                   RECOMMENDED FOR FULL-TEXT PUBLICATION
                       Pursuant to Sixth Circuit I.O.P. 32.1(b)
                              File Name: 13a0170p.06

             UNITED STATES COURT OF APPEALS
                          FOR THE SIXTH CIRCUIT
                            _________________


                                             X
                                              -
 GGNSC SPRINGFIELD LLC, dba Golden

                Petitioner/Cross-Respondent, --
 Living Center-Springfield,

                                              -
                                                       Nos. 12-1529/1628

                                              ,
                                               >
                                              -
           v.

                                              -
                Respondent/Cross-Petitioner. N-
 NATIONAL LABOR RELATIONS BOARD,


               On Petition for Review and Cross-Application for
         Enforcement of an Order of the National Labor Relations Board.
                              No. 26-CA-072684.
                            Argued: March 15, 2013
                        Decided and Filed: July 2, 2013
            Before: MERRITT, CLAY, and GRIFFIN, Circuit Judges.

                              _________________

                                  COUNSEL
ARGUED: Michael A. Manzler, DINSMORE & SHOHL LLP, Cincinnati, Ohio, for
Petitioner/Cross-Respondent. Mark R. Freeman, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., Gregoire Sauter, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Respondent/Cross-Petitioner. ON BRIEF: Michael A.
Manzler, Charles M. Roesch, Jessica E. Bauml, DINSMORE & SHOHL LLP,
Cincinnati, Ohio, for Petitioner/Cross-Respondent. Mark R. Freeman, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., Gregoire Sauter, Robert J.
Englehart, Linda Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Respondent/Cross-Petitioner.
    GRIFFIN, J., delivered the opinion of the court in which, CLAY, J., joined.
MERRITT, J. (pp. 14–18), delivered a separate dissenting opinion.




                                        1
Nos. 12-1529/1628         GGNSC Springfield v. NLRB                                Page 2


                                 _________________

                                       OPINION
                                 _________________

       GRIFFIN, Circuit Judge. This case involves the question whether registered
nurses (RNs) employed as charge nurses at Golden Living Center (the “Center”) are
“supervisors” under the National Labor Relations Act (the “Act”). If they are, federal
law does not allow them to collectively bargain with their employer. After an
evidentiary hearing, the regional director of the National Labor Relations Board
concluded that the RNs are not supervisors. We review to determine whether substantial
evidence supports that determination and hold that it does not. Accordingly, we grant
the Center’s petition for review, vacate the Board’s order, and deny the Board’s cross-
application for enforcement.

                                            I.

       The Center operates a licensed nursing home in Springfield, Tennessee, that
employs approximately 100 individuals. The facility provides short- and long-term care
to approximately 120 residents split evenly between the facility’s two wings—East and
West. Patients range from those who are fully alert to those who are not.

       The employment hierarchy at the nursing home is as follows: the Executive
Director oversees the entire facility. Various department heads, including a Director of
Nursing, report directly to the Executive Director. Two Assistant Directors of Nursing
directly oversee each of the facility’s two wings. Those primarily responsible for patient
care include 12 RNs, 10 licensed practical nurses (LPNs), and 46 certified nursing
assistants (CNAs). The Center refers to its RNs and LPNs as “charge nurses.” (While
RNs and LPNs have the same duties, only the RNs attempted to collectively bargain.)
Charge nurses report directly to the Director of Nursing or her designee. Typically, two
charge nurses are assigned to each wing at a time. The number of CNAs assigned to
each wing varies from two to six.
Nos. 12-1529/1628         GGNSC Springfield v. NLRB                                  Page 3


        In October 2011, the International Association of Machinists and Aerospace
Workers, AFL-CIO (the “Union”), petitioned the Board and sought to represent the
Center’s RNs in collective bargaining. The Center opposed the petition, claiming that
its RNs (all charge nurses) were “supervisors” under the Act and therefore not permitted
to unionize. See 29 U.S.C. §§ 152(3), 157. A hearing was held where evidence was
received. In November 2011, the Board’s regional director concluded that the RNs are
not supervisors, certified the requested bargaining unit, and directed an election. The
Board declined further review. The following day, the RNs elected the Union as their
bargaining representative.

        A week later, the Union asked the Center to bargain with it. The Center refused,
prompting a complaint with the Board that alleged unfair labor practices. See 29 U.S.C.
§ 158(a)(1), (5). The Center admitted its refusal to bargain and contested only the
regional director’s decision to certify the bargaining unit. The Board sustained the
Union’s complaint and ordered the Center to bargain with it. This petition for review
and cross-application for enforcement followed.

