Springfield Terrace LTD

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 937 (N.L.R.B. 2010)

SPRINGFIELD TERRACE LTD
355 NLRB No. 168
937
Springfield Terrace LTD and SEIU Healthcare Illi-
nois and Indiana. Case 33–RC–5132
August 27, 2010
ORDER DENYING REVIEW
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
After careful consideration, the Employer’s request for
review of the Regional Director’s Decision and Direction
of Election (pertinent portions are attached as an appen-
dix) is denied as it raises no substantial issues warranting
review. Employer’s request for review of the Regional
Director’s order denying motion to reopen record and for
Hearing is also denied.
In denying review, we find, contrary to our dissenting
colleague, that the evidence fails to establish that the
Union waived its right to represent licensed practical
nurses (LPNs) based on language in its current collec-
tive-bargaining agreement with the Employer covering
nonprofessional employees.
The Employer and our dissenting colleague rely on
“Article 2-Recognition,” section 1 of that agreement,
which, in defining the existing unit of nonprofessional
employees, specifically excludes LPNs, and on section 3
(a) of that same article, which states, in part, that
[a]t facilities subject to this Agreement at which the
Union currently represents some employees, the Union
may request recognition as the exclusive collective
bargaining representative for any remaining unrepre-
sented, non-supervisory employees not excluded in
Section 1 of this Article for whom the Union claims
majority status. The Union’s representation in such
cases will be determined by an election conducted by
the National Labor Relations Board or by majority card
check if the Employer and the Union mutually agree to
forego an NLRB election. . . . If the Union’s represen-
tation is verified by a majority card check or NLRB
election, the Employer shall apply the terms of this
Agreement to the affected employees within thirty (30)
days of voluntary recognition or certification of the
election results.
Section 3(b) sets forth a neutrality agreement applicable to
the employees described in section 3(a).
The Board has long recognized that parties to collec-
tive-bargaining agreements may waive certain of their
rights, including some fundamental statutory rights.
However, the Board will enforce such waivers only when
they are clear, knowing, and unmistakable, whether
predicated on a contractual provision or by conduct. See
Northern Pacific Sealcoating, 309 NLRB 759 (1992).
For example, in Briggs Indiana, 63 NLRB 1270 (1945),
the Board held that a union that had agreed to a contrac-
tual provision reciting that it “will not accept for mem-
bership” certain classifications of employees, waived its
right to petition the Board to represent those classifica-
tions during the term of the agreement. This waiver was
premised on the Union’s agreement to the categorical
“will not accept for membership” provision, express lan-
guage that left no doubt about the issue. As subsequently
explained in Cessna Aircraft Co., 123 NLRB 855 (1959),
because a promise by a union not to seek representation
of a particular group of employees during the term of an
existing collective-bargaining agreement “is, in a sense, a
limitation upon the rights of employees to select repre-
sentatives of the their own choosing,” the Board will
enforce such a promise only “where the contract itself
contains an express promise on the part of the union to
refrain from seeking representation of the employees in
question or to refrain from accepting them into member-
ship.” Id. at 856–857 (emphasis in original).
Here, the contractual language does not satisfy the
strict standard for finding a waiver of the Union’s right
to file the present petition, which seeks to represent the
LPNs as a separate bargaining unit (as opposed to add-
ing them to the unit from which they were excluded).
Section 1 of article 2 excludes the LPNs from the ex-
isting bargaining unit recognized by the Employer. But a
“mere exclusionary clause, without more” is insufficient
to bar the present petition. Cessna Aircraft, supra at 856.
Nor does section 3, in conjunction with the exclusionary
language in section 1, amount to the “express promise”
required.
Section 3(a) creates a procedure, including (where the
parties agree) card check verification of the Union’s ma-
jority status, by which the Union “may request recogni-
tion” of employees not excluded under section 1. It also
provides for application of the terms of the collective-
bargaining agreement to those newly-represented em-
ployees. Section 3(b), in turn, provides for Employer
neutrality (as specified) “[w]henever the Union becomes
involved in organizing activity described in Paragraph
3(a).” Although it is clear that the Union may not invoke
section 3 in seeking to represent the LPNs, that is not the
equivalent of an express promise not to invoke the
Board’s procedures through the petition in this case,
where none of the special provisions of section 3 (e.g.,
employer neutrality and application of the existing
agreement’s terms) will apply. Our dissenting colleague
would imply such a promise, but the Board’s precedent
requires more.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 938
Although the Employer claims that it entered into a
neutrality agreement as a quid pro quo for the Union’s
waiver of any attempt to organize the LPNs during the
term of the agreement, the Employer fails to supply any
contract language or other express agreements as evi-
dence to support this claim. Cf. Lexington House, 328
NLRB 894 (1990) (Board found waiver where petitioner
made express promise not to organize the employer’s
unorganized facility sought in the petition for a period of
12 months as part of a neutrality agreement covering
other facilities). Thus, we find that the Union has not
waived its right to represent the petitioned-for LPNs.

MEMBER SCHAUMBER, dissenting.
Because the Regional Director clearly erred in direct-
ing an election that included LPNs, notwithstanding the
Union’s unequivocal contractual waiver of its right to
represent them during the contract term, I would grant
review. I therefore dissent from my colleagues’ failure to
do so.1
The Employer operates a nursing home providing
long-term residential care. Its nonprofessional employees
are covered by a collective-bargaining agreement with
the Union effective from July 1, 2009, through June 30,
2012. During the contract term, the Union petitioned to
represent a separate unit of various employees, including
the Employer’s six LPNs. The Employer correctly ar-
gues that article 2 of the parties’ agreement expressly
waives the Union’s right to represent the LPNs during
the contractual term.
My colleagues and I agree with the longstanding and
well-established Board principle that where a union ex-
pressly promises not to represent certain categories of
employees during the term of a contract the union may
not file a petition with the Board seeking to represent
those employees during that period. See Briggs Indiana,
63 NLRB 1270 (1945). We also agree that, in Cessna
Aircraft Co., 123 NLRB 855 (1959), the Board, applying
the Briggs rule, held that exclusionary language alone in
a unit description is insufficient to establish an express
promise not to represent the excluded employees. Our
strong point of disagreement is whether explicit language
of section 1 of article 2 of the parties’ agreement, which
explicitly goes beyond but is fully consistent with the
exclusionary language in the unit description, reflects an
express promise by the Union not to represent the LPNs.
Article 2 of the party’s agreement is a carefully articu-
lated statement of the parties’ agreement on unit scope at

1 I therefore find it unnecessary to reach the Employer’s request for
review of the Regional Director’s additional finding that the LPNs have
not been shown to be statutory supervisors. Similarly, I would not reach
the Regional Director’s order denying the Employer’s motion to reopen
record and for hearing.
four of the Employer’s facilities, including Springfield
Terrace and the procedures to be followed when the Un-
ion requests recognition of employees not specifically
excluded. Those procedures include a Board-conducted
election unless the parties mutually agree to a card check
and the Employer’s agreement to remain neutral in ex-
change for the Union’s agreement that any statement
made by it during an organizing campaign be factual and
not disparage the Employer. As to the Springfield Ter-
race unit description at issue here, article 2 describes the
nonprofessional unit specifically to explicitly exclude
LPNs, see article 2, section 1, and continues that at all
facilities covered by the agreement where “the Union
currently represents some employees, the Union may
request recognition as the exclusive collective bargaining
representative for any remaining unrepresented, non-
supervisory employees not excluded in Section 1 of this
Article [emphasis added].” See section 3.
