Lakeland Health Care Associates, LLC v. National Labor Relations Board , 696 F.3d 1332 ( 2012 )


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  •                Case: 11-12000        Date Filed: 10/02/2012      Page: 1 of 52
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    Nos. 11-12000, 11-12638
    N.L.R.B. Case No. 12-CA-27044
    LAKELAND HEALTH CARE ASSOCIATES, LLC,
    Petitioner-Appellant-Cross-Appellee,
    versus
    NATIONAL LABOR RELATIONS BOARD,
    Respondent-Appellee-Cross-Appellant.
    Petitions for Review of a Decision of the
    National Labor Relations Board
    (October 2, 2012)
    Before TJOFLAT and PRYOR, Circuit Judges, and HUCK,* District Judge.
    *
    Honorable Paul C. Huck, Senior United States District Judge for the Southern District of
    Florida, sitting by designation.
    Case: 11-12000       Date Filed: 10/02/2012       Page: 2 of 52
    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.
    1
    All of the LPNs at issue in this case also serve as “team leaders”—a term which
    Lakeland uses interchangeably with the term “charge nurses.” For convenience, we use the term
    “team leaders” as the umbrella term for both LPNs and Resident Nurses (“RNs”) who perform
    the functions of team leaders / charge nurses. We assign no significance to our use of one term
    over the other.
    2
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    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. See 
    29 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
    2
    As a general rule, NLRB orders in representation proceedings are not reviewable by the
    courts unless and until the employer has refused to bargain with the union once the union has
    been certified. See Boire v. Greyhound Corp., 
    376 U.S. 473
    , 477-79 (1964). In such cases,
    section 9(d) of the Act, 29 U.S.C. 159(d), provides that the findings in the underlying
    3
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    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
    recognize and 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
    . When reviewing an order of
    the Board, we are “bound by the Board’s factual findings if they are supported by
    representation proceeding are made a part of the record and are subject to review on appeal.
    Boire, 
    376 U.S. at 477-79
    . We refer to the Regional Director’s decision throughout this opinion
    as a decision of the “Board.”
    4
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    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. 1984); see also 
    29 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.’”
    5
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    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
     (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. See
    
