Board of Social Ministry

National Labor Relations Board - Board Decisions

Nov 30, 1998

327 N.L.R.B. 257 (N.L.R.B. 1998)

GREEN ACRES COUNTRY CARE CENTER 257
Board of Social Ministry d/b/a Green Acres Country
Care Center Minnesota’s Health Care Union,
SEIU, Local 113, AFL–CIO/CLC, Petitioner.
Cases 18–RC–161671 and 18–RC–16181
November 30, 1998
DECISION, DIRECTION, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in the election conducted in Case 18–RC–16181 on No-
vember 5, 1997, and the hearing officer’s Report recom-
mending disposition of them.2
The Board has reviewed the record in light of the ex-
ceptions and brief, and has adopted the hearing officer’s
rulings, findings,3 and recommendations.
In adopting the Hearing Officer’s finding that Janel
McMahon was not shown to be a supervisor within the
meaning of Section 2(11) of the Act, and thus was eligi-
ble to vote, we rely in particular on his findings that the
night supervisor position in which McMahon supposedly
exercised such authority was filled six nights out of
every two weeks by licensed practical nurses and that the
LPNs possessed the same authority with respect to em-
ployees on the night shift as did McMahon.4 The finding
of equivalent authority was based on the testimony of the
Employer’s own director of nursing. Since the Employer
agreed that the LPNs (who voted in the election con-
ducted in Case 18–RC–16167) were not supervisors
within the meaning of Section 2(11), we believe it would
be anomalous to find that whatever disciplinary authority
is possessed by McMahon involves an exercise of inde-
pendent judgment sufficient to make her a statutory su-
pervisor. Contrary to our dissenting colleague, we do not
think the fact that she regularly worked 8 nights in the
position during each 2-week period differentiates her
from the LPNs, given the finding that all had the same
authority over employees.