In the face of the above specific language, my col-
leagues make the rather startling assertion that I “imply a
promise” not to represent the excluded LPNs. I imply
nothing. I simply read the plain language of the agree-
ment for what it says and hold the parties to the bargain
they struck. The majority, to the contrary, relieves the
Union of its explicit agreement not to represent the LPNs
by taking the untenable position that the Union is free to
do so provided it not invoke a section of article 2—the
“special provisions of Section 3.”2 Thus, according to
the majority, the Union cannot only file a petition to rep-
resent the LPNs specifically excluded by section 1, after
doing so it may engage in a campaign that disparages the
Employer, conduct specifically excluded by the “special
provisions of Section 3.” Simply put, the LPNs are spe-
cifically excluded by article 2 and the Union may not
seek to represent them during the contract term.
The Regional Director’s finding of no express promise
rests on his strained and erroneous conclusion that the
contractual language in section 3 that the Union “may
request recognition” as representative of the unrepre-
sented employees not excluded in section 1 does not
mean that the Union “will refrain from seeking to repre-
sent the LPNs, who are excluded in Section 1.” Pursuant
to the plain meaning of section 3 of article 2, by agreeing
that it may seek to represent only those employees cur-
rently unrepresented and not excluded in section 1, the
Union has agreed not to seek to represent those who are

2 Furthermore, the majority states that “the Board’s precedent re-
quires more.” I firmly disagree. Contrary to the majority, I see no
meaningful distinction between a promise not to represent LPNs and a
promise to represent only members of a class that specifically excludes
LPNs.

SPRINGFIELD TERRACE LTD 939
specifically excluded by section 1. Any contrary inter-
pretation of article 2 would essentially render the agreed-
upon language in section 3 meaningless.
Accordingly, I would grant review and reverse the Re-
gional Director’s conclusion.

APPENDIX
REGIONAL DIRECTOR’S DECISION AND
DIRECTION OF ELECTION
The Employer, Springfield Terrace LTD, operates a
65-bed intermediate care nursing home. The Petitioner,
SEIU Healthcare Illinois and Indiana, filed a petition
with the National Labor Relations Board under Section
9(c) of the National Labor Relations Act seeking to rep-
resent a unit of licensed practical nurses (LPNs), psychi-
atric rehabilitation services coordinators (PRSC), the
social services director, the activity director, and the care
plan coordinator. A hearing officer of the Board held a
hearing and the parties filed briefs with me.
As evidenced at the hearing and in the briefs, the par-
ties disagree on two issues: (1) whether the Petitioner has
waived its right to represent the Employer’s LPNs; and
(2) whether all of the classifications requested by the
Petitioner are supervisory. The Employer contends the
Petitioner waived its right to represent the LPNs based
on language in the parties’ current collective-bargaining
agreement which covers a different unit of employees.
The Employer also contends that every classification
sought by the Petitioner is supervisory. Contrary to the
Employer, the Petitioner argues it did not waive its right
to represent the LPNs and that the Employer’s waiver
argument is an affirmative defense which was not timely
raised and therefore waived. The Petitioner further ar-
gues that none of the employees in the petitioned-for unit
are supervisory and they should all be included in the
unit.1
I have considered the evidence and arguments pre-
sented by the parties on these issues. As discussed be-
low, I have concluded that the Petitioner did not waive
its right to represent the LPNs. I have also concluded
that the six LPNs, two PRSCs, the social services direc-
tor, and the activity director are not supervisors and are
appropriately included in the unit. The position of care
plan coordinator is currently vacant and the record con-
tains insufficient evidence to determine the unit place-
ment of this classification at this time. However, should
the position be filled at the time of the election, the in-
cumbent shall be allowed to vote under the challenge
ballot procedures. There are approximately nine em-
ployees in the unit found appropriate here.

1 The Employer asserts no other objection to the appropriateness of
the unit sought by Petitioner.
I. OVERVIEW OF OPERATIONS
The Employer operates a 65-bed nursing home in
Springfield, Illinois, providing long-term care to resi-
dents. The Employer and the Petitioner are parties to a
collective-bargaining agreement effective by its terms
from July 1, 2009, through June 30, 2012, covering non-
professional employees employed by the Employer, in-
cluding CNAs (certified nursing assistants), housekeep-
ers, laundry aides, dietary aides, cooks, activity aides,
transport aides, and maintenance employees employed
by the Employer at the Springfield, Illinois facility. The
Employer employs approximately 40 employees, 30 of
whom are nonprofessional employees covered by this
collective-bargaining agreement.
The nursing home operates 24 hours a day. The ad-
ministrator is responsible for the overall operations of the
facility. The administrator works from 8 a.m. to 5 p.m.
or 6 p.m. Monday through Friday. The Employer em-
ploys two registered nurses (RNs) who are referred to by
the Employer as “co-directors of nursing.” One of these
two directors of nursing (DON) is present at the facility
from 8 a.m. to 5 p.m. Monday through Friday, and on
some weekends, though the record fails to reflect
whether the DONs cover every weekend or just certain
weekends. The DONs report to the administrator and
head the nursing department. The nursing department
also has an assistant director of nursing (ADON), which
is currently vacant. In addition to the DONs, the facility
also has other department heads who work in other de-
partments, including dietary, laundry/housekeeping, and
maintenance. These department heads report to the ad-
ministrator.
A. Licensed Practical Nurses (LPNs)
There are six LPNs who report directly to the DON.
The record does not reflect the exact number of CNAs
currently employed by the Employer. The CNAs also
report to the DON. There is at least one LPN on each of
the Employers three shifts: 6 a.m. to 2 p.m., 2 to 10
p.m., and 10 p.m. to 6 a.m. The LPN on duty on these
three shifts is referred to as a charge nurse, as is the DON
on duty. Three CNAs work during the 6 a.m. to 2 p.m.
shift, and two CNAs work on the 2 to 10 p.m. shift, and
two work on the 10 p.m. to 6 a.m. shift.
The LPNs and the CNAs provide medical care to the
residents. LPNs administer medications, chart resident
care, do treatments, and keep in contact with physicians.
CNAs are responsible for assisting residents with such
activities as bathing and feeding. CNAs also take vital
signs including temperature, weight, and blood pressure.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 940
B. Psychiatric Rehabilitation Services Coordinator
(PRSC)
The Employer employs one full-time PRSC and one
part-time PRSC who spends 20 percent of his time as a
PRSC and 80 percent of his time performing the duties of
the social services director. The PRSCs evaluate and
assess the psychiatric needs of the residents. They de-
velop and monitor the Employer’s tracking system used
to document the residents’ behaviors. The tracking sys-
tems require the CNAs and other employees to observe
and record certain behaviors on tracking sheets. PRSCs
review these sheets monthly and use the information ob-
tained from these sheets and from observations relayed to
them by employees to identify problem behaviors and
psychiatric issues. The PRSCs develop plans for the
residents to ensure they are receiving the appropriate
psychiatric care. The PRSCs may also refer residents to
the DON for medical intervention if the PRSCs deter-
mine the resident’s behavior may improve with a change
in medication. The two PRSCs are the only two indi-
viduals in this department. There are currently no PRSC
aides.
