Bon Harbor Nursing & Rehabilitation Center

National Labor Relations Board - Board Decisions

Nov 3, 2006

348 N.L.R.B. 1062 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 70
1062
Extendicare Homes, Inc. d/b/a Bon Harbor Nursing
and Rehabilitation Center and United Steel-
workers of America, AFL–CIO, CLC. Cases
25–CA–28991, 25–CA–29088, and 25–CA–29119
November 3, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On March 3, 2005, Administrative Law Judge John H.
West issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
filed an answering brief, and the Respondent filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied2 and set forth in full below.
I. INTRODUCTION
The Respondent operates a nursing home facility in
Owensboro, Kentucky. The present case arose when, on
January 14, 2004,3 seven of the Respondent’s employ-
ees—Licensed Practical Nurses (LPNs) Norma Lemon
and Rita Adkisson, Certified Nursing Assistants (CNAs)
Sheila Kelley, Stacy Kjelsen, Misty Paulin, and Tammy
Snyder, and Certified Medication Aide (CMA) Tammy
Hamilton—coordinated their breaks and met with repre-
sentatives of the media in the Respondent’s parking lot to
protest staffing conditions at the facility. The judge
found that the employees’ concerted protest was pro-
tected by Section 7 of the Act, and that the Respondent
violated Section 8(a)(1) of the Act by discharging the
employees because of their protest and by conditioning
each employee’s return to work on a promise that she
would not walk out in protest of future short-staffing
issues. In so finding, the judge rejected the Respondent’s
argument that no violations could be found with respect
to LPNs Lemon and Adkisson because they are 2(11)
supervisors.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We have modified the judge’s recommended Order to conform to
the violations found, and we have substituted a new notice in accor-
dance with the Order as modified.
3 All dates are 2004, unless otherwise indicated.
For the reasons discussed below, we affirm the judge’s
findings as to employees Kelley, Kjelsen, Paulin, Snyder,
and Hamilton. However, we reverse the judge’s unfair
labor practice findings as to LPNs Lemon and Adkisson
because, in agreement with the Respondent, we find that
they are statutory supervisors.4
II. EMPLOYEES KELLEY, KJELSEN, PAULIN, SNYDER,
AND HAMILTON
The record fully supports the judge’s finding that the
Respondent unlawfully discharged employees Kelley,
Kjelsen, Paulin, Snyder, and Hamilton because of their
concerted protest over staffing levels and unlawfully
conditioned their return to work on their promise to re-
frain from similar protests in the future. As to the unlaw-
ful discharges, we rely in particular on the credited testi-
mony that, when Director of Nursing (DON) Carolyn
Davis escorted the employees back into the facility, LPN
Lemon asked twice if the employees were being fired,
and Davis responded, “Yes.” Given this testimony, and
the fact that the Respondent has not asserted any other
basis for the discharges, we find it unnecessary to rely on
the judge’s discussion of Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), in footnote 8 of his decision. See
Chromalloy Gas Turbine Corp., 331 NLRB 858, 864
(2000)(“where protected concerted activity is the basis
for an employee’s discipline, the normal Wright Line
analysis is not required”), enfd. 262 F.3d 184 (2d Cir.
2001).

4 We affirm the judge’s separate finding that the Respondent vio-
lated Sec. 8(a)(1) when, 1 week following the employees’ protest, Unit
Manager Della Boehman removed union literature from a bulletin
board in the employee breakroom while continuing to allow employees
to post nonwork-related material on the same bulletin board. In doing
so, we additionally rely on the fact that the Respondent did not enforce
its handbook rule prohibiting the posting of material without prior
approval until the advent of the Union’s organizing campaign, and that,
even then, it enforced the rule only against union material. See Bon
Marche, 308 NLRB 184, 185 (1992) (finding violation where employer
changed its bulletin board policy in response to a union organizing
campaign). Indeed, Unit Manager Boehman admitted that she had
never before been directed by the Respondent to remove any material
from the bulletin board.
We also affirm the judge’s finding that the Respondent violated Sec.
8(a)(1) and (3) when Boehman orally warned CNA Paulin for assisting
the Union by making a written record of Boehman’s removal of union
literature from the employee bulletin board. We emphasize that the
credited testimony establishes that Boehman issued Paulin a warning
for “threatening a supervisor,” and that when Paulin inquired what
Boehman meant by that, Boehman told Paulin it was because Paulin
had recorded Boehman’s conduct of removing union literature from the
breakroom bulletin board in a notebook provided to Paulin by the Un-
ion. Paulin told Boehman that the Union had given her the notebook
“to write things down that happened.” This testimony establishes that
Boehman warned Paulin for assisting the Union and to discourage
employees from engaging in such activity in violation of the Act.
BON HARBOR NURSING & REHABILITATION CENTER 1063
III. LPNS LEMON AND ADKISSON
We find, contrary to the judge and our dissenting col-
league, that the Respondent’s actions taken against LPNs
Lemon and Adkisson did not violate the Act because
they are statutory supervisors. As such, their participa-
tion in the employees’ protest was not protected, and the
Respondent was free to discipline them. See, e.g., Ar-
mored Transfer Service, 287 NLRB 1244, 1254–1255
(1988).5
A. The Judge’s Supervisory Determination
The judge’s finding that LPNs Lemon and Adkisson
are not statutory supervisors is based exclusively on the
Regional Director’s finding in a prior representation pro-
ceeding involving this same facility. In that proceeding,
the Union petitioned for certification as the representa-
tive of a unit of employees at the facility that included
LPNs. The Respondent argued for the exclusion of
LPNs, contending that they were 2(11) supervisors based
on, among other things, their supervisory authority to
discipline employees. The Regional Director, however,
concluded that the Respondent had failed to carry its
burden to establish the LPNs’ claimed 2(11) status. The
Respondent filed a request for review, which the Board
(Chairman Battista dissenting) denied.
In the present case, the parties did not introduce any
new evidence regarding the supervisory status of the Re-
spondent’s LPNs, but stipulated to the introduction of the
representation case hearing transcript and exhibits into
the record. The judge adopted without discussion the
Regional Director’s conclusion that the Respondent’s
LPNs are not supervisors. The Respondent has excepted
to the judge’s conclusion, again arguing, among other
things, that its LPNs, including Lemon and Adkisson,
possess the supervisory authority to discipline employ-
ees.
B. The Respondent Established that LPNs Lemon
and Adkisson are Supervisors
Before addressing the merits of the Respondent’s ex-
ceptions, we point out, as the judge and the parties have
acknowledged, that a finding in a representation case
regarding supervisory status is not binding in a subse-
quent unfair labor practice proceeding involving, as here,
allegations of independent violations of Section 8(a)(1).
JAMCO, 294 NLRB 896, 899 (1989). We have thus
reviewed de novo the evidence concerning Lemon’s and

5 The General Counsel does not argue that the Respondent’s actions
taken against LPNs Lemon and Adkisson would be unlawful even if
they are statutory supervisors. See generally Parker-Robb Chevrolet,
262 NLRB 402 (1982), review denied sub nom. Automobile Salesman’s
Local 1095 v. NLRB, 711 F.2d 383 (D.C. Cir. 1983).
Adkisson’s alleged supervisory authority.6 Based on that
review, we find merit in the Respondent’s argument that
Lemon and Adkisson are 2(11) supervisors based on
their authority to discipline employees.7
The pertinent facts relating to the authority of Lemon
and Adkisson to discipline the CNAs and CMAs who
report to them are as follows. Pursuant to the Respon-
dent’s employee handbook, the Respondent’s discipli-
nary system divides work rule violations into three
classes (class I, II, and III), depending on the severity of
the offense. According to the handbook and the testi-
mony of DON Davis, the disciplinary system is progres-
sive. That is, an employee will automatically receive
increasingly severe punishment for rule infractions based
on the class of infraction committed and the employee’s
prior disciplinary record.
The Respondent documents rule violations on discipli-
nary action report forms (DARs), which are placed in
employees’ personnel files. DON Davis testified, and
corroborating evidence showed, that LPNs exercise dis-
cretion in deciding whether to complete DARs for viola-
tions committed by CNAs and CMAs. Specifically,
Davis’ uncontradicted testimony was that if an LPN ob-
serves a CNA or CMA performing her work incorrectly
or not performing it at all, the LPN is expected to handle
the situation by exercising, at her discretion, one of four
options: (1) issuing an oral warning; (2) providing “in-
servicing,” i.e., giving the employee direction and correc-
tive action; (3) issuing a DAR; or (4) doing nothing.
Davis further testified that, although the fourth option is
disfavored, “it does happen,” and that the LPN is neither
required nor expected to seek counsel from a superior
before acting or not. LPN Donna Brown’s testimony and
various DARs issued by Brown introduced at the repre-
sentation case hearing generally corroborate Davis’ tes-
timony.
Should an LPN decide after witnessing an infraction
that a DAR is warranted, the LPN is responsible for stat-
ing on the preprinted DAR form the specific work rule
that was violated and describing the incident that
prompted the writeup. The form also contains a section
where the LPN may indicate any record of prior discipli-
nary action in the employee’s file in the preceding 18
months. Because LPNs do not have access to employ-

6 At the representation case hearing, the parties stipulated that all
LPNs are vested with the same duties, responsibilities, and authorities.
7 In light of this finding, we find it unnecessary to pass on the Re-
spondent’s remaining exceptions concerning other alleged indicia of
LPNs’ supervisory status. Arlington Masonry Supply, Inc., 339 NLRB
817, 818 (2003) (“An individual need possess only one of the enumer-
ated indicia of authority in order to be encompassed by Section 2(11),
as long as the exercise of such authority is carried out in the interest of
the employer, and requires the exercise of independent judgment.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1064
ees’ personnel files, however, they routinely leave this
section blank.
In addition, the DAR form contains a section where
the LPN may indicate the disciplinary action taken, i.e.,
first notice, second notice, final notice, discharge warn-
ing, or discharge from employment. Many, although not
all, of the DARs in the record indicate the level of disci-
pline being issued.8 Davis testified that, even if an LPN
indicates a level of discipline on the DAR that is incor-
rect under the Respondent’s progressive discipline pol-
icy, the LPN’s disciplinary determination will not be
changed by the DON or unit manager, the DON’s imme-
diate subordinate.9 Davis acknowledged that manage-
ment retains the ultimate authority to review the discipli-
nary action and to override it, but she testified that this
had never occurred. In accordance with the Respon-
dent’s progressive disciplinary system, DARs issued by
the LPNs may form the basis for future disciplinary ac-
tions.
Based on the above facts, we find, contrary to the
judge, that the Respondent’s LPNs, including Lemon and
Adkisson, possess supervisory authority to discipline
within the meaning of Section 2(11) of the Act. In a re-
cent case, Wilshire at Lakewood, 345 NLRB 1050
(2005), the Board found that an RN possessed supervi-
sory authority in similar circumstances. The RN had the
authority to issue, at her discretion, a disciplinary writeup
if she determined that an employee committed a “gross
infraction” of residential care. These writeups were
placed in employees’ personnel files and constituted the
first step in the disciplinary process. Id., slip op. at 1–2.
Although the writeups did not necessarily lead to further
discipline in every instance, the Board emphasized that
they played “a significant role in the disciplinary proc-
ess” and were initiated by the RN’s “independent deter-
mination that the committed infraction [was] egregious
enough to warrant the writeup.” Id., slip op. at 2. In
these circumstances, the Board concluded that “the
writeups clearly evince[d] . . . supervisory status.” Id.
Similar to the authority exercised by the RN in Wil-
shire, supra, here the evidence shows that LPNs are
vested with the authority to decide whether to write up
employees for rule infractions. Further, as in Wilshire,
the writeups (or DARs) are placed in the employees’

