Sub Acute Rehabilitation Cente v. NLRB , 675 F. App'x 173 ( 2017 )


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  •                                                     NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 16-1330
    NATIONAL LABOR RELATIONS BOARD,
    Petitioner
    v.
    SUB ACUTE REHABILITATION CENTER AT KEARNY, LLC
    d/b/a Belgrove Post Acute Care Center,
    Respondent
    No. 16-1505
    SUB ACUTE REHABILITATION CENTER AT KEARNY,
    d/b/a Belgrove Post Acute Care Center,
    Petitioner
    v.
    NATIONAL LABOR RELATIONS BOARD,
    Respondent
    On Application for Enforcement and
    Cross-Petition for Review of an Order of the
    National Labor Relations Board
    (NLRB-1:22-CA-093626)
    Submitted under Third Circuit L.A.R. 34.1(a)
    on November 7, 2016
    (Opinion filed: January 11, 2017)
    Before: JORDAN, GREENAWAY, JR., and RENDELL, Circuit Judges
    O P I N I O N*
    RENDELL, Senior Circuit Judge:
    Belgrove Post Acute Care Center (“Belgrove”), the employer in this case,
    challenges the determination of the National Labor Relations Board (“the Board”) that its
    Licensed Practical Nurses (“LPNs”) were not statutory supervisors under Section 2(11)
    of the National Labor Relations Act (“the Act”). Because we find that substantial
    evidence supports the Board’s determination, we will reject Belgrove’s Petition for
    Review and grant the Board’s Application for Enforcement.
    I. Background
    Belgrove runs a 24-hour/7-day a week, 120-bed, sub-acute care facility. 1 Belgrove
    employees approximately 30 LPNs and 75 Certified Nursing Assistants (“CNAs”) who
    work on three floors, covering three shifts per day. The Director of Nursing oversees the
    entire nursing department, and reporting to the Director are the Assistant Director of
    Nursing, two house supervisors, and three unit managers. House supervisors assign staff,
    monitor the entire building, and ensure that staff arrive on time and properly perform
    their jobs. Unit managers, who oversee each floor, assign work to LPNs and ensure that
    LPNs do their jobs. LPNs primarily serve as floor nurses. In that capacity, LPNs perform
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
    does not constitute binding precedent.
    1
    Acute care refers to the type of care provided in a hospital setting. Sub-acute
    care, which is the service Belgrove provides, refers to a broad range of post-hospital care
    services such as nursing care, physical and occupational rehabilitation, or speech therapy.
    2
    treatments for patients and distribute medications. Sometimes, an LPN will fill in for a
    unit manager or house supervisor when that person is out sick or on vacation. Finally,
    CNAs, who are assigned tasks by the LPNs, provide basic living care by feeding, bathing,
    grooming, and dressing the patients.
    In 2012, District 1199J of the National Union of Hospital and Health Care
    Employees, AFSCME, AFL-CIO filed a petition to represent Belgrove’s LPNs. Belgrove
    responded that LPNs were statutory supervisors under the Act (which would preclude
    them from forming a collective bargaining unit) for two reasons: first, that LPNs, in their
    capacity as floor nurses, satisfied four of the supervisory categories under Section 2(11),
    and second, that LPNs, by virtue of their temporary service as unit managers or house
    supervisors, also qualified as supervisors under the Act. At the representation hearing,
    Belgrove presented two witnesses: Jaqueline Baumrind, Belgrove’s top administrator,
    and Josefina Naglieri, an LPN at Belgrove. The record before the Regional Director also
    contained documents such as the LPN job description, examples of unit staffing sheets,
    CNA assignment sheets, and disciplinary records.
    The Regional Director subsequently issued a Decision and Direction of Election
    finding that LPNs were not supervisors. The Board denied review and certified the Union
    as the bargaining representative. Belgrove thereafter refused to bargain with the Union.
    The Regional Director responded by filing an unfair labor practices charge against
    Belgrove, and on December 9, 2015, the Board granted the General Counsel’s Motion for
    Summary Judgment, thereby affirming the Regional Director’s conclusion that LPNs
    3
    were not supervisors. 2 Belgrove petitions for review and the Board seeks enforcement of
    the December 9, 2015 order.
    II. Standard of Review
    “[D]eterminations respecting supervisor status are particularly suited to the
    Board’s expertise.” Mars Home for Youth v. NLRB, 
    666 F.3d 850
    , 853 (3d Cir. 2011)
    (quoting NLRB v. W.C. McQuaide Inc., 
    552 F.2d 519
    , 532 (3d Cir. 1977)). Accordingly,
    our review of the Board’s determination of the LPN’s status is limited. We will uphold a
    Board’s finding of supervisory status under the Act so long as there is substantial
    evidence to support the Board’s conclusion. 