C. Social Services Director/Designee
One of the two PRSCs is also the social services direc-
tor. The position of social services director is referred to
in the Employer’s job description as the social services
“designee.” The social services director spends 80 per-
cent of his time performing social services duties. These
duties include meeting with the resident’s family, assess-
ing the needs of the residents, summarizing how the resi-
dents are doing, and helping to place residents in the
community. The social services director is the only indi-
vidual in his department.
D. Activity Director
There is one activity director. This individual is re-
sponsible for planning the various activities for the resi-
dents in accordance with State certification guidelines.
She schedules activities for the month and administers
them. The type of activity is determined by the desires
of the residents, their age, and their cognitive abilities.
These activities include bingo, exercise, movietime, and
coffee café. The activity director works from 8 a.m. to 4
p.m. Monday through Friday and does not work on the
weekends. The activity director seeks volunteers to per-
form the activities on the weekends. The record reflects
that the Employer recently hired an activity assistant who
will be performing these activities on the weekends.
E. Care Plan Coordinator
The record reflects the position of care plan coordina-
tor is currently vacant and has been for about a month
and a half prior to the date of hearing. The Employer
contends it plans to fill this position but the record does
not reflect any specific dates for when this will occur.
II. CONTRACTUAL WAIVER
The Employer contends the Petitioner waived its right
to represent the LPNs through express language in the
parties’ collective-bargaining agreement. Specifically,
the Employer relies on article 2, section 3(a) of the col-
lective-bargaining agreement which reads, in pertinent
part, “the Union may request recognition as the exclusive
collective-bargaining representative for any remaining
unrepresented, non-supervisory employees not excluded
in Section 1 of this Article.”2 (Jt. Ex. 1.) Article 1, in
turn, specifically excludes LPNs. The Employer relies
primarily on Briggs Indiana Corp., 63 NLRB 1270
(1945), and Cessna Aircraft Co., 123 NLRB 855 (1959),
for the proposition that the Board will enforce contrac-
tual agreements by a union to forgo the representation of
certain groups of employees.
The Petitioner contends that the Employer’s contrac-
tual waiver argument is an affirmative defense that must
be made in the form of a motion and must be made dur-
ing the hearing. The cases cited by the Petitioner regard-
ing whether the contractual waiver is an affirmative de-
fense are all unfair labor practice cases. These cases
involve the Respondent’s failure to raise various affirma-
tive defenses in its answer or at hearing. These defenses
were then deemed waived by the Board because they
were raised for the first time in the Respondent’s
posthearing brief. None of these cited cases are repre-
sentation cases. Representation cases, unlike unfair labor
practice cases, are not adversarial in nature but are fact-
finding hearings aimed at determining unit placement
and other representational issues. There are no formal
pleadings or answer requirements. Further, there is no
showing of prejudice in this case since the Employer
raised the issue sufficiently at the hearing to alert the
Petitioner to cover that issue in the Petitioner’s brief. I
find the Employer’s contractual waiver issue was timely
raised and therefore I shall address it here.
I conclude that the contractual language relied upon by
the Employer does not constitute a clear and unmistak-
able waiver sufficient to exclude the Petitioner from
seeking to represent the LPNs in the instant petition. The
contractual language in the cases cited by the Employer
included express language specifically prohibiting the
union from representing a certain group of employees.

2 Sec. 3 continues in sec. 3(b) to set forth what is commonly re-
ferred to as a “neutrality agreement” applicable to the employees de-
scribed in sec. 3(a). Thus, sec. 3(a) can be read as the delineative of the
employees to whom the “neutrality agreement” does not apply, rather
than a waiver of the right to represent those employees.
SPRINGFIELD TERRACE LTD 941
In Briggs Indiana Corp., the union specifically agreed
that it would “not accept for membership . . . plant pro-
tection employees.” Briggs Indiana Corp., supra at 1271.
The Board held that the union was prohibited from filing
a petition to represent the plant protection employees
based on this language. In Northern Pacific Sealcoating,
309 NLRB 759 (1992), an RM case cited by the Em-
ployer, the employer was prohibited from filing an RM
petition based on its express promise that it “waive[d]
any right . . . to file or process any petition before the
National Labor Relations Board.” Id at 759.
In Cessna, the Board noted that it would find a con-
tractual waiver only where the contract itself “contains
an express promise on the part of the union to refrain
from seeking representation of the employees in ques-
tion” (emphasis in the original). Cessna Aircraft Co.,
supra at 857. The contractual language quoted by the
Employer does not contain an express promise by the
Petitioner to refrain from seeking representation of the
LPNs, and such a promise cannot be inferred. Rather,
the language merely states that the Petitioner “may re-
quest recognition” as the representative of the unrepre-
sented, nonsupervisory employees not excluded in Sec-
tion 1. This language does not expressly state that the
Petitioner will refrain from seeking to represent the
LPNs, who are excluded in section 1. Therefore, the
parties’ contractual language here does not contain an
express promise by the Petitioner not to seek representa-
tion of the LPNs and is therefore not a basis upon which
to exclude the LPNs from the unit found appropriate
here.
III. SUPERVISORY STATUS
The Employer contends that the six LPNS, the two
PRSCs, the social services director, the activity director,
and the care plan coordinator are all supervisory posi-
tions and should be excluded from the unit. The tradi-
tional test for determining supervisory status is: (1)
whether the individual has the authority to engage in, or
effectively recommend, any 1 of the 12 criteria listed in
Section 2(11) of the Act; (2) whether the exercise of such
authority requires the use of independent judgment; and
(3) whether the individual holds the authority in the in-
terest of the employer. NLRB v. Health Care & Retire-
ment Corp., 511 U.S. 571, 573–574 (1994). The burden
of proving supervisory status lies with the party asserting
that such status exists. Oakwood Healthcare, Inc., 348
NLRB 686, 687 (2001).
Supervisory status must be established by a preponder-
ance of the evidence. Oakwood Healthcare, Inc., supra
at 694. Lack of evidence is construed against the party
asserting supervisory status. Dean & Deluca New York,
Inc., 338 NLRB 1046, 1048 (2003). “[W]henever the
evidence is in conflict or otherwise inconclusive on par-
ticular indicia or supervisory authority, [the Board] will
find that supervisory status has not been established, at
least on the basis of those indicia.” Phelps Community
Medical Center, 295 NLRB 486, 490 (1989). Mere in-
ferences or conclusionary statements, without detailed,
specific evidence of independent judgment, are insuffi-
cient to establish supervisory authority. Golden Crest
Healthcare Center, 348 NLRB 727, 731 (2006); Avante
at Wilson, Inc., 348 NLRB 1056, 1057 (2006). Further,
job descriptions and job titles are only paper authority
and are not given any controlling weight by the Board.
