Michigan Masonic Home

National Labor Relations Board - Board Decisions

Dec 15, 2000

332 N.L.R.B. 1409 (N.L.R.B. 2000)

MICHIGAN MASONIC HOME 1409
Michigan Masonic Home and Local 486, Interna-
tional Brotherhood of Teamsters, AFL–CIO.
Case 7–RC–21662
December 15, 2000
DECISION ON REVIEW AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On October 15, 1999, the Regional Director for Re-
gion 7 issued a Decision and Direction of Election in the
above-titled proceeding, in which he found that the Em-
ployer’s licensed practical nurses (LPNs) are not super-
visors within the meaning of Section 2(11) of the Act.
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Employer filed a
timely request for review of the Regional Director’s de-
cision. By Order dated November 12, 1999, the Board
granted the Employer’s request for review solely with
respect to the Regional Director’s finding that the Em-
ployer’s LPNs do not possess supervisory authority with
respect to their role in the Employer’s disciplinary proc-
ess.1 The election was conducted as scheduled on No-
vember 12, 1999, and the ballots were impounded.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully reviewed the record, including the
Employer’s brief on review, we affirm the Regional Di-
rector’s findings for the reasons set forth below.
The Employer operates a continuing care retirement
community consisting of facilities providing three levels
of service: an independent care center; a skilled nursing
center; and a licensed home for the aged. The Employer
maintains a single nursing department. The petitioned-
for LPNs are all physically located in either the skilled
nursing center or the home for the aged. There are 204
beds in the skilled nursing center and 222 beds in the
home for the aged. The Employer’s nursing depart-
ment’s hierarchy consists of a facility administrator and
an associate administrator, who are together responsible
for the entire nursing operation; a director of nursing
(DON); an assistant director of nursing; 4 nurse manag-
ers; 45 LPNs; and approximately 115 certified equiva-
lency nursing assistants (CENAs).
The term “supervisor” is defined in Section 2(11) of
the Act as:

[A]ny 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 to recommend such ac-
tion, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.

.

