Glenmark Assoc Inc v. NLRB , 147 F.3d 333 ( 1998 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GLENMARK ASSOCIATES,
INCORPORATED, d/b/a Cedar Ridge
Nursing and Rehabilitation Center,
Petitioner,
No. 97-1403
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
GLENMARK ASSOCIATES,
INCORPORATED, d/b/a Carehaven of
Point Pleasant,
Petitioner,
No. 97-1404
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
No. 97-1514
GLENMARK ASSOCIATES,
INCORPORATED, d/b/a Cedar Ridge
Nursing and Rehabilitation Center,
Respondent.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
No. 97-1515
GLENMARK ASSOCIATES,
INCORPORATED, d/b/a Carehaven of
Point Pleasant,
Respondent.
On Petitions for Review and Cross-applications
for Enforcement of Orders of the
National Labor Relations Board.
(9-CA-34081, 9-CA-34204)
Argued: December 3, 1997
Decided: June 19, 1998
Before NIEMEYER and WILLIAMS, Circuit Judges, and JONES,
United States District Judge for the Western District of Virginia,
sitting by designation.
_________________________________________________________________
Petitions for review granted and cross-applications for enforcement
denied by published opinion. Judge Williams wrote the majority opin-
ion, in which Judge Niemeyer concurred. Judge Jones wrote a dissent-
ing opinion.
_________________________________________________________________
COUNSEL
ARGUED: Glenn Patrick Hare, STEPTOE & JOHNSON, Martins-
burg, West Virginia, for Glenmark. Susan M. Pavsner, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Board. ON
BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Asso-
ciate General Counsel, Aileen A. Armstrong, Deputy Associate Gen-
2
eral Counsel, Charles Donnelly, Supervisory Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Board.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
This case requires us to decide whether nurses employed in nursing
homes who have significant management responsibility in the facili-
ties during the evening shifts and on weekends and who also have
meaningful roles in the assignment and discipline of certified nursing
assistants (CNAs) meet the statutory definition of supervisor under
§ 2(11) of the National Labor Relations Act (the NLRA or the Act).
See 29 U.S.C.A. § 152(11) (West 1973). We join the Sixth Circuit1
in finding untenable the National Labor Relations Board's (NLRB or
the Board) conclusion that these nurses, who are the senior staff mem-
bers and patient care coordinators for more than two-thirds of the
week, do not exercise independent judgment in the performance of
their duties. Therefore, we grant Glenmark Associates, Inc.'s (Glen-
mark) petitions for review and deny the NLRB's cross-petitions for
enforcement.
I.
This case arises on Glenmark's consolidated petitions for review of
two NLRB Decisions and Orders in which the Board determined that
Glenmark had committed unfair labor practices at two of its West
Virginia nursing homes, Cedar Ridge Nursing and Rehabilitation
Center (Cedar Ridge) and Carehaven of Point Pleasant (Point Pleas-
ant), by refusing to deal with the newly organized nursing unions at
_________________________________________________________________
1 See Caremore, Inc. v. NLRB, 129 F.3d 365 (6th Cir. 1997) (determin-
ing that nursing home Licensed Practical Nurses (LPNs) met the defini-
tion of supervisor under § 2(11) of the NLRA). But see Beverly Enters.
--Penn., Inc. v. NLRB, 129 F.3d 1269 (D.C. Cir. 1997) (enforcing the
NLRB's order determining that LPNs were not supervisors); Providence
Alaska Med. Ctr. v. NLRB, 121 F.3d 548 (9th Cir. 1997) (2-1 decision)
(holding that charge nurses were not statutory supervisors).
3
those facilities in violation of § 8(a)(1) and (a)(5) of the Act. See 29
U.S.C.A. § 158(a)(1), (a)(5) (West 1973). Glenmark does not deny its
refusal to bargain with the unions. It, however, contends that the
refusal was justified, and therefore not an unfair labor practice,
because the Cedar Ridge and Point Pleasant bargaining units were
illegally organized. Glenmark claims that both bargaining units con-
tain nurses who meet the definition of "supervisor" under NLRA
§ 2(11), see 29 U.S.C.A. § 152(11) (West 1973), and therefore are
prohibited from unionizing. The nurses at issue at the Cedar Ridge
and Point Pleasant facilities are somewhat differently situated. There-
fore, we will discuss separately the factual backgrounds leading to the
present dispute.
A. Cedar Ridge
Cedar Ridge is a 120-bed nursing home located in Sissonville,
West Virginia. The nursing staff consists of: one Director of Nursing,
one Assistant Director of Nursing, three full-time Registered Nurses
(RNs), one part-time RN, twenty-two Licensed Practical Nurses
(LPNs), and between fifty-eight and sixty CNAs. Because Cedar
Ridge provides twenty-four hour care to its patients, its staff works
on a three shift schedule, i.e., each twenty-four hour day is divided
into three eight-hour shifts. The Director of Nursing and the Assistant
Director of Nursing generally work only during the day shift on Mon-
day through Friday. The RNs operate on a separate twelve-hour shift
schedule. RNs sometimes work weekend hours and participate in an
on-call rotation system. RNs serve as charge nurses when they are on
the floor. When there is no RN coverage, however, the senior LPN
on the shift takes over the charge nurse's responsibilities.2 Any LPN
employed at Cedar Ridge could potentially serve as the charge nurse
for a particular shift.
Cedar Ridge is divided into two wings. Each wing contains sixty
beds and is divided into two halls known as the"long hall" and the
_________________________________________________________________
2 The LPN charge nurse's job description states: "The LPN charge
nurse, acting under the direction of the RN Director of Nurses, plans,
organizes, directs, and supervises the activities of all employees assigned
to his/her tour of duty. This may be a unit, or may be the entire facility
on holidays, weekends, evenings or nights." (J.A. at 236.)
4
"short hall." Each long hall contains thirty-five beds, whereas each
short hall contains twenty-five beds. Of the two short halls, one is
reserved for patients requiring a higher degree of nursing care. The
LPNs and CNAs on staff are each assigned to one of the four halls.
