Licensed Practical Nurses: Protected "Employees" or Statutory "Supervisors" under the Nlra? the Impact of the 11th Circuit's Lakeland Health Care Decision

By Twomey, David P. | Labor Law Journal, Summer 2013 | Go to article overview

Licensed Practical Nurses: Protected "Employees" or Statutory "Supervisors" under the Nlra? the Impact of the 11th Circuit's Lakeland Health Care Decision


Twomey, David P., Labor Law Journal


I. Introduction

With headlines like "Licensed Practical Nurses Ruled Ineligible for Union Representation",1 and "Eleventh Circuit Rules Licensed Practical Nurses Are Supervisors, Providing Strong Ammunition to Long-Term Healthcare Facilities,"2 Human Resources publications and law firm blogs welcomed the Eleventh Circuit Court of Appeals decision vacating the National Labor Relations Board's (NLRB) determination in its Lakeland Health Care Associates, LLC v. NLRB decision that the licensed practical nurses (LPNs) at Lakeland's Wedgewood Health Care Center were employees protected under the National Labor Relations Act (NLRA).3

LPNs complete a one year approved educational program and pass a state examination to obtain their nursing licenses.4 Registered nurses (RNs), obtain their licenses usually taking one of three educational paths: a bachelor's degree in nursing, an associate's degree in nursing, or a diploma from an approved nursing program; and in all cases pass a national licensing examination.5 LPNs, along with certified nursing assistants or aides (CNAs), are front line care givers at skilled nursing facilities.

The Eleventh Circuit Court of Appeals encompasses Florida, Georgia and Alabama. Florida has 683 certified Medicare and Medicaid nursing homes pro-David viding 82,720 beds.6 Georgia has 367 certified Medicare and Medicaid nursing homes with a total of 39,764 beds.7 Alabama has 228 certified Medicare and Medicaid nursing homes providing 26, 697 beds.8

At the same time as the release of the Eleventh Circuit's Lakeland decision in October 2012, the Society of Professional Engineering Employees in Aerospace (SPEEA) which represents some 23,000 white-collar Boeing engineers and technical employees, including SPEEA-represented professional engineer project managers, were negotiating new collective bargaining agreements with Boeing, exercising their full rights under the NLRA.9 Is it "right" that the Lakeland Health Care decision should provide "strong ammunition" for 1,278 nursing home owners in the Eleventh Circuit, some with existing LPN units, to negatively impact the collective bargaining rights of thousands of individuals, predominantly women, working at the bottom rung of the nursing profession as LPNs in the nursing home industry in Florida, Georgia and Alabama?

Part II of this paper presents the travel of the Lakeland dispute through the Board to the Court of Appeals. Part III details the law for determining statutory supervisory status, and the framework for court review of Board decisions. Part IV of this paper analyzes the Court's decision under the established standards for court review of Board decisions. Part V presents the impact of the decision for the workers directly involved, and the impact on workers throughout the judicial circuit. Part VI considers the options that could possibly provide LPNs the protections of the NLRA. And, Part VII contains a conclusion.

II. Proceedings before the NLRB and the court of appeals

On August 11, 2010 the United Food and Commercial Workers Union Local 1625 filed a petition with the NLRB seeking a representation election to establish the union as the collective bargaining representative for all of Lakeland's LPNs.10 Lakeland opposed the petition, contending that all of the LPNs are "supervisors" within the meaning of the NLRA.11 A Board hearing officer conducted a hearing devoted solely to the "supervisor" issue between August 25,2010 and August 30,2010.12 On September 24,2010, after reviewing the record and briefs of the parties, the Regional Director issued a 49 page Decision and Finding that the LPNs were not supervisors under the Act.13 The Board denied Lakeland's request for review of this decision.14 Thereafter, a representation election was conducted by the Board, where a majority of the LPNs voted for representation by the union. Onjanuary 6,2011, the union was certified as the exclusive bargaining representative for Lakeland's LPNs.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Licensed Practical Nurses: Protected "Employees" or Statutory "Supervisors" under the Nlra? the Impact of the 11th Circuit's Lakeland Health Care Decision
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.