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

=

f

AVAILABLE COPY

BEST

FILED

EE 48 oh

IN THE OFFICE OF THE CLERK

No. 92-1964

Supreme Court of the Unite es

Ocroser Term, 1993

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

vs.

HEALTH CARE & RETIREMENT CORPORATION

OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF THE AMERICAN HEALTH CARE

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

ANprREW A. PETERSON

THomas V. WALSH

Patrick L. VACCARO

Counsel for

American Health Care Association

Jackson, Lewis, SCHNITZLER

& KRUPMAN

1 North Broadway

White Plains, New York 10601

(914) 328-0404

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CONSENT TO FILING

INTEREST OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

A.

The Board Has Departed From The

Traditional Statutory Standards That

Congress Intended To Govern Supervisory

Status Determinations

In 1974 Congress Affirmatively Refused To

Amend Section 2(11) To Exclude Nurses

From The Definition Of “Supervisor”

Before 1974, The Board Applied The Well-

Established “Straw Boss” Standard In The

Health Care Industry

1. The Direction By Nurses Of

Employees In The Care Of Patients

Was Held By The Board To Satisfy

Section 2(11)

Before 1974, Where The Board Held

That Nurses’ Direction Of Employees

Was Not “Supervisory”, It Applied

The Correct Standard; One Which

Differs Fundamentally From The One

The Board’s New Standard For

Supervisory Status In The Health Care

Industry Is Inconsistent With

Congressional Intent And Makes It

Virtually Impossible For Nurses To Be

Deemed Supervisors

il

Page

E. The Board Has Admitted - After Its Brief

Herein Was Filed - That It Has Created A

New Standard For Health Care And That

This Standard Conflicts With Congress’

Neen cea uadeeens 19

F. Nothing In Section 2(12) Of The Act

Alters The Supervisory Standards Of

PINE 4, occ vesconccccccccceseces 21

1. The Nurses At Issue Below Are Not

“Professional employees”............ 22

2. This Court Never Approved The

“Patient Care Proviso” Test Asserted

By The NLRB............--+++-05: 23

G. The ANA, Today And In 1974, Asserted

Arguments Which Are Irrelevant To The

Nursing Home Industry................. 24

0 | nee 25

TABLE OF AUTHORITIES

Cases:

Abingdon Nursing Center, 189 NLRB 842

(1971) enfd, 80 L.R.R.M. (BNA) 3232 (7th

I eee

Albany Medical Center Hospital, 273 NLRB

EN As tne ecuteduadas cuadedsions.

Atlanta Newspapers, 263 NLRB 632 (1982) ....

Autumn Leaf Lodge, 193 NLRB 638 (1971),

enfd sub. nom. NLRB v. National Living

Centers, Inc., 462 F.2d 575 (5th Cir. 1972) .

Avon Convalescent Center, Inc., 200 NLRB

702 (1972), enfd, 490 F.2d 1384 (6th Cir.

1974) overruled, Northcrest Nursing Home,

313 NLRB No. 54 (Nov. 26, 1993) .........

Barnert Memorial Hospital Center, 217 NLRB

ORE a RR eee Eee

Becker County Sand & Gravel Co., 157 NLRB

557 (1966) enf'd, 373 F.2d 528 (4th Cir.

PN s vasa deena ehedonseeabhadeun's<

Bethlehem - Sparrows Point Shipyard, Inc., 65

NLRB 284 (1945) ...... 20... occ e eee e eee.

Beverly Enterprises v. NLRB, 661 F.2d 1095

(6th Cir. 1981)... 000... eee eee cece eee.

Beverly Enterprises v. NLRB, 727 F.2d 591

(6th Cir. 1984)... 2.2... eee eee eee cece

Beverly Enterprises-Pennsylvania, Inc.,

6-RC-10518 (Decision and Direction of

Election at 10-16) (Nov. 16, 1990)..........

Beverly Enterprises-Pennsylvania, Inc., 303

NLRBB No. 20 (1991), enf. denied sub nom.

Beverly California Corp. v. NLRB, 970 F.2d

1548 (6th Cir. 1992)......................

Page

17

17

iv

Cases:

Beverly Manor Convalescent Centers, 264

NLRB 966, (1982), enf. denied sub nom.

Beverly Enterprises v. NLRB, 727 F.2d 591

a Sec se a eeu akeees o3

Beverly Manor Convalescent Centers, 275

Page

15, 16, 22

NLRB 943 (1985) ...... 2.0.0... cece ee eee. 6, 8, 16, 24

Brattleboro Memorial Hospital, Inc., 226

NLRB 1036 (1976) ...................04..

Convalescent Center of Honolulu, 180 NLRB

Se sce c ae Unseeieesseessdeunenie Xs

Doctors’ Hospital of Modesto, Inc., 183 NLRB

950 (1970)... cece cece cece ceeeeueees

Doctors’ Hospital of Modesto, Inc., 193 NLRB

ET ccvnceecacunasensenscuseaekes

Endicott-Johnson Corp., 67 NLRB 1342 (1946) .

Eugene Good Samaritan Center, 191 NLRB 35

(1971), enfd sub nom. NLRB v. Evangelical

Lutheran Good Samaritan Society, 477 F.2d

et ec witch deabecies dus:

Exeter Hospital, 248 NLRB 377 (1980)........

Garden of Eden Nursing Home, Inc., 199

NLRB 16 (1972), overruled on other

grounds, Madiera Nursing Center, Inc., 203

EE font co Ccdcaveshunceses

Garrard Convalescent Home, Inc., 199 NLRB

711 (1972), enfd, 489 F.2d 736 (6th Cir.

ery her aaa

De ethssneeesahdvewenenechtenunes ke.

SE GN honcecs cuccceeceasegnsddaneseess<

Greystone Knitwear Co., 136 NLRB 573

(1962), enf‘d, 311 F.2d 794 (2d Cir. 1963) ..

