LakeWood Health Center d/b/a CHI LakeWood Health

National Labor Relations Board - Board Decisions

Dec 28, 2016

365 NLRB No. 10 (N.L.R.B. 2016)

365 NLRB No. 10
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
LakeWood Health Center d/b/a Chi LakeWood
Health and Minnesota Nurses Association. Case
18–RC–177139
December 28, 2016
ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The Employer’s Request for Review of the Regional
Director’s Decision and Direction of Election, which is
attached as an appendix, is denied as it raises no substan-
tial issues warranting review.1

1 In affirming the Regional Director’s finding that the patient care
coordinators (PCCs) do not exercise the supervisory function of making
hiring recommendations, we do not rely on his citation to Connecticut
Humane Society, 358 NLRB 187 (2012). Instead, we rely on Republi-
can Co., 361 NLRB No. 15 (2014).
Contrary to the dissent, review is not warranted based on job de-
scriptions for the newly-created PCC position which state that PCCs
possess supervisory authority to assign and responsibly direct nursing
department employees, or the testimony of Vice-President of Patient
Care Danielle Abel that PCCs exercise that authority. The Board has
consistently held that Sec. 2(11) supervisory status cannot be estab-
lished merely by “paper” authority or conclusory testimony. Peacock
Productions, 364 NLRB No. 104, slip op. at 2–3 and fn. 6 (2016); G4S
Regulated Security Solutions, 362 NLRB No. 134, slip op. at 2–3
(2015), and cases cited therein. Rather, “what the statute requires is
evidence of actual supervisory authority visibly translated into tangible
examples demonstrating the existence of such authority.” Id. citing Oil
Chemical & Atomic Workers v. NLRB, 445 F.2d 237, 243 (D.C. Cir.
1971), cert. denied 404 U.S. 1039 (1972).
As the Regional Director found, Abel’s testimony on the asserted
supervisory indicia was “general and conclusionary and at times con-
tradicted by documentary evidence.” Thus, with respect to assignment
authority, Abel’s testimony that PCCs exercise independent judgment
in assigning a particular nurse to a patient based on an assessment of
the nurse’s skills and abilities was not supported by any record evi-
dence that the skills and abilities of the staff nurses differ. Abel’s con-
clusory testimony was further undermined by documentary evidence
showing that for most of the shifts in evidence, the patient census was
so low that there was only one nurse on duty for the PCC to assign. As
the Board explained in Oakwood Healthcare, Inc., 348 NLRB 686, 693
(2006), and reiterated in Cook Inlet Tug & Barge, Inc., 362 NLRB No.
111, slip op. at 1 (2015), assignment authority is not established if there
is “only one obvious choice.” We also reject, as contrary to the statuto-
ry language of 2(11), our colleague’s assertion that the PCCs have more
than one obvious assignment choice in these situations—themselves or
the other nurse. Sec. 2(11) clearly defines a supervisor as one who
assigns “other employees,” not themselves.
We also reject the dissent’s contention that, with respect to responsi-
ble direction, review is warranted to determine whether the Regional
Director’s finding that the PCCs do not exercise independent judgment
in exercising this function runs afoul of NLRB v. Kentucky River Com-
munity Care, 532 U.S. 706 (2001). As in Peacock Productions, supra,
364 NLRB No. 104, slip op. at 4, we do not reach this issue because
“[e]ven assuming that [PCCs] use independent judgment in directing
Dated, Washington, D.C. December 28, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
My colleagues deny the Employer’s Request for Re-
view and affirm the Regional Director’s determination
that the Employer’s Patient Care Coordinators (PCCs)
are not statutory supervisors. I disagree with the majori-
ty’s finding and believe that substantial questions exist
regarding whether the PCCs possess authority to assign
and responsibly direct other employees, which consti-
tutes supervisory authority under Section 2(11) of the
Act.
The Employer is an extremely small rural hospital lo-
cated in Baudette, Minnesota that draws patients from a

other employees, the Regional Director correctly found that the record
does not establish that the Employer holds [PCCs] accountable for their
direction of others.” Contrary to the dissent, accountability was not
established by Abel’s affirmative response to the leading question
whether “it would be correct to say that the PCC will be held accounta-
ble for the performance, or lack thereof, of her subordinate.” Abel’s
testimony is “simply a conclusion without evidentiary value,” Peacock
Production, slip op. at 4, citing NLRB v. NSTAR Electric Co., 798 F.3d
1, 18 (1st Cir. 2015), and is irrelevant in any event as it references only
the future prospect of accountability.
Finally, our colleague contends that the potential existence of the
PCC’s supervisory authority is evident from the three-factor “guide”
that he has proposed in prior dissents for determining supervisory sta-
tus. See Cook Inlet, supra, 362 NLRB No. 111, slip op. at 5 fn. 9. We
reject this proposal for the reasons we have previously stated. See
Buchanan Marine, L.P., 363 NLRB No. 58, slip op. 2–3 (2015) and
WSI Savannah River Site, 363 NLRB No. 113, slip op. 2–3 (2016). As
in those cases, the dissent’s standard relies principally on the fact that
the PCCs are the highest authority in the nursing department on week-
nights and weekends. However, “highest authority” is a secondary
indicium of supervisory status which does not confer 2(11) status
where, as here, the putative supervisors are not shown to possess any of
the primary indicia of supervisory status. Golden Crest Healthcare
Center, 348 NLRB 727, 730 fn. 10 (2006).
In sum, for the reasons set forth by the Regional Director and as dis-
cussed above, the Employer has failed to meet its burden to demon-
strate that PCCs are statutory supervisors. Nevertheless, we observe
that our precedent does not necessarily foreclose the Employer, which
never stipulated to the inclusion of the patient care coordinators, from
raising their supervisory status in a future unit clarification proceeding
in the event the Employer establishes the existence of newly discovered
and previously unavailable evidence bearing on that issue. See general-
ly Premier Living Center, 331 NLRB 123, 123–124 (2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
30–40 mile radius around Baudette.1 Although small, the
hospital is a full-fledged acute care medical facility. It
operates 24 hours a day, 7 days a week with 15 in-patient
beds and a nursing staff that includes 6 PCCs—who are
registered nurses—and their subordinates: 8–9 registered
nurses (RNs), three licensed practical nurses (LPNs) and
one certified nurse assistant (CNA). During each shift,
the PCC is responsible for overseeing all RNs, LPNs,
and the CNA. The PCC, in turn, reports to Acute Care
Nursing Manager Joan Baade, who reports to Vice-
President of Patient Care Danielle Abel. The senior-
most hospital official is President Ben Koppelman. Sig-
nificantly, the PCC is the only person present most of the
time—i.e., from 7 p.m. to 8 a.m. Monday through Friday,
and every weekend from 5 p.m. Friday through 8 a.m.
Monday—who can give directions and assignments.2
It is undisputed that the PCC position was created on
February 28, 2016, only 4 months before the hearing in
this case. The record establishes that the PCC position
replaced a “charge nurse” system, and this change was
made for a specific purpose: to ensure that the PCC
would be accountable “for the shift-by-shift work flow of
the department. . . .”3 Accountability did not exist with
the charge nurse system, under which charge nurses’
“sole duty was to look at staffing for the day and for the
next shift.”4
According to Abel’s uncontradicted testimony, prior to
the creation of the PCC position
[t]here was never anything formally designated to them
for accountability of the department. Their sole duty
was to look at staffing for the day and for the next shift.
The charge nurses included all of the RNs, so you can
imagine how difficult it is having—at the time, there
was probably about 20 RNs, and trying to get all of
those 20 individuals to focus on the goals and priorities
of the department was essentially a moot point. It was
difficult for the manager to have any accountability or
any effectiveness on delegating work flows to them
that needed to be maintained.5
When Abel was asked why the PCC position was created,
she answered:
Accountability for the shift-by-shift work flow of the
department, with having six individuals who are
knowledgeable about the goals and strategic initiatives

1 The facility is also referred to as a “critical access hospital.”
2 Transcript at 68–69.
3 Transcript at 49.
4 Transcript at 30.
5 Transcript at 30–31.
for the department, in addition to supervising the em-
ployees on their shift.
* * *
And so the [prior] model, as it was, again, having about
20 RNs who would rotate in and out of a charge nurse
position on a shift-by-shift daily, monthly, yearly,
whatever, basis—there was no formal accountability
for them, and they were not ever delegated any of the
work of a manager, because the follow-through wasn’t
there. The [charge nurse] position was never created in
that light by the previous director.6
Accordingly, the PCC job description states that PCCs have
the following authority and responsibilities:
 Responsible for Daily Nursing Assignments—
assesses, identifies and communicates unit
staffing needs for current and oncoming shifts
and assigns admissions and/or transfers
based on patient acuity level, nurse/patient
ratio, and nursing skill levels.
 Coordinates daily patient care activities with
acute care nursing staff and other related ser-
vices.
 Provides, maintains, and coordinates effective
communications between nursing, medical
staff, and ancillary departments.
 Ensures patient specific nursing care plans are
developed, updated, and evaluated for effec-
tiveness.
 Initiates problem-solving processes with nurs-
ing staff as patient care concerns arise on a
daily basis.
 Communicates with staff to assure assign-
ment made is appropriate to promote team
building and cohesiveness.
 Knowledgeable and competent to care for pa-
tients in the emergency room and outpatient
setting.
 Retains overall accountability for the work-
flow for their shift, and remains accountable
if duties are delegated to another qualified
staff member.
In addition, PCCs “[p]rovide[] overall supervision of staff
and patient care during shift and serve[] as the bedside lead-
er for the nursing team during shift” (emphasis added).
In finding the PCCs are not supervisors, the Regional
Director properly took into account that the position had
only been in existence for 4 months at the time of the

