Palmetto Prince George v. NLRB

Filing

PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion denying petition for review in 15-2143; granting motion for enforcement of agency order (FRAP 15) [999677238-2] in 15-2221. Originating case number: 10-CA-154373. [999959018]. [15-2143, 15-2221]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2143

PALMETTO PRINCE GEORGE OPERATING, LLC, d/b/a Prince George
Healthcare Center,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.

No. 15-2221

NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
PALMETTO PRINCE GEORGE OPERATING, LLC, d/b/a Prince George
Healthcare Center,
Respondent.

On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board. (10-CA-154373)

Argued:

September 21, 2016

Decided:

Before MOTZ, TRAXLER, and AGEE, Circuit Judges.

November 1, 2016

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Petition for review denied; cross-petition for enforcement
granted by published opinion. Judge Motz wrote the opinion, in
which Judge Traxler and Judge Agee joined.

ARGUED:
Jennifer
Marie
Fowler-Hermes,
WILLIAMS,
PARKER,
HARRISON,
DIETZ
&
GETZEN,
Sarasota,
Florida,
for
Petitioner/Cross-Respondent.
Meghan Brooke Phillips, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Respondent/CrossPetitioner.
ON BRIEF: John M. Hament, KUNKEL MILLER & HAMENT,
Sarasota, Florida, for Petitioner/Cross-Respondent.
Richard
Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General
Counsel, John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, Robert J. Englehart,
Supervisory
Attorney,
NATIONAL
LABOR
RELATIONS
BOARD,
Washington, D.C., for Respondent/Cross-Petitioner.

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DIANA GRIBBON MOTZ, Circuit Judge:
In this case, nurses sought to join a union and engage in
collective bargaining with their employer.

The National Labor

Relations Board found that the nurses could unionize, rejecting
the employer’s contention that they were ineligible supervisors
within

the

meaning

U.S.C. § 152(11).

of

the

National

Labor

Relations

Act,

When the employer refused to bargain with the

nurses’ union, the Board ordered the employer to do so.
employer then

filed

cross-petitioned

29

to

this

petition

enforce

its

for

review,

order.

and

the

Substantial

The
Board

evidence

supports the Board’s finding that the nurses are not supervisors
because their duties do not require the exercise of independent
judgment.

Therefore, we deny the employer’s petition and grant

the Board’s cross-petition.

I.
A.
Palmetto Prince George Operating, LLC, operates a nursing
home in Georgetown, South Carolina.

The nursing home provides

care twenty-four hours a day, seven days a week.
Palmetto’s
Nursing,

an

management

Assistant

team

Director

consists
of

of

Nursing,

a

Director

and

three

of
Unit

Managers (collectively the “Managers”).

The Managers monitor

and

care,

evaluate

the

quality

of

nursing
3

supervise

and

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discipline

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nursing

staff,

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and

arrange

the

schedules

and

assignments of the nursing staff.
The Center employs twenty-three nurses to staff its units:
six

registered

nurses

(LPNs)

patients,

nurses

(RNs)

and

(collectively,

answer

call

seventeen

the

lights,

licensed

“Nurses”).

administer

perform general patient care duties. 1

practical

All

assess

medications,

and

In addition to the Nurses,

the Center employs forty certified nursing assistants (CNAs).
The CNAs assist residents with daily tasks, such as helping them
bathe, repositioning them in bed, and aiding them in using the
restroom.

Palmetto’s handbook describes the Nurses as the CNAs’

“first line of authority,” and it places the Nurses above the
CNAs on its organizational chart.
B.
In

2015,

the

United

Manufacturing,

Energy,

Union

to

sought

Steel,

Allied

represent

bargaining representative.
an

election

petition

Paper

Industrial
the

Nurses

and

Forestry,

and

Service

as

their

Rubber,
Workers

exclusive

On January 12, 2015, the Union filed

with

the

Board.

At

the

pre-election

hearing before the Regional Director, Palmetto argued that the
Nurses

are

supervisors

and

therefore

1

have

no

collective

RNs and LPNs share the same duties, with the exception
that LPNs cannot sign assessments or administer small doses of
intravenous medications.
These differences do not bear on the
question of whether they are supervisors.
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bargaining rights under the National Labor Relations Act.

