Appellant, Lakeland Healthcare Associates, LLC ("Lakeland"), appeals a decision of the National Labor Relations Board ("Board" or "NLRB") finding Lakeland in violation of sections 8(a)(5) and (1) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 158(a)(5), (1), for its refusal to bargain with the United Food and Commercial Workers Union, Local 1625 ("Union"). The Board cross-appeals for enforcement of the decision below. Lakeland admits that it refused to bargain with the Union, but argues that its refusal does not violate the Act because the Union was improperly certified in the underlying representation proceedings (Board Case No. 12-RC-9426). Accordingly, the sole issue on appeal is whether substantial record evidence supports the Board's determination that certain licensed practical nurses ("LPNs")
The facts relevant to this appeal are in all material respects not in dispute. Lakeland is a nursing and long-term care facility that employs LPNs, RNs, and certified nursing assistants ("CNAs"), among other full-time and part-time employees. The Union currently represents all of Lakeland's CNAs.
On August 11, 2010, the Union filed a petition with the Board seeking a representation election to establish the Union as the collective bargaining representative for Lakeland's LPNs. Lakeland opposed the petition, arguing that the LPNs are "supervisors" within the meaning of the Act and are therefore ineligible for union representation. See 29 U.S.C. § 152(11).
Between August 25, 2010 and August 30, 2010, an NLRB hearing officer held a hearing devoted solely to the "supervisor" issue. The parties presented testimony from eight different witnesses, and, following the hearing, submitted substantive briefs to the NLRB's Regional Director for Region 12. On September 24, 2010, after reviewing the record and the briefs, the Regional Director issued a 49-page Decision and Direction of Election ("DDE") finding that the LPNs were not supervisors under the Act.
In order to seek judicial review of the Board's findings, Lakeland refused to recognize
Because the Board's summary judgment order is predicated on the findings in the underlying representation case, we review the merits of those decisions together on appeal. See Boire, 376 U.S. at 477-79, 84 S.Ct. 894. When reviewing an order of the Board, we are "bound by the Board's factual findings if they are supported by substantial evidence on the record as a whole." Int'l Bhd. of Boilermakers v. NLRB, 127 F.3d 1300, 1306 (11th Cir.1997) (quoting NLRB v. Malta Constr. Co., 806 F.2d 1009, 1010 (11th Cir.1986)); see also 29 U.S.C. § 160(e). The Board's inferences from the record evidence, if plausible, should not be overturned, even if we would have made different findings upon a de novo review of the evidence. Int'l Bhd. of Boilermakers, 127 F.3d at 1306. "[C]redibility resolutions are peculiarly within the province of the [administrative law judge] and the Board and are entitled to deference unless inherently unreasonable or self-contradictory." NLRB v. United Sanitation Serv., 737 F.2d 936, 938 (11th Cir.1984).
While we have described this standard of review as "exceedingly narrow," NLRB v. Contemporary Cars, Inc., 667 F.3d 1364, 1370 (11th Cir.2012), and have noted that a "robust application" of the standard has typified review of NLRB decisions, Cooper/T. Smith, Inc. v. NLRB, 177 F.3d 1259, 1262 (11th Cir.1999), we are not "obliged to stand aside and rubber-stamp [our] affirmance of administrative decisions that [we] deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Id. at 1261 (alterations in original) (internal quotations and citations omitted). "Substantial evidence is more than a mere scintilla of evidence. `It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Contemporary Cars, Inc., 667 F.3d at 1370 (quoting Bickerstaff Clay Prods. Co. v. NLRB, 871 F.2d 980, 984 (11th Cir.1989)). "[T]he Board cannot ignore the relevant evidence that detracts from its findings." Northport Health Svcs., Inc. v. NLRB, 961 F.2d 1547, 1550 (11th Cir.1992). "When [it] misconstrues or fails to consider important evidence, its conclusions are less likely to rest upon substantial evidence." Id.
The burden of establishing the supervisory status of an employee is on the party asserting such status. NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001); Cooper/T. Smith, 177 F.3d at 1263. Here, that party is Lakeland.
Whether Lakeland is in violation of the Act hinges on whether its LPNs are properly regarded as "employees" or "supervisors." Under the structure of the Act, if the LPNs are "employees," they are guaranteed the right to unionize. See 29 U.S.C. § 157 ("Employees shall have the right to self-organization...."). If they are "supervisors," they are not. See 29 U.S.C. § 152(3) ("The term `employee' ...
Section 2(11) of the Act defines a "supervisor" as:
29 U.S.C. § 152(11). Accordingly, an individual is a "supervisor" under the Act if: (1) he or she has the authority to perform one of the twelve supervisory functions described in the statute; (2) the exercise of that authority requires the use of independent judgment; and (3) such authority is held in the interest of the employer. See NLRB v. Health Care & Ret. Corp., 511 U.S. 571, 573-74, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994) ("HCR").
