Marian Manor for the Aged & Infirm

National Labor Relations Board - Board Decisions

Apr 24, 2001

333 N.L.R.B. 1084 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1084
Marian Manor for the Aged and Infirm, Inc. and
Service Employees International Union, Local
285, AFL–CIO, Petitioner. Cases 1–RC–21240
and 1–RC–21241
April 24, 2001
ORDER DENYING REVIEW
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
The Board has delegated authority in this proceeding
to a three-member panel, which has considered the Em-
ployer’s request for review of the Regional Director’s
Decision and Direction of Election (pertinent portions
are attached) and the Petitioner’s opposition. The Em-
ployer requested review with respect to the Regional
Director’s finding that the Employer’s staff nurses are
not statutory supervisors, the Regional Director’s affir-
mance of certain evidentiary rulings made by the hearing
officer, and the Regional Director’s exclusion of several
classifications from the bargaining units found appropri-
ate. The request for review raises substantial issues
solely with respect to the exclusion of the admissions
coordinator and bookkeeper IV from the bargaining units
found appropriate. However, the Board concludes that
these issues may best be resolved through the challenge
procedure. Accordingly, the request for review is denied
in this and all other respects, and the decision is amended
to permit the admissions coordinator and bookkeeper IV
to vote subject to challenge.
Another issue involves the Employer’s subpoena seek-
ing the production of the responses to the Petitioner’s
survey of Employer’s nursing staff. That survey ques-
tioned staff nurses as to their authority with respect to the
indicia of supervisory status under Section 2(11) of the
Act. The hearing officer refused to enforce the sub-
poena, the Regional Director affirmed, and the Employer
seeks review of the ruling. We find that the hearing offi-
cer did not err in determining that the Employer was not
entitled to the documents sought.
The Board has held that in questions regarding the en-
forcement or revocation of subpoenas the Federal Rules
of Civil Procedure, although not binding on this Agency,
provide useful guidance and should be consulted by Re-
gional Directors and hearing officers when ruling on mo-
tions. See Brink’s, Inc., 281 NLRB 468 (1986). Section
26(b)(3) of the Federal Rules of Civil Procedure provides
that a party seeking to obtain documents prepared by
another party in anticipation of litigation must show both
that the party seeking the documents has a substantial
need for the materials in preparation of his case and that
the party is unable without undue hardship to obtain the
substantial equivalent of the materials by other means.
Applying this standard, we agree with the Employer
that evidence with respect to the authority and functions
of the Employer’s staff nurses was necessary for the Em-
ployer to prepare and proceed with its case. However,
we find that the Employer has failed to show that it was
unable to obtain by other means, the substantial equiva-
lent of the materials contained in the survey responses.
Thus, the Employer had access to its own employees and
could have sought to obtain information from them re-
garding supervisory indicia. Indeed, the Employer called
witnesses at the hearing and questioned them with re-
spect to the supervisory issue, and it cross-examined the
Petitioner’s witnesses at length with respect to their al-
leged supervisory status. The survey form itself was
made part of the record. The Employer could have ex-
amined the nursing staff witnesses as to the survey ques-
tions and their answers to them. Therefore, we find that
the Employer has failed to show that it was unable to
obtain the substantial equivalent of the materials by other
means.
Our dissenting colleague fails to acknowledge that it is
the Employer’s burden to make this showing. Although
conceding that the Employer could examine the nurses
without the survey responses, he asserts that this would
not be as effective. However, the survey responses are
not sworn statements and are of limited probative value,
especially given the nonadversarial nature of representa-
tion proceedings. Thus, while we agree with our dissent-
ing colleague that the purpose of a hearing is the “search
for truth,” nonetheless a preelection hearing is investiga-
tory in nature and credibility resolutions are not made.
Therefore, given both the need for expeditious handling
of representation cases and the limited probative value of
the survey responses, we find on balance that the “search
for truth” is not jeopardized by the hearing officer’s rul-
ing that the Employer was not entitled to the documents
sought.
In sum, we find that the hearing officer did not err by
refusing to require the production of the survey re-
sponses. Moreover, in view of our finding that the Em-
ployer had ample opportunity to, and did, examine and
cross-examine witnesses regarding the supervisory issue,
even assuming arguendo that the Employer was entitled
to these documents, we find that the Employer has not
established that it was prejudiced by the refusal to en-
force the subpoena.
ORDER
The Employer’s request for review of the Regional Di-
rector’s Decision and Direction of Election is denied, and
the Decision is amended to permit the admissions coor-
dinator and bookkeeper IV to vote subject to challenge.

333 NLRB No. 133
MARIAN MANOR FOR THE AGED 1085
MEMBER HURTGEN, dissenting in part.
I would not quash the subpoena.
The Employer sought to show that nurses were super-
visors. The Petitioner had conducted a survey of nurses
on this very issue. The survey was designed to ascertain,
from nurses, the extent of their authority and responsibil-
ity. The subpoena sought the responses of the nurses.
Clearly, the responses are relevant. Further, if the Em-
ployer had those responses, it could effectively examine
and/or cross-examine witnesses concerning the extent of
their authority and responsibility. That is, the Employer
could confront them with their individual responses.1
The Employer was denied the opportunity to do so. Al-
though the Employer could examine the nurses without
the survey response, that would not be as effective as
examining them with the survey response. The R-case
hearing is a search for truth, and the subpoenaed docu-
ments are relevant to that search.
My colleagues say that representation proceedings are
nonadversarial in nature and that credibility resolutions
are not made therein. However, these assertions do not
contradict the unassailable fact that the proceedings are a
search for truth. Clearly, cross-examination (with a
document of the witness) is an effective mechanism for
ferreting out that truth. Indeed, after such an examina-
tion, it may turn out that there is no credibility conflict at
all, i.e., the witness may concede the truth of the docu-
ment or can satisfactorily explain any inconsistencies.
My colleagues assert that “the survey responses are of
limited probative value.” It is unclear to me how my
colleagues can assess “probative value” of the responses
without allowing their use. As discussed above, a cross-
examiner could use those responses to clarify or chal-
lenge the testimony of the alleged supervisors. It is ut-
terly impossible to say, a priori, that the responses would
be of “limited probative value.” Similarly without per-
mitting a test of probative value, it cannot be said, a pri-
ori, that the Employer suffered no prejudice by preclud-
ing the use of these responses.
Finally, my colleagues suggest that the Employer had a
“substantial equivalent” of the surveys. However, they
fail to show what that “substantial equivalent” would be.
Obviously, the Employer’s questioning of the alleged
supervisors would not yield the substantial equivalent of
the responses that they provided in writing to the Peti-
tioner.
Accordingly, I would grant the subpoena, remand for
further hearing, and then decide the supervisory issue.

