Schnurmacher Nursing Home, Petitioner-Cross-Respondent v. National Labor Relations Board, Respondent-Cross-Petitioner, 1199 National Health and Human Service Employees Union, Intervenor
Docket: 1999
Court: Court of Appeals for the Second Circuit; June 6, 2000; Federal Appellate Court
Schnurmacher Nursing Home (SNH) petitioned for review of a National Labor Relations Board (NLRB) order requiring it to negotiate with the 1199 National Health and Human Service Employees Union on behalf of two employee bargaining units. The court determined that fifteen "charge nurses" at SNH are statutory supervisors under Section 2(11) of the Labor Management Relations Act, contradicting the NLRB's finding that they were not. This misclassification led to their improper inclusion in the bargaining units. As a result, the court denied enforcement of the NLRB's order concerning the professional unit, as the outcome of the election for that unit was uncertain with the charge nurses' votes counted. However, the court upheld enforcement regarding the residual unit, excluding the charge nurses from it. The nursing home operates a skilled facility with a structured hierarchy, including an Administrator, a Director of Nursing, Nurse Managers, and Charge Nurses, who oversee patient care on each floor and are supported by certified nurse assistants.
A Charge Nurse (CN), alongside a Registered Nurse (RN) or Licensed Practical Nurse (LPN), oversees all patients on their designated floor and is responsible for essential patient care tasks, including medication administration, hygiene, and daily living support. At the start of each shift, the CN prepares a daily assignment sheet detailing patient assignments and break schedules for Certified Nursing Assistants (CNAs). CNs typically maintain consistent patient assignments and must allocate coverage for absent CNAs, either by assigning a substitute or redistributing patients among available CNAs.
During shifts, CNs assist CNAs with patient care while monitoring and directing their activities, including correcting tasks as needed. CNs are also responsible for evaluating CNAs' performance, suggesting developmental recommendations, although there is no evidence that these recommendations have affected CNAs' employment status or compensation. CNs report any disciplinary issues regarding CNAs to the nurse manager rather than taking direct disciplinary action themselves.
On October 10, 1997, a union sought elections for SNH employees, which SNH opposed, arguing that certain CNs should be classified as "supervisors" under the Labor Management Relations Act (LMRA). The Acting Regional Director of the NLRB ruled that CNs were not supervisors and should be included in the bargaining units. Following an election where the Union won, SNH declined to negotiate, leading to an unfair labor practice complaint. The NLRB, siding with the General Counsel, mandated that SNH engage with the Union, rejecting SNH's argument that CNs were statutory supervisors under the LMRA.
If the CNs are classified as supervisors, they lack the right to engage in collective bargaining with SNH, as defined by 29 U.S.C. 152(3) and reinforced by relevant case law. Supervisors are explicitly excluded from employee status under the National Labor Relations Act (NLRA). The Labor Management Relations Act (LMRA) defines a "supervisor" as an individual with authority to manage other employees in significant ways, which requires independent judgment rather than routine tasks.
To determine supervisory status under Section 2(11) of the LMRA, three criteria must be met: (i) the employee must have the authority to exercise one of the specified powers, (ii) this power must be exercised using independent judgment, and (iii) the exercise of that power must be in the employer's interest.
The ARD concluded that CNs do not possess the authority to engage in significant supervisory actions such as hiring or discharging employees. While CNs can assign and potentially direct CNAs, their exercise of these powers is characterized as routine and lacking independent judgment. These findings, if backed by substantial evidence, are to be upheld according to 29 U.S.C. 160(e), which requires more than minimal evidence for support. The assessment of these findings considers the entire record, including evidence that may contradict the ARD’s conclusions.
SNH contends that Charge Nurses (CNs) possess supervisory powers to promote and reward Certified Nursing Assistants (CNAs) due to their role in evaluating CNAs. However, there is no evidence that evaluations influence promotions or rewards, as these are governed by a collective-bargaining agreement. The Administrative Review Division (ARD) found substantial evidence supporting that CNs do not have the authority to promote or reward, consistent with case law indicating evaluations lacking impact on job status are insufficient for establishing supervisory authority.
Regarding disciplinary powers, SNH asserts CNs can discipline CNAs based on job descriptions and managerial testimony. Nevertheless, the record shows CNs did not formally discipline or recommend discipline but occasionally referred misconduct to nurse managers without recommendations. The Board's conclusion that these referrals do not establish disciplinary authority is upheld, with case law reinforcing that mere reporting without recommendation does not confer supervisory status.
Finally, SNH argues that CNs' daily assignment of CNAs to patients and break times demonstrates supervisory authority. However, the ARD determined this exercise of authority is routine and lacks the independent judgment required to establish supervisory status, a conclusion supported by substantial evidence.
CNAs are typically assigned to specific patients permanently, allowing CNs to make shift assignments based primarily on prior practices. When substitute CNAs are unavailable, patient assignments are redistributed among remaining CNAs, which involves some discretion. The ARD's conclusion that CNs do not exercise independent judgment in these assignments, deeming them routine or clerical, is upheld.
