Westport Health Care Center

National Labor Relations Board - Board Decisions

Feb 12, 2014

01-RC-114507 (N.L.R.B. Feb. 12, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
1 BURR ROAD OPERATING COMPANY
II, LLC d/b/a WESTPORT HEALTH CARE CENTER
Employer
and Case 01-RC-114507
NEW ENGLAND HEALTH CARE
EMPLOYEES UNION, DISTRICT 1199,
SERVICE EMPLOYEES INTERNATIONAL UNION
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Decision and Direction of
Election is denied as it raises no substantial issues warranting review.1 The Employer’s request
for a stay of election is denied as moot.
MARK GASTON PEARCE, CHAIRMAN
PHILIP A. MISCIMARRA, MEMBER
NANCY SCHIFFER, MEMBER
Dated, Washington, D.C., February 12 , 2014

1 The Regional Director rejected the Employer’s argument that its charge nurses are supervisors
because they responsibly direct certified nursing assistants (CNAs). In making that finding, the
Regional Director declined to rely on evidence of four verbal warnings the Employer issued to
charge nurses, assertedly based on the conduct of subordinate CNAs, because those disciplinary
actions were taken after the Union demanded recognition and filed the representation petition in
this case. We do not pass on the weight, if any, to be given those warnings because, even if
considered, they do not show that the charge nurses are held accountable for the CNAs’
performance. See Golden Crest Healthcare Center, 348 NLRB 727, 731 (2006). Nor does the
record establish that the charge nurses exercise independent judgment in directing the CNAs.
See Croft Metals, 348 NLRB 717, 722 (2006).
Member Miscimarra agrees with his colleagues that the Employer failed to prove that the
charge nurses exercise independent judgment when directing the CNAs. Consequently, Member
Miscimarra finds it unnecessary to pass on whether the Employer demonstrated that the charge
nurses are held accountable for their direction of the CNAs. Additionally, Member Miscimarra
finds that the record fails to show that charge nurses exercise independent judgment when orally
warning and/or counseling CNAs, and consequently he finds it unnecessary to pass on whether
the Employer otherwise failed to establish disciplinary authority under Sec. 2(11) of the Act.