The Ohio Masonic Home, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 390 (N.L.R.B. 1989)

390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Ohio Masonic Home, Inc. and Teamsters Local
Union No. 957, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , AFL-CIO,
Petitioner. Case 9-RC-15216
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On March 22, 1988, the Regional Director issued
a Decision and Direction of Election in which he
found that the Employer' s licensed practical nurses
(LPNs) employed as charge nurses were not super-
visors under Section 2(11) of the Act. Accordingly,
the Regional Director found that a unit of all full-
time and regular part -time licensed practical nurses
constituted a unit appropriate for the purposes of
collective bargaining and directed an election.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations , the Employer filed with the National
Labor Relations Board a timely request for review
of the Regional Director's decision . By telegraphic
order dated April 21, 1988, the Board granted the
request for review.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the entire record in
this case, including the Employer's brief on review,
and makes the following findings.
I.
The Employer operates a health care facility in
Springfield, Ohio. Three of the buildings on the
Employer's 450 acre site contain resident care
units: the Rickley Building, which houses 13 resi-
dent care units; the Extended Care Wing, which
houses 2 resident care units ; and the Main Annex,
which houses 1 resident care unit . All three build-
ings are connected by an underground tunnel. The
licensed capacity of the home is 436 beds, and at
the time of the hearing it housed 390 residents.
Chief Executive Officer Thomas Scott has over-
all administrative responsibility for the Employer's
operations . Assistant Administrator Joyce McGoni-
gal reports directly to Scott. Under McGonigal are
Director of Nursing Duane Szymanski , Assistant
Director of Nursing Becky Miller, and Inservice
Coordinator Janet Ray. There are eight general su-
pervisors who report to Miller and Szymanski and
are responsible for the operation of the resident
care units on their respective shifts. The Employer
employs approximately 39 LPNs as charge nurses
and 27 registered nurses (RNs) as head nurses.'
LPNs are employed only as charge nurses, whereas
RNs may be promoted to general supervisor. The
Employer employs approximately 190 persons as
nursing assistants (aides), orderlies , or medicine
technicians (med techs), who are members of a
service and maintenance bargaining unit and per-
form direct patient care in the resident care units.
These employees are represented by National
Union of Hospital and Health Care Employees,
Local 1199H.
Employees are scheduled so as to provide resi-
dents with 24-hour care, 7 days a week. The
charge nurses and the head nurses, as well as the
general supervisors , are assigned to one of five
shifts: on weekdays, 7 a.m. to 3 p.m., 3 to 11 p.m.,
or 11 p.m. to 7 a.m. and on weekends, 7 a.m. to 7
p.m. or 7 p.m. to 7 a.m. The aides, orderlies, and
med techs are scheduled in 8-hour shifts, three
shifts each day, 7 days each week. One general su-
pervisor is assigned to the 7 a.m. to 3 p.m. week-
day shift, when the director and assistant director
of nursing are also present at the facility. At all
other times, two general supervisors are present at
the facility.
Generally a charge nurse or head nurse is as-
signed to each resident care unit ; however, on most
shifts one or two of the nurses will be responsible
for two care units . One to three aides are assigned
to each care unit depending on the patient needs in
that unit . The med techs and orderlies are general-
ly assigned to cover more than one care unit.
H.
The Petitioner seeks to represent a unit of all
full-time and regular part -time licensed practical
nurses working as charge nurses .2 The Employer
contends that all the nurses in the above classifica-
tion are statutory supervisors. The Regional Direc-
tor found the nurses not to be supervisors , reason-
ing that although the evidence indicated that the
charge nurses direct the work of other employees
with regard to patient care, the evidence failed to
establish that they effectively evaluate employees
or that they discipline employees.
On review, the Employer asserts that the charge
nurses are supervisors because they perform super-
visory duties by evaluating and disciplining em-
ployees in the service and maintenance unit, by re-
sponsibly directing the work of those employees,
r McGonigal testified that charge nurses and head nurses have identical
job duties and responsibilities , except that RNs, acting as head nurses,
may initiate intravenous therapy, although LPNs may not.