See

29 U.S.C. § 152(3) (2012).
Section 152(11) of the Act defines “supervisor” as:
[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.
Palmetto contends that the Nurses are supervisors because they
have the authority to discipline and responsibly direct the CNAs
and

must

use

authorities.

independent

judgment

in

exercising

those

two

The parties have stipulated that the Nurses lack

authority to perform any of the other ten functions listed in
§ 152(11).
The

Regional

Director

concluded

prove the Nurses are supervisors.

that

Palmetto

failed

to

Accordingly, the Regional

Director ordered an election, and the Nurses voted in favor of
having the Union represent them.
requested

that

Palmetto

After the election, the Union

recognize

it

representative and begin bargaining with it.

as

the

Nurses’

Palmetto refused,

and the Union filed a refusal-to-bargain charge with the Board.
The Board’s General Counsel then filed a complaint against
Palmetto alleging that it had committed unfair labor practices
in

violation

of

§§ 158(a)(1)

and
5

(5)

of

the

National

Labor

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Relations Act.
judgment,

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The Board granted the General Counsel summary

adopting

the

Regional

Director’s

findings

and

concluding that Palmetto had indeed violated §§ 158(a)(1) and
(5) of the Act.

Palmetto filed a petition for review with us,

and the Board filed a cross-petition to enforce its order.

II.
A.
We

review

the

Board’s

factual

findings

supervisory status for substantial evidence.

Glenmark Assoc.,

Inc. v. NLRB, 147 F.3d 333, 338 (4th Cir. 1998).
the

record

contains

enough

evidence

that

“a

regarding

We affirm if

reasonable

might accept [it] as adequate to support a conclusion.”

mind

Gestamp

South Carolina, LLC v. NLRB, 769 F.3d 254, 263 (4th Cir. 2014)
(internal quotation marks omitted).

We defer to the Board’s

factual findings even if we might have resolved factual disputes
differently.

Id.

The Supreme Court has held that § 152(11) establishes a
three-prong test for supervisory status.

See, e.g., NLRB v.

Kentucky River Cmty. Care, Inc., 532 U.S. 706, 712–13 (2001).
Employees

are

supervisors

if

they

(1)

have

the

authority

to

perform any one of the twelve functions listed in § 152(11) or
effectively recommend such action, (2) exercise that authority
in a manner that is not merely clerical or routine but requires
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the use of independent judgment, and (3) hold that authority in
the interest of the employer.

Id.

burden of proving all three prongs.

The employer bears the

Id. at 711–12.

do so by a preponderance of the evidence.

And it must

Pac Tell Group, Inc.

v. NLRB, 817 F.3d 86, 91 (4th Cir. 2016).
In this case, the parties dispute only the first and second
prongs of this test.

We need only address the second -- whether

the Nurses exercise authority requiring independent judgment.
The Act leaves the term “independent judgment” undefined.
Moreover, the Supreme Court has recognized that the term “is
ambiguous with respect to the degree of discretion required for
supervisory status.”
in original).

Kentucky River, 532 U.S. at 713 (emphasis

The Court explained that it is “undoubtedly true

that the degree of judgment that might ordinarily be required to
conduct a particular task may be reduced below the statutory
threshold

by

employer.”

detailed

orders

Id. at 713-14.

and

regulations

issued

by

the

The Supreme Court concluded that

“[i]t falls clearly within the Board’s discretion to determine,
within

reason,

what

scope

of

discretion

qualifies.”

Id.

Accordingly, a court defers to the Board’s interpretation of
“independent

judgment”

consistent with the Act.”

so

long

as

it

is

“reasonable

and

Id. at 711–12.

After the Supreme Court decided Kentucky River, the Board
explained that to exercise independent judgment, “an individual
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must at a minimum act, or effectively recommend action, free of
the

control

of

others

and

form

discerning and comparing data.”
348 NLRB 686, 693 (2006).

an

opinion

or

evaluation

by

In re Oakwood Healthcare, Inc.,

Crucially, the Board concluded in

Oakwood that “a judgment is not independent if it is dictated or
controlled

by

detailed

instructions,

whether

set

forth

in

company policies or rules, the verbal instructions of a higher
authority,

or

agreement.”

in

the

provisions

of

a

collective

bargaining

Id.
B.

