                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-2143


PALMETTO PRINCE GEORGE OPERATING, LLC, d/b/a Prince George
Healthcare Center,

                Petitioner,

           v.

NATIONAL LABOR RELATIONS BOARD,

                Respondent.



                               No. 15-2221


NATIONAL LABOR RELATIONS BOARD,

                Petitioner,

           v.

PALMETTO PRINCE GEORGE OPERATING, LLC, d/b/a Prince George
Healthcare Center,

                Respondent.



On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board. (10-CA-154373)


Argued:   September 21, 2016                 Decided:   November 1, 2016


Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
Petition for review denied; cross-petition for enforcement
granted by published opinion. Judge Motz wrote the opinion, in
which Judge Traxler and Judge Agee joined.


ARGUED:   Jennifer    Marie   Fowler-Hermes,    WILLIAMS,    PARKER,
HARRISON,    DIETZ     &    GETZEN,    Sarasota,     Florida,    for
Petitioner/Cross-Respondent.     Meghan Brooke Phillips, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-
Petitioner.   ON BRIEF: John M. Hament, KUNKEL MILLER & HAMENT,
Sarasota, Florida, for Petitioner/Cross-Respondent.          Richard
Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General
Counsel, John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, Robert J. Englehart,
Supervisory    Attorney,    NATIONAL    LABOR    RELATIONS    BOARD,
Washington, D.C., for Respondent/Cross-Petitioner.




                                 2
DIANA GRIBBON MOTZ, Circuit Judge:

      In this case, nurses sought to join a union and engage in

collective bargaining with their employer.                    The National Labor

Relations Board found that the nurses could unionize, rejecting

the employer’s contention that they were ineligible supervisors

within   the     meaning   of   the   National        Labor   Relations       Act,     29

U.S.C. § 152(11).        When the employer refused to bargain with the

nurses’ union, the Board ordered the employer to do so.                               The

employer then      filed    this   petition         for   review,   and     the     Board

cross-petitioned      to   enforce    its      order.       Substantial       evidence

supports the Board’s finding that the nurses are not supervisors

because their duties do not require the exercise of independent

judgment.      Therefore, we deny the employer’s petition and grant

the Board’s cross-petition.



                                        I.

                                        A.

      Palmetto Prince George Operating, LLC, operates a nursing

home in Georgetown, South Carolina.                  The nursing home provides

care twenty-four hours a day, seven days a week.

      Palmetto’s     management       team      consists      of    a     Director     of

Nursing,    an    Assistant     Director       of    Nursing,      and     three     Unit

Managers (collectively the “Managers”).                    The Managers monitor

and   evaluate     the     quality    of       nursing     care,        supervise     and

                                           3
discipline         nursing      staff,       and     arrange    the     schedules      and

assignments of the nursing staff.

        The Center employs twenty-three nurses to staff its units:

six   registered       nurses       (RNs)    and    seventeen       licensed    practical

nurses       (LPNs)     (collectively,            the   “Nurses”).           All    assess

patients,       answer       call    lights,        administer       medications,      and

perform general patient care duties. 1                  In addition to the Nurses,

the Center employs forty certified nursing assistants (CNAs).

The CNAs assist residents with daily tasks, such as helping them

bathe, repositioning them in bed, and aiding them in using the

restroom.      Palmetto’s handbook describes the Nurses as the CNAs’

“first line of authority,” and it places the Nurses above the

CNAs on its organizational chart.

                                              B.

       In    2015,    the    United      Steel,      Paper    and    Forestry,     Rubber,

Manufacturing,         Energy,      Allied     Industrial      and    Service      Workers

Union       sought    to     represent       the     Nurses     as    their     exclusive

bargaining representative.               On January 12, 2015, the Union filed

an    election       petition    with       the    Board.      At    the     pre-election

hearing before the Regional Director, Palmetto argued that the

Nurses       are     supervisors       and        therefore    have     no     collective

        1
       RNs and LPNs share the same duties, with the exception
that LPNs cannot sign assessments or administer small doses of
intravenous medications.   These differences do not bear on the
question of whether they are supervisors.