1 Each response contains the nurse’s name. Although it is not
signed, the Employer, on examination or cross-examination, could
ascertain whether the nurse filled out the survey form.
APPENDIX
DECISION AND DIRECTION OF ELECTION
On petitions duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before a
hearing officer of the National Labor Relations Board.
Under Section 3(b) of the Act, the Board has delegated its
authority in this proceeding to the Regional Director.
On the entire record in this proceeding, I find
1. The hearing officer’s rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
2. Marian Manor for the Aged and Infirm, Inc. (Marian
Manor) is engaged in commerce within the meaning of the Act,
and it will effectuate the purposes of the Act to assert jurisdic-
tion in this matter.
3. Service Employees International Union, Local 285, AFL–
CIO (Local 285) claims to represent certain employees of
Marian Manor.
4. A question affecting commerce exists concerning the rep-
resentation of certain employees of Marian Manor within the
meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.
5. Marian Manor operates a nursing home in South Boston,
Massachusetts. Local 285 seeks to represent two units of em-
ployees employed by Marian Manor, a service and maintenance
unit1 and a unit of staff nurses, including registered nurses
(RNs) and licensed practical nurses (LPNs). Marian Manor
asserts that its staff nurses and senior nursing assistants (SNAs)
must be excluded from any unit found appropriate as statutory
supervisors. Marian Manor further asserts that the smallest
appropriate unit must include all of its nonsupervisory employ-
ees.2
Should I find the service and maintenance unit sought by
Local 285 to be appropriate, Marian Manor maintains, in the
alternative, that that unit must include maintenance mechanics,
painters, a carpenter, a groundskeeper, assistant admissions
1 The service and maintenance unit sought, as described in the peti-
tion, includes nursing assistants, senior nursing assistants, cooks, die-
tary aides, food service workers, bakers, laundry workers, activities
leaders, office assistants, porters, housekeepers, resident care techs,
rehab aides, stock clerks, storeroom clerks, unit assistants, unit secretar-
ies, hairdressers, and clinic coordinators. At the hearing, the parties
stipulated, and I find, that the positions of assistant cook and kitchen
porter should also be included in the service and maintenance unit.
At the hearing, the parties also stipulated that the groundskeeper in
the maintenance department should be included in the service and
maintenance unit. In its posthearing brief, Local 285 asks to be re-
lieved of that stipulation as inconsistent with Board policy, contending
that the groundskeeper has more in common with other maintenance
department employees whom it seeks to exclude from the unit as
skilled maintenance employees.
2 In addition to those employees sought by Local 285, Marian
Manor’s proposed wall-to-wall unit would include the following classi-
fications: maintenance mechanic, painter, carpenter, groundskeeper,
case mix/safety nurse, social worker, admissions coordinator, assistant
admissions coordinator, nursing secretary, medical secretary, medicare
coordinator, RN assessment and care plan coordinator, MDS nurse,
accounts receivable supervisor, accounts payable clerk, bookkeeping
clerk, bookkeeper IV, posting clerk, payroll distribution clerk, staff
development assistant, switchboard operator, relief operator, and clerk-
typist.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1086
coordinators, staff development assistants, and various clerical
employees.3 Local 285 would exclude all of these employees
from its proposed service and maintenance unit. In particular,
it asserts that the maintenance mechanics, carpenter, and paint-
ers should be excluded from the unit as skilled maintenance
employees, and that the accounts payable clerk, accounts re-
ceivable supervisor,4 posting clerk, bookkeeping clerks, payroll
distribution clerk, switchboard operator, relief operators, and
clerk/typist should be excluded from the unit as business office
clericals. Local 285 contends that bookkeeper IV belongs in a
unit of other professional employees or, alternatively, should be
excluded as a business office clerical.
Should I find the petitioned-for unit of staff nurses, including
RNs and LPNs, to be appropriate, Marian Manor appears to
contend, in the alternative, that the staff nurse/RN/LPN unit
must include a Medicare coordinator, an RN assessment and
care plan coordinator, an MDS nurse, a case mix/safety nurse,
social workers, and an admissions coordinator, while Local 285
would exclude all of those employees.
Supervisory Status of Staff Nurses and Senior
Nursing Assistants
Marian Manor asserts that its staff nurses are statutory su-
pervisors on the basis of their authority to assign, responsibly
direct, evaluate, and discipline the CNAs and RCTs. It asserts
that the SNAs are statutory supervisors on the basis of their
authority to assign, responsibly direct, and discipline the CNAs.
I find that Marian Manor has failed to meet its burden of dem-
onstrating the supervisory status of either classification.
Assignment of Work and Responsible Direction
Marian Manor operates a 366-bed nursing home, the largest
skilled care facility in Massachusetts. The home consists of
four buildings, North, South, East, and West, that house eight
skilled nursing units and one 11-bed rest home unit. Its nursing
department staffs the units in three shifts, 7 a.m. to 3 p.m., 3 to
11 p.m., and 11 p.m. to 7 a.m.
Sister Pauline Ross is the home’s administrator.5 Director of
nursing, Ann Sheehan, reports to Ross, and assistant director of
nursing, Theresa Balbuena, reports to Sheehan. Four unit su-
pervisors6 and several nursing supervisors report to Balbuena.7
The unit supervisors, each of whom is responsible for two

3 The clerical employees at issue are a medical secretary, a nursing
secretary, an accounts receivable supervisor, an accounts payable
bookkeeper, three bookkeeping clerks, a bookkeeper IV, a posting
clerk, a payroll distribution clerk, a switchboard operator, six relief
operators, and a clerk-typist.
4 At the hearing, Local 285 took the position that the accounts re-
ceivable supervisor should be excluded from any unit found appropriate
as a statutory supervisor, but it did not pursue this contention in its
posthearing brief.
5 The Employer contracts with a Catholic religious order, the Carme-
lite Sisters, to manage the home. Ross and 10 other sisters work and
live at the home.
6 One of the four unit supervisor positions is currently open.
7 The parties have stipulated, and I find that Administrator Sister
Pauline Ross, Director of Nursing Ann Sheehan, Assistant Director of
Nursing Theresa Balbuena, the unit supervisors, and the nursing super-
visors are statutory supervisors who should be excluded from any unit
found appropriate.
units, cover the day shift. The nursing supervisors cover the
evening and night shifts. They cover either all or half of the
units during their shifts. Depending on the unit and the shift,
each of the eight units is staffed by one to two staff nurses,8 an
SNA,9 three to seven certified nursing assistants (CNAs), and a
varying number of unit assistants and resident care techs
(RCTs);10 fewer employees cover the evening and night shifts
than the day shift. The staff nurses may be either RNs or
LPNs; their role is the same regardless of their status as RNs or
LPNs. The staff nurses and SNAs report to a unit supervisor or
nursing supervisor, depending on the shift. The CNAs and unit
assistants report to the staff nurses and SNAs. The RCTs report
to the staff nurses.
CNAs perform duties such as feeding, bathing, dressing, toi-
leting, changing, weighing, and ambulating nursing home resi-
dents, and transporting them to appointments. Unit assistants
are less skilled than CNAs and are not permitted to touch resi-
dents. They perform tasks such as making beds, passing food
trays, transporting residents or supervising residents in the din-
ing room. RCTs, who are often student nurses or nurses wait-
ing to pass their Board exams, perform tasks such as simple
treatments, changing dressings, taking vital signs, or sitting
with ill or dying residents.
CNAs are regularly assigned to the same unit. The staff
nurses, SNAs, and CNAs on the unit collaboratively divide
each unit’s residents into groups denominated Group 1, Group
2, and so on. They try to balance the groups in terms of the
degree of care required by the residents. The groups change
only in the event of a discharge or a change in a resident’s con-
dition that calls for rebalancing the workload. Each CNA is
assigned to care for the residents in one of these groupings for
his or her shift. The CNAs rotate through the assignments nu-
merically on a monthly basis. A staff nurse or SNA may switch
either a CNA or a resident to another group, for example, when
a CNA is having difficulty with a particular resident. Unit
Supervisor Margaret Default, testified, however, that a staff
nurse generally seeks her approval to move a difficult resident
to another CNA. The staff nurses may also make such reas-
signments to accommodate a resident who expresses a prefer-
ence for a female CNA or to avoid exposing a pregnant CNA to
a particular resident for infection-control reasons.
There is a book for each group of residents that describes the
care required for each resident. Regular CNAs know the daily
routine prescribed for each resident. The SNAs conduct room
by room checks on the residents to make sure that the CNAs
have completed the required care, and they also check to make
sure that the CNAs have documented the care provided, as
required. Due to changes in a resident’s condition, a staff nurse
or SNA may direct a CNA to perform additional tasks or
change the routine in some way. For example, a staff nurse
may direct a CNA to take the temperature of an acutely ill resi-
8 The staff nurses were referred to interchangeably throughout the
record as staff nurses, charge nurses, or nurses.
9 The eight senior nursing assistants work only during the day, with
hours such as 10 a.m. to 6 p.m. or 8:30 a.m. to 4:30 p.m.
10 Marian Manor employs eight unit assistants, all of whom work the
day shift. There are two full-time RTCs as well as some part-time
and/or on-call RCTs.
MARIAN MANOR FOR THE AGED 1087
dent, to weigh a resident who is on a calorie count, to increase
assistance to a resident whose arthritis has flared up, to give an
ill resident extra fluids, or to inform the nurse when a resident
has voided. She may instruct a CNA to dress a resident to go
out with their family. She may instruct an aide to engage in
“therapeutic lying” with a confused resident or instruct a CNA
in how to handle other types of behavioral issues. Staff nurses
and SNAs pitch in to assist the CNAs in performing their duties
when need be. An SNA may occasionally take a group of resi-
dents herself to cover for an absent CNA.
Staff nurses play no role in staffing the units. They have no
authority to authorize overtime, to call in CNAs to work, or to
transfer CNAs between units. CNAs take their breaks at a cer-
tain time during the shift, taking turns so that they are not all on
break at once. A staff nurse may ask a CNA to delay her break,
for example, to assist a resident who has had an episode of
incontinence. Director of Nursing Ann Sheehan testified that a
staff nurse may allow a CNA to go home early, but there is no
evidence as to the frequency with which this occurs or the cir-
cumstances surrounding such decisions.
Evaluations
Marian Manor’s CNAs receive performance evaluations af-
ter 3 months of employment and annually thereafter. The cur-
rent evaluation form requires the evaluators to rate the CNAs
with respect to 14 criteria, by giving them both a numerical
rating from one to five for each criterion, with five being the
most favorable rating, and an explanation for the rating. The
personnel department completes the section relating to atten-
dance and punctuality. The points are added up for an overall
performance rating. A score of 68 to 70 warrants an overall
rating of “exceptional,” a score of 48 to 67 points warrants an
overall rating of “above average,” a score of 28 to 47 equates to
an overall rating of “average,” and a score of 27 or less results
in an overall rating of “unsatisfactory.”
Unit supervisors generally complete the evaluation forms for
CNAs and the RCTs on the day shift. The director of nursing
testified that she was unaware that an SNA had ever completed
an evaluation form. Unit Supervisor Margaret Default testified
that, prior to completing an evaluation of a CNA, she consults
with the senior nursing assistant who has worked with that
CNA or, at times, a staff nurse, and she relies on their input.
She asks if the SNA sees any problem with the CNA’s work
and if the CNA is doing his or her job appropriately. The SNA
does not sign the evaluation form. Default presents the com-
pleted evaluation form to the CNA. A staff nurse or SNA may
or may not be present, depending on their availability. Day
shift staff nurse, Diane Walsh, testified that she has never been
asked to complete a performance evaluation and has never
given any input to her unit supervisor in connection with an
evaluation, although she has had informal conversations with
her unit supervisor regarding the quality of the work of the
CNAs on her shift.
Staff nurses who cover the evening and night shifts complete
evaluations for the CNAs, although nursing supervisors com-
plete them in those instances that the staff nurses are too busy.
Nursing supervisors review the evaluations completed by the
staff nurses before they are finalized. Staff nurse, Susan Su-
plee, testified that her ratings have never been changed, and the
director of nursing testified that she had never heard of a nurs-
ing supervisor changing a staff nurse’s ratings.11 Lori Golden,
a staff nurse on the night shift, testified that she does not usu-
ally complete the rating for the “discipline” criterion; her nurs-
ing supervisor does that. She testified that in a few instances
her nursing supervisor has returned an evaluation to her and
told her that she needed either to justify the high ratings she
gave or to change the rating. On one occasion Golden sup-
ported the rating; on another occasion, she lowered the score.
This has not happened for a while, because Golden usually
gives ratings of threes and fours rather than fives now.
Nursing supervisors customarily add their own comments to
the evaluation before it is issued to the employee. The director
of nursing or assistant director of nursing also reviews the
completed evaluations. They may ask the evaluator to justify a
rating by writing a specific comment, but they have never
changed a rating. Nursing supervisors usually present the
evaluations to the CNAs on the evening and night shifts.
The record reveals that the evaluations are not tied to wage
increases for CNAs, nor do they include recommendations for
retention or promotion. The director of nursing testified that
she would review an employee’s evaluations when considering
a promotion. Human Resources Supervisor Joan Cameron,
testified that Marian Manor provides scholarships to employees
seeking to further their education.12 The evaluation forms are
part of the application for scholarships and are considered along
with factors such as length of service. Cameron did not know
how many such scholarships are granted annually. The current
evaluation form states that staff members who rate “unsatisfac-
tory” will have another evaluation in 3 months and that three
consistent unsatisfactory ratings will result in termination.
There is no evidence in the record that any CNA has ever been
terminated as a result of unsatisfactory evaluations; the director
of nursing was unaware of any CNA terminated based solely on
poor evaluations, without the issuance of discipline.13
Discipline
Employees at Marian Manor may receive discipline in the
form of counseling, a written counseling, a written warning, a
second and final warning, and dismissal. The director of nurs-
ing testified, on the one hand, that staff nurses and SNAs have
authority to and do impose all of these types of discipline. She
also testified, however, that, although they have authority to
issue warnings and terminate employees on their own, that is
not how things work at Marian Manor. Staff nurses and SNAs

