Washington Nursing Home

National Labor Relations Board - Board Decisions

May 30, 1996

321 N.L.R.B. 366 (N.L.R.B. 1996)

366
321 NLRB No. 48
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Contrary to the Respondent’s brief on exceptions, the record
shows that the General Counsel filed a supplemental brief to the
judge following the Board’s remand. Accordingly, we grant the Gen-
eral Counsel’s motion to clarify the record to reflect the submission
of this brief.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
4 After reviewing this proceeding in light of NLRB v. Health Care
& Retirement Corp. of America, supra, and our recent decision in
Ten Broeck Commons, 320 NLRB 806 (1996), we are satisifed that
the judge properly found that alleged discriminatees Kristal Sue
Mays and Ramona G. Walter were statutory employees while work-
ing as charge nurses at the Respondent’s nursing home. Contrary to
our dissenting colleague, we agree with the judge that the charge
nurses’ roles in assigning and directing the work of the Respondent’s
certified nurses aides (CNAs) does not constitute supervisory author-
ity. The evidence establishes that, as in Ten Broeck Commons, supra,
the CNAs’ duties are repetitive and require little skill. Thus, we con-
clude that the assignment and direction the charge nurses give these
employees does not involve the exercise of independent judgment.
Their authority to decide when aides can take their breaks, to permit
aides to leave early, to authorize overtime pay, to send home aides
who are impaired by substance abuse, and to request that employees
work additional shifts also is routine in nature. Additionally, we
stress, as did the judge, that there is no showing that the verbal and
written disciplinary warnings the charge nurses issue independently
result in adverse action to the CNA without further review by higher
authority. We further conclude that Mays and Walter were not super-
visors even assuming, as the Sixth Circuit held in NLRB v. Health
Care & Retirement Corp. of America, 987 F.2d 1256 (1993), that
the General Counsel had the burden of showing that Mays and Wal-
ter were statutory employees to prove that the Respondent violated
Sec. 8(a)(3) of the Act by discharging them. See also fn. 2 of the
judge’s supplemental decision where he similarly concluded that
these employees did not possess any indicia of supervisory authority
regardless of the allocation of the burden of proof. Accordingly, we
deny the Respondent’s motion to dismiss the consolidated complaint,
which the Board had held in abeyance while remanding the proceed-
ing to the judge.
5 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
Washington Nursing Home, Inc. and Kristal Sue
Mays and Ramona G. Walter. Cases 9–CA–
30476 and 9–CA–30477
May 30, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On December 8, 1993, Administrative Law Judge
Michael O. Miller issued the attached decision. The
Respondent filed exceptions and a supporting brief.
Thereafter, the Respondent filed a motion to dismiss
the consolidated complaint in this proceeding on the
ground that the Supreme Court’s decision in NLRB v.
Health Care & Retirement Corp. of America, 114 S.Ct.
1778 (1994), warrants a finding that the alleged
discriminatees are statutory supervisors. On August 5,
1994, the Board issued an Order remanding this pro-
ceeding to the judge for further consideration in light
of NLRB v. Health Care & Retirement Corp. of Amer-
ica, supra. On November 16, 1994, Judge Miller
issued the attached supplemental decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a Request for Clarification
and Motion in Opposition to Respondent’s Request for
Oral Argument.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the sup-
plemental decision and the record2 in light of the ex-
ceptions and briefs and has decided to affirm the
judge’s rulings, findings,3 and conclusions4 and to
adopt the original recommended Order as modified and
set forth in full below.5
ORDER
The National Labor Relations Board adopts the
original recommended Order of the administrative law
judge as modified and set forth in full below and or-
ders that the Respondent, Washington Nursing Home,
Inc., Cincinnati, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting District 1199, the Health
Care and Social Service Employees Union, or any
other union.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Ramona G. Walter and Kristal Sue Mays full reinstate-
ment to their former jobs or, if those jobs no longer
exists, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Ramona G. Walter and Kristal Sue Mays
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them in
the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the
discharges will not be used against them in any way.
367WASHINGTON NURSING HOME
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 The fact that the decision maker reviews the recommendation is
not inconsistent with an effective recommendation.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its facility in Cincinnati, Ohio, copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the no-
tice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since March 11, 1993.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
MEMBER COHEN, dissenting.
Contrary to my colleagues, and consistent with my
dissenting opinions in Providence Hospital, 320 NLRB
717 (1996), and Ten Broeck Commons, 320 NLRB 806
(1996), I conclude that Charge Nurses Kristal Sue
Mays and Ramona G. Walter are statutory supervisors.
Accordingly, I find that their discharges were not in
violation of the Act.
Section 2(11) of the Act makes clear that persons
are supervisors if they exercise, or have the authority
to exercise, at least one of the powers listed in that
section, provided that they use independent judgment
in doing so. Applying this test, I find that Mays and
Walter are supervisors.
Initially, I find that Mays and Walter use independ-
ent judgment in assigning and directing the work of
the Employer’s certified nursing assistants (CNAs). In
this regard, I note that the charge nurses tell the CNAs
what chores they are to perform, and these instructions
are based on the charge nurses’ independent assess-
ment of what needs to be done. Further, the charge
nurses independently decide when aides can take their
breaks. Charge nurses also independently decide to re-
assign aides to work on other floors or with different
patients.
In addition, charge nurses can permit aides to leave
early, can authorize overtime pay, and can request
aides to come in and work a shift when there are in-
sufficient aides on that shift.
The evidence further establishes that Mays and Wal-
ter have disciplinary authority sufficient to confer su-
pervisory status. Charge nurses issue written counsel-
ing forms to aides for poor performance or mis-
conduct, and those writeups have resulted in formal
discipline of the CNA. Thus, I find that the charge
nurses effectively recommend discipline.1 Finally, the
charge nurses have the authority to send aides home,
without pay, if the aides are impaired by substance
abuse.
Based on all of the above, or alternatively on any
one the above, I find that Mays and Walter are super-
visors under Section 2(11) of the Act. Accordingly, I
would overrule the judge’s finding that the Respondent
violated Section 8(a)(3) and (1) when it discharged
them.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting District 1199, the
Health Care and Social Service Employees Union or
any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Ramona G. Walter and Kristal
Sue Mays full reinstatement to their former jobs or, if
those jobs no longer exists, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Ramona G. Walter and Kristal Sue
Mays whole for any loss of earnings and other benefits
resulting from their discharges, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharges of Ramona G. Walter and
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kristal Sue Mays, and WE WILL, within 3 days there-
after, notify each of them in writing that this has been
done and that the discharges will not be used against
them in any way.
WASHINGTON NURSING HOME, INC.
Eric N. Taylor, Esq., for the General Counsel.
Ann L. Munson, Esq. and Michael W. Hawkins, Esq.
(Dinsmore & Shohl), for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Cincinnati, Ohio, on September 2, 21, and
22, 1993, on charges filed by Kristal Sue Mays and Ramona
G. Walter, individuals (the Charging Parties or Mays and
Walter), and a consolidated complaint issued by the Regional
Director for Region 9 of the National Labor Relations Board
(the Board), on April 26, 1993. The consolidated complaint
alleges that Washington Nursing Home, Inc. (Respondent or
WNH) violated Section 8(a)(3) and (1) of the National Labor
Relations Act by discharging Mays and Walter because of
their union activity. Respondent’s timely filed answer asserts
that Mays and Walter were statutory supervisors excluded
from the Act’s protections and denies that they were dis-
charged because of their union activity.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNION’S LABOR
ORGANIZATION STATUS PRELIMINARY CONCLUSIONS
OF LAW
The Respondent, a corporation, operates a skilled care
nursing home at its facility in Cincinnati, Ohio. It annually
derives gross revenues in excess of $100,000 and purchases
goods and materials valued in excess of $5000 directly from
points located outside the State of Ohio. The complaint al-
leges, the Respondent admits, and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find and
conclude that District 1199, the Health Care and Social Serv-
ice Employees Union (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
WNH operates a skilled nursing care facility, serving up
to 60 patients. The facility has four floors including the base-
ment: the first and second floors contain the patient rooms
with the most critical patients housed on the first floor and
the more ambulatory patients residing on the second. The
third floor is occupied by its offices and record storage areas.
Respondent employs licensed practical nurses (LPNs) and
some registered nurses (RNs) as treatment and charge nurses.
It also employs certified nurses aides (CNAs), kitchen/dietary
employees, porters, and other housekeeping workers, employ-
ees involved in patient activities and social services and
those who perform clerical tasks. The record contains no di-
rect evidence of the employee complement. Respondent as-
serted that it has approximately 60 employees.
Over the employees described above are Jacob Lustig, Re-
spondent’s owner; Brenda Fette, administrator; Norma
Shelton, director of nursing administration and assistant ad-
ministrator; Sandra Dillhoff, director of nursing (DON); and
Lynn Troxell, nurse systems manager. These are admitted su-
pervisors. Additionally, there is Pamela Eiler, staffing coordi-
nator, whose supervisory status is in dispute, and Ruby B.
Jenkins, a senior employee with some supervisory attributes,
whose title is tech supervisor.
The employees of WNH are not represented by any labor
organization.
B. The Issues
The principal issues are:
1. Whether the charge nurses are supervisors or employees
under the Act?
2. Whether Respondent discharged Ramona G. Walter and
Kristal Sue Mays because of their union activities?
Subsidiary to the latter issue is whether Pamela Eiler is a
statutory supervisor.
C. The Status of the Charge Nurses
1. In general
Section 2(11) of the Act defines a ‘‘supervisor’’ as:
[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
As the Board noted in Phelps Community Medical Center,
295 NLRB 486, 489, (1989):
The types of supervisory authority are listed in the dis-
junctive and authority with regard to any one is suffi-
cient 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 independent judgment in
the employer’s interest. NLRB v. City Yellow Cab Co.,
344 F.2d 575 (6th Cir. 1965).
Nursing home patients, of course, require care around the
clock and WNH operates on a three-shift basis: the charge
nurses work 7 a.m. to 3:30 p.m. (the first shift); 3 to 11:30
p.m. (the second shift); and 11 p.m. to 7:30 a.m. (the third
shift). On each floor for each shift there is a charge nurse,
generally a licensed practical nurse (LPN) but sometimes a
registered nurse (RN), and between two and six certified
369WASHINGTON NURSING HOME
1 Certiorari was granted as to the questions of whether ‘‘a nurse’s
direction of less-skilled employees in the exercise of professional
judgment and as an incident of patient care’’ establishes that nurse
as a statutory supervisor and ‘‘[w]hether the Board permissibly re-
quires the party who alleges that an employee is excluded from the
Act’s protections as a supervisor to bear the burden of proving the
individual’s supervisory status.’’ While cognizant of the fact that this
case arose within the confines of the Sixth Circuit, and that the Sixth
Circuit Court of Appeals has repeatedly rejected the Board’s position
on both of these issues, most recently in the Health Care Corp. case
cited above and now destined for resolution by the Supreme Court,
I am duty bound to ‘‘apply established Board precedent which the
Supreme Court has not reversed.’’ Waco, Inc., 273 NLRB 746, 749
(1984); and Iowa Beef Packers, 144 NLRB 615, 616 (1963).
