Loyalhanna Care Center

National Labor Relations Board - Board Decisions

Jun 30, 2008

352 N.L.R.B. 863 (N.L.R.B. 2008)

LOYALHANNA CARE CENTER
352 NLRB No. 105
863
Loyalhanna Health Care Associates t/d/b/a Loyal-
hanna Care Center, a Pennsylvania Limited
Partnership and Cynthia A. Clark and Erica J.
Lewis and Melanie M. Fritz. Cases 6–CA–28609,
6–CA–28676, and 6–CA–28676–2
June 30, 2008
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On April 7, 1998, Administrative Law Judge Irwin H.
Socoloff issued a decision in this proceeding. The Gen-
eral Counsel filed exceptions and a supporting brief, the
Respondent filed an answering brief, and the General
Counsel filed a reply brief.
On October 30, 2000, the Board issued a decision re-
versing Judge Socoloff’s findings that registered nurse
managers, Cynthia A. Clark, Erica J. Lewis, and Melanie
M. Fritz, were statutory supervisors. See 332 NLRB 933
(2000). In doing so, the Board, citing Providence Hospi-
tal, 320 NLRB 717, 729 (1996), found that the nurse
managers did not exercise independent judgment in di-
recting aides because “[s]uch direction reflects nothing
more than the exercise of the nurses’ greater training,
skill, and experience in helping less skilled employees
perform their jobs correctly.” 332 NLRB at 935. Having
found that Clark, Lewis, and Fritz were not statutory
employees, the Board further found that the Respondent
violated the Act by threatening, disciplining, and dis-
charging them because they engaged in protected con-
certed activities. Id. at 936.
The Respondent petitioned for review of the Board’s
decision to the United States Court of Appeals for the
Third Circuit, and the Board filed a cross-application for
enforcement. In January 2001, the Board filed in the
Third Circuit an unopposed motion to hold the case in
abeyance, pending a decision by the Supreme Court in
Kentucky River Community Care, Inc. v. NLRB. On May
29, 2001, the Supreme Court issued its decision in that
case, in which it rejected the rationale of Providence
Hospital, supra, with respect to “independent judgment”
as that term is used in Section 2(11) of the Act. See 532
U.S. 706 (2001).
After Kentucky River issued, the Board filed in the
Third Circuit an unopposed motion to remand these pro-
ceedings. On October 30, 2001, the court granted the
Board’s motion and remanded the proceedings to the
Board for further consideration. The Board notified all
parties that it had accepted the court’s remand and in-
vited the parties to file statements of position as to the
issues on remand, specifically whether nurse managers,
Clark, Lewis, and Fritz, exercised independent judgment
in assigning or responsibly directing subordinate em-
ployees. The Respondent and the General Counsel filed
statements of position arguing, respectively, in favor of
and against the nurses’ supervisory status.
On September 29, 2006, the Board issued its decisions
in Oakwood Healthcare, Inc., 348 NLRB 686, Croft
Metals, Inc., 348 NLRB 717, and Golden Crest Health-
care Center, 348 NLRB 727, in light of the Supreme
Court’s decision in Kentucky River, supra. On Septem-
ber 30, 2006, the Board remanded the instant case to the
chief administrative law judge (as Judge Socoloff had
retired) for further consideration in light of Oakwood
Healthcare, Croft Metals, and Golden Crest. 348 NLRB
917 (2006). On remand, the case was assigned to Ad-
ministrative Law Judge Arthur J. Amchan.
On April 16, 2007, Judge Amchan issued the attached
decision. The Respondent filed exceptions, and the Gen-
eral Counsel filed an answering brief and limited cross-
exceptions.
The National Labor Relations Board1 has considered
the judge’s decision and the record in light of the excep-
tions, cross-exceptions, and supporting briefs. For the
reasons that follow, we adopt the judge’s finding that
nurse managers were not statutory supervisors because
the Respondent failed to show, by a preponderance of the
evidence, that these nurses exercised independent judg-
ment while assigning or responsibly directing other em-
ployees. We deny the Respondent’s remaining excep-
tions to the judge’s decision, and we adopt the recom-
mended Order as modified.2
Analysis
I. INDEPENDENT JUDGMENT: ASSIGNING AND
RESPONSIBLY DIRECTING
The judge found that the nurse managers did not exer-
cise independent judgment in either assigning or respon-
sibly directing employees. We agree.3

1 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.
2 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Ferguson Electric Co., 335 NLRB 142 (2001). We shall substitute
a new notice in accordance with our decision in Ishikawa Gasket Amer-
ica, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004).
3 Because we find that the nurse managers were not supervisors
based on the Respondent’s failure to show the exercise of independent
judgment, we find it unnecessary to pass on the judge’s findings that
the nurse managers did not possess the authority to assign, but did
possess the authority to responsibly direct, other employees. We never-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD864
In Oakwood Healthcare, the Board found that a charge
nurse exercised independent judgment when she made
assignments based on her “analysis of an available
nurse’s skill set and level of proficiency at performing
certain tasks, and her application of that analysis in
matching that nurse to the condition and needs of a par-
ticular patient.” 348 NLRB 686, 696. The supporting
evidence must be sufficient to establish that nurses
“make assignments that are both tailored to patient con-
ditions and needs and particular [employees’] skill sets.”