11 In 16 of the 78 evaluations submitted into evidence, anywhere
from one to seven of the ratings in the evaluation appear to have been
crossed out and replaced, with the change initialed by the nursing su-
pervisor who reviewed and signed the evaluation.
12 The parties have stipulated, and I find, that Cameron is a statutory
supervisor who should be excluded from any unit found appropriate.
13 Cameron testified that an employee who receives a rating of 27 or
below would automatically receive discipline in the form of a counsel-
ing or warning. She gave no example of this taking place, and she also
testified that employees would not receive discipline just because of an
unsatisfactory evaluation, although an unsatisfactory evaluation might
remind an evaluator that he or she had been remiss in failing to disci-
pline that employee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1088
are expected to consult with their superiors regarding any disci-
plinary incident, and she expects the nursing supervisors to
accept their recommendations regarding discipline.
The role of the staff nurses in issuing discipline was illus-
trated by the following examples: case mix coordinator Kath-
leen Annello, who was previously a nursing supervisor and still
works every fourth week as a nursing supervisor, testified that
when a staff nurse brings a disciplinary matter to her attention,
she follows the staff nurse’s recommendation after listening to
all parties. On one occasion this year, staff nurse, Diane Walsh,
told her that a particular CNA had failed to provide care to a
resident and asked Annello to discipline her. Annello spoke to
Walsh and three CNAs on the unit. She learned that the care
had, in fact, been provided and that Walsh had failed to com-
municate which CNA had been assigned to the patient at issue.
Annello clarified the assignment and determined not to disci-
pline the CNA. In a second incident, a staff nurse told Annello
that some CNAs would not accept a new CNA. After talking
with the staff nurse and the CNAs involved, Annello disci-
plined some of the CNAs. In a third instance, a staff nurse told
Annello that a CNA had taken a break before completing her
work. Annello spoke with the CNA, who said that she had
completed all of the required care and that the staff nurse had
unreasonably expected her to toilet a resident while she was on
her break. Annello agreed with the CNA and decided not to
issue discipline.
Default testified that she expects staff nurses to consult her
regarding situations that warrant discipline and that they never
sign disciplinary forms, although they may be present as wit-
nesses when they are issued. She does not recall a staff nurse
recommending that any specific discipline be imposed. Default
always interviews all parties involved to find out each side of
the story and then makes a decision. In one instance, a staff
nurse told her that two CNAs had had a verbal altercation in the
presence of a resident. Default interviewed the staff nurse and
the two CNAs herself and then reached the decision to issue
discipline. Default signed the disciplinary forms; the staff
nurse was present as a witness when she issued them.
Night shift staff nurse, Susan Suplee, testified that she has is-
sued about three to four warnings to CNAs in the last 10 years,
and none in the last year, for infractions such as failure to
change a resident or sleeping on the job. She discusses disci-
plinary matters with her nursing supervisor first, who asks if
Suplee wishes to issue a warning or handle it another way. She
respects the supervisor’s input. Either Suplee or her nursing
supervisor fills out the warning form; the supervisor is always
present when it is given to the employee.
Staff development director, Wanda English, who was previ-
ously a staff nurse for many years, testified that she never wrote
up a CNA when she was a staff nurse, but it was her under-
standing that she was to consult with her unit supervisor prior
to filling out a disciplinary form. On one occasion, English
observed that a resident was injured, and she believed that the
injury was inconsistent with the version of events related to her
by a CNA. English took statements and called her supervisor,
who also took statements and did a follow-up assessment of the
resident with English. English recommended discipline, al-
though the record does not reveal what type of discipline she
recommended. The nursing supervisor terminated the CNA.
Marian Manor introduced no disciplinary forms issued by
staff nurses. Staff nurses Lori Golden and Melissa Parker testi-
fied that they have never issued a disciplinary form or recom-
mended discipline. They report disciplinary incidents to their
nursing supervisor, although Golden may talk to a CNA herself
if the situation does not involve a major infraction. Parker has
reported a sleeping CNA to her supervisor. The supervisor
called the CNA in to her office and then asked Parker to sign a
disciplinary form as a witness. On another occasion, Parker
found a resident on the floor and reported it to her supervisor.
The supervisor asked Parker to check whether the resident had
been changed; Parker reported that the CNA had not changed
her. She does not know if the CNA involved was disciplined.
Staff nurse, Diane Walsh, also testified that she has never is-
sued a disciplinary form and that she would go to her supervi-
sor with any disciplinary matters. The only time she ever rec-
ommended discipline was the incident described above, in
which her nursing supervisor, Annello, determined, after inves-
tigating, that discipline was not warranted.
With respect to the SNAs’ role in discipline, unit supervisor,
Margaret Default, testified that she and the SNAs have author-
ity to issue discipline. She has observed an SNA give a written
counseling form to a unit assistant. In that case, the SNA told
her she would be issuing the counseling, and Default went
along as a witness. An SNA under her supervision has also
issued a written warning, but there is no evidence as to De-
fault’s role, if any, in the matter.
SNA Anestine Bentick testified that she has never disci-
plined an employee in her 7 years as an SNA and has never
been told she has authority to discipline. She has brought dis-
ciplinary incidents to the attention of her unit supervisor and
has made a suggestion as to what should happen. The record
does not reveal whether she has ever suggested that any
particular level of discipline be imposed. The unit supervisor
has listened to Bentick and the employee involved and deter-
mined whether it was necessary to discipline that person.
Bentick described two incidents where her unit supervisor did
not accept her recommendation to impose discipline but also
testified that a supervisor has followed her recommendation to
impose discipline about three or four times.
Marian Manor introduced into evidence two written counsel-
ing forms issued by SNA Linda Parker, and a written counsel-
ing and written warning form issued by SNA Darlene Gregor.
Gregor issued the written warning to a CNA for sleeping on the
job, and someone whose name is illegible signed it as a witness.
Gregor wrote in the warning that any further instances of sleep-
ing while on duty would result in the employee’s termination.
There was no testimony by anyone with first hand knowledge
of the process that led to the issuance of this warning by
Gregor. Some of the written counseling forms also note that
the employee’s failure to comply with the rule violated would
result in further disciplinary action.
Marian Manor also introduced three written counseling
forms issued by SNA Mary Ellen Ciulla. Ciulla testified that
she issued the written counseling forms on her own, although
she may have notified her unit supervisor that she was going to
MARIAN MANOR FOR THE AGED 1089
issue one of them. She testified that she and/or a unit supervi-
sor engage in fact-finding prior to issuing discipline, and the
unit supervisor may or may not be present when the discipli-
nary notice is given to the employee. Ciulla testified that she
was given some guidelines regarding the level of discipline to
impose, depending on the employee’s disciplinary history, and
that she refers to a book in the nursing office that indicates
employees’ prior discipline.
Secondary Indicia
All employees at Marian Manor receive the same fringe
benefits, with one exception. Since November 1999, staff
nurses and senior nursing assistants have been eligible for life
insurance in the amount of $20,000, the same amount of cover-
age that is provided for department heads, assistant department
heads, and supervisors. Other staff members are eligible for
life insurance in the amount of $8000.
Nursing supervisors, unit supervisors, and SNAs wear white
lab coats. Staff nurses wear scrubs with a print. CNAs wear
scrubs and white pants. Unit assistants wear a yellow apron.
Analysis
Under Section 2(11) of the Act, the term “supervisor” means
any individual having authority, in the interest of the employer,
to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively recom-
mend such action, where the exercise of such authority is not of
a merely routine or clerical nature, but requires the use of inde-
pendent judgment. To qualify as a supervisor, it is not neces-
sary that an individual possess all of the powers specified in
Section 2(11) of the Act. Rather, possession of any one of
them is sufficient to confer supervisory status. Chicago Metal-
lic Corp.14 The status of a supervisor under the Act is deter-
mined by an individual’s duties, not by his title or job classifi-
cation. New Fern Restorium Co.15 The burden of proving su-
pervisory status rests on the party alleging that such status ex-
ists. Tucson Gas & Electric Co.16 The Board will refrain from
construing supervisory status too broadly, because the inevita-
ble consequence of such a construction is to remove individuals
from the protection of the Act. Quadrex Environmental Co.17
The record persuades me that that staff nurses’ and SNAs’
assignment of work and direction of employees is routine and
does not require independent judgment. The CNAs’ tasks are
routine, and they are familiar with their patients and their
needs. The Board has held repeatedly that the type of direction
given by Marian Manor’s staff nurses and SNAs, i.e., instruct-
ing CNAs to perform the various tasks needed for patient care,
is based on their greater skill and experience and does not re-
quire the independent judgment required by Section 2(11). Ten
Broeck Commons;18 Illinois Veterans Home at Anna L.P.;19

