Ten Broeck Commons

National Labor Relations Board - Board Decisions

Feb 2, 1996

320 N.L.R.B. 806 (N.L.R.B. 1996)

806
320 NLRB No. 65
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer’s name has been amended in accordance with the
stipulation of the parties at the hearing.
2 Providence subsequently issued at 320 NLRB 717 (1996).
3 The Chamber of Commerce of the United States; New Jersey
Hospital Association; American Federation of Labor and Congress of
Industrial Organizations, et al.; Labor Policy Association; American
Nurses Association; Council on Labor Law Equality; Service Em-
ployees International Union, AFL–CIO, CLC; American Health Care
Association; Local 1199, National Health and Human Service Em-
ployees Union; American Hospital Association; the Union of Amer-
ican Physicians and Dentists; and the General Counsel of the Na-
tional Labor Relations Board.
4 At the hearing, the Employer refused to stipulate that the Peti-
tioner is a labor organization within the meaning of Sec. 2(5) of the
Act. It is clear from the record evidence, however, that the Petitioner
exists for the purpose of dealing with employers concerning em-
ployee wages, hours, and other conditions of employment and that
employees participate by electing officers, shop stewards, negotiating
committees, and ratifying collective-bargaining agreements.
The Employer does not contest these facts. Instead, it relies on a
decision by the Public Employment Relations Board of the State of
New York in Case Nos. C-4165, et cet., dated May 31, 1994, in-
volving the labor organization status of United Public Service Em-
ployees Union Local 424, a Division of United Industry Workers
District Council 424. In that case, the intervenors contended that
Local 424 could not fulfill its obligations as a collective-bargaining
representative because its constitution and that of District Council
424 gave District Council 424 control over contract negotiations, ad-
ministration, and enforcement. Local 424 alleged that both constitu-
tions had been amended and the case was remanded for further in-
vestigation.
That decision is not pertinent to the issue of the Petitioner’s labor
organization status here; the Petitioner was not a party in that case
and thus its status was not litigated. In any event, although the Peti-
tioner and United Public Service Employees Union Local 424 are
both subdivisions of United Industry Workers District Council Local
424, the record evidence in this case shows that the Petitioner is
governed by its own constitution and bylaws. In addition, there is
no evidence in the record before us that District Council 424 con-
trols the Petitioner’s collective-bargaining activities. Accordingly, we
find the Petitioner to be a labor organization under Sec. 2(5) of the
Act.
5 Local 200-D, Service Employees International Union, AFL–CIO
initially intervened in this proceeding on the basis of a showing of
interest. At the close of the hearing, however, Local 200-D requested
by letter of July 25, 1994, that it be permitted to withdraw from the
proceeding. The request is granted.
Nymed, Inc., d/b/a Ten Broeck Commons1 and
United Industry Workers Local 424, a Division
of United Industry Workers District Council
424, Petitioner. Case 3–RC–10166
February 2, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Upon a petition for election filed under Section 9(c)
of the National Labor Relations Act, a hearing was
held on July 22 and 25, 1994, before a duly designated
hearing officer of the National Labor Relations Board.
On August 5, 1994, pursuant to Section 102.67 of the
Board’s Rules and Regulations, the case was trans-
ferred to the Board for decision.
On October 28, 1994, the Board held oral argument
in this case and Providence Hospital,2 in which the
Board directed the parties to address the impact of the
Supreme Court’s recent decision in NLRB v. Health
Care & Retirement Corp., 114 S.Ct. 1778 (1994), on
the determination of supervisory status under Section
2(11) of the Act. All parties in both cases as well as
numerous amici curiae3 presented oral arguments
and/or filed preargument briefs.
Having carefully reviewed the entire record in this
proceeding, including the posthearing briefs filed by
both parties and the testimony at oral argument, the
Board makes the following findings:
1. The hearing officer’s rulings made at the hearing
are free from prejudicial error and are affirmed.
2. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction.
3. The labor organization involved claims to rep-
resent certain employees of the Employer.4
4. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
5. Nymed, Inc., d/b/a Ten Broeck Commons (the
Employer) operates a state-licensed nursing-home fa-
cility in Lake Katrine, New York. The Petitioner seeks
to represent a unit of approximately 45 licensed prac-
tical nurses (LPNs) employed at this facility.5 The Em-
ployer contends that the petitioned-for LPNs are super-
visors within the meaning of Section 2(11) of the Act
as they have the authority to assign and responsibly di-
rect, discipline, evaluate, and transfer other employees,
or effectively to recommend such action, and therefore
the petition should be dismissed. Having considered
the record facts as set forth below and the relevant
legal precedent, including the Supreme Court’s deci-
sion in Health Care & Retirement, we find that the
LPNs are not statutory supervisors.
I. FACTS
The Employer’s nursing home provides residential,
nursing, housekeeping, and dietary services to approxi-
mately 240 residents. It is located in a single story
building which is divided into six wings or units (three
on each side) which are joined in the middle by var-
ious common areas such as the dining room, kitchen,
and administrative offices. The 6 units—Ashroken,
Brinck, Catskill, Dewitt, Esopus, and Foxhall—house
40 residents each.
The nursing services department is one of approxi-
mately eight departments under the Employer’s admin-
istrator. The nursing department consists primarily of
the director of nursing (DON), the assistant director of
nursing (ADON), staff development, registered nurses
(RNs), LPNs, and certified nursing assistants (CNAs).
807TEN BROECK COMMONS
The facility operates on a 24-hour, 7-day-a-week,
three-shift basis. The day shift runs from 6:45 a.m. to
3:15 p.m.; the evening shift, 2:45 p.m. to 11:30 p.m.;
and the night shift, 11:15 p.m. to 7:30 a.m. On the day
shift, both the DON and the ADON are present in the
facility as well as two RN nursing supervisors, who
each have overall responsibility for three units. In ad-
dition, on each of the units there is one unit manager
who is also an RN, two LPNs, and four to five CNAs.
On the evening shift, although there are no unit man-
agers on duty, there are again two RN nursing super-
visors in the facility as well as one to two LPNs, and
three to four CNAs on each unit. The night shift is
similar. There are one to two RN nursing supervisors
present in the facility along with one LPN per unit and
two to three CNAs on each unit.
