Petition for Writ of Certiorari — New Medico Neurologic Center of Michigan, Inc. v. National Labor Relations Board

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: THE CLERK |

In The

Supreme Court of the United States

October Term, 1991

~ —

NEW MEDICO HEALTH CARE CENTER

OF MICHIGAN, INC.,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

James B. Perry, Esq.

Assott, NICHOLSON, QUILTER,

EssHAKI & YOUNGBLOOD, P.C.

Attorney for Petitioner

19th Floor, One Woodward Ave.

Detroit, Michigan 48226

(313) 963-2500

COCKLE LAW BRIEF PRINTING CO,, (800) 225 6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether the Court of Appeals for the Sixth Circuit

erred by enforcing an Order of the National Labor Rela-

tions Board, where the Board misapplied and improperly

expanded the doctrine of successorship by:

I. Making a successorship determination at a

time when there was no certified or recognized

collective bargaining representative at the pre-

decessor employer’s facility;

II. Making a successorship determination

before the Union demanded recognition or bar-

gaining; and

Ill. Submitting the successorship issue, which

involved unfair labor practice issues, for deter-

mination by a hearing officer ina representation

proceeding, rather than submitting it for deci-

sion by an administrative law judge in an unfair

labor practice proceeding.

LIST OF PARTIES

The parties to this cause of action in the Court of

Appeals for the Sixth Circuit were:

1. The National Labor Relations Board;

and

2. New Medico Health Care Center of

Michigan, Inc. (now known as New Medico

Neurologic Center of Michigan, Inc.), a wholly-

owned subsidiary of New Medico Associates,

Inc.

iii

TABLE OF CONTENTS

Page

Questions Presented ......-.--++ssssererrsrrcrtrt i

Stet of Parties... .....cccerecccenercncccseseencees ii

Table of Contents ..........0ccccscecccceeeoscscces iii

Table of Authorities ........-.. cece cece ere eeeee iv

Lower Court and Agency Opinions......------+++>: 1

Jurisdictional Statement. ....-.-.--+-+sse5rerre rte l

Statute Involved..........seeeeec errr eee e ernest tees 1

Statement of the Case ........----eeeeeeree rete 2

Reasons for Granting the Writ.......------+++++5°> 12

II a oc nsec ase enn ncsenncnenceeenecenescns: 13

Prayer for OS Se ae er ee ere re eee ee 29

Appendix

A. Order of the Court of Appeals for the Sixth Cir-

cuit dated December 20, 1991 ....-..---+++++:> Al

B. National Labor Relations Board Decision and

Certification of Representative Dated March 1,

Ie ccna WEASGGh beAnne eee sense sseces? A13

C. Decision and Order of the National Labor Rela-

tions Board dated August 9, 1990......------+> Al6

D. Hearing Officer’s Report and Recommendations

on Challenged Ballots and Successorship dated

July 28, 1989. .........cceceeeee eee reeceeecees A25

E. Motion to Recall Mandate Pending Application

for Writ of Certiorari dated January 23, 1992...A71

F. Denial of Motion to Recall Mandate Pending

Application for Writ of Certiorari dated February

ENE a cah chs kae ck sh andes 4 @arnaa Saha ese es A75

G. National Labor Relations Board Order Correcting

dated March 26, 1990 ees Eee aka ees came

TABLE OF AUTHORITIES

Page

Court Cases:

NLRB v. Burns International Security Services, 406

US. BIZ CASTE) vs cnccccscceescnneness 14, 16, 17, 22

Fall River Dyeing & Finishing v. NLRB, 482 U.S. 27

(DRG E so skin ccacicctecisensccesae 15, 16, 17, 18, 21, 22

Golden State Bottling Co. v. NLRB, 414 U.S. 168

‘7 | ee oer rrr errr er ote 20

NLRB v. Hudson River Aggregates, Inc., 639 F.2d 865

(2nd Cir. 1981) .........cc cece eee cence cece neeecees 23

Lawrence Typographical Union v. McCulloch, 349

F.2d 704 (D.C. Cir. 1963).......... cece cree eeeees 28

Premium Foods, Inc. v. NLRB, 709 F.2d 623 (9th Cir.

| errr reer Peter re TTT re erecta. 24, 23

BoarpD CASsEs:

Decor Noel, Inc., 283 N.L.R.B. 911, 125 L.R.R.M.

1136 (BNA) (1987). ........ cece cere eee e eee eens 22

Foothill Electric Corp., 120 N.L.R.B. 1350, 42

L.R.R.M. 1184 (BNA) (1958).......----- eee ee eee 28

Serv-U-Stores, Inc., 234 N.L.R.B. 1143, 97 L.R.R.M.

1414 (BNA) (1978)..........- cece cece cere eee eeee 24

STATUTES:

SUSE, TIED os os i vinccn dn tesa ccnccesconssavnstess 1

National Labor Relations Act § 8(a)(1), 29 U.S.C.

G5 Ceerrerrrrr pert ce eo 14

National Labor Relations Act § 8(a)(5), 29 U.S.C.

2. 3. Serer retiree iee er ere eee 11, 14, 25, 27

lenin

TABLE OF AUTHORITIES - Continued

Page

National Labor Relations Act § 10(b), 29 U.S.C.

DD scnvaccesucpncaslas Ur neinrensr ssi 24

National Labor Relations Act § 10(e), 29 USA.

rrr re aaa es 12

MISCELLANEOUS:

NLRB Rules and Regulations, Series 8, as

amended, § 102(f).....----eeeeeeeeerr etter a

NLRB Rules and Regulations, Series 8, as

amended, § 102.34. ......---eeeeseecreeeserecreees 24

NLRB Casehandling Manual, Part I, Unfair Labor

Practice Proceedings, §§ 10380-10412.......------. 27

NLRB Casehandling Manual, Part 2, Representa-

tion Proceedings, §§ 11420.1, (Eth Seer 26,

LOWER COURT AND AGENCY OPINIONS

The Order of the Sixth Circuit Court of Appeals in

National Labor Relations Board v. New Medico Health Center

of Michigan, Inc., No. 91-5271, dated December 20, 1991, is

an unreported decision and is reproduced as Appendix

The Decision and Order of the National Labor Rela-

tions Board captioned New Medico Health Care Center of

Michigan, Inc., is reported at 229 N.L.R.B. No. 50 (August

9, 1990) and is reproduced as Appendix iss

JURISDICTIONAL STATEMENT

Petitioner seeks review of the December 20, 199]

Order of the United States Court of Appeals for the Sixth

Circuit, enforcing an Order of the National Labor Rela-

tions Board, reported at 299 N.L.R.B. No. 50. The Court of

Appeals has decided an important issue of federal law

involving application of the successorship doctrine in a

way that improperly expands precedent of this Court,

and thus should be reviewed and settled by this Court.

Jurisdiction is conferred upon this Court pursuant to 28

U.S.C. § 1254(1).

STATUTE INVOLVED

The present case involves interpretation of the

National Labor Relations Act, 29 U.S.C. §§ 157 and 158,

which provides in relevant part:

29 U.S.C. § 157 (Section 7 of the Act).

Employees shall have the right to self-organiza-

tion, to form, join or assist labor organizations,

to bargain collectively through representatives

of their own choosing, and to engage in other

concerted activities for the purpose of collective

bargaining or other mutual aid or protection,

and shall also have the right to refrain from any

or all such activities except to the extent that

such right may be affected by an agreement

requiring membership in a labor organization as

a condition of employment as authorized in sec-

tion 8(a)(3) [section 158(a)(3) of this title].

29 U.S.C. § 158 (Section 8(a)(5) of the Act).

(a) [Unfair labor practices by

employer] It shall be an unfair labor practice for

an employer -

* * *

(5) to refuse to bargain collec-

tively with the representatives of his

employees, subject to the provisions of

section 9(a) [section 159(a) of this title].

STATEMENT OF THE CASE

This case arises out of an election that was conducted

by the National Labor Relations Board (the “Board”),

pursuant to a representation petition filed by the Ameri-

can Federation of State, County and Municipal

Employees, AFL-CIO (“AFSCME” or the “Union”), at a

health care facility located at 3003 W. Grand River Ave-

nue, Howell, Michigan. At the time of the election, the

facility was leased and operated by Greenbriar Care

Center, Inc. (“Greenbriar”), which was the employer of

the employees involved in that election.

On March 1, 1989, Petitioner, New Medico Health

Care Center of Michigan, Inc. (now known as New Med-

ico Neurologic Center of Michigan, Inc. and referred to

herein as “New Medico”) commenced operations at the

Howell facility. The primary issue involved in the instant

proceeding is whether the National Labor Relations

Board erred in its application of the successorship doc-

trine to require New Medico to recognize and bargain

with AFSCME pursuant to the results of the election

involving Greenbriar’s employees.

The Operations of Greenbriar

Greenbriar was a Michigan corporation, and a

wholly-owned subsidiary of Care Centers of Michigan,

Inc. (“CCM”). CCM is a Michigan corporation head quar-

tered in Farmington Hills, Michigan, and is wholly

owned by Dr. Edwin C. Blumberg. Greenbriar primarily

provided geriatric nursing Care, and was one of nine

nursing homes owned by CCM. Greenbriar did not share

any common officers with New Medico, and there was no

common ownership between the two companies, (HO at

A35).1

1 References to the hearing officer’s report are designated

as HO. References to the Decision and Certification of Repre-

sentative of the National Labor Relations Board are designated

as REP. References to the Decision and Order of the National

Labor Relations Board are designated as BD. References to the

Order of the Court of Appeals for the Sixth Circuit are desig-

nated as CA. All page cites refer to the Appendix included

herein.

Greenbriar leased the Howell facility from a real

estate investment trust called the Health and Rehabilita-

tion Properties Trust (“HRPT”) until February 28, 1989.

HRPT is a publicly traded corporation, which owns a

number of health care properties that it either sells or

leases to various health care providers. Greenbriar’s lease

for the Howell facility was terminated by HRPT effective

February 28, 1989, due to Greenbriar’s failure to make its

payments, (HO at A31; CA at A3).

The Operations of New Medico

New Medico is a Delaware corporation, and a

wholly-owned subsidiary of New Medico Health Care

Associates, Inc. (“NMA”), (HO at A29). NMA is also a

Delaware corporation with 90% of its stock owned by

Charles Braddick, and the remaining 10% of the stock

owned by family and friends of Braddick, (HO at A30).

NMA‘s headquarters are located in Boston, Massa-

chusetts.

NMA specializes in the treatment and rehabilitation

of patients with serious closed-head injuries, and oper-

ates 47 health care facilities in 15 states. Prior to purchas-

ing the Howell facility, NMA employed approximately

7,000 individuals, (HO at A29-30). NMA’s purchase of the

Greenbriar facility was intended to permit New Medico

to become a major provider of such services out of the

Howell, Michigan facility.

Neither New Medico, its parent company, NMA, nor

Braddick have any ownership interest in HRPT, but

merely have a history of leasing and purchasing facilities

from HRPT pursuant to various arms-length transactions.

New Medico’s Negotiations with HRPT to Lease the Howell

Facility

In late January of 1989, NMA’s President, Jeffrey

Goldshine, was contacted by Mark Finkelstein, a manager

of HRPT’s leasing division, and was advised that the

tenant at the Howell, Michigan facility (Greenbriar) was

operating a skilled nursing home but had defaulted on

rent payments, (HO at A31; CA at A3). Finkelstein asked

Goldshine if NMA would be interested in leasing the

Howell property from HRPT and running a health care

facility there, (HO at A31).

Since New Medico was interested in establishing a

closed-head injury treatment and rehabilitation center in

Michigan, Goldshine entered into negotiations for a lease

with HRPT for the Howell facility, which resulted in an

agreement being reached between NMA and HRPT on

Friday, February 17, 1989, (HO at A31; CA at A3). The

agreement consisted of a three-year lease, with rental

payments to begin March 1, 1989, (HO at A32; CA at A3).

All negotiations for this lease were conducted exclusively

between representatives of New Medico and HRPT. NMA

had no contact with the principals of Greenbriar or CCM

before entering into the lease agreement with HRPT, (HO

at A32).

On Monday, February 22, 1989, NMA representatives

visited the Howell facility to determine what needed to

be done in order to begin running the facility on March 1,

1989. During that visit, NMA found out for the first time

that an NLRB election had been held on February 17, 1989

between Greenbriar and AFSCME, (HO at A31). They

also learned of a 21 page report of deficiencies from the

innate

State of Michigan against Greenbriar concerning various

patient care matters, (HO at A31). NMA’s President,

Jeffrey Goldshine, was on vacation the week of February

19, so did not learn of the election until February 27, 1989,

(HO at A31)

The Beginning of Operations by New Medico

On March 1, 1989, a three-year lease between New

Medico and HRPT for the Howell facility was executed,

and New Medico began operations at the facility, (HO at

A32; CA at A3). At that time, the first and only negotia-

tions between representatives of New Medico and repre-

sentatives of Greenbriar were conducted, as New Medico

purchased a small amount of consumable supplies from

Greenbriar, including bandages and catheters, for use at

the facility, (HO at A32).

When New Medico began operations at the Howell

facility, there was no recognized or certified collective

bargaining representative in existence. Although the

NLRB election involving Greenbriar’s ‘employees had

been held, the results of that election had not yet been

determined because of the Union’s unresolved challenges

and objections. As a result, AFSCME made no demand at

that time that New Medico recognize or bargain with it as

the exclusive representative of any of New Medico’s

employees.

Due to the nature of the industry and the need to

provide continuing care for the patients in the Howell

facility which became New Medico’s responsibility effec-

tive March 1, 1989, New Medico offered employment to

all of Greenbriar’s employees, except for its administra-

tor, (HO at A32; CA at A3). Most of Greenbriar’s

employees accepted positions with New Medico. New

Medico also began hiring additional employees, (HO at

A32; CA at A3). Even so, New Medico could not properly

care for all of the patients in the facility at that time, so

some were transferred to hospitals, (HO at A32).

After assuming operations at the Howell facility,

New Medico made significant changes in operations from

those employed by Greenbriar, including the elimination

of Greenbriar’s practice of utilizing aides from other

facilities, the reduction of overtime, and the implementa-

tion of incentives in order to attract employees. Such

incentives included an increase in wage rates of $.75 to

$2.00 per hour, a shift premium of $.25 per hour, a special

care unit premium of $.50 per hour, and a bonus program

to reward employees for attracting new employees to the

facility, (HO at A33). In addition, New Medico imme-

diately began correcting the problems listed on the 21

page deficiency report from the State of Michigan, (CA at

A3).

New Medico’s Planned Changes for the Facility

In order to establish a facility specializing in the

rehabilitation and treatment of traumatic brain injuries,

New Medico planned to completely renovate and recon-

struct the Howell facility and add significant amounts of

new equipment, (HO at A33; CA at A4). New Medico’s

plans called for a reduction of the number of beds from

approximately 180 to 160 to provide space for rehabilita-

tion programs and to provide for about 40 beds, or one-

quarter of the total, which would be designated for trau-

matic brain injury patients, (HO at A34).

New Medico’s plans also called for a dramatic

increase in the number of employees, (HO at A34; CA at

A4). The number of nursing assistants was to double, and

additional physical therapists and respiratory therapists

were to be hired, (HO at A34). The addition of a reha-

bilitation department was to result in a substantial

increase in aides in the following departments: dietary,

housekeeping, activities, physical therapy, and recre-

ational therapy. (HO at A34). In addition, a number of

new Classifications and departments were to be added so

that New Medico could employ occupational therapists,

occupational therapy aides, speech pathologists, voca-

tional counselors, social workers, psychologists, mental

health aides, special educators, special education aides,

and transportation aides, (HO at A34). No determination

was made as to how many of New Medico’s new

employees should properly be included in the bargaining

unit. However, as of March 9, 1989, slightly more than

one week after commencing operations, New Medico

employed approximately 134 unit employees, all but four

of whom previously worked for Greenbriar, (HO at A34,

fn. 12).

The Representation Proceeding

On December 15, 1988, AFSCME filed a petition with

the National Labor Relations Board in Case No.

7-RC-18856 seeking to represent a unit of employees

employed by Greenbriar at the Howell facility. AFSCME

and Greenbriar entered into a Stipulated Election Agree-

ment, which was approved by the NLRB’s Regional

Director for the Seventh Region on January 6, 1989.

On February 17, 1989, before any NMA officials vis-

ited the Howell facility in anticipation of purchasing it

and ten days before NMA’s president learned that a

petition had been filed, the NLRB conducted an election

in the following bargaining unit:

All full-time and regular part-time nurses

aides, physical therapy aides, laundry

employees, activity employees, dietary aides,

cooks, housekeeping employees, ward clerks,

and maintenance employees employed by Green-

briar at its facility located at 3003 W. Grand

River Avenue, Howell, Michigan; but excluding

all LPNs, RNs, technical employees, respiratory

therapists, office clerical employees, casual

employees, temporary employees, guards, and

supervisors as defined in the Act. (Emphasis

added).

Of the approximately 106 employees eligible to vote

in that election, 41 cast ballots for, and 37 against, the

Union. Ten ballots cast during the election were chal-

lenged by the Union, a number sufficient to determine

the outcome of the election, (HO at A27). In addition,

AFSCME filed objections to the election.

