Riverchase Health Care Center

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 861 (N.L.R.B. 1991)

861
304 NLRB No. 111
RIVERCHASE HEALTH CARE CENTER
1 The United Steelworkers of America initially petitioned for an election in
the unit, and the United Food and Commercial Workers, Local 1657, cross-
petitioned. The Steelworkers subsequently withdrew from the proceeding.
2 The Employer also contends that two LPNs, Marsha Shepard and Pat
Bennick, are casual/as-needed employees who are ineligible to vote and should
be excluded from the unit. The Regional Director found that these two LPNs
have the option of working, when requested by the Employer’s staff develop-
ment coordinator, to cover for vacationing regular LPNs, and may become reg-
ular LPNs if a vacancy occurs. The record does not show the number of hours
these two employees actually worked. The Regional Director ruled that
Shepard and Bennick be allowed to vote subject to challenge. There was no
request for review of this ruling.
3 The parties stipulated that the administrator and DON are supervisors. The
Regional Director found that the ADON and SDC are also statutory super-
visors. There was no request for review of these findings.
4 The supervisory status of the RNs is not in issue.
5 The Petitioner and the Employer are currently parties to a collective-bar-
gaining agreement covering a unit of the Employer’s nurses aides, and its or-
derlies, dietary/kitchen, housekeeping, laundry, and maintenance employees at
the Birmingham facility.
6 The DON and ADON are RNs.
7 The Employer contends that the record does not support the Regional Di-
rector’s finding that either the DON or ADON are on call at all times. On
at least one occasion during a night shift or late night shift an LPN telephoned
the DON at home concerning a disciplinary incident. It is unclear, however,
whether the DON and ADON are ‘‘on call’’ as part of their duties or whether
the LPN made a personal decision to call.
8 The unit certification in Waverly was subsequently affirmed. See Waverly-
Cedar Falls Health Care, 298 NLRB 997 (1990), enfd. 933 F.2d 626 (8th Cir.
1991).
9 The Employer asserts that its LPNs have supervisory authority. It admits,
however, that at least to some extent LPNs have not exercised that authority.
DON Virginia Getz, who had assumed her position about 9 weeks prior to
the hearing, testified that she had noticed that LPNs were shirking supervisory
duties and began attempting to induce the LPNs to supervise the nurses aides
Continued
Beverly Enterprises, Alabama Inc., d/b/a Riverchase
Health Care Center and United Food and
Commercial Workers, Local 1657, AFL–CIO,
Petitioner.1 Case 10–RC–14057
August 27, 1991
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, DEVANEY, AND OVIATT
On November 20, 1990, the Regional Director
issued a Decision and Direction of Election in which
he found appropriate the unit sought by the Petitioner,
consisting of approximately 20 licensed practical
nurses (LPNs) employed at the Employer’s Bir-
mingham, Alabama facility.2 The Regional Director re-
jected the Employer’s contention that the LPNs are su-
pervisors under Section 2(11) of the Act. Thereafter, in
accordance with Section 102.67 of the National Labor
Relations Board’s Rules and Regulations, the Em-
ployer filed with the Board a timely request for review
of the Regional Director’s Decision and Direction of
Election. By Order dated December 20, 1990, the
Board (Member Devaney dissenting) granted the re-
quest for review.
We have considered the entire record in this case,
including the Employer’s brief on review, and make
the following findings.
I.
The Employer operates a 120-bed skilled nursing
care facility in Birmingham, Alabama. The facility is
laid out in two wings, with two nursing stations.
An administrator manages and directs operations at
the facility. The nursing department is headed by a di-
rector of nursing (DON). The DON, an assistant direc-
tor of nursing (ADON), and a staff development coor-
dinator (SDC) report to the administrator.3 There are
also 2 or 3 supervisory registered nurses (RNs),4 about
20 LPNs, and 60–70 nurses aides5 in the nursing de-
partment.