1 Pursuant to Stipulated Election Agreements, elections were con-
ducted concurrently in separate units of employees at the Employer’s
facility, i.e., RNs in Case 18–RC–16181 and LPNs and other employ-
ees in Case 18–RC–16167. The Employer filed objections that encom-
passed both elections, and the Regional Director recommended that
they be overruled. On January 28, 1998, while the Employer’s excep-
tions to the Regional Director’s report on objections were pending
before the Board, the Employer filed a motion to withdraw those excep-
tions and (as clarified on January 30, 1998) its objections to the elec-
tions. The Employer’s motion to withdraw its objections to both elec-
tions and its exceptions relating to them is hereby granted, and we shall
issue a certification of representative in Case 18–RC–16167 inasmuch
as the tally of ballots in that case shows 54 for and 32 against the Peti-
tioner, with 12 challenged ballots, an insufficient number to affect the
results.
2 The tally of ballots in Case 18–RC–16181 showed 3 ballots cast for
and 4 against the Petitioner, with 2 determinative challenges.
3 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
4 The pertinent part of the hearing officer’s report is attached as an
appendix.
With regard to the single instance in which McMahon
sent an employee home without prior consultation with
the director of nursing, she did so because the employee
appeared to have been drinking. McMahon testified,
without contradiction, that she had been instructed by the
evening supervisor (an individual whom the parties agree
is a statutory supervisor) that if a nurse suspected that an
employee had been drinking, the nurse was to send the
employee home or, if the employee disputed the charge,
send the employee to the hospital emergency room for a
blood test. Thus, in sending the employee home, McMa-
hon was simply carrying out clear instructions of man-
agement, which left no room for genuine discretion.
This incident therefore failed to establish that she pos-
sessed Section 2(11) authority. See, e.g., Azusa Ranch
Market, 321 NLRB 811, 812 (1996) (telling employees
when to go out on breaks not evidence of supervisory
discretion where this was done pursuant to management
instructions that breaks were to be allowed at approxi-
mately 2-hour intervals).
The dissent argues that McMahon possesses Section
2(11) disciplinary authority because she can effectively
recommend warnings. We disagree. Contrary to the
dissent’s assertion, the record does not show that such
warnings affect employee terms and conditions of em-
ployment. Although the employee handbook sets forth a
four-step disciplinary policy, the handbook does not
specify what is required to move from the first step (ver-
bal warning) to the second step (written warning) and
beyond (suspension and discharge). For example, there
is no evidence that after receiving a verbal warning for
violation of a rule, an employee would automatically
progress to written warning and suspension for the sec-
ond and third infractions, respectively. Neither is there
any indication in the handbook’s description of the pro-
cedure that, as our colleague asserts, “[a]bsent the initial
stages, the more draconian measures of suspension and
discharge cannot occur.” Indeed, the handbook makes it
clear that, in dealing with rule infractions or other unac-
ceptable conduct, the Employer “reserves the right, in its
complete discretion, to utilize any other procedure, or no
procedure at all in dealing with such issues.” Even after
listing certain offenses that might ordinarily be punished
initially by measures short of suspension or discharge,
the handbook states again that “the facility reserves the
right to terminate employment without prior warning for
any reason if it believes that it is in the organization’s
best interest.” Thus, verbal warnings issued by McMa-
hon or any of the LPNs have no clear connection of any
kind to other disciplinary measures. The mere authority
to effectively recommend warnings that “have no tangi-
ble effect on [an employee’s] job status . . . is not suffi-
327 NLRB No. 57
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 258
cient for supervisory status.” Lynwood Health Care Cen-
ter, Minnesota, Inc. v. NLRB, 148 F.3d 1042, 1046 (8th
Cir. 1998).
Finally, with regard to McMahon’s authority to call in
off-duty nurses to work or to ask other nurses to stay
beyond their shifts in order to alleviate staff shortages,
we note that the record does not indicate that McMahon
has any real discretion in the matter. It does not show
that she is free to determine how many nurses are to
work on a shift, or that, when there is a shortage, she
could require a nurse to work as opposed to simply going
down a list and asking until she finds a nurse who agrees
to work. Similarly, with regard to her authority to assign
duties to the certified nursing assistants, it appears that
this is closely constrained by care plans devised for each
patient. As to her authority to enforce dress code and
safety rules, there is no evidence that she exercises su-
pervisory discretion as opposed to simply applying clear
pre-established guidelines. Thus, as in the case of the
nurse sent home for drinking, McMahon appears simply
to be implementing management’s policy.
DIRECTION
IT IS DIRECTED that the Regional Director shall,
within 14 days from the date of this Decision and Direc-
tion, open and count the ballots of Joanne Peterson and
Janel McMahon and serve on the parties a revised tally
of ballots. Thereafter the Regional Director shall issue
the appropriate certification in Case 18–RC–16181.
ORDER
IT IS ORDERED that Case 18–RC–16181 is re-
manded to the Regional Director for Region 18 for fur-
ther processing consistent with this Decision.
CERTIFICATION OF REPRESENTATIVE IN CASE
18–RC–16167
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Minnesota’s Health Care Union,
SEIU, Local 113, AFL–CIO/CLC, and that it is the ex-
clusive collective-bargaining representative of the em-
ployees in the following unit:
All full-time and regular part-time NARs, medical re-
cords employees, dietary employees, laundry employ-
ees, housekeeping employees, maintenance employees,
activities employees, nonsupervisory LPNs, van drivers
and recreation therapy employees; excluding RNs, su-
pervisory LPNs, department heads, guards and supervi-
sors as defined in the Act.

MEMBER HURTGEN, dissenting in part.
Unlike my colleagues, I would sustain the challenge to
Janel McMahon’s ballot. I find her to be a supervisor.
McMahon is the only one of the Employer’s 14 regis-
tered nurses who serves regularly as a “night shift super-
visor” at the Employer’s nursing facility.1 There is a
night supervisor on duty during all night shifts. During
that shift, the night supervisor is the highest-ranking per-
son on the premises. McMahon is the night supervisor
on 8 nights out of every 2-week period.2
McMahon can, and does, effectively recommend ver-
bal warnings. The Employer maintains a progressive
disciplinary policy. The policy consists of four steps, the
first of which is a verbal warning and the fourth of which
is discharge.3
My colleagues acknowledge that there is a progressive
disciplinary system. They also do not quarrel with the
fact that McMahon makes effective recommendations
with respect to the initial (warning) stages of this system.
Finally, they accept the fact that the system can lead to
suspension and discharge. Notwithstanding all of this,
they argue that there is an insufficient link between the
initial stages and the later stages (suspension and dis-
charge). However, it is clear that the initial stages of
discipline pave the way for later stages. Absent the ini-
tial stages, the more draconian measures of suspension
and discharge cannot occur. Further, as noted above,
McMahon makes effective recommendations as to dis-
charge. In these circumstances, I conclude that there is a
nexus between the initial stages of the system and the
later stages.
I recognize that McMahon can only recommend the
verbal warnings. The director of nursing reviews the
matter before the night shift supervisor can issue the
warning. However, the director has never overruled a
nurse’s decision to issue a verbal warning. The testi-
mony of the director of nursing is unrebutted in this re-
gard. Accordingly, the record establishes that McMahon
has the authority to effectively recommend warnings.
In addition to the verbal warnings, McMahon drafts
written warnings without obtaining prior approval. Al-
though those warnings are also reviewed by the director
of nursing, there is no suggestion that the night supervi-
sor’s recommendations have ever been overruled.
These warnings can affect terms and conditions of em-
ployment. As noted above, the warning is a first step on
the road to discharge. Indeed, when it comes to that dis-
charge step, the night supervisor is the person who makes
the recommendation. The director of nursing testified

