Palmetto Prince George Operating v. NLRB, No. 15-2143 (4th Cir. 2016)
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After the Board found that nurses could unionize and rejected the employer’s contention that they were ineligible supervisors within the meaning of the National Labor Relations Act, 29 U.S.C. 152(11), the employer refused to bargain with the union. When the Board ordered the employer to do so, the employer petitioned for review. The court concluded that substantial evidence supports the Board’s finding that the nurses are not supervisors because their duties do not require the exercise of independent judgment. Accordingly, the court denied the petition for review and granted the Board's cross-application for enforcement.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-2143 PALMETTO PRINCE GEORGE OPERATING, LLC, d/b/a Prince George Healthcare Center, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 15-2221 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PALMETTO PRINCE GEORGE OPERATING, LLC, d/b/a Prince George Healthcare Center, Respondent. On Petition for Review and Cross-application for Enforcement of an Order of the National Labor Relations Board. (10-CA-154373) Argued: September 21, 2016 Decided: Before MOTZ, TRAXLER, and AGEE, Circuit Judges. November 1, 2016 Petition for review denied; cross-petition for enforcement granted by published opinion. Judge Motz wrote the opinion, in which Judge Traxler and Judge Agee joined. ARGUED: Jennifer Marie Fowler-Hermes, WILLIAMS, PARKER, HARRISON, DIETZ & GETZEN, Sarasota, Florida, for Petitioner/Cross-Respondent. Meghan Brooke Phillips, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/CrossPetitioner. ON BRIEF: John M. Hament, KUNKEL MILLER & HAMENT, Sarasota, Florida, for Petitioner/Cross-Respondent. Richard Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Robert J. Englehart, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. 2 DIANA GRIBBON MOTZ, Circuit Judge: In this case, nurses sought to join a union and engage in collective bargaining with their employer. The National Labor Relations Board found that the nurses could unionize, rejecting the employer’s contention that they were ineligible supervisors within the meaning U.S.C. § 152(11). of the National Labor Relations Act, When the employer refused to bargain with the nurses’ union, the Board ordered the employer to do so. employer then filed cross-petitioned 29 to this petition enforce its for review, order. and the Substantial The Board evidence supports the Board’s finding that the nurses are not supervisors because their duties do not require the exercise of independent judgment. Therefore, we deny the employer’s petition and grant the Board’s cross-petition. I. A. Palmetto Prince George Operating, LLC, operates a nursing home in Georgetown, South Carolina. The nursing home provides care twenty-four hours a day, seven days a week. Palmetto’s Nursing, an management Assistant team Director consists of of Nursing, a Director and three of Unit Managers (collectively the “Managers”). The Managers monitor and care, evaluate the quality of nursing 3 supervise and discipline nursing staff, and arrange the schedules and assignments of the nursing staff. The Center employs twenty-three nurses to staff its units: six registered nurses (LPNs) patients, nurses (RNs) and (collectively, answer call seventeen the lights, licensed “Nurses”). administer perform general patient care duties. 1 practical All assess medications, and In addition to the Nurses, the Center employs forty certified nursing assistants (CNAs). The CNAs assist residents with daily tasks, such as helping them bathe, repositioning them in bed, and aiding them in using the restroom. Palmetto’s handbook describes the Nurses as the CNAs’ “first line of authority,” and it places the Nurses above the CNAs on its organizational chart. B. In 2015, the United Manufacturing, Energy, Union to sought Steel, Allied represent bargaining representative. an election petition Paper Industrial the Nurses and Forestry, and Service as their Rubber, Workers exclusive On January 12, 2015, the Union filed with the Board. At the pre-election hearing before the Regional Director, Palmetto argued that the Nurses are supervisors and therefore 1 have no collective RNs and LPNs share the same duties, with the exception that LPNs cannot sign assessments or administer small doses of intravenous medications. These differences do not bear on the question of whether they are supervisors. 