While the CNs' responsibilities—such as conducting written evaluations, potentially disciplining CNAs, assigning patients, and setting break times—could collectively suggest a supervisory role, it is acknowledged but not pursued in this case due to established evidence that CNs direct CNAs in more substantial ways and utilize independent judgment. The ARD's assertion that CNs' responsibilities are merely routine lacks support, as the record shows CNs have faced disciplinary actions for failing to properly direct CNAs in patient care.
Accountability for the performance of directed staff is key to establishing supervisory power. A significant incident involved a CN receiving a written warning for inadequate assessment and failure to direct staff in administering oxygen to a patient, highlighting the CN's responsibility to make timely assessments and delegate tasks, thereby demonstrating the potential for supervisory authority and the importance of being accountable for such responsibilities.
As the charge nurse (CN) on a unit, there is a clear responsibility to ensure the care of all residents. Performance improvement is mandatory, with potential disciplinary actions for failure, including suspension or termination. Disciplinary actions have been documented against CNs for neglecting duties, emphasizing the need for supervision of residents. Testimonies confirm that CNs effectively direct Certified Nursing Assistants (CNAs), holding them accountable for their tasks, akin to the relationship between CNs and nurse managers. The assertion that CNs lack supervisory authority was found unsupported by substantial evidence, as CNs routinely direct CNAs in both routine and critical patient care situations, necessitating independent judgment. The argument that their supervisory role is merely routine was rejected, reinforcing the CNs’ significant responsibilities in patient care, especially in emergencies. Previous legal precedents support the classification of charge nurses as statutory supervisors, underscoring the importance of their role in operational management and patient safety.
In the cross-petition, the Board's General Counsel presents an argument to uphold the ARD's finding that Charge Nurses (CNs) do not possess supervisory authority over Certified Nursing Assistants (CNAs). Key points include:
1. The Board has previously interpreted "independent judgment" to encompass "managerial judgment," but not "expert judgment."
2. Following the precedent set in Chevron U.S.A. Inc. v. NRDC, deference is owed to the Board's reasonable interpretation of "independent judgment."
3. Even if CNs responsibly direct CNAs, they do so using expert judgment from their training rather than managerial prerogative, implying they lack supervisory capacity in patient care direction.
4. The extent to which the ARD or the Board differentiated between managerial and expert judgment remains unclear, yet this distinction alone does not validate the ARD's findings.
5. The document argues that a person exercising specialized judgment without further authority may not qualify as a statutory supervisor. However, if that individual also ensures others act upon their judgment, they are indeed exercising supervisory authority.
6. The Board's test could exclude less experienced employees deferring to knowledgeable coworkers, but this does not apply to CNs. Evidence shows CNs are responsible for directing CNAs regarding patient care and can face disciplinary action for failing in this duty.
7. The formal role of CNs, including their assigned titles, responsibilities, and disciplinary powers, highlights their supervisory role over specific operational units within the facility.
The Board's differentiation between managerial and expert judgment, which excludes certain individuals from the definition of supervisor, may be overly restrictive. The combination of labeling duties as "routine" and attributing them to "superior training and skills" risks reducing the supervisory definition to insignificance. Specifically, the Board argues that Certified Nurses (CNs) do not exercise supervisory authority in three key areas: (i) assigning Certified Nursing Assistants (CNAs) to patients, considered routine; (ii) directing CNAs based on superior skills, deemed non-supervisory; and (iii) allocating break times, also classified as routine. This reasoning suggests that many employees could be classified as lacking supervisory authority, leading to the conclusion that, during most hours, only one nurse manager supervised 245 patients across multiple floors.
The ruling states that CNs are indeed supervisory employees. In terms of remedies, the Administrative Review Decision (ARD) incorrectly included thirteen Registered Nurse CNs in the professional unit and two Licensed Practicing Nurse CNs in the residual unit. Due to the commingling of ballots, it cannot be determined if the professional unit election result would have differed without the CNs' votes, leading to the denial of enforcement concerning the professional unit. Conversely, in the residual unit, the outcome remains unchanged despite the exclusion of the two CNs, thus the Board's order regarding this unit is enforced, modified to exclude the CNs.
The conclusion specifies a partial modification of the Board's order: the exclusion of CNs from both professional and residual units, enforcement of the residual unit order as modified, and denial of enforcement regarding the professional unit.
The Honorable Norman A. Mordue, a U.S. District Judge, addresses SNH's argument regarding the appropriate standard of review for the National Labor Relations Board (NLRB) findings, asserting that substantial evidence should lead to deference rather than "diminished deference." The case of Spentonbush/Red Star Cos. is cited, where a more rigorous review was prompted by an unconscionable result from the NLRB's findings. The discussion emphasizes that the term "charge nurse" does not carry a universally accepted legal definition and that the decision relies on the specific factual context of SNH's operations.
SNH's claims about the inclusion of certain employees in bargaining units—including nursing staffing coordinators and receptionists—are noted. However, these objections were insufficiently presented, being limited to a brief footnote in a lengthy response to a motion for summary judgment. The court underscores that for objections to be considered, they must have been properly raised before the Board, as failure to do so can only be excused in extraordinary circumstances. Cited cases reinforce that general objections or cryptic arguments do not meet the necessary standard for preserving issues on appeal.