In this case, there is no dispute as to whether the authority held by Lakeland's LPNs is exercised "in the interest of the employer." See HCR, 511 U.S. at 577, 114 S.Ct. 1778 (1994) ("Patient care is the business of a nursing home, and it follows that attending to the needs of the nursing home patients, who are the employer's customers, is in the interest of the employer."). Thus, this appeal focuses on the first two inquires under section 2(11). On the issue of the LPNs' authority, Lakeland argues that the record clearly establishes that the LPNs possess the authority to discipline, suspend, and effectively recommend the termination of the CNAs, and to assign and responsibly direct the CNAs' work. As to the second issue, Lakeland maintains that the exercise of this authority requires the use of independent judgment. Our task is to determine whether the Board's conclusions to the contrary are supported by substantial record evidence.
According to Lakeland, the most compelling reason why the Board's decision should be vacated is because the LPNs, using their own independent judgment and discretion, initiate the process to discipline, suspend, and terminate CNAs. More to the point, Lakeland argues that the Board's decision is not supported by substantial evidence inasmuch as it misconstrues and disregards critical evidence concerning the LPNs' role in the disciplinary process for CNAs.
Lakeland employs a progressive discipline system, which it describes as a "coaching" program. Under the program, employees who engage in misconduct or who are not meeting Lakeland's performance expectations can receive either a "level one" or "level two" "coaching," depending on the severity of the issue. Coachings are prepared by the LPNs, either on their own initiative or at the instruction of management, and may or may not lead to formal discipline. Level two coachings, which are reserved for "serious failures of customer service standards," automatically result in the suspension of the employee pending an investigation and frequently result in termination. Level one coachings, which are issued for more minor infractions such as tardiness or failing to clock out for lunch, require the employee and his or her "direct supervisor" to agree to a plan to address the issue. Employees with four active level one coachings are automatically terminated. We review the evidence related to LPN involvement in level two and level one coachings independently.
Lakeland maintains that the LPNs are supervisors under the Act because they have the independent discretionary authority to initiate and implement level two coachings through which they can effectively suspend and terminate CNAs. The Board rejected this argument, reasoning that the record establishes only that the LPNs are responsible for reporting employee misconduct. That is, according to the Board, to the extent that the LPNs even have disciplinary authority, the exercise of such authority does not require the use of independent judgment.
While we are mindful of the limited nature of our review in this appeal, this is not a case in which we merely disagree with the Board's conclusions. Our review of the record as a whole reveals that the Board meticulously excluded or disregarded record evidence, which, when taken into account, compels a different result. See Northport, 961 F.2d at 1552.
With regard to the first prong of the analysis required under section 2(11) of the Act — whether the employee has the authority to perform one of the twelve supervisory functions — the Board rejected Lakeland's testimonial and documentary evidence as being in conflict, inconclusive, or conclusory. It was none of these. The written job description for LPN charge nurses (team leaders) provides that the "primary purpose of the Charge Nurse is to provide direct nursing care to the residents, and to supervise the day-to-day nursing activities performed by the [CNAs]." To this end, LPNs are charged with ensuring, among other things, that nursing personnel: "are in compliance with their respective job descriptions," "are performing their work assignments in accordance with acceptable nursing standards," and "follow the department's established policies and procedures." The job description also provides that LPNs shall "[i]nterpret the department's policies and procedures to personnel, residents, visitors, and government agencies as required," and "[m]ake recommendations for revisions" to the policies and procedures.
The record establishes that the LPNs fulfill these delegated supervisory responsibilities, in part, through Lakeland's coaching program. Lakeland's Director of Nursing, Gartha Swearingen, testified that the LPNs "are considered to be leaders of their team" and that, if they saw a CNA not performing his or her job correctly, "they certainly would be able to coach them, talk to them, give them a verbal warning, or do any coaching that they would need to do that...." Swearingen further confirmed that the coaching forms prepared and issued by LPNs are for discipline, and, on cross-examination, testified that LPNs are "very capable of coaching somebody at a Level 2, and they're also very capable of suspending any CNA. They're capable of sending them home. This testimony is consistent with Swearingen's testimony elsewhere in the record:
This testimony stands uncontradicted.
Both Swearingen and Baxter followed this testimony with specific examples of LPNs who effectively suspended or terminated a CNA through the level two coaching process. Indeed, Baxter recounted one such example of a level two coaching wherein she personally witnessed an LPN conduct the termination of a CNA.