8 Because, as previously mentioned, LPNs do not have access to em-
ployee personnel files, they do not necessarily know whether an em-
ployee has been previously disciplined, and thus may leave this section
blank. Davis testified that a unit manager will enter the appropriate
level of discipline on the form after checking the employee’s personnel
file for any previously recorded discipline, in accordance with the Re-
spondent’s progressive disciplinary policy.
9 Davis also testified that she does not conduct independent investi-
gations of the misconduct recorded in the DARs.
personnel files and “play a significant role in the disci-
plinary process.” Id. Thus, the record shows that LPNs
may indicate a level of discipline on the DAR and that
their disciplinary determinations have never been inde-
pendently reviewed or overruled by higher management.
In this respect, the disciplinary authority of the Respon-
dent’s LPNs exceeds that of the RN in Wilshire, where
the evidence showed that her writeups were subject to
further review by management officials. Id., slip op. at
1. In addition, in accordance with the Respondent’s pro-
gressive discipline policy, DARs issued by LPNs are
relied on by the DON when administering subsequent
discipline.
Reprising an argument he made in Progressive Trans-
portation Services, 340 NLRB 1044, 1048 (2003), our
dissenting colleague asserts that purported disciplinary
warnings that do not have a “consistent or predictable”
relationship to consequences affecting employment are
merely reportorial, and do not demonstrate supervisory
authority. We rejected that contention in Progressive
Transportation, and we do so again today. Under extant
Board law as explicated in Progressive Transportation,
“it is sufficient that the discipline has the real potential to
lead to an impact on employment.” Id. at 1046. The
record in this case leaves no room for doubt that the
DARs have such a potential.
On these facts, we conclude, contrary to the judge and
our dissenting colleague, that the Respondent has met its
burden to show that Lemon and Adkisson are 2(11) su-
pervisors. Consequently, Lemon and Adkisson did not
enjoy the protections of the Act, and the Respondent’s
actions taken against them did not violate Section
8(a)(1). We therefore shall dismiss the complaint to that
extent.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Extendicare Homes, Inc. d/b/a Bon Harbor
Nursing and Rehabilitation Center, Owensboro, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging its employees because they engaged in
concerted activities with each other for the purposes of
mutual aid and protection by gathering together at the
Respondent’s facility during their breaks to protest staff-
ing conditions and complain to the news media about
their terms and conditions of employment, and to dis-
courage employees from engaging in these or other pro-
tected concerted activities.
(b) Refusing to reinstate employees unless they agree
not to engage in the activity described in (a) above or
BON HARBOR NURSING & REHABILITATION CENTER 1065
other concerted activity for the purposes of mutual aid
and protection.
(c) Removing union literature from a bulletin board at
the Respondent’s facility despite allowing employees to
post other types of nonwork-related literature on the
same bulletin board.
(d) Orally warning employees for assisting the Union
or any other labor organization.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Sheila Kelley, Stacy Kjelsen, Misty Paulin, Tammy
Hamilton, and Tammy Snyder full reinstatement to their
former positions, or if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
(b) Make Sheila Kelley, Stacy Kjelsen, Misty Paulin,
Tammy Hamilton, and Tammy Snyder whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth
in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Sheila Kelley, Stacy Kjelsen, Misty Paulin, Tammy
Hamilton, and Tammy Snyder, and within 3 days there-
after, notify each of them in writing that this has been
done and that the unlawful discharges will not be used
against them in any way.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful oral warning
of Misty Paulin, and within 3 days thereafter, notify her
in writing that this has been done and that the unlawful
oral warning will not be used against her in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Owensboro, Kentucky, copies of the at-
tached notice marked “Appendix.”10 Copies of the no-

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tice, on forms provided by the Regional Director for Re-
gion 25, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 14,
2004.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges unfair labor practices not found.
MEMBER WALSH, dissenting in part.
Contrary to the majority, I agree with the judge that the
Respondent failed to carry its burden of showing that
Licensed Practical Nurses (LPNs) Norma Lemon and
Rita Adkisson are supervisors within the meaning of Sec-
tion 2(11) of the Act. Consequently, I would adopt the
judge’s finding that the Respondent violated Section
8(a)(1) by discharging them for joining their fellow em-
ployees in a concerted protest over staffing levels and by
conditioning their reinstatement on a promise that they
would not engage in a similar protest in the future. I
agree with the majority opinion in all other respects.
The majority finds that Lemon and Adkisson are statu-
tory supervisors based on evidence that LPNs are author-
ized to decide whether to document employee rule viola-
tions on disciplinary action report forms (DARs) that are
placed in the employees’ personnel files. For the major-
ity, this evidence is sufficient to show that Lemon and
Adkisson possess the supervisory authority to discipline
employees. I disagree.
The majority’s finding is in error for two interrelated
reasons. First, the Respondent has not established that
the DARs actually constitute disciplinary action or that
they bear any consistent or predictable relationship to
discipline under the Respondent’s progressive discipli-
nary process. Second, by basing the LPNs’ supervisory

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1066
authority to discipline on their discretion to issue DARs
that have no demonstrable effect on employees’ terms of
employment, the majority blurs the distinction between
being vested with the authority to discipline employees
within the meaning of Section 2(11), and having author-
ity that is merely reportorial and thus nonsupervisory in
nature.
I.
The Respondent has failed to show that the DARs
themselves constitute discipline, or that they predictably
lead to discipline or even to further management review
for disciplinary purposes. In fact, there is no evidence
that any employee has been terminated, denied a raise, or
adversely affected with respect to a term or condition of
employment because of an LPN’s issuance of a DAR.
Therefore, the authority to issue a DAR does not, stand-
ing alone, evidence supervisory authority. Passavant
Health Center, 284 NLRB 887, 889 (1987) (“the issu-
ance of written warnings that do not alone affect job
status or tenure do not constitute supervisory authority”).
Moreover, although the Respondent has a progressive
disciplinary system, it failed to show any actual relation-
ship between the DARs issued by the LPNs and in-
creased discipline under that system. For example, while
several of the DARs in evidence describe an employee’s
alleged misconduct and the work rule that was allegedly
violated, the section of the form that should reflect the
appropriate discipline, i.e., whether a first notice, second
notice, final notice, discharge warning, or discharge, is
blank. Director of Nursing (DON) Carolyn Davis testi-
fied that, because the LPNs do not have access to em-
ployees’ personnel files, they routinely leave this section
to be completed by a unit manager, once she has had the
opportunity to check the employee’s file for any prior
discipline. Although this might explain why the LPNs
did not themselves designate the appropriate discipline
on the DARs, it still does not explain why the reports
ultimately remained blank and were placed in employ-
ees’ personnel files in an incomplete state. On this re-
cord, I would find that the Respondent has failed to dem-
onstrate that the DARs play any role in the Respondent’s
progressive disciplinary system.
Further, even in instances where an LPN has indicated
on a DAR that it is the employee’s “first notice” for a
particular offense, this designation may very well be in
error. This is because the LPNs do not have access to
employee personnel files and thus have no way of know-
ing whether an employee has been disciplined for the
same rule infraction in the past. DON Davis testified
that, in the event that an LPN has recorded the wrong
level of discipline for an employee, the unit manager will
not increase (or decrease) it. According to Davis, in such
instances, the incorrect determination would simply
stand.1 Thus, once again, the Respondent has failed to
establish that the DARs play any discernible role in the
Respondent’s progressive disciplinary policy.
Other examples of the apparent disconnect between the
DARs issued by the LPNs and the Respondent’s progres-
sive disciplinary policy can be found in three DARs in
evidence showing employees who have been written up
for “class II” violations. In one, the employee purport-
edly received a “first notice” of discipline, and in an-
other, the employee purportedly received a “second no-
tice” of discipline. According to the Respondent’s hand-
book, however, there is no first or second notice that cor-
responds to a class II infraction. In fact, the handbook
expressly states: “Because class II infractions are more
serious, the first and second notice steps are skipped,”
and what should result from a second offense for a class
II infraction is a discharge warning.2 Furthermore, a
third DAR in evidence shows that an employee was writ-
ten up for a class II infraction for which no disciplinary
determination was recorded. This, too, is contrary to the
Respondent’s mandate in the employee handbook that
class II violations “necessitate immediate disciplinary
action in the form of a final written notice for the first
offense.” In short, the Respondent has not demonstrated
any meaningful relationship between the issuance of
DARs and the Respondent’s written disciplinary policy.
Where, as here, an employer follows a progressive dis-
cipline system and individuals alleged to be supervisors
have issued warnings, the Board has refused to find su-
pervisory authority where there is no persuasive evidence
of a relationship between those warnings and increased
discipline. See Vencor Hospital-Los Angeles, 328 NLRB
1136, 1139 (1999) (even though employer followed pro-
gressive discipline system, registered nurses’ written
reports of oral warnings did not establish supervisory
authority; there was no evidence that reports necessarily
led to suspension or termination or otherwise affected job
status).
The majority nevertheless maintains that the LPNs’ au-
thority to issue DARs makes them supervisors, relying
on the Board’s recent decision in Wilshire at Lakewood,
345 NLRB No. 80 (2005). In Wilshire, the Board found
that a registered nurse possessed 2(11) supervisory au-
thority to discipline employees based on her authority to