LPNs' duties primarily relate to direct patient care including: dis-
pensing medication, performing supplemental feedings, assisting reg-
ular feedings, checking room conditions, ensuring that residents are
clean, dry, and regularly turned, charting vital signs, noting residents'
intake and output, and reporting patient conditions at the end of the
shift. LPN duties, however, also include managing CNAs in certain
circumstances. If a staff shortfall occurs for any reason, floor or
charge LPNs reassign CNAs to ensure adequate patient care. Addi-
tionally, if a CNA assigned to a particular shift does not report to
work, the LPN charge nurse calls off-duty CNAs to attain an adequate
staff level at the facility. If a CNA makes a special scheduling request
during a shift, the LPN floor nurse has the authority to approve or dis-
approve the request. LPNs are also involved in the discipline of aides.
If a CNA does not perform his job in accordance with facility proce-
dures, an LPN can take one of several steps. For a minor infraction,
the LPN may counsel the CNA on the proper procedure, may file a
written "verbal correction notice" with the Director of Nursing, or
take both actions. For serious infractions, the LPN witnessing the
behavior may immediately suspend the CNA. The duties of CNAs at
Cedar Ridge involve more basic, personal hygiene-oriented duties
than do the LPNs' responsibilities. For example, CNAs turn, bathe,
dress, provide ice for, brush the teeth of, and change the linens and
clothing for patients.
On May 1, 1995, District 1199, The Health Care and Social Ser-
vices Union, SEIU, AFL-CIO (the Union) filed a petition in the
NLRB's regional office requesting that an election be held so that the
Union could be certified as the exclusive bargaining representative for
the twenty-two LPNs at Cedar Ridge. On June 14, 1995, the NLRB's
Regional Director3 for Region 9 determined that the unit comprised
_________________________________________________________________
3 At the time of the Decision and Direction of Election for Cedar Ridge,
the NLRB had in place an Acting Regional Director. By the time the
Decision and Direction of Election for Point Pleasant was issued a
Regional Director had been appointed. For convenience, we will refer to
each as "the Director."
5
of "[a]ll full-time and regular part-time licensed practical nurses
(LPNs) employed by [Glenmark] at its Sissonville, West Virginia
facility, excluding all professional employees, guards, and supervisors
as defined in the act" was appropriate. (J.A. at 510.) Thus, the Direc-
tor ordered an election to determine whether the LPNs in the unit
were interested in union representation. Twenty-one LPNs voted in
the election. Eleven LPNs voted in favor of union representation and
ten voted against it. A simple majority having been attained in the
representation vote, the Director certified the Union as the exclusive
collective bargaining representative of the Cedar Ridge LPNs.
B. Point Pleasant
Point Pleasant is a 68-bed facility in Point Pleasant, West Virginia.
The nursing staff consists of: one Director of Nursing, one Adminis-
trative Nurse/MDS Coordinator, two RNs, ten LPNs, and between
thirty-one and forty CNAs. Point Pleasant also provides twenty-four
hour care to its patients. The staff works on a three shift schedule;
each twenty-four hour day is divided into three eight and one-half
hour shifts. The Director of Nursing and the Administrative
Nurse/MDS Coordinator generally work traditional forty hour sched-
ules during the day shift on Monday through Friday. None of the
administrative staff are on call or carry a beeper. The RNs and LPNs
perform essentially identical tasks at Point Pleasant, with the excep-
tion of the Administrative Nurse/MDS Coordinator 4 who has addi-
tional responsibilities for scheduling staff and training CNAs.
At Point Pleasant, if one of the RNs is on duty she is automatically
designated the charge nurse. On any shift with only LPNs, one is des-
ignated the charge nurse on the basis of seniority. 5 Any of the LPNs
could be the senior LPN on a given shift and could be designated as
the charge nurse. As part of their responsibilities, LPNs and RNs at
Point Pleasant oversee the work of the CNAs. For example, they file
an absence report when a CNA does not show up for work. In addi-
tion, the LPN or RN serving as charge nurse on a particular shift
_________________________________________________________________
4 Although an RN, the Administrative Nurse/MDS coordinator was not
included in the Point Pleasant bargaining unit.
5 The Cedar Ridge and Point Pleasant LPN charge nurse job descrip-
tions are identical. See ante n.2.
6
assures that, whenever CNA staffing is deficient, adequate coverage
is restored through a combination of calling in non-scheduled staff
and reorganizing the coverage arrangement of the staff present at the
facility. All LPNs and RNs have disciplinary responsibilities. When
an RN or LPN sees that a CNA is not properly caring for a patient
or has violated administrative policy,6 she has several options. She
may counsel the CNA on proper procedure, file a written "verbal cor-
rection notice," or both.
The terms and conditions of the Point Pleasant CNAs' employment
are governed by a collective bargaining agreement. 7 That agreement
dictates the procedures for: seniority, lay-off, promotion, hours of
work, overtime, call-in work, overtime pay, holidays, personal days,
bonus days, vacation, sick leave, bereavement leave, leave of absence,
medical leave, military leave, jury duty, union leave, discipline and
discharge, and grievances.
The disciplinary system mandated by the CNA agreement is a pro-
gressive one. When an infraction occurs, the first step in CNA disci-
pline is verbal counseling which is documented by a written verbal
correction report. The second step of the progressive discipline proce-
dure is the issuance of a written warning. The third step is suspension
without pay, and the final step is discharge. As noted earlier, RNs and
LPNs complete the first step in the disciplinary process by filing writ-
ten verbal correction reports.
On January 16, 1996, the Union sought certification as the exclu-
sive bargaining representative of the LPNs and RNs at Point Pleasant.
After a hearing, the Director determined that an election should be
held in which the RNs and LPNs would have an opportunity to vote
for union representation. In the election held on June 20, 1996, eleven
nurses voted. Nine nurses voted for representation in a unit containing
both RNs and LPNs. Shortly thereafter, the Director certified the bar-
gaining unit as the exclusive collective bargaining representative of
the Point Pleasant nurses.
_________________________________________________________________
6 For example, an administrative policy prohibits taking an unautho-
rized break.
7 The Point Pleasant CNAs organized and became a part of the Union
in 1992. Their unionization is not at issue in this appeal.
7
II.
After the Union was certified at each facility, it requested that
Glenmark enter into negotiations. Glenmark, so that it could obtain
judicial review of the certification, refused. The Union thereafter filed
unfair labor practice charges. The NLRB's General Counsel brought
unfair labor practice claims against Glenmark based on its refusal to
bargain. The Board granted summary judgment against Glenmark
because "[a]ll representation issues raised by [Glenmark] were or
could have been litigated at the prior representation proceeding." (J.A.
at 1127, 1131.)