Nor should this evidence have been disregarded because, according to the Board, the examples cited by Swearingen and Baxter were "isolated" or "sporadic." As Lakeland points out, given that level two coachings are reserved for the most serious infractions, one would reasonably expect that such occurrences would be infrequent. Such infrequency does not suggest a lack of disciplinary authority. Rather, it indicates only that the LPNs had only "isolated" or "sporadic" opportunities to exercise this authority over the CNAs. The Board's task in this case was to determine whether the LPNs have been delegated the authority to issue level two coachings, and whether, by virtue of that authority, they could effectively discipline, suspend, and recommend the termination of CNAs. The frequency with which an employee exercises disciplinary authority — authority that, in an ideal workplace, will be exercised infrequently or sparingly — cannot be determinative of the existence of supervisory authority. See Caremore, Inc. v. NLRB, 129 F.3d 365, 369 (6th Cir.1997).
With regard to the second prong of the analysis required under section 2(11)
Here again, however, the Board conclusion cannot be squared with the record as a whole, which undermines the Board's position that the LPNs merely report misconduct to their superiors and exercise no discretion in the level two coaching process. In reaching its decision, the Board again disregards compelling and uncontradicted evidence to the contrary. For example, Baxter testified that, when she was a team leader, she had the independent authority, which she exercised,
The language of Lakeland's employee handbook and level two coaching form also compel the conclusion that the LPNs exercise independent judgment. The employee handbook and the coaching form list over a dozen actions that would constitute violations of Lakeland's level two "customer service standards" — violations that, as noted above, would require a CNA's immediate suspension and, possibly, termination. While it is true that some of these actions, such as "[s]leeping on the job" or "2 No Call/No Shows," can be identified as violations without the exercise of independent judgment, others, such as "[unauthorized disclosure of confidential information,"
Critically, rather than focusing on this and other evidence of independent judgment before it, the Board's decision on this issue rests entirely on speculative inferences from what the evidence could or might have shown. For example, the Board clearly placed considerable weight on the fact that the level two coaching form "does not indicate whether the LPN completing the form is the one who suspends the CNA, or whether the LPN does so independently or needs the approval of a nursing supervisor or unit manager." The Board also stressed that the form "does not have a space for any recommendation by the LPN completing the form, and the Level Two coaching plans in the record do not discuss the LPN's recommendation." Be that as it may, the fact that the forms in question could have been drafted differently does not establish, as the Board concluded, that the LPNs who prepared them did not exercise independent judgment. Likewise, the fact that "[n]one of the LPNs who purportedly completed the Level Two coaching plan forms in the record testified" is not reason enough to ignore the undisputed testimony of the managers who testified as to their own knowledge regarding those LPN coachings.
In light of this uncontradicted testimony, the language of Lakeland's employee handbook, the LPNs' job description, and the level two coaching forms in the record, the record as a whole does not support by substantial evidence the Board's conclusion that the LPNs' role in the level two coaching process is "merely reportorial."
The Board also determined that the LPNs' involvement in level one coachings does not establish their supervisory status. Specifically, the Board concluded that there is no direct "nexus" between the issuance of level one violations and future disciplinary action. The Board also found that the evidence presented on this issue was either "vague," and should therefore be disregarded, or merely established that level one coachings are issued automatically without the exercise of independent judgment. These conclusions are not supported by the evidence.
As a starting point, the record makes clear that the issuance of level one coachings, in and of itself, is a form of discipline. The employee handbook provides that employees who fail to meet Lakeland's customer service standards will receive a level one coaching plan "developed by the employee and his/her direct supervisor" — in the case of CNAs, an LPN or RN team leader. The level one coaching forms contain a space for the team leader and the CNA to describe the reason for the coaching, the coaching plan, and any additional corrective action or training necessary. The employee's "direct supervisor," who signs the level one coaching form next to the line designated "supervisor signature" or "coach's signature," is charged with "implementing]" the plan. The plans "are permanently filed in the employee's personnel file," and, if not satisfactorily completed, "remain active regardless of the date of issue." An employee who has four active level one coaching plans will be terminated.
Moreover, the Board disregarded undisputed evidence of LPNs disciplining CNAs through coaching plans principally on the basis that Lakeland presented no evidence that a CNA had been terminated as a result of multiple pending level one coachings. For the reasons we discuss above, we reject the notion that the Board may infer solely from the lack of CNA terminations resulting from level one coachings that LPNs are not vested with the authority "effectively to recommend" their termination. Similarly, the fact that CNAs receive "coaching" before receiving other, more serious forms of discipline such as suspension or termination — which may or may not need approval from the "chain of command" — does not make coaching any less of a disciplinary action.