Id. at 12. Merely conclusory testimony that staffing
needs are based on an assessment of “patient acuity” is
insufficient to establish independent judgment. Lynwood
Manor, 350 NLRB 489, 490 (2007).
Here, Director of Nursing Carol Miller testified gener-
ally that nurse managers “determine the acuity level . . .
of the residents on the floor” and reassign staff accord-
ingly, such as by assigning more than one aide to a par-
ticular patient. As in Lynwood Manor, we find such tes-
timony to be merely conclusory and hence insufficient to
establish independent judgment. Moreover, there is no
evidence that, in deciding which aides to assign, the
nurse managers considered the particular aides’ skill sets
and matched those skills to the condition and needs of
particular patients.
Neither has the Respondent demonstrated that nurse
managers exercised independent judgment based on their
alleged authority to release subordinates early in cases of
illness or family emergency. In this regard, Miller testi-
fied in general terms that “[w]e have had cases” in which
the Respondent’s nurses released subordinates early un-
der such circumstances. Miller could provide no exam-
ples, however, and as noted above, purely conclusory

theless modify several of the judge’s statements regarding applicable
standards under Oakwood for establishing responsible direction. In
finding that the nurse managers possessed the authority to responsibly
direct aides, the judge drew an “inference” that, if an aide failed to
perform a task as directed by a nurse manager, the nurse manager
would have suffered an adverse personnel action. The judge’s reliance
on such an “inference” rather than on record evidence conflicts with the
Board’s mandate in Oakwood, supra, that
to establish accountability for the purposes of responsible direction, it
must be shown that the employer delegated to the putative supervisor
the authority to direct the work and the authority to take corrective ac-
tion, if necessary. It must also be shown that there is a prospect of ad-
verse consequences for the putative supervisor if he/she does not take
these steps.
Id. at 495 (emphasis added).
In addition, the judge stated that accountability means that “some
adverse consequence must befall the one providing the oversight if the
task performed by the employee is not performed properly” [emphasis
added]. As the passage above from Oakwood states, however, account-
ability requires only the “prospect” of adverse action. Thus, the judge
incorrectly stated that such adverse action is necessary to finding su-
pervisory status.
evidence is not sufficient to establish supervisory author-
ity. See Lynwood Manor, supra; see also Avante at Wil-
son, Inc., 348 NLRB 1056, 1057 (2006) (finding insuffi-
cient to establish supervisory authority manager’s testi-
mony that she was “familiar with [staff nurses] sending
[a CNA] home”) (alterations in original); Golden Crest,
supra at 921. Moreover, the Board has found that a puta-
tive supervisor does not exercise independent judgment
merely by permitting a sick employee to leave work
early. Sam’s Club, 349 NLRB 1007, 1014 (2007); Shaw,
Inc., 350 NLRB 354, 357 (2007) (finding authority to
allow employees to leave work shortly before the end of
their workday insufficient to show independent judg-
ment).
In sum, the Respondent’s evidence was insufficient to
demonstrate that nurse managers exercised independent
judgment when assigning or responsibly directing other
employees.4
II. RESPONDENT’S REMAINING EXCEPTIONS
A. Nurse Managers’ Job Description
The Respondent contends that language in the nurse
managers’ job descriptions and in its operational policies
demonstrates supervisory authority. The Board has held,
however, that employer-prepared job descriptions are not
controlling; what matters are the authority that an indi-
vidual actually possesses and the work that the individual
actually performs. Oakwood Healthcare, supra at 690
fn. 24. As demonstrated above, the nurse managers’ ac-
tual duties and authorities do not show supervisory
status, and a job description alone is insufficient to carry
the respondent’s burden.
B. Highest-Ranking Employees on Duty
The Respondent argues that the nurse managers were
supervisors because they were the highest-ranking em-
ployees on duty at the nursing home from 14 to 16 hours
a day. We reject this argument.
Certain judicial authority cited by the Respondent
notwithstanding,5 the Board has continued to hold that an

4 In reaching this conclusion, we do not rely on the judge’s statement
that nurse managers do not exercise independent judgment because
they “assign and direct aides to perform tasks that are routinely and
necessarily performed in any nursing home.” In this connection, it
appears that the judge was using the terms “routinely and necessarily”
to refer to any tasks that are regularly assigned or performed in nursing
homes. The fact that a task is regularly assigned or performed does not
preclude the possibility that such regular assignments require the exer-
cise of independent judgment.
5 See Kentucky River Community Care, Inc. v. NLRB, 193 F.3d 444
(6th Cir. 1999) (relying, among other factors, on registered nurses’
status as highest-ranking employees on duty in finding that nurses were
supervisors), affd. 532 U.S. 706 (2001); Glenmark Associates, Inc. v.