14

13

13

13

10, 11

Cases: Page

Jackson Manor Nursing Home, 194 NLRB 892

(1972) overruled on other grounds, Madiera

Nursing Center, Inc. 203 NLRB 323 (1973) .. 13

Leisure Hills Health Centers Inc., 203 NLRB

a ntecs idueversedaahunseecsnas 13

Madiera Nursing Center, Inc., 203 NLRB 323

Di t/lostictaeeeeen ean bla ehlaetad sis 13

Mountain Manor Nursing Home, 204 NLRB

Pc cacndteks inks eeaseedenedne ss 13, 22

National Broadcasting Co., 160 NLRB 1440 |

Ee tet aks ad ced ales oan bys 23

Newspaper Guild, Local 187 (Times Publishing

Co.), 196 NLRB 1121 (1972), modified on

other grounds, 489 F.2d 416 (3d Cir. 1973) . 4

New Fairview Hall Convalescent Home, 206

NLRB 688 (1973), enf'd sub nom. Donovan

v. NLRB, 520 F.2d 1316 (2d Cir. 1975),

cert. denied, 423 U.S. 1053 (1976) ......... 10, 11

New Fern Restorium Co., 175 NLRB 871

RFRA PSS ene ere 13

NLRB vw. Beacon Light Christian Nursing

Home, 825 F.2d 1076 (6th Cir. 1987)....... 16

NLRB vw. Doctors’ Hospital of Modesto, Inc.,

489 F.2d 772 (9th Cir. 1973) .............. 12

NLRB v. Res-Care, Inc., 705 F.2d 1466 (7th

FF ye ee 19

NLRB vb. St. Mary’s Home, Inc., 690 F.2d 1062

i ink cvecen edited oneesd batt 18-19

NLRB bv. Yeshiva University, 444 U.S. 672

Dis cheadeusevGdiesecbeteuensacheuns 22, 23

vi

Cases: Page

North Dade Hospital, Inc., 210 NLRB 588

Disc nthwihlensabease okee Cobar eeeeees 9, 10

Northcrest Nursing Home, 313 NLRB No. 54

(Nov. 26, 1993) .............. ccc cee eee. 19, 20, 21, 23

Oak Ridge Hospital of the United Methodist

Church, 220 NLRB 49 (1975)............. 14, 15

Ohio Masonic Home, Inc., 295 NLRB 390

Disdharnsduuuaedhd dee sad edie edes 17

Park Manor Care Center Inc., 305 NLRB 872

a a ae eee 23, 24

Phelps Community Medical Center, 295

NLRB 486 (1989) ....................... 17

Pinecrest Convalescent Home, Inc., 222 NLRB

et gE G hee et eae od pu ng oa edie aes 14

Pittsburgh Equitable Meter Company, 61

NLRB 660 (1045) ..................000.. 5

Richards Chemical Works, Inc., 65 NLRB 14

0 Ee eee 5

Riverchase Health Care Center, 304 NLRB

861 (1991), enf. denied, Nos. 92-1068,

92-1905 (4th Cir. 1992).................. 17, 18

Rockville Nursing Center, 193 NLRB 959

(1971), overruled, Northcrest Nursing

Home, 313 NLRB No. 54 (Nov. 26, 1993) .. 9, 11, 20

Rosewood, Inc., 185 NLRB 193 (1970)....... 10

Schnuck Markets, Inc. v. NLRB, 961 F.2d 700

7 ee ee 19

Shadescrest Health Care Center, 228 NLRB

RII os ocn vdduancutnddvnedescses: 14

vii

Cases:

Sherewood Enterprises, Inc., 175 NLRB 354

a ai ae Cob ance bis

SRI Aphids ei Os aE

Springfield Jewish Nursing Home for the Aged,

Inc., 292 NLRB 1266 (1989)...............

Sutter Community Hospitals of Sacramento,

Inc., 227 NLRB 181 (1976)..............-.

Turtle Creek Convalescent Centres, Inc., 235

PTT TT eer rrTiTe

University Nursing Home, Inc., 168 NLRB 263

ED suck dudesuedws 6eebasedeeescawenece

Victor Valley Hospital, 220 NLRB 977 (1975) . .

Waverly-Cedar Falls Health Care, Inc., 297

NLRB 390 (1989) enf‘d, 933 F.2d 631 (1991)

Wurster, Bernardi, & Emmons, Inc., 192

ED cc cccensestedstseessees

STATUTES, RULES AND REGULATIONS

Act of July 5, 1935, ch. 372, 49 Stat. 449 .....

Labor Management Relations Act, Ch. 120,

ee es GP I, EME oc ce ccccsccccccess

National Labor Relations Act, 290 U.S.C. 151

et seq.:

§2(11), 29 U.S.C. 152(1]).........0..0.0-.

§2(12), 29 U.S.C. 152(12)...............5.

Bh, EP Es Ee bb cerccccvnscosecesess

3-4

21, 22

Vili

Page

LEGISLATIVE MATERIALS

93 CONG. REC. 4804 (statement of Sen.

Flanders), reprinted at 2 LEGISLATIVE

HISTORY OF THE LABOR

MANAGEMENT RELATIONS ACT OF

1947, at 1903 (1047)..............0cc cee 4,5

Coverage of Nonprofit Hospitals Under The

National Labor Relations Act, 1972:

Hearings on H.R. 11357 Before The

Subcommittee on Labor of the Senate

Committee on Labor and Public Welfare,

92d Cong., 2d sess. 19 (1972).............. 6, 7

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. 18 (1973)... 6

H.R.Rep. No. 245, 80th Cong., Ist Sess. (1947) 3,4

S. Rep. No. 105, 80th Cong., Ist Sess. (1947).. 5, 22, 23

S. Rep. No. 766, 93d Cong., 2d Sess. (1974) ... 7

No. 92-1964

IN THE

Supreme Court of the United States

Ocroser Term, 1993

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

vs.

HEALTH CARE & RETIREMENT CORPORATION

OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF THE AMERICAN HEALTH CARE

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

CONSENT TO FILING

This amicus curiae brief is filed pursuant to Supreme Court

Rule 37.3, with the written consent of all parties in interest.

Letters of consent have been filed with the Clerk of this Court.

INTEREST OF THE AMICUS CURIAE

The American Health Care Association (“AHCA”) is an

organization of thousands of nursing care facilities throughout

the United States. The AHCA is deeply concerned about the

issue in this case — that the National Labor Relations Board

(“the NLRB” or “the Board”) has applied an incorrect interpreta-

tion of the definition of “supervisor” under the National Labor

Relations Act (“the Act”). The Board’s “patient care proviso,”

discussed below, has made it virtually impossible for the AHCA’s

member facilities to have the loyal supervisory staffs long in-

herent in the Act’s statutory scheme. The Court's opinion in this

case will therefore potentially affect each of the AHCA’s member

facilities.

SUMMARY OF ARGUMENT

Section 2(11) of the National Labor Relations Act provides

a clear definition of “supervisor.” 29 U.S.C. 152(11). The statute

provides twelve indicia of supervisory authority, the possession

of any one being sufficient to establish supervisory status.

Notwithstanding clear statutory language, the Board has

created a new legal standard to be applied only in the context

of health care. There is no justification for such an extra-statutory

legal standard, either as a matter of law or policy.

When Congress enacted Section 2(11) in 1947, it was mind-

ful that, by virtue of greater skill and experience, certain

employees might appear to have greater authority than co-

workers. These individuals (often referred to as “lead men” or

“straw bosses”) might appear to some to be minor “supervisors.”

Congress made it clear that these individuals did not satisfy the

statutory criteria for supervisory status. The Board's decision

adhered to this concept.

In 1974, Congress enacted the Health Care Amendments to

the National Labor Relations Act. At that time, the American

Nurses Association (“the ANA”) (and other labor organizations)

lobbied Congress to specifically exclude from the ambit of Sec-

tion 2(L1) those activities of nurses that pertained to patient care.

Congress specifically declined to do so, noting with approval

the Board's application of the traditional “straw boss” analysis

to the health care industry. Congress directed the Board to con-

tinue to interpret the statute accordingly.

In the aftermath of the 1974 amendments, the Board began

to depart from the traditional analysis and create new standards

to be applied only in the health care industry. This new approach

emerged gradually, and was formally identified only after

repeated urgings by courts of appeals. The Board has admit-

ted, as recently as several days ago, that it has created a separate

rule of law for the health care industry. Indeed, after the Board

submitted its brief to this Court in this matter, it actually over-

ruled landmark pre-1974 cases to which Congress directed the

Board to adhere.