Glenmark filed petitions seeking review of the Board's final orders
determining that their refusal to bargain with the Union at its Cedar
Ridge and Point Pleasant facilities was violative of§ 8(a)(1) and
(a)(5) of the Act. See 29 U.S.C.A. § 158(a)(1), (a)(5) (West 1973).
The NLRB cross-petitioned for enforcement of its orders.
III.
The question of whether a specific employee is a supervisor is a
particularly important one. While the Act protects the rights of certain
employees to unionize, see 29 U.S.C.A. § 157 (West 1973), it does
not extend those rights to employees who meet the definition of
supervisor set out in § 2(11), see 29 U.S.C.A. § 152(3) (West 1973).
Therefore, if the nurses at each facility meet the definition of supervi-
sor, they must be excluded from bargaining units.
The Board applies an ad hoc, case-by-case analysis when deciding
whether employees are supervisors as defined by§ 2(11) of the
NLRA. See American Fed'n of Television & Radio Artists, Cleveland
Local v. Storer Broad., 745 F.2d 392, 399 (6th Cir. 1984) (reviewing
case law discussing supervisory status and determining that there is
no bright line rule governing whether a particular job is supervisory).
The question of whether individuals are supervisors is a mixed ques-
tion of fact and law. See NLRB v. Lauren Mfg. Co., 712 F.2d 245, 247
(6th Cir. 1983). As such, the Board's factual determinations regarding
the supervisory status of the nurses in question should be overturned
only if there is not substantial evidence in the record as a whole to
support its finding. See NLRB v. St. Mary's Home, Inc., 690 F.2d
8
1062, 1067 (4th Cir. 1982). Substantial evidence is"such relevant evi-
dence as a reasonable mind might accept as adequate to support a
conclusion." Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229
(1938). "As to the Board's application of the law to the facts, we must
sustain the Board's determination if it is reasonable and consistent
with the Act." NLRB v. Peninsula Gen. Hosp. Med. Ctr., 36 F.3d
1262, 1269 (4th Cir. 1994).
If a review of the record, including all evidence presented to the
Board, both in favor of the Board's position and opposed to the
Board's position, reveals that the evidence in support of the Board's
determination is deficient, we may deny enforcement of the Board's
order. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951). Additionally, "courts must carefully scrutinize the Board's
finding and the record on supervisory status." St. Mary's Home, Inc.,
690 F.2d at 1067. As we said in St. Mary's Home :
And this [thorough examination of the evidence] should be
particularly true when the Board is determining supervisory
status because of the inconsistency in the Board's applica-
tion of the statutory definition and of the factors to be used
in determining such application. So manifest has this incon-
sistency been that a commentator recently has aptly
observed that "the Board has [so] inconsistently applied the
[statutory] definition" of supervisor as to cause one neces-
sarily to speculate "that the pattern [of Board decisions on
supervisory status] displays an institutional or policy bias on
the part of the Board's employees" as illustrated by a prac-
tice of adopting that "definition of supervisor that most wid-
ens the coverage of the Act, the definition that maximizes
both the number of unfair labor practice findings it makes
and the number of unions it certifies."
Id. (quoting Note, The NLRB and Supervisory Status: An Explanation
of Inconsistent Results, 94 Harv. L. Rev. 1713, 1713-14, 1721 (1981)
(all but first alteration in original)).
We turn now to the specific questions of whether the LPNs at
Cedar Ridge and the LPNs and RNs at Point Pleasant meet the statu-
tory definition of supervisor under the NLRA. Upon a thorough
9
examination of the record, we determine that there is not substantial
evidence supporting the Board's conclusion that these nurses are not
supervisors.
The NLRA defines the term "supervisor" as:
[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with
the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
29 U.S.C.A. § 152(11) (West 1973). As the statutory language makes
clear, an employee must meet three criteria to qualify as a supervisor.
First, the employee must have the authority to perform at least one of
the twelve enumerated duties. See Monongahela Power Co. v. NLRB,
657 F.2d 608, 612 (4th Cir. 1981) (stating that the employee need per-
form only one of the listed tasks to qualify as a supervisor). It is not
necessary that the employee actually exercise the authority. See NLRB
v. Southern Seating Co., 468 F.2d 1345, 1347 (4th Cir. 1972) (noting
that the relevant inquiry is whether authority has been delegated not
whether it has been exercised) (citing Turner's Express, Inc. v. NLRB,
456 F.2d 289, 292 (4th Cir. 1972)). Second, the employee's authority
must promote the interest of the employer. See NLRB v. Health Care
& Retirement Corp., 511 U.S. 571, 583 (1994) (holding that a nurse's
patient care satisfies § 2(11)'s "in the interest of the employer"
requirement). Finally, the employee's exercise of authority must
require the use of independent judgment. The statutory language dis-
tinguishes independent judgment from actions that are merely routine
or clerical. See 29 U.S.C.A. § 152(11) (West 1973). Both parties
agree that the issue of whether the nurses at Cedar Ridge and Point
Pleasant satisfy the third factor is at the heart of this controversy. As
a result we must determine whether the nurses in question exercise
independent judgment or merely perform routine or clerical duties.
10
A. Independent Judgment
The Board's interpretation of the independent judgment require-
ment is central to the present dispute. The NLRB concludes that the
nurses at Cedar Ridge and Point Pleasant are not supervising the
CNAs within the meaning of NLRA § 2(11), but are rather just inci-
dentally directing the work of less skilled employees.8 The Board
_________________________________________________________________
8 This issue of the supervisory status of nurses serves as another exam-
ple of the NLRB's continuing effort to modify the plain language of
§ 2(11). In the late 1980s and early 1990s, the Board decided that the
unionization of LPNs and RNs should not be hindered by their potential
supervisory status. As a result of that policy determination, the Board
began utilizing an interesting interpretation of the requirement that the
supervisor's actions must be taken in the interest of his employer. See 29
U.S.C.A. § 152(11) (West 1973). Specifically, the Board determined that
nurses were not acting in the interest of their employers because the
supervisory actions nurses undertook were in the interest of patients.
This application of Board policy split the circuits. Compare Health Care
& Retirement Corp. v. NLRB, 987 F.2d 1256 (6th Cir. 1993) (declining
to enforce the Board's order because it was neither rational nor consis-
tent with circuit precedent or the NLRA), with Waverly-Cedar Falls
Health Care Ctr., Inc. v. NLRB, 933 F.2d 626 (8th Cir. 1991) (determin-
ing that there was substantial evidence to support the Board).
