Manor West, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 956 (N.L.R.B. 1994)

956
313 NLRB No. 145
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Petitioner initially filed a petition in Case 8–RC–14907 for
a combined unit of LPNs and service and maintenance employees.
The parties subsequently stipulated to an election involving only the
service and maintenance employees. Thereafter, the Petitioner filed
the instant petition seeking to represent LPNs in a separate unit.
2 The parties stipulated that a separate unit of LPNs is otherwise
appropriate.
Manor West, Inc. and Service Employees Inter-
national Union, AFL–CIO, CLC, Local Union
No. 627, Petitioner. Case 8–RC–14915
March 2, 1994
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On June 8, 1993, the Petitioner filed a petition under
Section 9(c) of the National Labor Relations Act, as
amended, to represent the Employer’s licensed prac-
tical nurses (LPNs).1 A hearing was held on June 29
and 30 and July 14 and 15, 1993, before a duly des-
ignated hearing officer of the National Labor Relations
Board. On August 9, 1993, pursuant to Section 102.67
of the Board’s Rules and Regulations, the case was
transferred to the Board for decision.
Having carefully reviewed the entire record in this
proceeding, including the posthearing briefs filed by all
the parties, the Board makes the following findings:
1. The hearing officer’s rulings made at the hearing
are free from prejudicial error and are affirmed.
2. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction.
3. The labor organization involved claims to rep-
resent certain employees of the Employer.
4. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
5. Manor West, Inc. (the Employer) operates a 98-
bed skilled nursing home and retirement center in
Austintown, Ohio. The Petitioner seeks to represent a
unit of approximately 20 LPNs employed at this facil-
ity. The Employer contends that LPNs do not con-
stitute an appropriate unit because they are statutory
supervisors.2 Applying the principles set forth in the
Board’s recent decision in Northcrest Nursing Home,
313 NLRB 491 (1993), we find that LPNs are not su-
pervisors within the meaning of Section 2(11) of the
Act.
I. ORGANIZATIONAL STRUCTURE
The Employer’s facility consists of three wings,
each with a separate nursing station. The Employer
employs approximately 10 registered nurses (RNs), 20
LPNs, and 29 nurses aides.
Administrator Suzanne Poppelreuter manages and
directs operations at the facility. The nursing staff is
headed by Director of Nursing Kathy Mehlo and six
RN department heads. Staff Development Coordinator
Karlon Ware is in charge of staff development and
aide training. The parties stipulated that the adminis-
trator, director of nursing, staff development coordina-
tor, department heads, other RNs, and Sharon Cole are
not eligible to vote in the election.
The facility operates 7 days a week, 24 hours a day,
on three shifts. The daily shifts and staffing are as fol-
lows: the day shift (7 a.m. to 3 p.m.) is staffed by 8
RNs, 3 LPNs, and 13 aides; the afternoon shift (3 to
11 p.m.) is staffed by 1 RN, 3 LPNs, and 6–11 aides;
and the night shift (11 p.m. to 7 a.m.) is staffed by 1
RN, 3 LPNs, and 5 aides. On each shift, there is one
RN coordinator in charge and three LPNs, one on duty
at each nursing station. The LPNs report to the RN co-
ordinator.
II. SECTION 2(11) INDICIA
Section 2(11) of the Act defines a supervisor as:
any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or dis-
cipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively
to recommend such action, if in connection with
the foregoing the exercise of such authority is not
of a merely routine or clerical nature, but requires
the use of independent judgment.
An LPN who has authority in any one of the listed
categories, and exercises that authority in the interest
of the employer using independent judgment, is a su-
pervisor. The burden of proving supervisory status is
on the party alleging that such status exists. Northcrest
Nursing Home, supra at 496 fn. 26. Here, the Em-
ployer alleges that LPNs are statutory supervisors be-
cause they have authority to assign and responsibly di-
rect, transfer, discipline, and evaluate nurses aides. The
relevant facts and discussion with regard to each of
these alleged supervisory indicia are set forth below.
A. Assignment and Direction
It is undisputed that LPNs assign work to and direct
the aides in matters of patient care. The LPNs’ primary
duty is to ensure that the patients are clean, dry, and
comfortable. To carry out this duty, LPNs rely on the
aides to feed, bathe, and turn patients according to a
schedule, change them when they are wet, and respond
to patient call lights. LPNs also make sure that the
aides complete bowel and bladder reports, observe
proper hygiene protocol, and complete assigned house-
keeping duties. LPNs review the work of the aides
957MANOR WEST, INC.
while making rounds and instruct the aides if they note
a deficiency.