1 “Night shift supervisor” is her title, I shall refer to her in that way
or as “night supervisor.”
2 The Employer does not contend that the regular LPNs are supervi-
sors, even though they act as night supervisors on the 6 nights (every 2
weeks) when McMahon is not present. However, since there are 12
LPNs, it follows that each of them acts as supervisor on an average of
only once every 4 weeks. That occasional substitution does not place
them in the same category as McMahon. In essence, McMahon and the
LPNs have the same supervisory authority. However, McMahon has it
on a frequent and substantial basis, and the LPNs have it on a sporadic
and insubstantial basis. That is the difference which makes McMahon
a supervisor and the LPNs employees.
3 The other steps are: written warning and suspension.
GREEN ACRES COUNTRY CARE CENTER 259
that, as to discharge, she “would definitely weight [sic]”
the recommendations of the night supervisors “very
heavily.” There is no suggestion that any discharge rec-
ommendation by night supervisors has ever been over-
ruled.4
In addition to the power to make effective recommen-
dations, McMahon can decide some matters on her own.
McMahon, without first consulting with higher authori-
ties, has sent home an employee whom she suspected of
drinking.5 She also issued a warning to a licensed practi-
cal nurse, documented the warning, and reported the
nurse’s refusal to accept the warning.
McMahon also has the authority to assign and reassign
duties to certified nursing assistants and the authority to
enforce work rules, including dress code and safety rules.
My colleagues suggest that the care plans for each pa-
tient dictate the actions of the night supervisor. In my
view, care plans are not so specific as to turn the night
shift supervisor into an automaton. Of necessity, the
night shift supervisor must exercise discretions and inde-
pendent judgment, albeit within the broad bounds of a
care plan.
Finally, the night supervisor is the person who must
give permission for an employee to leave early. If the
employee leaves without permission, the employee
would be disciplined.
Based on the above, McMahon is a statutory supervi-
sor. Thus I would sustain the challenge to her ballot.

APPENDIX

HEARING OFFICER’S REPORT AND
RECOMMENDATION TO THE BOARD ON
CHALLENGED BALLOTS
Factual and Legal Analysis
In its posthearing brief, the Employer contends that under
Minnesota law licensed practical nurses are not permitted to
“supervise” certified nursing assistants; and that therefore the
“[r]egistered nurses at [the Employer’s facility] are responsible
for supervising the [n]ursing [d]epartment personnel on their
shifts, including the [t]rained [m]edical [a]ssistants and the
[n]ursing [a]ssistants.” Assuming without deciding that this is
an accurate representation of state law, the Employer’s argu-
ment leads to two equally untenable (from its perspective) con-
clusions. If registered nurses are, and licensed practical nurses
are not, “supervisors” by operation of state law, the licensed
practical nurses who serve as night supervisors six nights per

