                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0123n.06

                                          No. 16-1310                                 FILED
                                                                                Feb 23, 2017
                          UNITED STATES COURT OF APPEALS
                                                                            DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,                    )
                                                   )
       Petitioner,                                 )
                                                   )
v.                                                 )           ON APPLICATION FOR
                                                   )           ENFORCEMENT OF AN
LAKEPOINTE SENIOR             CARE      &    REHAB )           ORDER OF THE NATIONAL
CENTER, LLC,                                       )           LABOR RELATIONS BOARD
                                                   )
       Respondent.                                 )


       Before: MERRITT, ROGERS, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Lakepointe Senior Care & Rehab, LLC, operates a long-

term care facility in Michigan. It employs licensed practical nurses and registered nurses, which

together are called “charge nurses.” The National Labor Relations Board permitted the charge

nurses to bargain with Lakepointe through a union, SEIU Healthcare Michigan (the Union),

because the Board determined that they were “employees” rather than “supervisors” under the

National Labor Relations Act. That determination was not supported by substantial evidence,

and thus we deny the Board’s application for enforcement of its order requiring Lakepointe to

bargain with the Union.

                                               I.

       The National Labor Relations Act gives employees, but not supervisors, the right to

bargain collectively with their employers. 29 U.S.C. §§ 152(3), 157. The Board’s regional

directors determine who counts as an “employee” under the Act (and thus who has a right to
No. 16-1310, NLRB v. Lakepointe Senior Care & Rehab Center


union representation) in “representation proceeding[s].” See 29 C.F.R. §§ 102.61, 102.67. After

the Board identifies a group of employees who are entitled to union representation, it allows

them to vote on whether the union will represent their interests. See 29 U.S.C. § 159. If a

majority of the employees vote to join the union, but their employer refuses to bargain with it,

the Board may find that the employer has committed an “unfair labor practice” in violation of the

Act and order the employer to bargain. Id. §§ 158(a)(5), 159, 160.

       In 2005, the Union asked the Board to recognize Lakepointe’s charge nurses as

employees under the Act, so that the Union could represent them.            In the representation

proceeding that followed, the Board found that Lakepointe’s charge nurses were supervisors

rather than employees. It therefore denied the Union’s request. About ten years later, the Union

filed another petition with the Board, again seeking to bargain on behalf of Lakepointe’s charge

nurses. Lakepointe moved to dismiss, arguing that the Board’s earlier determination that the

nurses were supervisors barred the Union’s second petition to represent them. The Board’s

regional director denied Lakepointe’s motion and held a representation hearing, during which

Lakepointe offered evidence that its charge nurses supervised its certified nursing assistants. The

regional director determined that Lakepointe’s charge nurses were employees and thus were

entitled to union representation. A majority of the nurses thereafter voted to join the Union, but

Lakepointe refused to bargain with the Union on their behalf. The Union filed a complaint with

the Board, which determined that Lakepointe’s refusal was an unfair labor practice. Hence the

Board ordered Lakepointe to bargain. The Board now petitions for enforcement of that order.




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No. 16-1310, NLRB v. Lakepointe Senior Care & Rehab Center


                                                 II.

                                                 A.

       As an initial matter, Lakepointe argues that the Board misapplied its nonrelitigation rule.

We review for an abuse of discretion the Board’s application of this rule, which bars parties from

“litigating, in any related subsequent unfair labor practice proceeding, any issue which was, or

could have been, raised in the [prior] representation proceeding.” 29 C.F.R. § 102.67(g); Salem

Hosp. Corp. v. NLRB, 808 F.3d 59, 73 (D.C. Cir. 2015).

       Lakepointe contends that the Board’s determination in 2005—that the charge nurses were

supervisors—barred the Union from arguing that the nurses were employees in a second

proceeding in 2015. But the Board prohibits relitigation in a “subsequent unfair labor practice

proceeding,” not a subsequent representation proceeding. 29 C.F.R. § 102.67(g). Here we have

a subsequent representation proceeding, so the rule by its terms does not apply. The Board

therefore did not abuse its discretion when it declined to apply the rule.

                                                 B.

       Lakepointe argues that the charge nurses were supervisors and thus not entitled to

unionize under the Act. See 29 U.S.C. § 152(3), (11). We review for substantial evidence the

Board’s determination that Lakepointe’s charge nurses were employees. 29 U.S.C. § 160(e), (f);

Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298, 305-06 (6th Cir. 2012).             Substantial

evidence is evidence that “a reasonable mind might accept as adequate to support a

conclusion[.]” Williamson v. NLRB, 643 F.3d 481, 485 (6th Cir. 2011) (citation omitted).