    29 U.S.C. § 157
     (“Employees shall have the right to self-organization . . . .”). If
    they are “supervisors,” they are not. See 
    29 U.S.C. § 152
    (3) (“The term
    ‘employee’ . . . shall not include . . . any individual employed as a supervisor . . .
    .”).
    6
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    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 (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
     (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
    7
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    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
    8
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    investigation and frequently result in termination. Level one coachings, which are
    issued for more minor infractions such as tardiness or failing to clock out for
    lunch, require the employee and his or her “direct supervisor” to agree to a plan to
    address the issue. Employees with four active level one coachings are
    automatically terminated. We review the evidence related to LPN involvement in
    level two and level one coachings independently.
    1.    Level Two Coachings
    Lakeland maintains that the LPNs are supervisors under the Act because
    they have the independent discretionary authority to initiate and implement level
    two coachings through which they can effectively suspend and terminate CNAs.
    The Board rejected this argument, reasoning that the record establishes only that
    the LPNs are responsible for reporting employee misconduct. That is, according
    to the Board, to the extent that the LPNs even have disciplinary authority, the
    exercise of such authority does not require the use of independent judgment.
    While we are mindful of the limited nature of our review in this appeal, this
    is not a case in which we merely disagree with the Board’s conclusions. Our
    review of the record as a whole reveals that the Board meticulously excluded or
    disregarded record evidence, which, when taken into account, compels a different
    result. See Northport, 
    961 F.2d at 1552
    .
    9
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    With regard to the first prong of the analysis required under section 2(11) of
    the Act–whether the employee has the authority to perform one of the twelve
    supervisory functions–the Board rejected Lakeland’s testimonial and documentary
    evidence as being in conflict, inconclusive, or conclusory. It was none of these.
    The written job description for LPN charge nurses (team leaders) provides that the
    “primary purpose of the Charge Nurse is to provide direct nursing care to the
    residents, and to supervise the day-to-day nursing activities performed by the
    [CNAs].” To this end, LPNs are charged with ensuring, among other things, that
    nursing personnel: “are in compliance with their respective job descriptions,” “are
    performing their work assignments in accordance with acceptable nursing
    standards,” and “follow the department’s established policies and procedures.”
    The job description also provides that LPNs shall “[i]nterpret the department’s
    policies and procedures to personnel, residents, visitors, and government agencies
    as required,” and “[m]ake recommendations for revisions” to the policies and
    procedures.3
    The record establishes that the LPNs fulfill these delegated supervisory
    responsibilities, in part, through Lakeland’s coaching program. Lakeland’s
    3
    The job description also provides under the headings “Leadership” and “Supervisory
    Authority” that an LPN “[r]eports performance related issues of CNAs to Nursing Supervisor.”
    As discussed below, we do not take this to mean, as the Board suggests, that the LPNs’ only role
    in the disciplinary process is to report employee misconduct.
    10
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    Director of Nursing, Garth Swearingen, testified that the LPNs “are considered to
    be leaders of their team” and that, if they saw a CNA not performing his or her job
    correctly, “they certainly would be able to coach them, talk to them, give them a
    verbal warning, or do any coaching that they would need to do that . . . .”
    Swearingen further confirmed that the coaching forms prepared and issued by
    LPNs are for discipline, and, on cross-examination, testified that LPNs are “very
    capable of coaching somebody at a Level 2, and they’re also very capable of
    suspending any CNA. They’re capable of sending them home. This testimony is
    consistent with Swearingen’s testimony elsewhere in the record:
    Q:     And just to clarify the issuance of a Level 2
    coaching plan, that results in somebody being - -
    A:     That’s very serious.
    Q:     Well, but it results in somebody being told, “Don’t
    come back here ‘til the investigation’s over,”
    right?
    A:     That’s right.
    Q:     That’s being sent home?
    A:     Immediate suspension. That’s suspension
    immediately.
    ....
    Q:     And the team leaders can do that, right?
    11
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    A:      They can.
    Q:      And they do?
    A:      And they do. And they have.
    This testimony stands uncontradicted.4 Moreover it is consistent with the
    testimony of Lakeland’s Daytime Shift Supervisor, Tammy Baxter, which is also
    uncontradicted:
    Q:      Based on your knowledge of the Level 2 coaching
    process, a team leader LPN would have the
    authority to issue a Level 2 coaching, correct?
    A:      Yes.
    Q:      And under a Level 2 coaching and the facility’s
    policy, is an employee automatically suspended
    upon receipt of a Level 2 coaching?
    A:      Yes.
    Q:      So is it fair to assume that if [an LPN] issued a
    Level 2 coaching to [a CNA] that she would have
    been suspended pending investigation?
    A:      She would have sent her home.
    Both Swearingen and Baxter followed this testimony with specific examples of
    LPNs who effectively suspended or terminated a CNA through the level two
    4
    At oral argument, the Board was given the opportunity to demonstrate where in the
    record this testimony was in any respect contradicted. It failed to do so.
    12
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    coaching process. Indeed, Baxter recounted one such example of a level two
    coaching wherein she personally witnessed an LPN conduct the termination of a
    CNA.5
    Nor should this evidence have been disregarded because, according to the
    Board, the examples cited by Swearingen and Baxter were “isolated” or
    “sporadic.” As Lakeland points out, given that level two coachings are reserved
    for the most serious infractions, one would reasonably expect that such
    occurrences would be infrequent. Such infrequency does not suggest a lack of
    disciplinary authority. Rather, it indicates only that the LPNs had only “isolated”
    or “sporadic” opportunities to exercise this authority over the CNAs. The Board’s
    task in this case was to determine whether the LPNs have been delegated the
    authority to issue level two coachings, and whether, by virtue of that authority,
    they could effectively discipline, suspend, and recommend the termination of
    CNAs. The frequency with which an employee exercises disciplinary
    authority–authority that, in an ideal workplace, will be exercised infrequently or
    sparingly–cannot be determinative of the existence of supervisory authority. See
    5
    Both Swearingen and Baxter testified regarding an incident when an LPN issued a level
    two coaching to a CNA after the CNA permitted a patient to smoke while using supplemental
    oxygen. Swearingen testified that the LPN was involved in both the investigation and the
    decision to terminate the CNA. Baxter, who testified that she spoke with the LPN who issued
    the coaching, confirmed these facts. Baxter also testified that she personally witnessed the LPN
    perform the CNA’s termination.
    13
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    Caremore, Inc. v. NLRB, 
    129 F.3d 365
    , 369 (6th Cir. 1997).6
    With regard to the second prong of the analysis required under section 2(11)
    of the Act–whether exercise of the authority requires independent judgment–the
    Board concluded that, in issuing level two coachings, the LPNs merely report
    employee misconduct to management, after which time management conducts an
    investigation and determines the appropriate discipline. To be sure, we take no
    issue with the Board’s articulation of the appropriate legal standard. As noted by
    the Board in Oakwood Healthcare, Inc., 
    348 N.L.R.B. 686
    , 693 (2006)
    (“Oakwood”), the exercise of “independent judgment” is to be contrasted with
    actions that are “merely routine or clerical.” To exercise independent judgment,
    the individual “must at minimum act, or effectively recommend action, free of the
    control of others and form an opinion or evaluation by discerning and comparing
    data.” Id at 694. “[A] judgment is not independent if it is dictated or controlled by
    detailed instructions . . . .” 
    Id. at 693
    . “[T]he mere existence of company
    policies,” however, “does not eliminate independent judgment from
    decision-making if the policies allow for discretionary choices.” 
    Id.
    6
    We recognize that, in some cases, the infrequency with which purported authority is
    exercised may be relevant to determining whether such authority was actually vested in the
    employee. However, logic dictates that this consideration has little relevance when the authority
    claimed is the authority to discipline, suspend, or terminate, and the frequency of disciplinary
    incidents is limited.
    14
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    Here again, however, the Board conclusion cannot be squared with the
    record as a whole, which undermines the Board’s position that the LPNs merely
    report misconduct to their superiors and exercise no discretion in the level two
    coaching process. In reaching its decision, the Board again disregards compelling
    and uncontradicted evidence to the contrary. For example, Baxter testified that,
    when she was a team leader, she had the independent authority, which she
    exercised,7 to discipline CNAs without involving another level supervisor. She
    also testified that, upon learning of a CNA’s performance issue, she had the
    discretion to determine whether, based upon the seriousness of the infraction, to
    prepare a written coaching form or to resolve the issue only by speaking with the
    CNA directly (i.e., by issuing a verbal warning directly to the CNA). Swearingen
    likewise testified that, if a team leader learned of a performance issue, they
    “certainly would be able to coach them, talk to them, give them a verbal warning,
    or do any coaching that they would need to do that . . . .” He later added, “[t]he
    LPN can take it on herself to do a Level 2 coaching anytime she chooses to do that
    . . . .” “[T]hey have full authority at any time, they don’t need the direction of
    7
    The example cited by Baxter involved a situation wherein a CNA under her supervision
    was not completing her assigned work, and, when Baxter approached her about the issue, the
    CNA “got in [her] face” and threatened her. Baxter wrote the CNA up, sent her home, and
    recommended to Swearingen that she be terminated. The CNA was terminated by the following
    evening.
    15
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    anybody, at any time that they want to they can write up an employee.” This
    unrebutted testimony establishes that, at a minimum, LPNs possess the
    discretionary authority to determine whether formal discipline is warranted in the
    first place. Yet, this testimony did not factor into the Board’s analysis of this
    issue.
    The language of Lakeland’s employee handbook and level two coaching
    form also compel the conclusion that the LPNs exercise independent judgment.
    The employee handbook and the coaching form list over a dozen actions that
    would constitute violations of Lakeland’s level two “customer service
    standards”–violations that, as noted above, would require a CNA’s immediate
    suspension and, possibly, termination. While it is true that some of these actions,
    such as “[s]leeping on the job” “ or “2 No Call/No Shows,” can be identified as
    violations without the exercise of independent judgment, others, such as
    “[u]nauthorized disclosure of confidential information,” “[n]egligent conduct
    which results in the damage to the facility, or customer property,” “harassment,” or
    “fraudulent activity,” plainly cannot. In such cases, finding a CNA in violation of
    Lakeland’s customer service standards (a finding with immediate and severe
    consequences) necessarily requires the LPN to exercise judgment as to what
    information is “confidential” and what conduct rises to the level of “negligence,”
    16
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    “harassment,” or “fraud.” Further, the employee handbook and coaching form
    also provide that the list of activities described therein that could constitute a level
    two violation is not exhaustive. In other words, the LPNs can independently
    determine that yet other actions are sufficiently serious so as to warrant a CNA’s
    immediate suspension pending an investigation.
    Critically, rather than focusing on this and other evidence of independent
    judgment before it, the Board’s decision on this issue rests entirely on speculative
    inferences from what the evidence could or might have shown. For example, the
    Board clearly placed considerable weight on the fact that the level two coaching
    form “does not indicate whether the LPN completing the form is the one who
    suspends the CNA, or whether the LPN does so independently or needs the
    approval of a nursing supervisor or unit manager.” The Board also stressed that
    the form “does not have a space for any recommendation by the LPN completing
    the form, and the Level Two coaching plans in the record do not discuss the LPN’s
    recommendation.” Be that as it may, the fact that the forms in question could have
    been drafted differently does not establish, as the Board concluded, that the LPNs
    who prepared them did not exercise independent judgment. Likewise, the fact
    that “[n]one of the LPNs who purportedly completed the Level Two coaching plan
    forms in the record testified” is not reason enough to ignore the undisputed
    17
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    testimony of the managers who testified as to their own knowledge regarding
    those LPN coachings.
    In light of this uncontradicted testimony, the language of Lakeland’s
    employee handbook, the 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
    18
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    2.      Level One Coachings
    The Board also determined that the LPNs’ involvement in level one
    coachings does not establish their supervisory status. Specifically, the Board
    concluded that there is no direct “nexus” between the issuance of level one
    violations and future disciplinary action. The Board also found that the evidence
    presented on this issue was either “vague,” and should therefore be disregarded, or
    merely established that level one coachings are issued automatically without the
    exercise of independent judgment. These conclusions are not supported by the
    evidence.
    As a starting point, the record makes clear that the issuance of level one
    coachings, in and of itself, is a form of discipline. The employee handbook
    provides that employees who fail to meet Lakeland’s customer service standards
    will receive a level one coaching plan “developed by the employee and his/her
    direct supervisor”–in the case of CNAs, an LPN or RN team leader. The level one
    coaching forms contain a space for the team leader and the CNA to describe the
    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.
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    reason for the coaching, the coaching plan, and any additional corrective action or
    training necessary. The employee’s “direct supervisor,” who signs the level one
    coaching form next to the line designated “supervisor signature” or “coach’s
    signature,” is charged with “implement[ing]” the plan. The plans “are
    permanently filed in the employee’s personnel file,” and, if not satisfactorily
    completed, “remain active regardless of the date of issue.” An employee who has
    four active level one coaching plans will be terminated.9
    Moreover, the Board disregarded undisputed evidence of LPNs disciplining
    CNAs through coaching plans principally on the basis that Lakeland presented no
    evidence that a CNA had been terminated as a result of multiple pending level one
    coachings. For the reasons we discuss above, we reject the notion that the Board
    may infer solely from the lack of CNA terminations resulting from level one
    coachings that LPNs are not vested with the authority “effectively to recommend”
    their termination. Similarly, the fact that CNAs receive “coaching” before
    receiving other, more serious forms of discipline such as suspension or
    termination–which may or may not need approval from the “chain of
    9
    The uncontradicted evidence establishes that LPNs disciplined CNAs on numerous
    occasions through the level one coaching process.
    20
    Case: 11-12000       Date Filed: 10/02/2012       Page: 21 of 52
    command”–does not make coaching any less of a disciplinary action.10 It is plain
    10
    The Board also relies on the testimony of Lakeland’s Unit Manager, Carol Hiner, who
    stated that, when she was hired, she was told by Swearingen that “the immediate supervisors
    needed to be the ones to do the coachings; as far as their disciplinary action, they had to be
    follow-up [sic] with the chain of command.” On this point, we agree with the reasoning of the
    Sixth Circuit in Caremore:
    [T]he NLRB relies heavily on the fact that the evaluations and
    disciplinary notices filed by the LPNs were subject to review by the
    Administrator. But the [Act] does not require, for example, that an
    individual possess authority to fire an employee in order to be
    considered a supervisor; it is sufficient that the individual has the
    power “effectively to recommend” that an employee be fired.
    
