# Amicus Curiae Brief — NLRB v. Health Care & Retirement Corp. of America

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0406%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 571

## Text

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ON LABOR

LABLE COP

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BEST

LAW EQUALITY

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TABLE OF CONTENTS

Page
TABLE OF CONTENTS ..............cccccccccccce
TABLE OF AUTHORITIES ....................... iii
INTEREST OF AMICUS .....................005-. 1
ISSUE PRESENTED ..............cccccccccccccece 2
STATEMENT OF THE CASE ...................... 2
SUMMARY OF ARGUMENT ...................... 3
GE 60 bec eceernkdusndcesbsdvendetowkeus i

THE COURT MUST APPLY THE STATUTORY
RULE THAT THE BOARD MUST FOLLOW THE
STATUTORY LANGUAGE OF THE ACT ............ 4

A. THE BOARD’S DECISION DOES NOT SATISFY LEGAL
REQUIREMENTS REGARDING SUFFICIENCY OF
EVIDENCE IN SUPERVISORY STATUS

i a

1. The Board has Created a New Standard for
Supervisory Status in the Health Care Industry ........ 5

2. Legislative History Conclusively Establishes that
Congress Intended the Board to Continue to Apply the

Same Statutory Analysis Used Prior to the 1974
SEDGE 06.64 66 SK bec ccedbdvedbebieéoe magne 7

3. Under Pre-1974 Board Law Nurse Supervisors Are
Unquestionably Statutory Supervisors ............... 9

B. THE BOARD APPLIED AN INCORRECT STANDARD OF
LAW IN FINDING THAT NURSE SUPERVISORS DO NOT
EXERCISE AUTHORITY IN THE INTEREST OF THE

EMPLOYER

C. THE BOARD’S DECISION IS COMPLETELY INCON-
SISTENT WITH THE RECORD FACTS AND THE LAW .. 14

Albany Medica’ Crr.,

oro MER. 405 (1905S) .................

Avon Convalescent Crr., Inc.,

200 N.L.RB. 702 (1972) .................

Beverly Manor Convalescent Crrs.,

275 N.L.RB. 943 (1985) .................

Convalescent Ctr. of Honolulu,

180 NLRB. 461 (1969) .................

Doctors Hospital,

175 N.LRB. 354 (1969) .................

Doctors Hospital of Modesto, Inc.,

183 NLRB. 950 (1970) .................

Garrard Convalescent Home, Inc.,

EG ee

Jeffrey Mfg. Div. v. NLRB,

654 F.2d 944 (4th Cir. 1981) ..............

Leisure Hills Health Crrs., Inc.,

mee WELD. S65 CTE)... . wc cece

Madeira Nursing Ctr, Inc.

ee

NLRB v. Beacon Light Christian Nursing Home,
825 F.2d 1076 (6th Cir. 1987). ........

NLRB v. Magnesium Casting Co.,

427 F.2d 114 (ist Cir. 1970) ...............

-iv-

NLRB v. Pilot Freight Carriers,

558 F.2d 205 (4th Cir. SN he aha en aha al ee 7
NLRB v. Southern Seating Co.,

468 F.2d 1345 (4th Cir. Bs Siwandntéessbclaee ae 13
NLRB v. Tio Pepe. Inc.,

629 F.2d 964 (4th Cir. 1980) ............... 13
National Living Crrs., Inc. d/b/a Autumn Leaf Lodge,

9S MELRB. G98 (1971) ...... 2... 8... eee 10, 11
New Fairview Hall Convalescent Curr.

