GGNSC Springfield LLC v. National Labor Relations Board

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0170p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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X

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GGNSC SPRINGFIELD LLC, dba Golden

Petitioner/Cross-Respondent, --

Living Center-Springfield,

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Nos. 12-1529/1628

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>

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v.

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Respondent/Cross-Petitioner. N-

NATIONAL LABOR RELATIONS BOARD,

On Petition for Review and Cross-Application for

Enforcement of an Order of the National Labor Relations Board.

No. 26-CA-072684.

Argued: March 15, 2013

Decided and Filed: July 2, 2013

Before: MERRITT, CLAY, and GRIFFIN, Circuit Judges.

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COUNSEL

ARGUED: Michael A. Manzler, DINSMORE & SHOHL LLP, Cincinnati, Ohio, for

Petitioner/Cross-Respondent. Mark R. Freeman, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., Gregoire Sauter, NATIONAL LABOR RELATIONS

BOARD, Washington, D.C., for Respondent/Cross-Petitioner. ON BRIEF: Michael A.

Manzler, Charles M. Roesch, Jessica E. Bauml, DINSMORE & SHOHL LLP,

Cincinnati, Ohio, for Petitioner/Cross-Respondent. Mark R. Freeman, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., Gregoire Sauter, Robert J.

Englehart, Linda Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington,

D.C., for Respondent/Cross-Petitioner.

GRIFFIN, J., delivered the opinion of the court in which, CLAY, J., joined.

MERRITT, J. (pp. 14–18), delivered a separate dissenting opinion.

1

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 2

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OPINION

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GRIFFIN, Circuit Judge. This case involves the question whether registered

nurses (RNs) employed as charge nurses at Golden Living Center (the “Center”) are

“supervisors” under the National Labor Relations Act (the “Act”). If they are, federal

law does not allow them to collectively bargain with their employer. After an

evidentiary hearing, the regional director of the National Labor Relations Board

concluded that the RNs are not supervisors. We review to determine whether substantial

evidence supports that determination and hold that it does not. Accordingly, we grant

the Center’s petition for review, vacate the Board’s order, and deny the Board’s cross-

application for enforcement.

I.

The Center operates a licensed nursing home in Springfield, Tennessee, that

employs approximately 100 individuals. The facility provides short- and long-term care

to approximately 120 residents split evenly between the facility’s two wings—East and

West. Patients range from those who are fully alert to those who are not.

The employment hierarchy at the nursing home is as follows: the Executive

Director oversees the entire facility. Various department heads, including a Director of

Nursing, report directly to the Executive Director. Two Assistant Directors of Nursing

directly oversee each of the facility’s two wings. Those primarily responsible for patient

care include 12 RNs, 10 licensed practical nurses (LPNs), and 46 certified nursing

assistants (CNAs). The Center refers to its RNs and LPNs as “charge nurses.” (While

RNs and LPNs have the same duties, only the RNs attempted to collectively bargain.)

Charge nurses report directly to the Director of Nursing or her designee. Typically, two

charge nurses are assigned to each wing at a time. The number of CNAs assigned to

each wing varies from two to six.

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 3

In October 2011, the International Association of Machinists and Aerospace

Workers, AFL-CIO (the “Union”), petitioned the Board and sought to represent the

Center’s RNs in collective bargaining. The Center opposed the petition, claiming that

its RNs (all charge nurses) were “supervisors” under the Act and therefore not permitted

to unionize. See 29 U.S.C. §§ 152(3), 157. A hearing was held where evidence was

received. In November 2011, the Board’s regional director concluded that the RNs are

not supervisors, certified the requested bargaining unit, and directed an election. The

Board declined further review. The following day, the RNs elected the Union as their

bargaining representative.

A week later, the Union asked the Center to bargain with it. The Center refused,

prompting a complaint with the Board that alleged unfair labor practices. See 29 U.S.C.

§ 158(a)(1), (5). The Center admitted its refusal to bargain and contested only the

regional director’s decision to certify the bargaining unit. The Board sustained the

Union’s complaint and ordered the Center to bargain with it. This petition for review

and cross-application for enforcement followed.

II.

