Bloomsburg Care And Rehabilitation Center

National Labor Relations Board - Unpublished Board Decisions

Dec 3, 2019

06-RC-241173 (N.L.R.B. Dec. 3, 2019)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BLOOMSBURG CARE AND REHABILITATION CENTER
Employer
and Case 06-RC-241173
RETAIL WHOLESALE AND DEPARTMENT STORE UNION (RWDSU)
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

1 We observe that the same result would obtain under the standards employed by the United
States Court of Appeals for the Third Circuit. See NLRB v. New Vista Nursing & Rehabilitation,
870 F.3d 113, 130-136 (3d Cir. 2017); see also NLRB v. Attleboro Associates, 176 F.3d
154, 164-166 (3d Cir. 1999). In the disciplinary context, the Third Circuit “recognize[s] three
facts that together may show an employee is a statutory supervisor: (1) the employee has the
discretion to take different actions, including verbally counseling the misbehaving employee
or taking more formal action . . . ; (2) the employee’s actions ‘initiate’ the disciplinary process
. . . ; and (3) the employee’s action functions like discipline because it increases severity of the
consequences of a future rule violation . . . .” New Vista, supra at 132 (internal citations
omitted). Here, although the evidence suggests that the LPNs’ actions meet the first part of the
Third Circuit test, we find that the Employer has not demonstrated that their actions meet the
second and third parts of the test. The Employer has failed to establish that the LPNs “initiate” a
progressive discipline process because—even setting aside the conflicting testimony regarding
whether LPNs possess the authority to issue disciplinary warnings—under its written
disciplinary policy (as set forth in its Employee Manual and described in its training handout),
the disciplinary notices in evidence do not follow any defined progression. The Employer also
has not demonstrated that the LPNs’ involvement with disciplinary notices “increases severity of
the consequences of a future rule violation” because there is no evidence that a disciplinary
notice initiated at the discretion of an LPN was used to increase the severity of discipline for a
subsequent infraction, and none of the disciplinary notices in evidence refer to earlier notices or
even indicate whether any discipline was actually later imposed. See Coral Harbor
Rehabilitation and Nursing Center, 366 NLRB No. 75, slip op. at 2, fn. 6 (2018). Finally, there
is no evidence of an LPN actually recommending discipline in a warning form and thus the
Employer has not shown that these forms function as effective recommendations for future
discipline upon future infractions even without the existence of a progressive discipline system.
We agree that the Employer’s LPNs are not supervisors. We note, however, that the
concerns articulated by the Third Circuit regarding the Board’s test for whether putative
supervisors may effectively recommend discipline warrant careful consideration, and we would
be open to reconsidering extant Board law on this topic in a future appropriate case.
2
JOHN F. RING, CHAIRMAN
MARVIN E. KAPLAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., December 3, 2019.