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General Counsel Memorandum on Charge Nurse Supervisory Issues 

OFFICE OF THE GENERAL COUNSEL
Division of Operations-Management 

MEMORANDUM OM 99-44 
August 24, 1999 

TO: All Regional Directors, Officers-in-Charge, and Resident Officers

FROM: Richard A. Siegel, Associate General Counsel

SUBJECT: Guideline Memorandum on Charge Nurse Supervisory Issues

Attached is a memorandum providing guidance on legal issues often confronted in representation and unfair labor practice cases arising in the health case industry. Explored in the memorandum is the current state of the law before the Board and the courts of appeals regarding the supervisory status of nurses. In addition, a checklist is provided for the use of Board agents serving as case investigators, hearing officers and decision writers in matters involving these issues.

The memorandum and checklist provide a useful starting point for case processing. As with any evolving area of the law, however, they are not definitive. No casehandling assignment involving nurse supervisory issues can be completed without a full discussion of the case and the specific issues posed with Regional Office supervision and research of the most recent Board and court decisions.

This guideline memorandum was prepared by Assistant General Counsel John H. Ferguson, Division of Enforcement Litigation.

R. A. S.

Attachment

cc: NLRBU
Release to Public

MEMORANDUM OM 99-44


OFFICE OF THE GENERAL COUNSEL
Division of Operations-Management

GUIDELINE MEMORANDUM

Supervisory Issues and Charge Nurses Following NLRB v. Health Care & Retirement Corp.

The supervisory status of nurses in the health care industry is a recurring question in Board cases, one raising complex factual and legal issues. While some tests of Section 2(11) status are relatively clear and well settled, other factors relevant to the supervisory status of nurses present more vexing and intricate questions. This Guideline Memorandum attempts to report the status of the law in this important area as of the date of issuance and provides guidance for Regional Office case processing. As always, however, there is no substitute for careful legal research to ensure complete knowledge of the most current developments in this area of the law.

In Part One, this memorandum summarizes legal issues relating to a nurse's (A) exercise of independent judgment, (B) assignment and direction of work, (C) discipline, (D) evaluation of employees, and (E) adjustment of grievances. In Part Two, and to assist Hearing Officers and Board agents conducting field investigations, we have reiterated these issues in a checklist format. We hope that Board agents and decision writers will find this memorandum and the checklist to be useful tools when investigating cases, when conducting representation hearings, and when preparing Regional Director decisions.


PART ONE

The Supreme Court's Health Care & Retirement Corp. decision

In NLRB v. Health Care & Retirement Corp., 511 U.S. 571 (1994) (HCR), the Supreme Court, construing the phrase "in the interest of the employer" in Section 2(11)'s definition of the term "supervisor," rejected the Board's holding that a nurse's supervisory authority is not exercised in the interest of the employer "if it is incidental to the treatment of patients." Id. at 576-580. The Supreme Court made clear that its decision "casts no doubt on Board or court decisions interpreting parts of [Section] 2(11) other than the specific phrase 'in the interest of the employer.'" Id. at 583. Moreover, the Court recognized that the Board, in other industries, had distinguished Section 2(11) independent judgment from technical or professional judgment, and it disclaimed any intent to disapprove Board decisions resting on that distinction. Id.

Following HCR, the Board revisited the issue of how it would decide issues of supervisory status in the health care industry (doing so in the context of HCR's admonition that its standard must be consistent with that employed in other industries as well). This guideline memorandum highlights issues that should be investigated in order to ensure that the record before the Board will allow it to make a fair and informed decision on issues of supervisory status arising with respect to nurses in the health care industry. Full investigation is appropriate even in cases where the burden of proof is on the respondent to establish supervisory status. Only if there is accurate information in the record concerning the actual delegation of authority in the workplace is the Board able to guard against the danger of a one-sided presentation based on paper authority and generalized testimony.

The Statutory Text

Section 2(3) of the Act excludes from the definition of the term "employee" "any individual employed as a supervisor . . .." Section 2(11) of the Act defines a "supervisor" as:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline 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 merely of a routine or clerical nature, but requires the use of independent judgment.

To meet the statutory definition of a supervisor, a person needs to possess the authority to engage in any one of the actions listed in Section 2(11) of the Act, or the authority to effectively recommend any such actions, so long as the performance of that function is not routine but requires the use of independent judgment.

Burden of Proof

The Board has long held, in both C cases and R cases, that the party claiming supervisory status has the burden of proving it.(1) With the exception of the Sixth Circuit, reviewing courts have approved the Board's allocation of the burden of proof,(2) and the Board has adhered to its position.(3)3 If a party avers that charge nurses are statutory supervisors, then that party must demonstrate that the charge nurses exhibit at least one of the twelve statutory indicia of supervisory status and that this attribute is exercised using independent judgment.

It is axiomatic that the existence of the power determines whether an individual is an employee or a supervisor.(4) But the real task which confronts the Board, particularly in cases involving charge nurses in the health care industry, is the difficult one of finding whether the supervisory power in fact exists, and this can only be ascertained as a result of a painstaking analysis of the facts in each case.(5) This analysis is to be performed with an alertness to the principle that "administrators and reviewing courts must take care to assure that exemptions from [the Act's] coverage are not so expansively interpreted as to deny protection to workers the Act was designed to reach." Holly Farms Corp. v. NLRB, 517 U.S. 392, 399 (1996).

As applied to Section 2(11) issues, this principle means that the individuals asserted to be supervisors must be endowed with genuine management prerogatives, since an overly broad construction of the language contained in Section 2(11) would deny the individuals found to be supervisors the employee rights that are protected under the Act.(6) A corollary of that principle is that the moving party bears the burden of providing nonambiguous, fact specific testimony and documentary evidence which will support its assertion. "[C]onclusionary statements made by witnesses in their testimony, without supporting evidence, does not establish supervisory authority." Sears, Roebuck & Co., 304 NLRB 193, 193 (1991). Accord Custom Mattress Mfg., 327 NLRB No. 30, slip op. 1-2 (Oct. 30, 1998) ("Mere inferences without specific support in the record are insufficient to establish supervisory status.").(7)

Statutory Purpose

In enacting Section 2(11) of the Act, Congress sought to distinguish between truly supervisory personnel, who are vested with "'genuine management prerogatives,'" and employees -- such as "'straw bosses, leadmen, and set-up men, and other minor supervisory employees'" -- who enjoy the Act's protections even though they perform "'minor supervisory duties.'" NLRB v. Bell Aerospace Co., 416 U.S. 267, 280-281 (1974) (Bell Aerospace) (quoting Sen. Rep. No. 105, 80th Cong., 1st Sess. 4 (1947)).(8)

Section 2(11)'s "independent judgment" requirement is the statutory means by which Congress effectuated that purpose. As Bell Aerospace explains, the House bill broadly defined "supervisor" to reach leadpersons and other minor supervisors. 416 U.S. at 279-280 & n. 9. The Senate bill, by contrast, sought to preserve the organizational rights of minor supervisors and that is the version that Congress enacted. Id. at 280-283 & n. 10. Inspection of the rival bills confirms that the critical textual difference -- i.e., the difference upon which the organizational rights of leadpersons and other minor supervisors depends -- is that, in the House bill, persons could be deemed supervisors if they merely possessed the authority, in the interest of the employer, "to hire, transfer, suspend, lay off, recall, promote, demote, discharge, assign, reward, or discipline any individuals employed by the employer, or to adjust their grievances, or to effectively recommend any such action . . . ." Id. at 279 n. 9. By contrast, under the Senate version, which was enacted, possession of these same powers was sufficient to make the person a supervisor only "if . . . the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." Id. at 280 n. 10.

Consistent with the language and purpose of Section 2(11)'s independent judgment requirement, the Board has long distinguished between a "superior workman or lead man who exercises the control over less capable employees . . . [and] a supervisor who shares the power of management." NLRB v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (4th Cir. 1958), cert. denied, 359 U.S. 911 (1959). Under that construction of Section 2(11), workers whose directions to others are based on professional, technical, or craft knowledge, are deemed nonsupervisory. E.g., Kaiser Engineers v. NLRB, 538 F.2d 1379, 1384 (9th Cir. 1976) (engineer who directed employees to "achieve successful completion of project" not supervisor); Westinghouse Elec. Corp. v. NLRB, 424 F.2d 1151, 1155 (7th Cir. 1970) (directives not supervisory that "are necessary incidents of the application of [field engineers'] technical know-how"), cert. denied, 400 U.S. 831 (1970); Austin Company, 77 NLRB 938, 942-943 (1948) (professional engineers who "perform substantially the same work as the employees under their direction, as well as assign and review the work of the latter," are not supervisors but "leaders such as are typical in the engineering profession").

The Board's construction of Section 2(11) recognizes that, where the employer's policy is that the normal standards of a technical field should routinely govern the workplace, the limited technical judgment of an experienced leadperson who directs the work of less skilled assistants is "routine" within the meaning of Section 2(11). As the Supreme Court phrased the principle:

The Board has recognized that employees whose decisionmaking is limited to the routine discharge of professional duties in projects to which they have been assigned cannot be excluded from coverage even if union membership arguably may involve some divided loyalty. Only if an employee's activities fall outside the scope of the duties routinely performed by similarly situated professionals will he be found aligned with management.

NLRB v. Yeshiva University, 444 U.S. 672, 690 (1980). Among the cases Yeshiva cited with approval was Skidmore, Owings & Merrill, 192 NLRB 920, 921 (1971), where the Board found that certain professional architects in charge of projects, who "have some discretion in assigning work and are professionally responsible for the quality of work performed," are not Section 2(11) supervisors "but merely provide professional direction and coordination for other professional employees." The Yeshiva Court thought "these decisions accurately capture the intent of Congress." 444 U.S. at 690.

Professional or Technical Independent Judgment v. Supervisory Independent Judgment:

In determining whether an alleged supervisor exercises "independent judgment" within the meaning of Section 2(11), it is important to distinguish the use of the term "independent judgment" in that specialized context from the use of similar language in Section 2(12) of the Act, which defines "professional employee," and its related use in the Board's definition of "technical employee."

