United States Court of Appeals
For the First Circuit
No. 03-2734
HOSPITAL GENERAL MENONITA,
Petitioner, Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent, Cross-Petitioner,
and
FEDERACIÓN CENTRAL DE TRABAJADORES UFCW LOCAL 481,
Intervener.
PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Julio I. Lugo-Muñoz, with whom Lespier, Muñoz Noya & Rivera,
was on brief, for petitioner.
Ruth E. Burdick, Attorney, with whom Robert J. Englehart,
Supervisory Attorney, Arthur F. Rosenfeld, General Counsel, John E.
Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate
General Counsel, Aileen A. Armstrong, Deputy Associate General
Counsel, were on brief, for respondent.
Renee L. Bowser, was on brief, for intervener.
December 23, 2004
TORRUELLA, Circuit Judge. This case is before us on the
petition of Hospital General Menonita ("Hospital") to review, and
the cross-application of the National Labor Relations Board
("Board") to enforce, a Board order against the Hospital. The
Board's Decision and Order was issued on November 26, 2003, and is
reported at 340 N.L.R.B. 133 (2003).
I. Preliminary shadow boxing
The Board's Order is based in part on findings made in
the underlying representation proceedings in Board Cases Nos. 9-RC-
17602 and 24-RC-8204. In those proceedings, the Federación Central
de Trabajadores, UFCW, Local 481, AFL-CIO ("Union"),1 filed a
representation petition with the Board seeking to represent a
bargaining unit composed of the Hospital's registered nurses
("RNs"). The request was opposed by the Hospital, which alleged
that the RNs were statutorily excluded from the provisions of
Section 9 of the Act, 29 U.S.C. § 158 (regulating representation of
employees by labor organizations for collective bargaining
purposes), by reason of their supervisory status within the meaning
of that term as defined in Section 2(11) of the Act. 29 U.S.C.
§ 152(11).2 A hearing was held, in which evidence was taken. As
1
A "labor organization" within the meaning of Section 2(5) of the
National Labor Relations Act, as amended, 29 U.S.C. §§ 151 et seq.
("Act").
2
"The term 'supervisor' means any individual having authority, in
the interest of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other
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a result of the hearing, the Board's Regional Director issued a
decision to the effect that the RNs were not supervisors but were
employees entitled to Section 9 representation, and ordered an
election to determine whether a majority of the employees in a unit
composed of RNs would choose to be represented by the Union for
collective bargaining purposes. The Hospital filed a timely
request for review of the decision.
This request did not stay the election, and on March 21,
2002 the Regional Director of the Board conducted a secret-ballot
vote among "[a]ll registered nurses employed" at the Hospital's
facility in Cayey, Puerto Rico. Pending resolution of the request
for review, however, the ballots were impounded by the Regional
Director.
In addition to the issue of the supervisory status of the
Hospital's RNs, the Hospital filed a timely objection to the
conduct of the election itself. The Hospital claimed that its
outcome was faulty by reason of conduct, which it attributed to the
Union, consisting of the circulation of electioneering material
that the Hospital claimed gave the eligible voters the impression
that the Board favored the Union.
employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not
of a merely routine or clerical nature, but requires the use of
independent judgment." 29 U.S.C. § 152(11).
-3-
Meanwhile, on April 3, 2002, the Board, by a vote of 2-1
(with its Chairman dissenting) denied the Hospital's request for
review, and ordered that the impounded votes be opened and counted.
The result of the tally of ballots was 49 votes cast for the Union
and 45 against, the Union thus winning a majority result.
Thereafter, a hearing was conducted at which evidence was
adduced regarding the Hospital's objection to the election. On
August 9, 2002, the Regional Director issued a report and
recommendation denying the objection to the conduct of the
election. The Hospital filed timely exceptions, which were denied
by the Board on August 6, 2003, and thereafter, the Union was
certified by the Board as the exclusive bargaining agent of the
RNs.
On August 13, 2003, the Union requested that the Hospital
meet to commence negotiations for a collective bargaining
agreement, which request was rejected by the Hospital. Based on
this refusal, the Union filed unfair labor charges with the Board
alleging violation of Sections 8(a)(1) and (5) of the Act.3 The
Regional Director issued a complaint against the Hospital, which
responded by admitting its refusal to bargain, claiming as a
3
"It shall be an unfair labor practice for an employer -- (1) to
interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 157 of this title; . . . (5) to
refuse to bargain collectively with the representatives of his
employees, subject to the provisions of section 159(a) of this
title." 29 U.S.C. 158(a)(1), (5).
