VIP Health Services, Inc. v. National Labor Relations Board , 164 F.3d 644 ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 1998 Decided January 12, 1999
No. 97-1608
VIP Health Services, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
Local 2, Federation of Nurses,
United Federation of Teachers,
American Federation of Teachers, AFL-CIO,
Intervenor
On Petition for Review and Cross-Application for
Enforcement of an Order of the National
Labor Relations Board
David Lew argued the cause for petitioner. With him on
the briefs was Gary Rothman.
David Habenstreit, Supervisory Attorney, National Labor
Relations Board, argued the cause for respondent. With him
on the brief were Linda Sher, Associate General Counsel,
John D. Burgoyne, Acting Deputy Associate General Counsel,
and Vincent J. Falvo, Jr., Attorney. Meredith L. Jason,
Attorney, entered an appearance.
Mitchell H. Rubinstein argued the cause for intervenor.
With him on the brief was James R. Sandner.
Before: Wald, Silberman and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: Local 2, Federation of Nurses, Unit-
ed Federation of Teachers, American Federation of Teachers,
AFL-CIO ("union") filed a petition with the National Labor
Relations Board ("NLRB" or "Board") in 1993 seeking to be
certified as the exclusive bargaining representative of nurses
employed in New York by VIP Health Services, Inc. ("VIP").
The proposed bargaining unit included field nurses who are
assigned by VIP to adult care facilities operated by other
entities and to private residences. VIP objected to the unit,
arguing that the field nurses are supervisors and therefore
ineligible for inclusion. After a hearing, the hearing officer
determined that the field nurses are not supervisors. The
NLRB Regional Director affirmed in a detailed opinion and
ordered an election. VIP's requests for review and reconsid-
eration were denied by the Board and the union won the
election. The union was certified on November 27, 1996.
Less than five months later, the General Counsel of the
NLRB charged VIP with refusing to bargain with the union
in violation of sections 8(a)(1) and (5) of the National Labor
Relations Act ("NLRA"), 29 U.S.C. s 158(a)(1) and (5). VIP
defended by challenging the validity of the underlying repre-
sentation proceeding on the ground that the field nurses are
supervisors.1 The Board granted the General Counsel's sum-
__________
1 Because certification of a bargaining unit by the Board in a
representation proceeding is not an "order" subject to judicial
mary judgment motion, finding no cause to reexamine the
decision made in the earlier representation proceeding. The
Board then ordered VIP to cease and desist from refusing to
bargain with the union and to take related actions. VIP
petitions for review of the Board's decision and the Board
cross-petitions for enforcement of its order. Because the
Board, in upholding its Regional Director, properly deter-
mined that the field nurses are not supervisors, we deny
VIP's petition and grant the Board's cross-petition for en-
forcement.
I. Background
VIP employs thirty to forty field nurses; the precise
number fluctuates. Almost all of these nurses work in a
dozen or so adult care facilities that are not operated by VIP.
A few care for patients in private homes. The residents of
the facilities and the patients served in their own homes are
elderly or mentally disturbed, but require less care than
people who live in nursing homes. Overall, VIP field nurses
provide care to approximately 800 patients. The tasks per-
formed by the nurses include giving insulin and other injec-
tions, dressing wounds, and taking vital signs.
Some of the 800 patients also receive care requiring less
skill from home health aides ("HHAs"). An individual HHA
typically works with three to five patients a day, spending two
or three hours with each. The group of patients seen by an
HHA is called a "cluster." HHAs help patients in the
activities of daily life, such as moving about, bathing, dress-
ing, eating, getting to the dining room for meals, and getting
to appointments. VIP employs as many as twenty HHAs,
but purchases the services of at least another hundred HHAs
from other agencies.2
__________
review, see American Fed'n of Labor v. NLRB, 308 U.S. 401 (1940),
review of certification may occur in a later unfair labor practice
proceeding.
2 Most of the HHAs that VIP places but does not directly employ
come from its parent agency, VIP Health Care Services.
The witnesses presented by VIP and the union in the
representation proceeding painted dramatically different pic-
tures of the relationship between field nurses and HHAs.
Testifying on behalf of VIP, Marilyn Pierre and Rena Dern3
asserted that the nurses play the lead role in "reclustering."
That is the term used at VIP to describe changes in the
group of patients assigned to an HHA. Reclustering is
necessitated by, for example, the arrival of a new patient who
needs the help of an HHA or the temporary departure of a
patient for the hospital. According to Pierre and Dern, by
controlling the reclustering process the nurses not only de-
cide what work each HHA is to perform but also how much
money she receives because HHAs are paid on an hourly
basis. By contrast, four field nurses--Denise Drury, Janice
Derose, Yolaine Mesidor, and Marie (Nellie) St. Surin--
testified for the union and stated that they have no control
over reclustering or otherwise assigning work to HHAs.