Avante at Wilson, Inc., id.; Training School at Vineland,
332 NLRB 1412, 1416 (2000).
The Employer contends that the LPNs, PRSCs, social
services director, activity director, and care plan coordi-
nator are supervisors primarily because they have the
authority to assign work and responsibly direct employ-
ees, and also because they possess other primary and
secondary indicia which will be discussed below. As
noted above, the position of care plan coordinator was
vacant at the time of the hearing and I shall make no de-
termination on the unit placement of this position at this
time.
A. Licensed Practical Nurses (LPNs)
1. Assignment of work
The LPNs’ role in assigning work does not demon-
strate supervisory status. The Board’s recent decisions in
Oakwood Healthcare, Inc. and Golden Crest Healthcare
Center provide the framework for determining whether
the LPNs assign work to CNAs using the requisite de-
gree of independent judgment. In Oakwood Healthcare,
Inc., the Board explained that assignment means desig-
nating an employee to a place (such as location, depart-
ment, or wing), appointing an individual to a time (such
as a shift or overtime period), or giving significant over-
all duties as opposed to discrete tasks. Oakwood Health-
care, Inc., supra at 689. The authority to make an as-
signment, by itself, does not confer supervisory status—
the putative supervisor must also use independent judg-
ment when making such assignments. Id. at 692–693.
This means that the individual must exercise authority
that is free from the control of others, and make a judg-
ment that requires forming an opinion or evaluation by
discerning and comparing data. Id. Additionally, the
judgment must “rise above the merely routine or clerical”
for it to be truly supervisory, even if it is made free of
control of others and involves forming an opinion by
discerning and comparing data. Id.
LPNs do not assign CNAs to a particular time. They
do not schedule CNAs. LPNs do not determine which
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 942
shifts the CNAs will work on, nor do they determine the
number of CNAs who will work on each shift. LPNs
also cannot approve requests by the CNAs to change or
switch their shifts. There is no evidence LPNs can ap-
prove sick leave or vacation. They do not excuse ab-
sences or tardiness, nor is there any evidence that they
monitor absenteeism. The Employer contends that the
LPNs do have the authority to let employees leave early.
The record fails to reflect any specific instances of an
LPN approving a CNA’s request to leave early. One
LPN testified that one CNA leaves work 15 minutes
early every day but that this CNA does so without seek-
ing the permission of the LPN. Another LPN testified
that CNAs merely inform her that they are leaving early.
The record fails to reflect the reasons why the CNAs
leave early or whether such leave had already been ap-
proved by the DON or the administrator. Further, there
is no evidence that LPNs can refuse to allow a CNA to
leave early. Automatically granting leave, without the
discretion to deny such requests, does not require the use
of independent judgment and therefore is not supervi-
sory. Hydro Conduit Corp., 254 NLRB 433, 439 (1981).
The Employer also contends that the LPNs assign
times for the CNAs to take breaks and lunches. The re-
cord reflects that the Employer has established the num-
ber of breaks for the CNAs and the length of their lunch
periods, which is set forth in the parties’ collective-
bargaining agreement. Further, there is no evidence that
LPNs schedule either breaks or meals; rather the record
reflects the CNAs determine among themselves when
they will take breaks and lunch. Even assuming the
LPNs did assign breaks and lunch periods, such assign-
ments are considered routine and do not require the use
of independent judgment and, therefore, are insufficient
to confer supervisory status. Regal Health & Rehab
Center, 354 NLRB No. 71, slip op. at 9 (2009); Los An-
geles Water & Power Employees’ Assn., 340 NLRB
1232, 1234 (2003). Further, assignments based on the
expressed preferences of the employees involved does
not reflect the use of independent judgment. See Chil-
dren’s Farm Home, 324 NLRB 61, 64 (1997).
The Employer also argues that the LPNs can call
CNAs in to work and can request that they work past
their shifts. The record evidence is conflicting regarding
what the current policy is with respect to filling vacan-
cies. One LPN testified that she was recently told by a
DON that all employees who call off are now supposed
to be directed to the DON and are not supposed to be
handled by the LPNs. The LPNs who have called in
CNAs testified that they use a list of CNAs and randomly
call the names on this list asking for volunteers. The
LPNs cannot ask a CNA to volunteer to work if doing so
will cause the Employer to go over its “budget hours.”
There is no evidence LPNs can compel CNAs to come in
to work to fill in for an absence. Calling in employees or
randomly seeking volunteers in order to fill shift vacan-
cies, without the authority to compel an employee to
come to work, does not confer supervisor status on the
individual. Golden Crest Healthcare Center, supra at
729; see also Regal Health & Rehab Center, supra, slip
op. at 9.
With respect to CNAs staying late, the record reflects
that LPNs can ask a CNA to stay past his or her shift to
cover for a vacancy. One LPN testified that a CNA who
was running late called and spoke to another CNA and
asked that CNA if she could remain working until the
other CNA arrived. In this instance, coverage was ob-
tained without any involvement by the LPN. There is no
evidence that LPNs can require CNAs to work past their
shift. If no one volunteers to stay late and failure to ob-
tain coverage would cause a shortage of staff, the LPNs
contact the DON who then determines which CNA
would remain. As noted above, the ability to request that
an employee stay late, without the ability to require such
action, does not constitute supervisory authority. Golden
Crest Healthcare Center, supra. There is also no record
evidence that LPNs have ever requested that a CNA stay
late which then resulted in overtime for the CNA, or any
evidence that the LPNs can otherwise approve overtime
or evidence that they do so using independent judgment
free from the control of the DON or the administrator.
The Employer contends LPNs assign overall duties to
the CNAs by assigning the CNAs to one of three pre-
determined groups of residents. The record reflects the
Employer has an assignment sheet used to mark which
CNA will be assigned to which group of residents. The
assignment sheet also contains spaces to indicate which
CNA will perform other tasks such as picking up soiled
linen, giving showers, taking vital signs, and filling an
ice chest. While the record is not clear on the exact
physical layout of the nursing home, the assignment
forms used in making the CNA assignments refer to hall
A and hall B. Presumably, assigning CNAs to a particu-
lar group of residents also results in an assignment of the
CNA to a particular geographic location within the nurs-
ing home.
The record reflects, however, that group assignments
are made solely upon the expressed preferences of the
CNAs. The CNAs decide among themselves which
group of residents they will work with. There is no evi-
dence that any of the groups of residents or particular
halls are more desirable than others, or that LPNs have
the power to favor or disfavor a CNA in making group
assignments. There is no specific record evidence of
SPRINGFIELD TERRACE LTD 943
LPNs making CNA assignments based on the LPN’s
individual assessment of the CNAs’ skills in relation to
the needs of the residents. This lack of specific evidence
is construed against the Employer. Golden Crest
Healthcare Center, supra at 731; Avante at Wilson, Inc.,
348 NLRB 1056, 1057 (2006). Assignments based on
the expressed preferences of the employees involved, or
on their availability, without regard to individualized
assessments of the CNAs skills in relation to the needs of
the residents, are routine and do not require independent
judgment. Oakwood Healthcare, Inc., supra at 693;
Children’s Farm Home, 324 NLRB 61, 64 (1997).