    Id. “Substantial evidence
    is more than a
    scintilla. It means such relevant evidence as a reasonable mind might accept as adequate
    to support a conclusion.” 
    Id. (internal quotation
    marks omitted). We exercise plenary
    review over the Board’s legal determinations, but do so “with due deference to the
    Board’s expertise in labor matters.” NLRB v. St. George Warehouse, Inc., 
    645 F.3d 666
    ,
    671 (3d Cir. 2011) (internal quotation marks omitted). We will also “uphold the Board’s
    interpretations of the Act if they are reasonable.” MCPC Inc. v. NLRB, 
    813 F.3d 475
    , 482
    (3d Cir. 2016). Finally, we analyze the Regional Director’s findings of fact and
    conclusions of law where the Board adopted those findings. See Trafford Distrib. Ctr. v.
    NLRB, 
    478 F.3d 172
    , 179 (3d Cir. 2007). Where the Board has adopted the Regional
    Director’s decision in part, we will review both. 
    Id. 2 The
    Board initially affirmed the Regional Director’s determination on March 13,
    2013. The Board’s General Counsel then applied for enforcement of that order in this
    Court. We remanded the case, however, for further proceedings in light of NLRB v. Noel
    Canning, 
    134 S. Ct. 2250
    (2014). The December 9, 2015 order constitutes the operative
    order in this case.
    4
    III. Analysis 3
    We begin by stating the legal principles that guide the Board’s supervisory status
    determination. Only employees are entitled to the Act’s protections. See 29 U.S.C. § 152.
    “Supervisors,” however, are excluded from the definition of “employee.” 
    Id. A supervisor
    is:
    [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.
    29 U.S.C. § 152(11). Thus, employees are supervisors if “(1) they hold the authority to
    engage in any 1 of the 12 listed supervisory functions, (2) their exercise of such authority
    is not of a merely routine or clerical nature, but requires the use of independent judgment,
    and (3) their authority is held in the interest of the employer.” NLRB v. Kentucky River
    Cmty. Care, Inc., 
    532 U.S. 706
    , 713 (2001) (internal quotation marks omitted).
    The Board’s interpretation of independent judgment turns on the “degree” of
    discretion exercised by a putative supervisor. In re Oakwood Healthcare, Inc., 
    348 N.L.R.B. 686
    , 693 (2006). A person exercises independent judgment if she “act[s], or
    effectively recommend[s] action, free of the control of others and form[s] an opinion or
    evaluation by discerning and comparing data.” 
    Id. Judgment is
    not independent, however,
    if it is “dictated or controlled by detailed instructions, whether set forth in company
    3
    The Board had jurisdiction over the case pursuant to Section 10(a) of the Act.
    We have jurisdiction over the Board’s Application for Enforcement and Belgrove’s
    Petition for Review of the Board’s December 9, 2015 order, a final order, under Section
    10(e) and (f) of the act, respectively. 29 U.S.C. §§ 160(e), (f).
    5
    policies or rules, the verbal instructions of a higher authority, or in the provisions of a
    collective bargaining agreement.” 
    Id. Moreover, for
    judgment to be independent, it must
    “rise[] above the ‘routine or clerical.’” 
    Id. We have
    previously approved of this standard. See Mars Home for 
    Youth, 666 F.3d at 854
    (citing 
    Oakwood, 348 N.L.R.B. at 692-93
    ). It is consistent with Section 2(11)
    of the Act, which seeks to distinguish true supervisors who exercise “genuine
    management prerogatives” with “straw bosses, leadmen, [and] set-up men,” who are still
    entitled to the Act’s protections despite the exercise of “minor supervisory duties.” NLRB
    v. Bell Aerospace Co., 
    416 U.S. 267
    , 280-81 (1974) (quoting S. Rep. No. 80-105, 4
    (1947)). Moreover, by focusing on the “degree” of discretion exercised, it faithfully
    implements the Supreme Court’s guidance in Kentucky River, which noted that “detailed
    orders and regulations issued by the employer” might preclude a finding of independent
    judgment. Kentucky 
    River, 532 U.S. at 714
    . Therefore, we defer to the Board’s
    interpretation. See, e.g., Palmetto Prince George Operating, LLC v. NLRB, 
    841 F.3d 211
    ,
    216 (4th Cir. 2016) (finding that “the Board adopted a reasonable interpretation of
    ‘independent judgment’”).