2 Although the court had stated, in that decision, that if ‘‘it is con-
cluded that the independent professional judgment of a supervisory
character is exercised primarily in connection with patient care, and
not in the interest of the employer, then LPNs . . . would be prop-
erly included within the bargaining unit,’’ that court has also con-
cluded that what is in the interest of the patient and what is in the
interest of the employer are ‘‘not always mutually exclusive.’’ See
Beverly California Corp. v. NLRB, 970 F.2d 1548, 1553 (6th Cir.
1992), and Beverly Enterprises v. NLRB, 661 F.2d 1095, 1103 (6th
Cir. 1981).
3 In the context of this case and what appears to be current prac-
tice in the nursing home field, there is little to distinguish between
registered nurses and licensed practical nurses insofar as the issue of
the supervisory status of charge nurses is concerned. The RNs, of
course, have a substantially higher level of training and education,
and are able to render medical services and judgments which are
prohibited to LPNs. Where the two work together, the RN will
sometimes direct the patient care of the LPNs. However, in this
nursing home and others similarly situated, both RNs and LPNs
function as charge nurses with similar responsibilities vis-a-vis the
aides.
nurses aides (CNA). There may also be one or more treat-
ment nurses on duty.
The charge and treatment nurses provide skilled care to the
patients, passing medications, giving injections, drawing
blood, maintaining the tubes of patients with tracheotomies,
and applying or changing dressings on wounds and sores.
They perform their duties throughout the entire floor but
have a desk at the nurses station where they maintain records
of patient treatments and conditions and communicate with
the patients’ physicians about changes in the condition of or
treatments for those patients. They make initial decisions re-
garding the need to remove a patient to a hospital setting and
brief the incoming charge nurses at the start of each shift as
to any changes in the condition of the patients. The charge
nurses have keys to the narcotics lockers.
The CNAs, who have a lesser level of training than the
LPNs, are involved with the patients on a more basic level.
They maintain their physical cleanliness, bathing, changing,
dressing, and shaving them. They feed their patients and po-
sition them in their beds, turning them as required to as to
avoid sores or to facilitate breathing, following a schedule
that is posted for their guidance. To a greater or lesser ex-
tent, they are directed or overseen in these duties by the
charge nurses.
The charge nurses, treatment nurses, whether RNs or
LPNs and CNAs are all hourly paid. The LPNs are more
highly paid than the CNAs. All wear basically white or pas-
tel clothing; and the female CNAs wear blue smocks over
their clothes; and the LPNs do not.
In the instant case, there is no evidence that the charge
nurses hire, lay off, recall, or promote other employees. At
issue is whether they possess any of the other attributes of
supervisory status. A determination that one is a supervisor
under the Act removes that individual from under the ambit
of the Act’s protections; for that reason, the Board places the
burden of proof of supervisory status on the party alleging
that such status exists. Health Care Corp., 306 NLRB 63
(1992), enf. denied 987 F.2d 1256 (6th Cir. 1993), cert.
granted 114 S.Ct. 56 (1993).1
We turn to a consideration of the facts and case law appli-
cable to such factors as are alleged to be present here.
2. Responsible direction or assignment of the CNAs
In determining whether, in the context of a health care in-
stitution, a more skilled employee’s direction of one who is
less skilled is a supervisor acting ‘‘in the employer’s inter-
est’’ the Board looks to see whether that direction is routine
and whether ‘‘it is primarily in connection with patient care,
and not in the interest of the employer.’’ Phelps Community
Medical Center, supra at 490, quoting from Beverly Manor
Convalescent Center v. NLRB, 727 F.2d 591, 593 (6th Cir.
1984).2
The Board has long applied this latter test to determine the
supervisory status of both registered nurses, who are profes-
sional employees, and licensed practical nurses, who are
technical employees.3 Thus, in Doctor’s Hospital of Modesto,
183 NLRB 950, 951 (1970), registered nurses who directed
less-skilled employees in patient care, ensuring that such care
was given, were held nonsupervisory inasmuch as their
‘‘daily on-the-job duties and authority . . . are solely a prod-
uct of their highly developed professional skills and do not,
without more, constitute an exercise of statutory authority in
the interest of their Employer.’’ To hold otherwise, the Board
and the courts have determined, would negate the Act’s cov-
erage of professional employees who must, in the course of
their work, use independent judgment in giving direction to
lesser-skilled employees. Ohio Masonic Home, 295 NLRB
390, 395 (1989), citing and quoting from Beverly Manor
Convalescent Centers, 661 F.2d 1095, 1101 (6th Cir. 1981).
This test, moreover, is consistent with the legislative intent
expressed in enacting the National Labor Relations Act
Amendments of 1974, Pub. L. 93–360, 88 Stat. 395, which
extended the Board’s jurisdiction to nonprofit health care fa-
cilities. In S. Rep. No. 766, 93d Cong., 2d Sess. 6 (1974),
it was stated:
[T]he Board has carefully avoided applying the defini-
tion of ‘‘supervisor’’ to a health care professional who
gives direction to other employees in the exercise of
professional judgment, which direction is incidental [to]
the professional’s treatment of patients, and thus is not
the exercise of supervisory authority in the interest of
the employer.
See also H.R. Rep. No. 1051, 93d Cong., 2d Sess. 7 (1974),
to the same effect. In both the House and the Senate, the
Committees noted that they expected the Board to continue
following this analytical mode. Ibid.
As Faye McIntosh, an LPN charge nurse, described her
role, ‘‘So much is so routine, it’s kind of hard to remember
exactly.’’ The record reflects similar vagueness, with nearly
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Both Mays and Walter denied that there were any sign-in sheets.
CNA Wynola Mozee testified that they were ‘‘supposed’’ to sign a
chart at the nurse’s station and had to tell the charge nurse when
they were leaving the floor. No examples of such sign-in sheets or
charts were placed in evidence.
5 Walter testified that she had never called an aide to come in to
work and that she had been told by Shelton and Troxell that she had
no authority to do so. It was her testimony that she had to call the
scheduling supervisor, Pam Eiler, to secure a replacement aide and
that she had done so as late as 11 p.m. to report that an agency
nurse had failed to show up. I would conclude that there was no
fixed practice established on this record.
as much testimony as to what people believe the charge
nurses can or cannot do than as to what they do or have
done.
In general, it is clear that the charge nurses are responsible
for patient care and virtually everything they do is directed
to that end. While the aides know their patients and know
what is required of them on a day-to-day basis, if the charge
nurse sees that a patient is in need of care, such as bathing,
changing of sheets or clothing, or repositioning in bed, she
will tell the CNA, whose job it is to perform these functions,
to take care of it. If a patient’s condition changes such that
some additional or different care is required, the charge nurse
will so inform the CNA. If a patient has an infectious condi-
tion, the charge nurse may also direct the aide to wear a
mask or double glove when in contact with that patient. If
a patient has soiled the floor, the charge nurse could call
housekeeping for someone to clean up. A CNA might clean
it up herself or ask a porter to do it.
The charge nurses have some responsibility for seeing that
the floor is covered. Respondent’s policy on the scheduling
of breaks requires that aides and porters must sign out at the
nurses stations when going on their breaks and must advise
their ‘‘supervisor’’ when leaving their work areas. Who that
‘‘supervisor’’ is, the policy does not say. Shelton testified
that the intended reference is to the charge nurse. In practice,
the CNAs tell the charge nurse when they are taking breaks;
it is unclear whether they actually sign in or out from those
breaks.4 The charge nurse may ask an aide to delay taking
a break where the floor would not be properly covered or an
emergency exists. Similarly, Respondent’s policy on ‘‘Leav-
ing Premises While on Duty’’ prohibits employees from
leaving the home while on duty and requires that any excep-
tions be cleared with the ‘‘supervisor and/or administrator.’’
The aides and the charge nurses do leave the premises on
their lunch hours. The aides will tell the charge nurse that
they are leaving and one charge nurse will tell the other if
she were going to be off the premises. If an emergency arose
requiring a CNA to leave, the charge nurse would allow the
aide to do so. When staffing conditions require it, the charge
nurse may direct an aide to work on the other floor or with
different patients.
Sometimes, urgent patient care needs preclude the charge
nurse from completing her paperwork by the end of her shift.
When that happens, according to Mays, she can decide to
stay over, earning overtime, in order to complete it. When
a CNA calls and tells the charge nurse that she will not be
coming in to work a scheduled shift, the credible evidence
indicates that the charge nurse, even a charge nurse hired as
a temporary from a nurses’ agency, can ask another aide to
stay over until a replacement arrives or for an entire shift.
The charge nurse will initial that employee’s timecard to
show that the extra hours were authorized. However, there is
no evidence that a charge nurse can require that an aide re-
main beyond the end of her shift. It also appears that a
charge nurse can call an aide to ask if that aide wants to
come in for the shift. There is no set order in which the
aides are to be called. If the tech ‘‘supervisor,’’ Ruby B. Jen-
kins (known as Miss Ruby), is present, the charge nurse may
get a number from her. The up-to-date list of the aides’
phone numbers is maintained at Miss Ruby’s desk and, in
her absence, a charge nurse may get the numbers from that
source.5 Where an aide has made a mistake in punching in
or out, the charge nurse may sign the corrected timecard.