    129 F.3d at 369
    . Furthermore, we note that the Board’s analysis ignored unrefuted testimony to
    the contrary from Baxter on this point–evidence that she, in fact, exercised her independent
    authority to discipline CNAs:
    Q:      [W]hat information was relayed to you and the other team
    members as far as the scope of your authority for issuing
    the coachings?
    A:      That we were responsible for those patients on the hall, and
    that we were responsible for making sure the CNAs did
    their duties and if not, it was to be addressed.
    Q:      So, was it your understanding that you had independent
    authority to discipline a CNA without being required to
    involve another level supervisor?
    A:      Yes.
    Q:      And did you engage in that practice - -
    A:      Yes.
    Q:      - - during your tenure as a team leader at Wedgewood?
    A:      Yes.
    21
    Case: 11-12000    Date Filed: 10/02/2012   Page: 22 of 52
    from the record that there is a nexus between the authority delegated to the LPNs
    to issue level one coachings and the discipline, suspension, and effective
    recommendation of termination of CNAs.
    We also cannot accept the Board’s rejection of the testimony establishing
    that the LPNs exercise independent judgment in issuing level one coachings solely
    on the basis that it was “vague.” Lakeland’s evidence on this point was neither
    refuted nor vague. For example, Baxter, when asked why she believed an LPN did
    not ask her permission before issuing a level one coaching, replied:
    A:     Because she knew she had authority to do it. That
    was her hall and her patient, and it was the aides
    on that hall that weren’t doing what they needed to
    do.
    Q:     So Ms. McQuain did not need your permission to
    issue a Level 1 coaching to the CNA for not
    wearing a gait belt?
    A:     No.
    Likewise, Carol Hiner, Lakeland’s Unit Manager, estimated that approximately 70
    percent of coaching issued to CNAs are issued and handled solely by LPNs. As
    noted above, “the Board cannot ignore the relevant evidence that detracts from its
    findings.” Northport, 
    961 F.2d at 1550
    .
    Further, this testimony is consistent with and buttressed by the provisions of
    Lakeland’s employee manual and the more than 50 level one coaching plans that
    22
    Case: 11-12000    Date Filed: 10/02/2012   Page: 23 of 52
    were introduced into evidence. These documents, which were not contested,
    objectively refute the Board’s position that the issuance of level one coaching
    plans is merely “routine” or “clerical.” The employee manual, for example,
    describes twenty non-exclusive “examples” of customer service standards, which,
    if not met, could lead to level one coaching discipline. To list a few, the program
    requires that employees “[f]ollow the Facility’s policy and procedures and
    Facility’s standards of practice,” “[a]lways act professional, respectful, and have a
    positive attitude,” “[d]emonstrate flexibility in accepting assignments,”
    “[m]aintain resident confidentiality,” and “[a]void disruptive actions or conduct in
    the workplace . . . .” Naturally, enforcing these standards requires more than
    merely checking an employee’s time sheets and/or reporting his or her misconduct
    to superiors, as the Board concluded. Enforcement of these standards requires, for
    example, independent judgment as to what is “respectful,” “professional,”
    “flexible,” and “disruptive,” with respect to the CNAs providing adequate patient
    care.
    The level one coaching forms likewise illustrate how the LPNs exercise
    independent judgment. As noted above, each form contains a section labeled
    “Coaching Plan” wherein the employee and the “coach” (an RN or LPN team
    leader) agree to a plan to help the employee meet Lakeland’s customer service
    23
    Case: 11-12000        Date Filed: 10/02/2012       Page: 24 of 52
    standards. For example, in a coaching plan dated April 6, 2008, which reflects
    that the “coach” was an LPN and the “employee” was a CNA, the CNA agreed to
    attend a customer service “inservice training” the following week. The plan
    indicates that there would be an additional review in 30 days or earlier, depending
    on whether there were any further complaints. Similarly, a coaching plan dated
    September 9, 2008, also prepared by a CNA and an LPN, addresses an instance
    wherein a CNA failed to perform her work and act professionally in front of a
    patient. The plan reflects that the CNA and LPN reviewed the customer service
    standards together and contains a comment that the CNA “need[s] to display
    positive attitude and continue to maintain good rapport [with] residents.” These
    and the other plans in the record demonstrate that the LPNs must, in every instance
    of discipline (with the exception, perhaps, of attendance violations), perform an
    individual evaluation of the CNA’s shortcomings and develop a plan addressing
    the issue.
    On these facts, we find that the Board’s conclusion that LPNs do not have
    the authority to discipline, suspend, or effectively recommend the termination of
    CNAs through level one coaching was not supported by substantial evidence.11
    11
    The dissent maintains that we “fail[ ] to mention significant testimony that supports the
    contrary finding by the Board.” Dissent at 43. In particular, the dissent cites to the testimony of
    Rebecca Ward, an LPN called as a witness by the Board, who testified that she personally did not
    consider herself a supervisor, that she has never hired, fired, promoted, or disciplined a CNA,
    24
    Case: 11-12000        Date Filed: 10/02/2012       Page: 25 of 52
    C.      Authority to Responsibly Direct and Assign CNAs
    Although we find unreasonable the Board’s conclusion that the LPNs
    involvement in CNA coaching does not make them supervisors under the Act, for
    the sake of thoroughness, we will also consider whether the Board’s determination
    that the LPNs do not “responsibly direct” and “assign” CNAs is supported by
    substantial record evidence. Lakeland maintains that the LPNs have supervisory
    authority because they are accountable for the work of the CNAs under their
    supervision and because they assign and reassign CNAs specific tasks and shifts
    based upon the needs and conditions of the center, its staff, and its residents.
    1.     “Responsibly” Direct
    The Board concluded that “the LPN team leaders have the authority to
    direct CNAs,” noting that, “[t]he LPN team leaders ‘oversee the CNA’s [sic] job
    performance and act to correct the CNAs when they are not providing adequate
    care.’” DDE at 33 (citing Golden Crest Healthcare Ctr, 
    348 NLRB 727
    , 730
    and that she has never been instructed that she possesses such authority. The dissent’s reliance
    on this and similar evidence runs counter to the central reasoning of our decision. Whether an
    individual qualifies as a “supervisor” under the Act does not necessarily rest on his or her
    employer’s ability to provide actual examples of disciplinary authority. Rather, as we stress
    throughout this opinion, the Act directs the Board to evaluate the putative supervisor’s authority
    to discipline, suspend, and effectively recommend the termination of other employees. Where, as
    with Rebecca Ward, the record does not reflect that there were adequate opportunities for the
    putative supervisor to exercise such authority-authority which has been clearly delegated-the
    frequency with which he or she actually exercises this authority, if ever, is not probative of this
    central point.
    25
    Case: 11-12000        Date Filed: 10/02/2012       Page: 26 of 52
    (2006) (“Golden Crest”)). The parties likewise do not dispute whether the
    exercise of that authority requires independent judgement. Accordingly, our only
    task here is to determine whether the LPNs exercise that discretion
    “responsibly.”12
    For guidance on the meaning of “responsibly,” the parties direct us to the
    Board’s decision in Oakwood.13 In Oakwood, the Board held:
    [F]or 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 consequences may befall the one
    providing the oversight if the tasks performed by the
    employee are not performed properly. . . . Thus, to
    establish accountability for purposes of responsible
    direction, it must be shown that the employer delegated
    to the putative supervisor the authority to direct the work
    and the authority to take corrective action, if necessary.
    It also must be shown that there is a prospect of adverse
    consequences for the putative supervisor if he/she does
    not take these steps.
    12
    Lakeland devotes a section of its brief to arguing that LPNs’ involvement in the
    performance evaluation process for CNAs is indicative of the LPNs’ supervisory status, and
    directs the Court to extensive record testimony concerning the criteria of the evaluations and the
    impact of the evaluations on the work of the CNAs. However, such evidence would establish
    only that LPNs “direct” CNAs and exercise independent judgment in doing so, not that such
