Eleventh Circuit voids NLRB ruling over company's unfair labor practice charge

Jessica M. Karmasek Oct. 4, 2012, 10:45am



ATLANTA (Legal Newsline) - A federal appeals court earlier this week vacated a decision by the National Labor Relations Board in a case over a long-term care facility's refusal to bargain with a workers union.

On Tuesday, the U.S. Court of Appeals for the Eleventh Circuit denied the board's cross-appeal to enforce its decision against Lakeland Healthcare Associates LLC.

Lakeland appealed to the Eighth Circuit over the NLRB's finding that it was in violation of two sections of the National Labor Relations Board Act for its refusal to bargain with the United Food and Commercial Workers Union Local 1625.

The company admits to refusing to bargain with the union but argues that in doing so it does not violate the act because the union, itself, was improperly certified in the underlying representation proceedings.

Lakeland is a nursing and long-term care facility that employs LPNs, RNs and certified nursing assistants, or CNAs, among other full-time and part-time employees.

The union currently represents all of Lakeland's CNAs.

On Aug. 11, 2010, the union filed a petition with the NLRB seeking a representation election to establish the union as the collective bargaining representative for Lakeland's LPNs.

Lakeland opposed the petition, arguing that the LPNs are "supervisors" within the meaning of the NLRB Act and are therefore ineligible for union representation.

Between Aug. 25 and Aug. 30, 2010, an NLRB hearing officer held a hearing devoted solely to the issue.

On Sept. 24, 2010, the regional director issued a 49-page Decision and Direction of Election finding, or DDE, that the LPNs were not supervisors under the act.

The board denied Lakeland's request for review of the regional director's decision on Dec. 6, 2010, with one member of the three-member panel dissenting.

Following a representation election, the union was certified on Jan. 6, 2011 as the exclusive bargaining representative for Lakeland's LPNs.

In order to seek judicial review of the board's findings, Lakeland refused to recognize and bargain with the union as the LPNs' representative.

The union responded by filing an unfair labor practice charge with the NLRB, which, through the board's general counsel, filed a complaint against Lakeland on Feb. 22, 2011.

On April 29, 2011, the NLRB entered a three-page decision and order granting summary judgment in favor of the board's general counsel -- and thereby the union -- finding that Lakeland violated two sections of the act.

Lakeland appealed.

Senior Judge Paul C. Huck, for the U.S. District Court for the Southern District of Florida and sitting by designation, explained that the sole issue on appeal is whether "substantial" record evidence supports the NLRB's determination that certain LPNs employed by Lakeland are "supervisors" within the meaning of the NLRB Act.

Under the structure of the act, if the LPNs are "employees," they are guaranteed the right to unionize. If they are "supervisors," they are not.

Lakeland argued that because the LPNs, using their own independent judgment and discretion, initiate the process to discipline, suspend and terminate CNAs, the board's decision should be vacated.

The NLRB -- among its findings -- concluded that the LPNs do not exercise independent judgment in assigning CNAs.

The Eleventh Circuit said the board's determination is not supported by substantial evidence.

"As the Board has properly recognized, to base supervisory status solely upon a paper showing of titles or job descriptions would enable employers to design their policies in a manner that could effectively deprive non-supervisory employees of their right to collective bargaining under the Act," Huck wrote in the court's 40-page majority decision.

"This concern, however, does not command an impossibly high evidentiary standard for establishing 'prospective' consequences for the putative supervisor."

Written policies, job descriptions, performance evaluations and the like, when corroborated by live testimony or other evidence, are "obviously relevant" to the issue of responsible direction, the court said.

"In this case, Lakeland presented much more than a 'paper showing' of responsible direction," Huck wrote.

"Lakeland also presented unrebutted testimony establishing that LPNs are 'responsible' for ensuring the CNAs' compliance with Lakeland's standards, and that they would be 'written up' for failing to do so."

Circuit Judge William H. Pryor Jr. disagreed, saying he would enforce the NLRB's order because substantial evidence supports its findings.

"We have stated that 'nearly everyone at one time or another, under some condition, tells someone else what to do, but that one who engages in an isolated incident of supervision is not necessarily a supervisor under the Act,'" he noted in his dissent.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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