The Supreme Court intervened to resolve the dispute in the lower
courts and determined that the NLRB's interpretation of the act -- that
supervisory actions promoting patient care in the health care industry
were not for the benefit of the employer -- was not rational and consis-
tent with the NLRA. See NLRB v. Health Care & Retirement Corp., 511
U.S. 571, 576 (1994). The Court concluded that the Board "has chosen
. . . to rely on an industry-wide interpretation of the phrase `in the interest
of the employer' that contravenes precedents of this Court and has no
relation to the ordinary meaning of the language." Id. at 583.
After the Supreme Court's ruling, the NLRB corrected its interpreta-
tion of "in the interest of the employer," and it began this latest litigation
--attacking the supervisory status of nurses on the ground that nurses do
not exercise independent judgment, but rather just provide routine guid-
ance to less skilled employees. See Caremore, Inc. v. NLRB, 129 F.3d
365 (6th Cir. 1997); Beverly Enters.--Penn., Inc. v. NLRB, 129 F.3d
1269 (D.C. Cir. 1997); Providence Alaska Med. Ctr. v. NLRB, 121 F.3d
548 (9th Cir. 1997).
We are not the first court to wonder whether this new interpretation is
an end run around an unfavorable Supreme Court decision in order to
11
explains the distinction it is drawing in the following terms: "[S]killed
workers cannot be regarded as supervisors simply because they make
decisions about their work that might also define what needs to be
done by their assistants." (Respondent's Br. at 25.) Based on the facts
presented to it, the Board determined that the nurses in question do
not meet the statutory definition of supervisors because they are
_________________________________________________________________
promote policies of broadening the coverage of the Act, maximizing the
number of unions certified, and increasing the number of unfair labor
practice findings it makes rather than explicate a well-reasoned interpre-
tation of the NLRA. See Caremore, Inc., 129 F.3d at 371 ("The NLRB's
position generally has been that supervisory status is almost never to be
accorded nurses whose supervisory authority is exercised over less-
skilled professionals in the interest of patient care . . . . the NLRB contin-
ues to misapprehend both the law and its own place in the legal system
. . . ."); St. Mary's Home, Inc., 690 F.2d at 1067 (noting that the Board
had been criticized for its policy bias).
Credibility is as important to an agency appearing before us as it is to
any other litigant. In this regard, we note that this Court has been sharply
critical of supervisory status determinations, see St. Mary's Home, Inc.,
690 F.2d at 1067, and that we have recently criticized the Board's ques-
tionable positions in several other areas, see Case Farms of North Caro-
lina, Inc. v. NLRB, 128 F.3d 841, 850 (4th Cir. 1997) (Williams, J.
concurring) (expressing "concern with the Board's apparent disregard for
the decisions of the Circuit Courts"), cert. denied, 118 S. Ct. 1522
(1998); Be-Lo Stores v. NLRB, 126 F.3d 268, 273 (4th Cir. 1997) (hold-
ing that the Board did not properly analyze Gissel in reaching a determi-
nation that mandatory bargaining was an appropriate remedy); NLRB v.
D&D Enters., Inc., 125 F.3d 200, 206 (4th Cir. 1997) (declining to
enforce an unfair labor practice order because the Board did not follow
this Circuit's precedent); Performance Friction Corp. v. NLRB, 117 F.3d
763, 768 (4th Cir. 1997) (noting that the Board's order requiring an
employer to rescind a disciplinary policy and rehire all workers termi-
nated under that policy overstepped the Board's remedial authority), cert.
denied, 66 U.S.L.W. 3755 & 66 U.S.L.W. 3757 (U.S., May 26,
1998)(No. 97-1340); Industrial Turnaround Corp. v. NLRB, 115 F.3d
248, 253-54 (4th Cir. 1997) (noting that the NLRB analyzed a case aris-
ing in the Fourth Circuit under its own law, rather than our Circuit prece-
dents). This troubling pattern leads us to the conclusion that the Board
should reconsider its single-minded pursuit of its policy goals without
regard for the supervisory role of the Third Branch.
12
highly skilled employees who are merely sharing their knowledge and
expertise with their lesser skilled co-workers.
Professionals are by definition highly skilled employees whose
jobs require the use of independent judgment. Not all professionals,
however, are supervisors. Professionals routinely use their skills and
exercise independent judgment in the performance of their own
responsibilities. In the case of nurses, they routinely make judgments
regarding how appropriately to treat patients. Some of those profes-
sional judgments would require action by CNAs.9 The Board con-
cludes, however, that because the nurses at Cedar Ridge and Point
Pleasant are highly skilled and routinely exercise independent judg-
ment in the performance of their own duties, sometimes affecting the
duties of a CNA in the process, supervisory status is precluded. The
Board is incorrect. It fails to appreciate the distinction between using
skill and professional judgment to perform a complex job and using
related skills and judgment to manage others. Clearly there is "a dis-
tinction between authority arising from professional knowledge and
authority encompassing front-line management prerogatives." NLRB
v. Health Care & Retirement Corp., 511 U.S. 571, 583 (1994). On the
facts of this case, however, the Board has not correctly drawn that dis-
tinction.
At the core of § 2(11) is the ability to exercise management prerog-
atives. See Northern Virginia Steel Corp. v. NLRB, 300 F.2d 168, 171
(4th Cir. 1962). The twelve statutorily enumerated tasks defining
supervisory authority all represent management power over the future
of an employee -- be it in her initial hiring, day-to-day direction, or
eventual firing. See NLRB v. Southern Bleachery & Print Works, 257
F.2d 235, 239 (4th Cir. 1958) (stating that the essential inquiry is
whether the employer shares the power of management). As we
catalogue below, the record persuades us that these nurses have the
independent authority to exercise their own judgment to discipline
and assign CNAs. The nurses at Cedar Ridge and Point Pleasant make
important supervisory decisions that have serious employment conse-
quences for the CNAs in their charge. Thus, they share the power of
_________________________________________________________________
9 For example, if a nurse noted that a patient was developing bed sores,
she would call a CNA to reposition the patient to remedy the patient's
condition.
13
management in the manner contemplated by the plain language of
§ 2(11).