    Finally, as the party claiming supervisory status, Belgrove bears the burden of
    establishing it. See Mars Home for 
    Youth, 666 F.3d at 854
    .
    With these principles in mind, we turn to address each of Belgrove’s five bases for
    finding supervisor status. Ultimately, we disagree with its arguments and will deny its
    Petition.
    6
    A. LPNs as Floor Nurses
    1. Assignment
    First, Belgrove asserts that LPNs who serve as floor nurses are supervisors
    because they assign CNAs and assign work to the CNAs. The Regional Director found
    that floor nurses did not assign CNAs within the meaning of Section 2(11), and in the
    alternative, that LPNs did not exercise independent judgment because Belgrove “ha[d]
    not shown that [floor nurses] perform a detailed analysis of CNAs’ abilities and
    residents’ needs.” A.438. The Board affirmed the Regional Director on this alternative
    ground. Belgrove argues this alternative conclusion lacked substantial evidence. We
    disagree.
    The record supports the Board’s conclusion that LPNs do not use independent
    judgment in their assignments. CNAs are assigned to particular time shifts and units not
    by floor nurses, but by the facility’s staffing coordinator. Floor nurses might fill out
    standard assignment sheets that assign CNAs to particular room blocks, break times, and
    other routine daily tasks such as dining room duty, pantry clean-up duty, fire team duty,
    and patient transfer duty. However, as the Regional Director noted, LPN Naglieri
    testified that she can choose any CNA to perform any of these tasks. Moreover, to the
    extent LPNs assigned other discrete tasks, those tasks involved similarly routine
    “activities of daily living,” A.53, such as getting a resident dressed for a therapy
    appointment, cleaning up vomit, or cleaning a patient before discharge. Thus, the
    Regional Director was entitled to conclude that floor nurse “assignment[s]” were “largely
    7
    defined by the routine nature of the daily living functions with which [CNAs] assist” and
    did not involve independent judgment. A.438.
    Belgrove counters by pointing to LPN Naglieri’s testimony that she assigns CNAs
    “based on the skill level of the CNA.” A.184. The Regional Director concluded that this
    “vague assertion,” in light of the specific examples offered elsewhere in her testimony,
    failed to show supervisory status. A.438. We agree with the Regional Director. The
    statute requires “evidence of actual supervisory authority visibly demonstrated by
    tangible examples to establish the existence of such authority.” Bldg. Contractors Ass’n,
    364 N.L.R.B. No. 74 (Aug. 16, 2016) (quoting Oil Workers v. NLRB, 
    455 F.2d 237
    , 243
    (D.C. Cir. 1971)); see also Frenchtown Acquisition Co. v. NLRB, 
    683 F.3d 298
    , 305 (6th
    Cir. 2012) (“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.”); Golden Crest Healthcare Center, 
    348 N.L.R.B. 727
    , 731
    (2006) (recognizing that “purely conclusory evidence is not sufficient to establish
    supervisory status”). The specific examples offered by Naglieri did not actually show the
    exercise of independent judgment and therefore did not support her conclusory assertion.
    Naglieri testified that she transferred CNAs, but only because a resident asked her to do
    so. The record contains another example of her directing a CNA to change the order of
    tasks the CNA performed but only because that resident had a doctor’s appointment.
    Naglieri similarly adjusted CNA assignments when relaying a doctor’s orders, i.e., orders
    from a higher authority. These routine adjustments do not evidence any analysis of CNA
    skill sets, and therefore do not demonstrate independent judgment. See Frenchtown
    8
    Acquisition 
    Co., 683 F.3d at 312
    (finding that “routine adjustments to patient
    assignments, such as pulling an aide from a resident because a resident requests it” did
    not involve independent judgment). Thus, the Regional Director was entitled to discount
    Naglieri’s conclusory assertion.4
    2. Responsible Direction
    Second, Belgrove asserts that floor nurses are supervisors because they
    responsibly direct CNAs. For direction to be responsible, “the person directing and
    performing the oversight of the employee must be accountable for the performance of the
    task by the other, such that some adverse consequence may befall the one providing the
    oversight if the tasks performed by the employee are not performed properly.” Mars
    Home for 
    Youth, 666 F.3d at 854
    (citing 
    Oakwood, 348 N.L.R.B. at 691-92
    ); see 
    id. at 854
    n.2 (finding interpretation of responsible direction reasonable). Thus, to establish
    accountability for purposes of responsible direction, the employer must show it
    “delegated to the putative supervisor the authority to direct the work and the authority to
    take corrective action, if necessary[,]” and “that there is a prospect of adverse
    consequences” for failing to do so. 
