Barstow Community Hospital

National Labor Relations Board - Board Decisions

Aug 18, 2008

352 N.L.R.B. 1052 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 125
1052
Barstow Community Hospital–Operated by Commu-
nity Health Systems, Inc. and United Nurses As-
sociation of California, Union of Health Care
Professionals, NUHHCE, AFSCME, AFL–CIO.
Case 31–CA–26057
August 18, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On February 23, 2007, Administrative Law Judge
Lana H. Parke issued her supplemental decision follow-
ing the Board’s remand of this case.1 The Respondent
filed exceptions and a supporting brief, and the General
Counsel and Charging Party each filed an answering
brief.
The National Labor Relations Board2 has considered
the decision, the supplemental decision, and the record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings,3 findings, and conclusions as

1 On August 29, 2003, Judge Parke issued her original decision in
this proceeding. The Respondent filed exceptions and a supporting
brief, and the Charging Party filed an answering brief. The Board
remanded the case to the judge on September 30, 2006, for further
consideration in light of the Board’s decisions in Oakwood Healthcare,
Inc., 348 NLRB 686 (2006); Croft Metals, Inc., 348 NLRB 717 (2006);
and Golden Crest Healthcare Center, 348 NLRB 727 (2006) (hereinaf-
ter Oakwood Healthcare, et al.). See Barstow Community Hospital,
348 NLRB 957 (2006). On November 20, 2006, the Respondent filed a
Motion to Reopen Record. The judge denied the motion and set a date
for the parties to file briefs. The Respondent timely filed its brief, titled
as Motion for Reconsideration of Motion to Reopen the Record. The
General Counsel and the Charging Party each also timely filed briefs.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 The Respondent excepted to the judge’s ruling at the 2003 hearing
precluding the Respondent from introducing evidence concerning its
affirmative defenses related to the Region’s investigation of the unfair
labor practice charges. The Respondent, however, fails to state with
any degree of particularity, either in its exception or in its supporting
brief, on what grounds it believes the judge’s ruling should be over-
turned. Accordingly, we find, in accordance with Sec. 102.46(b)(2),
that the Respondent’s exception to this ruling should be disregarded.
See, e.g., Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1
(2005), enfd. 456 F.3d 265 (1st Cir. 2006).
The Respondent also excepted to the judge’s denial of its post-
remand motion to reopen the record, contending that it should have the
opportunity to prove that the authority possessed by discriminatee Lois
Sanders in her role as a registered nurse made her a statutory supervisor
under the standards articulated in Oakwood Healthcare, et al. The
exception is without merit. At the original hearing, the Respondent
clearly limited the supervisory status issue to whether Sanders was a
2(11) supervisor when working as a relief clinical coordinator. Efforts
modified and to adopt the recommended Order as modi-
fied and set forth in full below.4
On remand, the judge found that Registered Nurse
Lois Sanders was not acting as a statutory supervisor
when she temporarily filled in as relief clinical coordina-
tor because she did not have the authority under Section
2(11) of the Act to assign or responsibly direct employ-
ees using independent judgment. For the following rea-
sons, we agree.
The “burden of proving supervisory status rests on the
party asserting that such status exists.” Oakwood
Healthcare, supra at 694 (quoting Dean & Deluca New
York, Inc., 338 NLRB 1046, 1047 (2003)). The party
seeking to prove supervisory status must establish it by a
preponderance of the evidence. Id. (citing Dean &
Deluca, supra at 1047; Bethany Medical Center, 328
NLRB 1094, 1103 (1999)).
To establish possession of the authority responsibly to
direct, the party bearing the burden of proof—here, the
Respondent—must present evidence of “actual account-
ability.” Golden Crest Healthcare, supra at 731. The
Respondent failed to present any evidence that registered
nurses were held accountable for their direction of others
when acting as relief clinical coordinators. There is no
evidence that relief clinical coordinators faced a prospect
of material adverse consequences based on the perform-

