v. Kentucky River Community Care,
the Supreme Court rejected the Board’s interpretation of “independent
judgment” as that term is used in Section 2(11) of the Act.
On July 25, 2003, the Board issued a notice and invitation to the
Employer, the Petitioner, and interested amici curiae to file briefs in
light of the Court’s decision in
. The Board extended an
identical invitation for the filing of briefs in two other cases:
Oakwood Healthcare, Inc.,
and Croft Metals, Inc., 15–RC–8393.
The Board sought, inter alia, comments relating to the meaning of
the Section 2(11) terms “assign,” “responsibly to direct,” and
“independent judgment.” In
response, the parties and a number of amici curiae filed briefs.
The National Labor Relations
Board has delegated its authority in this proceeding to a three-member
In our recent decision in Oakwood
Healthcare, Inc., 348 NLRB No. 37 (September 29, 2006), we set forth
our definitions of “assign,” “responsibly to direct,” and
“independent judgment.” Applying
those terms, thus interpreted, to the permanent charge nurses employed at
, we found that those individuals are statutory supervisors based on their
authority to exercise independent judgment in assigning nursing personnel
to patients. Oakwood
In the instant case, we are
again presented with the question of whether an employer’s charge nurses
exercise supervisory authority under Section 2(11) of the Act by virtue of
possessing authority to exercise independent judgment in assigning and/or
responsibly directing employees. Having
considered the record and briefs of the parties and amici, and applying
the standards set forth in Oakwood
Healthcare, we find that the Employer has failed to meet its burden to
show that its charge nurses are statutory supervisors.
Accordingly, for the reasons set forth below, we find that the
Employer’s charge nurses are employees, not supervisors, under Section
2(11) of the Act.
On January 27, 1999, the United
Steelworkers of America, AFL–CIO,
CLC (Union or Petitioner) filed two representation petitions seeking to
represent, in separate units, the registered nurses (RNs) and licensed
practical nurses (LPNs) employed by Beverly Enterprises—Minnesota, Inc.,
d/b/a Golden Crest Healthcare Center (Employer).
The Employer opposed the petition on the ground, inter alia, that
its RNs and LPNs acting as charge nurses are supervisors under Section
2(11) of the Act. On March 9,
1999, the Regional Director issued a Decision and Direction of Election,
finding that the Employer’s RNs and LPNs acting as charge nurses were
employees, not supervisors, under the Act.
The Board denied the Employer’s Request for Review on April 6,
1999. On April 8, 1999, an
election was held in which the
obtained a majority of votes to represent the Employer’s RNs and LPNs.
The Regional Director issued a certification of representative on
April 14, 1999.
Seeking to test the
certification, the Employer refused to bargain with the
filed an 8(a)(5) refusal-to-bargain charge, and the General Counsel issued
a complaint. The Respondent
filed an answer, in which it admitted its refusal to bargain but disputed
the validity of the
’s certification. The
General Counsel filed a motion for summary judgment, which was granted by
the Board on September 17, 1999.
Thereafter, the Employer filed a
petition for review of the Board’s Order in the United States Court of
Appeals for the Sixth Circuit, and the General Counsel cross-petitioned
for enforcement of the Board’s Order.
intervened. Upon the
’s motion, the Sixth Circuit issued an order transferring the case to
the United States Court of Appeals for the Eighth Circuit.
On May 29, 2001, while the
8(a)(5) test-of-certification case was pending in the Eighth Circuit, the
Supreme Court issued its decision in NLRB
v. Kentucky River Community Care, supra.
On October 2, 2001, the Eighth Circuit issued an order granting the
Employer’s petition for review and denying the Board’s cross-petition
Enterprises—Minnesota, Inc. v.
NLRB, 266 F.3d 785 (8th Cir. 2001).
The Eighth Circuit held that, in light of
, the Board had applied an improper legal standard in finding the
Employer’s RNs and LPNs to be employees rather than statutory
at 787. The Eighth Circuit
remanded the case to the Board for reconsideration in light of
On remand from the Eighth
Circuit, the Board vacated its Decision and Order in the unfair labor
practice case and remanded the two underlying representation cases to the
Regional Director for further consideration of whether, in light of Kentucky
River, the Employer’s RNs and LPNs “‘assign’ and
‘responsibly direct’ other employees,” and for further consideration
of “the scope or degree of ‘independent judgment’ used in the
exercise of that authority.” Both
parties agreed to resubmit the representation cases to the Region upon the
existing record. On August
20, 2002, the Regional Director issued a Supplemental Decision, finding
that the Supreme Court’s holding in
did not necessitate a reversal of his original finding that the
Employer’s RNs and LPNs are not statutory supervisors.
