Beverly Enterprises v. NLRB

Filed: February 17, 1999

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 96-2778(L)
(9-CA-34245)

Beverly Enterprises, etc.,

Petitioner,

versus

National Labor Relations Board,
Respondent.

O R D E R

The court amends its opinion filed January 19, 1999, as

follows:
On page 6 -- the first sentence of the dissent is corrected to

read: "I dissent in both Nos. 96-2778/97-1037 (Glasgow) and 96-

2779/97-1078 (Carter Hall)."
For the Court - By Direction

/s/ Patricia S. Connor
Clerk
 Opinion on Rehearing En Banc

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BEVERLY ENTERPRISES, WEST
VIRGINIA, INCORPORATED, d/b/a
Glasgow Rehabilitation and Living
Center,
Petitioner,

v.
No. 96-2778
NATIONAL LABOR RELATIONS BOARD,
Respondent.

AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL
ORGANIZATIONS (AFL-CIO),
Amicus Curiae.

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

v.

BEVERLY ENTERPRISES, WEST
VIRGINIA, INCORPORATED, d/b/a
Glasgow Rehabilitation and Living
No. 97-1037
Center,
Respondent.

AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL
ORGANIZATIONS (AFL-CIO),
Amicus Curiae.

On Petition for Review and Cross-application
for Enforcement of an Order of the
National Labor Relations Board.
(9-CA-34245)
Argued: June 2, 1998

Decided: January 19, 1999

Before WILKINSON, Chief Judge, and WIDENER,
MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON,
LUTTIG, WILLIAMS, MICHAEL, MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Petition for review granted and cross-application for enforcement
denied by published opinion. Judge Niemeyer wrote the majority
opinion, in which Chief Judge Wilkinson and Judges Widener, Wil-
kins, Hamilton, Luttig, and Williams joined. Senior Judge Phillips
wrote a dissenting opinion, in which Judges Murnaghan, Ervin,
Michael, and Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Andrew Allen Peterson, JACKSON, LEWIS, SCHNITZ-
LER & KRUPMAN, White Plains, New York, for Petitioner. Linda
Jill Dreeben, NATIONAL LABOR RELATIONS BOARD, Washing-
ton, D.C., for Respondent. ON BRIEF: James D. Williams, Jr.,
Thomas V. Walsh, JACKSON, LEWIS, SCHNITZLER & KRUP-
MAN, White Plains, New York, for Petitioner. Frederick L. Feinstein,
General Counsel, Linda Sher, Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, Joseph A. Oertel,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Respondent. Jonathan P. Hiatt, AFL-CIO, Washington, D.C.; David
M. Silberman, Laurence Gold, Washington, D.C., for Amicus Curiae.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

After Beverly Enterprises, West Virginia, Inc., refused to bargain
with a unit certified by the National Labor Relations Board that

2
included licensed practical nurses who are functioning as "charge
nurses," the Board found that Beverly Enterprises had committed
unfair labor practices under §§ 8(a)(1) and 8(a)(5) of the National
Labor Relations Act ("NLRA"). Beverly Enterprises filed this petition
for review, arguing that licensed practical nurses were "supervisors"
under § 2(11) of the Act and thus were not entitled to organize and
bargain collectively pursuant to § 7. For the reasons given in the sub-
stantively similar case, Beverly Enterprises, Virginia, Inc. v. NLRB,
No. 96-2779(L), ___ F.3d ___ (4th Cir. 1998), which we have also
decided today, we hold that these licensed practical nurses are "super-
visors" under the Act. Accordingly, we grant Beverly Enterprises'
petition and deny the Board's application for enforcement of its order.

I

Because this case is slightly distinguishable factually from Beverly
Enterprises, Virginia, Inc. v. NLRB, No. 96-2779(L), ___ F.3d ___
(4th Cir. 1998), we summarize the most pertinent facts presented in
this case.

Beverly Enterprises, West Virginia, Inc., operates Glasgow Reha-
bilitation and Living Center, a nursing home which serves 120
patients housed in two wings of equal size. An Administrator runs the
nursing home. The nursing department is run by a Director of Nurs-
ing, who reports to the Administrator, and an Assistant Director of
Nursing, who reports to the Director of Nursing. A registered nurse
holds the position of Care Plan Coordinator and two additional regis-
tered nurses serve as RN Supervisors. Direct patient care is provided
by 24 licensed practical nurses ("LPNs"), who report to the Director
of Nursing and the RN Supervisors, and 50-60 certified nursing assis-
tants, who report to the LPNs and the RN Supervisors.

The Glasgow nursing home operates on a three-shift schedule, with
shifts from 7:00 a.m. to 3:00 p.m., 3:00 p.m. to 11:00 p.m., and 11:00
p.m. to 7:00 a.m. The Director and Assistant Director of Nursing, as
well as the Care Plan Coordinator, work the first shift (8:00 a.m. to
4:00 p.m.) each weekday, while the two RN Supervisors work the
first and second shifts each weekday. On weekends an Assistant
Activities Director or a department head works for four hours each
Saturday and Sunday. During all remaining times, which amount to

3
almost one-half of the total hours in the week, the LPNs are the most
senior staff at the nursing home. While the LPNs "maintain overall
operation of the home" during this time, they are able to contact a reg-
istered nurse who is "on call."

