Lynwood Manor

National Labor Relations Board - Board Decisions

Jul 31, 2007

350 N.L.R.B. 489 (N.L.R.B. 2007)

LYNWOOD MANOR
350 NLRB No. 44
489
I.H.S. Acquisition No. 114, Inc. d/b/a Lynwood
Manor and Local 79, Service Employees Inter-
national Union. Case 7–CA–49482
July 31, 2007
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Board’s unit determination in the
underlying representation proceeding. Pursuant to a
charge filed on May 1, 2006, the General Counsel issued
the complaint on October 31, 2006, alleging that the Re-
spondent has violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with, and withdrawing its recogni-
tion of, the Union as the exclusive collective-bargaining
representative of the employees in the unit following the
Respondent’s filing of the unit clarification petition in
Case 7–UC–597. (Official notice is taken of the “record”
in the representation proceeding as defined in the
Board’s Rules and Regulations, Secs. 102.68 and
102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations in the complaint.
On November 30, 2006, the General Counsel filed a
Motion for Summary Judgment. On December 4, 2006,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response,
a cross-motion to dismiss, and a brief in opposition to the
General Counsel’s motion and in support of its cross-
motion. The General Counsel filed a brief in answer to
the Respondent’s response and in opposition to the Re-
spondent’s cross-motion. The Respondent filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent argues that it is pursuing legal action
to vindicate its position, raised and rejected by the Board
in the representation proceeding in Case 7–UC–597, that
the registered nurses (RNs) and licensed practical nurses
(LPNs) in the unit are supervisors, and that it therefore
has no duty to bargain.
The Respondent filed the unit clarification petition in
the underlying matter on April 12, 2006. On June 16,
2006, the Regional Director issued a Decision and Order
denying the Respondent’s request to clarify the bargain-
ing unit by excluding the RN and LPN staff nurses, and
dismissing the petition in Case 7–UC–597. The Respon-
dent filed a request for review, and on September 6,
2006, the Board issued an Order denying the request,
finding that it raised no substantial issues warranting
review.
The Respondent contends that the Board’s decisions in
Oakwood Healthcare, Inc., 348 NLRB 686 (2006), and
Golden Crest Healthcare Center, 348 NLRB 727 (2006),
which issued shortly after the Board’s denial of review in
the representation proceeding, create special circum-
stances warranting reexamination of the Board’s affir-
mance of the Regional Director’s Decision and Order. In
Oakwood Healthcare and Golden Crest, the Board ad-
dressed the meaning of “assign,” “responsibly to direct,”
and “independent judgment,” as those terms are used in
Section 2(11) of the Act. The Respondent maintains that
the decision in Case 7–UC–597 is inconsistent with the
“new framework” for determining supervisory status that
was articulated in those cases. The Respondent argues
that the RNs and LPNs at issue here are supervisors be-
cause they have the authority “responsibly to direct” the
certified nurse aides (CNAs) in the performance of their
duties, and that the RNs and LPNs assign work to aides
through the exercise of independent judgment.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence. With respect to the Respondent’s
contention that the Board’s decisions in Oakwood
Healthcare and Golden Crest constitute special circum-
stances, we find, for the reasons set forth below, that the
record in the underlying representation proceeding sup-
ports the determination that the Respondent has not met
its burden of establishing that the RNs and LPNs are su-
pervisors under the standards articulated in those cases.
Assignment of CNAs
In Oakwood Healthcare, supra, the Board interpreted
the term “assign” as referring to “the act of designating
an employee to a place (such as a location, department,
or wing), appointing an employee to a time (such as a
shift or overtime period), or giving significant overall
duties, i.e., tasks, to an employee.” 348 NLRB 686, 689.
In the instant case, the record establishes that the nurses
at issue have the authority to assign the CNAs to perform
certain duties. A nurse writes in the name of the CNA
who is to perform the pre-assigned duties on the master
schedule, which includes wing and unit assignments.
The nurse may add routine assignments to the pre-printed
assignment sheet based on resident needs and medical
conditions, such as bathing, feeding, ambulating, and
transporting. On occasion, a nurse may reassign a CNA
pursuant to the specific request of a patient. In addition,
the nurses may subsequently reassign the CNAs, re-
schedule breaks, or temporarily detail them to another
unit or wing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD490
Having found that the RNs and LPNs have the author-
ity to assign significant overall duties to the CNAs, we
must next consider whether the nurses exercise inde-
pendent judgment in making these assignments. Oak-
wood Healthcare, supra, slip op. at 10. We find that they
do not. “[T]o exercise ‘independent judgment’ an indi-
vidual must at a minimum act, or effectively recommend
action, free of the control of others and form an opinion
or evaluation by discerning and comparing data.” Id.,
slip op. at 8. In addition, “[t]he authority to effect an
assignment, for example, must be independent, it must
involve a judgment, and the judgment must involve a
degree of discretion that rises above the ‘routine or cleri-
cal.’” Id. (citations omitted).
Here, the Respondent maintains that the nurses use in-
dependent judgment because they must determine the
acuity needs of residents, which may be different from
shift to shift and day to day, and must determine changes
in the staffing schedule required by these differences,
weighing various factors to determine staff assignments
beyond merely equalizing the quantity of work. The
Respondent further asserts that under Federal law, it
must provide “sufficient nursing and related services to
attain or maintain the highest practicable physical, men-
tal and psychosocial well-being of each resident”1 and
that determination of sufficient staffing needs to meet
this requirement necessarily requires the exercise of in-
dependent judgment because staffing is not prescribed by
any regulation or management policy.
In support of its position, the Respondent refers to the
testimony in the record of an LPN who stated that she
had to determine staffing needs based on her assessment
of patient acuity, the oral report of the prior shifts, and
the 24-hour report. However, the Respondent adduced
little evidence regarding the factors weighed or balanced
by nurses in determining the staffing needs. Specifically,
the record fails to reveal any evidence that nurses “make
assignments that are both tailored to patient conditions
and needs and particular [CNA] skill sets, and a fair dis-
tribution based upon [an] assessment of the probable
amount of [CNA] time each assigned patient will require
on a given shift.” Oakwood Healthcare, supra, at 697.
The Board has held that purely conclusory evidence is
not sufficient to establish supervisory authority. Golden
Crest, supra at 731; Austal USA, L.L.C., 349 NLRB 561,
at fn. 6 (2006); Avante at Wilson, Inc., 348 NLRB 1056,
1056–1057 (2006). Thus, this conclusory testimony by
an LPN is not sufficient to establish that nurses exercise
independent judgment.

