EMORY v. MCDONNELL DOUGLAS CORP.
No. unknown
United States Court of Appeals, Fourth Circuit
1998
148 F.3d 347
In addition to the multitude of authorities adopting this approach, the rationales identified in Boyle remain applicable in failure to warn cases. Just as decisions on military equipment design involve complex cost-benefit analyses in which lay juries and judges are not versed, military procurement contracts and specifications involve manifold warning and labeling requirements inapplicable to nonmilitary equipment. Cf. Tozer, 792 F.2d at 405-07 (applying government contractor defense in design defect case). Moreover, the constitutional separation of the judiciary from military matters carries no less force with resрect to the design of military equipment than it does with respect to the warnings accompanying such equipment. Further, whether the risk of liability flows from design defect or failure to warn, the effect remains the same: government contractors willing to take such a risk will pass the increased cost to the government and will invest less in research and development. Cf. id. at 407-08.
Given the weight of opposing precedent and the rationales supporting the defense, we now join the chorus and hold that the government contractor defense is available in failure to warn cases. Having established this, we leave it to the district court to decide whether Appellants have presented sufficient proof to warrant removal pursuant to
IV.
For the foregoing reasons, we reverse and remand for further prоceedings.
REVERSED AND REMANDED
PALMETTO PRINCE GEORGE OPERATING, LLC, d/b/a Prince George Healthcare Center, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. National Labor Relations Board, Petitioner, v. Palmetto Prince George Operating, LLC, d/b/a Prince George Healthcare Center, Respondent.
No. 15-2143, No. 15-2221
United States Court of Appeals, Fourth Circuit.
Decided: November 1, 2016
841 F.3d 211
Argued: September 21, 2016
Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
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.
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 of the National Labor Relations Act,
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 management team consists of a Director of Nursing, an Assistant Director of Nursing, and three Unit Managers (collectivеly the “Managers“). The Managers monitor and evaluate the quality of nursing care, supervise and discipline nursing staff, and arrange the schedules and assignments of the nursing staff.
The Center employs twenty-three nurses to staff its units: six registered nurses (RNs) and seventeen licensed practical nurses (LPNs) (collectively, the “Nurses“). All assess patients, answer call lights, administer medications, and perform general patient care duties.1 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 Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union sought to represent the Nurses as their exclusive bargaining representative. On January 12, 2015, the Union filed an election petition with the Board. At the pre-election hearing before the Regional Director, Palmetto argued that the Nurses are supervisors and therefore have no collective bargaining rights under the National Labor Relations Act. See
Section 152(11) of the Act defines “supervisor” as:
[A]ny individual having authority, in the interest of the employer, to hirе, 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 mere ly 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 independent judgment in exercising those two authorities. The parties have stipulated that the Nurses lack authority to perform any of the other ten functions listed in
The Regional Director concluded that Palmetto failed to prove the Nurses are supervisors. Accordingly, the Regiоnal Director ordered an election, and the Nurses voted in favor of having the Union represent them. After the election, the Union requested that Palmetto recognize it as the Nurses’ representative and begin bargaining with it. Palmetto refused, and the Union filed a refusal-to-bargain charge with the Board.
II.
A.
We review the Board‘s factual findings regarding supervisory status for substantial evidence. Glenmark Assoc., Inc. v. NLRB, 147 F.3d 333, 338 (4th Cir. 1998). We affirm if the record contains enough evidence that “a reasonable mind might accept [it] as adequate to support a conclusion.” 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
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.” Kentucky River, 532 U.S. at 713 (emphasis in original). The Court explained that it is “undoubtedly true that the dеgree of judgment that might ordinarily be required to conduct a particular task may be reduced below the statutory threshold by detailed orders and regulations issued by the employer.” Id. at 713-14. 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 judgmеnt” so long as it is “reasonable and consistent with the Act.” Id. at 711-12.
After the Supreme Court decided Kentucky River, the Board explained that to exercise independent judgment, “an individual must at a minimum act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data.” In re Oakwood Healthcare, Inc., 348 NLRB 686, 693 (2006). 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 in the provisions of a collective bargaining agreement.” Id.
Palmetto does not challenge the reasonableness of the Board‘s current, post-Kentucky River interpretation of “independent judgment.” Nor does Palmetto contend that this interpretation is inconsistent with the Act. Indeed, Palmetto conсeded 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
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
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 the first case requiring us to address the precedential value of our pre-Oakwood nurse/supervisor cases. It is settled law that an agency construction entitled to deference supersedes a prior judicial construction of an аmbiguous statute. Nat‘l Cable & Telecomm. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). The phrase “independent judgment” is ambiguous, and we have always understood that the Board‘s reasonable 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.” As we recently noted, there is no conflict between the Board‘s interprеtation and the text of
We therefore defer to the Board‘s interprеtation of “independent judgment” and
With these legal principles in mind, we turn to the case at hand.
III.
Palmetto argues that the Nurses here are supervisors becausе they have the authority to discipline and responsibly direct the work of CNAs in a manner requiring the use of independent judgment. Both arguments fail for the same reason: Palmetto simply has 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 contention2 that the Nurses must exercise independent judgment when disciplining CNAs.
Palmetto uses a progressive discipline policy that classifies violations into three categories. Category I includes minor infractions, such as failing to comply with the dress code or departmental procedures. Category II includes violations such as threatening other employees and ignoring protocols for lifting and moving residents. Category III includes the most serious violations, such as sleeрing on the job, insubordination, and neglecting or abusing residents. Palmetto‘s current handbook lists the following disciplinary steps: documented oral counseling, reprimands, written warnings, suspension, and discharge.
Any employee can report a disciplinary violation, and in some cases, employees must report them. In particular, failure to report a Category II or Category III violation is itself a Category II violation. The Managers conduct separate investigations of misconduct and make all final disciplinary decisions.
Nevertheless, Palmetto insists that the Nurses must use independent judgment in disciplining CNAs. 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 catеgory the violation fell. The other two involved Category II and Category III violations, which the Nurses had no choice but to report. In the Category III case, a Nurse sent a CNA home for sleeping on the job. Palmetto relies heavily on this incident. However, one instance of a Nurse reacting to such an egregious violation, by
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 оf CNAs.
Palmetto argues that Director Lambert‘s testimony establishes as much. But at most, that testimony establishes that the Nurses exercise not independent, but heavily constrained, judgment. Director Lambert testified 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 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: making sure the CNAs follow the written instructions. This suggests that the Nurses serve merely as conduits for these instructions.
It is true, of course, that “the mere existence of company poliсies does not eliminate independent judgment from decision-making 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 sitе during those times. But, under the Oakwood standard, which Palmetto agrees controls, these facts do not themselves establish independent judgment. See Golden Crest, 348 NLRB at 730 n.10 (applying Oakwood and holding that charge nurses were statutory supervisors despite this
Moreover, the record evidence establishes that both the Director and Assistant Director of Nursing rotate “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.
IV.
The record offers abundant evidence supporting the Board‘s finding that Palmetto failed to estаblish that the Nurses use independent judgment in disciplining and directing the work of CNAs. Accordingly, we must deny Palmetto‘s petition for review and grant the Board‘s cross-petition for enforcement of its order.
PETITION FOR REVIEW DENIED; CROSS-PETITION FOR ENFORCEMENT GRANTED