# Petition for Writ of Certiorari — New Medico Neurologic Center of Michigan, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0384%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 504 U.S. 985 ## Text ‘ T Ruprame Court, Us \ j WAR 18 lead K i) : 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. S Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit a PETITION FOR WRIT OF CERTIORARI a 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. ii 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 iV 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 V 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 A. 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 e 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]. 4 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 ee 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 10 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 ———— 11 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 12 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 ad ) . _ | 13 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. 14 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. 15 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 16 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 17 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 18 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 19 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 20 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 21 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 22 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 —— 23 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. 24 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 25 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. 26 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 27 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: 28 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. ¢ 29 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 Al 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. A2 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. I 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 A3 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] A4 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 A5 § 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. Il 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. A6 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. A. 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 A7 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 A8 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 A9 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. B. 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. (c) Notify the regional Director in writing within 20 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. © The parties entered into the Stipulation “for purposes of 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0384%3A1. Public record. Not legal advice.