                                              4
bargaining rights under the National Labor Relations Act.                          See

29 U.S.C. § 152(3) (2012).

       Section 152(11) of the Act defines “supervisor” as:

       [A]ny 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.

Palmetto contends that the Nurses are supervisors because they

have the authority to discipline and responsibly direct the CNAs

and    must    use    independent     judgment     in    exercising       those    two

authorities.         The parties have stipulated that the Nurses lack

authority to perform any of the other ten functions listed in

§ 152(11).

       The    Regional     Director   concluded    that      Palmetto     failed    to

prove the Nurses are supervisors.                 Accordingly, the Regional

Director ordered an election, and the Nurses voted in favor of

having the Union represent them.               After the election, the Union

requested       that      Palmetto     recognize        it    as    the      Nurses’

representative and begin bargaining with it.                   Palmetto refused,

and the Union filed a refusal-to-bargain charge with the Board.

       The Board’s General Counsel then filed a complaint against

Palmetto alleging that it had committed unfair labor practices

in    violation      of   §§ 158(a)(1)   and    (5)     of   the   National   Labor

                                         5
Relations Act.          The Board granted the General Counsel summary

judgment,      adopting        the   Regional        Director’s          findings     and

concluding that Palmetto had indeed violated §§ 158(a)(1) and

(5) of the Act.         Palmetto filed a petition for review with us,

and the Board filed a cross-petition to enforce its order.



                                           II.

                                           A.

      We    review       the     Board’s         factual      findings       regarding

supervisory status for substantial evidence.                       Glenmark Assoc.,

Inc. v. NLRB, 147 F.3d 333, 338 (4th Cir. 1998).                          We affirm if

the   record   contains        enough     evidence    that    “a    reasonable      mind

might accept [it] as adequate to support a conclusion.”                        Gestamp

South Carolina, LLC v. NLRB, 769 F.3d 254, 263 (4th Cir. 2014)

(internal quotation marks omitted).                   We defer to the Board’s

factual findings even if we might have resolved factual disputes

differently.      Id.

      The Supreme Court has held that § 152(11) establishes a

three-prong test for supervisory status.                      See, e.g., NLRB v.

Kentucky River Cmty. Care, Inc., 532 U.S. 706, 712–13 (2001).

Employees   are    supervisors       if    they    (1)     have    the    authority    to

perform any one of the twelve functions listed in § 152(11) or

effectively recommend such action, (2) exercise that authority

in a manner that is not merely clerical or routine but requires

                                            6
the use of independent judgment, and (3) hold that authority in

the interest of the employer.                 Id.    The employer bears the

burden of proving all three prongs.              Id. at 711–12.       And it must

do so by a preponderance of the evidence.                 Pac Tell Group, Inc.

v. NLRB, 817 F.3d 86, 91 (4th Cir. 2016).

     In this case, the parties dispute only the first and second

prongs of this test.         We need only address the second -- whether

the Nurses exercise authority requiring independent judgment.

     The Act leaves the term “independent judgment” undefined.

Moreover, the Supreme Court has recognized that the term “is

ambiguous with respect to the degree of discretion required for

supervisory status.”         Kentucky River, 532 U.S. at 713 (emphasis

in original).       The Court explained that it is “undoubtedly true

that the degree of judgment that might ordinarily be required to

conduct a particular task may be reduced below the statutory

threshold    by    detailed     orders    and    regulations      issued     by   the

employer.”        Id. at 713-14.         The Supreme Court concluded that

“[i]t falls clearly within the Board’s discretion to determine,

within   reason,      what     scope   of     discretion       qualifies.”        Id.

Accordingly, a court defers to the Board’s interpretation of

“independent       judgment”     so    long     as   it   is     “reasonable      and

consistent with the Act.”         Id. at 711–12.

     After the Supreme Court decided Kentucky River, the Board

explained that to exercise independent judgment, “an individual

                                         7
must at a minimum act, or effectively recommend action, free of

the   control    of     others      and    form    an     opinion    or    evaluation     by

discerning and comparing data.”                   In re Oakwood Healthcare, Inc.,

348 NLRB 686, 693 (2006).                   Crucially, the Board concluded in

Oakwood that “a judgment is not independent if it is dictated or

controlled      by     detailed       instructions,            whether     set   forth    in

company policies or rules, the verbal instructions of a higher

authority,      or    in    the     provisions       of    a    collective       bargaining

agreement.”      Id.