The RN unit manager is responsible for overseeing
the entire unit and the staff assigned to that unit. In
particular, the manager is responsible for the overall
long-term care of the residents and for seeing that such
care is properly performed and documented on all
three shifts. After attending a morning report meeting
in which the day’s activities are discussed, the unit
manager spends the rest of the day in the unit perform-
ing a variety of functions. Approximately one-half of
each day is spent doing paperwork in the conference
room located approximately 50 feet from the nursing
station. The rest of the time, the unit manager is on
the floor at the nursing station. At all times, the unit
manager is available to all staff persons, including
LPNs and CNAs, who have questions or need assist-
ance. In addition, the unit manager spends about an
hour a day checking on each individual patient by
doing rounds—once in the morning and then again
later in the day.
Although there are no unit managers at the facility
on the evening and night shifts, there are normally two
RN nursing supervisors on duty. These RNs make clin-
ical rounds of the patients, check on those patients
who are ill, and consult with the LPNs as to the condi-
tion of patients on their units. They also give medical
advice to LPNs when needed and deal with medical
emergencies including transferring patients to the hos-
pital if necessary. In addition, their duties include
checking to be sure there is adequate staff present, and
if not, calling off duty personnel for volunteers or call-
ing personnel assigned to the next shift to see if they
can come in early.
Overall staffing is handled by the staff coordinator.
If a CNA is unable to come to work as scheduled, the
coordinator is responsible for finding a replacement.
Similarly, requests by CNAs for vacations, time off, or
overtime are also handled by the staff coordinator.
RNs earn approximately $17 per hour; LPNs ap-
proximately $11 with a 50-cent-per-hour differential
for evening and night shifts; and CNAs earn from $6
to $8 per hour. All three receive the same benefits.
An LPN may function as a charge nurse, treatment
nurse, or a medication nurse. Typically, one LPN
serves as a combination charge nurse and treatment
nurse; the other as a medication nurse. LPNs take turns
performing these functions, deciding among themselves
which tasks each will perform that day or leaving it up
to the unit manager to decide.
The duties of the LPN charge nurse include over-
seeing the CNAs, making rounds to be sure that the
residents are being properly cared for, consulting with
the physician, ordering medications from the pharmacy
as instructed by the doctor, picking up orders, filling
out charts, and updating patient information. As the
charge nurse is also the treatment nurse, the LPN serv-
ing as charge nurse would also perform whatever med-
ical treatments the residents need.
When serving as a medication nurse, the LPN gen-
erally performs that function for the entire 8-hour shift.
This LPN is responsible for giving medication to all
residents in the unit at whatever hours are specified for
the resident to receive the medication. The medication
nurse is also charged with the responsibility to prop-
erly administer and document each patient’s medica-
tions.
When a resident is initially admitted, a long-term
care plan is filled out by an RN, or by the LPN on
duty who then must have the plan reviewed and ap-
proved by an RN. The plan details the resident’s re-
quirements in such areas as bathing supervision; the
need for hearing aides, dentures, or eyeglasses; the
proper bed positions and when the patient is to be
turned; toileting requirements; and mobility level. The
plan is subsequently changed as the needs of the resi-
dent change.
The residents in each unit are divided into three,
four, or five established groups called ‘‘runs.’’ The
number of runs depends on the number of CNAs on
duty. The unit manager determines which residents
should be grouped together on the day shift; the LPNs
determine the runs on the evening and night shifts. If
there is a disagreement on the placement of a particu-
lar patient in a run, the nursing supervisor on the
evening and night shifts will review the problem and
decide the placement. The makeup of the run changes
only when residents die or new residents are admitted.
CNAs are responsible for attending to the daily
needs of the residents. Such duties include assisting
residents in getting in and out of bed; properly posi-
tioning the residents in bed; placing residents in chairs;
bathing, dressing, and feeding the residents, and taking
care of the residents’ toileting. When the day-shift
CNAs arrive at work, typically they make rounds of
the patients on their run, checking their condition and
where they are in the morning routine, i.e., out of bed,
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
eating, or dressing. The CNA knows the precise needs
of each resident by consulting the long-term care plan
for each resident which is kept in a book referred to
as the Aidex. The CNAs follow the plan throughout
the day and initial each task they perform for the resi-
dent, such as toileting every 2 hours. When LPNs
make their patient rounds, they check to see that the
CNAs have carried out the duties described in each
resident’s long-term care plan.
When CNAs are first hired, they are given in-house
orientation. Two days are spent in the classroom and
the remaining three on the unit during the day shift to
get a feel for the routine. CNAs must also complete
an orientation skills checklist. Each CNA is required to
satisfactorily demonstrate proper performance and un-
derstanding of each listed skill such as feeding, bath-
ing, positioning, and transporting residents; disposing
of trash and infectious waste; operating various me-
chanical devices such as lifting equipment, hydrotubs,
and wheelchairs; and obtaining lab specimens. An RN
or an LPN initials and dates each skill as it is per-
formed. The checklist is kept on the unit until all skills
have been checked off. The form, when completed, is
signed by the staff development coordinator.
LPNs are also responsible for assigning each CNA
to a run. Such assignments are made on a monthly
basis to provide continuity. At the end of the month,
the CNAs are switched so that each CNA rotates to a
different run each month. In making such assignments,
LPN Carol Farrell testified that she considers the per-
sonalities of the CNA and the resident and what skills
each CNA is strongest in. When a regularly scheduled
CNA is absent, another CNA from a different unit—
a float CNA—is sometimes asked to fill in. In these
cases, the LPN can make adjustments to the runs by
splitting a run or assigning the less difficult residents
to the float CNA. Usually, however, runs remain the
same. Basically, all CNAs perform the same duties and
consequently, every CNA can substitute for another. If
a CNA unexpectedly does not show up for work and
no substitute can be found, the established three- or
four-run grouping is used rather than the four or five
runs.
LPNs also fill out a daily assignment sheet by indi-
cating which CNA will perform one or more of the
‘‘extra duties’’: cleaning either the dining room, the
kitchen, the utility rooms, or the tub rooms; passing
out nourishments to the patients, usually twice a day
on the day shift; taking the patients’ TPR (temperature,
pulse, and respiration) and blood pressure; monitoring
the Aidex (making sure the CNAs have initialed every-
thing done for the patient that day); or filling water
pitchers. Generally, the LPNs assign these duties on a
rotational basis so that the CNAs are not performing
the same job each day. LPNs also try to accommodate
the personal preferences of the CNAs.
LPNs also indicate on the daily assignment sheet
which CNAs get the first lunch and break periods and
which go to the second lunch and breaks. The LPNs
usually change these assignments every day so the
CNAs do not have the same lunch or break periods
day after day. LPNs also consider the expressed pref-
erences of the CNAs for one or another particular
breaktime; for example, CNAs who smoke often like
to take their breaks together.
