Phelps Community Medical Center

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 486 (N.L.R.B. 1989)

486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Phelps Community Medical Center and Local Union
505, affiliated with the International Brother-
hood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , AFL-CIO,' Petition-
er. Case 9-RC-15175
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On October 8, 1987, the Regional Director
issued a Decision and Direction of Election in
which he found, inter alia, that the Employer's Li-
censed Practical Nurses and licensed practical
nurse applicants were supervisors under Section
2(11) of the Act.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations, the Petitioner filed with the Board a
timely request for review of the Regional Direc-
tor's decision. The Employer filed a response. By
telegraphic order dated November 4, 1987, the
Board granted review of the Regional Director's
Decision and Order.
The National Labor Relations Board has delegat-
ed its authority to a three-member panel.
The Board has considered the entire record in
this case and makes the following findings.2
I. FACTS
The Employer operates a 120-patient, four-wing,
nursing home in Phelps, Kentucky. The home is di-
rected by an administrator who works 3 days a
week. There are dietary and housekeeping depart-
ments that have their own stipulated supervisors.
The nursing department is headed by Director of
Nursing Henrietta Dotson. There is also a position
for an assistant director of nursing that was vacant
as of the hearing. Both of these positions are stipu-
lated to have supervisory status. Below the director
of nursing and the assistant director of nursing are
eight licensed practical nurses (LPNs) and three li-
censed practical nurse applicants , employees who
have graduated from nurse training but have not
been licensed. The parties stipulated that the appli-
cants' supervisory -related duties are the same as
those of the LPNs. Below the LPNs are 42 nurse
aides.
The director of nursing works Monday through
Friday from 6:30 a.m. to 2:30 p.m. The assistant di-
' On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly, the caption has been amended to
reflect that change.
2 At the hearing the director of nursing and one LPN testified and cer-
tain documents were entered into evidence . No credibility findings were
made.
rector of nursing's shift is from 8 a.m. to 4 p.m. on
the same days. Both are always on call. According
to the director of nursing three LPNs work during
the day, two are in charge of two wings each, and
the third "floats" between wings as needed. The di-
rector of nursing testified that the assistant director
of nursing is usually the floating LPN. There are
10 aides on this shift. On the 3 to 11 p.m. shift
there are two LPNs in charge of two wings each.
It appears from the schedules in evidence that
seven aides work on this shift. On the 11 p.m. to 7
a.m. shift there is one LPN and four aides. On eve-
nings and weekends the LPNs are "in charge" of
the facility. LPNs and aides wear uniforms and are
paid on an hourly basis. The director of nursing
and the housekeeping and dietary supervisors do
not wear uniforms, are salaried, and have offices.
The LPN testified that the LPNs' duties are
"mainly to give medications , to do the patient
charting, and the basic overall patient care." This
testimony is consistent with the LPN job descrip-
tion that listed 12 LPN duties, 9 of which had spe-
cifically to do with patient care.3
With regard to the factors indicating supervisory
status listed in Section 2(11) of the Act, the LPNs
are not involved in hiring, transferring, laying off,
recalling , or adjusting grievances . The evidence on
the remaining factors is set forth below.
A. Responsible Direction/Assign Factors
The director of nursing assigns LPNs and aides
to the wing in which they work. These assignments
are made infrequently. LPNs have no authority to
change an aides' assignment location . On a monthly
basis, the director of nursing establishes the hours-
of-work schedule for both LPNs and aides. If an
employee wanted time off or something similar, the
LPN would ask the director of nursing.
If an employee calls in sick soon before a sched-
uled shift and the director of nursing is not in, an
LPN records the time of the call and the reason
for the absence. The LPN also calls in a replace-
ment from a list of "call-ins." Pursuant to the Em-
ployer's policy, the replacement is chosen by se-
3 LPNs' job description made no mention of any supervisory duty
regarding aides ; rather, the job summary states that the LPNs have "the
ability to work under close supervision and to follow oral and written
instruction ." The closest LPN duty to supervision was duty 9 : "Teaches
nurses' aides when opportunity presents itself." However , the nurse aide
job description stated that the aide , "Performs a variety of routine resi-
dent care duties as designated by the charge nurse " Although "charge
nurse" was not defined , the director of nursing indicated that she consid-
ered LPNs and "charge nurses" to be the same thing In her description
of the LPNs' duties , the director of nursing stated , "LPNs pass medica-
tions , they supervise the nurse aides in patient care , they assign the nurse
aides their assignments every day , they make out the assignment sheets
like for each patient ... just anything each patient is supposed to have
according [to] the physician 's orders."