                                            II.

        Before addressing the merits of the Center’s petition, we consider a question
raised regarding the composition of the Board. After briefing was complete, the Center
filed a letter citing as supplemental authority the D.C. Circuit’s recent opinion, Noel
Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert. granted, 81 U.S.L.W. 3629 (U.S.
June 24, 2013) (No. 12-1281). In its supplemental authority letter, the Center asserted
that the Noel Canning decision supplied “an additional, independent ground for vacating
the Board’s Order in this matter.” Because the Center contends that its new argument
has jurisdictional significance, we consider it at the outset. See Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 88–89 (1998).

        In Noel Canning, the D.C. Circuit held that an order of the Board was void
because it was issued at a time when the Board did not have at least three lawfully
appointed members. Our sister circuit ruled that at the time the order was issued, three
of the Board’s five members had been appointed by the President without “the Advice
Nos. 12-1529/1628              GGNSC Springfield v. NLRB                                           Page 4


and Consent of the Senate,” in violation of the Constitution’s Appointments Clause.1
The court rejected the Board’s argument that the President had legally bypassed that
constitutional requirement by invoking the Recess Appointments Clause2 and appointing
the members during an intrasession “recess” of the Senate, i.e., one of the “breaks in the
Senate’s business when it is otherwise in a continuing session.” Noel Canning, 705 F.3d
at 499–500. The court found the Board’s interpretation of the clause contrary to its text,
structure, and historical interpretation, which all suggest that “the Recess” refers instead
only to intersession recesses, i.e., breaks between “the usually two or sometimes three
sessions per Congress.” Id. at 499–507. The court also concluded that the appointments
were invalid because the vacancies they filled did not “happen” during a break between
formal Senate sessions. Id. at 507–14.

         The parties agree that Noel Canning’s legal conclusions, if followed here, would
render the Board’s order void. The Board asks that we not take up the challenge to its
authority, claiming that the Center forfeited the argument by making it for the first time
in a letter to us filed under Federal Rule of Appellate Procedure 28(j). See Superior
Bank, FSB v. Boyd (In re Lewis), 398 F.3d 735, 748 n.9 (6th Cir. 2005) (declining to
consider a defense asserted for the first time in this way). The Center responds that its
challenge is “jurisdictional” and thus can never be forfeited. If true, that would require
us to address it before any non-jurisdictional challenges. See Steel Co., 523 U.S. at
88–89. But the Center is mistaken. Errors regarding the appointments of officers under
Article II are “nonjurisdictional.” See Freytag v. Comm’r, 501 U.S. 868, 878–79 (1991);
accord Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 574 F.3d 748, 756
(D.C. Cir. 2009) (per curiam).

         Noel Canning did not suggest otherwise. Its discussion of “jurisdiction,”
705 F.3d at 496–98, concerned its statutory authority to consider challenges not first


         1
         See U.S. Const. art. II, § 2, cl. 2 (“[The President] shall nominate, and by and with the advice
and consent of the Senate, shall appoint . . . all other officers of the United States[.]”).
         2
          See U.S. Const. art. II, § 2, cl. 3 (“The President shall have power to fill up all vacancies that
may happen during the recess of the Senate, by granting commissions which shall expire at the end of their
next session.”).
Nos. 12-1529/1628             GGNSC Springfield v. NLRB                                          Page 5


presented to the Board, see 29 U.S.C. § 160(e),3 an exhaustion-type requirement that the
Supreme Court has characterized as “jurisdictional,” see Woelke & Romero Framing,
Inc. v. NLRB, 456 U.S. 645, 665–66 (1982); it did not concern jurisdiction in the sense
that the court had an independent obligation to raise and consider the matter on its own,
at the threshold, before reviewing the merits of the Board’s decision, cf., e.g., Steel Co.,
523 U.S. at 88–89. That the D.C. Circuit in Noel Canning considered the petitioner’s
statutory challenge before addressing the constitutional one further demonstrates that it
did not deem the constitutional one jurisdictional. But see NLRB v. New Vista Nursing
& Rehab., — F.3d — , 2013 WL 2099742, at *3–6 (3d Cir. May 16, 2013) (deeming
“jurisdictional” the statutory requirement that the member-groups to whom the Board
delegates its authority always have at least three members, and concluding that “any
reason” why the group has less than that (e.g., an invalid Presidential appointment) can
be raised as a jurisdictional defect). Because we hold that the Center’s belated challenge
is not “jurisdictional,” we are not compelled to consider it. Nor need we consider
excusing the Center’s forfeiture in our discretion, for we are granting it the relief it seeks
on the basis of its non-constitutional challenge. Cf. Noel Canning, 705 F.3d at 493.

