Northcrest Nursing Home

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 491 (N.L.R.B. 1993)

491
313 NLRB No. 54
NORTHCREST NURSING HOME
1 Until enactment of the 1947 Labor Management Relations Act,
amending the Wagner Act of 1935, supervisors were included in
coverage under the Act. Most of the language of Sec. 2(11) was con-
tained in the original Senate bill (S. 1126) proposed by Senator Taft.
However, the phrase ‘‘or responsibly to direct them’’ was added on
the Senate floor pursuant to an amendment offered by Senator Flan-
ders. See 93 Cong.Rec. 4677–4678 (1947), reprinted in 2 NLRB,
Legislative History of the Labor Management Relations Act, 1947,
at 1303–1304 (1985).
2 Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947), affg. 157
F.2d 80 (6th Cir. 1946), enfg. 64 NLRB 1212 (1945); underlying
representation case reported at 61 NLRB 4 (1945).
3 At the risk of oversimplifying the duties of a charge nurse, it ap-
pears to be the case that this term is used to refer to the nurse (RN
or LPN) who is in charge of a wing of a hospital or nursing home
during a particular shift. The charge nurse is ‘‘responsible for seeing
that the work is done, that medicines are administered to the pa-
tients, that the proper charts are kept, and that the patients receive
whatever treatment has been prescribed.’’ Abingdon Nursing Center,
189 NLRB 842, 850 (1972). Typically the charge nurse assigns tasks
to those nurses and aides working on the wing on her shift. The
charge nurse also directs the work of these other employees.
Beverly Enterprises—Ohio d/b/a Northcrest Nurs-
ing Home and District 1199, the Health Care
and Social Service Union, SEIU, AFL–CIO, Pe-
titioner. Case 8–RC–14773
November 26, 1993
DECISION ON REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDAUBAUGH
We have granted review in this case to consider
whether the licensed practical nurse charge nurses em-
ployed by Northcrest Nursing Home are supervisors
within the meaning of Section 2(11) of the Act. In his
Decision and Direction of Election, the Regional Di-
rector for Region 8 found that these individuals were
not supervisors. For the reasons stated herein, we af-
firm his decision.
Precedential Background
Section 2(11)
Section 2(11) of the Act sets forth the statutory defi-
nition of supervisor by enumerating certain authorities
in the disjunctive as follows:
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 em-
ployees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such
action, if in connection with the foregoing the ex-
ercise of such authority is not of a merely routine
or clerical nature, but requires the use of inde-
pendent judgment.1
The Wagner Act of 1935 did not distinguish between
employees and supervisors. However, in reaction to a
Supreme Court decision affirming the certification of a
unit of foremen,2 Congress passed the Senate version
of the supervisory definition which is now contained in
Section 2(11). The Senate report accompanying the
definition stated, in relevant part,
A recent development which probably more
than any other single factor has upset any real
balance of power in the collective-bargaining
process has been the successful efforts of labor
organizations to invoke the Wagner Act for cover-
ing supervisory personnel, traditionally regarded
as part of management, into organizations com-
posed of or subservient to the unions of the very
men they were hired to supervise.
. . . .
In drawing an amendment to meet this situa-
tion, the committee has not been unmindful of the
fact that certain employees with minor super-
visory duties have problems which may justify
their inclusion in that act. It has therefore distin-
guished between straw bosses, leadmen, set-up
men, and other minor supervisory employees, on
the one hand, and the supervisor vested with such
genuine management prerogatives as the right to
hire or fire, discipline, or make effective rec-
ommendations with respect to such action.
S. Rep. No. 105 80th Cong., 1st Sess. 3–4 (1947), re-
printed in 1 NLRB Legislative History of the Labor
Management Relations Act, 1947, at 407, 409–410
(1985).
Consistent with this legislative background, the
Board has been cautioned that in construing the super-
visory exemption, it should refrain from construing su-
pervisory status ‘‘too broadly’’ because the inevitable
consequence of such a construction is to remove the
individual from the protections of the Act. See Wes-
tinghouse Electric Corp. v. NLRB, 424 F.2d 1151,
1158 (7th Cir. 1970), cert. denied 400 U.S. 831
(1970); see also Quadrex Environmental Co., 308
NLRB 101, 102 (1992); cf. Schnuck Markets v. NLRB,
961 F.2d 700, 704 (8th Cir. 1992). On the other hand,
it has long been recognized that the supervisory defini-
tion is phrased in the disjunctive. Thus, possession of
any one indicia of supervisory status provides a suffi-
cient basis for finding supervisory authority. See Ohio
Power Co. v. NLRB, 176 F.2d 385, 387 (6th Cir.
1949), cert. denied 338 U.S. 899 (1949).
Pre-1974 Application of Section 2(11): Evolution
of the ‘‘Patient Care’’ Analysis
The Board began its consideration of Section 2(11)
in relation to charge nurses3 in 1967 when jurisdiction
was extended to proprietary hospitals and proprietary
492 NORTHCREST NURSING HOME
4 In 1967 the Board began asserting jurisdiction over proprietary
hospitals. See Medical Center Hospital, 168 NLRB 266 (1967). The
first case involving charge nurses was also decided in 1967. See
University Nursing Home, 168 NLRB 263, 264, 265 (1967) (assert-
ing jurisdiction over proprietary nursing homes and related facilities
and finding an LPN charge nurse to be a supervisor).
5 Sec. 2(12) provides in relevant part that,
The term ‘‘professional employee’’ means—
(a) any employee engaged in work (i) predominantly intellec-
tual and varied in character as opposed to routine mental, man-
ual, mechanical, or physical work; (ii) involving the consistent
exercise of discretion and judgment in its performance; (iii) of
such a character that the output produced or the result accom-
plished cannot be standardized in relation to a given period of
time; (iv) requiring knowledge of an advanced type in a field
of science or learning customarily acquired by a prolonged
course of specialized intellectual instruction and study in an in-
stitution of higher learning or a hospital, as distinguished from
a general academic education or from an apprenticeship or from
training in the performance of routine mental, manual, or phys-
ical processes . . . .
6 See, e.g., Southern Maryland Hospital, 274 NLRB 1470, 1471
(1985).
7 See, e.g., Doctors’ Hospital, 175 NLRB 354 (1969) (Board
agreed with Regional Director’s finding that RNs are highly trained
professionals who normally inform lesser skilled employees regard-
ing work to be performed for patients but ‘‘their duties and authority
in this regard are solely a product of their highly developed profes-
sional skills and do not constitute an exercise of supervisory author-
ity in the interest of their employer’’); later proceedings in this case,
Doctors’ Hospital of Modesto, 183 NLRB 950 (1970) (resolving
challenged ballots); Doctors’ Hospital of Modesto, 193 NLRB 833
(1971) (finding a violation of Sec. 8(a)(5) in refusal to bargain),
enfd. 489 F.2d 772 (9th Cir. 1973). See also Mountain Manor Nurs-
ing Home, 204 NLRB 425, 426 (1973); Leisure Hills Health Cen-
ters, 203 NLRB 326, 326–327 (1973); Madeira Nursing Center, 203
NLRB 323, 324 (1973); Garden of Eden Nursing Home, 199 NLRB
16, 23–24 (1972); Jackson Manor Nursing Home, 194 NLRB 892,
896 (1972); Eugene Good Samaritan Center, 191 NLRB 35, 39, 41
(1971); Abingdon Nursing Center, supra; Convalescent Center of
Honolulu, 180 NLRB 461, 461–462 (1969); New Fern Restorium
Co., 175 NLRB 871 at 871 (1969); cf. North Dade Hospital, 210
NLRB 588, 592 (1974) (LPN team supervisors with authority to ef-
fectively evaluate aides and other LPNs for purposes of wage in-
crease and to effectively recommend discharge are supervisors);
Avon Convalescent Center, 200 NLRB 702, 706 (1972), enfd. mem.
490 F.2d 1384 (6th Cir. 1974) (nurses with authority to assign and
responsibly to direct aides were supervisors); Garrard Convalescent
Home, 199 NLRB 711, 716 (1972) (LPN in question who had au-
thority to hire and discharge was supervisor); Rockville Nursing Cen-
ter, 193 NLRB 959, 962 (1971) (house supervisor has statutory au-
thority to responsibly direct); Autumn Leaf Lodge, 193 NLRB 638,
638, 639 (1971) (Moody, the LVN in question, was a supervisor due
to authority to grant time off and to effectively recommend dis-
charge and permanent transfer as well as her status as sole LVN on
night shift); Rosewood, Inc., 185 NLRB 193, 194 (1970) (LPN
charge nurses with authority to effectively recommend wage in-
creases and to discipline aides held supervisory). We note that the
unit scope holdings in New Fern Restorium Co., 175 NLRB 871
(1969), and Jackson Manor Nursing Home, 194 NLRB 892 (1972),
were overruled to the extent inconsistent with Madeira Nursing Cen-
ter, 203 NLRB 323 fn. 4 (1973). However, this does not affect the
2(11) holding, i.e., the supervisory status issues, in those cases.
8 National Labor Relations Act Amendments of 1974, Pub. L. 93–
360, 88 Stat. 395.
nursing homes.4 Assessment of supervisory status of
charge nurses requires an accommodation of Section
2(11) with the express congressional mandate in Sec-
tion 2(12) that professional employees not be excluded
from the protection of the Act.5 Professional, as well
as technical, employees are defined as those who, inter
alia, exercise independent judgment. Section
2(12)(a)(ii) of the Act defines professional work as
‘‘involving the consistent exercise of . . . judgment in
its performance.’’ Technical work also involves the use
of independent judgment.6 Presumably the Employer
has hired RNs and LPNs for their expertise, i.e., for
their ability to exercise independent judgment involv-
ing patient care. Professional and technical employees
should not lose the protections of the Act merely be-
cause they exercise independent judgment. Thus, the
Board’s task here is to determine whether the LPNs’
exercise of independent judgment is limited to their ex-
ercise of technical expertise or has been extended to
include the exercise of supervisory authority.
From 1967 until 1974, the Board decided a number
of charge nurse supervisory cases and generally found
the charge nurses were not supervisors.7 In Doctors’
Hospital of Modesto, supra, the Board drew a distinc-
tion between nurses who merely exercise professional
duties and those who were vested with power to affect
job status and pay. 183 NLRB at 951–952.
Health Care Amendments of 19748
During the Congressional proceedings surrounding
enactment of the 1974 Health Care Amendments
which extended Board jurisdiction to nonprofit hos-
pitals, a concern arose that professional health care
employees might be automatically classified super-
visory by the NLRB. When the bills were submitted
to the Senate and House of Representatives, the ac-
companying Committee Reports reflected the Commit-
tees’ conclusions that no amendment to Section 2(11)
was necessary. The Committees summarized their deci-
sions as follows:
Various organizations representing health care
professionals have urged an amendment to Sec-
tion 2(11) of the Act so as to exclude such profes-
sionals from the definition of ‘‘supervisor.’’ The
Committee has studied this definition with par-
ticular reference to health care professionals, such
as registered nurses, interns, residents, fellows,
and salaried physicians and concludes that the
proposed amendment is unnecessary because of
existing Board decisions. The Committee notes
that the Board has carefully avoided applying the
definition of ‘‘supervisor’’ to a health care profes-
sional who gives direction to other employees in
the exercise of professional judgment, which di-
rection is incidental [to] the professional’s treat-
ment of patients, and thus is not the exercise of
493DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 In NLRB v. Yeshiva University, 444 U.S. 672 (1980), the Court
stated that ‘‘[t]he Board has recognized that employees whose deci-
sionmaking is limited to the routine discharge of professional duties
in projects to which they have been assigned cannot be excluded
from coverage even if union membership arguably may involve
some divided loyalty’’ noting that ‘‘[i]n the health-care context, the
Board asks in each case whether the decisions alleged to be manage-
rial or supervisory are ‘incidental to’ or ‘in addition to’ the treatment
of patients, a test Congress expressly approved in 1974. S. Rep. No.
93-766, p. 6 (1974).’’ 444 U.S. at 690 and fn. 30. However, see Bev-
erly California Corp. v. NLRB, 970 F.2d 1548, 1554 fn. 7 (6th Cir.
1992).
10 In addition to using the patient care analysis in determining the
status of RN charge nurses who are professional employees,
Centralia Convalescent Center, 295 NLRB 42, 42–43 (1989), we
also apply the same analysis to LPN charge nurses. See, e.g., Wa-
verly-Cedar Falls Health Care, 297 NLRB 390, 393 (1989). LPN
charge nurses, ‘‘if not full-fledged professionals, [are] at least sub-
professionals.’’ NLRB v. Res-Care, Inc., 705 F.2d 1461, 1466 (7th
Cir. 1983); see also Barnert Memorial Hospital Center, 217 NLRB
775 (1975) (LPNs are technical employees—‘‘those who do not
meet the strict requirements of the terms professional . . . but whose
work . . . involv[es] the use of independent judgment and requir[es]
the exercise of specialized training usually acquired in colleges or
technical schools or through special courses.’’).
