UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


VIP HLTH SVC INC

v.

NLRB


97-1608a

D.C. Cir. 1999


*	*	*


Wald, Circuit Judge: Local 2, Federation of Nurses, Unit- ed Federation
of Teachers, American Federation of Teachers,  AFL-CIO ("union") filed
a petition with the National Labor  Relations Board ("NLRB" or
"Board") in 1993 seeking to be  certified as the exclusive bargaining
representative of nurses  employed in New York by VIP Health Services,
Inc. ("VIP").  The proposed bargaining unit included field nurses who
are  assigned by VIP to adult care facilities operated by other 
entities and to private residences. VIP objected to the unit,  arguing
that the field nurses are supervisors and therefore  ineligible for
inclusion. After a hearing, the hearing officer  determined that the
field nurses are not supervisors. The  NLRB Regional Director affirmed
in a detailed opinion and  ordered an election. VIP's requests for
review and reconsid- eration were denied by the Board and the union
won the  election. The union was certified on November 27, 1996.


Less than five months later, the General Counsel of the  NLRB charged
VIP with refusing to bargain with the union  in violation of sections
8(a)(1) and (5) of the National Labor  Relations Act ("NLRA"), 29
U.S.C. s 158(a)(1) and (5). VIP  defended by challenging the validity
of the underlying repre- sentation proceeding on the ground that the
field nurses are  supervisors.1 The Board granted the General
Counsel's sum-




__________

n 1 Because certification of a bargaining unit by the Board in a 
representation proceeding is not an "order" subject to judicial 


mary judgment motion, finding no cause to reexamine the  decision made
in the earlier representation proceeding. The  Board then ordered VIP
to cease and desist from refusing to  bargain with the union and to
take related actions. VIP  petitions for review of the Board's
decision and the Board  cross-petitions for enforcement of its order.
Because the  Board, in upholding its Regional Director, properly
deter- mined that the field nurses are not supervisors, we deny  VIP's
petition and grant the Board's cross-petition for en- forcement.


I. Background


VIP employs thirty to forty field nurses; the precise  number
fluctuates. Almost all of these nurses work in a  dozen or so adult
care facilities that are not operated by VIP.  A few care for patients
in private homes. The residents of  the facilities and the patients
served in their own homes are  elderly or mentally disturbed, but
require less care than  people who live in nursing homes. Overall, VIP
field nurses  provide care to approximately 800 patients. The tasks
per- formed by the nurses include giving insulin and other injec-
tions, dressing wounds, and taking vital signs.


Some of the 800 patients also receive care requiring less  skill from
home health aides ("HHAs"). An individual HHA  typically works with
three to five patients a day, spending two  or three hours with each.
The group of patients seen by an  HHA is called a "cluster." HHAs help
patients in the  activities of daily life, such as moving about,
bathing, dress- ing, eating, getting to the dining room for meals, and
getting  to appointments. VIP employs as many as twenty HHAs,  but
purchases the services of at least another hundred HHAs  from other




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n review, see American Fed'n of Labor v. NLRB, 308 U.S. 401 (1940), 
review of certification may occur in a later unfair labor practice 
proceeding.


2 Most of the HHAs that VIP places but does not directly employ  come
from its parent agency, VIP Health Care Services.


The witnesses presented by VIP and the union in the  representation
proceeding painted dramatically different pic- tures of the
relationship between field nurses and HHAs.  Testifying on behalf of
VIP, Marilyn Pierre and Rena Dern3  asserted that the nurses play the
lead role in "reclustering."  That is the term used at VIP to describe
changes in the  group of patients assigned to an HHA. Reclustering is 
necessitated by, for example, the arrival of a new patient who  needs
the help of an HHA or the temporary departure of a  patient for the
hospital. According to Pierre and Dern, by  controlling the
reclustering process the nurses not only de- cide what work each HHA
is to perform but also how much  money she receives because HHAs are
paid on an hourly  basis. By contrast, four field nurses--Denise
Drury, Janice  Derose, Yolaine Mesidor, and Marie (Nellie) St. Surin--
testified for the union and stated that they have no control  over
reclustering or otherwise assigning work to HHAs.  Rather, the nurses
testified that they do no more than notify  staff at VIP's office of
the need for schedule changes in order  to ensure complete patient
coverage or, at one facility, leave  the job of arranging the changes


Pierre also testified that field nurses play a substantial role  in
disciplining and discharging HHAs. She explained that  when a nurse is
not satisfied with an HHA she may tell Rena  Dern in the VIP office
that the HHA should be removed from  the facility, and Dern will
comply. Pierre further stated that  eighty to one hundred HHAs have
been removed from their  jobs in this manner. When HHA behavior does
not merit  dismissal, such as reporting to work late, the nurses
counsel  HHAs and may write them up, according to Pierre. The field 
nurses, on the other hand, denied having any such power or 
responsibility. As with reclustering, they testified that the  most
they do is bring a problem to the attention of VIP office 




__________

n 3 Pierre and Dern are VIP employees who work in VIP's office,  not at
locations where patient care is rendered. Pierre is the 
administrator/director of patient services. Dern is the administra-
tive supervisor.


staff, and that they neither recommend nor direct that a  particular
action be taken with respect to the HHA involved.