The authority and responsibilities of Respondent’s LPN
charge nurses are typical of the authority and responsibilities
of similar employees found by the Board in numerous cases
to be insufficient to establish supervisory status. Thus, in
Riverchase Health Care Center, 304 NLRB 861 (1991), the
Board found that the assignment and direction of the work
of the nurses aides, following doctors’ orders and standard
nursing practices, as here, was both routine and primarily in
connection with patient care. There, the Board also found
that the authority to call in replacements from a list of ap-
proved aides, request, but not require, aides to work over-
time, or to transfer aides to different wings of the facility
where circumstances required, to initial timecards, and verify
attendance when an aide neglected to punch the timeclock,
or to request aides to postpone or reschedule breaks all in
order to ensure adequate staff coverage, involved only the
exercise of routine judgment and did not align the charge
nurses with the employer. See also Health Care Corp., supra;
Phelps Community Medical Center, supra; Waverly-Cedar
Falls Health Care, 297 NLRB 390 (1989); and Beverly
Manor Convalescent Centers, 275 NLRB 943 (1985). Indeed,
as the Board noted in the latter case at 947:
The authority of the LPNs . . . would be insufficient
in the industrial setting to render them supervisors. As
in the case of leaders in manufacturing plants, the LPNs
. . . have no authority to fire, hire, or effectively to
recommend such actions; they do not grant vacations or
leave time. At most, they give general direction, train
employees, and seek to maintain product quality con-
trol.
Moreover, the authority to work overtime, under clearly
defined circumstances, without getting the approval of her
own supervisor, does not indicate any supervisory authority
over any other employees.
Based on the foregoing, I am compelled to conclude that
the LPNs’ role in assigning and directing the work of the
CNAs falls short of establishing that they responsibly direct
the work of those aides with the exercise of independent
judgment, whether that direction is considered to be in the
employer’s interest or that of the patients. Clearly, no inde-
pendent judgment is required to determine that a patient’s
clothing or bed linens are wet and in need of changing or
that a patient should be turned in the bed pursuant to a post-
ed schedule. This is the kind of direction which comprises
most of the charge nurses’ role with respect to the aides.
371WASHINGTON NURSING HOME
6 The record also contains warnings or records of counseling
signed by Troxell, who was the nursing systems manager and an ad-
mitted supervisor, in addition to being an LPN and by Shelton, who
was an LPN and director of nursing administration. One counseling
form, dated August 10, 1992, issued by Troxell, was signed by Miss
Ruby, as ‘‘tech sup.’’ after the director of nursing spoke with the
aide and established a routine whereby Miss Ruby would give her
instructions on the importance of making her rounds.
3. Authority to reward, promote, discipline, or
discharge aides
The authority of the charge nurses to reward, promote, dis-
cipline, or discharge the CNAs is limited. The CNAs are
evaluated at the conclusion of their probationary periods and
annually thereafter. Those evaluations are conducted by
Dillhoff and Shelton. Respondent’s written policies give no
role to the charge nurses in that evaluation procedure.
Shelton claimed that she sometimes sought input about a
CNA from either the charge nurse or from other employees;
her evaluation might change based on a charge nurse’s eval-
uation, she stated.
Walter has rewarded the CNAs on her floor and shift by
buying pizza for everyone, at her own expense. Mays testi-
fied that, while she is not required to do so, she might tell
either Troxell or Dillhoff if she felt that a CNA was doing
a particularly good job. If that aide was not performing prop-
erly, Mays said, she would ask the aide if she was having
a problem that day. Mays has not had a situation where an
aide continually failed to do her job. If such a situation
arose, she would report it to Miss Ruby, Mays said. If this
failed to achieve the necessary improvement, she would then
talk to the director of nursing.
There are instances when a charge nurse will report or
writeup an aide. All instances of patient abuse are reported
by anyone who observes them, as required by state law and
the Employer’s policy. The record also contains some exam-
ples of written employee counseling or disciplinary reports.
Thus, on April 17, 1988, LPN M. Williams issued a writ-
ten warning to an aide for failing to obey orders respecting
the use of the telephone. On March 23, 1991, LPN Hollings-
worth issued a written warning to an aide who refused her
order to clean a bedside commode. On October 10, 1991, an
RN charge nurse wrote an employee counseling form on an
aide who had failed to follow her instructions and had been
‘‘disrespectful . . . with charge nurse.’’ That counseling
form stated that the nurse had told the aide to clock out and
leave the facility. The employee had ignored this order and
the nurse had to secure the assistance of Miss Ruby to en-
force her order. On March 10, 1992, RN Kathy Skidmore
issued a counseling form to an aide for excessively watching
TV and failing to attend to his duties. A plan of action, in-
structing the employee to watch TV only on his breaks and
to follow the routine listed on the schedule, was written out
on an informal note pad and signed by the employee. That
same employee and another aide were issued counseling
forms or verbal warnings by LPN Valerie Evans on October
13, 1992, for interfering with each other’s work. Those
writeups resulted in Shelton discussing the problem with the
employees and issuing them written warnings.
Similarly, on December 4, 1992, Shelton counseled an
aide about his work performance after two charge nurses,
Faye McIntosh and Lynn Troxell, reported that he was fail-
ing to attend to his scheduled duties.6
Other than as described above, the record does not reflect
what effect the charge nurses’ counseling forms or warnings
had on the wages, tenure, or other conditions of the aides’
employment. Shelton testified that she is the one who issues
employee discipline, although she claimed in general terms
that a charge nurse could do so as well.
In several instances, employees impaired by substance
abuse have been sent home by a charge nurse. In one in-
stance, Mays observed an aide in an apparent state of intoxi-
cation. She reported it to Fette, Fette spoke with the em-
ployee and told him that it would be better if he went home.
Fette then drove him home. In another instance, an aide sent
home for the day for the same reason by Charge Nurse Ruby
A. Jenkins was apparently not given any further discipline.
Nothing in any of the above rises to the level required to
establish supervisory status. The charge nurses have no great-
er role in the evaluation of the aides than does any other em-
ployee, including other aides. They may be asked about an
aide’s performance but are not given any express role in the
evaluation process. In several recent cases where the charge
nurses had significantly greater roles with respect to evalua-
tions, the Board nonetheless found supervisory status to be
absent. In Phelps Community Medical Center, supra, the di-
rector of nursing delegated some of the evaluations of day-
shift aides to the LPNs and had the evening and night-shift
LPNs fill out evaluations on the aides who worked with
them. Those evaluations rated the aides in various aspects of
their performance and, in some cases, indicated whether the
LPN recommended continued employment. The Board, not-
ing that there was no evidence as to the weight or effect of
such recommendations and evaluations, held that their role in
those evaluations did not establish that they possessed or ex-
ercised supervisory authority. It noted that ‘‘[t]he authority
simply to evaluate employees without more is insufficient to
find supervisory status,’’ citing Passavant Health Center,
284 NLRB 887, 891 (1987), and Geriatrics, Inc., 239 NLRB
287 (1978). See also Waverly-Cedar Falls Health Care,
supra, and Ohio Masonic Home, supra, where the LPNs eval-
uated both probationary and nonprobationary employees, as-
sessing their performance on a number of job-related cat-
egories. Those evaluations, however, did not recommend any
personnel action and there was no showing that any employ-
ee’s job status had been affected by such an evaluation.
Similarly, the role of the charge nurses in issuing verbal
and written warnings or counseling forms, which go into an
employee’s personnel file but do not independently result in
any adverse action, does not evidence supervisory status. In
Ohio Masonic Home, supra, the authority of the charge
nurses to issue warnings was similar to the authority of Re-
spondent’s charge nurses, as was the effect of those warn-
ings. The Board stated that ‘‘[t]he mere authority to issue
verbal reprimands of the kind involved here is too minor a
disciplinary function to constitute supervisory authority. . . .
Likewise, the mere factual reporting of oral reprimands and
the issuing of written warnings that do not automatically af-
fect job status or tenure do not constitute supervisory author-
ity.’’ (295 NLRB at 394.)
In both Ohio Masonic Home and Phelps, the charge nurses
had limited authority to clock an aide out when that aide’s
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Respondent’s policies do not define who is the ‘‘primary charge
nurse’’ and that does not appear to be a designation in actual usage
in the nursing home. 8 All dates hereinafter are 1993 unless otherwise specified.
continued presence posed a danger to the patients either be-
cause of his or her refusal to obey patient care instructions
or because of substance abuse related impairment. In both
cases, the Board held that the limited exercise of such au-
thority, particularly when it is limited to ‘‘flagrant
violation[s] of common working conditions, such as being
drunk, is insufficient by itself to establish supervisory sta-
tus.’’ The authority of Respondent’s charge nurses to send an
aide home was no greater than that of the LPNs in the cited
cases. Moreover, the evidence indicates that such authority
was not always exercised independently and without ref-
erence to higher authority.
4. Other factors
As noted above, the charge nurses wear somewhat dif-
ferent clothing from the CNAs. They are more highly paid
although all are paid on an hourly basis.
The charge nurse job description places the responsibility
for the nursing care of all patients on an assigned unit on
the charge nurse. It also provides that the charge nurse is
‘‘[r]esponsible for supervision of all nursing personnel . . .
checking that their jobs are done . . . .’’ It further provides
that the charge nurse ‘‘[a]ttempts to solve minor employee
problems, refers problems with nursing technicians [CNAs]
to their immediate supervisor first, and to the director of
nursing if necessary.’’ Under that job description, the ‘‘pri-
mary charge nurse’’ is in charge of the facility in the absence
of the director of nursing and acts ‘‘as supervisor of all
LPNs in patient care emergency situations.’’7 In at least one
instance, Mays called the police when there was a suspected
break-in. There was no evidence of grievance adjustment by
the charge nurses other than possibly separating two aides
who might be experiencing difficulties working together.
The managerial hierarchy is present at the nursing home
during the first shift, with some of them coming in before
that shift begins or staying several hours into the second
shift. For most of the hours of the second and third shifts,
the most senior persons present at the facility are the charge
nurses. However, an RN, either the director of nursing or an-
other, is either on duty or on call at all times.
In agreeing to the terms of an election among Respond-
ent’s employees, the Union acceded to the Employer’s posi-
tion and excluded the LPNs from the bargaining unit. Miss
Ruby was included as an eligible voter.
There is nothing in these additional factors which warrants
a contrary conclusion with respect to the supervisory status
of the charge nurses. Neither a distinction in their dress nor
a higher rate of pay necessarily indicates supervisory status.