6 Transcript at 49–50 (emphasis added).
LAKEWOOD HEALTH CENTER D/B/A CHI LAKEWOOD HEALTH 3
hearing, and accordingly gave “little or no weight to the
fact that the Employer failed to provide examples of
PCCs exercising their ostensible supervisory authority.”
Nevertheless, for several reasons, I believe that the Re-
quest for Review raises substantial issues regarding the
Regional Director’s conclusion that the PCCs lack the
authority to assign or responsibly direct.
First, the PCC position description quoted above clear-
ly indicates that they do have the authority to make “dai-
ly nurse assignments.” Abel testified that in making
these assignments, PCCs take into account the needs of
the patient and the skill of the nurses, but the Regional
Director dismissed this testimony because no one specif-
ically testified that nurses have differing levels of skill
and ability. The Regional Director also found that as-
signment authority was negated by evidence that PCCs
made assignments with input from their supervisees and
that at times there was only one other RN on shift to be
assigned. I do not believe that specific testimony is
needed to establish the commonsense fact that some em-
ployees are more skilled than others, which in any event
is implied by the undisputed testimony that skill level is
taken into account. As I have previously explained, the
Board should not disregard unrebutted evidence “merely
because it could have been stronger, more detailed, or
supported by more specific examples.” Buchanan Ma-
rine, LP, 363 NLRB No. 58, slip op. at 9 (2015) (Mem-
ber Miscimarra, dissenting) (internal quotation and cita-
tion omitted). Nor is the PCCs’ assignment authority
negated by the fact that they may accept input from nurs-
es before making assignments or that only one other
nurse may work under them on some shifts. The Act
does not limit supervisory authority to dictators, and
even if there is only one other nurse on a shift, PCCs still
have the authority to assign a patient to the other nurse or
to themselves.
Second, the Regional Director found that PCCs have,
and exercise, the authority to direct nurses, but found that
they do not use independent judgment in doing so be-
cause “[t]hey assess patients’ medical conditions, and
according to the testimony of one PCC, alter the care
plan of patients utilizing their skills as RNs. However,
this exercise of independent judgment relates not to how
employees perform their jobs, but to how patients are
cared for.” I believe review is warranted to determine
whether the Regional Director improperly invoked the
discredited notion that the exercise of “professional
judgment” when rendering patient care means a supervi-
sor is not exercising independent judgment “in the inter-
est of the employer.” See NLRB v. Kentucky River
Community Care, 532 U.S. 706, 719 (2001) (rejecting
Board’s holding that exercise of professional judgment
does not constitute independent judgment within the
meaning of Sec. 2(11)); NLRB v. Health Care & Retire-
ment Corp., 511 U.S. 571 (1994) (rejecting Board’s hold-
ing that professional employees exercising professional
judgment do not act “in the interest of the employer”
within the meaning of Sec. 2(11)).
Third, the Regional Director also found no evidence
that the PCCs were accountable for the performance of
patient-care tasks by the nurses they direct because there
was insufficient evidence that they would face adverse
consequences directly as a result of others’ poor perfor-
mance. For the reasons stated in my separate opinion in
Community Education Centers, Inc., 360 NLRB No. 17
(2014), I believe that “[t]his restrictive interpretation
improperly fails to recognize that ‘accountability’ can
exist based on ‘the supervisor’s own conduct and judg-
ment in exercising oversight and direction of employees
in order to accomplish the work.’” Id., slip op. at 2
(quoting Entergy Mississippi, Inc., 357 NLRB 2150,
2158 (2011) (Member Hayes, dissenting)). Neither can
the Board ignore the fact that the “no accountability”
finding by the Regional Director is contradicted by the
position description quoted above, which states that the
PCC “remains accountable if duties are delegated to an-
other qualified staff member”; Abel’s undisputed testi-
mony that “it would be correct to say that the PCC will
be held accountable for the performance, or lack thereof,
of her subordinate”;7 and the equally undisputed evi-
dence that the Employer created the PCC position to im-
pose accountability in the first place.
Finally, I believe the potential existence of supervisory
authority here, as defined in Section 2(11) of the Act, is
evident from the framework that I have stated the Board
and the courts should utilize in every case involving dis-
puted supervisor status. This framework incorporates
commonsense principles guiding the application of the
factors set forth in Section 2(11) and is based on my ob-
servation that many of the Board’s supervisor determina-
tions have become increasingly abstract and out of touch
with practical realities of the workplace. Buchanan Ma-
rine, L.P., above, slip op. at 3–10 (Member Miscimarra,
dissenting); Veolia Transportation Services, Inc., 363
NLRB No. 98, slip op. at 13–14 (2016) (Veolia I) (Mem-
ber Miscimarra, dissenting); WSI Savannah River Site,
363 NLRB No. 113, slip op. at 6–7 (2016) (Member
Miscimarra, dissenting); Veolia Transportation Services,
Inc., 363 NLRB No. 188, slip op. at 14–15 (2016) (Veo-
lia II). As indicated in Buchanan Marine and other cas-
es, when applying the factors outlined in Section 2(11), I
believe the Board in every situation should take into ac-

7 Tr. at 102.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
count the following considerations: (i) the nature of the
employer’s operations, (ii) the work performed by undis-
puted statutory employees, and (iii) whether it is plausi-
ble to conclude that all supervisory authority is vested in
persons other than those whose supervisory status is in
dispute.8
The first factor—the nature of the Employer’s opera-
tion—strongly favors a finding that the PCCs are super-
visors. The Employer operates an acute care hospital
that serves up to 15 acute care in-patients at a time and
includes an emergency department that operates 24/7,
where the PCCs and one or two nurses are the only nurs-
ing personnel in the facility on evenings and weekends.
If a critically ill patient arrives at the facility any time
after 7 p.m. during the week or any time during the
weekend, he or she will be received by the PCC or a
nurse on duty at that time. The Regional Director deter-
mined that the PCCs are not supervisors, so the question
arises, who is in charge in this life-or-death situation? If
there are four acute in-patients at the time a critical pa-
tient arrives and two nurses on duty, who decides which
nurse will take care of which patient? Who decides what
treatment to begin? Who evaluates the condition of the
patients and the abilities of each nurse? To state the ob-
vious, these are not appropriate judgments to resolve by a
coin toss or drawing straws. Someone has to be in
charge at this facility at all times, including times when
no manager and perhaps no physician is present.9 More-
over, the record reveals that the Employer’s primary pur-
pose when creating this new position was to make sure
that everyone understood that a single person—the

8 I first articulated these factors in Cook Inlet Tug & Barge, Inc., 362
NLRB No. 111, slip op. at 5 fn. 9 (2015) (Member Miscimarra, dissent-
ing), in which the Board majority held, over my dissent, that tugboat
captains failed to qualify as statutory supervisors. As I explained in my
dissent in Buchanan Marine, these factors do not comprise a new test
for supervisory status, but rather constitute a guide to how the Board
should apply the indicia of supervisory status that Congress listed in
Sec. 2(11). Buchanan Marine, above, 363 NLRB No. 58, slip op. at 10
(Member Miscimarra, dissenting) (emphasis in original). See also Veo-
lia I, above, 363 NLRB No. 98, slip op. at 13–14 (Member Miscimarra,
dissenting); G4S Government Solutions, Inc., above, 363 NLRB No.
113, slip op. at 6–7 (Member Miscimarra, dissenting).
9 The record establishes that there are times when no manager is pre-
sent at the hospital, and it suggests there are also times when no physi-
cian is present, either. Vice-President of Patient Care Abel testified
that evenings, nights, and weekends, “the PCC would be the highest
ranking person present” (Tr. 68–69). Moreover, the record establishes
that the Employer is a critical access hospital (CAH), and it is not re-
quired that a physician be on-site at a CAH at all times. “CAHs must
provide 24-hour emergency services, with medical staff on-site, or on-
call and available on-site within 30 minutes, 60 minutes if certain fron-
tier area criteria are met.” https://www.ruralhealthinfo.org/topics/
critical-access-hospitals (last visited Oct. 27, 2016) (emphasis added).
PCC—had the authority to address these issues and
would be accountable for them.10
The second factor—the nature of the work performed
by undisputed statutory employees (in this case, the Em-
ployer’s subordinate nurses)—also supports a finding
that the PCCs have supervisory authority. The subordi-
nate nurses are responsible for patient care, the patients
may be acutely ill, and the hospital has 15 beds. Certain-
ly, the treatments for patients’ predictable medical needs
are prescribed in patient care plans, but the ebb and flow
of patient health and the difficulty of cases and emergen-
cy care cannot be predicted in advance. Each day at the
facility requires the careful assignment and direction by
each PCC, who is the only person present the majority of
the time—evenings, nights and weekends—to assign and
direct the subordinate nurses on each shift.
The third factor—whether it is plausible to conclude
that all supervisory authority is vested in persons other
than those whose supervisory status is in dispute—
similarly favors a finding of supervisory status. As noted
above, the PCC is the only person present the majority of
the time who can direct and assign the subordinate nurs-
es. Thus, the record reveals that for approximately 13
hours of each day and approximately 63 hours straight
each weekend, the PCC is the highest-level official at the
hospital. Similar to the captains on the tugboats in Bu-
chanan Marine (which were at sea for 24 hours per day
up to seven days at a time), the PCC is the only person on
the “boat” with authority to give assignments and direc-
tion in situations that literally may involve life or death.11
Here as in Buchanan Marine (and other similar cases),
the notion that nobody exercises “supervisory” authority
in this type of work setting for such extended periods of