1 Member Hurtgen, dissenting in part, would have granted the Em-
ployer’s request for review in its entirety.
The possession of any one of the above listed criteria will
render a person a statutory supervisor so long as exercise of
that authority is not routine but requires the use of inde-
pendent judgment. Vencor Hospital–Los Angeles, 328
NLRB 1136, 1138 (1999).
The Board has long held that the burden of proving
supervisory status rests on the party asserting that such
status exists. Ohio Masonic Home, 295 NLRB 390, 393
(1989).2 Thus, any lack of evidence in the record is con-
strued against the party asserting supervisory status.
Elmhurst Extended Care Facilities, 329 NLRB 535, fn. 8
(1999). In making determinations regarding supervisory
status under Section 2(11) of the Act, “the Board has a
duty not to construe the statutory language too broadly
because the individual found to be a supervisor is denied
employee rights protected under the Act.” St. Francis
Medical Center-West, 323 NLRB 1046, 1047 (1997).
As explained below, we agree with the Regional
Director’s finding that on this record the Employer has
not met its burden of establishing that the LPNs perform
a supervisory function in disciplining employees
1. Effectively recommending discipline
The Employer has a progressive disciplinary policy
that provides different penalties for different infractions.
Certain misconduct warrants immediate discharge, while
less serious offenses merit only an oral or written warn-
ing. However, under the policy as written in the Em-
ployer’s policy manual, even a minor offense could re-
sult in discharge if it is the fourth such offense.
It is undisputed that LPNs do not have the authority to
issue formal verbal and written warnings. Nurse manag-
ers can independently issue formal verbal and written
warnings, but only the administrators and the DON can
make a final determination regarding employee suspen-
sion or discharge. In making such final determinations,
the administrators and DON review testimony from wit-
nesses, anecdotal notes from the employee’s peer evalua-
tion forms, and, if applicable, the nurse manager’s inde-
pendent investigation report. The issue presented here is
whether the LPNs have limited authority to make rec-
ommendations to nurse managers as to whether a particu-
2 We recognize that this case arises in the Sixth Circuit and that the
Sixth Circuit Court of Appeals has disagreed with the Board regarding
the issue of which party has the burden of proof in establishing supervi-
sory status and the meaning of the term “independent judgment” in Sec.
2(11). We note, however, that the Supreme Court has recently granted
certiorari to resolve the conflict in the circuits over these issues. NLRB
v. Kentucky River Community Care, 121. S.Ct. 27 (2000).
332 NLRB No. 150
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1410
lar employee should receive some form of formal disci-
pline.
The Employer’s associate administrator, Cindy Bosley,
testified that when an LPN encounters a problem with a
CENA, the LPN counsels that employee, documents the
incident, and, “if necessary,” makes a recommendation to
a nurse manager as to whether some formal disciplinary
action should be taken. Mark Royer, one of the Em-
ployer’s four nurse managers, testified that when a nurse
manager receives a recommendation from an LPN re-
garding formal discipline, the nurse manager “inter-
view[s] the charge nurse [i.e., LPN] who reported the
incident, and review[s] her documentation.” According
to Royer, nurse managers rely on the report of the LPN
and the Employer’s policy manual in making lower level
disciplinary decisions (i.e., formal verbal and written
warnings). Royer stated that he always follows the
LPN’s recommendation unless it conflicts with policy.
We note, however, that the Employer’s policy manual
specifically lays out and categorizes an extensive list of
possible violations and the appropriate disciplinary ac-
tion to be taken for each offense.3 Royer acknowledged
that this level of specificity was implemented in order to
remove the “guesswork” from the process of assigning
the appropriate disciplinary action for any given offense.
Although Bosley and Royer testified generally that
LPNs could make specific recommendations for formal
discipline, the record is devoid of any specific examples
of LPNs actually making such recommendations. In fact,
the only LPN to testify stated that in her 22 years with
the Employer, she never recommended employee disci-
pline, and that the one time she did write up an incident
involving a CENA, it was at the direction of a nurse
manager. Further, neither the peer evaluations nor the
corrective action sheet submitted into evidence by the
Employer contains an LPN recommendation for disci-
pline.
Even if the LPNs do make specific recommendations
for formal discipline, the testimony of Mark Royer
shows that such recommendations are severely restricted
by the procedures mandated by the Employer’s policy
manual. Thus, we find that the Employer has failed to
show that LPNs use independent judgment in recom-

3 For example, “Class One” offenses include, inter alia, posting or
removal of notices, signs, or writing in any form on or from administra-
tive bulletin boards on Home property at any time without specific
authority of the CEO or department head; creating or contributing to
unsanitary conditions by improperly discarding refuse or leaving ob-
jects on the floor or putting them out windows on the Home’s premises;
and consuming food or beverages at unauthorized times in areas other
than those authorized by the administration. The Employer’s manual
indicates that an employee would receive a documented verbal warning
for the first such offense and a written warning for the second offense.
mending discipline. Western Union Telegraph Co., 242
NLRB 825, 827 (1979) (employee did not use independ-
ent judgment where her decisions were strictly regulated
by specific employer policy). We further find that the
Employer has failed to establish the extent to which the
LPNs’ recommendations are followed by nurse manag-
ers, and that the Employer has therefore also failed to
demonstrate that such recommendations are generally
effective.4 Vencor Hospital–Los Angeles, 328 NLRB
supra, slip op. at 6 (RNs did not effectively recommend
discipline when the record showed no evidence of any
instance in which a recommendation was made and, ac-
cordingly, no evidence with respect to what resulted
from such a recommendation).
Accordingly, we find that the Employer failed to show
that LPNs effectively recommend discipline within the
meaning of Section 2(11) of the Act.
2. Sending employees home
The Employer also contends that LPNs have supervi-
sory authority as they can send employees home for in-
toxication, patient abuse, and for performance-based rea-
sons. We find that this claim is not sufficiently sup-
ported by the record evidence to warrant a finding of
supervisory status.
The nurse manager and associate administrator gener-
ally averred that, in the absence of a higher level official,
LPNs would have this power. However, the LPNs’ job
description does not mention any such authority, there is
no written or orally disseminated policy that LPNs pos-
sess such authority, and the record is devoid of even a
single example of an LPN exercising such authority. The
one LPN who testified stated that she “did not know”
whether she had the authority to send an employee home
even in a case of patient abuse. In fact, when asked what
she would do if she came across a situation where a
CENA was endangering a resident, she said would re-
move the CENA from the situation rather than send her
home. Given the lack of specific evidence to support the
Employer’s claim, it has failed to meet its burden of
proving supervisory status. See Ten Broeck Commons,
320 NLRB 806 (1996) (failure to exercise supervisory
authority is probative of whether such authority exists);
Lakeview Health Center, 308 NLRB 75, 78 (1992) (find-
ing no actual authority to terminate where, inter alia,
4 We make this finding notwithstanding the associate administrator’s
testimony that she “d[id]n’t know of any times” that a nurse manager
failed to follow the recommendation of an LPN. Such testimony is of
negligible value as there was no indication in the record that the associ-
ate administrator would have been privy to such exchanges. Moreover,
the associate administrator gave no testimony indicating that she had
any actual knowledge of nurse managers following LPN recommenda-
tions.
MICHIGAN MASONIC HOME 1411
authority did not appear in job description and had never
been exercised).5
Accordingly, we affirm the Regional Director’s find-
ing that the Employer’s LPNs do not possess supervisory
authority with respect to their role in the Employer’s
disciplinary process.
ORDER
The Regional Director’s Decision and Direction of
Election is affirmed. The case is remanded to the Re-
gional Director for further appropriate action.

