Avante at Wilson, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 2006

348 N.L.R.B. 1056 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD.
348 NLRB No. 71
1056
Avante at Wilson, Inc. and United Food and Com-
mercial Workers Union, Local 204, a/w United
Food and Commercial Workers International
Union, CLC,1 Petitioner. Cases 11–RC–6495 and
11–RC–6496
October 31, 2006
DECISION ON REVIEW AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On November 22, 2002, the Regional Director issued a
Decision and Order in this proceeding (pertinent parts of
which are attached as an appendix) finding that the peti-
tioned-for licensed practical nurses (LPNs) and regis-
tered nurses (RNs), hereinafter “staff nurses,” are super-
visors within the meaning of Section 2(11) of the Act
because of their authority to discipline certified nursing
assistants (CNAs) by ordering CNAs to leave the Em-
ployer’s facility, as well as their authority to adjust CNA
grievances. The Regional Director accordingly dis-
missed the petitions.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Petitioner filed a timely request for review of the Re-
gional Director’s Decision and Order, contending that the
staff nurses are statutory employees. The Employer filed
a statement in opposition to the request for review. On
July 21, 2004, the Board granted the Petitioner’s request
for review.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has carefully considered the entire record in
this case, including the parties’ briefs on review, and
concludes, contrary to the Regional Director, that the
Employer has failed to establish that staff nurses possess
Section 2(11) authority with respect to disciplining
CNAs by sending them home or adjusting CNA griev-
ances. We therefore reinstate the petitions and remand
these cases to the Regional Director for further appropri-
ate action.
The Employer operates a nursing home in Wilson,
North Carolina. The Employer and the Petitioner are
parties to a collective-bargaining agreement that covers a
unit of service and maintenance employees, including the
CNAs. A facility administrator heads the Employer’s
overall operations, and a director of nursing (DON) re-

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO effective July 29, 2005.
2 By the same order, the Board denied the request for review filed by
the Employer, in which the Employer argued that the Regional Director
erred in finding that the staff nurses do not have Sec. 2(11) authority
with regard to assignment and responsible direction of CNAs.
ports to the facility administrator. Two unit managers
report to the DON.3 The disputed staff nurses report to
the unit managers, and the CNAs are subordinate to the
staff nurses.
Staff nurses spend 50 percent of their time handling di-
rect patient (resident) care and the remainder of their
working hours dealing with residents’ families and doc-
tors and with paperwork. Each staff nurse oversees the
care of about 20 to 26 of the facility’s residents. Ap-
proximately 11 LPNs and 8 RNs served as staff nurses at
the Employer’s facility at the time of the hearing. It is
undisputed that there is no difference between the duties
of the LPN staff nurses and the RN staff nurses. CNAs
are responsible for performing personal care, such as
bathing and feeding, on behalf of the facility’s residents.
About 27 CNAs were employed at the Employer’s facil-
ity at the time of the hearing.
Section 2(3) of the Act excludes any individual em-
ployed as a supervisor from the definition of “em-
ployee.” Section 2(11) of the Act defines a “supervisor”
as
any individual having the 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 ac-
tion, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.
Section 2(11) is read in the disjunctive and an individual
therefore need possess only one of the enumerated indicia of
authority in order to be a statutory supervisor, so long as the
exercise of such authority is carried out in the interest of the
employer and requires the use of independent judgment.
California Beverage Co., 283 NLRB 328, 328 (1987). The
burden of proving supervisory status is on the party alleging
that such status exists. Elmhurst Extended Care Facilities,
329 NLRB 535, 536 (1999).
In determining that staff nurses possess supervisory
authority with respect to disciplining CNAs, the Regional
Director found that “the act of sending someone home
[for refusing to carry out an assignment] constitutes dis-
cipline,” and that staff nurses use independent judgment
in deciding whether or not to send CNAs home. The
record, however, contains scant evidence concerning
staff nurses’ authority to send CNAs home. Neither the
collective-bargaining agreement covering the CNAs nor
the facility’s employee handbook refer to sending em-
ployees home or ordering employees to leave the facility

3 The parties stipulated that the facility administrator, DON, and unit
managers are statutory supervisors.