The facility operates 7 days a week, 24 hours a day,
on three shifts. The weekday shifts and staffing are as
follows: the day shift, 7 a.m. to 3 p.m., is staffed by
5 LPNs and 20 nurses aides; the night shift, 3 p.m. to
11 p.m., staffed by 3 LPNs and 12 nurses aides; and
the late night shift, 11 p.m. to 7 a.m., staffed by 2
LPNs and 6 nurses aides. There is also one RN on
duty from 8 a.m. to 4:30 p.m. on weekdays. Either the
DON or the ADON6 are on duty on weekdays, from
7 a.m. to 7 p.m.7 The SDC works weekdays from 8
a.m. to 4:30 p.m.
The weekend staffing varies from weekday staffing
in several respects. The DON, ADON, and SDC are
not on duty. The weekend RN is on duty only from
7 a.m. to 7 p.m. The LPNs work modified shifts: three
work the day shift; four work from 3 to 7 p.m.; three
work from 7 to 11 p.m.; and two LPNs work the late
night shift. The nurses aides are scheduled for 12-hour
shifts, with 20 nurses aides working from 7 a.m. to 7
p.m., and 12 on duty from 7 p.m. to 7 a.m.
II.
The Petitioner seeks to represent a unit of all LPNs
employed at the Employer’s Birmingham facility. The
Employer contends that the LPNs do not constitute an
appropriate unit because they are statutory supervisors.
The Regional Director found, contrary to the Employ-
er’s contentions, that the LPNs are not supervisors. He
reasoned, inter alia, that they do not effectively rec-
ommend promotions, raises, discipline, or retention of
employment, and that their direction of nurses aides’
work is routine and primarily concerned with patient
care. The Employer raises two issues in its request for
review. First, it contends that the Regional Director er-
roneously determined that the LPNs do not exercise
the ‘‘independent judgement’’ required by the statute
in regard to any of the supervisory indicia. Next, it
contends that to the extent that the Board’s decision in
Waverly-Cedar Falls Health Care, 297 NLRB 390
(1989),8 is controlling, there are compelling reasons for
its reconsideration.
Our review of the facts and the precedent, as set
forth below, does not persuade us that the Employer’s
LPNs are statutory supervisors.9 Thus, we affirm the
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
more actively. Nonetheless, the Employer apparently would have us find as
a matter of law, based on its mere assertions that LPNs have supervisory au-
thority, that the LPNs are supervisors. Although the Employer correctly points
out that it is the possession of supervisory power rather than its exercise that
determines supervisory status, the Employer is not absolved, in the first in-
stance, of establishing that LPNs actually possess supervisory authority. Thus,
we examine the evidence in light of the 2(11) criteria to determine whether
LPNs employed by this Employer possess sufficient authority to warrant a
finding they are statutory supervisors.
10 There is no evidence LPNs can compel or ever have compelled nurses
aides to work overtime or on scheduled days off.
Regional Director’s decision and remand the case to
the Regional Director for further processing in accord-
ance with this decision.
III.
The LPNs’ responsibilities primarily involve direct
patient care. They assist attending physicians and im-
plement physicians’ orders by, inter alia, administering
medications and treatments. They complete paperwork
and perform various nursing duties and procedures
such as irrigations, overseeing intravenous processes,
and monitoring vital signs. In addition, they participate
with nurses aides in feeding, turning, bathing, and
changing patients. The Employer has provided to all
nursing staff a detailed series of nursing manuals
which prescribe patient care procedures. The DON
sometimes meets with LPNs as a group to discuss
scheduling and work assignments, patient care, and
discipline of nurses aides. Additionally, LPNs have at-
tended Employer-sponsored training sessions at which
there were presentations about leadership, communica-
tions skills, and employee counseling, evaluation, and
disciplinary techniques.