4 bargaining rights under the National Labor Relations Act. See 29 U.S.C. § 152(3) (2012). Section 152(11) of the Act defines “supervisor” as: [A]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, 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 authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Palmetto contends that the Nurses are supervisors because they have the authority to discipline and responsibly direct the CNAs and must use authorities. independent judgment in exercising those two The parties have stipulated that the Nurses lack authority to perform any of the other ten functions listed in § 152(11). The Regional Director concluded prove the Nurses are supervisors. that Palmetto failed to Accordingly, the Regional Director ordered an election, and the Nurses voted in favor of having the Union represent them. requested that Palmetto After the election, the Union recognize it representative and begin bargaining with it. as the Nurses’ Palmetto refused, and the Union filed a refusal-to-bargain charge with the Board. The Board’s General Counsel then filed a complaint against Palmetto alleging that it had committed unfair labor practices in violation of §§ 158(a)(1) and 5 (5) of the National Labor Relations Act. judgment, The Board granted the General Counsel summary adopting the Regional Director’s findings and concluding that Palmetto had indeed violated §§ 158(a)(1) and (5) of the Act. Palmetto filed a petition for review with us, and the Board filed a cross-petition to enforce its order. II. A. We review the Board’s factual findings supervisory status for substantial evidence. Glenmark Assoc., Inc. v. NLRB, 147 F.3d 333, 338 (4th Cir. 1998). the record contains enough evidence that “a regarding We affirm if reasonable might accept [it] as adequate to support a conclusion.” mind Gestamp South Carolina, LLC v. NLRB, 769 F.3d 254, 263 (4th Cir. 2014) (internal quotation marks omitted). We defer to the Board’s factual findings even if we might have resolved factual disputes differently. Id. The Supreme Court has held that § 152(11) establishes a three-prong test for supervisory status. See, e.g., NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 712–13 (2001). Employees are supervisors if they (1) have the authority to perform any one of the twelve functions listed in § 152(11) or effectively recommend such action, (2) exercise that authority in a manner that is not merely clerical or routine but requires 6 the use of independent judgment, and (3) hold that authority in the interest of the employer. Id. burden of proving all three prongs. The employer bears the Id. at 711–12. do so by a preponderance of the evidence. And it must Pac Tell Group, Inc. v. NLRB, 817 F.3d 86, 91 (4th Cir. 2016). In this case, the parties dispute only the first and second prongs of this test. We need only address the second -- whether the Nurses exercise authority requiring independent judgment. The Act leaves the term “independent judgment” undefined. Moreover, the Supreme Court has recognized that the term “is ambiguous with respect to the degree of discretion required for supervisory status.” in original). Kentucky River, 532 U.S. at 713 (emphasis The Court explained that it is “undoubtedly true that the degree of judgment that might ordinarily be required to conduct a particular task may be reduced below the statutory threshold by employer.” detailed orders Id. at 713-14. and regulations issued by the The Supreme Court concluded that “[i]t falls clearly within the Board’s discretion to determine, within reason, what scope of discretion qualifies.” Id. Accordingly, a court defers to the Board’s interpretation of “independent judgment” consistent with the Act.” so long as it is “reasonable and Id. at 711–12. After the Supreme Court decided Kentucky River, the Board explained that to exercise independent judgment, “an individual 7 must at a minimum act, or effectively recommend action, free of the control of others and form discerning and comparing data.” 348 NLRB 686, 693 (2006). an opinion or evaluation by In re Oakwood Healthcare, Inc., Crucially, the Board concluded in Oakwood that “a judgment is not independent if it is dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or agreement.” in the provisions of a collective bargaining Id. B. Palmetto Board’s does not current, challenge post-Kentucky “independent judgment.” the reasonableness River of the interpretation of Nor does Palmetto contend that this interpretation is inconsistent with the Act. Indeed, Palmetto conceded at oral argument that the Board’s interpretation of “independent judgment” in Oakwood controls. Palmetto maintains, however, that our analysis of “independent judgment” in cases involving nurses issued prior to Kentucky River and Oakwood is in all respects “consistent” with those cases, and so governs the case at hand. Reply Br. 2. Our pre-Oakwood cases responded to the Board’s perplexing application of § 152(11) to nurses. Before Kentucky River, the Board took the position that nurses do not exercise “independent judgment” any time they exercise 8 “ordinary professional or technical judgment deliver services.” in directing less-skilled employees to Kentucky River, 532 U.S. at 713 (quoting the Board’s brief). In a series of cases, we rejected that interpretation of “independent judgment” as unreasonable and held that the nurses at issue in those cases were supervisors. See, e.g., Beverly Enterprises, Virginia, Inc. v. NLRB, 165 F.3d 290, 298 (4th Cir. 1999) (en banc) (holding that nurses were supervisors because they exercised § 152(11) authorities “by and large without any guidelines or established criteria”); Glenmark, 147 F.3d at 34145 (holding that nurses were supervisors given their authority to schedule and discipline nursing assistants without management approval). After we decided these nurse/supervisor cases, the Supreme Court in Kentucky River similarly rejected the Board’s sharp distinction between professional