206 NLRB. 688 (1973) ........0. 10
Passavant Health Cr

284 NLRB. 887 (1987) ............................. 6
Phelps Community Medical Crr.,

295 N.L.RB. No. 55 (1989) ................ 6
Riverchase Care Crr.,

504 NLRB. 061 (1901) ............................. 6
Rockville Nursing Crr.,

RE REE EN cee eae 10
Rosewood. Inc.,

a ce he kL i0

St. Marys Home v. NLRB,
690 F.2d 1062 (4th Cir. 1982).................... 13, 14

ee Os I eile cious) cn jt el 6

Universal Camera Corp. v. NLRB.
340 U.S. 474 (1951)

ee ee ee

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University Nursing Home, Inc.,

| ee ee 11
Waverly-Cedar Falls Health Care Cir. v. NLRB,

933 F.2d 626 (8th Cir. 1991) ..................... 6, 13, 15

STATUTES
PD CI hickos dacievenscendudvcccvssdeacedeeus 7
Pe iin is ddd teekadesakseckdecedeucsse: 7
I ds Bile Saw demu eid li ce Mu ate 7
a 3,4, 5
MISCELLANEOUS

Before The Subcommittee on Labor and Public Welfare, 92d Cong.
2d Sess. 19 (1372) (Statement of American Nurses Association)

I x

Before The Subcommittee On Labor Of The House
of Representatives Committee on Education
And Labor, 934 Cong., Ist Sess. 18 (1973)

(Statement of the American Nurses Association) ............. 8
Coverage of Nonprofit Hospitals Under The National Labor

Relations Act 1972: Hearings on HR 11357 ............... x
Extension Of NLRA To Nonprofit Hospital Employees:
FE ER SS eae x
2 Legislative History of the Management Relations Act of 1947,

ESE ER RPE ae SUNN ae 7

Note, The NLRB and Supervisory Status: An Explanation Of
Inconsistent Results, 94 Harv. L. Rev. 1713, 1714, 1721
Aue di tnbddbds tekusasbdascedibacsscesc..<.. 13

No. 92-1964

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

NATIONAL LABOR RELATIONS BOARD, Petitioner,
vo

HEALTH CARE & RETIREMENT CORPORATION
OF AMERICA, Respondent.

BRIEF OF AMICUS CURIAE COUNCIL ON
LABOR LAW EQUALITY IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Council on Labor Law Equality (“COLLE”) is a voluntary
national association of large and small employers formed to monitor
the activities of the National Labor Relations Board, related
developments under the National Labor Relations Act, and to
provide support to employer interests on those issues which affect a
broad section of industry. COLLE’s formation recognizes the need
for a specialized and continuing business community effort to
provide assistance in the review of NLRB and court decisions in
order to maintain a balanced approach in the formation and interpre-
tation of national labor policy.

In the instant case, the National Labor Relations Board entered
an order fundamentally altering management’s expectation that it
shall retain the loyalty of its supervisory personnel. The expectation
extends to preserving and protecting employer property and business
interests and ensuring its right to do business without direct interfer-
ence.

The manner in which the legal issues under review are resolved
by the Court is extremely important to employers throughout the

x

nation. The Board’s decision calls into question one of the principle
features of the National Labor Relations Act (“NLRA”) that is
designed to protect management’s right to direct its business.
However, the Board’s foray into the health care field, emasculates
this statutory interest and sweeps aside years of caselaw decisions
articulating the importance of employer interests.

For these reasons, it is within the interest of employers to assure
that the Board’s remedial authority is confined to its appropriate
sphere and invoked under procedural strictures sufficient to permit
informed judicial review. Moreover, it has become painfully clear
that it is too expensive for employer’s to repeatedly challenge Board
findings in the appellate courts when the deference given to the
Board is so high.

The parties have thus far primarily focused on issues involving
judicial review of administrative decisions and the power of the
Board to amend its interpretation of the statute. However, COLLE
believes that the issue presented in this case includes not only
whether the Board’s analysis is the correct test, but whether as
applied, is manifestly inconsistent with the Act.

COLLE thus brings to this case a diverse perspective not
presently represented. Therefore, COLLE’s participation may assist
the Court in obtaining full consideration of the public-interest issues.

ISSUE PRESENTED

Whether the statutory definition of a supervisor in Section 2(11)
of the National Labor Relaiions Act permits the Board to qualify the
definition in any respect.