LPNs do not have the authority to hire, interview,
lay off, or recall employees. They may assign work to
nurses aides under some circumstances. The SDC pre-
pares a detailed monthly work schedule assigning
LPNs and nurses aides to specific workdays, shifts,
wings, and blocks of rooms in the facility. LPNs can
adjust the daily work schedule to meet exigencies,
however, by transferring nurses aides to different work
areas, requesting nurses aides to work beyond the end
of their shifts, and requesting off-duty nurses aides to
report for work.10 In this regard, DON Virginia Getz
testified that LPNs can authorize overtime if necessary.
There was no evidence, however, of specific instances
when an LPN actually had authorized overtime pay.
On the other hand, the record indicates that LPNs, on
their own authority, have released nurses aides from
work. In one case an LPN permitted a nurses aide to
leave early at the end of a shift; and in another case,
an LPN authorized a nurses aide to leave the facility
temporarily midshift to take care of a family emer-
gency.
LPNs do not have exclusive authority or responsibil-
ity for daily staffing adjustments. Testimony regarding
the extent to which LPNs are responsible for obtaining
replacement workers for absentees and adjusting daily
work schedules and work assignments revealed that
some LPNs, the RNs, and the SDC all have performed
those functions. Administrator Betty Thornburg testi-
fied that LPNs have the authority to make these daily
staffing adjustments, but she admitted that the SDC
does so ‘‘as a convenience’’ when she is on duty. Re-
placements must be obtained from the Employer’s au-
thorized call-in list but may be selected at random
from that list. LPN Cassandra Bush testified that she
has not obtained replacements for absentees and that
she routinely refers call-ins and replacement needs to
the LPNs in charge of the larger wings of the facility
or to the SDC or RNs, if they are available. Although
their job description requires LPNs to ‘‘ensure proper
staffing by calling in replacement personnel . . . and
by transferring and reassigning nurses aides for proper
coverage,’’ there is no evidence Bush has been dis-
ciplined for her failure to do so or otherwise instructed
to handle staffing matters herself. In contrast, LPN
Deborah Short testified she has reassigned nurses aides
to adjust for short staffing. According to Bush’s
uncontradicted testimony, LPNs assign nurses aides to
designated breaktimes by entering their names on a
preprinted break schedule form. DON Getz testified
that when circumstances necessitate, LPNs can call
nurses aides back from breaks or reschedule them.
LPNs play a role in the Employer’s time-and-attend-
ance process. They have on occasion initialed nurses
aides’ timecards and can verify attendance when
nurses aides neglect to punch the timeclock. According
to DON Getz, however, the Employer’s policy is that
the DON is responsible for verifying timecards and, in
her absence, the ADON.
LPNs have participated in the Employer’s discipli-
nary system by issuing warnings and, in cases of fla-
grant violations, by temporarily suspending nurses
aides. There is evidence, however, that LPNs generally
have deferred disciplinary matters to the DON, ADON,
SDC, or the RNs instead of handling them personally.
Elements of the disciplinary system are set out in a
manual which is available to LPNs. The manual de-
fines offenses by degree of seriousness—category I
and II offenses—and governs the appropriate level of
discipline for each category. Category I offenses are
flagrant violations which result in discharge. Category
II offenses are lesser misconduct which can result in
employee counseling, oral or written warnings, suspen-
sion, and discharge. Both category I and II offenses are
recorded on ‘‘employee memorandum’’ forms, which
become part of an employee’s personnel file. An accu-
mulation of three or more category II employee memo-
randa within 12 months can result in discharge.
The record contains several category I employee
memoranda prepared initially by LPNs. In at least one
instance, an LPN temporarily suspended a nurses aide
863RIVERCHASE HEALTH CARE CENTER
11 The Employer’s administrator, Betty Thornburg, identified some of the of-
ficials who signed employee memoranda as RNs. It is unclear whether those
officials were operating under an RN job description or encumbered other jobs
traditionally held by RNs, such as DON, ADON, or SDC, or whether, as
sometimes happens, the RNs were working in positions rated for LPNs.
without pay for refusing an assignment, a category I
offense. In that case the administrator made the final
decision to discharge. In other cases, the administrator
either overruled an LPN’s discharge recommendation
or downgraded the level of offense determined by the
LPN. Other category I employee memoranda were ini-
tiated by personnel other than LPNs. For example, one
was prepared by the ‘‘DNS’’ (identified as director of
nursing services). An RN made a subsequent notation
on one employee memorandum that she—not the initi-
ating LPN—had discharged the employee.