14 273 NLRB 1677, 1689 (1985).
15 175 NLRB 871 (1969).
16 241 NLRB 181 (1979).
17 308 NLRB 101, 102 (1992).
18 320 NLRB 806, 811 (1996).
19 323 NLRB 890, 891 (1997).
Vencor Hospital-Los Angeles.20 The CNAs are assigned to a
group of residents for a month, at the end of which they are
routinely rotated to the next group. The staff nurses, SNAs,
and CNAs collaborate in dividing the residents into groups in a
manner that balances the workload. Even assuming that the
CNAs played no role in this process, the Board has found that
work assignments made to equalize work among employees do
not require the exercise of independent judgment. Parkview
Manor.21 I find that the staff nurses’ or SNAs’ reassignment of
the CNAs or residents from time to time to accommodate a
resident who prefers a female CNA, to protect a pregnant CNA
from infection, or to meet the needs of a difficult resident does
not require the exercise of independent judgment called for by
Section 2(11).
Although the Board has consistently found supervisory status
when nurses independently perform employee evaluations
which lead directly to personnel actions, the Board has just as
consistently declined to find supervisory status when nurses
perform evaluations that do not, by themselves, directly affect
other employees’ job status. Vencor Hospital-Los Angeles;22
Ten Broeck Commons;23 At the outset, I note that there is no
evidence that staff nurses who work on the day shift complete
evaluations or even suggest ratings; their role in the process is
limited to giving the unit supervisors generalized feedback as to
whether or not the CNAs on their unit are performing their jobs
appropriately. With respect to the staff nurses on the evening
and night shifts, who do complete performance evaluations,
there is some evidence that nursing supervisors sometimes alter
the ratings that the staff nurses give the CNAs. Thus, Marian
Manor has failed to demonstrate that staff nurses independently
perform these evaluations.
Assuming that the staff nurses’ ratings were never or only
rarely changed by their superiors, however, I would still find
that their role in completing the forms does not confer supervi-
sory status, because Marian Manor has failed to demonstrate
that the evaluations directly affect the CNAs’ tenure or condi-
tions of employment. The evaluations have no effect on wage
increases and do not include recommendations for retention or
promotion. The fact that Marian Manor’s higher managers may
consider the evaluations when CNAs are up for a promotion or
apply for a scholarship is far too vague an impact to form the
basis for a finding of supervisory status, particularly where
Marian Manor has introduced no evidence that any CNA has
ever been promoted or granted a scholarship because of an
evaluation completed by a staff nurse. While the evaluation
form states that three unsatisfactory evaluations will result in
termination, there is no evidence that any employee has ever
been terminated as a result of poor evaluations. Harborside
Healthcare24 (no employee has been terminated based on an
evaluation); Northern Montana Health Center25 (testimony
20 328 NLRB 1136, 1139 (1999).
21 321 NLRB 477, 478 (1996).
22 Supra at 1139.
23 Supra at 813.
24 330 NLRB 1334, 1335 (2000).
25 324 NLRB 752, 754 (1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1090
included no examples of any discharge based on an LPN’s
evaluation of a nurse’s aide).
Nor do I find that the staff nurses’ and SNAs’ involvement in
discipline renders them Section 2(11) supervisors. The record
evidence in this case clearly establishes that staff nurses do not
themselves discipline employees; not one disciplinary form
issued by a staff nurse was entered into evidence. Nor can it be
said that the staff nurses effectively recommend discipline. In
the first instance, there is no evidence that a staff nurse has ever
recommended that any particular level of discipline be im-
posed. Their role is merely to report incidents of unacceptable
work performance or behavior to their supervisors. More im-
portant, it is clear that the unit supervisors or nursing supervi-
sors who receive such reports independently investigate these
matters themselves by interviewing all parties involved before
deciding what action, if any, to take. In such circumstances, the
Board has found that charge nurses are not supervisors. Ten
Broeck Commons;26 Northcrest Nursing Home.27
The evidence does not warrant a different result with respect
to the SNAs’ authority to discipline. According to SNA Ben-
tick, her unit supervisor independently investigates disciplinary
incidents by interviewing the employees involved herself. The
authority to issue written counseling forms of the kind involved
here, even if issued independently by the SNAs, is too minor a
disciplinary function to constitute statutory authority. Ohio
Masonic Home.28 While the record includes one written warn-
ing issued by an SNA, there is no evidence regarding the cir-
cumstances under which it was issued, i.e., whether Gregor
issued the warning independently, without any independent
investigation by her supervisor. In any event, the Board has
found that the authority to issue written reprimands and warn-
ings does not confer supervisory status where the warnings
themselves do not automatically result in adverse action.
Evangeline of Natchitoches, Inc.;29 Illinois Veterans Home at
Anna L.P.30
Finally, Marian Manor asserts that the staff nurses and
SNAs are supervisors because they receive the larger life insur-
ance benefit received by other stipulated supervisors and be-
cause the SNAs wear the same uniform as the unit and nursing
supervisors. While the existence of secondary indicia such as
these may be considered in assessing the likelihood that certain
individuals are supervisors, the Board has held that such factors
may not transform them into supervisors in the absence of evi-
dence that the individuals possess one or more of the statutory
powers. Northcrest Nursing Home.31 For the reasons set forth
above, I find that they do not.
Appropriateness of the Units Sought by Local 285
As noted above, Local 285 seeks to represent two units of
employees employed by Marian Manor: 1) it seeks a service
and maintenance unit that would include certified nursing assis-
tants, senior nursing assistants, cooks, dietary aides, food ser-

