945 F.3d 763
3rd Cir.2019Background:
- Coral Harbor purchased a nursing home where 1199 SEIU represented two units: LPNs and CNAs; Coral Harbor retained a majority of predecessor LPNs, raised their wages, and changed leave and health benefits without bargaining with the Union.
- The Union filed unfair-labor-practice charges alleging Coral Harbor refused to bargain and made unilateral changes in violation of Sections 8(a)(5) and 8(a)(1) of the NLRA.
- The Center asserted it was a Burns successor free to set initial terms and that the LPNs were statutory supervisors excluded from NLRA protections.
- At hearing, testimony and the employee handbook showed LPNs sometimes delivered or signed disciplinary notices but lacked access to personnel files, did not set discipline levels, and were required to clear discipline with the Director of Nursing (DON); DON conducted investigations and fixed schedules.
- The ALJ found Coral Harbor was a Burns successor obliged to bargain and that the LPNs were statutory employees (not supervisors); the Board affirmed, rejecting Coral Harbor’s narrow exceptions on discipline and grievance-adjustment authority.
- The Third Circuit reviewed the Board’s decision under the substantial-evidence standard and enforced the Board’s order, holding the LPNs were not supervisors and Coral Harbor violated the NLRA by refusing to bargain and making unilateral changes.
Issues:
| Issue | Center's Argument | Board/Union's Argument | Held |
|---|---|---|---|
| Whether successor had duty under Burns to bargain with incumbent union | Burns allows successor to set initial terms; Coral Harbor argues LPNs are supervisors so no duty to bargain on their terms | Successor duty applies because substantial continuity and LPNs are statutory employees | Duty to bargain applied; Coral Harbor was a Burns successor required to bargain |
| Whether LPNs were statutory supervisors with authority to discipline | LPNs exercised supervisory authority: disciplining, recommending, delivering notices | LPNs lacked independent judgment; DON controlled investigations, discipline levels, and approvals | LPNs not supervisors; lacked independent judgment to discipline |
| Whether LPNs could "adjust grievances" or effectively recommend discipline | Center: LPN recommendations and participation in discipline suffice for supervisory status | Board: LPNs’ role was clerical/routine; they did not initiate or independently adjust grievances | LPNs did not effectively adjust grievances; supervisory exclusion not met |
| Proper allocation and application of Kentucky River test (burden; independent judgment) | Center contends evidence shows discretion and initiation of discipline sufficient under New Vista | Board applies Kentucky River: Center bears burden; must show independent judgment, non-routine discretion, and employer interest | Kentucky River test applied; Center failed its burden to show independent judgment or initiation of progressive discipline |
Key Cases Cited
- NLRB v. Burns Int’l Sec. Servs., Inc., 406 U.S. 272 (1972) (successor may set initial terms but must consult incumbent union when substantial continuity exists)
- NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706 (2001) (establishes burden on party claiming supervisory status and three-part supervisor test)
- NLRB v. New Vista Nursing & Rehab., 870 F.3d 113 (3d Cir. 2017) (third-circuit framework for nurse supervisory analysis; discretion, initiation, and effect on future discipline)
- NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267 (1974) (distinguishing minor lead roles from statutory supervisors)
- Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987) (Burns principles on successor bargaining obligations reiterated)