Professional employees, under Section 2(12)'s definition, possess specialized "knowledge of an advanced type" and are engaged in work "predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work . . . [and] involving the consistent exercise of discretion and judgment in its performance . . . ." (italics added)

Technical employees, under the Board's long-standing definition, are those who do not meet the strict educational requirements set forth for professionals in Section 2(12), but nevertheless are engaged in work "of a technical nature involving the use of independent judgment and requiring the exercise of specialized training usually acquired in colleges or technical schools or through special courses." Litton Industries of Maryland, Inc., 125 NLRB 722, 725 (1959); Barnert Memorial Hospital Center, 217 NLRB 775, 777 (1975).

If the independent judgment or discretion referred to in the definition of professional and technical employees is, without more, equated with the independent judgment referred to in Section 2(11), then persons whose only authority over others derives from the power of specialized knowledge automatically would be placed outside the protection of the Act merely because their discretionary judgments guide the work of other employees. That outcome would conflict with a central purpose of Section 2(11), to preserve the organizational rights of minor supervisors such as "'straw bosses, leadmen, and set-up men'" NLRB v. Bell Aerospace Co., 416 U.S. 267, 280-281 (1974) If Section 2(11)'s design to preserve the organizational rights of leadpersons and minor supervisors is not to be frustrated, great care must be exercised to distinguish situations where the employee is only asserting the authority that superior knowledge commands from those where the employee is actually vested with authority to exercise the independent managerial judgment of an employer vis a vis its employees.

The Board's Post-HCR Standard for Determining Whether Nurses Are Supervisors

Addressing these very concerns in it post-HCR decisions, the Board adopted the following legal standard: An employee's exercise of routine technical judgment in directing less-skilled employees, for the purpose of delivering services in accordance with the employer's standards, does not constitute the exercise of "independent judgment" that would make the employee a "supervisor" under Section 2(11). Providence Hospital, 320 NLRB 717, 725-730 (1996), enf'd, 121 F.3d 548 (9th Cir. 1997); Ten Broeck Commons, 320 NLRB 806, 809-812 (1996). As the Board stated in Rest Haven Living Center, Inc., 322 NLRB 210, 211 (1996), where "the LPNs' directives to CNAs are narrowly circumscribed and involve giving general, routine directions to lesser skilled employees consistent with established employer policies in order to maintain the quality of care . . . . this type of direction does not involve the independent judgment required by Section 2(11)."(9)

The Board's post-HCR construction brings its Section 2(11) standard for nurses into harmony with the standard that, as HCR recognized, the Board had previously applied in other industries. 511 U.S. at 583. That standard recognizes that the exercise of limited discretion is not enough to establish the kind of independent judgment necessary for Section 2(11) supervisory status.(10) The important inquiry for Section 2(11) purposes is whether the employer's policy is that the normal standards of the profession or craft should routinely govern the assignment and direction of work. If that is so, then, in merely articulating what professional norms or institutional routines require in a particular situation, a minor supervisor or leadperson is not making management policy on the spot or exercising Section 2(11) independent judgment to decide among various policy options. Rather, with the authority based on superior knowledge, the speaker is simply saying, "This is how we do it here."(11) A nurse's so articulating the meaning of an established health care routine to an aide -- like an electrician's giving directions on the basis of a reading of a wiring diagram or blueprint(12) -- may well involve the exercise of some degree of judgment and discretion. Without more, however, a charge nurse delegated such limited authority over other employees is not exercising Section 2(11) independent judgment. Providence Hospital, 320 NLRB at 729-730.

In sum, as the Board explained in Providence Hospital, supra, 320 NLRB at 729:

Section 2(11) supervisory authority does not include the authority of an employee to direct another to perform discrete tasks stemming from the directing employee's experience, skills, training, or position, such as the direction which is given by a lead or journey level employee to another or apprentice employee, the direction which is given by an employee with specialized skills and training which is incidental to the directing employee's ability to carry out that skill and training, and the direction which is given by an employee with specialized skills and training to coordinate the activities of other employees with similar specialized skills and training.

(A) Independent Judgment and the Concept of a "Minor Supervisor":

As discussed above, Section 2(11)'s "independent judgment" requirement is the statutory means by which Congress effectuated its purpose to preserve the organizational rights of "'straw bosses, leadmen, and set-up men, and other minor supervisory employees'" who enjoy the Act's protections even though they perform "'minor supervisory duties.'" Bell Aerospace Co., 416 U.S. at 280-281. For that reason, the requirement of independent judgment is conjunctive, that is, it pertains to all twelve of the supervisory authorities listed in Section 2(11). The notion of narrowly circumscribed authority that Providence Hospital and Ten Broeck applied to the power to assign and responsibly direct is thus pertinent, not only to those two Section 2(11) authorities, but to all the others as well. Inherent in the concept of a leadman or minor supervisor that informs the independent judgment requirement is the possibility that an employee might exercise a number of different authorities in a routine or clerical manner without thereby becoming a Section 2(11) supervisor.

For example, if the limited supervisory judgment exercised by nurses in assigning and directing aides is routine because "more properly viewed as an exercise of their professional skills rather than an exercise of independent managerial judgment," NLRB v. Attleboro Associates, Ltd., 176 F.3d 154, 174 (3d Cir. 1999) (Bright, J., dissenting), then it is logical to infer that those same nurses' disciplinary reports of the aides' failures to adhere to the employer's established healthcare routines also manifest only a "routine judgment" (Id. at 172-173). Or as the Seventh Circuit put the matter, charge nurses' "assignment, scheduling, and disciplinary powers" over their aides are the powers of straw bosses rather than true supervisors where "they exercise those powers in fairly routine, preordained ways." NLRB v. Grancare, Inc., 170 F.3d 662, 668, (7th Cir. 1999) (en banc) (italics added).

Similarly, the authority to adjust grievances about work assignments is routine where it involves no more than smoothing over the conflicts that are inherent in group action and where the same detailed protocols and standard procedures that hem in a nurse's authority to assign and direct also narrowly circumscribe that nurse's authority to resolve disputes independently.(13) Likewise, the authority to make effective recommendations for the hire or continued retention of probationary employees may not be supervisory if the authority reflects a purely technical judgment(14) or only the routine judgment of a leadperson about the basic skills of his or her assistants.(15)

Because the concept of a leadman or minor supervisor that informs the Board's charge nurse cases turns ultimately on whether any authority exercised by the nurses is narrowly circumscribed, the record needs to contain evidence concerning the nature of the constraints placed on the nurses' exercise of professional and technical judgment and the degree of discretion they are actually afforded in their dealings with their less skilled assistants.

Thus, the record should provide answers to questions like the following:

  • What is the function that an RN or LPN is trained and licensed to perform?

  • Is it the case that the charge nurse's "supervision" involves the oversight and guidance provided for a small number of lower skilled, less educated employees performing routine health care tasks?

  • Does the charge nurse's "supervision" of these lower skilled employees take place in the context of the on-duty availability, particularly during the normal workday, of a number of individuals that do hold Section 2(11) status, typically a Director of Nursing, Assistant Director of Nursing and other admitted supervisors?

  • Is the relationship between nurses and aides at the facility in question any different than the relationship that nurses are normally trained to have or that prevails at other comparable facilities? Do nurses work sometimes as charge nurses and sometimes as staff nurses? Is the relationship between nurses and aides different depending on whether the nurse is functioning as a charge nurse or a staff nurse?

  • Does the facility have detailed protocols spelling out management's policy with respect to various aspects of patient care?(16) Do individual patients have detailed care plans specifying how they are to be treated? Who prepares them?(17)

  • Are there Medicaid and Medicare patients, so that the facility is subject to the guidelines that Medicaid and Medicare provides for such patients?

  • How are Medicaid, Medicare, or state requirements communicated and enforced in the facility? If such guidelines must be followed to meet regulatory and other requirements, who is responsible for making sure that the "letter of the law" is carried out? What responsibility do the DON, the ADON, and other conceded supervisors have to ensure compliance? How do they inform themselves about whether their subordinates are complying with external regulations and the facilities' own guidelines? How are they and their subordinates evaluated with respect to these matters?

  • Do nurses have authority to depart from the facility's guidelines, protocols, and individual patient care plans?(18) Are these materials the bases for the nurses' instructions to aides concerning their patient care duties?(19) If the guidelines or regulations allow discretion, who exercises that discretion?

  • If there is uncertainty concerning what guidelines mean because of ambiguities or apparent conflicts, who has authority to decide what action the guidelines require? Does the charge nurse have authority to resolve such doubtful issues by herself or by himself, or do persons higher in authority, such as the DON or a doctor, have to be consulted? How frequently do such issues arise and how are they resolved in practice?

  • What mechanisms are in place for ensuring compliance with the facility's guidelines and external regulations during evenings, nights, or weekends when the DON is not on site? To what extent are the activities on the evening and night shift more routine than those on the day shift? For example, is the night shift primarily custodial, because patients are sleeping, and is the evening shift largely devoted to routine tasks such as feeding patients, distributing medication, and getting them ready for bed?

  • Are higher authorities available by telephone if nonroutine problems arise on the evening or night shift or on weekends?(20)

  • What are the standing orders concerning when off-duty supervisors should be called and what are the sanctions if they are not called when they should be? How frequently are such calls made?(21)

  • Are there established procedures for handling emergency situations? Are nurses and aides trained how to respond to emergencies in accordance with the facility's procedures?

  • Are the nurses subject to state licensing requirements and professional codes of ethics in their dealings with aides? Do they have a professional obligation to prevent patient abuse and to report misconduct? Does the facility consider that professional obligation in deciding whether its staffing pattern is adequate to ensure sound patient care?

  • To what extent is the nurses' authority with respect to the aides limited to making sure they keep busy?(22)

  • If someone puts in an IV incorrectly or fails to refill a drip in a timely manner, is the charge nurse responsible for correcting the situation? Does that correction involve more than a more skilled and experienced person's directing an aide to follow standard operating procedures? Does the nurse have discretion about whether to make the correction?