2 In a companion case, Ohio Masonic Home, Case 9-RC-15319, the Pe-
titioner seeks to represent a unit of all full-time and regular part-time reg-
istered nurses working as head nurses.
295 NLRB No. 44
OHIO MASONIC HOME 391
and by adjusting their grievances. Our review of
the facts, as set forth below, convinces us that the
charge nurses do not possess the authority alleged
by the Employer. Thus, we affirm the Regional Di-
rector's decision and remand the case to the Re-
gional Director for further processing in accord-
ance with this decision.
III.
The charge nurses (or nurses) spend the majority
of their time performing direct patient care duties
in their care units. They dispense medications, per-
form various treatments, distribute meals, and
check on sick patients. At the start of each shift,
each charge nurse receives an oral report from the
charge nurse on the prior shift noting any changes
in a resident's condition. The charge nurse then
passes this information along to the aides assigned
to her unit and assigns each aide to care for a par-
ticular group of residents in the care unit. The resi-
dents in the unit are normally divided equally
among the aides, who alternate between the vari-
ous sections of the unit . Most nurses assign an
equal number of residents to each aide, and rotate
aides among resident groups, although in some
cases nurses will make adjustments for a particular-
ly difficult resident or for a personality clash be-
tween a resident and an aide.
The aides and orderlies are responsible for pro-
viding basic personal care. They bathe, dress, feed,
and turn residents; change their bedding; and oth-
erwise minister to their needs. They perform these
duties independently and with minimal direction
from the charge nurses. The charge nurses are re-
sponsible for scheduling lunches and breaks and ac-
commodate the requests of aides where possible
without hindering patient care. If an aide wishes to
leave the care unit for any reason during the shift,
he or she is required to notify the nurse so that
proper patient care can be maintained. Charge
nurses sometimes resolve minor employee com-
plaints regarding workload, lunch and break sched-
ules, or personality conflicts.
Other than the scheduling of breaks, charge
nurses perform no staffing functions. The charge
nurses have no authority to hire new employees.
They do not have the authority to call in a substi-
tute employee if an aide is absent; they do not have
the authority to request that an aide work overtime
or to allow an aide to leave early; nor do they
have the authority to transfer employees from one
care unit to another. All these staffing functions,
with the exception of hiring, are performed by the
general supervisors on duty each shift. Janet Ray,
the inservice coordinator, is responsible for the
hiring of new employees.
Charge nurses evaluate the aides who are regu-
larly assigned to their particular care units. 3 For
probationary employees, the charge nurse fills out
a form that calls for satisfactory or unsatisfactory
markings in seven categories. For nonprobationary
employees the charge nurse fills out a form that
contains 10 categories with 5 possible ratings in
each category. With regard to all employees, the
general supervisor fills out that portion of the eval-
uation form that pertains to attendance. In complet-
ing these evaluation forms, charge nurses make no
recommendations with respect to retention, dis-
charge, or probation.
There is no evidence in the record that estab-
lishes that employees have been affected as a result
of these evaluations. Director of Nursing Szy-
manski testified that a probationary employee may
be terminated as a result of an unsatisfactory eval-
uation , but in the one instance that Szymanski
could recall in which a probationary employee was
terminated as a result of an unsatisfactory evalua-
tion, the evaluation was performed by a general su-
pervisor, not a charge nurse. On the other hand, in
one instance where a charge nurse and a head
nurse rated an employee unsatisfactory, that em-
ployee was retained, despite the unsatisfactory
rating.
Szymanski testified that the evaluations are con-
sidered when employees are promoted from part-
time to full-time status, but he could not recall any
instance when an employee was rejected for such a
promotion. Szymanski further testified that when
an opening is posted, he determines whether an
employee is capable and adaptable, and has the req-
uisite skill and ability to perform the posted job.
Although the current service and maintenance
unit collective-bargaining agreement permits merit
raises for certain employees, which the Employer
asserts will be based on evaluations by charge
nurses, no employee has ever received a raise based
on an evaluation by a charge nurse. Szymanski tes-
tified that although the contract provides for merit
raises, as of the time of the hearing, the Employer
had never given a merit raise.