295 NLRB No. 55
PHELPS COMMUNITY MEDICAL CENTER 487
niority. The director of nursing testified that if an
aide has to leave the facility because she is sick or
for some other reason , it is up to an LPN to call in
a replacement if it is early in the shift . But, if it is
approximately an hour before the end of the shift,
they would not call anybody in. If this occurs near
the end of the shift, the remaining employees may
divide the work of the departing employee. If the
employee departs earlier in the shift, the LPN calls
in a replacement pursuant to the policy described
above.
The Regional Director found that the LPNs in-
dependently scheduled aides' breaks and "extra
duties," a task assigned to the supervisor in the em-
ployee handbook.4 The testimony underlying the
Regional Director's finding was that, on a monthly
basis, the LPNs fill out a patient-care duty sheet
pursuant to doctors ' instructions and professional
practices . These instruction sheets also designate
breaktimes and "extra duties" such as restocking
supply areas or cleaning designated areas. After
filling out the forms, however, the LPN does not
assign them to individual aides . Rather, the aides
choose the forms on a random basis. The director
of nursing explained that "which aide gets which
assignment sheet doesn 't really make a difference."
B. The Reward/Promote Factors
There is no contention that the LPNs can
reward or promote any employee on their own.
The question, rather, is whether they make effec-
tive recommendations that result in rewards or pro-
motions . There was evidence that aides and LPNs
are evaluated annually. The director of nursing tes-
tified that she evaluates the day-shift aides if she
has the time .5 If she does not have the time, she
asks day-shift LPNs to fill out the evaluation
forms. Evening- and night-shift LPNs fill out the
forms for aides on their shifts.
Seven evaluations of aides by LPNs were en-
tered into evidence (evaluations of LPNs by an
LPN who was also the assistant director of nursing
4 An employee handbook was entered into evidence with the uncontra-
dicted testimony that its policies and procedures are those currently used
at the facility. Although the Regional Director was technically correct
that the employee handbook states that "rest periods are scheduled by
your supervisor," he did not consider the fact that the job descriptions of
both aides and LPNs state that their supervisor is the director of nursing.
5 The Regional Director emphasized that the employee handbook
states that employees are to be evaluated by their supervisors in connec-
tion with the evidence that certain LPNs fill out the evaluations We do
not place reliance on the handbook reference . As noted, the aides' and
the LPNs' job descriptions state that the supervisor of both groups is the
director of nursing. We also note that the section of the handbook re-
ferred to by the Regional Director states that evaluations will be done
"by your supervisor and/or the Administrator ." As the administrator is
one level above the director of nursing in the Employer's administrative
hierarchy , the Regional Director 's reasoning would appear to indicate
that the director of nursing has no role in evaluations . This is contrary to
the record
were also entered). The seven have numerical
scores in seven subject areas : quality of work,
quantity of work, dependability, cooperation, initia-
tive, self improvement, and personality. The eval-
uation form also contains "yes" or "no" blanks
after "recommend continued employment." How-
ever, this blank was not filled out in all the exam-
ples, and there is no testimony that they were ever
relied on. In fact, there is no evidence that any per-
sonnel action is ever taken based on the evalua-
tions. The evaluations go to the director of nursing
who places them in the employee's file. The direc-
tor of nursing does not meet with the evaluated
employee or, apparently , the evaluator . The Em-
ployer does not have a policy of granting raises in
connection with evaluations, and there is no evi-
dence of promotions or demotions . When asked
what the evaluations of the aides are used for, the
director of nursing stated , "Just to keep a standing
record in th[eir] file, about the[ir] status as an em-
ployee. And, sometimes they-if they go to [a] dif-
ferent facility, they'll ask for copies to take with
them." At another point, when asked what she
does with an evaluation in a file, the director of
nursing testified, "They stay there. The evalua-
tions-they stay there."