In addition to performing a wide array of patient care tasks, the
LPNs occupy the position of charge nurse and thus are "in charge" of
the nursing home during the hours when the registered nurses are not
at the facility. According to the LPNs' job performance requirements,
LPNs at Glasgow "will serve as Charge Nurse[s] of the unit to which
assigned and will direct the care of that unit within the framework of
the policies of this nursing home [, i]n addition to participating in and
supervising all care of patient needs and giving or directing that care
which is of a skilled nature." LPNs must "maintain overall operation
of the home in the absence of the supervisor, director of nurses, and
administrator, notifying any of them when necessary." And LPNs
must "initiate assignments to aides . . . and change if necessary upon
ensuring proper quality of . . . care."

The certified nursing assistants' job performance requirements pro-
vide that they must "adher[e] to instructions issu[ ]ed by the nurse."
They also "[w]ork[ ] under supervision" and are supervised by the
charge nurse, whether that nurse is a registered nurse or an LPN.

Although the LPNs direct the certified nursing assistants in their
work, their discretion in the assignment of work and the ability to
transfer certified nursing assistants from one wing to the other is
somewhat constrained by the certified nursing assistants' collective
bargaining agreement. Thus, for example, when replacing an absent
certified nursing assistant or assigning certain work tasks, the super-
vising LPN must call certified nursing assistants in the order of
seniority specified by the collective bargaining agreement. It appears
undisputed, however, that there are some collateral tasks which LPNs
may, in their discretion, assign to certified nursing assistants, such as
work in the special medicare unit.

While the collective bargaining agreement controls decisions
involving permanent transfers of certified nursing assistants and pre-
scribes break and lunch times, it still remains the duty of the LPNs
to monitor certified nursing assistants to ensure that they complete

4
their assignments and do them properly. When new certified nursing
assistants arrive, it is the LPNs' responsibility to determine when the
new employees are sufficiently trained to accept full assignment.

The LPNs may also undertake various forms of disciplinary action
against certified nursing assistants. In particular, while LPNs may not
suspend or discharge certified nursing assistants without prior
approval of the Director or Assistant Director of Nursing, the LPNs
may informally counsel them and may give them either an oral or a
written warning. And although this power has not been used, the
LPNs are also authorized to suspend a certified nursing assistant on
the spot when the nursing assistant is suspected of patient abuse.

Finally, when the Administrator, the Director of Nursing and the
Maintenance Supervisor are not at the facility and a fire alarm occurs,
"the senior charge nurse will be in charge of the facility and the senior
charge nurse will direct fire alarm procedures."

In 1994, the United Steelworkers of America, the Union which rep-
resents Glasgow's service employees, maintenance employees, and
certified nursing assistants, petitioned the National Labor Relations
Board to recognize the Union as the LPNs' collective bargaining rep-
resentative. Beverly Enterprises contested the Union's authority to
represent the LPNs, arguing that the LPNs were supervisors, not enti-
tled to unionize under § 7 of the NLRA, 29 U.S.C. § 157. The
Regional Director rejected Beverly Enterprises' argument and
directed an election.

Following the election, which the Union won, the Union attempted
to bargain with Beverly Enterprises, but Beverly Enterprises refused.
The Board thereafter found that Beverly Enterprises had committed
unfair labor practices in violation of §§ 8(a)(1) and 8(a)(5) of the
NLRA, 29 U.S.C. § 158(a)(1) & (5).

On appeal from the Board's order, a divided panel of this court
granted the Board's petition for enforcement, holding that Beverly
Enterprises' LPNs were not supervisors under the NLRA. See Beverly
Enterprises, West Virginia, Inc. v. NLRB, 136 F.3d 353 (4th Cir.
1998). By order dated March 30, 1998, the full court vacated that
panel opinion and ordered that the case be reheard en banc.

5
II

Beverly Enterprises argues that the new unit certified by the NLRB
was contrary to the NLRA because it consisted of supervisors. It also
argues that it was deprived of due process when the hearing officer,
who initially heard this case, declined to allow Beverly Enterprises to
question certain witnesses for pro-union bias.

Addressing Beverly Enterprises' main point that its LPNs are
supervisors, we apply the principles set forth in the companion case,
Beverly Enterprises, Virginia, Inc. v. NLRB, No. 96-2779(L), also
decided today, to conclude that the LPNs in this case are likewise
supervisors and are not appropriately included in collectively bargain-
ing units. The record clearly demonstrates that for almost one-half of
the working hours at the Glasgow nursing home, LPNs are the most
senior staff present. During this time, they are responsible for main-
taining the overall operation of the home and for directing the work
of the certified nursing assistants. They are responsible for assigning
collateral tasks to nursing assistants at their discretion, for monitoring
the nursing assistants to ensure that they do their jobs properly, for
counseling and writing up nursing assistants' performance, for deter-
mining when nursing assistants are ready to handle full assignment,
and for immediately suspending nursing assistants who are suspected
of patient abuse. The authority and responsibilities given the LPNs at
Glasgow are not sufficiently distinguishable from those articulated in
our companion case to require a different result. Accordingly, we hold
that the LPNs at Glasgow are supervisors within the definition of 29
U.S.C. § 152(11).

Because we reach this conclusion, we need not address Beverly
Enterprises' due process argument.

Accordingly, Beverly Enterprises' petition for review is granted
and the NLRB's decision is reversed. The NLRB's application for
enforcement of its order is denied.

IT IS SO ORDERED.