When New Medico commenced operations at the

facility on March 1, 1989, the NLRB was still conducting a

preliminary investigation of the challenged ballots and

objections. Thereafter, the Regional Director for Region 7

scheduled a hearing concerning the challenges. The objec-

tions were withdrawn. In ordering the hearing concern-

ing the challenges, the Regional Director ordered the

Hearing Officer to also take evidence on the successor-

ship issue, and any bargaining obligations imposed upon

New Medico as a result thereof, (HO at A28-29). New

Medico offered to stipulate to a prompt election for its

employees, to determine whether they were in fact inter-

ested in AFSCME representation. This offer was rejected

by both AFSCME and the NLRB Regional Office.

A hearing was held before Hearing Officer Raymond

Kassab on March 30 and 31, and April 3, 1989. The

Hearing Officer issued his Report and Recommendations

on Challenged Ballots and Successorship on July 28, 1989.

The Hearing Officer recommended, among other things,

that the results of the election be certified, indicating that

the Union had received a majority of the ballots cast. The

Hearing Officer further recommended that New Medico

be found to be a successor to Greenbriar and therefore be

required to bargain with the Union for employees in the

bargaining unit as set forth in the Stipulated Election

Agreement between AFSCME and Greenbriar, (HO at

A69).

On March 1, 1990, the NLRB issued its Decision and

Certification of Representative, adopting the Hearing

Officer’s findings and recommendations, (REP at A13-14).

However, the NLRB’s March 1, 1990 certification con-

cerned Greenbriar’s, not New Medico’s, employees. The

certification reads as follows:

All full-time and regular part-time nurses

aides, physical therapy aides, laundry

employees, activity employees, dietary aides,

cooks, housekeeping employees, ward clerks,

and maintenance employees employed by Green-

briar at its facility located at 3003 W. Grand

Avenue, Howell, Michigan; but excluding all

————

LPNs, RNs, technical employees, respiratory

therapists, office clerical employees, casual

employees, temporary employees, guards and

supervisors as defined in the Act. (REP at

A14-15, emphasis added).

On March 26, 1990 the NLRB issued an “Order Cor-

recting” in which, without explanation, it replaced Green-

briar with New Medico in the unit description, (see

Appendix G).

The Unfair Labor Practice Proceeding

On March 7, 1990, AFSCME demanded, for the first

time, that New Medico recognize and bargain with it, as

the successor to Greenbriar, for the employees in the

bargaining unit involving Greenbriar’s employees. New

Medico declined, indicating that it believed the certifica-

tion by the Board to be in error. New Medico did, how-

ever, again offer to stipulate to an election for its

employees. This offer was again rejected by both

AFSCME and the Board.

On March 22, 1990, AFSCME filed an unfair labor

practice charge in Case No. 7-CA-30357 alleging that New

Medico violated § 8(a)(5) of the National Labor Relations

Act, 29 U.S.C. § 158.5, by refusing to bargain. Thereafter,

the Board’s General Counsel moved for summary judg-

ment. On August 9, 1990, the Board issued its Decision

and Order, reported at 299 N.L.R.B. No. 50, granting the

General Counsel’s Motion for Summary Judgment and

ordering New Medico to recognize and bargain with

AFSCME, (BD at A18, 20). The stated basis for the Board’s

decision was that no representation issues were raised

that could properly be litigated in an unfair labor practice

proceeding, (BD at A17; CA at AS). Thus, no independent

investigation was conducted with respect to the suc-

cessorship issue, and the matter was never presented to

or ruled upon by an administrative law judge.

On March 4, 1991, the Board applied to the United

States Court of Appeals for the Sixth Circuit for enforce-

ment of its Order pursuant to Section 10(e) of the Act, 29

U.S.C. § 160(e). On December 20, 1991, the Court of

Appeals enforced the NLRB’s Order, (CA at A12). With

respect to the successorship issue, the Court of Appeals

determined that the Hearing Officer correctly analyzed

the successorship issue as of March 1, 1989, when New

Medico commenced operations at the facility, rather than

requiring such analysis to be conducted at a time when

the Union was certified and demanded bargaining.

According to the Sixth Circuit, “Any other position only

encourages new owners to circumvent its obligations by

filing challenges to certification.” (CA at A8). The Court

of Appeals also rejected New Medico’s request for a

hearing before an administrative law judge, concluding

that the Hearing Officer could properly determine that

New Medico participated in unfair labor practices, (CA at

A9).

The Court of Appeals’ mandate issued on January 13,

1992. New Medico’s Motion to Recall Mandate was

denied by the Court of Appeals on February 3, 1992.

REASONS FOR GRANTING THE WRIT

By enforcing the National Labor Relations Board’s

Order requiring New Medico to recognize and bargain

with AFSCME as a successor employer, the U.S. Court of

) . _ |

Appeals for the Sixth Circuit has sanctioned an extreme

departure from the precedent of this Court with respect

to the successorship doctrine, and has decided an impor-

tant issue of Federal labor law which should be settled by

this Court.

ARGUMENT

The Court of Appeals for the Sixth Circuit Erred by

Enforcing an Order of the National Labor Relations

Board, Which Misapplied and Improperly Expanded the

Successorship Doctrine.

The election in this case was held pursuant to a

Stipulated Election Agreement between AFSCME and

Greenbriar, and involved the employees of Greenbriar,

not New Medico. Nevertheless, the Board determined

that the results of the election should be binding upon

New Medico, pursuant to the successorship doctrine.

The Board, with approval from the Circuit Court of

Appeals for the Sixth Circuit, failed to properly apply the

successorship doctrine in this case. First, the Board erred

by analyzing the successorship issue at a time when there

was no recognized or certified collective bargaining rep-

resentative at the Howell facility, and no demand by

AFSCME upon New Medico for recognition or bargain-

ing. The Board also erred by submitting the successorship

issue, which resulted in the finding that New Medico

committed an unfair labor practice, for determination by

a hearing officer in a representation proceeding, rather

than submitting it for decision by an administrative law

judge in an unfair labor practice proceeding.

I. The National Labor Relations Board Erred in Mak-

ing the Successorship Determination at a Time

When No Certified or Recognized Collective Bar-

gaining Representative Existed at the Howell Facil-

ity.

This Court first dealt with the issue of a successor

employer’s obligation to bargain with a union that had

represented the employees of its predecessor in NLRB v.

Burns International Security Services, 406 U.S. 272 (1972).

Focusing on the “precise facts” involved in Burns, this

Court determined that the Board and the U.S. Court of

Appeals properly determined in that case that Burns, as a

successor employer to the Wackenhut Corporation, vio-

lated Sections 8(a)(5) and 8(a)(1) of the National Labor

Relations Act by refusing to recognize and bargain with

the United Plant Guard Workers of America (UPGWA).

Critical to this Court’s decision in Burns was the fact

that the employees of the predecessor employer, the

Wackenhut Corporation, had only a few months prior to

the change in operations selected the UPGWA as their

collective bargaining representative in an NLRB election,

and the UPGWA had been certified by the Board prior to

the time that Burns took over.

In explaining its decision to require Burns to recog-

nize and bargain with the union, this Court stated as

follows:

Burns’ obligation to bargain with the union

over terms and conditions of employment

stemmed from its hiring of Wackenhut’s

employees and from the recent election and

Board certification. (Emphasis added).

Id. at 278 and 279.

This Court also stated that in evaluating the bargain-

ing obligations of Burns as a successor employer, it was

“imperative that the situation be viewed as it was when

Burns hired its employees for the guard unit, a majority of

whom were represented by a Board-certified union.”

(Emphasis added). Id. at 280. This Court further stated

that “it would be different if Burns had not hired employees

already represented by a union certified as a bargaining

agent... .” (Emphasis added). Id. at 280.

In Fall River Dyeing & Finishing Corp. v. NLRB, 482

U.S. 27 (1987), this Court again addressed the successor-

ship doctrine to decide issues left open in Burns, because

of the “importance of the successorship issue in labor

law....” Id. at 36.

In Fall River, the union had represented a unit of

employees at the Sterlingwale Corporation for over 30

years. In February 1982, all of Sterlingwale’s employees,

who at that time were still covered by a collective bar-

gaining agreement between the company and the union,

were laid off. Sterlingwale was thereafter liquidated. In

September 1982, Fall River began operating out of Ster-

lingwale’s facilities, and initially sought to hire one shift

of approximately 55 to 60 employees with a goal of later

adding a second shift if business permitted.

When the union demanded that Fall River recognize

and bargain with it in October of 1982, Fall River had 21

employees, 18 of whom had previously worked for Ster-

lingwale. Fall River refused the union’s demand. Fall

River continued expanding its workforce, and by January

it had attained its goal of one shift of workers, a majority

of whom had previously worked for Sterlingwale. It was

not until mid-April 1983 that Fall River had, for the first

time, more employees who had not been employed by

Sterlingwale than employees who had.

Of primary importance in the instant case is this

Court’s analysis in Fall River of the application of the

successorship doctrine where, unlike the situation in

Burns, the union had not been recently certified. This

Court concluded that a successor’s obligation to bargain

was not limited to a situation where the union in question

had been recently certified, but rather would extend also

to a situation where the union “has a rebuttable presump-

tion of majority status.” Fall River, Id. at 41.

As this Court explained in Fall River, there are two

presumptions following the certification of a union. First,

after a union has been certified by the Board as a bargain-

ing unit representative, it usually is entitled to a conclu-

sive presumption of majority status for one year

following the certification. Second, after this one-year

period expires, the union is entitled to a rebuttable pre-

sumption of majority status. In Fall River, this Court

recognized the importance of these presumptions in the

successorship situation, stating as follows:

The rationale behind the presumptions is

particularly pertinent in the successorship situa-

tion and so it is understandable that the Court

in Burns referred to them. During a transition

between employers, a union is in a peculiarly

vulnerable position. It has no formal and estab-

lished bargaining relationship with the new

employer, is uncertain about the new

employer’s plans, and cannot be sure if or when

the new employer must bargain with it. While

being concerned with the future of its members

eater

with the new employer, the union also must

protect whatever rights still exist for its mem-

bers under the collective-bargaining agreement

with the predecessor employer. Accordingly,

during this unsettling transition period, the

union needs the presumptions of majority status

to which it is entitled to safeguard its members’

rights and to develop a relationship with the

successor.

Id. at 39.

It was the first presumption, the one-year conclusive

presumption following certification, that the Court in

Burns relied upon in determining that the successor

employer must recognize and bargain with the represen-

tative of the predecessor’s employees. In Fall River, a

similar conclusion was reached based upon the second

presumption, the rebuttable presumption following expi-

ration of this one-year period. In the instant case,

AFSCME was not entitled to either presumption at the

time that the Board made its successorship determina-

tion. The Union had not been recognized or certified as

the representative of any employees at the Howell facility

on March 1, 1989 when New Medico commenced opera-

tions, and no collective bargaining relationship existed

between AFSCME and Greenbriar. Nevertheless, the

Board and the Court of Appeals determined that it was

appropriate to make a successorship determination as of

that date. This determination not only has no preceden-

tial support, a fact recognized by the Court of Appeals,

but is in conflict with this Court’s decisions in Burns and

Fall River.

In explaining why it was requiring New Medico to

bargain with AFSCME despite the absence of precedent

for its position, the Court of Appeals stated that it could

“think of no reason” why the determination of the suc-

cessorship issue should be made only after certification of

a union. However, this Court gave such reasons in its

decision in Fall River, when discussing the policy consid-

erations for requiring that a union enjoy a presumption of

majority status for the predecessor’s employees before a

successor employer will be required to bargain with it. In

this regard, this Court stated as follows:

These presumptions are based not so much

on an absolute certainty that the union’s major-

ity status will not erode following certification,

as on a particular policy decision. The overrid-

ing policy of the NLRB is “industrial peace.”

The presumptions of majority support further

this policy by “promot{ing] stability in collec-

tive-bargaining relationships, without impairing

the free choice of employees.”

Fall River, 482 U.S. at 38 (citations omitted).

Since there was no collective bargaining relationship

at all between Greenbriar and AFSCME, application of

the successorship doctrine will not further the Act’s pol-

icy of promoting industrial peace. However, it will seri-

ously undermine the Act’s further policy of employee

free choice.

Prior to March 1, 1989, employees at the Howell

facility were employed by an employer that could not pay

its bills, had been written up by the State of Michigan for

deficiencies that took 21 pages to list, and was otherwise

placing the employees in a very unstable work environ-

ment. It was under these circumstances that 43 of Green-

briar’s approximately 106 employees at the time of the

election voted for union representation, a number ulti-

mately certified as a majority (by one vote) of the valid

votes counted. By March 9, 1989, New Medico employed

over 130 employees in the bargaining unit in question.

Although New Medico took over the same physical

facility as Greenbriar, and continued to care for its

patients, there was not a substantial continuity of the

same operations. Rather, the facility was to be radically

redesigned, remodeled, and reconstructed to provide the

superior care and rehabilitation services for traumatic

closed head injury cases, a practice foreign to Greenbriar

but within New Medico’s specialty. In order to begin to

implement those changes, New Medico applied for its

own license, and began to establish its own relationship

with suppliers and providers of services. Once New Med-

ico corrected the 21 page list of deficiencies assessed by

the State of Michigan against Greenbriar, and could start

admitting new patients, its operations were to be vastly

more than those of a geriatric nursing home which was

run by Greenbriar. As such, New Medico’s operations

required the use of vast amounts of new technology and

equipment in order to render the different services that it

would provide, as compared to the limited services pro-

vided by Greenbriar.

The jobs provided by New Medico were also very

different and under different conditions than those that

were present under Greenbriar. New Medico assigned its

own administrator to the facility effective March 1, 1989,

and also began working under its rules and procedures

which are established and controlled by NMA in Boston.

Unlike Greenbriar, New Medico had the financial

resources needed to develop the Howell facility into a

first-class provider of health care and rehabilitation.

In order to demonstrate its commitment to its

employees at the Howell facility, New Medico imme-

diately, upon beginning operations, established much

higher wage rates for its employees, resulting in

$.75-$2.00 per hour increases over former Greenbriar

rates for employees in the bargaining unit. New Medico

also added significant benefits: $.25 per hour shift pre-

miums, $.50 per hour special care unit premiums, and a

bonus program to reward employees for attracting new

employees to the facility. In addition, New Medico elimi-

nated many Greenbriar practices.

The types of employees employed by New Medico in

comparison to those employed by Greenbriar also

changed dramatically after New Medico assumed opera-

tions of the facility. New classifications of occupational

therapists, occupational therapy aides, speech patholo-

gists, vocational counselors, social workers, psycholo-

gists, mental health aides, special educators, special

education aides, and transportation aides were added, as

were larger numbers of nursing assistants, physical thera-

pists, respiratory therapists, dietary aides, housekeeping

aides, activities aides, physical therapy aides, and recre-

ational therapy aides. Many of the new classifications

may appropriately have been included in the stipulated

bargaining unit had they been in existence when the unit

description was agreed upon between Greenbriar and

AFSCME.

In view of these significant changes, it cannot be said

that, viewed from the perspective of the employees, their

job situation remained basically unaltered. See Fall River,

482 U.S. at 43; Golden State Bottling Co. v. NLRB, 414 U.S.

168, 184 (1973). Rather, there is a serious question con-

cerning the attitude that these employees may have

toward representation, which only an election can

resolve. Indeed, within a week after commencing opera-

tions at the Howell, Michigan facility, New Medico

employed approximately 134 employees in the classifica-

tions set forth in the bargaining unit description agreed

upon between Greenbriar and the Union, only 43 of

whom had cast votes in favor of union representation.

For this reason, New Medico immediately offered to stip-

ulate to another election, in order to give its employees

the free and fair choice of bargaining representative guar-

anteed by Section 7 of the NLRA.

Since there was no existing collective bargaining rela-

tionship between Greenbriar and the Union at the time

that New Medico commenced operations at the facility,

the Act’s equally important policy of promoting

employee free choice should have been paramount in this

case. The Regional Office of the Board should simply

have scheduled another election between New Medico

and AFSCME, so that this matter would have been

resolved without interfering with the right of free choice

of New Medico’s employees.

Il. The National Labor Relations Board Erred by Mak-

ing a Successorship Determination Before the

Union Demanded Recognition or Bargaining.

As discussed above, when New Medico began opera-

tion at the Howell facility on March 1, 1989, there was no

union certified or recognized as the bargaining represen-

tative for any employees at that facility. It was not until

March 1, 1990, that the Union was certified to represent a

unit of Greenbriar’s employees. Thus, there was no

demand by AFSCME until March 7, 1990 that New Med-

ico recognize or bargain with it as a successor employer

to Greenbriar.