MEMBER HURTGEN dissenting.
Contrary to my colleagues, I conclude that the Em-
ployer’s LPNs are statutory supervisors. In my view, the
Employer’s LPNs’ disciplinary authority over the Em-
ployer’s CENAs renders them supervisors under Section
2(11) of the Act.
The Employer’s system of discipline involves various
kinds of “formal” discipline: verbal warning, written
warning, suspension, and discharge. Also, under the
Employer’s system of progressive discipline, repeated
offenses can lead to greater discipline. A discharge can
take place only if it is a serious offense or a fourth minor
offense.
When an LPN observes a problem with a CENA, the
LPN can decide to document the incident and can decide
whether to recommend formal discipline. Thus, the LPN
uses independent judgment in deciding whether to
document the incident and whether to recommend formal
discipline.
The Regional Director found that LPNs can and do
document disciplinary incidents regarding job perform-
ance, refusal to perform job duties, or problems with
other staff employees. In addition, LPNs can and do

5 Moreover, we have long held that the authority to suspend or send
employees home for flagrant violations such as patient abuse or intoxi-
cation does not demonstrate supervisory authority because it does not
require the use of independent judgment. See Vencor Hospital, supra,
slip op. at 4; Northcrest Nursing Home, 313 NLRB 491, 497 (1993).
make recommendations regarding disciplinary action.
According to the Employer’s nurse manager, Royer,
nurse managers rely on and follow the recommendations
of the LPNs. And, the associate administrator testified,
without contradiction, that she did not know of any time
when a recommendation of an LPN was not followed.
My colleagues nonetheless state that LPNs do not use
independent judgment in their recommendations. They
note that an administrator or the director of nursing
makes a final determination regarding an employee’s
suspension or discharge. However, the fact that higher
authority makes a final decision does not undercut the
fact that the LPN makes an effective recommendation
regarding the discipline to be imposed. My colleagues
also state that any LPNs’ recommendations are “severely
restricted by the procedures mandated by the Employer’s
policy manual.” However, this does not belie the signifi-
cant authority of the LPNs. Even where the Employer’s
manual has set forth predetermined discipline for certain
infractions, the LPNs have the authority to decide
whether an infraction has occurred and whether disci-
pline should be recommended.
I also find that the LPNs are supervisors based on their
authority to send employees home from work–
particularly for performance-based reasons. The Em-
ployer presented evidence that LPNs have this authority.
Concededly, first-shift LPNs check with their superior
before sending an employee home. However, second-
and third-shift LPNs may do so without prior approval.
My colleagues discount the Employer’s evidence, find-
ing “lack of specific evidence.” I do not agree. The tes-
timony of the Employer’s nurse manager and associate
administrator was clear that the LPNs in fact have this
authority.
Based on the above, I conclude that the Employer’s
LPNs are Section 2(11) supervisors.