dissenting:
As the majority opinion notes in the related case, Beverly Enterprises Virginia, Inc. v. NLRB, 136 F.3d 361, (4th Cir.1998), the facts in this case are similar to the related ease, although LPNs’ supervisory activity in this case is somewhat more restrained because of a collective bargaining agreement in force between the employer and the certified nurses aides (CNAs). Thus, for example, when replacing an absent CNA, the supervising licensed practical nurse (LPN) must call other CNAs in order of seniority. But in all material respects, the facts are similar and therefore the LPNs are supervisors as defined by § 2(H) of the NLRA, 29 U.S.C. § 152(11). During substantial periods of time, the LPNs in this case are the highest ranking representatives of the employer at the Glasgow Rehabilitation and Living Center, and as ranking supervisors, the LPNs are authorized to change CNAs’ assignments, to report CNAs who do not perform properly, and even to suspend them in circumstances where patient abuse is suspected.
For the reasons that I gave in the related Beverly Enterprises case, also decided today, I would grant the petition for review and deny enforcement of the-NLRB’s order.