                                             B.

      Palmetto       does     not    challenge       the       reasonableness      of    the

Board’s      current,         post-Kentucky             River      interpretation         of

“independent judgment.”               Nor does Palmetto contend that this

interpretation is inconsistent with the Act.                             Indeed, Palmetto

conceded at oral argument that the Board’s interpretation of

“independent judgment” in Oakwood controls.                        Palmetto maintains,

however, that our analysis of “independent judgment” in cases

involving nurses issued prior to Kentucky River and Oakwood is

in all respects “consistent” with those cases, and so governs

the case at hand.          Reply Br. 2.

      Our pre-Oakwood cases responded to the Board’s perplexing

application of § 152(11) to nurses.                       Before Kentucky River, the

Board took the position that nurses do not exercise “independent

judgment”    any       time    they       exercise      “ordinary        professional     or

                                              8
technical     judgment       in     directing         less-skilled         employees   to

deliver services.”          Kentucky River, 532 U.S. at 713 (quoting the

Board’s brief).

      In a series of cases, we rejected that interpretation of

“independent judgment” as unreasonable and held that the nurses

at issue in those cases were supervisors.                         See, e.g., Beverly

Enterprises, Virginia, Inc. v. NLRB, 165 F.3d 290, 298 (4th Cir.

1999) (en banc) (holding that nurses were supervisors because

they exercised § 152(11) authorities “by and large without any

guidelines or established criteria”); Glenmark, 147 F.3d at 341-

45 (holding that nurses were supervisors given their authority

to schedule and discipline nursing assistants without management

approval).

      After we decided these nurse/supervisor cases, the Supreme

Court in Kentucky River similarly rejected the Board’s sharp

distinction        between       professional         and      independent     judgment,

holding that it was unreasonable to conclude that professional

judgment can never be “independent” for the purposes of the Act.

532 U.S. at 714, 721 (citation omitted).                       In Oakwood, the Board

adopted its current interpretation of “independent judgment” to

comport with Kentucky River.

      This    is    the     first       case       requiring     us   to    address    the

precedential       value    of    our    pre-Oakwood        nurse/supervisor      cases.

It   is   settled     law    that       an   agency     construction        entitled   to

                                               9
deference      supersedes          a     prior          judicial        construction           of     an

ambiguous statute.                Nat’l Cable & Telecomm. Ass’n v. Brand X

Internet      Servs.,       545        U.S.       967,     982     (2005).              The    phrase

“independent         judgment”          is        ambiguous,          and     we       have    always

understood         that      the        Board’s          reasonable              and     consistent

interpretations of it are entitled to deference.                                        See, e.g.,

Beverly, 165 F.3d at 296; Glenmark, 147 F.3d at 338.

       In Oakwood, the Board adopted a reasonable interpretation

of “independent judgment.”                    As we recently noted, there is no

conflict     between        the    Board’s         interpretation            and       the    text    of

§ 152(11) or Congress’s intent to distinguish “true supervisors”

from employees whom the Act protects “even though they perform

‘minor supervisory duties.’”                      Pac Tell, 817 F.3d at 91 (quoting

Oakwood,     348     NLRB    at     686);         see    also    NLRB       v.     Health      Care    &

Retirement         Corp.    of     America,          511       U.S.     571,       586–88      (1994)

(recounting the legislative history of § 152(11)).                                       Indeed, in

Oakwood      the    Board     did      nothing          more     than       implement         guidance

offered directly by the Supreme Court.                            See Kentucky River, 532

U.S.    at    713–14        (noting          the     significance            when       determining

“independent        judgment”       of       an    employer’s         “detailed         orders       and

regulations”).

       We    therefore        defer       to       the     Board’s          interpretation            of

“independent judgment” and apply its standards here.                                           To the

extent our pre-Oakwood cases accord with those standards, they

                                                   10
remain      instructive. 2         However,     the    Board’s      current   standards

supersede our prior cases to the extent the two conflict.                         Thus,

for example, before Oakwood, we considered it highly probative

of   independent     judgment        if   nurses      served   as    the   most   senior

staff on site for significant portions of the work week.                             See

Beverly, 165 F.3d at 297–98; Glenmark, 147 F.3d at 341–42; NLRB

v. St. Mary’s Home, Inc., 690 F.2d 1062, 1066 (4th Cir. 1982).