(B) Assignment and Direction of Work:

The records in these cases should contain evidence of the managerial and supervisory hierarchy at the facility. As discussed above, pp. 15-23, with respect to the concept of a "minor supervisor," evidence of supervisory structure and span of control is relevant in determining the effective limits of the independent judgment the alleged supervisor is authorized to exercise. The record also needs to include the information concerning the extent of the authority that the charge nurse has concerning the assignment of both duties and hours. For example:

  • Does the facility have staffing policies that dictate the staffing coverage that is required? Can the charge nurse call in additional nurses or aides or authorize overtime for nurses or aides who are present if the floor gets particularly busy? Does the charge nurse need permission from a higher authority to do this? If the charge nurse does these things without approval, will he or she be disciplined? Will the employee be paid the overtime if approval was not obtained first? Alternatively, are existing staffing guidelines tantamount to pre-approval of necessary overtime?

  • Can the charge nurse reassign nurses to another floor or wing if the floor or wing is quiet and another floor is understaffed? Is approval from higher authority required? Who decides what constitutes "understaffing"? Are understaffing determinations made by reference to a standard formula that factors in the number of staff, the number of patients, and the relative acuteness of the patients' symptoms?

  • Can the charge nurse require employees to come in to work or stay beyond their shift, or only ask them?(23) Is there a prescribed staff-patient ratio that must be maintained or is there discretion with respect to the level of staffing? Does the charge nurse have discretion to decide who should be called in or is there an established routine for determining who is called in or asked to stay on?

  • What kinds of judgments are involved in making assignments to nurses or aides? To what extent are jobs rotated or altered in accordance with an established routine? To what extent are assignments based on the generally known skills associated with an employee's classification?(24)

  • To what extent does the nurse in question have discretion in deciding which of several employees should be assigned particular tasks (so that the nurse controls who gets the plum assignments and who gets the pits)?

  • To what extent are assignments a matter of mutual give and take?(25)

  • Who decides, and on what basis, when employees take lunch or other breaks? Who resolves disputes about breaks, and on what basis?

(C) Discipline:

Again, the record needs to include these facts in the context of the hierarchy of the facility. The Board's traditional analysis of the right to discipline employees or to be disciplined applies. For example:

  • Has the nurse in question been authorized by the employer to discipline employees or to make recommendations that will be given effective weight?(26) Have the employees been notified that the nurse has authority to discipline them? Or does the nurse's authority to affect other employees' job status derive solely from the respect accorded his or her professional or technical knowledge?(27)

  • Do the recommendations with respect to discipline reflect more than a routine or technical judgment that the employee has failed to perform routine work assignments in accordance with standard operating procedures that are part of the job, regardless of who is immediately in charge?(28)

  • Can the charge nurse issue counseling forms or is the nurse limited to oral counseling?(29) If written reports of substandard performance are prepared, what happens to these reports, e.g., are they placed in the employee's folder, used as a basis for discipline, in performance appraisal, etc.?

  • To what extent are the incidents so reported independently investigated?(30) Does the report include a recommendation as to what action should be taken against staff members involved in the incident? If so, how much weight do higher level officials give to such recommendations?(31)

  • Does the employer have a progressive disciplinary system? Does a warning given by a nurse under the employer's progressive disciplinary system have an effect on the job status of the disciplined employee? Do the charge nurses have the discretion to decide on their own whether to issue a warning that places an employee within a progressive disciplinary system or do they need higher level approval to issue such a warning?(32) Is such approval granted as a matter of course or only if higher management agrees with the proposed course of action? What evidence is there that higher management defers to the recommendations of the nurse with respect to progressive discipline?

  • Do all nurses, as a condition of retaining their professional licenses, have an obligation to report incidents of employee misconduct and patient abuse to higher officials? In practice, do staff nurses or aides, as well as charge nurses, report misconduct by other employees to higher management? Is the obligation of charge nurses to report misconduct any different from that of other employees? Are reports from charge nurses given greater weight or are they equally subject to independent investigation?

  • To what extent will the facility accommodate a nurse's request not to have to work with a particular aide?(33)

  • Can the charge nurse send an employee home for serious misconduct such as intoxication or patient abuse?(34) Do the facility's policies and procedures require the nurse to do so? Is prior approval by the DON necessary?(35) Or is that action pre-approved under the facility's policies and procedures? Does being sent home by a charge nurse cause an employee to be docked pay? Or does the impact on pay turn on whether the charge nurse's action is approved by higher authority?

  • Is the charge nurse responsible for correcting faulty work? Does the charge nurse report faulty work to the DON and leave any discipline to that official?

(D) Evaluations:

The record should contain evidence concerning the following:

  • Does the charge nurse evaluate employees?

  • If so, do the evaluations contain recommendations concerning wage increases, promotion, retention and the like?(36) How much weight do higher level officials give to such evaluations or recommendations?(37)

  • Are charge nurses the sole source of information about employee performance or do higher level officials obtain input on an employee's performance from other sources?

(E) Adjustment of Grievances:

The record should contain evidence concerning the following:

  • If there is a formal grievance procedure, what role, if any, does the charge nurse play?

  • Regardless of whether the grievance procedure is formal, what authority does the nurse have to resolve disputes between employees or gripes about the employer's treatment of employees with respect to work assignments, rewards, discipline, and the like?(38)

  • What disputes must be referred to higher management? What disputes, if any, can the charge nurse resolve independently?

  • What discretion does the nurse have in resolving grievances? To what extent do the limitations on the nurse's authority to assign, direct, discipline, or reward also limit his or her authority to resolve grievances?

PART TWO

CHECKLIST

SUPERVISORY ISSUES FOR NURSES IN THE HEALTH CARE INDUSTRY

INDEPENDENT JUDGMENT AND PROFESSIONAL RESPONSIBILITY

  1. Describe the managerial and supervisory hierarchy at the facility.

  2. What is the function that an RN or LPN is trained and licensed to perform?

  3. Are nurses trained to work with less skilled aides in caring for patients?

  4. To what extent does the nurse's function involve providing oversight and guidance for a small number of lower skilled, less educated employees performing routine health care tasks?

  5. To what extent do nurses function in the context of the ready availability, particularly during the normal workday, of other individuals who hold Section 2(11) status (such as a Director of Nursing, Assistant Director of Nursing or other admitted supervisors)?

  6. Is the relationship between nurses and aides at the facility in question any different than the relationship that nurses are normally trained to have or that prevails at other comparable facilities?

  7. Do nurses work sometimes as charge nurses and sometimes as staff nurses?

  8. Is the relationship between nurses and aides different depending on whether the nurse is functioning as a charge nurse or a staff nurse?

  9. Does the facility have detailed protocols spelling out management's policy with respect to various aspects of patient care?

    [Rest Haven Living Center, Inc., 322 NLRB 210, 211 (1996)]

  10. Do individual patients have detailed care plans specifying how they are to be treated? Who prepares them?

    [VIP Health Services, Inc. v. NLRB, 164 F.3d 644, 649 (D.C. Cir. 1999)]

  11. Are there Medicaid and Medicare patients, so that the facility is subject to the guidelines that Medicaid and Medicare provides for such patients?

  12. How are these Medicaid, Medicare, or state requirements communicated and enforced in the facility?

  13. If such guidelines must be followed to meet regulatory and other requirements, who is responsible for making sure that the "letter of the law" is carried out?

  14. What responsibility do the DON, the ADON, and other conceded supervisors have to ensure compliance?

  15. How do the DON, the ADON, and other conceded supervisors inform themselves about whether their subordinates are complying with external regulations and the facilities' own guidelines?

  16. How are they and their subordinates evaluated with respect to these matters?

  17. Do nurses have authority to depart from the facility's guidelines, protocols, and individual patient care plans?

    [American Radiator & Standard Sanitary Corp., 119 NLRB 1715, 1717-1718 (1958)]

  18. Are these materials the bases for the nurses' instructions to aides concerning their patient care duties?

    [VIP Health Services, Inc. v. NLRB, supra.]

  19. If the guidelines or regulations allow discretion, who exercises that discretion?

  20. If there is uncertainty concerning what guidelines mean because of ambiguities or apparent conflicts, who has authority to decide what action the guidelines require?

  21. Does the charge nurse have authority to resolve such doubtful issues by herself or by himself, or do persons higher in authority, such as the director of nursing or a doctor, have to be consulted?

  22. How frequently do such issues arise and how are they resolved in practice?

  23. What mechanisms are in place for ensuring compliance with the facility's guidelines and external regulations during evenings, nights, or weekends when the DON is not on site?

  24. To what extent are the activities on the evening and nightshift more routine than those on the day shift?

  25. Are higher authorities available by telephone if nonroutine problems arise on the evening or night shift or on weekends?

    [Children's Habilitation Center, Inc. v. NLRB, 887 F.2d 130, 133, 134 (7th Cir. 1989); NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1279 (5th Cir. 1986); NLRB v. Heid, 615 F.2d 962, 964 (2d Cir. 1980); Oil, Chemical and Atomic Workers Int. Union v. NLRB, 445 F.2d 237, 241-242 (D.C. Cir. 1971); NLRB v. City Yellow Cab Co., 344 F.2d 575, 581-582 (6th Cir. 1965); Lowery Trucking Co., 200 NLRB 672, 673-674 (1972); Contra, Grancare Inc. v. NLRB, 137 F.3d 372, 376 (6th Cir. 1998); Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 341-342 (4th Cir. 1998)]

  26. What are the standing orders concerning when off-duty supervisors should be called and what are the sanctions if they are not called when they should be? How frequently are such calls made?

    [Northcrest Nursing Home, 313 NLRB 491, 500 (1993); Compare, NLRB v. American Medical Services, Inc., 705 F.2d 1472, 1473 (7th Cir. 1983) and Northwoods Manor, Inc., 260 NLRB 854, 854-855 (1982) with NLRB v. Orr Iron, Inc., 508 F.2d 1305, 1305 (7th Cir. 1975) and Diversified Health Services, 180 NLRB 461, 461 (1969)]

  27. Are there established procedures for handling emergency situations? Are nurses and aides trained how to respond to emergencies in accordance with the facility's procedures?