10 It is true that PCCs make initial staffing decisions based on a for-
mula that is contained in staffing documents. However, once the nurses
are all on shift, the PCCs are the ones who monitor patients and make
decisions as to where RNs, LPNs, and the CNA need to be assigned
based on the PCC’s assessment of the patients’ needs and the fluctua-
tion of the work. The PCCs are exclusively responsible for the day-to-
day and shift-to-shift coordination of care and daily assignments for the
nursing staff. PCCs have the authority to send staff home if the patient
census is low and call staff in if the census is higher than anticipated or
the number of emergency or outpatient clinic patients increases. Just
because the PCCs have not yet had the opportunity, on a regular recur-
ring basis, to adjust staffing levels should not preclude a finding of
supervisory status. As the Employer noted in its Request for Review,
“It would be nonsensical to conclude that a position created on day one
is nonsupervisory and the party asserting supervisory status has failed
in its burden when the only available information about it is based on
day one.” Request for Review at 17.
11 While finding the PCCs to be supervisors would result in a ratio of
supervisors to employees of 1:1 or 1:2 on many shifts, this fact is im-
material in the context of the small size of the hospital and the other
factors discussed above.
LAKEWOOD HEALTH CENTER D/B/A CHI LAKEWOOD HEALTH 5
time fails the “test of common sense.”12 The Regional
Director and my colleagues endeavor in this case to en-
sure that the Board’s supervisory determinations are con-
sistent with our statute. However, I believe the finding
that PCCs are not supervisors under Section 2(11) pro-
vides yet another illustration of the principle that “com-
mon sense” is not so common.13
For the reasons stated above, I believe the Request for
Review raises substantial questions about whether the
PCCs possess supervisory authority as defined in Section
2(11) of the Act. Accordingly, I respectfully dissent
from my colleagues’ denial of the Request for Review.
Dated, Washington, D.C. December 28, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
DECISION AND DIRECTION OF ELECTION
Petitioner seeks to represent two units of employees em-
ployed by the Employer at its Baudette, Minnesota facility and
asks that the Board conduct a Sonotone election.
Petitioner seeks to represent all full-time and regular part-
time staff registered nurses employed by the Employer at its
acute care hospital located at 600 Main Avenue South, Bau-
dette, Minnesota; excluding all other professional employees,
physicians, technical employees, non-professional employees,
business office clerical employees, managerial employees,
guards and supervisors as defined in the Act, and all other em-
ployees employed by the Employer at either its acute care hos-
pital or at the adjacent care center. The Employer stipulated to
the appropriateness of this unit, but contrary to Petitioner, con-
tends that the registered nurses employed as patient care coor-
dinators (PCCs) are supervisors within the meaning of Section
2(11) of the Act.
The Employer and Petitioner also stipulated to the appropri-
ateness of the following unit of technical employees: All full-
time and regular part-time technical employees, including li-

12 Buchanan Marine, supra, slip op. at 10 (Member Miscimarra, dis-
senting).
13 Departures from common sense occur with sufficient frequency to
have given rise to the phrase “common sense is not so common,” which
is often referred to using its Latin counterpart, “rarus enim ferme sen-
sus communis.” The origin of this phrase is the subject of some debate.
It has been attributed variously to Voltaire, Will Rogers, and Mark
Twain (whose version was “I’ve found that common sense ain’t so
common”). See https://idiomation.wordpress.com/2015/09/01/
common-sense-is-not-so-common/ (last visited Oct. 20, 2016). How-
ever, long before these persons were born—and roughly 1800 years
before Congress enacted the National Labor Relations Act—the Roman
poet Decimus Junius Juvenalis (known in English as Juvenal) wrote,
“Rarus enim ferme sensus communis” (meaning “common sense is
generally rare”), which appeared in Book III of his “Satires.” Id.
censed practical nurses (LPNs), radiologic technologists, phar-
macy techs, multi-modality technologists and medical laborato-
ry technicians, employed by the Employer at its acute care hos-
pital located at 600 Main Avenue, Baudette, Minnesota; ex-
cluding all other technical employees, professional employees,
non-professional employees, business office clerical employ-
ees, skilled maintenance employees, managerial employees,
guards and supervisors as defined in the Act, and all other em-
ployees employed by the Employer at either its acute care hos-
pital or at the adjacent care center. No issues exist with regard
to this unit.
In essence, Petitioner seeks a unit of hospital-based regis-
tered nurses and a unit of hospital-based technical employees.
The Employer agrees that the units sought are appropriate but
contends that the registered nurses employed as PCCs in the
acute care hospital are 2(11) supervisors. After carefully re-
viewing the record evidence and Board law, I conclude that the
Employer has failed to establish that the PCCs are supervisors
within the meaning of Section 2(11) of the Act.
Under Section 3(b) of the Act, I have the authority to hear
and decide this matter on behalf of the National Labor Rela-
tions Board. Upon the entire record in this proceeding, I find:
1. The hearing officer’s rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
2. The Employer is engaged in commerce within the mean-
ing of the Act, and it will effectuate the purposes of the Act to
assert jurisdiction herein.1
3. The labor organization involved claims to represent cer-
tain employees of the Employer.
4. A question affecting commerce exists concerning the rep-
resentation of certain employees of the Employer within the
meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.
5. This decision begins with an overview of the Employer’s
operation and supervisory hierarchy, insofar as the record es-
tablishes the hierarchy. The second section summarizes the
unit of registered nurses sought by Petitioner. Third is a de-
tailed description of the job duties of the PCCs based on docu-
ments in the record, submitted by the Employer. I then discuss
in detail the testimony of the vice president of patient care re-
garding the supervisory indicia the Employer claims establishes
that the nurses sought by Petitioner are supervisors, including
comparing that testimony to the documentary evidence. In the
next two sections I provide an overview of Board law and I
apply Board law to the facts of this case. Finally, I briefly ex-
plain why I affirm the hearing officer’s refusal to accept into
evidence documents related to a charge and complaint involv-
ing the same parties and Region 18.

1 The Employer, LakeWood Health Center d/b/a CHI LakeWood
Health, maintains an office and place of business in Baudette, Minneso-
ta, where it is engaged in the operation of a health care facility and in
providing health care services. During the 12-month period ending
December 31, 2015, a representative period, the Employer derived
gross revenues in excess of $250,000 and purchased goods and supplies
valued in excess of $50,000 directly from suppliers located outside the
State of Minnesota.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
The Employer’s Operation and Supervisory
Hierarchy
The Employer is a small rural hospital designated a “critical
access hospital.” The designation as a critical access hospital is
certified by Medicare, and any hospital so certified must meet
the following requirements: (1) licensed for 25 patient beds or
less; (2) have an average stay for in-patients of 96 hours or less;
(3) be separated from a similar facility or other acute care hos-
pital by at least 35 miles; and (4) operate an emergency room
24 hours per day/7 days per week. Facilities designated as
critical access hospitals are funded on a cost-based reimburse-
ment by Medicare, and not by fixed rates depending on the
procedure or medical care.
The Employer is owned and operated by Catholic Health Ini-
tiatives. CHI also operates other health care institutions in
Minnesota, as well as other states. The Employer’s Baudette
hospital has 15 in–patient beds and draws patients from a 30–
40 mile radius of Baudette. Baudette is a community of about
1000 people, and close to the United States/Canadian border.
The nearest hospital to the Employer’s Baudette operation is
50–60 miles away.
In addition to the hospital, the Employer operates a ten-bed
assisted living facility, a 36-bed nursing home, an ambulance
service, and medical clinic and a public health area. The 36-
bed nursing home is in the same building as the hospital, and
connected to the hospital by two hallways. The ambulance
service (EMT department) is 3–4 blocks northwest of the hospi-
tal. The public health area provides grant-related work for the
State of Minnesota, community outreach and education, child
and teen checkups, behavioral health services, a flu clinic, other
vaccinations, and a foot care clinic for diabetics. None of these
ancillary operations is involved in this matter.
The Employer’s president is Ben Koppelman. Reporting to
Koppelman is Danielle Abel, vice president of patient care.
Abel’s position requires her to oversee all departments involved
in patient care, and therefore, Abel supervises the department
directors. However, the record does not reveal who reports to
Abel, other than Joan Baade, acute care nursing manager. Ac-
cording to the Employer, the PCCs in issue report to Baade, and
staff registered nurses, licensed practical nurses and the single
certified nursing assistants report to the PCCs.
According to the Employer, until February 28, 2016, the po-
sition of PCC did not exist. Rather, the Employer operated
with charge nurses. However, Abel was dissatisfied with the
charge nurse model because she did not feel the charge nurses
were (or perhaps could be) held accountable. Starting in the
spring of 2015, Abel began considering a different staffing
management plan, which included the concept of PCCs. In
October 2016, the Employer began sharing the staffing man-
agement plan with employees, and over the course of the three
months repeatedly met with staff to discuss the concept and
ideas for the position. After a great deal of back and forth, the
Employer moved forward with the plan, and effective February
28, 2016, six PCCs began working for the Employer, and the
Employer no longer utilized charge nurses. The six PCCs hired
were all previously employed by the Employer as nurses.
The Employer provided almost no record evidence about the
job responsibilities of the vice president of patient care and the
acute care nursing manager. What little evidence is in the rec-
ord is specified in the context of discussing the supervisory
indicia the Employer claims establishes the 2(11) supervisory
status of the PCCs. The acute care nursing manager did not
testify at the hearing; the Employer’s case relies solely on the
testimony of the vice president of patient care, and extensive
documentary evidence.
While the hospital is a 24 hour/7 day a week operation, nei-
ther the vice president of patient care nor the acute care nursing
manager work hours other than Monday through Friday, during
the day. Thus, according to the Employer, PCCs are the per-
sons of highest authority at the facility evenings, nights and
weekends. However, the significance of this fact is unclear—
there is no record evidence regarding what (if any) extra au-
thority PCCs have during the times the vice president and man-
ager are not working. At one point in her testimony, the vice
president described a telephone conversation she had with a
PCC when the vice president was not working, but the content
of this conversation reveals little as the PCC merely reported to
the vice president an incident that occurred while the PCC was
working.
Finally, it is important to note that the vice president of pa-
tient care emphasized that the Employer operates under a pri-
mary care model, which means everyone who is working shares
in the workload and tasks. Because of the Employer’s low
patient census, “everyone has to pitch in, including myself.”
Thus, when necessary, the vice president performs patient care
duties. In fact, she estimated that she spends 15 percent of her
time providing patient care.
The Unit of Registered Nurses Sought by Petitioner
The unit of registered nurses sought by Petitioner consists of
eight or nine employees, depending on whether one of the
PCCs is counted as a PCC or an RN.2
There are a total of five or six PCCs, depending on whether the one
employee is a PCC or RN. In addition to the eight or nine RNs,
there are three LPNs and one CNA in the patient care area. Thus,
in terms of direct patient care, there are a total of 12 or at most 13
employees, excluding of course the PCCs.
The Employer acknowledges that if its position is upheld,
there are seven or eight supervisors for 12 or 13 employees.
The supervisors are the vice president of patient care, the acute
care nursing manager, and the PCCs. Thus, according to the
Employer, the ratio of employees to supervisors is greater than
2:1.
Prior to the creation of the PCCs, apparently all of the RNs
(the record is not clear with regard to the LPNs) served as
charge nurses. When the Employer created the PCC position
and selected from among the nurses to fill the PCC positions, it
did not backfill and hire replacement employees for the nurses
selected to fill the PCC positions. The vice president of patient
care emphasized that given the small size of the hospital, the
Employer simply could not afford to have five or six PCCs and
around 20 RNs providing patient care. In fact, according to the
vice president of patient care, in the last year the average cen-

