PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 18-2220

CORAL HARBOR REHABILITATION AND 

NURSING CENTER,

 Petitioner

v.

NATIONAL LABOR RELATIONS BOARD,

 Respondent

______________

No. 18-2619

NATIONAL LABOR RELATIONS BOARD,

 Petitioner

v.

CORAL HARBOR REHABILITATION AND 

NURSING CENTER,

 Respondent

_______________

On Application for Enforcement and Cross-Petition for 

Review of an Order of the National Labor Relations Board

(NLRB-1 No. 22-CA-167738)

______________

Submitted March 11, 2019

______________

Before: McKEE, PORTER, and ROTH, Circuit Judges.

(Filed: December 26, 2019)
2

Louis J. Capozzi, Jr.

Brandon S. Williams

Capozzi Adler

2933 North Front Street

Harrisburg, PA 17110

Counsels for Petitioner in No. 18-2220

Ruth E. Burdick

David Habenstreit

Saulo Santiago.

David A. Seid,

National Labor Relations Board

1015 Half Street, S.E.

Washington, DC 20570

Counsels for Petitioner in No. 18-2619

______________

OPINION OF THE COURT

______________

McKEE, Circuit Judge.

Coral Harbor Rehabilitation and Nursing Center (the 

“Center”) asks us to review the National Labor Relations 

Board’s determination that the Center violated Sections 8(a)(5) 

and (1) of the National Labor Relations Act by (1) refusing to 

bargain with 1199 Service Employees International Union

United Healthcare Workers East (the “Union”) as the 

representative of the Center’s licensed practical nurses 

(“LPNs”) and (2) unilaterally changing their wages and 

benefits without notice to the Union or providing the Union an 

opportunity to bargain.1 Because the Board’s decision is

consistent with precedent and supported by substantial 

evidence, we will deny the Center’s petition for review and 

grant the Board’s cross-application for enforcement.

 

1 29 U.S.C. § 158(a)(5) & (1).
3

I. BACKGROUND

The Center purchased a nursing home in which the 

Union represented two separate units of employees – a unit of 

LPNs and a unit of service employees that included certified 

nursing assistants (“CNAs”).

2 After the purchase, the Center 

hired a majority of the LPNs who had worked for the former 

employer, increased their wages, and changed their paid leave

and health benefits, without making any effort to bargain the 

changes with the Union. Approximately 25 LPNs and 36 

CNAs were ultimately employed by the Center. 

After the Center changed the terms of the LPNs’ 

employment, the Union filed charges of unfair labor practices, 

alleging that the Center had violated Sections 8(a)(5) and (1) 

of the NLRA by refusing to bargain with the Union as the 

representative of the LPNs, and by later making unilateral 

changes to their wages and benefits without notice to the Union 

or providing the Union an opportunity to bargain.

After an initial investigation, the Board’s General 

Counsel filed a complaint of unfair labor practices against the 

Center. The Center responded that it was a Burns successor

and therefore not under any obligation to recognize or bargain 

with the Union over the changes in the terms of the LPNs’ 

employment because the LPNs had been converted into 

supervisors and were therefore exempt from the protections of 

the NLRA.

Thereafter, an administrative law judge conducted an 

evidentiary hearing at which four of the Center’s LPNs, its 

Director of Nursing (“DON”), and its Administer testified 

about the activities and responsibilities of the LPNs. 

According to that testimony, the LPNs did not attend morning 

staff meetings with managers but did receive completed master 

schedules and could add or subtract CNAs on the schedule with 

permission from the DON. The LPNs were told that they 

 

2 LPNs at the Center distribute medication, provide

treatments, and ensure that the needs of residents are met. 

CNAs provide basic care to residents and assist with daily 

living functions, such as feeding, grooming, dressing, 

walking, hygiene, and bathing. 
4

would play an active role in supervising CNAs, would have the 

authority to exercise their independent judgment, were 

expected to discipline employees, and complete employee 

evaluations.

A section of the employee handbook entitled “Role of 

Licensed Professional Nurses (LPNs) and Registered Nurses 

(RNs)” stated: “RN and LPN Supervisors . . . have the 

responsibility to issue discipline (oral and written warnings) to 

nursing assistants when they believe warranted. Discipline can 

be for matters relating to resident care or for violations of the 

employee rules of conduct under Coral Harbor’s Progressive 

Disciplinary System.”

3 A Notice of Disciplinary Action 

(“disciplinary notice”) is a form containing a narrative about 

an employee’s infraction and the type of discipline issued, i.e., 

verbal warning or write-up.