NLRB, 147 F.3d 333 (4th Cir. 1998) (same). We note that, in affirming
the Sixth Circuit’s decision in Kentucky River, the Supreme Court did
LOYALHANNA CARE CENTER 865
employee’s service as the highest-ranking employee on
duty is a secondary indicium of supervisory status that,
by itself, is insufficient to demonstrate supervisory
status. See, e.g., Golden Crest, 348 NLRB 727, 730 fn.
10. Other courts of appeals have approved the Board’s
holding in this regard.6 See Jochims v. NLRB, 480 F.3d
1161, 1165, 1173–1174 (D.C. Cir. 2007) (finding indi-
vidual’s status as “weekend supervisor” and “the highest
ranking employee at the facility on the weekend” an in-
sufficient basis for finding supervisory status); NLRB v.
Olney IGA Foodliner, 870 F.2d 1279, 1283 (7th Cir.
1989) (“Occasionally working as the highest ranking
employee, even if regularly scheduled to do so, is not
determinative.”); NLRB v. McCullough Environmental
Services, 5 F.3d 923, 941 fn. 28 (5th Cir. 1993) (holding
that “lack of supervision, by itself, is insufficient to con-
fer supervisory status,” although “it is indicative of su-
pervisory status”). Further, the fact that nurse managers
could call Miller 24 hours a day, 7 days a week undercuts
the Respondent’s reliance on the nurses’ supervisory
status as highest-ranking employees on duty. See
Golden Crest, supra at 730 fn. 10 (finding that service as
highest-ranking employee on duty was “even less proba-
tive where management is available after hours”). Thus,
we deny this exception.
C. Evidentiary Standard
The Respondent argues that the judge found that nurse
managers were not supervisors by applying an incorrect
evidentiary standard. Specifically, the Respondent
claims that the nurse managers’ written job descriptions
and Miller’s testimony were sufficient to establish a
“prima facie” case of supervisory status, and that the
burden then shifted to the General Counsel to produce
affirmative evidence that the nurse managers were not
supervisors. The Board has never held, however, that the
burden of going forward with evidence of supervisory
status ever shifts to the nonasserting party. Rather, the
party that asserts supervisory status retains the burden of
proving that status by a preponderance of the evidence.
See, e.g., Croft Metals, supra at 717, 721. For the rea-
sons stated by the judge as modified herein, the Respon-
dent has failed to sustain that burden.
D. Authority to Discipline
Finally, the Respondent argues that nurse managers are
supervisors based on their alleged authority to discipline
other employees. For the reasons stated by the judge, we
deny this exception. First, the Board’s remand order did
not encompass this issue. Moreover, the Respondent’s

not give any indication that it was agreeing with this aspect of the Sixth
Circuit’s decision.
6 There is no Third Circuit precedent on this point.
evidence showed mere “paper authority” to discipline,
not actual authority as required to establish supervisory
status. Golden Crest, supra at 921; Training School of
Vineland, 332 NLRB 1412, 1416, 1417 (2000).
In sum, we find no merit in the Respondent’s excep-
tions, and we adopt the judge’s decision as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Loyal-
hanna Health Care Associates, t/d/b/a Loyalhanna Care
Center, Latrobe, Pennsylvania, its officers, agents, suc-
cessors and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraphs 2(a) through
(c) and reletter the subsequent paragraphs accordingly.
“(a) Within 14 days from the date of this Order, offer
Cynthia A. Clark, Erica J. Lewis, and Melanie M. Fritz
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
“(b) Make Cynthia A. Clark, Erica J. Lewis, and
Melanie M. Fritz whole for any loss of earnings or other
benefits suffered as a result of the discrimination against
them. Backpay shall be calculated in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
“(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful disci-
pline of Erica J. Lewis and Melanie M. Fritz, and the
unlawful discharges of Cynthia A. Clark, Erica J. Lewis,
and Melanie M. Fritz, and within 3 days thereafter notify
the employees in writing that this has been done and that
the discipline and discharges will not be used against
them 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 backpay due
under the terms of this Order.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD866
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 threaten employees with the loss of their
nursing licenses for engaging in protected concerted ac-
tivities.
WE WILL NOT warn or otherwise discipline employees
for engaging in protected concerted activities.
WE WILL NOT discharge employees for engaging in pro-
tected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Cynthia A. Clark, Erica J. Lewis, and
Melanie M. Fritz full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Cynthia A. Clark, Erica J. Lewis, and
Melanie M. Fritz whole for any loss of earnings and
other benefits resulting from their discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful disciplinary warnings issued to Erica J. Lewis and
Melanie M. Fritz, and to the unlawful discharges of Cyn-
thia A. Clark, Erica J. Lewis, and Melanie M. Fritz, and
WE WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the disciplinary
warnings and discharges will not be used against them in
any way.
LOYALHANNA HEALTH CARE ASSOCIATES
T/D/B/A LOYALHANNA CARE CENTER
David L. Shepley and Joann F. Dempler, Esqs., for the General
Counsel.