The presence or absence of a bargaining demand is

crucial in determining when an evaluation of the compo-

sition of a successor’s workforce under this Court’s Burns

decision is to be made. This Court answered that question

in Fall River, when it accepted the “substantial and repre-

sentative complement” rule utilized by the Board. Under

this rule, the Board must determine whether the job clas-

sifications were filled or substantially filled and whether

the operation was in normal or substantially normal pro-

duction before it will evaluate a successor’s workforce for

purposes of determining majority status under Burns. Fall

River, 482 U.S. at 49; See also Premium Foods, Inc. v. 2JLRB,

709 F.2d 623, 628 (9th Cir. 1983).

In applying the substantial and representative com-

plement rule in Fall River, this Court also stated as fol-

lows: “The successor’s duty to bargain at the ‘substantial

and representative complement’ date is triggered only

when the union has made a bargaining demand.” Fall

River, 482 U.S. at 52. See also Decor Noel, Inc., 283 N.L.R.B.

911, 915, 125 L.R.R.M. 1136 (BNA) (1987).

Since the Hearing Officer made the successorship

determination as of March 1, 1989, when New Medico

first began operations at the Howell facility, he could not,

and did not, properly answer the question as to whether

——

a substantial and representative complement of

employees had been hired as of March 7, 1990, when the

Union demanded recognition. Nor did he make a proper

determination as to whether on that date New Medico

employed in the bargaining unit a majority of employees

who had previously worked for Greenbriar.

The Hearing Officer’s reliance on Premium Foods, Inc.

v. NLRB, supra, and NLRB v. Hudson River Aggregates, Inc.,

639 F.2d 865 (2nd Cir. 1981) as support for his conclusion

that the proper time for determining whether a substan-

tial and representative compliment of employees existed

was when new Medico took over the operations is mis-

placed. Unlike the instant case, in both Premium Foods and

Hudson River Aggregates, a union represented a unit of the

predecessor’s employees at the time of the sale of the

business. In both cases, the unions made demands upon

the successor employers for recognition, and the Board

concluded that a substantial and representative comple-

ment of employees existed as of the date when the bar-

gaining demand was made.

Since the NLRB did not, and could not, consider

whether, at the time that AFSCME demanded bargaining,

New Medico employed a substantial and representative

complement of employees, a majority of whom had previ-

ously been employed by Greenbriar, it improperly

ordered New Medico to recognize and bargain with the

Union as a successor employer.

III. The National Labor Relations Board Erred by

Improperly Submitting the Successorship Issue,

Which Involved Unfair Labor Practice Issues, for

Determination by a Hearing Officer in a Represen-

tation Proceeding, Rather Than Submitting it for

Decision by an Administrative Law Judge in an

Unfair Labor Practice Proceeding.

When an employer is accused of committing an

unfair labor practice under the Act, the Board has the

authority to issue a formal complaint. See Section 10(b) of

the Act, 29 U.S.C. §160(b). When such a complaint is

issued, NLRB Rules and Regulations, Series 8, as

amended, Section 102.34, provide for a hearing before an

administrative law judge. The specific rule reads as fol-

lows:

Sec. 102.34. Who shall conduct; to be public

unless otherwise ordered. - The hearing for the

purpose of taking evidence upon a complaint

shall be conducted by an administrative law

judge. . . . (Emphasis added.)

In this case, New Medico was denied an opportunity

for such a hearing, because the Board determined that

“{A]ll representation issues raised by the Respondent

were or could have been litigated in the prior representa-

tion proceeding.” Thus, the Board granted the motion of

the General Counsel for summary judgment.

The Board’s decision in this respect apparently relies

upon the general principle that, where representation

case findings are “related” to subsequent unfair labor

practice proceedings, such findings may not be relitigated

in an unfair labor practice hearing. Serv-U-Stores, Inc., 234

N.L.R.B. 1143, 97 L.R.R.M. 1414 (BNA) (1978); Section

102(f) of the Board’s Rules and Regulations.

In the instant case, the representation issues which

may properly be determined to be “related” to the unfair

labor practice case would involve only the eligibility of

various employees.? Once the representation issues are

properly resolved, the Board may then determine

whether a majority of an employer’s employees selected

a union as their collective-bargaining representative. That

is precisely what happened in the instant case, when the

Board issued its decision and certification of representa-

tive on March 1, 1990, certifying AFSCME as the exclu-

sive collective-bargaining representative for a unit of

Greenbriar’s employees. The Board's error occurred 25

days later when, without explanation, it “corrected” its

certification to cover New Medico’s employees.

It is only after a certification issues and a union’s

demand for bargaining is rejected by an employer that

unfair labor practice issues arise under Section 8(a)(5) of

the Act, which makes it an unfair labor practice for an

employer to refuse to bargain collectively with the repre-

sentative of its employees.

In the instant case, the Board relied upon the suc-

cessorship finding of the hearing officer in determining

that an unfair labor practice had been committed under

Section 8(a)(5) of the Act. No independent investigation

2 The supervisory status of Susan Griffin, whose chal-

lenged ballot was an issue in this case, would be such a

“related” issue that Petitioner agrees could not properly be

relitigated in an unfair labor practice proceeding.

was conducted by the Board concerning the successor-

ship issue as of March 7, 1990 when the Union demanded

recognition, and no hearing was held before an adminis-

trative law judge.

The Court of Appeals, in enforcing the Board’s order,

simply held that, since it had decided that the hearing

officer could determine the successorship issue before

resolution of challenges to a representation election, the

hearing officer in a representation case “may also deter-

mine prior to resolution of challenges to a representation

election that New Medico participated in unfair labor

practices.” The Court of Appeals decision in this regard is

erroneous in at least two respects. First, it simply com-

pounds its error in determining that the successorship

issue may be analyzed prior to a time when a certified or

recognized bargaining representative exists, and prior to

any demand by such bargaining representative that the

successor employer recognize and bargain with it. In

addition, the Court of Appeals’ decision in this regard is

in direct conflict with rules concerning NLRB procedure.

The National Labor Relations Board Casehandling

Manual, Part 2, Representation Proceedings, Section

11420.1, provides as follows:

Procedures if Unfair Labor Practice Charge is

Involved: In the event there are objections to an

election and unfair labor practice charges, both

of which cover, in whole or in part, the same

grounds, the complaint and objections normally

should be consolidated for hearing.

In such case (and even though challenges

also may be consolidated), the procedures appli-

cable to the hearing are mixed. To the extent that

the alleged unfair labor practices are involved,

the procedures set forth in Sections 10380-10412

should be adhered to; to the extent that objec-

tions (and/or challenges), the substance of

which does not coincide with the substance of

the alleged unfair labor practices, are involved,

the procedures set forth in this section should be

adhered to; to the extent that there is overlap-

ping, ambiguity, or conflict, the procedures set

forth in Sections 10380-10412 should be adhered

to.

In this case, the unfair labor practice issue is whether

New Medico violated Section 8(a)(5) of the Act by refus-

ing to bargain with AFSCME as a successor employer to

Greenbriar. This issue is conditional upon a finding of

successorship. Thus, pursuant to Section 11420.1, the

issues were to be consolidated for hearing, and pro-

cedures set forth in Sections 10380-10412 of the National

Labor Relations Board’s Casehandling Manual, Part 1,

Unfair Labor Practice Proceedings, governs. Those sec-

tions apply to the hearing procedure in unfair labor prac-

tice proceedings before an administrative law judge.

Section 10380 provides as follows:

Rule and Conduct of Trial Attorney: The trial

attorney is an advocate. As the representative of

the General Counsel, who has caused a com-

plaint to be issued, it is his/her duty to intro-

duce admissible evidence which will support

the allegations of the complaint.

By contrast, the role of a hearing officer in a repre-

sentation hearing is defined in National Labor Relations

Board Casehandling Manual, Part 2, Representation Pro-

ceedings, at Section 11424.3, as follows:

The hearing officer is not an advocate of any

position. He/She must be impartial in his/her

rulings and in his/her conduct both on and off

the record. (Emphasis in the original.)

The above sections of the National Labor Relations

Board’s Casehandling Manuals clearly indicate that,

where unfair labor practice issues are involved, such

issues are to be heard by an administrative law judge,

and not a hearing officer in a representation case, because

of the contrasting nature of the proceedings.

That a hearing officer in a representation proceeding

cannot determine unfair labor practice issues has been a

long and well-recognized principle in labor law. As such,

National Labor Relations Board Casehandling Manual,

Part Two, Representation Proceedings, §11228 specifically

precludes even evidence of unfair labor practices from

being admitted into evidence by a hearing officer. See

also Foothill Electric Corp., 120 N.L.R.B. 1350, 42 L.R.R.M.

1184 (BNA) (1958); Lawrence Typographical Union v.

McCulloch, 349 F.2d 704 (D.C. Cir. 1965). The Court of

Appeals’ determination that “the hearing officer may also

determine . . . that New Medico participated in unfair

labor practices” is a substantial departure from this rec-

ognized principle.

For these reasons, the Board’s failure to investigate

the successorship issue as of the time that New Medico

rejected the Union’s demand for bargaining, and to afford

New Medico an opportunity to defend against unfair

labor practice allegations in a hearing before an adminis-

trative law judge, was in error.

PRAYER FOR RELIEF

Petitioner, New Medico Health Care Center of Michi-

gan, Inc., respectfully requests that this Honorable Court

grant its Petition for Writ of Certiorari, or alternatively

remand this case to the National Labor Relations Board

for a hearing before an administrative law judge on the

unfair labor practice issue.

Dated: March 16, 1992

Respectfully submitted,

Assott, NICHOLSON, QUILTER,

EssHAKI & YOUNGBLOOD, P.C.

By: James B. PERRY

Attorneys for Petitioner,

New Medico Health Care

Center of Michigan, Inc.

19th Floor, One Woodward Ave.

Detroit, Michigan 48226

(313) 963-2500

APPENDIX A

NOT FOR PUBLICATION

91-5271

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NATIONAL LABOR ) ON PETITION TO

RELATIONS )REVIEW AND ENFORCE

BOARD, ) AN ORDER OF THE

— ) NATIONAL LABOR

Plaintiff-Appellant, =) RELATIONS BOARD.

vV. ) (Filed

NEW MEDICO HEALTH ? Dec. 20, 1991)

CARE CENTER OF )

MICHIGAN, INC.,

Defendant-Appellee. _)

NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION

Sixth Circuit Rule 24 limits citation to specific

situation. Please see Rule 24 before citing in a

proceeding in a court in the Sixth Circuit. If

cited, a copy must be served on other parties

and the Court.

This notice is to be prominently displayed if

this decision is reproduced.

BEFORE: KEITH and NELSON, Circuit Judges; and

HOOD, District Judge.”

* The Honorable Joseph M. Hood, United States District Judge

for the Eastern District of Kentucky, sitting by designation.

PER CURIAM: Plaintiff-appellant, National Labor

Relations Board (“NLRB” or “~BOARD”) requests that this

Court enter a judgment enforcing its order requiring New

Medico Health Care Center of Michigan, Inc. (“New Med-

ico”) to engage in collective bargaining. The NLRB ruled

that New Medico violated Section 8(a)(5) and (1) of the

National Labor Relations Act (“the Act”) (29 U.S.C.

158(a)(5) and (1)) by refusing to bargain with the Ameri-

can Federation of State, County and Municipal

Employees (“AFSCME”) after it had been certified by the

NLRB as the exclusive bargaining representative of an

appropriate unit of New Medico’s employees. For the

reasons stated below, we ENFORCE the order of the

Board.

In December 1988, AFSCME filed a petition with the

NLRB seeking to represent a unit of employees at Green-

briar Care Center (“Greenbriar”) in Howell, Michigan.

Pursuant to a stipulated election agreement, the NLRB

conducted an election by secret ballot among the unit

employees of Greenbriar on February 17, 1989.** A tally

** The bargaining unit was defined as follows:

All full-time and regular part-time nurses aides, physical ther-

apy aides, laundry employees, activity employees, dietary

aides, cooks, housekeeping employees, ward clerks and main-

tenance employees employed by Greenbriar at its facility

located at 3003 W. Grand River Avenue, Howell, Michigan; but

excluding all LPNs, RNs, technical employees, casual

employees, temporary employees, guards, and supervisors as

defined by the Act

of the ballots showed that of the 88 valid votes cast, 41

were for AFSCME and 37 were against it. AFSCME chal-

lenged the remaining 10 ballots, leaving the outcome of

the union election in doubt.

Greenbriar leased the real property at the Howell site

from Health and Rehabilitation Properties Trust

(“HRPT”), a Maryland real estate investment trust. In

January 1989, a HRPT official contacted New Medico

Health Care Associates, Inc. (“NMA”), New Medico’s

parent company, and asked if NMA would be interested

in becoming the tenant of the Greenbriar facility because

Greenbriar had failed to meet its lease obligations. On

February 17, 1989, new Medico agreed to a three-year

lease beginning on March 1, 1989.

On February 27, 1989, Greenbriar employees were

notified by letter of New Medico’s impending assump-

tion of Greenbriar’s lease. The letter encouraged Green-

briar employees to apply for positions with New Medico.

Employees were told that New Medico would consider

years of service with Greenbriar to establish the wage

rate for hired employees. New Medico’s wages were

higher than Greenbriar’s. The letter further stated that

employees would receive credit for their seniority cumu-

lated at Greenbriar. New Medico hired virtually all of

Greenbriar’s employees and supervisors. The one known

exception was Greenbriar’s administrator, who appar-

ently declined New Medico’s offer. Moreover, New Med-

ico continued to care for Greenbriar’s former patients.

During this same period, New Medico began correct-

ing problems listed on a 21 page deficiency report from

the State of Michigan. According to NMA’s president [sic]

testimony, New Medico planned to make substantial

changes at the facility. Such changes included upgrading

the facility and hiring twice the number of employees to

accommodate a greater focus on the treatment and reha-

bilitation of traumatic head injuries. He testified that

these changes would be completed in about two years.

A NLRB hearing was scheduled to resolve the contro-

versy surrounding the ten challenged ballots, and thus

the outcome of the election. Prior to the commencement

of the hearing, AFSCME withdrew challenges to five of

the ten remaining ballots. The tally was now 43 for

AFSCME, 40 against and five challenged ballots. At the

hearing, however, the parties agreed to stipulate to four

of the remaining five challenged ballots. The parties stip-

ulated that the challenges to the ballots cast by Christine

Schullar and Margie Kuhn be overruled and that their

ballots be opened and counted. The parties also stipu-

lated that the ballots cast by Joan Kehres and Barbara

McCreary be sustained, and that their ballots not be

counted. The remaining ballot was that of Susan Griffin

(“Griffin”). AFSCME challenged Griffin’s ballot on the

grounds that she worked as a supervisor at Greenbriar.

At the hearing, several former Greenbriar employees

testified that Griffin exercised supervisory powers over

employees. These testimonies revealed that Griffin hired,

disciplined and made schedule changes. Griffin’s super-

visor, however, testified that Griffin did not exercise inde-

pendent authority.

The hearing officer issued a Report on July 28, 1989,

finding that New Medico was a successor to Greenbriar,

and that Griffin was a supervisor within the meaning of

§ 2(11) of the Act. The hearing officer also recommended

that the two ballots stipulated to be opened remain sealed

since they no longer affected the outcome of the elec-

tion.***

On March 1, 1990, the Board adopted the hearing

officer’s findings and recommendations and certified the

AFSCME as New Medico’s employees exclusive bargain-

ing representative. On March 19, 1990, New Medico

refused to bargain with its employees. On March 22, 1990,

AFSCME filed an unfair labor practice charge.

New Medico filed an answer contending that the

hearing officer erred by sustaining the challenge to

Griffin’s ballot and by determining that New Medico was

the legal successor to Greenbriar. The NLRB granted

summary judgment against New Medico. The NLRB

found that New Medico had litigated all of the represen-

tation issues that it now sought to raise in its answer.

Consequently, the NLRB ordered New Medico to cease

and desist in its refusal to bargain. This timely appeal

followed.

The scope of our review of the Board’s findings is

limited to determining whether the findings are sup-

ported by substantial evidence on the record as a whole.

See 29 U.S.C. § 160(e),(f); Universal Camera Corp. v. NLRB,

*** Since Griffin, as a supervisor, was prohibited from voting,

the two ballots stipulated to be opened could no longer affect

the election because at best, the results would be 43 for and 42

against.

340 U.S. 474, 488 (1951). “The Board’s application of the

law to the facts is also reviewed under the substantial

evidence standard, and the Board’s reasonable inferences

may not be displaced on review even though the court

might justifiably have reached a different conclusion had

the matter been before it de novo.” Turnbull Cone Baking

Co. v. NLRB, 778 F.2d 292, 295 (6th Cir. 1985), citing NLRB

v. United Ins. Co., 390 U.S. 254, 260 (1968). Substantial

evidence means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.

Universal Camera, 340 U.S. at 477. Where a Board’s order

has “no reasonable basis in law,” such an order will not

be enforced. Ford Motor Co. v. NLRB, 441 U.S. 488, 497

(1979).

III

The Board argues that its findings and conclusions

were supported by substantial evidence on the record as

a whole. New Medico argues that the Board’s findings

that New Medico was the legal successor to Greenbriar

and that Susan Griffin was a supervisor were not sup-

ported by substantial evidence. We find the Board’s find-

ing and conclusions are supported by substantial

evidence.

New Medico argues that it is not a “successor” to

Greenbriar and thus should not be bound by the NLRB’s

Certification of AFSCME. The Supreme Court in NLRB v.

