In GGNSC Springfield LLC v. NLRB, the US Court of Appeals for the Sixth Circuit issued an opinion holding nurses at a hospital were supervisors under the NLRA because they:

The panel (Board) representing the NLRB's judicial functions had held that the nurses (labeled by the employer as charge nurses) were not supervisors, and therefore had the right to unionize under the NLRA. According to the Sixth Circuit, the Board's position on discipline was essentially that an employee must suffer an immediate adverse employment action by receiving a written memorandum. However, in its July 2, 2013 decision, the Sixth Circuit held that discipline cannot be synonymous with suspension or termination, both of which are also listed in the NLRA as examples of supervisory functions. Under the employer's progressive discipline policy, the existence of earlier written warnings determine whether an employee is suspended or terminated; therefore, the written warnings the nurses have the authority to impose qualify as discipline. The Sixth Circuit found the Board's contrary decision lacked substantial supporting evidence.

The court also dismissed the employer's claim that the US Court of Appeals for the District of Columbia Circuit's decision in Noel Canning v. NLRB warranted vacating the Board's decision in GGNSC Springfield (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). Unlike the US Court of Appeals for the Third Circuit, the Sixth Circuit found that the employer's challenge to the Board's authority was not jurisdictional, and could be forfeited if first raised in a Federal Rule of Appellate Procedure 28(j) letter to the court (see Legal Update, Third Circuit Joins DC Circuit in Condemning NLRB Intrasession Recess Appointments; Casts Doubt on Validity of Other Recess Appointees' Decisions).

The Sixth Circuit's decision in GGNSC Springfield follows a similar decision by the US Court of Appeals for the Eleventh Circuit in disregarding the Board's supervisory status determination where it discounts a worker's authority to issue discipline (see Legal Update, NLRB Disregarded Evidence in Finding Nurses Were Not Supervisors: Eleventh Circuit). Employers in the Sixth Circuit should be aware that the appellate court may analyze supervisory status more broadly than the NLRB, finding more employees are supervisors and therefore ineligible for union representation.