to inject a new issue after the close of a hearing are normally deemed
untimely. Nursing Center at Vineland, 318 NLRB 337, 337 (1995).
Having earlier failed to argue that Sanders’ duties as a registered nurse
were supervisory, the Respondent cannot now introduce a new issue
that could have been raised and litigated in the original hearing. See
Nursing Center at Vineland, supra (denying employer’s motion to
reopen the record to present evidence that discharged employee was a
supervisor in light of Supreme Court’s intervening decision in NLRB v.
Health Care & Retirement Corp. of America, 511 U.S. 571 (1994),
where employer litigated the supervisory status of another employee
and could have presented its arguments about discharged employee at
the hearing). Having affirmed the judge’s denial of the Respondent’s
request to reopen the record, we find it unnecessary to pass on the
judge’s determination that Sanders was not a 2(11) supervisor based on
her duties as a registered nurse.
4 The Respondent excepted to the judge’s findings that it violated
Sec. 8(a)(3) and (1) by suspending Sanders and Sec. 8(a)(1) by con-
ducting an investigation of Sanders’ union activity, because neither
violation was alleged in the complaint. We adopt the judge’s finding
that Sanders’ suspension was unlawful, as the issue was closely con-
nected to the complaint allegations and was fully litigated. Pergament
United Sales, Inc., 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d
Cir. 1990). Sanders’ suspension arose out of the same events as, and
was a precursor to, her discharge, and the Respondent’s motivation for
both actions is undisputed. Thus, the suspension, like the discharge,
stands or falls depending on whether Sanders was a supervisor, an issue
the Respondent litigated fully.
Having affirmed the judge’s finding that the Respondent unlawfully
interrogated Sanders during its investigation, we find it unnecessary to
pass on the finding that the investigation was unlawful, as it would not
materially affect the remedy in this case.
BARSTOW COMMUNITY HOSPITAL 1053
ance of those they allegedly supervised. That one of the
factors included on the registered nurses’ evaluation
form is how they perform “the role of clinical coordina-
tor as needed” is not sufficient. See id. (finding insuffi-
cient, to show accountability, evidence that charge nurses
were rated on the factor “directs [employees] to ensure
quality of care,” absent evidence that the rating might
have an effect on their terms and conditions of employ-
ment). Accordingly, the Respondent has not shown that
the relief clinical coordinators possess the authority to
responsibly direct employees.5
The judge found that, although Sanders may have pos-
sessed authority to assign, she did not exercise independ-
ent judgment in doing so because any judgment exer-
cised by her was dictated or controlled by the Respon-
dent’s detailed instructions and policies. See Oakwood
Healthcare, supra at 693. However, the Board in Oak-
wood Healthcare also held that the mere existence of
guidelines and policies is not necessarily incompatible
with the existence of independent judgment. If there is
room for discretionary choices by the putative supervi-
sor, and if the degree of discretion exercised rises to the
requisite level, a finding of independent judgment is war-
ranted. Id. Specifically in the healthcare setting, if an
individual weighs the individualized condition and needs
of a patient against the skills or special training of the
available nursing staff, the resulting assignment involves
the exercise of independent judgment. Id.
The record contains conflicting testimony on the issue
of whether relief clinical coordinators exercise independ-
ent judgment in assigning nursing staff. Sanders testified
that, in determining the number of nurses needed and
where they should be assigned, she followed the nurse-
to-patient ratios in the staffing grid, which in turn were
based on the Respondent’s guidelines and State regula-
tions. Sanders also testified that, in making staffing de-
cisions, she did not consider a patient’s acuity or the par-
ticular skills or qualifications of the nurses, many of
whom she said she did not know beyond their general
qualifications as registered nurses.
Testimony from registered nurse Tina Lyle, who also
filled in as relief clinical coordinator, as well as from the
Respondent’s medical/surgical manager, Donna Rollins,
conflicted with Sanders’ testimony in this regard. Lyle
testified that in deciding whether to “float” (temporarily
transfer) someone or to call someone in, she would take
into account the patient’s acuity and the level of experi-
ence of the available nurses. Rollins testified that, in

5 Because the Respondent did not demonstrate that the relief clinical
coordinators responsibly direct employees, we need not determine
whether they exercise “independent judgment” in this regard. Golden
Crest Healthcare, supra at 732 fn. 14.
deciding whom to call in or float, the relief clinical coor-
dinator has to consider the patients’ needs and the ex-
perience level of staff members who could be reassigned
from one area to another or called in to work to meet
those needs.
We need not resolve this testimonial conflict. Even
crediting Lyle’s and Rollins’ testimony, we find the evi-
dence insufficient to sustain the Respondent’s burden of
proving that relief clinical coordinators exercised inde-
pendent judgment in assigning nursing staff. The re-
spondent’s evidence on this issue lacked sufficient speci-
ficity. It was devoid of any examples or details of cir-
cumstances showing that a relief clinical coordinator, in
assigning nursing staff, actually “weighs the individual-
ized condition and needs of a patient against the skills or
special training of available nursing personnel.” Oak-
wood Healthcare, supra at 693. Although Section 2(11)
requires only possession of authority to carry out an enu-
merated supervisory function, not its actual exercise, the
evidence still must suffice to show that such authority
actually exists and that its exercise requires the use of
independent judgment. Avante at Wilson, 348 NLRB
1056, 1057 (2006); see also Chevron Shipping Co., 317
NLRB 379, 381 fn. 6 (1995) (conclusory statements
without supporting evidence do not establish supervisory
authority); Sears, Roebuck & Co., 304 NLRB 193, 193
(1991) (same).
In sum, we find that the Respondent has not met its
burden of showing that Sanders, when acting as a relief
clinical coordinator, exercised independent judgment in
assigning nurses to patients and, consequently, has not
established that she was a statutory supervisor.6 We
agree with the judge, therefore, that the Respondent
unlawfully suspended and discharged Sanders for engag-
ing in union activity while acting as a relief clinical co-
ordinator.
AMENDED CONCLUSIONS OF LAW
1. The Respondent violated Section 8(a)(1) of the Act
by interrogating Sanders about her union or other pro-
tected concerted activities.
2. The Respondent violated Section 8(a)(3) and (1) of
the Act by suspending Sanders on August 31, 2002.
3. The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Sanders on September 26, 2002.

6 Because the Respondent has not established that when filling in as
a relief clinical coordinator Sanders exercised sufficient independent
judgment to qualify her as a statutory supervisor, we find it unnecessary
to rely on the judge’s further finding that Sanders was also not a super-
visor because her relief clinical coordinator assignments were not
“regular and substantial.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1054
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Barstow Community Hospital–Operated by
Community Health Systems, Inc., Barstow, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union or other
protected concerted activities.
(b) Suspending any employee for engaging in union or
other protected concerted activities.
(c) Discharging any employee for engaging in union or
other protected concerted activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Lois Sanders full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Lois Sanders whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her in the manner set forth in the remedy
section of the judge’s initial decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension
and discharge, and within 3 days thereafter notify Lois
Sanders in writing that this has been done and that the
suspension and discharge will not be used against her in
any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of back pay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Barstow, California, copies of the attached
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 31,