26 Supra at 812.
27 313 NLRB 491, 497 (1993).
28 295 NLRB 390, 394 (1989).
29 323 NLRB 223, 224 (1997).
30 323 NLRB 890 (1997).
31 313 NLRB 491, 500 (1993).
vice workers, bakers, assistant cooks, kitchen porters, laundry
workers, activities leaders, office assistants, porters, house-
keepers, resident care techs, rehab aides, stock clerks, store-
room clerks, unit assistants, unit secretaries, hairdressers, and
clinic coordinators, and 2) it seeks a unit of staff nurses, includ-
ing RNs and LPNs.
Marian Manor asserts that the smallest appropriate unit must
include all of its nonsupervisory employees. In its view, there
should be one bargaining unit that includes, in addition to the
employees sought by Local 285, employees in the following
classifications: maintenance mechanic, painter, carpenter,
groundskeeper, switchboard operator, relief operator, clerk-
typist, case mix nurse, social worker, admissions coordinator,
assistant admissions coordinator, Medicare coordinator, RN
assessment and care plan coordinator, MDS nurse, medical
secretary, nursing secretary, accounts receivable supervisor,
accounts payable clerk, bookkeeping clerk, bookkeeper IV,
posting clerk, staff development assistant, and payroll distribu-
tion clerk. Alternatively, Marian Manor asserts that each of
these classifications must be included in one of the two units
sought by Local 285.
Administrator Sister Pauline Ross oversees social services,
nursing services, development, quality assurance and assess-
ment, corporate compliance, mission effectiveness, and medical
records. Two assistant administrators report to Ross. Assistant
administrator Maureen Rynkiewicz is responsible for
switchboard/reception/clerical services, maintenance, security,
housekeeping, and grounds. The second assistant administra-
tor32 is responsible for pastoral care, activities, food services,
and volunteers. A comptroller/human resources director, Jo-
seph Fitzpatrick, who also reports to Ross, is responsible for
finance, risk management, human resources, and staff devel-
opment.
Maintenance Department Employees
Director of maintenance/safety, John Donovan, reports to
Rynkiewicz, maintenance supervisor, Donald Lynch, reports to
Donovan.33 Five maintenance mechanics, two painters, a car-
penter, and a groundskeeper report to Donovan. The mainte-
nance mechanics are handymen who make repairs all over the
facility. They do light plumbing, electrical, and heating work.
They maintain the laundry equipment, kitchen equipment, and
air conditioning units, repair locks and hinges, install floor tile,
hang pictures, replace light bulbs, clean drains, and the like.
The painters do painting and wallpapering. The carpenter
spends 50 percent of his time doing carpentry work and the rest
of his time doing general maintenance work. The grounds-
keeper maintains the grounds outside the building, including
the removal of snow and ice.
The maintenance department employees divide their time be-
tween an ongoing renovation project,34 planned maintenance,
32 This position is currently vacant.
33 The parties have stipulated, and I find, that the director of mainte-
nance/safety director and the maintenance supervisor are statutory
supervisors who should be excluded from any unit found appropriate.
34 The maintenance department employees have been working on a
renovation project for the last 3 years, which is nearing completion.
MARIAN MANOR FOR THE AGED 1091
and requests for repairs. The maintenance shop is located on
the third floor of East building, but the maintenance employees
make repairs throughout the facility and spend the majority of
their time working on the units. The staff requests repairs by
completing a work requisition form and bringing it to the main-
tenance department. Donovan assigns the jobs. Maintenance
employees may check in with a supervisor at the nurses’ sta-
tion, kitchen, or housekeeping area when they go to make re-
pairs in those areas. They interact with the CNAs and SNAs to
schedule a time to make repairs in a resident’s room.
The maintenance mechanics, carpenter, and painters may be
assigned to assist the groundskeeper with snow and ice removal
or with large projects such as mulching in the spring or trim-
ming trees and bushes. On rainy days the groundskeeper works
inside, assisting the painter, carpenter, or maintenance mechan-
ics. The groundskeeper spends about 20 percent of his time
each week working with the other maintenance department
employees.
Most of the maintenance department employees work a
Monday through Friday day shift starting at 7:15 or 8:15 a.m.
The maintenance mechanics rotate weekend coverage, and one
of them works from 3 to 11 p.m.
The general maintenance mechanics are required to have a
high school or trade school degree with experience in mainte-
nance desired. The painter is required to be a high school
graduate with a year’s experience as a painter or one to three
years of experience as a painter/helper. The carpenter is re-
quired to have a high school or trade degree with 3 to 5 years of
carpentry experience. The record does not reveal the qualifica-
tions of the groundskeeper.
Reception/Switchboard/Clerical Department Employees
One full-time switchboard operator, six part-time relief op-
erators, and a clerk-typist report to Assistant Administrator
Maureen Rynkiewicz. The switchboard operator works at the
front desk in the lobby where visitors enter. She operates a
switchboard and paging system, takes messages, accepts deliv-
eries, sorts mail, screens and directs visitors, and performs gen-
eral office duties, such as stuffing envelopes and addressing
mail. The relief operators perform similar functions during the
evenings and weekends.
A part-time clerk-typist, Lois Miller, works near the
switchboard area. She performs typing and clerical work for all
departments. Requests for her services go through Rynkiewicz,
who assigns the work to Miller. Miller may need to interact
with whoever has requested the job if she has question about it.
She has performed work such as typing a policy and procedures
manual for the medical records and staff development depart-
ments, typing meeting minutes for SNAs, staff nurses, or unit
supervisors in the nursing department, typing a quarterly news-
letter, and performing typing work for the social services de-
partment for a few months when it was short-staffed.
Medical Records Department Employees
Director of medical records, Barbara McCann, who is a reg-
istered nurse, reports to the administrator. A Medicare coordi-

They each spend 1-½ to 2-½ days per week working on the renovation
project.
nator, RN assessment and care plan coordinator, MDS nurse,
medical secretary, and a medical records supervisor report to
McCann. Several unit secretaries report to the medical records
supervisor, Cheryl Geisel.35 The only medical records depart-
ment employees petitioned for are the unit secretaries, whom
Local 285 seeks to include in the service and maintenance unit.
The Medicare coordinator, RN assessment and care plan co-
ordinator (also known as the MDS coordinator), and the MDS
nurse are required to be licensed nurses.36 The incumbents are
all RNs. None of them provides clinical care to residents. The
Medicare coordinator determines whether new residents or
residents returning from a hospital stay qualify for skilled care
and are thus eligible for Medicare. She spends about 70 per-
cent of her time in her office and the balance meeting with staff
from other departments, including nurses, social workers,
physical therapists, speech therapists, dieticians, and doctors.
She attends weekly Medicare meetings with other departments
to review the Medicare eligibility of residents. She completes
minimum data set (MDS) forms that nursing homes are re-
quired to submit to the State periodically for each Medicare
resident. She works from 8 a.m. to 4 p.m., Monday through
Friday. She also takes calls on the weekends for admissions.
The RN assessment and care plan coordinator, also known as
the MDS coordinator, and the MDS nurse perform a function
similar to that of the Medicare coordinator for non-Medicare
residents, i.e., residents who are eligible for Medicaid or who
pay for their care on a private basis. The MDS nurse reports to
the MDS coordinator, who gives her her assignment for the
week and is somewhat more skilled. They each hold interdisci-
plinary care plan meetings twice a week, one to cover new
admissions and annual reviews, and a second to perform the
quarterly reviews required for each resident. They review
about 35 residents per week. The meetings may include a staff
nurse or unit supervisor, SNA, dietician, rehabilitation worker,
social worker, and activity leader. They complete the nursing
assessment portion of the MDS forms for Medicaid-eligible
residents and make sure that the other disciplines complete their
portion. They review residents’ records and may ask a staff
nurse or unit supervisor about a resident’s status. The MDS
coordinator works from 9 a.m. to 3:30 p.m., Monday through
Friday. The MDS nurse also works part-time, Monday through
Friday. They spend about half their time in the medical records
office and half on the units running the interdisciplinary meet-
ings and reviewing records.
The medical secretary maintains records such as the dis-
charge and death index. She arranges for the destruction of
resident records. She schedules the interdisciplinary meetings
held regarding each resident and notifies the various depart-
ments about the upcoming meetings. She does some typing,
although that is not her primary responsibility. She spends 75
35 The parties have stipulated, and I find, that director of medical re-
cords, Barbara McCann, and medical records supervisor, Cheryl Geisel,
are statutory supervisors who should be excluded from any unit found
appropriate.
36 The job descriptions for staff nurse, Medicare coordinator, RN as-
sessment and care plan coordinator, MDS nurse, and case mix/safety
nurse all require a graduate of an accredited school of nursing who is
currently licensed in Massachusetts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092
percent of her time in her office, but goes to the units to give
the nurses and SNAs a list of residents whose reviews are com-
ing up, to obtain a signature needed to release records, or to
obtain information for a lab or oxygen company that provides
services to the facility. She works from 7 a.m. to 3 p.m., Mon-
day through Friday. The incumbent medical secretary was
promoted to her current position from that of unit secretary.
Apart from the staff nurses, SNAs, CNAs, RCTs, and unit
assistants, whose duties are described above, the unit secretary
is the only position in the petitioned-for unit about which there
is record evidence. The unit secretaries report to the medical
records supervisor, who reports, in turn, to the director of medi-
cal records. Unit secretaries work from 7 or 8 a.m. to 3 p.m.
They are each assigned to cover two to three units. They are
responsible for the residents’ charts and start the paperwork for
discharges. They book appointments for residents and arrange
transportation for them. They call the dietary department if
food trays have not been delivered and page the maintenance
department regarding repairs needed on the unit. They photo-
copy documents. They bring discharge charts to the medical
secretary and may ask the medical secretary for forms to re-
quest a discharge summary from a hospital. They interact with
the switchboard operator in picking up mail, flowers, and pack-
ages for residents, or may tell the switchboard operator that an
ambulance will be picking up a resident.
Nursing department employees
Case mix/safety nurse Kathleen Conley reports to RN Kath-
leen Annello, the case mix supervisor, who reports in turn to
the director of nursing.37 The case mix/safety nurse must be a
licensed nurse; Conley is an LPN. Conley does not provide any
clinical care. She assists the case mix supervisor in submitting
quarterly management minute questionnaire (MMQ) forms for
every resident to the State Department of Public Welfare for
purposes of Medicaid reimbursement.38 As part of this process,
she reviews the nursing department’s compliance with the re-
quirement to document resident care by completing treatment
sheets, summaries, activities of daily living sheets, behavior
sheets, and positioning sheets. She observes residents and re-
views the nurses’ assessments of residents. She speaks to an
SNA if there is a problem with the activities of daily living
sheets that the CNAs are required to complete. In her role as
safety nurse, she reviews incident reports and investigates re-
ports of injuries to residents. She assists the case mix supervi-
sor and pharmacy supervisor with “CQI” audits and participates
in audits by the Department of Public Health. Conley acts as a
liaison with the pharmacy and makes sure that medical supplies
arrive on time. Conley works from 8 am. to 4 p.m., Monday
through Friday. She shares an office with Annello near the
medical records office and spends about half her time there and
half on the units.