On September 11, 2002, the Employer filed a Second Request for
Review, which the Board granted on October 18, 2002.
As stated above, on July 25, 2003, the Board invited additional
briefing from the parties and amici curiae.
The Employer operates an 80-bed
nursing home, comprised of two floors, in
. Each floor is divided into
a number of sections, and each section consists of a specific set of
rooms. In general, those
residents of the nursing home requiring a higher degree of care are housed
on the second floor of the facility.
The nursing home’s nursing
department is headed by five stipulated supervisors:
the director of nursing (DON), the assistant director of nursing (ADON),
and three RNs who serve as resident care managers.
At least one of the five admitted supervisors is present at the
facility from 6 a.m. to 6 p.m. on weekdays as well as on alternate
weekends. At those times when
an admitted supervisor is not at the facility, the DON and the ADON are
reachable by telephone.
The Employer employs 8
additional RNs, who work as charge nurses; 12 LPNs, 11 of whom work at
least occasionally as charge nurses;
and 36 certified nursing assistants (CNAs).
The record supports a finding that the non-resident care manager
RNs, all of whom work part-time schedules, work solely as charge nurses.
The record does not establish how frequently the 11 putative LPN
supervisors work as charge nurses.
The schedules for RNs, LPNs, and
CNAs are set by an administrative assistant, with the final approval of
ADON Jacie Marchetti, who is responsible for the overall day-to-day
operations of the facility. The
floor and section assignments for each CNA are also set by ADON Marchetti,
pursuant to a procedure set forth in the collective-bargaining contract
for the CNAs, which permits them to bid for their shift, floor, and
section based on their seniority.
Section 2(11) of the Act defines
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 of a merely routine or clerical
nature, but requires the use of independent judgment.
This provision is to be read in
the disjunctive; thus, any of these enumerated powers is sufficient to
confer supervisory status, so long as the authority is held “in the
interest of the employer” and exercised with the use of “independent
River, supra, 532
at 713. The burden of proving
supervisory status rests on the party asserting that such status exists.
supra, slip op. at 9 (citing Dean
& Deluca New York, Inc., 338 NLRB 1046, 1047 (2003)).
The Employer contends that its
RNs and LPNs, when serving as charge nurses, exercise supervisory
authority under Section 2(11) of the Act in both “assigning” CNAs and
in “responsibly directing” them.
We will address these contentions in turn.
Healthcare, the Board interpreted the Section 2(11) term “assign”
to mean the act of “designating an employee to a place (such as a
location, department, or wing), appointing an individual to a time (such
as a shift or overtime period), or giving significant overall duties,
i.e., tasks, to an employee.”
at 4. To “assign” for
purposes of Section 2(11) ”refers to the . . . designation of
significant overall duties to an employee, not to the . . . ad hoc
instruction that the employee perform a discrete task.”
at slip op. 4. The first
question presented is whether the Employer has met its burden to establish
that its charge nurses have the authority to “assign” employees under
the foregoing definition. As
explained below, we find that the Employer has not met this burden.
The Employer argues that its
charge nurses “assign” employees in several ways, including the
following: ordering CNAs to
go home early; assigning first-floor CNAs to work on the second floor if
that floor is understaffed; ordering CNAs to stay past the end of their
shifts; and mandating that CNAs come in to work from home.
The record, however, establishes that the charge nurses do not, in
fact, have the authority to require the CNAs to undertake any of these
To begin, the record establishes
that ADON Marchetti has specifically instructed charge nurses that they
are not allowed to send CNAs
home early. The record also
shows that a charge nurse was reprimanded for sending home early a CNA who
appeared to be intoxicated. Thus,
it is clear that the charge nurses do not have the authority to send CNAs
Similarly, DON Kepler testified
that she had issued a directive against
second-floor charge nurses calling first-floor CNAs up to work on the
second floor. Thus, the
charge nurses do not, in fact, possess the authority to reassign CNAs to
the second floor.
The record establishes that
charge nurses do, on occasion, request that CNAs stay past the end of
or ask CNAs to come in from home.
It is well established, however, that the party seeking to
establish supervisory authority must show that the putative supervisor has
the ability to require that a
certain action be taken; supervisory authority is not established where
the putative supervisor has the authority merely to request
that a certain action be taken. See,
e.g., Heritage Hall, E.P.I. Corp.,
333 NLRB 458, 459 (2001) (LPNs found not to exercise supervisory authority
where they had no authority to require off-duty employees to fill a
particular shift); accord Lynwood
Health Care Center, Minnesota v. NLRB, 148 F.3d 1042, 1047 (8th Cir.