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since August 31, 2002.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate employees about their union
or other protected concerted activities.
WE WILL NOT suspend employees because they engage
in union or other protected concerted activities.
WE WILL NOT discharge employees because they en-
gage in union or other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights set forth above, which are guaranteed them by Sec-
tion 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Lois Sanders full reinstatement to her former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
BARSTOW COMMUNITY HOSPITAL 1055
WE WILL make Lois Sanders whole for any loss of
earnings and other benefits resulting from her suspension
and discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Lois Sand-
ers’ unlawful suspension and discharge and WE WILL,
within 3 days thereafter, notify her in writing that this
has been done and that the suspension and discharge will
not be used against her in any way.
BARSTOW COMMUNITY HOSPITAL–OPERATED
BY COMMUNITY HEALTH SYSTEMS, INC.
Nikki N. Cheaney, Esq., for the General Counsel.
Don T. Carmody, Esq., of Woodstock, New York, for the Re-
spondent.
Minh Nguyen, Esq. (Gilbert & Sackman), of Los Angeles, Cali-
fornia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This case was
tried in Los Angeles, California, on June 30 and July 1, 2003.1
Pursuant to charges filed by United Nurses Association of Cali-
fornia, Union of Health Care Professionals NUHHCE,
AFSCME, AFL–CIO (the Union), the Regional Director of
Region 31 of the National Labor Relations Board (the Board)
issued a complaint and notice of hearing (the complaint) on
March 11, 2003.2 The complaint alleges that Barstow Commu-
nity Hospital–Operated by Community Health Systems, Inc.
(Respondent) violated Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act) by interrogating an employee
about her union and/or protected concerted activities and by
terminating Lois Sanders (Sanders) because she engaged in
union and/or protected concerted activities, and to discourage
employees from engaging in such activities.
Respondent essentially denied the complaint allegations and
asserted, as affirmative defenses, that Sanders was, at relevant
times, a supervisor within the meaning of Section 2(11) of the
Act and that it would have terminated Sanders irrespective of
her union and/or protected activities.3

1 All dates are in 2002, unless otherwise indicated.
2 The General Counsel amended the complaint on April 10, 2003,
changing certain charge filing and service dates.
3 Respondent also raised affirmative defenses that the Region failed
to conduct its investigation of these matters in compliance with the
General Counsel’s Memorandum OM 02-36 and the Board’s Casehan-
dling Manual and that the Region failed to afford Respondent sufficient
time to cooperate in the investigation and produce evidence in its de-
fense. I declined to receive evidence concerning these affirmative
defenses. The adequacy of the General Counsel’s investigation is not
litigable in an unfair labor practice hearing, Redway Carriers, 274
NLRB 1359, 1371 (1985), and the Agency’s Casehandling Manual
provides guidance only and is not binding on General Counsel or the
Board. Starlite Cutting, Inc., 280 NLRB 1071 fn. 3 (1986). Evidence
regarding these affirmative defenses is not relevant to the unfair labor
practice proceeding herein.
On the entire record and after considering the briefs filed by
the Charging Party and Respondent4 and the oral argument of
the General Counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with a facility in Barstow, Cali-
fornia (the facility or the hospital), is engaged in the operation
of an acute-care hospital. During the calendar year preceding
the complaint, a representative period, Respondent derived
gross revenues in excess of $250,000 from the operation of its
acute care hospital in Barstow. During that same period, Re-
spondent purchased and received at the facility goods and ser-
vices valued in excess of $50,000 directly from points outside
the State of California. Respondent admitted and I find it to be
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and a health care institution
within the meaning of Section 2(14) of the Act. Respondent
admitted, and I find the Union to be a labor organization within
the meaning of Section 2(5) of the Act.5
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Suspension, Interrogation, and Termination of Sanders
Respondent hired Sanders in May 2001. The position title
noted on her position description/evaluation of May 6 is “regis-
tered nurse . . . emergency room.” Her duties included triaging
patients, carrying out doctor orders, and transferring or dis-
charging patients as directed. Her usual shift was from 7 p.m.
to 7 a.m., the night shift, although she worked for a time on the
day shift. The emergency room (ER) manager and a clinical
coordinator (CC) provided ER oversight. When the CC was
unavailable, other nurses filled in as assigned. Beginning a
month or 2 after employment, Sanders filled in as CC once or
twice a week on the night shift.
In early spring, Sanders told some of her coworkers she
would contact a union for them so they could do something
about their various employment complaints. Thereafter, she
contacted various unions to set up a union information meeting
for employees. On August 9, Sanders talked to Mary Capolupo
(Capolupo), a registered nurse employed by Respondent, about
the Union. Thereafter, Capolupo furnished a memorandum,

