Evergreen New Hope Health & Rehabilitation Center v. National Labor Relations Board

MEMORANDUM *

Evergreen New Hope Health & Rehabilitation Center petitions for review of an order of the National Labor Relations Board granting the General Counsel’s Motion for Summary Judgment and finding that Evergreen violated §§ 2(6)-(7), 8(a)(5), and (1) of the National Labor Relations Act. Evergreen refused to bargain with the Local 250, Health Care Workers Union, Service Employees International Union, because the collective bargaining unit included resident nurses that Evergreen maintained were “supervisors” as defined by 29 U.S.C. § 152 (11) and thus should have been excluded. The NLRB cross-petitions for enforcement of its order requiring Evergreen to bargain with the union.

“Decisions of the NLRB will be upheld on appeal if its findings of fact are supported by substantial evidence and if the agency correctly applied the law.” NLRB v. Calkins, 187 F.3d 1080, 1085 (9th Cir. 1999) (citations omitted). The burden of proving that an employee is a supervisor lies with the party asserting supervisory status. NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 712 , 121 S.Ct. 1861 , 149 L.Ed.2d 939 (2001).

This case is distinguishable from Providence Alaska Medical…

dissenting.

The Regional Director properly applied the legal standard set forth by the Supreme Court in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 , 121 S.Ct. 1861 , 149 L.Ed.2d 939 (2001). There was evidence to support the view that the “charge .nurses” were primarily involved in planning and administering medical care to the patients directly, and were involved only in sporadic and incidental ways in directing Certified Nurse Assistants who aided in some aspects of patient care. There was also evidence that discipline of the Assistants was determined and imposed by the Director of Nursing, not the charge nurses who sometimes recommended disciplinary action. Finally, the fact that the Director of Nursing was not present, but was “on call” during nights and weekends, does not make the charge nurses supervisors; instead it suggests that “the ultimate responsibility lies with the supervisory nurse, not the charge nurse.” Providence Alaska Medical Center v. NLRB, 121 F.3d 548 , 555 (9th Cir. 1997).

The burden of showing that the charge nurses were supervisors lay with the employer, Evergreen. Kentucky River, 532 U.S. at 711-12 . The Regional Director’s ruling that…