Testimony offered by the LPNs at the hearing regarding 

specific instances of imposing discipline can be summarized as 

follows: LPN 1 testified that she has not personally disciplined 

anyone, but that she has signed and delivered disciplinary 

notices for two employees that were completed by the DON.

The DON filled out the disciplinary notices and gave them to 

her to issue. In fact, according to LPN 1, she was not present 

when either employee committed their respective infractions. 

LPN 2 testified that she twice imposed discipline 

against the same CNA—a verbal warning and a written 

discipline for re-education. However, like LPN 1, LPN 2 did 

not witness the infraction and did not have access to the 

personnel file of the CNA to know what “level” of discipline

to administer. She was, however, instructed by the 

Administrator and DON on how to proceed in terms of 

discipline. The severity and ultimate approval of the discipline 

was left to the discretion of the DON. 

LPN 3 testified that she would first have to get the 

disciplinary notice from the DON and consult with the DON

 

3

JA-1224.
5

or a supervisor4 before disciplining anyone. When she wrote 

the narrative on the disciplinary notice for an employee, the 

verbal warning and approval of the discipline was determined 

by the DON. LPN 3 further testified that on two separate 

occasions she was asked to deliver a disciplinary notice to a

CNA, but the notice itself had been filled out by a supervisor. 

On each of those occasions, her only role was the physical 

delivery of the notice. 

Lastly, LPN 4 testified that she issued three disciplinary 

notices, without instruction or consultation and made formal 

recommendations, but the subsequent discipline was handled

by the unit manager. However, LPN 4 also testified that for

three other disciplinary notices she was simply asked for her 

signature on a notice that was already completed, or she was

instructed to write up the notice for an infraction she had not 

observed. 

The DON testified that if an LPN completed a 

disciplinary notice for a CNA, she (the DON) would

investigate and review the personnel file, which the LPN did 

not have access to, and then determine the appropriate severity 

of the discipline. The DON confirmed that she or the staffing 

coordinator determined CNA schedules. An LPN could not 

perform independent scheduling or direct employees in their 

assignment—only the DON could. The LPNs testified that 

they were not involved in training of the CNAs; again, that was 

the responsibility of the DON.

Based on the testimony, the ALJ found that the Center 

was a Burns successor and that it had hired a majority of its 

predecessor’s employees. The ALJ thus concluded that the 

Center had an obligation to bargain with the union of its 

predecessor. The ALJ also found that the LPNs were not 

supervisors as defined by Section 2(11) of the NLRA but were 

instead, statutory employees protected by the NLRA and 

represented by the Union. Accordingly, the ALJ held that the 

Center violated Sections 8(a)(5) and (1) of the NLRA by 

refusing to recognize and bargain collectively with the Union, 

 

4 LPN 3’s use of the term “supervisor” during her testimony 

referred to either a unit manager or the assistant DON 

(“ADON”), but never an LPN.
6

and by making unilateral changes to the wages and benefits of 

the LPNs without notice to the Union or giving it an 

opportunity to bargain over the changes. 

The Center filed exceptions with the Board but limited 

its challenge to the ALJ’s findings regarding the LPNs’ role in 

discipline and adjusting grievances. The Board affirmed the 

ALJ’s rulings and findings. The Board specifically concluded 

that the Center failed to establish that the LPNs (1) have 

supervisory authority to discipline or effectively recommended 

discipline or (2) possess the supervisory authority to adjust 

grievances. 

Thereafter, the Center petitioned us to review the 

Board’s decision, and the Board cross-petitioned for 

enforcement of its order.5

II. STANDARD OF REVIEW

Our “review of orders of the Board is highly deferential.”

6

 

“We accept the Board’s factual findings if they are supported 

by substantial evidence . . . [and] exercise plenary review over 

questions of law and the Board’s application of legal 

precepts.”7 Substantial evidence “means relevant evidence 

that a reasonable mind might accept as adequate to support a 

conclusion.”

8

III. DISCUSSION

A. NLRB v. Burns

In NLRB v. Burns Int’l Sec. Servs., Inc.,

9

the Supreme 

 

5 The Board possessed jurisdiction over the unfair-laborpractice proceeding under Section 10(a) of the NLRA. 29 

U.S.C. § 160(a). We have jurisdiction pursuant to Section 

10(e) and (f) of the NLRA. 29 U.S.C. § 160(e), (f).

6 Trimm Assocs., Inc. v. NLRB, 351 F.3d 99, 102 (3d Cir. 

2003). 

7 Spectacor Mgmt. Grp. v. NLRB, 320 F.3d 385, 390 (3d Cir. 

2003); see Adv. Disposal Servs. E., Inc. v. NLRB, 820 F.3d 

592, 606 (3d Cir. 2016).