  28. Are the nurses subject to state licensing requirements and professional codes of ethics in their dealings with aides?

  29. Do nurses have a professional obligation to prevent patient abuse and to report misconduct?

  30. Does the facility consider that professional obligation in deciding whether its staffing pattern is adequate to ensure sound patient care?

  31. To what extent is the nurses' authority with respect to the aides limited to making sure they keep busy?

    [Polynesian Hospitality Tours, 297 NLRB 228, 228-229 (1989); Precision Fabricators, Inc. v. NLRB, 204 F. 2d 567, 568-569 (2d Cir. 1953)]

  32. If someone puts in an IV incorrectly or fails to refill a drip in a timely manner, is the charge nurse responsible for correcting the situation?

  33. Does that correction involve more than a more skilled and experienced person's directing an aide to follow standard operating procedures? Does the nurse have discretion about whether to make the correction?

ASSIGNMENT AND DIRECTION OF WORK

  1. Does the facility have policies dictating the staffing coverage that is required?

  2. Do the charge nurses have the authority to call in additional nurses or aides or to authorize overtime for nurses or aides?

  3. Under what circumstances can the charge nurses call in additional personnel, or to authorize overtime?

  4. Do the charge nurses need permission from higher authority before calling in additional personnel or authorizing overtime?

  5. Are the charge nurses in dispute subject to discipline if they call in additional personnel or authorize overtime without securing permission from higher authority?

  6. If approval was not obtained from higher management authority, do the employees called in or asked to work overtime by the charge nurses receive overtime?

  7. Do existing staffing guidelines address or cover situations requiring employees to work overtime? Are existing staffing guidelines mandatory? Is there any scope for independent judgment, or is the charge nurse, in authorizing overtime or calling in additional staff, merely the conduit for transmitting decisions made by higher management?

  8. Can charge nurses reassign personnel to different floors or wings of a facility to compensate for under-staffing or over-staffing, or if a wing is not busy?

  9. Before reassigning personnel among the floors or wings, do charge nurses have to obtain approval from higher management?

  10. Who decides what constitutes "understaffing"? Do charge nurses determine when a floor or wing is under-staffed?

  11. Are understaffing determinations made by reference to a standard formula that factors in the number of staff, the number of patients, and the relative acuteness of the patients' symptoms? Is the understaffing decision a routine or clerical discharge of professional duties, or is it an exercise of supervisory independent judgment?

  12. Do charge nurses have the authority to require employees to come in or stay at work beyond their regular shift? Or do charge nurses merely request that employees do so?

    [Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir. 1997); Children's' Habilitation Center, Inc. v. NLRB, supra.; NLRB v. City Yellow Cab Co., supra.]

  13. Does the facility have a prescribed staff-patient ratio that must be maintained or is there discretion with respect to determining the level of staffing?

  14. When calling in employees or seeking employees to work overtime, do charge nurses have discretion to determine who should be called in or asked to stay beyond their shift? Is there an established routine to determine which employees are called or asked?

  15. Do charge nurses make assignments to other staff personnel? What kinds of judgments are involved in making assignments nurses or aides?

  16. Assuming that charge nurses are responsible for making assignments to other personnel, to what extent are the assignments rotated, altered or made in accordance with an established routine?

  17. Do the charge nurses make assignments based on the generally known skills associated with an employee's classification?

    [Providence Hospital, 320 NLRB 717, 727, 731 (1996); NLRB v. Aquatech, Inc., 926 F.2d 538, 543, 549 (6th Cir. 1991), enforcing 297 NLRB 711, 717 (1990); Quadrex Environmental Co., 308 NLRB 101 (1992); Clark Machine, 308 NLRB 555, 555-556 (1992); Scranton Tribune, 294 NLRB 692, 693 (1989)]

  18. Do charge nurses have discretion to determine which among several employees should be assigned a particular task?

  19. Do the charge nurses make assignments without consultation with the employees? To what extent are assignments a matter of give and take between the charge nurse and the staff?

    [Washington Post Co., 254 NLRB 168 (1981); Skaggs Drug Centers, 197 NLRB 1240 (1972); Peoria Journal Star, Inc., 117 NLRB 708 (1957)]

  20. Do the charge nurses have authority to grant employees' lunch or other breaks?

    [Washington Nursing Home, Inc., 321 NLRB 366 (1996); Northcrest Nursing Home, 313 NLRB 491 (1993)]

  21. Are lunch and other breaks regularly scheduled?

  22. If breaks are regularly scheduled, do charge nurses have authority to alter the break times?

    [Washington Nursing Home, supra]

  23. Do employees bring disputes regarding breaks to the charge nurses?

    [Northcrest Nursing Home, supra]

  24. Do charge nurses have the authority to grant time off? To allow employees to leave early or arrive late?

DISCIPLINE

  1. Has the Employer authorized the charge nurses to discipline employees? Or to make recommendations that will be given effective weight?

    [Misericordia Hospital v. NLRB, 623 F.2d 808 & n.20 (2d Cir. 1980)]

  2. If the Employer has authorized charge nurses to administer discipline, have other employees been notified that charge nurses have authority to discipline them?

  3. Do charge nurses carry out discipline of staff personnel based on delegated authority? Or, does a charge nurse's authority to affect other employees' job status derive solely from the respect accorded to their professional or technical knowledge?

    [Southern Bleachery & Print Works, 115 NLRB 787 (1956); aff'd 118 NLRB 299 (1957), enf'd. 257 F.2d 235 (4th Cir. 1958); Soil Engineering Co., 269 NLRB 55, 56 (1984); Stop & Shop Companies, Inc. v. NLRB, 538 F.2d 17, 19 (1st Cir. 1977)]

  4. Do the recommendations reflect more than a routine or technical judgment that the employee has failed to perform routine work assignments in accordance with standard operating procedures that are part of the job, regardless of who is immediately in charge?

    [NLRB v. Dickerson-Chapman, Inc., 964 493, 500 (5th Cir. 1992); NLRB v. Adco Elec., Inc., 6 F.3d 1111, 1117 (5th Cir. 1993)]

  5. In disciplining employees, do charge nurses complete any type of form or place any notations in employees' personnel files? Are they limited to oral counseling?

    [Beverly Enterprises d/b/a Lynwood Health Care Center v. NLRB, 148 F.2d 1042 (8th Cir. 1998); Waverly-Cedar Falls Health Care Center, 297 NLRB 390 (1989)]

  6. If charge nurses prepare written reports of discipline, what happens to these reports? Are they placed in the employees' personnel file? Do such reports affect the status of employees? Are such reports relied on as a basis for discipline or in performance appraisals?

  7. To what extent are incident reports prepared by charge nurses independently investigated?

    [Passavant Health Center, 284 NLRB 887 (1987); Esco Corp., 298 NLRB 837, 838, 839 (1990); Waverly-Cedar Falls Health Care Center, supra.; NLRB v. Security Guard Service, Inc., 384 F.2d 143, 148 (5th Cir. 1967); NLRB v. City Yellow Cab Co., supra.; United States Gypsum Co., 105 NLRB 931, 934, 938 (1953); E.I. Dupont de Nemours & Co., 69 NLRB 507, 517 (1946); Contra, Caremore, Inc. v. NLRB, 129 F.3d 365, 370 (6th Cir. 1997); Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 342-343 (4th Cir. 1998); Eastern Greyhound Lines v. NLRB, 337 F.2d 84,88-91 (6th Cir 1964)]

  8. Do reports prepared by charge nurses contain a recommendation as to appropriate action to take against employees?

  9. If charge nurses make a recommendation, how much weight do higher level officials give such recommendations?

    [Legal Aid Society, 324 NLRB 796 (1997); Venture Industries, Inc., 327 NLRB No. 169, 1999 WL 161049, *3 (March 19, 1999); Presbyterian Medical Center, 218 NLRB 1266, 1268 (1975)]

  10. Does the employer have a progressive disciplinary system?

  11. Does a warning given by a nurse under the employer's progressive disciplinary system have an effect on the job status of the disciplined employee?

  12. Do the charge nurses have the discretion to decide on their own whether to issue a warning that places an employee within a progressive disciplinary system, or do they need higher level approval to issue such a warning?

    [Heartland of Beckley, 328 NLRB No. 156 (July 27, 1999); Passavant Health Center, supra.; Concourse Village, 276 NLRB 12, 13 (1985)]

  13. Is such approval granted as a matter of course, or only if higher management agrees with the proposed action? What evidence is there that higher management defers to the nurse's recommendation with respect to progressive discipline?

  14. Do charge nurses as a condition of retaining their professional licenses have an obligation to report incidents of employee patient abuse to higher officials?

  15. In practice, do other members of the staff, as well as the charge nurses, report misconduct by other employees to higher management?

  16. Is the obligation of charge nurses to report misconduct any different from that of other employees?

  17. Are reports from charge nurses given greater weight than from other employees or are all reports subject to independent investigation?

    [United States Gypsum Co., supra.]

  18. To what extent does the facility accommodate a charge nurse's request not to work with a particular aide or other nurse?

    [Southern Bleachery & Print Works, supra; Willis Shaw Frozen Food Express, 173 NLRB 487 (1968); Kenosha News Publishing Corp., 264 NLRB 270 (1980); Greenspan, D.D.S., P.C., 318 NLRB 70 (1995)]

  19. Does charge nurse have the authority to suspend, relieve from work or send home an employee for serious misconduct, such as intoxication or patient abuse?

    [G.H. Skipper, Inc., 254 NLRB 453 (1981); Phelps Community Medical Center, 295 NLRB 486 (1989); Waverly-Cedar Falls Health Care Center, supra.; NLRB v. Hilliard Development Corp., supra.; Contra, Passavant Retirement & Health Center v. NLRB, 149 F.3d 243, 248, 249 (3rd Cir. 1998); Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 343 (4th Cir. 1998)]

  20. Do the facility's policies and procedures require charge nurses to take certain action in case of specific misconduct by staff members?

  21. Do charge nurses have the authority to send employees home? Must they obtain approval of higher officials before sending an employee home or relieving an employee from duty?