1 On cross-examination by the Respondent’s counsel, Davis retreated
from this testimony. As the majority notes, she ultimately testified that
higher management could override an LPN’s incorrect disciplinary
determination. Nevertheless, she could not recall a single instance in
which management had done so.
2 Tellingly, there is not a single DAR in evidence in which an LPN
has authorized this higher level of discipline.
BON HARBOR NURSING & REHABILITATION CENTER 1067
issue, at her discretion, disciplinary writeups of em-
ployee infractions, which were then placed in employees’
personnel files. The Board found that this exercise of
discretionary authority “constituted the first step in the
process for possible discipline.” Id., slip op. at 2. Al-
though the evidence showed that the writeups did not
necessarily lead to further disciplinary action, the Board
found that they played a “significant role in the discipli-
nary process.” Id.
Accordingly, in Wilshire, supra, there was at least
some evidence that the writeups “would initiate further
review by managerial officials, as well as a determination
of whether further disciplinary action against the em-
ployee was warranted,” id., slip op. at 1. Here, in con-
trast, the evidence shows that DARs, even incomplete or
erroneous ones, are routinely placed in employee files
without further investigation or review by anyone, and
that these reports do not give rise to actual disciplinary
action. Thus, the asserted “disciplinary authority” of the
Respondent’s LPNs actually falls well short of the sup-
posed disciplinary authority of the RN in Wilshire; in-
deed, the LPNs’ authority is not disciplinary at all. The
obvious conclusion to be drawn—the one drawn by the
Regional Director in the representation proceeding and
adopted by the judge—is that the Respondent has failed
to prove that the LPNs’ discretionary authority to issue
DARs establishes their supervisory status.
II.
For the majority to nevertheless find that the LPNs are
supervisors based on their issuance of these reports blurs
the distinction between the statutory authority to disci-
pline within the meaning of Section 2(11) and the mere
reporting of information. As discussed above, what the
Respondent has shown is, at most, that LPNs have the
discretion to submit reports of minor rule infractions,
which are then placed in employees’ personnel files with
no demonstrable effect on the employees’ terms and
conditions of employment. See Hospital General
Menonita v. NLRB, 393 F.3d 263, 267 (1st Cir. 2004)
(“Filling out forms related to performance issues, without
more, does not qualify employees for supervisory
status.”); Waverly-Cedar Falls Health Care, 297 NLRB
390, 391–392 (1989), enfd. 933 F.2d 626 (8th Cir. 1991)
(although LPNs “play a role in the employer’s discipli-
nary system” by issuing warnings that are placed in em-
ployees’ personnel files, LPNs are not statutory supervi-
sors where evidence showed, inter alia, that the warn-
ings do not necessarily lead to any further review or ad-
verse action).
In Wilshire, supra, this same Board majority insisted
that it was not saying “that the authority to decide
whether to report an infraction makes a person a supervi-
sor,” but rather “that a person who is responsible for de-
ciding whether to report an infraction, which report will
initiate a disciplinary process, has supervisory author-
ity.” Wilshire, slip op. at 3 fn. 8 (emphasis added). Tak-
ing the majority at its word, it reaches the wrong result
today. The mere authority to report employee miscon-
duct remains just that, and does not amount to supervi-
sory authority.
III.
In sum, the Respondent has failed to prove that an
LPN’s decision to write up an employee in a DAR auto-
matically triggers anything more than the filing away of
an inconsequential piece of paper. Accordingly, I re-
spectfully dissent from the majority’s finding that LPNs
Lemon and Adkisson are 2(11) supervisors on the evi-
dence in this case.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge you because you engage in
concerted activities with each other for the purposes of
mutual aid and protection by gathering together at our
Owensboro, Kentucky facility during your breaks to pro-
test staffing conditions and complain to the news media
about your terms and conditions of employment.
WE WILL NOT refuse to reinstate you unless you agree
not to engage in the activity described above or other
concerted activity for the purposes of mutual aid and
protection.
WE WILL NOT remove union literature from a bulletin
board at our Owensboro, Kentucky facility when we al-
low you, without prior approval, to post other types of
nonwork-related literature on the same bulletin board.
WE WILL NOT orally warn you for assisting the United
Steelworkers of America, AFL–CIO, CLC, or any other
labor organization.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1068
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Sheila Kelley, Stacy Kjelsen, Misty Paulin,
Tammy Hamilton, and Tammy Snyder full reinstatement
to their former positions or, if those positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Sheila Kelley, Stacy Kjelsen, Misty
Paulin, Tammy Hamilton, and Tammy Snyder whole for
any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Sheila Kelley, Stacy Kjelsen, Misty
Paulin, Tammy Hamilton, and Tammy Snyder, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the unlawful dis-
charges will not be used against them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful oral warning of Misty Paulin, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the unlawful oral warning will not be used
against her in any way.
EXTENDICARE HOMES, INC. D/B/A BON HARBOR
NURSING AND REHABILITATION CENTER
Michael T. Beck, Esq. and Fredric D. Roberson, Esq., for the
General Counsel.
Todd M. Nierman, Esq. and Dustin D. Stohler, Esq. (Baker &
Daniels), of Indianapolis, Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. Upon charges and
an amended charge filed by United Steelworkers of America,
AFL–CIO–CLC (the Union) against Extendicare Homes, Inc.
d/b/a Bon Harbor Nursing and Rehabilitation Center (Respon-
dent or Bon Harbor), a consolidated complaint was issued on
July 16, 2004,1 alleging that Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act), by (a)
discharging seven named employees2 on January 14 because
they engaged in concerted activities with each other for the
purposes of mutual aid and protection by gathering together at
Respondent’s facility during their break to protest staffing con-
ditions and complain to the news media about their terms and