The Board's current approach is an insupportable departure

from the clear language of the statute — one which singles out

health care as the only industry for which higher standards must

be met to establish supervisory status. Such an approach is in-

appropriate as a matter of law. It also has very unfortunate policy

ramifications. Nursing homes care for a large number of aged

and infirm individuals. The need for accountable supervision

of primary care givers should be self-evident. The effect of the

Board’s extra-statutory rule has been to deprive many nursing

homes of on-site first line supervision.

Finally, should this departure by the Board be condoned, the

way would clearly be paved for the Board to grant non-statutory

exemptions from Section 2(11) to unions and interest groups seek-

ing to represent first-line supervisors in other industries.

ARGUMENT

A. The Board Has Departed From The Traditional

Statutory Standards That Congress Intended To

Govern Supervisory Status Determinations

As originally enacted, the Act contained no definition of

“supervisor.” Act of July 5, 1935, ch. 372, 49 Stat. 449. Recogniz-

ing that “management, like labor, must have faithful agents,”

H.R.Rep. 245, 80th Cong., Ist Sess. at 16 (1947) (emphasis in

original), Congress, as part of the Taft-Hartley Amendments in

1947, enacted a statutory exclusion for supervisors. Labor

Management Relations Act, Ch. 120, Title I, 61 Stat. 137-138

(codified at 29 U.S.C. 152(3))! Under the Act, a “supervisor” is

defined as

any individual having authority, in the interest of the

employer, to hire, transfer, suspend, lay off, recall, pro-

mote, discharge, assign, reward, or discipline other

employees, or responsibly to direct them, or to adjust

their grievances, or effectively to recommend such ac-

tion, 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 judgment.

29 U.S.C. §152(11).?

Congress recognized that corporate “personnel departments”

were often responsible for carrying out actions that bore upon

the statutory criteria. Hence, the duty to utilize independent

judgment in the direction of employees was considered an im-

portant factor by which to evaluate the status of first-line super-

visors.’ The words “or responsibly to direct” employees were

specifically added to the statute in recognition of management

' Congress foresaw that the loyalty of managers may be “divided” if both super-

visors and employees were unionized. H.R. Rep. 245, 80th Cong., Ist Sess.,

at 16 (1947). Congress also recognized divided loyalty could interfere with

the assignment of “people to their work, to see they keep at their work and

do it well, to correct them when they are at fault, and to settle their com-

plaints and grievances, ..” Id.

* The Board has repeatedly stated that the statutory indicia set forth in Sec-

tion 2(11) of the Act must be read in the disjunctive. Albany Medical Center

Hospital, 273 NLRB 485, 486 (1984); Newspaper Guild, Local 187 (Times

Publishing Co.), 196 NLRB 1121, 1122 (1972), modified on other grounds, 489

F.2d 416 (3d Cir. 1973). Therefore, “only one need exist to confer supervisory

status.” 273 NLRB at 486 (emphasis added). Moreover, under Board law, the

mere possession of supervisory authority — whether or not it is actually exer-

cised — satisfies the statutory criteria. Atlanta Newspapers, 263 NLRB 632

(1982); Exeter Hospital, 248 NLRB 377, 378 (1980).

> 93 CONG. REC. 4804 (statement of Sen. Flanders), reprinted at 2 LEGIS-

LATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT

OF 1947, at 1303 (1947).

custom.* Congress intended that individuals exercising such

“responsible direction” would be “above the grade of ‘straw

bosses, lead men, set-up men, and other minor supervisory

employees.’”*

The “straw boss analysis” dces not involve a separate “test”

or legal standard.* It simply is recognition of a common situa-

tion typically involving employees who achieve a certain status

by virtue of having “moved up through the ranks”, but do not

satisfy the statutory definition of “supervisor.” A “straw boss”

therefore is not an “exception” to the supervisory criteria set forth

in Section 2(11); rather, he or she is one who perhaps comes close

to satisfying the statutory criteria but does not.

Contrast this with the Board’s current approach to supervisory

status in health care. The Board has stated that if

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

* Id.

* Id.

* Congress understood that the individual who satisfies the statutory defini-

tion must be distinguished from the “straw bosses, leadmen, set-up men, and

other minor supervisory employees”. S. Rep. No. 105, 80th Cong., Ist Sess.

4 (1947). The minimal authority of a “lead person” or “straw boss” typically

derives from greater training, skill or experience, and was not truly “super-

visory” in nature. 93 CONG. REC. 4804 (statement of Sen. Flanders), reprinted

at 2 LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELA-

TIONS ACT OF 1947, 1303 (1947). Indeed, before and after the Taft-Hartley

Amendments, the Board recognized that individuals whose authority arose

merely from greater skill or experience were not truly “supervisory.” See

Bethlehem - Sparrows Point Shipyard, Inc., 65 NLRB 284 (1945); Pittsburgh

Equitable Meter Company, 61 NLRB 880 (1945); Richards Chemical Works,

Inc., 65 NLRB 14 (1945); Endicott-Johnson Corp., 67 NLRB 1342, 1347 (1946);

George Ehlenberger & Co., 77 NLRB 701, 703 (1948); Greystone Knitwear

Co., 136 NLRB 573 (1962), enfd, 311 F.2d 794 (2d Cir. 1963); Becker County

Sand & Gravel Co., 157 NLRB 557 (1966), enfd, 373 F.2d 528 (4th Cir. 1967).

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 Convalescent Centers, 275 NLRB 943, 946 (1985)

(emphasis added). Clearly, the Board created a new test

specifically for health care. It has done so despite repeatedly

acknowledging that it is required to apply the “traditional stan-

dards,” and the “straw boss” doctrine. Jd. at 946-947. Moreover,

the Board wrongly stated this new test was a “dictate of con-

gressional intent.” Jd. As discussed below, nothing could be fur-

ther from the truth.

B. In 1974 Congress Affirmatively Refused To Amend

Section 2(11) To Exclude Nurses From The Defini-

tion Of “Supervisor”

In the debates that culminated in the 1974 amendments to

the Act (the “Health Care Amendments”), various interest groups

urged Congress to amend Section 2(11) to specifically exclude

nurses and other health care professionals. Under a proposal

urged by the American Nurses Association, “[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 of the Senate

Committee on Labor and Public Welfare, 92d Cong., 2d sess.

19 (1972) (“Senate Hearings on H.R. 11357”) (emphasis added);

see also 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. 18 (1973).

The amendment proposed by the ANA was rejected.’ The

Senate Committee that reported out the bill which ultimately

passed, explained:

’ Here, the ANA asserts that in the 1972 hearings before the House of Represen-

tatives, the ANA urged Representatives Ashbrook and Thompson (co-sponsors

of the bill) to amend Section 2(11) specifically to eliminate registered nurses,

(Footnote continued)

Various organizations representing health care pro-

fessionals 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 such as registered nurses, interns,

residents, fellows, and salaried physicians and con-

cludes that the proposed amendment is unnecessary

because of existing Board decisions. The Committee

notes that the Board has carefully avoided applying

the definition of “supervisor” to a health care profes-

sional 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.

The Committee expects the Board to continue

evaluating the facts of each case in this manner when

making its determinations.