    direction was “responsible.” Because these issues are not in dispute, consideration of this
    evidence not required.
    13
    Because the term “responsibly” is ambiguous, we defer to the Board’s interpretation as
    long as it is reasonable. See Cent. Fla. Sheet Metal Contractors Ass’n., Inc. v. NLRB, 
    664 F.2d 489
    , 496 (5th Cir. 1981). All decisions of the former Fifth Circuit announced prior to October 1,
    1981, are binding precedent in this circuit. See Bonner v. Prichard, 
    661 F.2d, 1206
    , 1209 (11th
    Cir. 1981).
    26
    Case: 11-12000        Date Filed: 10/02/2012        Page: 27 of 52
    348 N.L.R.B. at 691-92. This framework draws a distinction between “those
    employees whose interests, in directing other employees’ tasks, align with
    management, and those whose interests, in directing other employees, is simply
    the completion of a certain task.” Id. at 692. “In the case of the former, . . . the
    directing employee will have, if and to the extent necessary, an adversarial
    relationship with those he is directing.” Id.
    Lakeland concedes that there is no evidence establishing that an LPN has
    ever been disciplined or discharged because of his or her failure to supervise
    CNAs. Nonetheless, Lakeland maintains that to establish that an employee
    “responsibly” directs another it is not necessary that the employer give specific
    examples of where “adverse consequences” befell an employee who failed to
    exercise proper supervision. Lakeland emphasizes that the Act requires only a
    prospect of adverse consequences. We agree.14
    14
    After the parties filed their briefs, the Board brought to the Court’s attention two recent
    decisions from the Seventh and Third Circuits involving the issue of “responsible direction”
    under the Act. See Rochelle Waste Disposal, LLC v. NLRB, 
    673 F.3d 587
     (7th Cir. 2012); Mars
    Home for Youth v. NLRB, 
    666 F.3d 850
     (3d Cir. 2011). In both of these cases, the respective
    courts upheld the Board’s decision finding that the putative supervisors did not responsibly direct
    other employees. In Mars Home, the Third Circuit noted that “[t]he record before the Board
    contained numerous examples of where assistant managers were not disciplined for the failure of
    resident assistants to follow their directions. Rather, the record shows that the assistant managers
    were disciplined for their own failings as managers.” 
    666 F.3d at 854
    . In Rochelle Waste, the
    Seventh Circuit explained that “the Board found no evidence that Jarvis actually suffered as
    ‘adverse consequence’ . . . . Where a lower level employee performs inadequately, and the
    purported supervisor is in fact not held accountable, it highly supports a finding that the
    purported supervisor is not actually at risk of suffering adverse consequences.” 
    673 F.3d at 596
    .
    27
    Case: 11-12000       Date Filed: 10/02/2012      Page: 28 of 52
    To begin with, Lakeland’s written job description for LPNs strongly
    indicates that they are accountable for the performance of the CNAs. Under the
    heading “Leadership,” the job description explicitly provides that the LPNs
    supervise CNAs. Further, the job description explains that the “primary purpose”
    of LPNs is to “provide direct nursing care to the residents, and to supervise the
    day-to-day nursing activities performed by nursing assistants.” To this end, the
    job description provides that the “essential duties” of LPNs are, among other
    things, to “[d]irect the day-to-day functions of the nursing assistants in accordance
    with current rules, regulations, and guidelines that govern the long-term care
    facility,” “[e]nsure that all assigned nursing personnel comply with the written
    policies and procedures established by the facility,” “[e]nsure that all nursing
    service personnel are in compliance with their respective job descriptions,” and
    “[m]ake daily rounds of [their] unit/shift to ensure that nursing service personnel
    are performing their work assignments in accordance with acceptable nursing
    The Seventh Circuit later added that, “Rochelle Waste does not point to anything in the record
    that shows that [the purported supervisor was] ‘at risk’ of an adverse consequence for the poor
    performance of other employees . . . .” 
    Id.
     Relying on these and other cases, the Board reasons
    that the absence in the record of any examples where an LPN was disciplined for the poor
    performance of a CNA, combined with the numerous examples of coachings that evidence
    misconduct by CNAs, conclusively establishes that the LPNs do not “responsibly” direct CNAs
    work. We, however, do not read these cases as holding that actual examples of “responsible”
    discipline are required under the Act. To the contrary, both Mars Home and Rochelle Waste
    reaffirm the Board’s determination in Oakwood that the Act requires only that the putative
    supervisor be at risk of suffering adverse consequences for the performance of others.
    28
    Case: 11-12000        Date Filed: 10/02/2012        Page: 29 of 52
    standards . . . .” (emphasis added). This evidence, while generally noted in the
    background section of the Board’s decision, was not considered in its analysis of
    responsible direction.
    We acknowledge that, standing alone, this “paper” evidence would likely
    not be sufficient to support a finding of supervisory status. Cf. Golden Crest 348
    N.L.R.B. at 731 (“But there must be a more-than-merely-paper showing that such
    a prospect [of adverse consequences] exists.”). As the Board has properly
    recognized, to base supervisory status solely upon a paper showing of titles or job
    descriptions would enable employers to design their policies in a manner that
    could effectively deprive non-supervisory employees of their right to collective
    bargaining under the Act. This concern, however, does not command an
    impossibly high evidentiary standard for establishing “prospective” consequences
    for the putative supervisor. Written policies, job descriptions, performance
    evaluations, and the like, when corroborated by live testimony or other evidence,
    are obviously relevant to the issue of responsible direction.
    In this case, Lakeland presented much more than a “paper showing” of
    responsible direction.15 Lakeland also presented unrebutted testimony establishing
    15
    In its brief, the Board relies heavily on Golden Crest to support its conclusion that the
    evidence presented by Lakeland was insufficient to establish that the LPNs’ direction was
    responsible. In that case, decided the same day as Oakwood, the Board held that Golden Crest,
    the employer, failed to establish that its LPNs responsibly directed the CNAs at its facility.
    29
    Case: 11-12000       Date Filed: 10/02/2012       Page: 30 of 52
    that LPNs are “responsible” for ensuring the CNAs’ compliance with Lakeland’s
    standards, and that they would be “written up” for failing to do so. For example,
    Lakeland’s Director of Nursing, Swearingen, testified:
    Q:      . . . Can a charge nurse be held responsible for a
    CNA not doing his or her job?
    A:      Yes.
    Q:      Have you seen that happen?
    A:      No.
    Q:      Well, but if there’s a problem with patient care,
    have nurses ever been -- have -- they are held
    responsible for that?
    A:      If they’re -- if a charge nurse saw a CNA do
    something to the resident that was against a
    standard practice, and I’ll give you an example, if
    they saw a CNA verbally abuse or physically
    abuse their resident, and if the charge nurse did
    not have that CNA leave the building, that charge
    nurse would be responsible, yes.16
    Golden Crest, like Lakeland, offered no examples, positive or negative, of actions taken as a
    result of the LPNs’ performance in directing the CNAs. Unlike this case, however, the only
    evidence offered by Golden Crest on the issue of responsible direction consisted of evaluation
    forms, which, among other factors, rated the LPNs on how well they “[d]irect[] CNAs to ensure
    quality of care.” 348 N.L.R.B. at 731. The Board found that the evaluation forms, standing
    alone, did not establish the supervisory status of Golden Crest’s LPNs.
    16
    Swearingen also testified to several other scenarios in which an LPN would be coached
    for the poor performance of a CNA. For example:
    Q:      If an LPN tells a CNA to turn a resident in a certain manner
    on this day and the CNA doesn’t do it, and the LPN knows
    30
    Case: 11-12000     Date Filed: 10/02/2012      Page: 31 of 52
    Likewise, Baxter testified:
    Q:    If a CNA has been coached that they are doing
    something improper, not very good at it, bedding,
    showering, toiletry, whatever, and they don’t seem
    to be improving on it, would an LPN be written up
    because of the performance of a CNA?
    A:    If the aide on the hallway is not doing their [sic]
    job and that nurse is aware that that CNA is not
    doing their [sic] job?
    Q:    Uh-huh.
    A:    Yes, I would write her up.
    Q:    Have you ever written up an LPN?