Prior to June 1993, the monthly schedules and daily
assignments for each member of the nursing staff had
been prepared by RNs. After this date, the Employer
changed its practice with respect to the daily assign-
ments by requiring LPNs to assign the aides to work
in particular patient care sections. These assignments
are based primarily on the Employer’s past practice of
assigning certain aides to work in particular sections.
With regard to other schedule changes, it is undisputed
that only RNs and the administrator approve changes
in the work schedule or breaktimes, and approve re-
quests for vacation or leaves of absence.
LPNs are responsible for finding replacements when
aides ‘‘report-off’’ prior to their shift. Typically, an
LPN receives a call from an aide reporting off and
completes a report-off slip. The LPN then tries to find
a replacement by calling off-duty aides and, if that
does not yield a replacement, by asking on-duty aides
to work an extended shift. The aides cannot be com-
pelled to work and, if a replacement cannot be found,
an LPN divides the work equally among the aides
present in order to accommodate the needs of patients.
These changes are made without the approval of man-
agement.
When an aide fails to punch in or out, the RN or
LPN on duty initials the aide’s timecard to verify that
the aide was present and worked the hours recorded.
Similarly, when aides work overtime, LPNs complete
‘‘overtime verification’’ slips to record the amount of
overtime worked. Except in the case when aides work
overtime to cover a staff shortage, LPNs do not have
any authority to approve or grant overtime. Indeed, the
record shows at least two instances when LPNs have
sought overtime or double-time pay for aides who
worked through lunch or performed additional duties
to cover for absent employees, and the requests were
denied by management.
Both LPNs and RNs sign ‘‘incident reports’’ pre-
pared by aides when they are involved in a work-relat-
ed injury or accident. The aide gives the completed
form to an LPN or RN who then signs the form over
the title ‘‘supervising nurse.’’ The purpose of the inci-
dent report is to document that a work-related accident
or injury has occurred. The LPN does not independ-
ently investigate the incident or verify the truthfulness
of the report, and plays no role in determining whether
the aide would be eligible for Workers’ Compensation
benefits.
To establish supervisory status, the authority to as-
sign and direct the work of aides must first require the
use of independent judgment, and second must be ex-
ercised ‘‘in the interest of the employer,’’ rather than
‘‘in the interest of the patient.’’ Northcrest Nursing
Home, supra. In Northcrest, the Board determined that
to the extent charge nurses assign work and direct
aides in order to provide sound patient care, these re-
sponsibilities are exercised in accordance with their
professional or technical judgment, and thus are not
the exercise of supervisory authority in the employer’s
best interest. Northcrest Nursing, supra. Applying this
patient care analysis, the Board found the charge
nurses in Northcrest not to be statutory supervisors as
their assignment and direction of aides was a product
of their professional/technical expertise in the area of
patient care. Id. at 496.
The record here shows that LPNs give directions to
aides without prior approval from the Employer, using
their own judgment to the extent required. These direc-
tions may not always be routine. However, as in
Northcrest, we find that the independent judgment ex-
ercised by the LPNs is merely incidental to their func-
tion, as technical employees, of treating patients and
thus is not the exercise of supervisory authority in the
interest of the Employer.
With respect to assignments, LPNs have no role in
scheduling because the monthly schedule is completed
by an RN supervisor, and only RN supervisors and the
administrator make changes to the schedule. Although
LPNs daily assign aides, these assignments are not
made on the basis of the aides’ particular skills, or any
other factor which might demonstrate independent
judgment on the part of the LPN. Rather, the record
shows that assignments are the result of the Employ-
er’s past practice of assigning particular aides to par-
ticular sections.
The Employer argues that the initialing of timecards
when an aide fails to punch in or out indicates that the
LPNs are vested with the authority to assign hours.
The record evidence, however, shows that the initialing
of timecards is merely to acknowledge that the aides
actually worked the hours indicated and does not in-
volve the use of independent judgment. Similarly, we
reject the Employer’s assertion that the ‘‘overtime ver-
ification’’ slips signed by LPNs are evidence of their
authority to grant overtime. The admitted purpose of
these slips is solely to verify that the overtime hours
were actually worked by the aide.
Nor do we find that LPNs use independent judgment
in finding replacement employees for aides who report
off. The process of requesting off-duty aides to work
an additional shift, or requesting on-duty aides to work
beyond their scheduled time, is necessitated by patient
needs and is not the exercise of independent discretion
on the part of the LPN. Nor is there any record evi-
dence to indicate that LPNs exercise any independent
judgment in the selection of a replacement employee.