The fact that they are the highest-ranking individuals on the
site during most of the second and third shifts is some evi-
dence in that direction. It is negated, however, by the fact
that Respondent’s policy manuals give detailed instructions
covering most situations. Moreover, during those hours, ad-
mitted supervisors are on call and immediately available by
telephone. Waverly-Cedar Falls Health Care, supra; Phelps
Community Medical Center, supra. I can accord little weight
to the Union’s agreement to exclude the charge nurses from
the bargaining unit. Given the adverse rulings of the Court
of Appeals in the Sixth Circuit, any other course of action
would have likely caused considerable delay and uncertainty
to any election and/or certification.
D. The Discharges
1. The facts
Kristal Mays began working for WNH in March 1992. For
a period of time, she worked as a charge nurse on an as-
needed basis. Starting in August of that year, she worked on
the day shift as the treatment nurse in place of her sister,
Lynn Troxell. From mid-November 1992 until her discharge,
she was the charge nurse on the 3 to 11:30 p.m. shift on the
second floor. Ramona Walter, an LPN since 1990, began
working for WNH as the second-shift charge nurse for the
first floor in mid-January 1993.8
In early March 1993, Walter contacted David Regan, the
Union’s Ohio area director; she arranged to meet with him
at her home on the morning of March 8. At that meeting,
Mays, Walter, and Regan discussed the unionization of Re-
spondent’s nurses and scheduled a meeting for about mid-
night of that night for him to meet with other employees at
a restaurant near the nursing home.
Walter and Mays worked their shift on March 8. During
breaktimes, they both testified, they told the nurses aides
about the union meeting. After work, about 15 or 16 employ-
ees, including some who had been telephoned by Walter or
Mays, attended the organizational meeting.
Yolanda ‘‘Bonnie’’ Champion is a cook at WNH. She
works in the kitchen until 6 p.m. and then as a CNA on the
first floor for the balance of the second shift. Shortly after
6 p.m., she claimed, she saw Mays ‘‘heading towards out the
door.’’ Later, when she had occasion to go looking for Wal-
ter to report on a patient’s condition, she observed Walter,
Mays, and a man later identified to her as Walter’s brother,
in an office on the second floor. At that same time, she saw
RN Ruby A. Jenkins ‘‘running around’’ in a ‘‘frantic mood’’
seeking the first floor nurse and complaining that a patient’s
tracheotomy mist bottle had been allowed to run dry.
RN Jenkins testified that she had come to the home to see
her grandmother, Miss Ruby, and heard the sound made by
an empty mist bottle coming from a patient’s room on the
first floor. She checked, found the bottle completely empty,
filled it, and then went looking for the nurse responsible for
the patient. She claimed that she found Walter in the office
on the second floor, behind a locked door.
During the course of the evening, according to Champion,
Walter asked her how she felt about a union and repeatedly
asked her to go to a meeting. Walter purportedly told her
that Mays wanted to talk to her and some of the other CNAs
about a union. About 9 p.m., she went to the TV room on
the second floor. Walter, Mays, and all six CNAs were
present, she claimed. She remained there about 5 minutes
and returned to her floor when she realized that there were
no nurses covering the floors. Walter returned to the first
floor about 30 minutes later, she asserted.
Sometime after 10 p.m., Champion again saw Mays going
‘‘out towards the door,’’ wearing her coat.
The next day, Champion told Miss Ruby what she be-
lieved had happened on the prior shift, specifically mention-
373WASHINGTON NURSING HOME
9 Respondent’s April 2 statement of position acknowledges that
Miss Ruby told Fette that the purpose of the alleged meeting was
‘‘to discuss a union.’’
10 Walter’s brother, Homer Mann, is a representative for another
union. He may have been wearing a jacket bearing a Teamsters logo.
ing that the meeting was for the purpose of discussing union
organization. Miss Ruby told a charge nurse, Faye McIntosh,
and McIntosh told Shelton or Brenda Fette. Champion and
Miss Ruby were then brought in to a meeting with Lustig,
Fette, and Shelton. Champion repeated what she had told
Miss Ruby, including that the meeting was for the purpose
of discussing unionization.
Shelton testified that McIntosh had told her that Champion
had reported being pulled off the floor to attend a meeting.
She then spoke with Champion who repeated what she had
told Miss Ruby. Champion was brought in to a meeting with
Lustig, Fette, and Miss Ruby. According to Shelton, Cham-
pion told them that Mays had left the building twice, that she
did so all the time and spent most of her time on the first
floor, and that ‘‘they had pulled all these people off the
floor.’’ Miss Ruby told them about the mist bottle.
Initially, Shelton said that she was not sure whether Cham-
pion had told her that the meeting was about the Union,
claiming that her memory was not very good. When ques-
tioned as to whether or not she asked Champion about the
purpose of the meeting, she replied, ‘‘Why would I ask
her?’’ Subsequently, she acknowledged that she may have
asked what kind of a meeting it was and that she may have
been told that it was a union meeting. Again, she claimed
that its purpose was not relevant to her. Her testimony with
regard to this aspect of the conversations with Champion was
both improbable and incredible.9
After Champion told the management what she believed
had happened on March 8, Sandra Dillhoff was called into
the meeting. They reviewed what Champion had told them
and made an immediate decision to terminate both Mays and
Walter. No further investigation was conducted and no other
employees were questioned.
According to both Walter and Mays, nothing untoward oc-
curred during their shift. During the evening, Walter’s broth-
er came in with his lunch and they ate together in Troxell’s
office on the second floor.10 Mays was in and out of that of-
fice while they ate, making coffee. After 10 p.m., Mays left
the facility to pick up David Hodge, the third-shift charge
nurse for the second floor, who had called in to say that he
had no way of getting to work. Neither the use of Troxell’s
office nor leaving the facility on one’s break or for nursing
home business was unusual or impermissible, they credibly
testified. Even though Mays considered picking Hodge up to
be nursing home business, she did so on her own time,
punching out at 10:10 p.m. and back in at 10:28 p.m. She
told Walter that she was leaving and why and gave Walter
her keys. Mays denied that she had left the facility earlier
in the evening and both denied that they held any meeting
with the CNAs during the shift or met with them as a group.
There were times during that night when Walter and/or Mays
were in the TV room with one or two CNAs when they may
have mentioned the Union and the meeting scheduled for that
night. Champion had approached Walter to ask about the
meeting scheduled for later that night and Walter referred her
to Mays. Mays testified that Champion came up to her in the
TV room at about 9 p.m. and asked about that meeting. At
the time that she did so, two other CNAs were in the TV
room, on their breaks, and Walter came in to return some
medication which she had earlier borrowed from Mays’
stock. Walter acknowledged that a patient’s mist bottle had
run low and that RN Jenkins had filled it and then brought
it to her attention; she denied that it had run completely dry
or that an empty mist bottle would have jeopardized the pa-
tient’s life. The mist bottle was intended to keep the patient’s
secretions moist.
Respondent did not seek to confirm Champion’s observa-
tions until it began to prepare for this hearing. About a week
before hearing, its counsel questioned CNA Wynola Mozee.
Mozee worked a double shift, from 3 p.m. March 8 to 7 a.m.
the following morning. As she recalled the events of that
night, Mays told her to meet in the TV room after she had
finished passing the supper trays in order to discuss forming
a union. The meeting began between 8:30 and 9 p.m. On di-
rect examination, she testified that it lasted about 45 minutes
to 1 hour. On cross-examination, she claimed that it lasted
for 1-1/2 hours. She left before 10 p.m. in order to complete
her rounds before 11 p.m. At that meeting, she asserted, were
what she believed were all of the CNAs and both Walter and
Mays. She was unable to say whether anyone had been left
on the first floor; no one was left making rounds or manning
the nurses station on the second floor, she claimed. However,
much of the second floor could be seen from the TV room.
Respondent’s April 2 statement of position, as well as the
testimony of Shelton and others, indicates that Miss Ruby
was present on the first floor until at least 8 p.m. Miss Ruby
was not called as a witness in this proceeding.
The question of whether or not there was a meeting of all
the CNAs during the second shift on March 8 is not easy
of resolution. All of the witnesses impressed me as hard
working and deeply concerned for the welfare of their pa-
tients. In particular, Walter, Mays, and Mozee testified with
credible demeanor. I was less impressed by Champion, who
appeared to be shading her testimony so as to put Walter and
Mays in the worst possible light, both as to their alleged su-
pervisory status and as to the events of March 8, and
Shelton, whose claims of disinterest in the subject of the
meeting and her lapse of memory as to any mention of union
activity were patently incredible.
After careful consideration, I am compelled to conclude
that there was no meeting such as was reported by Champion
or later described by Mozee. Walter and Mays may have
been briefly in the TV room at the same time, with several
of the aides also present. They admittedly discussed the
meeting planned for that night with the aides on their breaks.
Given that such a meeting with a representative of the Union
was already scheduled, there would have been little reason
for Walter and Mays to hold a lengthy meeting with the
CNAs. Both Champion, who only claimed to have remained
in the ‘‘meeting’’ for 5 minutes, and Mozee, who clearly ex-
aggerated the duration of what she perceived to be a meeting
of all the aides, were, I believe, mistaken in their percep-
tions. I must also conclude that there was no evidence that
Mays left the facility more than once during that shift.
Champion did not see her leave in the early part of the night,
she only saw her ‘‘heading towards out the door.’’ As to the
matter of the mist bottle, I believe that RN Jenkins did find
the bottle empty, or nearly so. The problem was quickly cor-
rected, with no detriment to the patient alleged, and was
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Given Walter’s recording of this conversation, Mays’ corrobora-
tion of Walter, Dillhoff’s unsure and unconvincing assertion that she
questioned Walter about abandoning her post, as well as her uncon-
vincing claim that she was unconcerned about and did not recall
whether she knew of the union activity when the employees were
discharged, I credit Walter and find that Dillhoff did not question
her about the events of March 8 or give her any reason for the ter-
mination.
12 Walter recalled Troxell saying, in response to her claim that
they had been fired for their union activity, that she had ‘‘heard
something to that effect.’’ Mays did not corroborate Walter’s recol-
lection in this regard.
13 In a subsequent conversation between Eiler and Walter, which
Eiler does not dispute, Eiler did not contradict Walter when Walter
repeatedly asserted that she had been discharged for her union activ-
ity.
14 Eiler so testified and the Charging Parties’ observations to the
contrary would not have included knowledge of any instructions she
had received from one of the acknowledged supervisors.