    A:    I have never had to. But I would. They are
    responsible for that hall.
    The Board disregarded this and other areas of testimony as “purely
    the CNA didn’t do what she was supposed to do, will that
    LPN be coached?
    A:    Yes.
    Q:    If an LPN tells a CNA to groom a resident in a certain
    manner and the CNA doesn’t do it and the LPN knows that,
    will the LPN be coached?
    A:    Yes. . . .
    31
    Case: 11-12000     Date Filed: 10/02/2012   Page: 32 of 52
    conclusory.” They were not. As noted above, under the Act, an employer may
    establish “responsible” direction by presenting evidence of prospective
    consequences. Swearingen’s and Baxter’s testimony provide specific examples of
    scenarios in which, they opined, an LPN would be held accountable for the actions
    of a CNA. Baxter’s unrefuted testimony also establishes that an LPN would be
    held accountable in such a situation through a “write up” (presumably coaching),
    which, as we note above, is a significant form of discipline. By focusing
    exclusively on the lack of examples where an LPN “has experienced . . . material
    consequences to her terms and conditions of employment . . . as a result of his/her
    performance in directing CNAs,”(emphasis added) the Board effectively ignored
    its own observation in Oakwood that a showing of prospective consequences is
    sufficient under the statute.
    Applying the framework of Oakwood, we conclude that the record as a
    whole establishes that the LPNs’ interests are “aligned with management” and that
    the LPNs would be held accountable for the poor performance of their CNAs.
    There was no evidence directly refuting this accountability. Accordingly, the
    Board’s conclusion that the LPNs do not responsibly direct CNAs was not
    supported by substantial evidence.
    32
    Case: 11-12000       Date Filed: 10/02/2012   Page: 33 of 52
    2.      Assignment
    Under the Act, the Board has interpreted the term “assign” as referring to
    “the act of designating an employee to a place (such as a location, department, or
    wing), appointing an employee to a time (such as a shift or overtime period), or
    giving significant overall duties, i.e., tasks, to an employee.” Oakwood, 348
    N.L.R.B. at 689. “In the health care setting, the term ‘assign’ encompasses the
    charge nurses’ responsibility to assign nurses and aides to particular patients.” Id.
    It does not encompass a “nurse’s ad hoc instruction that the employee perform a
    discrete task.” Id. Here, the Board concluded that, in terms of assigning duties to
    CNAs, Lakeland’s LPNs assign only “discrete tasks.” The Board also concluded
    that, while the LPNs are involved in assigning and reassigning CNAs to specific
    shifts, rooms, and residents, they do not use independent judgment in the exercise
    of such authority.
    a.   Tasks
    In determining that the LPNs do not assign “significant overall duties” to
    the CNAs, the Board drew a parallel between this case and an illustration provided
    in Oakwood. In Oakwood, the Board noted:
    [I]f a charge nurse designates an LPN to be the person
    who will regularly administer medications to a patient or
    a group of patients, the giving of that overall duty to the
    LPN is an assignment. On the other hand, the charge
    33
    Case: 11-12000    Date Filed: 10/02/2012   Page: 34 of 52
    nurse’s ordering an LPN to immediately give a sedative
    to a particular patient does not constitute an assignment.
    348 N.L.R.B. at 689. Based on this example, the Board concluded that the LPNs’
    specific assignments to CNAs, such as taking vital signs and preparing residents to
    visit doctors, were more akin to the Board’s example of routine, “discrete tasks”
    than the giving of an “assignment” under the meaning of that term in the Act.
    Lakeland responds that “LPNs assign daily tasks to CNAs that are not
    routine–they are medical in nature and dependent on the residents’ conditions–and
    change frequently depending upon the resident’s individual medical needs and any
    emergencies that arise.” The testimony which Lakeland cites bears this out.
    However, Lakeland’s assertion and the cited testimony only underscore the
    Board’s point: the tasks performed by the LPNs are situational, depending on
    particular needs as they arise. The record does not demonstrate that LPNs assign
    “significant overall duties” to LPNs. Therefore, we conclude that the Board’s
    determination on this narrow issue–the assignment of tasks–is supported by
    substantial evidence.
    b.    Scheduling
    Whether the Board was reasonable in concluding that the LPNs do not
    exercise independent judgment in scheduling CNAs is a different question. The
    facts material to this issue are not in dispute. Lakeland employs two unit
    34
    Case: 11-12000        Date Filed: 10/02/2012       Page: 35 of 52
    managers who work from 7:15 a.m. until 5:30 p.m., Monday through Friday, and
    three shift supervisors, two who work overlapping daytime shifts between 12:00
    p.m. and 11:00 p.m., Monday through Friday, and a third who works weekends
    from 7:00 a.m. until 11:00 p.m. Lakeland’s LPNs and CNAs work three shifts,
    seven days a week: 6:45 a.m. until 3:15 p.m.; 2:45 p.m. until 11:15 p.m.; 10:45
    p.m. until 7:15 a.m. During the third shift, seven days per week, LPNs are the
    highest-ranking employees on the premises. The Director of Nursing is on call 24
    hours per day, seven days per week, in case of an emergency.
    The parties acknowledge that responsibility for staffing and scheduling of
    CNAs lies, first and foremost, with a staffing coordinator who reports to the
    Director of Nursing. The staffing coordinator is charged with preparing the
    schedule on a monthly basis, as well as “unit shift assignment sheets” for the first
    and second shifts, Monday through Friday.17 The staffing coordinator testified
    that, in scheduling CNAs, she frequently takes into account requests from LPNs
    that certain CNAs be assigned (or not be assigned) to their hall. She added that:
    I don’t pick CNAs to work particular halls because I
    don’t know how well they work with the nurse or with
    the particular patients on [sic] a certain section. Only the
    nurses know that. They work with the CNAs closely.
    17
    The assignment sheets set forth, among other things, the unit, date, shift, and room
    assignments for the LPNs and the CNAs on their respective teams, as well as break and lunch
    times for each CNA on the team.
    35
    Case: 11-12000     Date Filed: 10/02/2012    Page: 36 of 52
    That’s why we allow them to choose their teammates
    basically.
    On the third shift and weekends, LPNs alone are responsible for preparing
    the assignment sheets. The record indicates that they do so at least in part based
    on the information the staffing coordinator has already placed on the assignment
    sheets. The record also indicates that LPNs, while not principally responsible for
    transferring CNAs between units, changing room assignments, and reassigning
    tasks between CNAs, have the authority to do so, and have exercised this authority
    in the past. Similarly, during the third shift and on weekends, LPNs have the
    authority to approve or deny CNA requests to leave work before the end of their
    shift. During the first and second weekday shifts, this authority lies principally
    with the unit manager, who takes into consideration the recommendation of the
    respective LPNs.
    The crux of this issue is whether, under this arrangement, the LPNs exercise
    independent judgment in scheduling (or recommending the scheduling of) CNAs
    to particular shifts, halls, etc., or whether they merely follow existing guidelines
    and directions while leaving judgment calls to their superiors. We have held that,
    “for an assignment function to involve independent judgment, the putative
    supervisor must select employees to perform specific tasks on the basis of a
    36
    Case: 11-12000     Date Filed: 10/02/2012   Page: 37 of 52
    judgment about the individual employee’s skills.” Cooper/T. Smith, Inc., 
    177 F.3d at 1265
    . The Board thus concluded that LPNs are not supervisors in this regard
    because Lakeland failed to establish that in making scheduling recommendations
    and modifications the LPNs matched the needs of specific patients with a
    particular CNA’s skills and training. Rather, the Board noted, such decisions
    appear to be based upon the personal preferences of the LPN or resident involved,
    or solely to balance the workload among CNAs–neither of which requires
    independent judgment. The Board was likewise not persuaded by the fact that the
    third (night) shift LPNs, while the highest-ranking employees on the premises
    during their shifts, have the independent authority to reassign CNAs in the event
    of no calls and no shows.
    The Board’s conclusions find support in the Ninth Circuit’s decision in
    Providence Alaska Medical Center v. NLRB, which, under similar facts,
    concluded that the employer’s charge nurses were not supervisors under the Act.
    