We also cannot accept the Board's rejection of the testimony establishing that the LPNs exercise independent judgment in issuing level one coachings solely on the basis that it was "vague." Lakeland's evidence on this point was neither refuted nor vague. For example, Baxter, when asked why she believed an LPN did not ask her permission before issuing a level one coaching, replied:
Likewise, Carol Hiner, Lakeland's Unit Manager, estimated that approximately 70 percent of coaching issued to CNAs are issued and handled solely by LPNs. As noted above, "the Board cannot ignore the relevant evidence that detracts from its findings." Northport, 961 F.2d at 1550.
Further, this testimony is consistent with and buttressed by the provisions of Lakeland's employee manual and the more than 50 level one coaching plans that were introduced into evidence. These documents, which were not contested, objectively refute the Board's position that the issuance of level one coaching plans is merely "routine" or "clerical." The employee manual, for example, describes twenty non-exclusive "examples" of customer service standards, which, if not met, could lead to level one coaching discipline. To list a few, the program requires that employees "[f]ollow the Facility's policy and procedures and Facility's standards of practice," "[a]lways act professional, respectful, and have a positive attitude," "[d]emonstrate flexibility in accepting assignments," "[m]aintain resident confidentiality," and "[a]void disruptive actions or conduct in the workplace...." Naturally, enforcing these standards requires more than merely checking an employee's time sheets and/or reporting his or her misconduct to superiors, as the Board concluded. Enforcement of these standards requires, for example, independent judgment as to what is "respectful," "professional," "flexible," and "disruptive," with respect to the CNAs providing adequate patient care.
The level one coaching forms likewise illustrate how the LPNs exercise independent judgment. As noted above, each form contains a section labeled "Coaching Plan" wherein the employee and the "coach" (an RN or LPN team leader) agree to a plan to help the employee meet Lakeland's customer service standards. For example, in a coaching plan dated April 6, 2008, which reflects that the "coach" was an LPN and the "employee" was a CNA, the CNA agreed to attend a customer service "inservice training" the
On these facts, we find that the Board's conclusion that LPNs do not have the authority to discipline, suspend, or effectively recommend the termination of CNAs through level one coaching was not supported by substantial evidence.
Although we find unreasonable the Board's conclusion that the LPNs involvement in CNA coaching does not make them supervisors under the Act, for the sake of thoroughness, we will also consider whether the Board's determination that the LPNs do not "responsibly direct" and "assign" CNAs is supported by substantial record evidence. Lakeland maintains that the LPNs have supervisory authority because they are accountable for the work of the CNAs under their supervision and because they assign and reassign CNAs specific tasks and shifts based upon the needs and conditions of the center, its staff, and its residents.
The Board concluded that "the LPN team leaders have the authority to direct CNAs," noting that, "[t]he LPN team leaders `oversee the CNA's [sic] job performance and act to correct the CNAs when they are not providing adequate care.'" DDE at 33 (citing Golden Crest Healthcare Ctr., 348 NLRB 727, 730 (2006) ("Golden Crest")). The parties likewise do not dispute whether the exercise of that authority requires independent judgement. Accordingly, our only task here is to determine whether the LPNs exercise that discretion "responsibly."
348 N.L.R.B. at 691-92. This framework draws a distinction between "those employees whose interests, in directing other employees' tasks, align with management, and those whose interests, in directing other employees, is simply the completion of a certain task." Id. at 692. "In the case of the former, ... the directing employee will have, if and to the extent necessary, an adversarial relationship with those he is directing." Id.
Lakeland concedes that there is no evidence establishing that an LPN has ever been disciplined or discharged because of his or her failure to supervise CNAs. Nonetheless, Lakeland maintains that to establish that an employee "responsibly" directs another it is not necessary that the employer give specific examples of where "adverse consequences" befell an employee who failed to exercise proper supervision. Lakeland emphasizes that the Act requires only a prospect of adverse consequences. We agree.
We acknowledge that, standing alone, this "paper" evidence would likely not be sufficient to support a finding of supervisory status. Cf. Golden Crest, 348 N.L.R.B. at 731 ("But there must be a more-than-merely-paper showing that such a prospect [of adverse consequences] exists."). As the Board has properly recognized, to base supervisory status solely upon a paper showing of titles or job descriptions would enable employers to design their policies in a manner that could effectively deprive non-supervisory employees of their right to collective bargaining under the Act. This concern, however, does not command an impossibly high evidentiary standard for establishing "prospective" consequences for the putative supervisor. Written policies, job descriptions, performance evaluations, and the like, when corroborated by live testimony or other evidence, are obviously relevant to the issue of responsible direction.
In this case, Lakeland presented much more than a "paper showing" of responsible direction.