AVANTE AT WILSON, INC. 1057
as disciplinary actions. When asked if she recalled a
scenario where a staff nurse suspended a CNA for insub-
ordination, Unit Manager Hope Barnes testified that she
was “familiar with [staff nurses’] sending [a CNA]
home” when the CNA refused to carry out work assign-
ments, and that staff nurses do not have to check with
their superiors before sending CNAs home. Phyllis
Stephens, the facility’s DON, testified that when she
served as a staff nurse for 3 months in the fall of 2000,
she believed she had the authority to send a CNA home.
The above evidence does not meet the Employer’s
burden of establishing supervisory status. First, the tes-
timony is utterly lacking in specificity. See Golden Crest
Healthcare Center, 348 NLRB No. 39, slip. op. at 5
(2006) (recognizing that “purely conclusory evidence is
not sufficient to establish supervisory status,” and point-
ing out that the Board “requires evidence that the em-
ployee actually possesses the Section 2(11) authority at
issue”); Chevron Shipping Co., 317 NLRB 379, 381 fn. 6
(1995) (conclusory statements without supporting evi-
dence do not establish supervisory authority); Sears Roe-
buck & Co., 304 NLRB 193, 193 (1991) (same). Barnes
said generally that she was familiar with staff nurses’
sending a CNA home, but she failed to particularize her
testimony in any way, such as by specifying when any
such incident took place, who was involved, what the
alleged insubordination consisted of, whether higher-
level managers had been consulted, or whether the situa-
tion was anything more than a one-time occurrence.
Similarly, Stephens stated that she believed she had the
authority to send CNAs home when she was a staff
nurse, but she did not explain the basis of her belief (for
example, that she had been told she had that authority by
one of her superiors) or provide any examples of situa-
tions or details of circumstances where she or any other
staff nurse actually ordered a CNA to leave the facility.
Although Section 2(11) requires only possession of au-
thority to carry out an enumerated supervisory function,
not its actual exercise, the evidence still must suffice to
show that such authority actually exists. On this record,
the Employer has not so shown. And even assuming that
the evidence was sufficient to show that the authority
exists, it is insufficient to show that it was exercised with
independent judgment, as required by Section 2(11).
Moreover, even assuming that staff nurses had the au-
thority to send CNAs home for insubordination during
the time periods when Barnes and Stephens were staff
nurses, the Employer offered no evidence to show that
the individuals working as staff nurses at the time of the
hearing possessed that authority. Indeed, current staff
nurses denied having any such authority. Staff Nurse
Christina Ricketts testified that she had never been told
she had any authority to suspend or otherwise discipline
CNAs. Staff Nurse Anne Mullins similarly affirmed that
she was never informed by her superiors that she had any
authority to discipline CNAs.
Because the record does not substantiate the Regional
Director’s conclusions about the staff nurses’ authority to
discipline CNAs by sending them home, we believe that
the Regional Director erred in determining that staff
nurses are statutory supervisors on that basis.
Turning to the issue of supervisory grievance-
adjustment authority, the Regional Director grounded his
conclusion that staff nurses adjust CNA grievances on
the following: a collective-bargaining agreement provi-
sion stating that employees may present their complaints
to their “immediate supervisors” for adjustment, and
CNA Dorothea Lucas’ assertion that she understands her
“immediate supervisor” to be a staff nurse; the LPN and
RN job descriptions stating that the LPNs and RNs su-
pervise CNAs, and the RN job description stating that
RNs serve as the facility’s representative during the first
step of the facility’s problem-solving process; and Unit
Manager Barnes’ testimony that she personally resolved
disputes between CNAs when she was a staff nurse.
Notwithstanding the existence of contractual and
handbook provisions relating to grievance handling,
however, the Employer provided no evidence to show
that current staff nurses actually possess that authority
through evidence of participating in the grievance-
adjustment process. See Golden Crest Healthcare Cen-
ter, 348 NLRB No. 39, slip op. at 5 (citing Training
School at Vineland, 332 NLRB 1412, 1416 (2000) (“Job
descriptions or other documents suggesting the presence
of supervisory authority are not given controlling
weight,” as the Board “insists on evidence supporting a
finding of actual as opposed to mere paper authority.”));
Heritage Hall, EPI Corp., 333 NLRB 458, 458–459
(2001) (acknowledging as well settled the principle that
employees are not transformed into supervisors merely
by virtue of their job titles or job descriptions). Both
staff nurses who testified at the hearing—Ricketts and
Mullins—said no superior has ever discussed with them
any supposed authority to resolve CNA problems or ad-
just CNA grievances. Ricketts testified that only on a
“rare” occasion does a CNA come to her to discuss a
problem, and that in such an instance Ricketts usually
tells the CNA to go speak with DON Stephens. The Em-
ployer proffered nothing to demonstrate that the testi-
mony of Mullins and Ricketts is not representative of
other staff nurses.