B. Cedar Ridge
Glenmark asserts that the LPNs at Cedar Ridge are statutory super-
visors because they utilize independent judgment in performing two
of the Act's enumerated criteria: assignment and discipline. The
Board, by summarily adopting the findings made by the Director,
conceded that the LPNs were involved in the assignment and direc-
tion of CNA work because they transferred CNAs among wings to
remedy staff imbalances caused by absenteeism. The Board found,
however, that because LPNs were instructed to follow routine proce-
dures in handling these situations the LPNs were not required to exer-
cise independent judgment. Moreover, while acknowledging that
LPNs may issue "verbal correction reports" to CNAs, the Board deter-
mined that "any final decision on appropriate discipline only occurs
after a thorough review by admitted supervisors." (J.A. at 375.)
According to the Board, the LPNs "simply did not have the indepen-
dent authority to impose discipline on other employees." (J.A. at 375.)
1. Assignment
In its arguments before us, the Board conceded that the LPNs had
the authority to call CNAs in to work and to change their hall assign-
ments at Cedar Ridge if circumstances dictated. The Board does not
argue that this work did not constitute "assignment," one of the twelve
listed supervisory activities under NLRA § 2(11). See 29 U.S.C.A.
§ 152(11) (West 1973). The Board, however, asks us to accept that
maintaining an appropriate staff level (and during that process evalu-
ating whether particular patients on a floor may require additional
medical attention) does not require the exercise of independent judg-
ment. Moreover, the Board contends that any independent judgment
that might be required of the LPNs during any shift could be provided
by the RN on call.10
_________________________________________________________________
10 Whether independent judgment could be provided by the RNs on call
is not the issue before us. Both RNs and LPNs could be supervisors
because both could have appropriate authority. Section 2(11) requires
14
The Board's finding that LPNs exercised no independent judgment
in carrying out their assignment duties is simply unsupported by the
record. There is no evidence presented that LPNs called RNs for con-
sultation about whether to call additional CNAs into work, allow
CNAs to alter their hallway assignments, change CNA break sched-
ules, or let CNAs go home early due to illness or family emergency.
Rather, the record is replete with uncontradicted evidence that LPNs
consistently made independent scheduling decisions like those out-
lined above throughout the course of their shifts. This power to autho-
rize schedule changes and reassign workers rises above the mere
incidental direction of assistants.
For two out of three shifts during the day, and all three shifts over
the weekend, there is no higher authority than the charge nurse at
Cedar Ridge.11 The record testimony of the facility administrator con-
firms this:
Q: [D]o the LPNs have any responsibilities if something
should go awry on that shift when you're not there?
A: When we leave the building and turn the building over
to the charge or the LPNs, RNs in charge, they have total
run of the building . . . .
_________________________________________________________________
only that the employee have the power to perform one of the twelve enu-
merated functions. See Monongahela Power Co. v. NLRB, 657 F.2d 608,
612 (4th Cir. 1981); NLRB v. Southern Seating Co., 468 F.2d 1345, 1347
(4th Cir. 1972). The relevant inquiry is whether the LPNs had the "au-
thority to exercise any one of the statutory powers requiring the use of
independent judgment." NLRB v. St. Mary's Home, Inc., 690 F.2d 1062,
1065 (4th Cir. 1982). The LPNs' authority need not be exclusive.
11 The Board did not discuss the Cedar Ridge LPNs' responsibilities as
charge nurses when it evaluated their supervisory status. By failing to
address the fact that LPNs acted as charge nurses, the Board ignored our
Circuit's precedent in which we assessed a charge nurse's duties and
determined that she met § 2(11)'s requirements. See St. Mary's Home,
Inc., 690 F.2d at 1067. For a discussion of both the importance of the
designation "charge nurse" and our precedent holding that charge nurses
are supervisors under § 2(11) of the NLRA, see post section III.C.3.
15
(J.A. at 323 (Testimony of Rodney Hannah, Cedar Ridge Administra-
tor).) Thus, the charge nurse, often the senior LPN scheduled for the
shift, is "`the highest ranking employee' on the job site at the time to
whom other employees must look for direction." St. Mary's Home,
Inc., 690 F.2d at 1066.
We cannot fathom the Board's position that for more than two-
thirds of the week at a nursing home providing twenty-four hour care,
where patient conditions can change on a moment's notice, there is
no one present at the facility exercising independent judgment regard-
ing proper staff levels and patient assignments. The Administrator's
testimony cited above confirms that the LPNs are left in total control
of the nursing home during evening and weekend hours. Quite obvi-
ously many scheduling decisions made "routinely" by the LPNs at
Cedar Ridge must require independent judgment. The Board mis-
takenly assumes that because there is an established procedure for
handling a particular scheduling situation, nobody is required to think.
In the Board's view, LPNs just mechanically follow established pro-
cedure. The record before us reveals the fallacy of the Board's logic.
Although there is a general procedure in place regarding whom to call
to work should an absence occur, on some occasions the LPNs, either
the charge nurse or any floor nurse, exercise their independent judg-
ment and decide to operate the nursing home or their floor short-
handed. Record testimony demonstrates that LPNs on the floor have
the authority to allow CNAs to leave Cedar Ridge early, and when
that occurs they generally reassign the remaining CNAs to ensure
adequate patient coverage. In other situations, where the charge nurse
is confronted with a floor in which patients are sicker than usual, the
charge nurse may make a decision to assign an additional CNA to that
area.12
_________________________________________________________________
12 The record demonstrates this point:
Q: [H]ow do you determine where a floater is needed?
A: By the number of sick -- well, you know if you have an even
amount of people and you have one extra, then you're going
to put the extra one sometimes where the highest, heaviest
workload is.
Q: And, how do you know where the highest, heaviest workload
is?
A: The number of ill patients on that side.
(J.A. at 162 (Testimony of Robin Batten, LPN).)
16
The authority to assign workers constitutes the power "to put [the
other employees] to work when and where needed." Monongahela
Power Co. v. NLRB, 657 F.2d 608, 613 (4th Cir. 1981). Such deci-
sions are, in our view, inseverable from the exercise of independent
judgment, especially in the health care context where staffing deci-
sions can have such an important impact on patient health and well-
being. An emergency decision regarding the appropriate staff level to
accommodate ill patients requires a fact-specific individualized analy-
sis of not only the patient's condition and the appropriate care, but
also of the special skills of particular staff members. The conclusion
that the Cedar Ridge LPNs exercise the authority to assign CNAs uti-
lizing their independent judgment is sufficient for us to find that the
Cedar Ridge LPNs are supervisors under the act. See NLRB v. St.