Also in the record are a number of category II em-
ployee memoranda prepared by a DON, an ADON,
RNs,11 and LPNs. At the top of the employee memo-
randum form there is a section captioned ‘‘Type of
Action Taken’’ with blocks to be checked to indicate
the appropriate level of discipline—oral warning, writ-
ten warning, suspension/number of days, and dis-
charge. Under the Employer’s progressive system, it
would be necessary to determine from the personnel
files an employee’s disciplinary history to determine
the appropriate discipline. The evidence does not clear-
ly establish who is responsible for making that deter-
mination. LPNs do not have access to employee per-
sonnel files where prior employee memoranda are
maintained. DON Getz testified that an LPN’s rec-
ommendation to terminate a nurses aide could effec-
tively result in termination. There is no evidence, how-
ever, that any nurses aide actually has been suspended
or terminated as a result of accumulated category II
employee memoranda.
Employee memorandum forms also contain a section
for recommending corrective action. On occasion
LPNs have completed this section. However, on some
employee memoranda prepared initially by LPNs, the
type-of-action section or corrective action rec-
ommendation is in different colored ink or different
handwriting from the rest of the writeup. Administrator
Thornburg acknowledged, but could not explain, these
circumstances.
LPNs perform written evaluations of nurses aides’
work; however, they do not recommend promotions,
raises, awards, or retention of employment. Getz testi-
fied that LPNs are expected to initiate corrective ac-
tion, if necessary, when they evaluate nurses aides.
LPN Cassandra Bush testified that she forwarded eval-
uation forms to the DON without recommending fur-
ther action. LPN Deborah Short testified she rec-
ommended corrective action and counseled employees
on work performance. There was no evidence that any
employee’s job status was actually affected by an
LPN’s evaluation.
The parties’ collective-bargaining agreement cover-
ing nurses aides includes a grievance-arbitration provi-
sion which applies to disciplinary actions. The first, in-
formal, step permits a nurses aide (with or without a
shop steward) to present a grievance to the immediate
supervisor before invoking the formal, three-step pro-
cedure. DON Getz testified that LPNs have the author-
ity to handle a nurses aides’ grievance, although she
is unaware of any instances of an LPN doing so. As
a practical matter, according to Getz, LPNs usually
contact the SDC when presented with a grievance. The
Petitioner introduced into evidence 16 employee
memoranda constituting all such documents in its pos-
session which were issued to nurses aides during ap-
proximately 3 years prior to the hearing and which re-
sulted in written grievances. Elaise Fox, the Petition-
er’s business agent who has represented employees in
the nurses aides unit at the Employer’s Birmingham fa-
cility since about late 1987, testified without contradic-
tion that all of these employee memoranda were writ-
ten or prepared by the DON or ADON, not by LPNs.
Fox also testified that she processes grievances only
with the DON or the administrator, that she ‘‘avoids’’
dealing with the ADON. According to Fox, participa-
tion by LPNs in the formal grievance process is lim-
ited to attesting to what an LPN has recorded on an
employee memorandum.
IV.
To establish that an individual is a supervisor record
evidence must affirmatively show that one or more of
the statutory criteria have been met. Ohio Masonic
Home, 295 NLRB 390, 392 (1989), and cases cited
there. We find here that the record as a whole fails to
establish that the LPNs possess supervisory authority.
It is undisputed that the LPNs have no authority to
hire, interview, lay off, or recall employees. Neither do
they effectively recommend such action. The Employer
asserts, however, that the LPNs are supervisors based
on their responsibilities in assigning and directing
work and transferring employees, granting overtime,
evaluating and disciplining employees, adjusting em-
ployee grievances, and their being ‘‘in charge’’ during
the late shifts and on weekends.
