The Ohio Masonic Home, Inc.

390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Ohio Masonic Home, Inc. and Teamsters Local Union No. 957, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO, Petitioner. Case 9-RC-15216 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On March 22, 1988, the Regional Director issued a Decision and Direction of Election in which he found that the Employer's licensed practical nurses (LPNs) employed as charge nurses were not super- visors under Section 2(11) of the Act. Accordingly, the Regional Director found that a unit of all full- time and regular part-time licensed practical nurses constituted a unit appropriate for the purposes of collective bargaining and directed an election. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Employer filed with the National Labor Relations Board a timely request for review of the Regional Director's decision . By telegraphic order dated April 21, 1988, the Board granted the request for review. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the entire record in this case, including the Employer's brief on review, and makes the following findings. I. The Employer operates a health care facility in Springfield, Ohio. Three of the buildings on the Employer's 450 acre site contain resident care units: the Rickley Building, which houses 13 resi- dent care units; the Extended Care Wing, which houses 2 resident care units ; and the Main Annex, which houses 1 resident care unit . All three build- ings are connected by an underground tunnel. The licensed capacity of the home is 436 beds, and at the time of the hearing it housed 390 residents. Chief Executive Officer Thomas Scott has over- all administrative responsibility for the Employer's operations. Assistant Administrator Joyce McGoni- gal reports directly to Scott. Under McGonigal are Director of Nursing Duane Szymanski, Assistant Director of Nursing Becky Miller, and Inservice Coordinator Janet Ray. There are eight general su- pervisors who report to Miller and Szymanski and are responsible for the operation of the resident care units on their respective shifts. The Employer employs approximately 39 LPNs as charge nurses and 27 registered nurses (RNs) as head nurses.' LPNs are employed only as charge nurses, whereas RNs may be promoted to general supervisor. The Employer employs approximately 190 persons as nursing assistants (aides), orderlies, or medicine technicians (med techs), who are members of a service and maintenance bargaining unit and per- form direct patient care in the resident care units. These employees are represented by National Union of Hospital and Health Care Employees, Local 1199H. Employees are scheduled so as to provide resi- dents with 24-hour care, 7 days a week. The charge nurses and the head nurses, as well as the general supervisors, are assigned to one of five shifts: on weekdays, 7 a.m. to 3 p.m., 3 to 11 p.m., or 11 p.m. to 7 a.m. and on weekends, 7 a.m. to 7 p.m. or 7 p.m. to 7 a.m. The aides, orderlies, and med techs are scheduled in 8-hour shifts, three shifts each day, 7 days each week. One general su- pervisor is assigned to the 7 a.m. to 3 p.m. week- day shift, when the director and assistant director of nursing are also present at the facility. At all other times, two general supervisors are present at the facility. Generally a charge nurse or head nurse is as- signed to each resident care unit ; however, on most shifts one or two of the nurses will be responsible for two care units . One to three aides are assigned to each care unit depending on the patient needs in that unit. The med techs and orderlies are general- ly assigned to cover more than one care unit. H. The Petitioner seeks to represent a unit of all full-time and regular part-time licensed practical nurses working as charge nurses.2 The Employer contends that all the nurses in the above classifica- tion are statutory supervisors. The Regional Direc- tor found the nurses not to be supervisors, reason- ing that although the evidence indicated that the charge nurses direct the work of other employees with regard to patient care, the evidence failed to establish that they effectively evaluate employees or that they discipline employees. On review, the Employer asserts that the charge nurses are supervisors because they perform super- visory duties by evaluating and disciplining em- ployees in the service and maintenance unit, by re- sponsibly directing the work of those employees, r McGonigal testified that charge nurses and head nurses have identical job duties and responsibilities, except that RNs, acting as head nurses, may initiate intravenous therapy, although LPNs may not. 2 In a companion case, Ohio Masonic Home, Case 9-RC-15319, the Pe- titioner seeks to represent a unit of all full-time and regular part-time reg- istered nurses working as head nurses. 