S. Rep. No. 766, 93d Cong., 2d sess. 6 (1974)(emphasis added).

Congress thus specifically rejected efforts to amend Section 2(11),

and was satisfied that Board law in 1974 accurately reflected

congressional intent. Moreover, Congress expressly directed the

Board to continue to utilize the same principles it had always

applied in considering supervisory status in the health care

industry.

because registered nurses’ patient care responsibilities include the necessary

direction and assignment of others’ work. Senate Hearings on H.R. 11357 at

17-18; ANA Brief at 9-12. Representative Thompson assured the ANA that even

absent an amendment specifically exempting “registered nurses” from Sec-

tion 2(11), the concerns of the ANA would be addressed. /d.

The short answer to this contention is: (1) the statutory language was not

amended, and (2) the Board was directed to continue to apply the “straw boss”

standard that it applied to all other industries. As discussed infra at pp. 13-19,

the Board has failed to follow the direction of Congress and has instead ad-

ministratively amended the Act.

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 basis for the elaborate

statements by the Board that purport to reflect “congressional

intent.” See Board Brief at 16-22; Beverly Manor Convalescent

Centers, 275 NLRB at 945-946.

Second, to the extent that congressional intent may be inferred

from the Health Care Amendments, the inferences do not sup-

port the Board’s construction of Section 2(11). Indeed, by ax-

iom of statutory construction, Congress clearly did not intend

the Board to adopt as a rule of law a proposed amendment that

Congress considered and specifically rejected. Yet, that is precise-

ly what the Board has done.

Third, the Board ignores completely the congressional direc-

tion 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. Incredibly, after the Board briefed the

instant case, the Board actually overruled pre-1974 cases which

Congress stated accurately reflected legislative intent. See pp.

19-20, infra. The pre-1974 cases, discussed below, make it clear

that the Board has misconstrued Section 2(11) and congressional

intent.

C. Before 1974, Tie Board Applied The Well-

Established “Straw Boss” Standard In The Health

Care Industry

In light of the foregoing, the “existing Board decisions” which

Congress assessed when it decided against amending the Act in

1974 are worthy of examination. As discussed below, those cases

applied the traditional “straw boss” analysis to the health care

industry. They did not create a new standard which rendered

non-supervisory in health care individuals who clearly would

be supervisors in any other industry. There simply was no

“special rule” for health care or for nurses.

1. The Direction By Nurses Of Employees In The

Care Of Patients Was Held By The Board To

Satisfy Section 2(11)

Before 1974, the NLRB 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 Nur-

sing Home, Inc., 168 NLRB 263 (1967). There, the Board found

a Licensed Practical Nurse (“LPN”):

supervises the work of three nurses’ aides and one

orderly in the performance of tasks of changing bed

linens, bathing, feeding, massaging, and otherwise

caring for patients in accordance with physicians’ in-

structions .. .. She also carries out such orders and

treatments as patients’ doctors may prescribe . . .. As

a charge nurse, [the LPN] reviews patients’ charts to

make certain that proper medications and diet have

been and are being given, and observes and reports

symptoms, if any to the head registered nurse. We find

that the licensed practical nurse is a supervisor within

the meaning of the Act.---

Id. at 265 (emphasis added).

Assigning patient care duties to nursing assistants was also

indicative of supervisory status. Autumn Leaf Lodge, 193 NLRB

638, 638-639 (1971), enfd sub. nom. NLRB v. National Living

Centers, Inc., 462 F.2d 575 (5th Cir. 1972). The Board also

recognized that a nurse with the responsibility to direct non-

supervisory personnel was a supervisor. Rockville Nursing

Center, 193 NLRB 959, 962 (1971) overruled, Northcrest Nurs-

ing Home, 313 NLRB No. 54, slip op. at n.12 (Nov. 26, 1993).

Assigning employees to patient rooms and designating the care

to be given reflected supervisory authority. North Dade Hospital,

Inc., 210 NLRB 588, 592 (1974). These findings were not in-

advertent. Indeed, the Board specifically explained why such

duties were supervisory:

In a nursing home servicing elderly and sick patients

whose critical needs may momentarily require

10

variations in standard procedures, the nurse respon-

sible for the supervision of other nurses or a shift or

a section must obviously be prepared to exercise her

discretion in utilizing her training and experience and

assign and direct employees placed under her authori-

ty more than clerically or routinely. . .. Although the

record-does not establish that the nurses here in ques-

tion hire, fire, or mete out discipline or directly recom-

mend such action, their power to enforce major per-

sonnel policies and rules .. . is compelling evidence

that their direction and assignment of employees is

substantial and meaningful. ...

[E]ach 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.

Avon Convalescent Center, Inc., 200 NLRB 702, 706 (1972),

enfd, 490 £.2d 1384 (6th Cir. 1974),* overruled, Northcrest Nurs-

ing Home, 313 NLRB No. 54, slip op. at n.12.

* Before the Health Care Amendments, the Board recognized that nurses’ in-

volvement in other “supervisory” functions under Section 2(11) established

supervisory status, regardless of their connection to patient care. These in-

cluded recommending employees for termination, North Dade Hospital, Inc.,

210 NLRB at 592; Autumn Leaf Lodge, 193 NLRB at 639; the power to

discipline employees, Rosewood, Inc., 185 NLRB 193, 194 (1970); the authority

to enforce rules, and to “write up” nursing assistants for violations, Avon Con-

valescent Center, Inc., 200 NLRB at 706; the ability to transfer employees

to different jobs, Autumn Leaf Lodge, 193 NLRB at 639; Sherewood Enter-

prises, Inc., 175 NLRB 354 (1969); the authority to permit employees to leave

early, New Fairview Hall Convalescent Home, 206 NLRB 688, 749 (1973),

enf‘d sub nom. Donovan v. NLRB, 520 F.2d 1316 (2d Cir. 1975), cert. denied,

423 U.S. 1053 (1976), Rosewood Inc., 185 NLRB at 194; excuse lateness, New

Fairview Hall Convalescent Center, 206 NLRB at 749; adjust schedules or

assign meal and break periods, New Fairview Hall Convalescent Center, 206

NLRB at 749; Avon Convalescent Center, Inc., 200 NLRB at 706; adjust time

cards, New Fairview Hall Convalescent Center, 206 NLRB at 749; the authori-

ty to call in employees to ensure staffing, Garrard Convalescent Home, Inc.,

(Footnote continued)

2. Before 1974, Where The Board Held That

Nurses’ Direction Of Employees Was Not “Super-

visory”, It Applied The Correct Standard; One

Which Differs Fundamentally From The One

Utilized Today

In but one case prior to 1974 — and indeed, three years before

the above quote in Avon Convalescent Center — 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 per-

formed for patients.” Sherewood Enterprises, Inc., 175 NLRB

at 354. The “authority” of the nurse was therefore analogous

to that of the non-supervisory “lead person” or “straw boss.” See

—" Hospital of Modesto, Inc., 183 NLRB 950, 951-952

(1970).°

The Board asserts here that its decision in Doctors’ Hospital

of Modesto, Inc., was the “seminal” case creating its current test

for supervisory status in the health care industry.” Board Brief

199 NLRB 711, 717 (1972), enfd, 489 F.2d 736 (6th Cir. 1974), Rockville Nur-

sing Center, 193 NLRB at 962; and the preparation of employee evaluations.

