ON APPEAL FROM THE NATIONAL LABOR RELATIONS BOARD Case No. 6-CA-28468
Before: Greenberg, Nygaard, and McKEE, Circuit Judges
The opinion of the court was delivered by: Nygaard, Circuit Judge.
Argued Thursday, February 12, 1998
Opinion Filed: July 24, 1998
Passavant Retirement & Health Center requests that we review a decision of the National Labor Relations Board which concluded that Passavant committed an unfair labor practice violating section 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), (5). Passavant refused to bargain with the General Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 538 a/w International Brotherhood of Teamsters, AFL-CIO, the certified exclusive bargaining representative of a group of Licenced Practical Nurses,1 working as Passavant's Charge Nurses. The Board cross-petitions us to enforce its decision. Because we find that the LPN Charge Nurses are supervisors under the Act, we will grant Passavant's Petition For Review, reverse the Board's ruling, and deny its Petition to Enforce.
Passavant is a continuing care retirement community, providing various levels of nursing services in its skilled nursing facility, separate assisted-living units, and independent-living apartments and cottages. The facility is under the overall supervision of an Executive Director. Directly below the Executive Director in Passavant's hierarchy is the Director of Clinical Services, who supervises the Independent Living Supervisor and the Director of Nursing. The Director of Nursing has an Assistant Director of Nursing, and both oversee the House Supervisors. Under the House Supervisors are the Head Nurses, who in turn supervise the Charge Nurses. The remainder of the nursing staff includes Nurses Aides and Resident Assistants. In the Independent Living portion of the facility, the Independent Living Supervisor directly oversees the Charge Nurses and Resident Assistants working there. Passavant's Nurses Aides and Resident Assistants are already governed by a collective bargaining agreement.
The Union originally petitioned for representation of all Passavant's LPNs. LPNs work alongside Registered Nurses as Charge Nurses and Head Nurses. To avoid confusion, it is worth noting that "Head Nurse" and "Charge Nurse" are job titles at Passavant, and the terms "Registered Nurse" and "Licenced Practical Nurse" denote different degrees of state licensure. The LPNs and RNs employed in those positions perform the same duties, except that RNs are qualified to perform a few more medical procedures such as drawing blood, and inserting feeding tubes and intravenous tubes. The Union amended its petition to exclude LPN Head Nurses from the proposed bargaining unit, as it recognized that they were supervisors, but did not amend the petition to include RNs employed as Charge Nurses. Thus, the bargaining unit here comprises only LPN Charge Nurses.
While the representation petition was before the NLRB Regional Director, Passavant moved to transfer the proceeding to the Board, which had scheduled oral argument in two cases that also concerned the supervisory status of nurses. See Nymed, Inc., d/b/a Ten Broeck Commons, 320 N.L.R.B. 806 (1996); Providence Hosp., 320 N.L.R.B. 717 (1996). After finding that the LPN Charge Nurses were not supervisors and were an appropriate bargaining unit, the Regional Director denied Passavant's Motion to Transfer and ordered a representation election.
Passavant appealed the Regional Director's decision to the Board. Meanwhile, after an election, the ballots were impounded pending the Board's ruling. The Board denied Passavant's Request for Review, concluding that the Regional Director's analysis followed the Supreme Court's recent decision in NLRB v. Health Care & Retirement Corp., 511 U.S. 571, 114 S. Ct. 1778 (1994), and Board precedent.
The impounded ballots were then counted, and the Union won the election. The Regional Director certified the Union as the exclusive bargaining representative of Passavant's LPN Charge Nurses. The Union requested that Passavant enter into collective bargaining, but Passavant refused. The Union then filed unfair labor practice charges with the Board, and the Board's General Counsel filed a Complaint against Passavant. The Board granted the General Counsel's Motion for Summary Judgment, finding that Passavant had violated the NLRA by refusing to bargain. Passavant Retirement and Health Center, 323 N.L.R.B. No. 99 (Apr. 30, 1997).
The underlying decision of the Regional Director as to the representation election is before us pursuant to section 9(d) of the NLRA, 29 U.S.C. § 159(d). We have jurisdiction over this appeal under 29 U.S.C. § 160(e), (f). Our standard of review is deferential. We will uphold the Board'sfindings of fact if supported by substantial evidence in the record as a whole:
"The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both."
Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S. Ct. 456, 466 (1951). We exercise plenary review over questions of law and the Board's application of legal precepts, Tubari, Ltd. v. NLRB, 959 F.2d 451, 453 (3d Cir. 1992); however, "[b]ecause of the Board's`special competence' in the field of labor relations, its interpretation of the Act is accorded special deference." Pattern Makers' League of N. Am., AFL-CIO, 473 U.S. 95, 100, 105 S. Ct. 3064, 3068 (1985). Moreover, a determination of "[w]hether a [bargaining] unit is appropriate involves a large measure ...