It is undisputed that charge nurses participate in
the Employer's disciplinary system by writing and
signing "verbal warning" or "counselling" forms,
which are then placed in employees' personnel
files. These warnings consist of a factual account of
an alleged incident of misconduct, but do not con-
tain any recommendation for disciplinary action.
Before writing up warnings , charge nurses general-
ly contact a general supervisor on duty about the
8 Aides who work on different units-"floaters"-are evaluated by the
general supervisors.
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
problem and then obtain that supervisor 's signature
on the warning. Conflicting evidence was present-
ed as to whether charge nurses are required to
obtain the approval of a general supervisor before
issuing such warnings or whether they check with
the general supervisors solely to keep the general
supervisors informed of what is happening in their
care units.4
McGonigal testified that these warnings consti-
tute the first step in the Employer's progressive
disciplinary system. In describing the disciplinary
system, she testified that she believed employees
could be written up about three times and that if
the offense continued, the employee would prob-
ably be terminated.5 No evidence was presented at
the hearing, however, indicating that the Employer
automatically follows the disciplinary system.
Rather, the director of nursing apparently reviews
each individual case and determines whether to im-
plement discipline beyond warnings given by the
charge nurses . Thus Szymanski , when describing
an incident in which a "final reprimand" was given
to an employee, testified that he reviewed the case
and determined that a "final reprimand" was ap-
propriate.6
On several occasions, charge nurses have been
involved with the "clocking out," i.e., temporary
suspension , of an employee . For example, an em-
ployee , who received two warnings on the same
day from two different nurses-one charge nurse
and one head nurse-was told by those nurses to
clock out and call Szymanski before returning to
work. The general supervisor who signed both
warnings testified that the nurses asked her advice
on the appropriate discipline before deciding to
clock out the employee. When the employee met
with Szymanski, he decided to discharge her. Nei-
ther of the nurses made any recommendation with
respect to discharge nor did Szymanski discuss the
incidents with them before deciding on discharge
as the appropriate penalty.
The Employer introduced into evidence an inci-
dent report written by a charge nurse that stated
that after warning an employee about using the
floor telephone and about leaving the floor without
4 In light of our finding , infra, that the issuance of these warnings by
charge nurses does not establish supervisory authority under the circum-
stances of this case, this evidentiary conflict need not be resolved.
s The Employer offered into evidence a copy of its administrative
policy on disciplinary guidelines and procedures that provides that for a
first offense, an employee will receive a verbal reprimand ; for a second
offense , a written reprimand , for a third offense, a "second written repri-
mand" containing a warning for discharge ; and for a fourth offense, dis-
charge . The policy statement further provides that "[d]isciplinary action
will be administered on the merits of each case " and that depending on
the violation, the disciplinary procedure may begin at any one of the
stages listed above.
6It is interesting to note that the Employer 's disciplinary procedures
do not include a final reprimand.
permission , the charge nurse asked the employee to
clock out. The report contained a factual account
of what happened but did not make any recom-
mendation with respect to disciplinary action. Szy-
manski testified that he called the employee to his
office and reviewed the incidents with her before
giving her a reprimand , but he could not recall if
he talked to the charge nurse . Although Szymanski
testified about this incident, neither the charge
nurse nor the general supervisor involved testified.
Thus there is no record evidence indicating wheth-
er the charge nurse consulted with the general su-
pervisor prior to asking the employee to clock out,
or whether the charge nurse independently decided
to clock out the employee.
The Employer offered further documentary evi-
dence showing that a charge nurse clocked out an
employee because the employee refused to obey di-
rections to check a resident hourly, thereby caus-
ing potential danger to the patient. Although the
charge nurse who clocked out the employee did
not testify, the general supervisor who was on duty
when the incident occurred testified that the
charge nurse independently decided to clock out
the employee.