Michael E. Flaherty and Robert J. Cromer, Esqs. (Karlowitz,
Cromer & Flaherty, P.C), of Pittsburgh, Pennsylvania, for
the Respondent.
SUPPLEMENTAL DECISION ON REMAND
ARTHUR J. AMCHAN, Administrative Law Judge. This case is
before me pursuant to the Board’s Order of September 30,
2006, remanding this matter for further consideration in light of
the decisions in Oakwood Healthcare, Inc., 348 NLRB 686;
Golden Crest Healthcare Center, 348 NLRB 727; and Croft
Metals, Inc., 348 NLRB 717. The Board issued these decisions
on September 29, 2006, addressing the issues of what “assign,”
“responsibility to direct” and “independent judgment” mean as
used in the definition of “supervisor” in Section 2(11) of the
Act. The parties have been accorded the opportunity to reopen
the record, which they have declined, and to file briefs on the
issues raised in the above-cited cases. Both the General Coun-
sel and Respondent filed briefs regarding the remanded issues.
Procedural History and Chronology
November 19, 1996–January 3, 1997: Original charges filed.
February 28, 1997: The General Counsel issues his com-
plaint.
May 14, 1997: evidentiary hearing before NLRB Adminis-
trative Law Judge Irwin Socoloff.
April 7, 1998: Judge Socoloff’s decision dismissing the
complaint on the grounds that the three charging parties were
“supervisors” pursuant to Section 2(11) of the Act.
October 30, 2000: NLRB decision (332 NLRB 933) revers-
ing Judge Socoloff on the supervisory issue and ordering Re-
spondent, Loyalhanna Care Center, to offer the three charging
parties reinstatement and compensation for any loss of earnings
or other benefits resulting from Respondent’s violations of
Section 8(a)(1).
October 30, 2001: The United States Court of Appeals for
the Third Circuit granted the Board’s motion to remand this
case for reconsideration in light of the decision of the United
States Supreme Court in Kentucky River Community Health
Care v. NLRB, 532 U.S. 706 (2001).
September 29, 2006: Board decision in Oakwood Health-
care, etc.
September 30, 2006: Board order remanding this case.
February 26, 2007: Assignment to this judge.
February 27, 2007: Order requiring briefs no later than April
6, 2007.
Decision on the Merits
The remand order does not authorize this judge to evaluate
this case on the merits. Thus, I am bound by the factual find-
ings and conclusions of Judge Socoloff and the Board’s 2000
decision. To briefly summarize, the factual context of this case
is as follows:
The charging parties were at all material times, registered
nurses (RNs) at Respondent’s nursing home in Latrobe, Penn-
sylvania. Their titles were “nurse/manager.” On September
25, 1996, one of the Charging Parties, Cynthia Clark, com-
plained to Assistant Director of Nursing (ADON) Jacqueline
Gaydar about being scheduled for work on a Saturday. When
Gaydar showed Clark that she had agreed to this assignment,
LOYALHANNA CARE CENTER 867
Clark apologized. As the conversation continued, Clark and
another of the Charging Parties, RN Melanie Fritz, complained
to Gaydar about wages at Respondent’s facility, staffing levels,
and other working conditions. Charging Party Erica Lewis was
present during this discussion.
The next day, Carol Miller, the director of nursing (DON)
fired Clark and disciplined Fritz for being disrespectful towards
Gaydar, an allegation which they denied. Gaydar did not tes-
tify before Judge Socoloff. Thus, he credited the only first-
hand accounts of the September 25 meeting, i.e., that of the
charging parties.
Fritz and Lewis testified on Clark’s behalf at an unemploy-
ment insurance hearing on November 8, 1996. Respondent
disciplined them both immediately afterwards for what Judge
Socoloff found were discriminatory reasons. Fritz and Lewis
gave Respondent 2-week resignation notices on November 11.
Respondent discharged Fritz and Lewis almost immediately.
Judge Socoloff and the Board found these actions to be dis-
criminatory, as well as Respondent’s discharge of Clark and the
disciplinary notices issued to all three nurses.
Judge Socoloff’s Decision and the Board’s Reversal
of That Decision
Section 2(11) of the Act, defines “supervisor” as “any indi-
vidual 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 effectively to recommend
such action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.” An individual who
is a “supervisor” pursuant to Section 2(11) is excluded from the
definition of “employee” in Section 2(3) of the Act and there-
fore does not have the rights accorded to employees by Section
7 of the Act.
A party seeking to exclude an individual from the category
of an “employee” has the burden of establishing supervisory
authority. The exercise of independent judgment with respect
to any one of the factors set forth in Section 2(11) establishes
that an individual is a supervisor. However, not all decision-
making constitutes the independent judgment necessary to es-
tablish that an individual is a statutory supervisor.