PHILLIPS, Senior Circuit Judge, dissenting:

I dissent in both Nos. 96-2778/97-1037 (Glasgow) and
96-2779/97-1098 (Carter Hall). I would enforce the
Board's orders and deny the petitions for review in both of these cases

6
essentially for the reasons given in Judge Hall's majority opinions in
the two vacated panel decisions. See Beverly Enters., W. Va., Inc. v.
NLRB, 136 F.3d 353 (4th Cir. 1998) (hereinafter Glasgow); Beverly
Enters., Va., Inc. v. NLRB, 136 F.3d 361 (4th Cir. 1998) (hereinafter
Carter Hall). As those opinions cogently demonstrate, the Board's
decisions, properly reviewed, are supported by substantial evidence
and are not contrary to law.

The en banc majority's contrary conclusion is reached by failing to
accord the judicial deference owed both to the Board's construction
of the enigmatic "independent judgment" element of the famously
ambiguous statutory definition of "supervisor" and to the Board's
findings of fact in application of that construction. Instead, as I will
later demonstrate, the majority effectively conducts de novo review of
the Board's decisions, first adopting its own legal construction of the
critical independent judgment requirement, then applying it in plenary
review of the evidence to conclude that the LPN charge-nurses in
these cases were "supervisors" under § 2(11) of the Act.

I do not believe that any licence so to skew normal standards of
judicial review in these cases properly can be found in the justifica-
tions upon which the majority seems to rely. That being so, the nor-
mal standards apply, requiring that deference be accorded both to the
Board's construction of "independent judgment" as a reasonable, not
arbitrary, one and to its findings of fact made in application of that
construction as plausible ones. If that be done, the Board's decisions
that these LPNs are not supervisors were supported by substantial evi-
dence on the record considered as a whole and were not contrary to
law. I would so hold.

I

The real issue in these and comparable LPN-as-supervisor cases
around the circuits concerns the Board's construction of the "indepen-
dent judgment" requirement rather than its raw fact-finding processes
in deciding these cases. For if the Board's construction is upheld as
one owed deference, its findings in application--that the limited
authority exercised (or had) by LPNs over CNAs in these cases did
not involve the use of "independent judgment"--are unassailable.
And, conversely, if the majority's different construction in disregard

7
of the Board's is applied, its contrary conclusion that independent
judgment was involved, is equally unassailable. 1 I therefore address
the Board's construction and the deference we owe it as effectively
dispositive of these cases.2

Consider the daunting problem of statutory construction that
always has faced the Board in giving legal meaning to the term "su-
pervisor" for application in these cases. It is a "tough nut" as Judge
Hall pithily put it in the now-vacated panel decision in Glasgow.
Glasgow, 136 F.3d at 359. It begins with Congress's own understand-
able difficulty in defining "supervisor" when, in 1947, it took that cat-
egory of "employee" out of the organizational, representational, and
_________________________________________________________________

1 That this issue is the decisive one is readily demonstrated by consider-
ing the decisions giving rise to the current post-Health Care circuit con-
flict on the question of LPN "independent judgment," hence "supervisor"
status. As noted by the en banc majority, these decisions include on one
side this court's decision in Glenmark Assocs., Inc. v. NLRB, 147 F.3d
333 (4th Cir. 1998), that of the Third Circuit in Passavant Retirement &
Health Center v. NLRB, 149 F.3d 243 (3d Cir. 1998), and of the Sixth
Circuit in Mid-America Care Foundation v. NLRB, 148 F.3d 638 (6th
Cir. 1998), all rejecting Board determinations that LPNs were not super-
visors because they did not exercise independent judgment; and, on the
other side, the decisions of the D.C. Circuit in Beverly Enterprises-
Pennsylvania, Inc. v. NLRB, 129 F.3d 1269 (D.C. Cir. 1997), of the
Eighth Circuit in Beverly Enterprises v. NLRB , 148 F.3d 1042 (8th Cir.
1998), and of the Ninth Circuit in Providence Alaska Medical Center v.
NLRB, 121 F.3d 548 (9th Cir. 1997), all upholding similar Board deter-
minations. While inevitably there are factual distinctions between the
LPN activities vis-a-vis CNAs in these cases, there is a sufficiently com-
mon pattern respecting their assignment, directive, and disciplinary activ-
ities that makes it obvious that the different results turn not on any
significant factual differences, but on the way "independent judgment" is
construed and back of that, on the judicial deference owed the Board's
construction. That this is the actual source of the current circuit split
seems to be tacitly recognized by the en banc majority. (See Maj. Op. in
Carter Hall at 14.)

2 Which is to say that if that construction is applied, the evidence
clearly supports the Board's decisions, as is demonstrated by Judge
Hall's evidence assessment in the two vacated panel opinions--which I
adopt by reference. See Glasgow, 136 F.3d at 359-60; Carter Hall, 136
F.3d at 362-63.

8
bargaining protections of the Act. The inevitably ambiguous defini-
tion that emerged as § 2(11) of the Act is one that from the outset has
defied easy administrative and judicial construction and application.

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.

29 U.S.C. § 152(11).

From this bare text it is not possible to say with confidence much
more than the obvious: that to be a "supervisor" (1) an employee must
have the authority to do at least one of the twelve statutorily enumer-
ated activities vis-a-vis other employees; (2) that the authority to do
so must be held "in the interest of the employer" and (3) that the
authority must be such that its exercise is not of a "merely routine or
clerical nature" but "requires the use of independent judgment." See
NLRB v. Health Care & Retirement Corp. of Am., 511 U.S. 571, 573-
74 (1994) (so parsing the statutory language). The first requirement--
that authority exists--presents no problem of construction (nor, usu-
ally, of application). But the meaning of the additional requirements
that the authority be held in the "interest of the employer" and that it
be such that its exercise requires the use of "independent judgment"
as opposed to being of a "merely routine or clerical nature" surely is
far from plain. What delegated authority from an employer to do any-
thing concerning its business is not presumptively"in the interest of
the employer"--to some extent at least? How "independent" must be
the judgment used in exercising authority over fellow-employees to
make its exercise "not merely routine or clerical in nature?" May not
"routine" and "clerical" activities themselves sometimes require the
use of "independent judgment;" are these inveterate opposites? And
so on.