Rather, the nurses testified that they do no more than notify
staff at VIP's office of the need for schedule changes in order
to ensure complete patient coverage or, at one facility, leave
the job of arranging the changes to a senior HHA at the
facility.
Pierre also testified that field nurses play a substantial role
in disciplining and discharging HHAs. She explained that
when a nurse is not satisfied with an HHA she may tell Rena
Dern in the VIP office that the HHA should be removed from
the facility, and Dern will comply. Pierre further stated that
eighty to one hundred HHAs have been removed from their
jobs in this manner. When HHA behavior does not merit
dismissal, such as reporting to work late, the nurses counsel
HHAs and may write them up, according to Pierre. The field
nurses, on the other hand, denied having any such power or
responsibility. As with reclustering, they testified that the
most they do is bring a problem to the attention of VIP office
__________
3 Pierre and Dern are VIP employees who work in VIP's office,
not at locations where patient care is rendered. Pierre is the
administrator/director of patient services. Dern is the administra-
tive supervisor.
staff, and that they neither recommend nor direct that a
particular action be taken with respect to the HHA involved.
Pierre further testified that when HHAs have problems
with their peer HHAs or with other employees of the adult
care facility, or want to work more hours, they go to the field
nurse who is empowered to address such issues. All four
nurses testified that they lack the authority to adjust HHAs'
grievances.
The virtually complete disagreement expressed by the wit-
nesses presented by VIP and the union over the role played
by nurses in reclustering, disciplining, discharging, and han-
dling grievances is absent in testimony about the role they
play in creating "plans of care" for each patient. There
appeared to be general agreement that the nurses are in-
volved in writing two types of plans--nurse plans of care and
HHA plans of care. The latter details the responsibilities of
an HHA with regard to a particular patient, but the former
does not appear to be limited to describing the responsibili-
ties of a nurse. According to Pierre--VIP's witness--the
nurse plan of care also describes services that an HHA will
provide.4 The nurse plan of care evidently lists the HHA's
responsibilities at a more generalized level than the HHA
plan of care, however.
The nurse plan of care is written in light of a doctor's prior
assessment of and orders for the patient, and must be ap-
proved by the doctor. The plan is drafted by the field nurse
and an intake nurse who works at VIP's office, although the
relative control exercised by each over the contents of a plan
is disputed; Pierre testified that the intake nurse performs
an essentially clerical function, relying on the field nurse's
determinations, while Derose and Drury (two of the field
nurses) testified that the intake nurse makes final decisions
about what to include in the plan sent to the doctor for
__________
4 An HHA is only assigned to a patient in the first place upon
doctor approval, evidently a necessity for insurance coverage.
VIP's contention in its brief that the field nurses determine whether
a patient is given an HHA, see Pet'r. Br. at 19, is not even
supported by the testimony of its own witnesses.
approval. An HHA plan of care is created by filling in a one-
page form which lists tasks that an HHA might be required
to perform or assist the patient with.5 Next to each task is
space for "instructions" and "frequency of task," as well as a
column for prioritizing the tasks. Like a nurse plan of care,
an HHA plan of care is shaped by an assessment and orders
from the patient's doctor. It also reflects what is contained
in the doctor-approved nurse plan of care with respect to an
HHA and may be based in part on a field nurse's observa-
tions of the patient. Whether a field nurse writes an HHA
plan of care alone or in conjunction with an intake coordinator
is not clearly answered in the testimony. One field nurse did
testify, however, that HHA plans of care are reviewed by
nursing coordinators, although she could not speak to the
frequency of such review.
The field nurses also complete "home health aide superviso-
ry reports" for each patient/HHA combination every two
weeks.6 This involves checking "satisfactory" or "not satis-
factory" for categories like "reports for work as scheduled,"
"adequate verbal and written communication skills," "follows
client care plan," competency in shampooing the patient, and
compliance with VIP's dress code.7 Categories are left blank
when they are not relevant to the care given to the particular
patient, and even sometimes when they are relevant. The
nurses testified that some of the categories require no more
than observation of the patient at the time the form is
__________
5 The form lists: personal care (specify), exercise, ambula-
tion/transfers, stairclimbing, accompany patient to, diet (specify),
feeding, meal preparation, housekeeping, shopping, laundering, eye
care, dressing (wound care), catheter care (specify), ostomy care
(specify), enema (specify), temperature, pulse, respiration record in
home, assist with medications, other (specify). Joint Appendix
("J.A.") at 928.
6 Completion of the form is evidently an insurance requirement.
7 Other columns on the form with the headings "corrective action
taken" and "remarks" appear to be rarely if ever used.