Pierre further testified that when HHAs have problems  with their peer
HHAs or with other employees of the adult  care facility, or want to
work more hours, they go to the field  nurse who is empowered to
address such issues. All four  nurses testified that they lack the
authority to adjust HHAs'  grievances.


The virtually complete disagreement expressed by the wit- nesses
presented by VIP and the union over the role played  by nurses in
reclustering, disciplining, discharging, and han- dling grievances is
absent in testimony about the role they  play in creating "plans of
care" for each patient. There  appeared to be general agreement that
the nurses are in- volved in writing two types of plans--nurse plans
of care and  HHA plans of care. The latter details the
responsibilities of  an HHA with regard to a particular patient, but
the former  does not appear to be limited to describing the
responsibili- ties of a nurse. According to Pierre--VIP's witness--the
 nurse plan of care also describes services that an HHA will 
provide.4 The nurse plan of care evidently lists the HHA's 
responsibilities at a more generalized level than the HHA  plan of


The nurse plan of care is written in light of a doctor's prior 
assessment of and orders for the patient, and must be ap- proved by
the doctor. The plan is drafted by the field nurse  and an intake
nurse who works at VIP's office, although the  relative control
exercised by each over the contents of a plan  is disputed; Pierre
testified that the intake nurse performs  an essentially clerical
function, relying on the field nurse's  determinations, while Derose
and Drury (two of the field  nurses) testified that the intake nurse
makes final decisions  about what to include in the plan sent to the




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n 4 An HHA is only assigned to a patient in the first place upon 
doctor approval, evidently a necessity for insurance coverage.  VIP's
contention in its brief that the field nurses determine whether  a
patient is given an HHA, see Pet'r. Br. at 19, is not even  supported
by the testimony of its own witnesses.


approval. An HHA plan of care is created by filling in a one- page form
which lists tasks that an HHA might be required  to perform or assist
the patient with.5 Next to each task is  space for "instructions" and
"frequency of task," as well as a  column for prioritizing the tasks.
Like a nurse plan of care,  an HHA plan of care is shaped by an
assessment and orders  from the patient's doctor. It also reflects
what is contained  in the doctor-approved nurse plan of care with
respect to an  HHA and may be based in part on a field nurse's
observa- tions of the patient. Whether a field nurse writes an HHA 
plan of care alone or in conjunction with an intake coordinator  is
not clearly answered in the testimony. One field nurse did  testify,
however, that HHA plans of care are reviewed by  nursing coordinators,
although she could not speak to the  frequency of such review.


The field nurses also complete "home health aide superviso- ry reports"
for each patient/HHA combination every two  weeks.6 This involves
checking "satisfactory" or "not satis- factory" for categories like
"reports for work as scheduled,"  "adequate verbal and written
communication skills," "follows  client care plan," competency in
shampooing the patient, and  compliance with VIP's dress code.7
Categories are left blank  when they are not relevant to the care
given to the particular  patient, and even sometimes when they are
relevant. The  nurses testified that some of the categories require no
more  than observation of the patient at the time the form is 




__________

n 5 The form lists: personal care (specify), exercise, ambula-
tion/transfers, stairclimbing, accompany patient to, diet (specify), 
feeding, meal preparation, housekeeping, shopping, laundering, eye 
care, dressing (wound care), catheter care (specify), ostomy care 
(specify), enema (specify), temperature, pulse, respiration record in 
home, assist with medications, other (specify). Joint Appendix 


6 Completion of the form is evidently an insurance requirement.


7 Other columns on the form with the headings "corrective action 
taken" and "remarks" appear to be rarely if ever used.


A prior version of the form used "exceeded," "met," "not met,"  and
"not observed."


completed. For example, if the patient appears to be clean,  the HHA's
performance is listed as satisfactory for the rele- vant categories.
The nurses also explained that they do not  continually monitor HHAs
with respect to categories that  would seemingly require such
scrutiny, instead basing their  decision on what they perceive at the
moment when they are  completing the form. Although the record
contains over one  hundred completed reports, not a single "not
satisfactory" or  "not met" rating appears in them.


Finally, two of the nurses--Mesidor and St. Surin--testi- fied that
when they encounter a patient in need of certain  care such as a
shampoo, they tell the assigned HHA to  perform that task. Both stated
that this does not occur often.  Another nurse, Drury, also testified
that she sometimes di- rects HHAs to complete specific tasks related
to a patient's  needs. Similarly, Drury stated that she sometimes
demon- strates to an HHA how to perform a task after noticing that  it
is not being done properly.