Additionally supporting the conclusion that the LPN
and RN job descriptions do not accurately reflect the
positions’ actual duties (and corresponding authority) is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1058
the fact that, although the RN job description states that
the RNs supervise the LPNs, the Employer stipulated at
the hearing that the LPN and RN jobs are identical.
Clear evidence of a significant inaccuracy renders the
reliability of the LPN and RN job descriptions suspect.
The Regional Director placed undue emphasis on tes-
timony by Unit Manager Barnes that CNAs take “any
problems regarding other employees” to staff nurses,
citing as an example a situation where a CNA who has
been given a “hard time” by another CNA “will bring the
issue to a staff nurse’s attention.” Barnes’ generalized
testimony in this regard provides no evidence as to what,
if anything, a staff nurse does when such incidents are
allegedly brought to his or her attention. Merely being
informed of a dispute between two CNAs does not indi-
cate that staff nurses adjust or in any other way handle
the problems at issue let alone establish the requisite in-
dependent judgment necessary to confer supervisory
status. Ken-Crest Services, 335 NLRB 777, 779 (2001).
In fact, Ricketts’ testimony discussed above suggests that
staff nurses refer such disputes to the DON. In any
event, Barnes is no longer a staff nurse. Her testimony
reveals little about staff nurses’ current duties, particu-
larly given the fact that it contains no reference to the
time period or individuals involved.
We therefore find that the Employer failed to support
with the requisite facts its position that staff nurses pos-
sess the authority to adjust grievances pursuant to Sec-
tion 2(11) of the Act.
As we recently reiterated, “the Board . . . exercise[s]
caution ‘not to construe supervisory status too broadly
because the employee who is deemed a supervisor is
denied rights which the Act is intended to protect.’”
Oakwood Healthcare, Inc., 348 NLRB No. 37, slip op. at
3 (2006) (quoting Chevron Shipping Co., 317 NLRB at
380–381). In sum, for the reasons explained above, we
find that the Employer did not meet its burden of estab-
lishing that the staff nurses are statutory supervisors.4
ORDER
The petitions are reinstated and the cases are remanded
to the Regional Director for further appropriate action.

4 We further note that, were we to find the staff nurses to be statutory
supervisors, there would be an improbably high ratio of 22 supervisors
to 27 employees. See North Miami Convalescent Home, 224 NLRB
1271, 1274 (1976) (in finding that the disputed LPNs were statutory
employees, the Board noted that, were the LPNs determined to be Sec.
2(11) supervisors, there would be an “abnormal proportion” of 18 su-
pervisors for 52 employees).
APPENDIX
DECISION AND ORDER
The Employer, Avante at Wilson, Inc., a North Carolina cor-
poration, operates a nursing home in Wilson, North Carolina,
where it is engaged in providing residential nursing, housekeep-
ing, and dietary services to its clients. The Employer and the
Petitioner, United Food and Commercial Workers Union, Local
204, a/w United Food and Commercial Workers International
Union, AFL-CIO, CLC, are now parties to a collective-
bargaining agreement for a unit comprised of all full-time and
regular part-time nursing assistants, orderlies, cooks, dietary
employees, maintenance employees, ward clerks and central
supply clerks, housekeeping and laundry employees and re-
storative nurses aides at the Employer’s Wilson, North Carolina
facility. The contract is effective from November 1, 2001
through October 31, 2004.