Burns International Security Services, Inc., 406 U.S. 272

(1972), enunciated the test for determining whether or

not a new company is indeed the successor to the old.

“This approach . . . Is primarily factual in nature and is

based upon the totality of the circumstances of a given

situation...” Fall River Dyeing & Finishing Corp. v. NLRB,

482 U.S. 27, 43 (1987). A successor business is bound by

the predecessor’s bargaining obligations if there is “sub-

stantial continuity” between the enterprises. Id. In deter-

mining whether “substantial continuity” exists, the NLRB

examines whether: (1) there is continuity of the same

business; (2) the new employer uses the same facility; (3)

the new employer hires the same or substantially the

same work force; (4) the same jobs exist under the same

work conditions; (5) the same supervisors are employed;

(6) the same equipment and machinery is used; and (7)

the same product or service is conducted. Id.

There is substantial evidence in the record to support

the NLRB’s finding of “substantial continuity.” New

Medico operates a nursing care center as did Greenbriar.

The health care operation was continued uninterrupted

and in the same facility. Employee responsibilities

remained the same, and virtually all of Greenbriar

employees were hired except for the administrator, who

rejected New Medico’s offer. New Medico aiso informed

Greenbriar employees that their years of service with

Greenbriar would be used to establish their new salaries.

Finally, testimony indicated that New Medico continued

to care for the same patients without a substantial change

in operation.

New Medico offers several reasons as to why the

hearing officer erred in finding “substantial continuity,”

the most novel of which is New Medico’s assertion that

the successorship issue should have been determined as

of the date AFSCME was certified, March 1, 1990, and not

the date on which New Medico took over the nursing

home, March 1, 1989. New Medico contends that because

the successorship issue is used to determine whether a

new employer has a bargaining obligation with the

union, there must be a certified union before it can be

determined whether the employer has an obligation to

bargain. Thus, because the union was not certified on

March 1, 1989, the court erred in determining the suc-

cessorship issue as of this date.

We have found no cases that address the situation at

bar. We choose, however, to follow the thoughtful reason-

ing of the hearing officer in the present case. Clearly, the

successorship issue would have been determined as of

March 1, 1989, had the challenged votes not been deter-

minative. We can think of no reason why the result

should be different because it took more than a year to

resolve the election. Any other position only encourages

new owners to circumvent its obligations by filing chal-

lenges to certification. By the time these challenges are

resolved, the bargaining unit may no longer represent “a

substantial and representative complement” of

employees. Consequently, we find that the NLRB did not

err in finding that New Medico succeeded to Greenbriar’s

bargaining obligations on March 1, 1989.

New Medico next argues that the NLRB erred by

granting summary judgment and thus not allowing New

Medico to litigate the successorship issue before an

administrative law judge. New Medico argues that this is

error because the hearing officer found them guilty of

unfair labor practices prior to AFSCME certification, and

thus before any unfair labor practice could have been

committed. We find no merit to this claim. We have

already held that the NLRB may determine the successor-

ship issue before the resolution of challenges to a repre-

sentation election. Likewise, it follows that the hearing

officer may also determine prior to the resolution of

challenges to a representation election that New Medico

participated in unfair labor practices. Surely, a company’s

liability for these violations depends on whether the elec-

tion yields Certification.

Finally, New Medico argues that it changed the

employees working conditions and is, therefore, not a

successor to Greenbriar. New Medico contends that it

raised the employees’ salaries and added significant ben-

efits including a new bonus program. In Briggs Plumbing-

ware, Inc., v. NLRB, 877 F.2d 1282 (6th Cir. 1989), the new

employer argued that it was not a successor because it

changed the “pay scale and policies concerning absence,

vacations, jury duty, holiday pay and shift deferential

[sic].” Id. at 1286. This Court rejected this claim, finding

substantial continuity because the work force and opera-

tions remained the same. Similarly, in the present case,

New Medico hired virtually all of Grenbriar’s employees,

and Grenbriar’s testimony at the hearing revealed that

there were no substantial changes in the operations.

Thus, we find no merit to this argument.

New Medico next argues that the NLRB’s finding

that Susan Griffin was a supervisor within the meaning of

§ 2(11) of the Act is not supported by substantial evi-

dence on the record. New Medico contends that Griffin

Al0

was not a supervisor since she did not exercise indepen-

dent judgment as personnel coordinator.

Section 2(11) of the Act, 29 U.S.C. § 152(11) defines a

“supervisor” as:

. . . [AJny individual having authority, in the

interest of the employer, to hire, transfer, sus-

pend, 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

actions, if in connection with the foregoing the

exercise of such authority is not of merely rou-

tine or clerical nature, but requires the use of

independent judgment,

The indicia of supervisory authority are written in the

disjunctive. Consequently, the possession of any one indi-

cium enumerated in § 2(11) is sufficient to show an

employee is a supervisor provided the individual has the

authority to use independent judgment. NLRB v. City

Yellow Cab Co., 344 F.2d 575, 580-82 (6th Cir. 1965). It is

also well settled that the exercise of routine or clerical

authority does not elevate an individual to the status of

supervisor. NLRB v. Child-World, Inc., 817 F.2d 1251, 1254

(6th Cir. 1987). Similarly, an employee does not become a

supervisor if his or her participation in personnel actions

is limited to a reporting function and does not amount to

an effective recommendation that retention, reward or

discipline be given. Beverly Enterprises v. NLRB, 661 F.2d

1095, 100 [sic] (6th Cir. 1981). Further, because of the

Board’s expertise in resolving disputes concerning super-

visory status, absent an abuse of discretion, its deter-

mination on this matter will not be disturbed. Williamson

All

Piggly Wiggly, Inc. v. NLRB, 827 F.2d 1098, 1100 (6th Cir.

1987).

There is substantial evidence in the record to support

the hearing officer’s conclusion that Susan Griffin exer-

cised supervisory authority. The ability to hire is a pri-

mary indicia of supervisory authority. NLRB v. Publishers

Printing Co., Inc., 625 F.2d 746, 749 (6th Cir. 1980). Griffin

testified that she interviewed and hired employees. But

Griffin also testified that she was told to hire all appli-

cants that “walked, talked, and breathed, not necessarily

all at the same time . . . ,” thus implying that she did not

possess independent authority to hire. The hearing offi-

cer, however, found Griffin did have independent author-

ity because one of Greenbriar [sic] employees testified

that Griffin inquired as to his qualifications and motiva-

tions for working for Greenbriar.

Moreover, evidence also indicated that Griffin exer-

cised independent authority to initiate disciplinary

actions. Julie Borchard and Mark Cobb testified that they

took Griffin to where a fellow employee was sleeping.

She awoke the employee, who was subsequently dis-

charged, and demanded that he return to work. Griffin

then asked two nurses to write letters that detailed occa-

sions in which they observed this employee sleeping.

Griffin also gathered employee witnesses for the disci-

plinary hearing and asked questions as well as provided

documents from the disciplined employee’s file during

the hearing.

Next, evidence was adduced to support the hearing

officer’s finding that Griffin acted as a supervisor in

approving scheduling changes. Don Nidefski testified

Al2

that when he went to Griffin with requested schedule

changes, she looked at the schedule and either approved

or disapproved the requests. In each case, she gave an

immediate response without checking with anyone.

Moreover, Borchard and Cobb testified that Griffin

approved their scheduling changes on the spot when they

asked for time off to attend a birthday celebration.

We find that these duties resemble the exercise of

authority that is contemplated by the statute. Addi-

tionally, we note that a Board may consider in its deter-

mination the employee conduct that creates the

impression of supervisory authority. See, ¢.g., Jeffrey Man-

ufacturing Division v. NLRB, 654 F.2d 944, 950 (4th Cir.

1991). Griffin often signed written warnings and termina-

tion letters as immediate supervisor and distributed them

without the employees [sic] knowledge that she was not

responsible for the letter. Similarly, Griffin was the lone

signatory on several termination notices.

Accordingly, we find substantial evidence in the

record to support the Board’s finding that Susan Griffin is

a supervisor under § 2(11) of the Act.

IV.

For the foregoing reasons, we AFFIRM the Board’s

determinations and ENFORCE the Board’s order requir-

ing New Medico to bargain with AFSCME as the exclu-

sive bargaining representative of the appropriate unit of

New Medico’s employees.

Al13

APPENDIX B

NOT TO BE INCLUDED SCD

IN BOUND VOLUMES Howell, MI

UNITED STATES OF AMERICA BEFORE THE

NATIONAL LABOR RELATIONS BOARD

GREENBRIAR CARE CENTER, INC.

and

NEW MEDICO HEALTH CARE

CENTER OF MICHIGAN, INC.

Employer

and Case 7-RC-18856

AMERICAN FEDERATION OF

STATE, COUNTY AND

MUNICIPAL EMPLOYEES,

AFL-CIO

Petitioner

DECISION AND CERTIFICATION OF

REPRESENTATIVE

The National Labor Relations Board, by a three-mem-

ber panel, has considered determinative challenges in an

election held on February 17, 1989 and the hearing offi-

cer’s report recommending disposition of them. The elec-

tion was conducted pursuant to a Stipulated Election

Agreement. The revised tally of ballots shows 43 for and

40 against the Petitioner, with 5 challenged ballots.

The Board has reviewed the record in light of the

exceptions and briefs, has adopted the hearing officer’s

Al4

findings! and recommendations, and finds that a certi-

fication of representative should be issued.?

CERTIFICATION OF REPRESENTATIVE

IT IS CERTIFIED that a majority of the valid ballots

have been cast for American Federation of State, County

and Municipal Employees, AFL-CIO, and that it is the

exclusive collective-bargaining representative of the

employees in the following appropriate unit.

All full-time and regular part-time nurses aides,

physical therapy aides, laundry employees,

activity employees, dietary aides, cooks, house-

keeping employees, ward clerks and mainte-

nance employees employed by Greenbriar at its

‘ The Employer has excepted to some of the hearing offi-

cer’s credibility findings. The Board’s established policy is not

to overrule a hearing officer’s credibility resolutions unless the

clear preponderance of all the relevant evidence convinces us

that they are incorrect. Stretch-Tex Co., 188 NLRB 1359, 1361

(1957). We find no basis for reversing the findings.

In adopting the hearing officer’s findings that Griffin is a

supervisor within the meaning of the Act, we find it unnecess-

ary to rely on his findings regarding the discipline of Stanley

Copeland.

2 As the results of the election were 43 for and 40 against

the Union, and since we have sustained the challenges to three

of the five challenged ballots, the two ballots to which chal-

lenges have been overruled are no longer determinative.

Accordingly, although the parties stipulated, for purposes of

resolving the election only, that the challenges to the ballots

case by Christine Schullar and Margie Kuhn be overruled and

that their ballots be opened and counted, we adopt the hearing

officer’s recommendation that these ballots not be opened and

counted.

ee ee ee en ee

A15

facility located at 3003 W. Grand River Avenue,

Howell, Michigan; but excluding all LPN’s,

RN’s, technical employees, respiratory thera-

pists, office clerical employees, casual

employees, temporary employees, guards, and

supervisor as defined in the Act.

Dated, Washington, D.C., March 1, 1990.

James M. Stephens, Chairman

Mary Miller Cracraft, Member

Dennis M. Devaney, Member

NATIONAL LABOR RELATIONS

BOARD

(SEAL)

Al6

APPENDIX C

SCD

299 NLRB No. 50 D-1397

Howell, MI

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

NEW MEDICO HEALTH CARE

CENTER OF MICHIGAN, INC.

and Case 7-CA-30357

AMERICAN FEDERATION OF

STATE COUNTY AND

MUNICIPAL EMPLOYEES,

AFL-CIO

DECISION AND ORDER

On April 12, 1990, the General Counsel of the

National Labor Relations Board issued a complaint alleg-

ing that the Respondent has violated Section 8(a)(5)and

(1) of the National Labor Relations Act by refusing the

Union’s request to bargain following the Union’s certi-

fication in Case 7-RC-18856. (Official notice is taken of

the “record” in the representation proceeding as defined

in the Board’s Rules and Regulations, Secs. 102.68 and

102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The

Respondent filed an answer admitting in part and deny-

ing in part the allegations in the complaint.

On June 4, 1990, the General Counsel filed motions

with the Board to strike portions of the respondent's

answer and for summary judgment. On June 6, 1990, the

Union joined in the General Counsel’s motions. On June

A17

7, 1990, the Board issued an order transferring the pro-

ceeding to the Board and a Notice to Show Cause why the

motions should not be granted. Thereafter, on June 11

and 29, 1990, the Respondent filed a brief in opposition to

the motions and a response to the Notice to Show Cause,

respectively.!

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

Ruling on Motion for Summary Judgment

In its answer to the complaint and opposition and

response to the motions and Notice to Show Cause, the

Respondent admits its refusal to bargain but attacks the

validity of the certification on the grounds that the Board,

in the representation proceeding, erroneously concluded

that the Respondent was a legal successor and improp-

erly sustained the Union’s challenge to one of the deter-

minative ballots.

All representation issues raised by the Respondent

were or could have been litigated in the prior representa-

tion proceedings. The Respondent does not offer to

adduce at a hearing any newly discovered and previously

1 In its response to the Notice to Show Cause the Respon-

dent intimates that it was denied due process by the Board’s

failure to await and consider its June 11, 1990 opposition to the

motions before transferring the proceedings to the Board.

However, as we have fully considered both the Respondent's

opposition to the motions and its response to the Notice to

Show Cause before actually ruling on the General Counsel's

motions, we find that the Respondent has not suffered any

prejudice thereby.

Al8

unavailable evidence, nor does it allege any special cir-

cumstances that would require the Board to reexamine

the decision made in the representation proceedings. We

therefore find that the Respondent has not raised any

representation issue that is properly litigable in this

unfair labor practice proceeding. See Pittsburgh Plate

Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly,

we grant the Motion for Summary Judgment.”

On the entire record, the Board makes the following

Findings of Fact

I. Jurisdiction

The Respondent, a Delaware corporation with an

office and place of business at 3003 W. Grand River

Avenue, Howell, Michigan, is engaged in the business of

providing skilled long-term patient care and rehabilita-

tion for traumatic brain injuries. During the year ending

February 28, 1990, the Respondent derived gross reve-

nues from all sources in excess of $100,000 and purchased

supplies valued in excess of $5000 for its Howell, Michi-

gan facility directly from outside the State of Michigan.

We find that the Respondent is an employer withir: the

meaning of Section 2(6) and (7) of the Act and that the

2 Given our disposition of the General Counsel’s Motion

for Summary Judgment, and our further findings, infra at fn. 3,

we find it unnecessary to pass on the General Counsel’s

motion to strike portions of the Respondent's answer.

A19

Union is a labor organization within the meaning of

Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. The Certification

Following the election held February 17, 1989, the

Union was certified on March 1, 1990, as the collective-

bargaining representative of the employees in the follow-

ing appropriate unit:

All full-time and regular part-time nurses aides,

physical therapy aides, laundry employees,

activity employees, dietary aides, cooks, house-

keeping employees, ward clerks and mainte-

nance employees employed by New Medico

Health Care Center of Michigan, Inc., at its facil-

ity located at 3003 W. Grand River Avenue,

Howell, Michigan; but excluding all LPNs, RNs,

technical employees, respiratory therapists,

office clerical employees, casual employees,

temporary employees, guards, and supervisors

as defined in the Act.‘

3 In its answer to the complaint, the Respondent avers that

it is “without sufficient information to form a belief” as to

whether the union is a labor organization within the meaning

of Sec. 2(5) of the Act. The Respondent failed to raise this issue

in the underlying representation proceeding, however, and is

therefore precluded from litigating it here. See discussion,

supra.

4 Due to an inadvertent error, on March 26, 1990, the

Board issued an Order Correcting the March 1, 1990 Decision

and Certification of Representative. The unit appears as cor-

rected in the March 26, 1990 Order.

A20

The Union continues to be the exclusive representa-

tive under Section 9(a) of the Act.

B.Refusal to Bargain

Since March 7, 1990, the Union has requested the

Respondent to bargain and, since March 19, 1990, the

Respondent has refused. We find that this refusal consti-

tutes an unlawful refusal to bargain in violation of Sec-

tion 8(a)(5) and (1) of the Act.

Conclusions of Law

By refusing on and after March 19, 1990, to bargain

with the Union as the exclusive collective-bargaining rep-

resentative of employees in the appropriate unit, the

Respondent has engaged in unfair labor practices affect-

ing commerce within the meaning of Section 8(a)(5) and

(1) and Section 2 (6) and (7) of the Act.

Remedy

Having found that the Respondent has violated Sec-

tion 8(a)(5) and (1) of the Act, we shall order it to cease

and desist, to bargain on request with the Union, and, if

an understanding is reached, to embody the understand-

ing in a signed agreement.

To ensure that the employees are accorded the ser-

vices of their selected bargaining agent for the period

provided by law, we shall construe the initial period of

the certification as beginning the date the Respondent

begins to bargain in good faith with the Union. Mar-Jac

A21

Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB

226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.

denied 379 U.S. 817 (1964); Burnett Construction Co., 149

NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).

