t is the higher management
authority, rather than LPN charge nurses who are the
decision makers with respect to the responses and
positions taken by the Employer concerning these [formal]
grievances." Thus, the Board implicitly reasoned that
resolving "gripes" does not rise to the level of adjusting
grievances under the NLRA. This determination is
consistent with other Board decisions. See Ohio Masonic
Home, Inc., 295 N.L.R.B. 390, 394 (1989) ("[T]he fact that
the charge nurses sometimes rely on their personal
relationship with employees to resolve minor complaints
regarding workload, the scheduling of lunches and breaks,
or personality conflicts is insufficient to establish
supervisory status."); Beverly Enters. d/b/a Beverly Manor
Convalescent Ctrs., 275 N.L.R.B. 943, 946 (1985) ("The
LPNs rely on their personal relationship to the employees to
resolve problems informally. ... This facet is insufficient to
elevate them to supervisory status."); see also Illinois
Veterans Home at Anna, L.P., 323 N.L.R.B. No. 161, 156
L.R.R.M. 1105, 1107 (June 6, 1997) (requiring role in
formal grievance procedure).

Passavant argues that the adjustment of even minor
grievances is enough to support a finding of supervisory
authority, again citing our decision in Warner. We agree. In
Warner, a building supplies business employed drivers and
shippers, both supervised by a Yard Manager. The drivers
were already unionized, and the employer opposed the
shippers' efforts to establish a union. Testimony revealed
that the steward of the drivers' union often approached the
shippers to settle minor complaints. We rejected the
Board's conclusion that this activity did not amount to the
adjustment of grievances: "Those so-called `minor
complaints' are such disputes as fairly fall under the
provision of the drivers' contract, and which would amount
to `grievances' if reduced to writing." Warner, 365 F.2d at
438.

Here, the collective bargaining agreement between
Passavant and the Nurses Aides includes sections

                               9
pertaining to assignments, break times, and lunch breaks.
Additionally, its definition of "grievance" is very broad. Just
as in Warner, the LPN Charge Nurses at Passavant have the
authority to adjust the Aides' grievances and meet the
"supervisory" criterion.

B. Independent Judgment

Because we have concluded that Passavant's LPN Charge
Nurses exhibit two of the statutory criteria, we must now
decide whether they exercised that authority with
independent judgment. We conclude that they did.

The Board found that "the authority to suspend
employees for flagrant violations such as the abuse of
patients is not an indicium of supervisory authority
because no independent judgment is involved because the
offenses are obvious violations of the Employer's policies
and speak for themselves." (App. at 94a n.53 (citation
omitted).) This conclusion is also found in several other
Board decisions, including Northcrest:

       "[M]any cases indicate that charge nurses have
       authority to suspend employees for flagrant violations
       such as drunkenness or abuse of patients. The Board
       has not found this an indicium of supervisory status
       because no independent judgment is involved; the
       offenses are obvious violations of the employers'
       policies and speak for themselves. ... Accordingly, in
       making future supervisory determinations, we have
       decided that whether a ... suspension relates to patient
       care or not, it will be examined only as to ... in the case
       of suspension for flagrant violation, whether
       independent judgment was involved."

313 N.L.R.B. at 497-98; accord Manor West, Inc. 313
N.L.R.B. 956, 959 (1994). We, however, rejected a similar
argument in Warner, saying: "It can scarcely be denied that
sending a man home is discipline or that it does require the
use of independent judgment." 365 F.2d at 439. We see
little to commend a distinction based upon how flagrant the
violation happens to be. Here, this type of dismissal could
not be considered a routine or clerical function; it consists
of a Charge Nurse imposing her independent judgment

                                10
upon, and exercising her authority over a subordinate,
however subtle or flagrant the violation.

Similarly, we found in Warner that a supervisor exercises
independent judgment when resolving grievances:"What we
are concerned about here is the fact that the shippers do
resolve disputes over working conditions on behalf of their
employer, exercising independent judgment, and thus
`adjust grievances' for the purposes of the Act." Id. at 438.
Although we afford deference to the Board, we are not at
liberty to ignore our own jurisprudence, which dictates our
decision.

Finally, we are not creating a per se rule that LPNs are
supervisors. Each case requires a detailed factual
application of the twelve statutory criteria. Nor do we take
issue with any of the Regional Director's factual, findings.
We do, however, reject its application of the law to the
facts.

IV.

In sum, we conclude that the Charge Nurses' authority to
send Aides home for flagrant violations is an exercise of
discipline, and when they dispose of minor gripes, they are
adjusting grievances; and in both, they are exercising
independent judgment. Additionally, the parties do not
dispute that this authority is exercised in the interest of the
employer. Under these circumstances, we hold that the LPN
Charge Nurses are supervisors within the meaning of the
Act. Accordingly, we grant Passavant's Petition for Review,
reverse the Board's order, and deny its Petition to Enforce.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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