11 NLRB v. Res-Care, Inc., supra at 1466 (citing Packard Motor
Co. v. NLRB, 330 U.S. at 494–495 (1947) (dissenting opinion).
supervisory authority in the interest of the em-
ployer.
The Committee expects the Board to continue
evaluating the facts of each case in this manner
when making its determinations.
S. Rep. No. 766, 93d Cong., 2d Sess. 6 (1974), re-
printed in 1974 U.S. Code Cong. & Ad. News 3946,
3951; and reprinted in NLRB, Legislative History of
the Coverage of Nonprofit Hospitals under the Na-
tional Labor Relations Act, 1974, at 8, 13; H.R. Rep.
No. 1051, 93d Cong., 2d Sess. 7 (1974) (same), re-
printed in NLRB, Legislative History of the Coverage
of Nonprofit Hospitals under the National Labor Rela-
tions Act, 1974, at 269, 275 (1974). Congress did not
amend Section 2(11) when it approved the Health Care
Amendments on July 26, 1974.9
Supervisory issues are, of course, highly fact bound.
Deciding whether an individual possesses any 2(11) in-
dicia of supervisory authority often calls for making
delicate, difficult, and even fine distinctions, and there
are frequently gray areas. In almost any employment
situation employees are given direction by other em-
ployees including more experienced, straw boss, tech-
nical, and professional employees. Whether that direc-
tion is routine or responsible or requires independent
judgment is the focus of the litigation of these issues
whether in the health care industry or not.
Post-1974 Decisions of the Board and Courts
Since 1974, the Board has utilized the ‘‘patient
care’’ analysis as an aid to determining supervisory
status of charge nurses to insure that they not be ex-
cluded from coverage simply because of their profes-
sional responsibility.10 Stated briefly, that analysis ex-
amines whether the alleged supervisory conduct of the
charge nurses is the exercise of professional judgment
incidental to patient care or the exercise of supervisory
authority in the interest of the employer. For example,
in Newton-Wellesley Hospital, 219 NLRB 699, 699–
700 (1975), we stated,
[T]he test for determining whether a health care
professional is a supervisor is whether that indi-
vidual, who may give direction to other employ-
ees in the exercise of professional judgment
which is incidental to the professional’s treatment
of patients, also exercises supervisory authority in
the interest of the employer. [Footnote omitted.]
Patient Care Analysis: Assignment and Direction
In determining the existence of supervisory status,
the Board must first determine whether the individual
possesses any of the 12 indicia of supervisory authority
and, if so, whether the exercise of that authority entails
‘‘independent judgment’’ or is ‘‘merely routine.’’ If
the individual independently exercises supervisory au-
thority, the Board must then determine if that authority
is exercised ‘‘in the interest of the employer.’’
The Board has described that determination in the
health care field in terms of a dichotomy between the
interest of the employer and the interest of the patient.
The statutory term ‘‘in the interest of the employer’’
connotes the employer’s expectation of loyalty from
individuals to whom it has delegated certain authori-
ties.11 Charge nurses exercise responsibilities in assign-
ing work and directing employees in order to provide
sound patient care. These responsibilities derive from
the charge nurses’ professional or technical status.
When these responsibilities involve the use of the
charge nurses’ independent judgment, there will sel-
dom exist the risk of a conflict of interest between the
employer and employees such that the employer must
be able to demand the nurses’ loyalty in exercising
those responsibilities. When making decisions concern-
ing which aides to assign to specific patients, or the
order in which tasks are to be performed, and in in-
structing aides in the proper methods of attending to
patients’ needs, charge nurses simply are not forced to
choose between the interests of the employer and those
of the other employees, because the two sets of inter-
ests will rarely diverge. (Likewise, in ‘‘leadman’’
cases outside the health care setting, when a skilled
and experienced employee—e.g., a journeyman pipe-
fitter assigns work to and directs a less skilled helper
or apprentice, there is scant risk of a conflict of inter-
est between the employer and the employees which
would test the loyalty of the leadman.) By contrast,
when charge nurses (or leadmen outside the health care
494 NORTHCREST NURSING HOME
12 Prior to the 1974 Health Care amendments, the Board had found
supervisory status based on assignment and direction in Avon Con-
valescent Center, supra, and Rockville Nursing Center, 193 NLRB
959, 962 (1971). Charge nurses in these cases were found super-
visory because they utilized their professional judgment in assigning
and directing other employees. These cases are not consistent with
the Board’s current holdings which do not find supervisory status on
this basis. Accordingly, these cases are overruled.
Although the patient care analysis is solidly based, our decisions
have at times been imprecise in application. Thus, we have some-
times utilized terminology such as ‘‘mere patient care’’ (see, e.g.,
NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076,
1079 (6th Cir. 1987)) or ‘‘routine patient care’’ (see, e.g., Waverly-
Cedar Falls Health Care, supra)) or found that professional or tech-
nical judgment was exercised routinely in furtherance of patient care.
(See, e.g., Riverchase Health Care Center, 304 NLRB 861 (1991);
later case, 305 NLRB No. 141 (Dec. 26, 1991) (not reported in
Board volumes), enf. denied Nos. 92-1068 & 92-1205 (4th Cir.
1992).) These decisions have not always clearly reflected that the pa-
tient care or professional/technical analysis is separate and apart
from the analysis of whether the exercise of 2(11)-type authority is
of a merely routine or clerical nature.
13 In 1947, Congress endorsed the Board’s distinction between
‘‘straw bosses, leadmen, set-up men, and minor supervisory employ-
ees’’ as opposed to individuals vested with ‘‘genuine management
prerogatives.’’ S. Rep. No. 105 80th Cong., 1st Sess. 4 (1947), re-
printed in 1 NLRB Legislative History of the Labor Management
Relations Act, 1947 at 407, 410 (1985). Leadpersons have tradition-
ally been found to be lacking in supervisory authority even though
they direct employees’ work, assign tasks, convey reports on em-
ployees’ progress, and report rules infractions. See, e.g., Higgins In-
dustries, 150 NLRB 106, 111–112 (1964) (four job leaders who re-
port and correct defective work and warn and assist employees in
correcting work are not supervisors); Plastics Industrial Products,
139 NLRB 1066, 1067–1068 (1962) (leadmen who assign operators
to particular machines and report on progress of new operators are
not supervisors); Lindsay Newspapers, 130 NLRB 680, 690–691
(1961), enfd. in relevant part 315 F.2d 709 (5th Cir. 1963) (man in
charge of mailroom not supervisor although he could instruct em-
ployees to assist other employees; this did not constitute authority
to transfer and assign employees); Northern Chemical Industries,
123 NLRB 77 (1959) (instrument leadman who looks after work of
department and lays out work for other employees merely exercises
judgment and direction of more experienced mechanic); U.S. Gyp-
sum Co., 118 NLRB 20, 29–30 (1957) (maintenance leaders who de-
termine which jobs are to be performed and assign these jobs, insure
safety rules are followed, and who appraise employees are not super-
visors because their appraisals are subject to independent investiga-
tion and their direction and assignment derives from their greater
skill leading to incidentally directing the movements and operations
of less skilled employees); U.S. Gypsum Co., 105 NLRB 931 (1953)
(key operators not supervisors where recommendations regarding
discipline are followed up by independent evaluation by admitted su-
pervisors); Pennsylvania Glass Sand Corp., 102 NLRB 559, 561
(1953) (gang leaders who recommend hiring and discharge not su-
pervisors because their superior exercises independent judgment on
these matters); Gastonia Weaving Co., 91 NLRB 899, 900–901
(1950) (direction and assignment of other employees by transmitting
instructions without exercise of independent judgment does not con-
stitute supervisory authority). The patient care analysis merely incor-
porates these tenets in the health care setting.
industry) effectively recommend or impose discipline,
or effectively recommend or grant promotions and/or
wage increases, the possibility that the interests of the
employer and employees may diverge is obvious, and
the employer can legitimately demand the loyalty of
the charge nurse (or leadman). Accordingly, in the
health care field, as in other industries, the authority on
the part of more skilled and experienced employees to
assign and direct other employees in the interest of
providing high quality and efficient service generally is
not found to confer supervisory status, whereas the au-
thority to promote, demote, award raises, or discipline
(or to effectively recommend those actions) is invari-
ably found to confer supervisory status.
We recognize that the Employer has an interest in
providing for patient care. Indeed, that is its business.
Accordingly, it is argued, when an RN or LPN directs
an aide to minister to a patient, the RN or LPN is nec-
essarily acting in the interest of the employer. We find
that argument too simplistic. As the Senate and House
Committee reports point out, the actions of the RN or
LPN are essentially those of a trained professional or
technical employee. Those actions are taken primarily
in the interest of the patient. The fact that they usually
are consistent with the entrepreneurial goals of the em-
ployer does not detract from the professional or tech-
nical nature of the actions. By contrast, if the RN or
LPN effectively recommends the discharge of an aide,
the action is essentially that of a supervisor acting in
the interest of the employer. The fact that it also inures
to the benefit of patients (by removing an incompetent
aide) does not detract from the supervisory nature of
the action.
We find that the patient care analysis is soundly
based on the statute, its legislative history, applicable
policy considerations, and relevant precedent. The pa-
tient care analysis aids in resolving the compound
problems of discerning statutory supervisory status of
health care professionals who assign and direct other
employees incidental to their treatment of patients.12
As we have stated, it derives from the necessity of ac-
commodating the legislative intent of allowing profes-
sional health care employees to be covered by the Act.
The Board has historically reached the same kind of
accommodation outside the health care industry, in its
‘‘leadman’’ analysis. In other industries, employees
who possess greater skills or experience than their fel-
low employees often give instructions and directions to
other employees on the shop floor regarding what to
do next, who is to work on which machine, and how
to work more skillfully, efficiently, or safely. Such
‘‘leadmen’’ generally are not found to be statutory su-
pervisors because they give such directions or instruc-
tions.13 Our ‘‘patient care’’ analysis in the health care
industry is not materially different from that used in
the ‘‘leadman’’ cases, albeit we have usually employed
different terminology in a setting in which the ‘‘shop
floor’’ is a patient ward and the ‘‘product’’ is patient
care rather than, say, ball bearings. Charge nurses in
hospitals and nursing homes are, in our experience, on
a par with ‘‘leadmen’’ in other industries; the kinds of
495DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Member Raudabaugh does not join in drawing the analogy be-
tween charge nurses and ‘‘leadpersons.’’ Charge nurses are profes-
sionals or technicals, and their use of independent judgment is inher-
ent in their roles as professionals or technicals. The same cannot be
said about ‘‘leadpersons.’’ They are not necessarily (or even usually)
professionals or technicals. Accordingly, Member Raudabaugh would
not draw the analogy, and would make no general pronouncements
concerning ‘‘leadpersons.’’
15 Misericordia Hospital Medical Center v. NLRB, 623 F.2d 808
(1979), enfg. 246 NLRB 351 (1979).
16 NLRB v. Res-Care, Inc., 705 F.2d 1461, enfg. 261 NLRB 160
(1982); NLRB v. River Hills Nursing Home West, 705 F.2d 1472
(1983), denying enf. 258 NLRB 425 (1981), as supplemented by 262
NLRB 1458 (1982); Children’s Habilitation Center v. NLRB, 887
F.2d 130 (1989), enfg. 289 NLRB No. 109 (July 28, 1988) (not re-
ported in Board volumes). The court has approved the Board’s pa-
tient care analysis with certain qualifications. The court has weighed
the charge nurse’s duties in assigning and directing aides in light of
the balance of power and conflict of interests between employees
and employers.
17 Waverly-Cedar Falls Health Care Center v. NLRB, 933 F.2d
626 (8th Cir. 1991), enfg. 298 NLRB 997 (1990).
18 NLRB v. Doctors’ Hospital of Modesto, 489 F.2d 772 (1973),
enfg. 193 NLRB 833 (1971); NLRB v. St. Francis Hospital of
Lynwood, 601 F.2d 404 (1979), enfg. 232 NLRB 32 (1977).
19 NLRB v. Walker County Medical Center, 722 F.2d 1535 (1984),
enfg. 260 NLRB 862 (1982).