A prior version of the form used "exceeded," "met," "not met,"
and "not observed."
completed. For example, if the patient appears to be clean,
the HHA's performance is listed as satisfactory for the rele-
vant categories. The nurses also explained that they do not
continually monitor HHAs with respect to categories that
would seemingly require such scrutiny, instead basing their
decision on what they perceive at the moment when they are
completing the form. Although the record contains over one
hundred completed reports, not a single "not satisfactory" or
"not met" rating appears in them.
Finally, two of the nurses--Mesidor and St. Surin--testi-
fied that when they encounter a patient in need of certain
care such as a shampoo, they tell the assigned HHA to
perform that task. Both stated that this does not occur often.
Another nurse, Drury, also testified that she sometimes di-
rects HHAs to complete specific tasks related to a patient's
needs. Similarly, Drury stated that she sometimes demon-
strates to an HHA how to perform a task after noticing that
it is not being done properly.
II. Discussion
The NLRA defines supervisors as:
[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, 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 au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
29 U.S.C. s 152(11). For an employee to qualify as a super-
visor, then, three requirements must be met: the employee
must possess at least one of the twelve types of authority set
out in the statute, the exercise of that authority must require
the use of independent judgment, and the authority must be
held in the employer's interest. See Beverly Enterprises-
Pennsylvania, Inc. v. NLRB, 129 F.3d 1269, 1270 (D.C. Cir.
1997) (per curiam) (citing NLRB v. Health Care & Retire-
ment Corp., 511 U.S. 571, 573-74 (1994)). "Independent
judgment," contrasted by the statute with authority of a
"routine or clerical nature," is an ambiguous phrase that the
Board must be given "ample room to apply." Health Care &
Retirement Corp., 511 U.S. at 579.
VIP argues that the Board erred in determining that the
field nurses are not supervisors under the NLRA. If VIP is
correct, the Board approved an inappropriate bargaining unit
because supervisors are excluded from the NLRA's collective
bargaining protections. See 29 U.S.C. s 152(3); Beverly
Enterprises v. NLRB, 148 F.3d 1042, 1045 (8th Cir. 1998).
A.Assigning, Discharging, Disciplining, and Adjusting
Grievances
VIP argues that the evidence presented at the hearing on
the appropriateness of the bargaining unit demonstrates that
field nurses assign HHAs work through the reclustering
process, that field nurses effectively recommend discharge
and discipline of HHAs by directing staff at VIP's office to
take such actions, and that field nurses adjust HHAs' griev-
ances. VIP is correct that there is much evidence to support
these claims, but much directly contradicts them. The Re-
gional Director, whose opinion we are functionally reviewing,
resolved these contradictions in favor of the union, i.e., find-
ing that the field nurses do not have the authority to assign,
discharge, or discipline HHAs, or to adjust their grievances.
These factual findings need only be supported by substan-
tial evidence. See 29 U.S.C. s 160(e); Allegheny Ludlum
Corp. v. NLRB, 104 F.3d 1354, 1358 (D.C. Cir. 1997). They
are. Several of the nurses offered extensive and consistent
testimony to the effect that they do not possess any authority
in these areas. With respect to relaying problems with
HHAs to the VIP office, which the nurses acknowledged they
sometimes do, mere reporting is insufficient to establish that
the nurses effectively recommend discharge or discipline.8
__________
8 VIP's contention that one of the nurses admitted, on three
occasions, that she has gone beyond simply reporting problems and
has recommended action that VIP then took is based on a misread-
ing of the record. Drury told the VIP office about an HHA who
See NLRB v. Dickerson-Chapman, Inc., 964 F.2d 493, 500
(5th Cir. 1992).
VIP's citation to Passavant Retirement & Health Center v.
NLRB, 149 F.3d 243 (3d Cir. 1998), does not rescue its case.
In Passavant, the court found that the authority of nurses to
send aides home for flagrant violations, such as abusing a
patient, constituted authority to discipline involving the use of
independent judgment. See id. at 249. Evidence that VIP's
field nurses can unilaterally discipline HHAs is contradicted
by the nurses' testimony. Because the finding that field
nurses do not discipline HHAs is supported by substantial
evidence, we do not reach the question considered in Passa-
vant, for which VIP evidently cites the case, of whether such
authority involves independent judgment.
B.Responsibly Directing Other Employees
VIP also argues that the field nurses responsibly direct the
work of the HHAs. VIP offers three bases for this conclu-
sion--the field nurses formulate the HHA plans of care, they
tell HHAs to perform certain tasks and show them how to do
so correctly when improvement is needed, and they complete
bi-weekly evaluation forms. The Regional Director found
that any direction given by the nurses does not involve
independent judgment, the second of the three requirements
in the statutory definition of supervisor. The record supports
this conclusion.
With respect to the HHA plans of care, nurses are involved
in writing them, but substantial evidence demonstrates that
__________
took a patient to Waldbaum's when the patient needed to be at the
adult care facility in order to receive insulin. Contrary to VIP's
claim, Drury testified that she could not remember whether she told
the office that the HHA should be removed from the patient.