37 The parties have stipulated, and I find, that case mix supervisor,
Kathleen Annello, is a statutory supervisor who should be excluded
from any unit found appropriate.
38 The case mix/safety nurse completes MMQ forms for every resi-
dent, even those that are not eligible for Medicaid.
The nursing secretary reports to the director of nursing.39
She performs a variety of typing work for the department, as-
sists the staffing coordinator in scheduling nursing employees,
maintains nursing department files, distributes mail, schedules
meetings, takes minutes, and answers nursing office phones.
Social Service Department Employees
Director of social services, Carol Malinowski, reports to the
administrator.40 Three social workers, an admissions coordina-
tor,41 and two assistant admissions coordinators report to her.
The admissions office is located on the first floor near the
switchboard. The social workers work out of offices in the
West and South buildings.
The admissions coordinator and assistant admissions coordi-
nators are responsible for promoting a smooth transition for
new residents. They give tours of the facility and visit and
assess potential residents in hospitals and homes. They provide
pre-admission information about residents to the medical re-
cords, nursing, and activities staff. They contact the house-
keeping department to prepare a room for new residents and
check the room on the day of admission; they may occasionally
clean a room with a housekeeper if it is not ready for an immi-
nent admission. They may work with the housekeeping or
laundry departments to resolve problems for newly admitted
residents. They work days, Monday through Friday, although
one of them covers weekends. The admissions coordinator and
assistant admissions coordinators are required to have a high
school diploma and secretarial experience. The admissions
coordinator is a licensed social worker;42 Malinowski testified
that the license is not required for the position, but it is helpful.
The three social workers are required to be licensed social
workers; two have master’s degrees and one has a bachelor’s
degree.43 Each of them covers three units and about 120 to 140
residents. They are responsible for assisting residents with any
problems that may arise. For example, they help set up guardi-
anships and complete resuscitation and health care proxy forms.
They respond to inquiries from residents’ families and help
them obtain medical records from the medical records depart-
ment. They assist residents with roommate or tablemate prob-
lems. They arrange for the maintenance department to install
televisions for residents that bring them and arrange for the
installation and disconnection of telephone lines. They arrange
for services for residents who are discharged to their homes and
communicate with other facilities to which residents are dis-
charged. The social workers complete a social work history on
each resident within 14 days of admission and complete the
39 Her job description states that she reports to the director of nurs-
ing, although an organizational chart for the department indicates that
she reports to the staffing coordinator, who reports to the assistant
director of nursing.
40 The parties have stipulated, and I find, that Director of Social Ser-
vices Carol Malinowski is a statutory supervisor who should be ex-
cluded from any unit found appropriate.
41 There is currently just one admissions coordinator, although the
facility normally has two.
42 The admissions coordinator has only a high school diploma, but
was “grandfathered in” to obtain her license.
43 The parties have stipulated, and I find, that the social workers are
professional employees.
MARIAN MANOR FOR THE AGED 1093
social work portion of the MDS forms. They attend the twice-
weekly interdisciplinary care plan meetings. The social work-
ers work days from Monday through Friday, although one of
them works until 8 p.m. on Wednesdays.
Accounting department employees
The accounting department is headed by a comptroller, who
reports to the administrator, and an assistant comptroller.44 The
accounting office is located in the same area as the social ser-
vices and human resource department offices. This department
includes a bookkeeper IV, three bookkeeping clerks, an ac-
counts payable bookkeeper, an accounts receivable supervisor,
and a posting clerk, all of whom Marian Manor would include
in the unit.
Bookkeeper IV, Joanne Costello, works at a desk in the so-
cial services office and is jointly supervised by the comptroller
and the director of social services.45 Costello is responsible for
completing the forms required for the approval of Medicare and
Medicaid applications for new and re-admitted residents. She
notifies the State Department of Public Welfare regarding any
changes in the status of Medicaid residents. Hospitals contact
Costello regarding residents to be discharged to Marian Manor,
and Costello informs the staff nurses about the residents to be
admitted to their unit. Staff from the units, including supervi-
sors, staff nurses, or SNAs, give her information about resi-
dents’ diagnosis and medications. She interacts with the social
workers, MDS staff, Medicare coordinator, and the case
mix/safety nurse.
Costello has a bachelor’s degree and is a licensed social
worker, although her job requires only a high school diploma,
with a college degree preferred. Because of her background,
she occasionally attends interdisciplinary care plan meetings on
behalf of the social services department when no social worker
is available to go.
Three bookkeeping clerks, Cathy O’Connor, Lois Hayes, and
Sandra Kelly, prepare bills for private-pay residents and for
insurance companies, showing Marian Manor’s charges and
payments made. Kelly also works in a bank maintained for
residents that is open for business 2-hours per day, and she does
the bookkeeping for the bank. The bookkeeping clerks work
Monday through Friday during the day. One works part-time
and two work full-time.
Accounts payable bookkeeper, Barbara Frazer, pays Marian
Manor’s bills. She matches invoices with purchase orders.
About 30 percent of the bills she receives for payment have no
corresponding purchase order. In that event, she contacts the
relevant department to confirm that the bill should be paid. She
usually talks to a supervisor such as the director of nursing,
director of maintenance, or housekeeping director. In some
cases she may speak to a staff nurse or SNA who can obtain