20 In NLRB v. Beacon Light Christian Nursing Home, supra, the
Sixth Circuit stated, ‘‘patient care (or ‘mere patient care,’ in the
Board’s phraseology) is the business of a nursing home.’’ See also
Beverly California Corp. v. NLRB, supra; Health Care & Retirement
Corp. v. NLRB, 987 F.2d 1256 (1993); cert. granted No. 92-1964,
Oct. 4, 1993. See 62 USLW 3244 (Oct. 5, 1993).
21 Methodist Home v. NLRB, 596 F.2d 1173 (1979), enfg. in rel-
evant part 234 NLRB 535 (1978); NLRB v. St. Mary’s Home, 690
F.2d 1062 (1982), denying enf. in relevant part 258 NLRB 1024
(1981) (but agreeing with Board’s patient care analysis); Riverchase
Health Care Center v. NLRB, mem. Nos. 92-1068/1205 (Sept. 11,
1992), denying enf. 305 NLRB No. 141 (Dec. 26, 1991) (not re-
ported in Board volumes).
22 The court stated,
It is perfectly obvious that the kind of judgment exercised by
registered nurses in directing LPNs and nurse’s aides in the care
of patients occupying skilled and intermediate care beds in a
nursing home is not ‘‘merely routine.’’ As a matter of law, we
have long since concluded, the fact that such judgment is exer-
cised in the health care context makes no difference at all:
‘‘Where nurses otherwise meet the statutory definition of super-
visors, they are not disqualified because the activity they are su-
pervising is patient care. There is no support in either the text
of the Taft-Hartley Act or the legislative history of that Act for
such a position. Upon our reading of the statute, we think that
the law means exactly what it says, that individuals who ‘pro-
mote, discharge, discipline, assign, and responsibly direct em-
ployees, or recommend such action’ are supervisors, whether
they are employed in the health care industry or any other indus-
try.’’ Beacon Light, 825 F.2d at 1079–80 (footnote and statutory
citations omitted).
Beverly California Corp. v. NLRB, supra at 1553.
23 ‘‘The health care field is one in which the task of figuring out
where the [dividing] line [between labor and management] runs has
been particularly troublesome, and there is some tension within the
caselaw in this area. See Children’s Habilitation Center v. NLRB,
887 F.2d 130, 134 (7th Cir. 1989), contrasting Beacon Light Chris-
tian Nursing Home, 825 F.2d 1076 (6th Cir. 1987); NLRB v. Res-
Care, Inc., supra and NLRB v. River Hills Nursing Home West, 705
F.2d 1472 (7th Cir. 1983).’’ 970 F.2d at 1548–1549. Indeed, in
Health Care & Retirement Corp. v. NLRB, 987 F.2d 1256 (6th Cir.
1993), cert. granted Oct. 4, 1993 (No. 92-1964), 62 USLW 3244
(Oct. 5, 1993), the basis for granting certiorari was the conflict in
the circuits regarding the Board’s interpretation of Sec. 2(11) with
regard to charge nurses. See 62 USLW 3244 (certiorari granted lim-
ited to question 1); and 62 USLW 3073 (Aug. 3, 1993) (Question
1: whether NLRB reasonably determined that nurse’s direction of
less skilled employees in the exercise of professional judgment and
as an incident of patient care does not make the nurse a ‘‘super-
visor’’ under Sec. 2(11).)
assignments and direction they give to nurses aides and
other employees are analogous to those given by
‘‘leadmen’’ outside the health care industry. For the
same reasons we find, in other settings, that the author-
ity to give such assignments and directions, without
more, does not confer supervisory status, so also we
find that the possession of that authority does not con-
fer supervisory status in the health care industry.14
In NLRB v. Yeshiva University, 444 U.S. at 690 fn.
30, the Court referred to our decisions involving pro-
fessional employees in a variety of contexts, including
health care. The Court concluded that our decisions ac-
curately reflected the intention of Congress. The Court
specifically cited Doctors’ Hospital of Modesto, 183
NLRB 950, 951–952, enfd. 489 F.2d 772 (9th Cir.),
and noted that ‘‘[I]n the health care context, the Board
asks in each case whether the decisions alleged to be
managerial or supervisory are ‘incidental to’ or ‘in ad-
dition to’ the treatment of patients, a test Congress ex-
pressly approved in 1974. S. Rep. No. 93-766, p. 6
(1974).’’
While the Second,15 Seventh,16 Eighth,17 Ninth,18
and Eleventh19 Circuit Courts of Appeals have agreed
with the Board’s application of the patient care analy-
sis for assignment and direction of work, the Sixth Cir-
cuit has rejected this analysis, at least as applied by the
Board.20 The Fourth Circuit’s position on this issue is
unclear.21
In Beverly California Corp. v. NLRB, 970 F.2d 1548
(1992), the Sixth Circuit held that LPNs’ direction of
aides in patient care duties was sufficient to support a
finding of 2(11) authority. The Employer has asked us
to reconsider our decisions in light of Sixth Circuit de-
cisions refusing to enforce our interpretation of the
Act. During our extensive review of this area, we have
been mindful that the facts in this case occurred within
the geographic boundaries of the Sixth Circuit and that
the Sixth Circuit has held that its interpretation of the
Act—not the Board’s interpretation of the Act—is
based on the plain meaning of the statute.22 However,
the Sixth Circuit has also noted that there is some
‘‘tension’’ in the case law in this area.23 Initially, we
are mindful that the venue provisions of the NLRA
subject Board decisions to potential review in circuits
other than the circuit in which the unfair labor prac-
496 NORTHCREST NURSING HOME
24 In Arvin Industries, 285 NLRB 753 (1987), we recognized that
because the venue provisions of the Act are such that a Board order
is potentially subject to review in circuits other than the one in
which the case arises, the Act ‘‘does not contemplate that the law
of a single circuit would exclusively apply in any given case.’’ 285
NLRB at 757. See also S. Estreicher & R. Revesz, Nonacquiescence
by Federal Administrative Adjudication, 98 Yale L. J. 679, 709
(1989); Schwartz, Nonacquiescence, Crowell v. Benson, and Admin-
istrative Adjudication, 77 Geo. L. J. 1815 (1989).
25 NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076
(6th Cir.) (nurses who instructed aides were team leaders, assigned
patients to aides, and were responsible for aides’ work were super-
visors because these duties involve patient care which is the business
of a nursing home); Beverly California Corp. v. NLRB, 970 F.2d at
1552 (‘‘the notion that direction given to subordinate personnel to
ensure that the employer’s nursing home customers receive ‘quality
care’ somehow fails to qualify as direction given ‘in the interest of
the employer’ makes very little sense to us.’’); Health Care & Re-
tirement Corp. v. NLRB, 987 F.2d 1256, 1261 (1993), cert. granted
Oct. 4, 1993 (No. 92–1964), 62 USLW 3244 (Oct. 5, 1993) (job du-
ties in assigning aides to specific tasks and directing operation of
aides as well as entire nursing home require the use of independent
judgment and are taken in the interests of the employer).
26 In addition to our substantive disagreement, we are also in dis-
agreement with the Sixth Circuit regarding the appropriate placement
of the burden of proof regarding supervisory status. We have held
that the burden of proving supervisory status is on the party alleging
that such status exists. St. Alphonsus Hospital, 261 NLRB 620, 624
(1982), enfd. 703 F.2d 577 (9th Cir. 1983); Tucson Gas & Electric
Co., 241 NLRB 181, 181 and cases cited at fn. 3 (1979). The Sixth
Circuit has held that in bargaining unit determinations the burden of
proving that an employee is not a supervisor rests with the Board.
Health Care & Retirement Corp. v. NLRB, 987 F.2d at 1260 (burden
of proving employee status for bargaining unit determinations rested
with the Board); NLRB v. Beacon Light Christian Nursing Home,
825 F.2d at 1080 (Board always has burden of coming forward with
evidence that employees are not supervisors in bargaining unit deter-
minations).
We believe that the Sixth Circuit’s allocation is unfeasible as a
practical matter and, more importantly, it does not reflect the legisla-
tive intent of Congress. It is impractical to place the burden of prov-
ing employee status on the Board in representation cases because the
Board is not a party to these nonadversary proceedings. The court’s
placement of the burden on the Board would require its intervention
in the proceedings. Additionally, the court’s articulation of the bur-
den requires proof of a negative: proof that an employee does not
possess 1 of 12 statutory indicia of supervisory status.
Moreover, our placement of the burden on the party making the
assertion of supervisory status (the employer when it defends against
an unfair labor practice complaint alleging unlawful discharge by
claiming that an individual is a supervisor, or the General Counsel
when he alleges an individual’s supervisory status as part of his
case, or the employer or the union in a representation proceeding
where one or the other seeks to exclude individuals as supervisory)
effectuates Congress’ intention that the exclusion of supervisors be
limited. The supervisory exclusion was intended to apply only to
‘‘the supervisor vested with such genuine management prerogatives
as the right to hire or fire, discipline, or make effective rec-
ommendations with respect to such action’’ and not to ‘‘straw
bosses, leadmen, set-up men, and other minor supervisory employ-
ees.’’ S. Rep. No. 105, 80th Cong., 1st Sess. 4 (1947). Because the
determination that an individual is a supervisor exempts the individ-
ual from the Act’s protections, we have placed the burden appro-
priately on the party seeking to invoke the exclusion. Our placement
of the burden of proof has been approved in other circuits. See, e.g.,
Schnuck Markets v. NLRB, 961 F.2d at 703; NLRB v. Bakers of
Paris, 929 F.2d 1427, 1445; cf. Children’s Habilitation Center v.
NLRB, 887 F.2d at 132 (noting that the ‘‘burden of persuasion’’ is
on the employer respecting proof of the ratio that would exist be-
tween supervisory and employee ranks if the nurses in that case
were supervisors).
tices occur.24 Accordingly, ‘‘the Supreme Court, not
[the] circuit or even all twelve circuits that have juris-
diction to review orders of the Labor Board, is the su-
preme arbiter of the meaning of the laws enforced by
the Board. . . .’’ Nielson Lithographing Co. v. NLRB,
854 F.2d 1063, 1066 (7th Cir. 1988).
Substantively, our review of the Sixth Circuit’s deci-
sions indicates that the disagreement between our in-
terpretation and the court’s interpretation of the Act
centers on whether assignment and direction given to
aides regarding performance of patient care duties con-
stitutes an indicium of supervisory status. The court
has held that the independent professional judgment of
nurses in directing and assigning aides to ensure qual-
ity patient care is, as a matter of law, in the interest
of the employer.25 Our decisions are clearly at odds
with those of the court.26 We are unable to conclude
that simply because health care is the business of the
employer all independent professional judgment of
nurses in directing and assigning aides to patient care
duties is automatically in the interest of the employer
as contemplated by the statute.
Of course, the court’s interpretation has a certain de-
gree of literal logic to commend it. Basically, the court
interprets ‘‘in the interest of the employer’’ to mean
that all employees are acting in the employer’s interest
in producing the best product possible—sound patient
care. Health care is the business of the employer and
the nurses are engaged in assigning and directing em-
ployees in providing health care. However, if the court
is correct that all independent professional judgment in
responsibly directing and assigning aides constitutes
delegated supervisory authority in the interest of the
employer, all charge nurses in nursing homes are su-
pervisors and the legislative intent to extend the Act’s
coverage to health care professionals is not accommo-
dated.
In the charge nurse/nursing home context, perhaps
the clearest articulation of the intent of the statutory
phrase ‘‘in the interest of the employer . . . to assign
. . . or responsibly to direct’’ was offered by the Sev-
enth Circuit:
The licensed practical nurses’ greatest discretion
is in deciding which nurse’s aide shall do what
task, but this discretion is exercised in accordance
with a professional judgment as to the best inter-
ests of the patient rather than a managerial judg-
ment as to the employer’s best interests. It is no
different from a doctor’s telling his nurses which
patients to provide what care to, which is not su-
pervision under the statute.
497DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 The court also stated,
Supervision exercised in accordance with professional rather
than business norms is not supervision within the meaning of the
supervisor provision, for no issue of divided loyalties is raised
when supervision is required to conform to professional stand-
ards rather than to the company’s profit-maximizing objectives.
Children’s Habilitation Center v. NLRB, 887 F.2d at 134.
28 See, e.g., Sun Refining & Marketing Co., 301 NLRB 642, 649–
650 (1991); JAMCO, 294 NLRB 896, 899–900 (1989); Wedgewood
Health Care, 267 NLRB 525, 525–526 (1983).