Similarly, Drury testified that she once reported to the office that
she had been threatened by an HHA. The HHA was removed from
the facility, but Drury did not testify about any role other than
reporting the incident. Drury also testified about informing the
office that an HHA had allowed a disoriented patient to wander the
streets around the facility alone. Again, Drury did not recall what
if anything she said about removing the HHA.
they act within a framework established by the patient's
doctor. Further, one of the nurses testified that the plans
are reviewed by the nursing coordinators. Even though to
some degree a field nurse's own judgment is relevant in the
creation of a plan, substantial evidence shows that the judg-
ment of others figures much more prominently, rendering the
nurse's role primarily a routine one. See Beverly Enterpris-
es-Pennsylvania, Inc., 129 F.3d at 1270 ("If an individual's
discretion with respect to ... statutory factors is tightly
constrained, then her exercise of that authority is 'routine'
and does not involve 'independent judgment.' ").
With respect to assigning and demonstrating specific tasks
to the HHAs, we have previously held that this basic task is
also routine. In Beverly, we considered a situation in which a
nurse might tell a nursing assistant to "monitor[ ] vital signs
more frequently or clean[ ] up a mess." Id. We upheld the
Board's determination that such direction of an assistant was
"merely routine." Id. The types of discrete tasks that the
field nurses have acknowledged they sometimes do are com-
parable. As the Regional Director noted, "it only takes
common sense if a patient is not properly cleaned or dressed
to then instruct the aide to rectify the situation." J.A. at 33.
The Regional Director properly called the nurses' role in this
area routine.
With respect to the bi-weekly evaluation forms, the field
nurses testified, essentially, that they do not take great care
in filling them out.9 They explained that they do not base
their ratings on regular monitoring of the HHA over the two
week period. In lieu of a real inquiry into the HHA's work
and skills, the nurses explained that they make a quick,
impressionistic judgment at the moment when they are filling
out the form. We think it within the Board's discretion in
interpreting the phrase "independent judgment" to treat it as
excluding such unstudied appraisals. The lack of any "not
satisfactory" or "not met" ratings on the many forms in the
__________
9 Evaluating employees, though not mentioned in the statutory
definition of supervisor, would be relevant to directing the work of
those employees insofar as it affected their future tasks.
record also suggests that completion of the forms is perceived
as a routine duty.
Mid-America Care Found. v. NLRB, 148 F.3d 638 (6th Cir.
1998), does not convince us otherwise. In that case the fact
that the nurses completed evaluation forms for assistants was
an important reason for the court's rejection of the Board's
finding that the nurses were not supervisors, see id. at 641, but filling out the forms there required much greater preci-
sion; assistants were rated in forty-one categories on a four-
point scale. See id. at 640. Nurses were also required to
recommend dismissal, continuation, or other action with re-
spect to the assistant on the form, and three disciplinary
recommendations resulted in automatic termination. See id.
No evidence shows that the forms completed by VIP field
nurses here play any such significant role, as the attitude of
the nurses toward their completion convincingly indicated.
C.Field Nurses As the Only On-Site Supervisors of the
HHAs
VIP argues that the field nurses must be supervisors
because, if they are not, VIP is left without any on-site
supervision of the HHAs. This argument is without basis in
the statutory definition of supervisors. Congress did not
direct that the NLRA be interpreted such that there must be
"supervisors" in every workplace. We agree with the Re-
gional Director, who stated that "[i]f the persons whom the
Employer contends are in charge do not possess Section 2(11)
supervisory authority, then the absence of anyone else with
such authority does not then automatically confer it upon
these nurses." J.A. at 35. See NLRB v. KDFW-TV, Inc.,
790 F.2d 1273, 1279 (5th Cir. 1986) (highest ranking employ-
ees on duty are not supervisors during hours when superviso-
ry employees are not present). There is no necessary nexus
between the NLRA definition of a supervisor and personnel
management principles or perceptions.10
__________
10 The Board offers one additional reason why the field nurses are
not supervisors. It argues that a finding that the nurses are
supervisors will result in an unrealistic supervisor/HHA ratio.
There are only twenty or so HHAs who are directly employed by
III. Conclusion
There was substantial evidence that the field nurses are not
supervisors under the NLRA; we therefore deny VIP's peti-
tion for review and grant the Board's cross-petition for
enforcement of its order.
So ordered.
__________
VIP but there are thirty to forty field nurses, and "[t]he ratio of
supervisors to non-supervisory employees is often significant in
determining whether an employee has supervisory status." Beverly
Enterprises, 148 F.3d at 1047. Because we uphold the determina-
tion that the field nurses are not supervisors on the other grounds
discussed above, we do not reach this argument.