Frenchtown Acquisition Co. v. National Labor Relations Board, 2012 U.S. App. LEXIS 12512

Background

Frenchtown operates Fountain View of Monroe, a 119-bed nursing home with four care units and staffing allocated per residents; 43 charge nurses and 45 certified nursing aides are the bargaining unit at issue.
Seven managers hold the nursing department leadership; DON heads the department with ADON, PM Manager, CCs, and MDSCs immediately below them.
Charge nurses have sought to unionize; the Union has represented aides since 2003 and Frenchtown and the Union entered a contract in 2004; Frenchtown later filed a unit-clarification petition in 2009 seeking to classify charge nurses as statutory supervisors.
Regional Director in 2003 found charge nurses to be statutory employees; after a 2010 Board denial of review, Frenchtown refused to bargain with the Union, leading to unfair-labor-practice charges against Frenchtown.
The Board found Frenchtown violated § 8(a)(5) and (1) by refusing to bargain, requiring good-faith bargaining, information sharing, and posting remedial notices; Frenchtown petitions for review and the Board seeks enforcement.
This appeal centers on whether the charge nurses possess supervisory status under 29 U.S.C. § 152(11), requiring specific enumerated authority, independent judgment, and acting in the employer’s interest.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether charge nurses are statutory supervisors under the NLRA	Frenchtown asserts charge nurses have authority to hire, transfer, discipline, and assign, or effectively recommend these actions.	Board found no substantial evidence that nurses discipline, hire, transfer, or assign with independent judgment or in the employer’s interest.	No; substantial evidence supports the Board’s finding that charge nurses are not supervisors.
Do charge nurses discipline aides or effectively recommend discipline	Frenchtown argues nurses discipline aides and effectively recommend discipline.	Evidence shows only one nurse disciplined an aide; in-services are not discipline and union contract restricts nurse discipline.	Not supervisory; not enough to prove discipline authority.
Do charge nurses effectively recommend hiring of aides	Charge nurses can impact hiring decisions.	Hiring is controlled by undisputed managers; nurse input is limited and not a decisive recommending power.	Not supervisory; evidence shows no effective hiring recommendations.
Do charge nurses assign or effectively assign aides to patients	Nurses assign aides to residents/units and weigh patient needs.	Kardex, ADL sheets, and assignments are largely created and controlled by others; nurses’ input is marginal.	Not supervisory; assignments lack significant independent judgment.
Do charge nurses transfer or effectively recommend transfers of aides	Charge nurses can transfer aides based on staffing and patient needs.	Transfers are routine or management-guided; only two isolated instances suggest independence.	Not supervisory; insufficient independent judgment or adverse consequences.

Key Cases Cited

Kentucky River Community Care, Inc. v. NLRB, 532 U.S. 706 (2001) (three-part test for supervisory status; authority, independent judgment, and employer’s interest)
NLRB v. Dole Fresh Vegetables, Inc., 334 F.3d 478 (6th Cir. 2003) (substantial-evidence standard; avoid broad exemptions)
In re Oakwood Healthcare, Inc., 348 NLRB 686 (6th Cir. 2006) (independent judgment requirement and restriction by management rules)
New York University Medical Center v. NLRB, 156 F.3d 405 (2d Cir. 1998) (paper power not enough to prove supervisory status)
Caremore, Inc. v. NLRB, 129 F.3d 365 (6th Cir. 1997) (investigation context in evaluating recommendations)
Highland Superstores, Inc. v. NLRB, 927 F.2d 918 (6th Cir. 1991) (solitary instance of discipline not sufficient for supervisor status)
Rochelle Waste Disposal, LLC v. NLRB, 673 F.3d 587 (7th Cir. 2012) (deference to Board on supervisory-status interpretations; accountability indicators)