Before addressing the merits of the Center’s petition, we consider a question

raised regarding the composition of the Board. After briefing was complete, the Center

filed a letter citing as supplemental authority the D.C. Circuit’s recent opinion, Noel

Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert. granted, 81 U.S.L.W. 3629 (U.S.

June 24, 2013) (No. 12-1281). In its supplemental authority letter, the Center asserted

that the Noel Canning decision supplied “an additional, independent ground for vacating

the Board’s Order in this matter.” Because the Center contends that its new argument

has jurisdictional significance, we consider it at the outset. See Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 88–89 (1998).

In Noel Canning, the D.C. Circuit held that an order of the Board was void

because it was issued at a time when the Board did not have at least three lawfully

appointed members. Our sister circuit ruled that at the time the order was issued, three

of the Board’s five members had been appointed by the President without “the Advice

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 4

and Consent of the Senate,” in violation of the Constitution’s Appointments Clause.1

The court rejected the Board’s argument that the President had legally bypassed that

constitutional requirement by invoking the Recess Appointments Clause2 and appointing

the members during an intrasession “recess” of the Senate, i.e., one of the “breaks in the

Senate’s business when it is otherwise in a continuing session.” Noel Canning, 705 F.3d

at 499–500. The court found the Board’s interpretation of the clause contrary to its text,

structure, and historical interpretation, which all suggest that “the Recess” refers instead

only to intersession recesses, i.e., breaks between “the usually two or sometimes three

sessions per Congress.” Id. at 499–507. The court also concluded that the appointments

were invalid because the vacancies they filled did not “happen” during a break between

formal Senate sessions. Id. at 507–14.

The parties agree that Noel Canning’s legal conclusions, if followed here, would

render the Board’s order void. The Board asks that we not take up the challenge to its

authority, claiming that the Center forfeited the argument by making it for the first time

in a letter to us filed under Federal Rule of Appellate Procedure 28(j). See Superior

Bank, FSB v. Boyd (In re Lewis), 398 F.3d 735, 748 n.9 (6th Cir. 2005) (declining to

consider a defense asserted for the first time in this way). The Center responds that its

challenge is “jurisdictional” and thus can never be forfeited. If true, that would require

us to address it before any non-jurisdictional challenges. See Steel Co., 523 U.S. at

88–89. But the Center is mistaken. Errors regarding the appointments of officers under

Article II are “nonjurisdictional.” See Freytag v. Comm’r, 501 U.S. 868, 878–79 (1991);

accord Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 574 F.3d 748, 756

(D.C. Cir. 2009) (per curiam).

Noel Canning did not suggest otherwise. Its discussion of “jurisdiction,”

705 F.3d at 496–98, concerned its statutory authority to consider challenges not first

1

See U.S. Const. art. II, § 2, cl. 2 (“[The President] shall nominate, and by and with the advice

and consent of the Senate, shall appoint . . . all other officers of the United States[.]”).

2

See U.S. Const. art. II, § 2, cl. 3 (“The President shall have power to fill up all vacancies that

may happen during the recess of the Senate, by granting commissions which shall expire at the end of their

next session.”).

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 5

presented to the Board, see 29 U.S.C. § 160(e),3 an exhaustion-type requirement that the

Supreme Court has characterized as “jurisdictional,” see Woelke & Romero Framing,

Inc. v. NLRB, 456 U.S. 645, 665–66 (1982); it did not concern jurisdiction in the sense

that the court had an independent obligation to raise and consider the matter on its own,

at the threshold, before reviewing the merits of the Board’s decision, cf., e.g., Steel Co.,

523 U.S. at 88–89. That the D.C. Circuit in Noel Canning considered the petitioner’s

statutory challenge before addressing the constitutional one further demonstrates that it

did not deem the constitutional one jurisdictional. But see NLRB v. New Vista Nursing

& Rehab., — F.3d — , 2013 WL 2099742, at *3–6 (3d Cir. May 16, 2013) (deeming

“jurisdictional” the statutory requirement that the member-groups to whom the Board

delegates its authority always have at least three members, and concluding that “any

reason” why the group has less than that (e.g., an invalid Presidential appointment) can

be raised as a jurisdictional defect). Because we hold that the Center’s belated challenge

is not “jurisdictional,” we are not compelled to consider it. Nor need we consider

excusing the Center’s forfeiture in our discretion, for we are granting it the relief it seeks

on the basis of its non-constitutional challenge. Cf. Noel Canning, 705 F.3d at 493.