8 NLRB v. ImageFIRST Unif. Rental Serv., Inc., 910 F.3d 725, 

732 (3d Cir. 2018).

9 406 U.S. 272 (1972).
7

Court held that a successor employer is ordinarily free to set 

initial terms on which it will hire the employees of a 

predecessor. It is therefore undisputed that as a successoremployer, the Center had the right to set the initial terms of 

employment for LPNs when it took over operations for the 

nursing home. Accordingly, “[a] new employer has a duty 

under §8(a)(5) [of the NLRA] to bargain with the incumbent 

union that represented the predecessor’s employees when there 

is a ‘substantial continuity’ between the predecessor and 

successor enterprises.”10 As the Court explained in Burns:

Although a successor employer is ordinarily free 

to set initial terms on which it will hire the 

employees of a predecessor, there will be 

instances in which it is perfectly clear that the 

new employer plans to retain all of the 

employees in the unit and in which it will be 

appropriate to have him initially consult with the 

employees’ bargaining representative before he 

fixes terms.11

Thus, under Burns, “the new employer, succeeding to the 

business of another, had an obligation to bargain with the union 

representing the predecessor’s employees.”12

Section 7 of the NLRA guarantees employees “the right 

to self-organization, to form, join, or assist labor organizations, 

to bargain collectively through representatives of their own 

choosing, and to engage in other concerted activities for the 

purpose of collective bargaining or other mutual aid or 

protection.”13 

Section 8(a)(1) states: “[i]t shall be an unfair labor 

practice for an employer . . . to interfere with, restrain, or 

coerce employees in the exercise of” their Section 7 rights.14 

Section 8(a)(5) states: “[i]t shall be an unfair labor practice for 

 

10 Chester ex rel. NLRB v. Grane Healthcare Co., 666 F.3d 

87, 100 (3d Cir. 2011) (citing Fall River Dyeing & Finishing 

Corp. v. NLRB, 482 U.S. 27, 43 (1987)).

11 Burns, 406 U.S. at 294–95.

12 Fall River Dyeing, 482 U.S. at 29 (citing Burns, 406 U.S. at 

278–79). 

13 29 U.S.C. § 157. 

14 29 U.S.C. § 158(a)(1). 
8

an employer . . . to refuse to bargain collectively with the 

representatives of [its] employees.”15 

However, not all employees are included under the 

protective umbrella of the NLRA and collective bargaining. 

Employers are not required to afford collective bargaining 

rights to supervisory employees.16 The Center concedes that it 

refused to bargain with the Union on behalf of the LPNs and

that it unilaterally changed the LPNs’ wages and benefits 

without notice to the Union and without providing the Union 

an opportunity to bargain. Therefore, resolution of this dispute 

turns on whether the LPNs were statutory supervisors under 

Section 2(11) of the NLRA. 

B. NLRB v. Kentucky River

“To be entitled to the [NLRA’s] protections and 

includable in a bargaining unit, one must be an ‘employee’ as 

defined by the [NLRA].”17 The NLRA states that the term 

“employee” includes:

any employee, and shall not be limited to the 

employees of a particular employer, unless this 

subchapter explicitly states otherwise, and shall 

include any individual whose work has ceased as 

a consequence of, or in connection with, any 

current labor dispute or because of any unfair 

labor practice, and who has not obtained any 

other regular and substantially equivalent 

employment, but shall not include any 

individual employed as an agricultural laborer, 

or in the domestic service of any family or person 

at his home, or any individual employed by his 

parent or spouse, or any individual having the 

status of an independent contractor, or any 

individual employed as a supervisor, or any 

individual employed by an employer subject to 

the Railway Labor Act, as amended from time to 

time, or by any other person who is not an 

 

15 29 U.S.C. § 158(a)(5). 

16 See 29 U.S.C. § 152(3).

17 Mars Home for Youth v. NLRB, 666 F.3d 850, 853 (3d Cir. 

2011) (citing 29 U.S.C. § 152(3); NLRB v. Kentucky River 

Cmty. Care, Inc., 532 U.S. 706, 711 (2001)).
9

employer as herein defined.18

Thus, the NLRA excludes supervisors from the definition of

“employee.” “Supervisor” is defined as: 

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.19

Supervisors are not protected under the NLRA provisions that 

protect employees, and supervisors are not included in a 

bargaining unit.20 

“Whether someone is a supervisor is a question of fact, 

and thus will be upheld if . . . supported by substantial 

evidence.”21 In Kentucky River, the Supreme Court decided

“which party in an unfair-labor-practice proceeding bears the 

burden of proving or disproving an employee’s supervisory 

status; and whether judgment is not ‘independent judgment’ to 

the extent that it is informed by professional or technical 

training or experience.”