1 All dates are in 2004, unless otherwise indicated.
2 Sheila Kelley, Stacy Kjelsen, Misty Paulin, Norma Lemon, Rita
Adkisson, Tammy Hamilton, and Tammy Snyder.
conditions of employment; (b) since January 15 refusing to
reinstate these seven employees unless they agree not to engage
in the activity described in (a) above or other protected con-
certed activity; and (c) removing union literature from a bulle-
tin board at Respondent’s facility on March 13 despite allowing
employees to post other types of nonwork-related literature on
the same bulletin board; and that Respondent violated Section
8(a)(1) and (3) of the Act by verbally warning its employee
Paulin on March 13 because she assisted the Union and en-
gaged in concerted activities, and to discourage employees
from engaging in these activities. In its answer, Respondent
claims that the named employees walked off the job on January
14, and it nondiscriminatorily removed from its bulletin boards
solicitations on behalf of outside organizations, including the
Union. Respondent admits that on March 13 it verbally warned
Paulin. Respondent denies violating the Act as alleged.
A hearing was held on September 14 in Owensboro, Ken-
tucky. The record was not closed at the time because an addi-
tional unfair labor practice charge had been filed by the Union
against the Respondent. By motion filed January 4, 2005, coun-
sel for the General Counsel indicated that the additional charges
filed by the Union against the Respondent had been resolved.
He requested that the record be closed and a brief date be set.
Upon the entire record in this proceeding, including my obser-
vation of the demeanor of the witnesses and consideration of
the briefs filed by the General Counsel and the Respondent on
February 7, 2005, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with a place of business in
Owensboro, has been engaged in the operation of a nursing
home. The complaint alleges, the Respondent admits, and I find
that at all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Facts
When called by counsel for the General Counsel, Respon-
dent’s director of nursing (DON) at its Owensboro facility,
Carolyn Ann Davis, testified that Bon Harbor provides skilled
nursing care and therapy; that the facility has a total of 132
beds on four units [skilled (44), north (30), west (28), and south
(30)], a large therapy department, and a dining room; that it
employs about 100 nurses plus employees in activities, therapy,
dietary, housekeeping, maintenance, and laundry; that she is
second in the chain of command at the facility, and when the
administrator of the facility, then Jennifer Hurt, is not present at
the facility, she is the top management official at the facility;
that she directly oversees the registered nurses (RNs) supervi-
sors, unit managers, licensed practical nurses (LPNs), certified
nursing assistants (CNAs), and certified medication aides
(CMAs); that in January 2004 there were 2 unit managers, 3
RNs, 1 weekend RN supervisor, about 32 CNAs, 4 CMAs, and
about 20 LPNs; that in January 2004 the LPNs were responsi-
ble for overseeing the CNAs and the CMAs to make sure that
BON HARBOR NURSING & REHABILITATION CENTER 1069
they are doing their jobs, directing their nursing assistants, pro-
viding medications, treatment, assisting in meals, and setting up
doctor’s appointments; that all LPNs are charge nurses except
one who works on skin related problems; that one LPN, Donna
Renfro, is responsible for making out the schedule; that CMAs
pass out medication and render treatment; that CNAs are in-
volved in direct patient care like bathing, grooming, ambulat-
ing, feeding, turning and repositioning, and assisting with ac-
tivities; that in January 2004 one RN, Kim Steward, oversaw
two of the units (skilled and west) and an LPN, Della Boehman,
oversaw the other two units (north and south); that there were
three shifts in January 2004, namely 7 a.m. to 3 p.m., 3 to 11
p.m., and 11 p.m. to 7 a.m.; and that in January 2004 two LPNs
and between four and five CNAs were assigned to a shift in the
skilled unit, one LPN and two or three CNAs to the north unit,
one LPN and two or three CNAs to the west unit, and one LPN
and two or three CNAs to the south unit.
When called by counsel for the General Counsel, Davis testi-
fied that she arrived at the facility at 8 a.m. on January 14.
About 10 a.m., Renfro paged her while she was at the skilled
unit nurses station speaking with Adkisson. Davis testified that
Renfro told her that several staff members and the media were
out in the Respondent’s parking lot; that she went to the park-
ing lot going out the lobby door and asked Lemon, Kjelsen,
Kelley, Paulin, Hamilton, and Tammy Snyder to come back in
the facility; that there were television cameras present; that the
employees proceeded to follow her back to the facility; that she
held the door open as the employees came into the facility and
Lemon asked, “You’re saying we’re fired. You’re saying we’re
fired” (Tr. 24); that she then said, “Clock out and go home”
(Id.); that she had a page that her corporate office had tele-
phoned and she went to the office to speak with the corporate
office; that while she told the employees to clock out and go
home they were still employed at Bon Harbor; that she tele-
phoned Respondent’s regional offices in Louisville, Kentucky,
and Milwaukee, Wisconsin, and licensing and regulations,
which is a Kentucky State agency which oversees long-term
care, since there was a staffing shortage after the seven em-
ployees left; that there have been individuals who have walked
off the job before but Respondent never had an entire unit walk
off the job before; that the normal discipline for an employee
walking off the job is termination; that she did not go home that
night and she was told the news on television that night indi-
cated that she had fired the employees; that there were four
CNAs assigned to the skilled unit, and two to the south unit on
January 14; that Lemon tore up weight records of residents,
which are legal documents, on the day of the walkout; that
LPNs and CNAs do not report to her when they are going to
take their break; and that she did not tell the employees who
were outside on January 14 to go back in the facility and go to
work but rather she told them to clock out and go home.
In response to questions of the Respondent’s counsel, Davis
testified that she saw seven employees outside Bon Harbor’s
facility on January 14, namely Lemon, who was the LPN su-
pervisor on the skilled unit; Adkisson, who is the LPN supervi-
sor on the skilled unit; Paulin and Tammy Snyder, who are
CNAs on the skilled unit; Kelley and Kjelsen, who are CNAs
on the south unit; and Hamilton, who is a CMA on the west
unit; that while Adkisson was not outside when the group of
employees first went out, Adkisson went out after Davis told
the employees to clock out; that Adkisson told her “I have to”
(Tr. 46); that Lemon came to work late that morning; that Ham-
ilton had been pulled from Lemon’s unit to work on another
unit; that when she went into the parking lot channel 25 repre-
sentatives were there and Chris O’Nan, who is a reporter for the
Messenger Inquirer—the local newspaper, was there; that she
asked the media to leave Bon Harbor’s parking lot; that she
asked the employees to come back into the facility and clock
out; that she did not tell the employees that they were dis-
charged or fired; that it was her opinion that the employees
should have been working when they were in the parking lot;
that if an employee leaves the building, they are supposed to
clock out; that Lemon said, “So you’re saying we’re fired” (Tr.
52); that Lemon asked the media, “Are you getting this on cam-
era” (Id.); that she then said, “[C]lock out and go home” (Id.)
while she was standing, holding the front door open; and that
the movement of Hamilton and the perceived short staffing on
the units on January 14 was not anything out of the ordinary.
The following appears on pages 62 and 63 of the transcript:
MR. NIERMAN: Respondent is willing to stipulate that
the job action was a response or was motivated by short
staffing or at the point of short staffing.
MR. BECK: We’ll enter into that stipulation.
MR. NIERMAN: We’ll stipulate that the employees
walked out on the day in question to protest short staffing.
MR. BECK: That’s fine.
JUDGE WEST: Accepted. [Emphasis added.]
Kjelsen, who is a CNA at Bon Harbor, testified that she was
fired on January 14; that on January 14 “[a] group of girls were
going to talk about 10 o’clock and get together on our breaks”
(Tr. 66); that they were going to discuss short staffing in the
facility; that when they went out the front of the facility she
noticed Lemon speaking with a camera crew; that Davis came
out of the facility and told the camera crew to get off the prop-
erty; that Davis told the employees who were outside to “get
our things and clock out and go home” (Tr. 68); that Lemon
asked Davis, “Did you say that we were fired” and Davis said,
“Yes” (Id.); that she got her things, clocked out and went home;
that she had not clocked out before she went outside on her
break; that she had not taken a break that morning before she
went outside and this was her first break; and that she was
wearing her jacket because it was cold outside but her other
things were inside. On cross-examination, Kjelsen testified that
before going outside on January 14 she did not know that the
media was there; that they had “discussed something about it,
but . . . [she] didn’t expect it to be our there” (Tr. 73); that when
she went outside she took her jacket and purse (Tr. 73 and 74);
that the discussion about short staffing began inside where units
connected and then the involved employees went outside to
discuss short staffing; that on January 14 she worked on the
west unit and reported to Lisa Brown; that she told Lisa Brown
that she was going on break; that she has taken a break in the
parking lot before either eating in her car or standing in the
parking lot talking to people; that what looks like a purse hang-
ing over her right arm in the picture in the newspaper article (R.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1070
Exh. 2), is her lunch bag; that the newspaper article is not accu-
rate in indicating that the employees walked off the job in that
she did not walk off the job but rather she was fired; that when
she left the building she was on a break; and that she intended
to come back to work at the end of her break. Subsequently,
Kjelsen testified that when she takes 15-minute breaks in Bon
Harbor’s parking lot she does not clock out; that she was not
aware of any policy requiring an employee to clock out in this
situation; and that if an employee leaves the facility and the
property for a 30-minute lunch break they are required to clock
out.
Adkisson, who was an LPN charge nurse, testified that on
January 14 after she arrived at work at 6:45 a.m. she and some
of the employees were discussing how short staffed they were;
that this discussion occurred on the west unit in the hallway;
that some of the employees wanted to have a sit-in in the break-
room; that Lemon and Norma Young, who is the 11 p.m. to 7
a.m. charge nurse, were discussing the fact that the 3 to 11 p.m.
and the 11 p.m. to 7 a.m. nurses were getting paid more than
the 7 a.m. to 3 p.m. nurses because of the shift difference; that
Young got upset and she and Lemon had words; that Lemon
locked her med cart and went up front to talk with Steward and
Boehman in their office; that she was present during this dis-
cussion and Steward and Boehman told Lemon, who was cry-
ing, to take an hour break and get herself together; that she and
Lemon went back on the floor; that Lemon and some other
employees telephoned the media and it was agreed that at 10
a.m. the employees would meet out front and talk to the media
in the parking lot; that the media was contacted because the
employees thought someone needed to know how short staffed
they were and the care that the residents were receiving; that 10
a.m. was chosen because the employees were going to take
their break after the first bed check and breakfast; that she had
just received her yearly evaluation and she was discussing it
with Davis at the nurses station on the skilled unit when Davis
received a telephone call from Renfro, who told Davis that she
needed to get up front because there were people out front; that
Davis asked her if she knew anything about this; that Davis
then left the nurses station; that she then continued to look at
her evaluation for a few minutes; that after a few minutes she
went to the front door and looked out; that she punched the
code and Steward opened the front door; that she heard Davis
(1) telling the media that they had to leave because it was pri-
vate property, and (2) asking the employees if they were still on
the clock; that Davis told the employees to clock out and go
home; that Lemon asked Davis, “Are you firing us,” Davis’
head moved up and down, and Lemon said, “Are you all still
getting this on tape” (Tr. 93); that Davis told Steward and
Boehman to take the involved employees’ key and go out on
the floor; that she was still standing at the door and she asked
Steward, “Are you talking about me” to which Steward replied,
“You heard what . . . [Davis] said” (Tr. 93 and 94); that she
took her keys out of her pocket and Steward took them out of
her hand; that the involved employees asked Steward and
Boehman if they wanted help counting meds and with the re-
port, which is a state regulation, but Steward and Boehman said
no and to get out of the building; and that she got her purse and
jacket and left. On cross-examination, Adkisson testified that
Hamilton was with Lemon when Lemon contacted the media;
that she and Lemon were the two LPNs; that it was not unusual
for the two LPNs to take a break at the same time; that she had
noticed in talking with Davis on any routine subject that Davis
tends to nod her head a lot; and that she did not witness Lemon
tear weight records on January 14, and it is not possible that she
told Steward this. Subsequently, Adkisson testified that Stew-
ard was aware that she remained inside throughout the entire
incident in the parking lot on January 14.
Lemon, who as noted above was an LPN charge nurse at
Bon Harbor, testified that she had followed the chain of com-
mand several times to try to complain about short staffing,
nothing was getting done, and it was decided to contact the
media; that on January 14 when she arrived at work the CNAs
were short; that she started working, she became overwhelmed,
and she spoke with Adkisson; that she then went to the office to
tell a supervisor that she needed to leave; that she told Steward
and Boehman that she only had two CNAs, she could not take it
anymore, and Steward needed to come with her to count meds
because she was leaving; that she usually has three CNAs, two
nurses, and one CMA, and, on a good day, there are four
CNAs; that Steward asked her if she could leave for 1 hour and
come back because if she left for the day it would make the unit
short; that she told Steward that she had already taken her nerve
pill, she was crying, and she went back to the floor with Adkis-
son; that six or seven of the employees met in the hallway be-
tween the west and skilled units, they discussed short staffing,
and decided to contact the media and speak to them at 10 a.m.
when they took their break; that when Davis came to the nurses
station and was speaking with Adkisson, she went outside and
talked to the media; that Davis asked the employees who were
outside if they were on the clock, and they told her yes they
were on their break; that Davis told the media that they needed
to leave the premises and the police had been called; that Davis
told the employees that they needed to come in and clock out;
that she then asked Davis, “So are we fired,” and Davis said,
“Yes, you’re fired. Go clock out” (Tr. 108); that Davis told the
supervisors to take the keys and “hit the floors” (Id.); that the
involved employees went back to the floor to get their purses
and coats; that she asked Steward to help her count the narcot-
ics and make a report but Steward refused and told her to go;
that she got her purse and went with Adkisson to Davis and told
her that Steward refused to count drugs and get a report; that
she asked Davis if she was going to be charged with abandon-
ment and Davis said no but she needed to go; and that she then
went outside and talked to the media across the street. On
cross-examination, Lemon testified that when she first walked
out she did not have her purse with her and she did not recall
whether she was wearing her lab jacket; that she did not have
her purse because she was not leaving the facility but rather she
went outside to talk with the media; that she was not walking
out and staying out until such time as Bon Harbor fixed staff-
ing; that between 9 and 9:30 a.m. she decided to contact the
media and she telephoned newspaper reporter Chris O’Nan and
a television station, channel 25 News; that she told the newspa-
per person who answered the telephone that “we were having
short staffing issues and that we were wanting to talk to the
media about it” (Tr. 115); that she explained to the person who
BON HARBOR NURSING & REHABILITATION CENTER 1071
answered the telephone at the newspaper that the employees
had been complaining for 3 months straight; that she said the
same thing to channel 25; that she did not tell anybody that the
employees were going to walk out; that she told the media that
the employees were going to be taking a break at 10 a.m.; that it
is not a normal practice for the two LPNs on the skilled unit
together to leave the floor to go on break; that she and Adkis-
son did not leave the floor together; that after Davis told the
involved employees to clock out and go home, she asked Davis
twice if she was saying that the involved employees were fired
and Davis said, “Yes, you’re fired. Go” (Tr. 122); that when
Davis said this she was holding the door open for the employ-
ees as they were walking in; that she did say at the front door to
the media, “Are you getting this” when she and Davis were
speaking; that the January 15 newspaper article is inaccurate
when it indicates (1) “left their patients and walked off their job
. . . ”; (2) “After returning to the nursing facility to clock out,
the nurses were fired, said Norma Lemon . . . ”; (3) Jennifer
Hurt said she was not made aware of it [short staffing]; and (4)
her discussion with the media on January 14 had nothing to do
with low pay, “I was paid enough” (Tr. 125); that the employ-
ees left the floor on their breaktime to talk to the media and the
employees were fired as they walked in the door; that she an-
ticipated that she might be fired for talking to the media; and
that she was sure that on January 14 she did not tear the resi-
dent/patient weight records. On redirect, Lemon testified that
Bon Harbor did not have a set policy or schedule for when
CNAs take breaks; that she gets two 15-minute breaks and one
30-minute lunchbreak; and that on January 14 prior to going
outside and meeting with the media she had not taken her
break.
Kelley, who is a CNA at Bon Harbor, testified that on Janu-
ary 14 she arrived at work at 6 a.m. and she worked on the
south unit, which had two CNAs assigned to it, namely her and
JoAnn Morreman; that Donna Brown was on the unit as the
LPN; that normally three CNAs work on the south unit and,
therefore, they were one CNA short on the morning of January
14; that for the past couple of months there were just two CNAs
on the unit; that she had complained to Donna Brown; that she
discussed short staffing on the morning of January 14 with
Paulin and Kjelsen; that Paulin said that they were going to go
out and talk with the newspaper reporters and the TV people
about 10 a.m.; that she agreed to join in; that normally she took
lunch at 10:30 a.m.; that she was going on her lunchbreak when
she went out front at 10 a.m.; that she already had taken her 15-
minute morning break before 10 a.m.; that the reporters were
there when she went outside; that Davis came to the door and
the only thing that she heard Davis say was “for us to go get
our belongings, clock out, and get off the premises” (Tr. 141
and 142); that she was away from the main group, she had been
smoking, and she was putting out her cigarette; that they were
saying that Davis said that they were fired but she never heard
Davis say this; that she went inside, got her stuff, and left; and
that she went outside, talked to the reporters, and went home.
On cross-examination, Kelley testified, with respect to Respon-
dent’s Exhibit 2, that the five employees in the picture are her-
self, Kjelsen, Tammy Snyder, Paulin, and Lemon; that the nor-
mal practice is to clock out for lunch but she did not clock out
at 10 a.m. on January 14; and that she did not recall any con-
versation with Donna Brown before she left.
Hamilton, who is a CMA at Bon Harbor, testified that on
January 14 she arrived at work at 6:45 a.m.; that she was as-
signed to the west unit, along with two nursing assistants; that
no LPN was assigned to that unit; that several times in the past
she has been on a unit where there was no nurse assigned to
that unit; that for about 6 months before January 14 there had
been an issue with staffing at Bon Harbor; that she had com-
plained about the staffing issues to Hurt a month or two before
January 14; that her conversations with Hurt took place in
Hurt’s office and Hurt said, “She could run that unit back there
with one CNA if she wanted to” (Tr. 150); that on January 14
the CNAs on her hall, Kjelsen and Dorothy Simmons, asked
her to see if she could get them some more assistance; that she
also discussed staffing that morning with the nurses on skilled
and the CNA on skilled; that they discussed speaking with the
administrator; that at about 9 a.m. Paulin told her that the media
was going to be there about 10 a.m.; that she takes lunch at
10:30 a.m. every day so that she can go to see her husband who
works at Field Packing Company; that at 10 a.m. she went to
the south unit and gave her keys to nurse Donna Brown and
told her that she was going to lunch; that she clocked out and
went out to the parking lot; that she heard Lemon make a few
statements in the parking lot; that as she was saying, “[I]t’s
about my time to go” (Tr. 152) and was walking to her car and
unlocking the door, she heard Davis ask if the involved em-
ployees were on their time, and they needed to come in, clock
out, and get off the premises, and Lemon ask, “Did you say we
were fired” (Tr. 153); that she did not hear Davis’ reply; that
she hollered that she would be right back, she met her husband,
and returned with him, apparently in separate vehicles, to Bon
Harbor; that she was gone not even 5 minutes since her hus-
band was waiting for her at the gate to change vehicles; that she
went into Bon Harbor since her husband had told her that it was
against the law to be fired like that and she should go in; that
she was stopped by Steward and Renfro and one of them told
her that if she had talked to the media, she would be fired; that
she said, “[T]hey said that we were fired. I heard Norma
Lemon. I’m just trying to figure out what’s going on” (Tr. 154);
that she was still on her lunchbreak and she decided to go out-
side and talk to the media; and that she left the facility and
spoke with the media. On cross-examination, Hamilton testified
that she did not recall whether it was Steward or Renfro who
said that if she had been out there talking to the media, she
would be fired; and that while the affidavit she gave to the
Board in February 2004 indicates that Steward made this state-
ment, she was upset at the time and she could not say for sure
that it was Steward.
Paulin, who is a CNA at Bon Harbor, testified that she
worked on the 6 a.m. to 2 p.m. shift on January 14 on the
skilled B hall unit; that at 7 a.m. CNA Amanda Morris came in
to her unit, and at 8:45 a.m. CNA Tammy Snyder came to her
unit; that from 7 to 9 a.m. she and Morris were the only CNAs
on the unit; that LPN Adkisson was on the back hall and LPN
Lemon was on the front hall; that usually there are four or five
CNAs on the skilled unit; that there had been a problem with
short staffing prior to this and she had complained about it to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1072
Hurt on numerous occasions; that she discussed the short staff-
ing problem with employees on January 14 and before that; that
on January 14 the employees discussed talking about the prob-
lem with Hurt but then it was concluded that they would get
nowhere discussing it with Hurt; that she was present when
Lemon contacted the newspaper and a TV station; that it was
decided to talk to the media at 10 a.m. because everybody
would be ready to take a break or lunch; that the plan was
communicated to Hamilton, Tammy Snyder, Adkisson, Kelley,
Dorothy Simmons, Morreman, and pretty much almost every-
body that was in the building; that at about 10:15 a.m. she and
Lemon, Adkisson, Tammy Snyder, Kelley, and Kjelsen went
outside; that she did not bring her purse or her coat with her
when she went outside; that the camera crew was set up in the
lobby and Davis told them that they needed to get off the prem-
ises, get out of the inside; that she followed the camera crew
outside; that Davis then came outside and asked the employees
if they were on the clock and most of the employees responded
they were; that Davis said that the involved employees needed
to clock out and get off the property; that Lemon then asked,
“Are you firing us” (Tr. 168); that Davis said, “Yes, you’re
fired. Clock out and get off the premises” (Id.); and that she
went into the facility, got her belongings, clocked out at 10:22
a.m., and went outside and spoke with the media. On cross-
examination, Paulin testified that when Lemon asked Davis if
the involved employees were fired Davis replied, “Yes, you’re
fired. Clock out and leave” (Tr. 178); and that she did not have
any of her belongings with her when she first went outside.
When called by Respondent, Davis testified that Lemon
asked on January 14 if the involved employees were fired, she
told the employees to clock out and go home, and she did not
tell anyone that they were fired or discharged from employ-
ment; that media is not allowed at the facility because of resi-
dent’s rights; that by telling the involved employees to leave
she did not intend to terminate them; that she had never had this
happen before; that she has told employees to go home while
the Respondent investigates allegations of abuse or neglect but
in those instances she would suspend the employee for 5 days
pending investigation; that after she told the involved employ-
ees to leave on January 14 she called her corporate office; that