LPNs have the authority to give CNAs oral warn-
ings for initial infractions. If the misconduct continues,
the LPN can then write up the incident in a report
which is then given to one of the RN supervisors. The
report contains no recommendations but merely a nar-
rative account of the incident involved. Sometimes,
LPNs will make oral reports to the RN nursing super-
visor, and the supervisor writes the narrative report.
According to the incident reports submitted into evi-
dence, employees have been warned for such conduct
as leaving patients wet at the end of their shift, poor
work attitude, excessive use of the telephone, failure to
turn and position residents as documented in the
Aidex, and taking too long for lunch.
The nursing supervisor reviews all reports turned in
by LPNs and investigates those reports involving seri-
ous misconduct such as patient abuse. During this
process, the nursing supervisor or even the ADON
may discuss the matter with the LPN who wrote the
report as well as the CNA. In one example, an LPN
wrote up a CNA for not properly responding to a door
alarm signaling that a resident had wandered out of the
unit. The LPN gave the report to the nursing super-
visor who in turn gave it to the ADON. The ADON
then spoke with the LPN and together the ADON and
LPN spoke to the CNA. The LPN made no rec-
ommendation with respect to discipline. The CNA was
given in-service training.
The report also has a place for the CNA to write a
statement about the incident. For example, one CNA,
who was warned for not doing her extra assignment of
TPRs, explained that TPR was not on the assignment
sheet when she checked in.
In cases involving serious misconduct, the LPN noti-
fies an RN, either a nursing supervisor or unit man-
ager, immediately. The LPN and RN together then talk
to the CNA about the problem.
The incident report is given by the RN nursing su-
pervisor or the LPN to the CNA who signs it. The
written reports are then sent to the DON for review.
The DON checks to see if there are any additional re-
ports in the CNA’s file and then consults with the RN
nursing supervisor and the LPN. The DON testified
that she does not independently investigate the incident
by talking with the CNA or the patient involved unless
the incident concerns abuse. The DON and nursing su-
pervisor then decide what, if any, discipline is to be
809TEN BROECK COMMONS
meted out based on the facts in the documents before
them. The written report is then placed in the employ-
ee’s file.
There is no progressive disciplinary system, hence
there is no predetermined discipline based solely on
the receipt of a certain, set number of warnings. Man-
agement does not consider all warnings to be equal but
judges each incident on its own.
LPNs on the evening and night shifts also fill out
a portion of the CNA’s 6-month evaluation as well as
the CNA’s annual evaluation which occurs 12 months
later, after 18 months of service. On the day shift, unit
managers perform this function, not the LPNs. In fill-
ing out the appraisal form, the LPN gives point values
from zero to three to various criteria such as knowl-
edge, productivity, cooperation, and dependability and
fills out section 2 describing the employee’s accom-
plishments and strong points as well as the areas in
which the employee needs to improve. The nursing su-
pervisor reviews the values given by the LPN and
changes those she disagrees with. The nursing super-
visor then completes section 3 of the evaluation which
sets out the objectives and projects assigned to the em-
ployee as well as a work plan to achieve the objec-
tives. The LPN and nursing supervisor sign the evalua-
tion and then discuss it with the employee who also
signs it. The employee may write explanatory com-
ments in section 4 of the appraisal. After the DON re-
views and signs the appraisal, it is placed in the em-
ployee’s file.
The 6-month appraisal takes place at the end of the
employee’s probation. If the employee is not perform-
ing well, that person may be terminated, or the proba-
tion period may be extended. If performance has been
satisfactory, the employee receives a salary increase of
50 cents an hour. At the time of the hearing, there had
been no annual performance appraisals because the
Employer’s facility, which opened in March 1993, had
not been in operation for 18 months. Although there
was testimony that the annual evaluations when given
will lead to wage raises based on merit, the amounts
of such awards had not been decided. Whether the em-
ployee has received warnings during the appraisal pe-
riod will also be a factor in determining whether the
employee is entitled to a merit increase.
According to the DON, both LPNs and RNs have
recommended to the DON that CNAs be transferred to
a different shift or unit because they were not perform-
ing well. One LPN testified that when she was the
charge nurse on the night shift, she recommended to
the RN supervisor that a CNA be transferred to the
day shift because she felt her poor performance was
due to tiredness caused by her pregnancy. The rec-
ommendation was presented to the DON and ulti-
mately the CNA was transferred to the day shift. An-
other LPN testified, however, that she had never been
involved in the transfer of an employee.
When a recommendation to transfer a CNA is made,
the CNA is notified, and the DON looks into the situa-
tion. Transfers, however, are not automatic and may
not even be feasible. Accordingly, when these situa-
tions arise, the DON also discusses with the in-service
orientation director the possibility of sending the CNA
back to orientation for a couple of weeks in order to
get more training. Over the past year, about six CNAs
have transferred to a different shift or unit.
II. SECTION 2(11) SUPERVISORY INDICIA
The term ‘‘supervisor’’ is defined in Section 2(11)
of the Act as:
[A]ny individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or dis-
cipline other employees, 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.
To meet this definition, a person needs to possess only
one of the specific criteria listed, or the authority to ef-
fectively recommend, so long as the performance of
that function is not routine but requires the use of
independent judgment.
Of the supervisory indicia listed in Section 2(11),
the Employer claims that its LPNs are statutory super-
visors because they have the requisite authority with
respect to assignment and direction of work, discipline,
evaluation, and transfers. Each of these indicia is dis-
cussed below.
A. Assignment and Direction
The Board’s analysis of assignment and direction
following the Supreme Court’s Health Care & Retire-
ment decision is set forth in detail in Providence Hos-
pital, 320 NLRB 717 (1996). Applying that analysis,
we note initially that Congress, in enacting Section
2(11), emphasized its intention that only supervisory
personnel vested with ‘‘genuine management preroga-
tives’’ should be considered supervisors, and not
‘‘straw bosses, leadmen, setup men and other minor
supervisory employees.’’ See Senate Rep. No. 105,
80th Cong., 1st Sess., 4 (1947), reprinted in 1 NLRB
Legislative History of the Labor Management Rela-
tions Act, 1947 at 407, 410 (1985). Indeed, the Board
has long recognized that ‘‘there are highly skilled em-
ployees whose primary function is physical participa-
tion in the production or operating processes of their
employer’s plants and who incidentally direct the
movements and operations of less skilled subordinate
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Northcrest, 313 NLRB at 504–505 (emphasis added).
7 In Providence Hospital, supra, we recognized that supervisory
status based on the authority to direct also depends on whether the
disputed individual possesses the authority to responsibly direct, and
that in some cases an analysis of ‘‘responsibly’’ may be required.