    121 F.3d 548
     (9th Cir. 1997). As in this case, the LPNs in Providence did not
    prepare the CNAs’ monthly schedule, but had the authority to assign nurses to
    particular residents at the beginning of each shift, and to reassign nurses if another
    nurse was absent or nearing overtime. The Ninth Circuit concluded that the LPNs’
    assignments were made “within the parameters of the supervisory nurse’s monthly
    37
    Case: 11-12000       Date Filed: 10/02/2012       Page: 38 of 52
    assignment schedule” and were a “routine activity that does not require the
    exercise of independent judgment.” 
    Id. at 552
    .18 The Ninth Circuit also concluded
    that the LPNs’ involvement in staffing and scheduling decisions was “more
    clerical than supervisory.” 
    Id. at 553
    .
    At the other end of the spectrum, however, the Fourth Circuit, also under
    similar facts, concluded that the “power to authorize schedule changes and
    reassign workers rises above the mere incidental direction of assistants.”
    Glenmark, 
    147 F.3d at 341
    . The Fourth Circuit found persuasive the fact that,
    “[f]or two out of three shifts during the day, and all three shifts over the weekend,
    there is no higher authority than the charge nurse . . . .” 
    Id.
     The Fourth Circuit
    explained:
    We cannot fathom the Board’s position that for more
    than two thirds of the week at a nursing home providing
    twenty-four hour care, where patient conditions can
    change on a moment’s notice, there is no one present at
    the facility exercising independent judgment regarding
    proper staff levels and patient assignments.
    ....
    The authority to assign workers constitutes the power to
    put the other employees to work when and where
    needed. Such decisions are, in our view, inseverable
    from the exercise of independent judgment, especially in
    18
    We cited this reasoning with approval in Cooper, which involved the supervisory status
    of tug boat docking pilots. 
    177 F.3d at 1265
    . For the reasons that follow, we find that Cooper is
    distinguishable from this case as to the level of independent judgment exercised by the putative
    supervisor.
    38
    Case: 11-12000     Date Filed: 10/02/2012    Page: 39 of 52
    the health care context where staffing decisions can have
    such an important impact on patient health and
    well-being.
    Id. at 341-42 (internal citations, quotations, and bracketing omitted).
    To be sure, the standard adopted by the Fourth Circuit–whether the putative
    supervisor has the authority “to put the other employees to work when and where
    needed”–is arguably less rigorous than the standard that we have applied in this
    circuit, which requires that the supervisor assign work on the basis of the
    employees’ individual skills. Compare id. with Cooper/T. Smith, Inc., 
    177 F.3d at
    1265 (citing NLRB v. KDFW-TV, Inc., 
    790 F.2d 1273
    , 1279 (5th Cir. 1986)
    (“[T]he putative supervisor must select employees to perform specific tasks on the
    basis of a judgment about the individual employee’s skills.”) ). However, the
    thrust of that decision–finding untenable the Board’s position that LPNs
    mechanically follow established procedure in assigning and reassigning CNAs,
    even when they are the highest-ranking staff on the premises–applies with equal
    force in this case. As noted by Swearingen, the LPNs “are considered to be
    leaders of their team.” They seek to “assure the best possible care that they can
    give to those residents or patients that’s [sic] in that section by making sure that
    the CNAs do the job that they’re assigned to.” 
    Id.
     In view of this unrebutted
    evidence, we cannot accept the conclusion that the LPNs, who are charged with
    39
    Case: 11-12000    Date Filed: 10/02/2012   Page: 40 of 52
    “leading” Lakeland’s unit teams in order to insure proper patient care, and who are
    the highest-ranking employees during a third of Lakeland’s operations, have the
    authority to assign and reassign CNAs, but have no real flexibility in doing so.
    Viewing the record as a whole, we find the Board’s determination that the LPNs
    do not exercise independent judgment in assigning CNAs not supported by
    substantial evidence.
    IV.   CONCLUSION
    For these reasons, we GRANT Lakeland’s petition for review; the Board’s
    cross-petition for enforcement is DENIED; and the Board’s decision is
    VACATED.
    40
    Case: 11-12000    Date Filed: 10/02/2012    Page: 41 of 52
    PRYOR, Circuit Judge, dissenting:
    “[I]n reweighing the facts and setting aside the Board’s order,” the majority
    opinion “improperly substitute[s] its own views of the facts for those of the
    Board,” NLRB v. Enter. Ass’n of Steam, Hot Water, Hydraulic Sprinkler,
    Pneumatic Tube, Ice Mach. & Gen. Pipefitters of New York & Vicinity, Local
    Union No. 638, 
    429 U.S. 507
    , 532, 
    97 S. Ct. 891
    , 905 (1977), and fails to adhere
    to our deferential standard of review. As directed by Congress, “[t]his Court
    reviews the . . . factual findings [of the National Labor Relations Board] to ensure
    that they are supported by substantial evidence on the record as a whole.” NLRB
    v. Contemporary Cars, Inc., 
    667 F.3d 1364
    , 1370 (11th Cir. 2012) (citing 
    29 U.S.C. § 160
    (e)). Substantial evidence is “such relevant evidence as a reasonable
    mind might accept as adequate to support a conclusion,’” 
    id.
     (quoting Bickerstaff
    Clay Prods. Co. v. NLRB, 
    871 F.2d 980
    , 984 (11th Cir. 1989)), but it “is more
    than a mere scintilla of evidence.” 
    Id.
     “Provided any inferences drawn from the
    record were plausible, this Court may not overturn the Board’s determination even
    if it would make a different finding under a de novo review.” 
    Id.
     (citing Cooper/T.
    Smith, Inc. v. NLRB, 
    177 F.3d 1259
    , 1261 (11th Cir. 1999)). “This is an
    exceedingly narrow standard of review designed to allow disruption of the . . .
    decision [of the Board] only when the [Board] exercises its discretion ‘in an
    41
    Case: 11-12000     Date Filed: 10/02/2012   Page: 42 of 52
    arbitrary or capricious manner.’” 
    Id.
     (quoting Daylight Grocery Co. v. NLRB, 
    678 F.2d 905
    , 908 (11th Cir. 1982)). 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’ under [section] 2(11) of the
    [National Labor Relations Act],” Cooper/T. Smith, Inc., 
    177 F.3d at
    1262 n.3, 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,” 
    id. at 1262
    .
    Substantial evidence in three ways supports the findings by the Board that
    the licensed practical nurses at Lakeland lack any supervisory authority using
    independent judgment, 
    29 U.S.C. § 152
    (11). First, substantial evidence supports
    the finding by the Board that the licensed practical nurses lack the authority to
    discipline, suspend, or effectively recommend the termination of certified nursing
    assistants. Second, substantial evidence supports the finding by the Board that the
    licensed practical nurses do not responsibly direct certified nursing assistants.
    Third, substantial evidence supports the finding by the Board that the licensed
    practical nurses do not assign certified nursing assistants using independent
    judgment.
    A. Substantial Evidence Supports the Finding by the Board that the Licensed
    Practical Nurses Lack the Authority to Discipline, Suspend, or Effectively
    42
    Case: 11-12000     Date Filed: 10/02/2012    Page: 43 of 52
    Recommend the Termination of Certified Nursing Assistants.
    The majority opinion faults the Board for “meticulously exclud[ing] or
    disregard[ing] record evidence, which, when taken into account, compels” the
    finding that the licensed practical nurses possess the authority to discipline,
    suspend, and effectively recommend the termination of certified nursing assistants,
    Majority Opinion at 9, but the majority opinion fails to mention significant
    testimony that supports the contrary finding by the Board. Although Lakeland did
    not call any licensed practical nurses as witnesses to testify at the hearing about
    whether they possessed supervisory authority, the Board did. The licensed
    practical nurse the Board called provided unequivocal testimony that the licensed
    practical nurses neither possess nor exercise supervisory authority.
    Rebecca Ward, a licensed practical nurse who had worked as a licensed
    practical nurse at Lakeland for ten years and was “one of the most senior [licensed
    practical nurses] at [Lakeland],” testified that she did not consider herself to be a
    supervisor, and that neither she nor any other licensed practical nurse had attended
    daily management meetings. Ward had never hired, fired, transferred, or promoted
    a certified nursing assistant. Ward had never disciplined a certified nursing
    assistant. Ward had never suspended a certified nursing assistant, and she had
    never been instructed that she had the right to suspend certified nursing assistants.
    43
    Case: 11-12000        Date Filed: 10/02/2012   Page: 44 of 52
    On one occasion, Ward issued a level one coaching form to a certified nursing
    assistant who Ward felt “was rude to a resident,” but Ward did so only after she
    discussed the situation with her weekend supervisor, Sharon Stein, who is a
    registered nurse. Stein “instructed” Ward to issue the level one coaching form to
    the certified nursing assistant, and both Stein and Ward met with the certified
    nursing assistant to discuss the form. In the light of Ward’s testimony, the Board
    could have drawn a plausible inference that the licensed practical nurses lack the
    authority authority to discipline, suspend, or effectively recommend the discharge
    of certified nursing assistants.
    Putting aside Ward’s testimony, the evidence that the majority opinion cites
    to support its conclusion that the licensed practical nurses possess the authority to
    discipline, suspend, and effectively recommend the termination of certified
    nursing assistants does not compel that finding. The majority contends, for
    example, that the testimony of the director or nursing, Gartha Swearingen,
    establishes that the licensed practical nurses have the power to discipline, suspend,
    and effectively recommend the discharge of certified nursing assistants, Majority
    Opinion at 10–12, but a review of Swearingen’s testimony establishes that her
    statements about whether the licensed practical nurses possess that authority using
    independent judgment were, at best, ambiguous. After counsel for Lakeland
    44
    Case: 11-12000    Date Filed: 10/02/2012     Page: 45 of 52
    provided Swearingen with a copy of the level two coaching form about an incident
    in which a resident was burned after Tracie Stevens, a certified nursing assistant,
    allowed the resident to smoke while wearing an oxygen mask, counsel for
    Lakeland asked questions about the role that the licensed practical nurse who
    signed the form played in the investigation and termination of Stevens.
    Swearingen stated that Sheena Smith, the licensed practical nurse, was “involved”
    in the suspension and termination of Stevens, but Swearingen’s testimony does not
    compel a finding that the licensed practical nurse used independent judgment
    during her undefined “involvement” with the suspension and termination of
    Stevens:
    Lakeland: So [Stevens] was suspended, and there was an
    investigation conducted?
    Director of Nursing: Yes, there was.
    ...
    Lakeland: Okay. Now, what was the role of the [licensed
    practical nurse] in [Stevens’s] case? In this situation?
    Director of Nursing: The [licensed practical nurse] did the
    termination.
    Lakeland: And [the licensed practical nurse] was involved in the
    termination process?
    Director of Nursing: Yes, she was involved in it.
    Lakeland: Was [the licensed practical nurse] also involved in the
    45
    Case: 11-12000      Date Filed: 10/02/2012    Page: 46 of 52
    investigation process?
    Director of Nursing: Yes, she was.
    Lakeland: Now, Kelly Brady’s signature is there as well. Who’s
    that?
    Director of Nursing: Yes. She, on 4/13/09, she was the
    administrator.
    Lakeland: Okay. So she signed off on [Steven’s level two
    coaching form] as well, though, right?
    Director of Nursing: Yes.
    Lakeland: But it was the [licensed practical nurse] who was
    involved in both the investigation and the decision to terminate this
    [certified nursing assistant]?
    Director of Nursing: As part of the investigation, yes, [the licensed
    practical nurse] was involved, yes.
    A plausible inference can be drawn from Swearingen’s testimony that the licensed
    practical nurse who signed Stevens’s level two coaching form played some role in
    the investigation, suspension, and termination of Stevens, but Swearingen’s
    testimony does not compel a finding that the licensed practical nurse took an
    adverse employment action against Stevens using independent judgment. And
    even if it did, this isolated incident of a licensed practical nurse playing a role in
    the suspension of a certified nursing assistant together with the one other similar
    incident that the director of nursing described, would not have required the Board
    46
    Case: 11-12000     Date Filed: 10/02/2012   Page: 47 of 52
    to find that the licensed practical nurses are supervisors. We have stated that
    “nearly everyone at one time or another, under some condition, tells someone else
    what to do, but that one who engages in an isolated incident of supervision is not
    necessarily a supervisor under the Act.” TRW-United Greenfield Div. v. NLRB,
    