The record contains evidence of several inci-
dents in which a general supervisor maintained
complete control over disciplinary matters. For ex-
ample, one nurse told the general supervisor that
she wanted to discipline an employee for insubordi-
nation, but was instructed not to discipline the em-
ployee . Similarly , when another charge nurse re-
ported to the general supervisor that an employee
appeared intoxicated and might be endangering the
residents , the general supervisor refused to allow
her to send the employee home. The general super-
visor then independently gave the employee a rep-
rimand. In another instance a nurse observed an
employee carrying a knife in her pocket and re-
ported this to the general supervisor. The nurse
was instructed to write an account of what she saw
and the general supervisor then sent the employee
home . Although the nurse told the general supervi-
sor she did not want the employee to be dis-
charged , the employee was, in fact , fired the next
day without any further discussion with the nurse.
The testimony is conflicting whether the charge
nurses served as "immediate supervisors" at the
first step of the grievance procedure under the
most recently expired service and maintenance col-
lective-bargaining agreement . There is no dispute,
however, that because the grievance procedure
was changed pursuant to the current contract cov-
ering that unit's employees, the "immediate super-
visor" involved in the first-step written grievance is
the general supervisor. Thus, during the first year
OHIO MASONIC HOME 393
of the current contract, charge nurses did not par-
ticipate at all in grievance processing . A few days
prior to the hearing in this matter, however, the
Employer issued a memorandum announcing that
charge nurses would again participate in first-step
grievances along with the general supervisors. The
record does not reflect any instances in which
charge nurses have adjusted grievances under this
new policy, so it cannot be determined what inde-
pendent authority, if any, they would exercise.
IV.
A party seeking to exclude an individual from
voting for a collective-bargaining representative
has the burden of establishing that that individual
is, in fact, ineligible to vote. Golden Fan Inn, 281
NLRB 226, 229-230 fn. 12 (1986). Thus, in repre-
sentational proceedings such as this, the burden of
proving that an individual is a supervisor rests on
the party alleging that supervisory status exists.
Tuscon Gas & Electric Co., 241 NLRB 181 (1979).'
We find that here, the Employer has not met its
burden of establishing that the charge nurses pos-
sess supervisory authority.
7 We recognize that this case arises in the Sixth Circuit and that the
court of appeals for the circuit has expressed the view that "[tlhe Board
always has the burden of coming forward with evidence showing that
the employees are not supervisors in bargaining unit determinations."
NLRB v. Beacon Light Nursing Home, 825 F . 2d 1076 , 1080 (6th Cir.
1987) We respectfully disagree Whatever might be the case in unfair
labor practice proceedings in which the General Counsel , acting as the
prosecutor, seeks to establish the elements of a statutory violation, it is
clearly inappropriate to place such a "burden " on the Agency in nonad-
versarial proceedings in which neither the Board nor the General Coun-
sel has an advocacy role and in which the issue is whether an individual
should be excluded from the broad class of those to whom collective-bar-
gaining rights are granted by the Act . Of course, Congress has, for policy-
reasons , created a "supervisor" exclusion from the benefited class. But
the legislative history of that very exclusion indicates that Congress
chose to err on the side of narrowness rather than breadth in the exclu-
sion. S . Rep No . 105, 80th Cong . 1st Sess . 19 (1947) ("In framing this
definition, the committee exercised great care, desiring that the employ-
ees herein excluded from the coverage of the Act be truly supervisory.")
There are, of course, always policy reasons for any exclusion from hu-
manitarian and remedial legislation , but the general rule is that such ex-
clusions are to be construed narrowly Phillips Ca v. Walling, 324 U.S.
490, 493 ( 1945); NLRB v. Security Guard Service , 384 F.2d 143, 147 (5th
Cir. 1967).
