Frenchtown Acquisition Co. v. Nat'l Labor Relations Bd.

Decision Date20 June 2012
Docket Number11–1499.,Nos. 11–1418,s. 11–1418
Citation683 F.3d 298
PartiesFRENCHTOWN ACQUISITION COMPANY, INC., d.b.a. Fountain View of Monroe, Petitioner/Cross–Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner.
CourtU.S. Court of Appeals — Sixth Circuit


ON BRIEF:Grant T. Pecor, Nantz, Litowich, Smith, Girard & Hamilton, Grand Rapids, Michigan, for Petitioner/Cross–Respondent. Ruth E. Burdick, Michelle M. Devitt, Linda Dreeben, National Labor Relations Board, Washington, D.C., for Respondent/Cross–Petitioner.

Before: MOORE, SUTTON, and STRANCH, Circuit Judges.


JANE B. STRANCH, Circuit Judge.

The essential question in this appeal is whether substantial evidence supports the National Labor Relations Board's conclusion that the charge nurses employed at Frenchtown's long-term-care and rehabilitation-services facility are not supervisors under the National Labor Relations Act (Act). Frenchtown maintains that the charge nurses are supervisors, but the Board determined in a unit-clarification proceeding that they were not. Frenchtown has refused to bargain with the nurses' union as a means to seek indirect review of this determination.

Frenchtown operates Fountain View of Monroe, a nursing home offering long-term care and rehabilitation. The bargaining unit at issue consists of 43 charge nurses who work with 45 nursing aides to care for the residents. Frenchtown argues that the charge nurses are supervisors because they had the authority to assign, responsibly direct, discipline, hire, and transfer other employees, or effectively recommend these actions. Because substantial evidence supports the Regional Director's conclusion that Frenchtown failed to prove that the nurses are supervisors, we enforce the Board's order that Frenchtown bargain with the union in good faith and deny Frenchtown's petition for review.


The nursing home has 119 beds and four distinct care units: Pleasant View, Meadow View, Pleasant View Heights, and Evergreen. Staffing for each unit is based on the number of residents living there. The charge nurses have been represented by the American Federation of State, County, and Municipal Employees, AFL–CIO, Local 1548 (the Union) since April 2003. Frenchtown's 45 certified nursing aides at the nursing home are represented by the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW).

Seven stipulated supervisors manage the nursing department. Director of Nursing (DON) JoAnn Maddux heads the department. Directly under her are Assistant Director of Nursing (ADON) Jill Kontry and PM Manager Jennifer Austermiller. The Clinical Coordinators (CCs) Nicole Nutt and Jennifer Greening and Minimum Data Set Coordinators (MDSCs) are one more level down the hierarchy and immediately above the charge nurses.

In 2003 the Regional Director found the employer's charge nurses to be statutory employees and the Board denied review of that finding. After the employees voted to unionize, the Union and Frenchtown entered a collective bargaining agreement in 2004. After that agreement expired, Frenchtown filed a unit-clarification petition in June 2009. Frenchtown sought to have the Board determine that all of the charge nurses were statutory supervisors under § 2(11) of the Act (29 U.S.C. § 152(11)). After a hearing, the Regional Director denied Frenchtown's petition in April 2010, finding that Frenchtown did not meet its burden of proof to show that the charge nurses are statutory supervisors. The Board denied Frenchtown's request for review in November 2010 based on the evidence introduced at the hearing, though it noted that it may have been error to allow Frenchtown to relitigate the previously resolved supervisor issue rather than limiting the hearing to changed factual circumstances.

Because Frenchtown refused the Union's request to bargain and to provide information, the Union filed unfair-labor-practice charges in April and November 2010. The General Counsel consolidated the cases and issued a complaint in November 2010. In its answer, Frenchtown admitted refusing to bargain but claimed that the charge nurses were statutory supervisors. The General Counsel filed a summary-judgment motion and the case was transferred to the Board.

In March 2011, the Board granted the General Counsel's motion, finding that Frenchtown violated § 8(a)(5) and (1) of the Act by refusing to bargain with the Union. The Board's order requires that Frenchtown cease and desist from the unfair labor practices and from “interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.” The Board's order also requires Frenchtown to bargain in good faith with the Union, to provide the Union with the information it requested, and to post copies of a remedial notice.