Providence Hospital, supra, 726–727. This case, however, like Prov-
idence, does not require such an analysis. A determination of wheth-
er the charge nurses’ directions render them statutory supervisors can
be adequately analyzed under the Board’s traditional approach of de-
ciding whether the directions given require independent judgment or
whether such directions are merely routine.
employees,’’ who nevertheless are not supervisors
within the meaning of the Act because their authority
is based on their working skills and experience. South-
ern Bleachery & Print Works, Inc., 115 NLRB 787,
791 (1956), enfd. 257 F.2d 235 (4th Cir. 1958), cert.
denied 359 U.S. 911 (1959).
In Northcrest Nursing Home, 313 NLRB 491
(1993), the Board discussed at length the issue of
whether LPN charge nurses responsibly direct aides
within the meaning of the Act. In finding the nurses
not to be statutory supervisors, the Board relied on a
‘‘patient care’’ analysis, i.e., a nurse’s direction of less
skilled employees, in the exercise of professional judg-
ment incidental to the treatment of patients, is not au-
thority exercised ‘‘in the interest of the employer.’’
Northcrest, supra at 493–497. In doing so, however,
the Board also acknowledged its ‘‘leadman’’ analysis,
noting that leadpersons have traditionally been found
to be lacking in supervisory authority even though they
direct employees’ work, as such direction is based on
their greater skill and experience. Id. at 494.
In Health Care & Retirement, the Supreme Court
was presented with the narrow question whether the
Board’s patient care analysis for determining the su-
pervisory status of nurses, specifically its reliance on
the phrase ‘‘in the interest of the employer,’’ is con-
sistent with the definition in Section 2(11). In a five-
to-four decision, the Court found the Board’s test to be
inconsistent with the statute and the Court’s prece-
dents. Succinctly put, the Court could find no basis for
the Board’s assertion that supervisory authority exer-
cised in connection with patient care is somehow not
in the interest of the employer. ‘‘Patient care is the
business of a nursing home and it follows that attend-
ing to the needs of the nursing home patients, who are
the employer’s customers, is in the interest of the em-
ployer.’’ Health Care & Retirement, supra, 114 S.Ct.
at 1782. The Court also admonished the Board for de-
vising a test that was industry-specific. According to
the Court, the Board erred in giving such statutory
terms as ‘‘responsibly to direct’’ and ‘‘independent
judgment’’ a different meaning in the health-care in-
dustry than it does in other industries.
Although the Court’s rejection of the Board’s patient
care analysis resulted in a finding that the LPNs were
statutory supervisors, the Court agreed with the
Board’s argument that phrases such as ‘‘independent
judgment’’ and ‘‘responsibly to direct’’ are ambiguous
and thus the Board needs a wide latitude in its applica-
tion of these indicia to various categories of employ-
ees. Id. at 1783. More importantly, the Court made
clear that an examination of an employee’s duties to
determine whether one or more of the Section 2(11)
supervisory indicia is performed in such a way that the
employee becomes a statutory supervisor ‘‘is, of
course, part of the Board’s routine and proper adju-
dicative function. In cases involving nurses, that in-
quiry no doubt could lead the Board in some cases to
conclude that supervisory status has not been dem-
onstrated.’’ Id. at 1785. The Court noted that in other
cases, the Board has found the disputed employees not
to be supervisors based on the fact that the employee’s
authority arose from professional knowledge and the
employee’s exercise of 2(11) indicia was merely rou-
tine. Ibid. Indeed, even in Northcrest, the Board did
not find that every assignment and direction given to
aides by charge nurses required the use of independent
judgment; it found only that they ‘‘may require the use
of independent judgment.’’6
Bearing these directives in mind, and as we more
fully explained in Providence Hospital, we have de-
cided to treat charge nurses the same as all other em-
ployee classifications and shall apply to them the same
test we apply to all other employees. In determining
whether their direction of work meets the definition of
Section 2(11), we shall decide whether such direction
requires the use of independent judgment or whether
such directions are merely routine.7 This is the ap-
proach we have always used in leadperson cases, and
in the past we have even applied it in some health care
cases. See Meharry Medical College, 219 NLRB 488
(1975); Beverly Manor Convalescent Centers, 275
NLRB 943 (1985).
Applying the above analysis to the facts of this case,
we find that the LPNs do not exercise independent
judgment in making assignments or in directing the
work of the CNAs.
The LPNs’ authority to assign CNAs to runs is lim-
ited by the fact that such assignments are made on a
monthly basis, at the end of which CNAs are routinely
rotated to another run. While there was testimony to
the effect that the LPN considers the personality and
capabilities of the CNA in making these assignments,
these factors appear to have limited significance in
view of the Employer’s established monthly rotation
procedure. Moreover, the record evidence shows that
all the CNAs have the same skills as they all must
complete the same orientation check list.
While such assessments may also play a role on
those occasions when a substitute CNA is filling in, re-
configuring runs is not normally done. It would thus
appear that the substitute CNA usually takes the run
811TEN BROECK COMMONS
8 Contrary to our dissenting colleague, merely having the authority
to assign work does not establish statutory supervisory authority. In-
stead, the exercise of such authority must require the use of inde-
pendent judgment. Here, as discussed above, the LPNs do not exer-
cise independent judgment in assigning CNAs to runs or to extra du-
ties. Rather, these assignments are determined primarily by the fact
that CNAs are routinely assigned to a different run each month and
extra duty assignments are regularly rotated among the CNAs.
9 As our dissenting colleague concedes, the resident’s long-term
care plan which is kept in the Aidex must be reviewed and approved
by an RN. Thus, these daily work directions actually come from the
RN, not the LPN. Moreover, devising a resident’s long-term care
plan is more in the nature of planning the work that needs to be
done, rather than directing a CNA to perform the work. Accordingly,
unlike our dissenting colleague, we would not characterize the
LPN’s preparation of health care plans as ‘‘effectively
recommend[ing] the daily work direction’’ of the CNAs.
10 Designing a plan of medical care is not in these circumstances
an exercise of supervisory judgment within the meaning of Sec.
2(11) but is an exercise of the expert judgment of the nurses vis-
a-vis their position as technical or professional employees. As our
dissenting colleague has recently stated: ‘‘Thus, for example, the
task of devising a patient treatment plan involves the use of profes-
sional judgment. The nurse who devises the plan is a professional
employee.’’ (Emphasis added.) See Member Cohen’s dissent in
Providence Hospital, supra, at 736–738.
normally assigned to the regular CNA who is absent.