New Fairview Hall Convalescent Center, 206 NLRB at 749; Sherewood Enter-

prises, Inc., 175 NLRB at 354. Where nurses adjusted employee grievances,

they were deemed supervisors. New Fairview Hall Convalescent Center, 206

NLRB at 749. Higher pay than other employees was considered an indicia

of supervisory status. Sherewood Enterprises, Inc., 175 NLRB at 354. Where

nurses were the highest ranking persons in the facility, the Board recognized

them as supervisors. Rockville Nursing Center, 193 NLRB at 717; Autumn

Leaf Lodge, 193 NLRB at 638-639. Nurses who attended in-service meetings

concerning their supervisory duties were also considered supervisors under

Section 2(11). Avon Convalescent Center, Inc., 200 NLRB at 705.

* The Board also held a nurse was actually a “leadwoman” in Abingdon Nur-

~y 189 NLRB 842, 850 (1971) enfd, 80 L.R.R.M. (BNA) 3232 (7th

“ The Board implies that Doctors’ Hospital of Modesto, Inc., supra, and

Sherewood Enterprises, Inc., supra, are different cases. Board Brief at 17. In

(Footnote continued)

12

at 17. This simply is not accurate. As the Ninth Circuit, on review

of Doctors’ Hospital of Modesto, Inc." noted the Board simply

applied the traditional “straw boss” analysis in the health care

field:

The leadman or straw boss may give minor orders or

directives or supervise the work of others, but he is

not necessarily a part of management and a “super-

visor” within the Act. The fact that nurses are highly

trained professionals and occasionally use independent

judgment does not necessarily make them part of

management or “supervisors” under the Act.

NLRB v. Doctors’ Hospital of Modesto, Inc., 489 F.2d at 776

(emphasis in original; citations omitted). The Board's assertion

that Doctors’ Hospital was the genesis of its current test, Board

Brief at 17-20, is therefore simply wrong.

The overwhelming weight of pre-1974 Board law establishes

that the NLRB evaluated supervisory cases in the health care

industry according the traditional indicia applicable to any other

industry. No pre-1974 case even suggests that the Board should

apply any higher level of “scrutiny,” or undertake any investiga-

tion of “motive,” when making supervisory status determina-

tions in the health care industry. Nor does any case even permit

fact, they were two separate episodes of litigation over the supervisory status

of several classes of employees in the same hospital, arising from the same Board

election. Sherewood Enterprises, Inc., litigated the status of certain nurses

before the Board election, and Doctors’ Hospital litigated the status of other

nurses after the same election. There is no “rule” to be drawn from the Board's

holding in one case that one set of nurses’ duties were truly supervisory and

its holding in the other case involving a different set of nurses, with different

responsibilities, were not.

“ NLRB v. Doctors’ Hospital of Modesto, Inc., 489 F.2d 772 (9th Cir. 1973),

enforcing, Doctors’ Hospital of Modesto, Inc., 193 NLRB 833 (1971). The 1971

Doctors’ Hospital of Modesto, Inc., case was the third episode of litigation

to arise from the Board’s failure to find nurses to be supervisors at that hospital.

This case was an unfair labor practice proceeding regarding the employer's

refusal to bargain with the Union, based, inter alia, on the Hospital's con-

tinued contention that the nurses at issue were supervisors.

13

the inference that activities “incidental to” or “in connection

aos patient care should be outside the parameters of Section

(11)."

The AHCA does not argue that nurses employed at nursing

homes must be supervisors in every instance. The AHCA asserts

that Section 2(11) must be applied to the health care industry

and to nurses in the same manner as it is applied in any other

case involving supervisory status in any other industry.

D. The Board's New Standard For Supervisory Status

In The Health Care Industry Is Inconsistent With

Congressional Intent And Makes It Virtually Im-

possible For Nurses To Be Deemed Supervisors

Shortly after the 1974 amendments, the Board began to apply

gloss after gloss of “construction” on Section 2(11). The ultimate

result has been the creation of an extra-statutory “rule” under

which the Board deems non-supervisory any activity undertaken

by nurses which has any impact on patient care. See pp. 5-6,

supra. As applied, the Board's “patient care proviso” has resulted

in nurses not being held supervisory while similarly situated in-

dividuals in other industries would be so found.

By 1978, the Board had begun its departure from the Con-

gressional standard and developed a special legal rule for the

* In several other pre-1974 cases, the Board found that nurses were not super-

visors under the Act. However, the bases for these holdings had nothing to

do with the higher level of scrutiny increasingly applied by the Board after

1974. In those cases, the Board based its finding on the simple absence of

authority over employees, Garden of Eden Nursing Home, Inc., 199 NLRB

16, 23 (1972), overruled on other grounds, Madiera Nursing Center, Inc., 203

NLRB 323 (1973); Jackson Manor Nursing Home, 194 NLRB 892, 896 (1972),

overruled on other grounds, Madiera Nursing Center, Inc., supra; or that the

nurses used no independent judgment, Madiera Nursing Center, Inc., 203

NLRB at 324, Convalescent Center of Honolulu, 180 NLRB 461 (1969), New

Fern Restorium Co., 175 NLRB 871 (1969), or that the nurses’ direction of

employees was routine. Mountain Manor Nursing Home, 204 NLRB 425, 426

(1973), Leisure Hills Health Centers Inc., 203 NLRB 326 (1973), Eugene Good

Samaritan Center, 191 NLRB 35, 39 (1971), enfd sub nom. NLRB v.

Evangelical Lutheran Good Samaritan Society, 477 F.2d 297 (9th Cir. 1973).

14

health care industry. In fact, one NLRB Administrative Law

Judge (“ALJ”) observed that

In light of [the 1974 amendments’ legislative history},

the Board has declined to accord supervisory status

to nurses --- in the face of evidence which in other

types of situations might very well support a contrary

conclusion, because such directives were incidental

to an exercise of professional expertise.

Turtle Creek Convalescent Centres, Inc., 235 NLRB 400,

402-403 (1978)(emphasis added; footnote excluded). The Judge

then discussed the manifold ways the Board found to discount

ihe otherwise-supervisory activities of nurses.”

° In support of this observation, AL] Walter Maloney cited Sutter Communi-

ty Hospitals of Sacramento, Inc., 227 NLRB 181 (1976) (nurses wrote counseling

memoranda or evaluations, maintained records, ordered supplies, and effec-

tively recommended hiring); “[nJone of these factors, nor the aggregate thereof,

were sufficient in the Board's view to remove the employees in question from

the protection of the Act.” Turtle Creek Convalescent Centres, 235 NLRB at

402; Shadescrest Health Care Center, 228 NLRB 1081 (1977); “Despite the

fact that charge nurses were the highest ranking persons in the premises in

the nursing unit during evenings and weekends, the Board felt that this fac-

tor was not sufficient to warrant a conclusion that charge nurses were super-

visors. . ..” Turtle Creek Convalescent Centres, 235 NLRB at 403; Brattleboro

Memorial Hospital, Inc., 226 NLRB 1036 (1976) (nurses evaluated employees,

assigned work, adjusted grievances, authorized overtime, called in employees,

issued written reprimands); “(t]he Board majority felt that all of these indicia

of supervisory authority. . .did not add up to a conclusion that head nurses

were supervisors within the meaning of the Act, since their judgments were

made almost exclusively as a result of their professional capacity and incidental

to the care of patients.” Turtle Creek Convalescent Centres, 235 NLRB at 403;

Pinecrest Convalescent Home, Inc., 222 NLRB 13 (1976)(nurses were often

highest ranking persons, called in employees, authorized employees to leave

early); “[dJespite these factors, the Board stated that the charge nurses therein

were employees. . ..” Turtle Creek Convalescent Centres, 235 NLRB at 403;

Victor Valley Hospital, 220 NLRB 977 (1975)(nurses assigned work, could give

verbal reprimands, attended supervisory meetings, approved overtime,

evaluated employees); “[h}owever, the Board felt that these powers were an

outgrowth of their professional standing and not an indication of supervisory

authority.” Turtle Creek Convalescent Centres, 235 NLRB at 403; and Oak

(Footnote continued)

15

The Sixth Circuit identified the Board's “patient care proviso”

in 1981. In Beverly Enterprises v. NLRB, 661 F.2d 1095 (6th Cir.