9
Confronted with this basic ambiguity in the Act's definition of "su-
pervisor," the Board (and reviewing courts) properly have sought
guidance in relevant legislative history. Doing so, they properly have
recognized that Congress's principal definitional concern was at the
margins of supervisory authority: with differentiating the lowest level
of true supervisors such as foremen--undoubted members of
management--from their near-relation, the "straw-boss" or "leadman"
who, though frequently exercising delegated authority to direct and
assign fellow employees, was as a practical matter not a part of man-
agement but just another member of the work force. See NLRB v. Bell
Aerospace Co., 416 U.S. 267, 280-81 (1974) (citing S. Rep. No. 89-
105, at 4 (1947), as so indicating legislative intent). Accepting this
indication of Congress's basic policy concern, the Supreme Court
early on recognized its implication that the Board need not consider
every employee who performed some "minor supervisory duties" to
be a § 2(11) "supervisor." See id. at 274-90; see also Marine Eng'rs
Beneficial Ass'n v. Interlake Steamship Co., 370 U.S. 173, 179 n.6
(1962) (agreeing that "gradations of authority" to direct work of oth-
ers in work force were so "infinite and subtle" that Board must have
a "large measure of . . . discretion" in determining who in exercising
such authority was and was not a § 2(11) supervisor) (quoting NLRB
v. Swift & Co., 292 F.2d 561, 563 (1st Cir. 1961)).

Adding to the intrinsic difficulty posed by § 2(11)'s ambiguous
definition of "supervisor" is the contemporaneous amendment
respecting "professional" employees, such as the LPNs in our cases.
At the same time that Congress defined and excluded"supervisors"
from the Act's protections in § 2(11), it defined for continued inclu-
sion "professional" employees. See 29 U.S.C. § 152(12) (definitional
section); id. § 159(b) (limiting Board's discretion to include profes-
sional and non-professional employees in same bargaining unit). Crit-
ically, in defining "professional employee" Congress identified as one
of his hallmarks that he "engage[s] in work. . . involving the consis-
tent exercise of discretion and judgment in its performance[.]" Id.
§ 152(12) (emphasis added). Inescapably, this§ 2(12) definition of
the included professional juxtaposed with the § 2(11) definition of the
excluded supervisor gave rise to a "tension" between the two that fur-
ther exacerbated the problem of construing § 2(11). See NLRB v.
Yeshiva Univ., 444 U.S. 672, 686 (1980) (so recognizing). Although
the Supreme Court has rejected the contention that this "tension"

10
requires that professional employees be distinguished from other
employees "for purposes of the definition of supervisor," see Health
Care, 511 U.S. at 581, the tension nevertheless remains to challenge
the Board and reviewing courts in construing § 2(11). The reality
remains that professional employees' "consistent exercise of discre-
tion and judgment in [the] performance of[their work]," 29 U.S.C.
§ 152(12), invariably will include the exercise of authority to "assign"
and "responsibly . . . direct" the activities of those less-skilled
employees who traditionally act as "elbow assistants" in performing
professionals' assigned work. See NLRB v. Res-Care, Inc., 705 F.2d
1461, 1465 (7th Cir. 1983) (Posner, J.) (citing as examples the law-
yer's secretary, the teacher's aide, the doctor's nurse, and the nurse's
aide). And, it remains inescapable that unless such professional
employees are nevertheless not considered on that account alone to be
supervisors under the § 2(11) definition, then Congress's intent cate-
gorically to include them in the Act's protections will be effectively
undercut.

Seeking to accommodate the definitional tension, the Board first
thought the answer could properly be found in § 2(11)'s "interest of
the employer" requirement. In the specific context of LPNs exercise
of assignment and work direction authority over CNAs, the Board
took the adjudicative position that "a nurse's direction of less-skilled
employees, in the exercise of professional judgment incidental to the
treatment of patients, is not authority exercised`in the interest of the
employer.'" See Health Care, 511 U.S. at 574 (so characterizing
Board's adjudicative position). Rather, the Board ruled, in affirming
an ALJ's decision, that in giving this sort of direction, the LPNs'
supervisory activities did not "equate to responsibly . . . direct[ing]
the aides in the interest of the employer," their"focus" instead being
"on the well-being of the residents rather than of the employer." Id.
at 575 (quotation and emphasis omitted). In Health Care, the
Supreme Court rejected this construction, holding that it was based
upon a "false dichotomy" between acts taken in employer interests
and acts taken in patient interests. See id. at 577.3
_________________________________________________________________

3 One may wonder whether the "dichotomy" identified by the Court
reflected the Board's actually intended adjudicative position. The Court
interpreted the Board's position as an either/or proposition: one either

11
Rebuffed in its "interest of the employer" construction, the Board
remained persuaded that in faithfulness to underlying congressional
policy as reflected in relevant provisions of the Act and legislative
history "supervisor" must be construed in a way that did not categori-
cally exclude LPNs from the Act's protections by virtue of their typi-
cal oversight activities in relation to CNAs. And, it properly
understood Health Care not to preclude construction of other parts of
§ 2(11) that would have that effect. See Health Care, 511 U.S. at 583-
84 (noting that decision concerned only "interest of the employer"
requirement).