The Petitioner has filed a petition with the National Labor
Relations Board under Section 9(c) of the National Labor Rela-
tions Act in Case 11–RC–6495 seeking to represent a unit of all
full-time and part-time licensed practical nurses at the Em-
ployer’s Wilson, North Carolina facility. Petitioner has also
filed a petition in Case 11–RC–6496 seeking to represent a unit
of all full-time and part-time registered nurses employed at the
same facility. A hearing officer of the Board held a hearing and
the parties filed briefs with me.
The parties agree and the record demonstrates that the li-
censed practical nurses and registered nurses all work in the
position of staff nurse and, for all purposes relevant herein,
their duties are indistinguishable. As evidenced at the hearing
and in the briefs, the sole issue in this matter is the supervisory
status of staff nurses. The Petitioner contends that staff nurses
are not supervisors, whereas the Employer contends that they
are supervisors, and that the petitions should be dismissed. The
unit sought by the Petitioner in Case 11–RC–6495 has ap-
proximately 11 employees and the unit sought in Case 11–RC–
6496 has approximately 8 employees.
I have considered the evidence and the arguments presented
by the parties in regard to the supervisory status of staff nurses.
As discussed below, I have concluded that staff nurses possess
the authority to discipline employees and to adjust grievances,
and are, therefore, supervisors under Section 2(11) of the Act. I
shall, therefore, dismiss the petitions. To provide a context for
my discussion of this issue, I will first provide an overview of
the Employer’s operations. Then, I will present in detail the
facts and reasoning that support my conclusion.
I. OVERVIEW OF OPERATIONS
The Employer operates a 110-bed nursing home facility that
is routinely at full capacity. In charge of the operation is an
Administrator to whom a number of departments heads or di-
rectors report. The Director of Nursing (DON) is the depart-
ment head with overall responsibility for the staff nurses at
issue. Below the DON are nurses holding the position of Assis-
tant Director of Nursing (ADON), Weekend Supervisor and
Unit Manager. At hearing, the parties stipulated that nurses
holding those positions are supervisors.
AVANTE AT WILSON, INC. 1059
The Employer houses its patients on two wings denoted “A”
and “B” and on a hallway connecting the two wings, which is
referred to as the cross-hall. The A and B wings are further
subdivided into halls called “A front and back,” and “B front
and back.” Staff nurses work 12-hour shifts, either 7 a.m. to 7
p.m. or 7 a.m. to 7 p.m. On the day shift, one staff nurse is
assigned to each hallway location. On the night shift, one staff
nurse is assigned to each wing, and one staff nurse, also called
a lead nurse, is assigned to the cross hallway.3 Staff nurses
spend approximately 50 percent of their working time provid-
ing direct patient care to from 20 to 26 patients. Specifically,
staff nurses check each of their assigned patients every two
hours, medicate patients at least three times per shift and treat
their patients’ wounds, if necessary. The rest of a staff nurse’s
time is spent dealing with family members, with certified nurs-
ing assistants (CNAs) and in completing paperwork.
CNAs, who are in the bargaining unit governed by the col-
lective-bargaining agreement referred to above, work 8-hour
shifts from 7 a.m. to 3 p.m.; 3 to 11 p.m.; and 11 p.m. to 7 a.m.
Generally, 12 CNAs are assigned to work from 7 a.m. to 3
p.m.; 8 CNAs are assigned to work from 3 to 11 p.m.; and 7
CNAs are assigned to work from 11 p.m. to 7 a.m. Some
CNAs have permanent assignments and routinely care for pa-
tients in one hallway in specific rooms, while other CNAs are
designated as floaters. CNAs spend 90 percent of their working
time bathing, grooming, feeding, transporting and taking the
vital signs of patients. A staff nurse has no authority to change
any given CNA’s permanent assignment, although she may
change a CNA’s assignment during a given shift in response to
staffing or patient needs.
On weekdays, the DON, ADON, and one of the unit manag-
ers are routinely present in the facility until 5 p.m. During
weekends, a weekend supervisor is present from 7 a.m. to 7
p.m. Thus, none of the stipulated statutory supervisors are
routinely present in the facility from 5 p.m. to 7 a.m. during
weekdays and from 7 p.m. to 7 a.m. during weekends. How-
ever, there is always an on-call nurse, drawn from the ranks of
department heads and the stipulated supervisors, available to
the staff nurse for consultation regarding staffing or other prob-
lems by cell phone or beeper. Also, the DON is available by
cell phone or beeper at all times.