29 Examples of such cases are Passavant Health Center, 284
NLRB 887, 889 (1987) (where warnings simply bring to employer’s
attention substandard performance without recommendations for fur-
ther discipline and an admitted supervisor makes an independent
evaluation of job performance, the role of delivering the warnings
is reportorial); Waverly-Cedar Falls Health Care, 297 NLRB at 392
(‘‘mere authority to issue oral and written warnings that do not alone
affect job status does not constitute supervisory authority’’).
30 See, e.g., RAHCO, Inc., 265 NLRB 235, 247–248 (1982) (record
revealed employees were disciplined due to misconduct attributed to
them by assistant line supervisor but in absence of effective rec-
ommendation from assistant line supervisor regarding discipline, his
duties were mere monitoring which is not a manifestation of super-
visory authority); Artcraft Displays, Inc., 262 NLRB 1233, 1234–
1235 (1982) (leadmen not supervisors even though they report em-
ployee problems to employer); Ahrens Aircraft, Inc., 259 NLRB 839,
842–843 (1981) (insufficient evidence that shop leaders who could
correct work of other employees could reprimand or discipline em-
ployees to an extent which would meaningfully affect job status and
therefore were not supervisors); see also Knogo Corp., 265 NLRB
935, 935–936 (1982), enf. in relevant part 727 F.2d 55 (2d Cir.
1984) (leadperson who circulated antiunion petition was not agent of
employer although she reported rule infractions or repeated incidents
of poor performance by other employees where discipline was pre-
ceded by an independent investigation).
31 See, e.g., Riverchase Health Care Center, 304 NLRB at 865
enf. denied sub nom. in technical 8(a)(5) case, 305 NLRB No. 141
(1991) (not included in Board volumes), Riverchase Health Care
Center v. NLRB, 976 F.2d 725 (1992); Phelps Community Medical
Center, 295 NLRB 486, 491–492 (1989).
32 See, e.g., Lakeview Health Center, 308 NLRB 75, 77–78 (1992);
Riverchase Health Care Center, supra at 864–865 (1991); Waverly-
Cedar Falls Health Care, 297 NLRB at 392–393; Ohio Masonic
Home, 295 NLRB 390, 393–394 (1989); Passavant Health Center,
284 NLRB at 888–891.
33 See, e.g., Quadrex Environmental Co., 308 NLRB 101, 102 (in-
dividual is not a supervisor although he has authority to order em-
ployees to leave worksite due to safety or work performance prob-
lems where management makes a subsequent independent investiga-
tion).
34 See, e.g., Waverly-Cedar Falls Health Care Center v. NLRB,
933 F.2d 626, 630 (8th Cir. 1991); NLRB v. Res-Care, Inc., 705
F.2d at 1467; Beverly Enterprises v. NLRB, 661 F.2d 1095, 1099–
1100 (6th Cir. 1981).
35 See, e.g., Riverchase Health Care Center, 304 NLRB at 864
(‘‘In any event, the LPNs’ concern in the disciplinary process does
not extend beyond the realm of patient care.’’); Phelps Community
Medical Center, 295 NLRB 486, 491 (1990) (suspensions taken in
connection with patient care do not illustrate supervisory status);
Mount Airy Psychiatric Center, 253 NLRB 1003, 1008 (1981) (‘‘role
in making anecdotal records . . . seems little more than a reporting
function consistent with their professional responsibility to assure the
proper and efficient treatment of patients.’’).
NLRB v. Res-Care, Inc., 705 F.2d at 1468.27
In agreement with those courts which have accepted
the patient care analysis, we find it useful to continue
application of the analysis in analyzing assignment and
direction indicia. We believe that continued application
of the patient care analysis is true to the letter and
spirit of the statute as informed by the legislative his-
tory and as interpreted in a substantial body of case
authority.
Discipline
If an individual can discipline or effectively rec-
ommend discipline of other employees, the individual
will be found supervisory.28 In typical charge nurse
cases, the individuals have authority to give employees
oral warnings and write up the warnings on forms re-
tained in the employee’s personnel file. This authority
typically extends beyond direct patient care matters.
Usually, the director of nursing or some other adminis-
trator or manager independently investigates and de-
cides what, if any, discipline is warranted. In many in-
stances, there is no specified number of warnings that
result in adverse action. Even in cases where personnel
policies exist regarding a specified number of warn-
ings, these policies are not always followed.
When confronted with these facts, we have held that
the charge nurses are not supervisors because their
warnings, either individually or in the aggregate, do
not lead to personnel action; or, if they do, such action
is not taken without independent investigation or re-
view by others. Accordingly, their warnings are merely
reportorial and not an indicium of supervisory author-
ity.29 We have employed the same analysis outside the
health care industry.30
Similarly, many cases indicate that charge nurses
have authority to suspend employees for flagrant viola-
tions such as drunkenness or abuse of patients.31 The
Board has not found this an indicium of supervisory
status because no independent judgment is involved;
the offenses are obvious violations of the employers’
policies and speak for themselves. In addition, in many
cases, the charge nurses do not typically recommend
what, if any, further action should be taken, and even
when they do make such recommendations, generally
an independent investigation by acknowledged man-
agers or administrators forms the basis for further dis-
ciplinary action.32 The same analysis is used in non-
health care settings.33
Our holdings regarding discipline have been upheld
by the courts.34 We will continue to utilize this frame-
work for analysis. We have sometimes indicated that
where a charge nurse’s reportorial duties or suspen-
sions for flagrant violations relate solely to patient
care, no basis for finding supervisory status was
present.35 However, examination of these cases indi-
cates that the real reason for failure to find supervisory
status was not whether the warnings or suspensions re-
lated to patient care but whether they constituted effec-
tive recommendation of disciplinary action. This is in
498 NORTHCREST NURSING HOME
36 See, e.g., Health Care & Retirement Corp., 310 NLRB 1002,
1006–1007 (1993) (evaluations on scale of 1 to 5 resulted in annual
raises directly correlated with the grades); Pine Manor Nursing Cen-
ter, 270 NLRB 1008, 1009 (1984) (charge nurses effectively rec-
ommended merit raises as well as retention or dismissal);
Wedgewood Health Care, 267 NLRB 525, 526 (1983) (charge
nurse’s evaluation could lead to probation); Exeter Hospital, 248
NLRB 377, 377–378 (1980) (charge nurses’ evaluations regarding
merit increases and promotions were not changed by administration
even where there was disagreement).
37 See, e.g., Ohio Masonic Home, 295 NLRB at 393 (charge
nurses evaluated employees but made no recommendations regarding
retention, discharge, or probation; no evidence that any employee
was affected by evaluations); Passavant Health Center, 284 NLRB
at 891 (charge nurses’ evaluations contained no recommendations for
specific personnel action; a poor evaluation led to independent inves-
tigation by administration); Eventide South, 239 NLRB 287, 288
(1987) (charge nurses evaluated employees but raises were based
strictly on seniority; no evidence of any significance of evaluations);
McAlester General Hospital, 233 NLRB 589, 591 (1977) (charge
nurses evaluated employees but points determining merit raises allot-
ted by personnel office—not by charge nurses; when a charge nurse
recommended a raise for one employee who had too few points to
qualify, the raise was denied and the charge nurse later reevaluated
the employee).
38 On occasion, the Board has found charge nurses to be super-
visors, in part because they evaluated employees, without specifi-
cally finding that the evaluations affected employees’ job status. See
Wright Memorial Hospital, 255 NLRB 1319 (1980); Pacific Con-
valescent Hospital, 229 NLRB 507, 508–509 (1977). These inadvert-
ent omissions did not constitute an attempt to alter the standard set
forth above.
39 See, e.g., Plastics Industrial Products, 139 NLRB 1066; U.S.
Gypsum, 118 NLRB at 29–30 (1957).
40 See NLRB v. Res-Care, Inc., 705 F.2d at 1467 (evaluations
which could not—or at least had not—led to termination or pro-
motion did not constitute ‘‘effective recommendation’’); NLRB v.
River Hills Nursing Home West, 705 F.2d 1472, 1474 (7th Cir.
1983) (evaluation could lead to termination and hence conferred su-
pervisory status); Beverly Enterprises v. NLRB, 661 F.2d at 1100,
1102 fn. 3 (LPNs’ evaluations were merely reportage, not effective
recommendation of personnel action distinguishing Doctors’ Hos-
pital, 175 NLRB 354, and Rosewood, Inc., 185 NLRB 193 (1970),
as involving nurses whose evaluations effectively determined merit
raises and retention); Misericordia Hospital v. NLRB, 623 F.2d 808,
817 (2d Cir. 1980) (head nurse did not effectively recommend per-
sonnel action where she evaluated employees but there was not evi-
dence her recommendations were acted on and she was reprimanded
for completing ‘‘supervisor’s recommendations’’ part of the evalua-
tion form); cf. NLRB v. Beacon Light Nursing Home, 825 F.2d 1076
(6th Cir.) (evaluations were serious attempt to determine employees’
progress and constituted ‘‘recommending action’’ within the mean-
ing of Sec. 2(11)).
fact the essential inquiry. We do not inquire whether,
for instance in a manufacturing or construction setting,
infractions relate to the substantive duties of the job,
e.g., carelessness or damage in handling equipment and
materials, or relate to action for disrespectful conduct
toward a supervisor, failure to report for work, or simi-
lar violations of personnel rules. We believe it advis-
able to follow a similar analysis in the charge nurse
area. Accordingly, in making future supervisory deter-
minations, we have decided that whether a report or
suspension relates to patient care or not, it will be ex-
amined only as to whether it constitutes effective rec-
ommendation of discipline or, in the case of suspen-
sion for flagrant violation, whether independent judg-
ment was involved.
Evaluations of Staff
We have consistently found that charge nurses were
supervisors when they performed evaluations of other
employees and it was apparent that the evaluations led
directly to personnel actions affecting the employees,
such as merit raises.36 By contrast, we have consist-
ently declined to find supervisory status when charge
nurses performed evaluations that did not, by them-
selves, affect other employees’ job status and thus did
not, by themselves, constitute effective recommenda-
tions for personnel actions.37 Whether implicitly or ex-
plicitly stated in our decisions, it has always been our
policy that for evaluations to constitute evidence of su-
pervisory status they must effectively recommend per-
sonnel action. See Bayou Manor Health Center, 311
NLRB 955 (1993); Health Care & Retirement Corp.,
supra.38 The Board has used this approach outside the
health care field as well.39 The distinction between
evaluations that constitute effective recommendations
for personnel action and those that do not has been ac-
cepted by the courts.40 We will continue to employ
this analysis.
Secondary Indicia
Ratio
Following the 1974 amendments, initial decisions
placed considerable emphasis on the ratio of super-
visory to nonsupervisory personnel. For example, in
Brattleboro Memorial Hospital, 226 NLRB 1036
(1976), after finding that head nurses were not super-
visors because their functions were performed mainly
in the ‘‘exercise of professional judgment,’’ the ratio
factor was examined as a ‘‘significant’’ indicator. A
finding that head nurses were supervisors ‘‘would cre-
ate a greater than 1-to-1 supervisory ratio . . . and the
Board is inclined to place weight upon such an unreal-
istic ratio.’’ 226 NLRB at 1038. This policy was
echoed in McAlester General Hospital, supra, and
Wright Memorial Hospital, supra. In McAlester, the
ratio factor was emphasized in finding three individ-
uals not to be supervisors: if they were held to be su-
pervisors it ‘‘would result in the nursing department
being composed of 28 unit employees and 21 statutory
supervisors. We are inclined to accord such an unreal-
istic ratio considerable weight.’’ 233 NLRB at 589–
590. In Wright, where the status of 15 RN charge
nurses was litigated, we found them to be supervisors
based on their authority to assign work and to dis-
cipline employees and noted that, ‘‘[m]oreover, to find
them not to be supervisors would result in an unrealis-
499DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 In dissent, former Member Oviatt found that the nurses were su-
pervisors because, in his view, they retained disciplinary authority
over nurses aides and because they ‘‘are the Employer’s presence on
the job for substantial periods of time.’’ 304 NLRB at 867.
tic ratio.’’ 255 NLRB at 1320. See also Northwoods
Manor, 260 NLRB 854 (1982), where the Board deter-
mined that the 27 charge nurses were supervisors be-
cause they had ‘‘independent authority to discipline
employees and effectively to recommend discharge’’
and added ‘‘[we] also find it significant that if charge
nurses are not supervisors an unrealistic supervisor-to-
employee ratio would exist at the Employer’s facili-
ties.’’ 260 NLRB at 855.