Moreover, although the record does not indicate how
often a CNA is absent, it is clear that substitutes can-
not always be located; indeed, management has already
provided for that possibility by having the residents
pregrouped into three to five runs so that if a lesser
number of CNAs is present, a three- to four-run group-
ing is used rather than the optimum five.
The assignment of lunch and break times clearly re-
quires no independent judgment. There are only two
times available, early and late; the CNAs are regularly
switched between the two so they do not go at the
same time each day; and the choice between the two
may also be determined by the preference of the CNA.
The LPNs’ assignment of extra duties is equally rou-
tine. These duties are regularly rotated among the
CNAs so they do not always have to perform the same
job, or these duties may be assigned in accordance
with which task the CNA prefers.8
The record also fails to show that LPNs use inde-
pendent judgment in directing the work of the CNAs.
The essential duty of the CNA is to take care of elder-
ly people who are no longer able to care for them-
selves. For the most part, such duties require little
skill, are repetitive, and at times even unpleasant.
Every day, CNAs must perform the same care, in
the same manner, for the same people. To be sure this
is done, the Employer requires that each patient’s par-
ticular needs be kept in the Aidex. It is the responsibil-
ity of the CNA to consult and follow the Aidex with
respect to each patient and perform all functions indi-
cated for each resident.
One of the LPNs’ responsibilities is to be sure that
the CNAs are properly performing their jobs. Thus,
LPNs make patient rounds and consult the Aidex. If an
LPN sees a patient that needs attending to or a job that
has not been properly done, the LPN will call it to the
attention of the CNA. This type of direction does not
require the independent judgment of Section 2(11). To
some degree, the greater skill and experience of the
LPN may be involved as the LPN may more quickly
recognize a situation that needs immediate attention. In
other situations, the problems are usually quite obvious
(resident is wet or needs to be dressed, etc.). In any
event, workday tasks are governed by the detailed in-
structions contained in the Aidex.9
We agree with our dissenting colleague that the
tasks contained in a resident’s long-term care plan are
of critical importance to the health and well being of
the resident. However, we disagree with our col-
league’s conclusion that the monitoring and directing
of such tasks cannot be routine. There is an important
distinction between designing complex work tasks and
directing employees in carrying out those tasks. If this
distinction is blurred, it becomes easy to be misled into
concluding that an individual exercises independent
judgment based simply on the fact that the work tasks
being designed by that individual are relatively ‘‘com-
plex’’ or ‘‘important.’’ Here, although the LPNs use
their technical expertise and judgment to prepare a
comprehensive health care plan for each resident, the
directions they give to the CNAs in carrying out the
plan do not require the use of Section 2(11) independ-
ent judgment but are merely routine.10
In the view of our dissenting colleague, although the
distinction between designing important and complex
tasks and directing employees in carrying out these
tasks may be applicable to the engineering and con-
struction industry, it cannot be applied to the health
care field. We disagree. While, ‘‘a sick human being
is not the same as a building,’’ to use the words of our
colleague, the work of professionals and technicals in
both fields has a direct impact on human life. Thus, al-
though the directions given to implement a detailed ar-
chitectural blueprint may be routine, they must be exe-
cuted with the same concern as a direction given with
respect to the care of an aged or infirm nursing home
resident. Failure to perform as directed in either case
could result in physical injury or death. Accordingly,
the fact that severe adverse consequences might flow
from an employee’s routine direction or monitoring of
the work of others does not, without more, make the
employee a supervisor. See our discussion in Provi-
dence Hospital, supra.
We also note that LPNs, by virtue of their special-
ized training, have many other responsibilities that do
not involve CNAs, such as preparing and passing out
medications, giving treatments, contacting doctors, and
updating patients’ charts. Thus, the LPNs’ supervision
of CNAs is narrowly circumscribed to giving rather
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Beverly Manor Convalescent Center, 275 NLRB 943, 947
(1985), and cases cited there.
Contrary to our dissenting colleague, we believe the definition of
leadperson in Southern Bleachery aptly describes the LPNs as they
are ‘‘highly skilled employees whose primary function is physical
participation in the . . . operati[on] . . . of their employer’s [busi-
ness] and who incidentally direct . . . less skilled subordinate em-
ployees.’’ Thus, LPNs are charged with the primary responsibility of
making sure that the residents are being properly cared for. In carry-
ing out this function, LPNs perform a number of duties including
giving, when necessary, directions to lesser skilled CNAs as they
perform the tasks as detailed in the Aidex. Such directions are pri-
marily determined by the contents of the long-term care plans. The
LPNs only remind the CNAs when necessary that a task needs to
be done or direct a CNA to perform a necessary duty. The directions
so given are, at most, based on the LPNs’ greater skill and experi-
ence in recognizing that certain tasks need to be done. In these cir-
cumstances, we find that such monitoring and directive functions are
routine in that they do not utilize the independent judgment required
in Sec. 2(11).
Our dissenting colleague’s contrary view is based on Senator Flan-
ders’ use of the terms ‘‘personal experience, training, and ability’’
in describing the meaning of ‘‘responsibly to direct’’ as a Sec. 2(11)
indicia. However, our colleague ignores the full context of Senator
Flanders’ comments which we set forth in Providence Hospital,
supra at 725. Moreover, our dissenting colleague’s claim based on
a quote from Senator Flanders that ‘‘an individual who makes a
‘personal judgment based on personal experience, training, and abil-
ity’ is making an independent judgment’’ is contrary to well-estab-
lished Board precedent. As set forth above and in greater detail in
Providence Hospital, supra, employees who merely direct lesser
skilled subordinate employees based on their greater knowledge or
expertise are not considered statutory supervisors.
general, routine directions to lesser skilled employees
in order to maintain the quality of their work. This
type of authority is typical of that of the industrial
strawboss and leadman, skilled employees with only
limited authority, who are routinely excluded from the
definition of supervisor.11
B. Discipline
Nor do we find that the LPNs’ involvement in dis-
cipline renders them supervisors within the meaning of
Section 2(11). The record evidence in this case clearly
establishes that LPNs do not discipline CNAs nor do
they effectively recommend disciplinary action. The
role of the LPNs is merely to report incidents of unac-
ceptable work performance or behavior. They make no
recommendations with respect to discipline. Moreover,
these reports do not automatically result in discipline
nor is the discipline, when given, a product solely of
the LPNs’ reportorial account. Thus, the reports are re-
viewed by the nursing supervisor and, sometimes, the
ADON, who discuss the matter with the LPN and the
CNA. The CNA may even write a statement on the re-
port to explain or justify the complained-of incident.
Finally, it is reviewed by the DON who, on the basis
of all the documentary evidence, decides in conjunc-
tion with the nursing supervisor what action, if any,
should be taken.