                                                  III.

         We review the Board’s decision using the substantial-evidence standard.
29 U.S.C. § 160(e), (f). Under this standard, the decision stands if it is supported by
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (internal
quotation marks omitted). This standard, though deferential, does not permit the Board
to ignore relevant evidence that detracts from its findings. Id. at 488. And when the
Board “misconstrues or fails to consider important evidence, its conclusions are less
likely to rest upon substantial evidence.” Lakeland Health Care Assocs., LLC v. NLRB,
696 F.3d 1332, 1335 (11th Cir. 2012) (internal quotation marks omitted).


         3
          “No objection that has not been urged before the Board, its member, agent, or agency, shall be
considered by the court, unless the failure or neglect to urge such objection shall be excused because of
extraordinary circumstances.” 29 U.S.C. § 160(e); see also id. § 160(f). Noel Canning raised its
Appointments Clause challenge for the first time in a petition for review. The D.C. Circuit held that
extraordinary circumstances existed and took up the challenge.
Nos. 12-1529/1628         GGNSC Springfield v. NLRB                                 Page 6


                                           IV.

                                           A.

       Only “employees” have the right to bargain collectively under federal law.
29 U.S.C. § 157. The Act defines the term broadly (and somewhat circularly, see id.
§ 152(3) (“shall include any employee . . .”)), but excludes “any individual employed as
a supervisor,” id. A supervisor is

       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.

Id. § 152(11). The Act thus creates “a three-part test for determining supervisory
status.” NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 712–13 (2001).
Individuals are supervisors if (1) they hold the authority to engage in any one of the
twelve listed supervisory functions, (2) their “exercise of such authority is not of a
merely routine or clerical nature, but requires the use of independent judgment,” and (3)
their authority is held “in the interest of the employer.” 29 U.S.C. 152(11); see Kentucky
River, 532 U.S. at 713. The burden of proving supervisory status falls on the party
asserting it. Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298, 305 (6th Cir. 2012).

       The Center argued to the Board’s regional director that its RNs are supervisors
because they have authority to discipline, assign, and responsibly direct CNAs, all by
using independent judgment. It now argues that substantial evidence does not support
the regional director’s contrary determination.

                                           B.

       We begin with the Center’s argument on discipline. The Board’s regional
director determined that the Center’s RN charge nurses lacked the authority to discipline
CNAs, reasoning that they “merely report misconduct” to the Director of Nursing, a
Nos. 12-1529/1628         GGNSC Springfield v. NLRB                               Page 7


function that he concluded “does not constitute supervisory authority.” Critical to his
determination was that RNs did not determine or provide input regarding what level of
discipline to impose. The regional director further concluded that the RNs’ authority to
send CNAs home for the remainder of their shift in cases of patient abuse also does not
establish supervisory status.

       We summarily reject the Center’s challenge to this last conclusion. The Board
has repeatedly found that authority to send home employees, when limited to flagrant
misconduct (e.g., behavior that endangers the health or safety of patients), does not
require independent judgment and therefore cannot establish supervisory authority. See,
e.g., Vencor Hosp.-L.A., 328 NLRB 1136, 1139 (1999); Northcrest Nursing Home,
313 NLRB 491, 497 (1993). And we have agreed. See Frenchtown, 683 F.3d at 309;
accord Jochims v. NLRB, 480 F.3d 1161, 1171–72 (D.C. Cir. 2007); but see Warner Co.
v. NLRB, 365 F.2d 435, 439 (3d Cir. 1966) (“It can scarcely be denied that sending a
man home is discipline or that it does require the use of independent judgment.”). The
regional director’s decision in this respect is consistent with the Board’s precedent and
our own.

       Turning to the heart of the regional director’s decision on discipline, we must
decide whether substantial evidence on the record as a whole supports the determination
that the Center’s RNs perform only a reporting function with respect to CNA
misconduct, something the parties agree does not create supervisory status, see also
Carlisle Engineered Prods., Inc., 330 NLRB 1359, 1360 (2000). According to the
Center, the record evidence shows that the disciplinary authority its RNs possess defies
the regional director’s characterization, and his adverse ruling is based upon a
fundamental misunderstanding of the Center’s disciplinary regime. We agree.