Judge Socoloff found that all three charging parties were su-
pervisors on the grounds that they responsibly assigned and
directed Respondent’s nurses’ aides, called aides in for work
and allowed them to take time off. The Board reversed the
judge, relying at least in part on its decision in Providence
Hospital, 320 NLRB 717, 720 (1996). In Providence Hospital,
the Board stated that “Section 2(11) supervisory authority does
not include the authority of an employee to direct another to
perform discrete tasks stemming from the directing employee’s
experience, skills, training or position. . . .” The Providence
Hospital rationale was explicitly rejected by the U.S. Supreme
Court in Kentucky River Community Care, Inc., 121 S.Ct. 1861,
1868 fn. 1 (2001).
The Board also concluded that the charging parties did not
have to use independent judgment in calling employees in for
work, releasing employees from work early, requiring them to
stay at work beyond the end of their shift, or in assigning work
to the aides, Loyalhanna Care Center, 332 NLRB 933, 935–
936 (2000).
Facts Bearing on Whether or Not the Charging Parties Were
“Supervisors” Pursuant to Section 2(11) of the Act
In the fall of 1996/spring of 1997, Respondent operated a
116–120 bed facility. This included a unit for skilled nursing
care, rehabilitation nursing services, respite care and an Alz-
heimer unit. Loyalhanna employed about 120 individuals,
including about 20 registered nurses (RNs), 8 licensed practical
nurses (LPNs) and 45–50 certified and uncertified nursing as-
sistants. Overseeing the nursing staff were three individuals,
who all parties deemed to be statutory supervisors, DON Carol
Miller; ADON Jacqueline Gaydar, and Resident Care Coordi-
nator Jeanette Ream.
Residents needing more skilled nursing care lived in the
North wing of the building; those needing less skilled care were
quartered in the South wing. In May 1997, there were about 55
residents living in each wing. The North wing was generally
staffed by RNs working with nurses’ aides; the South wing was
generally staffed by LPNs working with nurses’ aides. The
North wing had two hallways or corridors; generally one RN
serviced one corridor and another serviced the second. Both
staff RNs and staff LPNs held the title of “nurse/manager.”
Nurses were assigned to four shifts: 7–3:30 p.m.; a floating
shift 8–4; a 3–11:30 p.m. shift, and an 11 p.m. to 7:30 a.m.
shift. By state law, a RN must be at the facility at all times.
Direction of Lower Rank Employees
The job description signed by each of the charging parties’
states that part of their main duties and responsibilities is to
review and interpret work performance against accepted stan-
dards (R. Exh. 2). The job description does not indicate whose
work performance is to be reviewed and interpreted and there is
no evidence that this sentence in the job description was ever
explained to the charging parties. However, DON Miller testi-
fied that it means that the RNs are responsible for making sure
that the care rendered by the aides, LPNs and other employees
are delivered in a safe and efficient way. In Clark’s April 1996
performance review, one of her major strengths was described
as the fact that she is “confident and can take charge of subor-
dinates.”
A job description for a nurse’s aide, signed in July 1995 by
Charging Party Clark, states that an aide is to “perform as-
signed duties at the direction and under the supervision of the
Nurse Manager.” It also more specifically states that a nurse’s
aide “performs nursing procedures as directed by the nurse
manager, i.e., specimen collection, intake and output observa-
tion and recording, bladder and bowel training, vital signs,
weight, etc.”
The charging parties were responsible for assuring that the
aides had the side rails up on the residents’ beds and that the
aides made sure that each resident had easy access to a call
button.
Discipline of Other Employees
The charging parties’ job descriptions also state that they
have the ability to reprimand and/or discipline personnel. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD868
record, however, contains no evidence that any of the charging
parties ever did more than record the facts of alleged miscon-
duct by other employees on Respondent’s employee warning
report form. They neither administered discipline nor recom-
mended whether and/or to what extent any other employee
should be disciplined. While DON Miller testified that she
generally follows the RN/nurse manager’s recommendations
regarding discipline, she gave no specific examples as to when
she had done so. Indeed, Miller’s very generalized testimony
indicates that in administering discipline she gives considerable
weight to factors other than a nurse manager’s recommenda-
tion. She also testified that the LPNs have the same discipli-
nary authority as RNs.
The only evidence in this record of an RN administering dis-
cipline is Miller’s testimony that at some unspecified time in
the past she, as an RN/nurse manager, had sent an LPN home
and called in a replacement because the LPN had left Respon-
dent’s facility during her shift to eat. She apparently did so
without checking first with higher authority. Respondent’s
employee handbook states that “leaving the premises during
working hours” is unacceptable conduct for which an employee
may be disciplined. There is no evidence in this record as to
whether the offending LPN was paid for the hours after Miller
sent her home or whether or not she was disciplined in any
other manner. There is also no evidence as to whether Miller
was authorized to take such action.
Assignment of Other Employees
Jennifer Ream, Respondent’s resident care coordinator, as-
signed both nurses and aides to the dates, the shifts, and the
wings on which they would work. The nurse managers could
allocate work loads for an aide in situations such as one in
which fewer aides showed up for work than were scheduled.
Also, if an LPN called in to say he or she was not coming to
work, a RN/nurse manager would go to a telephone list to pro-
cure a replacement. However, if the replacement employee
would be working overtime, the nurse manager was required to
get approval from higher management.