4 Consistent with Sec. 2(11), the authority to effectively recommend
discipline would show supervisory status, even if that authority were
not exercised. Northern Montana Health Care, 324 NLRB 752 (1997),
relied on by the hearing officer, is distinguishable in this regard. That
case involved the authority to effectively recommend transfer, the
exercise of which was “routine.” Id. at 754. In contrast, the issuance of
written warnings and the recommendations of termination in the instant
case are not “routine.”
5 My colleagues argue that there is no discretion in this regard. Ob-
viously, “suspicion of drinking” is not a precise phrase. Suspicions are
personal, and there are degrees of “drinking.” Accordingly, I believe
that personal judgment by McMahon is involved.
pay period are not “supervisors.” Since the director of nursing
testified that the licensed practical nurses who serve as night
supervisors have the same supervisory authority as does
McMahon, it follows either that McMahon is likewise not a
“supervisor,” or that the licensed practical nurses who serve as
night supervisors exercise “supervisory” authority in violation
of state law. I conclude, however, that it is unnecessary to ad-
dress this issue further for the simple reason that the Employer
has failed to demonstrate that the term “supervisor” has a uni-
vocal meaning under federal and state law.
The Employer also contends in its post-hearing brief that
night supervisors and evening supervisors occupy a similar
status on the Employer’s organizational chart; that the parties
stipulated that evening supervisor June Poff is a supervisor
within the meaning of the Act; that there is no principled basis
for distinguishing between the supervisory authority of evening
and night supervisors; and that therefore Janel McMahon must
be a statutory supervisor. This argument simply proves too
much. If, as the director of nursing testified, licensed practical
nurses who serve as night supervisors have the same authority
as the regular night supervisor; and if, as the Employer con-
tends, the regular night supervisor is a supervisor within the
meaning of the Act, it would follow that the licensed practical
nurses who serve as night supervisors are supervisors within the
meaning of the Act. However, the record establishes that the
parties agreed that the licensed practical nurses were eligible
voters (and therefore not supervisors within the meaning of the
Act) in the election conducted in Case 18–RC–16167. Thus,
the Employer’s contention is inconsistent with its position in
Case 18–RC–16167. In any event, and contrary to the Em-
ployer’s contention, the record does provide a principled basis
for distinguishing between the supervisory authority of evening
supervisor Poff and night supervisor McMahon. Poff testified
that she had the same the same supervisory authority as an eve-
ning supervisor as she previously had as a nurse manager (al-
beit limited to one rather than three shifts). However, the Em-
ployer does not contend, and the record does not otherwise
establish, that the night supervisors have the same authority as
the Employer’s nurse managers. In addition, Poff, like the
nurse managers but unlike McMahon and other night supervi-
sors, is a salaried employee. Finally, Poff, unlike McMahon
and other night supervisors, evaluates other employees.7
In its posthearing brief, the Employer contends that Janel
McMahon is a supervisor within the meaning of the Act be-
cause she:

(1) has the authority to give disciplinary warnings, and has ac-
tually exercised that authority; (2) has the authority to send
employees home and has exercised that authority; (3) has the
authority, under appropriate circumstances, to terminate em-
ployees; (4) has the authority to effectively recommend ter-
mination of employees; (5) has the ability to direct staffing is-
sues, including calling employees in, and approving overtime;
(6) has the discretion to determine when discipline is appro-
7 I have considered the director of nursing’s testimony that she plans
to have night supervisors evaluate employees in the future. However,
and even assuming that these plans come to fruition at some unspeci-
fied time in the future, I am unwilling to speculate whether the per-
formance of this function would be sufficient to confer supervisory
status. Northern Montana Health Care, 324 NLRB 752, 753 (1997);
Waverly-Cedar Falls Health Care, 297 NLRB 390, 393 (1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 260
priate; (7) is responsible for security issues; and (8) exercises
supervisory authority and functions in the course of directing
and assigning non-supervisory employees.

As the party asserting the existence of supervisory authority,
the Employer bears the burden of persuasion on this issue. See,
e.g., Tucson Gas & Electric Co., 241 NLRB 181 (1979). For
the reasons that follow, I conclude that the Employer has failed
to satisfy its burden.
(1) Authority to issue disciplinary warnings. The record es-
tablishes that Janel McMahon has the authority to issue verbal
and written warnings. However, both the director of nursing
and evening supervisor Poff testified that “all” nurses are “su-
pervisors” and have this authority. Since the parties agree that
the licensed practical nurses who voted in the election in Case
18–RC–16167 and the registered nurses who voted in the in-
stant case (other than McMahon) are not supervisors within the
meaning of the Act, the existence of this authority cannot be
sufficient to confer supervisory status. Any doubt in this regard
is eliminated by the director of nursing’s testimony that she
“always” reviews disciplinary warnings and that Janel McMa-
hon could not take disciplinary action that would directly affect
an employee’s job status without her (the director of nursing’s)
involvement. Accordingly, I conclude that any authority Janel
McMahon possesses with regard to issuing verbal or written
warnings is insufficient to confer supervisory status. North-
crest Nursing Home, 313 NLRB 491, 497 (1993); Lakeview
Health Center, 308 NLRB 75, 78–79 (1992).
(2) Authority to send employees home. The record estab-
lishes that Janel McMahon has the authority to send an em-
ployee home in circumstances involving abuse of a patient or
intoxication, and that she in fact exercised that authority on at
least one occasion. However, the Board has held that the au-
thority to send an employee home in response to an egregious
or flagrant violation of personnel policies, particularly in cir-
cumstances implicating patient safety or care, is insufficient to
confer supervisory authority. Riverchase Health Care Center,
304 NLRB 861, 865 (1991). Moreover, on the one occasion
that McMahon sent an employee home she simply followed the
director of nursing’s instructions as explained to her by Eve-
ning Supervisor Poff. Accordingly, I conclude that McMa-
hon’s conduct on this occasion is insufficient to establish that
she exercised independent judgment or discretion in sending
the employee home.
(3) Authority, under appropriate circumstances, to terminate
employees. The director of nursing testified that night supervi-
sors have the authority to terminate an employee in connection
with physical abuse of a resident. However, she further testi-
fied that “I would always oversee what they have done”; that a
night supervisor “would also need to run it [a decision to termi-
nate] by me”; and that a decision to terminate “should always
be run by me regardless.” Thus, the director of nursing’s testi-
mony establishes that the night supervisors cannot take action
that directly affects employee status without her direct in-
volvement and review even in the extreme circumstance of
physical abuse of a resident. Accordingly, and on the basis of
the authorities cited above, I conclude that the limited authority
testified to by the director of nursing is insufficient to confer
supervisory status.

