Kentucky River Community Care, Inc. v. National Labor Relations Board

NATHANIEL R. JONES, Circuit Judge,

dissenting.

I concur with the majority’s holding in all respects but one: that the registered nurses at KRCC are “supervisors” and thus exempt from coverage under § 2(11) of the NLRA, 29 U.S.C. § 152(11). Because I believe that the NLRB’s conclusion to the contrary is supported by substantial evidence (i.e., that the registered nurses are “employees” within the meaning of § 2(3) of the Act, 29 U.S.C. § 152(3)), I *456 would vote to enforce the NLRB’s Order. Accordingly, I respectfully dissent.

The majority correctly notes that the NLRB’s factual findings must be affirmed if they are supported by substantial evidence. See ante at 455. But the majority fails to articulate precisely what “substantial evidence” is. As we have frequently held in Social Security disability cases— cases of agency review where the “substantial evidence” standard likewise controls substantial evidence is more than a mere scintilla, but less than a preponderance of the evidence. See Cutlip v. Secretary of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.1994) (per curiam); Brainard v. Secretary of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.1989) (per curiam); see also Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co., 305 U.S. at 229, 59 S.Ct. 206; accord Medical Rehabilitation Servs., P.C. v. Shalala, 17 F.3d 828, 831 (6th Cir.1994) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)); Brainard, 889 F.2d at 681. If we determine, after reviewing the administrative record as a whole, that the NLRB’s factual findings are supported by substantial evidence, those findings must be affirmed, even if substantial evidence exists in the record to support an opposite decision. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986) (en banc). A finding of substantial evidence thus mandates affirmance. See Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535-37 (6th Cir.1981).

Having conducted the “highly fact-intensive inquiry” required by the majority, ante at 453, I would find the NLRB’s determination — that the six registered nurses employed at KRCC are not supervisors — supported by substantial evidence. The NLRB found, in relevant part, as follows:

The RNs do not receive any extra compensation for serving as “building supervisors” and do not have keys to the facility.

[T]he only extra responsibility assumed by the RNs when serving as “building supervisors” is to obtain needed help if for some reason a shift is not fully staffed. In the event a shift is understaffed, the RNs on duty will first attempt to find a volunteer to stay over from among the employees on the proceeding shift. If a volunteer cannot be obtained from the employees on the preceding shift, the “building supervisor,” using a list containing the names, telephone numbers and addresses of the employees, will attempt to reach an off-duty employee who lives nearby to come in and cover the shift. The “building supervisors” do not have any authority, however, to compel an employee to stay over or come in to fill a vacancy under threat of discipline.

It appears that the RNs may occasionally request other employees to perform routine tasks, but they apparently have no authority to take any action if the employee refuses their directives. The RNs may also complete incident reports, but so can any other employee. All incident reports are independently investigated by the nursing or unit coordinators to determine if any disciplinary action is warranted and it does not appear that these management officials seek any input from the RNs involved. Although [KRCC] asserts ... that RNs can “write-up” employees, there is no evidence in the record that they have ever done so....

The RNs in their normal capacity or as “building supervisors” do not have the authority to hire, fire, reward, promote or independently discipline employees or *457 to effectively recommend such action. They do not evaluate employees or take any action which would affect their employment status. Indeed, the RNs, including when they are serving as “building supervisors,” for the most part, work independently and by themselves without any subordinates.

J.A., vol. II, at 297-98 (quotations in original). In my view, these well-reasoned findings unquestionably constitute “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” that the six RNs at KRCC are “employees” within the meaning of 29 U.S.C. § 152(3).

I would therefore hold that the collective bargaining unit at KRCC includes the six registered nurses, and vote to enforce the NLRB’s July 10, 1997 Order in its entirety-