-4-
defense the invalidity of the Board's certification based on its
assertion regarding the supervisory status of the RNs and its
contention that the Union's misconduct during the election process
had tainted the election results. The Board's General Counsel
filed a motion for summary judgment, which was granted by the Board
on November 26, 2003, with the Board concluding that the issues
raised by the Hospital had been properly decided in the course of
representation proceedings. The Board thus found that the Hospital
had committed an unfair labor practice in violation of Sections
8(a)(1) and (5) of the Act by refusing to bargain with the Union,
and ordered the Hospital to bargain with the Union in good faith
and take other remedial actions. The Hospital filed a timely
petition for review of the Board's decision and order, and in turn,
the Board sought enforcement of its Order against the Hospital.
II. Discussion
A. Standard of review
The Board's determination regarding the non-supervisory
status of the RNs is entitled to judicial deference "unless those
findings fail to derive support from substantial evidence in the
record as a whole." Edward St. Daycare Ctr., Inc. v. NLRB, 189
F.3d 40, 46 (1st Cir. 1999) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951) (holding that if the Board's
findings are supported by substantial evidence on the record, a
reviewing court may not displace the Board's choice between two
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fairly conflicting views, even if the court "would justifiably have
made a different choice had the matter been before it de novo"));
see also 29 U.S.C. § 160(e).
In reviewing the Board's findings and conclusions on the
conduct of elections, the Board is entitled to a "wide degree of
discretion" in establishing what "safeguards [are] necessary to
insure [that the outcome reflects a] fair and free choice of
bargaining representatives by employees." NLRB v. A.J. Tower Co.,
329 U.S. 324, 330 (1946); accord NLRB v. Reg'l Home Care Servs.,
Inc., 237 F.3d 62, 66-67 (1st Cir. 2001). The party "claiming
taint of an election [that it seeks to] set aside, bears the burden
of proof on the issue," id. at 67, and is required to establish
that the Board has abused its discretion in concluding otherwise.
B. The Supervisory Status of the RNs
In NLRB v. Kentucky River Community Care, Inc., 532 U.S.
706, 713 (2001), the Supreme Court restated the three-part test for
determining the statutory definition of a "supervisor" under
Section 2(11) of the Act:
Employees are statutory supervisors if (1)they
hold the authority to engage in any 1 of the
12 listed supervisory functions, (2) their
'exercise of such authority is not of a merely
routine or clerical nature, but requires the
use of independent judgement,' and (3) their
authority is held 'in the interest of the
employer.'
Id. at 713 (quoting 29 U.S.C. § 152(11)). Thus, the duties of the
Hospital's RNs must satisfy all three of Kentucky River's prongs
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before the RNs can be considered supervisors within the statutory
exclusion of Section 2(11).4 In this case, whether or not the
Board's determination of the RNs' non-supervisory status is legally
a close one, it is supported by substantial evidence on the record,
and thus must be sustained. While we discuss only the principal
findings of the Board, suffice it to say that we are satisfied that
the Board's other findings all meet the legal standards required by
the Act.
The twelve supervisory functions in Section 2(11),
referred to in Kentucky River, 532 U.S. at 713, are "to hire,
transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly direct them,
or to adjust their grievances, or effectively recommend such
action." 29 U.S.C. § 152(11). Not all of these functions are at
issue in this case, and thus, our discussion will be limited to the
functions in dispute.5
4
It is worth noting that in enacting Section 2(11) of the Act,
Congress emphasized its intention that only supervisory personnel
vested with "genuine management prerogatives" should be considered
supervisors, and not "straw bosses, leadmen, set-up men and other
minor supervisory employees." NLRB v. Health Care & Retirement
Corp. of Am., 511 U.S. 571, 587-88 (quoting S. Rep. No. 80-105, at
4 (1947), reprinted in 1 N.L.R.B., Legislative History of the Labor
Management Relations Act, 1947, 410 (1948)).
5
The requirements of 29 U.S.C. § 152(11) are disjunctive, and so
any of the enumerated powers may signify supervisory status. See
N.E. Utils. Serv. Corp. v. NLRB, 35 F.3d 621, 624 (1st Cir. 1994).