and independent judgment, holding that it was unreasonable to conclude that professional judgment can never be “independent” for the purposes of the Act. 532 U.S. at 714, 721 (citation omitted). In Oakwood, the Board adopted its current interpretation of “independent judgment” to comport with Kentucky River. This is precedential It is the value settled law first of our that case requiring pre-Oakwood an agency 9 us to address nurse/supervisor construction the cases. entitled to deference supersedes ambiguous statute. Internet Servs., “independent a prior 545 that construction of an Nat’l Cable & Telecomm. Ass’n v. Brand X U.S. judgment” understood judicial 967, is the 982 (2005). ambiguous, Board’s and The have we reasonable phrase always and consistent interpretations of it are entitled to deference. See, e.g., Beverly, 165 F.3d at 296; Glenmark, 147 F.3d at 338. In Oakwood, the Board adopted a reasonable interpretation of “independent judgment.” conflict between the As we recently noted, there is no Board’s interpretation and the text of § 152(11) or Congress’s intent to distinguish “true supervisors” from employees whom the Act protects “even though they perform ‘minor supervisory duties.’” Pac Tell, 817 F.3d at 91 (quoting Oakwood, see 348 Retirement NLRB Corp. at of 686); America, also 511 NLRB Health 571, U.S. v. 586–88 (recounting the legislative history of § 152(11)). Oakwood the Board did nothing more offered directly by the Supreme Court. U.S. at 713–14 “independent (noting judgment” of the than Care & (1994) Indeed, in implement guidance See Kentucky River, 532 significance an employer’s to the when “detailed determining orders and interpretation of regulations”). We therefore defer Board’s “independent judgment” and apply its standards here. To the extent our pre-Oakwood cases accord with those standards, they 10 remain instructive. 2 However, the Board’s current standards supersede our prior cases to the extent the two conflict. Thus, for example, before Oakwood, we considered it highly probative of independent judgment if nurses served as the most senior staff on site for significant portions of the work week. See Beverly, 165 F.3d at 297–98; Glenmark, 147 F.3d at 341–42; NLRB v. St. Mary’s Home, Inc., 690 F.2d 1062, 1066 (4th Cir. 1982). In accordance with Kentucky River, when detailed employer rules severely constrain the nurses’ discretion, Oakwood that this fact is not as probative as we had held. indicates Moreover, in Golden Crest Healthcare Center, a case decided the same day as Oakwood, the Board expressly applied Oakwood to hold that the nurses at issue there, although serving for significant periods of time as the most senior staff on site, were not supervisors, particularly given that managers remained on-call after hours. 348 NLRB 727, 727, 730 n.10 (2006). With these legal principles in mind, we turn to the case at hand. 2 In Oakwood, the Board also adopted a new interpretation of the term “responsibly to direct.” Oakwood, 348 NLRB at 690–92. Here, we need not address the extent to which this new interpretation displaces our prior cases. 11 III. Palmetto argues that the Nurses here are supervisors because they have the authority to discipline and responsibly direct the work of CNAs independent judgment. Palmetto simply has in a manner requiring the use of Both arguments fail for the same reason: not shown that the Nurses must use any independent judgment when performing these functions. A. We first consider the evidence Palmetto offered in support of its contention that the Nurses must exercise independent judgment when disciplining CNAs. Palmetto classifies uses a violations progressive into three discipline policy categories. that Category I includes minor infractions, such as failing to comply with the dress code or departmental procedures. violations protocols such for as threatening lifting and other moving Category II includes employees residents. and ignoring Category III includes the most serious violations, such as sleeping on the job, insubordination, Palmetto’s current steps: documented and handbook oral neglecting lists the counseling, or abusing following residents. disciplinary reprimands, written warnings, suspension, and discharge. Any employee can report a disciplinary violation, and in some cases, employees must report them. 12 In particular, failure to report a Category II or Category III violation is itself a Category II violation. The of and investigations misconduct Managers make all conduct final separate disciplinary decisions. Nevertheless, Palmetto insists that the independent judgment in disciplining CNAs. Nurses must use The record before us contains very scant evidence of oral counseling and only three instances in more than three years -- 2011 through 2014 -- of Nurses filing written reports of CNA misconduct. In one, it is unclear under which category the violation fell. The other two involved Category II and Category Nurses had no choice but to report. III violations, the In the Category III case, a Nurse sent a CNA home for sleeping on the job. heavily on this incident. which Palmetto relies However, one instance of a Nurse reacting to such an egregious violation, by itself, does not demonstrate independent judgment. 