National Labor Relations Board v. Konig , 79 F.3d 354 ( 1996 )

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Precedential or Non-Precedential: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 N.L.R.B. 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 N.L.R.B. 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 N.L.R.B. 491, 493-94 (1993); Beverly
Enters., Alabama Inc., 304 N.L.R.B. 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 N.L.R.B. 486, 490 (1989) (same); The Ohio Masonic
Home, 295 N.L.R.B. 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