2 There is no explanation in the record as to why the one employee’s
status as a PCC is in question.
LAKEWOOD HEALTH CENTER D/B/A CHI LAKEWOOD HEALTH 7
sus of the hospital has been 3.4 – 4 patients. Even with the
current staffing model, the Employer is frequently in a position
of “calling off” employees, which means employees shifts are
cancelled and they are not paid because of low patient census.
The job duties of RNs and LPNs are not exactly the same
because of their different licensing and the requirements to
obtain their licenses. While both classifications are involved in
patient care, LPNs cannot do anything with a central line (no
port-a-cath or tunneled central line, no flushes, meds, not even
dressing changes); they cannot mix a drug; and they cannot
administer blood products, IV chemo medications or any medi-
cation the first time a patient receives it.
The Job Duties of the Patient Care Coordinators
The record is replete with documents put in evidence by the
Employer purportedly explaining the responsibilities of the
PCCs. In addition, the vice president of patient care testified—
mostly in general terms—about the supervisory duties of the
PCCs. In this section of the decision, I describe the job duties
of the PCCs as set forth in the documents, including any sug-
gestion in the documents of 2(11) responsibilities of the PCCs.
In the next session, I summarize the testimony of the vice pres-
ident of patient care about the supervisory duties of the PCCs.
The PCCs’ Job Description
The job description is a 6-page, mostly single-spaced docu-
ment, outlining numerous responsibilities of the PCCs, as well
as core expectations, accountabilities, and job requirements.
While the testimony of the vice president of patient care was
unclear on the point, the job description of the PCC makes clear
that PCCs are involved in direct patient care, although they are
not necessarily assigned to specific patients. Rather, according
to the job description: PCCs assess patients; intervene in their
care and implement care plans; make daily patient rounds; en-
sure PCC daily checklists are completed and that the next shift
is aware of any outstanding items requiring follow-up; initiate
and participate in patient education and discharge planning;
deliver “accountable, high quality, and person-centered care;”
and complete or delegate the completion of follow-up calls to
patients who are discharged. According to a PCC who testi-
fied, 50–75 percent of her time is spent in direct patient care,
depending on how busy the emergency room is. The same
PCC also testified that she is expected to and does assist staff
with the care of patients assigned to staff. Under key responsi-
bilities are the following “supervisory” duties:
 Provides overall supervision of staff and patient care
during shift and serves as bedside leader for the
nursing team during the shift;
 Participates in the hiring and performance evaluation
processes of the acute care nursing staff;
 Initiates disciplinary action when appropriate up to
and including termination; and
 Attends departmental and PCC specific meetings (as
requested).
Under Job Summary/Job Purpose are the following duties
which implicate supervisory status:
 Responsible for Daily Nursing Assignments – assess-
es, identifies and communicates unit staffing needs
for current and oncoming shifts and assigns admis-
sions and/or transfers based on patient acuity level,
nurse patient ratio, and nursing skill levels;
 Coordinates daily patient care activities with acute
care nursing staff . . .
 Retains overall accountability for the workflow for
their shift, and remains accountable if duties are
delegated to another qualified staff member.
At other points in the job description, it emphasizes the re-
sponsibility of PCCs to collaborate with others, to build teams
and engage in teamwork and to recognize “peers when they are
providing excellent care.”
Minutes of Meetings Involving the PCCs and Vice President
of Patient Care and Acute Care Manager3
The Employer also put in evidence minutes from two meet-
ings held with PCCs on February 18 and 24, 2016. Present
were only the PCCs and two managers in the patient care area.
Nothing discussed in the February 18 meeting implicates the
PCCs’ alleged supervisory status; the closest subject was a
discussion about “brainstorming” whether to return to rotating
shifts. On the other hand, the February 24, 2016 meeting fo-
cused on a key aspect of the PCCs’ alleged supervisory status –
corrective actions. The February 24 minutes state:
Lakewood’s corrective action policy was reviewed and sce-
narios discussed along with the use of corrective action form.
Determination made that PCC staff can initiate a verbal warn-
ing if warranted. Written warnings, Suspensions, Termina-
tions should be discussed with Acute Care Manager, VP Pa-
tient Care and/or HR prior to moving forward.
In the February 24 meeting, there was also discussion of HR
policies related to premium pay, attendance, employee badge
and lanyards, as well as when staffing decisions should be
completed.
Also in evidence are minutes of PCC meetings held on April
8, 13 and 28 and May 19, 2016. Some of the minutes do not
reflect who was present; and those that do reveal that the vice
president of patient care was not present. In addition, not all
PCCs were present at all the meetings. It is unclear who draft-
ed the minutes (except one where the author is the acute care
manager), although the “voice” of the minutes suggests that
they were not drafted by PCCs. The subjects covered in these
meetings largely relate to various aspects of patient care. In
addition, however, they reveal that the Employer is very con-