A. Assigning and Directing Work, Transferring
Employees, and Granting Overtime
LPNs’ assignment of work is routine and primarily
concerned with patient care. Similarly, we find that the
ability of LPNs to transfer nurses aides to different as-
signments and to grant overtime is limited to consider-
ations of routine patient care.
The SDC is responsible in the first instance for as-
signing all nursing department personnel, not only to
shifts, but also to wings and blocks of rooms. Further,
the SDC is generally responsible for adjustments to the
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
monthly work schedule. LPNs have authority to adjust
nurses aides’ work schedules only in the event of ex-
igencies such as employee absenteeism or personal
conflicts between nurses aides which affect patient
care.
Although LPNs can call in replacements, request
nurses aides to work overtime, or transfer nurses aides
to different wings of the facility if circumstances re-
quire, we cannot find under the circumstances here that
in doing so they exercise independent judgment. Wa-
verly-Cedar Falls Health Care, supra at 393. First,
they refer decisions of this kind to the SDC when she
is at work, or even to an RN who is the senior em-
ployee on duty. Further, LPNs must follow the Em-
ployer’s policy to obtain replacements from its list of
preapproved employees. We find that only routine
judgment is required to select replacements at random
from a list of candidates the Employer has already
judged competent to serve as replacement employees.
In addition, LPNs can request but not compel—that is,
not actually direct or assign—nurses aides to work
overtime. Finally, transfers by LPNs of nurses aides to
meet exigencies are directly motivated by the day-to-
day requirements of patient care rather than the busi-
ness interests of the Employer, which may or may not
coincide. The evidence does not suggest that LPNs are
authorized to transfer employees permanently to other
assignments within the facility.
That on two occasions LPNs made ad hoc decisions
to permit nurses aides to leave work during assigned
work hours does not change the result here. See Wa-
verly-Cedar Falls Health Care, supra. In both in-
stances, releasing the nurses aides from work was con-
sistent with the dictates of patient care. In one case, a
nurses aide was permitted to leave early when she had
completed all assigned duties and was no longer need-
ed. In the other case, the nurses aide was allowed to
take care of a family emergency so she could return
and continue with her duties. There is no evidence that
LPNs have general authority to grant time off.
We further find that assignment and direction of
nurses aides’ work by LPNs is routine and primarily
in connection with patient care and does not establish
that the LPNs are supervisors. Beverly Manor Con-
valescent Center, 275 NLRB 943, 944–947 (1985).
They follow physicians’ orders to administer medica-
tion and treatments; perform various standard nursing
procedures pursuant to the Employer’s nursing manu-
als; and assist nurses aides in routine activities to en-
sure that the nutritional, personal comfort, and safety
needs of patients are met. The fact that LPNs also re-
quest nurses aides to reschedule or postpone breaks
does not align the LPNs with the Employer. These re-
quests are routine, made to ensure adequate staff is
available to care for patients. Waverly-Cedar Falls
Health Care, supra; Phelps Community Medical Cen-
ter, 295 NLRB 486, 490 (1989).
For the reasons given, we find that LPNs’ limited
responsibilities in regard to assignment and direction
of work, transferring employees, and granting overtime
do not support a finding that LPNs possess supervisory
status.
B. Evaluation of Employees
LPNs assess the job performance of nurses aides;
however, their responsibilities do not include rec-
ommending promotions, raises, awards, or retention of
employment. One LPN has initiated corrective action
in connection with an unsatisfactory element of a
nurses aide’s evaluation, but another LPN has not. This
is not necessarily inconsistent with testimony by DON
Getz that LPNs are expected to initiate corrective ac-
tion if necessary. In any event, there is no evidence
that any nurses aide’s job status was ever affected by
an LPN’s evaluation. The authority simply to evaluate
employees without more is insufficient to establish su-
pervisory status. Passavant Health Center, 284 NLRB
887, 891 (1987), and cases cited there. Thus, this case
is distinguishable from Wedgewood Health Care, 267
NLRB 525 (1983), where nurses were found to be su-
pervisors in part because their poor evaluations of em-
ployees resulted in adverse personnel actions.