STATEMENT OF THE CASE

Respondent Health Care & Retirement Corporation of America
owns a 100 bed nursing home located in Urbana, Ohio. The home
employs approximately 100 persons and is managed by a staff
composed of a Director of Nursing, an Assistant Director of Nursing,

afi.

thirteen to fifteen LPN’s, and fifty-five aides. If nurses are not

counted as supervisors, the supervisor -employee ratio would be 30:1.
If counted, the ratio is 4:1. 47a.

. In the spring of 1989, three nurses believed that the facility was
being run ineffectively and sought to air this matter with the nursing
home administrator. When informed to schedule an appointment,
these nurses instead chose to drive to the corporate headquarters the
next day to meet with the corporate Director of Human Resources.

After an investigation, management chose to implement a
program to meet the nurses’s grievances and also requested the
support of the nursing staff. During the investigation, several items
concerning the three nurses came to the attention of the Respondent.
These matters included improper documentation of medical records
as well as unexcused absences. As a result of these and other
problems, the three nurses were asked to resign or be fired. 16a.

The Board found the nurses to be employees and entitled to
protected concerted activity under the Act. 13a. The court of
appeals disagreed. It determined that the statutory tests found in
Section 2(11) of the Act, 29 U.S.C. § 152(11), applied in the
disjunctive, 7a, so that if a nurse met any of the tests for a supervi-
sor, then the employer could expect their “‘undistracted loyalty.” 6a.

The court of appeals found that these nurses did not meet the
Statutory test because the staff nurses at the very least had the
authority to assign aides and to direct them. 9A. Therefore, the
court found that the Board’s Order did not comport with the Act.

SUMMARY OF ARGUMENT

The Congress established two essential requirements in the
National Labor Relations Act as it applies to the health care field.
First, that management must expect that it would continue to act
through its selected representatives and supervisors. To ensure their
loyalty, these persons were not provided the protection of the Act.
Secondly, the Congress established a statutory test that identifies
Supervisors as “any individual” who could exercise any of the

sin

following acts: “to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees.” 29 U.S.C.
§ 152(11) (emphasis added).

The statutory language plainly reads in the disjunctive. The
legislative history also establishes that the Congress expected the
Board to determine what persons are “supervisors” under the caselaw
established by the Board as of 1974. However, the Board has
chosen to proceed beyond the language of the statute and its
legislative history. It has chosen to apply in the health care field a
test not found elsewhere in the statute, whether the health care
person is performing serves primarily for a patient rather than the
employer. ‘That test finds no support in the statute or legislative
history. Consequently, the Board’s mechanism to ascertain who is
a “supervisor” under the Act is contrary to the Act and should not
be sustained.

ARGUMENT

THE COURT MUST APPLY THE STATUTORY
RULE THAT THE BOARD MUST FOLLOW THE
STATUTORY LANGUAGE OF THE ACT

The Board has determined that when a principal function of the
nurse and the aides who report to them is the provision of patient
care, then the nurses are not supervisors. As applied by the Board,
this extra-statutory standard constitutes nothing less than an “amend-
ment” of the Act for health care employers, and is well beyond the
standards previously stated by this Court.

A. THE BOARD’S DECISION DOES NOT SATISFY
LEGAL REQUIREMENTS REGARDING SUFFICIENCY
OF EVIDENCE IN SUPERVISORY STATUS DETERMI-
NATIONS.

This case comes before the Court with the understanding that
if it is unable to:

eae + at

vit.

decision is substantial, when viewed in the light that the
record in its entirety furnishes, including the body of
evidence opposed to the Board’s view, we may deny
enforcement.

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

In essence, the Board’s Decision and Order manages to bypass
virtually every aspect of supervisory authority through the expedient
application of the term “patient care.” This “analysis” has the
unavoidable effect of “amending” Section 2(11) of the Act’ to
create a different legal standard for determining supervisory status
in health care institutions - something that Congress expressly
refused to do when it considered the issue in the debates that
culminated in the 1974 Health Care Amendments to the Act. It is
axiomatic that the Board majority should not be permitted to do that
which Congress, having been afforded the opportunity, specifically
refused to do.