ORDER

The National Labor Relations Board orders that the

Respondent, New Medico Health Care Center of Michi-

gan, Inc., Howell, Michigan, its officers, agents, suc-

cessors, and assigns, shall

1. Cease and desist from

(a) Refusing to bargain with American Federation

of State, County and Municipal Employees, AFL-CIO, as

the exclusive bargaining representative of the employees

in the bargaining unit.

(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) On request, bargain with the Union as the exclu-

sive representative of the employees in the following

appropriate unit on terms and conditions of employment

and, if an understanding is reached, embody the under-

standing in a signed agreement:

All full-time and regular part-time nurses aides,

physical therapy aides, laundry employees,

activity employees, dietary aides, cooks, house-

keeping employees, ward clerks and mainte-

nance employees employed by New Medico

A22

Health Care Center of Michigan, Inc., at its facil-

ity located at 3003 W. Grand River Avenue,

Howell, Michigan; but excluding all LPNs, RNs,

technical employees, respiratory therapists,

office clerical employees, casual employees,

temporary employees, guards, and supervisors

as defined in the Act.

(b) Post at its facility in Howell, Michigan, copies of

the attached notice marked “Apendix.”5 Copies of the

notice, on forms provided by the Regional Director for

Region 7, after being signed by the Respondent's autho-

rized representative, shall be posted by the Respondent

immediately upon receipt and maintained for 60 consecu-

tive days in conspicuous places including all places

where notices to employees are customarily posted. Rea-

sonable steps shall be taken by the Respondent to ensure

that the notices are not altered, defaced, or covered by

any other material.

days from the date of this Order what steps the respon-

dent has taken to comply.

5 If this Order is enforced by a judgment of a United States

court of appeals, the words in the notice reading “POSTED BY

ORDER OF THE NATIONAL LABOR RELATIONS BOARD”

shall read “POSTED PURSUANT TO A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS ENFORCING AN

ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

A23

Dated, Washington, D.C. August 9, 1990

James M. Stephens, Chairman

Mary Miller Cracraft, Member

Dennis M. Devaney, Member

NATIONAL LABOR RELATIONS

BOARD

(SEAL)

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has

ordered us to post and abide by this notice.

WE WILL NOT refuse to bargain with American Federa-

tion of State, County and Municipal Employees, AFL-

CIO, as the exclusive representative of the employees in

the bargaining unit.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce you in the exercise of the rights

guaranteed you by Section 7 of the Act.

WE WILL, on request, bargain with the Union and put in

writing and sign any agreement reached on terms and

A24

conditions of employment for our employees in the bar-

gaining unit:

All full-time and regular part-time nurses aides,

physical therapy aides, laundry employees,

activity employees, dietary aides, cooks, house-

keeping employees, ward clerks and mainte-

nance employees employed by New Medico

Health Care Center of Michigan, Inc., at its facil-

ity located at 3003 W. Grand River Avenue,

Howell, Michigan; but excluding all LPNs, RNs,

technical employees, respiratory therapists,

office clerical employees, casual employees,

temporary employees, guards, and supervisors

as defined in the Act.

NEW MEDICO HEALTH CARE

CENTER OF MICHIGAN, INC.

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any questions

concerning this notice or compliance with its provisions

may be directed to the Board’s Office, 477 Michigan Ave-

nue, Room 300, Detroit, Michigan 48226-2568, Telephone

313-226-3219.

A25

APPENDIX D

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

SEVENTH REGION

GREENBRIAR CARE CENTER, INC.!

and

NEW MEDICO HEALTH CARE

CENTER OF MICHIGAN, INC.? CASE NO.

E 7-RC-18856

mployer

and

AMERICAN FEDERATION OF

STATE, COUNTY AND

MUNICIPAL EMPLOYEES, AFL-CIO

Petitioner

HEARING OFFICER’S REPORT AND

RECOMMENDATIONS ON CHALLENGED

BALLOTS AND SUCCESSORSHIP

Upon a petition filed on December 15, 1988, by

American Federation of State, County and Municipal

Employees, AFL-CIO, herein called Petitioner, and pur-

suant to a Stipulated Election Agreement executed by

Petitioner and Greenbriar and approved by the Regional

1 Except for providing a representative for purposes of

resolving challenged ballots, Greenbriar Care Center, Inc.,

herein called Greenbriar, did not participate in the hearing. It

was served with a copy of the Report and Notice of Hearing.

2 The name of this Employer, herein called New Medico,

appears as corrected at the hearing.

A26

Director for the Seventh Region of the National Labor

Relations Board on January 6, 1989,3 an election by secret

ballot was conducted on February 17,4 among the

employees of Greenbriar in the following appropriate

collective bargaining unit:

All full-time and regular part-time nurses aides,

physical therapy aides, laundry employees,

activity employees, dietary aides, cooks, house-

keeping employees, ward clerks and mainte-

nance employees employed by Greenbriar at its

facility located at 3003 W. Grand River Avenue,

Howell, Michigan; but excluding all LPN’s,

RN’s, technical employees, respiratory thera-

pists, office clerical employees, casual

employees, temporary employees, guards, and

supervisors as defined in the Act.

The payroll period for eligibility purposes was the bi-

weekly period ending Friday, December 30, 1988.

At the conclusion of the election, a copy of the Tally

of Ballots, showing the following results, was made avail-

able to, and served upon, Petitioner and Greenbriar, in

accordance with the current Rules and Regulations of the

Board:

Approximate number of

i Tere er 106

WOR BOO: uccivnsccesadeurscee eee 0

Votes cast for Petitioner ................. 41

3 Hereinafter, all dates are 1989 unless otherwise noted.

‘ The date of election was incorrectly set forth in the

Report and Notice of Hearing as February 12.

A27

Votes Cast against participating

Fe SN nccensbrensenneeccdwes 37

Wee WD COO nnn sc cc cic can eccns 78

RI UNI 65 Soe ba aseeisceeneess 10

Valid Votes counted plus

IORI b's bs yee tb asncnssaccaacss 88

The challenged ballots were sufficient in number to

affect the results of the election and were received and

segregated in a manner adequate to ensure their secrecy.

Inasmuch as the challenged ballots affect the ultimate

results of the election, a preliminary investigation was

conducted with respect thereto under the direction and

supervision of the Regional Director. This preliminary

investigation established the existence of substantial and

material factual issues, including credibility resolutions,

which could best be resolved at hearing. Accordingly, on

March 20, the Regional Director issued a Report and

Notice of Hearing on Determinative Challenged Ballots

and Approval of Withdrawal of Objections.5

Prior to hearing, the parties entered into a Stipulation

Resolving Challenged Ballots whereby they agreed that

the challenges to the ballots of Sally Giese, Ann Herrington,

Shannon Melow, Donna Priest and Jesse Shearer would be

overruled and that their ballots would be opened and

counted.® A Corrected Tally of Ballots, reflecting the

count of the five resolved challenged ballots, showing the

> All of the objections were withdrawn.

resolving this election only, and without prejudice to any posi-

tion any party may take in any other proceeding.”

A28

following results, was made available to each of the par-

ties in accordance with the current rules and regulations

of the Board:

ORIGINAL CHALLENGED FINAL

TALLY COUNTED TALLY

Approximate

number of

eligible voters ... 106

Void ballots ..... 0

Votes cast for

Petitioner ........ 41 2 43

Votes cast against

participating

labor organization

OO Fe Oe eee eT 37 os 40

Valid votes

COUMMEG .....5.5. 78 83

Undetermined

challenged ballots

ere eres Pp erere 10 5

Valid votes

counted plus

challenged ballots

ETT eT Creer re. 88 88

The remaining challenged ballots were sufficient in

number to affect the final results of the election. They

were received and segregated in a manner adequate to

protect their secrecy.

In addition to the challenged ballots, the undersigned

was directed by the Report and Notice of Hearing to take

A29

testimony on the issues of whether or not New Medico is

a successor to Greenbriar and whether or not New Med-

ico has any obligations arising out of the instant represen-

tation proceeding.

Pursuant to the aforementioned Notice of Hearing, a

hearing was held before the undersigned Hearing Officer

on March 30 and 31, and April 3. The hearing was con-

ducted in accordance with the provisions of Section

102.69 of the Board’s Rules and Regulations, Series 8, as

amended. All parties were represented and were afforded

full opportunity to be heard, to present and examine

witnesses, to introduce relevant evidence and to present

oral arguments during the course of the hearing.

Upon the entire record in this case, | make the follow-

ing findings of fact, conclusions of law and recommenda-

tions:

I. BACKGROUND

New Medico is a Delaware corporation engaged in

the operation of a nursing center in Howell, Michigan.

The parties stipulated at the hearing, and I find, that

based upon a projection of its operations from March 1

when it commended business, until March 30, New Med-

ico is engaged in commerce within the meaning of the

Act.

New Medico is wholly owned by Charles Braddick

and is affiliated with New Medico Associates, herein

called NMA, a health care company which specializes in

the treatment and rehabilitation of individuals who have

suffered traumatic brain injuries. NMA and its affiliates

A30

operate 47 facilities in 15 states and employ approx-

imately 7000 employees. Ninety percent of the stock of

NMA is owned by Charles Braddick. The remaining 10%

is owned by relatives and friends of Braddick. Employer

New Medico operates only the Howell facility involved

in this proceeding and has retained NMA to manage that

facility. NMA owns and/or operates three other facilities

within the State of Michigan.

II. SUCCESSORSHIP ISSUE

Petitioner contends that New Medico is a successor

to Greenbriar, and, accordingly, is obligated by any Certi-

fication of Representative which may issue in this case. In

support of this contention, Petitioner asserts that when

New Medico commenced operations, a majority of its

employees and supervisors were former employees and

supervisors of Greenbriar; it serviced the same patients,

and it utilized the same facility.

New Medico argues that it is not a successor to

Greenbriar and proffers several reasons why it should not

be bound by any certification which may issue as a result

of the instant proceeding. First, it asserts that it had no

knowledge of any NLRB proceeding when it agreed to

take over operation of the Howell facility. Second, on

March 1, when it commenced operations, there was no

collective bargaining agreement or recognized union in

place, nor had any certification issued. Third, it pur-

chased nothing from Greenbriar other than some dispos-

able nursing supplies. Fourth, it plans to make

substantial changes in the operation of the facility, and

A31

fifth, the change of ownership will affect the attitude of

employees toward representation.

FACTS

NMA President Jeffrey Goldshine testified that at or

about the end of January, he received a telephone call

from Mark Finkelstein of Health and Rehabilitation Prop-

erties Trust (HRPT), a real estate investment trust, asking

if NMA would be interested in becoming the tenant of the

Greenbriar facility in Howell, Michigan, a property

owned by HRPT. It appears that the property was avail-

able because the incumbent tenant, Greenbriar, had fallen

behind in its lease payments. Because of its location,

Goldshine expressed an interest and requested that pic-

tures, financial statements and occupancy information be

provided. Discussions continued and on February 17,

NMA agreed to lease the property. Thereafter, on Febru-

ary 22, a management team from NMA visited the Howell

facility. During this visit, officials of NMA learned of the

election in the instant matter, and of a 21-page deficiency

report from the State. Goldshine, who was on vacation

the week of February 19, learned of the election on Febru-

ary 27, when he returned to his office. He instructed

Human Resources Director Phil Marsh to contact the

company’s labor attorneys and general counsel to exam-

ine all available options. Goldshine testified that the

attorneys advised:

... everyone had already previously agreed and

that I believe that if you absolutely insist, it

would be, we would have to go through a pro-

cess on it but based upon the information that

we had the relationship that we’ve had in the

A32

past, with them leasing us facilities and lending

- us money, we chose to proceed.”

According to Goldshine, NMA’s negotiations to take

over operation of the Greenbriar facility were with HRPT,

not with Greenbriar. The only discussions between NMA

and Greenbriar occurred at the time of closing and only

involved the purchase of disposable nursing supplies

located on the site - catheters, powder, bandages and

non-prescription house drugs. These supplies were pur-

chased, but Goldshine did not know the price paid.

At the March 1 closing, New Medico signed a three

year lease calling for rental payments of $40,000 per

month and commenced operation of the Howell facility

under a Certificate of Licensure from the Michigan

Department of Public Health to operate a nursing home.®

Based at least in part on the nature of the industry and

the need to provide continuous care for patients, there

was no hiatus in operations. At the time of the transfer,

New Medico assumed responsibility for the patients.

Since the transfer, a few patients who could not be prop-

erly cared for at the facility were moved to hospitals.

The parties stipulated, and | find, that virtually all of

Greenbriar’s employees and virtually all of its super-

visors on February 28 were employed by New Medico on

March 1.9 Employee Barbara Butler testified concerning

? Transcript, page 56.

8 The certificate was for the period March 1 to May 31.

° The one known exception was Administrator Lance

Youle who was apparently offered a position, but declined.

bie i i a arcana mar mma

A33

her hiring by New Medico. On February 27, she received

a letter!° advising that New Medico was in the process of

purchasing the Howell facility and was “willing to offer

all current hourly employees of Greenbriar the oppor-

tunity to apply for employment.” The letter outlined

wage rates and benefits. Benefits were similar, but wage

rates were higher. Butler went from $5.11 per hour under

Greenbriar to $5.43 per hour under New Medico. In addi-

tion, under New Medico, she received a $.25 per hour

premium for midnight shift and a $.50 per hour premium

for working in a special care unit.!! As an inducement to

Greenbriar employees to apply for jobs at New Medico,

the letter stated that each employee’s years of service

with Greenbriar would be taken into consideration in

establishing that employee’s wage rate. The letter further

stated that for purposes of calculating benefits, former

Greenbriar employees would be given credit for their

seniority with Greenbriar as if they had been employed

by New Medico. Butler additionally testified that the

functions and services of the facility have not changed

since the takeover. She added that Greenbriar treated

closed head injury patients and these patients remain in

the facility.

Goldshine testified that the building will undergo a

complete renovation and new equipment will be added in

order to provide treatment capabilities for patients with

traumatic brain injuries. Based on projections, he esti-

mated that the number of beds will be reduced from

10 Petitioner Exhibit 2

1! According to NMA Director of Personnel Frank Parr,

aides received increases of from $.75 to $2.00 per hour.

A34

around 180 to 160 to allow space for rehabilitation pro-

grams, and that eventually approximately 40 beds, or

one-quarter of the total, will be designated for traumatic

brain injury patients. The total workforce is expected to

increase from 180 employees on March 1 to 400. It was

anticipated that 30 additional employees would be hired

within 90 days of the hearing; 50 more three months after

that; another 50 in the following six months, and the

remainder six months after that.!?

Occupational therapists, speech pathologists, voca-

tional counselors, social workers, psychologists and spe-

cial educators and additional physical therapists and

respiratory therapists will be added. The addition of the

rehabilitation departments will result in substantial

increases in unit employees. According to Goldshine,

aides will be added in the following areas: dietary (10),

housekeeping (5 or 6), activities (4 or 5), transportation

(3), physical therapy (6), occupational therapy (4), special

education (2), mental health (5 or 6), and recreational

therapy (4). He estimated that the number of nursing

assistants would double. It appears that the transporta-

tion aides, occupational therapy aides, special education

aides and mental health aides wil! be newly created

12 It is unclear from the record precisely what the increase

in the number of unit employees will be. Joint Exhibit 2 lists

approximately 130 unit employees employed on March 9 who

were previously employed by Greenbriar and four who were

not. Based upon Goldshine’s testimony and Joint Exhibit 2, |

find that the number of unit employees will approximately

double during the two-year period in which the total work

force will double.

A35

classifications.13 As of the date of the hearing, however,

no new traumatic brain injury patients had been admit-

ted. According to Goldshine, New Medico has to elimi-

nate the 21 pages of deficiencies before it can begin

admitting such patients. No time frame was proffered.

Goldshine testified that Greenbriar and New Medico

do not share any common officers, and that there is no

common ownership between the two companies. Sim-

ilarly, New Medico and HRPT do not share any common

officers or owners. The parties stipulated that the take-

over of the Howell facility by New Medico was an arm’s

length transaction. Petitioner does not allege, and no

evidence was presented to support, a finding that an

alter-ego or a disguised continuance arrangement exists

between New Medico and Greenbriar.

ANALYSIS"4

Analysis in successorship cases begins with the

Supreme Court's decision in NLRB v Burns International

Security Services, Inc., 406 U.S. 272 (1972) wherein the

Court endorsed the Board’s “substantial continuity of the

13 It appears from the record that the recreation aide posi-

tion existed under Greenbriar but is not one of the nine classi-

fications listed in the unit description. Also, it appears that the

nurse aide classification listed in the unit description includes

both special care aides and geriatric aides. It is unclear from

the record how closely the duties of the occupational therapy

aides, special education aides or mental health aides will

resemble those of the special care aides.

14 The testimony of Goldshine and Butler as recounted

above was essentially uncontradicted. I credit both witnesses.