The Employer contends that LPNs’ completion of
incident reports is evidence of their supervisory author-
ity. To the contrary, we find that the LPNs’ role with
respect to incident reports is limited to reporting the
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In 1992, the incident reports were renamed ‘‘corrective action’’
forms. The record shows that both documents have been used to re-
port incidents, accidents, and misconduct.
incident as described by the aide, and does not require
the exercise of any independent judgment.
Based on the foregoing, we conclude that LPNs do
not exercise statutory supervisory authority in making
assignments and directing the work of aides.
B. Transfer
The Employer contends that LPNs have authority to
effectively recommend the transfer of aides. The
record shows that in one instance, Staff Development
Coordinator Ware solicited the opinion of LPN
Michaelyn Huda to determine which of two aides who
requested a transfer would receive the transfer. Huda
replied that she worked well with both aides. Despite
Huda’s favorable recommendation, Ware decided to
give the transfer to a third aide, without consulting
Huda about the aide’s performance. Under these cir-
cumstances and in the absence of other evidence of
transfer recommendations, it is clear that LPNs do not
have the authority to effectively recommend the trans-
fer of aides.
C. Discipline
When an aide fails to properly carry out an assigned
duty or engages in misconduct, LPNs and RNs docu-
ment such conduct on ‘‘incident reports’’ or ‘‘correc-
tive action’’ forms.3 LPNs complete these forms at the
direction of an RN or the director of nursing. In some
instances, the RN supervisor prepared the corrective
action form, gave it to the LPN for her signature, and
instructed the LPN to deliver the form to the aide.
The administrator testified that she receives all inci-
dent reports and independently determines whether
they need to be investigated. If she determines that an
investigation is warranted, she gives the incident report
to an RN to investigate. The administrator testified that
she does not act on a report from an LPN without an
independent investigation.
Once investigated, the incident reports and correc-
tive action forms are placed in the personnel files,
which are locked in the assessment office. The assess-
ment office is regularly occupied by the RN coordina-
tor and only RNs have keys to this office. The admin-
istrator testified, however, that she instructed the RN
coordinators to permit LPNs access to the assessment
office, although the record shows that this is not the
actual practice. Thus, LPNs generally are not able to
review employee personnel files. This role is clearly
reserved to the RN supervisors or the administrator.
The record further shows that LPNs do not admin-
ister discipline without the approval of an RN or high-
er management. For instance, LPN Buddy Lambert
met with an aide in the administrator’s office to review
the aide’s conduct. With the approval of the adminis-
trator, Lambert informed the aide that she would be
suspended for 3 days. In another instance, LPN Retha
O’Kernick was instructed by the RN coordinator to
give a 3-day suspension to an aide for absenteeism. In
yet another case, LPN Huda was told by an RN to call
an aide at home and inform her that she was sus-
pended for unsatisfactory work.
Nonetheless, the employee handbook states that
LPNs have the authority to immediately discharge any
aide guilty of flagrant violations of company policy
such as patient abuse, intoxication, or stealing. The
record shows that in one instance, an LPN immediately
ordered an aide to clock out when she found the aide
fondling a patient.
In those instances where LPNs have recommended
disciplinary action, their recommendations were not
followed by management. For instance, although LPN
Theresa Norton recommended to Staff Development
Coordinator Ware that an aide be discharged for poor
performance, the aide was never discharged. In another
case, LPN Catherine Rogers informed the RN coordi-
nator that an aide was verbally abusive to a resident
and reported the incident on a corrective action form.
When Rogers questioned the RN coordinator and di-
rector of nursing about the resulting discipline, they
told her that they did not feel they had enough evi-
dence to write her up.
LPNs are also responsible for documenting ab-
sences, also referred to as ‘‘report-offs.’’ The Em-
ployer contends that the LPNs, in doing so, are re-
quired to follow the progressive disciplinary system set
forth in the employee handbook and to issue discipline
based on the specific offense committed. The policy
states, inter alia, that an employee is automatically ter-
minated on his or her third report-off, but that the em-
ployee retains the right of appeal to the administrator.
Despite this written policy, the record shows that LPNs
consult with their RN coordinator before disciplining
any employee for absenteeism. Further, as noted
above, LPNs generally do not have access to personnel
files in order to determine the number of offenses pre-
viously committed. Thus, they are unable to rec-
ommend discipline based on absenteeism without first
consulting an RN supervisor.