295 NLRB No. 44 OHIO MASONIC HOME 391 and by adjusting their grievances. Our review of the facts, as set forth below, convinces us that the charge nurses do not possess the authority alleged by the Employer. Thus, we affirm the Regional Di- rector's decision and remand the case to the Re- gional Director for further processing in accord- ance with this decision. III. The charge nurses (or nurses) spend the majority of their time performing direct patient care duties in their care units. They dispense medications, per- form various treatments, distribute meals, and check on sick patients. At the start of each shift, each charge nurse receives an oral report from the charge nurse on the prior shift noting any changes in a resident's condition. The charge nurse then passes this information along to the aides assigned to her unit and assigns each aide to care for a par- ticular group of residents in the care unit. The resi- dents in the unit are normally divided equally among the aides, who alternate between the vari- ous sections of the unit. Most nurses assign an equal number of residents to each aide, and rotate aides among resident groups, although in some cases nurses will make adjustments for a particular- ly difficult resident or for a personality clash be- tween a resident and an aide. The aides and orderlies are responsible for pro- viding basic personal care. They bathe, dress, feed, and turn residents; change their bedding; and oth- erwise minister to their needs. They perform these duties independently and with minimal direction from the charge nurses. The charge nurses are re- sponsible for scheduling lunches and breaks and ac- commodate the requests of aides where possible without hindering patient care. If an aide wishes to leave the care unit for any reason during the shift, he or she is required to notify the nurse so that proper patient care can be maintained. Charge nurses sometimes resolve minor employee com- plaints regarding workload, lunch and break sched- ules, or personality conflicts. Other than the scheduling of breaks, charge nurses perform no staffing functions. The charge nurses have no authority to hire new employees. They do not have the authority to call in a substi- tute employee if an aide is absent; they do not have the authority to request that an aide work overtime or to allow an aide to leave early; nor do they have the authority to transfer employees from one care unit to another. All these staffing functions, with the exception of hiring, are performed by the general supervisors on duty each shift. Janet Ray, the inservice coordinator, is responsible for the hiring of new employees. Charge nurses evaluate the aides who are regu- larly assigned to their particular care units. 3 For probationary employees, the charge nurse fills out a form that calls for satisfactory or unsatisfactory markings in seven categories. For nonprobationary employees the charge nurse fills out a form that contains 10 categories with 5 possible ratings in each category. With regard to all employees, the general supervisor fills out that portion of the eval- uation form that pertains to attendance. In complet- ing these evaluation forms, charge nurses make no recommendations with respect to retention, dis- charge, or probation. There is no evidence in the record that estab- lishes that employees have been affected as a result of these evaluations. Director of Nursing Szy- manski testified that a probationary employee may be terminated as a result of an unsatisfactory eval- uation, but in the one instance that Szymanski could recall in which a probationary employee was terminated as a result of an unsatisfactory evalua- tion, the evaluation was performed by a general su- pervisor, not a charge nurse. On the other hand, in one instance where a charge nurse and a head nurse rated an employee unsatisfactory, that em- ployee was retained, despite the unsatisfactory rating. Szymanski testified that the evaluations are con- sidered when employees are promoted from part- time to full-time status, but he could not recall any instance when an employee was rejected for such a promotion. Szymanski further testified that when an opening is posted, he determines whether an employee is capable and adaptable, and has the req- uisite skill and ability to perform the posted job. Although the current service and maintenance unit collective-bargaining agreement permits merit raises for certain employees, which the Employer asserts will be based on evaluations by charge nurses, no employee has ever received a raise based on an evaluation by a charge nurse. Szymanski tes- tified that although the contract provides for merit raises, as of the time of the hearing, the Employer had never given a merit raise. It is undisputed that charge nurses participate in the Employer's disciplinary system by writing and signing "verbal warning" or "counselling" forms, which are then placed in employees' personnel files. These warnings consist of a factual account of an alleged incident of misconduct, but do not con- tain any recommendation for disciplinary action. Before writing up warnings, charge nurses general- ly contact a general supervisor on duty about the 8 Aides who work on different units-"floaters"-are evaluated by the general supervisors. 392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD problem and then obtain that supervisor's signature on the warning. Conflicting evidence was present- ed as to whether charge nurses are required to obtain the approval of a general supervisor before issuing such warnings or whether they check with the general supervisors solely to keep the general supervisors informed of what is happening in their care units.4 McGonigal testified that these warnings consti- tute the first step in the Employer's progressive disciplinary system. In describing the disciplinary system, she testified that she believed employees could be written up about three times and that if the offense continued, the employee would prob- ably be terminated.5 No evidence was presented at the hearing, however, indicating that the Employer automatically follows the disciplinary system. Rather, the director of nursing apparently reviews each individual case and determines whether to im- plement discipline beyond warnings given by the charge