There is also no evidence that CNA assignments to
other tasks listed on the Employer’s assignment sheet,
such as filing the ice chest or giving showers, requires
the use of independent judgment. These tasks are routine
and performed by the CNAs on a daily basis. The CNAs
generally decide among themselves who will perform
which tasks. As noted above, these assignments based
on the personal preferences of the CNAs do not require
the use of independent judgment. Children’s Farm
Home, supra. The only record evidence of an assignment
not based on the preferences of the CNAs involved giv-
ing showers to sex offenders. The Employer’s policy
requires that a male CNA or two female CNAs give
showers to sex offenders. Where assignment authority is
so circumscribed by established company policy, it is
nonsupervisory. See Oakwood Healthcare, Inc., supra,
at 693; Dynamic Science Inc., 334 NLRB 391 (2001);
see also Regal Health & Rehab Center, 354 NLRB No.
71, slip op. at 11 (2009) (occasionally making assign-
ments based on gender does not constitute independent
judgment).
Finally, the Employer argues that the LPNs should be
found to be supervisors because they are the highest
ranking individuals on nights and weekends when there
is no DON or administrator on duty. The Employer con-
tends the LPNs are “in charge” during this time and serve
as “charge nurses.” There is no evidence, however, that
LPNs perform extra duties when they act as charge
nurses. The Employer’s job descriptions for nurses and
charge nurses are identical. Further, being the highest
ranking individual at the facility is not one of the super-
visory criteria in Section 2(11) of the Act, but rather falls
within the category of secondary indicia of supervisory
status and does not by itself confer supervisory status on
the LPNs. Loyalhanna Care Center, 352 NLRB 863,
864–865 (2008); Golden Crest Healthcare Center, 348
NLRB 727, 730 fn. 10 (2006). When LPNs encounter
problems after hours, they contact the DON or adminis-
trator who are both available by telephone. Merely noti-
fying a supervisor of an emergency or unusual situation
is insufficient to confer supervisory status. Chevron
Shipping Co., 317 NLRB 379, 381 (1995). Having both
the DON and the administrator available by telephone
after hours is further evidence that the LPNs do not exer-
cise independent judgment when they are the highest
ranking individuals physically present at the facility.
Loyalhanna Care Center, supra; Golden Crest Health-
care Center, supra at 729 fn. 10.
2. Responsible direction
The Employer has failed to establish that the LPNs re-
sponsibly direct the work of the CNAs or any other em-
ployee. Responsible direction means the individual must
have employees “under” him with the authority to direct
those employees on what work to perform, and that the
individual must be “responsible” for the performance of
this work by the employees. Oakwood Healthcare, Inc.,
supra at 691. To establish that the putative supervisor is
“responsible,” the employer must establish that the puta-
tive supervisor is held accountable for the performance
of the employees. Id. at 691–692. To prove accountabil-
ity, the party asserting supervisory status must show both
that the putative supervisor has “the authority to take
corrective action” and can potentially receive “adverse
consequences” for the performance errors of other em-
ployees. Id. Finally, the putative supervisor must also
exercise independent judgment in responsibly directing
the work of the employees under him. Where tasks are
highly regulated, repetitive, and well known to the em-
ployees, the degree of independent judgment is reduced
when directing employees in such tasks. Id. at 693; Croft
Metals, Inc., supra at 721.
There is little, if any, record evidence that LPNs direct
the work of the CNAs. As noted above, the CNAs gen-
erally decide among themselves which tasks they will
perform on a given day without any direction from the
LPNs. Assuming LPNs do direct the CNAs in the per-
formance of their work, the record fails to reflect that
LPNs direct employees “responsibly” or that they use
independent judgment when giving direction to the
CNAs.
With respect to accountability, there is insufficient
evidence that the LPNs can take corrective action to cor-
rect the work of the CNAs. There is little evidence that
the LPNs, who also perform resident care tasks, even
monitor the work of the CNAs. There is no record evi-
dence that the LPNs have ever been told that they can
take corrective action if the work performance of the
CNAs is deficient. While the Employer contends the job
descriptions for the LPNs reflect their authority to moni-
tor the work of the CNAs and to discipline the CNAs,
this is mere paper authority that is not sufficient to estab-
lish supervisory status. Loyalhanna Care Center, supra
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 944
at 694; Avante at Wilson, Inc., 348 NLRB 1056, 1057
(2006). Further, the evidence is conflicting, and there-
fore inconclusive, with respect to whether the LPNs ever
received a copy of the job descriptions. The two LPNs
who testified stated that they had never been given a
copy of the job descriptions. The only record evidence
of corrective action given to a CNA by an LPN was a
verbal warning, and the determination of what discipline
would issue was made by the DON, not the LPN. The
record reflects this verbal warning is the only documen-
tary evidence of discipline given to a CNA during the
last 3 years.
Assuming LPNs have the authority to take corrective
action, there is no record evidence of adverse conse-
quences for performance mistakes by the CNAs. The
DON and the administrator testified that the LPNs are
held accountable and are “responsible” for the work of
the CNAs. Such conclusionary testimony is not suffi-
cient to establish accountability. See Rockspring Devel-
opment, Inc., 353 NLRB 1041, 1042 (2009); Golden
Crest Healthcare Center, supra at 731. Accountability
requires specific evidence that LPNs will potentially suf-
fer adverse consequences due to the performance of the
CNAs. There is no evidence of LPNs receiving disci-
pline for the performance of the CNA, or for their failure
to supervise the performance of the CNAs. There is no
evidence that the LPNs are evaluated or that such evalua-
tions are based on the performance of the CNAs. The
Employer here has failed to present probative evidence
of either actual or prospective adverse consequences to
the LPNs’ terms and conditions of employment resulting
from the CNAs’ poor performance, and therefore the
Employer has failed to establish the LPNs are “responsi-
ble” under Section 2(11) of the Act. Golden Crest
Healthcare Center, supra at 731; Oakwood Healthcare,
Inc., supra at 691–692. Finally, there is no evidence that
the LPNs have ever been informed that they could re-
ceive adverse consequences for the work performance of
the CNAs. The Board has declined to find accountability
where the putative supervisor has never been informed of
the prospect of adverse consequences for the poor per-
formance of other employees. See Rockspring Develop-
ment, Inc., supra at 1042.
Even were the evidence to show that the LPNs respon-
sibly direct the work of the CNAs by being held account-
able for their mistakes, the evidence does not establish
that the LPNs use independent judgment in directing the
CNAs. Both the LPNs testified that they did not need to
give the CNAs directions on performing their work be-
cause the CNAs knew what they were supposed to do
and did it. Directing employees in the performance of
such tasks that are well known to the employees and
which require minimal guidance does not require the
degree of judgment necessary to constitute independent
judgment. Croft Metals, Inc., supra at 722; Franklin
Home Health Agency, 337 NLRB 826, 831 (2002).