III.

We review the Board’s decision using the substantial-evidence standard.

29 U.S.C. § 160(e), (f). Under this standard, the decision stands if it is supported by

“such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (internal

quotation marks omitted). This standard, though deferential, does not permit the Board

to ignore relevant evidence that detracts from its findings. Id. at 488. And when the

Board “misconstrues or fails to consider important evidence, its conclusions are less

likely to rest upon substantial evidence.” Lakeland Health Care Assocs., LLC v. NLRB,

696 F.3d 1332, 1335 (11th Cir. 2012) (internal quotation marks omitted).

3

“No objection that has not been urged before the Board, its member, agent, or agency, shall be

considered by the court, unless the failure or neglect to urge such objection shall be excused because of

extraordinary circumstances.” 29 U.S.C. § 160(e); see also id. § 160(f). Noel Canning raised its

Appointments Clause challenge for the first time in a petition for review. The D.C. Circuit held that

extraordinary circumstances existed and took up the challenge.

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 6

IV.

A.

Only “employees” have the right to bargain collectively under federal law.

29 U.S.C. § 157. The Act defines the term broadly (and somewhat circularly, see id.

§ 152(3) (“shall include any employee . . .”)), but excludes “any individual employed as

a supervisor,” id. A supervisor is

any individual having authority, in the interest of the employer, to hire,

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

merely routine or clerical nature, but requires the use of independent

judgment.

Id. § 152(11). The Act thus creates “a three-part test for determining supervisory

status.” NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 712–13 (2001).

Individuals are supervisors if (1) they hold the authority to engage in any one of the

twelve listed supervisory functions, (2) their “exercise of such authority is not of a

merely routine or clerical nature, but requires the use of independent judgment,” and (3)

their authority is held “in the interest of the employer.” 29 U.S.C. 152(11); see Kentucky

River, 532 U.S. at 713. The burden of proving supervisory status falls on the party

asserting it. Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298, 305 (6th Cir. 2012).

The Center argued to the Board’s regional director that its RNs are supervisors

because they have authority to discipline, assign, and responsibly direct CNAs, all by

using independent judgment. It now argues that substantial evidence does not support

the regional director’s contrary determination.

B.

We begin with the Center’s argument on discipline. The Board’s regional

director determined that the Center’s RN charge nurses lacked the authority to discipline

CNAs, reasoning that they “merely report misconduct” to the Director of Nursing, a

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function that he concluded “does not constitute supervisory authority.” Critical to his

determination was that RNs did not determine or provide input regarding what level of

discipline to impose. The regional director further concluded that the RNs’ authority to

send CNAs home for the remainder of their shift in cases of patient abuse also does not

establish supervisory status.

We summarily reject the Center’s challenge to this last conclusion. The Board

has repeatedly found that authority to send home employees, when limited to flagrant

misconduct (e.g., behavior that endangers the health or safety of patients), does not

require independent judgment and therefore cannot establish supervisory authority. See,

e.g., Vencor Hosp.-L.A., 328 NLRB 1136, 1139 (1999); Northcrest Nursing Home,

313 NLRB 491, 497 (1993). And we have agreed. See Frenchtown, 683 F.3d at 309;

accord Jochims v. NLRB, 480 F.3d 1161, 1171–72 (D.C. Cir. 2007); but see Warner Co.

v. NLRB, 365 F.2d 435, 439 (3d Cir. 1966) (“It can scarcely be denied that sending a

man home is discipline or that it does require the use of independent judgment.”). The

regional director’s decision in this respect is consistent with the Board’s precedent and

our own.

Turning to the heart of the regional director’s decision on discipline, we must

decide whether substantial evidence on the record as a whole supports the determination

that the Center’s RNs perform only a reporting function with respect to CNA

misconduct, something the parties agree does not create supervisory status, see also

Carlisle Engineered Prods., Inc., 330 NLRB 1359, 1360 (2000). According to the

Center, the record evidence shows that the disciplinary authority its RNs possess defies

the regional director’s characterization, and his adverse ruling is based upon a

fundamental misunderstanding of the Center’s disciplinary regime. We agree.