(4) Authority to effectively recommend termination of em-
ployees. The director of nursing testified generally that she
would give great weight to a night supervisor’s recommenda-
tion that an employee be terminated. The record does not con-
tain any examples of such recommendations or how the Em-
ployer acted on them. This is “scant evidence” of the existence
of supervisory authority. Northern Montana Health Care, 324
NLRB 752, 753 (1997). The director of nursing also testified
that she would give the same weight to such a recommendation
made by a licensed practical nurse as she would to one made by
Janel McMahon. Since as previously noted the parties agree
that licensed practical nurses are not supervisors within the
meaning of the Act, I conclude that any authority McMahon
has in this regard is insufficient by itself to establish supervi-
sory status.
(5) Ability to direct staffing issues, including calling em-
ployees in and approving overtime. The record establishes that
the night supervisors have the authority to call employees in to
work, including in situations that would involve overtime pay;
and to call a nursing pool. The record further establishes that
this authority is limited to situations where additional staff are
needed to cover shortages. However, the record fails to af-
firmatively show that the night supervisors exercise independ-
ent judgment or discretion in calling in employees or calling a
nursing pool. Rather, the record establishes that Janel McMa-
hon simply goes down the schedule and calls on call employees
first in order to ensure that there are sufficient staff on duty to
meet patient care needs. The performance of this function is
routine in nature and does not require the exercise of independ-
ent judgment and discretion. It is therefore insufficient to es-
tablish supervisory status. Lakeview Health Center, 308 NLRB
at 79.
(6) Authority to determine when discipline is appropriate.
In response to the question whether “the night supervisor has
any authority to excuse certain misconduct issues depending on
the circumstances of the case?”, the director of nursing re-
sponded, “Yes. On my discretion. She would need to commu-
nicate that to me.” Thus, the director of nursing’s testimony
establishes that any discretion night supervisors have with re-
gard to determining the appropriateness of discipline is subject
to her review and determination; and that therefore the night
supervisors do not exercise independent judgment and discre-
tion in this regard.
(7) Responsible for security issues. The record establishes
that the night supervisors have overall responsibility for main-
taining the security of the Employer’s facility. However, re-
sponsibility for maintaining the physical integrity of property is
not, in itself, sufficient to confer supervisory status. Graham
Transportation Co., 124 NLRB 960, 962 (1959).
(8) Exercises supervisory authority and functions in the
course of directing and assigning nonsupervisory employees.
The record establishes that certified nursing assistants perform
such duties as bathing, dressing, grooming, walking and reposi-
tioning residents; and that the duties certified nursing assistants
perform on a daily basis are set forth in a daily care plan pre-
pared for each resident. McMahon testified without contradic-
tion that she tells the certified nursing assistants at the begin-
ning of the shift what they are supposed to do; that the certified
GREEN ACRES COUNTRY CARE CENTER 261
nursing assistants generally know what they are supposed to do
and require very little direction; that the duties of certified nurs-
ing assistants remain essentially the same from day to day; and
that she actually spends approximately 15 percent of her time
directing the work of certified nursing assistants. In these cir-
cumstances, I conclude that the record fails to affirmatively
establish that McMahon exercises independent judgment and
discretion in assigning and directing the work of the certified
nursing assistants. Northern Montana Health Care, 324
NLRB, supra. See generally Providence Hospital, 320 NLRB
806 (1996).