1. The Board has Created a New Standard for Super-
visory Status in the Health Care Industry.

The current form of the Board’s “patient care” rationale had its
genesis in Beverly Manor Convalescent Ctrs., 275 N.L.R.B. 943

‘Section 2(11) of the Act, 29 U.S.C. § 152 (11), provides that:

[tJhe term “supervisor” means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, 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 judgement.

lis

(1985) (“Beverly Manor’), remanded from 727 F.2d 591 (6th Cir.
1984).? There, the Board reasoned as follows:

[I}f it is found that some authority exists which in other
contexts would be found to bestow supervisory status, the
qualitative nature of this authority must be subjected to a
second-step analysis in order to determine the ends for
which it is exercised. Thus, acts which would ordinarily
be supervisory may, in the health care context, indicate no
more than, the exercise of technical or professional
judgment.
Beverly Manor, 275 N.L.R.B. at 946 (emphasis added).

The Beverly Manor Board found support for this extra-statutory
gloss in the legislative history of the 1974 Amendments to the Act.
“(T]he Senate indicated that a health care professional does not
exercise authority in the interest of an employer when that individu-
al’s ‘direction’ to other employees is the ‘exercise of professional
judgment’ incidental to the professional’s treatment of patients.” 275
N.L.R.B. at 946, citing Sutter Community Hospital of Sacramento,
Inc., 227 N.L.R.B. 181, 192, citing S. Rep. No. 93-766, 93d Cong.,
2d Sess. 6 (April 2, 1974).

Beverly Manor suggests that, as a “dictate of congressional
intent,” findings of supervisory status in health care institutions must
be supported by “additional personnel authority which more directly
promotes the interests of the employer and which is not motivated
by patient care needs.” 275 N.L.R.B. at 946-47 (emphasis added).
It is, says the Beverly Manor Board, “[the] congressional intent that

>The Board’s Decision and the ALJ's opinion also cite various other Board
cases which themselves rely on Beverly Manor Convalescent Ctrs.: Waverly-Cedar
Falls Health Care. Inc., 297 N.L.R.B. No. 40 (November 28, 1989); Phelps
Community Medical Ctr., 295 N.L.R.B. No. 55 (June 15, 1989); The Ohio Masonic
Home, Inc., 295 N.L.R.B. No. 44 (June 15, 1989); Passavant Health Ctr., 284
N.L.R.B. 887, 889 (1987). The Board also cites to Riverchase Care Ctr., 304
N.L.R.B. 861 (1991) at nl. That decision was denied enforcement by the Fourth
Circuit. F.2d (4th Cir. 1992) (umpublished opimon).

~ -
\
when direction of other employees is given in connection with
treatment of patients that this is not the exercise of supervisory
panera interest _ — the employer.” 275 N.L.R.B. at 947
(er ; sums up this hypothesis, stating that
it is “Congress’ mandate, that any ostensible authority exercised by
health care providers must be scrutinized to determine by what it is
motivated...” If the putative supervisor’s actions “grow out of
professional or technical concerns for patient well being,” they
ar according to Beverly Manor, be supervisors. (emphasis

The Board both misreads the portion of the legislative history
on which it relies and ignores other highly probative portions which
the Board apparently considers inconveniently contrary to its
“agen da ”

2. Legislative History Conclusively Establishes that
Congress Intended the Board to Continue to Apply the

Same Statutory Analysis Used Prior to the 1974 Amen-
dments.

As originally enacted, the Act contained no definition of
“supervisor.” 49 Stat. 449 (1935). Section 2(11) as it exists today,
was introduced in the Taft-Hartley Amendments in 1947. 61 Stat.
136 (1947).

