11th. Circuit Court of Appeals vacates NLRB decision in LAKELAND HEALTH CARE ASSOCIATES, LLC versus NATIONAL LABOR RELATIONS BOARD, N.L.R.B. Case No. 12-CA-27044

The United States 11^th. Circuit Court of Appeals accuses the NLRB of meticulously excluding or disregarding record evidence which compels a different result.

Lakeland admits that it refused to bargain with the Union, but argues that its refusal does not violate the Act because the Union was improperly certified in the underlying representation proceedings (Board Case No. 12-RC-9426).

Accordingly, the sole issue on appeal was whether substantial record evidence supports the Board’s determination that certain licensed practical nurses (“LPNs”) employed by Lakeland are “supervisors” within the meaning of section 2(11) of the Act.

Worth noting, All of the LPNs at issue in this case also served as “team leaders”—a term which Lakeland uses interchangeably with the term “charge nurses.”

Legal Framework for the decision:

Whether Lakeland is in violation of the Act hinges on whether its LPNs are properly regarded as “employees” or “supervisors.” Under the structure of the Act, if the LPNs are “employees,” they are guaranteed the right to unionize. (“Employees shall have the right to self-organization . . . .”). If they are “supervisors,” they are not. (“The term ‘employee’ . . . shall not include . . . any individual employed as a supervisor . . ..”).

Section 2(11) of the Act defines a “supervisor” as: 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.

Accordingly, an individual is a “supervisor” under the Act if: (1) he or she has the authority to perform one of the twelve supervisory functions described in the statute; (2) the exercise of that authority requires the use of independent judgment; and (3) such authority is held in the interest of the employer.

According to Lakeland, the most compelling reason why the Board’s decision should be vacated is because the LPNs, using their own independent judgment and discretion, initiate the process to discipline, suspend, and terminate CNAs. More to the point, Lakeland argues that the Board’s decision is not supported by substantial evidence inasmuch as it misconstrues and disregards critical evidence concerning the LPNs’ role in the disciplinary process for CNAs.

11^th. Circuit Court of Appeal’s very critical response:  “While we are mindful of the limited nature of our review in this appeal, this is not a case in which we merely disagree with the Board’s conclusions. Our review of the record as a whole reveals that the Board meticulously excluded or disregarded record evidence, which, when taken into account, compels a different result.”

Download the United States 11^th. Circuit Court of Appeals decision here…