Palmetto
Board’s

does

not

current,

challenge

post-Kentucky

“independent judgment.”

the

reasonableness

River

of

the

interpretation

of

Nor does Palmetto contend that this

interpretation is inconsistent with the Act.

Indeed, Palmetto

conceded at oral argument that the Board’s interpretation of
“independent judgment” in Oakwood controls.

Palmetto maintains,

however, that our analysis of “independent judgment” in cases
involving nurses issued prior to Kentucky River and Oakwood is
in all respects “consistent” with those cases, and so governs
the case at hand.

Reply Br. 2.

Our pre-Oakwood cases responded to the Board’s perplexing
application of § 152(11) to nurses.

Before Kentucky River, the

Board took the position that nurses do not exercise “independent
judgment”

any

time

they

exercise
8

“ordinary

professional

or

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technical

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judgment

deliver services.”

in

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directing

less-skilled

employees

to

Kentucky River, 532 U.S. at 713 (quoting the

Board’s brief).
In a series of cases, we rejected that interpretation of
“independent judgment” as unreasonable and held that the nurses
at issue in those cases were supervisors.

See, e.g., Beverly

Enterprises, Virginia, Inc. v. NLRB, 165 F.3d 290, 298 (4th Cir.
1999) (en banc) (holding that nurses were supervisors because
they exercised § 152(11) authorities “by and large without any
guidelines or established criteria”); Glenmark, 147 F.3d at 34145 (holding that nurses were supervisors given their authority
to schedule and discipline nursing assistants without management
approval).
After we decided these nurse/supervisor cases, the Supreme
Court in Kentucky River similarly rejected the Board’s sharp
distinction

between

professional

and

independent

judgment,

holding that it was unreasonable to conclude that professional
judgment can never be “independent” for the purposes of the Act.
532 U.S. at 714, 721 (citation omitted).

In Oakwood, the Board

adopted its current interpretation of “independent judgment” to
comport with Kentucky River.
This

is

precedential
It

is

the
value

settled

law

first
of

our

that

case

requiring

pre-Oakwood
an

agency
9

us

to

address

nurse/supervisor

construction

the

cases.

entitled

to

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deference

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supersedes

ambiguous statute.
Internet

Servs.,

“independent

a

prior

545

that

judicial

construction

of

an

Nat’l Cable & Telecomm. Ass’n v. Brand X
U.S.

judgment”

understood

Pg: 10 of 17

967,

is

the

982

(2005).

ambiguous,

Board’s

and

The
have

we

reasonable

phrase
always

and

consistent

interpretations of it are entitled to deference.

See, e.g.,

Beverly, 165 F.3d at 296; Glenmark, 147 F.3d at 338.
In Oakwood, the Board adopted a reasonable interpretation
of “independent judgment.”
conflict

between

the

As we recently noted, there is no

Board’s

interpretation

and

the

text

of

§ 152(11) or Congress’s intent to distinguish “true supervisors”
from employees whom the Act protects “even though they perform
‘minor supervisory duties.’”

Pac Tell, 817 F.3d at 91 (quoting

Oakwood,

see

348

Retirement

NLRB

Corp.

at
of

686);

America,

also

511

NLRB

Health

571,

U.S.

v.

586–88

(recounting the legislative history of § 152(11)).
Oakwood

the

Board

did

nothing

more

offered directly by the Supreme Court.
U.S.

at

713–14

“independent

(noting

judgment”

of

the

than

Care

&

(1994)

Indeed, in

implement

guidance

See Kentucky River, 532

significance

an

employer’s

to

the

when

“detailed

determining
orders

and

interpretation

of

regulations”).
We

therefore

defer

Board’s

“independent judgment” and apply its standards here.

To the

extent our pre-Oakwood cases accord with those standards, they
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remain

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instructive. 2

However,

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the

Board’s

current

standards

supersede our prior cases to the extent the two conflict.