II. Discussion


The NLRA defines supervisors as:


[A]ny individual having authority, in the interest of the  employer, to
hire, transfer, suspend, lay off, recall, pro- mote, discharge,
assign, reward, or discipline other em- ployees, 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 au- thority is not of a merely routine or clerical
nature, but  requires the use of independent judgment.


29 U.S.C. s 152(11). For an employee to qualify as a super- visor,
then, three requirements must be met: the employee  must possess at
least one of the twelve types of authority set  out in the statute,
the exercise of that authority must require  the use of independent
judgment, and the authority must be  held in the employer's interest.
See Beverly Enterprises- Pennsylvania, Inc. v. NLRB, 129 F.3d 1269,
1270 (D.C. Cir.  1997) (per curiam) (citing NLRB v. Health Care &
Retire- ment Corp., 511 U.S. 571, 573-74 (1994)). "Independent 


judgment," contrasted by the statute with authority of a  "routine or
clerical nature," is an ambiguous phrase that the  Board must be given
"ample room to apply." Health Care &  Retirement Corp., 511 U.S. at
579.


VIP argues that the Board erred in determining that the  field nurses
are not supervisors under the NLRA. If VIP is  correct, the Board
approved an inappropriate bargaining unit  because supervisors are
excluded from the NLRA's collective  bargaining protections. See 29
U.S.C. s 152(3); Beverly  Enterprises v. NLRB, 148 F.3d 1042, 1045
(8th Cir. 1998).


A.Assigning, Discharging, Disciplining, and Adjusting  Grievances


VIP argues that the evidence presented at the hearing on  the
appropriateness of the bargaining unit demonstrates that  field nurses
assign HHAs work through the reclustering  process, that field nurses
effectively recommend discharge  and discipline of HHAs by directing
staff at VIP's office to  take such actions, and that field nurses
adjust HHAs' griev- ances. VIP is correct that there is much evidence
to support  these claims, but much directly contradicts them. The Re-
gional Director, whose opinion we are functionally reviewing, 
resolved these contradictions in favor of the union, i.e., find- ing
that the field nurses do not have the authority to assign,  discharge,
or discipline HHAs, or to adjust their grievances.


These factual findings need only be supported by substan- tial
evidence. See 29 U.S.C. s 160(e); Allegheny Ludlum  Corp. v. NLRB, 104
F.3d 1354, 1358 (D.C. Cir. 1997). They  are. Several of the nurses
offered extensive and consistent  testimony to the effect that they do
not possess any authority  in these areas. With respect to relaying
problems with  HHAs to the VIP office, which the nurses acknowledged
they  sometimes do, mere reporting is insufficient to establish that 
the nurses effectively recommend discharge or discipline.8 




__________

n 8 VIP's contention that one of the nurses admitted, on three 
occasions, that she has gone beyond simply reporting problems and  has
recommended action that VIP then took is based on a misread- ing of
the record. Drury told the VIP office about an HHA who 


See NLRB v. Dickerson-Chapman, Inc., 964 F.2d 493, 500  (5th Cir.
1992).


VIP's citation to Passavant Retirement & Health Center v.  NLRB, 149
F.3d 243 (3d Cir. 1998), does not rescue its case.  In Passavant, the
court found that the authority of nurses to  send aides home for
flagrant violations, such as abusing a  patient, constituted authority
to discipline involving the use of  independent judgment. See id. at
249. Evidence that VIP's  field nurses can unilaterally discipline
HHAs is contradicted  by the nurses' testimony. Because the finding
that field  nurses do not discipline HHAs is supported by substantial 
evidence, we do not reach the question considered in Passa- vant, for
which VIP evidently cites the case, of whether such  authority
involves independent judgment.


B.Responsibly Directing Other Employees


VIP also argues that the field nurses responsibly direct the  work of
the HHAs. VIP offers three bases for this conclu- sion--the field
nurses formulate the HHA plans of care, they  tell HHAs to perform
certain tasks and show them how to do  so correctly when improvement
is needed, and they complete  bi-weekly evaluation forms. The Regional
Director found  that any direction given by the nurses does not
involve  independent judgment, the second of the three requirements 
in the statutory definition of supervisor. The record supports  this


With respect to the HHA plans of care, nurses are involved  in writing
them, but substantial evidence demonstrates that 