she regarded the involved employees who were sent home as
active employees who were not working; that she contacted
channel 25 in Evansville, Indiana, and obtained a copy video-
tape of the coverage of the January 14 incident, inter alia (R.
Exh. 8); that regarding the involved employees, she would not
think that amount of staff would be on break at that one time on
January 14; that it is not common for that many people from the
involved units to leave the facility at the same time; that it is
unusual that both LPNs would leave the skilled unit at the same
time; and that based on her investigation she never concluded
that the involved employees were all on break. On cross-
examination, Davis testified that while she responded to
Lemon’s question as to whether she was saying they were fired,
she only said, “To clock out and go home” (Tr. 197) and did
not say, “Yes. Get your things and go” (Id.); that she did not
say anything to let the involved employees know that they were
not fired when Lemon asked more than once if the involved
employees were fired; that while it was not her intent to termi-
nate these employees on January 14, she did not explain to
these employees why they were sent home, and she did not
communicate to the involved employees in any way on January
14 that they were not fired; that she did not explain to the in-
volved employees what their job status was when she told them
to clock out, get their things, and go home; that it is against
company policy to have the involved employees on break at the
same time in view of the staffing that would be available; that
the policy is not memorialized in any of the Company’s em-
ployee handbooks; and that such policy has not been communi-
cated to employees but it is directed by their charge nurse. Sub-
sequently, Davis testified that after she asked the TV crew to
leave the parking lot they were in the lobby of the facility in
that “she came into the lobby.” (Tr. 201.)
Steward, who is a registered nurse and the nurse manager on
skilled and west hall, testified that on January 14 while she was
standing in the front lobby of Bon Harbor she heard Davis tell
the involved employees to come back in, clock out, and go
home; that she heard Lemon say to get this on tape; that she did
not recall having a conversation with Hamilton on January 14
where Hamilton was inquiring about her job status; that she did
not say to Hamilton that “if she had talked to the media or her
face was on the media, she would be fired” (Tr. 203); that Re-
spondent’s Exhibit 4 are ripped weight records which she found
at Lemon’s desk on January 14 right after Lemon walked out;
that it was not after Lemon came back to get her belongings
and leave for good but rather it was when Lemon first walked
out about 10:15 a.m.; and that she did not see who ripped the
records. Subsequently, Steward testified that she found the
ripped documents before Lemon came back into the facility at
Davis’ behest; that she was in the lobby when Lemon came
back into the facility at Davis’ behest; that she heard what
Davis told the employees when they were coming back in; that
while ripping such documents is a very serious matter, she did
not say anything to her in the lobby when Davis was bringing
the involved employees back into the facility because of the
commotion; and that she bought it to the attention of Davis
shortly thereafter.
Boehman testified that on January 14 she was in the lobby
when the involved employees were returning back from being
outside; that she could not hear what the employees were ask-
ing Davis but she did hear Davis say, “No. I said to clock out
and go home.” (Tr. 212); and that she never heard Davis say,
“[Y]ou’re fired” (Id.). Subsequently, Boehman testified that
employees were asking questions as they came back into the
facility and while she could not hear the questions, she is sure
that Davis said, “No. I said to clock out and go home” (Tr.
214); and that she heard Davis say, “No” (Tr. 215).
When called by counsel for the General Counsel, Davis testi-
fied that while the seven above-described employees were
scheduled to work on January 15, none of them came to work
or called in; that an article in the local newspaper that morning
indicated that these employees stated that they had been fired;
that after two no-call/no-shows, an employee could be termi-
nated; that Respondent sent letters to all of these employees to
let them know that they were not fired; that she discussed the
letter with Respondent’s regional people and the human re-
sources department; that she believed that the incident, along
BON HARBOR NURSING & REHABILITATION CENTER 1073
with the employees’ belief that they were fired, was covered on
the television news on the night of January 14; that the first
discussions she had with anyone about sending the employees a
letter telling them that they had not been fired occurred on
January 15; that she, Hurt, Respondent’s regional director of
operations, and a human resources person, along with Respon-
dent’s legal department, made the decision to send the letter;
that conditions were place and on the employees coming back
in that they had to come back unconditionally and also agree
not to walk out in the event of some future short staffing; that if
the employees did not agree to these conditions, they would not
come back to work, they would still be considered employees
of Bon Harbor, but they would not be scheduled any hours; that
Bon Harbor’s legal department made the decision to place these
conditions on the employees returning to work; that the discus-
sions with the legal department about the conditions for return-
ing to work occurred later on the day the letter was sent out;
and that despite the fact that Lemon allegedly tore up weight
records on the day of the walkout, she would have been put
back to work if she had agreed to the conditions.
Respondent’s Exhibit 3 is a copy of a newspaper article. As
here pertinent, it reads as follows:
Bon Harbor nurses fired after walkout
Six leave nursing facility over pay and staffing complaints
01/15/04
By Chris O’Nan
Messenger-Inquirer
Citing understaffing and low pay, six members of the
nursing staff at Bon Harbor Nursing and Rehabilitation
Center left their patients and walked off the job Wednes-
day.
The walkout resulted in their firing by Director of
Nurses Carolyn A. Davis, who followed the women to the
parking lot and told them to clock out before leaving. Af-
ter returning to the nursing facility to clock out, the nurses
were fired, said Norma Lemon, a licensed practical nurse
and one of those fired.
Hamilton testified that she returned to Bon Harbor on Janu-
ary 15 with Lemon to pick up her check stub; that Davis asked
them to come into her office, told them that they were not fired,
and that they could come back if they came back uncondition-
ally and agreed not to walk out again if Bon Harbor was short
staffed; that she and Lemon could not answer the questions
with just a yes, and they left Bon Harbor; and that she could not
answer the question with a yes because she did not walk out the
first time.
When called by counsel for the General Counsel, Davis testi-
fied that while the seven above-described employees were
scheduled to work on January 16, none of them came to work;
that she did not know if any of the seven employees called in
on January 16; and that none of the employees were disciplined
for not showing up for work or calling in on January 15 and 16.
By letter dated January 16 (R. Exh. 1), Davis advised
Tammy Snyder as follows:
I saw in the newspaper a report that you have been
terminated. This is not correct.
On Wednesday, January 14, you and several other em-
ployees walked off the job complaining about staffing. My
concern was that you were not working while you re-
mained on the clock. It was never my intention to suggest
that you were terminated.
If you intend to return to work, please contact me.
Hamilton testified that she and Paulin went to Bon Harbor on
January 16 because apparently a newspaper article indicated
that the involved employees were not fired and they were still
employed by Bon Harbor; that there was a full-staff meeting
that Friday and when they attempted to go to it Davis would not
allow them to attend that meeting; that Davis asked them to
come to her office and asked them if they could answer the two
questions; that this time she said yes to the two questions,
namely that she would come back unconditionally and that she
agreed not to walk out if Bon Harbor was short staffed, “but I
did not walk out the first time” (Tr. 156); and that she returned
to work at Bon Harbor the following Tuesday.
Paulin testified that on Friday morning, January 16, the in-
volved employees met at Shoney’s and O’Nan, who was pre-
sent, told them that she had talked with Davis and the employ-
ees would be getting a letter indicating that they were not fired;
that later that day she went to Bon Harbor with Hamilton be-
cause there was a full staff meeting; that Davis saw them in the
facility and told them they were not allowed to attend the full-
staff meeting; that she asked Davis why they could not attend
the staff meeting if they were not fired; that Davis took them to
her office where Ann Snyder asked them if they would come
back unconditionally and not walk out the next time Bon Har-
bor was short staffed; that she answered yes to both questions
and added that Davis fired them; that Hurt, who was present for
this meeting, told her that she would call her after she called
Extendicare to see if she was able to return to work; and that
she returned to work the next day. On cross-examination, Pau-
lin testified that Lemon was at the meeting at Shoney’s.
Kjelsen testified that she did not receive a letter from Bon
Harbor but Kelley, who is a CNA, told her about the letter and
she went with Kelley to Bon Harbor to meet with the Acting
Administrator Hurt; that Hurt asked Kelley if she would come
back unconditionally and whether she would walk out “if any
conditions were as they were and would . . . [she] walk out on
any conditions” (Tr. 71) and Kelley answered, “[Y]es”; and that
when Hurt asked her these questions she believed she said,
“[N]o.” On cross-examination, Kjelsen testified that Cathy
Head, a corporate human resources person, may have been
present at this meeting; and that when she was asked if she
would leave under the same conditions it meant the staffing
situation.
Kelley testified that she received a certified letter from Davis
indicating that the involved employees were not terminated and
she should set up an appointment to talk with Davis and Hurt;
that she went to Bon Harbor with Kjelsen; that Hurt and Davis
asked them two questions, namely would they walk out if they
were short staffed again, and would they come back with no
demands; that she answered yes to both questions indicating
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1074
that she wanted to be able to go back on the same floor and still
have all her benefits and stuff; and that they told her to return to
work.
Kjelsen testified that 1 week after meeting with Hurt, she
telephoned Acting Administrator Ann Snyder and asked her if
she could come in and talk with her; that Snyder asked her the
same two questions and this time she replied, “[Y]es”; and that
she was then told to come back to work the next day on south
wing.
Adkisson testified that on January 20 she received a certified
letter from Bon Harbor indicating that she was not fired; that
she went to Bon Harbor to pick up her paycheck and asked two
ladies from corporate who were standing there if it was conven-
ient to speak with Davis; that she was told that it was not con-
venient since Davis was in a meeting; that she went to Bon
Harbor twice and telephoned once but “never once was I talked
to” (Tr. 96); and that she did not attempt any other contact after
these efforts. On cross-examination, Adkisson testified that she
took employment elsewhere 2 days after January 14.
Lemon testified that she received a certified letter from
Davis indicating that the involved employees were not termi-
nated and she should set up an appointment to talk with Davis;
that the following week she returned to the facility and met
with Davis, Ann Snyder, who is one of the corporate ladies, and
Hurt; that Ann Snyder asked her if she would not walk off the
job again if they were short staffed and would she come back
unconditionally; that when she tried to answer the questions she
was told it had to be a simple yes or no, and she told them she
could not answer because that would make her guilty of aban-
doning her patients; that she was told that she had to leave the
facility and she could return when she could answer the ques-
tions; that subsequently she tried to visit patients that she had
taken care of at Bon Harbor and she was escorted out; and that
when she went to visit with one patient she was taken to the
office and she heatedly spoke with the administrator about
staffing and patient care.
Paulin testified that about 1 week after January 14 the United
Steel Workers of America contacted Lemon; that she attended a
meeting at the Union’s hall; that a decision was made to at-
tempt to organize the Bon Harbor employees; that she attended
weekly meetings, wore a union button to work every day, and
passed out flyers in front of Bon Harbor’s building; that Ann
Snyder told her to move to the street; and that she posted union
material on the bulletin board inside the employee breakroom.
When called by counsel for the General Counsel, Davis testi-
fied that Lemon was terminated because she was called on two
separate occasions to come into the facility, Lemon came in,
but her behavior was disruptive; that on one particular incident
Lemon went into a patient’s room, took his arm, cursed, and
was out of control; that during the two meetings Lemon refused
to accept the two above-described conditions and therefore she
was not put back to work; that she and corporate human re-
sources decided to terminate Lemon; that she calls human re-
sources before she terminates any employee; that, in addition to
the two times Lemon came in to discuss coming back to work,
Lemon came to the facility two times; that there were written
reports about Lemon coming into the facility, throwing paper
into the air and cursing on a unit with residents present; that
Lemon’s conduct was not reported to licensing and regulation
but she escorted Lemon out of the building; that she did not feel
Lemon’s conduct was serious enough to report to licensing and
regulation; and that the first time Lemon came to the facility to
discuss the conditions was within a week of January 14, and the
second was probably a few days after that.
In response to questions of the Respondent’s counsel, Davis
testified that she was present at both meetings when Lemon
refused to agree to the above-described conditions; that she
viewed Lemon as a supervisor; and that she believed that
Lemon lead the CNAs out of the facility and this was taken into
consideration in the decision to terminate Lemon.
By undated letter (R. Exh. 3), Davis advised Lemon as fol-
lows:
Extendicare holds itself and each of its employees, par-
ticularly its supervisory Charge Nurses, to the highest
standards. It is an obligation we owe to our residents and
the families who have entrusted Extendicare with their
loved ones’ care. When on duty, the Charge Nurse is ac-
countable for the Nursing Assistants reporting to her, and
the care of the residents on her unit.
On January 14, 2004, when working as the supervisor
on the skilled care unit, you consciously decided to walk
off the job, and encouraged or instructed Nursing Assis-
tants to walk off the job. You abandoned your residents.
Over the past two weeks you were twice asked whether
you would assure us that you would not do this again.
Your refused to give us such an assurance on both occa-
sions.
We have reviewed the events of the past two weeks,
including the events of January 14 and your employment
history at Bon Harbor. We have determined as a supervi-
sor you did not have a legal right to walk off the job, and
that your continued employment is not consistent with Ex-
tendicare’s policies and the obligations Extendicare owes
to our residents and their family members. Effective
Wednesday, January 28, 2004, your employment with Ex-
tendicare is hereby terminated.
Davis testified that she believed that this letter was sent on
January 29. The employee separation form for Lemon, which
was signed “2/2/04” and is page 2 of Respondent’s Exhibit 3,
indicates that Lemon quit and the primary reason was job aban-
donment.
When called by counsel for the General Counsel, Davis testi-
fied that Bon Harbor engaged in activity in order to make its
opposition to unionization known to its employees in that it
held mandatory employee educational meetings.
Hamilton testified that there is a bulletin board in the break-
room at Bon Harbor; that the breakroom is used by employees
and not by the public; that the employees use the bulletin board
to post ads regarding the sale of cars, uniforms, dogs and cats,
and furniture, etc.; that she posted an ad of the sale of a uniform
on the bulletin board and she did not clear it with management
before putting it on the bulletin board; that her ad remained on
the bulletin board until she took it down after 4 weeks; and that
no one from management ever told her that she needed to have
BON HARBOR NURSING & REHABILITATION CENTER 1075
items cleared before she could hang them up on the bulletin
board.
Paulin testified that on March 18 she saw some of the union
material that she posted being removed by Boehman from the
bulletin board in the employee breakroom at Bon Harbor; that
she told Boehman that it was against the law for her to remove
the union material; that Boehman said that Ann Snyder said
that she could remove the material because Bon Harbor was
privately owned; that she told Boehman she was given a little
notebook from the Union to write down things that happened
and she was going to write this down in her book; that later that
day she had a meeting with Boehman in her office; that Boeh-
man had Donna Brown as a witness so she got Kim Stout, an
LPN, as her witness; and that the following transpired:
She told me that—she had the employee handbook out and
she said it was against the rules to hang up stuff, unauthorized
by the administrator, in the employee break room. And I told
her . . . I’ve hung up stuff on there before. Just because we
were in an organizing drive doesn’t mean the rules can
change. And then she told me that I was getting a verbal
warning and I said what for. And she said for threatening a
supervisor. [Tr. 174.]
Paulin further testified that she asked Boehman what she meant
by threatening a supervisor because she was writing it down in
her notebook; that she had posted material on the bulletin board
before, namely a baby bed for sale and a garage sale, and she
had not cleared either of these ads with management before
posting them; that no one ever told her that she was supposed to
have ads cleared by management before posting them on the
employee bulletin board; that after this meeting she posted an
ad for a car for sale with a fake telephone number to see if it
was removed; that she did not clear the car ad with manage-
ment; and that the car ad remained up on the employee bulletin
board for over a month until she took it down. On cross-
examination, Paulin testified that after March 18 she posted
union related material on the employee bulletin board in the
employee breakroom and some had been removed but lately it
was not removed; that with respect to those materials which
were removed after March 18, she did not know who removed
them; and that she received a handbook (R. Exh. 5), as a new
hire 5 years ago. As here pertinent, the handbook reads as fol-
lows:
Bulletin boards are used by the company to provide informa-
tion such as announcements, changes of programs, revised or
additional personnel policies, and the posting of work sched-
ules. If your facility allows employees to use the bulletin
board, all material posted must be approved and initialed by
the administrator before it is posted. You are responsible for
checking the bulletin board regularly. Posted information will
only be removed by the appropriate business office staff or
supervisor. Unauthorized material will be removed.
Davis testified that Paulin was verbally warned for violating
item 6 of class I offenses of the disciplinary action procedure
(R. Exh. 6). The item reads as follows: “Minor disrespect to
any employee, supervisor, or any other individual in the facil-
ity.” Six examples of other employees disciplined under this
item were received as Respondent’s Exhibit 7.
Boehman, who is the LPN nurse manager, testified that on
March 18 she entered the breakroom and began taking literature
off the bulletin board; that Paulin asked her if she knew what
she was doing was against the law; that she told Paulin that she
did not believe that it was against the law and she was doing
what her supervisors had told her to do; that Paulin told her that
she could show her in some book where it was against the law,
and she told Paulin that she was not going to debate this issue
with her in the breakroom and if Paulin wanted her to come to
her office she could; that Paulin chose not to instead “she stood
up and put her hands on her hips and raised her tone of voice
and said that, ‘I hope you know that everything you’re saying
to me right now I’m writing down in my little white book’” (Tr.
210); that she told Paulin, “[t]hat is your choice. You can do
that” (Id.); that she told Paulin that she needed to speak with
her and they went back to her office; that Donna Brown was in
the office and Paulin requested a witness, Stout; that she
showed Paulin the handbook (a) requirement for preauthoriza-
tion to post on the bulletin board, and (b) reference to disre-
spect to a supervisor; that she told Paulin that she was giving
her a verbal warning, telling Paulin that she did not appreciate
Paulin’s attitude toward her in the breakroom; that Paulin was
disrespectful because she argued in the breakroom in the pres-
ence of other employees, raised her tone of voice, and kind of
snickered when she said that it was against the law; and that
Paulin is not the only person that she has written up for disre-
spect to a supervisor. On cross-examination, Boehman testified
that Davis told her to remove the union literature from the bul-
letin board after Davis discussed it with Ann Snyder; and that
Davis did not instruct her to remove anything else from the
bulletin board. Subsequently, Boehman testified that she is in
the breakroom several times a week; that she has seen items for
sale on the bulletin board; that she did not know whether the
employee who posted the item for sale on the bulletin board
received preauthorization from the administrator; and that this
was the fist time she was asked to remove something from the
bulletin board.
Donna Brown, who is an LPN on the skilled unit, testified
that on March 18 she was in the breakroom when Boehman
took down some union postings; that after Boehman took down
the union postings Paulin stood up and said that was against the
law to do that; that Boehman responded that she was only doing
what she was told to do and Boehman told Paulin that they
could talk about it in her office; that Paulin, who was sitting,
stood up, put her hands on her hips and then folded her hands,
her face got red, her tone of voice was loud but she was not
yelling, and she repeated the statement that it was against the
law what she was doing; and that “yes” (Tr. 217), based on her
experience as a supervisor she felt Paulin was being disrespect-
ful.
By Decision and Direction of Election dated April 27 in
Case 25–RC–10230, Extendicare Homes, Inc. d/b/a Bon Har-
bor Nursing and Rehabilitation Center (Jt. Exh. 1), the Regional
Director for Region 25 of the National Labor Relations Board
(the Board) concluded that the Employer had not met its burden
of proof that licensed practical nurses are supervisory employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1076
ees within the meaning of Section 2(11) of the Act. Licensed
practical nurses were included in the unit found appropriate in
that Decision.3 The Employer’s Request for Review of the Re-
gional Director’s Decision and Direction of Election was de-
nied by Order of the Board dated May 26, with Chairman Bat-
tista dissenting. (Jt. Exh. 2.) The request was denied for the
following reason: “it raises no substantial issues warranting
review.” Counsel for the General Counsel and the Respondent
also stipulated that during the relevant time period Adkisson
and Lemon held the position of LPN charge nurses, and pos-
sessed the same duties and responsibilities as other LPN charge
nurses.
Analysis
Paragraphs 5(a), (b), and (c) of the complaint collectively al-
lege that about January 14, Respondent discharged employees
Kelley, Kjelsen, Paulin, Lemon, Adkisson, Hamilton, and
Tammy Snyder (1) for engaged in concerted activities with
each other for the purposes of mutual aid and protection, by
gathering together at Respondent’s facility during their break to
protest staffing conditions and complain to the news media
about their terms and conditions of employment, and (2) to
discourage employees from engaging in these or other con-
certed activities. Counsel for the General Counsel on brief con-
tends that the six of the seven involved employees went outside
of the Respondent’s facility during the employees’ normal
breaktime to complain to the news media about Respondent’s
persistent failure to schedule adequate staff to handle the work-
load at Respondent’s facility and the seventh was just in the
area when the complaints were made; that contrary to Respon-
dent’s position, the evidence shows that these employees were
discharged in that several employees were actually told they
were discharged and all of the involved employees were told to
go home and were not allowed to return to work until they
agreed to the certain unlawful conditions; that an employer
violates Section 8(a)(1) of the Act if it knew of the concerted
nature of the employees’ activity, the concerted activity was
protected under the Act, and the adverse employment action at
issue was motivated by the employees’ protected activity,
Dearborn Big Boy No. 3, Inc., 328 NLRB 705, 709 (1999); that
in Hacienda de Salud-Espanola, 317 NLRB 962 (1995), the
Board found an employer violated the Act when it discharged a
group of certified nurses aides who left their posts en masse in
order to air their work-related grievances about staffing with a
news reporter, even though some of the employees were not on
break at the time; that all of the employees who testified that
they intended to return to work at the end of their break, which
was demonstrated by the fact that they left their personal items