1981), the Sixth Circuit remanded a case to the Board because

it appeared that nurses were denied supervisory status “simply

because their supervisory activities in assigning and directing”

employees were related to patient care. The Court correctly said

“this approach has no reasonable basis in the law.” Id. at 1103.

(emphasis added).

On remand, the Board paid lip service to the “straw boss”

rationale, but ultimately ignored it. Beverly Manor Convales-

cent Centers (“Beverly Manor I”), 264 NLRB 966, (1982), enf.

denied, 727 F.2d 591 (6th Cir. 1984). The Board said that Sec-

tion 2(11) required more authority than actions fundamentally

limited to patient care. 264 NLRB at 966-967. Moreover, said

the Board, even though assignment and direction of employees

are supervisory indicia under Section 2(11), if such activities are

Ridge Hospital of the United Methodist Church, 220 NLRB 49 (1975) (nurses

were often the highest ranking persons in the facility, assigned and reassigned

employees, could verbally correct employees who were guilty of misconduct);

“(t]he Board found. . . that the occasional exercise of supervisory authority does

not serve to transfer an employee into a supervisor... ..” Turtle Creek Con-

valescent Centres, at 403.

On appeal, the Board in Turtle Creek Convalescent Centres stridently denied

that it applied different standards to nurses, 235 NLRB at 400, disavowing

the notion that “the Board, in determining the supervisory status of health

care professionals, applies standards which are different from the traditional

standards for determining supervisory status.” Jd. The Board continued, citing

its statement in Sutter Community Hospitals of Sacramento, Inc., that “[i}n

deciding whether health care professionals, including registered nurses, are

supervisors within the meaning of the Act, we are bound to adhere to the tradi-

tional standards for determining supervisory status.” Id. at n.3 (emphasis

added).

ALJ Maloney took the foregoing statement seriously when, in Springfield

Jewish Nursing Home for the Aged, Inc., 292 NLRB 1266 (1989) he applied

the “traditional standards” to nurses. Specifically, he found the nurses’ assign-

ment and conveyance of employer policies to employees regarding patient care

satisfied Section 2(11). Id. at 1272. However, the Board again reversed the Judge,

holding, inter alia, that “assignment and direction” “regarding patient care

does not confer supervisory status on a charge nurse.” Jd. at 1267.

16

incidental to patient care, they are not in the interest of the

employer. Id.

The Board also departed from the statute by stating that a

nurse's judgment need no longer be manifest in activities reflect-

ing the nurse’s treatment of patients, but merely in relation to

the care of patients generally. The Board ultimately held that

the nurses were not supervisors because their “judgments .. .

primarily foster patient care and not the personnel policies of

the employer.” Jd. at 968.

Dissatisfied, the Sixth Circuit again remanded the case,

pointedly directing the Board to answer these questions: (1) do

nurses exercise independent judgment when engaged in super-

vising employees? (2) If so, is such activity in the interest of the

employer? Beverly Enterprises v. NLRB, 727 F.2d 591, 593 (6th

Cir. 1984). The Board admitted that nurses’ assignment and

direction duties do utilize independent judgment. Beverly Manor

Convalescent Centers (“Beverly Manor II”), 275 NLRB 943

(1985). At that point, the Board articulated the current two-

step analysis that it employs to effectively preclude nurses from

supervisory status. See pp. 5-6, supra.”.

The Beverly Manor cases crystallized the Board’s two-pronged

attack on the potential supervisory status of nurses. The Board

first imposes an extra-statutory hurdle for nurses (the “two-step

analysis”). It then excludes from Section 2(11) any supervisory

authority which results in an employee act which may be said

to further patient care. This is neither the Act, nor application

of the “straw boss” standard to health care.

In the aftermath of Beverly Manor II, the Board has extended

this “patient care proviso” well beyond the assignment and

“ The Sixth Circuit did not have an opportunity to comment on Beverly Manor

II. However, shortly thereafter, the court reviewed another Board determina-

tion in which the Circuit unequivocally answered a question that the Board

avoided in Beverly Manor II: “patient care” is the “interest” of a health care

employer. NLRB v. Beacon Light Christian Nursing Home 825 F.2d 1076 (6th

Cir. 1987).

17

direction of work. It has extended this analysis to all supervisory

indicia under Section 2(11).

For example, in Ohio Masonic Home, Inc., 295 NLRB 390

(1989), the Board characterized an employee's refusal of direc-

tion by a nurse as “causing potential danger to [a] patient.” Thus,

the nurse's subsequent suspension of the employee was dismissed

as merely “incidental to the treatment of [a] patient.” Jd. at 394.

The suspension for endangering a patient was deemed not to

reflect “the interest of the Employer in enforcing personnel

policy.” Id. See also, Phelps Community Medical Center, 295

NLRB 486 (1989).

In Waverly-Cedar Falls Health Care, Inc., 297 NLRB 390

(1989), enf‘d, 933 F.2d 631 (1991), the Board held that “connec-

tion to patient care” is a factor which defeats any supervisory

quality with respect to suspension of employees. 297 NLRB at

392-93. In fact, where the incident “could have affected the

quality of patient care,” the nurse’s independent response could

not be supervisory. Id. In Beverly Enterprises-Pennsylvania, Inc.,

303 NLRB No. 20 (1991), enf. denied sub nom., Beverly Califor-

nia Corp. v. NLRB, 970 F.2d 1548 (6th Cir. 1992), the Board

held that nurses who 1) are in charge of a facility 75% of the

time, 2) counsel and discipline employees, and 3) are directed

by management to supervise and discipline employees, are not

supervisors because all of those functions related to “patient care”

concerns. Beverly Enterprises-Pennsylvania, Inc., 6-RC-10518

(Decision and Direction of Election at pp. 10-16) (Nov. 16, 1990).

The Board’s erosion of Section 2(11) as applied to nurses was

manifest in its decision in Riverchase Health Care Center, 304

NLRB 861 (1991), enf. denied sub nom. Beverly California Corp.

v. NLRB, Nos. 92-1068, 92-1205 (4th Cir. 1992) (unpublished

opinion). There, the Board discounted almost every supervisory

function of the LPNs by simply mentioning that each quality

had some patient care impact, whether direct or indirect — and

regardless of whether the care was administered by the nurse

herself (as contemplated by Congress) or by employees pursuant

to her supervision.