Throughout our experience with charge nurse issues,
we have recognized that ratio is a secondary indicator
and cannot, in the absence of specific 2(11) indicia,
provide a basis for a supervisory finding. In Phelps
Community Medical Center, supra, after finding that
the charge nurses possessed no primary indicia of su-
pervisory authority, ratio was examined and found
‘‘not a useful indicator’’ because either way (1 to 3 if
they are supervisors and 1 to 18 if they were not) was
arguably unreasonable. The Board added, ‘‘it would
not change our conclusion because such a ratio is not
a factor that the Act directs us to consider.’’ 295
NLRB at 492 fn. 16; cf. Waverly-Cedar Falls Health
Care, 297 NLRB at 393 (ratio not dispositive because
arguably unreasonable in either case—1 to 15 or 1 to
4).
Highest Person in Charge
In a large percentage of 24-hour-per-day nursing
home situations, charge nurses are typically the highest
authority present on the late night and sometimes on
the evening shift. We have frequently been urged to at-
tach statutory significance to the lack of any higher au-
thority. The results have varied. See, e.g., McAlester
General Hospital, 233 NLRB 589, 589–590 (1977);
Wright Memorial Hospital, supra.
In Riverchase Health Care Center, 304 NLRB 861,
we noted the availability of procedural and instruc-
tional handbooks for the charge nurses to follow dur-
ing those shifts in which they were ‘‘in charge’’ during
night and weekend shifts. Based on this fact, we found
unpersuasive the Employer’s argument that its facility
would be without supervision 76 percent of the time
unless the nurses were deemed supervisors.41 In Phelps
Community Medical Center, supra, and Waverly-Cedar
Falls Health Care, supra, the charge nurses were held
not to exercise independent judgment during these
shifts because they merely followed such procedures.
See also McCullough Environmental Services, 306
NLRB 565, 566 (1992) (mere fact that lead operators
are at times highest authority in plant does not in itself
establish supervisory authority).
Secondary Indicia in the Courts
Where there is an issue of ratio or highest person in
charge, the courts are not in complete agreement. The
Fourth, Sixth, and Seventh Circuits accord consider-
able weight to these two factors. The Seventh Circuit
has categorized ratio as one of the ‘‘guiding lights’’ in
resolving the supervisory issue. Children’s Habilitation
Center v. NLRB, supra. Although the Seventh Circuit
has endorsed the Board’s patient care analysis, it will
not enforce NLRB decisions if it finds that the ratio
of supervisors to employees is too low. For example,
in NLRB v. River Hills Nursing Home West, 705 F.2d
at 1473–1474 the court found that the ratio of super-
visors to employees would be about 1 to 27 under the
Board’s view. Given this ‘‘extremely low ratio’’ as
well as the fact that the disputed RNs possessed au-
thority to discharge, the court found that the charge
nurses were supervisors. By contrast, in NLRB v. Res-
Care, Inc., 705 F.2d 1461, 1468 (7th Cir.), the court
upheld the Board’s determination that the charge
nurses were not supervisors in the absence of evidence
that they possessed any primary indicia and where the
ratio was 1 to 8 under the Board’s view and 1 to 3
under the employer’s view. Further, the court noted
that being the highest ranking employee on the prem-
ises ‘‘does not ipso facto make them supervisors.’’
Res-Care, 705 F.2d at 1467.
The Sixth Circuit agrees with the Seventh Circuit on
the ratio factor but not the highest person in charge
factor. In Beverly California Corp. v. NLRB, 970 F.2d
1548, the court, after rejecting the Board’s construction
of Section 2(11) and finding that the nurses’ direction
of aides in providing patient care rendered them super-
visors, added:
On weekends and throughout every night, if the
Board had its way, Richland Manor would be pro-
viding patient care with no on-site supervision at
all. As we said of a similar situation in Beacon
Light, 825 F.2d at 1080, ‘‘[t]his is not a reason-
able conclusion for a well-run nursing home, and
there is no substantial evidence to support it.’’
970 F.2d at 1556 fn. 9. The Sixth Circuit has also uti-
lized ratio evidence, adopting the Seventh Circuit’s
‘‘warning flag’’ approach. In Beverly California, the
court held that ‘‘[j]ust such a warning flag appears in
the case at bar’’ by the 1 to 31 ratio that would exist
if the Board’s view were to prevail. 970 F.2d at 1555.
The court concluded ‘‘[t]hat is simply no way to run
a business of this type.’’ 970 F.2d at 1556.
The Fourth Circuit has not discussed the role of
ratio in the health care context but finds highest person
in charge to be quite significant in determining super-
visory status. In NLRB v. St. Mary’s Home, 690 F.2d
1062, 1067–1068 (4th Cir. 1982), the court found, con-
trary to the Board, that Sheila Mitchell was a super-
500 NORTHCREST NURSING HOME
42 In this regard, we recognize that secondary indicia can shed
light on whether primary indicia exist. For example, if a charge
nurse is the only person in charge at night, and there is no practice
of checking with others by phone or otherwise, this may suggest that
employment decisions made by the charge nurse involve the use of
independent judgment.
43 To be sure, it may be argued that these factors are fairly derived
from legislative history. Perhaps the strongest argument regarding a
statutory basis for utilizing the ratio factor was set forth by Judge
Posner in NLRB v. Res-Care, supra. Judge Posner concluded on ex-
amination of the legislative history of Sec. 2(11) that statutory super-
visors must be excluded from coverage by the Act in order to avoid
conflicts of interest and to maintain a fair balance of power. In de-
termining the balance of power, Judge Posner examined the ratio of
supervisors to employees. 705 F.2d at 1468.
44 See, e.g., RAHCO, Inc., 265 NLRB at 248.
45 Many, if not most of these charge nurse cases involve nursing
homes where at night at least, most of the geriatric patients are
asleep and staffs are reduced. It is at this time that charge nurses
are frequently the sole person in charge of the facility. As a practical
matter, few personnel problems appear to arise at this time of night
that could not, and do not, wait until the daytime for resolution. Su-
pervisory authority is not required to deal with any medical emer-
gencies which may arise. Although the Sixth Circuit has stated that
the absence of a 2(11) supervisor from a facility during these shifts
is ‘‘no way to run a nursing home,’’ we do not think it is for us
to instruct employers on how their business is to be run.
46 See, e.g., Health Care & Retirement Corp. v. NLRB, 987 F.2d
1256, cert. granted No. 92–1964 (Oct. 4, 1993); Beverly California
Corp. v. NLRB, 970 F.2d 1548 (1992); NLRB v. Christian Light
Nursing Home, 825 F.2d 1076 (1987); see also Beverly Enterprises
v. NLRB, 661 F.2d 1095, and 727 F.2d 591 (1984).
visor based on the fact that she was the highest rank-
ing official at the Home and was ‘‘in charge’’ during
that time.
The Eighth Circuit held that the secondary indicia of
highest person in charge does not confer supervisory
status where routine procedures are set down to be fol-
lowed and stipulated supervisors are on call. Moreover,
the Eighth Circuit finds that ratio may not be disposi-
tive of supervisory status. Waverly-Cedar Falls Health
Care Center v. NLRB, 933 F.2d 626, 630. Cf. Schnuck
Markets v. NLRB, 961 F.2d 700, 706 (8th Cir.) (courts
are often aided by calculating mix of supervisory to
nonsupervisory workers and examining whether em-
ployee is highest ranking on site).
Clarification
Secondary indicia have been used by the Board and
courts in assessing the likelihood that certain individ-
uals are supervisors, and we will continue to examine
these factors when necessary to understand the work-
ings of an employer’s business.42 However, the Act
does not state or fairly imply that the highest ranking
employee on a shift is necessarily a supervisor, nor
does it indicate that a group of individuals must have
supervisory status simply to avoid having a particular
ratio of employees to supervisors that, in the esti-
mation of some tribunal, is ‘‘too high.’’43 The issue,
then, is whether in exercising our judgment in inter-
preting the Act, we may properly accord dispositive
weight to such secondary indicia. We think not. As we
have held in the past, only the existence of at least one
of the enumerated statutory indicia can confer super-
visory status.44 Thus, unless an individual possesses
one or more of the statutory indicia of supervisory sta-
tus, neither the ratio of supervisors to employees nor
the fact that she may be the sole person in charge at
times (nor both together) can transform her into a stat-
utory supervisor.45
Having reviewed and clarified the applicable legal
principles, we will now apply them to the facts of this
case.
Procedural History
On August 31, 1992, District 1199, the Health Care
and Social Service Union, SEIU, AFL–CIO, Petitioner,
filed a petition seeking to represent service and mainte-
nance employees at the Northcrest Nursing Home lo-
cated in Napolean, Ohio. The unit sought was as fol-
lows:
All full time and part time service and mainte-
nance employees, including LPN’s [sic], nurses
aides, certified nurses aides, housekeeping em-
ployees, laundry employees, dietary employees,
maintenance employees, activity aides, restoritive
[sic] aides [excluding] clericals, professional em-
ployees, supervisors and guards as defined in the
Act.
Following a hearing held in September 1992, the
Regional Director issued his Decision and Direction of
Election on October 15, 1992, finding that licensed
practical nurses (LPNs), all of whom serve as charge
nurses, were not supervisors and, in addition, shared a
community of interest with the other service and main-
tenance employees.
On October 29, 1992, the Employer sought review
claiming that the LPN charge nurses were supervisors,
that the LPN charge nurses did not share a community
of interest with other service and maintenance employ-
ees, and, further, requesting that the Board reconsider
its policy regarding supervision of patient care in light
of Sixth Circuit precedent rejecting this analysis.46 On
November 20, 1992, we granted review solely on the
issue of whether LPNs who function as charge nurses
are supervisors. The Petitioner filed a brief on review
on January 8, 1993.
Factual Overview
The Employer operates a 100-bed skilled and inter-
mediate care, short- and long-term rehabilitation nurs-
ing home in Napolean, Ohio. The facility has two pa-
tient wings connected by a corridor which serves as a
common area containing laundry, kitchen, dining room,
and breakroom facilities. The ‘‘front’’ wing is a
501DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
skilled, Medicare-certified unit and is occupied by pa-
tients who require the most attention. At the time of
the hearing, 51 patients resided in this wing. The
Medicare certification requires that an RN serve as
charge nurse at least 8 hours during the day shift. The
‘‘north’’ wing is an intermediate care unit which
housed 45 residents at the time of the hearing.
By stipulation, the parties agreed that Administrator
Lynn Buckley, Director of Nursing Diana Schumaker,
Assistant Director of Nursing Margie Davis, and Di-
rector of Staff Development Amy Decker, as well as
the housekeeping and laundry, dietary, and mainte-
nance supervisors, were ineligible to vote. The parties
also stipulated that the six RNs, all of whom serve at
times as charge nurses, were ineligible to vote. The su-
pervisory status of 11 LPNs, all of whom serve at
times as charge nurses, was litigated.
The 24-hour operation consists of three shifts. All
nurses report directly to the director of nursing. Staff-
ing schedules are created by the director of nursing for
nurses (‘‘nurses’’ including both LPNs and RNs) and
by the director of staff development for the 51 nurses
aides. Each schedule covers a 2-week, 14-day period.
For each day, the schedule reflects whether the em-
ployee is to work and, if scheduled to work, the wing,
shift, and, as to aides, the patient group to which the
employee is assigned. The schedule for nurses also re-
flects whether the nurse is to act as charge nurse or
treatment nurse.
On the day shift (7 a.m. to 3 p.m.), two charge
nurses, one for each wing, and one treatment nurse for
the skilled-care wing plus the four administrators are
present. Eleven aides (six on the skilled wing, five on
the unskilled wing) work this shift. Two of these aides
may be restorative aides. On the evening shift (3 to 11
p.m.), 2 charge nurses are present—again, 1 for each
wing—as are 10 aides (split 5 and 5). On the night
shift (11 p.m. to 7 a.m.), there are two charge nurses,
one for each wing, and five aides (split three on the
skilled and two, unskilled). There is not usually a treat-
ment nurse on the second or third shift.
In addition to the nursing department, the Employ-
er’s operation includes a maintenance department, die-
tary department, and housekeeping and laundry depart-
ments. The parties agreed that the heads of these de-
partments are ineligible to vote. The record does not
contain specific numbers of employees included in
these departments. However, the petition states that
there are 85 employees in the petitioned-for unit. Ex-
cluding the 11 LPNs and 51 aides, it would appear that
there are approximately 23 employees in the 3 other
departments.
The Employer trains its aides in order to comply
with state certification requirements. The director of
staff development provides a 2-week course for newly
hired aides in proper bathing, ambulation, range of mo-
tion, mouth care, hair care, toileting, incontinence care,
and turning of patients. Aides are also trained in use
of stethoscope, thermometer, and blood pressure gauge.