Thus,

for example, before Oakwood, we considered it highly probative
of

independent

judgment

if

nurses

served

as

the

most

senior

staff on site for significant portions of the work week.

See

Beverly, 165 F.3d at 297–98; Glenmark, 147 F.3d at 341–42; NLRB
v. St. Mary’s Home, Inc., 690 F.2d 1062, 1066 (4th Cir. 1982).
In accordance with Kentucky River, when detailed employer rules
severely

constrain

the

nurses’

discretion,

Oakwood

that this fact is not as probative as we had held.

indicates

Moreover, in

Golden Crest Healthcare Center, a case decided the same day as
Oakwood, the Board expressly applied Oakwood to hold that the
nurses at issue there, although serving for significant periods
of time as the most senior staff on site, were not supervisors,
particularly given that managers remained on-call after hours.
348 NLRB 727, 727, 730 n.10 (2006).
With these legal principles in mind, we turn to the case at
hand.

2

In Oakwood, the Board also adopted a new interpretation of
the term “responsibly to direct.” Oakwood, 348 NLRB at 690–92.
Here, we need not address the extent to which this new
interpretation displaces our prior cases.
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III.
Palmetto

argues

that

the

Nurses

here

are

supervisors

because they have the authority to discipline and responsibly
direct

the

work

of

CNAs

independent judgment.
Palmetto

simply

has

in

a

manner

requiring

the

use

of

Both arguments fail for the same reason:
not

shown

that

the

Nurses

must

use

any

independent judgment when performing these functions.
A.
We first consider the evidence Palmetto offered in support
of

its

contention

that

the

Nurses

must

exercise

independent

judgment when disciplining CNAs.
Palmetto
classifies

uses

a

violations

progressive
into

three

discipline

policy

categories.

that

Category

I

includes minor infractions, such as failing to comply with the
dress code or departmental procedures.
violations
protocols

such
for

as

threatening

lifting

and

other

moving

Category II includes
employees

residents.

and

ignoring

Category

III

includes the most serious violations, such as sleeping on the
job,

insubordination,

Palmetto’s

current

steps:

documented

and

handbook
oral

neglecting
lists

the

counseling,

or

abusing

following

residents.
disciplinary

reprimands,

written

warnings, suspension, and discharge.
Any employee can report a disciplinary violation, and in
some cases, employees must report them.
12

In particular, failure

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to report a Category II or Category III violation is itself a
Category

II

violation.

The

of

and

investigations

misconduct

Managers
make

all

conduct
final

separate

disciplinary

decisions.
Nevertheless,

Palmetto

insists

that

the

independent judgment in disciplining CNAs.

Nurses

must

use

The record before us

contains very scant evidence of oral counseling and only three
instances in more than three years -- 2011 through 2014 -- of
Nurses filing written reports of CNA misconduct.

In one, it is

unclear under which category the violation fell.

The other two

involved

Category

II

and

Category

Nurses had no choice but to report.

III

violations,

the

In the Category III case, a

Nurse sent a CNA home for sleeping on the job.
heavily on this incident.

which

Palmetto relies

However, one instance of a Nurse

reacting to such an egregious violation, by itself, does not
demonstrate independent judgment.
295 NLRB 486, 492 (1989).

See Phelps Cmty. Med. Ctr.,

Moreover, Palmetto’s argument ignores

its written rule that sleeping on the job is punishable only by
discharge.
discharge

The
or

Nurse

even

involved

suspend

disciplinary decision.

the

in

this

CNA.

incident

She

made

did
no

not
final

Rather, she called Director of Nursing

Jennifer Lambert to report the incident, who then investigated
the matter and ultimately fired the CNA.
indicates

that

Palmetto

has

given
13

The record before us

its

Nurses

only

the

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disciplinary power provided to every other employee (including
CNAs themselves):

the power to report rule violations to the

Managers.
On this record, a reasonable mind could certainly conclude
that Palmetto did not offer evidence sufficient to establish
that the Nurses use independent judgment when disciplining CNAs.
B.
We next consider the evidence Palmetto offered in support
of its contention that the Nurses must use independent judgment
when they responsibly direct the work of CNAs.
Palmetto

argues

establishes as much.
that

the

constrained,

Nurses

that

Director

Lambert’s

testimony

But at most, that testimony establishes
exercise

judgment.