3 Also in the record are numerous interview sheets, setting forth the
questions asked of employees who applied for PCC positions, as well
as each employee’s responses. Apparently the Employer believes that
the fact the interview sheets ask a variety of questions about managing
employees, leadership and communication with staff members is rele-
vant to a determination of the PCC’s supervisory status. While the
interview sheets certainly reflect what the applicants were asked and
how they responded, they have little relevance as to the actual duties
performed by PCCs. The minutes of meetings held with staff prior to
the creation of the PCC position to discuss the position and its potential
role is similarly irrelevant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
cerned about call offs, including ensuring that call offs are rec-
orded accurately. The April 28 minutes also have great detail
about delegating work to LPNs and what work LPNs cannot do.
The minutes make clear the “delegation is decided by each RN
delegating any task that requires licensure. Essentially the LPN
is working under your licensure. Delegation should occur if an
RN is immediately available. You are responsible for the as-
sessment and any adverse response to this task.” Unclear is
why the minutes refer to delegation by an RN and not a PCC.
A somewhat common theme in the minutes (not all but most)
is the importance of leadership and being a change agent.
The Staffing Management Plan
The Staffing Management Plan is an 8-page document that
provides acute care nursing guidelines, and according to the
vice president of patient care, was the genesis for phasing out
charge nurses and creating the PCC positions. It is dated Feb-
ruary 28, 2016. The Plan contains a detailed description of
various aspects of caring for patients, including at times the
specific roles of the PCCs. With regard to PCCs, it states that
they “coordinate” daily patient care activities with acute care
nursing staff while also caring for patients in the Emergency
Room and outpatient area. It also states that PCCs “assist” the
acute care nurse manager in establishing goals and objectives
that enhance the department’s competencies. PCCs retain
“overall accountability for the workflow for their shift and re-
main accountable if duties are delegated to another qualified
staff member.”
The Staffing Management Plan states that staffing a unit ap-
propriately is essential and that “clear guidelines will be devel-
oped and maintained.” It therefore provides guidelines for the
licensed staff to patient ratios for various areas. As to assign-
ments of patients to staff, the plan states: “Patient assignments
are made by the PCC with input from nursing team members.”
The plan also has detailed instructions for orientation of new
staff and states that preceptors (the person doing the orienta-
tion) will be selected by the acute care nursing manager “with
input from the nursing staff.” The section does not suggest that
only PCCs will be selected to orient new staff.
Shifts worked by nursing staff are set forth in the Staffing
Management Plan. According to the plan, “Scheduling is the
responsibility of the Acute Care Nursing Manager with the
assistance from the Acute Care Nursing Scheduler.” Shift
trades must be approved by the PCC or Acute Care Nursing
Manager, who are to take into account whether as a result of the
trade unscheduled overtime will result. The plan also explains
who is eligible (and in what order) to pick up open shifts, how
staff is to be rotated for holiday shifts, and how holiday call
offs will occur. The plan limits the number of staff allowed to
be out on PTO, with deviations to be determined by the Acute
Care Nurse Manager. Breaks are assigned by the PCC “after
seeking input from the nursing staff on expected flow of the
shift.” (the length and number of breaks are set out in the plan).
According to the Staffing Management Plan, at all times
(even with a patient census of zero), two licensed staff are to be
on duty, one being the PCC. The plan contains detailed instruc-
tions on calling off employees, including the order of call off.
With regard to staff being on call, according to the plan, the
third individual on the shift, if called off, is automatically
placed on call. Use of the employee time clock is also gov-
erned by the plan.
Emails from PCCs to Staff
The Employer believes that emails sent to the acute nursing
staff from PCCs are relevant to a determination whether they
are supervisors within the meaning of the Act. None of the
emails is directed to a particular individual, and none deals with
supervisory issues as described in the Act. Rather, all relate to
reminding the entire staff to do certain tasks, to have certain
equipment in place where needed, or summarizing tasks the
sender has completed. One concerns a “night shift chart check-
list” that “PCCs can be responsible for” to “make sure that
orders are getting put in that documentation is getting done.”
Testimony Regarding the Patient Care Coordinators and
Section 2(11) Indicia
There is no record evidence, and the Employer does not con-
tend, that charge nurses permanently transfer, lay off, recall,
promote, or adjust the grievances of employees, or effectively
recommend any of the foregoing actions. In fact the Employer
contends that it never lays off, and therefore never has to recall,
employees. In this section of the decision, I consider testimony
regarding each of the remaining indicia.
Those employees who were selected to be PCCs received a 5
percent wage increase. A PCC who testified explained that she
has been allowed to trade shifts with a staff nurse and work as a
staff nurse in order to get a shift off. When she works as a staff
nurse, she does not receive the extra 5 percent in wages. If a
staff nurse works for a PCC, the staff nurse does not receive
extra remuneration.
Assignment of Work
In Oakwood Healthcare, Inc., 348 NLRB 686, 689 (2006),
the Board interpreted the term “assign” as referring to “the act
of designating an employee to a place (such as a location, de-
partment or wing), appointing an employee to a time (such as a
shift or overtime period), or giving significant overall duties,
i.e. tasks to an employee.”
Scheduling of employees is accomplished by the acute care
nursing manager with regard to hours of work and apparently
their locations of work (no evidence in the record specifically
addresses this latter matter). According to the vice president of
patient care, paid time off requests go to the acute care nursing
manager, who builds the requests into the work schedule and
has the authority to deny requests. While nursing staff call the
PCCs when they will be absent due to illness, PCCs do not
have the authority to deny the absence. The Employer takes
employees at their word that they are sick. While the record
testimony does not address how open shifts are staffed, the
Staffing Management Plan addresses this.
PCCs have the authority to approve nurses trading shifts, and
the PCCs initial off on shift trades. However, the Staffing
Management Plan states that the acute care nursing manager
can also approve shift trades. The reason the Employer re-
quires approval of shift trades is in the past there were staff
“improperly trading,” that is sometimes a trade involved a li-
censed staff employee trading with the CNA, but the shift the
LAKEWOOD HEALTH CENTER D/B/A CHI LAKEWOOD HEALTH 9
CNA was then scheduled to work did not have the requisite two
licensed nurses required by the staffing management plan. In
addition, PCCs or the acute care nursing manager are to take
into account whether overtime will be required as a result of the
trade, according to the Staffing Management Plan. The vice
president for patient care further testified that in examining
shift trades, the PCCs should take into account the abilities and
experience of the individuals involved compared to the patient
census and level of patient care required. However, the vice
president did not cite any specific examples of shift trades
where it was clear the PCC took into account abilities or expe-
rience, and she did not explain the circumstances when a PCC,
rather than the acute care nursing manager, would approve shift
trades. She also did not explain how the PCC takes into ac-
count abilities and experience for shift trades requested well in
advance of when the PCCs (or the Employer for that matter)
have any idea who will be patients or what the census will be in
the hospital. Finally, the frequency of shift trades approved by
PCCs is not in the record.
PCCs also have the authority to call off employees. This
means when there are too many employees scheduled for the
patient census, an employee or employees are to be cancelled
and not paid. The Staffing Management Plan has detailed in-
structions who is to be called off, and the vice president of pa-
tient care emphasized in her testimony the importance of PCCs
carefully recording who is called off to ensure the process is
fair (and presumably in accordance with the Staffing Manage-
ment Plan). Whether to call off an employee or employees is
determined by staffing calculations, described below.
In the record are examples of staffing calculations. Part of
the calculation is filled out by a PCC who classifies each pa-
tient in one of three categories of acuity. Each classification is
assigned a certain number of hours of care for each shift; the
number of hours of care is not determined by the PCC but by a
formula derived by the Employer. Therefore, the PCC deter-
mines how many patients there are in each category, multiplies
the number of patients by the hours of care needed, and then
divides the total by seven to determine how much staffing is
required for the shift. The staffing calculation allows for the
PCC to enter variances, and as a result increase staffing if in the
PCC’s view the variances are medically necessary.
Staffing calculations are in the record for May 3, 5, 10, 11
and 17, and 24, 2016. They reveal that for each date,the shifts
from 7 pm to 7 am were calculated to need one or less employ-
ees, and no more than one employee actually worked. Thus,
the minimum number of two employees worked (the PCC and
one other nurse). During the shift from 7 a.m. to 7 p.m. on May
3, the calculation was that .64 staff was needed, and therefore
one nurse worked, and similarly on May 11 zero staff was
needed so only one nurse worked. During the remaining dates
on the 7 a.m. to 7 p.m. shifts, while the calculations were that
anywhere from .32 to 1.11 staff were needed, in fact two regis-
tered nurses worked due to variances such as new employees
were orienting, the possibility of admissions, or patients re-
quired extra care.
According to the vice president of patient care, the PCCs as-
sign patients to particular nurses, taking into account the nurs-
es’ skills and abilities. However, she provided no examples or
specifics, and acknowledged that she neither reviews assign-
ment sheets nor uses them to evaluate the performance of the
PCCs. In addition, other evidence indicates that the PCCs are
somewhat constrained by a number of factors. First, as the vice
president made clear, the patient census has been particularly
low, testimony borne out by the staffing calculations in evi-
dence. In any shift where a PCC and one nurse is working,
including all of the 7 p.m. to 7 a.m. shifts in the staffing calcu-
lations in evidence, the PCC had no choice—there was one
nurse to assign to the patients. Even when two members of the
staff are working, unless they are both registered nurses, the
PCC is constrained by the fact that the CNA can only be re-
sponsible for daily cares. Therefore, on those dates where a
CNA and nurse are working, presumably the CNA and nurse
are assigned to the same patients—with the CNA providing the
daily cares. The PCC is also somewhat constrained in assigning
patients when an LPN and RN are working due to their differ-
ent licensures. Thus, only when there are two RNs working
does it appear that the PCC has possible discretion in assigning
patients.
The Employer also contends that PCCs have the authority to
approve premium pay, which is not the same as overtime pay.
It is given to an employee when the Employer is having prob-
lems with staffing and is used to encourage an employee to
work an extra shift. In the record are two examples in May
2016 of where a nurse was paid premium pay and the initials of
a PCC appear next to the notation for premium pay. The Em-
ployer also introduced into evidence its premium pay policy
which states that premium pay must be approved by the de-
partment director or supervisor. The vice president for patient
care indicated that one cannot determine from the exhibits why
premium pay was authorized. One PCC who testified ex-
plained that the Employer’s policy on premium pay is that if an
employee is needed for a shift and it is 12 hours or less prior to
the start of the shift, she can offer premium pay.
The vice president also testified that PCCs “could approve”
overtime. However, there are no examples in the record where
a PCC has done so. According to a PCC who testified, she
cannot require an employee to work beyond the shift ending
time.
Responsible Direction of Work
For direction to be responsible under the Act, “the person di-
recting and performing the oversight must be accountable for
the performance of the task of the other, such that some adverse
consequence may befall the one providing the oversight if the
tasks are not performed properly.” Id. at 695 (emphasis added).
There is minimal record testimony regarding PCCs directing
the work of RNs, LPNs and the CNA, but the evidence suggests
that in fact at times PCCs do direct work. Two specific exam-
ples provided by the vice president of patient care were provid-
ed in the context of discussing discipline. On May 5, 2016, a
PCC instructed an LPN to stop completing discharge paper-
work and to instead restart a patient’s IV. The LPN came to the
vice president, upset about the instruction. The vice president
asked the LPN further questions, and then interviewed the PCC.
The vice president concluded that the PCC’s instructions were
correct, and noted that had the LPN not followed the PCC’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
instructions (in fact she had but was upset by them) “she proba-
bly would have ended up with a more formal disciplinary pro-
cess for insubordination.”
A second example occurred on May 29, 2016 when a PCC
telephoned the vice president at home to relate a situation be-
tween the PCC and another staff nurse, involving a disagree-
ment on how to manage an outpatient who had come in that
day. The PCC explained that the two had worked it out and
ultimately made “amends.”
Less clear is whether PCCs are held accountable for the
work of those employees they direct. In evidence is an email to
a PCC from the vice president of patient care inquiring about a
failure to adequately clean up and attentiveness to patient
needs. However, the email is an inquiry and expression of hope
the PCC will help improve processes, and it does not make
clear who was responsible for the perceived problems. The
only other evidence that PCCs are held accountable for the
work of those they direct is when the vice president responded
“yes” to a leading question whether PCCs will be accountable
for the performance of their subordinates.
The Power to Discipline, Suspend, and Terminate
The vice president of patient care provided detailed testimo-
ny related to the power of the PCCs to discipline, suspend, or
terminate employees, or to recommend these actions. Howev-
er, she also pointed out that because the position is relatively
new, the PCCs have had little opportunity to exercise these
powers, and she also testified that in fact the Employer has few
disciplinary issues. Thus, to the extent the Employer did not
provide specific examples of PCCs exercising these powers, it
is because the situations have not arisen.
There appears to be no dispute that PCCs can verbally coach
employees. Coaching is not viewed as discipline, and in fact is
not recorded. According to the vice president of patient care,
PCCs were told at the February 24, 2016 meeting that they
could independently discipline, including suspending and dis-
charging employees, but the vice president testified that she
also told them that even she does not suspend or discharge
without consulting with HR or the president, so therefore they
should also consult. However, this testimony is not entirely
consistent with the minutes of the meeting, which clearly state
PCCs should not move forward with written warnings, suspen-
sions or terminations without consulting with higher-level man-
agers or HR. A PCC who testified stated that her understand-
ing of her ability to discipline was consistent with what is writ-
ten in the minutes of the meeting. The precise roles played by
PCCs, upper level managers, or HR are not delineated in the
minutes or any testimony.
There are no written warnings, suspensions, or discharges in
the record that were initiated or independently issued by a
PCC—but the Employer emphasizes that is because there was