nurses . Thus Szymanski, when describing an incident in which a "final reprimand" was given to an employee, testified that he reviewed the case and determined that a "final reprimand" was ap- propriate.6 On several occasions, charge nurses have been involved with the "clocking out," i.e., temporary suspension, of an employee. For example, an em- ployee, who received two warnings on the same day from two different nurses-one charge nurse and one head nurse-was told by those nurses to clock out and call Szymanski before returning to work. The general supervisor who signed both warnings testified that the nurses asked her advice on the appropriate discipline before deciding to clock out the employee. When the employee met with Szymanski, he decided to discharge her. Nei- ther of the nurses made any recommendation with respect to discharge nor did Szymanski discuss the incidents with them before deciding on discharge as the appropriate penalty. The Employer introduced into evidence an inci- dent report written by a charge nurse that stated that after warning an employee about using the floor telephone and about leaving the floor without 4 In light of our finding , infra, that the issuance of these warnings by charge nurses does not establish supervisory authority under the circum- stances of this case, this evidentiary conflict need not be resolved. s The Employer offered into evidence a copy of its administrative policy on disciplinary guidelines and procedures that provides that for a first offense, an employee will receive a verbal reprimand ; for a second offense, a written reprimand, for a third offense, a "second written repri- mand" containing a warning for discharge; and for a fourth offense, dis- charge. The policy statement further provides that "[d]isciplinary action will be administered on the merits of each case" and that depending on the violation, the disciplinary procedure may begin at any one of the stages listed above. 6It is interesting to note that the Employer 's disciplinary procedures do not include a final reprimand. permission, the charge nurse asked the employee to clock out. The report contained a factual account of what happened but did not make any recom- mendation with respect to disciplinary action. Szy- manski testified that he called the employee to his office and reviewed the incidents with her before giving her a reprimand, but he could not recall if he talked to the charge nurse. Although Szymanski testified about this incident, neither the charge nurse nor the general supervisor involved testified. Thus there is no record evidence indicating wheth- er the charge nurse consulted with the general su- pervisor prior to asking the employee to clock out, or whether the charge nurse independently decided to clock out the employee. The Employer offered further documentary evi- dence showing that a charge nurse clocked out an employee because the employee refused to obey di- rections to check a resident hourly, thereby caus- ing potential danger to the patient. Although the charge nurse who clocked out the employee did not testify, the general supervisor who was on duty when the incident occurred testified that the charge nurse independently decided to clock out the employee. The record contains evidence of several inci- dents in which a general supervisor maintained complete control over disciplinary matters. For ex- ample, one nurse told the general supervisor that she wanted to discipline an employee for insubordi- nation, but was instructed not to discipline the em- ployee. Similarly, when another charge nurse re- ported to the general supervisor that an employee appeared intoxicated and might be endangering the residents, the general supervisor refused to allow her to send the employee home. The general super- visor then independently gave the employee a rep- rimand. In another instance a nurse observed an employee carrying a knife in her pocket and re- ported this to the general supervisor. The nurse was instructed to write an account of what she saw and the general supervisor then sent the employee home. Although the nurse told the general supervi- sor she did not want the employee to be dis- charged, the employee was, in fact , fired the next day without any further discussion with the nurse. The testimony is conflicting whether the charge nurses served as "immediate supervisors" at the first step of the grievance procedure under the most recently expired service and maintenance col- lective-bargaining agreement . There is no dispute, however, that because the grievance procedure was changed pursuant to the current contract cov- ering that unit's employees, the "immediate super- visor" involved in the first-step written grievance is the general supervisor. Thus, during the first year OHIO MASONIC HOME 393 of the current contract, charge nurses did not par- ticipate at all in grievance processing . A few days prior to the hearing in this matter, however, the Employer issued a memorandum announcing that charge nurses would again participate in first-step grievances along with the general supervisors. The record does not reflect any instances in which charge nurses have adjusted grievances under this new policy, so it cannot be determined what inde- pendent authority, if any, they would exercise. IV. A party seeking to exclude an individual from voting for a collective-bargaining representative has the burden of establishing that that individual is, in fact, ineligible to vote. Golden Fan Inn, 281 NLRB 226, 229-230 fn. 12 (1986). Thus, in repre- sentational proceedings such as this, the burden of proving that an individual is a supervisor rests on the party alleging that supervisory status exists. Tuscon Gas & Electric Co., 241 NLRB 181 (1979).' We find that here, the Employer has not met its burden of establishing that the charge nurses pos- sess supervisory authority. 