When confronted with CNA misconduct, RNs can either do nothing, provide

verbal counseling (and decide whether to document the counseling), or draw up a written

memorandum; choosing the appropriate path in each instance, the Center contends,

involves independent judgment. The Board responds that a verbal warning, documented

or not, is educational in nature, not disciplinary. The Board is correct. The Center’s

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written disciplinary policy never mentions verbal warnings. Karen Price, an Assistant

Director of Nursing at the Center, testified that “verbal counseling doesn’t count against

you like a written warning would. It’s not part of the four-step process.” Charge nurse

Vicki Jones said much the same. Thus, even though RNs have a choice between

ignoring the infraction or offering verbal counseling, that does not make them

supervisors because they do not impose discipline when giving verbal counseling. Cf.

Frenchtown, 683 F.3d at 306–08 (agreeing that “one-on-one in-services” used “to

correct the aides’ performance by educating aides on what is expected of them” were

“outside of the realm of discipline” where, among other things, the employer’s

disciplinary policy did not mention them and they could not lead to formal discipline).

However, the Board’s point regarding the irrelevance of an RN’s choice between

doing nothing and providing verbal counseling fails to answer the Center’s charge that

RNs may also proceed by way of an employee memorandum, which the Center contends

is part of its progressive disciplinary system and is thus discipline. The Center’s

arguments are persuasive. Receipt of an employee memorandum leads automatically to

a written warning, which is a “step” in the Center’s system of progressive discipline.

Therefore, the authority that RNs have to issue memoranda to CNAs is the authority to

discipline. And because RNs exercise independent judgment in choosing whether to

issue a memoranda or provide verbal counseling, they are supervisors under the Act.

The Board’s failure to acknowledge that receipt of a written warning is itself discipline

renders its contrary determination unsupported by substantial evidence. See, e.g.,

Lakeland Health Care Assocs., 696 F.3d at 1335.

The Center’s employee handbook divides disciplinary infractions into two

camps. Category one violations “are the most serious and are subject to the employee’s

immediate suspension, pending investigation for discharge” (e.g., resident abuse or

neglect, possession of a firearm on the premises), while those in category two are “less

serious in nature” (e.g., failure to perform assigned duties, poor work quality or

productivity, stopping work early). Category one offenses “are subject to the

employee’s immediate suspension, pending investigation for discharge.” Progressive

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discipline, by contrast, is imposed for category two types and gives the employee

multiple opportunities before being suspended and then fired. “Written warnings” are

received for an employee’s first three category two violations. Termination will

normally occur for the fourth infraction. CNA Lena Harness, for example, was fired

after receiving four memoranda in a year. Her first two were for failure to perform

assigned duties; her last two were for violating the Center’s formal attendance policy.

The Center’s Human Resources Management Policies and Procedures Manual

echos its handbook and provides further detail. It institutes the “Employee

Memorandum,” which implements the Center’s discipline policy. A memorandum is

valid for twelve months, after which time it “becomes invalid for use in progressive

discipline or discharge[.]” The manual also provides that “[v]iolations of different rules

are cumulative for purposes of progressive discipline even if unrelated or remote.” Each

of the first three category two violations in a twelve-month period yields a written

warning (steps “one” through “three”), with the fourth leading to suspension pending an

investigation (step “four”). Discharge follows “if the investigation indicates that the

misconduct occurred.”

Then there is the employee memorandum form itself. This pre-printed form

includes a space for explaining the violation and for listing the employee’s disciplinary

actions for the past twelve months; it appears that the charge nurse does not list the

CNA’s prior disciplinary history and instead leaves that part blank. The form then asks

for the category of violation observed, which the charge nurse indicates. If the box for

“Category Two Violation” is noted, the form asks which “step” in the process the

violation constitutes, the answer to which depends entirely on the number of written

warnings received over the last year. Charge nurses do not indicate which step is

involved, because they typically do not know. The cited CNA signs the form on the line

indicated “Employee,” and the charge nurse signs on the line for “Supervisor.”