4 Respondent filed its brief on the due date but, through the inadver-
tence of the person charged with filing responsibility during counsel’s
absence from his office, filed it with the Regional Director of Region
31 rather than the Division of Judges as required. The following day,
Counsel rectified the mistake, making proper filings to all parties. The
Charging Party also untimely filed its decision with the Division of
Judges on August 15, 2003. Thereafter, counsel for the Charging Party
provided an affidavit explaining that in her absence her secretary, mis-
takenly believing the brief was to be mailed on August 12, did not
effect timely filing. In light of counsels’ detailed explanations of inad-
vertent errors, their diligent attention to them, and the fact that no un-
due prejudice has resulted to any party, I have considered Respondent’s
and the Charging Party’s briefs. See Elevator Constructors Local 2
(United Elevator Services Co.), 337 NLRB 426 (2002).
5 Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged credible
evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1056
dated August 9 to Maureen Bodine (Bodine), Respondent’s
director of nurses, which in pertinent part read:
On the night of 8–9–02 Lois Sanders was clinical co-
ordinator. She came by wing 300 and said oh I didn’t
know you were working tonight. I said actually I am
working OB post partum tonight. I am relieving Brian . . .
Lois then said I have something to say to you but I do not
know how to say it. Ah! Well, I’ll just come out and say
it. I said what’s that all about. She said have you heard
anything about Carol and I trying to bring in the union for
the nurses.
She said well what do you think about it? I said you
can do what ever you want it’s a free country. Lois then
said, since you know all the nurses on the floor I thought
maybe you could talk to them about the union. . . . She
then said maybe I shouldn’t be asking you to do this be-
cause you might get written up and get in trouble.
On August 31, Bodine telephoned Sanders at home and in-
formed her that Respondent was suspending her pending inves-
tigation but declined to explain why. At the hearing, Bodine
testified that Respondent suspended Sanders while investigat-
ing whether Sanders had engaged in union activities while serv-
ing as a CC.
By letter dated September 6, Bodine informed Sanders, in
pertinent part, as follows:
This is to inform you that we desire to schedule an in-
vestigatory interview with you for the purpose of inquiring
into your conduct while recently assigned as a Clinical
Coordinator.
We desire to schedule the interview for September 17,
2002 at 2:00 PM.
On September 17, Sanders attended the scheduled investiga-
tory meeting held in Bodine’s office. Bodine and Michael
Trumble (Trumble), Respondent’s director of human resources,
were present. Bodine refused to tell Sanders the purpose of the
meeting, saying the questions she was about to ask would pro-
vide the answer. Bodine queried Sanders from a list of pre-
pared questions. The questions and a summary of Sanders’
answers6 are as follows:
1. Where [sic] you the Clinical Coordinator on the
night of 8/9/02? Ms. Sanders said she was.
2. What are the responsibilities of the Clinical Coor-
dinator? Ms. Sanders answered that she had no sense of
authority, could not reprimand or discipline, did staffing
for the following shift, and dealt with the pharmacy needs,
and that she often did the job under protest.
3. During the shift of 8/9/02, did you have any con-
versations with any employee about Unions or organizing
Unions? Ms. Sanders said she did not recall.
4. Did you say anything to anyone about getting writ-
ten up or getting in trouble in reference to union activities?
Ms. Sanders again said she did not recall.

6 Bodine’s notations sometimes consist of only a word to denote the
answer given. The answers set forth are based on the notations and
correlative testimony.
5. Have you ever engaged in Union Activity while as-
signed as Clinical Coordinator? Ms. Sanders denied doing
so.
By letter dated September 26, Bodine notified Sanders, in
pertinent part, “[B]ased upon our recent investigation into your
conduct while assigned as a Clinical Coordinator, your em-
ployment with Barstow Community Hospital is being termi-
nated.”
At the hearing, Bodine testified that Respondent terminated
Sanders because she was conducting union activity on August 9
while acting in a management position as a “supervisor or
clinical coordinator.” Bodine said that Sanders’ engaging in
union activity while acting in the role of management was
“against [Respondent’s] policy which [was] to remain union-
free.” Respondent reiterated the basis for Sanders’ termination
in its brief:
Sanders, while vested with the responsibilities of Clinical Co-
ordinator, sought to enlist Capolupo’s assistance in organizing
the Hospital’s nurses. For this reason, and this reason alone,
the Hospital rightfully decided to terminate Sanders’ em-
ployment.7
B. Sanders’ Supervisory Status
As with all ER nurses, Respondent hired Sanders with the
expectation that she would fill in as relief CC. Donna Rollins
(Rollins), medical surgical manager, testified that Bodine tells
all nurse-applicants for the ER that part of their roles will be to
act as a clinical coordinator on the night shift in the absence of
the CC or the manager, that it is mainly staffing they will be
involved in, but they may have to deal with other issues that
come up, at which time they may call a manager. As noted
above, the position description/evaluation for Sanders signed
by Schneider on May 6, states Sanders’ position as “registered
nurse . . . emergency room.” There is no mention of any relief
CC position, and Sanders was not regularly scheduled as relief
or acting CC. Bonnie Lou Schneider (Schneider), manager of
medical surgical department, generally informed her once or
twice a week that she was to fill in as CC. Respondent did not
require employees to accept the acting CC assignment, and on
occasion, Sanders declined to fill in as CC or asked manage-
ment to find someone else. Respondent paid acting CCs a 10-
percent shift differential when they served in that capacity. I
find that although Sanders served as an ad hoc acting CC as did
other ER nurses, she did not have any regular, established as-
signment as a relief CC.
When nurses were directed to act as CC, a manager gave the
assigned individual a staffing book containing staff guidelines,
staffing grids,8 master schedules, daily assignment sheets, a list
of patients’ names and rooms, an emergency call list, instruc-
tions on how to “stock” the emergency rosters, other pertinent

7 Respondent does not argue, and there is no evidence, that Sanders’
brief discussion with Capolupo occurred on either employee’s work-
time. Bodine testified that she did not know whether Capolupo or
Sanders was on break at the time of the conversation.
8 The staffing grids set a nurse/patient ratio according to Respon-
dent’s guidelines and California regulations. Sanders had nothing to do
with establishing Respondent’s policies, guidelines, or staffing grids.
BARSTOW COMMUNITY HOSPITAL 1057
information for CCs, and contact phone or pager numbers of all
supervisors. Rollins referred to the staffing book as “the
brains.” The manager told the nurse what to expect on the shift
(e.g. staffing, patient issues, pending admissions, available
beds). As noted by Rollins, Respondent “encouraged . . . abso-
lutely” acting CCs to follow Respondent’s written policies.
The daily assignment sheets, prepared by the regular CCs,
listed names of employees to be called in to work or “cut” (ex-
cused from scheduled work) along with Schneider’s sugges-
tions as to which employees were to be called in or excused.
As Rollins testified, the notes were sometimes very specific:
“These are the people that if you need to call people up these
are the order to do it . . . it is their turn.” On the one occasion
Rollins could recall giving the book to Sanders, she told Sand-
ers the staffing was already done and reviewed it with her. In
assigning the acting CCs, the managers “usually tried to make
sure that things were sorted out beforehand.” Respondent’s
training for acting CCs consisted of showing them how to use
the staffing book, how to read the staffing grid, where to obtain
medications, and where the pharmacy keys were kept. When
Sanders acted as CC, in addition to her normal nursing work,
she performed the following duties, which accounted, at the
most, for less than 17 percent of her time.9
1. Assessed the need for staff by applying the established
staffing grids and “called in” or “called off” staff as required by
patient flow, utilizing the employee lists in the staffing book.
2. Obtained necessary medications by going to the facility’s
locked pharmacy with security personnel, obtaining and signing
for specified medications, and relocking the pharmacy.
3. When physicians determined that patients were to be ad-
mitted to the hospital from the emergency room, called the
appropriate floor nurses and obtained a patient room number
for admittance.
During the periods she filled in as CC, Sanders spent the
bulk of her worktime performing nursing duties. Like other
acting CCs, she had no authority to discipline employees. Any
employee misconduct was to be referred to management. No
occasion occurred where she gave permission for any employee
to leave work, and she believed she would have to contact
management in such a situation. Schneider instructed Sanders
that if a problem occurred, she was to call Schneider at home,
and Rollins said that if acting CCs encountered any “issues,
they would certainly call.”
If staff members called in sick or were otherwise unable to
fulfill their shifts, they had to be replaced so as to maintain the
grid level or ratio. If patient numbers fluctuated in the course
of a shift, nursing personnel had to be called in or released to
maintain the appropriate grid level. Acting CCs had the author-
ity to “float”10 employees from one treatment area to another.
Schneider’s description of the process was that the CC might
call another department and say, “Who can come over and help
us get through this crisis?”