    [NLRB v. City Yellow Cab Co., 344 F.2d 575 (6th Cir. 1965); NLRB v. Security Guard Service, Inc., 384 F.2d 148 (5th Cir. 1967); NLRB v. Res-Care, Inc., 705 F.2d 1461, 1467 (7th Cir. 1983)]

  22. Does the facility have an established policy under which charge nurses can remove an employee from duty or send a staff member home for misconduct?

  23. In the event an employee is relieved of duty or sent home by a charge nurse, does the employee lose any pay? Does the impact on pay turn on whether the higher authority approves the charge nurse's action?

  24. Do charge nurses have the responsibility to correct faulty work by staff members? Or, do charge nurses report faulty work to higher management officials and leave any discipline to that official?

EVALUATION OF EMPLOYEES

  1. Do charge nurses authorized to evaluate employees?

    [Providence Hospital, supra; Ten Broeck Commons, supra; Beverly Enterprises d/b/a Lynwood Health Care Center, supra]

  2. If charge nurses are authorized to evaluate employees, do the evaluations contain recommendations concerning wage increases, promotions, retention and the like?

    [Beverly Enterprises d/b/a Lynwood Health Care Center, supra; Providence Hospital, supra]

  3. If charge nurses prepare evaluations, how much weight does higher level management officials give such evaluations or recommendations?

    [First Healthcare Corp., et al., 323 NLRB 1171 (1997)]

  4. Are charge nurses the sole source of information about employee performance?

  5. Do higher-level management officials obtain input of an employee's performance from sources other than the evaluations prepared by charge nurses?

  6. If so, what is the evidence that the charge nurses' evaluations have a direct causal relationship in affecting the ultimate determination whether to reward, promote or otherwise alter the job status of the evaluated employees?

ADJUSTMENT OF GRIEVANCES

  1. Is there is a formal grievance procedure? If so, what role does the charge nurse play? Are charge nurses involved in handling grievances?

    [Passavant Health Center, 284 NLRB 887 (1987); Lakeview Health Center, 308 NLRB 75 (1992)]

  2. Regardless of whether the grievance procedure is formal, what authority does the nurse have to resolve disputes between employees or gripes about the employer's treatment of employees with respect to work assignments, rewards, discipline and the like?

    [NLRB v. Hilliard Development Corp., supra.; St. Francis Medical Center-West, 323 NLRB 1046, 1047-48 (1997); Laborers & Hod Carriers Local No. 341 v. NLRB, 564 F.2d 834, 837 (9th Cir. 1977)]

  3. What disputes must be referred to higher management? What disputes, if any, can the charge nurse resolve by himself or by herself?

  4. What discretion does the nurse have in resolving grievances?

  5. To what extent do the limitations on the nurse's authority to assign, direct, discipline, or reward also limit his or her authority to resolve grievances?

FOOTNOTES:

1 See Ohio Masonic Home, 295 NLRB 390, 393 n.7 (1989) (representation case; burden placed on employer to prove supervisory status); Bowen of Houston, Inc., 280 NLRB 1222, 1223 (1986) (representation case; burden placed on petitioning union to prove that individual whose ballot it challenged was supervisor); Ahrens Aircraft, Inc., 259 NLRB 839, 842 (1981), enf'd, 703 F.2d 23, 24 (1st Cir. 1983) (unfair labor practice case; burden placed on respondent employer to prove that discriminatees were supervisors); Hydro Conduit Corp., 254 NLRB 433, 441 (1981) (unfair labor practice case; burden placed on General Counsel to prove that individual whose conduct was allegedly attributable to employer was supervisor).

2 New York University Medical Center v. NLRB, 156 F.3d 405, 413 (2d Cir. 1998); NLRB v. Joy Recovery Technology Corp., 134 F.3d 1307, 1313 (7th Cir. 1998); Schnuck Markets, Inc. v. NLRB, 961 F.2d 700, 703 (8th Cir. 1992); NLRB v. Bakers of Paris, Inc., 929 F.2d 1427, 1445 (9th Cir. 1991); Cooper/T. Smith, Inc. v. NLRB, 177 F.3d 1259, 1263, 1269 (11th Cir. 1999). See also NLRB v. North Carolina Granite Corp., 201 F.2d 469, 470 (4th Cir. 1953) (evidence that employee was a laborer established his right to vote "in the absence of evidence that he occupied a supervisory status"); Children's Habilitation Center, Inc. v. NLRB, 887 F.2d 130, 132 (7th Cir. 1989) ("The burden of persuasion is on the employer," who was contending that the charge nurses there were supervisors); Beverly Enterprises--Massachusetts, Inc. v. NLRB (East Village Nursing), 165 F.3d 960, 962 (D.C. Cir., 1999) ("The burden of proving supervisory status rests upon the party asserting it."), citing, Beverly Enterprises-Pennsylvania, Inc. v. NLRB, 129 F.3d 1269, 1270 (D.C. Cir. 1997) (employee is a supervisor only if the requisite statutory questions "are answered in the affirmative"; employer "failed to show" that LPNs at issue exercised supervisory authority); Adco Electric, 307 NLRB 1113 n. 3 (1992), enf'd., 6 F.3d 1110 (5th Cir. 1993) (where the Board's allocation of the burden was not questioned by the court). Contra: Health Care & Retirement Corp. of America v. NLRB, 987 F.2d 1256 (6th Cir. 1993), aff'd on different grounds, 511 U.S. 571 (1994); NLRB v. Beacon Light Christian Nursing Home, 825 F.2d 1076, 1080 (6th Cir. 1987), criticized in Grancare, Inc. v. NLRB, 137 F.3d 372, 372 (6th Cir. 1998) (Moore, J., concurring). See also NLRB v. Hilliard Development Corp., ___ F.3d ___, 1999 WL 508814, *7 (1st Cir., July 22, 1999) (noting the Board's allocation of the burden, but stating that "[t]he question of whether that allocation of burdens is correct is not before us").

3 Bozeman Deaconess Hospital, 322 NLRB 1107 n.4 (1997) (rejecting contrary view of Sixth Circuit); Azusa Ranch Markets, 321 NLRB 811, 812 (1996).

4 Chicago Metallic Corp., 273 NLRB 1677, 1689 (1985), enforcement denied, on other grounds, 794 F.2d 527 (9th Cir. 1986); Hydro Conduit Corporation, 254 NLRB 433, 437 (1981).

5 See, for example, Beverly Enterprises-Massachusetts, Inc. v. NLRB, 165 F.3d 960, 963 (D.C. Cir. 1999), where the nature and difficulty of the task was recently discussed as follows:

Because of the serious consequences of an erroneous determination of supervisory status, particular caution is warranted before concluding that a worker is a supervisor despite the fact that the purported supervisory authority has not been exercised. In some cases, such a conclusion is no doubt appropriate. For example, in a given situation, the failure to exercise supervisory authority may indicate only that circumstances have not warranted such exercise. In such a case, it may be quite possible to establish that real authority is possessed, despite the lack of exercise. In fact, a supervisor's lack of occasion to exercise authority may itself indicate that that authority is very strong indeed. But absent exercise, there must be other affirmative indications of authority. Statements by management purporting to confer authority do not alone suffice. See Chevron, U.S.A., Inc., 309 NLRB 59, 69, 1992 WL 280497 (1992) (no weight given "job descriptions that attribute supervisory authority where there is no independent evidence of its possession or exercise"); Advanced Mining Group, 260 NLRB 486, 1982 WL 24261 (1982) ("What is relevant is the actual authority possessed and not the conclusory assertions of a company's officials."). For example, in Oil, Chemical and Atomic Workers Int'l Union, AFL-CIO v. NLRB, 445 F.2d 237 (D.C.Cir. 1971) ("OCAW"), this court upheld the Board's conclusion that "senior operators" were not supervisors, despite notices and postings by the employer that the senior operators were to supervise the personnel on their shift. We noted that "beyond the statements or directives themselves, what the statute requires is evidence of actual supervisory authority visibly translated into tangible examples demonstrating the existence of such authority." Id. at 243.

6 Accord Edward Street Daycare Center, Inc. v. NLRB, ___ F.3d ___, 1999 WL 623906, *3 (1st Cir., Aug. 20, 1999); NLRB v. Grancare, Inc. 170 F.3d 662, 666 (7th Cir. 1999) (en banc) (discussing the principle that the Board must take care not to construe supervisory status too broadly); Williamson Piggly Wiggly v. NLRB, 827 F.2d 1098, 1100 (6th Cir. 1987) (same); McDonnell Douglas Corp. v. NLRB, 655 F.2d 932, 936 (9th Cir. 1980) (same), cert. denied, 455 U.S. 1017 (1982); Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970) (same), cert. denied, 400 U.S. 831 (1970).

7 In applying the foregoing principles, however, it also must be remembered that, in evaluating the undisputed or credited evidence that the proponent has placed in the record, the Board "must draw all inferences that the evidence fairly demands" Allentown Mack Sales & Serv., Inc. v. NLRB, 118 S.Ct. 818, 829 (1998).

8 Accord 93 Cong. Rec. 4677-4678 (1947) (Sen. Flanders) (statutory definition, as amended to include the language "responsibly to direct," aimed at persons "above the grade of 'straw bosses, lead men, set-up men, and other minor supervisory employees,' as enumerated in the report"). See also, Endicott Johnson Corp., 67 NLRB 1342, 1347 (1946) (persons who directed one to six employees and whose "duties are to keep production moving on schedule and to inspect and control the quality of work" are not supervisors), cited with approval in S.Rep. No. 105, supra, at 4.