To be sure, as the court recognized in a case cited in Beacon Light, it is
consistent with the policies underlying the exclusion to hold that an em-
ployer is not estopped by his prior recognition of individuals as "employ-
ees" from subsequently proving that they are in fact supervisors. Team-
sters Local 372 v NLRB, 735 F 2d 969 (6th Cir . 1984), cert . denied 470
U S. 1051 ( 1985) But , as noted above , it is consistent with the policies of
the Act , the canons of statutory construction, and the character of the
proceedings in which unit issues are typically determined to hold that, as
between a party urging exclusion of an individual from a bargaining unit
on the grounds of supervisory status and a party urging the inclusion of
that individual , the burden rests on the party-whether union or employ-
er-that urges exclusion . Of course this does not mean, when the Board's
determination ultimately comes before a reviewing court , that it can be
sustained despite the lack of any evidentiary basis . It does mean, howev-
er, that where evidence of supervisory authority is inconclusive, it is
proper to find that the party urging the supervisory exclusion has not
carried its burden
It is undisputed that the charge nurses have no
authority to"hire, transfer, lay off, or recall employ-
ees. Neither do they effectively recommend such
action. The Employer asserts, however, that the
charge nurses are supervisors based on their re-
sponsibilities in evaluating and disciplining employ-
ees, directing employees ' work, and adjusting em-
ployee grievances.
A. Evaluation of Employees
Although the record shows that the charge
nurses evaluate both probationary and nonproba-
tionary employees by assessing their performance
in various job-related categories, it does not estab-
lish that the charge nurses' evaluations of employee
performance affect those employees ' job status. In
evaluating employees , the charge nurses do not
give any type of recommendations regarding pro-
motions, wage increases , discipline, or retention.
Furthermore , no evidence was presented showing
that an employee's job status has been affected by a
charge nurse 's evaluation . Thus, the use of these
evaluations is distinguishable from the evaluation
system used in Wedgewood Health Care, 267 NLRB
525, 526 ( 1983), in which nurses possessed statutory
supervisory authority in part because a poor eval-
uation resulted in personnel action, or from the
evaluation system used in Pine Manor Nursing
Center, 270 NLRB 1008, 1009 (1984), where bad
evaluations could effectively mandate discharge at
the close of a probationary period and good ones
were used to reward employees in connection with
a bonus system.
The authority simply to evaluate employees
without more is insufficient to establish supervisory
status. Passavant Health Center, 284 NLRB 887
(1987). As we find that the charge nurses' evalua-
tions of employee performance have no effect on
those employees' job status, we find that the
charge nurses' preparation of employee evaluations
does not support a finding of supervisory authority.
B. Discipline of Employees
The record shows that nurses do play a role in
the Employer's disciplinary system by issuing oral
reprimands and written warnings . These warnings
consist of factual accounts of alleged incidents of
misconduct, but in no way do they include any
recommendation for disciplinary action . Although
these documents are placed in an employee's per-
sonnel file, the record does not establish that these
warnings automatically lead to any further disci-
pline or adverse action against an employee.
Rather, the director of nursing independently de-
cides when further disciplinary action should be
taken . Thus, there is no defined progressive disci-
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plinary scheme because the written warnings do
not, without more, affect job tenure or status. See
Passavant Health Center, supra , distinguishing Con-
course Village, Inc., 276 NLRB 12 (1985), where
statutory authority was found because the employ-
er's express policy provided that receipt of three
written warnings, issued independently by the dis-
puted employees , would result in termination.
Here, by contrast, the Employer's express policy
provides "[t]hat disciplinary action will be adminis-
tered on the merits of each case," and the record
testimony indicates that the director of nursing,
after reviewing the charge nurses' anecdotal re-
ports, independently determines when fuller disci-
pline is necessary.
The mere authority to issue verbal reprimands of
the kind involved here is too minor a disciplinary
function to constitute statutory authority. Passavant
Health Center, supra at 889 , citing Beverly Manor
Convalescent Centers, 275 NLRB 943, 945 (1985).
Likewise , the mere factual reporting of oral repri-
mands and the issuing of written warnings that do
not automatically affect job status or tenure do not
constitute supervisory authority. Passavant Health
Center, supra; Heritage Manor Center, 269 NLRB
408, 413 ( 1984). As the Board stated in Passavant
Health Center, supra at 889:
where oral and written warnings simply bring
to an employer 's attention substandard per-
formance by employees without recommenda-
tions for future discipline , and an admitted
statutory supervisor, such as the director of
nursing here, makes an independent evaluation
of the employees' job performance, the role of
those delivering the warnings is nothing more
than a reporting function. Mt. Airy Psychiatric
Center, 253 NLRB 1003, 1008 (1981); Geriat-
rics, Inc., 239 NLRB 287, 288 (1978); Pine
Manor Nursing Home, 238 NLRB 1654, 1655
(1978); Madeira Nursing Center, 203 NLRB
323, 324 (1973); see Western Union Telegraph
Co., 242 NLRB 825, 826 (1979).