       When confronted with CNA misconduct, RNs can either do nothing, provide
verbal counseling (and decide whether to document the counseling), or draw up a written
memorandum; choosing the appropriate path in each instance, the Center contends,
involves independent judgment. The Board responds that a verbal warning, documented
or not, is educational in nature, not disciplinary. The Board is correct. The Center’s
Nos. 12-1529/1628         GGNSC Springfield v. NLRB                                Page 8


written disciplinary policy never mentions verbal warnings. Karen Price, an Assistant
Director of Nursing at the Center, testified that “verbal counseling doesn’t count against
you like a written warning would. It’s not part of the four-step process.” Charge nurse
Vicki Jones said much the same. Thus, even though RNs have a choice between
ignoring the infraction or offering verbal counseling, that does not make them
supervisors because they do not impose discipline when giving verbal counseling. Cf.
Frenchtown, 683 F.3d at 306–08 (agreeing that “one-on-one in-services” used “to
correct the aides’ performance by educating aides on what is expected of them” were
“outside of the realm of discipline” where, among other things, the employer’s
disciplinary policy did not mention them and they could not lead to formal discipline).

       However, the Board’s point regarding the irrelevance of an RN’s choice between
doing nothing and providing verbal counseling fails to answer the Center’s charge that
RNs may also proceed by way of an employee memorandum, which the Center contends
is part of its progressive disciplinary system and is thus discipline. The Center’s
arguments are persuasive. Receipt of an employee memorandum leads automatically to
a written warning, which is a “step” in the Center’s system of progressive discipline.
Therefore, the authority that RNs have to issue memoranda to CNAs is the authority to
discipline. And because RNs exercise independent judgment in choosing whether to
issue a memoranda or provide verbal counseling, they are supervisors under the Act.
The Board’s failure to acknowledge that receipt of a written warning is itself discipline
renders its contrary determination unsupported by substantial evidence. See, e.g.,
Lakeland Health Care Assocs., 696 F.3d at 1335.

       The Center’s employee handbook divides disciplinary infractions into two
camps. Category one violations “are the most serious and are subject to the employee’s
immediate suspension, pending investigation for discharge” (e.g., resident abuse or
neglect, possession of a firearm on the premises), while those in category two are “less
serious in nature” (e.g., failure to perform assigned duties, poor work quality or
productivity, stopping work early).       Category one offenses “are subject to the
employee’s immediate suspension, pending investigation for discharge.” Progressive
Nos. 12-1529/1628         GGNSC Springfield v. NLRB                                Page 9


discipline, by contrast, is imposed for category two types and gives the employee
multiple opportunities before being suspended and then fired. “Written warnings” are
received for an employee’s first three category two violations. Termination will
normally occur for the fourth infraction. CNA Lena Harness, for example, was fired
after receiving four memoranda in a year. Her first two were for failure to perform
assigned duties; her last two were for violating the Center’s formal attendance policy.

       The Center’s Human Resources Management Policies and Procedures Manual
echos its handbook and provides further detail.           It institutes the “Employee
Memorandum,” which implements the Center’s discipline policy. A memorandum is
valid for twelve months, after which time it “becomes invalid for use in progressive
discipline or discharge[.]” The manual also provides that “[v]iolations of different rules
are cumulative for purposes of progressive discipline even if unrelated or remote.” Each
of the first three category two violations in a twelve-month period yields a written
warning (steps “one” through “three”), with the fourth leading to suspension pending an
investigation (step “four”). Discharge follows “if the investigation indicates that the
misconduct occurred.”

       Then there is the employee memorandum form itself. This pre-printed form
includes a space for explaining the violation and for listing the employee’s disciplinary
actions for the past twelve months; it appears that the charge nurse does not list the
CNA’s prior disciplinary history and instead leaves that part blank. The form then asks
for the category of violation observed, which the charge nurse indicates. If the box for
“Category Two Violation” is noted, the form asks which “step” in the process the
violation constitutes, the answer to which depends entirely on the number of written
warnings received over the last year. Charge nurses do not indicate which step is
involved, because they typically do not know. The cited CNA signs the form on the line
indicated “Employee,” and the charge nurse signs on the line for “Supervisor.”
Sometimes the Director of Nursing or the Assistant Director signs the form, either
underneath the charge nurse’s signature or sometimes as the sole signature of the
Nos. 12-1529/1628           GGNSC Springfield v. NLRB                                  Page 10


“supervisor.” For example, Harness’s first two violations were signed by charge nurses;
her last two were signed by the Director of Nursing.