3 The Decision found that the following employees of the Employer
constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Sec. 9(b) of the Act:
All full-time and regular part-time licensed practical nurses,
certified medication assistants, certified nursing assistants, die-
tary, housekeeping, laundry, and activities employees employed
by the Employer at its Owensboro, Kentucky facility; BUT
EXCLUDING all office clerical employees, directors of nursing,
unit managers, MDS coordinators, staff development coordinators
and all guards and supervisors as defined in the Act.
in Respondent’s facility when they exited the building to speak
with the media; that when she returned from her lunchbreak
which was taken away from the facility, Hamilton was told by
either Steward or Renfro that if she had talked to the media, she
would be fired; that additionally, Davis’ statements and conduct
led the employees to believe that they had been discharged in
that she told them to clock out and get off the premises, and she
did not deny Lemon’s statements made in Davis’ presence that
the employees had been discharged and Lemon’s questioning
as to whether the camera operators had seen it, Accurate Wire
Harness, 335 NLRB 1096 (2001); and that Adkisson was dis-
charged on the mistaken belief that she also had engaged in the
protected activity which violates the Act, Metropolitan Ortho-
pedic Assn., P.C., 237 NLRB 427 (1978). Respondent on brief
argues that the seven involved employees were not discharged
on January 14; that Davis told the involved employees4 who
walked off the job without first clocking out, to come into the
facility, clock out, and leave the premises; that Respondent’s
Exhibit 8, the videotape of the incident, does not show Davis
saying, “yes”; that the Board has held that the fact of discharge
does not depend on the use of formal words of firing, Hale Mfg.
Co., 228 NLRB 10, 13 (1977); that the determination of
whether there was a discharge is judged from the perspective of
the employees, and the issue is whether the employer’s state-
ments or conduct would reasonably lead employees to believe
that they had been discharged, Kolkka Tables, 335 NLRB 844
(2001); that the employees could not have reasonably believed
that they were discharged; and that on January 14, 15, and 16
the employees were treated as striking employees who had not
unconditionally offered to return to work.
For some time the employees had been complaining to man-
agement about the burdens that were being placed on them and
the residents by short staffing, that is, not having a sufficient
number of employees at the facility. Administrator Hurt did not
testify to deny that employees complained to her about the
short staffing and when Hamilton complained to her about short
staffing Hurt said, “[s]he could run that unit back there with
one CNA if she wanted to.” Respondent’s director of nursing at
the involved facility, Davis, described the staffing on each of
the units as of January 2004. None had just one CNA. Hamil-
ton’s testimony is credited. Respondent knew about the short
staffing problem, employees complained about the short staff-
ing problem, and the response they received from management
was that even with the shortages, Respondent did not need as
many CNAs as it was then using. In other words, the employees
were being told that if they thought that the situation was bad,
management could make it worse. On the morning of January
14 Lemon, who was crying at the time, went to Steward and
Boehman to complain that she only had two CNAs, she could
not take it anymore, and she was overwhelmed. Usually,
Lemon had three CNAs, two nurses, one CMA, and on a good
day there were four CNAs. Steward told Lemon to take an hour
break and get herself together. Other employees were upset
about the short staffing and management’s refusal to do any-
thing about it. The involved employees discussed the matter