With regard to the nurses' authority to clock out
employees , on one occasion a charge nurse inde-
pendently decided to clock out an employee be-
cause that employee refused to obey directions to
check a resident hourly, thereby causing potential
danger to the patient . In other instances where
charge nurses allegedly clocked out employees, the
record is unclear as to whether the charge nurses
independently made those decisions or whether the
clock out was at the direction, or on the advice, of
a general supervisor . Given the conflicting evi-
dence and the burden borne by the Employer as
the party urging exclusion , we find that the single
incident in which a charge nurse apparently
clocked out an employee independently is insuffi-
cient to establish that any independent professional
judgment exercised incidental to the treatment of
the patient also aligned the charge nurse with the
interest of the Employer in enforcing personnel
policy.
C. Grievance Adjustment
The record fails to establish that charge nurses
have the authority to adjust grievances. Under the
current collective-bargaining agreement relating to
the service and maintenance employees , the general
supervisor is the "immediate supervisor" who proc-
esses first-step written grievances on the Employ-
er's behalf concerning those employees . During the
first 12 months of the current contract, charge
nurses did not participate at all in grievance proc-
essing . Although the Employer announced a few
days prior to the hearing in this matter that charge
nurses would participate in first -step grievances
along with the general supervisors , the record does
not indicate that charge nurses have adjusted griev-
ances under this new policy. Neither title nor
"newly redefined authority" that is not shown to
be other than illusory is sufficient to make a charge
nurse a supervisor. Pine Manor Nursing Home, 238
NLRB 1654, 1655 (1978). Further, we find the fact
that the charge nurses sometimes rely on their per-
sonal relationship with employees to resolve minor
complaints regarding workload, the scheduling of
lunches and breaks, or personality conflicts is insuf-
ficient to establish supervisory status . Beverly
Manor, supra. Further we find that the fact that
charge nurses sometimes resolve minor employee
complaints regarding workload , the scheduling of
lunches and breaks, or personality conflicts is insuf-
ficient to establish supervisory status.
D. Direction of Work
The Employer contends that the charge nurses
possess supervisory authority based on the fact that
they direct the work of unit employees. More spe-
cifically, the Employer asserts that the charge
nurses use their independent judgment to match
employees' abilities with the needs of various resi-
dents to ensure that all nursing care is completed
satisfactorily. This judgment, the Employer asserts,
goes beyond merely exercising professional or
technical judgment on behalf of patient care.
In Beverly Manor Convalescent Centers v. NLRB,
661 F.2d 1095 (6th Cir. 1981), the court, in consid-
ering the supervisory status of various LPNs at an
employer's health care facility, concluded that the
fact that the LPNs used independent professional
judgment in directing the work of aides and order-
OHIO MASONIC HOME 395
lies did not alone make those nurses supervisors. 11
Rather, the court remanded the case to the Board
to consider whether the LPNs' direction of the
aides' work was done pursuant to the LPNs' exer-
cise of independent professional judgment or
whether the direction of work was done in the in-
terest of the employer, i.e., whether it aligned the
charge nurses with the employer as part of man-
agement. Id. at 1103. On remand, the Board adopt-
ed the Regional Director's conclusion that the
LPNs were not supervisors because their exercise
of independent judgment did not align them with
the employer' s interests . Beverly Manor Convales-
cent Centers, 275 NLRB 943 (1985). Recognizing
that there is always a coincidence of interests be-
tween catering to patient needs and providing nec-
essary care on the one hand and the employer's
broader interests on the other , the Regional Direc-
tor had concluded that the LPNs were not supervi-
sors because their direction of the aides' work was
done in connection with patient care and did not
go beyond into "personnel authority which more
directly promote the interests of the employer and
which is not motivated by patient care needs." Bev-
erly Manor, supra, 944-947.