3. Discipline/effectively recommend discipline
The Employer contends that the LPNs have the author-
ity to discipline CNAs and other employees, relying pri-
marily on its own job descriptions and the conclusionary
testimony of the DON and the administrator. While the
DON and the administrator testified that LPNs have dis-
ciplinary authority, none of the LPNs who testified had
ever been told they had such authority. Further, other
than the single verbal warning mentioned above, the
Employer failed to present documentary evidence that
LPNs discipline CNAs, housekeeping employees, or any
other employees. Moreover, there are no record exam-
ples of LPNs using independent judgment in disciplining
employees. To establish supervisory authority, evidence
of actual authority to discipline is required as opposed to
mere titular or theoretical power. See Avante at Wilson,
Inc., 348 NRLB 1056, 1057 (2006); Queen Mary, 317
NLRB 1303, 1309 (1995). Conclusionary statements
such as those made by the DON and the administrator,
without detailed, specific evidence of independent judg-
ment, are insufficient to establish supervisory authority.
Golden Crest Healthcare Center, 348 NLRB 727, 731
(2006); Avante at Wilson, Inc., supra at 1057.
Even assuming the Employer’s job descriptions consti-
tute legally sufficient evidence by themselves of the su-
pervisory authority to discipline, and even assuming all
the LPNs received such job descriptions, the job descrip-
tions themselves do not reflect that the LPNs use inde-
pendent judgment in exercising the authority to disci-
pline. To confer supervisory status, it must be shown
that the exercise of disciplinary authority leads to per-
sonnel actions without the independent investigation or
review of other management personnel. Franklin Home
Health Agency, 337 NLRB 826, 831 (2002). The nurse
and charge nurse job descriptions, which the Employer
contends apply to LPNs, are identical and both state in
Item 29, “Appropriately discipline staff under his/her
jurisdiction in coordination with the Director of Nursing
and/or the Administrator.” (Emp. Exh. 1.) This lan-
guage indicates the LPNs must “coordinate” any issu-
ance of discipline with the DON and/or administrator,
which indicates that LPNs’ authority to issue discipline is
not free from the independent investigation or review of
higher management officials. Thus, the job descriptions
do not establish supervisory authority to discipline using
independent judgment.
As noted above, the Employer provided only one dis-
ciplinary form issued to CNAs during the last 3 years.
SPRINGFIELD TERRACE LTD 945
The form has a section entitled “EMPLOYEE
ACTION/DISCIPLINE.” (Emp. Exh. 3.) The LPN
wrote in the body of this section that the CNA engaged
in patient neglect by leaving the patients soiled. The
disciplinary document is signed by not only the LPN but
also by one of the DONs. Further, the record reflects
that the DON made the determination of what discipline
would issue, and the DON, not the LPN, checked the box
marked “warning,” and wrote in the word “verbal.” The
DON also wrote in the body of the form that she had
reviewed the form with the employee and the employee
refused to sign the discipline.
In these circumstances, the record evidence estab-
lishes that the LPN’s role was to simply report to the
DON what had occurred, without making any recom-
mendation on what action, if any, should be taken.
Documenting substandard performance without making
recommendations on further action is not supervisory
authority. See Regal Health & Rehab Center, Inc., su-
pra, slip op. at 13. The DON ultimately determined what
discipline should issue and the DON then reviewed the
discipline with the employee. The LPN’s role in report-
ing this conduct cannot be said to be discretionary as it
involves reporting patient neglect and abuse which all
employees are required by the Employer and by State
and Federal regulations to report. Reporting such obvi-
ous violations of the Employer’s rules does not require
the exercise of independent judgment. See Regal Health
& Rehab Center, Inc., supra, slip op. at 15–16; Michigan
Masonic Home, 332 NLRB 1409, 1411 fn. 5 (2000).
Further, the Board will not find individuals to be supervi-
sors based on alleged authority the individuals have not
been notified they had, particularly where the exercise of
such authority is sporadic and infrequent. Golden Crest
Healthcare Center, supra at 730 fn. 9. The Employer has
failed to establish, through this single disciplinary action,
that the LPNs have disciplinary authority, that they use
independent judgment when exercising such authority,
and that they exercise such authority on a regular as op-
posed to a sporadic basis.
Finally, the Employer’s handbook, which is attached
and made part of the parties’ collective-bargaining
agreement covering the CNAs, indicates that LPNs do
not have the authority to discipline CNAs using inde-
pendent judgment. (Jt. Exh. 1.) Section 22 of the hand-
book mentions four disciplinary steps that the facility
“may” use, but does not indicate that any certain number
of disciplinary actions automatically leads to another step
in the disciplinary process. For every step of the disci-
plinary process, including oral reprimands/counselings,
the handbook reads, “The department director and/or the
Administrator shall meet with the employee to discuss
the infraction and what action needs to be taken to pre-
vent further violations.” Thus, the parties’ own collec-
tive-bargaining agreement requires the DON and the
administrator to meet with the employee to discuss the
discipline and any corrective action. Paragraph E of sec-
tion 22 further provides that the employee has the right to
disagree with the disciplinary actions and can request a
review by the administrator and department director.
Thus, the collective-bargaining agreement establishes
that any discipline issued by LPNs is subject to review
by the DON and the administrator, which indicates such
disciplinary authority lacks independent judgment.
The Employer argues the LPNs can discipline employ-
ees by sending employees home. The administrator testi-
fied that LPNs can instruct employees to go home.
Again, the administrator testified that she could not iden-
tify anyone who was sent home by an LPN or the cir-
cumstances in which an LPN would send an employee
home. The record does not contain any evidence that
sending an employee home automatically results in dis-
cipline or that such action occurs without independent
investigation or review by higher management officials.
The conclusionary testimony offered in support of the
authority to send employees home, without detailed, spe-
cific evidence of independent judgment, is insufficient to
establish supervisory status. Golden Crest Healthcare
Center, supra at 731. There is no record evidence that
LPNs can suspend or terminate employees, or effectively
recommend such actions.
4. Hiring/effective recommendation
LPNs do not have the authority to hire employees.
There is no evidence of LPNs participating in the hiring
process. The only record evidence on hiring was the
testimony of the DON that she asked one of the LPNs for
her opinion of a candidate the DON was interviewing for
the position of temporary “MDS.” The DON testified
that the LPN did not give a recommendation on whether
the individual should be hired. Further, the record fails
to reflect whether the candidate was hired, or whether the
candidate was hired solely on the input from the LPN
without any independent review of the candidate by the
DON, the administrator, or other management official.
The mere participation in the hiring process, particularly
where higher management officials such as the DON and
the administrator participate in the process, absent spe-
cific evidence of authority to effectively recommend
hire, is insufficient to establish supervisory authority.
Training School at Vineland, 332 NLRB 1412, 1417
(2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 946
5. Layoff/recall and effective recommendation
The Employer again points to its job descriptions for
the source of its contention that LPNs have the authority
to recommend staffing changes affecting the layoff and
recall of employees. The job descriptions state that
LPNs are to “recommend changes needed in staff as to
number of aides and kind of work performed.” (Emp.
Exh. 1.) The Employer’s DON and the administrator
both testified that LPNs “could” recommend staffing
changes which might result in employees being laid off
or recalled. Neither offered any specific instances of
recommendations by LPNs leading to a layoff or recall
of staff, or leading to any change in the staffing numbers.