Congress pointed out at that time that a “lead person” or “straw
boss” whose minimal “authority” derived from greater training, skill
or experience should not fall within the Act’s definition of “supervi-
sor.” 2 Legislative History of the Management Relations Act of
1947, 1303 (1947); cited in NLRB v. Pilot Freight Carriers, 558
F.2d 205 (4th Cir. 1977), cert. denied, 434 U.S. 1011 (1978). In
1974, Congress again amended the Act, extending its coverage to
non-profit hospitals. 88 Stat. 395 (1974).

In the debates that culminated in the 1974 amendments (the
“Health Care Amendments”), various interest groups urged Congress
to amend Section 2(11) to exclude nurses and other health care
professionals. One proposal, made by the American Nurses’

a. s

Association, was “to qualify [Section 2(11)] as it relates to profes-
sional registered nurse authority and responsibilities. A registered
nurse should not be deemed a supervisor when exercising indepen-
dent professional judgment.” Coverage of Nonprofit Hospitals
Under The National Labor Relations Act 1972: Hearings on H.R.
11357 Before The Subcommittee on Labor and Public Welfare, 92d
Cong., 2d Sess. 19 (1372) (Statement of American Nurses Associa-
tion) (emphasis added); Extension Of NLRA To Nonprofit Hospital
Employees: Hearings on H.R. 1236 Before The Subcommittee On
Labor Of The House of Representatives Committee on Education
And Labor, 93d Cong., Ist Sess. i8 (1973) (Statement of the
American Nurses’ Association).

The Senate Committee, which reported out the bill which
ultimately passed, responded:

Various organizations representing health care profession-
als have urged an amendment to Section 2(11) of the Act
so as to exclude such professionals from the definition of
“supervisor.” The Committee has studied this definition
with particular reference to health care professionals ... and
concludes that the proposed amendment is unnecessary
because of existing Board decisions. The Committee notes
that the Board has carefully avoided applying the defini-
tion 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
professionals treatment of patients, and thus is not the
exercise of supervisory authority in the interest of the
employer.

The Committee expects the Board to continue evaluating
the facts in this manner when making its determinations.

S. Rep. No. 766, 93d Cong., 2d Sess. 6 (1974) (emphasis added).
Congress was thus satisfied that Board law in 1974 accurately
reflected congressional intent (i.e., did not deem “lead persons” or
“straw bosses” whose authority arose solely from “greater training,
skill, or experience,” to be statutory supervisors). Congress specifi-

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cally rejected efforts to amend the Act and it expressly directed the
Board to continue to utilize the same principles it had always applied
in considering supervisory status in the health care industry.

Several important points emerge from the foregoing legislative
history. First, the above quoted portions of the 1974 Senate Report
are the only express statements of congressional intent concerning
the specific issue of supervisory status of health care professionals.
There simply is no expressly articulated basis for the elaborate
statements in Beverly Manor that purport to reflect “congressional
intent.”

Second, to the extent that congressional intent may be inferred
from the Health Care Amendments, the inferences do not support the
Board’s construction of Section 2(11). Indeed, by axiom of statutory
construction, the inference is unavoidable that Congress did not
intend the Board to adopt as a rule of law a proposed amendment
that Congress considered and specifically rejected. Yet, the Board
has adopted as a rule of law virtually the precise definition of
“supervisor” that the American Nursing Association proposed in
1974 and that Congress specifically rejected.

Third, the Board ignores completely the congressional direction
that it continue to make supervisory status determinations in the
health care industry in the same case by case manner that it had
prior to 1974. The pre-1974 cases, discussed below, make it clear
that the Board has misconstrued Section 2(11) and congressional
intent, and that the Board majority herein has improperly found
Respondent’s nurse supervisors to be rank-and-file employees.

Thus, the Board drew no “reasonable distinction” when it

crafted the patient service exception to the statutory definition of
“supervisor.” Cf. Pet. Br. at 16.

