# National Labor Relations Board v. St. Mary's Home, Inc., T/a St. Mary's Infant Home, (Two Cases)

> Court of Appeals for the Fourth Circuit · September 17, 1982 · 690 F.2d 1062

URL: https://www.frixlaw.com/law-library/cases/9469806

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ST. MARY’S HOME, INC., T/A St. Mary’s Infant Home, Respondent (Two Cases)
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** September 17, 1982
- **Citations:** 690 F.2d 1062
- **Precedential status:** Published
- **Opinion:** Concurring in part by Murnaghan
- **Judges:** Russell, Widener, Murnaghan
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9469806

## How later opinions describe it (automated extraction)

- noting that "whether the employee whose status is in question is 'the highest ranking employee’ on the jobsite at the time to whom other employees must look for direction” is "[pjerhaps the most significant factor” in determining whether that employee is a supervisor
- noting that the Board had been criticized for its policy bias
- noting the "inconsistency” in the NLRB's application of § 2(11)

## Opinion text

MURNAGHAN, Circuit Judge,
concurring in part and dissenting in part:
Were the panel of Fourth Circuit judges hearing the appeal the trier of fact, I would find the majority opinion quite persuasive. On appeal, however, the sole question is whether substantial evidence supports the Board’s finding that Mitchell was not a supervisor. Upon reviewing the record, I conclude that the Board’s finding is supported by substantial evidence. In making a finding opposite to that of the Board, my colleagues have disregarded the considerable body of evidence which supports the Board’s finding.
At the outset, one should observe that the determination of supervisory status is particularly difficult in the health care context. When the 1974 amendments to the National Labor Relations Act were passed, a Senate Committee observed:
[T]he Board has carefully avoided applying the definition of “supervisor” to a health care professional who gives direction to other employees in the exercise of professional judgment, which direction is incidental [to] the professional’s treatment of patients, and thus is not the exercise of supervisory authority in the interest of the employer.
S.Rep.No. 766, 93rd Cong., 2d Sess. 6, reprinted in [1974] U.S.Code Cong. & Ad. News 3946, 3951. Thus, when the exercise of independent judgment is incidental to the treatment of patients, it does not confer supervisory status. Beverly Enterprises v. NLRB, 661 F.2d 1095, 1098-1103 (6th Cir. 1981); Misericordia Hospital Medical Center v. NLRB, 623 F.2d 808 , 815-18 (2d Cir. 1980); NLRB v. St. Francis Hospital, 601 F.2d 404, 420-22 (9th Cir. 1979). Consequently, the issue here is simply whether substantial evidence supports the Board’s finding that Mitchell exercised independent judgment only incidentally to her treatment of patients.
The evidence showed that three nights a week, Mitchell was directly responsible to Georgia Patillo, the registered nurse on the night shift. On the other two nights, however, Patillo was not on duty. If an unexpected situation arose which Mitchell could not handle herself, she informed Patillo, or, if Patillo was not on duty, called the head nurse, Janis Goodmundsen. If a child re *1071 quired hospitalization and Patillo was absent, Mitchell exercised her professional judgment to decide whether to contact the head nurse or the doctor. If it became necessary to obtain a substitute for an absent aide, Mitchell informed Patillo or, when she was on duty alone, contacted Goodmundsen for permission to call in another aide.
With respect to the conduct of aides, Mitchell testified that, if an aide failed to follow correct procedures, she informed Patillo. Mitchell reported misconduct by aides to Patillo or Goodmundsen, but was not authorized to recommend disciplinary action.
The majority has concluded that Mitchell’s responsibilities “ ‘intimately involved supervisory activities and responsibilities’ in addition to professional services.” At 1067-1068. There is, of course, evidence to support that conclusion. On appeal, however, we cannot pick and choose among items of conflicting evidence in order to support a conclusion different from that reached by the Board. The evidence discussed above indicates that Mitchell’s authority was narrowly circumscribed; whenever a matter arose which called for supervisory action, she reported to Patillo or Goodmundsen, without making a recommendation. Thus, her independent authority was limited to problems incidental to the treatment of patients. 1 That, in my view, ends our inquiry.
The majority’s reliance on N.L.R.B. v. Doctors’ Hospital of Modesto, Inc., 489 F.2d 772 (9th Cir. 1973), illustrates the fallacy in its opinion. The majority emphasizes the Board’s finding there that the “floor head nurses” were supervisors. Here, however, the Board reached the opposite conclusion with respect to Mitchell. To insist on consistency between the two cases is to go beyond our limited function. We must determine only whether the Board’s findings were supported by substantial evidence. The fact that a different Board finding would have been supported by substantial evidence has no bearing on our inquiry. 2
The majority is unable to cite a single case in which a Board finding that a nurse was not a supervisor was reversed. In fact, the courts have consistently accepted findings that nurses with considerably more authority than Mitchell were not supervisors. For example, in Misericordia Hospital Medical Center v. NLRB, supra, 623 F.2d at 815-18, the Second Circuit affirmed the Board’s finding that the head nurse of a hospital unit, who had twenty-four hour responsibility, for the unit and was in charge of three assistant nurses, ten nurses, and ten aides and technicians, was not a supervisor. The nurse in that case filled out evaluation forms on employees in her unit, selected nurses for training programs, and offered instruction in patient care techniques. Nevertheless, the court concluded that the Board was entitled to determine that she did not have the authority effectively to recommend the promotion or discharge of employees, and that her other responsibilities were incidental to patient care. See also NLRB v. St. Francis Hospital, supra, 601 F.2d at 420-22 (accepting the Board’s finding that Assistant Head Nurses, who were sometimes the most senior persons present at the hospital, were not supervisors); NLRB v. Doctors’ Hospital of Modesto, Inc., supra, 489 F.2d at 776 (accepting the Board’s finding that registered nurses, who sometimes assigned and directed auxiliary personnel, were not supervisors).
*1072 Accordingly, I am compelled to dissent. The majority pays lip service to, but in the end disregards, our limited role on appeal. An appellate court “may not ‘displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.’ ” NLRB v. Aerovox Corp., 435 F.2d 1208, 1209 (4th Cir. 1970), quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 , 71 S.Ct. 456, 465 , 95 L.Ed. 456 (1951). Since the Board’s findings with respect to Mitchell’s status, as well as its other findings, are supported by substantial evidence, I would grant enforcement of the entire order.
. Mitchell’s testimony that she “got the heat when something went wrong on the shift,” relied on by the majority, does not support the conclusion that she was a supervisor. Mitchell went on to agree that she had, in the past, taken responsibility “because of something an aide did or did not do that was not compatible with patient care.” At no time did she acknowledge, as the majority implies, any authority with respect to matters not pertaining to patient care.
. For the same reason, the majority’s reliance on Norwood Manor, 260 N.L.R.B. No. 110 (March 11, 1981), and Clark Manor Nursing Home Corp., 254 N.L.R.B. 455 (1981), is misplaced. Had the Board found, as it did in those cases, that Mitchell was a supervisor, our inquiry would be a very different one, limited to determining whether there was sufficient evidence in the record to support that finding of fact.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469806. Public record. Not legal advice.