1 Citing 42 CFR Sec. 483.30.
In addition, the Respondent has not established that the
reassignment of a CNA from one nursing unit that is
overstaffed to another that is understaffed involves any-
thing more than the “mere equalization of workloads,”
which the Board has found does not require the exercise
of independent judgment. Oakwood Healthcare, supra,
at 693–694, 697. Further, there is no evidence that
would allow us to conclude that the nurses exercise
judgment that involves a degree of discretion that rises
above the “routine or clerical.” Croft Metals, Inc., 348
NLRB 717, 721 (2006). Accordingly, we find that the
nurses at issue do not exercise independent judgment in
the assignment of significant overall duties to the CNAs.
Responsible Direction of CNAs
In Oakwood Healthcare, the Board interpreted the
phrase “responsibly to direct” as follows: “If a person on
the shop floor has men under him, and if that person de-
cides what job shall be undertaken next or who shall do
it, that person is a supervisor, provided that the direction
is both ‘responsible’ (as explained below) and carried out
with independent judgment.” Oakwood Healthcare, su-
pra at 691 (internal quotations omitted). The Board then
held that for direction to be “responsible,” the person
directing the performance of a task must be accountable
for its performance. Id. at 691–692. Further, the Board
held that to establish accountability, “it must be shown
that the employer delegated to the putative supervisor the
authority to direct the work and the authority to take cor-
rective action, if necessary. It must also be shown that
there is a prospect of adverse consequences for the puta-
tive supervisor if he/she does not take these steps.” Id. at
7.
In the case before us, the Respondent has established
that the nurses at issue monitor the assignments given to
the CNAs, including correcting their work and initialing
the CNA assignment sheets as they complete their as-
signed tasks. Thus, we find that the nurses have the au-
thority to direct the work of the CNAs. The next ques-
tion is whether the Respondent has established that the
nurses are accountable for their actions in directing the
CNAs. Golden Crest, 348 NLRB 727, 731(2006).
The Respondent relies on the testimony of the Director
of Nursing that nurses are held accountable for the care
that the residents are given, and the testimony of an LPN
that nurses are held accountable for the care on their
floor and that “anything they [the aides] do wrong falls
back on my shoulders.”2 However, the Respondent fails
to refer to any specific evidence in the record, or proffer
to show any specific evidence, that nurses may be disci-

