In Lakeland Health Care Associates, LLC v. NLRB, the US Court of Appeals for the Eleventh Circuit reviewed an NLRB determination that licensed practical nurses (LPNs) at a health care center were not supervisors under the NLRA and therefore were eligible for union representation. A key litigated issue in the appeal was whether the NLRB's decision was supported by substantial evidence in the record. In particular, the court considered whether the NLRB misconstrued evidence about the LPNs' role in:

In 2010, the union representing certified nursing assistants (CNAs) at Lakeland Health Care Associates, LLC, sought recognition as the collective bargaining representative for Lakeland's LPNs. Lakeland opposed the union's petition, claiming the LPNs were supervisors under the NLRA and were therefore ineligible for representation. After a hearing, the NLRB found LPNs were not supervisors and denied Lakeland's request for review of the decision.

Once the union was certified as the exclusive bargaining representative for Lakeland's LPNs, it filed an unfair labor practice charge against Lakeland for refusing to recognize and bargain with the union. The NLRB's General Counsel filed a complaint against Lakeland and a three-member panel (Board) heading the NLRB's judicial functions granted summary judgment in the General Counsel's favor, finding Lakeland violated the NLRA. Lakeland appealed to the Eleventh Circuit and the NLRB cross-appealed for enforcement of the Board's decision.

On October 2, 2012, the Eleventh Circuit issued an opinion vacating the decision and denying the NLRB's petition for enforcement. In reviewing NLRB decisions, the Eleventh Circuit is bound to the NLRB's factual findings if they are, on the whole, supported by substantial evidence in the record, an "exceedingly narrow" standard of review. In this case, however, the Eleventh Circuit found the NLRB's decision that the LPNs were not supervisors was not supported by substantial record evidence.

Under the NLRA, only employees have the right to unionize, not supervisors. Section 2(11) of the NLRA defines a supervisor as any person with the authority to engage in any one of 12 enumerated supervisory functions, including disciplining and assigning employees and responsibly directing them (29 U.S.C. § 152(11) (2011)).

To establish supervisory status, an employer must show by a preponderance of the evidence that:

The court found that the LPNs had the authority to discipline, suspend and effectively recommend the termination of the CNAs using their independent judgment, through their use of level one and two "coachings." At Lakeland, LPNs prepare the coachings, either on their own initiative or at management's instruction. A level one coaching may be issued for minor infractions and may or may not result in discipline, although employees with four active level one coachings are automatically terminated. A level two coaching is issued for more serious infractions and leads to an automatic suspension.

The Board found that LPNs were merely responsible for reporting employee misconduct, so to the extent LPNs had any disciplinary authority to implement level two coachings, exercising that authority did not require the use of their independent judgment. The court disagreed, finding the Board "meticulously excluded or disregarded record evidence" to the contrary, including:

The court also found that the LPNs' involvement in level one coachings established their supervisory status, refuting the Board's findings that the evidence presented on level one coachings was vague or showed they were issued automatically without an LPN's exercise of independent judgment. In particular, the court found that the Board disregarded evidence of LPNs disciplining CNAs by using level one coaching plans mainly because there was no evidence a CNA had been terminated because of multiple level one coachings. The court rejected the Board's inference that LPNs could not recommend termination merely because there was no evidence they had exercised that authority.

Finally, the court also found that LPNs had the authority to:

One circuit judge dissented, finding the majority opinion failed to adhere to the court's deferential standard of review since there was substantial evidence in the record to support the Board's findings.

The Eleventh Circuit's decision highlights the Board's and several circuit courts' differing analyses of supervisory status under the NLRA. Where opinions from the US Courts of Appeals for the Fourth, Sixth and Eleventh Circuits relied on evidence that LPNs had supervisory authority over CNAs, the Board's decision placed more emphasis on whether the LPNs actually exercised that authority. Employers in the Eleventh Circuit should be aware that the appellate court may analyze supervisory status under the NLRA more broadly than the NLRB, and therefore find fewer employees are eligible for union representation than under the NLRB's analysis.