Accordingly, in these and comparable post-Health Care LPN-as-
supervisor cases around the circuits, the Board now has taken the
alternative adjudicative position that the supervisory authority typi-
cally exercised by LPNs over CNAs is not exercised with "indepen-
dent judgment" as contemplated by § 2(11). Specifically, the Board
has taken the position that the judgment exercised by LPNs in exer-
cising their incidental4 supervisory authority over CNAs is not the
"independent judgment" concerned with management prerogatives
that is contemplated by § 2(11), but is more properly viewed as "pro-
_________________________________________________________________

acts in the employer's interest or in the customer/client/patient's interest.
That is not only a "false" dichotomy but so clear a loser that it is difficult
to believe it was what the Board actually intended. Nevertheless, it is
what the Court (understandably) perceived. Perhaps, as its later adjudica-
tive positions seem to suggest, the Board's intended distinction was
between supervisory activities aimed simply at getting the health care job
done in ways not inimical to basic labor-relations interests of the CNAs,
and supervisory activities involving basic "management prerogatives"
likely to be at odds with CNA interests, i.e. , "in the employer's interest"
as opposed to theirs.

I mention this only as it may bear upon the rationality of the Board's
various efforts to construe, as a matter of delegated policy choice, this
and other ambiguous elements of the § 2(11) definition of "supervisor."

4 In the typical pattern of LPN charge-nurse activities revealed in these
cases, they spend the vast majority of their time on duty doing exactly
what the CNAs do--directly attending to patients' basic medical and per-
sonal hygiene needs. (See J.A. 179 (Decision and Direction of Election
in Carter Hall) ("85% of their workday"); id. at 462 (Decision and Direc-
tion of Election in Glasgow) ("significant amount of their time").)

12
fessional judgment" exercised in getting their assigned work done
with the assistance of CNAs employed specifically for that purpose.
Obviously (though not always expressly) applying such a construction
of the term, the Board in recent cases consistently has upheld ALJ
findings that the traditional pattern of LPN charge-nurse supervisory
activities vis-a-vis CNAs exemplified in Glasgow and Carter Hall fall
on the "routine or clerical" side rather than the "independent judg-
ment" side. See supra note 1 (citing cases). As indicated, it is unas-
sailable that if that construction is a valid one, the Board's findings
in applying it in these cases must be upheld as supported by substan-
tial evidence.

We owe that construction deference unless we can declare it "arbi-
trary [or] capricious" within the meaning of the Administrative Proce-
dure Act ("APA"). See 5 U.S.C. § 706. And, more particularly, we
owe it deference as a classic example of agency construction of an
ambiguous provision, see Health Care, 511 U.S. at 579 (so character-
izing "independent judgment"), of a statute with whose enforcement
the agency is entrusted, unless we cannot say of it even that it is a
"permissible construction." Chevron USA Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-43 (1984).5

I do not see how the Board's construction and application of the
term in these cases possibly could be declared "arbitrary [or] capri-
cious," even were we to think it wrong-headed, or misguided, or bad
statutory "interpretation," or the like. On the contrary, I am satisfied
that it is easily a "permissible construction" of a definitional provision
whose ambiguity--overall and in particular--bespeaks Congress's
deliberate delegation to the Board of a wide range of discretion in
making the difficult policy choices required to differentiate "employ-
ees" from "supervisors" at the margins in particular work-forces. See
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (admon-
ishing that reviewing "court[s] may [not] displace the Board's choice
between two fairly conflicting views, even though the court would
_________________________________________________________________

5 The Board's statutory construction by adjudication is entitled, where
otherwise due, to Chevron-deference. See Edward J. DeBartolo Corp. v.
Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574
(1988).

13
justifiably have made a different choice had the matter been before it
de novo").

The LPN charge-nurse of the pattern revealed in these cases is pre-
cisely in that marginal area. Her principal activity--the direct, hands-
on care of medical patients--is the end-product of her employer's
business. She does everything in the final delivery of that product that
anyone in the work-force does. In that respect she is quintessentially
just a member of the work-force gang--as surely as if she were on
the final assembly line in a widget-producing factory.

She falls in the marginal area only because she does not act alone
in the final delivery of the product. CNAs assist her in that effort, and
she has and exercises some authority in assigning, directing, and mon-
itoring their performance in giving the "aid" to her that is their func-
tion. She therefore does have some supervisory authority, and though
this alone does not make her a § 2(11) supervisor, see Bell Aerospace
Co., 416 U.S. at 279-83, it must of course be taken into account in
determining whether she is.

Finally, there is the fact that in both her primary work activity and
her incidental supervisory activity, the LPN charge-nurse functions as
a "professional." This does not prevent her being found a § 2(11)
supervisor nor even require that a different test of supervisor status be
applied to her under § 2(11), see Health Care, 511 U.S. at 581. But,
it does require that Congress's express direction that professional
employees remain under the Act's organizational protections notwith-
standing their "consistent exercise of discretion and judgment in [per-
forming their work]" be also taken into account.