    Oakwood, 348 N.L.R.B. at 692
    .
    4
    We also reject Belgrove’s argument that the Board added an additional
    requirement not present under the Act by requiring a “detailed analysis.” Belgrove Reply
    11-12. When viewed in context, however, we read the Regional Director’s reference to
    “detailed analysis” to be merely shorthand for Oakwood’s independent judgment
    requirement, which the Regional Director not only cites but also quotes at length. The
    Regional Director also noted the extent to which LPNs must consider the “specialized
    training or skills” of the CNAs and routineness of the tasks which they were assigned, all
    considerations relevant to whether LPNs “discern[] and compar[e] data.” A.438. This
    analysis faithfully applies Oakwood.
    9
    The Regional Director concluded that floor nurses did not responsibly direct
    CNAs because the record lacked evidence that floor nurses “risk[ed] a real prospect of
    adverse action for CNAs’ poor performance.” A.439. Belgrove concedes that no actual
    episodes of LPNs being disciplined exist in the record, but argues that LPN Naglieri’s
    responses to hypothetical situations of deficient CNA performance or insubordination
    suffice to show prospective consequences.
    We find, however, that the Regional Director reasonably concluded that Belgrove
    failed to meet its evidentiary burden. Belgrove points to the LPN job description, which
    states that LPNs “supervise[] and coordinate[] nursing personnel.” A.264. But, as the
    Board recognized, the job description, which in any case does not reference CNAs
    specifically, constitutes only paper accountability that does not by itself establish
    supervisory authority. See Golden 
    Crest, 348 N.L.R.B. at 731
    (“[T]here must be a more-
    than-merely-paper showing that such a prospect exists.”). As Belgrove concedes, there
    were no examples of a supervisor’s disciplining a floor nurse for her failure to oversee
    the work of a CNA. Indeed, the only specific example of LPN Naglieri’s actually being
    disciplined for a CNA’s deficient performance occurred while Naglieri was acting as a
    unit manager, not a floor nurse.
    Belgrove responds by citing Baumrind’s and Naglieri’s testimony that floor nurses
    were held responsible and were “basically instructed” on the possibility of being held
    responsible, A.215, and argues that this sufficed to show a prospect of consequences. In
    its view, actual examples are not required. See Belgrove Reply 11-12 (citing Lakeland
    Health Care Assoc., LLC v. NLRB, 
    696 F.3d 1332
    , 1346 (11th Cir. 2012)). To begin, we
    10
    note that the Regional Director did not require Belgrove to show that a floor nurse had
    actually been disciplined for failing to oversee CNAs. Instead, the Regional Director
    focused on the lack of any evidence—actual or circumstantial—supporting the existence
    of such accountability. The Regional Director noted that the record contained no
    evidence to show that this accountability might affect a floor nurse’s “terms and
    conditions of employment.” Golden 
    Crest, 348 N.L.R.B. at 731
    . Indeed, there was no
    testimony, for example, that LPN performance reviews included a criterion for CNA
    management nor any written policy in the record that floor nurses might face progressive
    discipline for oversight failures. Further, Baumrind failed to identify even specific
    hypothetical examples of conduct that would trigger some form of accountability. Cf.
    Lakeland Health Care 
    Assoc., 696 F.3d at 1346
    (recounting three specific hypotheticals
    proffered by the employer’s director of nursing). Therefore, on this record, the Regional
    Director was entitled to conclude that Belgrove failed to show that LPNs faced even a
    prospect of adverse consequences. See NSTAR Elec. 
    Co., 798 F.3d at 17
    .
    3. Suspend, Discharge, Discipline
    Third, Belgrove contends floor nurses are supervisors because they discipline
    CNAs. The Regional Director found that given the “paucity of evidence adduced
    regarding floor nurses issuing discipline, [Belgrove] has not satisfied its burden to prove
    that floor nurses possess and exercise the authority to discipline CNAs.” A.441.
    Here, again, we agree with the Board and Regional Director that Belgrove failed
    to satisfy its burden. The evidence contained no record of LPNs formally disciplining
    CNAs under Belgrove’s progressive discipline policy, and only three instances of
    11
    Naglieri’s issuing written warnings to CNAs. However, in those instances, Naglieri
    disciplined in her capacity as acting unit manager. We also find unpersuasive, in light of
    the record, Belgrove’s argument that floor nurses’ verbal warnings and “write ups”
    constitute discipline because they affect CNA job status. Naglieri did testify that she has
    issued verbal warnings as a floor nurse. It is not clear, however, that Naglieri’s verbal
    warnings played any role in Belgrove’s progressive discipline policy. At most, the record
    shows that floor nurses make a note of a verbal warning that would “be left for the
    director of nursing and the administrator for when they came back into the building.”