7 We recognize that this case arises in the Sixth Circuit and that the court of appeals for the circuit has expressed the view that "[tlhe Board always has the burden of coming forward with evidence showing that the employees are not supervisors in bargaining unit determinations." NLRB v. Beacon Light Nursing Home, 825 F.2d 1076, 1080 (6th Cir. 1987) We respectfully disagree Whatever might be the case in unfair labor practice proceedings in which the General Counsel , acting as the prosecutor, seeks to establish the elements of a statutory violation, it is clearly inappropriate to place such a "burden " on the Agency in nonad- versarial proceedings in which neither the Board nor the General Coun- sel has an advocacy role and in which the issue is whether an individual should be excluded from the broad class of those to whom collective-bar- gaining rights are granted by the Act . Of course, Congress has, for policy- reasons, created a "supervisor" exclusion from the benefited class. But the legislative history of that very exclusion indicates that Congress chose to err on the side of narrowness rather than breadth in the exclu- sion. S. Rep No. 105, 80th Cong. 1st Sess. 19 (1947) ("In framing this definition, the committee exercised great care, desiring that the employ- ees herein excluded from the coverage of the Act be truly supervisory.") There are, of course, always policy reasons for any exclusion from hu- manitarian and remedial legislation , but the general rule is that such ex- clusions are to be construed narrowly Phillips Ca v. Walling, 324 U.S. 490, 493 ( 1945); NLRB v. Security Guard Service, 384 F.2d 143, 147 (5th Cir. 1967). To be sure, as the court recognized in a case cited in Beacon Light, it is consistent with the policies underlying the exclusion to hold that an em- ployer is not estopped by his prior recognition of individuals as "employ- ees" from subsequently proving that they are in fact supervisors. Team- sters Local 372 v NLRB, 735 F 2d 969 (6th Cir. 1984), cert. denied 470 U S. 1051 (1985) But, as noted above, it is consistent with the policies of the Act, the canons of statutory construction, and the character of the proceedings in which unit issues are typically determined to hold that, as between a party urging exclusion of an individual from a bargaining unit on the grounds of supervisory status and a party urging the inclusion of that individual, the burden rests on the party-whether union or employ- er-that urges exclusion. Of course this does not mean, when the Board's determination ultimately comes before a reviewing court, that it can be sustained despite the lack of any evidentiary basis . It does mean, howev- er, that where evidence of supervisory authority is inconclusive, it is proper to find that the party urging the supervisory exclusion has not carried its burden It is undisputed that the charge nurses have no authority to"hire, transfer, lay off, or recall employ- ees. Neither do they effectively recommend such action. The Employer asserts, however, that the charge nurses are supervisors based on their re- sponsibilities in evaluating and disciplining employ- ees, directing employees' work, and adjusting em- ployee grievances. A. Evaluation of Employees Although the record shows that the charge nurses evaluate both probationary and nonproba- tionary employees by assessing their performance in various job-related categories, it does not estab- lish that the charge nurses' evaluations of employee performance affect those employees' job status. In evaluating employees, the charge nurses do not give any type of recommendations regarding pro- motions, wage increases, discipline, or retention. Furthermore, no evidence was presented showing that an employee's job status has been affected by a charge nurse's evaluation. Thus, the use of these evaluations is distinguishable from the evaluation system used in Wedgewood Health Care, 267 NLRB 525, 526 (1983), in which nurses possessed statutory supervisory authority in part because a poor eval- uation resulted in personnel action, or from the evaluation system used in Pine Manor Nursing Center, 270 NLRB 1008, 1009 (1984), where bad evaluations could effectively mandate discharge at the close of a probationary period and good ones were used to reward employees in connection with a bonus system. The authority simply to evaluate employees without more is insufficient to establish supervisory status. Passavant Health Center, 284 NLRB 887 (1987). As we find that the charge nurses' evalua- tions of employee performance have no effect on those employees' job status, we find that the charge nurses' preparation of employee evaluations does not support a finding of supervisory authority. B. Discipline of Employees The record shows that nurses do play a role in the Employer's disciplinary system by issuing oral reprimands and written warnings . These warnings consist of factual accounts of alleged incidents of misconduct, but in no way do they include any recommendation for disciplinary action. Although these documents are placed in an employee's per- sonnel file, the record does not establish that these warnings automatically lead to any further disci- pline or adverse action against an employee. Rather, the director of nursing independently de- cides