Frenchtown filed a petition for review with this court and the Board filed a cross-application for enforcement of its order.

A. Legal framework

Our review of the Board's decisions is limited. NLRB v. Dole Fresh Vegetables, Inc., 334 F.3d 478, 484 (6th Cir.2003). The Board's factual findings and its application of the law to those facts are conclusive “if supported by substantial evidence on the record considered as a whole.” Id. (quoting 29 U.S.C. § 160(e)). This test “requires not the degree of evidence which satisfies the court that the requisite fact exists, but merely the degree that could satisfy the reasonable fact finder.” Rochelle Waste Disposal, LLC v. NLRB, 673 F.3d 587, 592 (7th Cir.2012) (internal quotation marks omitted); accord Williamson v. NLRB, 643 F.3d 481, 485 (6th Cir.2011) (determining that substantial evidence is evidence that a reasonable person might accept as adequate to uphold the Board's decision, “even if there is also substantial evidence for an inconsistent conclusion”). We may not disturb the Board's reasonable inferences even though we may have reached a different conclusion had the matter been before us de novo. V & S ProGalv, Inc. v. NLRB, 168 F.3d 270, 275 (6th Cir.1999). Although we review the Board's legal conclusions de novo, NLRB v. Good Shepherd Home, Inc., 145 F.3d 814, 816 (6th Cir.1998), we uphold the Board's interpretation of the Act “as long as it is a permissible construction of the statute,” Williamson, 643 F.3d at 485 (internal quotation marks omitted).

Only employees have the right to unionize and bargain collectively under the Act. 29 U.S.C. § 157. The Act defines employee so as to exclude “any individual employed as a supervisor.” Id. § 152(3). A supervisor is

any 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.

Id. § 152(11). The Act therefore establishes “a three-part test for determining supervisory status.” NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 712–13, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001). Individuals are supervisors under the Act if they (1) have the authority to engage in any 1 of the 12 enumerated supervisory actions; (2) use “independent judgment” in exercising that authority; and (3) hold that authority “in the interest of the employer.” 29 U.S.C. § 152(11); accord Kentucky River, 532 U.S. at 713, 121 S.Ct. 1861.

The Board has interpreted the second requirement—using independent judgment—as requiring at a minimum that an individual “act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data.” In re Oakwood Healthcare, Inc., 348 NLRB 686, 692–93 (2006). In addition, “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 in the provisions of a collective bargaining agreement.” Id. at 693.1

Deciding whether an individual is a supervisor is a “highly fact intensive inquiry.” Kentucky River Community Care, Inc. v. NLRB, 193 F.3d 444, 453 (6th Cir.2000), aff'd, Kentucky River, 532 U.S. 706, 121 S.Ct. 1861. In conducting this inquiry, the Board and “reviewing courts must take care to assure that exemptions from NLRA coverage are not so expansively interpreted as to deny protection to workers the Act was designed to reach.” Holly Farms Corp. v. NLRB, 517 U.S. 392, 399, 116 S.Ct. 1396, 134 L.Ed.2d 593 (1996) (deferring to the Board's decision that certain workers were not “agricultural laborer[s] and were therefore eligible to unionize under the Act). This court has endorsed the same principle in the context of determining whether individuals are supervisors: “it is important for the Board not to construe supervisory status too broadly, for a worker who is deemed to be a supervisor loses his organizational rights.” Williamson Piggly Wiggly v. NLRB, 827 F.2d 1098, 1100 (6th Cir.1987) (brackets and internal quotation marks omitted).

[T]he party asserting supervisory status” (Frenchtown in the present case) bears the burden of proving that status by a preponderance of the evidence. See Kentucky River, 532 U.S. at 711–12, 121 S.Ct. 1861;accord in re Croft Metals, Inc., 348 NLRB 717, 721 (2006). General testimony asserting that employees have supervisory responsibilities is not sufficient to satisfy the burden of proof when there is no specific evidence supporting the testimony. See Dole Fresh Vegetables, 334 F.3d at 489 (holding that general statements from the plant manager asserting that the challenged employees possessed supervisory responsibilities were not sufficient to meet the employer's burden because the employer “did not present any specific evidence to support [the] statements”)...

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