Beverly Ent MA Inc v. NLRB ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 14, 1999 Decided February 2, 1999
No. 97-1672
Beverly Enterprises--Massachusetts, Inc.,
d/b/a East Village Nursing & Rehabilitation 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
Howard M. Bloom argued the cause and filed the briefs for
petitioner.
Charles Donnelly, Supervisory Attorney, National Labor
Relations Board, argued the cause for respondent. With him
on the brief were Linda Sher, Associate General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel at
the time the brief was filed, and Christopher W. Young,
Attorney. John D. Burgoyne, Acting Deputy Associate Gen-
eral Counsel, entered an appearance.
Before: Wald, Silberman and Sentelle, Circuit Judges.
Opinion for the court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Employer East Village Nursing
& Rehabilitation Center ("East Village") petitions for review
of an order of the National Labor Relations Board ("NLRB"
or "Board") finding that it violated sections 8(a)(1) and (5) of
the National Labor Relations Act, 29 U.S.C. s 158(a)(1), (5).
East Village acknowledges that it refused to bargain with the
union certified as the representative of licensed practical
nurses ("LPNs") and registered nurses ("RNs") at the Cen-
ter, but argues that certification was improper because the
LPNs and RNs serve as "charge nurses" and are "supervi-
sors" within the meaning of the National Labor Relations Act.
East Village contends that the nurses are supervisors based
on their independent disciplinary authority over the certified
nursing assistants, yet cannot point to any instance in which
that purported independent authority was exercised. While
the exercise of supervisory authority is not always necessary
to establish that authority is possessed, the repeated failure
to exercise putative authority in circumstances where such
exercise would be appropriate can be evidence that the au-
thority is more imagined than real. Concluding that the
Board was justified in viewing this as such a case, we deny
the petition for review and grant the Board's cross-petition
for enforcement of its order.
I.
East Village Nursing & Rehabilitation Center has four
nursing units, each supervised by a Unit Coordinator who
reports to the Director of Nursing. Each unit is at all times
staffed with from one to three nurses (one or more of whom
serve as "charge nurses") and from one to six certified
nursing assistants ("CNAs"). The job description of a charge
nurse includes, inter alia, independently disciplining CNAs.
In numerous training seminars, charge nurses have been
instructed in how to exercise their independent discipline over
CNAs, and charge nurses have been criticized on their job
evaluations for failing to exercise their authority over CNAs.
In 1995, the Service Employees International Union, Local
285 ("Union"), petitioned to represent all RNs and LPNs
employed by East Village. East Village contended that repre-
sentation was impermissible because the nurses were statuto-
ry supervisors under s 2(11) of the National Labor Relations
Act. The Regional Director issued a decision in 1995 conclud-
ing that the nurses were not supervisors. An election was
held, in which there were insufficient votes in favor of repre-
sentation, and the Union was not certified.
In November 1996, the Union again petitioned to represent
the East Village nurses. East Village again objected that the
nurses were supervisors under the Act, emphasizing that all
RNs and LPNs sometimes act as "charge nurses," and as
such have independent authority to discipline certified nurs-
ing assistants. However, the Regional Director issued a
Decision and Direction of Election finding that the nurses
were not "supervisors." The Director acknowledged that the
nurses had been instructed that they have independent au-
thority to discipline. However, she noted that in none of the
seven recorded incidents of discipline of CNAs in the record
had the charge nurse exercised independent authority--in
practice, charge nurses always reported the incident to their
shift supervisor, unit coordinator, or the Director of Nursing
or Administrator. The Regional Director acknowledged East
Village's contention that it is the existence and not the
exercise of the power to discipline that is dispositive, but
concluded that the giving of "paper authority" which is not
exercised does not make an employee a supervisor. East
Village argued that the nurses' failure to exercise their disci-
plinary authority was due to fear of retaliation by the CNAs,
who had allegedly threatened them and vandalized their
vehicles. However, the Director found the nurses' motives
for refusing to follow East Village's directives to exercise
independent discipline "irrelevant," noting that "[t]he fact
remains that the charge nurses have not performed the
supervisory duties the Employer has attempted to confer on
them and the Employer has permitted this situation to go
on." Accordingly, the Director directed election. East Vil-
lage filed a Request for Review, which the Board denied, 2-1.
In the ensuing election, there were 22 votes in favor of
representation and 5 against. The Union was certified.
