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Kindred Nursing Centers East, LLC v. National Labor Relations Board

United States Court of Appeals, Sixth Circuit

August 15, 2013

Kindred Nursing Centers East, LLC, dba Kindred Transitional Care and Rehabilitation -Mobile, fka Specialty Healthcare and Rehabilitation Center of Mobile, Petitioner/Cross-Respondent,
v.
National Labor Relations Board, Respondent/Cross-Petitioner, United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, Intervenor.

Argued: January 23, 2013.

On Petition for Review and Cross Application for Enforcement of a Decision and Order of the National Labor Relations Board. No. 15-CA-68248.

COUNSEL

ARGUED:

Matthew J. Ginsburg, AFL-CIO LEGAL DEPARTMENT, Washington, D.C., for Intervenor.

Charles P. Roberts III, CONSTANGY, BROOKS & SMITH, Winston-Salem, North Carolina, for Petitioner/Cross-Respondent.

Robert J. Englehart, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.

ON BRIEF:

Matthew J. Ginsburg, AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS LEGAL DEPARTMENT, Washington, D.C., for Intervenor.

Charles P. Roberts III, CONSTANGY, BROOKS & SMITH, Winston-Salem, North Carolina, Clifford H. Nelson, Jr., CONSTANGY, BROOKS & SMITH, Atlanta, Georgia, Edward Goddard, KINDRED HEALTHCARE, Wrentham, Massachusetts, for Petitioner/Cross-Respondent.

Robert J. Englehart, Amy H. Ginn, Linda Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.

Thomas V. Walsh, JACKSON LEWIS LLP, White Plains, New York, Ronald E. Meisburg, James F. Segroves, Lawrence Z. Lorber, PROSKAUER ROSE LLP, Washington, D.C., Mark Theodore, PROSKAUER ROSE LLP, Los Angeles, California, Jonathan C. Fritts, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., Michael J. Hunter, HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN, Columbus, Ohio, Ryan Griffin, SERVICE EMPLOYEES INTERNATIONAL UNION, Washington, D.C., Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Amici Curiae.

Before: MARTIN and ROGERS, Circuit Judges; TARNOW, District Judge[*]

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Under federal labor law, workers in the private sector who wish to be represented by a union must petition the National Labor Relations Board to hold an election to determine if a majority of the workers wants union representation. Federal labor law gives the Board wide discretion to delineate the "bargaining unit, " the term for the group of workers that will vote on union representation. Kindred Nursing Centers East, LLC, a nursing home operator, has petitioned for review of the Board's order that a bargaining unit of Certified Nursing Assistants "constitute[d] an appropriate unit." Specialty Healthcare and Rehab. Ctr. of Mobile, 357 N.L.R.B. No. 83, 2011 WL 3916077 at *2 (2011). The Board has petitioned for enforcement of the order. The central issue in this case is whether the Board acted within its discretion in deciding Specialty Healthcare. We conclude that it did, and we therefore DENY Kindred's petition for review and GRANT the Board's cross-petition for enforcement.

We derive the facts in this case from the Board's opinion in Specialty Healthcare, 357 N.L.R.B. No. 83, 2011 WL 3916077 (2011), which we will call Specialty Healthcare II to distinguish it from the Board's previous case, Specialty Healthcare, 356 N.L.R.B. No. 56, 2010 WL 5195445 (2010), which we will call Specialty Healthcare I.

Kindred operates a nursing home and rehabilitation center in Mobile, Alabama. Specialty Healthcare, 357 N.L.R.B. No. 83, 2011 WL 3916077, at *2 (2011). There is no history of collective bargaining at this nursing home. Id. The facility, which the parties agree is a non-acute healthcare facility, consists of four floors and has beds for about 170 residents. Id.

Kindred places its employees in one of eight separate departments: nursing, nutrition services, resident activity, maintenance, administration, medical records, central supply, and social services. Id. at *3. The facility's executive director is the highest-ranking management official on site. The nursing director and business office manager report to the executive director. Id. The individual heads of all but one department report to the nursing director, as do the staffing coordinator, the medical records clerk, and the data entry clerk. Id.

The nursing department consists of fifty-three Certified Nursing Assistants (CNAs) not including the Licensed Practical Nurses (LPNs) and Registered Nurses (RNs). Id. The LPNs directly supervise the CNAs on each nursing wing. Id. The RNs supervise the LPNs and report to the nursing director. Id. The CNAs work one of three eight-hour shifts and work directly with up to seventeen residents each. Id. Kindred typically assigns three to five ...


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