4 Respondent on brief describes the involved employees as “strik-
ers.”
BON HARBOR NURSING & REHABILITATION CENTER 1077
and decided that during their break (a 15-minute break for some
and 30-minute lunchbreak for others, depending on their hours)
they would take their case to the media.5 The employees did not
take their personal belongings with them when they went out-
side to talk to the media.6 The employees were not going out on
strike. Obviously, they intended to return to work at the end of
their break. They went outside as a group to present their case
to the media. As pointed out by Judge Pannier in Hacienda de
Salud-Espanola, supra, such activity is protected by Section 7
of the Act. On the one hand, of the employees who testified
about what then occurred, four of the six testified that Davis
indicated “[y]es” to Lemon’s question whether Davis was firing
the employees.7 Of the two who testified that they did not hear
the “yes,” one, Hamilton, was not with the group of employees
but was getting into her car to go to see her husband. The other,
Kelley, testified that she was away from the main group, she
had been smoking, and she was putting out her cigarette. Since

5 As Lemon testified, Respondent does not have a set policy or
schedule for when employees can take breaks. The record in the repre-
sentation case does have references to CNAs taking first break after
breakfast and bed checks have been completed, and that it appears that
break and meal periods for CNAs are designated on their assignment
sheets. Respondent did not show that any of the CNAs were in viola-
tion of stated breaktimes when they took their break on January 14 to
speak to the media. Lemon’s testimony is credited. Also, Respondent
does not preclude employees from taking their break in the parking lot,
and they do not have to clock out to do this. It appears that employees
are required to clock out if they are leaving the premises for their
lunchbreak, as Hamilton did on January 14. Respondent’s employee
handbook, Emp. Exh. 9 in Jt. Exh. 1, indicates as follows on p. 15
thereof:
MEAL PERIOD
Full-time employees are allowed at least thirty (30) minutes
for a meal period. The meal period is unpaid time. You must
clock out for your meal period and clock in upon return to work.
If you leave the facility, you must sign out with your supervisor.
All meal periods will be scheduled by your supervisor. Meal time
for employees working less than full time may be arranged with
the supervisor.
REST PERIODS
You will be provided a paid break for every four (4) hours
worked in accordance with the facility’s policies. Breaks will be
scheduled by your supervisor. You must take your breaks in the
designated areas and may not leave the premises during break
time. [Emphasis added.]
The dictionary definition of “premises” is the building and its land.
Since Davis ordered the media out of the parking lot, Respondent obvi-
ously views the parking lot as a part of its land. Therefore, the involved
employees did not leave Respondent’s premises during their break, and
the handbook does not contain a requirement that they clock out if they
take their break in the parking lot, which appears to be a practice
which—before the incident in question—was acceptable to the Re-
spondent.
6 It is noted that Hamilton, who clocked out, drove her automobile to
her husband’s place of employment. She took her keys and undoubt-
edly she also took her drivers license.
7 Seven employees were discharged. Tammy Snyder did not testify
at the trial herein. Three of the employees, namely Kjelsen, Lemon, and
Paulin testified that Davis answered, “yes.” Adkisson testified that
Davis nodded her head up and down when she was asked this question.
Hamilton told her husband what occurred when she saw him
shortly after leaving Respondent’s facility the first time that
day, what Davis did and said when she came out and spoke to
the employees, as relayed by Hamilton to her husband, led
Hamilton’s husband to tell her that it was against the law to be
fired like that, and she should go back to the facility. On the
other hand, Davis, who testified that she did not answer “yes”
to Lemon’s question, testified that after Lemon asked, “You’re
saying we’re fired . . . .” she, Davis, told the employees to clock
out and go home. Davis concedes that she did not say anything
to the employees on January 14 to let them know that they were
not fired or to explain why they were being sent home. Davis
also testified that the normal discipline for an employee walk-
ing off the job is termination, and that in the past she has told
employees to go home while the Respondent investigates alle-
gations of abuse or neglect. But in those instances Davis sus-
pends the employee for 5 days pending investigation. Here, the
seven employees were not suspended. Two other witnesses
called by the Respondent testified about what occurred on
January 14. One, Boehman testified that Davis said, “[n]o, I
said to clock out and go home.” Boehman is not a credible wit-
ness. Davis did not assert that she said, “[n]o, I said to clock out
and go home.” The second, Steward, testified that she heard
Davis tell the employees to come back in, clock out, and go
home. But Steward is the one who testified that she did not say
to Hamilton that “if she had talked to the media or her face was
on the media, she would be fired.” (Emphasis added.) Hamil-
ton, however, testified only that either Steward or Renfro said
that if she talked to the media she would be fired. Renfro was
with Steward. Renfro did not testify at the trial herein to deny
that either she or Steward told Hamilton that if she had talked
to the media she would be fired. Hamilton’s testimony is cred-
ited. Either Renfro or Steward told Hamilton, when all three
were together, that if Hamilton had talked to the media, she
would be fired. Renfro and Steward had to get their understand-
ing and appreciation of the situation from management. Any
employee who spoke to the media was discharged. Steward did
not deny Adkisson’s testimony that Davis told Steward and
Boehman to take the involved employee’s drug cart keys, and
she, Steward, then took Adkisson’s key after Adkisson asked
her if she was included. Steward was including Adkisson as an
involved employee even though Adkisson did not go outside
and talk to the media. Adkisson was in the lobby and not in her
unit. I credit the testimony of the employees who testified that
Davis indicated “yes” when Lemon asked, “You’re saying
we’re fired . . . .” The camera angle, the distance from the sub-
jects, and the fact that apparently more than one person is
speaking at the same time preclude my making a definitive
determination with respect to exactly what was said based
solely on the videotape. The following appears in North Ameri-
can Dismantling Corp., 331 NLRB 1557 (2000):
The Board has held that the fact of discharge does not
depend on the use of formal words of firing. Hale Mfg.
Co., 228 NLRB 10, 13 (1977), enfd. 570 F.2d 705 (8th
Cir. 1978). It is sufficient if the words or action of the em-
ployer “would logically lead a prudent person to believe
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1078
his [her] tenure has been terminated.” NLRB v. Trumbull
Asphalt Co., 327 F.2d 841, 843 (8th Cir. 1964).
The employer’s words and actions on January 14 logically lead
the involved employees to believe that their tenure had been
terminated.8 Respondent violated the Act as alleged in para-
graphs 5(a), (b), and (c) of the complaint.
Paragraph 5(d) of the complaint alleges that since about
January 15, Respondent has refused to reinstate these seven
employees unless they agreed not to engage in the activity de-
scribed above in paragraph 5(a) or other protected concerted
activity. Counsel for the General Counsel on brief contends that
the rehire restrictions required a waiver of the right to engage in
protected concerted activity and thus violate the Act, Bethany
Medical Center, 328 NLRB 1094 (1999); that the conditions
were clearly mandatory since Lemon was never reinstated be-
cause she refused to agree to those conditions; and that Re-
spondent’s conditioning reinstatement on a waiver of the right
to engage in future protected concerted activity violated Section
8(a)(1) of the Act. Respondent on brief argues that the Board
has held that where employees concertedly refuse to work to
protest a working condition, and then attempt to return to work,
the employer is privileged to question the employees as to their
future intentions before reinstating them, and the employer can
discharge the employee if she will not give assurances that she
will remain on the job even if the condition she went on strike
to protest continues, Mike Yurosek & Son, Inc., 310 NLRB 831
(1993).
To start with, the Respondent’s argument is based on a false
premise, namely that the employees refused to work on January
14. The employees did not refuse to work. The employees
spoke to the media while the employees were on break in the
Respondent’s parking lot. For this they were discharged on
January 14. The employees intended to return to work after the
break but the Respondent’s actions precluded this. As some of
the employees themselves explained, the reason they did not
initially agree to the conditions was that they did not walk out
on January 14 but rather Davis fired them. In the situation at
hand, Respondent could not lawfully require that the involved
employees waive their right to engage in concerted protected
activity in the future in order to be considered for reinstatement.
Respondent violated the Act as alleged in paragraph 5(d) of the
complaint.9