Sometimes the Director of Nursing or the Assistant Director signs the form, either

underneath the charge nurse’s signature or sometimes as the sole signature of the

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 10

“supervisor.” For example, Harness’s first two violations were signed by charge nurses;

her last two were signed by the Director of Nursing.

Consistent with these documents, assistant nursing director Karen Price testified

unequivocally that a memorandum is “considered a write-up or disciplinary action” that

is part of the Center’s “four-step process.” That point is obvious, and not one person or

document refutes it. Nevertheless, the Board contends that the Center failed to prove

that employee memoranda “trigger investigations or have a disciplinary effect, or serve

any purpose beyond informing management about employee misconduct.” That claim

is inaccurate and not supported by the record.

The Board relies upon a single exchange between counsel and charge nurse Vicki

Jones:

Q. Is your role then limited to documenting the incident or do you do

more?

A. That’s it.

But Jones also testified that she can “impose discipline” upon CNAs who violate

company policy by completing a memorandum. And while an RN’s role in the process

is limited to completing the employee memorandum and submitting it to the Director of

Nursing, it is that very act that leads directly and automatically to a written warning—a

“step” in the company’s policy of progressive discipline.

The Board’s position on discipline is essentially that, to be considered

“discipline,” the employee must suffer some immediate adverse employment action as

a result of receiving an employee memorandum, such as suspension or termination, and

because RN charge nurses cannot suspend or terminate a CNA’s employment

unilaterally, they lack authority to discipline. This position runs headlong into the labor

statute’s plain text. Discipline cannot be synonymous with suspension or termination,

for the statute lists these supervisory functions individually, and in the disjunctive: A

supervisor is “any individual having authority . . . to . . . suspend, . . . discharge, . . . or

discipline other employees . . . .” 29 U.S.C. § 152(11) (emphasis added); see Kentucky

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River, 532 U.S. at 713 (supervisors “hold the authority to engage in any 1 of the 12 listed

supervisory functions” (emphasis added)). Equating the term discipline with the terms

suspend or discharge would render it superfluous, a reading we must try to avoid. See

Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 112 (1991). The term

discipline must capture something less.

The Board has in other cases acknowledged that discipline is something less. It

has said, for example, that “for the issuance of reprimands or warnings to constitute

statutory supervisory authority, the warning must not only initiate, or be considered in

determining future disciplinary action, but also it must be the basis of later personnel

action without independent investigation or review by other supervisors.” Phelps Cmty.

Med. Ctr., 295 NLRB 486, 490 (1989) (internal quotation marks omitted). Further, a

warning need not “automatically lead[] to an action affecting employment. . . . [I]t is

sufficient that the discipline has the real potential to lead to an impact on employment.”

Progressive Transp. Servs. Inc., 340 NLRB 1044, 1046 (2003). The Board has also

explained that write-ups are a form of discipline where they “lay a foundation, under [a]

progressive disciplinary system,” for later personnel action, such as suspension or

termination. Oak Park Nursing Care Ctr., 351 NLRB 27, 28, 29 (2007). Generally,

where an employer maintains a defined progressive discipline policy, and cited

violations of company policy count toward the number of missteps permitted before

termination, those with independent authority to issue the citations are supervisors. See,

e.g., Concourse Vill., Inc., 276 NLRB 12, 13 (1985); see also Waverly-Cedar Falls

Health Care, 297 NLRB 390, 392 (1989); Ohio Masonic Home, 295 NLRB 390, 393–94

(1989); Passavant Health Ctr., 284 NLRB 887, 889–90 (1987).

In the present case, the written warnings that follow from receipt of an employee

memoranda satisfy the criteria for discipline. Under the Center’s progressive discipline

policy, the existence of earlier written warnings determines whether suspension and

termination are imposed for a later category two violation, based upon the number of

warnings already received that year. The actions giving rise to memoranda are

investigated neither at the time of the infraction nor later, when the warning provides a

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 12

basis for the CNA’s suspension and termination; only the fourth memoranda received

in a twelve-month period is investigated before the employee is terminated. The

warnings thus “lay a foundation” for future adverse employment action. Accordingly,

memoranda/warnings are discipline. Substantial evidence does not support the regional

director’s contrary determination.