In accordance with Kentucky River, when detailed employer rules

severely      constrain      the    nurses’     discretion,         Oakwood   indicates

that this fact is not as probative as we had held.                         Moreover, in

Golden Crest Healthcare Center, a case decided the same day as

Oakwood, the Board expressly applied Oakwood to hold that the

nurses at issue there, although serving for significant periods

of time as the most senior staff on site, were not supervisors,

particularly given that managers remained on-call after hours.

348 NLRB 727, 727, 730 n.10 (2006).

        With these legal principles in mind, we turn to the case at

hand.




        2
       In Oakwood, the Board also adopted a new interpretation of
the term “responsibly to direct.” Oakwood, 348 NLRB at 690–92.
Here, we need not address the extent to which this new
interpretation displaces our prior cases.


                                           11
                                                III.

       Palmetto        argues     that      the        Nurses      here   are     supervisors

because they have the authority to discipline and responsibly

direct     the    work    of    CNAs       in    a     manner      requiring     the    use   of

independent judgment.               Both arguments fail for the same reason:

Palmetto    simply       has    not    shown         that    the     Nurses    must    use    any

independent judgment when performing these functions.

                                                 A.

       We first consider the evidence Palmetto offered in support

of   its   contention         that    the       Nurses      must     exercise     independent

judgment when disciplining CNAs.

       Palmetto        uses     a     progressive             discipline        policy       that

classifies        violations         into       three       categories.          Category      I

includes minor infractions, such as failing to comply with the

dress code or departmental procedures.                               Category II includes

violations       such    as     threatening           other     employees       and    ignoring

protocols        for    lifting      and    moving          residents.          Category      III

includes the most serious violations, such as sleeping on the

job,     insubordination,            and    neglecting          or    abusing      residents.

Palmetto’s       current       handbook         lists    the    following        disciplinary

steps:           documented         oral        counseling,          reprimands,        written

warnings, suspension, and discharge.

       Any employee can report a disciplinary violation, and in

some cases, employees must report them.                            In particular, failure

                                                 12
to report a Category II or Category III violation is itself a

Category     II    violation.             The        Managers        conduct      separate

investigations      of    misconduct      and       make    all     final     disciplinary

decisions.

     Nevertheless,        Palmetto       insists       that    the    Nurses     must    use

independent judgment in disciplining CNAs.                         The record before us

contains very scant evidence of oral counseling and only three

instances in more than three years -- 2011 through 2014 -- of

Nurses filing written reports of CNA misconduct.                            In one, it is

unclear under which category the violation fell.                            The other two

involved    Category      II    and    Category       III     violations,       which   the

Nurses had no choice but to report.                   In the Category III case, a

Nurse sent a CNA home for sleeping on the job.                          Palmetto relies

heavily on this incident.                However, one instance of a Nurse

reacting to such an egregious violation, by itself, does not

demonstrate independent judgment.                    See Phelps Cmty. Med. Ctr.,

295 NLRB 486, 492 (1989).              Moreover, Palmetto’s argument ignores

its written rule that sleeping on the job is punishable only by

discharge.        The     Nurse       involved       in     this     incident    did    not

discharge    or    even        suspend    the        CNA.      She     made     no     final

disciplinary decision.            Rather, she called Director of Nursing

Jennifer Lambert to report the incident, who then investigated

the matter and ultimately fired the CNA.                       The record before us

indicates    that        Palmetto       has        given    its      Nurses     only    the

                                              13
disciplinary power provided to every other employee (including

CNAs themselves):       the power to report rule violations to the

Managers.

       On this record, a reasonable mind could certainly conclude

that Palmetto did not offer evidence sufficient to establish

that the Nurses use independent judgment when disciplining CNAs.

                                      B.

       We next consider the evidence Palmetto offered in support

of its contention that the Nurses must use independent judgment

when they responsibly direct the work of CNAs.