18

The Riverchase Health Care Center Board stated that the

LPNs’ assignment and direction of work was “primarily con-

cerned with patient care.” 304 NLRB at 864. Their elaborate

and documented disciplinary responsibility did “not extend

beyond the realm of patient care.” Id. at 864-865. The authoriza-

tion of overtime was “limited to considerations of routine pa-

tient care.” Id. at 864. Transfers of employees were “directly

motivated by the day-to-day requirements of patient care rather

than the business interests of the Employer. . ..” Id. (emphasis

added). LPNs’ adjustment of schedules was to remedy situations

“which affect patient care.” Id. The rescheduling of employee

breaks was merely “to ensure adequate staff is available to care

for the patients.” Id. at 863-864. Releasing employees from work

was “consistent with the dictates of patient care.” Id. at 864.

The LPNs’ participation in the grievance process was “motivated

by patient care concerns.” Jd. at 865. Ultimately, the very

management meetings attended by LPNs to enhance their super-

visory skills and promote compliance with their supervisory

ibilities were dismissed as “meetings and training sessions

where they discussed responsibilities and skills required to en-

sure patient care.” Id.

In short, by uttering the words “patient care,” the Board has

eviscerated virtually every supervisory attribute possessed by a

nurse.

Riverchase Health Care Center illustrates how far the Board's

analysis has strayed from Congressional intent. It is the prover-

bial “absurd result” reached by taking the “patient care exclu-

sion” to its “logical conclusion.” Indeed, the conclusion appears

inescapable that the Board has made a policy judgment that

nurses should be unionized, or at least union-eligible.*

'’ Indeed, the Fourth Circuit has noted with approval one commentator'’s ex-

planation for the rampant inconsistency in Board decisions regarding super-

visory status:

So manifest has this inconsistency been, that a commentator .. .

aptly observed that “the Board has so inconsistently applied the

(Footnote continued)

19

Here, while asserting that it has conformed to congressional

expectations, even the Board appears to acknowledge that it has

created a new standard, beyond the traditional “straw boss”

analysis. Under this standard, any direction or assignment of

employees having anything to do with patient care is simply

disregarded.

E. The Board Has Admitted - After Its Brief Herein

Was Filed - That It Has Created A New Standard

For Health Care And That This Standard Conflicts

With-Congress’ 1974 Directive

The Board has stated and restated its various glosses, re-

interpretations, and bases for the “patient care proviso” on so

many occasions, that it is quite unclear what its position ac-

tually is. ALJ Maloney could not decipher the Board, nor could

the Sixth Circuit. In a decision dated November 26, 1993, the

Board issued a comprehensive restatement of the law on the “pa-

tient care proviso.” Northcrest Nursing Home, 313 NLRB No.

54 (Nov. 26, 1993). In Northcrest Nursing Home the Board ad-

mits that it has de facto amended Section 2(11).

The Board continues to assert that it is applying the same

statutory interpretation it used before 1974 - pursuant to the

direction of Congress. Northcrest Nursing Home, 313 NLRB No.

statutory definition” of supervisor as to cause one to te “that

the pattern of Board decisions ... displays an ees 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.”

NLRB vb. St. Mary's Home, Inc., 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, 1713-14, 1721 (1981). The Fourth Circuit's agree-

ment with the above commentator prompted it to hold that “courts must

carefully scrutinize the Board's findings and the record on supervisory status.”

St. Mary's Home, Inc., 690 F.2d at 1067 (emphasis added). See also Schnuck

Markets, Inc. v. NLRB, 961 F.2d 700, 704 (8th Cir. 1992); NLRB v. Res-Care

Inc., 705 F.2d 1461, 1466 (7th Cir. 1983). .

20

54, slip op. at 3. The Board then ignores that assertion by con-

ceding that it “has utilized the ‘patient care’ analysis” only “since

1974.” Id. (emphasis added).

Moreover, the Board today admits that:

Prior to the 1974 Health Care amendments, the Board

had found supervisory status based on assignment and

direction in Avon Convalescent Center, and Rockville

Nursing Center. Charge nurses in these cases were

found supervisory because they utilized their profes-

sional judgment in assigning and directing other

employees. These cases are not consistent with the

Board’s current holdings which do not find supervisory

status on this basis. Accordingly, these cases are

overruled.

313 NLRB No. 54, slip op. at n.12 (emphasis added, citations

omitted) ."*

The significance of this passage cannot be overstated. Con-

gress reviewed the state of Board decisional law in 1974 when

it decided not to change the Act’s definition of supervisor. Con-

gress specifically expressed its agreement with the mode of

analysis employed by the Board up until that time. It further

directed the Board to continue to evaluate the cases in the same

manner. See pp. 6-7, supra.

Now, while professing adherence to congressional intent, the

Board in Northcrest says that the very decisions to which Con-

gress directed it to adhere in the aftermath of the Health Care

Amendments are wrong! Such sleight-of-hand abrogates any

* The Board presently attempts to repair this blatantly ultra vires interpreta-

tion by re-characterizing its past decisions, stating that its “imprecise” use of

“terminology” only made it appear that it rejected discipline, or other overtly

supervisory qualities simply by applying the appellation “patient care.” 313

NLRB No. 54, slip op. at 4, 8. The Board now re-writes these cases, telling

us that the “real reason” such individuals were not held to be supervisors is

some reason other than what it expressly held in those cases. Id. at 4.

21

claim that the Board’s interpretation of the Act is entitled to

judicial deference. It also shows that the Board's “patient care

proviso” has no basis in law.

Congress directed the Board to apply the law of these cases,

not to overrule them.”

F. Nothing In Section 2(12) Of The Act Alters The

Supervisory Standards Of Section 2(11)

The Board relies heavily on Section 2(12) of the Act to but-

tress its claims. Section 2(12), passed along with Section 2(11)

in 1947, sets forth a definition of “professional employees.” This

is a true diversionary tactic, for the LPNs at issue in this case

— and most other nursing home cases — are technical, not “pro-

fessional” employees under the statute. (Registered nurses are

“professional employees” within the meaning of Section 2(12).)

See pp. 22-23, infra.

Even if professional employees were at issue here, no serious

contention may be made that the statutory definitions of “super-

visor” and “professional” are mutually exclusive. Standing alone,

an individual's possession of professional qualifications simply

cannot mean that he or she may not, as a matter of law, also

have supervisory authority with respect to subordinate

employees. While individuals who are not professionals may in-

deed be statutory supervisors, there is no basis whatever for the

inescapable conclusion of the Board’s and ANA’s logic — i.e.,

" The Northcrest Nursing Center Board also argues that because nurses pro-

mote the interests of the patient in quality care, there will “seldom” be any

“risk” of conflicting loyalties on the part of the nurses between the interests

of the “employees” and the employer. 313 NLRB No. 54, slip op at 3. Among

other things, this ignores the reality of union activity in the health care in-

dustry. Unions have loudly argued on behalf of their own “patient care” agenda,

urging, for instance, increased staffing. It is not difficult to envision a super-

vising nurse placing a union’s interest above the employer's, by not exercising

his or her supervisory authority to compel employees to satisfy the work stan-

dards established by the employer, and thereby attempting to compel the

employer to increase staffing.

22

that itis easier for non-professional employees to satisfy the Act's

definition of supervisor than it is for professional employees."