The record also demonstrates that RNs exercise independent judgment when

issuing employee memoranda. There is no doubt that when faced with a lesser violation

the Center’s RNs choose whether to issue an employee memorandum (discipline), to

provide verbal counseling (not discipline), or to take no action at all. The choice

depends on the RN’s determination of how severe the violation is, and, indeed, the

record contains instances of a CNA’s failure to perform assigned duties or having a poor

work product being handled differently by the RNs; sometimes the CNA received verbal

counseling, and sometimes she received a memorandum. The Board has before

determined that making this type of choice requires independent judgment. See Oak

Park Nursing Care Ctr., 351 NLRB at 29. We have said the same. See Extendicare

Health Servs., Inc. v. NLRB, 182 F. App’x 412, 417 (6th Cir. 2006).

The larger question is whether the RNs must consult with a superior and obtain

approval before issuing a memorandum; if they must, their judgment is unlikely

“independent.” See Oakwood Healthcare, Inc., 348 NLRB 686, 692–93 (2006); Phelps

Cmty. Med. Ctr., 295 NLRB at 490–91. The record shows that consultation and

approval is neither required nor typical. Karen Price testified that none is required. She

also said that memoranda are forwarded to her for information purposes only, so that she

knows what happens on the floor, not so that she can approve (or reject) the RN’s

decision.

In addition, Vicki Jones described her involvement with memoranda as follows:

“I call [the Director of Nursing] on the phone. I show her where the situation is. I fill

out the form and I slip it under her door. And I don’t hear anything back, no feedback

on it.” She explained that sometimes the Director will suggest how to proceed, “[b]ut

for the most part,” Jones continued, the Director “just listens.” That advice sometimes

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 13

is provided does not mean that Jones or others do not typically exercise discretion in

deciding how to proceed—they do. Indeed, Jones’s use of the word sometimes

demonstrates that it is not the norm. Compare Concourse Vill., 276 NLRB at 13

(worker’s issuance of some warnings pursuant to a superior’s directive did not negate

supervisor status based on disciplinary authority, because the worker issued other

warnings independently); with Highland Superstores, Inc. v. NLRB, 927 F.2d 918, 922

(6th Cir. 1991) (leadman was not a supervisor when he issued a disciplinary notice only

when instructed).

Just one statement from Jones points the other way, and it cannot support a

finding that RN authority to discipline is of a “routine or clerical nature.” When asked

if she can resolve disciplinary problems on her own or if she instead seeks guidance,

Jones responded, “I seek guidance.” But she neither explained her answer nor provided

details. Moreover, she earlier testified that no one instructs her when to fill out an

employee memorandum in a given situation; it is her choice. In view of the record as

a whole, the Center plainly met its burden to demonstrate that its RNs utilize

independent judgment in exercising their disciplinary authority.

V.

For these reasons, substantial evidence does not support the Board’s decision that

RNs at the Center lack authority to discipline CNAs using their independent judgment.

The record instead compels a contrary determination. The Center’s RNs are supervisors

under the Act, and, as a result, the Center’s refusal to bargain with the RNs’ union

representative did not violate the Act. We grant the Center’s petition for review, vacate

the Board’s order of April 9, 2012, and deny the Board’s cross-application for

enforcement.

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 14

__________________

DISSENT

__________________

MERRITT, Circuit Judge, dissenting. In reaching its judgment against the union,

the court expands the meaning of “discipline” beyond any dictionary definition and

engages in linguistic wordplay over the word without even referring to or trying to

understand the purpose of the statutory language at issue.

1. Denying RNs the Right to Union Membership Defies Congressional Intent.

— Under the labor laws, the definition of “discipline” is directly linked to the question

of whether a person is a “supervisor” and hence a part of management. The whole

purpose of defining “discipline” is to establish whether an employee is a “supervisor”

and therefore excluded from union membership. The purpose is simply to insure that

supervisors will be loyal to their employers and not be tempted to serve the union’s

conflicting interests. The Supreme Court has explained the purpose of this labor-law

distinction between regular and supervisory employees:

There were differences in the specific [proposed] provisions addressed

to supervisory employees, but no difference in objective. Employers

were not to be obliged to recognize and bargain with unions including or

composed of supervisors, because supervisors were management obliged

to be loyal to their employer’s interests, and their identity with the

interests of rank-and-file employees might impair that loyalty and

threaten realization of the basic ends of federal labor legislation.

