SR-73 and Lakeside Avenue Operations LLC d/b/a PowerBack Rehabilitation, 113 South Route 73,
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.
SR-73 and Lakeside Avenue Operations LLC d/b/a Powerback Rehabilitation, 113 South Route 73 and District 1199C, National Union of Hospital and Health Care Employees, AFSCME, AFL– CIO, Petitioner. Case 04–RC–161250
August 17, 2017
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
The National Labor Relations Board has carefully considered the Employer’s request for review of the Acting Regional Director’s August 1, 2016 Decision on Objections and Certification of Representative, which is attached as an appendix, as well as the Petitioner’s opposition brief. The request for review is denied as it raises no substantial issues warranting review.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The relevant facts are fully set forth in the Acting Regional Director’s decision. Based on those facts, and contrary to our dissenting colleague, we affirm the Acting Regional Director’s finding that the evidence produced by the Employer was insufficient to demonstrate that its care managers are statutory supervisors because they assign or responsibly direct other employees within the meaning of Section 2(11) of the Act.1
With respect to assignment, we reject the dissent’s contention that review is warranted of the Acting Regional Director’s finding that the Employer’s evidence of independent judgment “lacked specificity.” It is well established that generalized and self-serving testimony cannot suffice to prove Section 2(11) supervisory authority. See NLRB v. Res-Care, Inc., 705 F.2d 1461, 1467 (7th Cir. 1983); G4S Regulated Security Solutions, 362 NLRB No. 134, slip op. at 1 (2015), enfd. 670 Fed.Appx. 697 (11th Cir. 2016). We agree with the Acting Regional Director, for the reasons stated in his decision, that the Employer’s evidence on this issue was either conclusory or lacking in specificity. In particular, we reject the dissent’s contention that the Employer established that care managers exercise independent judgment in assigning employees through the testimony of Care Manager Mar
1 The Employer did not request review of the Acting Regional Director’s finding that care managers do not discipline employees within the meaning of Sec. 2(11).
sha Lake, who stated that she considers employee skill level and patient acuity when having to assign a cart nurse who lacks a permanent room assignment (floater) to an open slot. As the Acting Regional Director found, Lake did not describe any specific examples of situations where a care manager considered the skill level and patient acuity in assigning a floater. See G4S Regulated Security Solutions, supra, slip op. at 2, quoting Oil Chemical & Atomic Workers v. NLRB, 445 F.2d 237, 243 (D.C. Cir. 1971) (“what the statute requires is evidence of actual supervisory authority visibly translated into tangible examples demonstrating the existence of such authority”), cert. denied 404 U.S. 1039 (1972).
We also reject the dissent’s contention that the Employer established that care managers exercise independent judgment in assigning employees through Lake’s testimony that she has reassigned a cart nurse who has difficulty providing wound care from a patient requiring such care. Lake only testified to one specific example. On that occasion, “the nurse on the other cart took care of the patient.” Given that there are two cart nurses assigned to each wing of the Employer’s facility, Lake’s reassignment of a patient to the only other nurse on the wing did not involve the exercise of independent judgment. See Oakwood Healthcare, Inc., 348 NLRB 686, 693 (2006) (where “there is only one obvious and selfevident choice . . . then the assignment is routine or clerical in nature and does not implicate independent judgment, even if it is made free of the control of others and involves forming an opinion or evaluation by discerning and comparing data.”); see also Cook Inlet Tug & Barge, Inc., 362 NLRB No. 111, slip op. at 1 (2015).
With respect to responsible direction, we reject the dissent’s contention that review is warranted to determine whether the Acting Regional Director conflated independent judgment in assigning employees with independent judgment in directing employees. As in Peacock Productions, 364 NLRB No. 104, slip op. at 4 (2016), we do not reach this issue because “[e]ven assuming that [care managers] use independent judgment in directing other employees, the [Acting] Regional Director correctly found that the record does not establish that the Employer holds [care managers] accountable for their direction of others.” Contrary to the dissent, accountability was not established by the testimony of: former Center Nurse Executive Patricia Melora that care managers are accountable for their team’s timeliness in completing work and that she has spoken with care managers about unhappiness with how their team performed; Care Manager Lake that Melora told her when she was hired that care managers are responsible for staff nurses;
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or Care Manager Kelly McCarthy that she considers herself responsible for the performance of her team. Such generalized and conclusory testimony is insufficient to establish that care managers are accountable for their direction of others. See id.