    716 F.2d 1391
    , 1395 (11th Cir. 1983).
    Tammy Baxter, a day shift supervisor and registered nurse who had
    previously performed the same role at Lakeland as the licensed practical nurses,
    provided more detail regarding the level two coaching form that Smith issued to
    Stevens, but Baxter’s testimony also fails to compel a finding that Smith
    suspended Stevens using independent judgment:
    Lakeland: Did Ms. Smith relay to you that Ms. Stevens was
    suspended?
    Baxter: Yes. She told me she was suspended.
    Lakeland: Okay. Did she relay to you how Ms. Stevens came to be
    suspended? In other words, she suspended her?
    Baxter: I don’t remember her saying exactly what happened at the
    time she was suspended. She just told me that she was suspended and
    that she wanted her terminated.
    The Board was not required to find that the licensed practical nurses at Lakeland
    are supervisors on the basis of this ambiguous testimony regarding sporadic
    incidences of discipline by the licensed practical nurses.
    47
    Case: 11-12000     Date Filed: 10/02/2012     Page: 48 of 52
    In the light of Ward’s testimony and the testimony of Swearingen and
    Baxter, a conflict in the evidence exists about whether the licensed practical
    nurses possess the authority to discipline, suspend, and effectively recommend the
    termination of certified nursing assistants, and the Board was entitled to resolve
    that conflict. The Board drew a plausible inference from this evidence that the
    licensed practical nurses lack that authority, and our “exceedingly narrow
    standard of review,” Contemporary Cars, Inc., 667 F.3d at 1370, requires us to
    enforce the order of the Board. But the majority opinion instead substitutes its
    view of the facts for the contrary finding by the Board.
    B. Substantial Evidence Supports the Finding by the Board that the Licensed
    Practical Nurses Do Not Responsibly Direct Certified Nursing Assistants.
    The majority opinion maintains that, although no evidence was introduced
    that a licensed practical nurse at Lakeland has been disciplined or discharged
    because of her failure to supervise a certified nursing assistant, Lakeland
    established a “prospect” that licensed practical nurses can be disciplined for
    failing to direct certified nursing assistants, see Majority Opinion at 27, but the
    record does not compel a finding of that “prospect.” Substantial evidence supports
    the decision of the Board that Lakeland failed to prove that licensed practical
    nurses can be held accountable for the actions of the certified nursing assistants.
    Although an employer can establish responsible direction by presenting
    48
    Case: 11-12000     Date Filed: 10/02/2012    Page: 49 of 52
    evidence that a purported supervisor faces the prospect of adverse consequences
    for the actions of a subordinate, see In re Oakwood Healthcare, Inc., 
    348 NLRB 686
    , 692 (2006), the Board was presented with evidence that the licensed practical
    nurses face no prospect of adverse consequences for the failings of the certified
    nursing assistants. The Board heard evidence that certified nursing assistants had
    engaged in gross misconduct–for example, Stevens allowed a resident to smoke
    while wearing an oxygen mask, which led to a serious injury to the resident–but
    no licensed practical nurse had been held accountable for that misconduct. As the
    Seventh Circuit recently explained, “[w]here a lower level employee performs
    inadequately, and the purported supervisor is in fact not held accountable, it highly
    supports a finding that the purported supervisor is not actually at risk of suffering
    adverse consequences.” Rochelle Waste Disposal, LLC v. NLRB, 
    673 F.3d 587
    ,
    596 (7th Cir. 2012). A reasonable mind would expect that the licensed practical
    nurse who was allegedly accountable for Stevens’s misconduct would have faced
    some adverse consequence for not preventing the serious injury to the resident
    who had smoked while wearing an oxygen mask. The Board was entitled to draw a
    plausible inference that, because no licensed practical nurse had been held
    accountable for that misconduct, the licensed practical nurses at Lakeland do not
    responsibly direct the certified nursing assistants. But the majority opinion instead
    49
    Case: 11-12000     Date Filed: 10/02/2012    Page: 50 of 52
    substitutes its view of the facts for the contrary finding by the Board.
    C. Substantial Evidence Supports the Finding by the Board that the Licensed
    Practical Nurses Lack the Authority to Assign Certified Nursing Assistants Using
    Independent Judgment.
    The majority opinion provides no persuasive support for its conclusion that
    the licensed practical nurses exercise independent judgment in scheduling certified
    nursing assistants. “[F]or an assignment function to involve independent
    judgment, the putative supervisor must select employees to perform specific tasks
    on the basis of a judgment about the individual employee’s skills.” Cooper/T.
    Smith, Inc., 
    177 F.3d at 1265
    . The parties do not dispute that the “responsibility
    for staffing and scheduling of [certified nursing assistants] lies, first and foremost,
    with a staffing coordinator who reports to the Director of Nursing,” Majority
    Opinion at 35, and that, when the licensed practical nurses prepare assignment
    sheets on the weekend “they do so at least in part based on the information the
    staffing coordinator has already placed on the assignment sheets.” Id. at 36. But
    the majority opinion nevertheless concludes that the licensed practical nurses use
    independent judgment to assign certified nursing assistants.
    The majority opinion “find[s] untenable the Board’s position that [the
    licensed practical nurses] mechanically follow established procedure in assigning
    and reassigning [certified nursing assistant], even when they are the
    50
    Case: 11-12000     Date Filed: 10/02/2012     Page: 51 of 52
    highest-ranking staff on the premises,” Majority Opinion at 39, but this reasoning
    fails. “Although on the . . . night . . . shifts the licensed practical nurses are the
    highest-ranking employees on the premises, this does not ipso facto make them
    supervisors.” NLRB v. Res-Care, Inc., 
    705 F.2d 1461
    , 1467 (7th Cir. 1983),
    abrogated on other grounds by NLRB v. Health Care & Ret. Corp. of Am., 
    511 U.S. 571
    , 
    114 S. Ct. 1778
     (1994). “A night watchman is not a supervisor just
    because he is the only person on the premises at night . . . .” 
    Id.
     The majority
    opinion reasons that the licensed practical nurses must exercise independent
    judgment to assign certified nursing assistants when they are the highest-ranking
    staff on the premises because Swearingen testified that licensed practical nurses
    “are considered to be leaders of their team,” Majority Opinion at 39 (citation and
    internal quotation marks omitted), but that vague testimony did not compel the
    Board to find that the licensed practical nurses have the authority to assign
    certified nursing assistants using independent judgment. Although the licensed
    practical nurses were sometimes the highest-ranking staff on the premises, the
    record establishes that the “Director of Nursing is on call 24 hours per day, seven
    days per week,” Majority Opinion at 35, and it is undisputed that the scheduling
    coordinator exercised the primary authority for scheduling certified nursing
    assistants. Based on this evidence, the Board was entitled to draw the plausible
    51
    Case: 11-12000     Date Filed: 10/02/2012     Page: 52 of 52
    inference that the licensed practical nurses do not exercise independent judgment
    in scheduling certified nursing assistants. But again the majority substitutes its
    view of the facts for the contrary finding by the Board.
    For all the foregoing reasons, I respectfully dissent. Our standard of review
    bars us from reweighing the evidence. I would deny the petition for review and
    enforce the order of the Board because substantial evidence supports its findings.
    52
    

