Beverly Ent PA Inc v. NLRB

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed September 19, 1997 Published November 18, 1997
No. 96-1406
Beverly Enterprises--Pennsylvania, Inc.,
d/b/a Grandview Health Care Center
Petitioner
v.
National Labor Relations Board,
Respondent
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Thomas Walsh argued the cause for petitioner, with whom
James D. Williams, Jr. was on the briefs.
William M. Bernstein, Attorney, National Labor Relations
Board, argued the cause for respondent, with whom Linda R.
Sher, Associate General Counsel, and Aileen A. Armstrong,
Deputy Associate General Counsel, were on the brief.
BEFORE: Edwards, Chief Judge; Sentelle and
Randolph, Circuit Judges
J U D G M E N T
This cause came to be heard on a petition for review from
an order of the National Labor Relations Board ("Board")
and a cross-petition for enforcement, and was briefed and
argued by counsel. For the reasons stated in the accompany-
ing memorandum, it is
ORDERED and ADJUDGED that the petition for review
is denied and the cross-petition for enforcement is granted.
Per Curiam
M E M O R A N D U M
Under section 2(3) of the National Labor Relations Act,
"[t]he term 'employee'... shall not include ... any individual
employed as a supervisor...." 29 U.S.C. s 152(3) (1994).
Under section 2(11), a "supervisor" is defined as:
any 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) (1994). Under section 14(a), an employer
cannot be compelled to bargain about the working conditions
of supervisors. See 29 U.S.C. s 164(a) (1994).
In order to determine whether an individual is a supervisor,
there are three questions that must be answered. First, does
the employee have authority to engage in one of the 12 listed
activities in section 2(11)? Second, does the exercise of that
authority require "the use of independent judgment"? And,
third, does the employee hold the authority "in the interest of
the employer"? Only if all three questions are answered in
the affirmative is the employee a supervisor. See NLRB v.
Health Care & Retirement Corp., 511 U.S. 571, 573-74 (1994).
The Board has not clearly articulated a standard to distin-
guish between "routine" exercises of authority and those
requiring "independent judgment." However, this need not
detain us, for the question of independent judgment under
section 2(11) is one of the degree of discretion exercised with
respect to the statutory indicia of supervisory status. If an
individual's discretion with respect to assignment, discipline,
or the other statutory factors is tightly constrained, then her
exercise of that authority is "routine" and does not involve
"independent judgment." In this case, the matter in dispute
is easily resolved because the employer failed to show that
the Licensed Practical Nurses ("LPNs") at issue exercised
anything even resembling supervisory authority.
The record makes clear that the vast majority of the tasks
performed by both the LPNs and Certified Nursing Assis-
tants ("CNAs") at Grandview are the same from day to day.
The LPNs pass medication, perform treatments on patients,
stock the medical supply cart, complete paperwork and pa-
tient assessments, and accompany doctors on rounds; the
CNAs feed, walk, bathe and turn residents according to a
schedule, change them when they are wet, record vital signs,
and respond to residents' call lights. When special arrange-
ments are required (for example, when a patient's health
changes or an accident has occurred), LPNs are notified at
the beginning of their shift by the departing charge nurse.
The LPN then informs the CNAs of what has occurred and
what they must do to address the situation, for example,
monitoring vital signs more frequently or cleaning up a mess.
The LPNs have no authority to schedule CNAs on any given
day or week, nor do they decide whether and when CNAs will
be laid off. The scheduling of CNAs is done by the Assistant
Director of Nursing.
In short, the "assignment" and "direction" of employees by
LPNs is extremely limited. Basically, it consists of assigning
and monitoring the performance of discrete patient care
tasks, scheduling CNA breaks to minimize the disruption of
patient care, and sometimes assigning CNAs to particular
patient rooms within a wing. The Board's determination that
this "direction" and "assignment" of employees is merely
routine was supported by substantial evidence in the record.
As to "discipline," the record shows that the LPNs occa-
sionally offer evaluations of the CNAs who work on their
wings. There is no indication that any evaluation by a LPN
has ever resulted in an adverse personnel action. Because
wages and benefits of the CNAs are governed by a collective
bargaining agreement, positive evaluations do not result in
wage increases. It was undisputed that LPNs do not have
the authority to issue written warnings without higher ap-
proval and that they cannot terminate or suspend CNAs. In
light of these facts, the Board's determination that LPNs do
not actually discipline or effectively recommend discipline was
supported by substantial evidence.
In sum, the Board's determination that the LPNs at
Grandview are not supervisors within the meaning of section
2(11) of the NLRA was reasonable and supported by substan-
tial evidence. Accordingly, the petition for review is denied
and the Board's cross-petition for enforcement is granted.