9 Respondent’s witnesses agreed that the time an acting CC spent on
CC duties might be as little as 30 to 40 minutes in a 12-hour shift.
10 Floating is the temporary assignment of employees to various de-
partments to meet workload demands.
If unscheduled employees had to be called in to work, Sand-
ers either utilized the staff lists in the staffing book or contacted
a registry (contract service) to obtain personnel. In utilizing the
staffing book, Sanders followed the prepared staffing log, start-
ing with the top name and working down the list.11 If staffing
difficulty occurred, the acting CC could contact Rollins who
would then make the calls for them. The acting CC had no
authority to order any employee to work; if employees refused
to report, the information would be passed on to a manager for
determination of disciplinary action.12 Contract nursing per-
sonnel were used when no employees were available to work.
In summoning contract help, Sanders contacted the registry as
designated by Respondent. If contract personnel were used,
Sanders oriented them to the ER by following Respondent’s
checklist for ascertaining if they knew emergency procedures.
From the ER, patients were admitted to either the intensive
care unit (ICU) or one of the two medical-surgery floors of the
hospital, as designated by the attending physician. The system
for determining to which of the medical-surgery floors the pa-
tient would be admitted was, according to Rollins, generally
“pretty routine” and consisted of alternating admissions be-
tween the two floors. When, on one occasion, the staff of one
floor refused to accept an admission, the acting CC called
Rollins who handled the problem.
Although an acting CC needed to deal with the “concerns” of
patient family members, physicians, and staff, Rollins knew of
no specific occasion where an acting CC had occasion to re-
solve conflicts among staff. It was “not uncommon” for CCs to
call Rollins at home when problems developed or for her to
return to the hospital to deal with issues arising during acting-
CC stints.
III. DISCUSSION
When Sanders spoke briefly about union organizing to Capo-
lupo on August 9, she was engaged in protected activity as
described in Section 7 of the Act. There is no dispute that Re-
spondent thereafter suspended Sanders pending its investigation
of whether she had engaged in union activities as reported by
Capolupo.13 There is no dispute that Respondent, in the course
of the investigation, interrogated Sanders about her union ac-
tivities, and there is no dispute that Respondent fired Sanders
on August 26, because she had engaged in union activities. An
employer’s investigation undertaken to determine an em-

11 Sanders’ method of calling in employees was consistent with
manager expectations. As Rollins testified, if additional staff was
needed, the acting CC looked to “the staffing sheets [to] find out if . . .
somebody else . . . could fill that position, and if there wasn’t then [the
acting CC] would start calling around other staff members to see who
could come in and cover that shift.”
12 However, if unscheduled staff declined to work, managers gener-
ally filled in as needed.
13 Although the General Counsel did not allege the investigation of
Sanders and her corollary suspension as violations of the Act, as the
facts surrounding them were admitted by Respondent, were fully and
fairly litigated, and as the issues are closely connected to the subject
matter of the complaint, I have considered the lawfulness of the inves-
tigation and the suspension herein. Gallup, Inc., 334 NLRB 366
(2001); Letter Carriers Local 3825 Postal Service, 333 NLRB 343 fn. 3
(2001); Parts Depot, 332 NLRB 733 (2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1058
ployee’s involvement in protected activities is unlawful as are
all the disciplinary consequences flowing therefrom. See Pre-
ferred Transportation, 339 NLRB 1 (2003), citing Accord
Business Products–Division of Kidde, Inc., 224 NLRB 840 fn.
3 (1989). It does not matter that the employer may have be-
lieved, in good faith, that the statutory employee was a supervi-
sor within the meaning of the Act. See General Security Ser-
vices Corp., 326 NLRB 312, 313 (1998). Respondent’s con-
duct in investigating Sanders’ union activity, suspending her
during the pendency of the investigation, interrogating her
about her union activity, and firing her is unlawful on its face
under Section 8(a)(3) and (1) of the Act.
Respondent defends its conduct on the ground that Sanders
lost the protection of the Act when she engaged in union activi-
ties because she was, at the time, acting CC and a supervisor
within the meaning of Section 2(11) of the Act. Respondent
carries the burden of proving supervisory status. NLRB v. Ken-
tucky River Community Care, Inc., 532 U.S. 706 (2001); Dean
& Deluca New York, Inc., 338 NLRB 1046, 1047 (2003) (“The
party asserting [supervisory] status must establish it by a pre-
ponderance of the evidence [citations omitted]”). I find Re-
spondent has not met its burden of showing that Sanders was or
acted as a supervisor at any relevant time hereto.
According to the Board, “An employee’s temporary assump-
tion of supervisory duties is not sufficient to establish statutory
supervisory status [citations omitted].” Health Resources of
Lakeview, 332 NLRB 878 (2000). The Board, quoting Aladdin
Hotel, 270 NLRB 838, 840 (1984), has stated that “[T]he ap-
propriate test for determining the status of employees who sub-
stitute for supervisors is whether the part-time supervisors
spend a regular and substantial portion of their working time
performing supervisory tasks.” St. Francis Medical Center-
West, 323 NLRB 1046 (1997).14 There is no evidence Sanders
exercised or possessed any supervisory authority when she
filled in as a CC. Rather, the evidence shows that Sanders fol-
lowed established written procedures and policies as an acting
CC and that she did not exercise independent judgment within
the meaning of Section 2(11) of the Act. See Beverly Health &
Rehabilitation, 335 NLRB 635 (2001) (exercise of only routine
authority); Dean & Deluca, New York, Inc., supra (direction
and scheduling of employees does not establish an employee as
a supervisor). Sanders’ responsibility in any disciplinary proc-
ess was nothing more than reportorial, and there is no evidence
she exercised even that limited role. See Ken-Crest Services,
335 NLRB 777 (2001). Although Sanders made certain work
assignments and called in employees as needed, work assign-
ments made by following plans and schedules of management
do not establish statutory supervisory status,15 neither does
requesting off-duty employees to come in to work. Health
Resources of Lakeview, supra. Sanders oriented registry-
nursing employees when they were called in, but such orienta-