9 Accord Beverly Enterprises-Pennsylvania, Inc. v. NLRB, 129 F.3d 1269 (D.C. Cir. 1997) (Board warranted in finding "extremely limited" direction and assignment of employees by LPNs was "merely routine" where LPNs' assignment and direction of employees "consists of assigning and monitoring the performance of discrete patient care tasks, scheduling CNA breaks to minimize the disruption of patient care, and sometimes assigning CNAs to particular patient rooms within a wing"); Beverly Enterprises v. NLRB, 148 F.3d 1042, 1047 (8th Cir. 1998) (Board warranted in finding that nurses' authority to adjust aides' duties and priorities in response to changes in patient condition and in personnel availability "does not require the use of independent judgment but is instead narrowly circumscribed by an elaborate system of procedures, policies, and protocol regarding patient care"); NLRB v. Grancare, Inc., 170 F.3d 662, 668 (7th Cir. 1999) (en banc) ("[A]lthough Grancare's LPNs have some assignment, scheduling, and disciplinary powers over CNAs, they exercise those powers in fairly routine, preordained ways. They act more like "straw bosses" than foremen."); NLRB v. Hilliard Development Corp., ___ F.3d ___, 1999 WL 508814, *7 (1st Cir., July 22, 1999) (Board's interpretation of "independent judgment" approved: "it harmonizes the Act's definitions of 'supervisor' and 'professional employee' in a sensible way, consistent with Congress's intent to exclude as supervisors only those employees with 'genuine management prerogatives'"). Contra Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 341-342 (4th Cir. 1998) (faulting the Board's finding of nonsupervisory status on the ground that "[t]he Board mistakenly assumes that because there is an established procedure for handling a particular scheduling situation, nobody is required to think"); Beverly Enterprises, Virginia, Inc. v. NLRB, 165 F.3d 290, 295 (4th Cir. 1999) (en banc) ("[w]hen an employer grants to an employee the authority to use judgment in the management or evaluation of other employees, that judgment is independent judgment under the NLRA, not the exercise of professional expertise."); NLRB v. Attleboro Associates, Ltd., 176 F.3d 154, 167-169 (3d Cir. 1999) (same). Cf. Mid-America Care Foundation v. NLRB, 148 F.3d 638, 643 (6th Cir. 1998) (where the court assumed, incorrectly, that, under the Board's own construction of Section 2(11), evidence that LPNs "engage in several supervisory activities that are not 'strictly regulated by specific employer policy'" is fatal to a finding of nonsupervisory status).

10 E.g., Ten Broeck Commons, 320 NLRB 806, 807, 809-812 & nn.9-11 (1996) (LPNs' "narrowly circumscribed" assignment and direction of aides is routine in a Section 2(11) sense where based on detailed individual health care plans that reflect the LPNs' expert technical judgment and are reviewed and approved by a registered nurse); Golden-West Broadcasters-KTLA, 215 NLRB 760, 762, n.4 (1974) ("[A]n employee with special expertise or training who directs or instructs another in the proper performance of his work for which the other is professionally responsible is not thereby rendered a supervisor . . . . This is so even when the more senior or more expert employee exercises some independent discretion where, as here, such discretion is based upon special competence or upon specific articulated employer policies."); Washington Post Co., 254 NLRB 168, 204, 208 (1981) (night editors for news sections, who as ranking editors on duty in their departments may require reporters to rewrite stories and call them to cover unplanned breaking stories, are not supervisors; the assistant managing editors for the section are in contact with the editors during their shift, and the judgment exercised by the night editor is news judgment rather than supervisory judgment and the assignment of stories is "routine").

11 E.g., Northern Montana Health Care, 324 NLRB 752, 753 (1997) ("[I]f an LPN sees a nurses aide performing a task incorrectly, the LPN will simply demonstrate to the aide the correct way to perform the task. This is nothing more than the exercise of the LPN's greater skill and experience in helping a less-skilled employee perform her job correctly."), enforced 178 F.3d 1089 (9th Cir. 1999).

12 Adco Electric, Inc., 307 NLRB 1113, 1122-26 (1992), enforced, 6 F.3d 1110, 1117-18 (5th Cir. 1993) (journeyman electrician's directing work of apprentice on the basis of superior knowledge insufficient to establish supervisory status where job blueprints and progress reports provided by management dictated what work should be done and when); NLRB v. Aquatech, Inc., 926 F.2d 538, 543, 549 (6th Cir. 1991), enforcing 297 NLRB 711, 717 (1990) (upholding Board finding that leadman's training and guidance of fellow employees, to whom he delegated various tasks depending on their particular skill, not supervisory where it reflected the authority of superior knowledge; while leadman had authority to correct their work, there was no evidence of authority to reprimand or discipline).

13 St. Francis Medical Center-West, 323 NLRB 1046, 1047-48 (1997) (Production Leader in hospital's nutrition services department not a supervisor but an experienced lead person directing employees engaged in routine work, notwithstanding the fact that other employees may go to the lead person to complain that fellow employees are not pulling their load and that as a result the matter was looked into and eventually improved. "This limited authority to resolve a 'squabble' between employees does not warrant an inference that [the production leader] has statutory authority to adjust grievances . . . "); Laborers & Hod Carriers Local No. 341 v. NLRB, 564 F.2d 834, 837 (9th Cir. 1977) (routinely adjusting job duties in response to employees' requests is not supervisory). Contra NLRB v. Attleboro Associates, Ltd., 176 F.3d 154, 166 (3d Cir. 1999) (power to resolve minor gripes concerning assignments and break times involves independent judgment and is supervisory); Passavant Retirement & Health Ctr. v. NLRB, 149 F.3d 243, 248 (3d Cir. 1998) (same).

14 Graphics Typography, Inc., 217 NLRB 1047, 1053 & n.16 (1975), (leadman lacked authority effectively to recommend hire in part because his "assigned function was merely to ascertain the technical competence of the applicants as a preliminary to their further interview by Respondent's management officials."), enforced mem., 547 F.2d 1162 (3d Cir. 1976); Medicine Bow Coal Company, 217 NLRB 931, 938-939 (1975) (authority to administer a welding test to screen the proficiency of applicants not supervisory but only authority derived from working skill and experience). Cf. Noranda Aluminum, Inc. v. NLRB, 751 F.2d 268, 270 (8th Cir. 1984) (nurses' limited authority to keep employees off the job for health reasons not managerial where "the nurses' discretion is limited to applying their professional medical skills to the job criteria established by the company").

15 Comax Telcom Corp., 219 NLRB 688, 688-689 & n.2 (1975) (CATV technicians' evaluations of their assistants, which were considered in making promotions and deciding whether someone working on a 90-day trial period was unsuitable, were not supervisory because "based on the technicians' expertise rather than any real supervisory authority"); Ohio River Co., 303 NLRB 696, 606 n.1, 718-719 (1991), enforced mem., 961 F.2d 1578 (6th Cir. 1992) (finding, "based on the unique circumstances described in the record," that mates exercised only the routine judgment of their craft in recommending whether probationary deckhands had the minimum working skill, ability, safety, and general work and company attitudes to warrant continued employment).

16 Rest Haven Living Center, Inc., 322 NLRB 210, 211 (1996) ("[T]he LPNs' directives to CNAs are narrowly circumscribed and involve giving general, routine directions to lesser skilled employees consistent with established employer policies in order to maintain the quality of care. If an LPN sees a patient that needs attention or a job that has not been properly done, the LPN will call it to the attention of the CNA. In emergencies, LPNs and CNAs work together to ensure that the sick resident receives the best possible care. As we concluded in Ten Broeck Commons, supra, this type of direction does not involve the independent judgment required by Section 2(11).").

17 Cf. VIP Health Services, Inc. v. NLRB, 164 F.3d 644, 649 (D.C. Cir. 1999) (where individual patient care plans detailing the responsibilities of nurse aides reflect the doctor's orders for the patient and are reviewed by conceded supervisors, the limited input of the nurse into the plan is primarily routine).

18 See American Radiator & Standard Sanitary Corp., 119 NLRB 1715, 1717-1718 (1958) (persons in charge of various operations not supervisors where they operate within established procedures, refer difficult questions concerning which procedures apply to their superiors, and where they "may make suggestions for changes in method or procedure derived from their experience, as may other employees, but have no authority to put such changes into effect.").

19 VIP Health Services, Inc. v. NLRB, 164 F.3d 644, 649 (D.C. Cir. 1999) (assigning aides the types of discrete tasks called for by the individual health care plan is "routine.").

20 For many years, the Board and the courts have recognized that some employers do not find it necessary to have on-site supervision on each shift, so long as a supervisor is always on call to consult with the leadperson in charge if something not covered by established routines should happen to arise. See, e.g., Children's Habilitation Center, Inc. v. NLRB, 887 F.2d 130, 133, 134 (7th Cir. 1989) (rejecting claim that persons in charge of night shift were Section 2(11) supervisors on the ground that actual supervisors were "only a telephone call away," active supervision was not required to the extent that patients were asleep, and in the event of medical emergency, the professional supervision of a skilled nurse was what was called for); NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1279 (5th Cir. 1986) (noting that supervisors "are generally available for consultation on the weekends and in the evenings" and that the Board "could reasonably conclude that the highly skilled technical personnel employed by KDFW do not require constant or close supervision"); NLRB v. Heid, 615 F.2d 962, 964 (2d Cir. 1980) ("The work at a restaurant is routine in nature and absence of a true [Section 2(11)] supervisor . . . is hardly surprising when the night shift comprises only five workers and the overall manager is usually available at home by telephone"); Oil, Chemical and Atomic Workers Int. Union v. NLRB, 445 F.2d 237, 241-242 (D.C. Cir. 1971) (absence of on-site supervision during many hours of the day does not mean that senior operators "responsibly direct" junior operators where standard operating procedures govern the activities of both senior and junior operators, where nonroutine instructions emanate from conceded supervisors, and "in cases of emergency, or whenever unusual circumstances have arisen in the plant, the senior operators were instructed to communicate with the plant manager rather than exercise "'independent judgment'"), cert. denied, 404 U.S. 1039 (1972); NLRB v. City Yellow Cab Co., 344 F.2d 575, 581-582 (6th Cir. 1965) (absence of on-site supervision at night and other times does not make persons in charge supervisors where the record showed that their superiors "could be reached by telephone and that if a serious situation arose at night, they were called out of bed"); Lowery Trucking Co., 200 NLRB 672,673-674 (1972) (senior employee on night shift lacked authority to exercise substantial independent judgment where night shift employees "were all regularly assigned to perform particular types of servicing," where conceded supervisors on day shift where available if "major questions" arose, and where supervisors did not give detailed instructions to night crew members because "they knew their jobs and did them."). Contra: Grancare Inc. v. NLRB, 137 F.3d 372, 376 (6th Cir. 1998) (finding charge nurses to be supervisors because a contrary finding would mean there was no on-site supervision almost half the time, which is "'not a reasonable conclusion for a well-run nursing home'"); Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 341-342 (4th Cir. 1998) (same).