The director of nursing did testify that a dis-
charge had been based on an evaluation . However,
she qualified the statement , agreeing that it was in
connection with discipline for a violation of other
rules, in which she makes the determination.6
C. The Discipline/Discharge Factors
The discipline and termination section of the
Employer's employee handbook states, "To insure
consistency and fair play in [behavior requiring dis-
ciplinary action] situations , the company has estab-
lished rules for disciplinary action , and certain
fixed actions ." Three levels of offenses are then
listed. Under "Automatic Discharge Offenses-Re-
quires immediate termination" are 11 offenses, in-
cluding patient abuse, theft or attempted theft, in-
troduction or consumption of intoxicating bever-
ages or drugs on the premises , and unreported ab-
sence of 2 or more days. Under "Serious Of-
fenses-ay result in dismissal , but must result in at
least a suspension of `final ' warning," 12 offenses
are listed. Under "Progressive discipline Offenses-
6 The director of nursing did not specify any particular example. In his
decision, the Regional Director stated, "A decision to terminate an em-
ployee can be, and has been, made based upon an LPN 's written evalua-
tion of a nurse aide." However , the only testimony regarding the effect
of an annual evaluation is that discussed above. We do not conclude from
this testimony that personnel actions are taken because of evaluations
absent separate infractions of disciplinary rules and independent evalua-
tion by the director of nursing.
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
result in at least two warnings prior to termina-
tion," 10 offenses are listed.
The handbook does not indicate that LPNs have
any involvement in the disciplinary process. An
LPN testified that LPNs had disciplinary responsi-
bility for "only minor things. If a nurse aide comes
in late, I can say, `you know you're not supposed
to come in late, you're supposed to be on time.'
But, any problem that is of any consequence is han-
dled by the Director of Nurses."
1. How writeups are initiated
The director of nursing testified that LPNs can
"writeup" an aide without first checking with her.
However, in later testimony, the director of nurs-
ing's example contradicted this, indicating that the
LPN consulted with the director of nursing before
filling out a writeup.7 In agreement with the direc-
tor of nursing's example but contrary to the direc-
tor of nursing 's general statement regarding wri-
teups, an LPN testified, "If you feel a nurse aide
has done some indiscretion, you call the Director
of Nurses and ask her if that is a valid write-up sit-
uation. If she say[s] it is, then you fill out the nec-
essary paper." The LPN also testified that if an
aide violates one of the personnel rules, "The first
thing [an LPN does] is report it to your Director
of Nurses. If it's an offense that's serious enough
for action to be taken, we have disciplinary action
forms that we fill out." Six examples of writeups
filled out by LPNs about aide's conduct were en-
tered into evidence.8
2. The consequence of writeups
All writeups go to the director of nursing. The
director of nursing testified that, as a result, she
would know if there was anything "fishy." If a
writeup is "routine" (i.e., with the signatures of the
aide and the LPN), the director of nursing just puts
the writeup in the aide's personnel file and counts
the number of writeups already in it. The director
of nursing does not meet with the aide and does
not meet with the LPN unless it is a serious of-
7 The director of nursing testified , "If a new nurse aide has been hired
and the LPN comes to me and says I feel like she 's going to make a real
good nurse aide, but she 's too slow, then the LPN writes the nurse aide
up And later on . . if we have another discussion, and the employee has
done real good , I think we should get rid of that black mark off her file,
then we do that." (Emphasis added.)
8 The Regional Director emphasized, "On one such disciplinary notice,
an LPN advised an employee that she should start looking for another
job because her receipt of another disciplinary notice would result in her
discharge ." However, the LPN who wrote this was Director of Nursing
Dotson . As the examples of writeups , including this one , were entered
without any testimony explaining on whose initiative they were written,
whether they were later independently investigated , or whether any
action was taken as a result of them , this notation has little value in deter-
mining whether LPNs effectively recommend discipline . Cf. Wedgewood
Health Care, 267 NLRB 525 (1983).
fense . She also testified , however, "If it's just gen-
eral things , I just monitor the employee's file . .. .
