United States Court of Appeals,
Eleventh Circuit.
No. 96-8058.
VISITING NURSE HEALTH SYSTEM, INC. f.k.a. Visiting Nurse
Association of Metropolitan Atlanta, Inc., Petitioner—Cross-
Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent—Cross-Petitioner,
and
United Food and Commercial Workers, Local No. 1996, Intervenor.
March 31, 1997.
Petition for Review and Cross-Application for Enforcement of an
Order of the National Labor Relations Board.
Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and
STAGG*, Senior District Judge. (No. NLRB 10-CA-27847).
STAGG, Senior District Judge:
In the proceedings below, the National Labor Relations Board
("NLRB" or the "Board") held that the vote of Staff Nurse Iris Mead
should not be counted in the union election and held that Visiting
Nurses Health System, Inc. ("VNHS") untimely raised the issue of
whether its staff nurses are supervisors under NLRB v. Health Care
& Retirement Corp., 511 U.S. 571, 114 S.Ct. 1778, 128 L.Ed.2d 586
(1994). Petitioner/Cross-Respondent, VNHS, petitions for review of
the Board's decisions. Respondent/Cross-Petitioner, the Board,
seeks enforcement of its decision that VNHS and United Food and
Commercial Worker's Local 1063 are ordered to collectively bargain.
Based on the following reasons, the Board's order is enforced.
*
Honorable Tom Stagg, Senior U.S. District Judge for the
Western District of Louisiana, sitting by designation.
I. PROCEDURAL HISTORY AND FACTS
A. Procedural History
On December 18, 1992, an election was conducted among staff
nurses at VNHS to determine whether the nurses wished to be
represented by United Food and Commercial Worker's Local Union No.
1063 (the "Union"), by the Georgia Nurses Association, Inc.
("GNA"),1 or by no union at all. The count of the vote revealed
that 43 votes were cast for the Union, one vote was cast in favor
of GNA, and 40 votes were cast in favor of having no union
representation. Two of the votes cast were considered challenged
votes. Staff Nurse Iris Mead's ("Mead") vote was challenged
because it was cast after the poll had closed.
The Board's Regional Director conducted an investigation of
the challenged votes and on January 29, 1993, issued a report
finding that one of the parties, VNHS itself, unintentionally
interfered with Mead's voting. Thus, the Regional Director
concluded that Mead's vote should be counted because the
unintentional interference constituted an "extraordinary
circumstance" under Monte Vista Disposal Co., 307 N.L.R.B. 531,
1992 WL 110678 (1992). The Union filed an exception to this ruling
and a hearing was held on the matter on July 14, 1993, before an
NLRB Hearing Officer. On August 25, 1993, the Hearing Officer
issued a report agreeing with the Regional Director's findings and
conclusions and recommended that Mead's ballot be opened and
counted.
1
At the time of the election, GNA was representing the staff
nurses.
On September 8, 1993, the Union filed exceptions to this
ruling with the NLRB, and VNHS responded to the Union's exceptions.
The Board issued its decision on July 18, 1994. See Visiting
Nurses Association of Metropolitan Atlanta, Inc. and United Food
and Commercial Workers, Local Union No. 1063, 314 N.L.R.B. 404,
1994 WL 377055 (1994). The Board adopted the factual findings of
the Hearing Officer. However, the Board reached a different
conclusion ruling that Mead voted late due to her own actions
rather than due to any extraordinary circumstances. Finding that
the election was conclusive and that the Union gained a majority of
the unit at VNHS, the Board ordered VNHS to collectively bargain
with the Union. VNHS refused to do so and, by way of
correspondence to the Union, expressed three reasons for its
refusal: (1) the Board decision was in error and therefore the
Union was not properly certified; (2) under Health Care, the staff
nurses were supervisors and could not be the subject of an NLRB
certification; and (3) the unit expressly excludes supervisors
such as the staff nurses, and thus, there were no employees in the
certified unit.
On August 11, 1994, the Union filed an unfair labor practice
charge, alleging that VNHS had illegally refused to bargain with it
in violation of sections 8(a)(1) and 8(a)(5) of the National Labor
Relations Act (the "Act"). General Counsel for the NLRB
subsequently filed a motion for summary judgment, which VNHS
opposed. On December 8, 1995, the Board granted the motion for
summary judgment, finding that VNHS had illegally refused to
bargain with the Union. See Visiting Nurse Health System, Inc.
f/k/a Visiting Nurses Association of Metropolitan Atlanta, Inc.,
319 N.L.R.B. 899, 1995 WL 732846 (1995). The Board rejected VNHS's
claim that Health Care had any affect on the proceeding, stating
that VNHS was barred from raising the issue because it was raised
untimely. Id. at 899 n. 1.2
B. Facts Surrounding Mead's Vote
The polls were open at VNHS's facilities for the December 18,
1992 election from 7:30 to 10:00 A.M. On that day, Mead had to
conduct a blood sugar test on a patient and had to deliver the
blood sample to the laboratory that same morning for testing. Mead
left the patient's house at approximately 7:50 A.M., visited one or
two more patients, and drove to the laboratory to deliver the blood
sample. Mead then drove directly from the laboratory to VNHS's
Lawrenceville, Georgia facility. Mead testified that she arrived
in the parking lot at approximately 9:45 or 9:50 A.M. Just as she
was entering the parking lot, Mead was paged on her pager by her
supervisor. Mead's personal practice was to answer her page as
soon as possible. There was not a policy in place at VNHS,
however, that required staff nurses to answer their pages as soon
as possible, nor was there any indication on Mead's pager that this
page constituted an emergency.