21 See Northcrest Nursing Home, 313 NLRB 491, 500 (1993) ("[W]e recognize that secondary indicia can shed light on whether primary indicia exist. For example, if a charge nurse is the only person in charge at night, and there is no practice of checking with others by phone or otherwise, this may suggest that employment decisions made by the charge nurse involve the use of independent judgment."). Compare: NLRB v. American Medical Services, Inc., 705 F.2d 1472, 1473 (7th Cir. 1983) (finding, contrary to the Board, that the charge nurses on the evening and night shift were supervisors in part because "although their supervisors carry beepers and thus can be reached at any time, the evidence . . . is that the registered nurses on the premises really are in charge-months may pass before any of them gets in touch with their supervisor during the evening or night shift . . . . ") and Northwoods Manor, Inc., 260 NLRB 854, 854-855 (1982) (finding "supervisory authority which requires the use of independent judgment and goes beyond the mere exercising of patient care responsibilities" in part because on at least one shift per day during the week and two shifts per day each weekend, charge nurses are the highest ranking employees on duty and "[a]lthough charge nurses have the option to consult with the director of nursing by telephone during these shifts, a director testified that they have never called her.") with NLRB v. Orr Iron, Inc., 508 F.2d 1305, 1307 (7th Cir. 1975) (sustaining the Board's finding that the night foreman, whose "primary responsibility was to get the trucks loaded," was not a supervisor where he had "standing instructions" to call one of two conceded supervisors "if any problem arose [and this] he did frequently;" single incident where he "told one of the steel handlers to do his work or to go home" was an "incidental and extraordinary exception[]" to his regular practice and did not establish that he had "the authority to discipline . . . . as one of his regular functions.") and Diversified Health Services, 180 NLRB 461, 461 (1969) (finding charge nurses on evening and night shifts and weekend are not supervisors where "[t]he record reveals that the authority over the aides working with them is quite limited" and "the record reveals that [the Director of Nursing] is available at home and frequently called by the RN's when any problem above the ordinary occurs.") (italics added).

22 See Polynesian Hospitality Tours, 297 NLRB 228, 228-229 (1989) (co-chiefs of washcrew not shown to exercise independent judgment in telling employees "to get back to work if they are malingering or sleeping;" mere "routine direction of simple tasks or the issuance of low level orders" is not an exercise of supervisory authority), enforced per curiam, 920 F.2d 71, 74 (D.C. Cir. 1990), cert. denied, 502 U.S. 810 (1991); Precision Fabricators, Inc. v. NLRB, 204 F.2d 567, 568-569 (2d Cir. 1953) (leadman who keeps employees busy on assignments given him by others is not a supervisor).

23 See Providence Alaska Medical Center v. NLRB, 121 F.3d 548, 552-54 (9th Cir. 1997) (charge nurses not supervisors where they decided whether to seek replacements for absent employees, but could not compel employees to work overtime); Children's Habilitation Center, Inc. v. NLRB, 887 F.2d 130, 134 (7th Cir. 1989) (where purported supervisors cannot require, but can merely ask, aides to come in to work or remain at work when the aides are not scheduled, such authority held to be "too routine" to be supervisory); NLRB v. City Yellow Cab Co., 344 F.2d 575, 579 (6th Cir. 1965) (option to ask operators if they wish to do overtime is not supervisory function where operators may refuse).

24 See Providence Hospital, 320 NLRB 717, 727, 731 (1996)("working assignments made to equalize work among employees' skills, when the differences in skills are well known, are routine functions and do not require the exercise of independent judgment), enforced, 121 F.3d 548 (9th Cir. 1997); NLRB v. Aquatech, Inc., 926 F.2d 538, 543, 549 (6th Cir. 1991), enforcing 297 NLRB 711, 717 (1990) (upholding Board finding that leadman's assigning work to members of his group on basis of their levels of experience not supervisory where leadman basically is a conduit for assignments from higher management); Quadrex Environmental Co., 308 NLRB 101 (1992) (independent judgment in making work assignments not shown where assignments made in accord with detailed project plan prepared by management; "when employees have specific skills and management prepares a master schedule based on those skills, assignment of daily jobs amounts merely to routine implementation of orders"); Clark Machine, 308 NLRB 555, 555-556 (1992) (independent judgment not shown where assistant foreman usually merely relayed foreman's assignments, together with blueprints, and to the extent he had discretion to assign one-day jobs on the basis of availability and ability, the different abilities of the employees in the shop were known to everyone in the shop); Scranton Tribune, 294 NLRB 692, 693 (1989)(assignment of a particular job to a particular reporter based upon the availability of the reporter is merely routine).

25 Washington Post Co., 254 NLRB 168, 208 (1981) (authority to assign deemed nonsupervisory where editors assign reporters to events by mutual consent; to the extent judgment is involved, it is craft judgment rather than supervisory judgment); Skaggs Drug Centers, 197 NLRB 1240 (1972) (head pharmacist's assignment powers found nonsupervisory where the assignments were not "hard and fast" but subject to "much mutual give-and-take between pharmacists, including the head pharmacist, in arranging and rearranging work schedules"), enforced 84 LRRM 2384 (9th Cir. 1973); Peoria Journal Star, Inc., 117 NLRB 708, 710 (1957) (assistant sports editor on night shift who coordinates coverage of events by five reporters is not a supervisor where the assignment of reporters to specific events "is generally apportioned by mutual consent and [the editor's] primary duty is to check the quality of the work of the reporters and to require that unsatisfactory copy be rewritten"). Accord Edward Street Daycare Center, Inc. v. NLRB, ___ F.3d ___, 1999 WL 623906, *4, *7 (1st Cir., Aug. 20, 1999)

26 Cf. Misericordia Hospital v. NLRB, 623 F.2d 808, 817 & n.20 (2d Cir. 1980) (employer's claim that nurse had power effectively to recommend rejected in part because the nurse had been reprimanded for making a recommendation in an evaluation report). Vencor Hospital-Los Angeles, 328 NLRB No. 167, slip op. 4 (Aug. 5, 1999) (employer's effective recommendation claim fails where the reports in evidence "describe incidents of unacceptable work performance or behavior" but there is no evidence that the nurses in question "make any recommendations as to discipline in making such reports").

27 See Southern Bleachery & Print Works, 115 NLRB 787, 791 (1956), affirmed, 118 NLRB 299 (1957), enforced, 257 F.2d 235 (4th Cir. 1958), cert. denied, 359 U.S. 911 (1959). There the Board distinguished between authority that "flows from management and tends to identify or associate a worker with management," on the one hand, and authority that derives from "working skill and . . . responsibility for the operation of a complex machine," on the other hand. In the latter situation, the Board reasoned, the inherent authority of a skilled employee primarily engaged in production effectively to recommend the discharge of an incompetent assistant was not what Congress intended by the concept "effective recommendation" in Section 2(11). Accord Soil Engineering Co., 269 NLRB 55, 56 (1984) (driller's authority to secure the discharge of his assistant was nonsupervisory). Cf. Stop & Shop Companies, Inc. v. NLRB, 548 F.2d 17, 19 (1st Cir. 1977) ("[A] janitor does not become a supervisor merely because his superior invariably indulges his requests for assistance.").

28 See NLRB v. Dickerson-Chapman, Inc., 964 F.2d 493, 500 (5th Cir. 1992) (foreman, who reported employee who failed to complete work assignments and assaulted him, not a supervisor, even though employer fired reported employee); NLRB v. Adco Elec., Inc., 6 F.3d 1111, 1117 (5th Cir. 1993) (such reporting is "nothing more than what . . . any . . . employer . . . would expect from experienced employees").

29 See VIP Health Servs., Inc. v. NLRB, 164 F.3d 644, 648 (D.C. Cir. 1999) ("mere reporting is insufficient to establish that the nurses effectively recommend discharge or discipline"); Beverly Enterprises d/b/a Lynwood Health Care Center, Minnesota, Inc. v. NLRB, 148 F.3d 1042, 1046 (8th Cir. 1998) ("disciplinary counseling" authority, which consists only of power to issue verbal reprimands that do not effect job status, is not supervisory); Misericordia Hospital v. NLRB, 623 F.2d 808, 817 & n.20 (2d Cir. 1980) ("authority to do no more than orally counsel and reprimand employees" is not supervisory); Waverly-Cedar Falls Health Care Center, 297 NLRB 390, 392 (1989) ("mere authority to issue oral and written warnings that do not alone affect job status does not constitute supervisory status"), enforced 933 F.2d 626, 630 (8th Cir. 1991).