295 NLRB 486, 492 (1989). See Phelps Cmty. Med. Ctr., Moreover, Palmetto’s argument ignores its written rule that sleeping on the job is punishable only by discharge. discharge The or Nurse even involved suspend disciplinary decision. the in this CNA. incident She made did no not final Rather, she called Director of Nursing Jennifer Lambert to report the incident, who then investigated the matter and ultimately fired the CNA. indicates that Palmetto has given 13 The record before us its Nurses only the disciplinary power provided to every other employee (including CNAs themselves): the power to report rule violations to the Managers. On this record, a reasonable mind could certainly conclude that Palmetto did not offer evidence sufficient to establish that the Nurses use independent judgment when disciplining CNAs. B. We next consider the evidence Palmetto offered in support of its contention that the Nurses must use independent judgment when they responsibly direct the work of CNAs. Palmetto argues establishes as much. that the constrained, Nurses that Director Lambert’s testimony But at most, that testimony establishes exercise judgment. not Director independent, Lambert but testified heavily that the Nurses are responsible for making sure CNAs: (1) follow various laws, rules, and regulations, including the OSH [sic], (2) comply with infection control procedures, (3) stay within the scope of their certification, (4) adhere to proper protocols for resident hygiene, (5) treat residents in a non-abusive or neglectful [sic] manner, (6) follow the proper feeding and hydration rules and regulations, (7) document treatment, and (8) comply with fire alarm, disaster evacuation, and resident elopement procedures. Pet. Br. 31. Palmetto has extensive policies on all these matters and on virtually all CNA duties. It has training, instructions, and 14 policies on everything from handwashing and bathing residents to dealing with patient abuse. During mandatory in-service meetings, the Managers regularly give specific instructions to Nurses and CNAs on such topics as repositioning residents, properly clothing residents, taking breaks, clocking in and out, attending to residents’ hygiene, and providing meal service. Palmetto also conducts fire, evacuation, and resident elopement drills. State law and OSHA regulations provide additional protocols for infection control, patient hygiene, and emergency preparedness. In every case, the Nurses’ responsibility seems to amount to the same thing: written instructions. This making sure the CNAs follow the suggests that the Nurses serve merely as conduits for these instructions. It is true, of course, that “the mere existence of company policies does not eliminate independent judgment from decisionmaking if the policies allow for discretionary choices.” Oakwood, 348 NLRB at 693 (citing Glenmark, 147 F.3d at 341). However, Palmetto has not offered even one instance in which the Nurses could (let alone did) direct CNAs largely without guidance from Palmetto’s instructions. Palmetto leans heavily on the Managers’ absence at night and on weekends, leaving the Nurses as the most senior staff on site during those times. Palmetto agrees But, under the Oakwood standard, which controls, these 15 facts do not themselves establish independent judgment. See Golden Crest, 348 NLRB at 730 n.10 (applying Oakwood and holding that charge nurses were not statutory substantial supervisors record despite evidence this arrangement). establishes that Here, Palmetto’s instructions continue to control nurses’ discretion even after hours and on weekends. When the Managers go home at night or for the weekend, they do not take their instructions with them. Moreover, Director and the record Assistant evidence Director of establishes Nursing that rotate both the “on-call” duties on nights and weekends, and the three Unit Managers have other limited on-call duties. The Unit Managers have instructed the Nurses to call them after hours for assistance, and Director Lambert testified that the Nurses may call her for assistance as well. As the Board explained in Golden Crest, the fact that nurses are the most senior staff on site after hours “is even less probative where management is available after hours.” Id. 3 Given these facts, the Board reasonably concluded that the Nurses do not exercise independent judgment when directing CNAs. 3 Palmetto’s reliance on our decision in Beverly is misplaced. In addition to predating Kentucky River and Oakwood, in Beverly the Board conceded that the employer “provides no list of criteria by which assignments, direction of nursing assistants, or emergency dismissals are to be made.” 165 F.3d at 298. Here, Palmetto has utterly failed to rebut evidence that its instructions provided detailed “criteria” on these issues. 16 IV. The record offers abundant evidence supporting the Board’s finding that Palmetto failed to establish that the Nurses use independent judgment in disciplining and directing the work of CNAs. and Accordingly, we must deny Palmetto’s petition for review grant the Board’s cross-petition for enforcement of its order. PETITION FOR REVIEW DENIED; CROSS-PETITION FOR ENFORCEMENT GRANTED 17
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