The testimony of the DON and the administrator is
merely conclusionary and not sufficient to establish su-
pervisory authority. The only record evidence of any
LPN making a recommendation was the testimony of the
DON that she received a “recommendation” from an
LPN on staffing, but the DON could not recall what the
LPN’s “comment” was. The DON testified that no staff-
ing changes were made as a result of the LPN’s com-
ment. Thus, even assuming LPNs did make recommen-
dations on staffing, there is no evidence such recommen-
dations are effective. The job descriptions, as noted
above, are not controlling and cannot by themselves es-
tablish supervisory authority. Avante at Wilson, Inc.,
supra at 1057; Training School at Vineland, supra at
1416.
6. Secondary indicia
The Employer presented evidence of secondary indicia
of supervisory status, including evaluating the CNAs,
and filling out accident and incident reports. As previ-
ously noted, secondary indicia, without more, is insuffi-
cient to establish supervisory status. International
Transportation Service, 344 NLRB 279, 285 (2005), enf.
denied on other grounds 449 F.3d 160 (2006); Ken-Crest
Services, 335 NLRB 777, 779 (2001). While the admin-
istrator testified that the LPNs evaluate the work of the
CNAs, the administrator gave no specific details of an
LPN evaluating a CNA. The ability to evaluate is not
one of the indicia of supervisory status set out in Section
2(11) of the Act. Williamette Industries, 336 NLRB 743
(2001). Accordingly, when the evaluation does not, by
itself, affect the wages or job status of the employee be-
ing evaluated, the individual performing the evaluation
will not be found to be a statutory supervisor. Id. Here,
the record is devoid of any probative evidence that LPNs
evaluate CNAs, or that such evaluations have any impact
on the CNAs’ job status, which lack of evidence is con-
strued against the Employer. Dean & Deluca New York,
338 NLRB 1046, 1048 (2003).
Filling out incident and accident reports also is not
listed as one of the supervisory criteria in Section 2(11)
of the Act. The Employer did not submit any of the re-
ports filled out by the LPNs, and the record fails to re-
flect whether other management officials such as the
DON or the administrator also sign these reports. The
record reflects the incident and accident reports are used
to report accidents and other significant events involving
the residents. These reports are not used to document
conduct by the CNAs or other employees. There is no
evidence that filling out these reports leads to any per-
sonnel actions for employees or that they affect the terms
and conditions of employment of the CNAs or any other
employees. The reportorial function of writing out inci-
dent and accident reports does not require the use of in-
dependent judgment and does not confer supervisory
status on the LPNs. Chevron Shipping Co., 317 NLRB
379, 381 (1995); see also Ohio River Co., 303 NLRB
696, 716 (1991).
The Employer has failed to meet its burden of estab-
lishing by a preponderance of the evidence that the LPNs
are supervisors under Section 2(11) of the Act. Accord-
ingly, I shall include them in the unit found appropriate
here.
B. Psychiatric Rehabilitation Services Coordinator
(PRSC)
1. Responsible direction
The Employer contends the PRSCs are supervisors
primarily because they have the authority to responsibly
direct the CNAs in how they track the inappropriate or
problem behaviors of the residents. The administrator
testified that the PRSC could direct CNAs on how to
document these behaviors and how to improve on their
tracking of these behaviors. The administrator did not
identify any CNA who received such instructions from
the PRSC and there is no evidence that PRSCs have any
CNAs who report directly to them. The administrator
also testified, in response to leading questions from the
Employer’s counsel, that PRSCs could be held account-
able through discipline if the CNAs did not properly
document the behaviors. There is no evidence that the
PRSCs have ever been disciplined or otherwise held ac-
countable for the performance of CNAs or any other em-
ployees. Moreover, the record contains no evidence that
the PRSCs have ever been told they are subject to ad-
verse consequences for the poor work performance of
CNAs or any other employees. The record also doesn’t
reflect any examples of PRSCs using independent judg-
ment in directing employees. This lack of evidence is
construed against the Employer. Dean & Deluca New
SPRINGFIELD TERRACE LTD 947
York, supra; Michigan Masonic Home, 332 NLRB 1409
(2000).
2. Secondary indicia
The Employer also relies on secondary indicia to es-
tablish the supervisory status of the PRSCs. The Em-
ployer relies on the job description for the PRSCs which
states that PRSCs are to teach, evaluate, schedule, and
train PRSC aides. (Emp. Exh. 1.) There are currently no
PRSC aides, and there is no evidence that the PRSCs
schedule any employees. There is also no specific record
evidence of a PRSC teaching, evaluating, or training any
employees, other than the tracking systems discussed
above. In any event, the authority to teach, train, and
evaluate are not supervisory indicia listed in Section
2(11) of the Act, and therefore even if the PRSCs exer-
cised such authority, it would not constitute supervisory
status.
Finally, the Employer relies on its “chain of com-
mand” set forth in the collective-bargaining agreement to
indicate that the PRSCs have supervisory authority. The
Employer argues that because the PRSCs are placed in
the chain of command above other individuals who have
the authority to hire and fire, the PRSCs must also have
the authority to hire and fire. However, the record fails
to establish that any of the individuals listed below the
PRSCs have the authority to hire and fire or any other
supervisory authority. The activities director, care plan
coordinator, and the social services director who are be-
low the PRSCs in the chain of command are disputed
classifications and, as noted below, there is no evidence
the individuals in these classifications possess supervi-
sory authority. The parties did not stipulate to the super-
visory status of any of the other individuals listed below
the PRSCs in the chain of command and their supervi-
sory status is not an issue in these proceedings. Also, the
Employer’s self-created chain of command is paper au-
thority only and does not confer supervisory status on the
PRSCs or on any of the other disputed classifications.
See Avante at Wilson, Inc., 348 NLRB 1056, 1057
(2006); Training School at Vineland, 332 NLRB 1412,
1416 (2000). I conclude that the Employer has not met
its burden of establishing by a preponderance of the evi-
dence that the PRSCs are supervisors. Accordingly, I
shall include the two PRSCs in the unit found appropri-
ate here.
C. Social Services Director
The Employer contends that the job description for the
social services director indicates that this individual pos-
sesses supervisory authority. The job description states
that the social services director assists the social services
consultant, which is an outside employee not employed
by the Employer, in planning and “directing” the social
services program. “Directing” a program, however, does
not mean the PRSCs “direct” employees. The job de-
scription states the social services director can recom-
mend changes to policies and procedures for the social
services program to the outside consultant or the admin-
istrator. The social services director is also supposed to
participate in the review of department policies and as-
sists in the development of the department budget. There
is no record evidence, however, that the social services
director actually performs any of these responsibilities.
More importantly, even if the social services director did
have these responsibilities, such responsibilities do not
establish supervisory authority. None of these duties are
listed as supervisory criteria in Section 2(11) of the Act,
and there is no record evidence that the performance of
any of these duties affects the terms and conditions of the
CNAs or any other employee. The Employer has failed
to establish that the social services director possesses any
of the 12 indicia of supervisory status, or that he exer-
cises independent judgment in exercising such authority.