C. Discipline of Employees
The LPNs play a role in the Employer’s disciplinary
system pursuant to policies set out in its disciplinary
handbook. For the following reasons, however, we find
that the evidence does not establish that the LPNs ex-
ercise independent judgment sufficient to support a
finding of supervisory status.
The Employer’s LPNs issue oral and written warn-
ings by recording factual accounts of the alleged mis-
conduct on employee memorandum forms that become
part of the employees’ personnel files. The record does
not establish that these employee memoranda automati-
cally lead to any further discipline or adverse action
against an employee. There is no evidence that any
nurses aide has ever been suspended or terminated as
a result of accumulated employee memoranda. Further,
the record is contradictory as to who is responsible for
finally determining the appropriate level of discipline
based on a nurses aide’s disciplinary history. In our
view, the LPNs’ lack of access to personnel files con-
taining prior disciplinary history tends to show that
LPNs generally are not in a position to determine the
appropriate level of discipline.
We find that the LPNs perform only a reportorial
function when they issue employee memoranda.
Passavant Health Center, supra at 889. In any event,
the LPNs’ concern in the disciplinary process does not
extend beyond the realm of patient care. Compare
865RIVERCHASE HEALTH CARE CENTER
12 Contrary to Member Oviatt’s dissenting opinion, we view the Employer’s
published disciplinary policy as a substantial limitation on the judgment re-
quired of LPNs. The policy sets out a detailed classification of offenses by
type and degree of seriousness and prescribes the appropriate disciplinary ac-
tion. Thus, the disciplinary role of LPNs is to follow the Employer’s standard
procedures and does not require the exercise of independent judgment.
Wedgewood Health Care, supra; Wright Memorial
Hospital, 255 NLRB 1319 (1981). For reprimands or
warnings to reflect supervisory authority, the warnings
must not only initiate or be considered in determining
future disciplinary action, but also they must be a basis
of later personnel action without independent inves-
tigation or review by the Employer. Passavant Health
Center, supra at 890. When written reports and warn-
ings do not, without more, affect job tenure or status,
they do not establish statutory supervisory authority.
Id. at 889.
Discharge is mandated by the Employer in cases in-
volving flagrant violations of the Employer’s discipli-
nary policy. The Employer’s published disciplinary
policy directs that the employee committing the of-
fense be suspended without pay. The policy further
provides that ‘‘[T]he department head/supervisor and
the administrator will then investigate the facts of the
events leading up to the suspension, preparing the doc-
umentation as necessary . . . [T]he administrator and
the department head collectively will make the final
decision, both signing the termination action form, if
discharge is decided upon.’’ According to DON Vir-
ginia Getz, the administrator makes the final decision
in any case whether discharge is warranted. Further,
the administrator can overrule a disciplinary rec-
ommendation or downgrade the seriousness of the of-
fense.
Authority that is limited to a response to flagrant
violations of ‘‘common working conditions’’ is insuffi-
cient by itself to establish supervisory status. Phelps
Community Medical Center, supra. Also, suspensions
in connection with patient care that are reviewed at a
higher level do not establish supervisory status. Ibid.
We cannot find that the Employer’s LPNs exercise
independent judgment in disciplining employees or that
they can affect employee job status.12
D. Grievance Adjustment
The Employer contends LPNs adjust nurses aides’
grievances, exercising independent judgment. LPNs
have responded to informal complaints about personal-
ity conflicts among nurses aides and unequal workload
distribution by reassigning nurses aides. The reassign-
ments, however, were routine and were motivated by
patient care concerns. The resolution of minor em-
ployee complaints regarding workload, lunch and break
schedule conflicts, or personality conflicts is insuffi-
cient to establish supervisory status. Ohio Masonic
Home, 295 NLRB 390 (1989).