Mary's Home, Inc., 690 F.2d 1062, 1066 n.4 (4th Cir. 1982) (collect-
ing additional cases in support of the proposition that finding that an
employee meets one of the twelve listed criteria is enough to confer
supervisory status).
2. Discipline
We next address the Board's finding that Cedar Ridge LPNs did
not discipline CNAs in a manner contemplated by the Act. The Board
determined that the LPNs' verbal counseling of CNAs on how to
properly perform job duties was merely the instruction of less skilled
workers. It found that the verbal correction reports filed by LPNs with
the Director of Nursing were not independent exercises of disciplin-
ary authority because the LPNs did not have the final word on what
disciplinary action would be taken against the CNAs. The Director of
Nursing, in testimony at the hearing before the Director, flatly contra-
dicted the Board's conclusion that LPNs did not participate in disci-
plining CNAs.13
_________________________________________________________________
13 She stated:
Q: Do [the LPNs] discipline employees?
A: Yes, they do.
Q: Do they discipline employees on their own authority or do
they have to have approval from you before they can issue disci-
pline?
A: They don't have to have my approval. They discipline them-
selves on their own judgment.
(J.A. at 42 (Testimony of Cindy Hamon, Director of Nursing).)
17
The NLRA requires only that a supervisor have the ability "effec-
tively to recommend" "discipline." 29 U.S.C.A. § 152(11) (West
1973). Thus, the "relevant consideration is effective recommendation
or control rather than final authority." NLRB v. Yeshiva Univ., 444
U.S. 672, 683 n.17 (1980). "The [NLRA] does not preclude supervi-
sory status simply because the recommendation is subject to a superi-
or's investigation." ITT Lighting Fixtures v. NLRB, 712 F.2d 40, 45
(2d Cir. 1983). We conclude that the LPNs, the highest ranking
employees at the facility for a large portion of its operating hours, and
thus the only witnesses to CNA performance, by filing written verbal
correction reports when CNAs did not properly perform their duties,
effectively recommended discipline. An LPN could choose not to file
the verbal correction report and instead only orally counsel the CNA
on whatever problem he was experiencing. By filing a written report
with the Director of Nursing, the LPN made an independent judgment
to bring improper behavior and patient care to the attention of the
administrator who would follow-up on the report. This report was not
filed for the purpose of enhancing a CNA's skills. The Director of
Nursing admitted that she relied upon the LPN reports to advise her
of problems on the shifts when she was off duty. 14 The LPN's deci-
sion to file a written verbal correction report effectively recom-
mended disciplinary action because filing the report, which stated that
the CNA had either neglected his patient care duties or had violated
one of Cedar Ridge's administrative rules, led to an investigation by
the Director of Nursing. See ITT Lighting Fixtures, 712 F.2d at 45.
Therefore the Board's assertion that the LPNs do not effectively rec-
ommend CNA discipline is erroneous and unsupported by the evi-
dence on the record.
LPNs also had the authority immediately to suspend CNAs for seri-
_________________________________________________________________
14 As the testimony reveals:
Q: Are there CNAs that without the input from the LPN, you
would not be able to say anything about whether they're a good
performer, or a poor performer?
A: Yes, sir, I depend on their input for that, particularly on the
off shifts.
(J.A. at 75 (Testimony of Cindy Hamon, Director of Nursing).)
18
ous breaches of patient care protocol. The Assistant Director of Nurs-
ing at Cedar Ridge confirmed that an LPN suspended a CNA for
rough treatment of a resident. (J.A. at 196 (noting that a CNA had
been "rough with a resident and held a resident's arms and bruised the
resident").) The suspension took place on the 3:00 p.m. - 11:00 p.m.
shift without prior consultation with any RN or administrative staff
member. The decision to suspend the CNA required that the LPN
assess the seriousness of the incident and determine that the CNA's
immediate removal from the presence of patients was appropriate.
The LPN took this non-routine action without consulting any other
staff member. This example illustrates that the LPNs at Cedar Ridge
had the authority to take serious disciplinary actions when exigent cir-
cumstances required that they do so. It further shows that the LPNs
were authorized by their employer to take such actions without prior
management approval or consultation. This suspension is another
example of the exercise of independent judgment to discipline a
CNA.
C. Point Pleasant
Glenmark contends that the LPNs and RNs comprising the bargain-
ing unit at Point Pleasant are statutory supervisors because, especially
when acting in their charge nurse capacity, they have the authority to
exercise independent judgment to assign and discipline CNAs.
1. Assignment
The Board, by summarily adopting the findings the Director made
in his Decision and Direction of Election for Point Pleasant, decided
that RNs' and LPNs' duties in scheduling CNAs, though assignment
as contemplated by the Act, did not require the exercise of indepen-
dent judgment because the order in which individuals were to be cal-
led in was governed by the CNAs' collective bargaining agreement
and the CNAs had regular hall assignments. Though it is undisputed
that permanent staffing levels are determined by the facility adminis-
trator and the Director of Nursing, the decision of whether to utilize
the call-in procedure to fill an emergency staff shortage at the shift
level rests with the charge nurse. Additionally, as the Director
acknowledged, "if an emergency involving a resident arises" an RN
or LPN may alter a CNA's break schedule to accommodate the emer-
19
gency. (J.A. at 1088.) As we discussed in Part III.B.1 in reference to
Cedar Ridge, the decisions of whether to call in additional staff and
whether to reorganize the schedule to accommodate patient emergen-
cies require the exercise of independent judgment. 15
2. Discipline
The Board also determined in the Point Pleasant context that the
verbal correction reports issued by RNs and LPNs were not "disci-
pline" or the effective recommendation thereof such that the RNs and
LPNs who had the authority to issue them could be classified as
supervisors under the Act. We find this conclusion even less tenable
at Point Pleasant than it was at Cedar Ridge. At Point Pleasant a docu-
mented verbal warning is the first step in the collective bargaining
agreement-mandated disciplinary process. An RN's or LPN's written
notation of a CNA error becomes a part of the CNA's personnel file.
The decision to file a written report, rather than to just orally counsel
the CNA on how to correct his performance, is disciplinary action.