30 See Passavant Health Center, 284 NLRB 887, 889 (1987) ("where oral and written warnings simply bring to an employer's attention substandard performance by employees without recommendations for further discipline, and an admitted statutory supervisor . . . makes an independent evaluation of the employee's job performance, the role of those delivering the warnings is nothing more than a reporting function"); Waverly-Cedar Falls Health Care Center v. NLRB, 933 F.2d 626, 630 (8th Cir. 1991) (approving the Passavant Health Center standard); NLRB v. Security Guard Service, Inc., 384 F.2d 143, 148 (5th Cir. 1967) (reporting a situation to a superior who decides whether discipline is warranted is not supervision but "advising and awaiting decision from others"); NLRB v. City Yellow Cab Co., 344 F.2d 575, 580-581 (6th Cir. 1965) (making oral report of rule violations, without recommendation, not supervisory where superiors made independent investigation and decided whether discipline was warranted). Accord: Esco Corp., 298 NLRB 837, 838, 839 (1990) (employee "in charge" of warehouse operation recommended wage increases but all his recommendations were rejected by higher management; his recommendations with respect to hire were accepted only after higher management interviewed the applicant, and the views of other employees were solicited as well; recommendations with respect to discipline were accepted only after higher management independently observed the employee's performance); United States Gypsum Co., 105 NLRB 931, 934, 938 (1953) (key operators' disciplinary recommendations not supervisory where the record does not show what weight is given to their recommendations, where they are not consistently followed, and where an independent investigation is conducted before they are followed); E.I. Dupont de Nemours & Co., 69 NLRB 509, 517 (1946) (working leadmen not supervisors where "[a]lthough they may make recommendations, these are only given weight to the extent that they may lead to an investigation of the facts"). Contra: Caremore, Inc. v. NLRB, 129 F.3d 365, 370 (6th Cir. 1997) (where, without discussion of the "effectively to recommend" requirement or the "reward or discipline" requirement, the court found supervisory status was established by evidence that charge nurses had authority to evaluate aides' performance on a 20-point scale and to recommend whether aides should be retained); Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 342-343 (4th Cir. 1998) (finding the "effectively to recommend" requirement satisfied by evidence that charge nurses had discretion to file a written correction reports that led to an investigation by a higher official); Eastern Greyhound Lines v. NLRB, 337 F.2d 84, 88-91 (6th Cir. 1964)("effectively to recommend" requirement satisfied where high correlation between recommendation and actual discipline; evidence of independent investigation does not detract from this fact; indeed "the time and expense of an investigation" confirms that recommendations taken seriously by higher management).

31 See Legal Aid Society, 324 NLRB 796, 796 (1997) (managing attorney's authority to evaluate and effectively recommend retention and termination of paralegals is supervisory where "substantial weight" is given to those evaluations, they were followed in seven out of eight instances, and the decision in each case was made solely on the basis of the reasoning and documentation supplied by the managing attorney, without any independent investigation); Venture Industries, Inc., 327 NLRB No. 165, 1999 WL 161049, *3 (March 19, 1999) (finding that department and line supervisors possess Section 2(11) authority to discipline employees where the employer has a progressive disciplinary system, written reprimands issued by the alleged supervisors are placed in the employee's personnel file, the supervisors have the authority to recommend suspensions, their recommendations to suspend are followed about 75 percent of the time, and any independent investigation is relatively infrequent (about 30 to 40 percent of the time) and usually the decision to suspend is made in a meeting with the employee, the supervisor, and higher management, without any independent investigation.); Presbyterian Medical Center, 218 NLRB 1266, 1268 (1975) (head nurses found supervisory where their recommendations with respect to disciplinary action, including suspension and discharge, are generally followed).

32 Heartland of Beckley, 328 NLRB No. 156 (July 27, 1999) (supervisory status found where nurses had the authority to exercise independent judgment in deciding when and why to issue warnings under a progressive disciplinary system, for example, by determining what category to classify a given infraction (minor, serious,, or major) and to take the appropriate action (verbal warning, written warning, final written warning)). See also Passavant Health Center, 284 NLRB 887, 889-890 (1987), discussing Concourse Village, 276 NLRB 12, 13 (1985) (finding supervisory status based on the authority to issue warnings where, under the employer's policy, three warnings would result in discharge).

33 The Board has long distinguished between acts demonstrating supervisory authority and those undertaken by employees seeking to maintain or improve their own working conditions by ensuring the compatibility of employees who work together closely. See Southern Bleachery & Print Works, Inc., 115 NLRB 787, 791 (1956), enforced, 257 F.2d 235, 239 (4th Cir. 1958), cert. denied, 359 U.S. 911 (1959); Willis Shaw Frozen Food Express, 173 NLRB 487, 488 (1968); Kenosha News Publishing Corp., 264 NLRB 270, 271 (1982) (subeditors' hiring recommendations nonsupervisory because made "principally in their own interest to ensure the suitability of the applicant as a working companion in a small department, and thus preserve harmonious working relationships"); Greenspan, D.D.S., P.C., 318 NLRB 70, 76-77 (1995) (dentists and their assistants had reciprocal rights to request an assistant's reassignment to ensure compatibility), enforced mem. 101 F.3d 107 (2d Cir. 1996), cert. denied 519 U.S. (1996). Cf. NLRB v. Heid, 615 F.2d 962, 964 (2d Cir. 1980) ("Peer pressure against goldbricking by fellow workers who share joint tasks exists in all walks of life and on all jobs; this fundamental human reaction to unfair sharing is hardly an indicia of supervisory power.").

34 Although the power to suspend "for such broad reasons as 'not putting forth any effort' or doing something the foreman does not like" implies the use of independent judgment (G.H. Skipper, Inc., 254 NLRB 453, 454 (1981)), "the Board has long held that authority that is limited to taking action in response 'to flagrant violations of common working conditions, such as being drunk, is insufficient by itself to establish supervisory status.'" Phelps Community Medical Center, 295 NLRB 486, 492 (1989), quoting Loffland Bros. Co., 243 NLRB 74, 75 n.4 (1979). Accord Waverly-Cedar Falls Health Care, 297 NLRB 390, 391, 393 (1989), enforced 933 F.2d 626 (8th Cir. 1991); NLRB v. Hilliard Development Corp., ___ F.3d ___, 1999 WL 508814, *12 (1st Cir., July 22, 1999). Contra Passavant Retirement & Health Center v. NLRB, 149 F.3d 243, 248, 249 (3d Cir. 1998) (authority to send aides home for flagrant conduct violations, such as patient abuse, entails independent judgment and is supervisory); Glenmark Associates, Inc. v. NLRB, 147 F.3d 333, 343 (4th Cir. 1998) (same).

35 NLRB v. City Yellow Cab Co., 344 F.2d 575, 581 (6th Cir. 1965) (authority of operators to call drivers in off the road for failure to notify operator of each drop off not supervisory where operator made incident report to conceded supervisors without recommendation, where the supervisors would decide whether to allow the driver to go back to work, and where there was no substantial period of suspension unless imposed by the supervisors); NLRB v. Security Guard Service, Inc., 384 F.2d 143, 148 (5th Cir. 1967) (act of sergeant in suspending a guard not supervisory but "advising and awaiting decision from others" where the evidence showed "that the sergeant reported the situation to the captain who in reality decided to suspend the guard"); NLRB v. Res-Care, Inc., 705 F.2d 1461, 1467 (7th Cir. 1983)(authority to suspend not established where the only evidence of that authority (other than the administrator's testimony) showed that the LPN did not know what to do when an employee showed up drunk and called the administrator for guidance).

36 See Beverly Enterprises d/b/a Lynwood Health Care Center, Minnesota, Inc. v. NLRB, 148 F.3d 1042, 1046-1047 (8th Cir. 1998) (duty to evaluate aides is not supervisory where evaluation is primarily reportorial and does not constitute effective recommendation to reward or discipline); New York University Medical Center v. NLRB, 156 F.3d 405, 413 (2d Cir. 1998) ("Evaluations that do not affect the job status of the evaluated person are inadequate to establish supervisory status"); Edward Street Daycare Center, Inc. v. NLRB, ___ F.3d ___, 1999 WL 623906, *10 (1st Cir., Aug. 20, 1999) (same). See also Custom Mattress Mfg., 327 NLRB No. 30, slip op. 1-2 (Oct. 30, 1998) (finding, contrary to the hearing officer, that the lead employee in a four-person department lacked the authority to make effective recommendations relating to wages:

In this regard, we note that there is no indication in [the lead person's] testimony of the circumstances under which she made recommendations regarding raises or the actual role that her recommendations played in [management's] decisions. The testimony does not reflect, for example, whether [the lead person] was asked to make recommendations regarding pay increases as part of her regular job duties-a factor that would be indicative of supervisory status-or whether she simply volunteered her opinion to [management] from time to time, as might any senior employee. From [the lead person's] limited testimony, it is also not possible to determine whether [her] recommendations actually affected [management's] decisions or simply happened to coincide with [management's] independent judgments as to who should get wage increases.

37 See Entergy Systems & Service, Inc., 328 NLRB No. 125, slip op. 1 (June 30, 1999) (crew leaders found supervisors because they are accorded veto power over the promotion of their crew members); First Health Care Corp. d/b/a Hillhaven Kona Healthcare Center, 323 NLRB 1171 (1997) (nurses deemed supervisors where their numerical evaluations of aides' performance directly determined the amount of the aides' wage increases); Northcrest Nursing Home, 313 NLRB 491, 498 & n.36 (1993) ("effectively recommend" requirement satisfied if evaluations lead directly to personnel action, citing, inter alia, Health Care and Retirement Corp., 310 NLRB 1002, 1006-1007 (1993) (authority to effectively recommend rewards shown where supervisor's independent evaluation scores directly correlated with raises received by employee). Compare NLRB v. Hilliard Development Corp., ___ F.3d ___, 1999 WL 508814, *12 (1st Cir., July 22, 1999) (although in some instances there is some relationship between the charge nurses' evaluations and the award of merit pay to the aides, that causal relationship is, on the whole, too attenuated and uncertain to constitute "effective recommendation" of a reward); Vencor Hospital-Los Angeles, 328 NLRB No. 167, slip op. 4 (Aug. 5, 1999) (employer failed to establish how much weight is given to nurses' reports in preparing employee evaluations and, in addition, "there is no evidence that these evaluations have any, let alone a direct, effect on employees wages").

38 NLRB v. Hilliard Development Corp., ___ F.3d ___, 1999 WL 508814, *7-*10 (1st Cir., July 22, 1999) (authority to resolve minor grievances about assignments is not supervisory where nurse lacks authority to bind management and no resolution can occur at the nurse's level unless all the affected aides concur); St. Francis Medical Center-West, 323 NLRB 1046, 1047-48 (1997) ("limited authority to resolve a 'squabble' between employees does not warrant an inference that [the production leader] has statutory authority to adjust grievances . . . "); Laborers & Hod Carriers Local No. 341 v. NLRB, 564 F.2d 834, 837 (9th Cir. 1977) (routinely adjusting job duties in response to employees' requests is not supervisory). See contrary cases noted supra, n.13.

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