The authority to give employees oral warnings and
also to write up warnings on forms retained in the em-
ployee’s personnel file is typical in cases involving
nursing-home charge nurses. Usually, the director of
nursing or some other managerial/supervisory person
investigates and decides what, if any, discipline is war-
ranted. Where this has occurred, the Board has found
that the charge nurses are not supervisors either be-
cause their warnings do not result in any personnel ac-
tion, or, if they do, such action is not taken without
independent investigation or review by others. See
Northcrest Nursing Home, supra, 313 NLRB at 497 fn.
29.
Passavant Health Center, 284 NLRB 887 (1987),
where we found charge nurses not to be supervisors,
is quite similar to the instant case. There, as here,
nurses had the authority to issue oral reprimands and
written incident reports documenting unacceptable per-
formance. The reports were sent to the nursing office
and placed in the employee’s file. The director of nurs-
ing decided what, if any, disciplinary action should be
taken. No such action was taken without the nursing
office interviewing the individuals involved or those
who had information about the incident. In finding that
the nurses had no disciplinary authority but instead
performed only a reportorial function, we noted that
the incident reports did not contain any recommenda-
tions for disciplinary action and that any action taken
was determined after the nursing office had inquired
into the matter. Id. at 889. Accordingly, because the
written reports and warnings issued by the nurses had
no independent effect and did not, by themselves, af-
fect job tenure or status, the Board found the nurses
not to be supervisors.
The same is true here. The incident reports prepared
by LPNs contain no recommendations and are given to
the nursing supervisor for review. That review, as
clearly demonstrated by record testimony, has included
discussing the incident with both the LPN and the
CNA. The ADON has also been personally involved in
incident reports. When the DON decides that discipli-
nary action must be taken, that decision is not based
solely on the report as written by the LPN but is also
based on discussions with the nursing supervisor who
has already looked into the matter; together, they de-
cide what discipline to impose.
The Employer, in arguing that LPNs have statutory
authority to discipline, relies heavily on the fact that
the DON testified that she does not ‘‘independently in-
vestigate’’ the incident reports unless patient abuse in
involved. This reliance is misplaced. The record is
clear, indeed the nursing supervisor testified, that the
reports are reviewed by the RN supervisor who person-
ally inquires into the situation by talking to the indi-
viduals involved. This, we find, constitutes independ-
ent investigation. Moreover, although the DON does
813TEN BROECK COMMONS
12 We agree with our dissenting colleague that the LPNs play an
important role in preparing employee evaluations as they have first-
hand knowledge of the CNAs’ work performance. However, where,
as here, that role is reviewed by higher authority, the LPNs’ evalua-
tions are at times changed by the reviewer, and there is no direct
connection between the LPNs’ input and a wage increase, the LPNs’
role in evaluations does not constitute the exercise of statutory su-
pervisory authority.
13 Although, as pointed out by our dissenting colleague, there is
no evidence that an LPN’s recommendation has not been followed,
there is also no evidence that the six CNAs were transferred simply
because an LPN recommended the transfer. Instead, as noted above,
the DON and in-service orientation director both review the situation
and make a decision based on all the factors involved.
14 At the hearing, the Petitioner stipulated that the infection control
practitioner, an LPN, is a statutory supervisor and thus should not
be included in the petitioned-for LPN unit. The Employer refused to
take a position on the status of this individual. In its posthearing
brief, however, the Employer takes the position that if the LPNs are
found not to be supervisors, the infection control practitioner should
also be found nonsupervisory.
The record shows that the infection control practitioner is respon-
sible for seeing that the entire staff—RNs, LPNs, and CNAs—is fol-
lowing proper infection control procedures. When infections break
out, the infection control nurse has to investigate the infection, report
to the DON and ADON, and contact the local and state health de-
partments. This LPN is also required to keep detailed records and
perform quality assurance audits. If the infection control practitioner
sees a staff member, including RNs, following improper procedures,
she has the authority to correct the situation on the spot and to file
a report if necessary. The infection control nurse also investigates
complaints filed by any staff member regarding incorrect infection
control procedures.
We find the infection control practitioner not to be a statutory su-
pervisor. Although this LPN can correct any staff member who is
not following proper procedures, including writing them up, there is
Continued
not personally investigate the incident before discipline
is imposed, she discusses it with the nursing supervisor
who has been personally involved.
C. Evaluation
The Board has consistently found that LPNs are su-
pervisors when they independently perform evaluations
of other employees which lead directly to personnel
actions affecting those employees, such as merit raises.
By contrast, the Board has consistently declined to find
supervisory status when charge nurses perform evalua-
tions that do not, by themselves, affect other employ-
ees’ job status. See Northcrest Nursing Home, supra at
498 fns. 36 & 37 (1993); Bayou Manor Health Center,
311 NLRB 955 (1993).
Here, although the record shows that the 6-month
evaluation leads directly to discharge, additional train-
ing, or a wage increase, no annual appraisals had been
written as of the time of the hearing. Consequently,
there is no showing that an annual performance ap-
praisal determines wage increases. Although there was
testimony that such appraisals, when given, would lead
to merit increases, such testimony is merely specula-
tive. Moreover, there is additional testimony that merit
increases would also depend on whether the employee
had received any warnings which, as we have found,
also involve review by the nursing supervisor. It would
appear, therefore, that merit increases will be deter-
mined by a combination of factors and not solely on
the employee’s performance appraisal.
In any event, the appraisals here are not the sole
product of the LPN. In the first place, only evening
and night-shift LPNs fill out appraisal forms; day-shift
LPNs do not. Moreover, not only does the RN nursing
supervisor fill out a portion of the evaluation, the su-
pervisor reviews the numbers assigned by the LPN and
changes those the RN thinks do not accurately reflect
the work of the CNA. Nor is there any showing that
it is the numerical portion of the evaluation that deter-
mines the outcome rather than an overall review of the
entire appraisal. The LPN does not make any rec-
ommendations on the form.
Bayou Manor, relied on by the Employer, is distin-
guishable. There, as here, the LPN assigned numerical
scores (in Bayou, the scores ranged from 1 to 10) to
a number of items covering work performance and per-
sonal characteristics. Unlike here, however, in Bayou
there was no review of the numerical scores awarded
by the LPN and the scores so given directly deter-
mined the amount of the employee’s merit increase
and departmental bonus. Here, as noted above, the
numbers assigned by the LPN are not only reviewed
but are sometimes changed, and there is no direct cor-
relation between these numbers and any wage in-
crease.12
D. Transfers
Although the record shows that the LPNs have rec-
ommended to the DON that CNAs be transferred, the
record does not establish that these recommendations
are effective. Recommendations to transfer a CNA to
a different shift or unit are not automatically granted.