Under the progressive discipline system in place at Point Pleasant, the
written verbal correction report is step one of the process. After the
LPN or RN files an initial report, the next infraction automatically
becomes a more serious matter. If enough infractions accrue, the
CNA is terminated. Uncontradicted testimony by Jill Bumgardner,
Director of Nursing at Point Pleasant, illustrates this point:
Q: Do [the RNs and LPNs] discipline . . . employees?
A: Yes, they do.
Q: Are they expected to issue discipline to employees?
A: Yes, they are.
Q: Do they have the discretion to decide whether or not the
form of the discipline will be a quiet talking to or if it's
_________________________________________________________________
15 Jill Bumgardner, Point Pleasant's Nursing Director, testified that the
nurses had the discretion to determine whether to replace an absent CNA
during a shift.
20
something that's put in writing that goes into their personnel
file?
A: Yes, they do have that discretion.
Q: Does the discipline that is issued by the nurses become
part of the progressive discipline system used by the nursing
home?
A: Yes, it does.
...
Q: Have you relied upon the discipline of any of the nurses
to make a determination as to what level of discipline you
will give to a nursing assistant?
A: Yes, that discipline would become part of the progres-
sive disciplinary procedure.
(J.A. at 425-26.) Accordingly, the written report of the LPN or RN
is more than the recommendation of discipline, as it was at Cedar
Ridge. Because of the progressive disciplinary system mandated by
the Point Pleasant CNA collective bargaining agreement, filing a writ-
ten report is in itself a disciplinary action.
3. Charge Nurse
Additionally the Board determined that charge nurse duties of RNs
and LPNs were not supervisory because the charge nurses, although
they had the additional authority to file incident and accident reports,
otherwise had little, if any, extra responsibility.
This finding is not supported by substantial evidence or this Cir-
cuit's precedent. See St. Mary's Home, Inc., 690 F.2d at 1065-66. In
St. Mary's Home, we repeatedly emphasized the importance of the
designation "charge nurse" at a nursing home that operated on a
twenty-four hour schedule. We held that that designation was impor-
tant because the charge nurse was the "highest ranking official present
21
at the home" during her shift. Id. at 1067. At Point Pleasant, the
charge nurse's job description tells the charge nurse that she may be
responsible for all staff in the entire facility."The . . . charge nurse
. . . plans, organizes, directs and supervises the activities of all
employees assigned to his/her tour of duty. This may be a unit, or
may be the entire facility on holidays, weekends, evenings or nights."
(J.A. at 1010.) As we said in St Mary's Home, Inc., "charge nurse"
brings with it the responsibility of handling day-to-day crises that
might arise with staff or patients at the home. See 690 F.2d at 1067-
68. The charge nurse is the employer's designated representative to
whom the other employees will first turn in the case of any unusual
happening or emergency. Being designated "charge nurse" is more
significant than acquiring a mere title, it is acceding to full responsi-
bility for the nursing home. "`[J]ob titles are meaningless; it is the
authority vested in the employee, be it expressly or by implication,
that is the controlling factor.'" Id. at 1066 (quoting Mid-Continent
Refrigerator Service Co., 228 N.L.R.B. 917, 920 (1977)). For those
shifts when the Director of Nursing is absent from the facility, the
charge nurse is the "`highest ranking employee' on the jobsite at the
time to whom other employees must look for direction." Id. at 1066.
Any one of the members of the Point Pleasant (or Cedar Ridge) bar-
gaining unit could be designated "charge nurse" on any particular
shift. It does not matter that a particular staff member might be desig-
nated charge nurse only infrequently. "[I]t is the power and not the
frequency of its use which is dispositive." Id. at 1068. The Board's
conclusion that the designation "charge nurse" merely confers the
additional duty of filing incident and accident reports is not supported
by substantial evidence. The charge nurses' duties at Point Pleasant
include: excusing other employees early from work, effectively rec-
ommending disciplinary action, dealing with emergencies, and acced-
ing to the status of "`highest ranking employee on the jobsite.'" St.
Mary's Home, Inc., 690 F.2d at 1066. These responsibilities are indis-
tinguishable from those possessed by the charge nurse at St. Mary's
Home, whom we held to be a supervisor under § 2(11) of the NLRA.
See id. at 1066, 1069. Thus, the Board once again has declined to fol-
low our Circuit's law.16
_________________________________________________________________
16 See ante n.8.
22
IV.
In sum, the Board's interpretation of "independent judgment" is not
consistent with the evidence in this case. Evidence supporting the
Board's determination that the nurses at Cedar Ridge and Point Pleas-
ant do not exercise management prerogatives when overseeing CNAs
is simply absent from the record. Therefore, the Board lacked sub-
stantial evidence for its conclusion that the LPNs at Cedar Ridge, and
the RNs and LPNs at Point Pleasant do not meet the definition of
supervisor under § 2(11) of the NLRA. Because of that evidentiary
deficiency the Board has not proffered a rational interpretation of the
NLRA. Additionally, the Board's conclusion that the charge nurses at
Point Pleasant and Cedar Ridge are not supervisors contradicts this
Circuit's binding precedent, St. Mary's Home, Inc., 690 F.2d 1062.
Thus, we grant Glenmark's petitions for review. The Board's cross-
petitions for enforcement are hereby denied.
PETITIONS FOR REVIEW GRANTED,
CROSS-PETITIONS FOR ENFORCEMENT DENIED
JONES, District Judge, dissenting:
As the majority notes, section 2(3) of the National Labor Relations
Act exempts supervisors from the definition of "employees" eligible
to bargain collectively. 29 U.S.C.A. § 152(3) (West 1973). Section
2(11) defines a supervisor as:
[a]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with
the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
29 U.S.C.A. § 152(11) (West 1973) (emphasis added). Accordingly,
to qualify as a "supervisor," an employee must satisfy three criterion:
(1) the employee must actually have the authority to engage in at
least one of the twelve delineated activities; (2) the authority must be
23
exercised in the interest of the employer; and (3) exercise of the
authority must involve independent judgment and not be merely rou-
tine or clerical. Here, the focus of our inquiry is whether the exercise
of authority by the licensed practical nurses employed by the appel-
lant satisfies the third criterion. Because I believe it does not, I
respectfully dissent.