3. Under Pre-1974 Board Law Nurse Supervisors Are
Unquestionably Statutory Supervisors.

As discussed below, the indicia of supervisory status possessed
by Respondent’s nurse supervisors, and discounted by the Board on

a.

the basis that they are related to “patient care,” would conclusively
prove they are supervisors under the very pre-1974 Board decisions
that Congress expected the Board to adhere to.

The pre-1974 Board decisions recognized that nurses’ involve-
ment in the disciplinary processes indicated supervisory status.
National Living Ctrs., Inc. d/b/a Autumn Leaf Lodge, 193 N.L.R.B.
638, 639 (1971), enfd, 462 F.2d 575 (Sth Cir. 1972) (nursing
assistants were recommended for termination); Rosewood. Inc., 185
N.L.R.B. 193, 194 (1970) (power to discipline nursing assistants).
Other indicia of status includes the power to enforce policies of the
Home through disciplinary measures. Avon Convalescent Ctr., Inc.,
200 N.L.R.B. 702, 706 (1972), enf'd, 490 F.2d 1384 (6th Cir. 1974)
(personnel policy empowered nurses to enforce rules and authorized
nurses to “write up” nursing assistants for violations).

The ability to transfer nursing assistants to different jobs was
also indicative of supervisory status. Avon, 200 N.L.R.B. at 706;
Autumn Leaf, 193 N.L.R.B. at 639; Doctors’ Hospital, 175 N.L.R.B.
354 (1969) (subsequent history). Another supervisory indicia was
the authority to permit employees to leave early; New Fairview Hall
Convalescent Ctr., 206 N.L.R.B. 688, 749 (1973), enf'd, 520 F.2d
1316 (2d Cir. 1975); Rosewood, 185 N.L.R.B. at 194; or to excuse
lateness. New Fairview, 206 N.L.R.B. at 749. Nurses who adjusted
schedules or assigned meal and break periods were also deemed
supervisors. New Fairview, 206 N.L.R.B. at 749; Avon, 200
N.L.R.B. at 706. The power to adjust time cards was deemed a
supervisory function. New Fairview, 206 N.L.R.B. at 749.

The Board held that the authority to call in employees to ensure
staffing was indicative of supervisory status, Garrard Convalescent
Home, Inc., 199 N.L.R.B. 711, 717 (1972), enf'd., 489 F.2d 736 (6th
Cir. 1974); Rockville Nursing Ctr., 193 N.L.R.B. 959, 962 (1971);
as was the preparation of employee evaluations, New Fairview, 206
N.L.R.B. at 749; Doctors’ Hospital, 175 N.L.R.B. at 354. Where
nurses adjust employee grievances, New Fairview, 206 N.L.R.B. at
749, and where no other persons capable of exercising supervisory
functions are present, they were deemed supervisors. See NLRB v.

ee

ee a ee ny ven ee a ee

_

Beacon Light Christian Nursing Home, 825 F.2d 1076 (6th Cir.
1987).

Higher pay than other employees was considered an indicia of
supervisory status. Doctors’ Hospital, 175 N.L.R.B. at 354. Where
nurses were the highest ranking persons in the facility, the Board
recognized them as supervisors. Rockville, 193 N.L.R.B. at 717;
Autumn Leaf, 193 N.L.R.B. at 638-39. Nurses who attended
in-service meetings concerning their supervisory duties were also
considered supervisors under Section 2(11). Avon, 200 N.L.R.B. at
705.

Indeed, before 1974, the Board held that supervising the work
of nurses aides in the administration of patient care services qualified
an LPN as a supervisor under the Act. University Nursing Home,
Inc., 168 N.L.R.B. 263, 264 (1967). Assigning patient care duties
to nursing assistants was also indicative of supervisory status.
Autumn Leaf, 193 N.L.R.B. at 638-639. This finding was not
inadvertent. Indeed, the Board specifically explained why such
duties were supervisory:

In a nursing home servicing elderly and sick patients

placed under her authority more than clerically or routine-
ly.... Although the record does not establish that the nurses
here in question hire, fire, or mete out discipline or
directly recommend such action, their power to enforce
major personnel policies and rules ... is compelling
evidence that their direction and assignment of employees
is substantial and meaningful...