Likewise, Baxter testified:
The Board disregarded this and other areas of testimony as "purely conclusory." They were not. As noted above, under the Act, an employer may establish "responsible" direction by presenting evidence of prospective consequences. Swearingen's and Baxter's testimony provide specific examples of scenarios in which, they opined, an LPN would be held accountable for the actions of a CNA. Baxter's unrefuted testimony also establishes that an LPN would be held accountable in such a situation through a "write up" (presumably coaching), which, as we note above, is a significant form of discipline. By focusing exclusively on the lack of examples where an LPN "has experienced ... material consequences to her terms and conditions of employment ... as a result of his/her performance in directing CNAs," (emphasis added) the Board effectively ignored its own observation in Oakwood that a showing of prospective consequences is sufficient under the statute.
Applying the framework of Oakwood, we conclude that the record as a whole establishes that the LPNs' interests are "aligned with management" and that the LPNs would be held accountable for the poor performance of their CNAs. There was no evidence directly refuting this accountability. Accordingly, the Board's conclusion that the LPNs do not responsibly direct CNAs was not supported by substantial evidence.
Under the Act, the Board has interpreted the term "assign" as referring to "the act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee." Oakwood, 348 N.L.R.B. at 689. "In the health care setting, the term `assign' encompasses the charge nurses' responsibility to assign nurses and aides to particular patients." Id. It does not encompass a "nurse's ad hoc instruction that the employee perform a discrete task." Id. Here, the Board concluded that, in terms of assigning duties to CNAs, Lakeland's LPNs assign only "discrete tasks." The Board also concluded that, while the LPNs are involved in assigning and reassigning CNAs to specific shifts, rooms, and residents, they do not use independent judgment in the exercise of such authority.
In determining that the LPNs do not assign "significant overall duties" to the CNAs, the Board drew a parallel between this case and an illustration provided in Oakwood. In Oakwood, the Board noted:
348 N.L.R.B. at 689. Based on this example, the Board concluded that the LPNs' specific assignments to CNAs, such as taking vital signs and preparing residents to visit doctors, were more akin to the Board's example of routine, "discrete tasks" than the giving of an "assignment" under the meaning of that term in the Act.
Lakeland responds that "LPNs assign daily tasks to CNAs that are not routine — they are medical in nature and dependent on the residents' conditions — and change frequently depending upon the resident's individual medical needs and any emergencies that arise." The testimony which Lakeland cites bears this out. However, Lakeland's assertion and the cited testimony only underscore the Board's point: the tasks performed by the LPNs are situational, depending on particular needs as they arise. The record does not demonstrate that LPNs assign "significant overall duties" to LPNs. Therefore, we conclude that the Board's determination on this narrow issue — the assignment of tasks — is supported by substantial evidence.
Whether the Board was reasonable in concluding that the LPNs do not exercise independent judgment in scheduling CNAs is a different question. The facts material to this issue are not in dispute. Lakeland employs two unit managers who work from 7:15 a.m. until 5:30 p.m., Monday through Friday, and three shift supervisors, two who work overlapping daytime shifts between 12:00 p.m. and 11:00 p.m., Monday through Friday, and a third who works weekends from 7:00 a.m. until 11:00 p.m. Lakeland's LPNs and CNAs work three shifts, seven days a week: 6:45 a.m. until 3:15 p.m.; 2:45 p.m. until 11:15 p.m.; 10:45 p.m. until 7:15 a.m. During the third shift, seven days per week, LPNs are the highest-ranking employees on the premises. The Director of Nursing is on call 24 hours per day, seven days per week, in case of an emergency.
The parties acknowledge that responsibility for staffing and scheduling of CNAs
On the third shift and weekends, LPNs alone are responsible for preparing the assignment sheets. The record indicates that they do so at least in part based on the information the staffing coordinator has already placed on the assignment sheets. The record also indicates that LPNs, while not principally responsible for transferring CNAs between units, changing room assignments, and reassigning tasks between CNAs, have the authority to do so, and have exercised this authority in the past. Similarly, during the third shift and on weekends, LPNs have the authority to approve or deny CNA requests to leave work before the end of their shift. During the first and second weekday shifts, this authority lies principally with the unit manager, who takes into consideration the recommendation of the respective LPNs.