In this case, however, there is apparently no allegation that the
RNs "hire," "transfer," "suspend," "layoff," "recall," "promote,"
"discharge," "reward," or "adjust [the] grievances" of employees.
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The statutory term "independent judgment," which is part
of the definition of supervisor, is, as the Supreme Court has
recognized, "ambiguous with respect to the degree of discretion
required for supervisory status." 532 U.S. at 713. "[T]he mere
fact that an employee gives other employees instructions from time
to time does not . . . render him . . . a supervisor." Edward St.
Daycare, 189 F.3d at 48 (quoting Telemundo de P.R. v. NLRB, 113
F.3d 270, 274 (1st Cir. 1997)).
The Hospital argues that the RNs are supervisors in that
they assign work to employees, but the record shows that they do so
by consensus among those who will be affected by the assignments.
We have held that the assignment of work through a cooperative
process such as this does not meet the criteria of "independent
judgment" required by the Act. Id. at 47, 50.
The Hospital also claims that the RNs have a supervisory
role in evaluating and reprimanding employees. However, the Board
found that, in this respect, the evidence was limited to general
testimony to the effect that staff RNs make oral representations to
Area Supervisors concerning the job performance of other employees.
Again this evidence is insufficient, as it is well settled that
where an employee's involvement in the evaluation process is merely
reportorial in nature, it is not sufficient to meet the supervisor
classification. Telemundo, 113 F.3d at 275. Filling out forms
related to performance issues, without more, does not qualify
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employees for supervisory status. Instead, the Hospital would have
to establish that the RNs' recommendations to higher-ups with
disciplinary power are routinely taken into account in the exercise
of their disciplinary power. Compare NLRB v. Hilliard Dev. Corp.,
187 F.3d 133, 147 (1st Cir. 1999) (finding evidence insufficient to
show that nurses played a supervisory role where they only reported
to others who made the actual disciplinary decisions), with Edward
St. Daycare, 189 F.3d at 51-52 (indicating that there must be
evidence that recommendations made in evaluations had a real impact
on wages, promotions or other terms of employment). There is
substantial evidence on the record justifying the Board's
conclusion that the Hospital failed to prove that the RNs played
this type of significant role in evaluating and reprimanding
employees.
On the issue of supervising care, the Board found that
any discretion exercised by the staff RNs in directing patient care
tasks of licensed practical nurses ("LPNs") and technicians was
constrained by physicians' orders and detailed protocols which set
forth in detail the diagnostic and treatment standards, in effect,
negating the need for any meaningful supervisory discretionary
supervision by the RNs. This is precisely what the Supreme Court
meant when, in Kentucky River, it indicated that discretion may be
reduced below the supervisory threshold by detailed orders and
regulations. 532 U.S. at 713-4. In fact, the record further shows
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that the RNs have no independent discretion in determining which
technician will perform what work. The RNs simply pass on the
order for the work prescribed by the attending physician, and the
technician on duty to do that kind of work carries out the
appropriate test. The results are then provided to the physician
for appropriate professional evaluation and use. This scenario is
sufficient to support a conclusion that the RNs do not supervise
the work of the LPNs or technicians by reason of their assigning
work or tasks to them. This result is bolstered by the lack of any
evidence demonstrating that the RNs are or have been held
responsible for the work or performance of the technicians or LPNs.
The lack of such evidence is significant, because we have held that
an important indicator of supervisorship is that in overseeing an
employee one becomes responsible for the errors of that employee.
Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347, 361 (1st Cir.
1980). This court also notes that if RNs are considered
supervisors, then there would be 1.96 supervisors per employee (an
unusually top heavy organizational structure), whereas if they are
not supervisors, then there would be approximately one supervisor
for every eight employees. Undoubtedly, the Board reached the
correct conclusion on this point. Kentucky River reaffirmed what
has been the law for some time: it is "within the Board's
discretion to determine, within reason, what scope of discretion
qualifies" an individual as having supervisory status. 532 U.S. at
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713. That discretion has been exercised by the Board in this case
with considerable support in the record.