    A.177. Unlike house supervisors, who appear to have the authority to add notes to
    employee files, floor nurses only “communicate[]” the incident to their superiors, who
    then determine what course of action to take. A.74. Administrator Baumrind’s specific
    example also highlighted Belgrove’s evidentiary deficiency. She referenced only one
    incident where a floor nurse issued a verbal reprimand to a CNA who was taking an
    unauthorized break. But Baumrind could not recall whether any notation had been made
    in the CNA’s file and could only say that Belgrove’s policy requires the Director of
    Nursing to follow up. Accordingly, we see no reason to disturb the Regional Director’s
    conclusion that Belgrove failed to show that floor nurses discipline CNAs.
    4. Adjust Grievances
    Belgrove finally asserts that floor nurses are supervisors because they adjust
    grievances. The Regional Director rejected this statutory basis to finding supervisory
    status, concluding that minor grievances such as personality conflicts between CNAs are
    not sufficient to confer supervisory status. The Board held, as an alternative ground, that
    12
    regardless of whether the grievance was major or minor, the floor nurses did not use
    independent judgment. On appeal, Belgrove asserts that floor nurses clearly adjust
    grievances because if the CNA has a problem with a resident, the floor nurse can reassign
    the CNA to another resident. It is unclear, as the Board points out, however, that
    resolution of patient complaints is relevant to this assessment. Regardless, as we noted
    above, there is no evidence that LPN Naglieri used independent judgment in transferring
    or assigning CNAs. Thus, we reject Belgrove’s argument as to this basis.
    B. LPNs serving as Unit Managers or House Supervisors
    Alternatively, Belgrove urges that occasional LPN service as unit manager or
    house supervisor renders them supervisors within the meaning of the Act. The Regional
    Director never considered whether persons in these positions exercised supervisory
    authority and instead found that LPNs did not spend sufficient time in those positions to
    warrant further consideration of its claim.
    The Board considers an employee who spends “part of the time as a supervisor
    and the rest of the time as a unit employee” to be a supervisor under the Act when that
    employee “spends a regular and substantial portion of his/her work time performing
    supervisory functions.” 
    Oakwood, 348 N.L.R.B. at 694
    . “‘[R]egular’ means according to
    a pattern or schedule, as opposed [to] sporadic substitution.” 
    Id. Although the
    Board has
    not adopted a strict numerical definition of regular or substantial, it has found that
    employees that spend ten or fifteen percent of their total time performing supervisory
    functions constitute supervisors. 
    Id. (citing Swift
    & Co, 
    129 N.L.R.B. 1391
    (1961);
    Archer Mills Inc., 
    115 N.L.R.B. 674
    (1956)).
    13
    Here, Belgrove argues that its records show that LPNs acted as unit manager or
    house supervisor more than fifteen percent of the time. But LPNs who served in those
    positions did so only temporarily and sporadically, either because a particular unit
    manager or house supervisor took the day off, went on vacation, or the position became
    vacant. When the person returned or the position was filled, LPNs returned to their
    regular service as floor nurses. Indeed, there was also evidence in the record that only
    Registered Nurses could fill the positions on a full-time basis.
    We do not think Belgrove’s cited authority, NLRB v. Florida Agr. Supply Co., Div.
    of Plymouth Cordage Co., 
    328 F.2d 989
    (5th Cir. 1964), helps its argument either. There,
    the court found that mechanics were supervisors where they regularly spent three months
    of the year performing supervisory duties, while spending only five percent of remaining
    nine months on such duties. Here, although Naglieri’s temporary service was quite
    lengthy, there was no evidence that LPNs served on a regular schedule. The staffing
    coordinator would simply call an LPN who she thought might volunteer to fill in. We
    therefore conclude that the record supported the Board’s conclusion that LPN service as
    unit managers or house supervisors did not confer supervisory status under the Act.
    III. Conclusion
    For the foregoing reasons, we find that substantial evidence supported the Board’s
    conclusion that Belgrove’s LPNs were not statutory supervisors under Section 2(11) of
    the Act. Accordingly, Belgrove’s Petition for Review is DENIED. The NLRB’s
    Application for Enforcement of its Order is GRANTED.
    14