Formal grievances are handled, in the first instance,
by the SDC, according to DON Getz. Formal griev-
ance meetings are between the union business agent
and the DON or the administrator. LPN participation
in grievance meetings is limited to attesting to infor-
mation recorded by LPNs on employee memoranda.
We find that LPNs do not resolve employee griev-
ances through the exercise of independent judgment.
E. Other Factors
When none of the factors listed in Section 2(11) in-
dicate supervisory status, the Board has also examined
certain secondary factors. Phelps Community Medical
Center, supra, and cases cited there. One is the des-
ignation of the employee in question. Here their job
description designates LPNs as ‘‘LPN/Supervisor’’ and
provides, inter alia, that they are [r]esponsible for pro-
viding quality care for residents through the super-
vision of assigned personnel . . . .’’ We have already
found the evidence insufficient to support a finding
that LPNs exercise independent judgment with regard
to the primary, statutory supervisory factors. Further,
there is no evidence that LPNs attend general manage-
ment or supervisory meetings. They have attended
meetings and training sessions where they discussed
responsibilities and skills required to ensure patient
care. Neither title nor newly redefined authority is suf-
ficient to establish supervisory status if they are illu-
sory. Pine Manor Nursing Home, 238 NLRB 1654,
1655 (1978). We find that this factor does not support
a finding of supervisory status.
Finally, the Employer asserts that the LPNs are su-
pervisors because LPNs are ‘‘in charge’’ of the facility
on the night and late night shifts during the week and
the 7 p.m. to 7 a.m. shift on weekends. Thus, it argues
that unless LPNs are supervisors the facility would be
without supervision 76 percent of the time. We do not
find this argument persuasive. The record does not
clearly establish that neither the DON nor ADON are
on call, available for consultation, during these shifts.
Additionally, nursing department handbooks containing
detailed procedures and instructions and other policy
manuals are available at all times. In these cir-
cumstances, we do not find that LPNs are required to
exercise independent judgment. Waverly-Cedar Falls
Health Care, supra.
Based on the foregoing, we agree with the Regional
Director that the LPNs do not exercise independent
judgment in regard to any of the factors establishing
supervisory status under Section 2(11) of the Act, and
that the LPNs are not supervisors under the Act.
ORDER
The Regional Director’s decision is affirmed and the
case is remanded to him for further appropriate action.
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Category II offense No. 23, by its terms, requires that an independent judg-
ment be made. It provides for discipline in ‘‘other extreme instances of im-
proper conduct not specifically listed.’’
MEMBER OVIATT, dissenting.
For the following reasons, I find that licensed prac-
tical nurses (LPNs) employed by the Employer at its
Birmingham, Alabama facility are supervisors within
the meaning of Section 2(11) of the Act. In my view,
the majority too readily discounts the degree of inde-
pendent judgment exercised by LPNs in fulfilling their
responsibilities under the Employer’s progressive dis-
ciplinary policy. Accordingly, I would reverse the Re-
gional Director and dismiss the petition.
LPNs can temporarily suspend nurses aides without
pay for any one of 22 category I disciplinary viola-
tions. Similarly, they can issue employee disciplinary
memoranda in response to 23 category II1 violations.
An examination of the Employer’s categories of pun-
ishable conduct shows that LPNs necessarily exercise
independent judgment in order to determine the appro-
priate offense. Because the prescribed discipline is
linked to the offense, that effectively can determine the
extent of discipline.
Distinctions between category I and category II con-
duct are often simply a matter of degree. Compare, for
example, category I offense No. 5, ‘‘theft from the fa-
cility, residents, or other employees,’’ with category II
offense No. 18, ‘‘Conversion of company or resident’s
property to one’s own use.’’ Category I offense No.