The crux of this issue is whether, under this arrangement, the LPNs exercise independent judgment in scheduling (or recommending the scheduling of) CNAs to particular shifts, halls, etc., or whether they merely follow existing guidelines and directions while leaving judgment calls to their superiors. We have held that, "for an assignment function to involve independent judgment, the putative supervisor must select employees to perform specific tasks on the basis of a judgment about the individual employee's skills." Cooper/T. Smith, Inc., 177 F.3d at 1265. The Board thus concluded that LPNs are not supervisors in this regard because Lakeland failed to establish that in making scheduling recommendations and modifications the LPNs matched the needs of specific patients with a particular CNA's skills and training. Rather, the Board noted, such decisions appear to be based upon the personal preferences of the LPN or resident involved, or solely to balance the workload among CNAs — neither of which requires independent judgment. The Board was likewise not persuaded by the fact that the third (night) shift LPNs, while the highest-ranking employees on the premises during their shifts, have the independent authority to reassign CNAs in the event of no calls and no shows.
The Board's conclusions find support in the Ninth Circuit's decision in Providence Alaska Medical Center v. NLRB, which, under similar facts, concluded that the employer's charge nurses were not supervisors under the Act. 121 F.3d 548 (9th Cir.1997). As in this case, the LPNs in Providence did not prepare the CNAs' monthly schedule, but had the authority to assign nurses to particular residents at the beginning of each shift, and to reassign nurses if another nurse was absent or nearing overtime. The Ninth Circuit concluded
At the other end of the spectrum, however, the Fourth Circuit, also under similar facts, concluded that the "power to authorize schedule changes and reassign workers rises above the mere incidental direction of assistants." Glenmark, 147 F.3d at 341. The Fourth Circuit found persuasive the fact that, "[f]or two out of three shifts during the day, and all three shifts over the weekend, there is no higher authority than the charge nurse...." Id. The Fourth Circuit explained:
Id. at 341-42 (internal citations, quotations, and bracketing omitted).
To be sure, the standard adopted by the Fourth Circuit — whether the putative supervisor has the authority "to put the other employees to work when and where needed" — is arguably less rigorous than the standard that we have applied in this circuit, which requires that the supervisor assign work on the basis of the employees' individual skills. Compare id. with Cooper/T. Smith, Inc., 177 F.3d at 1265 (citing NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1279 (5th Cir.1986) ("[T]he putative supervisor must select employees to perform specific tasks on the basis of a judgment about the individual employee's skills.")). However, the thrust of that decision — finding untenable the Board's position that LPNs mechanically follow established procedure in assigning and reassigning CNAs, even when they are the highest-ranking staff on the premises — applies with equal force in this case. As noted by Swearingen, the LPNs "are considered to be leaders of their team." They seek to "assure the best possible care that they can give to those residents or patients that's [sic] in that section by making sure that the CNAs do the job that they're assigned to." Id. In view of this unrebutted evidence, we cannot accept the conclusion that the LPNs, who are charged with "leading" Lakeland's unit teams in order to insure proper patient care, and who are the highest-ranking employees during a third of Lakeland's operations, have the authority to assign and reassign CNAs, but have no real flexibility in doing so. Viewing the record as a whole, we find the Board's determination that the LPNs do not exercise independent judgment in assigning
For these reasons, we GRANT Lakeland's petition for review; the Board's cross-petition for enforcement is DENIED; and the Board's decision is
VACATED.
PRYOR, Circuit Judge, dissenting:
"[I]n reweighing the facts and setting aside the Board's order," the majority opinion "improperly substitute[s] its own views of the facts for those of the Board," NLRB v. Enter. Ass'n of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice Mach. & Gen. Pipefitters of N.Y. & Vicinity, Local Union No. 638, 429 U.S. 507, 532, 97 S.Ct. 891, 905, 51 L.Ed.2d 1 (1977), and fails to adhere to our deferential standard of review. As directed by Congress, "[t]his Court reviews the ... factual findings [of the National Labor Relations Board] to ensure that they are supported by substantial evidence on the record as a whole." NLRB v. Contemporary Cars, Inc., 667 F.3d 1364, 1370 (11th Cir.2012) (citing 29 U.S.C. § 160(e)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,'" id. (quoting Bickerstaff Clay Prods. Co. v. NLRB, 871 F.2d 980, 984 (11th Cir.1989)), but it "is more than a mere scintilla of evidence." Id. "Provided any inferences drawn from the record were plausible, this Court may not overturn the Board's determination even if it would make a different finding under a de novo review." Id. (citing Cooper/T. Smith, Inc. v. NLRB, 177 F.3d 1259, 1261 (11th Cir.1999)). "This is an exceedingly narrow standard of review designed to allow disruption of the ... decision [of the Board] only when the [Board] exercises its discretion `in an arbitrary or capricious manner.'" Id. (quoting Daylight Grocery Co. v. NLRB, 678 F.2d 905, 908 (11th Cir.1982)). Although "a split in the circuits has developed about the degree of deference that should be accorded to the [Board] on its determination that an employee is a `supervisor' under [section] 2(11) of the [National Labor Relations Act]," Cooper/T. Smith, Inc., 177 F.3d at 1262 n. 3, our Court has refused to make "judicial adjustments to [the] statutory standard of review [because] we believe the wiser course is a robust application of the standard that has typified review of Board decisions," id. at 1262.