44 Corporate compliance officer, Kevin Coyne, testified about these
employees; he does not supervise them but works with them. The
parties have stipulated, and I find, that Coyne is a statutory supervisor
who should be excluded from any unit found appropriate.
45 The director of social services performs Costello’s annual evalua-
tion, but the accounting office gives her direction in terms of financial
matters.
information from a resident’s chart regarding medications,
oxygen, or X-ray services that have been provided.
Accounts receivable supervisor, Ellie Brock, processes
checks received by Marian Manor and credits them to the
proper account. She assigns work to posting clerk, Marie Bai-
ley, who also performs this function. Bailey also works in the
bank for residents.
Human resources employees
The human resources department is headed by a human re-
sources director, who reports to the administrator. The depart-
ment is located near the accounting office. Payroll distribution
clerk, Lisa Mallon, reports to the payroll supervisor, who re-
ports to the human services director. Mallon works 1-day per
week from 8 a.m. to 4 p.m., distributing paychecks in sealed
envelopes. Employees come to her office to pick up their pay-
checks.
Two staff development assistants, Mary Ellen Rehm and
Nancy Roache, report to the staff development director, Wanda
English, who reports to the human resources director. The staff
development assistants perform four functions. First, they as-
sist English in running 2-week training programs that lead
trainees to certification as certified nursing assistants. Partici-
pants in these programs may not necessarily become employees
of Marian Manor. The two staff development assistants each
spend 2 weeks per month assisting English in this program.
Second, the staff development assistants orient newly hired
CNAs to Marian Manor, by virtue of a 1-week training program
on the units on 3 North or 4 North. They observe the CNAs
working with residents and, at the end of the week, report their
observations of the CNAs’ work in a written report. They
make no recommendations regarding continued employment.
Third, the staff development assistants run a general orientation
program every Monday for new employees in all departments.
They run a film, hand out policies and procedures, and give
tours of the facility. Fourth, the staff development assistants
assist the staff development director during continuing educa-
tion programs by running films and distributing handouts and
sign-in sheets. There are about 25 in-service programs each
month, each lasting about 45 minutes to an hour. The staff
development assistants are required to be high school graduates
or have equivalent life experience.
Working Conditions and Benefits
The same employee handbook and policies apply to all
Marian Manor employees. With the exception of the life insur-
ance benefit described above, all nonsupervisory employees
receive the same fringe benefits. Marian Manor has a coffee
shop that is used by all of its employees for meals and breaks.
The staff nurses and employees in the petitioned-for service
and maintenance unit are hourly paid. The Medicare coordina-
tor, case mix/safety nurse, admissions coordinator, social
worker, and bookkeeper IV are salaried employees. The RN
assessment and care plan coordinator, MDS nurse, staff devel-
opment assistants, assistant admissions coordinators, and main-
tenance department employees are hourly paid. The pay of the
staff nurses, CNAs, unit assistants, and RCTs varies, depending
on their shift.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094
Analysis
In Park Manor Care Center,46 the Board ruled that the
proper test for determining the appropriateness of bargaining
units in nonacute care health care institutions is the “empirical
community of interest test.” Under that test, the Board consid-
ers community-of-interest factors, as well as those factors con-
sidered relevant by the Board in its rulemaking proceedings on
Collective-Bargaining Units in the Health Care Industry.47 The
Board further considers the evidence presented during rulemak-
ing with respect to units in acute care hospitals, and prior cases
involving either the type of unit sought or the type of health
care facility in dispute.
As always, in making unit determinations, the Board’s task is
not to determine the most appropriate unit, but simply to deter-
mine an appropriate unit. P. J. Dick Contracting.48 In so do-
ing, the Board looks first to the unit sought by the petitioner. If
it is appropriate, the inquiry ends. If however, it is inappropri-
ate, the Board will scrutinize the Employer’s proposals. Dez-
con, Inc.49
A. Appropriateness of a Service and Maintenance Unit
Since the rulemaking, the Board has held that a service and
maintenance unit in a nursing home is presumptively appropri-
ate. Jersey Shore Nursing & Rehabilitation Center.50 I find,
therefore, that the service and maintenance unit sought by Lo-
cal 285 is an appropriate unit and end the scope of the inquiry
there. There remain, however, several unit composition issues.
1. Maintenance department employees
Local 285 asserts, citing Hebrew Home & Hospital,51 that
the maintenance department employees must be excluded from
the unit as skilled maintenance employees. In that case, the
Board approved a petitioned-for skilled maintenance unit con-
sisting of the plant operations and maintenance department at a
nursing home, notwithstanding the employer’s assertion that
the employees were not skilled maintenance employees and
belonged in a unit with other unskilled, nonprofessional em-
ployees. Unlike the case here, however, three of the nine main-
tenance mechanics in Hebrew Home & Hospital were licensed
as maintenance mechanics or electrical engineers and were,
thus, able to independently perform plumbing, mechanical, and
electrical work. One employee had obtained his license after
completing an apprenticeship program, the hallmark of a skilled
maintenance employee. In contrast, none of the maintenance
employees at Marian Manor is licensed and none has completed
an apprenticeship program. The maintenance employees per-
form routine repair work that does not require the level of skill
necessary to a finding of skilled maintenance status. See Four

46 305 NLRB 872 (1991).
47 Second Notice of Proposed Rulemaking, 53 Fed.Reg. 33900
(1988), reprinted at 284 NLRB 1528, and Final Rule, 54 Fed. Reg.
16336 (1989), reprinted at 284 NLRB 1580 and codified at Sec. 103.30
of the Board’s Rules.
48 290 NLRB 150 (1988).
49 295 NLRB 109, 111 (1989).
50 325 NLRB 603 (1998).
51 311 NLRB 1400 (1993).
Seasons Nursing Center of Joliet52 (petitioned-for unit of main-
tenance employees at a nursing home does not have interests
separate from those of other employees, where their duties do
not require a high degree of skill or specialized training; em-
ployees perform duties such as moving furniture, replacing
light bulbs, keeping up the outer grounds, minor functions of
carpentry, painting, and painting, and minor repair work). I
shall include them in the service and maintenance unit.53
2. Clerical employees
Local 285 seeks to exclude the accounts receivable supervi-
sor, posting clerk, accounts payable clerk, bookkeeping clerks,
payroll distribution clerk, switchboard operator, relief operator,
and clerk-typist as business office clericals. Local 285 con-
tends that, notwithstanding her title, the bookkeeeper IV’s func-
tion allies her with the social services department, so that she
should be included in a unit of other professionals; alterna-
tively, it seeks to exclude her as a business office clerical.54
Marian Manor seeks to include all of these employees in the
service and maintenance unit.
In the rulemaking, the Board recognized the distinction be-
tween business office clericals, who are typically excluded
from service and maintenance units, and other clericals, who
are consistently included in such units where they have contact
with the service and maintenance employees. The Board noted
that business office clericals perform distinct functions, such as
handling finances and billing, and dealing with Medicare,
Medicaid, and other reimbursement systems. They are gener-
ally supervised separately in business office clerical depart-
ments and have little interaction with other nonprofessionals.
Lincoln Park Nursing Home.55
I find that the accounts receivable supervisor, posting clerk,
accounts payable clerk, bookkeeping clerks, and bookkeeper IV
are business office clericals and will exclude them from the
unit. All of them are separately supervised in the accounting
department.56 They perform traditional business office clerical
functions, such as billing, handling reimbursement from Medi-
care and Medicaid, posting checks to the proper account, and
bookkeeping. CGE Caresystems, Inc.57 (billing, filing, and
accounting clerks who work in separate billing area and are
responsible for processing bills and claims under Medicare and
other reimbursement programs excluded from service and
maintenance unit).
I find that the remaining clericals, i.e., the medical secretary,
nursing secretary, switchboard operators, relief operators, clerk-
typist, and payroll distribution clerk, share a sufficient commu-
52 208 NLRB 403 (1974).
53 In light of my finding that none of the maintenance department
employees is a skilled maintenance employee, I find it unnecessary to
reach the issue of whether or not Local 285 should be relieved of its
stipulation to include the groundskeeper in the service and maintenance
unit. I would have reached the same result even if the parties had never
stipulated to include the groundskeeper in the unit.
54 Local 285 took no position in its posthearing brief with respect to
the medical secretary and nursing secretary.
55 318 NLRB 1160, 1164 (1995).
56 The bookkeeper IV is jointly supervised by the accounting and so-
cial services departments.
57 328 NLRB 748 (1999).
MARIAN MANOR FOR THE AGED 1095
nity of interest with the petitioned-for service and maintenance
employees to warrant their inclusion in the unit. In reaching
this conclusion, I note that the petitioned-for unit includes other
clerical employees, i.e., unit secretaries. The petitioned-for unit
secretaries are located in the same department as the medical
secretary, and the current medical secretary was previously a
unit secretary. The medical secretary, switchboard operators,
relief operators, and clerk-typist have work-related contact with
unit employees. For instance, the switchboard operators inter-
act with the unit secretaries, who pick up mail, flowers, and
packages for residents and inform the switchboard operators
that ambulances will be arriving to pick up residents. The
medical secretary goes to the units to exchange information
with the staff nurses and SNAs. The clerk-typist types meeting
minutes for SNAs and staff nurses, and the payroll distribution
clerk distributes paychecks to all employees. Lincoln Park
Nursing Home58 (nursing department secretaries, nursing de-
partment payroll clerk, and receptionists fit within the “other
types of clericals” classifications which traditionally have been
included in service and maintenance units, notwithstanding that
they have limited or no interaction with service and mainte-
nance employees and do not perform work closely related to
the functions performed by service and maintenance employ-
ees); Levine Hospital of Hayward,59 (medical records clerks
and transcribers belong in currently existing broad service and
maintenance unit).
3. Staff development assistants
The staff development assistants share a sufficient commu-
nity of interest with the petitioned-for service and maintenance
employees to warrant their inclusion in the unit. They train the
new CNAs during their orientation period and have contact
with other service and maintenance employees during general
orientation and continuing education programs. They are high
school graduates whose level of education is similar to that of
other unit employees and, like them, they are hourly paid.
4. Assistant admissions coordinators
I also find that the assistant admissions coordinators share a
sufficient community of interest with the service and mainte-
nance employees to include them in the unit. They must inter-
act with employees in various departments, including house-
keeping, nursing, and medical records, in order to ensure a
smooth transition for new residents. Like the unit employees,
they are high school graduates and hourly paid.
B. Appropriateness of a Unit of All Staff Nurses
Local 285 seeks to represent a unit limited to staff nurses,
both RNs and LPNs.60 As an alternative to its primary conten-
tion that only a wall-to-wall unit composed of all of its profes-