C. The Conduct of the Election
The essence of the Hospital's claim concerning the
conduct of the election is that the Union distributed copies of the
official Board sample ballot, defaced with a "Yes" box marked with
an "X", without identifying on the ballots the source of the
defacement and thereby creating the misleading impression that the
Board favored the Union. The record is undisputed that a Union
representative reproduced and distributed a facsimile of a sample
ballot6 marked "Yes" at the Hospital's only entry and exit point
shortly before the election was held. The Union was not identified
in any manner on the facsimile ballot as being the source of the
same. The specific issue presented was thus whether this leaflet
had the tendency to mislead the eligible employees into believing
that the Board favored the Union.
6
More accurately, as is depicted by the exhibit in evidence, what
was reproduced was the Board's notice of elections which contains
information directed at employees, such as a description of who was
eligible to vote, the time and place where they could vote, and a
copy of a blank ballot, which in this case was marked with an "x"
in the "Yes" box.
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The Board concluded that it did not.7 The Board
considered evidence that for several months prior to the election,
Union organizers, clearly identified as such by recognizable logos
on their shirts and windbreakers, engaged in handbilling activities
at the location where the controversial ballot was later handed out
to employees. Furthermore, that leaflet was reproduced on yellow
stock paper in contrast to the blue paper on which the official
notice of election was printed. The questioned leaflet was
distributed by the same six to eight Union organizers who had
engaged in similar activities, at the same location, during the
months prior to the election. Thus, the Board concluded that the
employees were not misled into believing that the altered ballot
shown in the Union-reproduced copy of the election notice indicated
that the Board favored an election outcome partial to the Union.
This conclusion is strengthened by the disclaimer that
was part of the Board's official notice of election:
WARNING: THIS IS THE ONLY OFFICIAL NOTICE OF
THIS ELECTION AND MUST NOT BE DEFACED BY
ANYONE. ANY MARKINGS THAT YOU MAY SEE ON ANY
SAMPLE BALLOT OR ANYWHERE ON THIS NOTICE HAVE
7
To resolve such questions, the Board has developed a two-part
test. First, it inquires whether the "altered ballot. . . on its
face clearly identifies the party responsible for its preparation,"
in which case it is per se unobjectionable. SDC Invs., Inc., 274
N.L.R.B. 556, 557 (1985). If not, the Board engages in a fact-
specific inquiry of "the nature and contents of the material," id.,
and the "circumstances of distribution." 3-Day Blinds, Inc., 325
N.L.R.B. 1220, 1221 n.7 (1990); see also Kwik Care Ltd. v. NLRB, 82
F.3d 1122, 1128-29 (D.C. Cir. 1996) (describing this two-part test
and finding Board's application of it reasonable).
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BEEN MADE BY SOMEONE OTHER THAN THE NATIONAL
LABOR RELATIONS BOARD AND HAVE NOT BEEN PUT
THERE BY THE NATIONAL LABOR RELATIONS BOARD.
THE NATIONAL LABOR RELATIONS BOARD IS AN
AGENCY OF THE UNITED STATES GOVERNMENT, AND
DOES NOT ENDORSE ANY CHOICE IN THE ELECTION.
The evidence is unrefuted that these notices, with the
disclaimer language, on the blue paper and with the unmarked sample
ballot, were posted in prominent places throughout the Hospital,
including on or near the employees' time clock. Furthermore, these
notices were affixed for some time before the election took place.
Based on these factors the Board opined that the disclaimers would
have sufficiently reassured the employees of the Board's neutrality
in the election, thus adequately countering any false impression
that might have been caused by the Union's reproduction of the
notice with the marked ballot. See Kwik Care Ltd., 82 F.3d at
1128-29; Comcast Cablevision, Inc. 325 N.L.R.B. 833 (1998).
When taken together with the fact that the marked notices
were distributed by persons clearly identifiable as being
associated with the Union, the likelihood that any employee would
be misled into believing that the Board favored the Union in the
election is not high. The Board thus concluded that the actions
complained of by the Hospital, although proven factually, did not
warrant the setting aside of the election.
We cannot say that the Board's decision is unsupported by
the evidence or that it constitutes an abuse of discretion. See
Reg'l Home Care, 237 F.3d at 66-67 (holding that the Court is
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limited to determining whether the Board acted within its
discretion in the conduct of elections).
III. Conclusion
For the reasons stated in this opinion, we conclude that
the Board's order is entitled to enforcement and that the
Hospital's petition should be dismissed.
Costs are awarded to the Board.
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