Labor & Employment – Nursing-Home Nurses Not ‘Supervisors’

Palmetto Prince George Operating LLC v. NLRB (Lawyers Weekly No. 001-154-16, 17 pp.) (Motz, J.) No. 15-2143, Nov. 1, 2016; On Petition for Review; 4th Cir.

Holding: Substantial evidence supports the National Labor Relations Board’s finding that a group of nurses at a nursing home are not supervisors because their duties do not require the exercise of independent judgment; the 4th Circuit grants the NLRB’s cross-petition for enforcement of its order requiring employer to bargain with the nurses’ union.

Petitioner employs 23 nurses to staff its units: six registered nurses and 17 licensed practical nurses. All assess patients, answer call lights, administer medications and perform general patient care duties. In addition to the nurses, the Center employs 40 certified nursing assistants. The CNAs assist residents with daily tasks, such as helping them bathe, repositioning them in bed and aiding them in using the restroom. The Center’s handbook describes the nurses as the CNAs’ “first line of authority,” and it places the nurses above the CNAs on its organizational charts. Employer contends the nurses are supervisors because they have the authority to discipline and responsibly direct the CNAs and must use independent judgment in exercising these two authorities.

This is the first case requiring us to address the precedential value of our nurse/supervisor cases prior to In re Oakwood Healthcare Inc., 349 NLRB 686 (2006). It is settled law that an agency construction entitled to deference supersedes a prior judicial construction of an ambiguous statute. The phrase “independent judgment” is ambiguous, and we have always understood that the NRLB’s reasonable and consistent interpretations of it are entitled to deference.

In Oakwood, the board adopted a reasonable interpretation of “independent judgment” and did nothing more than implement guidance offered directly by the Supreme Court. We defer to the board’s interpretation of “independent judgment” and apply its standards here. To the extent our pre-Oakwood cases accord with those standards, they remain instructive. However, the board’s current standards supersede our prior cases to the extent the two conflict.

Independent Judgment

Employer claims the nurses must exercise independent judgment when disciplining CNAs. Any employee can report a disciplinary violation; in some cases, employees must report them. The managers conduct separate investigations of misconduct and make all final disciplinary decisions. The record here indicates that employer has given its nurses only the disciplinary power provided to every other employee (including CNAs themselves): the power to report rule violation to the managers. A reasonable mind could certainly conclude that employer did not offer evidence sufficient to establish that the nurses use independent judgment when disciplining CNAs.

Employer also has not shown the nurses must use independent judgment when they responsibly direct the work of CNAs. Employer leans heavily on the managers’ absence at night and on weekends, leaving the nurses as the most senior staff on site during those times. But, under the Oakwood standard, these facts themselves do not establish independent judgment. When the managers go home at night or on weekends, they do not take their instructions with them, and they rotate “on-call” duties during those periods.

Employer’s petition for review is denied; NLRB’s cross-petition for enforcement is granted.