when further disciplinary action should be taken. Thus, there is no defined progressive disci- 394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plinary scheme because the written warnings do not, without more, affect job tenure or status. See Passavant Health Center, supra, distinguishing Con- course Village, Inc., 276 NLRB 12 (1985), where statutory authority was found because the employ- er's express policy provided that receipt of three written warnings, issued independently by the dis- puted employees, would result in termination. Here, by contrast, the Employer's express policy provides "[t]hat disciplinary action will be adminis- tered on the merits of each case," and the record testimony indicates that the director of nursing, after reviewing the charge nurses' anecdotal re- ports, independently determines when fuller disci- pline is necessary. The mere authority to issue verbal reprimands of the kind involved here is too minor a disciplinary function to constitute statutory authority. Passavant Health Center, supra at 889, citing Beverly Manor Convalescent Centers, 275 NLRB 943, 945 (1985). Likewise, the mere factual reporting of oral repri- mands and the issuing of written warnings that do not automatically affect job status or tenure do not constitute supervisory authority. Passavant Health Center, supra; Heritage Manor Center, 269 NLRB 408, 413 (1984). As the Board stated in Passavant Health Center, supra at 889: where oral and written warnings simply bring to an employer's attention substandard per- formance by employees without recommenda- tions for future discipline, and an admitted statutory supervisor, such as the director of nursing here, makes an independent evaluation of the employees' job performance, the role of those delivering the warnings is nothing more than a reporting function. Mt. Airy Psychiatric Center, 253 NLRB 1003, 1008 (1981); Geriat- rics, Inc., 239 NLRB 287, 288 (1978); Pine Manor Nursing Home, 238 NLRB 1654, 1655 (1978); Madeira Nursing Center, 203 NLRB 323, 324 (1973); see Western Union Telegraph Co., 242 NLRB 825, 826 (1979). With regard to the nurses' authority to clock out employees, on one occasion a charge nurse inde- pendently decided to clock out an employee be- cause that employee refused to obey directions to check a resident hourly, thereby causing potential danger to the patient. In other instances where charge nurses allegedly clocked out employees, the record is unclear as to whether the charge nurses independently made those decisions or whether the clock out was at the direction, or on the advice, of a general supervisor . Given the conflicting evi- dence and the burden borne by the Employer as the party urging exclusion, we find that the single incident in which a charge nurse apparently clocked out an employee independently is insuffi- cient to establish that any independent professional judgment exercised incidental to the treatment of the patient also aligned the charge nurse with the interest of the Employer in enforcing personnel policy. C. Grievance Adjustment The record fails to establish that charge nurses have the authority to adjust grievances. Under the current collective-bargaining agreement relating to the service and maintenance employees , the general supervisor is the "immediate supervisor" who proc- esses first-step written grievances on the Employ- er's behalf concerning those employees . During the first 12 months of the current contract, charge nurses did not participate at all in grievance proc- essing. Although the Employer announced a few days prior to the hearing in this matter that charge nurses would participate in first-step grievances along with the general supervisors , the record does not indicate that charge nurses have adjusted griev- ances under this new policy. Neither title nor "newly redefined authority" that is not shown to be other than illusory is sufficient to make a charge nurse a supervisor. Pine Manor Nursing Home, 238 NLRB 1654, 1655 (1978). Further, we find the fact that the charge nurses sometimes rely on their per- sonal relationship with employees to resolve minor complaints regarding workload, the scheduling of lunches and breaks, or personality conflicts is insuf- ficient to establish supervisory status. Beverly Manor, supra. Further we find that the fact that charge nurses sometimes resolve minor employee complaints regarding workload, the scheduling of lunches and breaks, or personality conflicts is insuf- ficient to establish supervisory status. D. Direction of Work The Employer contends that the charge nurses possess supervisory authority based on the fact that they direct the work of unit employees. More spe- cifically, the Employer asserts that the charge nurses use their independent judgment to match employees' abilities with the needs of various resi- dents to ensure that all nursing care is completed satisfactorily. This judgment, the Employer asserts, goes beyond merely exercising professional or technical judgment on behalf of patient care. In Beverly Manor Convalescent Centers v. NLRB, 661 F.2d 1095 (6th Cir. 1981), the court, in consid- ering the supervisory status of various LPNs at an employer's health care facility, concluded that the fact that the LPNs used independent professional judgment in directing the work of aides and order- OHIO MASONIC HOME 395 lies did not alone make those nurses supervisors. 