And then if it's say minor things , say somebody's
too many days without a doctor 's excuse, then I
handle it myself."9
As noted in the discussion of evaluations , the di-
rector of nursing testified that discharges based (in
part) on annual evaluations were made in connec-
tion with a violation of "other rules " in which the
director of nursing, herself, made the determination.
Consistent with this testimony of the director of
nursing , when the LPN was asked , whether "LPNs
have any input into a recommendation to discharge
someone?" she testified,
Only if you are a witness to an indiscretion by
that person . Then you are obligated to inform
the Director of Nurses that you saw this indis-
cretion or whatever . But you have no say
whether they're fired or not.
The director of nursing also testified , however,
that on certain , unspecified occasions there are
roundtable meetings including LPNs in which she
asks them if they agree with her opinion.10 In one
example the director of nursing reported unani-
mous agreement that an aide , who had "all" the
writeups she could have, should be fired ."' In the
second case there was also apparent unanimous
agreement that a suspended aide should be fired.12
8 The director of nursing did not explain what handling it herself
meant . She did add , however,
But it varies. If there 's a question in my mind about an employee, I
go to the LPN's. I say , "Am I right? Do you all agree with my opin-
ion?" Because they work with these nurse aides, they work closely
with them . They know more about how they work than I do. And I
ask them before I fire . . . an aide . and I go by their opinion
.... We have had employee[s] that have had write ups . over a
period of a couple years . . . when they get the third write up, and
during that period they would be improved a great deal . And you
don't want to fire the employee over missing a couple days work.
And I have to rely on my LPNs' judgment.... We don 't have a set
thing. It's everybody' s opinion.
The director of nursing's response to the Employer 's attorney 's question,
"How many disciplinary notices would the LPN give before a person
would be discharged?" may be interpreted to be "one verbal and three
written warnings ." We do not draw an inference from this , however, that
there is a consistent response to writeups in employees' files. The director
of nursing's narrative testimony about the treatment of "general" or
"minor" things quoted above and her testimony about serious ones as dis-
cussed below clearly indicate that there is no standard response.
to The director of nursing's testimony regarding the frequency of such
meetings was that , "On certain occasions we have [them], now not all the
time." In light of this testimony we discount the director of nursing's af-
firmative response to the Employer's attorney 's question, "I believe you
testified to this, but, before you would discharge an employee , you would
sit down with the LPN, and you all would make the decision together, as
to whether that employee would be discharged?"
I I The director of nursing testified that on the night before the hearing
she asked , "Does everybody agree that this employee has gone as far as
she can go? Does everybody agree that she needs to be fired? Or does
anybody want to take up for her? And everybody agreed." There was no
evidence about the identity of the aide , the number , or the content of the
notices that the aide had.
12 An LPN had suspended an aide after another aide had complained
that the aide was rough with , and cursed in front of, a patient . The direc-
Continued
PHELPS COMMUNITY MEDICAL CENTER 489
However , in response to the question , "In making
your decision to discharge [the suspended aide] did
you rely on anything else?" the director of nursing
testified that she relied on the fact that the aide had
been written up several times before. The director
of nursing also testified that she conducted an inde-
pendent investigation of the incident.
D. The Suspension Factor
The director of nursing testified that if an aide's
conduct involved a patient , or a serious offense, it
would be the LPN's responsibility to send the aide
home. She testified that such suspensions had oc-
curred a couple of times in the past . When asked
under what circumstances an LPN could send an
aide home , the director of nursing testified , "Under
extreme circumstances . If a-patient abuse, if an
aide comes to work intoxicated, or starts a fight,
something like that . . . . Basically , what they're
doing , you know , when they send one home,
they're not firing that employee. . . . They're send-
ing them home until we can get together and talk
about what steps to take."
The only example of a suspension was given in
response to a question about discipline of the aide
discussed above. Specifically, the director of nurs-
ing testified that after the complaint to an LPN
about the aide 's roughness and cursing , the charge
nurse sent her home . It is clear from the director of
nursing 's testimony that the LPN called the direc-
tor of nursing before sending the aide home. In re-
sponse to the hearing officer 's question whether the
LPN called "to get permission to send her home or
to inform that she was sending her home ," the di-
rector of nursing testified "to inform me."