58 Supra at 1163–1165.
59 219 NLRB 327 (1975).
60 I find, pursuant to well-established Board law, that the RNs are
professional employees and the LPNs are nonprofessional, technical
employees. Therefore, an election in such a unit would require the
Board to employ its Sonotone procedures. See, Sonotone Corp., 90
NLRB 1236 (1950).
sional and nonprofessional employees is appropriate,61 Marian
Manor contends that the social worker, admissions coordinator,
RN assessment and care plan coordinator, MDS nurse, Medi-
care coordinator, and case mix/safety nurse must be included in
the petitioned-for unit of staff nurses.
I must first consider whether the petitioned-for staff nurses
could constitute a separate appropriate unit. The record reflects
that the staff nurses are administratively segregated into the
nursing department. They are all required to be graduates of an
accredited nursing program and currently licensed by the
Commonwealth of Massachusetts. Their supervisors, i.e., unit
supervisors, nursing supervisors, the assistant director of nurs-
ing, and the director of nursing, are all nurses. The staff nurses
are engaged in the direct care of residents. They are the only
professionals who provide around-the-clock coverage on the
units during three 8-hour shifts. They participate in interdisci-
plinary care plan meetings with social workers, the RN assess-
ment and care plan coordinator, MDS nurse, and Medicare
coordinator. There is no evidence of any transfers or inter-
change between the staff nurses and these other nurses, the
social worker, or the admissions coordinator. The staff nurses
are hourly paid, and their pay varies by shift.
In South Hills Health System Agency,62 the Board considered
for the first time since Park Manor whether a unit limited to
RNs at a nonacute care home health facility, rather than a unit
of all professional employees, is appropriate for collective bar-
gaining. In that case, the Board denied review of the Regional
Director’s determination that the petitioned-for all-RN unit was
appropriate. For the same reasons set forth in that case, I find
that a unit limited to RNs and LPNs is appropriate at Marian
Manor. The specialized training and licensure required of
nurses clearly prevents other professionals from performing RN
or LPN work and vice versa. Although the staff nurses and
social workers participate together in interdisciplinary teams,
the Board has found that the use of a multidisciplinary team
approach to ensure the coordination of care does not alter each
licensed professional’s responsibility for his or her individual
scope of practice. As it does not appear that a combined unit of
RNs, LPNs, and other professionals is the only appropriate unit
for collective bargaining, I shall exclude the social workers and
admissions coordinator from the unit.
The issue of whether the smallest appropriate unit must also
include nurses who do not perform direct care of residents, i.e.,
the Medicare coordinator, RN assessment and care plan coordi-
nator, MDS nurse, and case mix/safety nurse, presents a closer
question. The Board has sometimes found that nurses who
perform administrative duties such as the nurses in dispute here
are properly included in a unit of direct care nurses, because of
their common education and licensure and because they spend
most of their time on patient care units where they have fre-
quent contact with staff nurses, notwithstanding the fact that
they are separately supervised, do not work around the clock,
and never fill in for staff nurses. Pocono Medical Center63
61 Obviously, I have rejected that contention in approving the peti-
tioned-for service and maintenance unit.
62 330 NLRB 653 (2000).
63 305 NLRB 398 (1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1096
(discharge planner and quality review nurses included in RN
unit); Long Island College Hospital64 (small number of RNs
employed outside the nursing department, including utilization
review coordinators, included in RN unit); Frederick Memorial
Hospital65 (RNs employed outside of the nursing division, in-
cluding a utilization review nurse and infection surveillance
nurse, included in RN unit). But see Ralph K. Davies Medical
Center66 and Addison Gilbert Hospital,67 in which the Board
declined to include utilization review coordinators in RN units
because of the administrative nature of their duties.68
I find that the interests of the nondirect care nurses at issue
here are more closely aligned with those of the staff nurses than
those of the other professionals at Marian Manor. These nurses
have the same educational background and license as the staff
nurses and, like the staff nurses, report to other nurses. They
have substantial work-related contact with the staff nurses in
completing the documentation required by Medicare and Medi-
caid and in attending interdisciplinary meetings to formulate
care plans. I also note that they appear to be the only other
nonsupervisory nurses at Marian Manor.69 Accordingly, I shall
include them in the unit with the staff nurses.
CONCLUSION
Accordingly, based on the foregoing and the stipulations of
the parties at the hearing, I find that the following employees of
Marian Manor constitute a unit appropriate for collective bar-
gaining within the meaning of Section 9(b) of the Act:

All full-time and regular part-time service and maintenance
employees employed by Marian Manor at its South Boston,
Massachusetts facility, including certified nursing assistants,
senior nursing assistants, resident care technicians, rehab
aides, unit assistants, unit secretaries, cooks, assistant cooks,
dietary aides, kitchen porters, food service workers, bakers,
laundry workers, activities leaders, office assistants, porters,
housekeepers, stock clerks, storeroom clerks, hairdressers,
clinic coordinators, maintenance mechanics, painters, carpen-
ter, groundskeeper, payroll distribution clerk, switchboard op-
erator, relief operators, clerk-typist, medical secretary, nursing
secretary, staff development assistants, and assistant admis-
sions coordinators, but excluding business office clericals,
guards, and supervisors as defined in the Act.

With respect to the staff nurses’ unit, in view of the statutory
requirement that the Board may not join professional and non-
professional employees in a single unit without the desires of
the professional employees being determined in a separate vote,
I shall, pursuant to the Board’s decision in Sonotone Corp.,70

64 256 NLRB 202, 207 (1981).
65 254 NLRB 36, 38–39 (1981).
66 256 NLRB 1113 (1981).
67 253 NLRB 1010 (1981).
68 In both of those cases, unlike here, however, the Board also relied
on the fact that the utilization review coordinators were not required to
be nurses.
69 The organizational chart for the nursing department shows an in-
fection control nurse and a staffing coordinator, but there was no testi-
mony or other evidence about these positions.
70 90 NLRB 1236 (1950).
direct separate elections in voting groups 1 and 2. The employ-
ees in group 1, the professional employees, will be asked the
following two questions on their ballots.
1. Do you desire to be included in the same unit as nonpro-
fessional employees employed by the Employer for the pur-
poses of collective bargaining?
2. Do you desire to be represented for the purposes of col-
lective bargaining by Service Employees International Union,
Local 285, AFL–CIO?
If a majority of the professional employees in voting group 1
vote yes to the first question, indicating their desire to be in-
cluded in a unit with nonprofessional employees, they will be
so included. Their vote on the second question will then be
counted with the votes of the nonprofessional employees in
voting group 2 to decide the representative for the combined
bargaining unit. If, on the other hand, a majority of the profes-
sional employees in voting group 1 do not vote for inclusion,
they will not be included with the nonprofessional employees
and their votes on the second question will be separately
counted to decide whether or not they wish to be represented by
the Petitioner in a separate professional unit.
The ultimate determination as to the appropriate unit or units
is based on the result of the election. However, I make the
following findings with regard to the appropriate unit.
1. If a majority of the professional employees vote for inclu-
sion in a unit with nonprofessional employees, I find that the
following employees will constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section
9(b) of the Act:

All full-time and regular part-time registered nurses and li-
censed practical nurses, including staff nurses, Medicare co-
ordinator, RN assessment and care plan coordinator, MDS
nurse, and case mix/safety nurse, but excluding all other em-
ployees, guards, and supervisors as defined in the Act.

2. If a majority of the professional employees do not vote
for inclusion in the unit with the nonprofessional employees, I
find the following two units to be appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of
the Act:

UNIT 1:
All full-time and regular part-time registered nurses, including
staff nurses, Medicare coordinator, RN assessment and care
plan coordinator, and MDS nurse, but excluding all other em-
ployees, guards, and supervisors as defined in the Act.

UNIT 2:
All full-time and regular part-time licensed practical nurses,
including staff nurses and case mix/safety nurse, but exclud-
ing all other employees, guards, and supervisors as defined in
the Act.
DIRECTION OF ELECTIONS
Separate elections by secret ballot shall be conducted by the
Regional Director among the employees in the unit and voting
groups found appropriate at the time and place set forth in the
notice of election to be issued subsequently, subject to the
Board’s Rules and Regulations. Eligible to vote are those in
MARIAN MANOR FOR THE AGED 1097
the unit and voting groups who were employed during the pay-
roll period ending immediately preceding the date of this Deci-
sion, including employees who did not work during that period
because they were ill, on vacation, or temporarily laid off. Also
eligible are employees engaged in an economic strike which
commenced less than 12 months before the election and who
retained their status as such during the eligibility period and
their replacements. Those in the military services of the United
States may vote if they appear in person at the polls. Ineligible
to vote are employees who have quit or been discharged for
cause since the designated payroll period, employees engaged
in a strike who have been discharged for cause since the com-
mencement thereof and who have not been rehired or reinstated
before the election date, and employees engaged in an eco-
nomic strike which commenced more than 12 months before
the election date, and who have been permanently replaced.
Those eligible shall vote whether or not they desire to be repre-
sented for purposes of collective bargaining by Service Em-
ployees International Union, Local 285, AFL–CIO.