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.

ORDER

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
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)

Opinion on Rehearing En Banc
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, Wilkins, 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, SCHNITZLER & KRUPMAN, White Plains, New York, for Petitioner. Linda

Jill Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent. ON BRIEF: James D. Williams, Jr.,

Thomas V. Walsh, JACKSON, LEWIS, SCHNITZLER & KRUPMAN, 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 substantively 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 "supervisors" 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 Rehabilitation 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 Nursing, 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 registered 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 assistants, 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 registered 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 provide 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 supervising 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 prescribes 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 represents 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 representative. Beverly Enterprises contested the Union's authority to

represent the LPNs, arguing that the LPNs were supervisors, not entitled 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 bargaining 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 maintaining 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 determining 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 justifications upon which the majority seems to rely. That being so, the normal 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 evidence 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 "independent 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 "supervisor" 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 understandable difficulty in defining "supervisor" when, in 1947, it took that category of "employee" out of the organizational, representational, and

_________________________________________________________________

1 That this issue is the decisive one is readily demonstrated by considering the decisions giving rise to the current post-Health Care circuit conflict 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 supervisors because they did not exercise independent judgment; and, on the

other side, the decisions of the D.C. Circuit in Beverly EnterprisesPennsylvania, 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 determinations. While inevitably there are factual distinctions between the

LPN activities vis-a-vis CNAs in these cases, there is a sufficiently common pattern respecting their assignment, directive, and disciplinary activities 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 definition 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 enumerated 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, usually, 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 anything 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 "supervisor," 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 management 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 others 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 inclusion "professional" employees. See 29 U.S.C. § 152(12) (definitional

section); id. § 159(b) (limiting Board's discretion to include professional and non-professional employees in same bargaining unit). Critically, in defining "professional employee" Congress identified as one

of his hallmarks that he "engage[s] in work. . . involving the consistent 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 further 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 discretion 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 lawyer'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 categorically 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 categorically exclude LPNs from the Act's protections by virtue of their typical 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-assupervisor cases around the circuits, the Board now has taken the

alternative adjudicative position that the supervisory authority typically exercised by LPNs over CNAs is not exercised with "independent judgment" as contemplated by § 2(11). Specifically, the Board

has taken the position that the judgment exercised by LPNs in exercising 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 adjudicative 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 personal hygiene needs. (See J.A. 179 (Decision and Direction of Election

in Carter Hall) ("85% of their workday"); id. at 462 (Decision and Direction 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 judgment" side. See supra note 1 (citing cases). As indicated, it is unassailable that if that construction is a valid one, the Board's findings

in applying it in these cases must be upheld as supported by substantial evidence.

We owe that construction deference unless we can declare it "arbitrary [or] capricious" within the meaning of the Administrative Procedure 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 characterizing "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] capricious," 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 "employees" from "supervisors" at the margins in particular work-forces. See

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (admonishing 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 precisely in that marginal area. Her principal activity--the direct, handson 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 monitoring their performance in giving the "aid" to her that is their function. 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 notwithstanding their "consistent exercise of discretion and judgment in [performing 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 eminently 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 operationallevel 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 reviewing 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" standard 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 disentitled 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 stringent in formulation that under it all exercises of supervisory authority

except those involving no discretion would appear to involve "independent" 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 judgment." 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 different 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 stringently as its literal formulation suggests it might have. We can be

sure, however, of several things about the process it purported to follow.

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 judgment," if applied with anything approaching the stringency its "ministerial" standard suggests, would make it almost impossible ever to

find any exercise of supervisory authority not one involving "independent judgment." And that is at odds with the Supreme Court's recognition that not all exercises of supervisory authority need be found by

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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 "arbitrary [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 disentitles later Board decisions on that issue to normal deference by reason of the demonstrated irrationality of the Board's legal position.

Asserting that the Board's recent "shift [of] . . . position" on LPNsupervisor status "has prompted widespread speculation that the

Board's decisions on this subject are based not on the [the Act's definition of supervisor) but on a `policy bias'," the majority cites in support 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. Similarly, 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 construction 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-

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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 administrative 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 substantial evidence, the majority opined:

[T]his should be particularly true when the Board is determining 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 manifest 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 decisions on supervisory status] displays an institutional or policy 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 Inconsistent 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 decision 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 demonstrated 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 inconsistency 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 position 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 questionable 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 follow 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 indicated, 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 shiftof-position inconsistency, but a perceived inconsistency between the

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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 standards 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 accommodate the reality that agencies must be able to adopt policies reflecting 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 administration 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 inconsistency'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 relevance for our purposes, the author's suggested remedy for that inconsistency 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 "unfair 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 uncontrollable 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 capricious 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 Steamship Co., 337 U.S. 656, 659-60 (1948) (holding, in rejecting contention 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 deferential 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 crossexamination of union members respecting their pro-union bias, the Board

denied the employers due process. I would reject that contention for reasons given in Judge Hall's vacated panel opinion in Glasgow. See

Glasgow, 136 F.3d at 360-61.

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