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
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. …