no need to issue such discipline. The vice president of patient
care described one suspension of an LPN—but it was a suspen-
sion that was the result of a report to the vice president by a
staff nurse—not a PCC. As a result, the PCC was coached
verbally by the vice president that her actions in the situation
were not consistent with how the Employer wanted her to man-
age the situation.
Preparing and Issuing Performance Evaluations
(Rewarding Employees)
The authority to evaluate employees is not one of the indicia
of supervisory status set out in Section 2(11) of the Act.
Elmhurst Extended Care Facilities, 329 NLRB 535, 536
(1999). Rather, the question is whether the evaluations are
“effective recommendations” of promotion, wage increase, or
discipline.” Phelps Community Medical Center, 295 NLRB
486, 490 (1989). If the evaluation does not, by itself, directly
affect wages and/or job status of the individual being evaluated,
the Board will not find the individual performing the evalua-
tions to be a statutory supervisor. Williamette Industries, Inc.,
336 NLRB 743, 743 (2001) (emphasis added).
PCCs have not written performance evaluations of their sub-
ordinates. However, according to the Employer, performance
evaluations occur in September of each year and since the PCC
position was created only a few months ago, PCCs have not
been in the position yet to write performance evaluations. Once
again the vice president of patient care testified in general terms
that the PCCs’ assessment of performance will determine wage
increases that employees receive. In evidence is a performance
evaluation from the year 2015 – thus before the creation of the
PCC position. While not explicitly stated on the record, appar-
ently it is the Employer’s position that this form will be used by
PCCs to evaluate employees. The evaluation includes a section
which weighs various performance goals and then results in a
rating score. However, nothing on the form suggests that the
rating score results in a particular wage increase, or any wage
increase at all. Moreover, there is no testimony regarding the
Employer’s historical practice.
The Authority to Recommend Hiring
The Employer contends that PCCs will be involved in the
hiring of staff, but like so many of the other indicia, in fact at
this point the PCCs have not exercised this authority. And like
the other indicia, the Employer’s evidence is the generalized
testimony of the vice president of patient care. According to
her, PCCs will be involved in hiring in that they will participate
in interviewing applicants as part of a panel consisting of “two
or three members of leadership” (which is not further ex-
plained). According to the vice president: “Our practice is to
have panel interviews, and we will meet right after the inter-
view or after we’re done with all the interviews, if there is more
than one candidate, and we listen to each other’s feedback.”
According to the vice president, in response to a leading ques-
tion, the PCC’s recommendation will count. However, the
vice president was clear that the panel will not include every
PCC, and that probably one will be asked to participate.
Overview of Board Law
The party asserting supervisory status, in this case the Em-
ployer, has the burden of establishing such status. See e.g.,
NLRB v. Kentucky River Community Care, 532 U.S. 706, 711–
712 (2001). Conclusionary evidence does not satisfy that bur-
den. See e.g., Lynwood Manor, 350 NLRB 489, 490 (2007).
Thus evidence of supervisory status must be specific. Brusco
Tug & Barge, Inc., 359 NLRB No. 43, slip op. at 5 (2012),
Avante at Wilson, Inc., 348 NLRB 1056, 1057 (2006).
LAKEWOOD HEALTH CENTER D/B/A CHI LAKEWOOD HEALTH 11
Application of Board Law to Facts in this Case
In reaching the conclusion that the Employer has failed to
meet its burden of proof establishing the 2(11) status of charge
nurses, I emphasize that I have taken into account the fact that
the PCC position has existed for less than four months, and
therefore the Employer is not in a position to provide examples
of where PCCs have exercised the Section 2(11) authority that
the Employer contends the PCCs possess. Thus, while in a
different context I would rely on the failure to provide exam-
ples in finding that an employer failed to meet its burden, in the
context of this case, I give little or no weight to the fact that the
Employer failed to provide examples of PCCs exercising their
ostensible supervisory authority. Rather, I conclude that the
Employer has failed to meet its burden of proof because the
testimony of the vice president of patient care is general and
conclusionary, and at times contradicted by documentary evi-
dence.
I begin with the PCCs’ alleged authority to assign work.
First, and importantly, the Employer’s evidence clearly estab-
lishes that PCCs have no role in assigning hours of work, creat-
ing work schedules, or assigning locations of work. On the
other hand, PCCs do assign staff to the patients they will care
for. However, the record is clear that the PCCs are constrained
by a number of factors in assigning staff to patients. First, the
staffing calculations in evidence establish that for eight of the
twelve shifts covered by the calculations, one staff nurse
worked. Obviously, when there is one staff nurse (and of
course the PCC) working a shift, the PCC is not deciding to
assign one staff nurse over another to certain patients. Second,
the PCCs are constrained by the job classifications of the em-
ployees working. If a staff nurse and CNA are working, the
PCC has no discretion in assigning patients, because the CNA
is qualified to perform daily cares only. If an LPN and RN are
working, the PCC is at least partly constrained by the qualifica-
tions of the two in assigning patients.
Obviously there are shifts where two RNs work (and even
times when three RNs work), and in that situation PCCs decide
which patients to assign to which RN. Equally clear is that it is
the view of the vice president of patient care that the PCCs are
supervisors because when they assign patients between two
RNs, they are making assignments based on the cares required
by the patients, and the skills and abilities of the RNs. Howev-
er, there is no record evidence making clear that the skills and
abilities of the staff nurse RNs differ significantly, and the vice
president of patient care acknowledged that she does not review
patient assignments and that she does not rely on them in as-
sessing PCC performance. The summary testimony of the vice
president of patient care is also of concern in view of the Staff-
ing Management Plan, which suggests that the PCC’s role is to
“coordinate” daily patient care activities, and that patient as-
signments are to be made with input from nursing team mem-
bers. Thus, the Staffing Management Plan and the testimony of
the vice president of patient services are not consistent with one
another, and in my view, the Employer has failed to meet its
burden to establish that when assigning patients to two (or pos-
sibly three) RNs, that the PCCs exercise independent judgment.
Lynwood Manor, 350 NLRB 489, 490 (2007).
While PCCs can call off employees (requiring them not to
work or get paid), when PCCs do so, it is the result of applying
a mathematical formula taking into account patient acuity lev-
els resulting in how many hours of care that will be required –
but the hours of care required has been developed by the Em-
ployer. PCCs literally perform math—they multiply the num-
ber of patients in each acuity level by the hours of care there-
fore required, and divide by 7—the resulting number tells the
PCC how many staff are needed for each shift. The staffing
calculations in evidence are remarkable in that they consistently
apply this formula. I am unable to conclude that the PCCs
exercise any discretion in using the formula. The record does
establish that PCCs can decide that in spite of the resulting
number, they can retain additional staff due to variances, which
include that a patient or patients are particularly challenging or
that a nurse will be involved in training a new employee. How-
ever, any variances in the staffing calculations in evidence that
result in deciding to have one staff member on the shift are
irrelevant as the Employer’s policy is every shift will have a
PCC and one other staff nurse. Given the testimony of the vice
president of patient care that the average census in the last year
has been 3.4–4 patients, the record fails to establish that the
variances occur frequently enough to establish supervisory
status, and there is little evidence of how much independent
judgment is exercised. Id.
There is little or no record evidence establishing that PCCs
utilize independent judgment in approving shift changes or
offering employees premium pay. The Employer has clear
guidelines when shift changes are to be denied, and there is no
evidence that a PCC has denied a shift change for reasons other
than set forth by the Employer. While the PCC can and does
offer premium pay to induce employees to work extra, in effect
the PCC is merely committing that the Employer will pay the
employee additional amounts of money for the hours worked.
The PCCs cannot require employees to work extra—with or
without premium pay. In similar circumstances, the Board has
concluded that the ability to call and request employees to
work, absent an ability to require them to work, is insufficient
to establish 2(11) status. Lakeview Health Center, 308 NLRB
75, 79 (1992). While the vice president of patient care also
testified that PCCs could approve overtime, there is no evi-
dence establishing that PCCs have done so, and I would expect
that at least overtime would occur in the last 4 months.
With regard to the fact that PCCs direct the work of nursing
assistants, the record is inadequate to support a conclusion that
the PCCs either use independent judgment or are held responsi-
ble for the work of their alleged subordinates. There is record
evidence that PCCs have the ability, and exercise the ability, to
direct the work of staff working with them on their shifts.
Moreover, there is evidence that PCCs exercise independent
judgment with regard to the care of patients. They assess pa-
tients’ medical conditions, and according to the testimony of
one PCC, alter the care plan of patients utilizing their skills as
RNs. However, this exercise of independent judgment relates
not to how employees perform their jobs, but to how patients
are cared for. What is lacking is specific and detailed evidence
that PCCs exercise independent judgment when directing staff,
given the fact that patient care is governed by patient care
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
plans. Community Education Centers, Inc., 360 NLRB No. 17
(2014).
Just as significant, the Employer has not satisfied its burden
of proof that PCC nurses are accountable, and therefore “re-
sponsibly direct” nursing assistants. Certainly the vice presi-
dent of patient care summarily testified that PCCs are account-
able. On the other hand, the PCC’s job description suggests
otherwise. It states that PCCs are accountable for how they
make assignments and “for the workflow for their shift,” and
they retain accountability even “if duties are delegated to an-
other qualified staff member.” Clearly the language of the job
description establishes that PCCs are accountable for their ac-
tions, and remain accountable for the actions of others, to the
extent the PCCs delegate PCC tasks to others. Nothing in the
job description states that PCCs are accountable for the work of
staff on their shifts. However, the standard for finding supervi-
sory status based on direction of work is whether the PCCs
suffer adverse consequences if staff on their shifts performs
poorly. Except for the summary testimony of the vice president
of patient care, which is contradicted by documentary evidence,
there is no evidence in this record that the Employer holds
PCCs accountable, and issues adverse action, for the actions of
the staff on their shifts.
The Employer’s failure to meet its burden to prove that
charge nurses discipline, suspend, or terminate employees and
are therefore 2(11) supervisors is largely due to the inconsisten-
cy between the testimony of the vice president of patient care
and documentary evidence. The vice president testified that on
February 24, 2016, in a meeting with PCCs, she told them they
had the authority to issue written warnings, to suspend, and to
terminate employees, with a cautionary note that it is always
better to check with HR or the Employer’s president before
doing so. On the other hand, the minutes of the same meeting
reflect that written warnings, suspensions and terminations
“should be discussed” with the acute care manager, vice presi-
dent of patient care and/or HR “prior to moving forward.”
(emphasis added). This contradictory evidence, offered by the
Employer, leads me to conclude that the Employer has failed to
meet its burden of proof.
To be clear, the record establishes that PCCs can verbally
correct, including verbally warn employees. However, verbal
correction/warnings are not considered discipline and they are
not recorded.
The Board has also made clear that the fact that individuals
complete performance evaluations for other employees is insuf-
ficient to establish 2(11) status, unless there is evidence that the
performance evaluations lead to rewards or discipline. It ap-
pears from this record that the Employer intends for PCCs to
complete performance evaluations. What the Employer failed
to do is create sufficient record testimony that performance
evaluations lead to rewards or discipline, other than a summary
statement to that effect from the vice president of patient care.
While I acknowledge that the Employer cannot provide exam-
ples of PCCs completing evaluations that led to rewards or
discipline because PCCs have not had the opportunity to com-
plete evaluations yet, on the other hand the Employer intro-
duced into evidence an example of a performance evaluation
given before the creation of the PCC position to prove what is
in the evaluations. Yet the Employer made no effort to prove
that historically the evaluations issued prior to the creation of
the PCC position resulted in wage increases or discipline. This
failure is further compounded by the fact that the Employer’s
witness obliquely referenced the fact that HR can overrule any
recommendation for a wage increase, without any further ex-
planation.
The fact that the Employer will have PCCs participate in
panel interviews of applicants for patient care positions, and
that (according to the vice president of patient care) the Em-
ployer will consider their recommendations is not sufficient to
establish that PCCs effectively recommend the hiring of appli-
cants for employment. Connecticut Humane Society, 358
NLRB 187, 206 (2012), and cases cited therein.
Finally, I note that the Employer relies significantly on the
job descriptions and numerous other documents that refer to
PCCs as supervisors or refer to their performance of superviso-
ry functions. It is well settled, however, that an employee
“cannot be transformed into a supervisor by the vesting of a
title and the theoretical power to perform one or more of the
enumerated functions in Section 2(11) of the Act.” Lakeview
Health Center, supra at 78, and case cited therein.
The Employer’s Contention that Petitioner Is Precluded
from Arguing, and that I Am Precluded from Finding, that
the PCCs are Employees
Petitioner and the Employer are no strangers to one another.
Until the Employer withdrew recognition of the Union in the
fall of 2015, the Union represented a group of employees at the
Employer that included most of the employees the Petitioner
now seeks to represent, as well as other employees. The with-
drawal of recognition was the subject of a complaint issued by
the undersigned in Cases 18–CA–161872 and 18–CA–170429.
The complaint included allegations that the Employer unilater-
ally implemented a new staffing plan, including the creation of
a new supervisory position of PCC; dealt directly with unit
employees in order to fill the new PCC positions; and unilater-
ally removed work from the unit when it implemented the new
staffing plan and assigned unit work to non-unit employees. It
appears to be the Employer’s position that the issuance of this
complaint, and the fact that it issued based on charges filed by
Petitioner, suggests that both Petitioner and the undersigned
viewed the PCCs as 2(11) supervisors, and therefore both are
precluded from taking a contrary position in this matter.4
The Employer, which waived the filing of a post-hearing
brief, did not provide case support for its view during the hear-
ing. I reject the Employer’s position for a number of reasons.
First, the allegations of the complaint are precisely that—
allegations—which to quote Webster’s definition of the word
means “assertions that must be proved or supported with evi-
dence.” Second, the consolidated complaint was dismissed
pursuant to a motion by Counsel for the General Counsel short-
ly after the completion of the hearing held to present evidence
on the allegations of the consolidated complaint. Thus, there