Indeed, the short answer to the “professional”! “supervisor”

issue raised by the Board and ANA was given by this Court in

NLRB v. Yeshiva University, 444 U.S. 672 (1980). In Yeshiva,

this Court stated that “professionals, like other employees, may

be exempted from coverage under the Act’s exclusion for ‘super-

visors’” 444 U.S. at 681-682. Yeshiva contained no statement

or even implication that some test other than the traditional

“straw boss” analysis should be applied in the context of putative

supervisors who happen to be professionals.

1. The Nurses At Issue Below Are Not “Professional

Employees”

As noted, the Board has long held that LPNs such as these

at issue here, 987 F.2d 1256, 1258-59 are not “professionals,”

Mountain Manor Nursing Home, 204 NLRB at 426, and are at

most, “technical” employees, not “professionals.” Barnert

Memorial Hospital Center, 217 NLRB 775 (1975). Much of the

Board's argument — and indeed all of the pertinent directives

of Congress cited by the Board and amici herein — concern only

professional employees. When confronted with this inconvenient

fact in the past, the Board simply ignored the distinction by

stating that the judgments made by “technical” employees were

“similar” to those made by “professionals.” Beverly Manor 1, 264

at 966 n.4 (1982). This assessment has absolutely no statutory

basis. Moreover, the Board’s facile inclusion of LPNs as “pro-

fessional employees” is directly contrary to congressional intent.

* The Board's contention that Section 2(12) limits the application of Section

2(11) is also directly contrary to the expressed intent of Congress. Indeed, the

Senate Report describes as the “significance” of Section 2(12) its relation to

“section 9 [29 U.S.C. 159] which is amended by the committee bill to require

separate voting units of professional employees.” S.Rep. No. 105, 80th Cong.,

Ist Sess. 19 (1947). There is no mention of Section 2(12) acting as a restraint

of any kind on the definition of “supervisor.” The separate definition of “pro-

fessional employees” was clearly intended to provide such employees with the

opportunity to be grouped into their own bargaining units, separate from non-

professional employees. 29 U.S.C. 159(b)(1).

23

The Senate Report states that “the committee was careful in

framing a definition to cover only strictly professional groups

such as engineers, chemists, scientists, architects, and nurses.”

S.Rep. No. 105, 80th Cong., Ist Sess. 19 (1947) (emphasis added).”

2. This Court Never Approved The “Patient Care

Proviso” Test Asserted By The NLRB

| The Board incorrectly argues today that a footnote in an opin-

ion of this Court concerning university faculty members gives

the Court's imprimatur to the Board’s “patient care” test. In

Yeshiva, supra, this Court held that “[t]he Board has recognized

that employees whose decision-making is limited to the routine

discharge of professional duties in projects to which they have

been assigned cannot be excluded from coverage [of the Act].”

444 U.S. at 690. In an accompanying footnote, this Court cited

five Board cases (including Doctors’ Hospital of Modesto, Inc.,

supra), each involving “lead men” or “straw bosses”, who failed

to meet the Section 2(11) criteria.” The Court then stated that

“in the health care context” this is “a test Congress expressly ap-

proved in 1974.” 444 U.S. at 690, n.30.

Yeshiva’s approval of the traditional “straw boss” analysis in

the context of professional employees cannot remotely be

"In the current Northcrest Nursing Home case, the Board explains that

are “at least sub-professionals”, 313 NLRB No. 54, slip op. oa: citing pomp

v. Res-Care, Inc., 705 F.2d at 1466, an admission, at the least, that LPNs are

not “professionals.” In Park Manor Care Center Inc., 305 NLRB 872 (1991)

the Board clearly distinguished LPNs as “technical” and not professional

employees. The Board slurs together the “professional” RNs and the “technical”

LPNs by the glib conclusion that they both utilize “independent judgment.”

apy 313 NLRB No. 54, slip op. at 2. The Board decided

o treat non- as though they were professionals — for purposes

of union eligibility, at least. Jd. at n.10. There is no statutory support for such

* The Court cited General Dynamics Corp., 213 NLRB 851 (1974) (project

leaders akin to “leadmen”); Wurster, Bernardi, & Emmons, Inc., 192 NLRB

1049 (1971) (architects working on finite projects); Skidmore, Owings & Mer-

rill, 192 NLRB 920 (1971)(project managers and job captains working on

specific assignments); National Broadcasting Co., 160 NLRB 1440 (1966)

(broadcast newswriters only have writing authority).

24

construed as approving the Board’s higher threshold test, see

Beverly Manor II, supra, which the Board denied even existed

until 1982.

G. The ANA, Today And In 1974, Asserted Arguments

Which Are Irrelevant To The Nursing Home

Industry

The ANA makes repeated assertions about the plight of

registered nurses in hospitals. This case does not involve

registered nurses or hospitals. It concerns LPNs in a nursing

home, like many of the thousands of homes operated by AHCA

members.

Hospitals and nursing homes do not function in the same man-

ner. At the Home in the case below, there are up to 1] nurses

(RN and/or LPN) in the nursing department, and as many as

55 nurses’ aides. In a hospital, there are usually many more

nurses than there are aides. Supervision in a hospital is provid-

ed by various strata of nurses above the level of the rank-and-

file nurse. On an organization chart, the nurse in a hospital

might be the equivalent of the aide in a nursing home. By con-

trast, in a nursing home like the one at bar, the nurses provide

a necessary — often the only — level of supervision available.”

The ANA argues that if the Sixth Circuit is correct, virtually

all registered nurses in hospitals and other health care facilities

would be covered by Section 2(11). ANA Brief at 3. This is in-

correct. The response to this contention is the same as was given

by Congress in 1974: the issue should be decided on a case-by-

case basis, in light of the clear statutory mandate that is ap-

plied without fanfare in every other industry.

In sum, the ANA simply has never stopped lobbying for the

proposed amendment to the Act that Congress declined in 1974

* The Board has taken pains to express the clear difference between hospitals

and nursing homes, in terms of the services rendered, the patients served, staff-

ing patterns, and organization. Park Manor Care Center, 305 NLRB at

874-876.

25

and the Board has since resurrected. Indeed, the ANA now asks

this Court to judicially “enact” what it could not persuade Con-

gress to legislate in 1974. Such action should be left to Congress.”

CONCLUSION

The judgment of the Court of Appeals should be affirmed.

Respectfully submitted,

ANDREW A. PETERSON

THOMAS V. WALSH

PATRICK L. VACCARO

Counsel for

American Health Care Association

Jackson, Lewis, Schnitzler &

Krupman

One North Broadway, Suite 1502

White Plains, New York 10601

(914) 328-0404

* The gravamen of the Brief of amicus AFL-CIO is that the Board was com-

pelled by the legislative history of the Act to apply Section 2(11) in a manner

consonant with the “straw boss” standard. We could not agree more. Un-

fortunately, for the reasons discussed above, that is not what the Board has

The AFL-CIO also asserts that “there is no formulaic answer to the ques-

tion whether or not particular individuals are supervisors based on the direc-

tion of employees.” AFL-CIO Brief at 28. The AHCA again agrees complete-

ly. However, the Board's approach to the nurse supervisor issue has resulted

in a formulaic exclusion from the ambit of Section 2(1I).