Section 2(11) was drafted with the specific intent of differentiating
between actual management and "straw bosses, lead men, and set-
men, and other minor supervisory employees." NLRB v. Bell Aero-
space Co., 416 U.S. 267, 280-81 (1974) (quoting Sen. Rep. No. 105,
89th Cong., 1st Sess. 4 (1947)). The Act also addresses the existence
of "professional employees," that is, employees who "engage[ ]in
work . . . involving the consistent exercise of discretion and judgment
in its performance." 29 U.S.C.A. § 152(12) (West 1973). Specifically,
the Act recognizes that despite the fact that such employees consis-
tently exercise discretion and judgment in performing their work, they
are nevertheless to be regarded as employees, not supervisors.
Providence Alaska Medical Center v. NLRB, 121 F.3d 548, 554 (9th
Cir. 1997).
Recognition by the Act's drafters of the need to address profes-
sional employees explicitly speaks to the difficulty frequently encoun-
tered in determining when such employees become supervisors. With
little effort, one can identify numerous employees in a host of profes-
sional fields who regularly make decisions, many of them complex,
involving the exercise of their professional judgment, and many of
which effect the direction or control of other employees. In such com-
plex circumstances, it is ultimately the degree of discretion exercised
by the individual that controls whether they are an employee or a
supervisor. See Beverly Enterprises-Pennsylvania, Inc. v. NLRB, 129
F.3d 1269, 1270 (D.C. Cir. 1997). Where an employee's discretion is
substantially constrained by her superiors, exercise of that authority,
even where complex decisions are involved, is "routine" and therefore
does not constitute an exercise of "independent judgment" under the
Act. Id. Determination of whether an employee's authority is substan-
tially restrained requires that the Board engage in a close scrutiny of
the particular facts and circumstances on a case-by-case basis. See
American Fed'n of Television and Radio Artists, Cleveland Local v.
Storer Broad, 745 F.2d 392, 399 (6th Cir. 1984).
24
Here, it is undisputed that an LPN's job affords the LPN discretion-
ary authority over certified nursing assistants employed by Glenmark.
However, the record makes clear that the LPNs' discretionary control
of CNAs at both the Cedar Ridge and Point Pleasant facilities is sub-
stantially constrained. The decisions made by the LPNs regarding
CNAs are limited to set options. The majority of CNAs are given per-
manent assignments by registered nurses. The remaining CNAs are
assigned various work duties by daily work sheets posted by RNs at
the beginning of each shift. When CNAs are absent, LPNs can fill the
vacancy, but they are required to first request any volunteers, and then
to fill the vacancy in accord with CNA seniority. LPNs are also
authorized to permit a CNA to leave work early because of an illness
or emergency, but the LPN is required to inform the supervising RN
of the action. LPNs have no authority to schedule CNAs on a given
day or week, nor do they decide whether or when a CNA will be laid
off, or can take vacation.
The LPNs' disciplinary powers are similarly constrained. LPNs can
remove a CNA from the presence of a resident only if they suspect
the CNA of abusing the resident. An LPN can also instruct a CNA
on how to perform a given task, or correct their performance of a task.
However, LPNs are not formally involved in the evaluation process
of CNAs and LPNs make no decisions regarding the promotion or
discharge of CNAs. The LPNs' only formal disciplinary power con-
sists of issuing a written "verbal correction notice," which is given to
the RNs. The RNs then take whatever steps they deem appropriate,
including taking no action. LPNs cannot discharge a CNA, nor can
they compel action by an RN on the basis of a written correction
notice.
The collective bargaining agreement in place at the Point Pleasant
facility further restricts the discretionary authority of LPNs working
at that facility. There, seniority governs the procedure for calling in
part-time and off-duty full-time CNAs. If a CNA wishes to change
shifts or jobs, the contractual bidding procedure dictates. CNA griev-
ances are controlled by the agreement's grievance procedure which
requires that first step grievances be presented to the nursing director,
who is authorized to resolve the grievances. As at Cedar Ridge, LPNs
can issue written "verbal correction notices," but they must be
reviewed by the nursing director.
25
The record clearly reflects the Board's assessment of the LPNs'
roles. As nurses, they make professional judgments regarding the care
and treatment of their patients, which frequently require the actions
of the CNAs. While the LPNs exercise judgment in making these
decisions, it is exactly the type of judgment-making contemplated by
section 2(12), not the "independent judgment" required by section
2(11).
The majority contends that the Board's decision is incorrect
because it fails to recognize that while the LPNs undoubtedly exercise
professional judgment in performing their own duties, they also exer-
cise independent judgment in managing the CNAs. Assuming that
such a dichotomy exists, the record makes clear that the LPNs' discre-
tion with regard to the assignment, discipline and other statutory fac-
tors is extremely limited. As the D.C. Circuit noted in Beverly
Enterprises, 129 F.3d at 1270, considering facts similar to those of the
instant case, the LPNs' discretion "[b]asically . . . consists of assign-
ing and monitoring the performance of discrete patient care tasks,"
and scheduling CNAs so as to minimize the disruption of that care.
Id. This limited authority is so constrained as to render exercise of it
routine and therefore devoid of the independent judgment specifically
required by the Act.
Despite the limited nature of the LPNs' authority, Glenmark also
advances the proposition, adopted by the majority, that the LPNs must
be supervisors because they are often the senior personnel present at
the facility, and are appointed as "charge nurses" at those times. Glen-
mark reasons that the LPNs must be supervisors, since otherwise
there would be no one in charge at the facility a substantial portion
of the time. Such an argument ignores the plain evidence in the record
that although the LPNs are often the senior personnel on duty, there
is always an on-call RN who remains ultimately responsible for each
facility at all times. The essence of this distinction was well made by
the Seventh Circuit in NLRB v. Res-Care, Inc., 705 F.2d 1461 (7th
Cir. 1983), in which the court observed that "[a] night watchman is
not a supervisor just because he is the only person on the premises at
night, and if there were several watchmen it would not follow that at
least one was a supervisor."
In sum, the record contains ample facts to sustain the Board's find-
ing that the LPNs employed by Glenmark at their Point Pleasant and
26
Cedar Ridge facilities do not exercise "independent judgment" in con-
trolling or otherwise directing the CNAs. Therefore, the Board's deci-
sion should be affirmed in accord with the well-established standard
that its factual determination regarding the supervisory status of an
employee should be overturned only if there is not substantial evi-
dence in the record as a whole to support the finding. See NLRB v.
St. Mary's Home, Inc., 690 F.2d 1062, 1067 (4th Cir. 1982).
For the foregoing reasons, I would deny the petition for review and
grant the Board's cross-petition for enforcement.
27