Grancare, Inc., Petitioner/cross-Respondent v. National Labor Relations Board, Respondent/cross-Petitioner , 137 F.3d 372 ( 1998 )

SUHRHEINRICH, J., delivered the opinion of the court. JONES, J. (pp. 376-377), delivered a separate concurring opinion. MOORE, J. (pp. 377-386), delivered a separate opinion concurring in the judgment.'

OPINION

SUHRHEINRICH, Circuit Judge.

Petitioner-Cross-Respondent Graneare, Inc. d/b/a Heritage Manor (“Heritage”) petitions for review of a final decision of the National Labor Relations Board (“NLRB”) concluding that Heritage’s registered and licensed practical nurses, collectively known as “charge nurses” are not supervisors within the meaning of Section 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11) (NLRA or Act). The NLRB has cross-petitioned for enforcement of its order that Heritage violated section 8(a)(5), ■ 29 U.S.C. § 158(a)(1), by refusing to recognize and bargain with Local 332, of the International Brotherhood of Teamsters, as the representatives of Heritage’s charge nurses. For the following reasons, we REVERSE order of the Board and therefore DENY the Board’s cross-application for enforcement of its order.

I.

Heritage is a 180-bed, long-term nursing care facility located in Flint, Michigan. The facility consists of three floors, each with'60 beds. The Nursing Department consists of one Executive Director of Nurses (DON), who is responsible for coordinating and managing the Nursing Department and directing its policies and procedures to provide appropriate resident care. Heritage has two Assistant Directors of Nurses (ADON). In addition, Heritage has two Staff Development/In-Serviee Directors in its Nursing Department. This position is responsible for orienting and training new and current staff. The Staff Development Directors dp not directly supervise charge nurses or nurses’ aides.

The Nursing Department also has thirty-three RNs and LPNs, known as charge nurses, and approximately 100 certified educated nurses’ aides. The charge nurses report to the DON and ADONs. The aides report to the charge nurses.

The Nursing Department operates twenty-four hours a day, seven days a week, on a three-shift schedule. Each floor is staffed by roughly two or three charge nurses and six or seven nurses’ aides. During the night shift, there is typically one charge nurse and three nurses’ aides assigned to each floor. In all, approximately eighteen nurses and forty-seven nurses’ aides staff the facility on any given day.

The DON and one ADON generally work 9:00 a.m. to 5:00 p.m. Monday through Friday. The other ADON comes in early. Thus, one or more of these persons may be present in the facility between 6 a.m. and 5 p.m., Mon-Fri. During their off-hours, the DON and the ADONs are available by phone. One is also designated as the “on-call manager” and is available by beeper. Charge nurses are the highest authority in the facility from approximately 6:00 p.m. to 6:00 a.m., Monday through Friday. On weekends, management is present for four to six hours per day. At all other times on the weekends, the charge nurses are the highest authority in the building.

The Charge Nurse job description describes a charge nurse’s “essential duties and responsibilities,” as including supervising nursing and ancillary personnel, implementing nursing care plans, participating in progressive discipline and orientation, monitoring and assisting in the evaluation of nursing staff performance, assigning staff based on facility needs, approving overtime, sending employees home as necessary to maintain satisfactory staffing ratios, maintaining rules and regulations of the facility, and instructing nursing staff in the provision of nursing care. DON Kim Runci testified that, except for interviewing, hiring, and calling outside agencies to fill in for absent nurses’ aides, the job description accurately depicts the charge nurse’s duties. Additionally, charge nurses assign lunch and rest breaks, approve changes in lunch and break times, assign and reassign patient-and nonpatient care duties, act as the facility supervisor in the absence of other facility management, and adjust nurses’ aides’ grievances at the first step under the collective bargaining agreement between the aides and Heritage.

On April 25, 1995, the Union filed a representation petition with the NLRB seeking to represent Heritage’s charge nurses. On June 22, 1995, the Regional Director for NLRB Region 19 issued a Decision and Order finding that Heritage’s charge nurses were not supervisors, and directed an election. Heritage sought review of that decision by the NLRB, which the NLRB ultimately denied. An election was held and the Union was certified as the exclusive bargaining representative. Heritage, however, refused to recognize and bargain with the Union. The Union filed an unfair labor practice charge with the NLRB, and on June 5, 1996, the NLRB issued a Decision and Order finding that Heritage had unlawfully- refused to bargain. Heritage seeks review of the Board’s rulings.

H.

The Act defines a supervisor to.be an individual who, having authority on behalf of the employer, uses independent judgment to, among other things, assign and direct work, discipline, adjust grievances, or effectively recommend such action. 29 U.S.C. § 152(H).¹ Thus, an individual is a supervisor within the meaning of § 2(11) if she (1) has the authority to engage in one of the twelve enumerated activities; (2) uses independent judgment in exercising that authority; and (3) holds that authority in the “interest of the employer.” NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 573-74, 114 S.Ct. 1778, 1780-81, 128 L.Ed.2d 586 (1994); Manor West, Inc. v. NLRB, 60 F.3d 1195, 1197 (6th Cir.1995); Health Care & Retirement Corp. of America v. NLRB, 987 F.2d 1256, 1261 (6th Cir.1993); aff'd, 511 U.S. 571, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994).

Any individual who meets the statutory test is a supervisor; members of the health care field are not excepted. Beverly California Corp. v. NLRB, 970 F.2d 1548, 1556 (6th Cir.1992). Further, because “[p]atient care is the business of a nursing home, [] 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.” Health Care, 511 U.S. at 577, 114 S.Ct. at 1782. “It also bears emphasis that § 2(11) uses the disjunctive ‘or’ in listing the numerous indicia of supervisory status.” Beverly California Corp., 970 F.2d at 1552.

