17-2330 (L)
2850 Grand Island Blvd Operating Co. LLC v. NLRB

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                                   SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
31st day of October, two thousand eighteen.

PRESENT:           JOHN M. WALKER, JR.,
                   PIERRE N. LEVAL,
                   PETER W. HALL,

                                       Circuit Judges.

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2850 Grand Island Boulevard Operating Company, LLC,
DBA Elderwood at Grand Island,

                             Petitioner-Cross-Respondent,

                             v.                                             Nos. 17-2330-ag, 17-2579-ag

National Labor Relations Board,

                           Respondent-Cross-Petitioner.     
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For Petitioner-Cross-Respondent:                      PETER GODFREY (Joseph S. Brown, on the brief),
                                                      Hodgson Russ LLP, Buffalo, New York


For Respondent-Cross-Petitioner:                       ERIC WEITZ (Usha Dheenan, Supervisory Attorney,
                                                       Peter B. Robb, General Counsel, John W. Kyle,
                                                       Deputy General Counsel, Linda Dreeben, Deputy
                                                       Associate General Counsel, on the brief) National
                                                       Labor Relations Board, Washington, DC
       Petition for review of a decision and order of the National Labor Relations Board and cross-

petition for enforcement by Respondent.

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that Petitioner’s petition for review be DENIED and the National Labor Relations

Board’s petition for enforcement be GRANTED.

       Petitioner-Cross-Respondent 2850 Grand Island Boulevard Operating Company, LLC,

d/b/a Elderwood at Grand Island (“Elderwood”), seeks an order vacating a July 21, 2017 Decision

and Order of Respondent-Cross-Petitioner National Labor Relations Board (“NLRB” or “Board”)

requiring Elderwood to bargain with 1199 SEIU United Healthcare Workers East (“the Union”)

based on its finding that Elderwood violated Sections 8(a)(1) and (a)(5) of the National Labor

Relations Act (“NLRA” or “the Act”), 29 U.S.C. §§ 158(a)(1), (a)(5). Elderwood challenges the

Union’s certification as bargaining representative in the underlying representation proceeding on

the grounds that: (1) the bargaining unit certified improperly included Licensed Practical Nurses

(“LPNs”), who are “supervisors” within the meaning of the Act and are therefore exempt from the

coverage of the Act; and (2) the NLRB election leading to certification was tainted by coercive

and threatening tactics by the putative supervisors and the Union.    The NLRB seeks enforcement

of the Board’s July 21, 2017 Decision and Order and argues that the Board’s finding that

Elderwood failed to demonstrate that its LPNs are statutory supervisors was supported by

substantial evidence, and that the Board did not abuse its discretion in overruling Elderwood’s

election objections and certifying the Union.

       Elderwood operates a nursing home in Grand Island, New York and employs LPNs and

certified nursing assistants (“CNAs”), among other skilled staff.    LPNs (also referred to as “Team



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Leaders”) and CNAs are supervised by Registered Nurse (“RN”) unit managers, who report to an

RN nursing supervisor, who in turn reports to a Director of Nursing.      Elderwood maintains that

its LPNs are “supervisors” within the meaning of the NLRA and that the NLRB’s July 2017 Order

requiring it to bargain with a collective bargaining unit certified in February 2017 and comprised

of, inter alia, LPNs and LPN Team Leaders, cannot be enforced.       It also argues that the conduct

of its putative supervisors and the conduct of the Union warrant setting aside the election.     We

assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

       As the party asserting the supervisory exception, Elderwood carries the burden of proving

its applicability. NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 710-11 (2001). The

Board’s determinations regarding the supervisory status of LPNs are findings of fact that are

conclusive if supported by substantial evidence. See NLRB v. Quinnipiac Coll., 256 F.3d 68, 73-

74 (2d Cir. 2001).   Under our substantial evidence review, “reversal based upon a factual question

will only be warranted if, after looking at the record as a whole, we are left with the impression

that no rational trier of fact could reach the conclusion drawn by the Board.” Novelis Corp. v.

NLRB, 885 F.3d 100, 106 (2d Cir. 2018) (quotation marks omitted). “[W]hen reviewing a request

to overturn a Board decision refusing to set aside an election, we are limited to the narrow question

of whether the Board abused its discretion in certifying the election.” Rochester Joint Bd.,

Amalgamated Clothing & Textile Workers Union, AFL-CIO, CLC v. NLRB, 896 F.2d 24, 27 (2d

Cir. 1990) (quotation marks and internal citations omitted).

       We conclude that the Board’s finding that Elderwood’s LPNs are not statutory supervisors

is supported by substantial evidence. Even allowing that LPNs have authority occasionally to

“assign” tasks to part-time or floating CNAs, see 29 U.S.C. § 152(11), the record demonstrates



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that such assignments are based on routine decisions that do not require the LPNs’ exercise of

independent judgment. The record further indicates that both LPNs and CNAs are obligated to

follow resident care plans that are set by higher-level medical and management personnel. To

the extent LPNs have authority to deviate occasionally from these care plans, such authority does

not require more than the exercise of commonsense decisionmaking.      Substantial evidence also

supports the Board’s findings that LPNs do not “responsibly direct” CNAs because they are not

accountable for CNAs’ performance, and that LPNs lack authority to effectively recommend

discipline, recommend rewards, adjust grievances, or recommend transfers of CNAs.

       In addition, we conclude that the Board did not abuse its discretion in finding that

Elderwood failed to present sufficient credible evidence that its Team Leaders or the Union

engaged in impermissible conduct warranting invalidation of the election.

       We have considered Petitioner’s remaining arguments and find them to be without merit.

We hereby DENY Petitioner’s petition for review and GRANT the NLRB’s application for

enforcement of its July 21, 2017 Decision and Order.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk of Court




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