Ream also assigned break periods to LPNs and aides. A
RN/nurse manager could alter this schedule if necessary due to
emergencies or the volume of work. On the night shift and
most of the 3–11 shift, when neither Miller, Gaydar, nor Ream
were at the facility, the RNs were the highest ranking individu-
als present at Respondent’s nursing home.1
Judge Socoloff found that, “the registered nurses can, in the
exercise of their discretion, permit early dismissal of other em-
ployees, for example, in the case of illness or family emer-
gency.” The Board did not disturb this finding in its 2000 deci-
sion. However, I note that the evidence of record on this point,
appears, as argued by the General Counsel at page 14 of his
brief, to consist of “purely conclusory evidence,” which the
Board found in Golden Crest to be insufficient to establish
supervisory status, supra at 731.

1 Nothing in the statutory definition of “supervisor” suggests that
service as the highest ranking employee on site requires finding that
such an employee must be a statutory supervisor, Training School at
Vineland, 332 NLRB 1412 (2000).
At transcript page 143, Respondent’s counsel elicited the fol-
lowing testimony from DON Miller:
Q. Do RNs have the authority to permit early dis-
missal of subordinates? I am talking about LPNs and
nurse’s aides?
A. Yes, they do.
Q. For what reason?
A. Frequently, if they—another employee becomes ill
on their shift, the RNs are the ones that have the ultimate
say if it’s an on shift to release them to go ahead and go
home. We have had cases where families have called in,
there is a family emergency at home, the RNs have re-
leased that person from work at that point in time.
Miller gave no specific examples as to when this occurred
and there are no provisions either in Respondent’s employee
handbook or in the nurse manager’s job description that gives
nurse managers such authority. There is also no evidence that
any of the charging parties were told that they had authority to
excuse an employee before or during a shift without seeking
approval from Miller, Gaydar, or Ream. Moreover, Respon-
dent’s employee handbook (GC Exh. 2 at p. 5) suggests that it
is each employee’s responsibility to find a suitable replacement
if they are not able to work their assigned shift.
The nurse managers would on occasion direct an aide to an-
swer a resident’s call button and remind them to be certain that
a resident’s side rails were raised. Aides were to notify the
nurse manager if a resident had a temperature in excess of 99
degrees. Nurse managers could assign an aide to do a task,
such as bathing a resident, in place of the aide assigned to a
resident, if the assigned aide could not perform the task.2
While discussing workloads on September 25, 1996, ADON
Gaydar informed Charging Parties Clark and Fritz that if they
needed help in the North wing, they could require an LPN from
the South wing to assist them and that it was their duty to do so.
Clark and Fritz responded that the LPNs in the South wing
simply ignored their requests for assistance due to their own
workload.
Application of the Oakwood Healthcare, Croft Metals, and
Golden Crest Decisions to the Facts of This Case
In Oakwood Healthcare, supra at 694, the Board reaffirmed
the principle that the “burden of proving supervisory status
rests on the party asserting that such status exists.” Respondent
has failed to meet its burden of proof in this case.
Responsibility to Direct
The Board in Oakwood Healthcare stated that to meet the
criteria for “supervisor’ based on the ability to responsibly di-
rect employees, an individual must be accountable for the per-
formance of the task by the other person, such that some ad-
verse consequence must befall the one providing the oversight
if the task performed by the employee is not performed prop-
erly. The fact that Charging Party Clark was rated on her abil-
ity to “take charge of subordinates” in her 1996 performance

2 There is no evidence that this ever happened. This finding is
predicated on Erica Lewis’ answer to a hypothetical question from
Respondent’s counsel.
LOYALHANNA CARE CENTER 869
review does not establish that she or any other nurse manager
was a supervisor. In order to establish her supervisory status on
this basis, Respondent would also have to establish that some
adverse consequence could befall a nurse manager from a poor
rating in this respect, or that a positive consequence of favor-
able rating would result, Golden Crest Healthcare Center, su-
pra at 731.
Focusing solely on the accountability factor, there is no di-
rect evidence that any RN/nurse manager was disciplined by
Respondent because a nurse’s aide did not perform a task.
However, it is almost axiomatic that if an aide doesn’t answer a
call button, bathe a patient, etc., the nurse on that corridor is
going to be held accountable—unless the nurse gets somebody
else to perform the task in a timely fashion.
The Board in Oakwood also stated that, “the concept of ac-
countability creates a clear distinction between those employees
whose interests, in directing other employees’ tasks, align with
management from those whose interests, in directing other
employees, is simply the completion of a certain task.” This
test is extremely difficult to apply in the abstract. In directing
an aide to answer a call button, the nurse obviously is mainly
concerned with the completion of the task, but is also acting in
the interests of management, who would dearly like to avoid
getting complaints from the resident’s family.