A36

employing enterprise” test and held that where “the bar-

gaining unit remained unchanged and a majority of the

employees hired by the new employer are represented by

a recently certified bargaining agent” (at 281) the suc-

cessor employer has an obligation to bargain with the

incumbent union. In cases following Burns, the Board

continued to apply and develop the “substantial continu-

ity” test. Factors considered include: (1) continuity in the

same business; (2) use of the same plant; (3) use of the

same or substantially the same workforce; (4) existence of

the same jobs under the same working conditions; (5)

retention of the same supervisors; (6) use of the same

machinery, equipment and methods of production; and

(7) manufacturing the same product or offering the same

service.!5 The analysis is based upon a totality of circum-

stances and is primarily factual in nature.

Based upon the evidence presented, | find that a

substantial continuity of employing enterprise exists.

New Medico operates a nursing care center as did its

predecessor, Greenbriar. It commenced operation without

hiatus in the same facility, utilizing a virtually identical

workforce, holding the same or similar jobs, under the

same or similar working conditions, working under the

same supervisors and with the same non-unit employees,

caring for the same patients, with at least some of the

same equipment. Unit employees worked one day for

Greenbriar, the next for New Medico. Job applications

and W-4 forms for New Medico were not filled out until

15 Faria Limited d/b/a/Sheffield Industries, 287 NLRB No. 136

(1988), JD slip op. at 10; Aircraft Magnesium, a Division of Grico

Corporation, 265 NLRB 1344, 1345 (1982).

A37

several days after the takeover. Time worked for Green-

briar was credited as time worked for New Medico for

certain wage and benefit purposes. It is difficult to imag-

ine a greater degree of continuity. According, | find that

New Medico is a successor under Burns. Fall River Dyeing

& Finishing Corporation v. NLRB, __ U.S. __, 125 LRRM

2441 (187); P & M Cedar Products, Inc., 284 NLRB No. 76

(June 30, 1987).

The analysis continues with a determination of when

a “substantial and representative complement” of

employees will be working in the bargaining unit. Where,

as here, an employer takes over, without hiatus, an enter-

prise in full production, it is usually found to have a

representative complement of employees when it com-

mences operations, even if it has plans for expansion.'®

Premium Foods, Inc. v. NLRB, 704 F.2d 623, 629 (CA 9,

1983), enfg. 260 NLRB 708 (1982); NLRB v. Hudson River

Aggregates, Inc., 639 F.2d 865, 870 (CA 2, 1981) enfg. 246

NLRB 192. The evidence presented in the instant matter

does not dictate a different result. On March 1, New

Medico employed the same employees, both as to number

16 Under circumstances where the successor does not

assume an enterprise in full production, the Board, with

Supreme Court approval, considers the following factors in

determining when a substantial and representative comple-

ment exists: (1) job classifications filled or substantially filled;

(2) operation in normal or substantially normal production; (3)

size of employee complement on date of normal production; -

(4) time before a substantially larger complement will be

employed; and (5) certainty of successor’s expansion plans.

Fall River v. NLRB, supra. Under this test I would find a

substantial and representative complement existed on March 1.

I will discuss New Medico’s expansion plans infra.

A38

and identity, working in the same or substantially the

same classifications, as had been the case a day earlier

when they were employed by Greenbriar. Accordingly, I

find that New Medico had a substantial and representa-

tive complement of bargaining unit employees on March

1. Further where, as here, a successor manifests an intent

to hire a majority of its predecessor’s workforce, a sub-

stantial and representative complement may be found on

the date the successor commences operations. Memphis

Truck & Trailer, Inc., 284 NLRB No. 99, JD slip op. at 14

(July 10, 1987).

I turn now to a discussion of each of New Medico’s

proffered reasons as to why it should not be deemed a

successor with an obligation to bargain with Petitioner,

should Petitioner receive a majority of votes cast in the

election.

A. Lack of Knowledge

Despite assertions to the contrary, I find, based upon

the testimony of Jeffrey Goldshine, that New Medico did

have knowledge of the representation proceeding prior to

the lease closing. After it learned of the election on or

about February 22, New Medico could have “gone

through a process” to cancel the agreement with HRPT,

but because of the company’s past relationship with

HRPT, it elected not to.!7 Beck Corporation, 279 NLRB 405,

407 (1986).

17 As further evidence of knowledge of the election and its

significance, I note that the February 27 letter from New

(Continued on following page)

a _ cinaeiions

A39

B. Assets of Predecessor Not Purchased

The fact that New Medico leased the facility from

HRPT instead of Greenbriar, and purchased only dispos-

able nursing supplies from Greenbriar, is not dispositive.

Indeed, there is no evidence in Burns that Burns pur-

chased any assets from its predecessor, Wackenhut Corp.

See, Memphis Truck, supra, JD slip. op. at 12. Premium

Foods v NLRB, supra.

C. Substantial Changes

Virtually every successor intends to make some

changes in the business it purchases or takes over. The

real question is whether these changes are so substantial

so as to change the nature of the enterprise. New Medico

intends to upgrade the quality of care offered to patients.

More importantly, New Medico intends to create a trau-

matic head injury rehabilitation unit comprising one-

quarter of the total available beds. The addition of the

head injury unit will result in the hiring of additional

professional and technical employees who will be outside

the unit, and the creation of four or five new unit posi-

tions. Over a two year period, as a result of the upgrad-

ing of the facility and establishment of the rehabilitation

(Continued from previous page)

Medico to Greenbriar employees (Petitioner Exhibit 2) makes

reference to the election, states that New Medico would prefer

not to deal with a union, but adds that if a labor organization is

certified in an appropriate unit, New Medico will bargain in

good faith with that labor organization.

A40

unit, the number of unit employees will approximately

double.

Still, 75% of the beds will be occupied by geriatric

patients. And, although to a lesser extent and without the

benefit of a full rehabilitation program, Greenbriar admit-

ted and cared for head injury patients. I find that the

changes involved herein, both implemented and pro-

jected, are less substantial than changes in other cases

where the Board and/or Courts have found both suc-

cessorship and a bargaining obligation. NLRB v Aqua-

brom, 855 F.2d 1174 (CA 6, 1988), 129 LRRM 2138, 2142;

Fall River v NLRB, supra, p. 2444; IMS Manufacturing

Company, Inc. v NLRB, 813 F.2d 113 (CA 6, 1987); Dasal

Caring Centers, Inc. d/b/a Lemay Caring Centers, Inc., 280

NLRB 60, 71-73 (1986); Premium Foods v NLRB, supra;

NLRB v Jeffries Lithograph Company, 752 F.2d 459 (CA 9,

1985) enfg. 265 NLRB 1499. Compare Plateau Coal Sales,

Inc., 279 NLRB 1151, 1159-60 (1986); Morton Development

Corporation, 287 NLRB No. 41 (December 16, 1987); Daka,

Inc., 286 NLRB No. 49 (September 30, 1987).18 I find that

the changes are not so substantial so as to change the

nature of the enterprise or negate the bargaining obliga-

tion.

18 Further, no time table was given for when the head

injury unit would be in operation as this is dependent on when

the 21 pages of deficiencies are eliminated. The projection for

the completion of the expansion and renovation of the facility

and the hiring of a full complement of employees is two years.

This is too long a period for employees to wait for representa-

tion. Premium Foods v NLRB, supra; Fall River v NLRB, supra.

A4l1

D. Employee Attitudes Toward Representation

The primary focus in assessing employee attitude

toward representation in successor cases centers on the

changes implemented by the successor and whether the

changes are of such magnitude so as to affect how

employees feel about representation. Premium Foods,

supra; NLRB v Jeffries Lithograph, supra; Ranch Way, Inc.,

183 NLRB 1168, 1169 (1970); Albert Armato and Wire &

Sheet Metal Specialty Co., 199 F.2d 800, 803 (CA 7, 1952)

enfg 97 NLRB 971 (1952).

Essentially, the same factors are considered as are

used in evaluating the continuity of the employing enter-

prise and substantial change. I have previously found

that the same unit employees were performing essentially

the same work, at the same facility, under essentially the

same supervisors, utilizing some of the same equipment.

Accordingly, I find that the changes resulting from the

transition from Greenbriar to New Medico are not so

substantial as to affect employee attitudes toward repre-

sentation. Compare Morton Development, supra.

E. No Collective Bargaining Agreement, Recognized

Union or Certified Representative

The fact that Greenbriar and Petitioner never negoti-

ated a contract is not determinative. Beck, supra; NLRB v

Jarm Enterprises, Inc., 785 F.2d 195 (CA 7, 1986) enfg 270

NLRB 199.

The fact that Petitioner has never been recognized or

certified is the novel aspect of this case. Clearly, had the

A42

challenged ballots not been determinative, and had Peti-

tioner received a majority of the ballots cast, New Med-

ico, as a successor, would have been obligated on March 1

to bargain with Petitioner. It would, it seems to me, go

contrary to the purposes and policies of the Act, to find

that because of determinative challenges no obligation

exists if Petitioner receives a majority of the votes.

Based upon the above, I find that New Medico is a

successor to Greenbriar; that New Medico employed a

substantial and representative complement of employees

on March 1, and that if Petitioner receives a majority of

votes cast, it should be certified as collective bargaining

representative of New Medico’s employees in the unit

described herein, substituting New Medico’s name for

Greenbriar’s. Under these circumstances, New Medico

would be obligated to bargain with Petitioner.

III. THE CHALLENGED BALLOTS

Petitioner challenged the ballots of Susan Griffin, Joan

Kehres, Margie Kuhn, Barbara McCreary and Christine Schul-

lar based upon its belief that each is a supervisor within

the meaning of Section 2(11) of the Act. New Medico

asserted at the hearing that each of the above-named

individuals was employed as a bargaining unit employee

on the date of the election.

A43

A. THE BALLOTS OF CHRISTINE SCHULLAR, MAR-

GIE KUHN, JOAN KEHRES AND BARBARA

McCREARY

After the hearing opened, but before the record was

closed, the parties entered into a stipulation resolving

four of the remaining challenged ballots.

The parties stipulated, for purposes of resolving the

election only, and without prejudice to any position any

party might take in any other proceeding, that the chal-

lenges to the ballots cast by Christine Schullar and Mar-

gie Kuhn be overruled and that their ballots be opened

and counted on the grounds that each was employed in

the petitioned-for unit and neither possessed sufficient

authority to be deemed a supervisor within the meaning

of Section 2(11) of the Act.

The parties further stipulated, for purposes of resolv-

ing the election only, and without prejudice to any posi-

tion any party might take in any other proceeding, that

the challenges to the ballots cast by Joan Kehres and

Barbara McCreary be sustained, and that their ballots not

be counted, on the basis that each possessed sufficient

authority to be deemed a supervisor within the meaning

of Section 2(11) of the Act.

In accordance with the stipulations of the parties, |

recommend that the challenges to the ballots of Christine

Schullar and Margie Kuhn be overruled and that their

ballots be opened and counted. I further recommend that

the challenges to the ballots of Joan Kehres and Barbara

McCreary be sustained and that their ballots not be coun-

ted.

A44

B. THE BALLOT OF SUSAN GRIFFIN

Petitioner challenged the ballot of Susan Griffin

based upon its belief that she is a supervisor within the

meaning of Section 2(11) of the Act. New Medico con-

tends that she is not a supervisor.

Certain background information on Susan Griffin

was not disputed. She was hired initially by Greenbriar in

December 1986, during a three-month school break to

work as a receptionist from 4:00 p.m. to 8:00 p.m. and as

an aide from 8:00 p.m. to 7:00 a.m. From January 25, 1988,

until September 12, 1988, she worked for Greenbriar as its

business office manager. She had a break in service

between September 12 and September 19, 1988. On Sep-

tember 19, 1988, she returned to work as personnel coor-

dinator, a position she held until March 1, 1989. As

personnel coordinator, she shared an office with Irene

Karas!’, an assistant director of nursing, who was in

charge of certain personnel functions. She was hired by

Karas at a starting rate of $6.00 per hour and received a

$.50 per hour increase after 90 days. her basic duties as

personnel coordinator were to maintain personnel files,

schedule geriatric nurse aides, keep track of absenteeism,

personnel days and vacation hours, and perform general

clerical duties. Since March, Griffin has been employed

by New Medico as its personnel director. It is her duties

and responsibilities as personnel coordinator with Green-

briar which are at issue in this proceeding.

19 Ms. Karas’ last name is actually Karaskiewicz, but at

work, in the record, and in this report she is referred to as

“Karas.”

A45

TESTIMONY

Petitioner called a number of witnesses,?° including

Griffin, to support its position that Griffin was a super-

visor.

Matthew Schultz

Schultz, a nursing assistant in the special care unit,

testified concerning his hiring by Greenbriar. After learn-

ing from an employee that there were openings at Green-

briar, Schultz went to the facility in November 1988. He

was given an employment application by the receptionist.

The receptionist contacted Griffin and may have

instructed Schultz to fill out the application while he was

waiting. After Griffin arrived, she and Schultz went to

the B wing lounge where an interview was conducted.

Griffin asked Schultz about his experience in the field,

inquired as to why he wanted to work at Greenbriar and

why he thought it would be good for the company to hire

him. Because of his experience, Griffin invited Schultz to

take an exam to waive the orientation period. Schultz

began taking the test in the personnel office, but later

moved to another room. Griffin advised Schultz that he

passed the test with flying colors and asked when he

would like to begin work. Schultz stated he wanted to

Start the next day. He was then given some paperwork to

fill out, including a W-4 form. During this time, Schultz

20 In addition to the employee witnesses whose testimony

is recounted below, Petitioner also called special care aide

Mark Grieve. His testimony was brief and is not helpful in

resolving the supervisory issue.

A46

advised Griffin that he would not be in town the last

week in December. Griffin replied that this would not be

a problem. Schultz began working for Greenbriar the

following day.

Griffin did not stay with Schultz the entire time he

filled out the application or took the test. According to

Schultz, however, he was not interviewed by anyone

other than Griffin before being advised he was hired, and

Griffin did not consult with anyone before advising him

he could be off the last week in December. Karas was in

the personnel office when he began to take the test. She

introduced herself to him, but did not give her title. Karas

did not ask him any questions, but did ask Griffin if she

had given him policy information, including information

on vacations; she had. Karas stated she did not appreciate

people not showing up for work.

Schultz further testified that when the schedule was

posted for the end of December, he was scheduled to

work. Acting on the advice of charge nurse Donna Pal-

mer, he wrote a note to Griffin stating he would not be

able to work the last week in December. He did not hear

back from Griffin, but he took the time off and was not

disciplined.

Donald and Mary Sue Nidefski

The Nidefskis testified concerning “Disciplinary

Actions” they received from Griffin on September 26,

1988, for absenteeism.?!} The actions were signed by

21 Petitioner Exhibits 4 and 5.

i. eneeneseenieninmenll

A47

Griffin as “Immediate Supervisor” and by Irene Karas as

“Reviewing Supervisor /Administrator.” The action was a

“First Violation — written warning.” Three absences in the

month of September were listed.

According to Donald Nidefski, Griffin came up to his

wife and him and stated, “I want to give you guys these

write-ups.” Griffin signed the write-up in front of them

and asked them to sign. The discipline itself was not

discussed. Griffin stated she had several more write-ups

to pass out. She also stated, “I do not want to have to give

these to you, but it’s part of my job and I have to enforce

policies.”22

According to Mary Nidefski, when Griffin brought

the write-ups to her husband and her she stated, “I’ve got

something for you and Don. I don’t really want to do it,

but I have to.” As Mary was signing the warning, she

Stated that the warning was not fair, that she had made

up the days that she had missed, that on two of the days,

She and Don had the flu. Griffin instructed her to write

this on the lines provided for employee comments.

Don Nidefski additionally testified that three or four

days later he approached Griffin and advised her that one

of the days he was charged with missing was a scheduled

day off and he wanted to talk to her about the matter.

Griffin replied that she would have to check the book, but

She never got back to him. He stated that he went to

Griffin because he understood the discipline to be issued

in her name. Each of the Nidefski’s had been issued prior

22 Transcript, p. 345.

A48

discipline, but the September 26, “Disciplinary Actions”

were the only discipline they received from Griffin.

Donald Nidefski also testified about Griffin’s role in

scheduling and in authorizing overtime. He stated that if

an employee wanted to switch a day he is scheduled to

work, he either called or visited Griffin and made a

request. On those occasions when he talked to her

directly, Griffin looked at the schedule and immediately -

either approved or disapproved the request without con-

sulting with anyone. Concerning overtime, Nidefski

stated that the charge nurse could authorize overtime,

but that he often made his request through Griffin. He

went to the nursing station at the end of his shift and

advised the nurse he wanted to work overtime. Griffin

either called the facility from home, or the nurse called

Griffin. After talking to Griffin, the nurse stated, “Susan

said it was okay, it’s fine.” On occasion, Nidefski con-

tacted Griffin directly about working overtime. She

checked the schedule and gave him an immediate answer

without consulting with anyone. In addition, there was a

notation on the employee phone list kept at the nursing

stations, in what Nidefski identified as Griffin’s hand-

writing, stating “If have staffing problems please call

Susan Griffin” and then listed her home telephone

number.?9

Julie Borchard and Mark Cobb

Aides Borchard and Cobb were called to the stand to

testify about Griffin’s involvement in the termination of

pool aide Stanley Copeland. One night during midnight

23 Petitioner Exhibit 10.

eat

A49

shift, Borchard and Cobb went to Griffin’s -office and

asked Griffin to accompany them, stating that they

wanted to show her something. They took Griffin to

D-wing lounge where Copeland was sleeping. Griffin

stated to Copeland, “Get up and go back to work.”?4 The

two employees then followed Griffin to the nursing stat-

ing. Griffin advised charge nurses Dawn Prather and

Georgia Kennedy of the incident and asked them if this

happened a lot. The nurses responded that they had

observed Copeland sleeping. Griffin asked the nurses to

write a letter concerning Copeland sleeping.