Beasley v. Food Fair of N.C., Inc., 416 U.S. 653, 659-660 (1974) (a unanimous decision

quoting at length the House and Senate Reports concerning the union-membership

exemption for supervisory employees who have the authority to “hire,” “fire,” and

“discipline” other employees) (footnotes omitted).

When disciplinary action against a nurse or hospital employee comes only after

the director of nursing or the assistant director conducts an investigation and exercises

independent judgment or authority — as is true in this case — the RNs’ write-ups are

simply informational. The RNs do not exercise the required independent judgment about

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 15

discipline. They may exercise discretion or choice about whether to make a report, but

they exercise no independent judgment or any authority about disciplining another

employee. Obviously, if every employee who is allowed or invited by management to

make a report and pass on information to the employer about fellow employees is denied

the right to union membership, there would be very few employees eligible for union

membership. Under the majority’s theory, an employer could simply invite all of its

employees to make reports on other employees. Any such employee would play a role

in the “disciplinary process” and hence become a “supervisor.” The employee would

be excluded from membership in a union and denied the right to collective bargaining.

This is the broad standard the majority has adopted, and it is in direct conflict with the

purpose of the Wagner and the Taft-Hartley Acts. It is a standard designed simply to

foreclose collective bargaining, avoid unions, and go back to the unstable labor-

management relations that existed prior to the New Deal.

2. Finding the RNs to Be Supervisors Is Inconsistent with Precedent. — See,

for example, Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298, 308 (6th Cir. 2012),

a case similar to this one holding that the fact that a report could result in disciplinary

action is irrelevant and not enough to make the filer of the complaint a supervisor.1 See

also NLRB v. Meenan Oil Co., 139 F.3d 311, 322 (2d Cir. 1998) (holding that a

dispatcher who notifies a supervisor to complain about an employee’s conduct is merely

acting as a conduit for information and exercises no disciplinary judgment in passing

along the complaint). The majority’s broad construction of the word “discipline” and

1

The Court in Frenchtown explained as follows:

Deciding whether an individual is a supervisor is a “highly fact intensive inquiry.”

Kentucky River Community Care, Inc. v. NLRB, 193 F.3d 444, 453 (6th Cir. 2000),

aff’d, Kentucky River, 532 U.S. 706, 121 S. Ct. 1861. In conducting this inquiry, the

Board and “reviewing courts must take care to assure that exemptions from NLRA

coverage are not so expansively interpreted as to deny protection to workers the Act was

designed to reach.” Holly Farms Corp. v. NLRB, 517 U.S. 392, 399, 116 S. Ct. 1396,

134 L.Ed.2d 593 (1996) (deferring to the Board’s decision that certain workers were not

“agricultural laborer[s]” and were therefore eligible to unionize under the Act). This

court has endorsed the same principle in the context of determining whether individuals

are supervisors. “It is important for the Board not to construe supervisory status too

broadly, for a worker who is deemed to be a supervisor loses his organizational rights.”

Williamson Piggly Wiggly v. NLRB, 827 F.2d 1098, 1100 (6th Cir. 1987) (brackets and

internal quotation marks omitted).

683 F.3d at 305.

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 16

“supervisory status” will defeat the entire process of union recognition in the health care

field under the Wagner and Taft-Hartley Acts. See Kristin Hay O’Neal, Comment and

Note, “NLRB v. Health Care & Retirement Corporation of America: Possible

Implications for Supervisory Status Analysis of Professionals under the National Labor

Relations Act,” 47 BAYLOR L. REV. 841 (1995).

The employer relies heavily on an unpublished case without precedential value,

Extendicare Health Servs., Inc. v. NLRB, 182 F. App’x 412, 416-17 (6th Cir. 2006), but

in that case a write-up initiated formal disciplinary proceedings, which led directly and

automatically to an investigation and appropriate sanction. Here, there is no such

automatic trigger. The RNs here do not have access to employee files so they have no

idea if they are the first to complain or the last and have no way of knowing whether

their particular complaint led to any discipline and, if so, what kind. App’x 125-27. The

employee forms contain a section to indicate the “step” in a process, but the nurses leave

this section blank and, in fact, must do so because there is no way of knowing what stage

the employee is in. App’x 92. The Human Resources Management Policies and

Procedures Manual explicitly states that appropriate discipline will be determined “at the

Company’s discretion on the basis of the particular facts or circumstances.” App’x 265.

