Under the National Labor Relations Act, individuals who qualify as “employees” have a right to unionize, while those who qualify as “supervisors” do not. Earlier this week in Lakeland Health Care Associates, LLC v. NLRB, the Eleventh Circuit concluded that the National Labor Relations Board should have found that certain nurses qualified as “supervisors” rather than “employees.” Nos. 11-12000 & 11-12638 (11th Cir. Oct. 2, 2012). Because the Board reached the opposite conclusion, the Eleventh Circuit vacated the Board’s decision.
The majority’s opinion notes that its conclusion is consistent with decisions issued by the Fourth and Sixth Circuits, but inconsistent with decisions from the First and Second Circuits:
In light of this uncontradicted testimony, the language of Lakeland's employee handbook, the [licensed practical nurses' (or "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."8
8. We note that our conclusion is in accord with the Sixth Circuit's decision in Extendicare Health Servs., Inc v NLRB, 182 F. App'x 412 (6th Cir. 2006) and the Fourth Circuit's decision in Glenmark Assocs. v. NLRB, 147 F.3d 333 (4th Cir. 1998). But see NLRB v. Saint Mary Home, 358 F. App'x 255 (2d Cir. 2009); NLRB v . Hilliard Dev. Corp., 187 F.3d 133 (1st Cir. 1999). In Extendicare, the court noted:
The Board viewed the nurses' "writing up" of assistants' misconduct as a mere "reporting function" that "does not establish supervisory status." We do not think substantial evidence supports the Board's view. First, the record shows that Extendicare's floor nurses have discretionary authority to choose from among several remedial measures, only one of which involves completion of a disciplinary action report. The nurses decide independently whether a nursing assistant's misconduct is severe enough to warrant disciplinary proceedings. As we have held elsewhere, the use of independent judgment in writing up employees' infractions is a supervisory function.
Second, it is undisputed that a floor nurse's completion of a disciplinary action report initiates formal disciplinary proceedings against a nursing assistant. By making such a report, therefore, a nurse plays an effective part in the disciplinary process. The administrator or director of nursing makes the final decision as to whether, and how, an assistant will be disciplined, but the relevant consideration for purposes of § 152(11) is effective recommendation . . . rather than final authority. The Act does not preclude supervisory status simply because a recommendation is subject to a superior's investigation.
182 F. App'x. 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.
Dissenting, Judge William Pryor, Jr. criticized the majority opinion for “improperly substitut[ing] its own views of the facts for those of the Board” and “fail[ing] to adhere to our deferential [substantial-evidence] standard of review.”
“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,’” Judge Pryor explained, “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.'”
In its 1999 opinion in Cooper/T. Smith, Inc. v. NLRB, the Eleventh Circuit summarized the conflicting authority over the degree to which courts should defer to a determination by the National Labor Relation Board that a particular employee is a “supervisor” within the scope of 29 U.S.C. § 152(11):
See Glenmark Assocs., Inc. v. NLRB, 147 F.3d 333, 338 (4th Cir. 1998) (observing that a thorough examination of the evidence "should be particularly true when the Board is determining supervisory status because of the inconsistency in the Board's application of the statutory definition and of the factors to be used in determining such application"); Spentonbush/Red Star Cos. v. NLRB, 106 F.3d 484, 492 (2d Cir. 1997) (finding the "Board's biased mishandling of cases involving supervisors increasingly has called into question our obeisance to the Board's decisions in this area"); Schnuck Markets, Inc. v. NLRB, 961 F.2d 700, 704 (8th Cir. 1992) ("Scrutiny is particularly appropriate in cases where the Board determines supervisory status."). But cf. Passavant Retirement & Health Ctr. v. NLRB, 149 F.3d 243, 246 (3d Cir.1998) (holding that "because of the Board's 'special competence' in the field of labor relations, its interpretation of the Act is accorded special deference" and noting that "whether a [bargaining] unit is appropriate involves a large measure of informed discretion vested in the Board and is rarely to be disturbed") (internal quotations and citations omitted); Providence Alaska Med. Ctr. v. NLRB, 121 F.3d 548, 551 (9th Cir.1997) ("Because the Board has expertise in making the subtle and complex distinctions between supervisors and employees, … the normal deference [we] give to the Board is particularly strong when it makes those determinations.") (internal quotations and citations omitted); Telemundo de Puerto Rico, Inc. v. NLRB, 113 F.3d 270, 274 (1st Cir. 1997) (same).
177 F.3d 1259, 1262 (11th Cir. 1999).