Document Info

Docket Number: 11-12000, 11-12638

Citation Numbers: 696 F.3d 1332, 2012 WL 4492836, 194 L.R.R.M. (BNA) 2161, 2012 U.S. App. LEXIS 20544

Judges: Tjoflat, Pryor, Huck

Filed Date: 10/2/2012

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (20)

Daylight Grocery Company, Inc. v. National Labor Relations ... , 678 F.2d 905 ( 1982 )

Boire v. Greyhound Corp. , 84 S. Ct. 894 ( 1964 )

National Labor Relations Board v. Health Care & Retirement ... , 114 S. Ct. 1778 ( 1994 )

National Labor Relations Board v. Kentucky River Community ... , 121 S. Ct. 1861 ( 2001 )

trw-united-greenfield-division-v-national-labor-relations-board , 716 F.2d 1391 ( 1983 )

providence-alaska-medical-center-v-national-labor-relations-board-and , 121 F.3d 548 ( 1997 )

glenmark-associates-incorporated-dba-cedar-ridge-nursing-and , 147 F.3d 333 ( 1998 )

Bickerstaff Clay Products Company, Inc. v. National Labor ... , 871 F.2d 980 ( 1989 )

National Labor Relations Board v. Kdfw-Tv, Inc., a Division ... , 790 F.2d 1273 ( 1986 )

Caremore, Inc., D/B/A Altercare of Hartville, Petitioner/... , 129 F.3d 365 ( 1997 )

international-brotherhood-of-boilermakers-iron-ship-builders-blacksmiths , 127 F.3d 1300 ( 1997 )

National Labor Relations Board v. Hilliard Development Corp. , 187 F.3d 133 ( 1999 )

Northport Health Services, Inc., D/B/A Estes Nursing ... , 961 F.2d 1547 ( 1992 )

National Labor Relations Board v. United Sanitation Service,... , 737 F.2d 936 ( 1984 )

central-florida-sheet-metal-contractors-association-inc-v-national-labor , 664 F.2d 489 ( 1981 )

Larry Bonner v. City of Prichard, Alabama , 661 F.2d 1206 ( 1981 )

Cooper/t. Smith, Inc., Crescent Towing Co., Inc., ... , 177 F.3d 1259 ( 1999 )

NLRB v. Pipefitters , 97 S. Ct. 891 ( 1977 )

Mars Home for Youth v. National Labor Relations Board , 666 F.3d 850 ( 2011 )

Rochelle Waste Disposal, LLC v. National Labor Relations ... , 673 F.3d 587 ( 2012 )

View All Authorities »