II. STATUS OF STAFF NURSES
Before examining the specific duties and authority of staff
nurses, I will briefly review the requirements for establishing
supervisory status. Section 2(11) of the Act defines the term
supervisor 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 ef-
fectively to recommend such action, if in connection with the

3 “Lead nurses” who work the night shift, earn $.50 more per hour
than other staff nurses. Because they are assigned to the cross-hall,
they have a lighter patient load than the wing nurses do. To make up
for this disparity in patient load, the lead nurse makes one round on
each of the wings. Other than that, there is no evidence in the record
that lead nurses have any other duties that are distinguishable from the
duties of other staff nurses.
foregoing, the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.” To meet this definition, a person needs to possess
only one of the 12 specific criteria listed, or the authority to
effectively recommend such action. Ohio Power Co. v. NLRB,
176 F.2d 385 (6th Cir.), cert. denied 338 U.S. 899 (1949). The
exercise of that authority, however, must involve the use of
independent judgment. Harborside Healthcare, 330 NLRB
1334 (2000). The burden of proving supervisory status lies
with the party asserting that such status exists. Kentucky River
Community Care, Inc., 532 U.S. 706, 711–712 (2001). Lack of
evidence is construed against the party asserting supervisory
status. Michigan Masonic Home, 332 NLRB 1409, 1409
(2000). Possession of authority consistent with any of the indi-
cia of Section 2(11) is sufficient to establish supervisory status
even if this authority has not yet been exercised. See, e.g.,
Pepsi-Cola Co., 327 NLRB 1062, 1063 (1999); Fred Meyer
Alaska, Inc., 334 NLRB 646, 649 fn. 8 (2001). However, the
absence of evidence that such authority has been exercised may
be probative of whether such authority exists. See Michigan
Masonic Home, supra at 1411; Chevron U.S.A., 308 NLRB 59,
61 (1992).
With regard to whether the staff nurses possess any of the 12
criteria listed in Section 2(11), the parties stipulated that the
staff nurses do not have the authority to hire, promote, lay off,
recall or discharge employees. The Employer asserts, however,
that staff nurses have the authority to assign, discipline, and
responsibly direct CNAs and to adjust their grievances. In
addition, the Employer asserts that staff nurses have the author-
ity to reward CNAs by providing input into CNA evaluations
that may affect whether a probationary CAN is hired as a per-
manent employee. Accordingly, I will discuss the authority of
the staff nurse in assignments, responsible direction, discipline,
adjustment of grievances, and rewarding of CNAs.
. . . .
C. Discipline
A unit manager, who had held various positions including
staff nurse, ADON and DON, testified that a CNA would be
guilty of insubordination if she were to fail to heed the direction
of a staff nurse. The unit manager further testified that the
Employer tells CNAs throughout their employment, including
during in-service training, that they are required to follow the
instructions of staff nurses. In the context of testifying about
discipline for insubordination, the unit manager further testified
that, although a staff nurse did not have the authority to issue a
formal written suspension, she did have the authority to send a
CNA home for refusing to carry out work assignments, without
getting prior approval from a higher level manager. Citing no
specific examples, the unit manager stated that she knew that
staff nurses had sent CNAs home for refusing to carry out work
assignments.
In addition, the unit manager stated that other discipline of a
CNA might begin with a staff nurse’s report to the DON or to a
unit manager stating that the CNA did not complete her duties
on time or had failed to timely perform a procedure that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1060
staff nurse ordered her to perform. Thereafter, however, the
staff nurse would have no further input in the decision process.
Based on the foregoing, I find that the record contains suffi-
cient evidence to establish that staff nurses possess the author-
ity to discipline CNAs and that they exercise independent
judgment when they impose that discipline. This conclusion
requires analysis, in the first instance, of whether the act of
sending someone home constitutes discipline, as well as
whether the circumstances under which the staff nurse is au-
thorized to send a CNA home reflect the use of independent
judgment.
