National Labor Relations Board v. Sub Acute Rehabilitation Center at Kearny, LLC
675 F. App'x 173
| 3rd Cir. | 2017Background
- Belgrove Post Acute Care Center operates a 120-bed sub-acute facility with ~30 LPNs and ~75 CNAs; LPNs principally serve as floor nurses performing treatments and medication distribution.
- Organizationally, Director of Nursing → Assistant Director, two house supervisors, three unit managers; house supervisors and unit managers assign staff and oversee CNAs; staffing coordinator assigns CNAs to shifts/units.
- In 2012 District 1199J sought to represent the LPNs; Belgrove contended LPNs were statutory supervisors under §2(11) because they (a) assign and direct CNAs as floor nurses and (b) occasionally act as unit managers/house supervisors.
- The Regional Director found LPNs were not supervisors; the Board affirmed and certified the union; Belgrove refused to bargain; the Board granted summary judgment for the General Counsel and ordered enforcement; Belgrove petitioned for review.
- The court applied the substantial-evidence standard, deferring to the Board’s interpretation of “independent judgment” and requiring the employer (Belgrove) to prove supervisory status under Kentucky River’s three-part test derived from §2(11).
- Record evidence showed LPNs performed routine CNA assignments, occasional verbal warnings, and sporadic temporary coverage of supervisory roles; there was little or no evidence of formal disciplinary authority, accountability with prospect of adverse consequences, or a regular pattern of supervisory duty.
Issues
| Issue | Belgrove's Argument | NLRB/Board's Argument | Held |
|---|---|---|---|
| Whether floor nurses’ assignment of CNAs makes them supervisors | LPNs assign CNAs and allocate tasks; this is assignment authority under §2(11) | Assignments are routine, set by staffing coordinator; LPNs’ choices are not based on demonstrated independent judgment | LPNs’ assignment activity is routine, not independent judgment; not supervisory |
| Whether floor nurses ‘‘responsibly direct’’ CNAs (accountability) | Job description and testimony show floor nurses are told they are responsible and could be held accountable | No evidence of actual or circumstantial prospect of adverse consequences, performance reviews, or policies enforcing accountability | No responsible direction; lacking prospect of adverse consequences |
| Whether floor nurses ‘‘suspend, discharge, or discipline’’ CNAs | Verbal warnings, notes, and a few write-ups show LPNs discipline CNAs | Formal discipline was performed only when LPNs acted as managers; notes/verbal warnings are not shown to be part of progressive discipline | Insufficient evidence of disciplinary authority in floor-nurse role; not supervisory |
| Whether occasional service as unit manager/house supervisor makes LPNs supervisors | LPNs sometimes fill in for unit managers/supervisors and thus perform supervisory functions | Coverage was temporary and sporadic; no regular/substantial portion of time spent performing supervisory duties | Temporary, sporadic coverage did not satisfy regular and substantial standard; not supervisory |
Key Cases Cited
- Mars Home for Youth v. NLRB, 666 F.3d 850 (3d Cir. 2011) (Board expertise deference in supervisor-status determinations)
- NLRB v. St. George Warehouse, Inc., 645 F.3d 666 (3d Cir. 2011) (deference to Board’s legal interpretations in labor matters)
- NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706 (2001) (three-part test for supervisor status under §2(11))
- NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) (distinguishing true supervisors from minor supervisory duties)
- Palmetto Prince George Operating, LLC v. NLRB, 841 F.3d 211 (4th Cir. 2016) (Board’s independent-judgment interpretation reasonable)
- Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298 (6th Cir. 2012) (routine patient-assignment adjustments do not show independent judgment)
- MCPC Inc. v. NLRB, 813 F.3d 475 (3d Cir. 2016) (upholding Board interpretations when reasonable)