11 Rather, the court remanded the case to the Board to consider whether the LPNs' direction of the aides' work was done pursuant to the LPNs' exer- cise of independent professional judgment or whether the direction of work was done in the in- terest of the employer, i.e., whether it aligned the charge nurses with the employer as part of man- agement. Id. at 1103. On remand, the Board adopt- ed the Regional Director's conclusion that the LPNs were not supervisors because their exercise of independent judgment did not align them with the employer's interests. Beverly Manor Convales- cent Centers, 275 NLRB 943 (1985). Recognizing that there is always a coincidence of interests be- tween catering to patient needs and providing nec- essary care on the one hand and the employer's broader interests on the other , the Regional Direc- tor had concluded that the LPNs were not supervi- sors because their direction of the aides' work was done in connection with patient care and did not go beyond into "personnel authority which more directly promote the interests of the employer and which is not motivated by patient care needs." Bev- erly Manor, supra, 944-947. We find that the charge nurses' direction of em- ployees' work here is similar to that in Beverly Manor, supra. The charge nurses' direction of em- ployees' work is given routinely in connection with the treatment of patients to ensure that quality care is provided to all residents in their care units. As- signments to aides are routine in nature because residents are divided equally among aides and aides are rotated to distribute difficult residents. There is no evidence to suggest that the charge nurses' di- rection of employees' work goes beyond into "per- sonnel authority which more directly promotes the interests of the Employer and is not motivated by patient care needs." Id. In fact, the nurses lack au- thority in the areas traditionally associated with personnel matters including approving vacation or sick leave, initialing timecards, assigning overtime, or transferring employees between care units. Therefore, we find that the charge nurses' direction of employees' work does not align the charge nurses with the Employer as any professional or technical judgment exercised is quite routinely in 8 Specifically , the court stated* As the Regional Director correctly noted , it is the intent of Con- gress in the health care field that the Board "distinguish true supervi- sory authority from the 'professional' judgment and discretion in- volved in patient care .. ." The distinction must be made, not be- cause professional care is a matter of routine involving no independ- ent judgment, but because the independent judgment which is neces- sanly involved in patient care , even if otherwise supervisory in char- acter, is not always strictly independent professional judgment in di- recting employees, therefore, should not alone align the professional with his employer as a supervisor . 661 F.2d at 1101. furtherance of patient care rather than supervisory judgment on behalf of the Employer. V. To the extent that the Employer relies on the Sixth Circuit's decision in NLRB v. Beacon Light Nursing Home, 825 F.2d 1076 (1987), we find that case distinguishable. There the court found that LPNs were supervisors and thus excluded them from the unit. In finding the LPNs to be supervi- sors, however, the court found that the LPNs' evaluations of employees were considered in man- agement promotion and demotion decisions. As such, therefore the evaluations "were serious at- tempts to determine the employees' progress, and constitute `recommending action' within the mean- ing of the [Act]." Beacon Light, supra, 825 F.2d at 1079. Further, there the LPNs were responsible for reporting personnel rule infractions and these re- ports, called "Counseling Forms," normally result- ed in formal disciplinary action after three or four reports were lodged for the same violation of the rules. That is not the case here . As set forth above, the Employer has not shown that the charge nurses' evaluations of employees affect promotion or demotion decisions . Nor has the Employer shown that there is a progressive disciplinary system in place whereby written warnings issued by charge nurses automatically lead to formal disci- plinary action. Thus key factors on which the court relied in finding supervisory status in Beacon Light, supra, are not present here.9 VI. In sum, we find that the charge nurses are not statutory supervisors because they do not possess the authority to effectively evaluate or discipline employees or to adjust grievances, and they do not possess any other indicia of statutory supervisory authority. ORDER The Regional Director's decision is affirmed, and the case is remanded to the Regional Director for further appropriate action. 9In finding the LPNs to be supervisors , the Sixth Circuit also noted that if the LPNs were not supervisors, then frequently there would be no onsite supervision for nursing personnel ; that the state law requiring a li- censed nurse on duty at all times made it unreasonable to assume that the nurses aides had the information and technical knowledge to supervise their own performance; and that a good supervisor to employee ratio could be provided only if the LPNs were considered supervisors. We note that these factors are inapplicable here Here , state law requires that a registered nurse be on duty at all times, a requirement that the Employ- er meets by having general supervisor RNs on duty at all times . Further- more, here a finding that the charge nurses do not possess supervisory authority would not result in the aides and orderlies being unsupervised because there are at least two stipulated supervisors on the premises at all times.