         Consistent with these documents, assistant nursing director Karen Price testified
unequivocally that a memorandum is “considered a write-up or disciplinary action” that
is part of the Center’s “four-step process.” That point is obvious, and not one person or
document refutes it. Nevertheless, the Board contends that the Center failed to prove
that employee memoranda “trigger investigations or have a disciplinary effect, or serve
any purpose beyond informing management about employee misconduct.” That claim
is inaccurate and not supported by the record.

         The Board relies upon a single exchange between counsel and charge nurse Vicki
Jones:

         Q. Is your role then limited to documenting the incident or do you do
            more?
         A. That’s it.

But Jones also testified that she can “impose discipline” upon CNAs who violate
company policy by completing a memorandum. And while an RN’s role in the process
is limited to completing the employee memorandum and submitting it to the Director of
Nursing, it is that very act that leads directly and automatically to a written warning—a
“step” in the company’s policy of progressive discipline.

         The Board’s position on discipline is essentially that, to be considered
“discipline,” the employee must suffer some immediate adverse employment action as
a result of receiving an employee memorandum, such as suspension or termination, and
because RN charge nurses cannot suspend or terminate a CNA’s employment
unilaterally, they lack authority to discipline. This position runs headlong into the labor
statute’s plain text. Discipline cannot be synonymous with suspension or termination,
for the statute lists these supervisory functions individually, and in the disjunctive: A
supervisor is “any individual having authority . . . to . . . suspend, . . . discharge, . . . or
discipline other employees . . . .” 29 U.S.C. § 152(11) (emphasis added); see Kentucky
Nos. 12-1529/1628         GGNSC Springfield v. NLRB                               Page 11


River, 532 U.S. at 713 (supervisors “hold the authority to engage in any 1 of the 12 listed
supervisory functions” (emphasis added)). Equating the term discipline with the terms
suspend or discharge would render it superfluous, a reading we must try to avoid. See
Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 112 (1991). The term
discipline must capture something less.

       The Board has in other cases acknowledged that discipline is something less. It
has said, for example, that “for the issuance of reprimands or warnings to constitute
statutory supervisory authority, the warning must not only initiate, or be considered in
determining future disciplinary action, but also it must be the basis of later personnel
action without independent investigation or review by other supervisors.” Phelps Cmty.
Med. Ctr., 295 NLRB 486, 490 (1989) (internal quotation marks omitted). Further, a
warning need not “automatically lead[] to an action affecting employment. . . . [I]t is
sufficient that the discipline has the real potential to lead to an impact on employment.”
Progressive Transp. Servs. Inc., 340 NLRB 1044, 1046 (2003). The Board has also
explained that write-ups are a form of discipline where they “lay a foundation, under [a]
progressive disciplinary system,” for later personnel action, such as suspension or
termination. Oak Park Nursing Care Ctr., 351 NLRB 27, 28, 29 (2007). Generally,
where an employer maintains a defined progressive discipline policy, and cited
violations of company policy count toward the number of missteps permitted before
termination, those with independent authority to issue the citations are supervisors. See,
e.g., Concourse Vill., Inc., 276 NLRB 12, 13 (1985); see also Waverly-Cedar Falls
Health Care, 297 NLRB 390, 392 (1989); Ohio Masonic Home, 295 NLRB 390, 393–94
(1989); Passavant Health Ctr., 284 NLRB 887, 889–90 (1987).

       In the present case, the written warnings that follow from receipt of an employee
memoranda satisfy the criteria for discipline. Under the Center’s progressive discipline
policy, the existence of earlier written warnings determines whether suspension and
termination are imposed for a later category two violation, based upon the number of
warnings already received that year. The actions giving rise to memoranda are
investigated neither at the time of the infraction nor later, when the warning provides a
Nos. 12-1529/1628         GGNSC Springfield v. NLRB                               Page 12


basis for the CNA’s suspension and termination; only the fourth memoranda received
in a twelve-month period is investigated before the employee is terminated. The
warnings thus “lay a foundation” for future adverse employment action. Accordingly,
memoranda/warnings are discipline. Substantial evidence does not support the regional
director’s contrary determination.