As already noted, the employee handbook details
disciplinary offenses in three levels of seriousness.
In addition, the director of nursing testified about
two other documents that are on the nursing floor.
They're manuals that are required to be there
by state/Federal guidelines and [an LPN of 1
or 2 months' seniority who] is not real familiar
with all the routine and extreme things that
can happen . She can go to these books and
look at what to do. Like, for example, run-
away patient . . . that would be in the disaster
manual. Steps to take if that event should
occur. There's [also] a policy and procedure
tor of nursing testified that because the aide had been written up before
and because this involved a patient , she had a meeting with all the LPNs,
all of whom had worked with the aide before In the meeting she stated,
"Look , I don't want to fire the girl unless everybody agrees in this case
because everybody can have a bad day ." All the LPNs agreed that the
aid should be discharged . This discharge occurred in the month before
the hearing. No discipline warning on the incident was put into evidence
A September 1986 "second written warning" to the aide for two unex-
cused absences was one of the written warnings put in evidence.
book governing the nursing department .. .
even down to taking blood pressure, even
down to changing a catheter , or even putting
a patient 's clothes on , or making a bed . That's
all in the policy and procedure manual.
The Employer's attorney attempted, through lead-
ing questions , to have the director of nursing testi-
fy that LPNs use independent judgment in decid-
ing whether to suspend (rather than relying on the
employee handbook). The director of nursing testi-
fied, however, "Well, I've been there so long, that
I know the rule books are there, but I don't-I
never have to look at them. But no, they're there if
they're needed." When asked if something is "not
directly covered by a rule" the director of nursing
testified, "Well, if she couldn't get a hold of me,
like on the evening shift, then she would have to
use her judgment , you know." No examples of dis-
ciplinary conduct were given that were not includ-
ed in the employee handbook. The final duty in the
LPNs' job description states, "Has knowledge of
all policies and procedures as written by Phelps
Community Medical Center and follows according
[sic]."
II. ANALYSIS
Section 2(11) of the Act defines a "supervisor"
as,
[A]ny individual having authority, in the inter-
est of the employer, to hire , transfer , suspend,
lay off, recall , promote , discharge , assign,
reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their
grievances, or effectively to recommend such
action, if in connection with the foregoing the
exercise of such authority is not of a merely
routine or clerical nature, but requires the use
of independent judgment.
The types of supervisory authority are listed in the
disjunctive and authority with regard to any one is
sufficient to confer supervisory status . Ohio Power
Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949), cert.
denied 338 U.S. 899 ( 1950). However , the exercise
of authority must be in conjunction with independ-
ent judgment in the employer's interest . NLRB v.
City Yellow Cab Co., 344 F.2d 575 (6th Cir. 1965).
Although the Regional Director recognized that
a significant portion of the LPNs ' duties relate to
patient care and involve routine work , he found
that they are statutory supervisors. As noted previ-
ously , the LPNs are not involved in hiring, trans-
ferring , laying off, recalling , or adjusting employee
grievances. However , the Regional Director found
that LPNs schedule breaks and "extra duties"; an-
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nually fill out evaluations of aides that have been
relied on in terminating an employee ; write disci-
plinary warnings that have been acted on in disci-
plining an employee ; are authorized to suspend em-
ployees; and are in charge of the facility at night
and on weekends . We find that the evidence does
not support the Regional Director 's conclusions.
Our assessment of the record evidence reflects our
view that a party seeking to exclude an individual
from voting for a collective-bargaining representa-
tive has the burden of establishing that the individ-
ual is, in fact, ineligible to vote . Ohio Masonic
Home, 295 NLRB 373 (1989), and cases there cited.
Accordingly, whenever the evidence is in conflict
or otherwise inconclusive on particular indicia of
supervisory authority, we will find that supervisory
status has not been established , at least on the basis
of those indicia.