15 Adco Electric, 307 NLRB 1113 fn. 1 (1992); and Health Care
Corp., supra.
brought to Walter’s attention. Given the varied duties of the
charge nurses, this would appear to be something that would
happen from time to time, even when a nurse plans to refill
the bottle at the time when she anticipates it will be nearly
empty, as Walter had planned to do.
When Walter and Mays arrived at the home for the start
of their shifts on March 9, they found that Walter’s timecard
had been pulled. The day-shift charge nurse told Walter that
she was to go to the third-floor administrative offices. Mays
accompanied her. Dillhoff took Walter into the office and
told her that she was still in her 90-day probationary period
and that they had decided not to retain her. Walter asked for
an explanation and insisted that she was a good nurse.
Dillhoff acknowledged the quality of her nursing skills but
insisted that Walter was ‘‘just not meeting our expectations.’’
When asked by Walter, she said that there had been a couple
of complaints about her work; she refused to give Walter any
details.11
After Walter was terminated, Mays was brought into
Dillhoff’s office by Shelton. Shelton asked her whether she
had left the facility the prior night. Mays acknowledged that
she had. Shelton accused her of leaving twice and asked her
if she had punched out. Mays insisted that she left only once.
She left the office to get her timecard, returned, and showed
that card to Shelton. As Mays recalled it, Shelton insisted
that she had left twice, claimed that she had a witness, and
told Mays that she was fired. Mays asked if she was being
fired for leaving the building twice when she only left once
and was told, ‘‘That and a bunch of other stuff.’’
Shelton’s version is even more abrupt. She contended that
she told Mays that Mays was owed no explanation but asked
her if she had left the facility. Mays admitted that she had
done so, clocking in and out, and produced her timecard to
prove it. Shelton testified that she was ‘‘kind of upset, and
I didn’t explain anything to her. I just said, You’re fired.
And she did not ask for any explanation. I didn’t offer any.
I didn’t feel like I owed her one.’’
After their discharges, Walter and Mays returned to Wal-
ter’s home. From there, they called Lynn Troxell who, in ad-
dition to being a supervisor and sister of Mays, was a class-
mate and friend of Walter’s. With Mays listening in on the
conversation, Walter told Troxell that they had been fired for
what they believed was their union activity. Troxell ex-
pressed disbelief that WNH would have fired them12 and
suggested that she get Pam Eiler on her three-way calling
line while Walter and Mays listened in. Troxell told Walter
and Mays to remain silent and called Eiler. According to
both Walter and Mays, Troxell told Eiler that the two had
been fired and believed it was because of their union activ-
ity. Eiler replied, ‘‘Yes, I know it was for union activity, but
we are not supposed to talk about that.’’
Eiler did not participate in the decision to discharge these
employees. She learned of it when she was asked to secure
their replacements. She recalled getting a telephone call from
Troxell wherein Troxell asked if she knew why they had
been fired. She testified that she told Troxell that she did not
know the reason. Troxell was not called as a witness in this
proceeding. I credit the mutually corroborative recollections
of Walter and Mays.13
2. The status of Pamela Eiler
While Walter testified that she knew Eiler as the ‘‘sched-
uling supervisor,’’ Eiler described her title as staffing and
medical records coordinator. She schedules the shifts of all
of the RNs and LPNs. When one of the RNs or LPNs calls
in as unable to work, Eiler, after checking with Fette,
Dillhoff, or Shelton to authorize the overtime,14 asks another
staff nurse to work the shift. She follows no predetermined
list or roster in securing a replacement. If the first nurse she
asks is unwilling to work, she keeps asking others until a re-
placement is found.
It is the Respondent’s policy to favor the use of staff
nurses rather than going outside to an agency for replace-
ments. A staff nurse who works a second shift within 24
hours receives an additional $5 per hour. If Eiler cannot find
a staff nurse to fill in, she can call an agency, but only after
first checking with one of her superiors. She has rejected cer-
tain agency nurses, again however only with the approval of
one of those superiors. Other than scheduling them to work,
Eiler does not oversee, direct, or evaluate the work of the
charge nurses.
Eiler had begin her employment as a CNA. She worked
in the activity department for a period and then began to
work in medical records before assuming the scheduling
function. She still works as a CNA on occasion. Eiler shares
a desk with Norma Shelton. According to Walter, Eiler at-
tends weekly meetings which are attended by Troxell and
Shelton. Brenda Fette, Ruby Jenkins, the charge nurses, and
the activities director sometimes also attend those meetings.
Based on the foregoing, I am compelled to conclude that
the General Counsel has failed to sustain his burden of estab-
lishing that Pamela Eiler is a statutory supervisor.15 Her
function with respect to the scheduling of nurses is essen-
tially clerical and routine, with authorization required when-
ever overtime or the selection or rejection of an agency nurse
is involved. Riverchase Health Care Center, supra. Accord-
ingly, I must find that Respondent is not bound by the pur-
ported admissions of Pam Eiler.
375WASHINGTON NURSING HOME
16 Even if there had been such a meeting, Respondent’s failure to
question Walter and Mays about it or to investigate further before
deciding to discharge them, and its failure to even mention it in their
discharge interviews, would establish that it was not the existence
of the meeting but the fact that it concerned union organization that
motivated the discharges.
3. Analysis of Respondent’s motivation and conclusions
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), provides
the analytical mode for resolving discrimination cases turning
on the employer’s motivation. Under that test, the General
Counsel must first:
make a prima facie showing sufficient to support the
inference that protected conduct was a ‘‘motivating fac-
tor’’ in the employer’s decision. Once accomplished,
the burden shifts to the employer to demonstrate that
the same action would have taken place notwithstand-
ing the protected conduct. It is also well settled, how-
ever, that when a respondent’s stated motives for its ac-
tions are found to be false, the circumstances may war-
rant an inference that the true motive is one that the re-
spondent desires to conceal. The motive may be in-
ferred from the total circumstances proved. Under cer-
tain circumstances, the Board will infer animus in the
absence of direct evidence. That finding may be in-
ferred from the record as a whole. [Citations omitted.]
Fluor Daniel, Inc., 304 NLRB 970 (1991).
A prima facie case is made out where the General Counsel
establishes union activity, employer knowledge, animus, and
adverse action taken against those involved or suspected of
involvement which has the effect of encouraging or discour-
aging union activity. Farmer Bros. Co., 303 NLRB 638, 649
(1991). Inferences of animus and discriminatory motivation
may be warranted under all the circumstances of a case; even
without direct evidence. Evidence of suspicious timing, false
reasons given in defense, and the failure to adequately inves-
tigate alleged misconduct all support such inferences. Adco
Electric, 307 NLRB 1113, 1128 (1990), enfd. 6 F.3d 1110
(5th Cir. 1993); Electronic Data Systems Corp., 305 NLRB
219 (1991); Visador Co., 303 NLRB 1039, 1044 (1991);
Associacion Hospital del Maestro, 291 NLRB 198, 204
(1988); and Clinton Food 4 Less, 288 NLRB 597, 598
(1988).
I am satisfied that the General Counsel has established the
requisite prima facie case on the record before me. Walter
and Mays had initiated the union activity, management was
immediately made aware of that activity and they were dis-
charged immediately on management’s acquisition of that
knowledge. It cannot be denied that the discharge of the two
initiators of the union activity would tend to discourage con-
tinued union activity. Stoody Co., 312 NLRB 1175, 1183–
1184 (1993).
While there is no direct evidence of union animus in this
record, the record as a whole clearly warrants the inference
that such animus motivated the discharges. In particular, I
note that Respondent invoked the ultimate industrial weapon,
discharge, against two employees whom it had placed in po-
sitions of responsibility based solely on the word of one
lower-ranking worker. Respondent failed to question other
employees about the alleged acts of misconduct and decided
on the discharges without even talking to its two charge
nurses. Even after it decided to discharge them, it neither
confronted the dischargees with the most essential of the ac-
cusations made against them nor asked them what they had
done or what had taken place. As the Board stated in Clinton
Food 4 Less, supra at 598:
An employer’s failure to adequately investigate an em-
ployee’s alleged misconduct has been found to be an
indication of discriminatory intent, and we consider the
Respondent’s failure to investigate [the complaining
employee’s] complaint as an important factor in deter-
mining the reason it discharged [the discriminatee].
Thus, when she was discharged, Walter was merely told
that she was a probationary employee whom they had de-
cided not to retain. Even though she asked for an expla-
nation, no reason beyond a statement that she was ‘‘not
meeting their expectations’’ was ever given her. Similarly,
after the decision to discharge her was made, Mays was ac-
cused of having twice left the facility during her shift. She
admitted that she had left, but just once, during the shift, a
common and tolerated occurrence. Respondent gave her
claim no consideration even though the contrary evidence it
had was ambiguous at best; Champion did not claim that she
saw Mays actually leaving the building around 6 p.m., she
had merely said that she had seen Mays ‘‘on the first floor
heading towards out the door.’’ Unlike her description of
Mays leaving around 10 p.m., when she described Mays as
being dressed to go outside, Champion did not testify that
Mays was wearing her coat at about 6 p.m. or that she actu-
ally saw her leave. Most significantly, neither Walter nor
Mays was accused of, or questioned about, the meeting they
allegedly held with all of the CNAs during that shift.
Further indicative of Respondent’s animus and unlawful
motivation is its patently incredible efforts to deny knowl-
edge of, or concern about, the union activity. That concern
is reflected in the alacrity with which it acted on sketchy and
scant information and by the fact that, when it received that
information, it called the alleged witness in to a meeting with
virtually all of its top management.
The foregoing evidence forcefully shifts the burden to the
Respondent to show that it would have discharged Mays and
Walter even in the absence of their union activity. I have re-
jected its claims concerning both the alleged meeting16 and
Mays alleged leaving the building more than once during the
course of her shift. Those claims, having been found to be
pretextual, fail to meet Respondent’s burden. Farm Fresh,
Inc., 301 NLRB 907 (1991). Its other claims, that Walter and
Mays were behind a locked door in Troxell’s office, that
Walter allowed a mist bottle to run dry, or that the first floor
door was found to be unlocked when Champion went back
downstairs, do not satisfy that burden. Respondent did not
investigate these incidents and neither confronted nor ques-
tioned Walter and Mays concerning them. Moreover, it failed
to show that the mist bottle incident was unusual or that it
jeopardized a patient such that it would have warranted any
level of discipline, let alone discharge.
Based on the foregoing, I find that Respondent was moti-
vated to discharge Ramona Walter and Kristal Sue Mays by
their union activity. I conclude that those discharges violated
Section 8(a)(3) and (1) of the Act.