A few days later, Griffin asked Borchard and Cobb to

attend a meeting on the Copeland situation. The meeting

was Chaired by Administrator Lance Youle. Copeland and

employee Kathy Waters also attended the meeting.

Griffin sat on one side of Youle, Copeland on the other.

Youle did most of the questioning. Griffin spoke at the

meeting, but Borchard could not remember what Griffin

said. According to Cobb, Griffin asked, “Are you telling

me that you weren’t sleeping?” Griffin had Copeland’s

personnel file with her, and provided Youle with docu-

ments from the file. At the conclusion of the meeting,

Youle advised Copeland he would call him Monday and

let him know if he was dismissed.

No supervisor or official of Greenbriar ever advised

either Borchard or Cobb that Griffin was a supervisor.

Borchard testified that Prather is her charge nurse and

direct supervisor. She went to get Griffin to show her that

Copeland was sleeping “because she is the supervisor for

24 Transcript, p. 376. -

A50

the floor” and she wanted to show Griffin what went on

during midnights. She stated she considered Griffin to be

a supervisor because she made out the schedule,

employees write notes to her for vacations and employees

go to her for time off. Cobb testified that he went to get

Griffin because he had gone to the nurse previously, and

she just awakened Copeland. Griffin happened to be at

the facility and he thought that she was a higher author-

ity because she was the one employees went to for prob-

lems, such as scheduling.

Borchard and Cobb additionally testified that five

minutes after they left the conference room for the Cope-

land hearing, they heard an announcement on the public

address system that there was going to be a supervisor’s

meeting in the conference room. They went back down-

stairs to the conference room. Apparently, the meeting

had not yet started. They asked Griffin to come out and

talk to them. She did. They asked Griffin if they could

have Sunday off because they were going to a birthday

party for Borchard’s grandmother. Griffin gave them

immediate permission to take the day off.25 Borchard

stated that she asked Griffin for the day off instead of the

charge nurse because Griffin is in charge of doing the

schedule.

Cobb additionally testified that he talked to Griffin

about problems with his checks and showed her where

his hours had been miscalculated. She advised him he

could pick up his check the next Monday or Tuesday. He

25 Cobb testified that Griffin asked that they write her a

note on the requested day off so that she would not forget.

ASi

acknowledged that he had also talked to office manager

Pat Rogan about pay problems.

Barbara Butler

Butler, a non-geriatric nurse aide, testified that she is

scheduled by her nurse and not by Griffin. Butler’s

requests for leave time, vacation pay and vacation time

are made to Griffin or Karas. Such requests are generally

done via written form, but Butler has made them in

person or by telephone. She received vacation days in

December and vacation pay by verbal requests to Griffin.

Additionally, she brought payroll problems to Griffin’s

attention and asked her to re-check figures. Director of

Nursing Noreen Acheson and Greg Adare, (a corporate

employee) also were involved in the payroll problems.

Butler stated she considered Griffin to be a supervisor

because of “general posture knowledge” - she is the

person you Called if there were shortages on the floor

with personnel.26

6 Butler also testified with respect to a telephone conver-

sation she had with charge nurse Louise Loren. Butler asked

Loren if she did not accept the idea that Griffin could hire,

write-up or discipline in the same manner that she (Loren)

could. Loren replied, “Yes, I guess that’s true.” Butler stated

that no specific time frame was given for the question or the

response, i.e., whether the response concerned Griffin’s duties

and responsibilities as personnel director with New Medico, or

as personnel coordinator with Greenbriar. Butler and Loren

were discussing the challenged ballots when Butler asked the

question.

A52

Susan Griffin27

Griffin testified at length concerning her job duties as

personnel coordinator. As stated above, her basic duties

were to maintain personnel files, schedule geriatric nurse

aides, keep track of absenteeism, personal days and vaca-

tion hours, and perform clerical tasks. A summarized

account of her testimony follows.

While Griffin was personnel coordinator, the sched-

ule was prepared on a bi-weekly basis. Each full-time

geriatric aide was scheduled to work 10 days during the

two-week period, no more than four days consecutively

Each aide was required to work every other weekend

The new schedule picked up where the prior schedule left

off. Once the schedule was completed, Griffin presented

it to Karas for approval before it was posted. Griffin,

however, could not recall Karas making changes on the

schedules she prepared. Requests for schedule changes

were submitted to Griffin, but all requests had to be

approved by Karas. Griffin advised Karas of any prob-

lems related to the request and informed her how many

people were scheduled on the day in question

Griffin also prepared a daily schedule which indi-

cated who was working where. Griffin and Karas dis-

cussed the daily schedule, which also had to be approved

by Karas. If necessary, Karas determined who to move.

With the exception of one or two occasions when a

nurse’s meeting was being held, Griffin did not use any

27 In what was perhaps a tactical move, Griffin was called

to the stand by Petitioner. She testified after Barbara Butler, but

before the other employee witnesses.

— = > —

A53

independent judgment in assigning employees. Such

assignments came either from Karas or the charge nurse.

When employees asked Griffin if they could be moved,

she replied that she would do the best she could. At

Karas’ behest, she advised employees of transfers, or

asked the nurse to transfer employees

Employees were entitled to take eight personal days

a year. Requests for personal days were submitted to

Griffin, but had to be approved by Karas. Griffin looked

to see if the employee had the time available. If he did,

the request was approved. If he did not, the request was

denied. Employees also gave requests for vacation time

or vacation pay to Griffin.2® Once an employee submitted

a vacation request to Griffin, she took it to Karas for a

response. At times, Karas asked Griffin, how many

employees the facility would be short, if the labor pool

had been contacted to cover the absence or if other

employees had been asked if they wanted to work over-

time. Griffin could not recall Karas ever denying a vaca-

tion request. In rare situations when the facility was

overstatfed and an empioyee requested a day off, Griffin

had the authority to grant the request

, rn 4icrtataA . : : sone

tate requirements dictated certain staffing mini

mums. Day shift required 15 geriatric aides, afternoons 12

aides and midnights nine aides. If these levels were not

met, Griffin had the authority to authorize overtime. On

January 24, a memo was sent to “all nurses” by Karas and

Griffin outlining the minimums. Karas wrote the memo

28 Vacation pay was paid on the employee Ss anniversary

date, not when the vacation was taken

A54

Although Griffin’s name was on the memo, her only

involvement was typing it. The memo was posted with

the schedule book and daily assignment sheet.”

Griffin attended some, but not all, supervisor’s meet-

ings. She was invited if the meeting dealt with personnel

policies or meeting staffing requirements. Karas also

attended these meetings. No other nurse assistants

attended, but cooks attended one meeting.

In addition to interviewing applicants with Karas,

Griffin interviewed five to 10 prospective employees by

herself. These applicants were not pre-screened. In con-

ducting these interviews, she made sure that all blanks on

the application were filled out, the reference request was

signed and, if the applicant was a prior Greenbriar

employee, that she pulled the file. She asked the appli-

cant if she was a certified nurses aide, asked where she

worked previously to make sure the response matched

the application. She did not ask about school grades or

attendance at prior jobs. She did not contact references

prior to advising the applicant that she was hired, but did

this later as part of her job. She did not administer any

tests. The only test given applicants was for the purpose

of waiving the orientation period, and none of the appli-

cants she interviewed by herself took this test. She was

instructed to talk to the applicant, make sure she filled

out the entire application, and that if the applicant was

not a prior employee with a bad record, to hire her. If the

applicant was a prior employee with a bad record, she

2° The aide/patient ratio was 1:8 on days, 1:12 on after-

noons, and 1:15 on midnights. Petitioner Exhibit 3.

A55

was to take the file and application to the administrator.

This happened on one occasion and the prior employee

was not rehired. She was told that if the applicant

walked, talked and breathed, not necessarily at the same

time, to hire her. Following the interview, she advised the

applicant she was hired and gave a starting date.

Griffin wrote out and handed Disciplinary Action

forms to Don and Mary Nidefski for absenteeism. She did

this on the instruction of Karas who brought the absences

to her attention. Griffin gave the Nidefskis the documents

and explained they were disciplinary action forms. When

they attempted to explain why they were absent, she

advised them that there was a place for employee com-

ments and they should write down whatever their com-

ments were. On instruction from Karas, Griffin also

signed and gave discipline forms to employees Katie

Gardner and Lucy Prevale. Charge nurse Clara Cabala

observed Gardner and Prevale sleeping on the job and

advised Karas of this in Griffin’s presence. Because Cab-

ala did not put anything in writing on the incident, Karas

asked Griffin to write up the incident as a verbal and to

sign as the immediate supervisor, to affirm that she had

heard what Cabala had reported.

On January 26, Griffin signed and sent letters to

Frederick Ellis and Tarita Wilburn advising them that

they were being “terminated due to unsatisfactory proba-

tion.” On this same date, she signed and sent a letter to

Renee Downer, a probationary employee, advising her

that she was being terminated for three consecutive days

of no-call/no-show. It was Youle’s idea to send the let-

ters. The letters were written jointly by Karas and

Acheson, but Griffin was instructed by Karas to sign

A56

them. Each of the three employees exercised appeal

rights, and each was reinstated. Griffin played no part in

the appeal.

Concerning the Copeland incident — at 3:00 a.m. ona

Sunday morning, two aides, Judy Borchard and Mark

Cobb, came to the personnel office where Griffin was

working on time cards and stated they had something to

show her. She followed them and found Copeland asleep.

He stated to her that he was on his break. Griffin reported

the incident to midnight nurse Dawn Prather. A few days

later, at Youle’s request, Griffin gathered the employee

witnesses for a meeting to discuss disciplinary action

against Copeland. Copeland was terminated, but Griffin

had nothing to do with preparing the termination form,

nor did she advise Copeland of his discharge. She did not

know why the employees came to her to show her that

Copeland was sleeping.

Griffin recatled only one occasion when she reported

an employee for a performance problem. On this occa-

sion, she saw a patient unclothed from the waist down

with dried bowel movement on him. She reported the

incident to the nurse. She did not recall verbally repri-

manding employees, but did make statements to

employees when she saw an uncovered linen cart to the

effect, “We should probably keep this covered.” This

would be for infection control purposes.

Employees brought complaints to Griffin. She

relayed those complaints to Karas. She told employees

that they could talk to her, but advised them they should

go to their immediate nurse supervisor, and if that didn’t

A A A

A57

work, to Karas or Assistant Director of Nursing Diane

Jennings, and from there to Acheson and Youle.

Griffin did not consider herself to be a supervisor,

but the administrative assistant to Karas. She felt she had

no authority of her own. She was never told she had the

authority to hire, fire, discipline, direct, promote, transfer,

layoff, recall, reward, grant time off, reprimand

employees or to effectively recommend such actions. She

did not evaluate employees, either orally or in writing, or

make recommendations or retention of probationary

employees or hiring of pool employees. She acknowl-

edged that some employees regarded her as a supervisor

because she shared an office with Karas and they saw her

doing changes on the schedule and saw their requests for

personal days go through, but they did not see her con-

ferring with Karas.

Irene Karas

Irene Karas was an Assistant Director of Nursing for

Greenbriar and is currently Acting Director of Nursing

for New Medico. She testified on behalf of New Medico

concerning Griffin’s duties and responsibilities as person-

ne! coordinator. Karas was in charge or[sic] hiring nurses

aides, scheduling geriatric aides, ensuring staffing ratios

were met and handling workers’ compensation, unem-

ployment and MIOSHA matters. In addition, she hired

special care aides and was involved in terminating

employees from units other than geriatrics. She is the

person who hired Griffin and was her direct supervisor.

A summary of her testimony concerning Griffin follows.

A58

The position of personnel coordinator was created

because Karas needed an assistant to help with schedul-

ing. Griffin was the third person to hold the position. The

first two incumbents heid the position for only a short

time.s°

Karas was responsible for staffing, and frequently

was called at home if the facility was short-handed. She

asked Griffin to make telephone calls to get people to

come in, but she determined who was called and in what

order.

Karas physically taught Griffin how to schedule.

Scheduling was done for a six-week period. Every other

weekend was immediately blocked. Requested off and

personal days were then entered. Consideration was

given for employees who worked parttime, who worked

only on certain days, and who shared rides. Griffin had

no authority to write the schedule the way she wanted to

and Karas made changes after the schedule was submit-

ted to her. Any scheduling problems had to be reported

to Karas. If she was absent, problems were reported to

Griffin. Aides were instructed to put scheduling requests

in writing and put them in Karas’ box. Employees also

submitted requests directly to Griffin. Karas gave the

requests to Griffin because she did the scheduling. In

Karas’ absence, Griffin could call employees in if so

requested by a nurse, authorize employees to switch

days, and make schedule changes. Karas, however, was

not absent very often.

% Karas acknowledged that the personnel coordinator

position was unlike any other at the facility, either inside or

outside the bargaining unit.

A59

Griffin acted as Karas’ assistant, but had no super-

visory authority. Griffin interviewed one or two appli-

cants, but never hired anyone or informed anyone that he

was hired without confirmation from Karas. Karas hired

Schultz. He came into the office and filled out the appli-

cation. She took the application, initiated the interview,

asked about his experience, discussed his wages and

hired him for the midnight shift. Griffin gave him the test

for waiving the orientation period, but the exam itself

was graded by Jennings. Karas told Schultz when he

would start. She believes she discussed with him his

request to be off the last week in December.

With respect to discipline, Karas was instructed by

Acheson to write up the Nidefskis for absenteeism. She in

turn delegated the task of Preparing the write-ups to

Griffin. Griffin was not the Nidefskis’ immediate super-

visor, and had nothing to do with determining whether or

not they were disciplined. She signed the document in

the space for the immediate supervisor because she wrote

it out.

Karas wrote the letters sent to Frederick Ellis, Renee

Downer and Tarita Wilburn and asked Griffin to type

them. Karas was aware that the letters went out over

Griffin’s signature, but found Out too late. The letters

Should have gone out with her Signature. Acheson reins-

tated each of the three employees. Griffin was not

involved in these decisions.

Griffin reported to Karas that an employee was vio-

lating the dress code, but Griffin had no authority to

discipline the employee herself.

A60

Griffin did not attend any management meetings, but

she may have attended meetings with Karas, Acheson

and Jennings.

Karas does not believe employees considered Griffin

to be a supervisor. She told employees that Griffin was in

her office as her assistant and the personnel coordinator.

When employee Janice Wiltshire asked exactly what

Griffin’s position was, Karas replied, “She works under

me.” When Wiltshire asked who she should go to for

scheduling concerns, Karas told her to put her request in

writing and place it in the box. Karas never advised any

employee that Griffin was a supervisor. In addition to the

Administrator, the in-service director, the director of

nursing and two assistant directors of nursing, there

would be five charge nurses on day shift.

ANALYSIS?!

Section 2(11) of the Act defines a supervisor as:

_.. any individual having authority, in the inter-

est of the employer, to hire, transfer, suspend,

31 In its closing argument, Petitioner additionally con-

tended that Griffin should be excluded from the unit as an

office clerical employee, a specifically excluded classification.

Much of the work Griffin performed in scheduling an [sic]

handling requests for vacation, updating personnel files and

keeping track of time . ards and personal days are tasks com-

monly assigned to payroll or personnel clerks who are often

found by the Board to be business office clericals. I note,

however, that in the instant case Griffin’s office as personnel

coordinator was located in a patient care area, remote from the

(Continued on following page)

A6é1

lay off, recall, promote, discharge, assign,

reward, or discipline other employees, or

responsibly direct them, or to adjust their griev-

ances, or effectively to recommend such action,

if in connection with the foregoing the exercises

of such authority is not of a merely routine or

clerical nature, but requires the use of indepen-

dent judgment.

The indicia of supervisory authority are to be read in the

disjunctive; the possession of any one indicia is sufficient

provided authority is exercised on behalf of the employer

through the use of independent judgment and is not

merely routine or clerical in nature.22

I note at the outset that Griffin was not an RN or LPN

exercising professional or technical expertise for the ben-

efit of patient care. Nor was she a highly skilled

employee with many years of experience.

(Continued from previous page)

business office, and she appeared to have frequent contact with

unit employees. Also, the record discloses that as office man-

ager from January 25 to September 12, 1988, Griffin worked in

the business office and that business office clericals received

different vacation benefits and had dental coverage. At any

rate, I find that there is insufficient evidence in the record to

exclude Griffin as an office clerical. Since I have not excluded

Griffin as a business office clerical, there is no need to deter-

mine whether or not she is a dual function employee because

she worked as a nurse aide, a position advanced by New

Medico.

32 See Delta Mills, Inc., 287 NLRB No. 38, slip op. at 12

(December 16, 1987), and the cases cited therein.