A. Responsible Direction/Assign Factors
In agreement with the Regional Director, we
find that a significant portion of the LPNs day-to-
day direction of aides is routine. Moreover, we find
that it is "primarily in connection with patient care,
and not in the interest of the employer ." Beverly
Manor Convalescent Center v. NLRB, 727 F.2d 591
(6th Cir. 1984). On this issue , the testimony of the
LPN and the director of nursing and the documen-
tary evidence were in agreement . Most of the
LPNs ' duties are for them to provide patient care.
To the extent that they direct the work of the aides
it is primarily regarding patient care pursuant to
physician 's orders . The only evidence of nonpatient
care direction or assignment is the inclusion on the
monthly patient care assignment sheet of duties
such as cleaning or restocking supplies. The Re-
gional Director placed emphasis on this assignment
but failed to consider the fact that these occasional
and minor assignments are randomly selected by
the aides . This removes any independent judgment
that might have been associated with this duty.
With regard to the assignment of employees, the
director of nursing assigns both the LPNs and the
aides to their work locations and the LPNs have
no authority to change these assignments . The di-
rector of nursing also establishes the hours that the
LPNs and the aides work . The only situation in
which LPNs are associated with changing employ-
ees' working hours is in case of sickness or emer-
gency . The LPNs do not determine if employees
who are sick or in an emergency situation can
leave work . The LPNs' calling in replacements for
employees who call in sick before the start of the
shift does not indicate the exercise of independent
judgment because it is done pursuant to the Em-
ployer's standing policy of calling in replacements
on a strict seniority basis . Similarly , deciding to
call in a replacement based on the hour in which a
sick employee leaves does not indicate the inde-
pendent judgment necessary to show supervisory
status.
B. The Reward/Promote Factors
As noted earlier , there is no contention that
LPNs have the authority to reward or promote
any employee on their own. The only question is
whether their participation in the annual review
process establishes supervisory status . There is no
evidence that an evaluation , on its own , has result-
ed in any personnel action . The Employer has no
policy of granting raises based on them , and there
is no evidence of promotions or demotions. The
noneffect of the evaluations is illustrated best by
the director of nursing's testimony , "They stay
there . The evaluations-they stay there" in the em-
ployee 's personnel file.
In Passavant Health Center, 284 NLRB 887, 891
(1987), the Board stated that, "The authority
simply to evaluate employees without more is in-
sufficient to find supervisory status ." In this case,
as in Passavant, the record does not show that the
evaluations constitute effective recommendations
for promotions , wage increases, or discipline. See
also Geriatrics, Inc., 239 NLRB 287 (1978).
C. Discipline/Discharge Factors
In Passavant Health Center, supra, in which no
supervisory status was found , the Board stated:
[T]he issuance of written warnings that do not
alone affect job status or tenure do not consti-
tute supervisory authority.
[F]or the issuance of reprimands or warnings
to constitute statutory supervisory authority,
the warning must not only initiate , or be con-
sidered in determining future disciplinary
action, but also it must be the basis of later
personnel action without independent investi-
gation or review by other supervisors. [284
NLRB 889-890.]
In the present case , the Regional Director found
that LPNs are authorized to write up aides without
consulting with the director of nursing and that de-
cisions to discharge aides can be and have been
made based on such notices . Neither of these find-
ings is supported by the evidence considered as a
whole.
As noted above, an LPN testified, "If you [an
LPN] feel a nurse aide has done some indiscretion,
you call the Director of Nursing and ask her if that
is a valid write-up situation . If she says it is, then
PHELPS COMMUNITY MEDICAL CENTER 491
you fill out the necessary paper ." The director of
nursing, who testified after the LPN, merely an-
swered negatively to the question "Does [the LPN]
have to check with you before she gives that disci-
plinary notice?" Thereafter, in her only narrative
testimony about how a writeup comes to exist, the
director of nursing provided an example in which
the LPN checked with the director of nursing
before writing up an aide for being "too slow." We
note also that although the LPN job description
and the employee handbook disciplinary rules are
quite detailed , neither mentions LPN responsibility
for writing up employees . And, although the
writeups in evidence indicate that LPNs do write
up aides in some circumstances , there is no evi-
dence on which we can determine whether these
were written after consultation with the director of
nursing or without consultation . Based on the evi-
dence as described above, we cannot conclude, as
did the Regional Director , that the LPNs exercise
independent judgment in writing up employees.