On completion of the training, the aide is given an ori-
entation period. Thereafter, the aide is assigned on the
schedule with other aides to a group of residents. Gen-
erally, the aides perform such duties as getting the
residents out of bed, changing bed linens, dressing pa-
tients, brushing/washing hair and teeth, bathing, turn-
ing, changing diapers, helping patient to toilet, provid-
ing walkers, feeding patients, and other similar tasks.
Charge nurses may be RNs or LPNs. The record re-
flects no distinction in the patient-care duties per-
formed whether an RN or LPN acts as a charge nurse.
LPNs attend 1 year of formal classroom study of anat-
omy and physiology as well as clinical study of the
use of instruments such as the stethoscope, blood pres-
sure instrument, thermometer, tracheal tube care in-
cluding suctioning and cleaning, food pump, blood
sugar tests called ‘‘accu-checks,’’ mist machines, oxy-
gen concentrators, and oxygen tanks. On completion of
course work, the student must successfully complete
state licensing procedures in order to become a cer-
tified LPN. Following certification, the LPN must
comply with continuing education requirements. The
Employer provides these continuing education require-
ments for its LPNs.
RNs attend either a 2- or 4-year program and re-
ceive their degree. Thereafter, the RN must complete
the state certification process. The record reflects that
RNs are trained in the same duties as LPNs. In the
nursing home context, the record indicates that the
only thing an RN can do which an LPN cannot do is
start and monitor intravenous treatment and administer
medications through intravenous procedure. However,
LPNs monitor intravenous sites for infection and
sometimes remove the intravenous equipment. The
record indicates that there were either one or no pa-
tients receiving intravenous treatment at the time of the
hearing.
The normal shift work of a charge nurse begins with
receiving a ‘‘report’’ from the prior charge nurse on
that wing. This means that the charge nurse about to
leave the wing tells the charge nurse reporting in for
work about anything which has occurred on the prior
shift. This might include a patient’s falling, deteriorat-
ing patient conditions, general conditions of patients—
whether they had a good day or a bad day—and any
special needs or treatments required. The departing
charge nurse also tells the incoming charge nurse
which aides have ‘‘called off’’ and whether the depart-
ing charge nurse has been able to find any replace-
ments for these aides. When the shift begins, the
charge nurse gives a ‘‘report’’ to the aides assigned to
her wing and shift, letting them know anything rel-
evant to their group of residents. The charge nurse
502 NORTHCREST NURSING HOME
47 One charge nurse stated that she might move an aide on a tem-
porary basis if the aide was not capable of performing assigned du-
ties.
may reassign aides as needed to handle staff shortages
or emergency situations. This reassignment is for the
immediate shift only. The charge nurse cannot make
permanent changes to the schedule.
The charge nurse makes several ‘‘med passes’’
throughout the course of the shift. A ‘‘med pass’’ re-
fers to dispensing prescription and nonprescription
medicines to residents according to a schedule deter-
mined by the residents’ physicians. A ‘‘med pass’’
may occupy in excess of an hour’s time.
Each charge nurse spends a great deal of time at the
nurses station charting each patient’s treatment and an-
swering telephone calls from doctors and family. Aides
are not allowed to answer or use the telephone. The
charge nurse also answers patient call lights which
may indicate that an aide needs assistance with re-
straint of a patient or that a patient wants pain medica-
tion etc. As the charge nurse goes from room to room,
if there are tasks which need to be performed or were
neglected, she tells the appropriate aide to complete or
perform the task. Charge nurses also perform patient
treatments if no treatment nurse is assigned to their
shift.
The charge nurse may complete a form called either
‘‘Associate Memorandum’’ or ‘‘Employee Memoran-
dum’’ which sets forth specific actions of an aide in
violation of the Employer’s policies. The charge nurse
also fills in as an aide from time to time performing
such typical aide duties as handing out glasses of ice
water or cleaning bedpans. This occurs especially
when the staff is short-handed. The charge nurse re-
ceives calls from aides scheduled to work on the fol-
lowing shift and attempts to find replacement employ-
ees. When the next charge nurse arrives, the outgoing
charge nurse ‘‘gives report’’ and the entire scenario re-
curs.
RNs and LPNs may also serve as treatment nurse.
The schedule usually provides for a charge nurse and
treatment nurse on the first shift in the front, skilled-
care wing. Sometimes the schedule provides for both
a charge nurse and a treatment nurse on the second
shift in the front wing. The schedule never requires
both a charge nurse and a treatment nurse on the front
wing third shift or on any shift on the north, intermedi-
ate-care wing. Duties of a treatment nurse include
‘‘trach’’ care, filling tube feeders, changing dressings,
and irrigations. If there is no treatment nurse, the
charge nurse performs all duties.
With these facts in mind, we will now examine the
parties’ contentions with respect to specific indicia of
supervisory authority. The main contentions focus on
assignment and direction, discipline, and evaluation.
Assignment and Direction
Facts
The director of staff development compiles a bi-
weekly schedule for all aides. The 51 aides are sched-
uled during the 14-day period by wing, shift, and resi-
dent group. Break- and lunchtimes by resident group
assignment are set forth in a manual at the nurses sta-
tion. Charge nurses are not consulted regarding sched-
uling and may not alter the scheduled days of work or
shift assignments. Wing assignments may be altered by
charge nurses on a temporary basis due to personnel
shortages. However, such reassignment is temporary,
lasting only for a particular shift. To alter one’s sched-
uled day of work or shift assignment, it is necessary
to make out a ‘‘swap sheet’’ and give it to the director
of staff development. In order to schedule vacations, a
vacation request form must be completed and given to
the director of staff development. Leaves of absence
are similarly routed.
When an aide cannot be present as scheduled, the
aide must call the charge nurse on the prior shift. The
charge nurse then attempts to find a replacement em-
ployee by looking at the schedule to see which em-
ployees are not scheduled to work. If, after calling
these employees, she finds that none are available, she
then asks employees currently on duty to stay an extra
shift. If still in need of replacements, she may then call
employees who are scheduled for the shift following.
This procedure is uniformly followed by the charge
nurses. They cannot force an employee to report as a
replacement. When making these calls, they are un-
aware whether this may require payment of overtime
to the replacement employee.
If sufficient replacements are not located, the next
shift works short-handed. The charge nurse on the next
shift may adjust aides during the shift by assigning
them from one location to another for that particular
shift. The charge nurse may also change the wing as-
signment, if necessary, to cover the floor during a
shift.47
Further, during the course of a shift—whether short-
handed or not—the charge nurse may alter aide assign-
ments. These alterations are temporary and do not af-
fect the employee’s schedule or assignment for the
next day worked. Charge nurses make these assign-
ments using their own judgment. They do not need
prior approval from the Employer to make these as-
signments.
The charge nurse does not assign break- or
lunchtimes. These times are set forth by group assign-
503DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment and are predetermined by the director of staff de-
velopment. In fact, it appears that the aides take their
breaks and lunches as their work is completed rather
than as scheduled, letting the charge nurse know when
they are leaving.
If an aide wants to leave the premises during her/his
shift for personal reasons, such as illness or family
needs, the testimony is in conflict regarding the charge
nurse’s role. Petitioner’s witnesses stated that the
charge nurse would simply make out a leave slip to
pass on to the director of nursing while the Employer’s
witnesses said that the charge nurse would exercise
her/his own judgment in determining whether to allow
the employee to leave.
In addition to staffing duties, the charge nurse mon-
itors the work throughout each shift to ensure adequate
patient care. It is unnecessary for the charge nurse to
direct every aspect of the aides’ work. Aides have
been trained and know their duties generally. Inexperi-
enced aides work with an experienced aide, who re-
ceives added compensation for serving as a mentor to
the inexperienced aide. However, if a charge nurse
sees that a patient needs care, the charge nurse tells the
aide what to do. For instance, a charge nurse may tell
an aide to change a patient or turn a patient. The
charge nurse does not need prior employer approval to
give this direction. Charge nurses use their own judg-
ment in this regard. Aides know that charge nurses can
direct their performance of duties, that they are under
an obligation to follow these directions, and that if
they do not they may be subject to disciplinary action.
Normally, the aides know which patients to care for
by consulting the director of staff development’s bi-
weekly schedules which set forth a number for each
shift that each aide works. The number corresponds to
a patient group. However, the charge nurse may assign
an aide to another patient group when the need arises
or direct the aide to perform other tasks as time al-
lows. Reassignment to another patient group is tem-
porary and does not extend beyond the shift. Examples
of other tasks which a charge nurse might direct in-
clude cleaning closets or drawers and performing extra
ambulation or extra turning of patients. Charge nurses
do not need prior approval to direct aides to perform
these other tasks. They use their own judgment in di-
recting these other tasks.
When a patient requires special care and when a
new patient is received, the charge nurse tells the aides
about specific requirements. For instance, if a patient
has injured a leg or foot, the charge nurse will tell the
aide to make sure the patient does not put weight on
that foot or leg.
Indirect evidence regarding responsible direction of
work included testimony that when the director of staff
development hires and orients new aides, she tells
them that the charge nurse will be their direct super-
visor. The director of staff development was told when
she was initially hired as an LPN charge nurse that she
was the direct supervisor of aides and she still feels
that she is their direct supervisor when she substitutes
as an LPN charge nurse.
The Employer’s job title for LPN charge nurse is
‘‘Licensed Nurse Supervisor.’’ However, the name
tags provided by the Employer for LPN charge nurses
to wear on their uniforms have the employee’s name
followed by ‘‘LPN, Charge Nurse.’’ A placard at each
nurses station states ‘‘Nursing Supervisor on Duty’’
and has a space for the charge nurse to insert her
name. Some charge nurses use this placard and others
do not. The job description, which is signed by each
LPN charge nurse on hire, contains the following defi-
nition:
The Licensed Nurse Supervisor is responsible for
adhering to the Nursing Services policies and pro-
cedures, delivering and supervising nursing care,
developing the nurse assistant staff, and other
tasks leading to providing quality patient care at
least cost.
It also lists duties including ‘‘Deliver and supervise
quality patient care’’ and states that the purpose of the
job is ‘‘to assist in the coordination of supervisory
tasks and patient care services as well as to provide di-
rect patient care.’’ The document additionally states,
‘‘you must be willing to participate in self-improve-
ment programs in the area of patient care skills and su-
pervision.’’ The document contains numerous other
statements regarding solving employee problems, pro-
viding adequate staffing, and assisting in planning the
departmental budget. Charge nurses testified that they
had not assisted in planning any budget. Charge nurses
testified that they did assist in solving employee prob-
lems regarding care of patients.
Notes from a 1990 ‘‘in-service’’ meeting, attended
by second-shift aides and their charge nurses, reflect
an item which stated, ‘‘Your charge nurse is your
‘Boss.’ You are to do as you are told. Talking back
&/or arguing are insubordination.’’ No witness testified
to being at this meeting or was able to state that this
item was discussed.
When asked for estimates of percentages of time a
charge nurse spends in direct patient care, the Petition-
er’s witnesses estimated about 90 percent while the
Employer’s witnesses estimated 30 to 50 percent. The
disagreement in estimates centered on whether the
charting duties of the charge nurse were to be cat-
egorized as ‘‘direct patient care.’’ Charting is per-
formed at the central nursing station. Petitioner’s wit-
nesses felt that it was direct patient care while Em-
ployer witnesses did not think that it was.
504 NORTHCREST NURSING HOME
48 The Employer notes that the Regional Director’s decision states
that LPNs do not have authority to change the aides’ wing assign-
ments. The Employer asserts that this statement is directly contra-
dicted by testimony at the hearing. However, reading the Regional
Director’s statement in context, ‘‘LPNs do not have the authority to
change the aides’ scheduled days of work, shifts, or wing assign-
ment,’’ it is clear that the Regional Director was discussing only
ability to alter scheduled wing assignments. The Regional Director’s
next sentence confirms this: ‘‘The LPNs can make temporary
changes in an aide’s location and job assignment for that day with-
out prior approval, but permanent changes must be made by Staff
Development Director Amy Decker.’’ The Regional Director meant
that LPNs do not have the authority to permanently change wing as-
signments—a proposition with which the Employer agrees. However,
the LPNs do possess the authority to temporarily change wing as-
signments.
Regional Director’s Finding
The Regional Director found that the aides’ tasks
were routine and required little direction other than in-
structions regarding special or new patients. Moreover,
noting that the charge nurses were responsible for di-
recting patient care, the Regional Director stated:
The Board has consistently refused to confer su-
pervisory status on health care employees whose
instructions to other employees are merely in fur-
therance of patient care. Beverly Enterprises d/b/a
Beverly Manor and Convalescent Centers, 275
NLRB 943, 946 (1985) and cases cited therein.