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSION OF LAW
By discharging Ramona G. Walter and Kristal Sue Mays
because they engaged in union or other protected concerted
activity, and in order to discourage employees from engaging
in such activities, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits they suf-
fered, computed on a quarterly basis from date of their dis-
charges to the date of proper offers of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. I issued
my initial decision and recommended Order in this matter on
December 8, 1993 finding, inter alia, that Kristal Sue Mays
and Ramona G. Walter, licensed practical nurses who were
employed as charge nurses, were employees, entitled to the
Act’s protection, and not statutory supervisors within the
meaning of Section 2(11) of the Act. On August 5, 1994, the
matter was remanded to me ‘‘for further consideration in
light of NLRB v. Health Care & Retirement Corp. of Amer-
ica,’’ 114 S.Ct. 1778, which issued on May 23, 1994 (Health
Care).
For ease of understanding, the following includes a reiter-
ation of my factual findings, to the extent relevant, to which
I adhere in this supplemental decision.
A. Background
WNH operates a skilled nursing care facility, serving up
to 60 patients. The facility has four floors including the base-
ment; the first and second floors contain the patient rooms
with the most critical patients housed on the first floor and
the more ambulatory patients residing on the second. The
third floor is occupied by its offices and record storage areas.
Respondent employs licensed practical nurses (LPNs) and
some registered nurses (RNs) as treatment and charge nurses.
It also employs certified nurses aides (CNAs), kitchen/dietary
employees, porters, and other housekeeping workers, employ-
ees involved in patient activities and social services, and
those who perform clerical tasks. Respondent has approxi-
mately 60 employees.
Over the employees described above are Jacob Lustig, Re-
spondent’s owner; Brenda Fette, administrator; Norma
Shelton, director of nursing administration and assistant ad-
ministrator; Sandra Dillhoff, director of nursing (DON); and
Lynn Troxell, nurse systems manager. These are admitted su-
pervisors. Additionally, there is Pamela Eiler, staffing coordi-
nator (who, I concluded, lacked supervisory status), and
Ruby B. Jenkins, a senior employee with some supervisory
attributes, whose title is tech supervisor.
B. The Status of the Charge Nurses
1. In general
Nursing home patients, of course, require care around the
clock and WNH operates on a three-shift basis; the charge
nurses work 7 a.m. to 3:30 p.m. (the first shift), 3 to 11:30
p.m. (the second shift), and 11 p.m. to 7:30 a.m. (the third
shift). On each floor for each shift, there is a charge nurse,
who is generally a licensed practical nurse (LPN) but is
sometimes a registered nurse (RN), and between two and six
certified nurses aides (CNA). There may also be one or more
treatment nurses on duty.
The charge and treatment nurses provide skilled care to the
patients, passing medications, giving injections, drawing
blood, maintaining the tubes of patients with tracheotomies,
and applying or changing dressings on wounds and sores.
They perform their duties throughout the entire floor but
have a desk at the nurses station where they maintain records
of patient treatments and conditions and communicate with
the patients’ physicians about changes in the condition of or
treatments for those patients. They make initial decisions re-
garding the need to remove a patient to a hospital setting and
brief the incoming charge nurses at the start of each shift as
to any changes in the condition of the patients. The charge
nurses have keys to the narcotics lockers.
The CNAs, who have a lesser level of training than the
LPNs, are involved with the patients on a more basic level.
They maintain their physical cleanliness, bathing, changing,
dressing, and shaving them. They feed their patients and po-
sition them in their beds, turning them as required so as to
avoid sores or to facilitate breathing, following a schedule
that is posted for their guidance. To a greater or lesser ex-
tent, they are directed or overseen in these duties by the
charge nurses and the issue here is whether that direction
amounts to supervision as that term is defined by the Act.
The charge nurses, treatment nurses, whether RNs or
LPNs, and CNAs are all hourly paid. The LPNs are more
highly paid than the CNAs. All wear basically white or pas-
tel clothing; the female CNAs wear blue smocks over their
clothes; and the LPNs do not.
2. The statute
Section 2(11) of the Act defines a ‘‘supervisor’’ as:
[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not merely of a routine or clerical nature,
but requires the use of independent judgment. [Empha-
sis added.]
As the Board and the courts have noted in numerous
cases, including Phelps Community Medical Center, 295
NLRB 486, 489, (1989):
377WASHINGTON NURSING HOME
1 987 F.2d 1256 (6th Cir. 1993). The circuit court, holding that the
burden of establishing, by substantial evidence, that the staff nurses
were not supervisors rested on the General Counsel, and finding both
that that burden had not been met and that substantial evidence sup-
ported the employer’s claim that they were supervisors, rejected the
Board’s conclusion that those nurses did not assign or responsibly
direct other employees through the exercise of independent judg-
ment. Id. at 1260–1261. The Supreme Court noted that those staff
nurses ‘‘have responsibility to ensure adequate staffing; to make
daily work assignments; to monitor the aides’ work to ensure proper
performance; to counsel and discipline aides; to resolve aides’ prob-
lems and grievances; and to report to management.’’ Health Care,
supra at 1781.
2 Although the court of appeals (NLRB v. Health Care & Retire-
ment Corp. of America, 987 F.2d 1256 (6th Cir. 1993)) had rejected
the Board’s allocation of the burden of proof, that issue was not pre-
sented to the Supreme Court. As I noted in my initial decision, I
am duty bound to ‘‘apply established Board precedent which the Su-
preme Court has not reversed. Waco, Inc., 273 NLRB 746, 749
(1984); Iowa Beef Packers, 144 NLRB 615, 616 (1963).’’ However,
neither my initial decision nor this supplemental one are grounded
on the failure of one party or the other to sustain an initial burden
of proof. Were I to phrase my resolution of this issue in terms of
the burdens of proof, I would conclude that the General Counsel has
sustained his burden of proving, by a preponderance of the evidence,
that the charge nurses did not direct the CNAs through the use of
independent judgment, that Respondent failed to rebut that evidence
and that, on the record as a whole, I found that the charge nurses
Continued
The types of supervisory authority are listed in the dis-
junctive and authority with regard to any one is suffi-
cient 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 independent judgment in
the employer’s interest. NLRB v. City Yellow Cab Co.,
344 F.2d 575 (6th Cir. 1965). [Emphasis added.]
3. ‘‘In the Employer’s Interest’’
Prior to the Supreme Court’s decision in NLRB v. Health
Care & Retirement Corp. of America, 114 S.Ct. 1778 (1994)
(Health Care), the Board had distinguished between direction
given by a skilled health care professional (such as a reg-
istered nurse) or quasi-professional (such as a licensed prac-
tical nurse) to a lesser skilled employee which was given ‘‘in
the employer’s interest’’ from that which was given ‘‘pri-
marily in connection with patient care.’’ Where the Board
determined that otherwise supervisory functions were exer-
cised by such health care personnel, but primarily in the con-
nection with patient care, i.e., as a function of that individ-
ual’s professional responsibility, it found that individual to be
an employee under the Act’s protections and not a super-
visor. As I had noted in my original decision under section
II,C,2.:
In determining whether, in the context of a health
care institution, a more skilled employee’s direction of
one who is less skilled is a supervisor acting ‘‘in the
employer’s interest,’’ the Board looks to see whether
that direction is routine and whether ‘‘it is primarily in
connection with patient care, and not in the interest of
the employer.’’ Phelps Community Medical Center,
supra, at 490, quoting from Beverly Manor Convales-
cent Center v. NLRB, 727 F.2d 591, 593 (6th Cir.
1984). [Fn. omitted.]
The only issue before the Court in Health Care was how
the statutory phrase ‘‘in the interest of the employer’’ should
be interpreted. The Court rejected the Board’s interpretation
and held that the Board’s test was inconsistent with the statu-
tory language and Supreme Court precedent. It stated, 114
S.Ct. at 1783:
the language [of the Statute] cannot support the Board’s
argument that supervision of the care of patients is not
in the interest of the employer. The welfare of the pa-
tient, after all, is no less the object and concern of the
employer than it is of the nurses.
The question of whether the staff nurses in issue in that
case otherwise exercised any one of the statutory preroga-
tives establishing supervisory status was not before the Court
in Health Care. Accordingly, the judgment of the court of
appeals,1 finding them to be supervisors, was upheld. The
Court did not reach any conclusion with respect to whether
charge or staff nurses, generally, were supervisors. It stated:
An examination of the professionals duties (or in this
case the duties of the four non-professional nurses) to
determine whether one or more of the 12 listed activi-
ties is performed in a manner that makes the employee
a supervisor is, of course, part of the Board’s routine
and proper adjudicative function. In cases involving
nurses, that inquiry no doubt could lead the Board to
conclude in some cases that supervisory status has not
been demonstrated. [114 S.Ct. at 1785.]
The Court, supra at 1783, reiterated the statutory standard,
stating that, ‘‘[u]nder § 2(11), an employee who in the course
of employment uses independent judgment to engage in one
of the 12 listed activities, including responsible direction of
other employees, is a supervisor.’’ My initial decision had
been grounded on this standard; it did not rest on the ques-
tion of whose interest was being effectuated by the exercise
of authority. Thus, as I had concluded under section II,C,2:
I am compelled to conclude that the LPNs role in as-
signing and directing the work of the CNAs falls short
of establishing that they responsibly direct the work of
those aides with the exercise of independent judgment,
whether that direction is considered to be in the em-
ployer’s interest or that of the patients.
In the interest of completeness, I shall reiterate and, where
necessary, expand on, the analysis which lead me to that
conclusion.
In the instant case, there is no evidence that the charge
nurses hire, lay off, recall, or promote other employees. At
issue is whether they possess any of the other attributes of
supervisory status. A determination that one is a supervisor
under the Act removes that individual from under the ambit
of the Act’s protections; for that reason, the Board places the
burden of proof of supervisory status upon the party alleging
that such status exists. Health Care Corp., 306 NLRB 63
(1992), revd. on other grounds Health Care, supra.2 See also
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
did not possess or exercise any of the statutory criteria under Sec.
2(11) of the Act.
3 Both Mays and Walter denied that there were any sign-in sheets.
CNA Wynola Mozee testified that they were ‘‘supposed’’ to sign a
chart at the nurse’s station and had to tell the charge nurse when
they were leaving the floor. No examples of such sign-in sheets or
charts were placed in evidence.