I find that the authority to send an employee home as a con-
sequence of that employee’s refusal to carry out a work as-
signment reasonably constitutes the authority to discipline em-
ployees, despite whether that action constitutes a formal sus-
pension under a disciplinary procedure. Cf. Leisure Chateau
Care Center, 330 NLRB 846 (2000) (in finding LPN and RN
charge nurses not to be supervisors, Board distinguishes facts
relied upon by the Third Circuit in Passavant Retirement &
Health Center v. NLRB, 149 F.3d 243 (3d Cir. 1998), denying
enfd. 323 NLRB 598 (1997); Board notes that nurses in Passa-
vant had the disciplinary authority to send aides home for fla-
grant misconduct and had the authority to resolve minor prob-
lems and gripes). The authority to impose the consequence of
separation from employment, even for the balance of one day,
logically serves a disciplinary function when it is imposed for a
refusal to carry out a work assignment.
In regard to independent judgment, the Board has held that
when a staff nurse is authorized to send an aide home only
when the aide has engaged in flagrant misconduct, the staff
nurse is not exercising independent judgment in making that
decision. See, e.g., Northcrest Nursing Home, 313 NLRB 491,
497-98 (1974), quoted in Passavant Retirement & Health Cen-
ter, supra, 149 F.3d at 248. See also Green Acres Country
Care Center, 327 NLRB 257 (1998). This rationale is predi-
cated on the theory that the decision to send an aide home in
those circumstances simply constitutes an automatic conse-
quence for particularly bad behavior. In the present case, how-
ever, the record establishes that staff nurses are empowered to
send a CNA home for refusing to carry out any given assign-
ment. Thus, the discretion of the staff nurse is not limited by a
requirement that the offending conduct must be flagrant or
involve patient abuse before a staff nurse is authorized to send a
CNA home. The present case, then, does not come within the
Board’s rationale concerning the impact of a limitation on the
charge nurse’s discretion in deciding to send a CNA home.
I find that the record supports the conclusion that staff nurses
exercise the supervisory authority to discipline CNAs when
they send them home for refusing to carry out a work assign-
ment, and that the decision to do so is informed by the use of
independent judgment.
D. Adjustment of Grievances
The record establishes that staff nurses possess the authority
to adjust grievances, both through documentary evidence and
testimony. The cornerstone of the documentary evidence is the
collective-bargaining agreement covering the CNAs. A provi-
sion of this contract specifically provides that employees may
present certain complaints or problems to their immediate su-
pervisor for adjustment. The Union’s chief steward, a CNA,
confirmed that she understood that the “immediate supervisor”
of CNAs would be the staff nurse. This understanding is but-
tressed by the job descriptions of RN and LPN staff nurses,
which provide that they supervise CNAs. In addition, the job
description of the RN staff nurse specifically provides that he
or she is to serve as the “facility’s representative during the first
step of the facility’s problem-solving procedure.” Because staff
nurses are the immediate supervisors of CNAs, then, they have
the authority under the Employer’s formal complaint procedure
to adjust grievances or problems of CNA’s.4 This conclusion is
further buttressed by the testimony of the unit manager, who
testified that when she was a staff nurse, she personally had
resolved disputes between CNAs. The Petitioner contends on
brief that staff nurses have no supervisory authority to adjust
grievances, although they “may try to informally resolve dis-
agreements.” Further, the Petitioner apparently argues that the
Employer has not met its burden to prove that staff nurses have
the authority to adjust grievances. In support of this argument,
the Petitioner cites Audubon Regional Medical Center, 331
NLRB 374, 449 (2000) for the proposition that the Board has
found proof of supervisory authority insufficient when there is
reliance on job descriptions rather than the actual duties per-
formed. The Petitioner also relies on Northern Montana Health
Center, 324 NLRB 752, 754 (1997), for the proposition that
summary assertions that employees have supervisory authority
without providing specific examples of the exercise of such
authority is insufficient to prove supervisory status.
I find the foregoing cases to be inapposite to the analysis
here. As an initial matter, the reference to Audubon Regional
Medical is misplaced, as the cited section simply contains the
ALJ’s recital of a party’s position in that case, a position predi-
cated upon an earlier decision of the Board in Sunset Nursing
Homes, 224 NLRB 1271 (1976). In that latter case, the Board
closely analyzed the facts when a job description provided that
LPNs had the authority to make “effective recommendations”
concerning a variety of matters, including hiring, discharges,
suspensions, promotions, layoff, transfers, pay increases, and
vacancies. The date of origin of the job description was ques-
tionable, and the Board noted that “oddly enough, the job de-
scription did not mention what would be considered the LPN’s
normal duties” related to patient care. Id. at 1272. Even with
its apparent concern about the bona fides of the documentary
evidence, the Board, nevertheless, found that the case presented
a close issue when it concluded that the job description simply
was not dispositive of the supervisory determination. Id.