We find that the charge nurses' direction of em-
ployees' work here is similar to that in Beverly
Manor, supra. The charge nurses' direction of em-
ployees' work is given routinely in connection with
the treatment of patients to ensure that quality care
is provided to all residents in their care units. As-
signments to aides are routine in nature because
residents are divided equally among aides and aides
are rotated to distribute difficult residents. There is
no evidence to suggest that the charge nurses' di-
rection of employees' work goes beyond into "per-
sonnel authority which more directly promotes the
interests of the Employer and is not motivated by
patient care needs." Id. In fact , the nurses lack au-
thority in the areas traditionally associated with
personnel matters including approving vacation or
sick leave , initialing timecards , assigning overtime,
or transferring employees between care units.
Therefore, we find that the charge nurses' direction
of employees' work does not align the charge
nurses with the Employer as any professional or
technical judgment exercised is quite routinely in
8 Specifically , the court stated*
As the Regional Director correctly noted , it is the intent of Con-
gress in the health care field that the Board "distinguish true supervi-
sory authority from the 'professional ' judgment and discretion in-
volved in patient care .. ." The distinction must be made, not be-
cause professional care is a matter of routine involving no independ-
ent judgment , but because the independent judgment which is neces-
sanly involved in patient care , even if otherwise supervisory in char-
acter, is not always strictly independent professional judgment in di-
recting employees , therefore , should not alone align the professional
with his employer as a supervisor . 661 F.2d at 1101.
furtherance of patient care rather than supervisory
judgment on behalf of the Employer.
V.
To the extent that the Employer relies on the
Sixth Circuit 's decision in NLRB v. Beacon Light
Nursing Home, 825 F .2d 1076 ( 1987), we find that
case distinguishable . There the court found that
LPNs were supervisors and thus excluded them
from the unit . In finding the LPNs to be supervi-
sors, however , the court found that the LPNs'
evaluations of employees were considered in man-
agement promotion and demotion decisions. As
such , therefore the evaluations "were serious at-
tempts to determine the employees ' progress, and
constitute `recommending action ' within the mean-
ing of the [Act]." Beacon Light, supra, 825 F.2d at
1079 . Further, there the LPNs were responsible for
reporting personnel rule infractions and these re-
ports, called "Counseling Forms," normally result-
ed in formal disciplinary action after three or four
reports were lodged for the same violation of the
rules . That is not the case here . As set forth above,
the Employer has not shown that the charge
nurses' evaluations of employees affect promotion
or demotion decisions . Nor has the Employer
shown that there is a progressive disciplinary
system in place whereby written warnings issued
by charge nurses automatically lead to formal disci-
plinary action . Thus key factors on which the
court relied in finding supervisory status in Beacon
Light, supra, are not present here.9
VI.
In sum , we find that the charge nurses are not
statutory supervisors because they do not possess
the authority to effectively evaluate or discipline
employees or to adjust grievances , and they do not
possess any other indicia of statutory supervisory
authority.
ORDER
The Regional Director's decision is affirmed, and
the case is remanded to the Regional Director for
further appropriate action.
9In finding the LPNs to be supervisors , the Sixth Circuit also noted
that if the LPNs were not supervisors, then frequently there would be no
onsite supervision for nursing personnel ; that the state law requiring a li-
censed nurse on duty at all times made it unreasonable to assume that the
nurses aides had the information and technical knowledge to supervise
their own performance ; and that a good supervisor to employee ratio
could be provided only if the LPNs were considered supervisors. We
note that these factors are inapplicable here Here , state law requires that
a registered nurse be on duty at all times , a requirement that the Employ-
er meets by having general supervisor RNs on duty at all times . Further-
more , here a finding that the charge nurses do not possess supervisory
authority would not result in the aides and orderlies being unsupervised
because there are at least two stipulated supervisors on the premises at all
times.