       The record also demonstrates that RNs exercise independent judgment when
issuing employee memoranda. There is no doubt that when faced with a lesser violation
the Center’s RNs choose whether to issue an employee memorandum (discipline), to
provide verbal counseling (not discipline), or to take no action at all. The choice
depends on the RN’s determination of how severe the violation is, and, indeed, the
record contains instances of a CNA’s failure to perform assigned duties or having a poor
work product being handled differently by the RNs; sometimes the CNA received verbal
counseling, and sometimes she received a memorandum. The Board has before
determined that making this type of choice requires independent judgment. See Oak
Park Nursing Care Ctr., 351 NLRB at 29. We have said the same. See Extendicare
Health Servs., Inc. v. NLRB, 182 F. App’x 412, 417 (6th Cir. 2006).

       The larger question is whether the RNs must consult with a superior and obtain
approval before issuing a memorandum; if they must, their judgment is unlikely
“independent.” See Oakwood Healthcare, Inc., 348 NLRB 686, 692–93 (2006); Phelps
Cmty. Med. Ctr., 295 NLRB at 490–91. The record shows that consultation and
approval is neither required nor typical. Karen Price testified that none is required. She
also said that memoranda are forwarded to her for information purposes only, so that she
knows what happens on the floor, not so that she can approve (or reject) the RN’s
decision.

       In addition, Vicki Jones described her involvement with memoranda as follows:
“I call [the Director of Nursing] on the phone. I show her where the situation is. I fill
out the form and I slip it under her door. And I don’t hear anything back, no feedback
on it.” She explained that sometimes the Director will suggest how to proceed, “[b]ut
for the most part,” Jones continued, the Director “just listens.” That advice sometimes
Nos. 12-1529/1628         GGNSC Springfield v. NLRB                              Page 13


is provided does not mean that Jones or others do not typically exercise discretion in
deciding how to proceed—they do. Indeed, Jones’s use of the word sometimes
demonstrates that it is not the norm. Compare Concourse Vill., 276 NLRB at 13
(worker’s issuance of some warnings pursuant to a superior’s directive did not negate
supervisor status based on disciplinary authority, because the worker issued other
warnings independently); with Highland Superstores, Inc. v. NLRB, 927 F.2d 918, 922
(6th Cir. 1991) (leadman was not a supervisor when he issued a disciplinary notice only
when instructed).

       Just one statement from Jones points the other way, and it cannot support a
finding that RN authority to discipline is of a “routine or clerical nature.” When asked
if she can resolve disciplinary problems on her own or if she instead seeks guidance,
Jones responded, “I seek guidance.” But she neither explained her answer nor provided
details. Moreover, she earlier testified that no one instructs her when to fill out an
employee memorandum in a given situation; it is her choice. In view of the record as
a whole, the Center plainly met its burden to demonstrate that its RNs utilize
independent judgment in exercising their disciplinary authority.

                                           V.

       For these reasons, substantial evidence does not support the Board’s decision that
RNs at the Center lack authority to discipline CNAs using their independent judgment.
The record instead compels a contrary determination. The Center’s RNs are supervisors
under the Act, and, as a result, the Center’s refusal to bargain with the RNs’ union
representative did not violate the Act. We grant the Center’s petition for review, vacate
the Board’s order of April 9, 2012, and deny the Board’s cross-application for
enforcement.
Nos. 12-1529/1628         GGNSC Springfield v. NLRB                              Page 14


                                __________________

                                     DISSENT
                                __________________

       MERRITT, Circuit Judge, dissenting. In reaching its judgment against the union,
the court expands the meaning of “discipline” beyond any dictionary definition and
engages in linguistic wordplay over the word without even referring to or trying to
understand the purpose of the statutory language at issue.

       1. Denying RNs the Right to Union Membership Defies Congressional Intent.
— Under the labor laws, the definition of “discipline” is directly linked to the question
of whether a person is a “supervisor” and hence a part of management. The whole
purpose of defining “discipline” is to establish whether an employee is a “supervisor”
and therefore excluded from union membership. The purpose is simply to insure that
supervisors will be loyal to their employers and not be tempted to serve the union’s
conflicting interests. The Supreme Court has explained the purpose of this labor-law
distinction between regular and supervisory employees:

       There were differences in the specific [proposed] provisions addressed
       to supervisory employees, but no difference in objective. Employers
       were not to be obliged to recognize and bargain with unions including or
       composed of supervisors, because supervisors were management obliged
       to be loyal to their employer’s interests, and their identity with the
       interests of rank-and-file employees might impair that loyalty and
       threaten realization of the basic ends of federal labor legislation.