In the present case, by contrast, the documentary evidence
includes both the parties’ collective-bargaining agreement and
the employee handbook, as well as job descriptions that contain
specific outlines of a full range of duties. The testimony in-
cludes that of the Petitioner’s own witness and Chief Steward,
who confirmed that staff nurses serve as the immediate supervi-

4 Although job title and the perception of supervisory status often
function as secondary indicia of supervisory status, here those factors
also serve to actually identify the role of staff nurses in an ongoing
process of the facility, that is, the grievance adjustment procedure.
AVANTE AT WILSON, INC. 1061
sors of CNAs on the floor. For these reasons, the Board’s hold-
ing in Sunset Nursing Homes does not compel a conclusion that
the staff nurses here are not supervisors. Similarly, the present
case is distinguishable on the same grounds from Northern
Montana Nursing Home, as the record evidence here contains
both documentary and testimonial evidence concerning the
actual authority and role of staff nurses in adjusting grievances
as participants in the Employer’s grievance or complaint ad-
justment procedure.
Finally, the foregoing conclusion is not undermined by the
testimony of Petitioner’s witness, a staff nurse, who stated that
she had never adjusted any grievances. To establish the exis-
tence of supervisory authority, it is not necessary that all indi-
viduals in the disputed classification have exercised their actual
authority. Pepsi-Cola Co., 327 NLRB 1062, 1063 (1999).
Based on the foregoing, I find that the Employer has met its
burden in establishing that staff nurses possess the authority to
adjust grievances and that the record amply supports the finding
of supervisory status under Section 2(11) based on this statu-
tory indicium.
. . . .
F. Secondary Indicia
It is settled that secondary indicia, including the individual’s
job title or designation as supervisor, as well as the perception
of others that the individual is a supervisor, may be used in
making supervisory determinations when evidence of primary
indicia is present. See, e.g., Monarch Federal Savings and
Loan Association, 237 NLRB 844 (1978) (secondary indicia
may inform supervisory determination when evidence of pri-
mary indicia is present); Flex-Van Service Center, 228 NLRB
956 (1977) (same). Thus, the foregoing findings regarding the
primary statutory indicia of authority to discipline and to adjust
grievances are buttressed by the secondary indicia of job title,
which is contained in the staff nurses’ job description, as well
as by the perception of both CNAs and management that staff
nurses supervise CNAs.
Additional secondary support for the supervisory finding
comes from the role of the staff nurses in adjusting CNA time
records. CNAs routinely clock in and out, but in the event that
a CNA fails to do so, a staff nurse corrects the timecard using
an “E-time Correction/Adjustment Form,” which she signs on a
line denominated “Supervisor Signature.”
III. CONCLUSION
The evidence does not sufficiently establish that staff nurses
use independent judgment in making and adjusting CNA as-
signments and in directing the work of CNAs. Nor does the
record establish that staff nurses have the authority to reward
employees through the evaluation process. The record does
establish, however, that staff nurses have the authority to disci-
pline a CNA for insubordination by sending the CNA home
upon a refusal to follow a direct order. The record further es-
tablishes that, as the Employer’s representative at the first step
of the grievance procedure in dealing with a CNA’s grievance
or complaint, the staff nurse has the authority to adjust griev-
ances. In addition, the conclusion that staff nurses possess
Section 2(11) authority is buttressed by secondary indicia, in-
cluding designation of staff nurses as supervisors and the per-
ception that staff nurses supervise CNAs.
Accordingly, I find that the Employer, as the party asserting
supervisory status, has met its burden to prove that the staff
nurses possess statutory indicia of supervisory authority in the
areas of discipline and adjustment of grievances. Therefore, I
find that the staff nurses are supervisors as defined by Section
2(11) of the Act, and I shall dismiss the petitions.