In Oakwood and Golden Crest, the Board found that the em-
ployer had not demonstrated that its charge nurses were held
accountable for the job performance of others, i.e., no evidence
that charge nurses must take corrective action if other staff
members fail to complete a task and no evidence that the charge
nurses are subject to discipline if other staff members fail to
perform specific tasks. Particularly in the nursing home con-
text, where RNs and LPNs typically work in conjunction with
nurses’ aides, it is hard to imagine a situation in which compe-
tent counsel, after reading these opinions, would be unable to
establish that any RN or LPN in a nursing home had the ability
to responsibly direct the aides working with them.
Employer’s counsel, wishing to establish supervisory status,
will certainly not elicit the kind of testimony counsel elicited in
Golden Crest, i.e., that the ADON instructed nurses that they
are not allowed, under any circumstances, to send aides home
early, that the ADON reprimanded a nurse who sent an intoxi-
cated aide home or that RNs were prohibited from requiring
LPNs or aides to help them under any circumstances. In fact,
one can rest assured that competent counsel will be able to
elicit testimony to the contrary.
If a resident was to fall out of bed because an aide failed to
raise the guardrails and the resident’s family complains to the
nursing home or threatens to file a lawsuit, it is highly unlikely
that the RN or LPN responsible for the resident will be able to
avoid responsibility by blaming the aide. Any competent attor-
ney representing a nursing home should be able to elicit testi-
mony from its witnesses that adverse consequences would be-
fall an RN or LPN in such a situation. I conclude that the
Charging Parties Clark, Fritz, and Lewis had the ability to re-
sponsibly direct the nurses’ aides who worked in their wing of
Respondent’s nursing home. I do so because I draw an infer-
ence that had an aide failed to raise a patient’s bedrails, as di-
rected by one of the charging parties, that RN/nurse manager
may have suffered an adverse personnel action. The next issue
to consider is whether they had to exercise independent judg-
ment in doing so.
Independent Judgment
The Board in Oakwood, citing the Supreme Court decision in
Kentucky River, stated that it must assess the degree of discre-
tion exercised by a individual in determining whether they fall
into the Section 2(11) category of “supervisor.” The Board
stated the individual’s judgment must involve a degree of dis-
cretion that rises above the “routine or clerical.” In order to be
a statutory supervisor, an employee must make decisions that
are more than “routine or clerical” with regard to one or more
of the statutory indicia of supervisory status. These indicia
concern an individual’s relationship to employees; not to pa-
tients, residents, customers, or clients. Thus, a RN’s decision to
call a physician because of a resident’s condition, even though
it may be more than routine, has nothing to do with the issue of
whether or not that nurse is, or is not, a 2(11) supervisor.3
In the Oakwood decision, supra at 693–694, the Board stated
that, “if there is only one obvious and self-evident choice,” an
individual is not exercising the degree of discretion that quali-
fies one as a “supervisor.” The Board gave an example of such
a routine or clerical decision: one in which a charge nurse as-
signs the one available nurse fluent in American sign language
(ASL) to a patient dependent on ASL. At page 11, the Board
describes the assignment of a nurse who is particularly good at
peritoneal dialysis to a patient who requires such treatment as
an example of a nonroutine or nonclerical decision. It seems to
me that both decisions are obvious and self-evident. In these
situations, any rational person would assign the nurse with
special expertise to the patient needing their expertise—unless
there was some other countervailing consideration. In any
health care context, an RN might, for example, decide to assign
a Spanish-speaking employee to assist in the care of a Spanish-
speaking patient. If such a decision is not deemed “routine or
clerical,” virtually every RN or LPN, and most certainly those
working in nursing homes fall within the definition of “supervi-
sor” in Section 2(11).
The record herein does not reflect sufficient discretion on the
part of RNs who were “nurse managers” in assigning and di-
recting LPNs and/or aides to establish their supervisory status.
What the record shows is that “nurse managers” assign and
direct aides to perform tasks that are routinely and necessarily
performed in any nursing home. Moreover, the record fails to
indicate any significant degree of discretion in the nurse man-
ager’s selection of an aide to perform a task or in the instruc-
tions given by the nurse to the aide as to how to perform any
particular task.
To the extent the RN nurse managers reassigned aides during
a shift, the record establishes only that they did so solely on the
basis of the quantity of work. Such determinations do not in-
volve the exercise of independent judgment, Oakwood Health-
care, supra at 697.

3 R. Br. at p. 5 recognizes this principle. However, at p. 7, Respon-
dent relies on a nurse’s authority to decide whether to summon a physi-
cian or send a patient to the hospital, in support of its argument that the
charging parties were supervisors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD870
Similarly, assuming that this record supports a finding that
the charging parties had such authority, their ability to allow
employees to leave early in the event of illness or a family cri-
sis does not require the exercise of sufficient independent
judgment to make them “supervisors,” K.W. Electric, Inc., 342
NLRB, 1231, 1235–1236 (2004); Eventide South, 239 NLRB
287, 288 (1989); Jochims v. NLRB, No. 05-1455, 2007 WL
860854 (D.C. Cir. 2007) reversing Wilshire at Lakewood, 345
NLRB 1050 (2005).