2 Respondent’s brief in opposition to the General Counsel’s Motion
for Summary Judgment, citing Tr. 188–189.
LYNWOOD MANOR 491
plined, receive a poor performance rating, or suffer any
adverse consequences with respect to their terms and
conditions of employment due to a failure in a CNA’s
performance of these routine functions. Thus, the Re-
spondent has not established that the nurses face “a pros-
pect of adverse consequences” and thus are held ac-
countable for their actions in directing CNAs. Golden
Crest, supra at 731, quoting Oakwood Healthcare, supra,
at 692. Accordingly, we find that the Respondent’s
nurses do not possess the authority to responsibly direct
the CNAs.3
CONCLUSION
For all of the above reasons, we find that the Respon-
dent has not raised any representation issue that is prop-
erly litigable in this unfair labor practice proceeding. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162
(1941). Accordingly, we grant the Motion for Summary
Judgment.4
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with a facility in Adrian, Michigan, has been engaged in
the operation of a skilled care nursing home. During
calendar year 2005, the Respondent, in conducting its
operations described above, derived gross revenues in
excess of $250,000 and purchased and received at its
Adrian facility goods and materials valued in excess of
$50,000 directly from points located outside the State of
Michigan. We find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and has been a health care institution
within the meaning of Section 2(14) of the Act, and that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following a representation election, the Union was
certified on October 6, 1997, as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
All full-time and regular part-time registered nurses and
licensed practical nurses employed by Respondent at its
facility located at 730 Kimole Lane, Adrian, Michigan;
but excluding professional employees, MDS Coordina-
tors, Case Managers, Restorative-Rehabilitation em-

3 Accordingly, because we find that the nurses do not “responsibly”
direct the CNAs, it is unnecessary to address the issue of whether they
exercise independent judgment. See Golden Crest, supra at 732, fn. 14.
4 The Respondent’s cross-motion to dismiss is therefore denied.
ployees, confidential employees, office clerical em-
ployees, guards, nursing assistants, housekeeping em-
ployees, laundry employees, dietary employees, cooks,
maintenance helpers and supervisors as defined in the
Act, and all other employees.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
On about February 2, 2006, the Union, by letter, re-
quested the Respondent to bargain, and, since April 28,
2006, the Respondent, by its agent Susan Stoddard, has
refused to do so, and has withdrawn its recognition of the
Union as the exclusive collective-bargaining representa-
tive of the unit. We find that this refusal constitutes an
unlawful withdrawal of recognition and refusal to bar-
gain in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after April 28, 2006, to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, and withdrawing its recognition of the Union as the
exclusive collective-bargaining representative of the em-
ployees in the unit, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.5
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to recognize and bargain on request with the Un-
ion, and, if an understanding is reached, to embody the
understanding in a signed agreement.
ORDER
The National Labor Relations Board orders that the
Respondent, I.H.S. Acquisition No. 114, Inc. d/b/a Lyn-
wood Manor, Adrian, Michigan, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from

5 The Respondent denies the complaint allegations that it has failed
and refused to bargain with the Union, and that it has withdrawn recog-
nition from the Union. We find that the Respondent’s denials do not
raise an issue warranting a hearing in this proceeding. The Respondent
admits that the Union has requested bargaining, and the Respondent
does not contend that it has offered or agreed to meet and bargain with
the Union since April 28, 2006. Rather, it is clear from the Respon-
dent’s submissions that it is in fact refusing to bargain with the Union
in order to obtain Board reconsideration or court review of the Board’s
determination that its RNs and the LPNs are not supervisors within the
meaning of Sec. 2(11).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD492
(a) Refusing to recognize and bargain with Local 79,
Service Employees International Union, as the exclusive
bargaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing 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) On request, recognize and bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit on terms and conditions of
employment, and if an understanding is reached, embody
the understanding in a signed agreement:
All full-time and regular part-time registered nurses and
licensed practical nurses employed by Respondent at its
facility located at 730 Kimole Lane, Adrian, Michigan;
but excluding professional employees, MDS Coordina-
tors, Case Managers, Restorative-Rehabilitation em-
ployees, confidential employees, office clerical em-
ployees, guards, nursing assistants, housekeeping em-
ployees, laundry employees, dietary employees, cooks,
maintenance helpers and supervisors as defined in the
Act, and all other employees.
(b) Within 14 days after service by the Region, post at
its facility in Adrian, Michigan, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 28, 2006.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted ByOrder of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to recognize and bargain with Lo-
cal 79, Service Employees International Union, as the
exclusive representative of the employees in the bargain-
ing unit.
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, on request, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the following bargaining unit:
All full-time and regular part-time registered nurses and
licensed practical nurses employed by us at our facility
located at 730 Kimole Lane, Adrian, Michigan; but ex-
cluding professional employees, MDS Coordinators,
Case Managers, Restorative-Rehabilitation employees,
confidential employees, office clerical employees,
guards, nursing assistants, housekeeping employees,
laundry employees, dietary employees, cooks, mainte-
nance helpers and supervisors as defined in the Act,
and all other employees.
I.H.S. ACQUISITION NO. 114, INC. D/B/A
LYNWOOD MANOR