Substantial evidence in three ways supports the findings by the Board that the licensed practical nurses at Lakeland lack any supervisory authority using independent judgment, 29 U.S.C. § 152(11). First, substantial evidence supports the finding by the Board that the licensed practical nurses lack the authority to discipline, suspend, or effectively recommend the termination of certified nursing assistants. Second, substantial evidence supports the finding by the Board that the licensed practical nurses do not responsibly direct certified nursing assistants. Third, substantial evidence supports the finding by the Board that the licensed practical nurses do not assign certified nursing assistants using independent judgment.
The majority opinion faults the Board for "meticulously exclud[ing] or disregard[ing] record evidence, which, when taken into account, compels" the finding that the licensed practical nurses possess
Rebecca Ward, a licensed practical nurse who had worked as a licensed practical nurse at Lakeland for ten years and was "one of the most senior [licensed practical nurses] at [Lakeland]," testified that she did not consider herself to be a supervisor, and that neither she nor any other licensed practical nurse had attended daily management meetings. Ward had never hired, fired, transferred, or promoted a certified nursing assistant. Ward had never disciplined a certified nursing assistant. Ward had never suspended a certified nursing assistant, and she had never been instructed that she had the right to suspend certified nursing assistants. On one occasion, Ward issued a level one coaching form to a certified nursing assistant who Ward felt "was rude to a resident," but Ward did so only after she discussed the situation with her weekend supervisor, Sharon Stein, who is a registered nurse. Stein "instructed" Ward to issue the level one coaching form to the certified nursing assistant, and both Stein and Ward met with the certified nursing assistant to discuss the form. In the light of Ward's testimony, the Board could have drawn a plausible inference that the licensed practical nurses lack the authority authority to discipline, suspend, or effectively recommend the discharge of certified nursing assistants.
Putting aside Ward's testimony, the evidence that the majority opinion cites to support its conclusion that the licensed practical nurses possess the authority to discipline, suspend, and effectively recommend the termination of certified nursing assistants does not compel that finding. The majority contends, for example, that the testimony of the director of nursing, Gartha Swearingen, establishes that the licensed practical nurses have the power to discipline, suspend, and effectively recommend the discharge of certified nursing assistants, id. at 1337-38, but a review of Swearingen's testimony establishes that her statements about whether the licensed practical nurses possess that authority using independent judgment were, at best, ambiguous. After counsel for Lakeland provided Swearingen with a copy of the level two coaching form about an incident in which a resident was burned after Tracie Stevens, a certified nursing assistant, allowed the resident to smoke while wearing an oxygen mask, counsel for Lakeland asked questions about the role that the licensed practical nurse who signed the form played in the investigation and termination of Stevens. Swearingen stated that Sheena Smith, the licensed practical nurse, was "involved" in the suspension and termination of Stevens, but Swearingen's testimony does not compel a finding that the licensed practical nurse used independent judgment during her undefined "involvement" with the suspension and termination of Stevens:
A plausible inference can be drawn from Swearingen's testimony that the licensed practical nurse who signed Stevens's level two coaching form played some role in the investigation, suspension, and termination of Stevens, but Swearingen's testimony does not compel a finding that the licensed practical nurse took an adverse employment action against Stevens using independent judgment. And even if it did, this isolated incident of a licensed practical nurse playing a role in the suspension of a certified nursing assistant together with the one other similar incident that the director of nursing described, would not have required the Board to find that the licensed practical nurses are supervisors. We have stated that "nearly everyone at one time or another, under some condition, tells someone else what to do, but that one who engages in an isolated incident of supervision is not necessarily a supervisor under the Act." TRW-United Greenfield Div. v. NLRB, 716 F.2d 1391, 1395 (11th Cir.1983).
Tammy Baxter, a day shift supervisor and registered nurse who had previously performed the same role at Lakeland as the licensed practical nurses, provided more detail regarding the level two coaching form that Smith issued to Stevens, but Baxter's testimony also fails to compel a finding that Smith suspended Stevens using independent judgment:
The Board was not required to find that the licensed practical nurses at Lakeland are supervisors on the basis of this ambiguous testimony regarding sporadic incidences of discipline by the licensed practical nurses.
