Opposition Brief — Visiting Homemaker & Health Services, Inc. v. National Labor Relations Board

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(202) 514-2217

QUESTION PRESENTED

Whether the National Labor Relations Board rea-

sonably determined that a nurse’s direction of less-

skilled employees in the exercise of professional judg-

ment and as an incident of patient care does not make

the nurse a “supervisor” under Section 2(11) of the

National Labor Relations Act, 29 U.S.C. 152(11).

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TABLE OF CONTENTS

Opinions below .........................- snshiinedevcntiedleis

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Statement 2

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TABLE OF AUTHORITIES

Cases:

Eventide South, a Division of Geriatrics, Inc., 239

pe LE SEE een

Fall River Dyeing & Finishing Corp. v. NLRB,

PG, PETES Pe ee ee

Springfield Jewish Nursing Home, 292 N.L.R.B.

een

Sutter Community Hospitals of Sacramento, Inc.,

227 N.L.R.B. 181 (1976)

Statutes :

National Labor Relations Act, 29 U.S.C. 151 et seq.:

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§ 2(11), 29 U.S.C. 162(11) .................... Supe 4,6

§ 7, 29 U.S.C. 157 .... Sint dane 5

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§ 8(a) (1), 29 U.S.C. 158(a) (1)... asi

§ 8(a) (5), 29 U.S.C. 158 (a) (5)...

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In the Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1799

VISITING HOMEMAKER & HEALTH SERVICES, INC.,

PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF JERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR

THE NATIONAL LABOR RELATIONS BOARD

OPINIONS BELOW

The judgment order of the court of appeals (Pet.

App. Al-A2) is unpublished, but the decision is noted

at 989 F.2d 490 (Table). The decision and order of

the National Labor Relations Board (Pet. App. A3-

All) is reported at 307 N.L.R.B. No. 90. The deci-

sion and direction of election in the underlying rep-

resentation proceeding (Pet. App. A12-A19) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered

on February 11, 1993. Pet. App. A2. The petition

(1)

2

for a writ of certiorari was filed on May 11, 1993.

The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner operates a home health care agency

from its facility in Mount Holly, New Jersey, provid-

ing in-home health care and personal, homemaker,

and related services. Pet. App. Al6. To deliver care

to its clients, petitioner employs six registered and

graduate nurses and 120 home health aides. /bid.

Responsibility for the overall management of peti-

tioner’s operations is vested in an Executive Director,

a Director of Professional Services, and a Director of

Human Resources. /d. at A17; C.A. App. 21a, 152a-

154a. Petitioner also employs two coordinators who

assist the Directors. Pet. App. Al17-A18; C.A. App.

236a-248a.

When petitioner receives a request to provide ser-

vice to a new client, th= information obtained is given

to the nurse assigned to the client’s area, who visits

the client at home, evaluates the client’s needs, and

prepares a nursing care plan. The care plan, which is

subject to approval by the client’s physician, is a list

of recommended tasks and instructions for the client’s

family and for the nurse’s aide pertaining to the

home health care of the client. The nurse determines

how many hours of service by an aide are appro-

priate for each client and how many days per week

service should be provided. Pet. App. A16.

The aides are part-time employees who perform

health care and related homemaker and personal serv-

ices for petitioner’s clients. The health care serv-

ices include monitoring clients’ temperatures, ad-

e

ministering medicine, turning bedridden patients,

and aiding them in motion exercises. The homemaker

services include housecleaning, laundry, sewing and

mending, shopping, child care, running errands, and

meal planning and preparation.. The personal serv-

ices include assisting the client in exercising and

transporting the client for medical services. Pet.

App. Al6; C.A. App. 48a. On average, an aide

spends two or two-and-a-half hours per visit in a

client’s home. C.A. App. 234a.

After the nurse has developed the care plan, 4

coordinator selects and assigns an aide to the client.

Pet. App. Al6. The nurse who prepared the care

plan introduces the aide to the client, reviews the care

plan with them, and instructs the aide on the proper

procedures to be taken when caring for the client.

C.A. App. 107a-109a, 181a-183a.

Nurses periodically visit the patients while the aide

is present to assess whether the aide is properly

carrying out the care plan and to hear the patient’s

concerns. The nurses discuss any shortcomings with

the aides and report them to the coordinators or

other management officials. The nurses, however,

simply report infractions. Any discipline is imposed

by the coordinators or higher management officials

based on their own investigation. The nurses annu-

ally evaluate the aides’ performance but their eval-

uations are not the basis for continued employment

or wage increases. Pet. App. Al7-A18.

2. In July 1991, the Jersey Nurses Economic Se-

curity Organization (the Union) filed a petition with

the Board’s Regional Office seeking to represent peti-

tioner’s nurses. Petitioner opposed the petition, con-

tending that the nurses are supervisors within the

4

meaning of Section 2(11) of the Act, 29 U.S.C.

152(11), in light of the authority they exercised over

the home health aides, and are therefore precluded

from asserting the Act’s protections of organizational

activity.’ Pet. App. Al6.

The Regional Director determined that the nurses

are not statutory supervisors. He discounted peti-

tioner’s designation of the nurses as supervisors, not-

ing that “an employer’s designation of an employee

as a supervisor is not determinative of supervisory

status.” Pet. App. Al8. The Regional Director then

noted that, under Board decisions, a nurse’s direction

of less skilled employees based on the nurse’s profes-

sional judgment and as an incident of the treatment

of patients is not indicative of supervisory status.’

Finding that the nurses’ direction of the work of the

aides in this case is “incidental to their patient care

responsibilities,” he concluded that such direction

* Section 2(3) of the Act, 29 U.S.C. 152(3), excludes from

Home, 292 N.L.R.B. 1266, 1267 (1989); Eventide South, a

Division of Geriatrics, Inc., 239 N.L.R.B. 287, 289 (1978);

Sutter Community Hospitals of Sacramento, Inc., 227 N.L.R.B.

181, 198 (1976).

“does not confer supervisory status on the nurses.”

Ibid. Finally, the Regional Director found that the

nurses have no real responsibility for hiring or disci-

plining aides, and do not effectively recommend

changes in pay or tenure. Jd. at A18-A19.

Accordingly, the Regional Director directed that

an election be held in a unit of petitioner’s nurses.

Pet. App. Al3-A14. The Board denied review of the

Director’s decision. Id. at A5,n.1. The Union won

the election and was certified as bargaining repre-

sentative of petitioner’s nurses. Jd. at A5b.

3. Petitioner refused to bargain with the Union

and to supply it with relevant information. The Gen-

eral Counsel issued a complaint charging petitioner

with an unfair labor practice, and the Board entered

summary judgment, ruling that petitioner had vio-

lated Section 8(a)(5) and (1) of the Act, 29 U.S.C.

158(a)(5) and (1), and ordered it to bargain with

the Union.’ Pet. App. A6.

The court of appeals, by judgment order, enforced

the Board’s order. Pet. App. Al-A2.

* Section 8(a) (5) of the Act, 29 U.S.C. 158(a) (5), makes

it an unfair labor practice for an employer to refuse to bar-

gain with its employees’ bargaining representative. Section

8(a) (1) of the Act, 29 U.S.C. 168(a) (1), makes it an unfair

labor practice for an employer to interfere with employee

rights guaranteed by Section 7 of the Act, 29 U.S.C. 157,

which include the right of employees to bargain through their

chosen representative.

6

ARGUMENT

In determining that petitioner’s nurses are not

“supervisors” and that they are therefore entitled

to bargain collectively through a union representa-

tive, the Board applied its long-standing rule that a

nurse’s direction of less-skilled employees, in the ex-

ercise of professional judgment and incidental to the

nurse’s treatment of patients, is not, by itself, suffi-

cient to make the nurse a “supervisor” under Section

2(11) of the Act. 29 U.S.C. 152(11). Petitioner, ac-

knowledging that “this issue of ‘patient care’ and its

effect on supervisory status * * * is the heart of the

instant petition” (Pet. 11), challenges the validity of

the Board’s rule. Pet. i, Question 1.*

While we believe that the Board’s rule is a reason-

able interpretation of the statute and accordingly is

“entitled to deference from the courts,” Fall River

Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42

(1987), there is a conflict of decisions among the

circuits that have addressed this issue. To resolve

that conflict, we have recently filed a petition for a

writ of certiorari seeking review of that issue. See

National Labor Relations Board v. Health Care &

4 The second question presented by the petition asks whether

the Board’s rule “violate[s] the federal policy behind Section

2(11) of the National Labor Relations Act especially where

the registered nurses provided the Employer’s only on-site

supervision for employees in the field.” Pet. i. That reformu-

lation of the issue does not raise a separate claim, but reflects

a different way of presenting petitioner’s contention that the

Board’s “patient care” rationale is an inadequate basis for

finding that nurses with authority responsibly to direct other

employees are not “supervisors” under Section 2(11).

7

Retirement Corp. of America, No. 92-1964 (filed

June 8, 1993).° The decision in Health Care & Retire-

ment Corp. presents a better vehicle for resolution of

that issue than does this case, because, in that case

the court of appeals issued a written opinion explain-

ing its reasons for rejecting the Board’s rule, and the

decision discussed two prior circuit precedents exam-

ining the same issue. See 92-1964 Pet. 10, 16. In this

case, in contrast, the court of appeals simply entered

a judgment order. In addition, Health Care & Re-

tirement Corp. presents a second significant question

on which the circuits are divided: whether the Board

permissibly requires the party who alleges that an

employee is excluded from the Act’s protections as a

supervisor to bear the burden of proving the individ-

ual’s supervisory status. 92-1964 Pet. I, 19-22. This

case does not present that issue.

Accordingly, we believe that the Court should dis-

pose of this petition as is appropriate in light of the

Court’s disposition of the petition in Health Care &

Retirement Corp. If the Court grants the petition

in that case, it should hold the petition here pending

the outcome of that case. If the Court denies the

petition in that case, it should deny the instant

petition.

5 We have provided a copy of our petition in No. 92-1964 to

the petitioner in this case.

8

CONCLUSION

The petition for a writ of certiorari should be held

and disposed of as is appropriate in light of the

disposition of the petition for a writ of certiorari in

National Labor Relations Board v. Health Care &

Retirement Corp. of America, No. 92-1964.

Respectfully submitted.

Drew S. Days, III

Solicitor General

JERRY M. HUNTER

General Counsel

YVONNE T. DIXON” |

Acting Deputy General Counsel

NICHOLAS E. KARATINOS

Acting Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

National Labor Relations Board

JUNE 1993

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