Accordingly, I shall include the social services director
in the unit found appropriate.
D. Activity Director
The Employer contends the activity director can assign
and responsibly direct CNAs as well as housekeeping
employees in carrying out the various activities for the
residents and in keeping the facility’s beauty parlor
clean. The Employer also contends that the activity di-
rector can hire and fire, and can effectively recommend
such actions.
1. Assignment of work
The activity director prepares a monthly schedule of
activities for the residents which she then administers by
herself during the week. There are no activity aides and
no particular CNAs or other employees who are currently
designated to function as activity aides during the week.
The record reflects the Employer recently hired an activ-
ity assistant to work on the weekends when the activity
director is not present. The Employer contends the activ-
ity director can assign CNAs to work on the weekends to
carry out the activities scheduled for the weekend. The
job description for the activity director says that the ac-
tivity director is to “recruit, orientate, and supervise the
volunteer program.” There is no evidence that the Em-
ployer currently employs volunteers in the activity de-
partment or that they were recruited by the activity direc-
tor.
The activity director can ask CNAs to work on the
weekends to conduct the activities for the residents. The
activity director cannot ask a CNA to volunteer if that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 948
CNA is already scheduled to work in another department
or if that CNA would earn overtime by working the
weekend. The DON testified that the activity director
can only ask for volunteers among CNAs who are not
already scheduled to work in another department. The
activity director testified that she asks the DON or ad-
ministrator for approval each week before approaching
any CNAs to ask them to volunteer for the weekend.
There is no evidence that the activity director can compel
CNAs to work the weekends, and the record reflects that
there were no activities on at least one weekend when no
CNA volunteered to work. Randomly calling CNAs and
asking them to come in to work voluntarily, without the
ability to compel a CNA to perform the work, does not
confer supervisory status. Golden Crest Healthcare Cen-
ter, supra at 729.
The Employer also argues that the activity director
“assigns” a housekeeping employee to clean up the
beauty parlor after residents have haircuts. The Em-
ployer again relies on its own job description which says
that the beauty parlor will be cleaned with the activity
director’s supervision. The record does not reflect any
specific instances of the activity director assigning any
housekeeping employee to clean the room used as a
beauty parlor. There is no evidence the activity director
monitors the cleaning of this room or that she determines
whether the room is properly cleaned. The administrator
testified that if a problem occurred with how the room
was cleaned, the activity director would report that to the
housekeeping supervisor who would then handle the
problem. This testimony indicates it is actually the
housekeeping supervisor who is responsible for the work
performance of the housekeeper, not the activity director.
The Employer has failed to present any specific record
evidence that the activity director assigns housekeepers
to clean the beauty parlor or that she does so using inde-
pendent judgment. This lack of evidence is construed
against the Employer. Dean & Deluca New York, supra.
2. Responsible direction
The Employer argues that the activity director “di-
rects” the work of the CNAs who carry out the activities
on the weekends. The Employer failed to present spe-
cific record evidence of the activity director providing
directions to any CNA. The activity director is not at the
nursing home during the weekend and is not able to ob-
serve the work performance of the CNAs who perform
the activities on the weekends. Even assuming the activ-
ity director did direct the work of the CNAs who perform
the activities, there is no record evidence that the activity
director is held accountable for such work performance
by facing the prospect of adverse consequences for the
poor performance of the CNAs. There is no evidence
that the activity director has ever been disciplined for the
performance of a CNA or that she has ever been told that
she is subject to discipline or other adverse consequences
based upon the performance of the CNAs. The record
reflects there was one weekend when there were no ac-
tivities for the residents and there is no evidence the ac-
tivity director was held accountable for this situation or
that she received any adverse consequences. Finally,
there is no evidence of the activity director using inde-
pendent judgment in directing the work of the CNAs.
3. Firing/hiring/effective recommendation
Finally, the Employer also argues that the activity di-
rector has the authority to hire and fire. The administra-
tor testified that the activity director had the authority to
fire employees. The administrator did not give any spe-
cific examples of the activity director terminating a par-
ticular employee or effectively recommending the termi-
nation of an employee. There is no record evidence that
any CNA or any other employee was terminated solely
by the activity director, or solely based on the recom-
mendation of the activity director. The administrator’s
testimony is merely conclusionary and not sufficient,
absent specific record evidence of independent judgment,
to establish that the activity director has the authority to
fire employees. Golden Crest Healthcare Center, supra
at 731.
Similarly, there is no record evidence that the activity
director can hire employees. There is only one record
example of the activity director’s involvement in the hir-
ing of an employee. The activity director testified that
she was asked by the administrator to contact a particular
prospective employee and talk to the employee. The
activity director had a 5 to 10 minute face-to-face meet-
ing with the employee in which they discussed the facil-
ity. After the meeting with the employee, the activity
director told the administrator that the employee “looked
okay,” but did not make any recommendation on whether
the employee should be hired. The administrator then
instructed the activity director to call the employee and
tell the employee she could start the next day. The re-
cord fails to reflect what weight, if any, the administrator
gave to the input of the activity director in making the
determination to hire the employee. The record fails to
reflect whether the administrator or some other manage-
ment official had also interviewed the employee, or
whether the administrator relied solely on the activity
director’s comments regarding the employee. The mere
fact that the activity director participated in the hiring
process by talking to an employee as she was directed to
do, where higher management officials such as the ad-
ministrator also participate in the process, absent evi-
dence of the authority to effectively recommend hire,
SPRINGFIELD TERRACE LTD 949
does not establish supervisory status. Training School at
Vineland, supra at 1417. The record reflects the Em-
ployer recently hired an activity assistant to perform the
activities on the weekends and there is no evidence the
activity director had any involvement in the hiring of this
employee. Accordingly, I find that the Employer has not
met its burden of establishing that the activity director is
a supervisor under Section 2(11) of the Act.
IV. CONCLUSIONS AND FINDINGS
Based on the entire record in this matter and in accor-
dance with the discussion above, I conclude and find as
follows.
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 in this case.
3. The Petitioner claims to represent certain employees
of the Employer.
4. A question affecting commerce exists concerning
the representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
5. The following employees of the Employer constitute
a unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All full-time and regular part-time licensed practical
nurses (LPNs), psychiatric rehabilitation services coor-
dinators (PRSCs), social services director and activity
director employed by the Employer at its Springfield,
Illinois facility, EXCLUDING certified nurses assis-
tants (CNAs), housekeepers, laundry aides, cooks, ac-
tivity aides, maintenance employees, registered nurses
(RNs), director of nursing, office clerical and profes-
sional employees, guards and supervisors as defined in
the Act.3
V. DIRECTION OF ELECTION
The National Labor Relations Board will conduct a se-
cret ballot election among the employees in the unit
found appropriate above. The employees will vote
whether or not they wish to be represented for purposes
of collective bargaining by SEIU Healthcare Illinois and
Indiana. The date, time, and place of the election will be
specified in the notice of election that the Board’s Subre-
gional Office will issue subsequent to this Decision.

3 The position of care plan coordinator was vacant at the time of the
hearing. If the position is filled by the time of the election, I will per-
mit the incumbent to vote subject to the challenge ballot procedures.