22

 The Court acknowledged that the 

NLRA does not “expressly allocate the burden of proving or 

disproving a challenged employee’s supervisory status.”23 The 

Board “has filled the statutory gap with the consistent rule that 

the burden is borne by the party claiming that the employee is 

a supervisor.”24 

As the party claiming supervisory status, the Center 

 

18 29 U.S.C. § 152(3) (emphasis added).

19 29 U.S.C. § 152(11).

20 See 29 U.S.C. § 152(3).

21 Mars Home, 666 F.3d at 853.

22 532 U.S. at 708.

23 Id. at 710.

24 Id. at 710–11.
10

bears the burden of establishing it here.

25

 Whether an 

individual is a statutory supervisor is a question of fact 

particularly suited to the Board’s expertise and therefore 

subject to limited judicial review.26 We must uphold the 

Board’s supervisory-status conclusion as long as it is supported 

by substantial evidence, “even if we would have made a 

contrary determination had the matter been before us de 

novo.”27

In Kentucky River, the Court established the following

three-part test for determining whether an individual is a 

supervisor:

Employees are statutory supervisors if (1) they 

hold the authority to engage in any 1 of the 12 

listed supervisory functions [in Section 2(11)], 

(2) their exercise of such authority is not of a 

merely routine or clerical nature, but requires the

use of independent judgment, and (3) their 

authority is held in the interest of the employer.28

The Center alleges that the LPNs were supervisors under the 

NLRA because they had authority to discipline or effectively 

recommend discipline of CNAs. We disagree.

It is clear under Kentucky River that our inquiry here

must focus on whether the LPNs have “use of independent 

judgment” to impose discipline.29 A person exercises 

independent judgment if she “act[s], or effectively 

recommend[s] action, free of the control of others and form[s] 

an opinion or evaluation by discerning and comparing data.”30 

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 

 

25 Mars Home, 666 F.3d at 854.

26 Id. at 853.

27 Citizens Publ’g & Printing Co. v. NLRB, 263 F.3d 224, 232 

(3d Cir. 2001).

28 532 U.S. at 713 (internal quotation marks and citations 

omitted).

29 Id. 

30 In re Oakwood Healthcare, Inc., 348 N.L.R.B. 686, 693 

(2006).
11

provisions of a collective bargaining agreement.”31 Moreover, 

in order for judgment to be independent, it “must involve a 

degree of discretion that rises above the ‘routine or clerical.’”

32

 

This standard seeks to distinguish “between straw bosses, 

leadmen, set-up men, and other minor supervisory employees,” 

who are included within the NLRA’s protections, “and the 

supervisor vested with such genuine management prerogatives 

as” those established under Section 2(11).33

This record supports the Board’s conclusion that the 

Center’s LPNs lacked independent judgment as required under 

Section 2(11). The Board agreed with the ALJ’s findings that 

“[a]ll discipline must be cleared with the DON or manager and 

the DON or manager must approve all recommendations of 

discipline of employees.”34 While the four LPNs who testified 

stated that they issued disciplinary notices to CNAs, they all 

also testified that they did not fill out the level or type of 

discipline on the disciplinary notices. Instead, that section of 

the notice was left open to be “signed off” and imposed by the 

DON. 

Moreover, the LPNs did not have access to employee 

personnel files and therefore could not know what level of 

discipline was appropriate in any given case. Rather, it was the 

DON who filled out disciplinary notices herself or received 

notices from an LPN, investigated the matter, talked to the 

CNA, and determined the appropriate level of discipline. 

Accordingly, it can hardly be said that the LPNs were 

responsible for administering discipline to the extent required 

for supervisory status under the NLRA. 

Furthermore, it is unclear whether there are established 

policies that control whether a verbal warning will be issued 

for a given infraction as opposed to a written one or whether 

there is some form of incremental discipline. “Under its 

written disciplinary policy, [the Center] retains discretion to 

 

31 Id.

32 Id.

33 NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 

267, 280–81 (1974) (citing S. Rep. No. 105, 80th Cong., 1st 

Sess., 4 (1947).

34 JA-22.
12

impose whatever level of discipline it determines is 

appropriate, and the disciplinary notices in the record do not 

follow any defined progression.”35 However, it is clear that 

LPNs cannot exercise independent discretion to decide the 

level of discipline that will be imposed.