       In representation proceedings, the employer bears the burden of showing, by a

preponderance of the evidence, that the putative employees are actually supervisors. Frenchtown

Acquisition Co., 683 F.3d at 305. To be a supervisor, one must perform or “recommend” action



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on at least one of twelve functions, which include imposing “discipline” on other employees.

29 U.S.C. § 152(11); NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 713 (2001). A person

who recommends discipline—or recommends any other kind of action under 29 U.S.C.

§ 152(11)—will be a supervisor only if her recommendations are “effective,” which means that

managers give weight to them. See Caremore, Inc. v. NLRB, 129 F.3d 365, 369-70 (6th Cir.

1997). Supervisors must also use “independent judgment” when deciding whether to exercise

their authority. Ky. River Cmty. Care, Inc., 532 U.S. at 713 (quoting 29 U.S.C. § 152(11)).

       Here, the Board argues that Lakepointe’s charge nurses were employees because, the

Board says, the nurses did not effectively recommended discipline, among other things.

Lakepointe presented evidence, however, that its nurses used disciplinary forms to “write up”

certified nursing assistants (the “aides”) for misconduct—and that those forms invariably led to

discipline.   The question here largely turns on whether the charge nurses imposed or

recommended discipline when they wrote up the aides for misconduct with these forms.

                                               1.

       The Board contends that Lakepointe’s charge nurses used the disciplinary forms merely

to report the aides’ work performance, not to recommend discipline. Where a person acts “as a

conduit for information and exercises no judgment in passing the knowledge along to

management,” he does not independently recommend discipline. Frenchtown Acquisition Co.,

683 F.3d at 308 (citations omitted). But the evidence shows that Lakepointe’s charge nurses

were more than mere conduits. The nurses testified that, when they learned that an aide had

violated work rules, they had a choice: they could counsel the aide, do nothing, or write up the

aide with the disciplinary form. If the charge nurse chose to fill out the form, she would write

down what the aide did wrong, explain what the aide should have done, and sign above a line



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No. 16-1310, NLRB v. Lakepointe Senior Care & Rehab Center


marked “supervisor.” Absent the write-up, the aide would not be disciplined; and the charge

nurses did not “consult with a superior” or get approval before filling out the disciplinary form.

GGNSC Springfield LLC v. NLRB, 721 F.3d 403, 411 (6th Cir. 2013) (citation omitted). That the

nurses had this choice, therefore, shows that they used independent judgment when deciding

whether to write up aides. Id. at 409, 411; In Re Progressive Transps. Servs., Inc., 340 N.L.R.B.

1044, 1046 (2003).

       The record also shows that, when the charge nurses filled out these forms, they did so to

recommend discipline. Two charge nurses testified that they either assumed that the forms

would lead to discipline or wanted that result; one admitted that she took “action to discipline”

an aide when she filled out the form; and another said that she would try to speak to an aide

before she “had to . . . get to [the] point” of writing up the aide. Lakepointe’s managers also

testified that the forms functioned as recommendations for discipline. Both Tanya McCauley,

the director of nursing, and Jennifer Schrauben, the human resources manager, testified that the

nurses used the forms to initiate Lakepointe’s system of progressive discipline. Under this

system, aides would move along the disciplinary track with each successive rule violation (as

reported on a disciplinary form), from verbal coaching to counseling to suspension or

termination. McCauley and Schrauben testified that the disciplinary forms were an important

part of this system and, in their experience, always led to discipline. Moreover, at least three

charge nurses likely received lower merit raises because their superiors evaluated them poorly in

areas such as “administer[ing] discipline as appropriate,” directing staff, or overseeing the aides.

That Lakepointe evaluated the charge nurses on whether they administered discipline—and then

used those evaluations to adjust the nurses’ pay—shows that the nurses knew that their actions




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No. 16-1310, NLRB v. Lakepointe Senior Care & Rehab Center


(namely, writing up the aides) were a part of Lakepointe’s disciplinary system. Hence the nurses

recommended discipline when they filled out the forms. See Springfield, 721 F.3d at 409, 411.

       The Board responds that the managers, rather than the nurses, ultimately determined

which specific work rules the aide had violated and what level of discipline was appropriate. But

we have already held that, when a nurse fills out disciplinary forms in a system of progressive

discipline like the one here, the nurse need not specify the level of discipline to be a supervisor.