The Board has found charge nurses not to be su-
pervisors within the meaning of Section 2(11) of
the Act even where there is evidence that they di-
rect employees. . . . In these circumstances, the
Board has concentrated on whether the authority
was exercised in the interest of the employer or
in furtherance of patient care. E.g., Beverly
Manor, supra; Beverly Enterprise, Alabama, Inc.,
d/b/a Riverchase Health Care Center, 304 NLRB
861 (1991); The Ohio Masonic Home, Inc., supra;
Waverly-Cedar Falls Health Care, Inc., 297
NLRB 390 (1989).
Specifically, the Regional Director found that in di-
recting the aides’ work the LPNs exercised profes-
sional judgment rather than traditional supervisory
judgment on behalf of the Employer. Moreover, the
Regional Director held that by calling in aides as re-
placement employees the LPN charge nurses per-
formed only a routine task in order to keep the facility
fully staffed.
Contentions of the Parties
The Employer argues that the Regional Director
wholly ignored the evidence of charge nurse authority
to assign various tasks to aides. In support of this ar-
gument, the Employer notes that the Regional Director
failed to mention a particular exhibit which stated,
‘‘Your charge nurse is your boss. You are to do as you
are told. Talking back or arguing are insubordination.’’
The Employer contends that the LPNs have absolute
discretion over who gets called in to replace an absent
employee and that this gives LPNs the ‘‘untram-
meled’’ authority to authorize overtime. The Employer
asserts that the Regional Director overlooked evidence
which indicates that charge nurses have the authority
to approve or disapprove an aide’s request to leave
early. Finally, the Employer argues that the Regional
Director wholly ignored the evidence regarding charge
nurses’ authority to temporarily change wing assign-
ments and to transfer employees from one job assign-
ment to another and from one location to another with-
out prior approval.48
The Petitioner argues that any authority charge
nurses have to assign and direct is exercised in a rou-
tine or clerical manner requiring no use of independent
judgment. The Petitioner also asserts that LPNs direct
aides and assign tasks in accord with professional
norms, in furtherance of patient care, and in a manner
unrelated to the Employer’s personnel interests. The
Petitioner notes that LPNs do not have authority to re-
quire employees to report as replacements. Petitioner
also argues that no independent judgment is exercised
in calling employees because an order has already been
worked out in advance. Accordingly, the Petitioner cat-
egorizes this duty as routine or clerical. Finally, the
Petitioner notes that the Regional Director did not ig-
nore the Employer’s evidence regarding approval or
disapproval of requests to leave early. Rather, the di-
rector of staff development testified that if a charge
nurse denied such a request, the employee would prob-
ably come to her for approval. Accordingly, the Peti-
tioner claims there is no effective recommendation re-
garding assignment.
Analysis
We affirm the Regional Director’s conclusion for
the following reasons. The evidence reflects that
charge nurses sometimes use independent judgment in
assignment and direction of aides. Charge nurses as-
sign aides to specific tasks, temporarily reassign
aides—sometimes changing wing assignments—to
meet staff shortages or emergency situations, and in-
form aides about special needs of patients. During each
shift, the charge nurse monitors patient care. When a
charge nurse sees that a task needs to be performed,
she typically instructs the responsible aide.
Charge nurses may move aides from one job to an-
other or from one location to another without prior ap-
proval. In fact, charge nurses give directions and as-
signments without prior approval from the Employer,
using their own judgment, to the extent it is required,
in directing these tasks. All of these instances of as-
505DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
49 S. Rep. No. 766, 93d Cong., 2d Sess. 6 (1974); H.R. Rep. No.
1051, 93d Cong., 2d Sess. 7 (1974).
50 Of course, as we have pointed out before, we recognize that one
of the Employer’s interests is providing patient care. In this respect
the interest of the patient and one of the interests of the Employer
coincide. However, we require something more in order to give
meaning to the phrase ‘‘in the interest of the employer.’’ See fn. 27,
supra.
51 The Employer relies on the testimony of Director of Staff De-
velopment Amy Decker who testified that charge nurses could grant
or deny an aide’s request to leave early and if the request was de-
nied the aide could appeal to her. LPN Linda Rosebrock stated she
could make a judgment call if an employee wanted to leave. LPN
Kelly Spangler testified that she did not have authority to stop an
employee from leaving but might write up the employee depending
on the reason given for wanting to leave. LPN Darlene Babcock stat-
ed she did not think she had authority to grant permission to leave.
She stated that in one instance an aide left to go to the emergency
room and in another instance an aide left due to illness. She simply
filled out a call slip but did not grant permission.
52 The Employer also argues that Charge Nurse Babcock testified
that she ‘‘wrote up’’ an employee for leaving her work area. The
Employer implies that this evidence bolsters its argument that charge
nurses have discretion to allow employees to leave work for illness
etc. The record reveals that Babcock was referring to an instance
when an aide was out of her assigned area. This testimony is rel-
evant in the disciplinary discussion. However, we fail to see its rel-
evance in the area of assignment and direction.
53 Cf. NLRB v. Res-Care, supra, 705 F.2d at 1467–1468.
signment and direction may require the use of inde-
pendent judgment on the part of the charge nurse.
They are not always routine matters. We move then to
the next part of the analysis: is the independent judg-
ment exercised incidental to professional or technical
judgment or is this independent judgment exercised for
disciplinary or other matters, i.e., in addition to treat-
ment of patients. We find that the assignment and di-
rection are for the most part given as an extension of
the nurses’ professional or technical judgment in the
interest of providing sound patient care. Consistent
with the Committee Reports accompanying the 1974
Health Care Amendments, we find that the direction
given by the charge nurses in this case is incidental to
their treatment of patients as technical or professional
employees, and ‘‘thus is not the exercise of super-
visory authority in the interest of the employer.’’49
Moreover, we note that the assignment and direction is
aimed primarily at providing care in the patient’s inter-
est and does not take into consideration the managerial
judgment of what may be in the Employer’s best fi-
nancial or profit-maximizing interest.50
As to the Employer’s reliance on the fact that aides
are told in orientation that they must follow the nurses’
directives, we find this statement insufficient to confer
supervisory authority because such statements do not
ipso facto confer supervisory status and, in any event,
require an analysis of whether actual directives are in
the interest of the employer, as we use that term. Our
analysis above has concluded to the contrary. The Em-
ployer’s reference to a document in its files from 1990
which indicates an intent to discuss the fact that charge
nurses are aides’ ‘‘bosses’’ and that aides are to do as
they are told, lacks relevance to this proceeding in the
absence of independent, nonhearsay evidence that such
a meeting actually occurred. Moreover, even were
there evidence to show that these sentiments had been
communicated, we find such statements insufficient to
confer supervisory status because such direction must
be in the interest of the employer.
We have also examined the charge nurses’ duties in
finding replacement employees when scheduled em-
ployees notify them that they will not be reporting as
scheduled. The facts, which are detailed above, indi-
cate that a standard procedure is followed. The proce-
dure may have evolved, as the Employer argues, from
common sense. In any event, we find that utilizing the
procedure is routine and does not require the exercise
of independent judgment on the part of the charge
nurses. Accordingly, although this duty may constitute
assignment on behalf of the employer, it is not indic-
ative of supervisory authority because it is exercised in
a routine or clerical manner. Similarly, the record indi-
cates that at least one charge nurse may sometimes ex-
ercise discretion in determining whether employees
may leave work early.51 Other charge nurses testified
to the contrary and we are unable to find on this
record that the evidence establishes the charge nurses
are vested with the authority to grant or deny employ-
ees the right to leave for illness or other reasons.
Moreover, even assuming such discretion existed, this
is insufficient to confer supervisory status. Kent Prod-
ucts, 289 NLRB 824 (1988) (individual who had au-
thority to allow employees to leave work early due to
illness or medical appointments but who could not au-
thorize days off was not supervisor).52 It would seem
self-evident that a sick employee cannot continue to
work, especially in a health care facility, and acknowl-
edgment of this fact by the charge nurse does not re-
quire sufficient independent judgment to constitute that
person a supervisor.53
Discipline
Facts
The Employer has a disciplinary policy which states
that after three warnings within a 1-year period, an
employee may be terminated. Charge nurses complete
forms called either ‘‘Employee Memoranda’’ or ‘‘As-
sociate Memoranda’’ which are commonly referred to
as ‘‘writeups.’’ Typically, the charge nurse checks ei-
ther oral or written warning on the form although other
boxes for suspension and termination are also on the
form. The charge nurse completes the form by stating
what action the aide has taken in violation of company
policies and procedures. Typically, the charge nurse
signs the form in the place denoted ‘‘Supervisor.’’
506 NORTHCREST NURSING HOME
This is the only place to sign. The charge nurse gives
the form to the aide who reads it and writes his/her
version of the event, signs the form, and retains a
copy. The original is forwarded to the director of nurs-
ing.
Charge nurses do not have access to employee per-
sonnel files and do not know how many prior warnings
might be in any file. Once the charge nurse sends the
writeup to the director of nursing, the charge nurse is
not contacted further by the director of nursing and is
not informed about whether any action thereafter oc-
curs.
Numerous writeups were produced. In all cases, the
charge nurse signed in the place for ‘‘supervisor’’ and
marked either oral or written warning. Reasons for the
writeups were: swearing/yelling in patient’s room or
hallway; clocking in or out early or late; answering
telephone without permission; leaving for break with-
out telling charge nurse; failure to properly record in-
takes (food consumed) and outputs (eliminations); fail-
ure to restrain patient in wheelchair causing patient to
fall; leaving patient in urine-soaked bed after being
told to change bed; failure to change patient’s diaper;
failure to wash all patients before taking break; failure
to answer call light; and failure to wear gait belt.
Examination of these documents reveals that at least
two employees received three writeups within 1 year
and continued to work. Specifically, one of these em-
ployees received writeups dated April 22 and June 4
and 8, 1990, and later received further writeups on
September 24, 1990, and March 1 and April 5, 1991.
Another employee received writeups dated January 3,
1991, February 19, 24, and 25, 1991, and was still em-
ployed on June 10, 1991, to receive a further writeup.
The record does not contain any evidence regarding
whether these or other employees were suspended or
discharged as a result of the writeups.
Charge nurses may send an employee home for
drunkenness or patient abuse. The director of nursing
follows this with an independent investigation. The
record revealed two instances in which a charge nurse
wrote up an employee for abuse and recommended dis-
charge. After an independent investigation in both
cases, one employee was discharged and the other was
not discharged due to lack of evidence and credibility
conflicts between the employee and the charge nurse.
All discharges have to be centrally cleared through the
area manager of corporate human relations at head-
quarters.
The parties agreed that charge nurses do not have
any authority to hire, fire, alter disciplinary action, sus-
pend, or discharge.
Regional Director’s Findings
The Regional Director found the writeups were rep-
ortorial only. He noted that there was no evidence in-
dicating that the writeups had ever played a part in the
imposition of discipline or whether they even carried
any weight in a disciplinary decision. Moreover, the
Regional Director indicated that his decision was based
on the fact that an independent investigation was con-
ducted before any decision regarding discipline was
made. As to one instance in which Director of Staff
Development Decker testified that she recommended
discharge of an aide for patient abuse (4 years before
the hearing at a time when she was a charge nurse),
the Regional Director noted that no evidence was pro-
duced indicating whether the employee was discharged
due to Decker’s recommendation. The Regional Direc-
tor also stated that lack of access to personnel files by
the charge nurses was indicative of lack of disciplinary
authority.
Contentions of the Parties
The Employer argues that the writeups themselves
are a form of discipline and, in any event, under the
Employer’s progressive disciplinary system, the
writeups can result in adverse action being taken
against the employee. Citing NLRB v. Beacon Light
Christian Nursing Home, 825 F.2d 1076 (6th Cir.);
Wedgewood Health Care, 267 NLRB 525 (1983);
Northwood Manor, 260 NLRB 854; and Wright Memo-
rial Hospital, 255 NLRB 1319, the Employer states
that this constitutes the exercise of supervisory author-
ity. Moreover, the Employer faults the Regional Direc-
tor for characterizing all of the writeups as related to
patient care. In the Employer’s view, many of the
writeups were for nonpatient care infractions.
Relying on Children’s Habilitation Center v. NLRB,
887 F.2d 130 (7th Cir.), the Petitioner argues that com-
pletion of written and oral warnings which are placed
in personnel files, without more, does not establish su-
pervisory authority where it is clear that charge nurses
have no responsibility for recommending discipline
and disciplinary decisions are made by conceded su-
pervisors. Moreover, the Petitioner notes that the
writeups do not lead to automatic effects on job status
or tenure. The Petitioner also notes that when an inde-
pendent investigation is made by admitted supervisors
prior to suspension or discharge, no supervisory status
exists.