Given the marginal nature of the LPN charge-nurse's primary work
activity and incidental supervisory function in the classic pattern of
these cases, the Board's construction of "independent judgment" for
application to them cannot be declared "arbitrary[or] capricious"
under the APA. See 5 U.S.C. § 706. On the contrary, it is an emi-
nently permissible construction of this ambiguous provision under
Chevron. Emphasizing the incidental character of the charge-nurses'
supervisory authority over CNAs in attending to a shared operational-
level duty of their employment, the Board's construction simply
reflects an underlying assessment that as a practical matter these LPN

14
charge-nurses are more worker--at most no more than "straw-boss"
--than they are "foreman" in these health-care industry work-forces.
That construction should therefore be upheld as one owed deference
by this court and the findings made by the Board in applying it upheld
as supported by substantial evidence.

II

As earlier asserted, the majority's contrary conclusion is reached
by declining to accord the Board's decisions the deference normally
commanded by APA § 706 and Chevron, instead effectively review-
ing the Board's decisions de novo, both as to legal conclusions and
factual findings. The majority never says that this is its process, nor
even expressly acknowledges the relevance of APA§ 706 and
Chevron to that process, but that this was effectively its process is
evident from the analysis described in its opinion and from the result
reached.

First off, the majority simply disregards the Board's construction
of "independent judgment," never asking the hard questions about it
that are commanded by the deferential "arbitrary or capricious" stan-
dard of APA § 706 and the "permissible construction" standard of
Chevron. Instead, purporting to find in the Board's decisions on LPN
supervisor status an "irrational inconsistency" that apparently disenti-
tled its construction to any deference, the majority simply adopts de
novo its own interpretation of what it seemed to treat as the term's
plain statutory meaning. And the construction it adopts is one so strin-
gent in formulation that under it all exercises of supervisory authority
except those involving no discretion would appear to involve "inde-
pendent" judgment. According to the majority, to exercise authority
"with `independent judgment' mean[s] that it must be exercised in a
non-ministerial way to achieve management goals." If "ministerial" is
given its ordinary legal meaning in this construction, only supervisory
activities carried out under rigidly prescribed guidelines leaving no
room for discretion--that is, imposing "ministerial" duties--could be
found not to involve independent judgment. See Black's Law
Dictionary 996 (6th ed. 1990) (defining "ministerial duty").

Then, without any reference to the deferential review of factual
findings commanded by the substantial evidence standard, see

15
Universal Camera Corp., 340 U.S. at 488, the majority describes its
fact-finding review function as being to "determine whether the facts
of record fulfill the statutory requirements of`supervisor,'" which
include of course the majority's construction of"independent judg-
ment." Inevitably then, reviewing directly the "facts of record" under
its own construction of "independent judgment," the majority
concludes--in what has all the appearance of raw fact-findings--that
the LPN charge nurses are supervisors under the NLRA.

We of course cannot know what result the majority would have
come to had it carefully identified and reviewed the Board's quite dif-
ferent legal construction with proper deference rather than simply
imposing its own much different one. Nor can we be sure that it
applied the construction it posited to the "facts of record" as strin-
gently as its literal formulation suggests it might have. We can be
sure, however, of several things about the process it purported to fol-
low.

The first is that the court properly could not simply disregard the
Board's construction. That construction was entitled to recognition
and deferential review as the necessary first, and likely dispositive,
step in the process.6 The next is that the majority would have faced
a formidable--I think impossible--task in explaining why the
Board's construction was not entitled to deference under § 706 of the
APA and Chevron, even if it were thought that the majority's more
stringent construction also could pass muster under those standards.
The last is that the majority's construction of "independent judg-
ment," if applied with anything approaching the stringency its "minis-
terial" standard suggests, would make it almost impossible ever to
find any exercise of supervisory authority not one involving "indepen-
dent judgment." And that is at odds with the Supreme Court's recog-
nition that not all exercises of supervisory authority need be found by
_________________________________________________________________

6 A recent Supreme Court decision provides an object lesson in the
judicial obligation to recognize and accord deferential review to even
facially counterintuitive Board rules as the necessary first step in the "ar-
bitrary [or] capricious" review commanded by APA § 706. See
Allentown Mack Sales & Service, Inc., 116 S. Ct. 818, 821-23 (1998)
(finding on basis of rigorous, pragmatic review of "puzzling policy" of
Board rule, that it was not, however, "arbitrary[or] capricious").

16
the Board to make one a § 2(11) supervisor. See Bell Aerospace, 416
U.S. at 279-83.

This refusal to accord normal deference to the Board's construction
of "independent judgment" not only leads to what I believe are wrong
results in these cases, it creates bad and troublesome precedent for
future NLRB (and general agency) review in this circuit. Because of
the latter consequence, I believe it important to point out wherein I
think the majority strays from proper administrative agency review
principles.

Consider first the authority relied upon by the majority for the
clearly implied proposition that a course of inconsistency in Board
decisions on a particular issue bespeaks "policy bias" which then dis-
entitles later Board decisions on that issue to normal deference by rea-
son of the demonstrated irrationality of the Board's legal position.
Asserting that the Board's recent "shift [of] . . . position" on LPN-
supervisor status "has prompted widespread speculation that the
Board's decisions on this subject are based not on the [the Act's defi-
nition of supervisor) but on a `policy bias'," the majority cites in sup-
port of that ominous suggestion four judicial decisions: that of the
Supreme Court in Health Care; that of the Sixth Circuit in Caremore,
Inc. v. NLRB, 129 F.3d 365 (6th Cir. 1997); and two of this court in,
respectively, NLRB v. St. Mary's Home, Inc., 690 F.2d 1062 (4th Cir.
1982), and Glenmark Associates, Inc. v. NLRB, 147 F.3d 333 (4th Cir.
1998). But none of those decisions, including those of this court in St.
Mary's and Glenmark, provides valid support for the assertion.