There may even be circumstances present which make
the transfer impossible or difficult to accommodate. In
such situations, the DON may, instead, send the CNA
back for additional training. Thus, although six CNAs
transferred to a different unit or shift in the past year,
the record does not establish that these transfers were
based solely on the recommendations of LPNs. In-
stead, the record demonstrates that transfers are deter-
mined by the DON based on her assessment of the sit-
uation, including the possibility of giving the CNA ad-
ditional training rather than a transfer.13
III. CONCLUSION
Based on the above, we find that the Employer’s
LPNs are not supervisors within the meaning of Sec-
tion 2(11) of the Act.14 The Employer, however, also
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
no evidence that such reports are any different from incident reports
written by all LPNs with respect to CNAs and, as such, they do not
render this LPN a supervisor. Nor does the fact that she investigates
complaints. There is no evidence that she has resolved any employee
grievances or that any complaint so investigated has led to any per-
sonnel action.
15 In Case 3–RC–10155, the Petitioner initially sought to represent
an overall unit of the Employer’s service and maintenance employ-
ees, including LPNs. However, when the Employer claimed the
LPNs were statutory supervisors, the parties entered into a Stipulated
Election Agreement on July 1, 1994, for a unit of service and main-
tenance employees, excluding LPNs. That same day, the Petitioner
filed the instant petition seeking to represent the LPNs in a separate
unit. The Employer then sought to withdraw from the Stipulated
Election Agreement, but its request was refused by the Regional Di-
rector. The Employer’s appeal of that decision was pending before
the Board at the time of the hearing in the instant case. Subse-
quently, on August 5, 1994, the Board denied the Employer’s re-
quest for review. Thereafter, the election in Case 3–RC–10155 was
conducted, and, as noted above, the Petitioner was certified as col-
lective-bargaining representative of the service and maintenance unit
on January 3, 1995.
The fact that the Petitioner initially sought the LPNs in an overall
unit and then agreed to their exclusion in a Stipulated Election
Agreement is not a waiver by the Petitioner of its right to file a peti-
tion seeking to represent these employees. See S. S. Joachim &
Anne Residence, 314 NLRB 1191, 1192 (1994). However, as dis-
cussed above, there remains the question whether the LPNs con-
stitute an appropriate separate unit or whether the Petitioner must in-
clude them in the service and maintenance unit it already represents.
1 For additional analysis of my position on this issue, see my dis-
sent in Providence Hospital, 320 NLRB 717 (1996).
contends that even if the LPNs are not statutory super-
visors, the instant petition should be dismissed because
the LPNs do not constitute a separate appropriate unit.
Instead, the Employer argued at the hearing that the
LPNs should be included in the service and mainte-
nance unit which at the time was the subject of another
petition in Case 3–RC–10155 involving the same par-
ties. Subsequently, on January 3, 1995, the Petitioner
was certified as the collective-bargaining representative
of the service and maintenance employees.15
Whether a separate technical unit of LPNs is appro-
priate in a nonacute care facility such as the nursing
home involved here is an issue that is decided on the
facts of each case. See Park Manor Care Center, 305
NLRB 872 (1991). Consequently, if the Petitioner
wishes to represent the LPNs in a separate unit, the
record will have to be reopened and the issue litigated.
However, if the Petitioner only wishes to represent
them as part of its service and maintenance unit, the
Regional Director will direct an election in a voting
group of LPNs. If a majority of ballots in the voting
group are cast for the Petitioner, the employees will be
included in the existing service and maintenance unit;
if not, the employees will remain unrepresented. Ac-
cordingly, we shall remand the case to the Regional
Director for further appropriate action.
ORDER
The petition in Case 3–RC–10166 is remanded to
the Regional Director for further appropriate action.
MEMBER COHEN, dissenting.
I do not agree that the LPNs are employees. Rather,
I think it clear that they are supervisors. Accordingly,
I dissent.1
In Healthcare & Retirement Corp. of America, 114
S.Ct. 1778 (1994) (HCR), the Supreme Court held that
the Board could not avoid a finding of supervisory sta-
tus for nurses simply by asserting that the nurses acted
in the interest of the patient rather than in the interest
of the employer. As the Court pointed out, ‘‘patient
care is the business of a nursing home and it follows
that attending to the needs of the nursing home pa-
tients, who are the employer’s customers, is in the in-
terest of the employer.’’ Thus, the Board is obligated
to determine whether the nurses exercise, or have the
authority to exercise, one of the powers listed under
Section 2(11) of the Act. If they do, and use independ-
ent judgment in doing so, they are supervisors. The as-
sertion that they act in the interest of the patient will
not change the result.
With HCR on the books, my colleagues nonetheless
seek to avoid a supervisory conclusion by stretching
the language of Section 2(11) of the Act. As set forth
below, that bit of stretching will not work. The LPNs
in this case possess authority with respect to a number
of functions listed in Section 2(11) of the Act.
I begin with the assignment of work. Residents in
each unit are divided into three, four, or five groups
called ‘‘runs’’: A CNA (certified nursing assistant) is
then assigned to a run. The LPNs determine the runs
on the evening and night shifts. In addition, the LPNs
on all shifts have the authority to reconfigure the runs.
Finally, the LPNs assign CNAs to their runs. In sum,
the LPN effectively controls the number and identity
of the residents that a given CNA will serve.
I recognize that CNAs are switched to different runs
once a month. However, I know of no case, and none
is cited, standing for the proposition that an assignment
is not an assignment if it is for a short duration. Cer-
tainly, the language of the Act contains no such limita-
tion. I also recognize that, if the CNAs and the runs
stay the same, each CNA will eventually service every
run. However, even if this turns out to be the case, the
LPN nonetheless has the power to determine the se-
quence in which the assignments are made.
There is uncontradicted testimony that the LPNs
make these assignments by considering the personality
and capabilities of the CNA. Clearly, these are subjec-
tive judgments of the LPN, and they therefore reflect
the LPN’s independent judgment. Equally clearly,
these judgments result in an assignment.
The LPNs also assign ‘‘extra duties’’ to CNAs. The
LPN chooses which CNA will perform a particular
extra duty and can even assign more than one extra
815TEN BROECK COMMONS
2 When the LPN fills out the plan, it must be approved by an RN.
There is no evidence that long-term care plans prepared by the LPN
are substantively changed by the RN. Thus, the LPN effectively rec-
ommends the daily work direction contained in the plans.