In short, there was evidence to support the finding that the nurses have no authority over

disciplinary action, they are not present when such action is imposed, and they are

simply left with the ministerial task of filling out the complaint form. That hardly

qualifies them as a “supervisor” who has become a member of management and lost her

eligibility for union membership.

3. The Majority Opinion Is Inconsistent with Chevron Deference. — In Chevron

USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the Supreme Court

held that where Congress fails to resolve ambiguity in the meaning of words — words

like “discipline” in this case — the courts must defer to an agency’s interpretation if it

“is based on a permissible construction of the statute.” Id. at 843. The Supreme Court

has applied Chevron deference in several NLRB cases. For example, in Holly Farms

Corp. v. NLRB, 517 U.S. 392, 398-99 (1996), the Court said:

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 17

When the legislative prescription is not free from ambiguity, the

administrator must choose between conflicting reasonable

interpretations. Courts, in turn, must respect the judgment of the agency

empowered to apply the law “to varying fact patterns,” even if the issue

“with nearly equal reason [might] be resolved one way rather than

another.”

The NLRB has a longstanding interpretation of the term “discipline” that we

should pay deference to. To be considered “discipline” under the statute, a warning or

write-up must “not only initiate, or be considered in determining future disciplinary

action, but also it must be the basis of later personnel action without independent

investigation or review by other supervisors.” Passavant Health Ctr., 284 N.L.R.B. 887,

890 (1987). Mere complaints that “do not alone affect job status or tenure do not

constitute supervisory authority” and amount to “nothing more than a reporting

function.” Id. at 889. The employer in this case does not challenge the reasonableness

of this definition of “discipline.” Neither does the majority. They just assert that the

forms meet the test. Manifestly, the forms do not convert the RNs into supervisors. The

employee memorandums lead to no consequences until higher management steps in,

independently investigates the situation, and makes a management decision.

4. No Action by Management Taken Arising from a RN Write-Up. — Counsel

for the NLRB in its brief states as a fact: “The Center does not cite a single instance in

which a write-up written by a charge nurse resulted in an investigation or disciplinary

proceeding.” NLRB Br. at 12. Apparently, neither can the majority find any instance

in the entire history of the company where an RN’s write-up against a fellow employee

caused any punishment at all by a supervisor or an executive — not even a frown, a

warning, a threat to suspend or reduce pay, or any other real disciplinary action. It

speaks volumes about the meaning of the ambiguous word “discipline” in this case that

the employer and my colleagues can find no instance in which an RN’s complaint has

ever led directly to anything resembling an order, command, chastisement, or correction

designed to alter a nurse’s behavior. The company has drafted a nominal procedure that

has never led to anything but an excuse for allowing the company to avoid recognizing

and bargaining collectively with the union that its employees voted for as their

Nos. 12-1529/1628 GGNSC Springfield v. NLRB Page 18

representative. That anti-union purpose seems to be the only real purpose of the form;

and, thanks to the court, the company has gotten away with its anti-union charade despite

the purpose of the labor statute, the NLRB’s factual findings, and the deference that this

court is supposed to give the administrative agency. The testimony of RN Vicki Jones

reinforces the administrative agency’s conclusion that the forms are just a way to defeat

the union:

Hearing Officer Adkins: Is your role then limited to documenting the

incident or do you do more?

Jones: That’s it. . . .

Hearing Officer: What involvement if any does the [Director of Nursing]

have in these forms with you? Do you all sit down together, go over

them together?

Jones: No, ma’am. I call her on the phone. I show her where the

situation is. I fill out the form and I slip it under her door. And I don’t

hear anything back, no feedback on it.

App’x 125, 127.

Should this type of arrangement turn the RN into a “supervisor” or member of

management that makes her ineligible for union membership, collective bargaining, or

representation?