1998) (supervisory status not established where individual merely seeks
“off-duty volunteers to help out when the facility is short handed”).
Here, the Employer has not met
its burden to establish that the charge nurses have the authority to
require CNAs to stay past the end of their shifts or come in from home.
As to the former, there is no evidence that charge nurses possess
the authority to require CNAs to stay past the end of their shifts.
As to the latter, there is evidence that the charge nurses will, on
occasion and as authorized, telephone a CNA at home and “mandate” that
employee to come in to work.
The power to authorize a “mandate” is held, however, only by
the Employer’s admitted supervisors.
Moreover, the de minimis consequence of refusing such a mandate
persuades us that a “mandate” is such in name only and thus does not
reflect a genuine requirement that the mandated CNA report for work.
The “mandating” process
works as follows. When the
facility is understaffed, and when no admitted supervisors are on site,
the first-floor charge nurse will call CNAs at home to request that they
come in. Such calls are
placed in reverse order of seniority, as dictated by the CNAs’
collective-bargaining agreement. Should
the first-floor charge nurse exhaust the call list without finding
volunteers, the first-floor charge nurse would then call one of the
admitted supervisors at home. At
that point, the admitted supervisor might authorize the charge nurse to
“mandate” that employees come in.
In fact, the charge nurses only make the “mandating” phone
calls when authorized to do so by an admitted supervisor.
Thus, in placing such calls, the charge nurses exercise a merely
ministerial function; they do not exercise independent judgment in
determining that such “mandating” calls are appropriate.
Moreover, it is widely recognized—both by staff and by
management—that the consequences of noncompliance with a “mandate”
are de minimis. Pursuant to
the CNAs’ collective-bargaining agreement, CNAs refusing a “mandate”
to report from off-duty are penalized one-third of an “absenteeism
point.” The record does not
show whether this penalty has ever been imposed and what effect, if any,
it has on the CNAs’ terms and conditions of employment.
Thus, we find that the “mandating” process is actually a
mandate in name only and does not reflect a genuine requirement that CNAs
come in to work from off-duty status.
The Employer also contends that
the charge nurses exercise supervisory authority by altering CNAs’
section assignments to compensate for absent employees or to balance
workloads. The record
establishes, however, that, in such circumstances, the decision of how to
redistribute the workloads is often made by the CNAs themselves, not by
the charge nurses. Furthermore,
even assuming, as the Employer contends, that charge nurses play some role
in altering CNAs’ section assignments, the record does not establish
that the charge nurses have any authority to require
CNAs to change their work assignments; there is no evidence that any
adverse consequences would befall a CNA if she chose not to alter her work
assignment at the suggestion of a charge nurse.
Thus, because the Employer has not established that the charge
nurses possess the authority to require that CNAs shift their assignments,
we find that the Employer has not established that the charge nurses
exercise supervisory authority in this regard.
For the foregoing reasons, we
find that the Employer has failed to establish that the charge nurses
exercise supervisory authority in assigning CNAs.
Responsible Direction of
Healthcare, the Board interpreted the Section 2(11) phrase
“responsibly to direct” as follows:
“If a person on the shop floor has men under him, and if that
person decides what job shall be undertaken next or who shall do it, that
person is a supervisor, provided that the direction is both
‘responsible’ (as explained below) and carried out with independent
Healthcare, supra, slip op. at 6
(internal quotations omitted).
The Board, in agreement with several
courts of appeals, held that, for direction to be “responsible,” the
person directing the performance of a task must be accountable for its
at 6-7. The Board defined the
element of “accountability” as follows:
[T]o establish accountability
for purposes of responsible direction, it must be shown that the employer
delegated to the putative supervisor the authority to direct the work and
the authority to take corrective action, if necessary.
It also must be shown that there is a prospect of adverse
consequences for the putative supervisor if he/she does not take these
We will first address the
question whether the Employer established that its charge nurses direct
other employees within the meaning of Section 2(11).
Should that question be answered in the affirmative, we will then
inquire whether the Employer established that the charge nurses are accountable
for their direction of other employees.
We find that the Employer
established that its charge nurses have the authority to direct the CNAs.
The record shows that charge nurses oversee the CNAs’ job
performance and act to correct the CNAs when they are not providing
adequate care. For instance,
a charge nurse will correct a CNA if she perceives that the CNA is not
using proper procedures in giving a resident a bath.
The record also establishes that charge nurses will direct the CNAs
to perform certain tasks when the charge nurse determines that such tasks
are necessary. For instance,
the charge nurses will direct CNAs to clip residents’ toenails and
fingernails, to empty catheters, or to change an incontinent resident.
