# Opposition Brief — Visiting Homemaker & Health Services, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1161%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1994 - **Citation:** 511 U.S. 1123 ## Text : (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). (1) TABLE OF CONTENTS Opinions below .........................- snshiinedevcntiedleis 1 = 1 Statement 2 6 8 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.: | Fn 4 § 2(11), 29 U.S.C. 162(11) .................... Supe 4,6 § 7, 29 U.S.C. 157 .... Sint dane 5 5 5 ~~ _>_ DD § 8(a) (1), 29 U.S.C. 158(a) (1)... asi § 8(a) (5), 29 U.S.C. 158 (a) (5)... (IT) i ee ot Ne Se ee ee ee eee + a? | ¥ - ee tor . - ; | P 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 Al-A2) is unpublished, but the decision is noted at 989 F.2d 490 (Table).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 W ©. 8. covernmexr prarine orrice; 1993 342479 60311 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1161%3A2. Public record. Not legal advice.