3 My colleagues draw a distinction between ‘‘planning the work
that needs to be done’’ and ‘‘directing a CNA to perform the the
work.’’ The distinction may be valid, but one must be careful in its
application. If a patient treatment plan simply sets forth the treatment
(e.g., bathe the wound three times a day), the devising of that plan
is a professional task. See my dissent in Providence Hospital, supra.
However, to the extent that the plan directs specific employees to
perform the task, the direction is a supervisory function. In any
event, even if the plan itself is silent as to such direction, the imple-
mentation of the plan is a supervisory function. That is, the actual
direction and monitoring of the employees are supervisory respon-
sibilities.
4 My colleagues suggest that my analysis is contrary to Board
precedent. Assuming arguendo that this is so, I prefer to be guided
by the statute as illuminated by precise legislative history.
5 My colleagues suggest that a task can be important and complex
while the monitoring and direction of that task is routine and cleri-
cal. This may be true in certain fields, but it is not true in the health
care field. For example, an architectural blueprint may be extraor-
dinarily precise and detailed, and thus the directions to implement
the blueprint may be routine. However, a sick human being is not
the same as a building. Of necessity, the plan for the care of the
former must be carried out with discretion and judgment. There are
subtle nuances in the care of a sick human being, such that a plan
cannot be woodenly administered with the precision of a blueprint.
duty to a CNA. Again, although these assignments are
often changed, this does not mean that they are not as-
signments.
The LPN also responsibly directs the CNA. When a
resident is admitted, either the RN or the LPN fills out
a long-term care plan.2 The plan deals with virtually
every facet of care for that resident. The plans are
compiled in a book called the Aidex. The LPN regu-
larly checks to see that the Aidex functions are per-
formed by the CNA. If they are not, the LPN will di-
rect the CNA to perform them.3
My colleagues assert that the LPN, in performing
these monitoring and directing functions, is simply act-
ing on the basis of ‘‘greater skill and experience.’’ In-
terestingly, it is precisely those qualities which charac-
terize the supervisory nature of the LPN’s function. In
this regard, I note that Senator Flanders was the person
who successfully proposed the ‘‘direction’’ portion of
Section 2(11) of the Act. In doing so, he spoke specifi-
cally of persons who ‘‘exercise . . . personal judgment
based on personal experience, training and ability.’’
Senator Flanders was essentially describing the quali-
ties of the LPNs in this case and the charge nurses in
Providence Hospital. Senator Flanders thereby effec-
tively rejected the notion, espoused by my colleagues
here and in Providence Hospital, that these qualities do
not involve independent judgment. The essence of
independent judgment is that the individual’s actions
are based on the thought processes of that individual,
rather than on some outside force or person. Certainly,
an individual who makes a ‘‘personal judgment based
on personal experience, training and ability’’ is making
an independent judgment. Thus, Senator Flanders
spoke directly to the issue of independent judgment,
and he squarely rejected the argument made by my
colleagues.4
My colleagues also argue that the foregoing LPN
functions are those of ‘‘leadmen’’ and thus not super-
visory. The phrase ‘‘leadman’’ appears in Senate
Labor Committee Report No. 105. However, at the
time of that report, the phrase ‘‘responsibly to direct’’
was not even in the proposed legislation. That phrase
was added later by Senator Flanders. Thus, the relevant
legislative history for that phrase is not Committee Re-
port No. 105, but rather Senator Flanders’ remarks spe-
cifically describing his addition to the legislation.
Further, even assuming arguendo that the Committee
Report is relevant in this respect, it is clear that the
LPNs are not leadpersons. Leadpersons are ‘‘highly
skilled employees whose primary function is physical
participation in the production or operating processes
of their employers’ plants and who incidentally direct
the movements and operations of less skilled subordi-
nate employees.’’ Southern Bleachery & Print Works,
Inc., 115 NLRB 787, 791 (1956). The instructions of
such persons are ‘‘inherent in the craftsman-helper re-
lationship.’’ Ibid. In the instant case, the LPNs do not
‘‘incidentally’’ monitor and direct the CNAs. Rather,
such monitoring and direction is an important part of
the LPN function. Further, as noted, that function is to
ensure that there is adherence to the care plan for resi-
dents. Given the importance and complexity of the
Aidex (the care plan for residents), it can hardly be
said that the monitoring and directive function is a rou-
tine or clerical task.5
The LPNs also play an effective role in the dis-
ciplining of CNAs. They give oral warnings to CNAs,
and they can write reports concerning CNA mis-
conduct. These warnings and reports can lead to dis-
cipline. Although the DON ultimately decides on dis-
cipline, the DON does not ordinarily conduct an inde-
pendent investigation. Rather, she relies, inter alia, on
the LPN’s report and, on occasion, will speak to the
LPN who prepared the report. Finally, irrespective of
whether discipline is imposed, the written report is
placed in the CNA’s file.
LPNs also evaluate CNAs. On the evening and night
shifts, they perform an evaluation at the end of CNA’s
6-month probationary period. The appraisal has a point
system for various criteria (e.g., knowledge, productiv-
ity) and a narrative portion. This evaluation can lead
to retention and a salary increase or to discharge. The
fact that the evaluation is reviewed by the LPN’s supe-
riors does not detract from the importance of the
LPN’s role. It is a system, not uncommon, in which
the evaluation by the first-line supervisor is subject to
review by higher levels of authority. In such systems,
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 My colleagues respond that the LPN’s evaluation of a CNA is
reviewed by higher authority and is occasionally changed. I do not
view this as inconsistent with an ‘‘effective recommendation.’’ That
is, the recommender is still a supervisor, even if an occasional rec-
ommendation is not followed.
7 My colleagues assert that others make the decision based, inter
alia, on the recommendation of the LPN. That is not inconsistent
with an effective recommendation.
higher authority relies heavily on the first-hand knowl-
edge of the first-line supervisor.
There is also an evaluation that occurs 12 months
after the 6-month evaluation, and annually thereafter.
Because the facility in this case was new at the time
of the hearing, there were no such evaluations. How-
ever, there is uncontradicted testimony that LPNs per-
form these evaluations, and that the evaluations can
lead to merit wage increases.6
Finally, LPNs make recommendations to transfer
CNAs to a different shift or units because the CNAs
are not performing well. Over the past year, about six
CNAs have been transferred for this reason. There is
no evidence that a LPN’s recommendation has not
been followed.7
Based on all of the above, I find that the LPNs per-
form a number of supervisory functions. Any one of
them is sufficient, by itself, to confer supervisory sta-
tus under Section 2(11) of the Act. I therefore con-
clude that they are supervisors.