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n took a patient to Waldbaum's when the patient needed to be at the 
adult care facility in order to receive insulin. Contrary to VIP's 
claim, Drury testified that she could not remember whether she told 
the office that the HHA should be removed from the patient. 
Similarly, Drury testified that she once reported to the office that 
she had been threatened by an HHA. The HHA was removed from  the
facility, but Drury did not testify about any role other than 
reporting the incident. Drury also testified about informing the 
office that an HHA had allowed a disoriented patient to wander the 
streets around the facility alone. Again, Drury did not recall what 
if anything she said about removing the HHA.


they act within a framework established by the patient's  doctor.
Further, one of the nurses testified that the plans  are reviewed by
the nursing coordinators. Even though to  some degree a field nurse's
own judgment is relevant in the  creation of a plan, substantial
evidence shows that the judg- ment of others figures much more
prominently, rendering the  nurse's role primarily a routine one. See
Beverly Enterpris- es-Pennsylvania, Inc., 129 F.3d at 1270 ("If an
individual's  discretion with respect to ... statutory factors is
tightly  constrained, then her exercise of that authority is 'routine'
 and does not involve 'independent judgment.' ").


With respect to assigning and demonstrating specific tasks  to the
HHAs, we have previously held that this basic task is  also routine.
In Beverly, we considered a situation in which a  nurse might tell a
nursing assistant to "monitor[ ] vital signs  more frequently or
clean[ ] up a mess." Id. We upheld the  Board's determination that
such direction of an assistant was  "merely routine." Id. The types of
discrete tasks that the  field nurses have acknowledged they sometimes
do are com- parable. As the Regional Director noted, "it only takes 
common sense if a patient is not properly cleaned or dressed  to then
instruct the aide to rectify the situation." J.A. at 33.  The Regional
Director properly called the nurses' role in this  area routine.


With respect to the bi-weekly evaluation forms, the field  nurses
testified, essentially, that they do not take great care  in filling
them out.9 They explained that they do not base  their ratings on
regular monitoring of the HHA over the two  week period. In lieu of a
real inquiry into the HHA's work  and skills, the nurses explained
that they make a quick,  impressionistic judgment at the moment when
they are filling  out the form. We think it within the Board's
discretion in  interpreting the phrase "independent judgment" to treat
it as  excluding such unstudied appraisals. The lack of any "not 
satisfactory" or "not met" ratings on the many forms in the 




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n 9 Evaluating employees, though not mentioned in the statutory 
definition of supervisor, would be relevant to directing the work of 
those employees insofar as it affected their future tasks.


record also suggests that completion of the forms is perceived  as a
routine duty.


Mid-America Care Found. v. NLRB, 148 F.3d 638 (6th Cir.  1998), does
not convince us otherwise. In that case the fact  that the nurses
completed evaluation forms for assistants was  an important reason for
the court's rejection of the Board's  finding that the nurses were not
supervisors, see id. at 641,  but filling out the forms there required
much greater preci- sion; assistants were rated in forty-one
categories on a four- point scale. See id. at 640. Nurses were also
required to  recommend dismissal, continuation, or other action with
re- spect to the assistant on the form, and three disciplinary 
recommendations resulted in automatic termination. See id.  No
evidence shows that the forms completed by VIP field  nurses here play
any such significant role, as the attitude of  the nurses toward their
completion convincingly indicated.


C.Field Nurses As the Only On-Site Supervisors of the  HHAs


VIP argues that the field nurses must be supervisors  because, if they
are not, VIP is left without any on-site  supervision of the HHAs.
This argument is without basis in  the statutory definition of
supervisors. Congress did not  direct that the NLRA be interpreted
such that there must be  "supervisors" in every workplace. We agree
with the Re- gional Director, who stated that "[i]f the persons whom
the  Employer contends are in charge do not possess Section 2(11) 
supervisory authority, then the absence of anyone else with  such
authority does not then automatically confer it upon  these nurses."
J.A. at 35. See NLRB v. KDFW-TV, Inc.,  790 F.2d 1273, 1279 (5th Cir.
1986) (highest ranking employ- ees on duty are not supervisors during
hours when superviso- ry employees are not present). There is no
necessary nexus  between the NLRA definition of a supervisor and
personnel  management principles or perceptions.10




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n 10 The Board offers one additional reason why the field nurses are 
not supervisors. It argues that a finding that the nurses are 
supervisors will result in an unrealistic supervisor/HHA ratio.  There
are only twenty or so HHAs who are directly employed by 


III. Conclusion


There was substantial evidence that the field nurses are not 
supervisors under the NLRA; we therefore deny VIP's peti- tion for
review and grant the Board's cross-petition for  enforcement of its


So ordered.




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n VIP but there are thirty to forty field nurses, and "[t]he ratio of 
supervisors to non-supervisory employees is often significant in 
determining whether an employee has supervisory status." Beverly 
Enterprises, 148 F.3d at 1047. Because we uphold the determina- tion
that the field nurses are not supervisors on the other grounds 
discussed above, we do not reach this argument.