4 The hearing office correctly rejected as exhibits the formal papers
and transcript of the proceeding involving the consolidated complaint.
Obviously, however, I am able to take judicial notice of the facts sur-
rounding the proceeding and the formal papers.
LAKEWOOD HEALTH CENTER D/B/A CHI LAKEWOOD HEALTH 13
are no findings, and will be no findings, on the allegations of
the complaint. Finally, the allegations of the complaint are not
inconsistent with a conclusion that the PCCs are not 2(11) su-
pervisors (or more accurately that the Employer has failed to
meet its burden of establishing their 2(11) status). The allega-
tions do not allege that the PCCs are in fact supervisors; rather,
they allege that the Employer unilaterally announced an inten-
tion, and then created a new supervisory position, and in doing
so assigned unit work to non-unit employees.5
In view of the foregoing and the record as a whole, I reject
the Employer’s contention that its PCCs are supervisors within
the meaning of Section 2(11) of the Act, and I conclude that it
is appropriate to hold an election which includes the PCCs in
the unit.
Under Section 9(b)(1) of the Act, the Board is prohibited
from including professional employees in a unit with employ-
ees who are not professional, unless a majority of the profes-
sional employees vote for inclusion in such a unit. To carry out
the statutory requirement, the Board has adopted a special type
of self-determination procedure in such an election known as a
Sonotone election. Under this procedure, a separate voting
group encompassing all professionals would elect whether to
constitute a separate appropriate bargaining unit or be included
in the larger unit with non-professionals. Accordingly, I find
that all registered nurses, who are professional employees, con-
stitute a separate voting group which, depending on the out-
come of the election, may constitute either a separate appropri-
ate bargaining unit, or be included in the unit with the non-
professional employees.
I therefore find that the following employees of the Employ-
er may constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time registered nurses, including
the patient care coordinators, technical employees, including
licensed practical nurses (LPNs), radiologic technologists,
pharmacy techs, multi-modality technologists and medical la-
boratory technicians, employed by the Employer at its acute
care hospital located at 600 Main Avenue South, Baudette,
Minnesota; excluding all other professional employees, phy-
sicians, all other technical employees, all other non-
professional employees, business office clerical employees,
skilled maintenance employees, managerial employees,
guards and supervisors as defined in the Act, and all other
employees employed by the Employer at either its acute care
hospital or at the adjacent care center.
In order to ascertain the desires of the professional employees