14 I cannot agree with Respondent that the Board’s reasoning in St.
Francis does not apply to this situation because Sanders’ “right to vote
is not at issue.” The Board’s analyses of supervisory status are not
dependent on issues but apply to all cases commonly.
15 Dean & Deluca, supra; Arlington Electric, Inc., 332 NLRB 74
(2000).
tion does not confer supervisory status, especially where orien-
tation consists of referring employees to established procedures
and policies. Chrome Deposit Corp., 323 NLRB 961 (1997).
Even assuming Sanders exercised some supervisory author-
ity during those occasions when she acted as a CC, Respondent
has not established that Sanders spent a regular and substantial
portion of her worktime doing so as required by Aladdin Hotel,
supra. Sanders was assigned CC responsibility irregularly and
when she was, the performance of those responsibilities did not
involve a substantial portion of her working time. Accordingly,
the evidence does not support Respondent’s contention that
Sanders was a supervisory employee at any time. Specifically,
the evidence does not show that Sanders was a supervisory
employee when, on August 9, she discussed union organization
with a fellow employee.
Sanders, having been a statutory employee at all relevant
times and specifically on August 9 when she engaged in union
activity, was entitled to exercise the rights guaranteed by Sec-
tion 7 of the Act. When Respondent placed Sanders on suspen-
sion on August 31, pending its investigation of her union or
other concerted protected activities and when Respondent ter-
minated her for having engaged in such activities on September
26, Respondent violated Section 8(a)(3) and (1) of the Act.16
When Respondent instituted an investigation of Sanders’ union
or other concerted protected activities between August 9 and
September 17, and when Respondent interrogated Sanders
about her union or other concerted protected activities on Sep-
tember 17, Respondent violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act by inves-
tigating Sander’s union or other concerted, protected activities.
2. Respondent violated Section 8(a)(1) of the Act by inter-
rogating Sanders about her union or other concerted, protected
activities.
3. Respondent violated Section 8(a)(3) and (1) of the Act by
suspending Sanders on August 31, 2002.
4. Respondent violated Section 8(a)(3) and (1) of the Act by
terminating Sanders on September 26, 2002.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent having discriminatorily suspended and termi-
nated Lois Sanders, it must offer her reinstatement and make
her whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of suspension to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus

16 As Respondent concedes it disciplined Sanders for her union ac-
tivities, I agree with Respondent that it is unnecessary to apply the
Board’s analytical framework for deciding cases turning on employer
motivation set forth in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
BARSTOW COMMUNITY HOSPITAL 1059
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
Respondent, Barstow Community Hospital–Operated by
Community Health Systems, Inc., Barstow, California, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Investigating employees’ union or other concerted, pro-
tected activities.
(b) Interrogating employees about their union or other con-
certed, protected activities.
(c) Suspending any employee for engaging in union or other
concerted, protected activities.
(d) Terminating any employee for engaging in union or other
concerted, protected activities.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Lois
Sanders full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Lois Sanders whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her in the manner set forth in the remedy section of the deci-
sion.
(c) Remove from its files any reference to Lois Sanders’
unlawful suspension and termination and thereafter notify her
in writing that this has been done and that the suspension and/or
termination will not be used against her in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Barstow, California, copies of the attached notice
marked “Appendix.”18 Copies of the notice, on forms provided
by the Regional Director for Region 31 after being signed by