In the light of Ward's testimony and the testimony of Swearingen and Baxter, a conflict in the evidence exists about whether the licensed practical nurses possess the authority to discipline, suspend, and effectively recommend the termination of certified nursing assistants, and the Board was entitled to resolve that conflict. The Board drew a plausible inference from this evidence that the licensed practical nurses lack that authority, and our "exceedingly narrow standard of review," Contemporary
The majority opinion maintains that, although no evidence was introduced that a licensed practical nurse at Lakeland has been disciplined or discharged because of her failure to supervise a certified nursing assistant, Lakeland established a "prospect" that licensed practical nurses can be disciplined for failing to direct certified nursing assistants, see Majority Opinion at 1344, but the record does not compel a finding of that "prospect." Substantial evidence supports the decision of the Board that Lakeland failed to prove that licensed practical nurses can be held accountable for the actions of the certified nursing assistants.
Although an employer can establish responsible direction by presenting evidence that a purported supervisor faces the prospect of adverse consequences for the actions of a subordinate, see In re Oakwood Healthcare, Inc., 348 NLRB 686, 692 (2006), the Board was presented with evidence that the licensed practical nurses face no prospect of adverse consequences for the failings of the certified nursing assistants. The Board heard evidence that certified nursing assistants had engaged in gross misconduct — for example, Stevens allowed a resident to smoke while wearing an oxygen mask, which led to a serious injury to the resident — but no licensed practical nurse had been held accountable for that misconduct. As the Seventh Circuit recently explained, "[w]here a lower level employee performs inadequately, and the purported supervisor is in fact not held accountable, it highly supports a finding that the purported supervisor is not actually at risk of suffering adverse consequences." Rochelle Waste Disposal, LLC v. NLRB, 673 F.3d 587, 596 (7th Cir.2012). A reasonable mind would expect that the licensed practical nurse who was allegedly accountable for Stevens's misconduct would have faced some adverse consequence for not preventing the serious injury to the resident who had smoked while wearing an oxygen mask. The Board was entitled to draw a plausible inference that, because no licensed practical nurse had been held accountable for that misconduct, the licensed practical nurses at Lakeland do not responsibly direct the certified nursing assistants. But the majority opinion instead substitutes its view of the facts for the contrary finding by the Board.
The majority opinion provides no persuasive support for its conclusion that the licensed practical nurses exercise independent judgment in scheduling certified nursing assistants. "[F]or an assignment function to involve independent judgment, the putative supervisor must select employees to perform specific tasks on the basis of a judgment about the individual employee's skills." Cooper/T. Smith, Inc., 177 F.3d at 1265. The parties do not dispute that the "responsibility for staffing and scheduling of [certified nursing assistants] lies, first and foremost, with a staffing coordinator who reports to the Director of Nursing," Majority Opinion at 1347-48, and that, when the licensed practical nurses prepare assignment sheets on
The majority opinion "find[s] untenable the Board's position that [the licensed practical nurses] mechanically follow established procedure in assigning and reassigning [certified nursing assistants], even when they are the highest-ranking staff on the premises," id. at 1349, but this reasoning fails. "Although on the ... night ... shifts the licensed practical nurses are the highest-ranking employees on the premises, this does not ipso facto make them supervisors." NLRB v. Res-Care, Inc., 705 F.2d 1461, 1467 (7th Cir.1983), abrogated on other grounds by NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994). "A night watchman is not a supervisor just because he is the only person on the premises at night...." Id. The majority opinion reasons that the licensed practical nurses must exercise independent judgment to assign certified nursing assistants when they are the highest-ranking staff on the premises because Swearingen testified that licensed practical nurses "are considered to be leaders of their team," Majority Opinion at 1349, but that vague testimony did not compel the Board to find that the licensed practical nurses have the authority to assign certified nursing assistants using independent judgment. Although the licensed practical nurses were sometimes the highest-ranking staff on the premises, the record establishes that the "Director of Nursing is on call 24 hours per day, seven days per week," id. at 1347, and it is undisputed that the scheduling coordinator exercised the primary authority for scheduling certified nursing assistants. Based on this evidence, the Board was entitled to draw the plausible inference that the licensed practical nurses do not exercise independent judgment in scheduling certified nursing assistants. But again the majority substitutes its view of the facts for the contrary finding by the Board.
For all the foregoing reasons, I respectfully dissent. Our standard of review bars us from reweighing the evidence. I would deny the petition for review and enforce the order of the Board because substantial evidence supports its findings.
182 Fed.Appx. at 416-17 (internal quotations and citations omitted) (alternations in original omitted). While the determination of supervisory status must be made on a case-by-case basis, we find this reasoning persuasive.
129 F.3d at 369. Furthermore, we note that the Board's analysis ignored unrefuted testimony to the contrary from Baxter on this point-evidence that she, in fact, exercised her independent authority to discipline CNAs:
