Waverly-Cedar Falls Health Care Center, Inc. v. National Labor Relations Board

933 F.2d 626, 137 L.R.R.M. (BNA) 2393, 1991 U.S. App. LEXIS 9565
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 14, 1991
Docket90-2240
StatusPublished
Cited by27 cases

This text of 933 F.2d 626 (Waverly-Cedar Falls Health Care Center, Inc. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waverly-Cedar Falls Health Care Center, Inc. v. National Labor Relations Board, 933 F.2d 626, 137 L.R.R.M. (BNA) 2393, 1991 U.S. App. LEXIS 9565 (8th Cir. 1991).

Opinions

McMILLIAN, Circuit Judge.

Waverly-Cedar Falls Health Care Center, Inc. (“Waverly”) petitions this court for review of a decision1 of the National Labor Relations Board (“Board”) ordering Waverly to bargain with Teamsters Local No. 238 (“Union”). For reversal, Waverly argues that the Board misapplied the law in certifying a bargaining unit composed of Waverly’s licensed practical nurses (“LPNs”) because the LPNs are supervisors within the meaning of § 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11) (“Act”), and thus are not protected under the Act. The Board filed a cross-petition for enforcement of the order. For the reasons discussed below, we deny the petition for review and enforce the order of the Board.

Waverly operates a nursing care facility in Cedar Falls, Iowa. The facility maintains one hundred beds, providing intermediate nursing care for the infirm elderly. The facility operates twenty-four hours a day, seven days per week. The Administrator and Director of Nursing of the facility are present from 8:00 a.m. to 5:00 p.m., Monday through Friday. An Assistant Director of Nursing works from 8:00 a.m. to 2:30 p.m., Monday through Friday. The Director of Nursing oversees the Nursing Department and reports directly to the Ad[628]*628ministrator. The Director of Nursing and the Assistant Director of Nursing are on call twenty-four hours per day.

In addition to the seven LPNs, Waverly employs four med-aides, and approximately thirty-five orderlies'. Two LPNs and eight orderlies work on the day shift from 6:00 a.m. to 2:00 p.m.; two LPNs and seven orderlies work on the night shift from 2:00 p.m. to 10:00 p.m.; and one LPN and four orderlies work on the late night shift from 10:00 p.m. to 6:00 a.m.

On November 2, 1988, the Union filed a petition seeking to be certified to represent Waverly’s seven LPNs. On December 6, 1988, following a hearing, the Acting Regional Director2 of the Board found that the LPNs were “supervisors” as defined under the Act and dismissed the petition. The Acting Regional Director found that the LPNs were supervisors because they are the only supervisory personnel present during evenings and on weekends, assign and evaluate orderlies’ work, excuse absences, and approve overtime. The Acting Regional Director noted that if the LPNs are not supervisors, there would be an unrealistic ratio of two supervisors (the Director and Assistant Director of Nursing) for forty-six nursing department employees (the seven LPNs, four med-aides, and thirty-five orderlies).

The Union appealed this decision to the Board. The Board concluded that “the LPNs do not possess supervisory authority” and reversed the Acting Regional Director’s decision. 297 N.L.R.B. No. 40, slip op. at 3 (Nov. 28, 1989). In reversing, the Board noted that the LPNs lacked authority to transfer, lay off or recall employees. Id. at 7. The Board also concluded that the LPNs lacked supervisory status in regard to work assignments for other employees at the facility. The Union won the representation election and was certified as the exclusive collective bargaining representative of all LPNs employed by Waverly.

On March 9, 1990, the Union filed an unfair labor practice charge against Waverly alleging that Waverly violated §§ 8(a)(1) and 8(a)(5) of the Act by refusing to bargain with the Union. Waverly admitted that it had refused to recognize or bargain with the Union, but argued that LPNs employed at the Cedar Falls facility did not constitute a unit appropriate for the purposes of collective bargaining within the meaning of § 9(b) of the Act because the LPNs are supervisors.

On May 17, 1990, the General Counsel filed a Motion for Summary Judgment with the Board. On May 21, 1990, the Board issued an order transferring the proceeding to the Board. On June 29, 1990, the Board granted the General Counsel’s Motion for Summary Judgment and ordered Waverly to cease and desist from refusing to bargain with the Union. 298 N.L.R.B. No. 151, slip op. at 3-4 (June 29, 1990). The Board concluded that all representation issues were or could have been litigated in the prior representation hearing. Id. at 2. On July 30, 1990, Waverly petitioned this Court for review of the Board’s decision.

In order to challenge certification of a collective bargaining unit, an employer must refuse to recognize a union after its certification. Board certifications under § 9(c) of the Act are not reviewable as final orders of the Board, see, e.g., AFL v. NLRB, 308 U.S. 401, 404-07, 60 S.Ct. 300, 301-03, 84 L.Ed. 347 (1940); Technicolor Government Services, Inc. v. NLRB, 739 F.2d 323, 326 (8th Cir.1984) (Technicolor), but an order to bargain following an unfair labor practice hearing is a final, appealable order. 29 U.S.C. § 160(e), (f). If a union files an unfair labor practice charge for refusal to bargain, the employer may then challenge the certification of the unit as an affirmative defense3 to the charges. Technicolor, 739 F.2d at 326.

[629]*629Thus, it is procedurally appropriate for Waverly to challenge the certification determination via an appeal of the unfair labor practice charge. Review of the Board’s unit certification decision is limited to a determination of whether the decision is arbitrary, capricious, an abuse of discretion, or lacking in substantial evidentiary support. NLRB v. Metal Container Corp., 660 F.2d 1309, 1313 (8th Cir. 1981).

The determination of who is a supervisor is a fact question which calls upon the Board’s special function of applying the general provisions of the Act to the infinite gradations of the authority within a particular industry. Therefore the Board may exercise a large measure of informed discretion and a court must accept its determinations so long as they have “warrant in the record” and a reasonable basis in law.

NLRB v. Chem-Fab Corp., 691 F.2d 1252, 1256 (8th Cir.1982) (citations omitted) (quoting Jas. H. Matthews & Co. v. NLRB, 354 F.2d 432, 435 (8th Cir.), cert. denied, 384 U.S. 1002, 86 S.Ct. 1924, 16 L.Ed.2d 1015 (1966)).

[A] reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We hold that the Board’s decision that the LPNs are not supervisors is supported by substantial evidence.

Title 29 U.S.C.

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933 F.2d 626, 137 L.R.R.M. (BNA) 2393, 1991 U.S. App. LEXIS 9565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waverly-cedar-falls-health-care-center-inc-v-national-labor-relations-ca8-1991.