In the passage quoted from Health Care, the Supreme Court is not
adverting to any inconsistency of results in a series of Board decisions
on LPN charge-nurse status, but simply to the "inconsistency" of the
Board's construction of "in the employer's interest" with the statutory
language and Court precedent in the very case before the Court. Simi-
larly, the Court's reference to a "shift [of] ground" in the Board's
position has not to do with any inconsistency of Board decisions, but
only with a "shift" by the Board from reliance on statutory construc-
tion to non-statutory arguments in the very case before the Court. See
Health Care, 511 U.S. at 580. Health Care is not, therefore, about
forfeited deference because of a course of inconsistent Board deci-

17
sions, but about perceived error of statutory construction in the case
at hand under normal standards of agency review.

Neither, in the passage cited from Caremore, is the Sixth Circuit
adverting to a series of inconsistent prior Board LPN-as-supervisor
decisions. Instead, the court is faulting a Board refusal in the very
case before the court to follow what the court considers settled circuit
law on LPN supervisor status. See Caremore, 129 F.3d at 370-71.
Neither, therefore, is Caremore a decision about forfeited deference
by reason of previous inconsistency of decisions, but simply about
what the court considers to be defiance of settled circuit law in the
very case before it.

When we turn to the two decisions of this court on which the
majority relies for the proposition, we do find the proposition asserted
but not, I am satisfied, with any authority or valid basis in administra-
tive law. The proposition first appears in the 1982 split panel decision
in St. Mary's Home. There, after reciting the Universal Camera
maxim that under the "substantial evidence" standard Board orders
may be denied enforcement when the reviewing court is unable on the
basis of the whole record to find a Board decision supported by sub-
stantial evidence, the majority opined:

[T]his should be particularly true when the Board is deter-
mining supervisory status because of the inconsistency in
the Board's application of the statutory definition and of the
factors to be used in determining such application. So mani-
fest has this inconsistency been that a commentator recently
has aptly observed that "the Board has [so] inconsistently
applied the [statutory] definition" of supervisor as to cause
one necessarily to speculate "that the pattern[of Board deci-
sions on supervisory status] displays an institutional or pol-
icy bias on the part of the Board's employees" as illustrated
by a practice of adopting that "definition of supervisor that
most widens the coverage of the Act, the definition that
maximizes both the number of unfair labor practice findings
it makes and the number of unions it certifies." Note, The
NLRB and Supervisory Status: An Explanation of Inconsis-
tent Results, 94 Harv. L. Rev. 1713 at 1713-14 and 1721

18
 (1981). For this reason, courts must carefully scrutinize the
Board's findings and the record on supervisory status.7

St. Mary's Home, 690 F.2d at 1067.

The majority opinion in Glenmark, a later split panel decision on
LPN supervisory status, then simply picked up on the St. Mary's
Home observations in the course of a lengthy footnote devoted to
reviewing and criticizing the Board's LPN-as-supervisor decisions.
See Glenmark, 147 F.3d at 339 n.8.8 Glenmark drew on no other
authority than St. Mary's Home for the proposition that inconsistency
of prior decisions reveals a policy bias that disentitles a Board deci-
sion under current review to normal deference.

It thus appears that the majority's no-deference position in these
cases simply emerged out of whole cloth in the St. Mary's Home
court's assumption that the Board's inconsistency on the subject of
_________________________________________________________________

7 In this last quoted sentence, St. Mary's Home expressly adopted a
review standard facially less deferential than that normally commanded
on the basis that inconsistency bespeaking "policy bias" had been dem-
onstrated to the court's satisfaction. For whatever reason, the majority
here does not expressly invoke that critical aspect of the St. Mary's
Home decision, but obviously makes the same assumption: that inconsis-
tency bespeaking policy bias diminishes (or completely abolishes) the
deference ordinarily commanded in agency review.

8 Several passages in that footnote bear noting as indications of the
extent to which the Glenmark court's assumption of Board "policy bias"
necessarily influenced the deference with which it reviewed the Board's
decision in that case. The note opens with the observation that "This
issue of the supervisory status of nurses serves as another example of the
NLRB's continuing effort to modify the plain language of § 2(11)." Id.
(emphasis added). Later, the Board's post-Health Care construction of
"independent judgment" is characterized as an adversarial litigation posi-
tion taken when the Board "began this latest litigation--attacking the
supervisory status of nurses." Id. (emphasis added). And later there
appears the suggestion that "[c]redibility is as important to an agency
appearing before us as it is to any other litigant", id. (emphasis added),
followed by citations to several recent decisions of this court, all since
1997, in which the court is said to have "criticized the Board's question-
able positions," hence, presumably, its "credibility" as a "litigant." Id.

19
LPN supervisor status revealed a "policy bias" that warranted the
position. I do not believe the position has any support in settled
administrative law nor--for what it is worth--in the Harvard Law
Review Note on whose assumptions of inconsistency and, from that,
of "policy bias," the St. Mary's Home court drew. Accordingly, I
would take the occasion of this en banc rehearing to pull back from
any implication from St. Mary's Home and Glenmark that as a general
proposition NLRB decisions on supervisor status in general or LPN
supervisor-status in particular are not entitled to the normal deference
commanded by 5 U.S.C. § 706 and Chevron .