20, ‘‘flagrant violation of safety rules,’’ is strikingly
similar to category II offense No. 6, ‘‘failure to follow
safety rules’’; and category I offense No. 7, ‘‘verbal or
physical threats against the facility, resident, visitor or
other employee,’’ is subsumed under category II of-
fense No. 7, ‘‘discourtesy to the residents, families or
fellow employees.’’ Further, the Employer’s discipli-
nary policy provides that ‘‘[T]he philosophy behind
progressive discipline is that it gives the employee an
opportunity to take corrective action, inorder [sic] to
retain an affiliation with the facility.’’ It is plain that
the Employer intends that its disciplinarians—here, the
LPNs—will categorize each violation by balancing the
severity of the offending conduct with the effect
sought to be achieved by disciplinary action. That bal-
ancing process is the essence of independent judgment.
Moreover, the disciplinary authority exercised by
LPNs extends beyond the realm of immediate patient
care to enforcement of the Employer’s personnel poli-
cies. LPNs may impose discipline on nurses aides for,
inter alia, absenteeism and falsification of timecards,
failure to maintain confidentiality of records, violations
of safety rules, unauthorized use of bulletin boards, use
of improper language, and inappropriate dress. Dis-
ciplinary authority which extends to the enforcement
of an employer’s major personnel policies and is not
merely incidental to patient care is sufficient to warrant
a finding of supervisory status. Wedgewood Health
Care, 267 NLRB 525 (1983); Avon Convalescent Cen-
ter, 200 NLRB 702 (1972).
Contrary to my colleagues, I further find that rather
than serving a mere reportorial function, the discipli-
nary notices generated by LPNs set in motion a proc-
ess which has both immediate and long-term effects on
an employee’s job status. The notices are adverse ac-
tions in themselves. Also, they are intermediate steps
to more severe forms of discipline. Section 2(11) re-
quires a finding of supervisory status even where an
individual has only the authority ‘‘effectively to rec-
ommend’’ discipline. The LPNs here have, at least,
that authority.
Several other facts buttress my findings. First, the
LPNs’ job description encompasses the daily super-
vision of nurses aides. In addition, on their own au-
thority LPNs have released nurses aides from work
early or during a shift. The Employer’s disciplinary
policy provides that it is a category II offense to ‘‘stop
work before time specified for such purposes,’’ or to
‘‘leave work area without permission of the super-
visor.’’ Thus, in releasing nurses aides from work,
LPNs exercise independent judgment to exempt em-
ployees from the disciplinary rules. Further, LPNs can
call off-duty nurses aides to work and can authorize
nurses aides to continue working beyond the end of a
shift. Both of these actions entail authorizing overtime
pay. Finally, I note that if LPNs are not supervisors,
nurses aides at the Employer’s facility would be with-
out onsite supervision during significant portions of the
workweek. Beacon Light Nursing Home, 825 F.2d
1076 (6th Cir. 1987), enf. denied 277 NLRB No. 109
(1986) (not reported in Board volumes).
I am concerned that the Board’s present position
does not sufficiently recognize the unique cir-
cumstances present in smaller-scale, long-term health
care facilities that do not necessarily employ people
who are clear-cut supervisors within a niggling defini-
tion. These employees nonetheless may stand in the
shoes of the employer for extended periods, during
which, they are the employer’s presence on the job.
This case illustrates my concern. Whether or not these
LPNs appear on the Employer’s formal organization
chart as a discrete level of supervision they, nonethe-
less, are the true supervisors of the work force. They
are responsible for the quality of the patient care and
the manner in which it is provided for significant por-
tions of the workweek. We should shun any tendency
to decide supervisory status based on isolated factors.
Instead, the purposes of the Act are better served by
an examination of alleged supervisory responsibilities
in the context of their relationship to the whole organi-
zation.
867RIVERCHASE HEALTH CARE CENTER
I find that the LPNs exercise substantial independent
judgment particularly in their role in the Employer’s
disciplinary scheme. Further, I find that LPNs are the
Employer’s presence on the job for substantial periods
of time. Accordingly, I conclude that they are statutory
supervisors.