Analysis
We agree with the Regional Director’s conclusion
regarding discipline. The Employer has failed to show
that it has a progressive disciplinary system. The only
specific examples on the record indicate that receipt of
three writeups does not lead to any form of discipline.
As to the Employer’s argument that the writeups them-
selves are a form of discipline, we disagree. The
record before us indicates that these writeups are mere-
ly reports and that the LPN charge nurses are not vest-
507DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
54 See Polynesian Hospitality Tours, 297 NLRB 228, 235–236
(1989) (recommendations not effective when the respondent had to
check reliability of each report).
55 The Regional Director found that LPNs did not possess the au-
thority to effectively recommend discipline based on the fact that
independent investigations were conducted before employees were
disciplined. We agree with him on this point. However, the Regional
Director also noted that ‘‘associate memoranda pertain to patient
care matters.’’ The Employer strenuously disagrees. Because our
finding does not rely on this factor, we have not addressed the Em-
ployer’s arguments on this point.
56 Cf. Bayou Manor Health Center, 311 NLRB 955 (1993); Health
Care & Retirement Corp., 310 NLRB at 1006–1007 (1993).
57 The petitioned-for unit contains approximately 85 employees.
Sixty-two, as outlined above, are in the nursing department and the
23 remaining employees are within the housekeeping and laundry,
dietary, and maintenance departments. Each of these departments has
its own supervisory hierarchy. Therefore, the employees outside the
nursing department are not included in discussing ratio.
58 The court stated in relevant part, ‘‘A 1–6 ratio of supervisors
to non-supervisory employees is not remarkable; a ratio of only 1
to 27, on the other hand ‘raises a warning flag.’ American Medical
Services, 705 F.2d at 1473.’’ 970 F.2d at 1555.
ed with any authority to responsibly recommend dis-
ciplinary action. If they were vested with such author-
ity, no independent investigation or weighing of LPN
credibility versus aide credibility would be necessary.54
We disavow the Regional Director’s reliance on the
patient care nature of the writeups as a basis for find-
ing LPNs do not possess supervisory authority.55
Evaluation
Facts
Charge nurse witnesses generally stated that they did
not have any input into evaluations except for one in-
stance in which Charge Nurse Spangler was asked to
complete two evaluation forms. She completed the
forms and returned them but was not present at any
evaluation and has not been asked to complete other
evaluations since that time, about a year before the
hearing. Another charge nurse stated generally that she
had been asked for input on evaluations. No specific
information was elicited. The director of staff develop-
ment testified that she informally consults with charge
nurses about aides before completing the aides’ evalua-
tions. However, she does not ask for recommendations
about job tenure. In any event, evaluations have no im-
pact on wage increases. Wage increases are determined
at corporate headquarters without regard to evaluations.
Regional Director’s Findings
The Regional Director found that there was no evi-
dence indicating that the director of staff develop-
ment’s informal questioning of charge nurses had any
impact on job status. Similarly, there was no evidence
indicating that Spangler’s evaluations had any impact
on job status. Further, the Regional Director noted a
lack of any evidence that Spangler’s evaluations or
Decker’s informal questioning involved any type of
recommendation about promotions, wage increases,
discipline, or retention.
Contentions of the Parties
The Employer contends that the Regional Director
ignored its proffered evidence in concluding that the
charge nurses do not affect employee job status in
completing or assisting in the completion of employee
evaluations. The Petitioner argues that the Regional
Director’s decision is fully in accord with precedent
and does not ignore the Employer’s evidence.
Analysis
On the record before us we are satisfied that the Re-
gional Director’s findings regarding evaluations are
fully supported by the evidence. There is simply no
evidence that charge nurses have authority to effec-
tively recommend that an employee’s job status be al-
tered through reward—the statutory indicia which is
associated with the evaluation process.56 The fact that
the charge nurses may be asked questions by the direc-
tor of staff development falls short of constituting evi-
dence that charge nurses effectively make rec-
ommendations affecting job status.
Secondary Indicia
Ratio
Facts
At the time of the hearing, within the nursing de-
partment 4 nursing administrators, 6 RNs, all of whom
functioned at times as charge nurses, and 11 LPNs, all
serving as charge nurses when assigned, worked with
a total of 51 nurses aides.57 The parties stipulated that
the administrators and RNs are ‘‘ineligible to vote’’
and, as to the RNs, the Employer urges that we treat
this as a stipulation of supervisory status. The parties
agree that the administrators are supervisors. The first
shift is staffed with the 4 administrators, 2 charge
nurses (usually 1 RN and 1 LPN), 1 treatment nurse
(an RN or LPN), and 13 aides. Two RN/LPN charge
nurses are present on the second shift with ten aides.
The third shift is significantly reduced: two LPN
charge nurses work with five aides.
Regional Director’s Decision
Examining the nursing department ratio, the Re-
gional Director noted that these figures produced a
ratio of 1 to 6 if LPN charge nurses are found to be
employees. He found that this ratio was ‘‘not remark-
able’’ citing Beverly California Corp. v. NLRB, 970
F.2d 1548 (6th Cir. 1992).58
508 NORTHCREST NURSING HOME
Contentions of the Parties
The Employer contends that shift ratios provide the
only meaningful guidance. The Employer calculates
these ratios of supervisors to employees based on its
contention that the LPN charge nurses are supervisors
as follows:
First shift 1 to 2
Second shift 1 to 5
Third shift 2 to 5
If the LPNs are employees, the Employer calculates
the ratios as follows:
First shift 5 to 12
Second shift 1 to 5 or 0 to 12
Third shift 2 to 5 or 0 to 7
The Petitioner argues that the department ratios
based on LPN employee status (10 to 62 or 1 to 6 for
a 13-percent density) are entirely reasonable and notes
that in NLRB v. Res-Care, Inc., 705 F.2d 1461 (7th
Cir.), the court rejected 33 percent and found 13 per-
cent reasonable. The Petitioner also relies on Beverly
California in which the Sixth Circuit stated that a 25-
percent or more supervisory status in a nursing home
‘‘would make the ranks of supervisors pretty popu-
lous.’’ 970 F.2d at 1555. The Petitioner notes that if
LPNs are supervisors as the Employer contends, the
ratio would be 21 to 51 or almost 30 percent (21 out
of 72). Finally, the Petitioner also relies on Children’s
Habilitation Center, supra, in which the court found
shift ratios an inappropriate consideration.
Analysis
Because we have found no primary indicia of super-
visory authority, any examination of ratio, a secondary
factor, would only be an attempt to bootstrap a super-
visory finding in the absence of statutory indicia. How-
ever, we note for the future that the bargaining unit
does not consist of shifts but of an entire unit of em-
ployees. In the future we will adopt the view of the
Seventh Circuit rejecting shift ratios. See Children’s
Habilitation Center, supra at 132. We note that the
Sixth Circuit has also adopted this method of calculat-
ing ratios. Beverly California Corp. v. NLRB, supra at
1556 fn. 8.
Sole Person in Charge of Facility
Facts
LPNs are at times the highest ranking personnel at
the facility. The Employer’s random sampling of
schedules indicates that over a period of 252 shifts, on
50 shifts LPNs were the highest ranking personnel at
the facility. Two of the schedules, however, may have
reflected a higher rate of ‘‘LPN as sole person in
charge’’ due to an extended illness of an RN who usu-
ally worked the second shift 8 out of 14 days. The di-
rector of nursing and director of staff development
usually leave the facility around 4 to 4:30 p.m. The ad-
ministrator leaves at 6 p.m. The record does not reflect
when the assistant director of nursing leaves. After
leaving they may be reached at home. However, there
is no attempt made to provide 24-hour telephone avail-
ability.
Regional Director’s Findings
Relying on Phelps Community Medical Center, 295
NLRB 486 (1989), and Waverly-Cedar Falls Health
Care, 297 NLRB 390, the Regional Director found
that the LPNs’ presence as the sole person in charge
on the third shift (and sometimes on the second shift)
did not confer supervisory status. The Regional Direc-
tor specifically noted testimony that the LPNs would
call the director of nursing in the event of a problem.
Contentions of the Parties
The Employer asserts that the LPN charge nurses
are supervisory because 20 to 25 percent of the time
they are the highest ranking authority on the premises.
The Employer notes that there is no policy requiring
the director of nursing or another administrator to be
available by telephone on a 24-hour basis.
Analysis
Because we have found no primary indicia of super-
visory status, we decline to attach any significance to
this secondary factor.
Miscellaneous
Derivative Evidence
The record contains a great deal of evidence regard-
ing what can best be described as derivative evidence;
i.e., evidence which emanates from the employment
setting or from subjective feelings about employment
matters. All employees are paid hourly and punch a
timeclock in the employee breakroom. Aides are paid
a starting hourly rate of $4.50. However, once cer-
tified, their rate is $4.85 per hour. LPNs are paid a
starting hourly rate of $9.50. RNs begin at $10.50. The
director of staff development, who is also hourly paid,
earns $12.94 per hour. LPNs receive a 25-cent-per-
hour shift differential for second- and third-shift duty.
Aides do not receive the shift differential. All employ-
ees receive premium pay for working on their days off
($1 per hour), weekends ($2 per hour), and holidays
($3 per hour). All employees with 1-year seniority re-
ceive a $100 bonus if the facility receives an ‘‘E’’
award. The Employer provides $10,000 life insurance
for LPNs; $5000 for aides.
Aides wear uniforms which are provided and
laundered by the Employer. LPNs wear ‘‘whites’’
which they provide and launder themselves. The Em-
509DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
59 We note that throughout discussions on the record during the
hearing, various conflicting representations were made regarding the
actual intent of the stipulation. The Employer argued that the stipula-
tion went to supervisory status while the Petitioner argued that the
stipulation went only to exclusion on the possible basis of profes-
sional and/or supervisory status. The stipulation clearly states only
that RNs are ‘‘ineligible to vote.’’ However, the Petitioner’s brief
characterizes the stipulation as one of supervisory status. Therefore,
our analysis must assume that, at this point, Petitioner concedes that
RNs are supervisors even though its earlier stipulation remains am-
biguous.
60 The Employer cites no authority for its proposition that perform-
ing the same duties as the RNs automatically created supervisory au-
thority in the LPNs. Had the RNs’ supervisory authority been fully
litigated and a finding of RN supervisory status made in the course
of litigation, the Employer’s argument might have more force. See,
e.g., NLRB v. St. Mary’s Home, 690 F.2d at, 1068 (4th Cir. 1982)
(most significant fact in finding Mitchell to be a supervisor was that
she performed exactly the same functions and exercised exactly the
same powers as Patillo, an admitted supervisor).
ployer conducts meetings called ‘‘in-services’’ in order
to apprise all nursing personnel of new equipment and
procedures. These are conducted about twice per
month. Nurses’ meetings are held once every 2 or 3
months and are attended by RNs and LPNs to discuss
patient care. In the event of a disaster—fire, tornado,
flood—the front charge nurse, whether an RN or LPN,
is in charge. This evidence has been considered on the
record as a whole. Aides perceive the charge nurse as
the person who directs their work and they understand
they are supposed to follow these directions or they
may be subject to discipline. Aides are told in orienta-
tion that charge nurses are their direct supervisors. We
decline to attach any statutory significance to this evi-
dence in the face of insufficient statutory indicia of su-
pervisory status.
Performance of Same Duties as RNs
The Employer also contends that because the LPNs
perform the exact same duties as RNs and because the
RNs are stipulated to be supervisors, the LPNs are also
supervisors. The Petitioner stipulated that the RNs
were ‘‘ineligible to vote.’’59 Assuming arguendo that
the parties stipulated that the RNs are supervisors, that
is not the same as a Board finding, based on evidence
that they are in fact supervisors. Accordingly, where,
as here, the Board is charged with determining the sta-
tus of another classification (LPNs), the asserted fact
that the LPNs are identical in function to the RNs is
not dispositive of the inquiry into the status of the
LPNs.60 In light of the extensive testimony in the
record concerning the actual duties and responsibilities
of the LPN charge nurses, we feel it more appropriate
to make our findings as to the LPNs’ status based on
the testimony itself, rather than on any stipulation as
to eligibility.
Conclusion
Based on our review of the record, we agree with
the Regional Director that the LPNs do not possess
any of the statutory indicia which establish supervisory
status under Section 2(11) of the Act and that LPNs
are not supervisors within the meaning of the Act.
ORDER
The Regional Director’s decision is affirmed and the
case is remanded to him for further appropriate action.