17 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since August 9, 2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT investigate employees’ union or other con-
certed, protected activities.
WE WILL NOT interrogate employees about their union or
other concerted, protected activities.
WE WILL NOT suspend employees because they engage in un-
ion or other concerted, protected activities.
WE WILL NOT terminate employees because they engage in
union or other concerted, protected activities.
WE WILL NOT in any like or similar manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Lois Sanders full reinstatement to her former
job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights
or privileges previously enjoyed.
WE WILL make Lois Sanders whole for any loss of earnings
and other benefits resulting from her suspension and termina-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1060
WE WILL remove from our files any reference to the unlawful
suspension and termination of Lois Sanders and WE WILL notify
her in writing that this has been done and that the suspension
and termination will not be used against her in any way.
BARSTOW COMMUNITY HOSPITAL–OPERATED BY
COMMUNITY HEALTH SYSTEMS, INC.
Nikki N. Cheaney, Esq., for the General Counsel.
Don T. Carmody, Esq., of Woodstock, New York, for the Re-
spondent.
Cynthia L. Hernandez, Esq. (Gilbert & Sackman), of Los Ange-
les, California, for the Charging Party.
SUPPLEMENTAL DECISION
REMAND ORDER
By Order dated September 30, 2006, the National Labor Re-
lations Board (the Board) remanded this matter for further con-
sideration in light of its recent decisions in Oakwood Health-
care, Inc., 348 NLRB 686 (2006); Croft Metals, Inc., 348
NRLB 717 (2006); and Golden Crest Healthcare Center, 348
NLRB 727 (2006), which addressed the meaning of terms “as-
sign,” “responsibly to direct,” and “independent judgment,” as
used in Section 2(11) of the Act, under the framework of the
Supreme Court’s decision in NLRB v. Kentucky River Commu-
nity Care, 532 U.S. 706 (2001).
The Respondent’s Motion for Reconsideration of Motion
to Reopen the Record
The Board’s Order allowed the parties to file briefs on the
remand issues and, if warranted, directed reopening the record
to obtain evidence relevant to the principles enunciated in
Oakwood Healthcare, Croft Metals, and Golden Crest. By
motion to reopen record dated November 20, 2006, Respondent
sought to reopen the record to present additional testimony and
documentary evidence regarding alleged supervisory responsi-
bilities of Lois Sanders (Sanders) whose supervisory status is at
issue. By Order dated November 27, I denied Respondent’s
motion as unwarranted and set a date for the filing of briefs.1
All parties have filed timely briefs herein concerning the issue
of whether Sanders is a supervisor within the meaning of Sec-
tion 2(11) of the Act. Although titling its submission as a brief
on remand and motion for reconsideration of motion to reopen
the record, Respondent has presented argument only on its
motion for reconsideration. Respondent asserts that the filing
of a brief based upon the record presently developed is point-
less:
Thus, inasmuch as the hospital never undertook during the
Trial . . . to prove, let alone argue . . . that Ms. Sanders’ re-
sponsibilities strictly as a Registered Nurse, irrespective of her
role as a Clinical Coordinator, involved the performance of
“supervisory” functions, the Record is barren of evidence of
Ms. Sanders’ supervisory status strictly in her capacity qua
Registered Nurse—that is to say, the Record already devel-
oped instead only contains evidence and legal argument of
Ms. Sanders’ supervisory status as Clinical Coordinator.

1 The original due date of January 4, 2007, for the filing of briefs
was extended upon Respondent’s request to January 16, 2007.
Consequently, there is no basis, let alone an insufficient basis,
for Barstow to argue from the existing Record that, under the
principles articulated by the Board in Oakwood, Ms. Sanders’
status as a Registered Nurse, alone, was supervisory.
While it is true, as the Respondent contends, that the primary
focus of the parties’ examination in the underlying hearing was
on Sanders’ duties as relief CC, it is not true that the record is
silent regarding Sanders’ responsibilities as an RN. The record
provides pertinent information regarding Sanders’ RN duties in
the ER.
During the relevant period, core staffing in the emergency
room (ER) of the Respondent’s 40–50 bed acute-care facility
consisted of two registered nurses (RN), an ER technician, and
two additional staff members who worked part of the daytime
ER shifts. The ER manager and a clinical coordinator (CC) had
overall responsibility for nursing activities on the ER day shift.
On the night shift, a CC provided ER oversight. The CC in-
sured that the hospital ran efficiently and smoothly, dealt with
interpersonal employee conflicts, gathered supplies, and han-
dled staffing. In making staffing decisions and assignments,
the CC took into account the acuity of patients and the relative
skills, experience, and trustworthiness of the available staff.
The CCs gave no patient care, although they might fill in as
needed for an absent RN. On occasion, the ER registered
nurses were called upon to fill in as relief clinical coordinator
on the night shift.
At all times relevant, Sanders worked as an RN in the ER.
The position title noted on her position description/evaluation
of May 6, 2002, was “registered nurse . . . emergency room,”
and her position description was summarized as follows: “The
Registered Nurse shall be responsible for planning, supervising
and evaluating the nursing care of patients and for correlating
the nursing process, the medical plan of care and policies.”
Sanders usually worked the ER night shift from 7 p.m. to 7
a.m., and her duties included triaging patients, carrying out
doctor orders, and transferring or discharging patients as di-
rected. In fulfilling her duties as an RN, Sanders did not make
assignments to other workers, evaluate their performance, or
discipline them; her only involvement with corrective action
was to report problems to the CC or ER manager. Beginning a
month or two after employment, Sanders filled in as CC once
or twice a week.
Regarding Sanders’ work as an RN, the following is clear
from the record: (1) at all relevant times, the Respondent’s ER
had a complement of only two RNs who were overseen by a
CC; (2) the CC had full oversight responsibility for the ER; (3)
the CC was responsible for staffing in the ER; (4) as an RN,
Sanders had no responsibility for making work assignments to
other employees; and (5) as an RN, Sanders had no responsibil-
ity for evaluating the work performance of other employees or
disciplining them.
The Board’s decision in Oakwood Healthcare, Inc., supra,
deals with the issue of whether certain charge nurses are super-
visors within the meaning of the Act. In arriving at its conclu-
sions, the Board adopted definitions for the terms “assign,”
“responsibly to direct,” and “independent judgment,” as used
by Section 2(11) of the Act in denoting supervisory authority.
BARSTOW COMMUNITY HOSPITAL 1061
As to the term “assign,” the Board construed it to mean desig-
nating an employee to perform significant overall duties. Di-
recting an employee to perform discrete tasks within such an
assignment, as in giving an ad hoc instruction, is not, in the
Board’s view, indicative of supervisory authority to “assign.”2
With regard to the term “responsibly to direct,” the Board con-
cluded that for an individual’s action to be so described, the
directing person “must be accountable for the performance of
the task so as to fundamentally align the person with manage-
ment.3 Finally, the Board considered that “independent judg-
ment” is exercised when an individual acts or recommends
action free of the control of others, which action rises above the
merely routine or clerical.4
With the Board’s definitions in mind, it is apparent that
Sanders’ performance of RN functions, in and of itself, does
not fit the Board’s denotation of supervisory status. The Re-
spondent ceded oversight responsibility in its ER to a CC. The
CC, not Sanders, was responsible for staffing the ER, making
work assignments, and evaluating the work performance of ER
employees. In such a limitedly staffed department as the Re-
spondent’s ER, it is highly improbable that two individuals
would possess 2(11) authority to exercise independent judg-
ment in assigning and directing employees. Since clearly the
CC possessed such authority, a fortiori, Sanders, when func-
tioning as an RN, did not. Accordingly, the Respondent’s
motion for reconsideration of motion to reopen record in order
to adduce evidence of Sanders’ RN responsibilities, irrespective
of her role as a relief CC, is denied.
Consideration of Underlying Decision in Light of Oakwood
Healthcare, Croft Metals, and Golden Crest
While the Respondent’s brief on remand appears to concede
that the Board’s decisions in Oakwood Healthcare, Inc., Croft
Metals, Inc., and Golden Crest Healthcare Center would not
alter the findings in the underlying decision, the Board’s Order
to reconsider those findings dictates further review. In the re-
cent decisions, the Board reiterated that the burden of proving
supervisory status rests on the party asserting it. After recon-
sideration of the underlying findings of fact in light of Oak-
wood Healthcare, Inc., Croft Metals, Inc., and Golden Crest
Healthcare Center, I find that the Respondent has failed to
meet its evidentiary burden.
The question of Sanders’ supervisory status rests on her
work as a relief CC. In Oakwood Healthcare, Inc., supra at
696, the Board addressed the status of individuals who are en-
gaged part of their worktime in supervisory roles and held to its
established legal standard that determination of supervisory
status in such situations depends on whether the individual
spends a regular and substantial portion of worktime perform-
ing supervisory functions. As the Board did not modify its
standard for assessing the regularity and substantiality of part-
time performance of supervisory functions, there is no basis for
revising the earlier finding that Sanders served as a relief CC