not

Director

independent,
Lambert

but

testified

heavily
that

the

Nurses are responsible for making sure CNAs:
(1) follow various laws, rules, and regulations,
including the OSH [sic], (2) comply with infection
control procedures, (3) stay within the scope of their
certification, (4) adhere to proper protocols for
resident hygiene, (5) treat residents in a non-abusive
or neglectful [sic] manner, (6) follow the proper
feeding and hydration rules and regulations, (7)
document treatment, and (8) comply with fire alarm,
disaster
evacuation,
and
resident
elopement
procedures.
Pet. Br. 31.
Palmetto has extensive policies on all these matters and on
virtually all CNA duties.

It has training, instructions, and

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policies on everything from handwashing and bathing residents to
dealing

with

patient

abuse.

During

mandatory

in-service

meetings, the Managers regularly give specific instructions to
Nurses

and

CNAs

on

such

topics

as

repositioning

residents,

properly clothing residents, taking breaks, clocking in and out,
attending

to

residents’

hygiene,

and

providing

meal

service.

Palmetto also conducts fire, evacuation, and resident elopement
drills.

State

law

and

OSHA

regulations

provide

additional

protocols for infection control, patient hygiene, and emergency
preparedness.

In every case, the Nurses’ responsibility seems

to amount to the same thing:
written

instructions.

This

making sure the CNAs follow the
suggests

that

the

Nurses

serve

merely as conduits for these instructions.
It is true, of course, that “the mere existence of company
policies does not eliminate independent judgment from decisionmaking

if

the

policies

allow

for

discretionary

choices.”

Oakwood, 348 NLRB at 693 (citing Glenmark, 147 F.3d at 341).
However, Palmetto has not offered even one instance in which the
Nurses

could

(let

alone

did)

direct

CNAs

largely

without

guidance from Palmetto’s instructions.
Palmetto leans heavily on the Managers’ absence at night
and on weekends, leaving the Nurses as the most senior staff on
site during those times.
Palmetto

agrees

But, under the Oakwood standard, which

controls,

these
15

facts

do

not

themselves

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establish independent judgment.

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See Golden Crest, 348 NLRB at

730 n.10 (applying Oakwood and holding that charge nurses were
not

statutory

substantial

supervisors
record

despite

evidence

this

arrangement).

establishes

that

Here,

Palmetto’s

instructions continue to control nurses’ discretion even after
hours and on weekends.

When the Managers go home at night or

for the weekend, they do not take their instructions with them.
Moreover,
Director

and

the

record

Assistant

evidence

Director

of

establishes
Nursing

that

rotate

both

the

“on-call”

duties on nights and weekends, and the three Unit Managers have
other limited on-call duties.

The Unit Managers have instructed

the Nurses to call them after hours for assistance, and Director
Lambert testified that the Nurses may call her for assistance as
well.

As the Board explained in Golden Crest, the fact that

nurses are the most senior staff on site after hours “is even
less probative where management is available after hours.”

Id. 3

Given these facts, the Board reasonably concluded that the
Nurses do not exercise independent judgment when directing CNAs.

3

Palmetto’s reliance on our decision in Beverly is
misplaced. In addition to predating Kentucky River and Oakwood,
in Beverly the Board conceded that the employer “provides no
list of criteria by which assignments, direction of nursing
assistants, or emergency dismissals are to be made.”
165 F.3d
at 298.
Here, Palmetto has utterly failed to rebut evidence
that its instructions provided detailed “criteria” on these
issues.

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IV.
The record offers abundant evidence supporting the Board’s
finding that Palmetto failed to establish that the Nurses use
independent judgment in disciplining and directing the work of
CNAs.
and

Accordingly, we must deny Palmetto’s petition for review

grant

the

Board’s

cross-petition

for

enforcement

of

its

order.
PETITION FOR REVIEW DENIED;
CROSS-PETITION FOR ENFORCEMENT GRANTED

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