holding that even if entities are a single employer, only those named in the complaint are bound by the adjudication
How later courts described this case
- holding that even if entities are a single employer, only those named in the complaint are bound by the adjudication
- "An employer asserting a good faith doubt [about a union's majority support] must provide objective evidence such as the expression of dissatisfaction with the union by a significant minority of union members”
- Under the NLRA, the employer bears the burden of demonstrating supervisory status of employees
- “The ‘secondary indicia’ of supervisory authority are only relevant ‘[i]n borderline cases.’ ”
Written by the judges who cited it.
The opinion
THOMAS, Circuit Judge,
concurring in part and dissenting in part:
I concur in all of the majority opinion except for the determination that licensed practical nurses are not supervisors. The duties of licensed practical nurses in a long-term care nursing home, such as the Northern Montana Health Care Center, differ markedly from those in an acute care facility, such as the one involved in Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir.1997). The evidence in this case demonstrated that, as the Administrative Law Judge concluded after conducting a thorough hearing. Substantial evidence supports this finding. Thus, I agree with the assessment by the Administrative Law Judge that licensed practical nurses should not form part of the bargaining unit pursuant to National Labor Relations Board v. Health Care and Retirement Corporation of America, 511 U.S. 571, 573-74 , 114 S.Ct. 1778 , 128 L.Ed.2d 586 (1994).
Nonetheless, because the number of employees involved was insubstantial, the employer was not relieved of its responsibility to bargain with the unit. See David Wol-cott Kendall Memorial School v. NLRB, 866 F.2d 157, 161-62 (6th Cir.1989). The application of the insubstantial variance rule is particularly appropriate in the successorship context when (1) the historic bargaining unit had included the disputed employees, and (2) the employer did not tender sufficient evidence of a substantial possibility that exclusion of the licensed practical nurses would have altered an election outcome or fragmented the unit. See Stewart Granite Enterprises v. United Steelworkers of America, 255 NLRB 569 , 1981 WL 20317 (1981).
Thus, I concur in the judgment, but respectfully disagree with some of the rationale upon which it is based.