A62

Interviewing and Hiring

Schultz testified that he was interviewed and hired

by Griffin. Karas testified that she interviewed and hired

Schultz. Based upon my observation of the witnesses, and

their respective demeanor on the stand, I credit Schultz.

He testified in a direct and forthright manner and was

able to describe the circumstances of his hiring in detail.

There is no direct conflict between Schultz and Griffin as

Griffin was called to the stand before Schultz, did not

specifically testify about his hiring, and was not recalled.

I note that Griffin testified that she did not interview and

hire anyone by herself who was given the test to waive

the orientation period. To the extent a credibility resolu-

tion is required, I credit Schultz. Griffin was in a difficult

situation. While I think she tried to testify honestly, she

tended to shade her testimony to lessen her authority. It

is of course possible that Griffin discussed hiring Schultz

with Karas outside of his presence. But this is not Karas’

testimony and there is no evidence in the record to sup-

port this conjecture.

Based on the evidence before me, I find that Griffin

interviewed and hired Schultz. Further, I find it logical to

conclude that the decision to hire Schultz was made

before he began taking the test, since the only purpose of

the test was waiver of the orientation period. I note that

Karas did not introduce herself to Schultz until after he

began taking the test.

I do not view the determination that Griffin hired

Schultz as critical. Griffin testified that she interviewed

and hired between five and 10 job applicants by herself.

A63

Karas denied that Griffin hired anyone. Based upon my

observation of their respective testimony, I credit Griffin.

A question remains as to whether Griffin, in hiring

Schultz or other applicants, utilized independent discre-

tion. I find that she did. The applicants were not pre-

screened and I view her testimony that she was

instructed to hire anyone who walked, talked and

breathed, not necessarily at the same time, as facetious.

Although the facility may have been shorthanded, and its

standards for hiring not high, if Greenbriar was willing to

hire almost anyone, there would have been no need for

an interview, and certainly no need for Griffin to ask the

questions she did of Schultz.

Hiring is a primary indicia of Supervisory authority.

There is no credited testimony that Griffin’s hiring deci-

sions were reviewed by anyone with greater authority.

The instant case is thus distinguishable from Automated

Waste Disposal, Inc., 288 NLRB No. 106 (May 11, 1988);

Coors Distributing Company of San Jose, Inc., 283 NLRB 328

(1987); Bowne of Houston, Inc., 280 NLRB 1222 (1986).

Accordingly, I find that Griffin is a supervisor within the

meaning of Section 2(11) of the Act.

Discipline and Termination

Clearly, Griffin wrote out, signed as immediate

Supervisor, and handed to Donald and Mary Sue Nidefski

the “Disciplinary Actions” issued to them on September

26, 1988. Similarly, she signed and gave written discipline

to Katie Gardner and Lucy Prevale. On January 26, she

signed and sent termination letters to Frederick Ellis,

A64

Tarita Wilburn and Renee Downer. I| credit Griffin’s testi-

mony that she was instructed by Karas to sign the termi-

nation letters.

At first blush, this appears to be fairly conclusive

evidence of supervisory authority. Griffin testified, how-

ever, that she prepared and issued the written warnings

on instructions from Karas; and that the termination let-

ters were written by Karas and Acheson at the suggestion

of Administrator Youle. I credit Griffin’s testimony that

she did not determine or effectively recommend issuance

of any of the above-described documents. Her reluctance

to discuss the discipline with the Nidefskis is an indica-

tion to me that she was not directly responsible for the

warnings. Accordingly, I find that in issuing the warnings

and termination letters, Griffin was not exercising inde-

pendent judgment, but was acting as a conduit for man-

agement. Rich's Precision Foundry, Inc., 262 NLRB 678, 679

(1982); Bowne, supra.

Copeland Incident

Borchard and Cobb testified that when they brought

Griffin to where Copeland was sleeping, she instructed

him to wake up and return to work. Griffin then went to

nurses Kennedy and Prather and asked them to write

letters concerning occasions when they had observed

Copeland sleeping. A few days later, Griffin gathered

employee witnesses for a disciplinary hearing. She partic-

ipated in that hearing, asking questions and providing

documents from Copeland’s file. | credit the testimony of

Borchard and Cobb, as it is essentially uncontradicted.

A65

There is no evidence that Griffin discharged Cope-

land or effectively recommended such action. If she had,

there would have been little need for the disciplinary

hearing. I think it reasonable to infer, however, that she

initiated the process which led to the disciplinary hear-

ing. Clearly, Cobb and Borchard viewed her as a person

who could solve their dilemma. Cobb in particular was

dissatisfied with the response of the nurses who merely

awakened Copeland. I note that Griffin did not ask the

employees why they sought her out. Rather, she took

steps to resolve the problem. A few days later, she gath-

ered employees for the hearing, sat next to Youle, handed

him documents and asked Copeland if he was saying he

wasn't sleeping.

1 find that in the Copeland incident, particularly in

instructing Copeland to wake up and return to work,

asking the nurses to prepare letters on Copeland and

initiating the process which led to the disciplinary hear-

ing. Griffin exercised independent judgment indicative of

Supervisory status.

Authority to Approve Overtime

I find that Griffin had the authority to, and did,

approve overtime. I do not find, however, that in doing

so she exercised independent discretion. State staffing

requirements stipulate minimum staffing levels. There is

no evidence that Griffin could require employees to work

overtime. Authorizing volunteers to work overtime in

order to meet minimum staffing requirements in accor-

dance with state and facility requirements does not

involve independent discretion. Beverly Enterprises d/b/a

A66

Beverly Manor Convalescent Centers, 275 NLRB 943, 946

(1985).

I note, however, that the charge nurses, who were

stipulated to be supervisors for purposes of this proceed-

ing and who had authority to grant overtime, deferred to

Griffin in this area.

Scheduling

I find that preparing the schedule itself is a fairly

routine procedure and not evidence of supervisory

authority.

I credit the testimony of Borchard and Cobb that

Griffin gave them permission to take a day off on the date

of the Copeland hearing. I also credit Schultz’s testimony

that on the date he was hired he obtained approval from

Griffin to take off the last week in December 1988. I credit

Don Nidefski’s testimony that when he went to Griffin

with requested schedule changes, she looked at the

schedule and either approved or disapproved the

requests. In each case, she gave an immediate response

without checking with anyone. I view this as an element

of independent discretion indicative of supervisory

authority.

Attendance at Supervisor’s Meetings

Griffin testified that she attended some supervisors

meetings. Karas testified that Griffin did not attend

supervisors meetings. I credit Griffin. Attending such

meetings is a secondary indicia of supervisory authority.

A67

Resolving Employee Grievances

Cobb testified that he talked to Griffin about prob-

lems with his paycheck. He showed her the error in

calculating his hours and she stated that he could pick up

his check the following Monday or Tuesday. Butler

brought payroll problems to Griffin and asked her to re-

check her figures. The record evidence provides insuffi-

cient evidence to determine how much independent judg-

ment was involved in these situations. Accordingly, I do

not find supervisory status as a result of Griffin’s efforts

to resolve pay discrepancies.

I find that Griffin exercised independent judgment on

behalf of the Employer in hiring between five and 10 job

applicants; in ordering Copeland to wake up and return

to work, asking nurses to prepare letters on Copeland

sleeping and initiating the process which led to the disci-

plinary hearing; and, in approving employee requests for

schedule changes. According, I find that she is a super-

visor within the meaning of Section 2(11) of the Act. Wilco

Business Forms, Inc., 280 NLRB 1336, 1342 (1986); Granco,

Inc. d/b/a Thrifty Supermarket, 276 NLRB 1450 (1985).

I also find, based upon the evidence set forth above,

that as personnel coordinator, Griffin’s community of

interest was more closely aligned with management than

with unit employees, and that she possessed important

indicia of supervisory authority such that she should be

excluded from the unit. Memphis Truck, supra, JD slip op.

at 16.

Additionally, I find that Greenbriar created the

impression among its employees that Griffin was a super-

visor. She interviewed applicants, both alone and with

A68

Karas; signed and issued written warnings as immediate

supervisor; told the Nidefskis that it was part of her job

to issue written warnings and enforce policies; signed

termination letters, attended supervisors meetings;

accepted and acted on employee requests for schedule

changes, vacation days and vacation pay; assisted

employees in resolving pay discrepancies; authorized

overtime under circumstances where charge nurses

deferred to her; and, shared an office with an acknow]-

edged supervisor. Further, a memo on staffing ratios and

requirements for authorization of overtime was issued to

charge nurses from Karas and Griffin and a telephone list

kept at nursing stations contained a handwritten notation

that Griffin should be called in the event of staffing

problems. Under these circumstances, I find that

employees could reasonably conclude that Griffin was a

supervisor. Bar and Barbeque Products, Inc., 229 NLRB

1058, 1059 (1977); Howard Johnson Company, 210 NLRB

376, 380.

I recommend that the challenge to the ballot of Susan

Griffin be sustained.

IV. RECOMMENDATIONS

Based upon the findings of fact and credibility reso-

lutions set forth herein, and the record as a whole, |

recommend that:

1. In accordance with the stipulation of the parties,

the challenges to the ballots of Christine Schullar and

Margie Kuhn be overruled;

A69

2. In accordance with the stipulation of the parties,

the challenges to the ballots of Joan Kehres and Barbara

McCreary be sustained;

3. The challenge to the ballot of Susan Griffin be

Sustained;

4. No ballots be opened, and the Board issue a

Second Revised Tally of Ballots reflecting that the two

unsustained challenged ballots are no longer determina-

tive;

5. New Medico be found to bea successor to Green-

briar;

6. The Board issue a Certification of Representative

designating Petitioner as the exclusive collective bargain-

ing representative of employees in the bargaining unit set

forth above, substituting New Medico for Greenbriar as

the Employer.

EXCEPTIONS

PLEASE TAKE NOTICE that within fourteen (14)

days of issuance of this report any party may file with the

National Labor Relations Board in Washington, DC, an

Original and seven (7) copies of exceptions to such report

with or without Supporting brief, in accordance with

Section 102.69 of the Board’s Rules and Regulations,

Series 8, as amended. Immediately upon the filing of such

exceptions, with or without brief, the party filing same

shall serve a copy thereof, together with a copy of any

brief filed, upon the other parties and shall file copies

with the Regional Director for the Seventh Region and

submit to the Regional Director proof of such service. If

A70

no exceptions are filed to such report, the Board, upon

the expiration of the period for filing such exceptions,

may decide the matter forthwith upon the record or may

make other disposition of the case.

Dated at Detroit, Michigan, this 28th day of July,

1989.

/s/ Raymond Kassab

Raymond Kassab, Hearing Officer

National Labor Relations Board

Seventh Region

Patrick V. McNamara

Federal Building

Room 300, 477 Michigan Avenue

Detroit, Michigan 48226

A71

APPENDIX E

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

NATIONAL LABOR RELATIONS

BOARD,

_ Cir. Court Case

Petitioner, No. 91-5271

ve. NLRB Case No.

NEW MEDICO HEALTH CARE 7-CA-30357

CENTER OF MICHIGAN, INC.,

Respondent.

RESPONDENT’S MOTION TO RECALL MANDATE

PENDING APPLICATION FOR WRIT OF CERTIORARI

NOW COMES Respondent, NEW MEDICO HEALTH

CARE CENTER OF MICHIGAN, INC., (“New Medico”)

by and through its attorneys, ABBOTT, NICHOLSON,

QUILTER, ESSHAKI & YOUNGBLOOD, P.C., and hereby

moves this Court to recall its mandate pending applica-

tion for Writ of Certiorari. In support of this motion,

Respondent states:

1. The appeal before this Court concerns the appli-

cation by the National Labor Relations Board (“Board”)

for enforcement of its Order requiring New Medico to

engage in collective bargaining with the American Feder-

ation of State, County and Municipal Employees

(“AFSCME”) as a successor employer to Greenbriar Care

Center (“Greenbriar”).

A72

2. On March 1, 1990 the Board issued an Order

certifying AFSCME as the collective bargaining represen-

tative for a unit of employees employed by Greenbriar.

On March 26, 1990 the Board, without explanation,

amended this certification to cover a unit of employees

employed by New Medico.

3. On December 20, 1991, this Court issued a per

curiam opinion enforcing the Board’s Order requiring

New Medico to engage in collective bargaining with

AFSCME.

4. On January 13, 1992, this Court issued its man-

date.

5. New Medico denies it committed any violations

of the National Labor Relations Act by refusing to bar-

gain with AFSCME, because all eligible voters were not

permitted to have their ballots opened and counted in the

NLRB election. Further, New Medico is not the legal

successor to Greenbriar, and the test for determining

successorship status, as set forth by the United States

Supreme Court, was not properly applied. For this rea-

son, New Medico intends to file a Petition with the

United States Supreme Court for a Writ of Certiorari,

requesting review of the present matter. The Petition for a

Writ of Certiorari must be filed by March 19, 1992.

6. In petitioning for a Writ of Certiorari, New Med-

ico will challenge the propriety of the Board’s evaluation

of the successorship issue, and in particular the date on

which successorship status was evaluated. The Board

analyzed the successorship issue as of March 1, 1989, the

date that New Medico took over the facility from Green-

briar. At that time there was no recognized or certified

A73

Union representative for any employees at the facility.

AFSCME was certified as the collective bargaining repre-

sentative for a unit of employees employed by Greenbriar

at the Howell facility on March 1, 1990, AFSCME did not

request that New Medico bargain with it as the alleged

successor to Greenbriar until March 7, 1990. Nevertheless,

the Board concluded that New Medico’s refusal to bar-

gain with AFSCME constituted an unfair labor practice

because of its alleged successorship status as of March 1,

1989, even though there was no recognized or certified

bargaining agent at the facility, and no demand by the

AFSCME that New Medico recognize or bargain with it,

at that time.

7. The Board’s decision, which has been affirmed by

this Court, is directly contrary to the United States

Supreme Court’s holding in Fal/ River Dyeing & Finishing

v. N.L.R.B., 482 U.S. 27, 125 L.R.R.M. 2441 (1987), wherein

the Court wrote:

“The successor’s duty to bargain at the ‘substan-

tial and representative complement’ date is trig-

gered only when the union has made a

bargaining demand.”

8. This Court recognized that this was a “novel”

issue of law, with no reported precedent. This Court then

explained that it was declining to accept New Medico’s

position with respect to this issue, and thus has failed to

follow Supreme Court precedent, because “public policy”

favored the Board analysis. This Court further explained,

“Any other position only encourages new owners to cir-

cumvent its obligations by filing challenges to certifica-

tion.” December 20, 1991 Slip Op. at p. 6. However, New

Medico respectfully submits that, where certifications are

A74

improperly issued, an employer has no choice but to

challenge it. Such challenge should not provide the basis

for ignoring Supreme Court precedent.

9. In order to preserve the status quo, and to pre-

serve the integrity of the Supreme Court’s decision in Fall

River, the Sixth Circuit should recall its mandate, pending

New Medico’s application for a Writ of Certiorari so that

the Supreme Court may decide whether it wishes to

modify the Fall River decision.

WHEREFORE, Respondent, NEW MEDICO HEALTH

CARE CENTER OF MICHIGAN, INC., respectfully

requests that this Honorable Court enter an Order recall-

ing the Mandate pending New Medico’s application for a

Writ of Certiorari.

Dated: January 23, 1991

Respectfully submitted,

/s/ ABBOTT, NICHOLSON, QUILTER,

ESSHAKI & YOUNGBLOOD, P.C.

By: /s/ James B. Perry

James B. Perry (P 28027)

Attorneys for Respondent

19th Floor, One Woodward Ave.

Detroit, Michigan 48226

(313)963-2500

26:3228:012192

A75

APPENDIX F

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

538 U.S. POST OFFICE & COURTHOUSE BUILDING

CINCINNATI, OHIO 45202-3988

LEONARD GREEN TELEPHONE

CLERK (513) 684-2953

FTs 684-2953

February 3, 1992

James B. Perry, Esq.

Abbott, Nicholson, Quilter, Esshaki & Youngblood

1 Woodward Avenue

19th Floor

Detroit, MI 48226-3412

RE: 91-5271

NLRB vs. New Medico Health

District Court No. 7-CA-30357

Dear Mr. Perry:

This letter is to advise that your motion to recall the

mandate in the above styled case has been denied.

Very truly yours,

Leonard Green, Clerk

/s/ Yvonne Henderson

Yvonne Henderson

Deputy Clerk

cc: Ms. Aileen A. Armstrong

Mr. Paul J. Spielberg

Ms. Karen L. Arndt

Mr. Bernard Gottfried

Mr. Michael Blum

A76

APPENDIX G

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

GREENBRIAR CARE Case 7-RC-18856

CENTER, INC.

and

NEW MEDICO HEALTH

CARE CENTER OF

MICHIGAN, INC.

Employer

and

AMERICAN FEDERATION

OF STATE, COUNTY AND

MUNICIPAL EMPLOYEES,

AFL-CIO

Petitioner

ORDER CORRECTING

On March 1, 1990, the National Labor Relations

Board issued a Decision and Certification of Representa-

tive in the above-entitled proceeding in which an inad-

vertent error appears.

IT IS ORDERED that said Decision is corrected by

striking the appropriate unit in its

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