2
This court does not reach the issue of whether staff
nurses, who individually provide nursing services to patients in
their homes, are supervisors under Health Care. The court agrees
with the Board in Visiting Nurse Health System, 319 N.L.R.B. at
899 n. 1. VNHS never raised the issue of the supervisory status
of its staff nurses in the representation proceeding. Thus, VNHS
is barred from raising the issue before the Board and before this
court on appeal. See Flatbush Manor Care Center, 314 N.L.R.B.
702, 703 n. 4, 1994 WL 424153 (1994); HeartShare Human Services
of New York, 317 N.L.R.B. 611 n. 1, 1995 WL 321741 (1995).
When Mead entered the building, she reported to her supervisor
regarding her page. During a short conversation with her
supervisor, Mead was asked if she had voted, to which Mead
responded that she had not. Mead's supervisor then told Mead she
could go vote. After this conversation, Mead went to her desk to
put her things down. Mead's testimony shows that she may have
spoken with a few co-workers, or as the Board found, "chit-chatted"
with co-workers. It was after this that Mead went to the polling
place to vote. Very shortly prior to Mead's arrival at the voting
room, the ballot box had been closed and sealed. Although there
was a dispute about the exact time of the poll's closing3, Mead was
allowed to vote but she was told by the Board agent that her vote
would be considered a challenged vote. Mead responded that "if it
[voting] had been important to me I would have been [t]here."
Visiting Nurses Association, 314 N.L.R.B. at 404. Mead also
testified that voting "was not my priority of the day. It did not
matter a whole lot to me whether I voted or not." Id. at 404 n. 4.
Mead then marked her ballot and the ballot box was re-sealed.
II. STANDARD OF REVIEW
Traditionally, we accord considerable deference to the
Board's expertise in applying the National Labor Relations Act to
the labor controversies that come before it. N.L.R.B. v. Deauville
Hotel, 751 F.2d 1562, 1567 (11th Cir.1985), citing N.L.R.B. v.
Denver Building and Construction Trades Council, 341 U.S. 675, 692,
3
The question of whether Mead was actually late to the poll,
or the question of how late she was, depending on who's watch
controls, is not an issue on appeal. The only issue is whether
Mead's excuse can be said to be an extraordinary circumstance.
71 S.Ct. 943, 953, 95 L.Ed. 1284 (1951). "We must examine its
decisions to ensure that its statutory interpretation has a
reasonable basis in law ... and that a reasonable balance has been
struck between competing policies." Deauville Hotel, 751 F.2d at
1567. We are bound by the Board's findings of fact if they are
supported by substantial evidence on the record as a whole. See
N.L.R.B. v. Hayden Electric, Inc., 693 F.2d 1358, 1362 n. 4 (11th
Cir.1982); Georgia Kraft Co. v. N.L.R.B., 696 F.2d 931, 936 (11th
Cir.1983). If the Board does not discredit the testimony
considered by the Hearing Officer, but rather rejects the Hearing
Officer's conclusions as to the inferences to be drawn from the
testimony, such a disagreement between the Board and the Hearing
Officer on factual inferences and legal conclusions does not
detract from the substantiality of the evidence that must support
the Board's decision. See Georgia Kraft, 696 F.2d at 937. Nor
does it modify the appropriate standard of review in the appellate
court. Id.
III. DISCUSSION
The issue this court must determine is whether Mead's reasons
for arriving late to the poll on December 18, 1992, were due to
"extraordinary circumstances."
In Monte Vista, the employees arrived late to vote and
provided no reason for their tardiness. The Board in Monte Vista,
provided little guidance as to what constituted an extraordinary
circumstance. The Board did, however, state that an extraordinary
circumstance "shall include a showing that one of the parties was
responsible for the tardiness of the late-arriving voter or
voters." Id. at 533 n. 6. The Board in Monte Vista, did not find
that the employees were late due to extraordinary circumstances.
See id. at 534.
In The Glass Depot, 318 N.L.R.B. 766, 1995 WL 518710 (1995),
the Board was not required to determine whether a snow storm that
caused 4 of 19 employees to miss a vote was an extraordinary
circumstance because a representative portion of the employees
attended the vote. The Board did say, however, that the snow storm
"may well have been" an extraordinary circumstance. Id. at 767.
The cases above contemplate situations beyond one's control
as constituting an extraordinary circumstance under Monte Vista.
Mead's failure to vote timely at VNHS was not due to circumstances
beyond her control. Rather, her tardiness was due to her own
actions on that morning. Mead could have made sure that she
arrived with plenty of time to vote despite being confronted with
minor setbacks. Mead simply tried to accomplish too many tasks
that morning, and this caused her to arrive late to the poll. This
court does not find that the reasons articulated on the record by
Mead constitute an extraordinary circumstance. The Board's
decision is supported by substantial evidence, and thus, is
entitled to enforcement.
The order of the Board granting judgment in favor of the NLRB
is ENFORCED. Furthermore, the order of the Board ordering VNHS to
collectively bargain with the Union is ENFORCED.