Eleventh Circuit Tosses NLRB's Finding on "Supervisor" Status

by Constangy, Brooks, Smith & Prophete, LLP

In recent years, the National Labor Relations Board has been aggressively seeking to narrow the interpretation of "supervisor" in an effort to expand the opportunities for unions to organize "employees," who, by definition under the National Labor Relations Act, are not "supervisors." The U.S. Court of Appeals for the Eleventh Circuit recently refused to enforce a Board decision against Lakeland Health Care Associates, LLC, a long-term care facility, which had contested a Board election and certification of a bargaining unit of Licensed Practical Nurses. The Eleventh Circuit, in a 2-1 decision, found that the Board had "meticulously excluded or disregarded" evidence that the LPNs were supervisors. Because the Board lacked substantial evidence to support its conclusion that the LPNs were employees rather than supervisors, the court found that the Board had improperly certified a local of the United Food and Commercial Workers union as the LPNs' representative.

The Act's Definition of Supervisor

Under Section 2(11) of the NLRA, a supervisor is

… any individual having authority, 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.


The UFCW already represented the Certified Nursing Assistants at Lakeland and then attempted to organize the LPNs. Lakeland challenged the attempt, arguing that the LPNs had supervisory authority over the CNAs and responsibly directed and assigned their work. Therefore, Lakeland argued, the LPNs were "supervisors," not "employees," under the NLRA, and the proposed bargaining unit of supervisors was not an appropriate unit for an election. The Union disagreed. The Board's Regional Director ordered a unit hearing on the issue and ultimately agreed with the Union. The Regional Director ordered an election in the LPN unit, and the Union won. Lakeland requested that the NLRB review the Regional Director's decision about the LPNs' supervisory status, but the Board declined to do so. Lakeland refused to bargain with the Union, and Lakeland and the NLRB both filed petitions asking to have the case heard by the Eleventh Circuit.

The Case Crossfire

In the pre-election hearing at the Region level, Lakeland had argued and shown, in some instances with uncontradicted evidence, that the LPNs had some supervisory responsibilities, although they were exercised only intermittently, and that the LPNs responsibly directed and assigned the work of the CNAs.

Citing NLRB v. Health Care & Ret. Corp., the Eleventh Circuit's two-judge majority, Judges Gerald B. Tjoflat and Paul C. Huck, applied the commonly-used standard that an individual is a "supervisor" for NLRA purposes 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."

Lakeland contended that the evidence clearly showed (1) that LPNs had authority to discipline, suspend, and effectively recommend termination of CNAs, and (2) that the exercise of that authority required the use of independent judgment. It also contended that the LPNs responsibly directed and assigned the work of CNAs. The Board's General Counsel, of course, contended otherwise. (There was no dispute that the LPNs' activity was in the interest of Lakeland.)

Judges Tjoflat and Huck found that there was clear, undisputed evidence that Lakeland had a two-level progressive discipline system for its CNAs and that the LPNs had the authority to give coaching and make judgments with respect to conduct by CNAs that could result in discipline. The LPNs had authority to initiate and implement coaching with respect to certain serious offenses, and they had the authority to recommend suspension and termination. The court found that the frequency of exercise of the authority was not the determining factor and faulted the Board for basing its conclusions on the exercise of supervisory authority rather than the presence of such authority. The majority said, "The frequency with which an employee exercises disciplinary authority – authority that, in an ideal workplace, will be exercised infrequently or sparingly – cannot be determinative of the existence of supervisory authority."

The majority, again based in part on undisputed evidence, also rejected the Board's argument that the LPNs merely reported misconduct that they saw and did not exercise "independent judgment" about the conduct. According to the majority, LPNs had "the discretionary authority to determine whether formal discipline [was] warranted in the first place" and were required to exercise judgment about possible offenses.

Finally, the court found that the LPNs' supervisory status was not affected by the fact that no LPN had ever been actually disciplined for failure to direct or supervise a CNA. According to the majority, a supervisor "responsibly" directs or assigns work when the supervisor faces the prospect of adverse consequences for failing to exercise proper supervision. It is not necessary for the employer to show that a supervisor was, in fact, disciplined.

In dissent, Judge William H. Pryor argued that the court was improperly "reweighing the evidence." Noting that there was some evidence supporting the Board's conclusions, Judge Pryor asserted that the Board was entitled to draw reasonable inferences from the evidence and said that he would have enforced the Board's decision.

But Judges Tjoflat and Huck contended that they had applied the proper standard for review: "[T]his 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."

The Future: More Appeals Court Activity?

Given the continuing and possibly accelerating leftward tilt of the Board and the Regions, we expect an increasing number of petitions to the U.S. Courts of Appeal for review of the Board's expansive interpretations of the NLRA. Employers can be expected to resist and challenge any Board efforts to "meticulously exclude or disregard" evidence. Supervisory status was the issue central to the Lakeland case -- and it is a big issue -- but other areas where the Board positions are vulnerable to court challenge include social media policies, non-unionized workplaces, employee rules, and employment-at-will and other statements in employee handbooks and policy manuals.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Constangy, Brooks, Smith & Prophete, LLP | Attorney Advertising

Written by:

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.