5 I note that much of the testimony offered by Petitioner suffers the
same infirmity. Petitioner had witnesses it presented compare the job
duties of the PCCs to the job duties of charge nurses, implicitly sug-
gesting that if the charge nurses performed the duty, therefore 2(11)
status did not exist. However, there is no basis for me to know whether
charge nurses met or did not meet the Board’s definition of a supervi-
sor. The fact they were in the previous unit represented by Petitioner
does not mean they therefore did not exercise 2(11) authority. Thus, I
do not consider relevant, and did not consider probative, testimony by
Petitioner witnesses to the extent it was that charge nurses performed
some or all of the same job duties that PCCs currently perform.
as to their inclusion in the unit with the non-professional em-
ployees, I shall direct separate elections in the following
groups:
(a) All full-time and regular part-time registered nurses, in-
cluding the patient care coordinators, employed by the Em-
ployer at its acute care hospital located at 600 Main Avenue
South, Baudette, Minnesota; excluding all other professional
employees, physicians, technical employees, non-professional
employees, business office clerical employees, managerial
employees, guards and supervisors as defined in the Act, and
all other employees employed by the Employer at either its
acute care hospital or at the adjacent care center.
(b) All full-time and regular part-time technical employees,
including licensed practical nurses (LPNs), radiologic tech-
nologists, pharmacy techs, multi-modality technologists and
medical laboratory technicians, employed by the Employer at
its acute care hospital located at 600 Main Avenue, Baudette,
Minnesota; excluding all other technical employees, profes-
sional employees, non-professional employees, business of-
fice clerical employees, skilled maintenance employees, man-
agerial employees, guards and supervisors as defined in the
Act, and all other employees employed by the Employer at ei-
ther its acute care hospital or at the adjacent care center.
The employees in the professional group (a) will be asked
two questions on their ballots:
(1) Do you wish to be included in a unit with non-
professional employees for purposes of collective bargaining?
(2) Do you wish to be represented for the purposes of collec-
tive bargaining by Minnesota Nurses Association?
If a majority of the professional employees in voting group
(a) vote “yes” to the first question, indicating their wish to be
included in the unit with non-professional employees (voting
group b), they will be so included. Their votes on the second
question will then be counted together with the votes of the
non-professional employees to determine whether or not the
employees in the combined professional and non-professional
unit wish to be represented by Minnesota Nurses Association.
If, on the other hand, a majority of the professional employees
in voting group (a) vote against such inclusion, they will not be
included with the non-professional employees. Their votes on
the second question will then be separately counted to deter-
mine whether or not they wish to be represented by Minnesota
Nurses Association.
The non-professional employees comprising voting group
(b) will be polled to determine whether or not they wish to be
represented by Minnesota Nurses Association.
The unit determination is based, in part, on the results of the
election among the professional employees. However, the
following findings in regard to the appropriate unit are now
made:
(1) If a majority of the professional employees vote for in-
clusion in the unit with the non-professional employees, I find
that the following will constitute a unit appropriate for purposes
of collective bargaining within the meaning of Section 9(b) of
the Act:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
All full-time and regular part-time registered nurses, including
the patient care coordinators, technical employees, including
licensed practical nurses (LPNs), radiologic technologists,
pharmacy techs, multi-modality technologists and medical la-
boratory technicians, employed by the Employer at its acute
care hospital located at 600 Main Avenue South, Baudette,
Minnesota; excluding all other professional employees, phy-
sicians, all other technical employees, all other non-
professional employees, business office clerical employees,
skilled maintenance employees, managerial employees,
guards and supervisors as defined in the Act, and all other
employees employed by the Employer at either its acute care
hospital or at the adjacent care center.
(2) If a majority of the professional employees do not vote
for inclusion in the unit with the non-professional employees,
but do vote for representation apart from them, I find that the
following two groups of employees will constitute separate
units appropriate for the purposes of collective bargaining with-
in the meaning of Section 9(b) of the Act:
All full-time and regular part-time registered nurses, including
the patient care coordinators, employed by the Employer at its
acute care hospital located at 600 Main Avenue South, Bau-
dette, Minnesota; excluding all other professional employees,
physicians, technical employees, non-professional employees,
business office clerical employees, managerial employees,
guards and supervisors as defined in the Act, and all other
employees employed by the Employer at either its acute care
hospital or at the adjacent care center.
All full-time and regular part-time technical employees, in-
cluding licensed practical nurses (LPNs), radiologic technolo-
gists, pharmacy techs, multi-modality technologists and med-
ical laboratory technicians, employed by the Employer at its
acute care hospital located at 600 Main Avenue, Baudette,
Minnesota; excluding all other technical employees, profes-
sional employees, non-professional employees, business of-
fice clerical employees, skilled maintenance employees, man-
agerial employees, guards and supervisors as defined in the
Act, and all other employees employed by the Employer at ei-
ther its acute care hospital or at the adjacent care center.
DIRECTION OF ELECTION
The National Labor Relations Board will conduct a secret
ballot election among the employees in the units found appro-
priate above. Employees will vote whether or not they wish to
be represented for purposes of collective bargaining by Minne-
sota Nurses Association.
A. Election Details
In view of the fact that Petitioner waived its right to have the
Voter List for 6 of the 10 days normally required, the election
will be held on June 30, 2016 from 6:30 a.m. to 8:30 a.m. and
4:30 p.m. to 6:30 p.m. in Conference Room 4 at the Employer’s
Baudette, Minnesota facility.
B. Voting Eligibility
Eligible to vote are those in the unit who were employed dur-
ing the payroll period ending June 4, 2016, including employ-
ees who did not work during that period because they were ill,
on vacation, or temporarily laid off.
Employees engaged in an economic strike, who have re-
tained their status as strikers and who have not been permanent-
ly replaced, are also eligible to vote. In addition, in an econom-
ic strike that commenced less than 12 months before the elec-
tion date, employees engaged in such strike who have retained
their status as strikers but who have been permanently replaced,
as well as their replacements, are eligible to vote. Unit em-
ployees in the military services of the United States may vote if
they appear in person at the polls.
Ineligible to vote are (1) employees who have quit or been
discharged for cause since the designated payroll period; (2)
striking employees who have been discharged for cause since
the strike began and who have not been rehired or reinstated
before the election date; and (3) employees who are engaged in
an economic strike that began more than 12 months before the
election date and who have been permanently replaced.
C. Voter List
As required by Section 102.67(l) of the Board’s Rules and
Regulations, the Employer must provide the Regional Director
and parties named in this decision a list of the full names, work
locations, shifts, job classifications, and contact information
(including home addresses, available personal email addresses,
and available home and personal cell telephone numbers) of all
eligible voters.
To be timely filed and served, the list must be received by
the Regional Director and the parties by June 21, 2016. The
list must be accompanied by a certificate of service showing
service on all parties. The Region will no longer serve the
voter list.
Unless the Employer certifies that it does not possess the ca-
pacity to produce the list in the required form, the list must be
provided in a table in a Microsoft Word file (.doc or docx) or a
file that is compatible with Microsoft Word (.doc or docx). The
first column of the list must begin with each employee’s last
name and the list must be alphabetized (overall or by depart-
ment) by last name. Because the list will be used during the
election, the font size of the list must be the equivalent of
Times New Roman 10 or larger. That font does not need to be
used but the font must be that size or larger. A sample, optional
form for the list is provided on the NLRB website at
www.nlrb.gov/what-we-do/conduct-elections/representation-
case-rules-effective-april-14-2015.
When feasible, the list shall be filed electronically with the
Region and served electronically on the other parties named in
this decision. The list may be electronically filed with the Re-
gion by using the E-filing system on the Agency’s website at
www.nlrb.gov. Once the website is accessed, click on E-File
Documents, enter the NLRB Case Number, and follow the
detailed instructions.
Failure to comply with the above requirements will be
grounds for setting aside the election whenever proper and
timely objections are filed. However, the Employer may not
object to the failure to file or serve the list within the specified
time or in the proper format if it is responsible for the failure.
LAKEWOOD HEALTH CENTER D/B/A CHI LAKEWOOD HEALTH 15
No party shall use the voter list for purposes other than the
representation proceeding, Board proceedings arising from it,
and related matters.
D. Posting of Notices of Election
Pursuant to Section 102.67(k) of the Board’s Rules, the Em-
ployer must post copies of the Notice of Election accompany-
ing this Decision in conspicuous places, including all places
where notices to employees in the unit found appropriate are
customarily posted. The Notice must be posted so all pages of
the Notice are simultaneously visible. In addition, if the Em-
ployer customarily communicates electronically with some or
all of the employees in the unit found appropriate, the Employ-
er must also distribute the Notice of Election electronically to
those employees. The Employer must post copies of the Notice
at least 3 full working days prior to 12:01 a.m. of the day of the
election and copies must remain posted until the end of the
election. For purposes of posting, working day means an entire
24-hour period excluding Saturdays, Sundays, and holidays.
However, a party shall be estopped from objecting to the
nonposting of notices if it is responsible for the nonposting, and
likewise shall be estopped from objecting to the nondistribution
of notices if it is responsible for the nondistribution.
Failure to follow the posting requirements set forth above
will be grounds for setting aside the election if proper and time-
ly objections are filed.
RIGHT TO REQUEST REVIEW
Pursuant to Section 102.67 of the Board’s Rules and Regula-
tions, a request for review may be filed with the Board at any
time following the issuance of this Decision until 14 days after
a final disposition of the proceeding by the Regional Director.
Accordingly, a party is not precluded from filing a request for
review of this decision after the election on the grounds that it
did not file a request for review of this Decision prior to the
election. The request for review must conform to the require-
ments of Section 102.67 of the Board’s Rules and Regulations.
A request for review may be E-Filed through the Agency’s
website but may not be filed by facsimile. To E-File the re-
quest for review, go to www.nlrb.gov, select E-File Documents,
enter the NLRB Case Number, and follow the detailed instruc-
tions. If not E-Filed, the request for review should be ad-
dressed to the Executive Secretary, National Labor Relations
Board, 1015 Half Street SE, Washington, DC 20570–0001. A
party filing a request for review must serve a copy of the re-
quest on the other parties and file a copy with the Regional
Director. A certificate of service must be filed with the Board
together with the request for review.
Neither the filing of a request for review nor the Board’s
granting a request for review will stay the election in this matter
unless specifically ordered by the Board.