2 Oakwood Healthcare, Inc., supra at 689–690.
3 Oakwood Healthcare, Inc., supra at 693.
4 Id. at 694–695. The concepts detailed in Oakwood Healthcare,
Inc. are echoed in Croft Metals, Inc., supra, and Golden Crest Health-
care Center, supra.
only on an ad hoc basis and did not have any regular, estab-
lished assignment as such.
Even assuming Sanders spent a regular and substantial por-
tion of her worktime as relief CC, utilizing the Board’s defini-
tions set forth in Oakwood Healthcare, Inc., and reiterated in
Croft Metals, Inc., and Golden Crest Healthcare Center, the
evidence fails to establish that Sanders exercised independent
judgment in assigning or responsibly directing any employee
when she served as relief CC. In Oakwood Healthcare, Inc.,
the Board construed the authority “to assign” to involve the act
of designating an employee to a specific place in which to per-
form his or her work, appointing an employee to a particular
time during which to perform that work, or giving an employee
significant overall duties or tasks to perform. The authority
“responsibly to direct” involves deciding which job shall be
undertaken and who shall do it, provided that the direction is
both responsible and given with independent judgment. For the
direction to be responsible, the person giving the direction must
be accountable for the performance of the task under penalty of
adverse consequences for improper execution. “Independent
judgment” does not exist if directions are dictated or controlled
by detailed instructions that do not allow for discretionary
choices.5
During the periods she filled in as CC, Sanders spent the
bulk of her worktime performing nursing duties and was in-
structed to contact management regarding any nonroutine is-
sues. As relief CC, Sanders was expected to follow a staffing
book prepared by higher authority, which contained detailed
staff guidelines, staffing grids, master schedules, daily assign-
ment sheets, and other pertinent administrative information and
instructions. Sanders assigned admitted ER patients to the
nursing staffs of two medical-surgery floors by alternating be-
tween the two floors. Any disagreement over patient placement
was referred to upper management. Sanders could request help
as needed from other departments or call in unscheduled em-
ployees but had no authority to affix consequences to any re-
fusal to comply and was not accountable for other employees’
performance of tasks. Any employee misconduct was to be
referred to upper management. Clearly, when functioning as a
relief CC, Sanders was not free from the control of others but
followed the detailed instructions and policies provided in the
staffing book and formed no opinions or evaluations by dis-
cerning and comparing data. In such circumstances, following
the instruction of Oakwood Healthcare, Inc., I find that Sanders
did not responsibly direct other employees’ work. While Sand-
ers may, in a broad sense, have assigned work to employees by
requesting help, calling in unscheduled employees, and making
bed assignments for patients admitted to the hospital from the
ER, she did not exercise independent judgment in doing so.
Any judgment exercised by Sanders was dictated or controlled
by detailed instructions and policies established by a higher
authority that did not allow for discretionary choices and, thus,
was not “independent.”

5 Id. at 689–695.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1062
Accordingly, having reviewed the evidence in the light of the
Board’s recent decisions construing Section 2(11) of the Act, I
find the evidence does not establish that Lois Sanders was a
supervisor within the meaning of that section on August 31
and/or September 26, 2002, when Respondent respectively
suspended and fired her.
[Recommended Order omitted from publication.]