..[EJach of the ... nurses concerned was at all material
times a supervisor, as defined in Section 2(11) of the Act
because she had authority in the interest of the [employer]
to “assign” and “responsibly to direct” other employees, as
comprehended by that section.

-12-
Avon, 200 N.L.R.B. at 706.

In but one case prior to 1974 — and indeed, three years before
the above quote in Avon — did the Board find that nurses were not
supervisors because their duties were “solely a product of highly
developed professional skills.” In that case, the Board found that the
nurses’ authority was simply “to inform other, lesser skilled
employees as to the work to be performed for patients” and was
therefore analogous to the authority of the “lead person” or “straw
boss” who, in the consideration of the Taft-Hartley amendments,
Congress deemed non-supervisory. Doctors’ Hospital, 175 N.L.R.B.
at 354; Doctors’ Hospital of Modesto, Inc., 183 N.L.R.B. 950, 952
(1970) (same case).’

The overwhelming weight of pre-1974 Board law establishes
that the N.L.R.B. evaluated supervisory cases in the health care
industry according the traditional statutory indicia that it applied
when making supervisory status determinations in any other industry.
No pre-1974 case even suggests that the Board should apply any
higher level of “scrutiny,” or undertake any investigation of
“motive” when making supervisory status determinations in the
health care industry. Nor does any case even infer that activities
“incidental to” or “in connection with” patient care should be outside
the parameters of Section 2(11).

The Sixth Circuit found that the Board’s rejection of the
attributes of supervisory status identified in the statute was beyond
its purview. It is not alone. As the Fourth Circuit has held, the
Statutory test for supervisory status is rampant with inconsistency in
Board law:

‘In several other cases, the Board sumply found that the assignment of duties
by nurses were limited to the routine, established procedures, or dictated by routine
patient needs, and thus not an expression of “independent judgment.” Leisure Hills
Health Ctrs., Inc., 203 N.L.R.B. 326 (1973); Madeira Nursing Crtr., Inc., 203
N.L.R.B. 323 (1973) overruled on other grounds, 217 N.L.R.B. 787 (1975);
Convalescent Ctr. of Honolulu, 180 N.L.R.B. 461 (1969).

eth

So manifest has this inconsistency been, that a commenta-
tor ... aptly observed that “the Board has so inconsistently
applied the statutory definition” of supervisor as to cause
one to speculate “that the pattern of Board decisions ..

displays an institutional or policy bias” .. _as illustrated by
a practice of adopting that “definition of supervisor that
most widens the coverage of the Act, the definition that
maximizes both the number of unfair labor practices
findings it makes and the number of unions it certifies.”

St. Mary’s Home v. NLRB, 690 F.2d 1062, 1067 (4th Cir. 1982);
citing Note, The NLRB and Supervisory Status: An Explanation Of
Inconsistent Results, 94 Harv. L. Rev. 1713, 1714, 1721 (1981).

B. THE BOARD APPLIED AN INCORRECT STANDARD
OF LAW IN FINDING THAT NURSE SUPERVISORS DO
NOT EXERCISE AUTHORITY IN THE INTEREST OF
THE EMPLOYER.

It is undisputed that the statutory criteria for determining
whether individuals are “supervisors” — which are well known — are
to be read in the disjunctive. Waverlv-Cedar Falls Health Care Ctr.
v. NLRB, 933 F.2d 626, 529 (8th Cir. 1991). Hence, the existence
of even one of the statutory indicia suffices to establish supervisory
status. St Mary’s Home, 690 F.2d at 1066; Jeffrey Mfg. Div. v.
NLRB, 654 F.2d 944, 950 (4th Cir. 1981); NLRB v. Tio Pepe. Inc.,
629 F.2d 964, 969 (4th Cir. 1980); Albany Medical Ctr., 273
N.L.R.B. 485, 486 (1985). It is also settled “that possession alone
of the requisite authority is sufficient to establish supervisory status,”
St. Mary's Home, 690 F.2d at 1066; Jeffrey Mfg. Div. v. NLRB, 654
F.2d at 950; NLRB v. Southern Seating Co., 468 F.2d 1345, 1347
(4th Cir. 1972).