Based on the above record evidence, we find that al-
though LPNs report incidents of misconduct and fail-
ures in patient care on ‘‘corrective action forms,’’
these forms do not lead to personnel action without an
independent investigation by the administrator or an
RN. Nor does the record show that the report-off slips
completed by LPNs constitute discipline at the hands
of LPNs. Rather, the LPNs’ role in documenting mis-
conduct and absences is merely reportorial; LPNs con-
sult with an RN coordinator before any discipline is
administered. Accordingly, the LPNs’ authority to
959MANOR WEST, INC.
complete corrective action forms or report-off slips is
not an indicium of supervisory authority. See
Passavant Health Center, 284 NLRB 887, 889 (1987).
The record also makes it clear that LPNs do not
independently administer discipline except in flagrant
situations. However, as stated in Northcrest, we do not
find the authority to discipline in cases of flagrant vio-
lations to be an indicium of supervisory status, because
such conduct obviously constitutes a violation of com-
pany policy and requires no independent judgment on
the part of the LPN. Northcrest Nursing Home, supra.
D. Evaluation
LPNs complete evaluations for every aide they work
with during the relevant review period. They rate the
aides’ performance in various job performance cat-
egories. LPNs, however, do not sign the evaluations,
although they may write additional comments on the
bottom of the form. Nor do LPNs meet with the aides
to review the aides’ performance or to discuss the writ-
ten evaluations. The forms are collected by Staff De-
velopment Coordinator Ware who averages the scores,
and writes the average score and additional comments
on a ‘‘summary sheet.’’ The original LPN evaluations
are then destroyed and the summary sheet is given to
the administrator. The administrator meets with each
aide to review her performance.
LPNs are also encouraged to prepare complimentary
memos called ‘‘atta boys’’ for aides who perform par-
ticularly well. The ‘‘atta boys’’ are shown to the aides
and placed in their personnel file.
Although the Employer claims that the evaluations
prepared by LPNs are relied on in making personnel
decisions, the record does not bear this out. In fact,
there is absolutely no record evidence that the evalua-
tions have any effect on wage increases, promotions,
job retention, or any other condition of employment.
Similarly, there is no evidence that the ‘‘atta boys’’ are
considered in the granting of raises, promotions, or any
other personnel action. Instead, the record shows that
the aides receive scheduled wage increases based not
on the appraisal of their work, but on their time in
service. Based on this evidence, we conclude that
LPNs’ evaluations and appraisals of employee per-
formance described above do not render them statutory
supervisors. Northcrest Nursing Home, supra.
In one instance, LPN Lambert determined that the
work of a high school student who was temporarily
working at the facility as a part-time aide was inad-
equate and recommended that the student receive addi-
tional training. This recommendation was submitted to
Staff Development Coordinator Ware who was in
charge of aide training. After the student had received
further training, Lambert reported that the student’s
work had not improved, and that he would not rec-
ommend the student for continued employment. Ware
testified that she decided to terminate the student based
on complaints from Lambert and another LPN. Even
assuming Ware acted solely on the basis of the two
LPNs’ evaluations, the record shows that this was an
isolated instance involving a temporary high school
student and is therefore insufficient to render LPNs
statutory supervisors on the basis of their evaluations.
III. SECONDARY INDICIA
The Employer points out that there is only one RN
on duty on the afternoon and night shifts, and that RNs
spend most of their time in the assessment office com-
pleting paperwork or on the floor performing special-
ized nursing procedures which LPNs may not legally
perform. Thus, the Employer contends, LPNs are the
only meaningful supervisors available to the aides
working on the floor.
The Board has held that in the absence of a primary
indicia of supervisory status, secondary indicia alone
may not confer supervisory status. Northcrest Nursing
Home, supra. As stated above, we have found that
LPNs do not exercise any of the 2(11) indicia. Accord-
ingly, we find that the ratio of supervisory to non-
supervisory employees, and the Employer’s contention
that the LPNs are the only meaningful supervisor on
the floor, cannot establish supervisory status.
IV. CONCLUSION
Based on the foregoing and the parties’ stipulation,
we find that the following unit is appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time licensed
practical nurses employed by the Employer at its
461 South Canfield-Niles Road, Austintown, Ohio
facility, but excluding all service and maintenance
employees, nurse aides, rehabilitation aides, activ-
ity assistants, van drivers, central supply employ-
ees, dietary employees, housekeeping employees,
laundry employees, beauticians, retirement center
employees, office clerical employees, office man-
ager, receptionists, medical records employees, li-
censed social workers, director of nutritional serv-
ices, food service supervisors, housekeeping/-
laundry supervisors, nursing supervisors, retire-
ment center directors, staff development instruc-
tor, assistant POC coordinator/habilitation nurse,
registered nurses, vocational students, nurse aide
trainees, technical employees, confidential em-
ployees, professional employees, guards and su-
pervisors as defined in the Act, and all other em-
ployees.
[Direction of Election omitted from publication.]