Lakeland Health Care Assocs., LLC v. Nat'l Labor Relations Bd.

• Decision Date: 02 October 2012
• Docket Number: Nos. 11–12000,11–12638.,s. 11–12000
• Parties: LAKELAND HEALTH CARE ASSOCIATES, LLC, Petitioner–Appellant–Cross–Appellee, v. NATIONAL LABOR RELATIONS BOARD, Respondent–Appellee–Cross–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

696 F.3d 1332

LAKELAND HEALTH CARE ASSOCIATES, LLC, Petitioner–Appellant–Cross–Appellee,

v.NATIONAL LABOR RELATIONS BOARD, Respondent–Appellee–Cross–Appellant.

Nos. 11–12000, 11–12638.

United States Court of Appeals, Eleventh Circuit.

Oct. 2, 2012.

Todd M. Nierman, Littler Mendelson, Indianapolis, IN, Gregory S. Richters, Christine S. Tenley, Littler Mendelson, PC, Atlanta, GA, for Petitioner.

Ruth E. Burdick, Usha Dheenan, Linda Dreeben, Christopher Young, NLRB, Washington, DC, Rochelle Kentov, NLRB, Gen. Counsel, Tampa, FL, for Respondent.

Petitions for Review of a Decision of the National Labor Relations Board.

Before TJOFLAT and PRYOR, Circuit Judges, and HUCK,^* District Judge.

HUCK, District Judge:

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”)¹ employed by Lakeland are “supervisors” within the meaning of section 2(11) of the Act. For the reasons described below, we vacate the Board's decision and deny the petition for enforcement.

I. BACKGROUND

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. See29 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.² The Board denied Lakeland's request for review of the Regional Director's decision on December 6, 2010, with one member of the three-member panel dissenting. Following a representation election, the Union was certified on January 6, 2011 as the exclusive bargaining representative for Lakeland's LPNs.

In order to seek judicial review of the Board's findings, Lakeland refused to recognizeand bargain with the Union as the LPNs' representative. The Union responded by filing an unfair labor practice charge with the Board, which, through the Board's general counsel, filed a complaint against Lakeland on February 22, 2011. On April 29, 2011, the Board entered a 3–page Decision and Order granting summary judgment in favor of the Board's general counsel (and thereby the Union), finding that Lakeland violated sections 8(a)(5) and (1) of the Act. Lakeland appeals.

II. STANDARD OF REVIEW

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 also29 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.

III. DISCUSSION

A. Legal Framework

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. See29 U.S.C. § 157 (“Employees shall have the right to self-organization....”). If they are “supervisors,” they are not. See29 U.S.C. § 152(3) (“The term ‘employee’ ... shall not include ... any individual employed as a supervisor ....”).

Section 2(11) of the Act defines a “supervisor” as:

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.

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.

B. Authority to Discipline, Suspend, and “Effectively Recommend” Termination

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...