Here, the record demonstrates that nurse supervisors possessed
the requisite authority, and actually exercised it.

Specifically, the Board’s decision turned principally upon its
Settee Gat Gn - ‘bilit try te gy
patient care. In that regard, the Board and the ALJ found that the

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nurses’: 1) assignment of work is routine and primarily concerned
with patient care; 2) transfers of employees and grants of overtime
are limited to considerations of patient care, id; 3) adjusting of work
schedules is only to repair conflicts which affect patient care, Id.; 4)
authority in the disciplinary process does not extend beyond the
realm of patient care; 5) participation in the resolution of grievances
is motivated by patient care concerns; and, 6) participation in
management meetings concerned discussions of responsibilities and
skills required to ensure patient care. 13a, 36a.

C. THE BOARD’S DECISION IS COMPLETELY INCON-
SISTENT WITH THE RECORD FACTS AND THE LAW.

The Board’s non-statutory “patient care” amendment to Section
2(11) permeates the majority’s decision below. It was the “basis”
upon which the majority discounted the Nurse supervisors’ authority
to discipline, direct, evaluate, assign, and to resolve employee
grievances. Under traditional statutory criteria, and numerous Board
decisions in which those criteria have been applied in a health care

context, the Board’s analysis is faulty.

Again, any analysis of supervisory status must begin with the
fundamental precepts that 1) the statutory criteria must be read in the
disjunctive; St Mary’s Home, 690 F.2d at 1065-66; Jeffrey Mfg.
Div., 654 F.2d at 950; and 2) possession alone of any statutory
indicia is enough to establish supervisory status. NLRB v. Magne-
sium Casting Co., 427 F.2d 114 (ist Cir. 1970), aff'd 401 U.S. 137
(1970). Hence, a finding by this Court that Respondent’s nurse
supervisors possess any one of the statutory criteria - whether or not
that authority is actually exercised - compels the conclusion that
they are supervisors under the Act.

The presence or absence of other supervisors has long been a
significant factor in supervisory status determinations. Here, if the
nurse supervisors are not statutory supervisors, Respondent — a
nursing home responsible for the total care of more than 100 aged
and infirm residents — would be without a single on-site representa-
tive of management up to 76% of the time (40 out of 168
hours/week). 46a. This, of course, is a manifestly untenable

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situation as even the ALJ noted, yet it is precisely the finding of the
Board. This pattern of inconsistency has been recognized. See
Waverly-Cedar, 933 F.2d at 631 (concurring opinion).

The Board found that during nights and weekends, the nurse
supervisors are the highest ranking personnel in the Home. 46a.
Yet, the Board cavalierly dismisses the clear import of the nurse
supervisors’ complete control of the facility as unpersuasive. The
Board’s failure to address this reasoning is baffling.

CONCLUSION

WHEREFORE, amicus curiae Council on Labor Law Equality
respectfully requests that the Court affirm the decision of the Sixth
Circuit.

Respectfully submitted,

Gerard C. Smetana*
SMETANA & AVAKIAN
Suite 1015

333 West Wacker Drive
Chicago, Illinois 60606
(312) 644-0250

Of Counsel:
Michael E. Avakian
SMETANA & AVAKIAN

1919 Pennsylvania Ave., N.W.
Washington, D.C. 20006

(202) 659-8687
Attorneys for Amicus Curiae
Council on Labor Law Equality
December 14, 1993 *Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0406%3A12. Public record. Not legal advice.