Beasley v. Food Fair of N.C., Inc., 416 U.S. 653, 659-660 (1974) (a unanimous decision
quoting at length the House and Senate Reports concerning the union-membership
exemption for supervisory employees who have the authority to “hire,” “fire,” and
“discipline” other employees) (footnotes omitted).

       When disciplinary action against a nurse or hospital employee comes only after
the director of nursing or the assistant director conducts an investigation and exercises
independent judgment or authority — as is true in this case — the RNs’ write-ups are
simply informational. The RNs do not exercise the required independent judgment about
Nos. 12-1529/1628              GGNSC Springfield v. NLRB                                       Page 15


discipline. They may exercise discretion or choice about whether to make a report, but
they exercise no independent judgment or any authority about disciplining another
employee. Obviously, if every employee who is allowed or invited by management to
make a report and pass on information to the employer about fellow employees is denied
the right to union membership, there would be very few employees eligible for union
membership. Under the majority’s theory, an employer could simply invite all of its
employees to make reports on other employees. Any such employee would play a role
in the “disciplinary process” and hence become a “supervisor.” The employee would
be excluded from membership in a union and denied the right to collective bargaining.
This is the broad standard the majority has adopted, and it is in direct conflict with the
purpose of the Wagner and the Taft-Hartley Acts. It is a standard designed simply to
foreclose collective bargaining, avoid unions, and go back to the unstable labor-
management relations that existed prior to the New Deal.

        2. Finding the RNs to Be Supervisors Is Inconsistent with Precedent. — See,
for example, Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298, 308 (6th Cir. 2012),
a case similar to this one holding that the fact that a report could result in disciplinary
action is irrelevant and not enough to make the filer of the complaint a supervisor.1 See
also NLRB v. Meenan Oil Co., 139 F.3d 311, 322 (2d Cir. 1998) (holding that a
dispatcher who notifies a supervisor to complain about an employee’s conduct is merely
acting as a conduit for information and exercises no disciplinary judgment in passing
along the complaint). The majority’s broad construction of the word “discipline” and

        1
            The Court in Frenchtown explained as follows:
        Deciding whether an individual is a supervisor is a “highly fact intensive inquiry.”
        Kentucky River Community Care, Inc. v. NLRB, 193 F.3d 444, 453 (6th Cir. 2000),
        aff’d, Kentucky River, 532 U.S. 706, 121 S. Ct. 1861. In conducting this inquiry, the
        Board and “reviewing courts must take care to assure that exemptions from NLRA
        coverage are not so expansively interpreted as to deny protection to workers the Act was
        designed to reach.” Holly Farms Corp. v. NLRB, 517 U.S. 392, 399, 116 S. Ct. 1396,
        134 L.Ed.2d 593 (1996) (deferring to the Board’s decision that certain workers were not
        “agricultural laborer[s]” and were therefore eligible to unionize under the Act). This
        court has endorsed the same principle in the context of determining whether individuals
        are supervisors. “It is important for the Board not to construe supervisory status too
        broadly, for a worker who is deemed to be a supervisor loses his organizational rights.”
        Williamson Piggly Wiggly v. NLRB, 827 F.2d 1098, 1100 (6th Cir. 1987) (brackets and
        internal quotation marks omitted).
683 F.3d at 305.
Nos. 12-1529/1628         GGNSC Springfield v. NLRB                               Page 16


“supervisory status” will defeat the entire process of union recognition in the health care
field under the Wagner and Taft-Hartley Acts. See Kristin Hay O’Neal, Comment and
Note, “NLRB v. Health Care & Retirement Corporation of America:                   Possible
Implications for Supervisory Status Analysis of Professionals under the National Labor
Relations Act,” 47 BAYLOR L. REV. 841 (1995).