The Board agreed with the ALJ’s conclusion that: (1) 

LPNs do not have the authority to assign or the responsibility 

to direct CNAs with use of independent judgment; (2) LPNs 

do not have authority to discipline CNAs and others; (3) the 

evaluations of CNAs are not determinative of LPN supervisory 

status; and (4) LPNs do not have accountability nor authority 

to responsibly direct.36

C. NLRB v. Vista Nursing

The Center further argues that under our decision in 

NLRB v. New Vista Nursing and Rehabilitation, the NLRA 

does not preclude an LPN from having supervisory authority 

merely because her recommendation is subject to a superior’s 

investigation.37 In New Vista, we identified two considerations

which do not negate supervisory status: “(1) whether a nurse’s 

supervisor undertakes an independent investigation; and (2) 

whether the employees exercise their supervisory authority 

only a few times (or even just one time).”38 We also recognized 

that three factors – considered in the aggregate – may establish 

that an individual is a statutory supervisor: “(1) the [individual]

has the discretion to take different actions, including verbally 

counseling the misbehaving employee or taking more formal 

action; (2) the [individual’s] actions ‘initiate’ the disciplinary 

process; and (3) the [individual’s] action functions like 

discipline because it increases severity of the consequences of 

 

35 Coral Harbor Rehab. & Nursing Ctr. & 1199 SEIU United 

Healthcare Workers E., 366 NLRB No. 75, *1 n.6 (May 2, 

2008).

36 Under the third prong of our Kentucky River inquiry we 

determine whether the authority of the alleged supervisors is 

held in the interest of the employer; however, since we 

conclude that the Board correctly ruled that the Center’s 

LPNs are not statutory supervisors under prongs one or two, 

we need not reach prong three. See 532 U.S. at 713.

37 870 F.3d 113, 132–33 (3d Cir. 2017).

38 Id. (internal quotation marks and citations omitted).
13

a future rule violation.”39

Here, after the Board decided that the ALJ’s conclusion 

was consistent with Kentucky River, it specifically cited to our 

decision in New Vista, explaining that “the same result would 

obtain under the standards employed by the United States 

Court of Appeals for the Third Circuit [in New Vista 

Nursing].”40 We agree.

Notwithstanding the Center’s reliance on New Vista, it

is clear that the LPNs here lacked discretion to impose 

discipline. The Board found, “[i]n every instance where an 

LPN-witness was questioned about a specific disciplinary 

notice, the witness testified, without contradiction, that a 

manager had instructed the LPN to fill out and sign the 

disciplinary notice, had actually filled out the disciplinary 

notice and simply instructed the LPN to sign it, or had brought 

a CNA’s infraction to the LPN’s attention and suggested that a 

disciplinary notice was warranted.”41 It is clear that the 

Center’s LPNs do not have “discretion to take different 

actions,”

42 unless instructed by a manager.

The Center has failed to carry its burden and did not

establish that the LPNs “initiate a progressive disciplinary 

process”43 or that such a process even exists. Nowhere in the 

Center’s brief does it offer an explanation of how any of its 

disciplinary actions follow a progressive disciplinary policy

“and the disciplinary notices in the record do not follow any 

defined progression.”44 And because the LPNs lacked access 

to CNA personnel files, they could not determine appropriate 

levels of discipline. The LPNs’ inability to determine which 

level of discipline was appropriate demonstrates that there was 

a clear lack of “supervisor” training for LPNs and their actions 

did not “initiate a progressive disciplinary process.”

45

 

39 Id. at 132.

40 366 NLRB at *1 n.6.

41 Id.

42 New Vista, 870 F.3d at 132.

43 Id. at 136.

44 Coral Harbor, 366 NLRB at *1 n.6.

45 New Vista, 870 F.3d at 132.
14

Lastly, the Center has not established that an LPN’s 

involvement with disciplinary notices “increases severity of 

the consequences of a future rule violation.”46 As we have 

explained, unit managers, the ADON, or the DON impose the 

level of discipline they deem to be appropriate at any given 

time. There is also evidence of individual CNAs receiving the 

same level of discipline for multiple infractions. Nowhere 

does the record establish that a subsequent infraction increased

the severity of discipline after an LPN was involved in issuing

a prior disciplinary notice. 

IV.

For the reasons set forth above, we conclude that 

substantial evidence supports the Board’s determination that 

the LPNs were not statutory supervisors and they were 

therefore not excluded from the NLRA’s protections.

Accordingly, the Center had an obligation to inform the Union 

of the changes it made in the LPNs’ duties and to refrain from 

making those changes in the absence of bargaining with the 

Union. We will therefore deny the Center’s petition for review 

and grant the Board’s cross-application for enforcement.

 

46 Id. at 136.