The Board has the burden of proving that employees are not supervisors. NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076, 1080 (6th Cir.1987); Health Care, 987 F.2d at 1260 (following Beacon Light). In concluding whether substantial evidence supports the Board’s decision, the court must consider the entire record. Hickman Harbor Serv. v. NLRB, 739 F.2d 214, 219 (6th Cir.1984). Evidence which the Board has ignored but is directly relevant cannot be disregarded. Kurz-Kasch, Inc. v. NLRB, 865 F.2d 757, 761 (6th Cir.1989).

Our review of the record reveals that the Board impermissibly shifted the burden of proof to the employer, (see Decision and Direction of Election, dated June 22, 1995, p. 21, J.A. 28), ignored substantial evidence, and misconstrued our precedent. For example, the NLRB found that Heritage’s charge nurses have the authority to assign aides to specific patients and specific tasks, but found that “the record evidence with respect to the nurses’ authority to assign CENAs [nurses’ aides] is minimal.” (Id. at 21). This finding ignores language in the nurses’ aides’ collective bargaining agreement that provides that a charge nurse “has the authority and responsibility to direct [the aide’s] work activities.” (J.A. 110). It also ignores the Charge Nurse job description, which states that a charge nurse’s “essential duties and responsibilities” include “supervis[ing] nursing and ancillary personnel in implementation of nursing care plans as assigned,” (Id. 128), and “assigning] staff based on uniVfacility needs.” (Id. at 129). Furthermore, various witnesses testified that charge nurses assign and reassign aides to particular patients and tasks, as well as authorize lunch and rest breaks. (Id. 321-26; 990-91). Although the Regional Director did not address it, the employer introduced evidence that charge nurses have the authority to delay or cancel an aide’s break if necessary. (Id. 1128-29; 403-04; 612-13).

The Regional Director concluded that this evidence “does not establish any real independent judgment.” This conclusion is clearly contrary to Sixth Circuit precedent. See, e.g., Caremore, Inc. v. NLRB, 129 F.3d 365 (6th Cir.1997) (holding that LPNs. were supervisors where Regional Director found that LPNs provided direction to aides involving “aspects of patient care” and record also demonstrated that LPNs are substantially involved in evaluation and discipline of aides); Manor West, 60 F.3d at 1195 (finding that substantial evidence did not support the Board’s conclusion that LPNs were not “supervisors” where employer offered evidence that nurses had authority to direct care of patients); Health Care, 987 F.2d 1256 (holding that LPNs and RNs were “supervisors” where it was clear that duties of staff nurse clearly required both assigning aides to specific tasks and directing the operation of the aides, as well as the entire nursing home, when DON or assistant was not present); Beverly California Corp., 970 F.2d 1548 (holding that RNs were supervisors within meaning of § 2(11) where they were responsible for making sure staff employees provided adequate patient care, and had authority to transfer LPN’s and nurses’ aides between wings); Beacon Light, 825 F.2d 1076 (holding that. LPNs and RNs were supervisors although LPNs did not have power to discharge or promote, LPNs’ recommendations could lead to formal discipline action, LPNs instructed nurses’ aides and were their team leaders, assigned patients to nurses’ aides, and were responsible for their work).

The Regional Director also made findings, at least tacitly, that charge nurses have authority to discipline, but discounted all the proof. For example,, the Regional Director found that:

[o]f the 21 documents offered as evidence that RNs and LPNs have statutory authority to discipline, only four disciplinary forms and one consultation report reflect that a written warning was recommended or given. Three of the four disciplinary forms were written by one LPN, and all four concern the same employee, without any evidence whatever that any progressive discipline having been imposed. Of the Employer’s approximately 32 RNs and LPNs, the evidence does not establish that more than three have given or recommended written warnings.

(J.A. 26). The Regional Director concluded that “[a]t best, the exhibits represent isolated incidents of supervision insufficient to elevate the nurses as a whole to supervisory level.” (J.A. 26).

This view is directly contrary to Sixth Circuit precedent. “It is the existence of disciplinary authority that counts under the statute, and not the frequency of its exercise.” Beverly California Corp., 970 F.2d at 1550 n. 3 (citation omitted); Caremore, 129 F.3d at 369-70. There is ample proof that charge nurses had written authority to discipline. See id. (noting that'RN supervisors had written authority to impose discipline and were under instructions to exercise that authority if necessary). Both the Standards of Conduct and the Charge Nurse job description provide for it. The Regional Director’s own findings verify that the charge nurses exercised this authority.

Although the Regional Director also brushed it aside, the fact that charge nurses are the most senior ranking authority in the Nursing Department for twelve hours per day dining the weekdays, and for most of the weekend is significant. Under the Board’s view, there was no on-site supervisory personnel almost half of the time. “This is not a reasonable conclusion for a well-run nursing home____ ” Beacon Light, 825 F.2d at 1080; Caremore, 129 F.3d at 370-71.

Because § 2(11) requires only one of the twelve listed activities be satisfied, and the other elements of the statute are clearly present, the foregoing easily establishes that Heritage’s charge nurses are “supervisors.” Thus, Heritage’s petition for review is GRANTED; the NLRB’s cross-petition for enforcement is DENIED; and the order of the NLRB is VACATED.

1 . 29 U.S.C. § 152(11) provides:

(11) The term "supervisor” means 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 merely routine of clerical nature, but requires the use of independent judgment.