However, East Village refused to bargain with the Union,
leading to the present unfair labor charge alleging violations
of sections 8(a)(1) and (5) of the National Labor Relations
Act, 29 U.S.C. s 158(a)(1) and (5). After the unfair labor
practice charge was filed, East Village requested reconsidera-
tion of the Board's decision not to grant review of the
underlying issues. The NLRB denied East Village's recon-
sideration request in its final Decision and Order, issued on
September 30, 1997, which ordered East Village to cease and
desist from refusing to bargain with the Union. The employ-
er petitions for review, and the Board seeks enforcement of
its order.
II.
Under Section 2(11) of the Act, the definition of "supervi-
sor" includes an individual "having authority, in the interest
of the employer, to ... discipline other employees, ... 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). The Board's findings
regarding supervisory status are entitled to affirmance on
review if supported by substantial evidence on the record as a
whole. Passaic Daily News v. NLRB, 736 F.2d 1543, 1550
(D.C. Cir. 1984). The burden of proving supervisory status
rests upon the party asserting it. Beverly Enters.-Pennsyl-
vania, Inc. v. NLRB, 129 F.3d 1269 (D.C. Cir. 1997).
In construing Section 2(11), the Board has often noted that
it is the possession of supervisory authority and not its
exercise which is critical. See, e.g., Cherokee Heating and
Air Conditioning Co., 280 N.L.R.B. 399, 404 (1986); Sheet
Metal Workers Local 85, 273 N.L.R.B. 523, 526 (1984); Hook
Drugs, Inc., 191 N.L.R.B. 189, 191 (1971). At the same time,
" 'theoretical [or] paper power will not suffice' to make an
individual a supervisor." Food Store Employees Union, Lo-
cal 347 v. NLRB, 422 F.2d 685, 690 (D.C. Cir. 1969) (quoting
NLRB v. Security Guard Serv., 384 F.2d 143, 149 (5th Cir.
1967)). Accord NLRB v. Sayers Printing Co., 453 F.2d 810,
813-15 (8th Cir. 1971); Sunset Nursing Homes, Inc., 224
N.L.R.B. 1271, 1272 (1976) ("[T]he mere use of a title or the
giving of 'paper authority' which is not exercised does not
make an employee a supervisor."); Great Lakes Towing Co.,
168 N.L.R.B. 695, 700 (1967). Appellant urges that these two
principles are in such tension that their coexistence is unrea-
sonable and invites arbitrariness. We do not agree.
Supervisory status determinations carry important conse-
quences for the workers whose status is in question. Section
2(3) of the National Labor Relations Act, 29 U.S.C. s 152(3),
excludes from the definition of the term "employee" "any
individual employed as a supervisor," and, under Section 14(a)
of the Act, 29 U.S.C. s 164(a), an employer cannot be re-
quired to bargain about the working conditions of supervisors.
Thus when a worker is found to be a "supervisor" within the
meaning of the Act, she is excluded from the NLRB's collec-
tive bargaining protections. VIP Health Servs., Inc. v.
NLRB, No. 97-1608, 1999 WL 7831, *4 (D.C. Cir. Jan. 12,
1999). In light of this, the Board must guard against constru-
ing supervisory status too broadly to avoid unnecessarily
stripping workers of their organizational rights. See Wil-
liamson Piggly Wiggly v. NLRB, 827 F.2d 1098, 1100 (6th
Cir. 1987). Because of the serious consequences of an erro-
neous determination of supervisory status, particular caution
is warranted before concluding that a worker is a supervisor
despite the fact that the purported supervisory authority has
not been exercised. In some cases, such a conclusion is no
doubt appropriate. For example, in a given situation, the
failure to exercise supervisory authority may indicate only
that circumstances have not warranted such exercise. In
such a case, it may be quite possible to establish that real
authority is possessed, despite the lack of exercise. In fact, a
supervisor's lack of occasion to exercise authority may itself
indicate that that authority is very strong indeed. But absent
exercise, there must be other affirmative indications of au-
thority. Statements by management purporting to confer
authority do not alone suffice. See Chevron, U.S.A., Inc., 309
N.L.R.B. 59, 69 (1992) (no weight given "job descriptions that
attribute supervisory authority where there is no independent
evidence of its possession or exercise"); Advanced Mining
Group, 260 N.L.R.B. 486, 607 (1982) ("What is relevant is the
actual authority possessed and not the conclusory assertions
of a company's officials."). For example, in Oil, Chemical
and Atomic Workers Int'l Union, AFL-CIO v. NLRB, 445
F.2d 237 (D.C. Cir. 1971) ("OCAW"), this court upheld the
Board's conclusion that "senior operators" were not supervi-
sors, despite notices and postings by the employer that the
senior operators were to supervise the personnel on their
shift. We noted that "beyond the statements or directives
themselves, what the statute requires is evidence of actual
supervisory authority visibly translated into tangible exam-
ples demonstrating the existence of such authority." Id. at
243.