4 Walter testified that she had never called an aide to come in to
work and that she had been told by Shelton and Troxell that she had
no authority to do so. It was her testimony that she had to call the
scheduling supervisor, Pam Eiler, to secure a replacement aide and
that she had done so as late as 11 p.m. to report that an agency
nurse had failed to show up. I would conclude that there was no
fixed practice established on this record.
Hydro Conduit Corp., 254 NLRB 433, 437 (1981). As was
quoted there:
[T]he Board has the duty to employees to be alert not
to construe supervisory status too broadly because the
employee who is deemed a supervisor is denied em-
ployee rights which the Act is intended to protect.
Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151, 1158
(7th Cir. 1970), cert. denied 400 U.S. 831 (1970).
I turn to a consideration of the facts and case law applica-
ble to such factors as are alleged to be present here.
4. Responsible direction requiring the exercise of
independent judgment
Much of what transpires in Respondent’s facility vis-a-vis
patient care is of a routine nature. As Faye McIntosh, an
LPN charge nurse, described her role, ‘‘So much is so rou-
tine, it’s kind of hard to remember exactly.’’ The record re-
flects similar vagueness, with nearly as much testimony as
to what people believe the charge nurses can or cannot do
than as to what they do or have done.
In general, it is clear that the charge nurses are responsible
for patient care and virtually everything they do is directed
to that end. While the aides know their patients and know
what is required of them on a day-to-day basis, if the charge
nurse sees that a patient is in need of care, such as bathing,
changing of sheets or clothing, or repositioning in bed, she
will tell the CNA, whose job it is to perform these functions,
to take care of it. If a patient’s condition changes such that
some additional or different care is required, the charge nurse
will so inform the CNA. If a patient has an infectious condi-
tion, the charge nurse may also direct the aide to wear a
mask or double glove when in contact with that patient. If
a patient has soiled the floor, the charge nurse could call
housekeeping for someone to clean up. A CNA might clean
it up herself or ask a porter to do it.
The charge nurses have some responsibility for seeing that
the floor is covered. Respondent’s written policy on the
scheduling of breaks requires that aides and porters must sign
out at the nurses’ stations when going on their breaks and
must advise their ‘‘supervisor’’ when leaving their work
areas. Who that ‘‘supervisor’’ is, the policy does not say, but
Shelton testified that the intended reference is to the charge
nurse. In practice, the CNAs tell the charge nurse when they
are taking breaks; it is unclear whether they actually sign in
or out from those breaks.3 The charge nurse may ask an aide
to delay taking a break where the floor would not be prop-
erly covered or an emergency exists. Similarly, Respondent’s
policy on ‘‘Leaving Premises While on Duty’’ prohibits em-
ployees from leaving the home while on duty and requires
that any exceptions be cleared with the ‘‘supervisor and/or
administrator.’’ The aides and the charge nurses do leave the
premises on their lunch hours. The aides will tell the charge
nurse that they are leaving and one charge nurse will tell the
other if she is going to be off the premises. If an emergency
arose requiring a CNA to leave, the charge nurse would
allow the aide to do so. When staffing conditions require it,
the charge nurse may direct an aide to work on the other
floor or with different patients.
Sometimes, urgent patient care needs preclude the charge
nurse from completing her paperwork by the end of her shift.
When that happens, according to Mays, she can decide to
stay over, earning overtime, in order to complete it. When
a CNA calls and tells the charge nurse that she will not be
coming in to work a scheduled shift, the credible evidence
indicates that the charge nurse, even a charge nurse hired as
a temporary from a nurses’ agency, can ask another aide to
stay over until a replacement arrives or for an entire shift.
The charge nurse will initial that employee’s timecard to
show that the extra hours were authorized. However, there is
no evidence that a charge nurse can require that an aide re-
main beyond the end of her shift. It also appears that a
charge nurse can call an aide to ask if that aide wants to
come in for the shift. There is no set order in which the
aides are to be called. If the tech ‘‘supervisor,’’ Ruby B. Jen-
kins (known as Miss Ruby) is present, the charge nurse may
get a number from her. The up-to-date list of the aides’
phone numbers is maintained at Miss Ruby’s desk and, in
her absence, a charge nurse may get the numbers from that
source.4 Where an aide has made a mistake in punching in
or out, the charge nurse may sign the corrected timecard.
The authority and responsibilities of Respondent’s LPN
charge nurses are typical of the authority and responsibilities
of similar employees found by the Board in numerous cases
to be insufficient to establish supervisory status. Thus, in
Riverchase Health Care Center, 304 NLRB 861 (1991), the
Board found that the assignment and direction of the work
of the nurses aides, following doctors’ orders and standard
nursing practices, as here, was routine. (It was also found to
be primarily in connection with patient care.) There, the
Board also found that the authority to call in replacements
from a list of approved aides, request, but not require, aides
to work overtime, or to transfer aides to different wings of
the facility where circumstances required, to initial timecards
and verify attendance when an aide neglected to punch the
timeclock, or to request aides to postpone or reschedule
breaks all in order to ensure adequate staff coverage, in-
volved only the exercise of routine judgment and did not
align the charge nurses with the Employer. See also Health
Care Corp., 306 NLRB 63 (1992); Phelps Community Medi-
cal Center, supra, Waverly-Cedar Falls Health Care, 297
NLRB 390 (1989); and Beverly Manor Convalescent Cen-
ters, 275 NLRB 943 (1985). Indeed, as the Board noted in
the latter case, at 947:
The authority of the LPNs . . . would be insufficient
in the industrial setting to render them supervisors. As
in the case of leaders in manufacturing plants, the LPNs
. . . have no authority to fire, hire, or effectively to
379WASHINGTON NURSING HOME
5 Whether or not Respondent bears the burden of proof on the su-
pervisory issue, the failure to bring forth relevant evidence which
Continued
recommend such actions; they do not grant vacations or
leave time. At most, they give general direction, train
employees, and seek to maintain product quality con-
trol. [Citations omitted.]
Comparison of the charge nurses to foreman and
leadpersons in industrial settings is instructive. In Hydro
Conduit Corp., supra, the foreman possessed authority simi-
lar to these charge nurses. Like the charge nurses, he had no
role in the hiring and initial assignment process. His ‘‘input’’
and evaluations with respect to probationary employees and
those under consideration for promotion or transfer were so-
licited, but he was not called on to make recommendations.
There was no evidence that any recommendations he hap-
pened to make were followed and, as here, it was clear that
the supervisors made independent evaluations of those em-
ployees. The same pertained to discipline; the foreman re-
ported infractions and low productivity, providing input to
the disciplinary process but made no recommendations. Such
verbal reprimands as he was empowered to issue did not im-
pact on the job status of those reprimanded. Also like the
charge nurses, the foreman could reassign employees for
brief periods of time to meet the exigencies of production
and could request employees to work overtime where the su-
pervisor had determined that overtime was required. He
could authorize employees to leave work where that employ-
ee’s health required it or where an employee was required
to appear in court; such requests were granted automatically,
as they are in Respondent’s facility. In Hydro Conduit, supra,
the administrative law judge concluded and the Board agreed
that the evidence failed to establish that the foreman exer-
cised independent judgment in performing any of the statu-
tory functions.
Moreover, the authority to work overtime, under clearly
defined circumstances, without getting the approval of her
own supervisor, does not indicate that the charge nurse pos-
sesses any supervisory authority over other employees. Even
if the decision to work overtime involves the exercise of
independent judgment, no different conclusion would be war-
ranted as ‘‘the decisive question is whether [the employee]
has been found to possess authority to use independent judg-
ment with respect to the exercise . . . of some one or more
of the specific authorities listed in Section 2(11) of the Act.’’
Chicago Metallic Corp., 273 NLRB 1677, 1689 (1985),
quoting from Advanced Mining Group, 260 NLRB 386
(1982), and NLRB v. Brown & Sharpe Mfg. Co., 169 F.2d
331 (1st Cir. 1948). The same rationale would pertain to the
nurses’ unquestioned exercise of independent judgment in the
application of their superior skills and training in their own
treatment of patients. It would not show that they were su-
pervisors unless it involved application one of the specific
criteria of Section 2(11) to other employees. Thus, it is irrel-
evant to the issue of supervisory status that a charge nurse
may exercise independent judgment when deciding that a
doctor should be called, a patient be sent to a hospital, or
the police be called to investigate a possible unlawful entry
into the facility.
Based on the foregoing, I am compelled to conclude that
the LPNs’ role in assigning and directing the work of the
CNAs falls short of establishing that they responsibly direct
the work of those aides with the exercise of independent
judgment. Clearly, no independent judgment is required to
determine that a patient’s clothing or bed linens are wet and
in need of changing or that a patient should be turned in the
bed pursuant to a posted schedule. No independent judgment
is involved in the instruction to an aide to don a mask, or
double glove, to avoid contagion from a patient diagnosed to
have a contagious disease. This is the kind of direction
which comprises most of the charge nurses’ role with respect
to the aides. It is also the kind of direction which is akin to
that given by a more skilled craftsperson to one of lesser
skill, or by a fully qualified worker to her helper. It derives
from the higher levels of skill and is not necessarily indic-
ative of supervisory authority. Adco Electric, supra at 1120;
NLRB v. Southern Bleachery, 257 F.2d, 235, 239 (4th Cir.
1958); Chicago Metallic Corp., 273 NLRB 1677, 1689
(1985); and United States Gypsum Co., 118 NLRB 20, 30
(1957).
5. Authority to reward, promote, discipline, or
discharge aides
The authority of the charge nurses to reward, promote, dis-
cipline, or discharge the CNAs is limited. The CNAs are
evaluated at the conclusion of their probationary periods and
annually thereafter. Those evaluations are conducted by
Dillhoff and Shelton. Respondent’s written policies give no
role to the charge nurses in that evaluation procedure.
Shelton claimed that she sometimes sought input about a
CNA from either the charge nurse or from other employees;
her evaluation might change based on a charge nurse’s eval-
uation, she stated.
Mays testified that, while she is not required to do so, she
might tell either Troxell or Dillhoff if she felt that a CNA
was doing a particularly good job. If that aide was not per-
forming properly, Mays said, she would ask the aide if she
was having a problem that day. Mays has not had a situation
where an aide continually failed to do her job. If such a situ-
ation arose, she would report it to Miss Ruby, Mays said. If
this failed to achieve the necessary improvement, she would
then talk to the director of nursing.