       Palmetto     argues     that    Director       Lambert’s     testimony

establishes as much.          But at most, that testimony establishes

that    the    Nurses    exercise     not    independent,     but     heavily

constrained,      judgment.     Director    Lambert    testified    that   the

Nurses are responsible for making sure CNAs:

       (1) follow various laws, rules, and regulations,
       including the OSH [sic], (2) comply with infection
       control procedures, (3) stay within the scope of their
       certification, (4) adhere to proper protocols for
       resident hygiene, (5) treat residents in a non-abusive
       or neglectful [sic] manner, (6) follow the proper
       feeding and hydration rules and regulations, (7)
       document treatment, and (8) comply with fire alarm,
       disaster    evacuation,    and   resident    elopement
       procedures.

Pet. Br. 31.

       Palmetto has extensive policies on all these matters and on

virtually all CNA duties.           It has training, instructions, and


                                      14
policies on everything from handwashing and bathing residents to

dealing     with        patient      abuse.             During    mandatory       in-service

meetings, the Managers regularly give specific instructions to

Nurses    and        CNAs   on     such    topics       as    repositioning       residents,

properly clothing residents, taking breaks, clocking in and out,

attending       to    residents’         hygiene,       and   providing        meal    service.

Palmetto also conducts fire, evacuation, and resident elopement

drills.         State       law    and    OSHA     regulations        provide     additional

protocols for infection control, patient hygiene, and emergency

preparedness.           In every case, the Nurses’ responsibility seems

to amount to the same thing:                      making sure the CNAs follow the

written    instructions.                 This    suggests      that      the   Nurses     serve

merely as conduits for these instructions.

     It is true, of course, that “the mere existence of company

policies does not eliminate independent judgment from decision-

making     if     the       policies       allow        for    discretionary          choices.”

Oakwood, 348 NLRB at 693 (citing Glenmark, 147 F.3d at 341).

However, Palmetto has not offered even one instance in which the

Nurses     could       (let       alone    did)       direct      CNAs    largely       without

guidance from Palmetto’s instructions.

     Palmetto leans heavily on the Managers’ absence at night

and on weekends, leaving the Nurses as the most senior staff on

site during those times.                  But, under the Oakwood standard, which

Palmetto        agrees       controls,          these     facts     do     not    themselves

                                                 15
establish independent judgment.              See Golden Crest, 348 NLRB at

730 n.10 (applying Oakwood and holding that charge nurses were

not   statutory    supervisors      despite     this    arrangement).       Here,

substantial       record     evidence        establishes      that      Palmetto’s

instructions continue to control nurses’ discretion even after

hours and on weekends.          When the Managers go home at night or

for the weekend, they do not take their instructions with them.

      Moreover,    the     record   evidence       establishes   that    both   the

Director   and    Assistant     Director      of    Nursing   rotate    “on-call”

duties on nights and weekends, and the three Unit Managers have

other limited on-call duties.           The Unit Managers have instructed

the Nurses to call them after hours for assistance, and Director

Lambert testified that the Nurses may call her for assistance as

well.     As the Board explained in Golden Crest, the fact that

nurses are the most senior staff on site after hours “is even

less probative where management is available after hours.”                  Id. 3

      Given these facts, the Board reasonably concluded that the

Nurses do not exercise independent judgment when directing CNAs.



      3 Palmetto’s reliance on our decision in Beverly is
misplaced. In addition to predating Kentucky River and Oakwood,
in Beverly the Board conceded that the employer “provides no
list of criteria by which assignments, direction of nursing
assistants, or emergency dismissals are to be made.”   165 F.3d
at 298.    Here, Palmetto has utterly failed to rebut evidence
that its instructions provided detailed “criteria” on these
issues.



                                        16
                                    IV.

      The record offers abundant evidence supporting the Board’s

finding that Palmetto failed to establish that the Nurses use

independent judgment in disciplining and directing the work of

CNAs.    Accordingly, we must deny Palmetto’s petition for review

and   grant   the   Board’s   cross-petition   for   enforcement   of   its

order.

                                           PETITION FOR REVIEW DENIED;
                                CROSS-PETITION FOR ENFORCEMENT GRANTED




                                    17