Pine Manor Nursing Home, 238 NLRB 1654 (1978).
Even if we were to find that the LPNs exercised
independent judgment in deciding to write up em-
ployees, no supervisory status in the LPNs would
be established because the facts do not support the
Regional Director's finding that decisions to dis-
charge aides have been based on the writeups.13
All that can be concluded from the evidence is
that once an infraction is written up (however it is
initiated) it is placed in the employee 's personnel
file. From the director of nursing 's narrative testi-
mony, if the writeup is "general" or "minor ," e.g.,
too many days without a doctor's excuse, then she
handles it herself. The director of nursing did not
explain the meaning of handling it herself-wheth-
er she investigates the conduct or evaluates the
penalty on her own. However, subsequent testimo-
ny of the director of nursing indicates that she does
not automatically take adverse action based on the
writeups . She added that her response "varies" and
"we don 't have a set policy" and explained that she
would not want to fire an employee who had three
writeups if that employee had improved over the
course of receiving them and that she would ask
the LPNs' opinion.14
's The Regional Director's finding may have been based on the direc-
tor of nursing 's affirmative response to the following question by the Em-
ployer's attorney . "And based on that [disciplinary notice] and [in] the
manner in which you previously discussed the meeting with the LPNs,
are decisions made to discharge such employees ?" We note that the ques-
tion specifically relates any discharges to the director of nursing's prior
testimony, which we discuss below
14 Nor does the evidence of the two roundtable meetings indicate that
personnel action is taken on a certain number of writeups without further
review Regarding the meeting over the employee accused of roughness
and cursing there is no evidence that there was any writeup at all that
triggered the meeting Moreover, the director of nursing herself had con-
ducted an independent investigation of the incident. With regard to the
We also do not find supervisory status based on
the director of nursing 's request for LPNs' "opin-
ions" or "judgment" when she was planning ad-
verse personnel action in the three-writeup situa-
tion and the two roundtable meetings . The director
of nursing admitted on cross-examination that it is
she who makes the determination to discharge
someone in connection with a violation of rules.
The three examples of consultation with the LPNs
do not disturb this admission because, we find, they
are essentially requests for information . First, we
note that it is the director of nursing who initiates
the consultation , not an LPN, and the director of
nursing does it only on occasion-"If there's a
question in my mind about an employee." In each
case , it is apparent that, before the consultations,
the director of nursing had determined the person-
nel action that she thought was appropriate: dis-
charge unwarranted in the three-writeup situation;
warranted in the other two. In the consultations
the director of nursing asked if everybody agreed
with her judgment. A literal reading of her testi-
mony would indicate that there was always unani-
mous agreement with the director of nursing with
no discussion . This would fail to show that the
LPNs exercised any independent judgment in such
matters . It would be unreasonable to conclude,
however, that the director of nursing's request-
"Am I right? Do you all agree with my opin-
ion?"-is met with silent acquiescence . As the di-
rector of nursing explained , "[t]hey work with
these nurse aides, they work closely with them.
They know more about how they work than I do."
It is apparent to us that the director of nursing,
having made a provisional determination of what is
an appropriate personnel action based on the perti-
nent facts of which she is aware, is seeking confir-
mation or correction of her view of the facts from
persons with closer knowledge.
D. The Suspension Factor
As noted above, the director of nursing testified
that LPNs can send an aide home "under extreme
circumstances" such as "patient abuse, if an aide
comes to work intoxicated , or starts a fight." She
stated that such suspensions had occurred a couple
of times in the past, and she gave one example-
the incident involving the aide who cursed and
roughly treated a patient (fn. 11, infra). For several
reasons, this testimony does not establish 2(11) au-
thority on the part of the LPNs.