We find that this evidence is sufficient to establish that the
charge nurses “direct” the CNAs within the meaning of the definition
set forth in Oakwood Healthcare.
The next question, then, is
whether the Employer has established that the charge nurses are
accountable for their actions in directing the CNAs.
We find that the Employer has not met this burden.
The Employer has not presented any evidence that any charge nurse
has experienced any material consequences to her terms and conditions of
employment, either positive or negative, as a result of her performance in
directing CNAs. Nor has the
Employer presented any evidence that a charge nurse was ever informed that
any such material consequences might result from her performance in
directing CNAs. Thus, the
Employer has not established “a prospect of adverse consequences.”
supra, slip op. at 7.
The Employer’s evidence that
its charge nurses are accountable for their performance in directing CNAs
consists of evaluation forms used by the Employer to assess the
performance of its charge nurses. On
these forms, which are contained in the record, the charge nurses were
rated for their performance on the factor, “Directs CNAs to ensure
quality of care.” The forms
contained in the record establish that various charge nurses did receive
different ratings on this factor. Some
were rated “Exceeds Expectations,” and others “Meets
Expectations.” No charge
nurse received a rating of “Needs Improvement.”
There is no evidence, however,
that any action, either positive or negative, has been or might be taken
as a result of the charge nurses’ evaluation on this factor.
The Employer does not award merit increases or any other type of
bonus. In fact, DON Kepler
testified that the only effect of a positive evaluation is that the
employee gets to keep working at the facility.
Further, the Employer did not introduce any evidence that any
adverse action might be taken against a charge nurse as a result of a
“Needs Improvement” evaluation on the “Directs CNAs” performance
factor (or any other performance factor, for that matter), nor did the
Employer ever inform the charge nurses that any adverse action might
result from a negative rating on the “Directs CNAs” performance
The Board has long recognized
that purely conclusory evidence is not sufficient to establish supervisory
status; instead, the Board requires evidence that the employee actually
possesses the Section 2(11) authority at issue.
See, e.g., Volair
Contractors, supra, 341 NLRB at 675; Sears,
Roebuck & Co., 304 NLRB 193, 194 (1991).
Consistent with this requirement, in determining whether
accountability has been shown, we shall similarly require evidence of
actual accountability. This
is not to say that there must be evidence that an asserted supervisor’s
terms and conditions of employment have been actually affected by her
performance in directing subordinates.
Accountability under Oakwood
Healthcare requires only a prospect
of consequences. But there
must be a more-than-merely-paper showing that such a prospect exists.
That is, where accountability is predicated on employee
evaluations, there must be evidence that a putative supervisor’s rating
for direction of subordinates may have, either by itself or in combination
with other performance factors, an effect on that person’s terms and
conditions of employment.
Here, the Employer asks us to
find that the charge nurses are held accountable for their performance in
directing CNAs simply because the job evaluation forms suggest that such
accountability exists. In the
absence, however, of any evidence of actual or prospective consequences to
charge nurses’ terms and conditions of employment resulting from a
rating on the “Directs CNAs” performance factor, the Employer has
shown only “paper” accountability.
, 332 NLRB 1412, 1416 (2000) (“Job descriptions or other documents
suggesting the presence of supervisory authority are not given controlling
weight. The Board insists on
evidence supporting a finding of actual as opposed to mere paper
authority.”). Put another
way, the mere fact that charge nurses were rated on this factor does not
establish that any adverse consequences could or would befall the charge
nurses as a result of the rating. Thus,
we find that the “prospect of adverse consequences” for the charge
nurses here is merely speculative and insufficient to establish
applying our Oakwood Healthcare test
for responsible direction, we find that the Employer’s charge nurses do
not possess the authority to responsibly direct the CNAs.
For the reasons set forth above,
we find that the Employer’s charge nurses do not possess authority to
“assign” or “responsibly to direct” employees within the meaning
of Section 2(11) and, therefore, are not statutory supervisors.
The certification of
representative issued by the Regional Director on April 14, 1999, is
IT IS CERTIFIED that a majority
of the valid ballots have been cast for United Steelworkers of America,
AFL–CIO, CLC, and that it is the exclusive collective-bargaining
representative of the employees in the following appropriate unit:
All full-time and regular
part-time registered nurses and licensed practical nurses employed by the
Employer at its
facility; excluding guards and supervisors as defined in the Act, and all
September 29, 2006
Robert J. Battista,
Peter C. Schaumber,
Peter N. Kirsanow,
National Labor Relations Board