Loyalhanna Care Center

National Labor Relations Board - Board Decisions

Aug 23, 2010

355 N.L.R.B. 581 (N.L.R.B. 2010)

LOYALHANNA CARE CENTER
355 NLRB No. 102
581
Loyalhanna Health Care Associates d/b/a Loyalhanna
Care Center, A Pennsylvania Limited Partner-
ship and Cynthia A. Clark and Erica J. Lewis,
and Melanie M. Fritz. Cases 6–CA–28609, 6–
CA–28676, and 6–CA–28676–2
August 23, 2010
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND AND HAYES
On June 30, 2008, the two sitting members of the
Board issued a Supplemental Decision and Order in this
proceeding, which is reported at 352 NLRB 863.1
Thereafter, the Respondent filed a petition for review in
the United States Court of Appeals for the Third Circuit,
and the General Counsel filed a cross-application for
enforcement. On June 17, 2010, the United States Su-
preme Court issued its decision in New Process Steel,
L.P. v. NLRB, 130 S.Ct. 2635, holding that under Section
3(b) of the Act, in order to exercise the delegated author-
ity of the Board, a delegee group of at least three mem-
bers must be maintained. Thereafter, the court of appeals
remanded this case for further proceedings consistent
with the Supreme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2

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 powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the members who participated in the original deci-
sion. Furthermore, under the Board’s standard procedures applicable to
all cases assigned to a panel, the Board Members not assigned to the
panel had the opportunity to participate in the adjudication of this case
at any time up to the issuance of this decision.
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions and to adopt the recommended Order to the extent
and for the reasons stated in the decision reported at 352
NLRB 863, which is incorporated herein by reference.3

3 Member Hayes does not agree with Board precedent broadly hold-
ing that an employee’s service as the highest-ranking employee present
on duty in a workplace is insufficient by itself to demonstrate supervi-
sory status. He agrees with the court’s statement in Glenmark Associ-
ates, Inc. v. NLRB, 147 F.3d 333, 341 (4th Cir. 1998), that “[w]e cannot
fathom the Board’s position that for more than two-thirds of a week at a
nursing home providing twenty-four hour care, where patient condi-
tions can change on a moment’s notice, there is no one present at the
facility exercising independent judgment regarding proper staff levels
and patient assignments.” Accordingly, at least in a workplace requir-
ing immediate judgmental responses to various changed circumstances,
Member Hayes would find that an employee’s service for a substantial
part of the workday as the highest-ranking employee present on duty is
sufficient proof of 2(11) supervisory authority responsibly to direct and
to assign work to others, absent specific evidence to the contrary. For
institutional purposes, however, he joins his colleagues in applying
extant precedent to affirm the judge’s findings that the nurse managers
in this case were not supervisors, and that the Respondent violated Sec.
8(a)(1) by actions taken against them.