aide discharged the night before the hearing , it is clear that it was not
merely an application of a progressive discipline system because the di-
rector of nursing 's testimony indicates that she reviewed the conduct on
her own and developed her own opinion about the proper result that she
then presented to the persons gathered
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
First, regarding "extreme circumstances " disci-
pline generally , the Board has long held that au-
thority that is limited to taking action in response
"to flagrant violation of common working condi-
tions, such as being drunk , is insufficient by itself to
establish supervisory status ." Loffland Bros. Co.,
243 NLRB 74, 75 fn. 4 (1979), and cases there
cited . Second , concerning the particular example
given, the action appeared to be taken in connec-
tion with patient -care responsibilities , and the LPN
called the director of nursing before sending the
aide home . Whether the call was to obtain permis-
sion or simply to inform the LPN's superior, the
fact remains that the director of nursing was af-
forded an opportunity to review the proposed
action and either approve or countermand it.
Finally , we note that in this case the exercise of
independent judgment in matters of discipline is
further limited by the Employer 's extensive set of
rules of conduct that indicate the response to be
taken to various forms of misconduct. The director
of nursing 's testimony indicates that the LPNs
either know the rules or use the handbook. No ex-
amples were presented of situations that would not
be covered by the published rules . Further, the di-
rector of nursing and assistant director of nursing
are always either present in the facility or on call-
available to be consulted as in the cursing and
rough treatment incident referred to above.
would be 1 to 3. Either ratio could be argued, with
some force, to be unreasonable . We find that in the
instant case it is not a useful indicator.' 6
The Employer emphasized , and the Regional Di-
rector relied on, the fact that the night and week-
end LPNs are "in charge" of the facility . We note,
however, that the employee handbook for person-
nel matters, the policy and procedure manual, and
the disaster manual are always on hand . According
to the director of nursing 's testimony , the latter
two manuals contain detailed instructions on a
gamut of potential issues, from making beds to run-
away patients . Moreover, the director of nursing
and the assistant director of nursing are on call. In
these circumstances , we do not find that the LPNs'
independent judgment is required . Geriatrics, Inc.,
supra; Western Union, 242 NLRB 825, 829 (1979).
We agree with the Seventh Circuit in Westing-
house Electric v. NLRB, 424 F.2d 1151, 1158 (7th
Cir. 1970):
The act gives the employer a right to have
employees who are really supervisors excluded
from bargaining units . But the board has a
duty to employees to be alert not to construe
supervisory status too broadly because the em-
ployee who is deemed a supervisor is denied
employee rights which the act is intended to
protect.
E. Other Factors
When none of the factors listed in Section 2(11)
indicate supervisory status, the Board has also ex-
amined certain secondary factors. Flexi-Van Corp.,
228 NLRB 956 (1977). One is the designation of
the employee in question . Here, we have noted, the
Employer's job descriptions state that the director
of nursing is the supervisor of both the LPNs and
the aides . There is no evidence of LPN attendance
at management or supervisory meetings , another
secondary factor. Moreover, the LPNs, like the
aides and unlike most of the stipulated supervisors,
wear uniforms and are hourly paid.
The ratio of supervisors to employees is another
secondary factor that the Board has considered. If
the LPNs are found not to be supervisors , the su-
pervision of the nursing department would include
the administrator , the director of nursing , and the
assistant director of nursing, a ratio of about 1 to
18. If they are found to be supervisors , the ratio
In this case the evidence does not show that the
LPNs exercise , in the Employer 's interest, inde-
pendent judgment in conjunction with any of the
factors that establish supervisory status under Sec-
tion 2(11). We conclude that they are not statutory
supervisors.
ORDER
The Regional Director 's decision is reversed
with regard to the supervisory status of the li-
censed practical nurses and licensed practical nurse
applicants and the case is remanded to him for fur-
ther appropriate action.
18 Even if it were possible to conclude that a 1 to 18 ratio is unreason-
able and I to 3 is reasonable , it would not change our conclusion because
such a ratio is not a factor that the Act directs us to consider . It is not
the province of the Board to determine the "proper " number of supervi-
sors Sec. 2(11) determines the factors that, in conjunction with the exer-
cise of independent judgment , indicate supervisory status for the purpose
of this Act , and it is the Employer who determines how its business is
operated and what kind of responsibility to give to its various employees.