While it is true that the nurse/managers do not recommend
how an aide, LPN, or even another RN should be disciplined,
the decision as to whether to inform higher level management
as to another individual’s misconduct, may require a bit of dis-
cretion. Nevertheless, Board law is quite clear unless the puta-
tive supervisor’s actions result in an adverse personnel action
without independent investigation or review by other supervi-
sors, his or her recommendation or report is insufficient
grounds on which to find supervisory status, Phelps Community
Medical Center, 295 NLRB 486, 490 (1989); Ten Broeck
Commons, 320 NLRB 806, 812 (1996); Jochims v. NLRB, su-
pra.
Assign4
In Oakwood Healthcare, the Board stated that to meet the
criteria for “supervisor’ based on an individual’s authority to
“assign” other employees, an individual must designate the
overall duties of an employee, not simply give ad hoc instruc-
tions to an employee to perform a discrete task. On this record,
it is clear that the charging parties are not “supervisors” due to
their ability to assign other employees. To the extent that they
did anything other than assign nurse’s aides discrete tasks, they
did not exercise independent judgment. To the extent that they
called employees in to replace absentees, their function was
routine or clerical. To the extent they allowed sick employees
or those with family emergencies to leave work early, the nurse
manager was simply selecting an obvious or self-evident course
of action.
Like the employer in Golden Crest Healthcare Center, Re-
spondent herein has failed to establish that the nurse managers
have the ability to require that an off-duty RN, aide or LPN
come into work to replace another employee who failed to
show up. There is no evidence that an aide, for example, has
ever been disciplined for refusing a nurse manager’s “request or
order” that they come into work when not scheduled. Like-
wise, the nurse manager’s “authority” to require LPNs in the
South wing was nominal, rather than genuine authority. This is

4 Pursuant to Oakwood Healthcare, the party seeking to establish su-
pervisory status does not have to prove that a putative supervisor may
be held accountable for decisions made in assigning employees,
whereas this is an element of establishing an individual’s supervisory
status on the basis of his or her ability to “responsibly direct” the work
of others. It seems logical to this judge, that if one must be accountable
for the direction of other individuals to be a “supervisor,” they must
also be held accountable for decisions made in assigning others. Thus,
if a putative supervisor is subject to discipline for failing to assign a
nurse with expertise in dialysis to a patient undergoing dialysis, it
seems to me that this person ought to be deemed to be a supervisor and
should not be deemed to be a “supervisor” if there are no consequences
for his or her decisions in making assignments.
established by the fact that LPNs felt free to ignore such re-
quests/orders without any adverse consequences.
Authority to Discipline Employees
The Board’s remand order did not encompass consideration
of whether or not the charging parties were supervisors on the
basis of their alleged authority to discipline employees. How-
ever, Respondent at page 8 of its statement of position (or
brief), appears to continue to rely on this alleged authority to
establish the supervisory status of the RN/nurse managers.
Although the charging parties’ job descriptions stated that
they had the ability to reprimand and/or discipline personnel,
Respondent has not established that they were supervisors on
this basis. The Board insists on evidence supporting a finding
of actual authority, as opposed to mere paper authority, Golden
Crest, supra at 731; Training School at Vineland, 332 NLRB
1412, 1416 (2000). DON Miller’s testimony concerning one
incident at some unspecified time in the past, in which she, as a
nurse manager, sent an LPN home before the end of her shift
falls short of establishing that the charging parties had such
authority. It is not even clear that Miller administered disci-
pline in this case. Moreover, the charging parties were never
told they had authority to discipline employees, other than on
paper, and never exercised such authority.
CONCLUSION OF LAW
I conclude that Respondent has not established that the
charging parties were “supervisors” within the meaning of Sec-
tion 2(11) of the Act. Therefore, Respondent violated Section
8(a)(1) in discharging them and disciplining them in the fall of
1996, as found by the Board in its 2000 decision.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Loyalhanna Health Care Associates, d/b/a
Loyalhanna Care Center, Latrobe, Pennsylvania, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with the loss of their registered
nursing licenses because they engage in protected concerted
activities.
(b) Issuing disciplinary warnings to employees because they
engage in protected concerted activities.
(c) Discharging employees because they engage in protected
concerted activities.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
LOYALHANNA CARE CENTER 871
(d) 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 Cynthia
A. Clark, Erica J. Lewis, and Melanie M. Fritz full reinstate-
ment to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions without prejudice to their
seniority or any other rights or privileges previously enjoyed,
and make them whole for any loss of earnings or other benefits
suffered as a result of the discrimination against them, with
interest.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discipline of Erica J.
Lewis and Melanie M. Fritz, and the unlawful discharges of
Cynthia A. Clark, Erica J. Lewis, and Melanie M. Fritz, and
within 3 days thereafter notify the employees in writing that
this has been done and that the discipline and discharges will
not be used against them in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its La-
trobe, Pennsylvania facility, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 6, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily 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 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 employ-
ees employed by the Respondent at any time since September
26, 1996.
(e) 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.

6 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.”