8 Counsel for the General Counsel has shown that the employees’
protected concerted activity was the reason for their discharge. The
Respondent did not establish that the discharges would have occurred
even absent the employees’ concerted activity. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S.
989 (1982).
9 Mike Yurosek & Son, Inc., supra, can be distinguished in that there
the Board discussed the possibility of employees planning to engage in
a recurring or intermittent strike regarding overtime, which amounts to
employees unilaterally determining conditions of work. There the
Board concluded that the economic strikers were entitled to reinstate-
ment but that the employer could determine what their intentions were
for the future and warn them that it would regard future refusals to
work overtime as grounds for disciplinary action. There the Board did
not conclude that an employer has the right to condition the reinstate-
Paragraph 5(e) of the complaint alleges that about March 13,
Respondent by Della Boehman, removed union literature from
a bulletin board at Respondent’s facility despite allowing em-
ployees to post other types of nonwork-related literature on the
same bulletin board. Counsel for the General Counsel on brief
contends that it is a violation of the Act for an employer to
prohibit the posting of union literature on a bulletin board while
allowing other types of nonwork-related items to be posted,
Benteler Industries, 323 NLRB 712, 714 (1996); that an em-
ployer cannot remove union material from a bulletin board
because of its content while allowing other nonwork items to
remain posted, Roll & Hold Warehouse, 325 NLRB 41, 51
(1977); that there was no evidence offered that Respondent ever
followed its rule regarding employees obtaining authorization
before posting items on the bulletin board; and that employee
items were posted without authorization, and Paulin even
posted a fake ad on the bulletin board for a month after she was
disciplined. Respondent on brief argues that counsel for the
General Counsel did not offer into evidence the leaflet that was
removed, or any description of it; and that an employer which
removes from its bulletin board union literature, but allows
employees to post only personal items for sale, does not dis-
criminate, Fleming Cos., 336 NLRB 192, 194 (2001), and Ven-
ture Industry, 330 NLRB 1133, 1134 fn. 7 (2000).
In Fleming Cos., supra, it is indicated, as here pertinent,
Board law on this point is clear. In Honeywell, Inc.,
262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir.
1983), the Board declared:
In general, “there is no statutory right of employees or
a union to use an employer’s bulletin board.” However,
where an employer permits its employees to utilize its bul-
letin boards for the posting of notices relating to personal
items such as social or religious affairs, sales of personal
property, cards, thank you notes, articles, and cartoons,
commercial notices and advertisements, or in general, any
nonwork-related matters, it may not “validly discriminate
against notices of union meetings which employees also
posted.” Moreover, in cases such as these, employer’s mo-
tivation, no matter how well meant, is irrelevant.
[Footnotes and citations omitted.] Accord: Roadway
Express, Inc. v. NLRB, 831 F.2d 1285, 1290 (6th Cir.
1987) (where employer, by policy or practice, “permits
employee access to bulletin boards for any purpose, sec-
tion 7 of the Act . . . secures the employees’ right to post
union materials”).
While Respondent has a rule in its handbook regarding em-
ployee use of bulletin boards, two of Respondent’s employees
testified, without contradiction, that they posted various items
on the bulletin board without receiving prior approval and
without having the posting initialed by the administrator. Con-
sequently, Respondent’s policy at the involved facility was to
allow employees to post nonwork-related materials without
receiving prior approval and without having the posting ini-

ment of unlawfully discharged nonstriking employees on the waiver of
their statutory right to engage in concerted protected activity.
BON HARBOR NURSING & REHABILITATION CENTER 1079
tialed by the administrator. Therefore, Respondent may not
validly discriminate against union notices which an employee
also posted. With respect to Respondent’s argument that coun-
sel for the General Counsel did not offer into evidence the leaf-
let that was removed, or any description of it, it is noted that
Boehman testified that Davis told her to remove the union lit-
erature from the bulletin board and Davis did not instruct her to
remove anything else from the bulletin board. Another of Re-
spondent’s witnesses, Brown, testified that she was in the
breakroom when Boehman took down some union postings and
Paulin said something to Boehman about it. So not only did
Paulin testify about the union material she posted being re-
moved by Boehman but two of Respondent’s witnesses testi-
fied about the union material. That should be sufficient to es-
tablish that it was indeed union material that was removed from
the bulletin board on March 18. Respondent violated the Act as
alleged in paragraph 5(e) of the complaint.
Paragraphs 6(a) and (b) of the complaint allege that about
March 13, Respondent verbally warned Paulin because she
assisted the Union and engaged in concerted activities, and to
discourage employees from engaging in these activities. Coun-
sel for the General Counsel on brief contends that Respondent
violated the Act when it disciplined Paulin for confronting
Boehman over the removal of the union literature; that an em-
ployer may not provoke an employee into an outburst through
its unlawful actions and then use the outburst as a basis for
discipline, Caterpillar, Inc., 322 NLRB 674 (1996); and that
here the entire incident was provoked by Boehman’s unlawful
removal of the union material, Paulin’s behavior did not rise to
the level of a threat, no threatening language was used, Paulin
simply informed Boehman that she could not remove the leaf-
lets from the bulletin board and she was going to record what
Boehman did in the notebook the Union gave her for just such a
purpose, and, therefore, the issuance of a verbal warning to
Paulin clearly violated the Act. Respondent on brief argues that
Boehman verbally counseled Paulin for being disrespectful
toward her in the breakroom with other employees present; that
Boehman did not issue Paulin a formal disciplinary action, and
the verbal counseling was not part of Respondent’s progressive
discipline system; that there was no tangible, adverse employ-
ment action; that Boehman testified that Paulin’s support for
the Union and her posting of union literature did not motivate
Boehman’s decision to counsel Paulin; that Respondent has
issued formal discipline to other employees for disrespect; and
that if anything, Paulin was treated more favorably than the
other employees.
According to Boehman’s testimony, Paulin asked her if she
knew what she was doing was against the law, Paulin offered to
show her in a book that it was against the law, and Paulin told
her that she was going to record the incident in a little notebook
she had. What Boehman and Brown left out in their testimony
about this incident is very telling. Paulin testified that she told
Boehman that she was given a little notebook from the Union to
write things down that happened and she was going to write
this down in her notebook. During her testimony at the trial
herein, Brown did not mention Paulin’s statement to Boehman
that she was given a little notebook from the Union to write
things down that happened and she was going to write this
down in her notebook. And although Boehman testified that
Paulin told her, “I hope you know that everything you’re saying
to me right now I’m writing down in my little white book” (Tr.
210), Boehman did not testify that Paulin told her that she was
given a little note book from the Union to write things down
that happened and she was going to write this incident down in
her notebook. The reason that both of Respondent’s witnesses
avoided testifying about the fact that Paulin told Boehman that
she was going to record the incident in a note book given to her
by the Union to record such events was that this was the real
reason for the discipline and someone realized that in recording
Boehman’s unlawful activity in the union notebook Paulin was
engaged in union activity. Standing instead of sitting, placing
one’s hands on one’s hips and then folding them, and raising
one’s tone of voice but not yelling cannot justify discipline in
the circumstances extant here.10 Paulin’s conduct was triggered
by Boehman’s unlawful activity. Paulin was provoked but her
reaction was not sufficient to warrant discipline. Under the
circumstances extant here, Paulin’s reaction was restrained and
measured. What Boehman did not like was being told with
other employees present that what she was doing was against
the law, and it was going to be recorded in a union notebook.
Paulin was not being disrespectful toward Boehman in making
these statements. Paulin was just stating the facts. What Boeh-
man was doing was unlawful. And Paulin had every right to
record it in note book provided to her by the Union. Boehman
admitted that, without conceding that it was a union notebook.
Even before this, Paulin engaged in union activity and the Re-
spondent knew it in that Paulin, who wore a union button to
work every day and posted union material on the bulletin board
in the employee breakroom, passed out union flyers in front of
Respondent’s building and Respondent’s director, Ann Snyder,
told her to move to the street. Antiunion animus is demon-
strated by the fact that Respondent unlawfully removed union
material from the bulletin board in the breakroom. And the
discipline, albeit according to Respondent it did not become
part of the progressive discipline system, was an adverse em-
ployee action. Counsel for the General Counsel has made a
prima facie showing under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982).11 On the other hand, Respondent has not
shown that it would have taken the same action absent Paulin
assisting the Union and engaging in union activity. Respondent
violated the Act as alleged in paragraphs 6(a) and (b) of the
complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.

10 It is noted that Boehman also testified that Paulin kind of snick-
ered when she said it was against the law. Brown did not corroborate
Boehman on this point. At best, Boehman’s observation is a subjective
evaluation. What occurred might have been nothing more than a nerv-
ous smile or laugh on the part of Paulin. This certainly would not jus-
tify discipline.
11 Approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1080
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By engaging in the following conduct, Respondent com-
mitted unfair labor practices contrary to the provisions of Sec-
tion 8(a)(1) of the Act:
(a) About January 14, 2004, Respondent discharged its em-
ployees Sheila Kelley, Stacy Kjelsen, Misty Paulin, Norma
Lemon, Rita Adkisson, Tammy Hamilton, and Tammy Snyder
because they engaged in concerted activities with each other for
the purposes of mutual aid and protection by gathering together
at Respondent’s facility during their break to protest staffing
conditions and complain to the news media about their terms
and conditions of employment, and to discourage employees
from engaging in these or other concerted activities.
(b) Since about January 15, 2004, Respondent has refused to
reinstate Sheila Kelley, Stacy Kjelsen, Misty Paulin, Norma
Lemon, Rita Adkisson, Tammy Hamilton, and Tammy Snyder
unless they agree not to engage in the activity described in (a)
above or other protected concerted activity.
(c) About March 13, 2004, Respondent, by Della Boehman,
removed union literature from a bulletin board at Respondent’s
facility despite allowing employees to post other types of non-
work-related literature on the same bulletin board.
4. By on or about March 13, 2004, verbally warning its em-
ployee Misty Paulin because she assisted the Union and en-
gaged in concerted activities, and to discourage employees
from engaging in these activities, Respondent committed unfair
labor practices contrary to the provisions of Section 8(a)(1) and
(3) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).12

12 Respondent argues that Lemon and Adkisson are not employees
but rather supervisors. As noted above, this issue was already decided
against Respondent by the Regional Director of Region 25 of the
Board, and the Employer’s Request for Review of the Regional Direc-
The Respondent will be required to remove from its records
any reference to the unlawful discharges of Sheila Kelley,
Stacy Kjelsen, Misty Paulin, Norma Lemon, Rita Adkisson,
Tammy Hamilton, and Tammy Snyder, and any reference to the
unlawful verbal warning to Misty Paulin.
[Recommended Order omitted from publication.]

tor’s Decision and Direction of Election was denied by Order of the
Board dated May 26, with Chairman Battista dissenting, and with the
majority indicating that the Employer’s request raises no substantial
issues warranting review. Jt. Exh. 2. As pointed out by counsel for the
General Counsel on brief, a representation case finding that an individ-
ual is not a supervisor is not binding in a subsequent unfair labor prac-
tice proceeding involving a violation of Sec. 8(a)(1), JAMCO, 294
NLRB 896, 899 (1989). Counsel for the General Counsel contends that
nonetheless, the prior decision should be given some deference since
the Board has already reviewed this issue based on the same evidence
that is currently before me, and the Board has upheld the holding that
LPNs at Respondent’s involved facility are not supervisors within the
meaning of the Act. The burden of proof is on the party claiming su-
pervisory status. The evidence offered in the representation proceeding
is the only evidence offered in the proceeding before me. Respondent
argues that LPNs are supervisors because they have authority to assign,
reassign, responsibly direct, discipline, transfer, and reward. Respon-
dent does not argue that LPNs have the authority to hire, transfer, sus-
pend, lay off, recall, promote, or effectively recommend such actions.
Respondent has not introduced in this proceeding any evidence other
than that which was already introduced in the representation proceed-
ing. In effect, Respondent is asking for a different result based on the
exact same evidence which has already been ruled on by the Regional
Director and the Board. Respondent has not supplied any valid reasons
for making findings contrary to those already made regarding Respon-
dent’s failure to show that LPNs at the involved facility are supervisors.
Obviously, if Respondent had additional evidence to show that LPNs
were supervisors, it would have introduced it at the trial herein. Re-
spondent has not met its burden of proof.