       The employer relies heavily on an unpublished case without precedential value,
Extendicare Health Servs., Inc. v. NLRB, 182 F. App’x 412, 416-17 (6th Cir. 2006), but
in that case a write-up initiated formal disciplinary proceedings, which led directly and
automatically to an investigation and appropriate sanction. Here, there is no such
automatic trigger. The RNs here do not have access to employee files so they have no
idea if they are the first to complain or the last and have no way of knowing whether
their particular complaint led to any discipline and, if so, what kind. App’x 125-27. The
employee forms contain a section to indicate the “step” in a process, but the nurses leave
this section blank and, in fact, must do so because there is no way of knowing what stage
the employee is in. App’x 92. The Human Resources Management Policies and
Procedures Manual explicitly states that appropriate discipline will be determined “at the
Company’s discretion on the basis of the particular facts or circumstances.” App’x 265.
In short, there was evidence to support the finding that the nurses have no authority over
disciplinary action, they are not present when such action is imposed, and they are
simply left with the ministerial task of filling out the complaint form. That hardly
qualifies them as a “supervisor” who has become a member of management and lost her
eligibility for union membership.

       3. The Majority Opinion Is Inconsistent with Chevron Deference. — In Chevron
USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the Supreme Court
held that where Congress fails to resolve ambiguity in the meaning of words — words
like “discipline” in this case — the courts must defer to an agency’s interpretation if it
“is based on a permissible construction of the statute.” Id. at 843. The Supreme Court
has applied Chevron deference in several NLRB cases. For example, in Holly Farms
Corp. v. NLRB, 517 U.S. 392, 398-99 (1996), the Court said:
Nos. 12-1529/1628         GGNSC Springfield v. NLRB                              Page 17


       When the legislative prescription is not free from ambiguity, the
       administrator must choose between conflicting reasonable
       interpretations. Courts, in turn, must respect the judgment of the agency
       empowered to apply the law “to varying fact patterns,” even if the issue
       “with nearly equal reason [might] be resolved one way rather than
       another.”

       The NLRB has a longstanding interpretation of the term “discipline” that we
should pay deference to. To be considered “discipline” under the statute, a warning or
write-up must “not only initiate, or be considered in determining future disciplinary
action, but also it must be the basis of later personnel action without independent
investigation or review by other supervisors.” Passavant Health Ctr., 284 N.L.R.B. 887,
890 (1987). Mere complaints that “do not alone affect job status or tenure do not
constitute supervisory authority” and amount to “nothing more than a reporting
function.” Id. at 889. The employer in this case does not challenge the reasonableness
of this definition of “discipline.” Neither does the majority. They just assert that the
forms meet the test. Manifestly, the forms do not convert the RNs into supervisors. The
employee memorandums lead to no consequences until higher management steps in,
independently investigates the situation, and makes a management decision.

       4. No Action by Management Taken Arising from a RN Write-Up. — Counsel
for the NLRB in its brief states as a fact: “The Center does not cite a single instance in
which a write-up written by a charge nurse resulted in an investigation or disciplinary
proceeding.” NLRB Br. at 12. Apparently, neither can the majority find any instance
in the entire history of the company where an RN’s write-up against a fellow employee
caused any punishment at all by a supervisor or an executive — not even a frown, a
warning, a threat to suspend or reduce pay, or any other real disciplinary action. It
speaks volumes about the meaning of the ambiguous word “discipline” in this case that
the employer and my colleagues can find no instance in which an RN’s complaint has
ever led directly to anything resembling an order, command, chastisement, or correction
designed to alter a nurse’s behavior. The company has drafted a nominal procedure that
has never led to anything but an excuse for allowing the company to avoid recognizing
and bargaining collectively with the union that its employees voted for as their
Nos. 12-1529/1628          GGNSC Springfield v. NLRB                             Page 18


representative. That anti-union purpose seems to be the only real purpose of the form;
and, thanks to the court, the company has gotten away with its anti-union charade despite
the purpose of the labor statute, the NLRB’s factual findings, and the deference that this
court is supposed to give the administrative agency. The testimony of RN Vicki Jones
reinforces the administrative agency’s conclusion that the forms are just a way to defeat
the union:

       Hearing Officer Adkins: Is your role then limited to documenting the
       incident or do you do more?
       Jones: That’s it. . . .
       Hearing Officer: What involvement if any does the [Director of Nursing]
       have in these forms with you? Do you all sit down together, go over
       them together?
       Jones: No, ma’am. I call her on the phone. I show her where the
       situation is. I fill out the form and I slip it under her door. And I don’t
       hear anything back, no feedback on it.

App’x 125, 127.

       Should this type of arrangement turn the RN into a “supervisor” or member of
management that makes her ineligible for union membership, collective bargaining, or
representation?