Take first the assumption of inconsistency of prior decisions on
which the further assumption of pro-union policy bias is rested. The
only "inconsistency" of which I am aware that is generally understood
in administrative law to warrant a withholding of normal deference is
that involving an unexplained shift of position on the very issue under
review. See Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of
Trade, 412 U.S. 800, 808 (1973); see generally Kenneth Culp Davis
& Richard J. Pierce, Jr., Administrative Law Treatise § 11.5 at 206
(1994) ("The dominant law clearly is that an agency must either fol-
low its own precedents or explain why it departs from them.").

In the cases we review, the Board's construction of"independent
judgment" involved no such unexplained change of position. As indi-
cated, neither Health Care nor Caremore had held that the Board's
LPN-as-supervisor decisions involved such an unexplained change of
position. And when one looks independently at the course of Board
decisions on the subject, they do not. The only shift in legal position
involved in those decisions was from rejected reliance on "interest of
the employer" to reliance on "independent judgment" as the element
lacking in the "supervisor" definition. To shift positions between
alternative grounds for decision (here, alternative grounds of statutory
construction) is a time-honored practice in the decisional process, and
that one here was adequately explained in the Board's post-Health
Care decisions.9
_________________________________________________________________

9 Incidentally, the "inconsistency" identified in the Harvard Law
Review Note relied upon in St. Mary's Home was not this sort of shift-
of-position inconsistency, but a perceived inconsistency between the

20
To the extent that the majority relies on the St. Mary's Home
court's assumption of Board "policy bias" as an independent basis for
withholding deference, I do not believe that any accepted principle of
administrative law authorizes a judicial refusal to apply normal stan-
dards of agency review as a means of countering assumed agency
bias. The majority cites no authority to that effect other than that
asserted in our St. Mary's Home and Glenmark decisions. The most
relevant Supreme Court authority on the general subject actually
points in the other direction: requiring that courts accept and accom-
modate the reality that agencies must be able to adopt policies reflect-
ing ideological policy "biases" of the currently sitting administration.
See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991)
(emphasizing necessity that deference be so informed). As the Court
put the point in Chevron:

While agencies are not directly accountable to the people,
the Chief Executive is, and it is entirely appropriate for this
political branch of the Government to make such policy
choices--resolving the competing interests which Congress
itself either inadvertently did not resolve, or intentionally
left to be resolved by the agency charged with the adminis-
tration of the statute in light of everyday realities.

Chevron, 467 U.S. at 865-66; see also Blackburn v. Reich, 79 F.3d
1375, 1382 (4th Cir. 1996) (Williams, J., dissenting) (observing that
because of the deference owed agency interpretations based on policy
_________________________________________________________________

Board's construction of "supervisor" in "bargaining unit" cases (such as
those before us) and its construction in "unfair labor practice" cases (such
as that in St. Mary's Home). The note author suggested that this inconsis-
tency's explanation lay in the fact that the Board's (ironically) consistent
pattern of decisions in each of the two categories, though inconsistent
with each other, both yielded pro-union or pro-labor results. See 94 Harv.
L. Rev. at 1718-21. Interestingly, to the extent the Note has any rele-
vance for our purposes, the author's suggested remedy for that inconsis-
tency was not any judicial or statutory alteration of the normal standard
of judicial review, which was positively rejected as a proper remedy, but
a cessation of using the § 2(11) definition of "supervisor" in certain "un-
fair labor practice" cases, where it was suggested that common law
agency rules should apply. Id. at 1728-31.

21
considerations of the elected branches, "`federal judges--who have
no constituency--have a duty to respect legitimate policy choices
made by those who do'") (quoting Chevron, 467 U.S. at 866).

Common sense and logic point in the same direction. Only uncon-
trollable mischief can result from courts presuming, on the basis of
some perceived policy bias in a course of agency decisions, to confer
a general pariah status upon that agency. How long would it persist?
Must reinstatement be somehow "earned" by the agency to entitle it
once again to normally deferential review? How, as a practical--and
legally enforceable--matter could it be "earned?" Would not any
deliberate attempt to do so necessarily compromise the integrity of the
agency's quasi-judicial function?

More critically, the normal standards of review, evenly applied
case-by-case, are as adequate to correct error induced by "policy bias"
as by any other cause. Put otherwise, only policy bias that induces
error detectible under normal review standards--arbitrary or capri-
cious legal conclusions or findings not supported by substantial
evidence--are, and need be, of any concern to reviewing courts. Any
bias having that effect will adequately reveal itself in even-handed
applications of the normal standards. Cf. NLRB v. Pittsburgh Steam-
ship Co., 337 U.S. 656, 659-60 (1948) (holding, in rejecting conten-
tion that Board findings must be rejected because of revealed ALJ
bias, that courts could properly reject only those findings that carried
their "own death wound" by reason of decisional bias).

In sum, I think there is no authority in settled administrative law
nor basis in sound administrative law principles for the majority's
apparent belief that courts may disregard normal standards of deferen-
tial agency review whenever a course of agency decisions persuades
them of agency policy bias on a matter at issue. In relying upon St.
Mary's Home and Glenmark in which that position is flatly adopted
and applied in review of Board decisions, the majority perpetuates
bad precedent for this circuit.10 Judge Murnaghan, Judge Ervin, Judge
Michael and Judge Motz join in this dissent.
_________________________________________________________________

10 Because I would uphold the Board's determination that the LPN
charge-nurses in these cases are not § 2(11) supervisors, I would also
have to address the contention that in refusing to allow cross-
examination of union members respecting their pro-union bias, the Board
denied the employers due process. I would reject that contention for rea-
sons given in Judge Hall's vacated panel opinion in Glasgow. See
Glasgow, 136 F.3d at 360-61.

22