See Springfield, 721 F.3d at 409-10, 411. Moreover, the Board itself has recognized that a

supervisor recommends discipline even when her superior “instructs her as to the level of

discipline” and “advises [her] on the wording of the discipline notice[.]” In Re Progressive

Transps. Servs., Inc., 340 N.L.R.B. at 1045.

       In summary, Lakepointe’s charge nurses chose whether to write up aides for misconduct.

And when the nurses did write them up, the nurses described the rule violation (even if they

failed to cite a rule number), and submitted the form so that the managers would discipline the

aide. The nurses therefore independently recommended discipline. See id.; cf. Springfield,

721 F.3d at 409, 411.     The regional director’s decision to the contrary was not based on

substantial evidence.

                                                 2.

       Alternatively, the Board argues that, even if Lakepointe’s charge nurses independently

recommended discipline, they did not do so “effectively.” 29 U.S.C. § 152(11). The nurses’

recommendations were effective if Lakepointe’s managers gave substantial weight to or

regularly relied on them. See Caremore, Inc., 129 F.3d at 369-70; Cmty. Educ. Centers, Inc.,

360 N.L.R.B. No. 17, 2014 WL 101671, at *13 (Jan. 9, 2014).




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No. 16-1310, NLRB v. Lakepointe Senior Care & Rehab Center


       Here, the record makes plain that Lakepointe’s supervisors gave substantial if not

decisive weight to the charge nurses’ recommendations. Lakepointe entered four disciplinary

forms into the record, each of which resulted in discipline for the relevant aide. McCauley and

Schrauben testified that every disciplinary form they could remember had resulted in discipline

and that they routinely approved forms without questioning the allegations of the charge nurse.

There was no testimony to the contrary. McCauley also testified that managers did not conduct

an “independent investigation” of the nurse’s description of the incident. Nor did managers

interview aides or witnesses unless the violation “need[ed] to be reported to the State.”

       The Board contends nonetheless that Lakepointe’s managers independently investigated

“most of the forms in the record[.]” Recommendations might not be effective when higher-ups

independently investigate them.      See Frenchtown Acquisition Co., 683 F.3d at 309 n.7.

A superior’s investigation is not “independent,” however, if he simply discusses the incident

with the person recommending discipline and then accepts that person’s version of events. See

Starwood Hotels & Resorts Worldwide, Inc., 350 N.L.R.B. 1114, 1116-17 (2007). Nor does the

occasional independent investigation “preclude a finding of supervisory status” when other

evidence shows that a recommendation is effective. See Frenchtown Acquisition Co., 683 F.3d

at 309 n.7 (emphasis omitted); see also In Re Progressive Transps. Servs., Inc., 340 N.L.R.B. at

1045 n.5.

       The Board points to three instances where it says that Lakepointe’s managers conducted

independent investigations, namely as to the forms disciplining Brenda Moore, Aleisha Ulmer,

and Victor Thompson. The charge nurses initially filled in these forms by hand. Later, the

managers inquired into the information on the forms and retyped them. But none of these

inquiries amounted to an independent investigation. In Moore’s case, a manager followed up



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with the charge nurse but accepted her statements at face value. In Ulmer’s, the managers

discussed among themselves the severity of her misconduct (she had failed to take care of a

resident, which could have amounted to serious neglect), spoke to the charge nurse, and then

discovered that Ulmer had also falsified her timestamped care records; but the managers did not

investigate whether the misconduct spelled out on the form had actually occurred. And in

Thompson’s case, Schrauben testified that she requested some kind of “supporting

documentation” for the form just in case someone later questioned “the nurse’s decision.”

Schrauben also said that the nurse’s disciplinary form was the reason why the managers

disciplined Thompson. In none of these cases is there any evidence that the managers spoke

with the aides or any other witnesses in determining whether to discipline the aides. See Veolia

Transp. Servs., Inc., 363 NLRB No. 98, 2016 WL 245559, at *11 (Jan. 20, 2016). Moreover, as

shown above, the record shows that the disciplinary forms always led to discipline and that the

managers regularly relied on the charge nurses’ recommendations without questioning their

version of events. The regional director overlooked this evidence when she found that the charge

nurses lacked the authority to effectively recommend discipline under 29 U.S.C. § 152(11). Her

decision therefore was not based on substantial evidence.

                                        *      *       *

       The Board’s application for enforcement of its February 11, 2016 order finding that

Lakepointe had committed an unfair labor practice is therefore denied.




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