The dissent further contends that the potential existence of care managers’ supervisory authority is evident from the three-factor “guide” that he has proposed in prior dissents for determining supervisory status. See Cook Inlet Tug & Barge, Inc., 362 NLRB No. 111, slip op. at 5 fn. 9. We reject this proposal for the reasons we have previously stated. See Buchanan Marine, L.P., 363 NLRB No. 58, slip op. 2–3 (2015), and WSI Savannah River Site, 363 NLRB No. 113, slip op. 2–3 (2016). Here, the dissent relies principally on the fact that if supervisory authority is not vested in care managers, then the supervision of 20 employees on the day and evening shifts is performed by 2 clinical directors, and the supervision of 16 employees on the night shift is performed by 1 clinical director. The law is clear, however, that the ratio of staff-to-supervisory employees, as with all secondary indicia, cannot by itself provide a basis for a supervisory finding. See Modesto Radiology Imaging, Inc., 361 NLRB No. 84, slip op. at 3 fn. 4 (2014); Northcrest Nursing Home, 313 NLRB 491, 499 (1993). And, as discussed, the Employer in this case has not established the existence of any primary indicia of supervisory status that would permit consideration of second indicia.2 Dated, Washington, D.C. August 17, 2017
Mark Gaston Pearce, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, dissenting.
I dissent from my colleagues’ order denying review in two respects.
First, contrary to the Acting Regional Director (ARD), I believe the ARD’s findings of fact, when properly ana
2 Finally, in denying review, we find that the Acting Regional Director did not abuse his discretion by refusing to enforce the Employer’s subpoena duces tecum upon Clinical Director Summer Valenti. See Northern States Beef, 311 NLRB 1056, 1056–1057 (1993).
lyzed in light of the standards set forth in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), support the conclusion that the Employer’s care managers are supervisors under Section 2(11) of the National Labor Relations Act (NLRA or Act) because they have authority to assign and responsibly direct employees, and they exercise independent judgment in doing so. Accordingly, I would grant review, conclude that the care managers are statutory supervisors, and remand this case to the ARD to decide an issue he left undecided—namely, whether the election must be set aside under Harborside Healthcare, Inc., 343 NLRB 906 (2004), on the basis that the care managers were supervisors who engaged in objectionable prounion conduct.
Second, I believe the ARD should have enforced the Employer’s subpoena seeking electronic communications of Clinical Director Summer Valenti regarding the Union. Thus, I would grant review on this issue as well, and on remand, I would direct the ARD to reopen the record, enforce the subpoena, permit the Employer—if it so chooses—to introduce further evidence obtained through the subpoena (if any exists) regarding prounion conduct by Valenti, and take any other actions that appear appropriate on remand.
The Employer is a short-stay acute rehabilitation center located in Voorhees, New Jersey. Overall responsibility for nursing care of patients is vested in a center nurse executive. Below the center nurse executive in the nursing-care hierarchy are the clinical directors, and below the clinical directors are the care managers. Below the care managers are cart nurses and certified nursing assistants (CNAs). Two clinical directors are on duty during the day shift (7 a.m. to 3 p.m.) and evening shift (3 p.m. to 11 p.m.), and one clinical director is on duty during the night shift (11 p.m. to 7 a.m.). Four care managers are on duty at all times, working 12½-hour shifts (7 a.m. to 7:30 p.m. or 7 p.m. to 7:30 a.m.). Cart nurses also work 12½-hour shifts, 8 per shift. CNAs work the same 8-hour shifts as the clinical directors, 12 on the day and evening shifts and 8 on the night shift.
A representation election was conducted on November 4, 2015, in a unit consisting of the Employer’s cart nurses.1 The final tally of ballots shows that 16 employees
1 Some cart nurses are registered nurses (RNs) and others are licensed practical...
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