There are instances when a charge nurse will report or
write up an aide. All instances of patient abuse are reported
by anyone who observes them, as required by state law and
the Employer’s policy. The record also contains some exam-
ples of written employee counseling or disciplinary reports.
Thus, on April 17, 1988, LPN M. Williams issued a writ-
ten warning to an aide for failing to obey orders respecting
the use of the telephone. On March 23, 1991, LPN Hollings-
worth issued a written warning to an aide who refused her
order to clean a bedside commode. On October 11, 1991, an
RN charge nurse wrote an employee counseling form on an
aide who had failed to follow her instructions and had been
‘‘disrespectful . . . with charge nurse’’ by arguing with her
over what work she was supposed to do. That counseling
form stated that the nurse had told the aide to clock out and
leave the facility. The employee ignored this order and the
nurse had to secure the assistance of Miss Ruby to enforce
it. The record does not reflect what, if any, further discipline
was assigned for this conduct, which was insubordination if
the charge nurse is the CNA’s supervisor.5 On March 10,
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
one would possess if it exists warrants that an adverse inference be
drawn to the effect that no such evidence does exist. J. Huizinga
Cartage Co., 298 NLRB 965, 970 (1990).
6 The record also contains warnings or records of counseling
signed by Troxell, who was the nursing systems manager and an ad-
mitted supervisor, in addition to being an LPN, and by Shelton, who
was an LPN and director of nursing administration. One counseling
form, dated August 10, 1992, issued by Troxell, was signed by Miss
Ruby, as ‘‘tech sup.’’ after the director of nursing spoke with the
aide and established a routine whereby Miss Ruby would give her
instructions on the importance of making her rounds.
1992, RN Kathy Skidmore issued a counseling form to an
aide for excessively watching TV and failing to attend to his
duties. A plan of action, instructing the employee to watch
TV only on his breaks and to follow the routine listed on
the schedule, was written out on an informal notepad and
signed by the employee. That same employee and another
aide were issued counseling forms or verbal warnings by
LPN Valerie Evans on October 13, 1992, for interfering with
each other’s work. Those writeups resulted in Shelton dis-
cussing the problem with the employees and issuing them
written warnings. Similarly, on December 4, 1992, Shelton
counseled an aide about his work performance after two
charge nurses, Faye McIntosh and Lynn Troxell, reported
that he was failing to attend to his scheduled duties.6
Other than as described above, the record does not reflect
what effect the charge nurses’ counseling forms or warnings
had on the wages, tenure, or other conditions of the aides’
employment. Shelton testified that she is the one who issues
employee discipline, although she claimed in general terms
that a charge nurse could do so as well.
In several instances, employees impaired by substance
abuse have been sent home by a charge nurse. In one in-
stance, Mays observed an aide in an apparent state of intoxi-
cation. She reported it to Fette, Fette spoke with the em-
ployee and told him that it would be better if he went home.
Fette then drove him home. In another instance, an aide sent
home for the day for the same reason by Charge Nurse Ruby
A. Jenkins was apparently not given any further discipline.
Nothing in any of the above rises to the level required to
establish supervisory status. The charge nurses have no great-
er role in the evaluation of the aides than does any other em-
ployee, including other aides. They may be asked about an
aide’s performance but are not given any express role in the
evaluation process. In several recent cases where the charge
nurses had significantly greater roles with respect to evalua-
tions, the Board nonetheless found supervisory status to be
absent. In Phelps Community Medical Center, supra, the di-
rector of nursing delegated some of the evaluations of day
shift aides to the LPNs and had the evening and night-shift
LPNs fill out evaluations on the aides who worked with
them. Those evaluations rated the aides in various aspects of
their performance and, in some cases, indicated whether the
LPN recommended continued employment. The Board, not-
ing that, as here, there was no evidence as to the weight or
effect of such recommendations and evaluations, held that
their role in those evaluations did not establish that they pos-
sessed or exercised supervisory authority. It noted that ‘‘[t]he
authority simply to evaluate employees without more is in-
sufficient to find supervisory status,’’ citing Passavant
Health Center, 284 NLRB 887, 891 (1987), and Geriatrics,
Inc., 239 NLRB 287 (1978). See also Waverly-Cedar Falls
Health Care, supra, and Ohio Masonic Home, supra, where
the LPNs evaluated both probationary and nonprobationary
employees, assessing their performance on a number of job-
related categories. Those evaluations, however, did not rec-
ommend any personnel action and there was no showing that
any employee’s job status had been affected by such an eval-
uation. The same result applies in the industrial setting from
such limited authority to evaluate employees, where those
evaluations do not constitute effective recommendations for
promotions, wage increases, or discipline. Somerset Welding
& Steel, 291 NLRB 913, 914 (1988).
Similarly, the role of the charge nurses in issuing verbal
and written warnings or counseling forms, which go into an
employee’s personnel file but do not independently result in
any adverse action, does not evidence supervisory status. In
Ohio Masonic Home, supra, the authority of the charge
nurses to issue warnings was similar to the authority of Re-
spondent’s charge nurses, as was the effect of those warn-
ings. The Board stated that ‘‘[t]he mere authority to issue
verbal reprimands of the kind involved here is too minor a
disciplinary function to constitute supervisory authority
. . . . Likewise, the mere factual reporting of oral rep-
rimands and the issuing of written warnings that do not auto-
matically affect job status or tenure do not constitute super-
visory authority.’’
In both Ohio Masonic Home and Phelps, the charge nurses
had limited authority to clock an aide out when that aide’s
continued presence posed a danger to the patients either be-
cause of his or her refusal to obey patient care instructions
or because of substance abuse related impairment. In both
cases, the Board held that the limited exercise of such au-
thority, particularly when it is limited to ‘‘flagrant
violation[s] of common working conditions, such as being
drunk, is insufficient by itself to establish supervisory sta-
tus.’’ The authority of Respondent’s charge nurses to send an
aide home was no greater than that of the LPNs in the cited
cases. Moreover, the evidence indicates that such authority
was not always exercised independently and without ref-
erence to higher authority.
Walter has rewarded the CNAs on her floor and shift by
buying pizza for everyone, at her own expense. As Respond-
ent correctly noted in its supplemental brief, I accord her
personal generosity no weight in determining supervisory sta-
tus. Such thoughtful gestures, common in offices, plants, and
other work settings between higher level workers and those
who function as support staff, neither required, suggested,
nor underwritten by the Employer, can hardly be said to be
a reward ‘‘in the interest of the employer.’’
6. Other factors
As noted above, the charge nurses wear somewhat dif-
ferent clothing from the CNAs. They are more highly paid
although all are paid on an hourly basis.
The charge nurse job description places the responsibility
for the nursing care of all patients on an assigned unit on
the charge nurse. It also provides that the charge nurse is
‘‘[r]esponsible for supervision of all nursing personnel . . .
checking that their jobs are done.’’ It further provides that
the charge nurse ‘‘[a]ttempts to solve minor employee prob-
lems, refers problems with nursing technicians [CNAs] to
their immediate supervisor first, and to the Director of Nurs-
ing if necessary.’’ Under that job description, the ‘‘primary
381WASHINGTON NURSING HOME
7 Contrary to the assertion in Respondent’s supplemental brief, it
is immaterial that it is state law which requires that a registered
nurse be on duty or on call at all times. The issue is not why an
RN is available to the charge nurses but whether, in fact, one is.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
charge nurse’’ is in charge of the facility in the absence of
the director of nursing and acts ‘‘as supervisor of all LPNs
in patient care emergency situations.’’ Walter credibly testi-
fied that she had never heard of the title ‘‘primary charge
nurse.’’ Respondent’s policies do not define who is the ‘‘pri-
mary charge nurse’’ and that does not appear to be a des-
ignation in actual usage in the nursing home. In at least one
instance, Mays called the police when there was a suspected
break-in. There was no evidence of grievance adjustment by
the charge nurses other than possibly separating two aides
who might be experiencing difficulties working together.
The managerial hierarchy is present at the nursing home
during the first shift, with some of them coming in before
that shift begins or staying several hours into the second
shift. For most of the hours of the second and third shifts,
the most senior persons present at the facility are the charge
nurses. However, an RN, either the director of nursing or an-
other, is either on duty or on call at all times.7
There is nothing in these additional factors which warrants
a contrary conclusion with respect to the supervisory status
of the charge nurses. Neither a distinction in their dress nor
a higher rate of pay necessarily indicates supervisory status.
That someone may have the title of supervisor, or have theo-
retical authority which is not actually exercised, is insuffi-
cient to establish that one is a statutory supervisor. Adco
Electric, 307 NLRB 1113, 1120 (1992), and cases cited
there. See also Federal Compress & Warehouse Co. v.
NLRB, 398 F.2d 631, 634 (6th Cir. 1968).
The fact that the charge nurses are the highest ranking in-
dividuals on site during most of the second and third shifts
is some indication as to the likelihood of supervisory status.
It is negated, however, by the fact that Respondent’s policy
manuals give detailed instructions covering most situations.
Moreover, during those primarily quiet hours, admitted su-
pervisors are on call and immediately available by telephone.
Waverly-Cedar Falls Health Care, supra, and Phelps Com-
munity Medical Center, supra. It cannot support a finding of
such status where the statutory indicia are lacking. As the
Board has recently stated: ‘‘[T]he Act does not state or fairly
imply that the highest ranking employee on a shift is nec-
essarily a supervisor.’’ Northcrest Nursing Home, 313 NLRB
491, 499 (1993).
In agreeing to the terms of an election among Respond-
ent’s employees, the Union acceded to the Employer’s posi-
tion and excluded the LPNs from the bargaining unit. This
agreement does not give the charge nurses attributes of su-
pervisory status which they do not otherwise possess and is
entitled to little weight.
C. Conclusion8
Having fully reconsidered the matter in light of Health
Care and the entire record, including the supplemental briefs
filed by Respondent and the General Counsel, I must adhere
to my original conclusion that Respondent’s charge nurses
are employees, lacking any of the attributes of Section 2(11)
of the Act. In particular, I find that they do not exercise
independent judgment in responsibly directing the work of
the CNAs. Having reached the same conclusion on remand
with respect to this supervisory issue, no change in my initial
findings of fact and conclusions of law with respect to the
other issues is warranted or required. I adhere to those find-
ings of fact and conclusions of law and incorporate them by
reference in this supplemental decision.