Such "tangible examples" evidencing authority are lacking
here. The record reveals that in multiple training sessions,
and on their performance evaluations, the nurses were en-
couraged by management to "independently discipline" certi-
fied nursing assistants. Yet the record also reveals seven
recorded occasions on which the nurses were involved in
disciplinary incidents involving certified nursing assistants.
On each of these seven occasions, the nurse involved reported
the incident to her supervisors rather than independently
disciplining the CNA. Accordingly, the Board concluded that
the employer's efforts to communicate to the nurses that they
possessed independent disciplinary authority did not "demon-
strate supervisory authority in the absence of evidence that
[the nurses] have any role in discipline beyond a reporting
function." Cf. Nymed, Inc., 320 N.L.R.B. 806, 812 (1996);
Passavant Health Ctr., 284 N.L.R.B. 887, 889 (1987).
Appellant argues, however, that the Board erred in failing
to adequately consider why the nurses did not exercise the
independent authority they purportedly possessed. In partic-
ular, appellant claims that the Board did not give sufficient
weight to the testimony of several nurses that they had been
threatened by CNAs, that their vehicles had been vandalized,
and that they feared retaliation by CNAs if they exercised
their disciplinary authority. But even if accurate, appellant's
explanation for the nurses' failure to exercise their authority
is beside the point. The Board was not charged with deter-
mining whether management desired the nurses to be super-
visors. Nor was it charged with determining whether the
nurses would have acted as supervisors but for some inter-
vening factor. The Board was required to decide whether the
nurses were supervisors, and the consistent failure to exercise
putative disciplinary authority despite the opportunity to do
so was certainly an appropriate factor for the Board to
consider in making its decision, whatever the reason for that
failure.
Indeed, under the approach appellant advocates, an em-
ployer could effectively disqualify employees from a bargain-
ing unit by granting them paper authority that they will be
too intimidated to exercise. This possibility would be particu-
larly troublesome where, as here, much of the evidence of
conferred authority is based on management actions which
occurred when a union campaign was in progress or on the
horizon. See OCAW, 445 F.2d at 173 ("In [an atmosphere
prior to any union campaign], untainted by live controversies
over the statutory status of any particular group of employ-
ees, management's statements conferring responsibilities and
allocating duties are likely to be more reliable than similar
statements made in the context of union conflict when di-
rectives are often addressed as much to the Board as they are
to the company's personnel.").
East Village may well have had every intention that the
charge nurses assume true supervisory roles. Nonetheless,
whatever their intention, East Village's management failed to
take adequate measures to ensure that the nurses' authority
would materialize in practice. Appellant acknowledges that it
did not "discipline" the nurses for not exercising their super-
visory authority, and did not "discipline" CNAs for retaliatory
conduct, but argues the lack of formal disciplinary procedures
in no way indicates that East Village acquiesced in the charge
nurses' failure to exercise their supervisory roles. Indeed,
East Village asserts that, far from permitting this situation, it
strove to correct it through unfavorable reviews on nurses'
evaluations and continuing encouragement to exercise disci-
plinary authority. Without purporting to suggest what would
have been an appropriate management strategy, we note only
that the strategy employed, however well-intentioned, was
ineffectual. The record does indicate that at training time
and evaluation time, East Village enthusiastically championed
the charge nurses' supervisory authority. But each time an
incident calling for discipline of a CNA occurred, the charge
nurses failed to act independently, and other supervisory and
management personnel consistently stepped in and handled
the discipline. Furthermore, even to the degree that it
suggests supervisory authority, but see VIP Health Servs.,
1999 WL 7831 at *6, there is no evidence that there are any
times when no shift or unit supervisors are present. In
short, East Village has apparently structured its nursing staff
in such a way that the charge nurses, for whatever reason, do
not meaningfully possess the purported authority they have
been given. If the nurses refuse to exercise the authority
management intended due to fear of the CNAs, it is a
problem for management to correct. It is not, however, a
reason for the Board or this court to impute to the nurses an
authority which they do not in fact possess. In the circum-
stances of this case, the Board was justified in concluding that
the nurses' authority is not an actuality, albeit undemonstrat-
ed, but is instead a speculative possibility, which absent
demonstration, is simply "paper power."
Conclusion
Because the Board's conclusion that the East Village nurs-
es are not supervisors was supported by substantial evidence
on the record as a whole, East Village's refusal to bargain
was unjustified. Accordingly, we deny appellant's petition for
review, and grant the Board's cross-petition for enforcement
of its order.