Phelps Community Medical Center

486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Phelps Community Medical Center and Local Union 505, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO,' Petition- er. Case 9-RC-15175 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On October 8, 1987, the Regional Director issued a Decision and Direction of Election in which he found, inter alia, that the Employer's Li- censed Practical Nurses and licensed practical nurse applicants were supervisors under Section 2(11) of the Act. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Petitioner filed with the Board a timely request for review of the Regional Direc- tor's decision. The Employer filed a response. By telegraphic order dated November 4, 1987, the Board granted review of the Regional Director's Decision and Order. The National Labor Relations Board has delegat- ed its authority to a three-member panel. The Board has considered the entire record in this case and makes the following findings.2 I. FACTS The Employer operates a 120-patient, four-wing, nursing home in Phelps, Kentucky. The home is di- rected by an administrator who works 3 days a week. There are dietary and housekeeping depart- ments that have their own stipulated supervisors. The nursing department is headed by Director of Nursing Henrietta Dotson. There is also a position for an assistant director of nursing that was vacant as of the hearing. Both of these positions are stipu- lated to have supervisory status. Below the director of nursing and the assistant director of nursing are eight licensed practical nurses (LPNs) and three li- censed practical nurse applicants , employees who have graduated from nurse training but have not been licensed. The parties stipulated that the appli- cants' supervisory-related duties are the same as those of the LPNs. Below the LPNs are 42 nurse aides. The director of nursing works Monday through Friday from 6:30 a.m. to 2:30 p.m. The assistant di- ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change. 2 At the hearing the director of nursing and one LPN testified and cer- tain documents were entered into evidence. No credibility findings were made. rector of nursing's shift is from 8 a.m. to 4 p.m. on the same days. Both are always on call. According to the director of nursing three LPNs work during the day, two are in charge of two wings each, and the third "floats" between wings as needed. The di- rector of nursing testified that the assistant director of nursing is usually the floating LPN. There are 10 aides on this shift. On the 3 to 11 p.m. shift there are two LPNs in charge of two wings each. It appears from the schedules in evidence that seven aides work on this shift. On the 11 p.m. to 7 a.m. shift there is one LPN and four aides. On eve- nings and weekends the LPNs are "in charge" of the facility. LPNs and aides wear uniforms and are paid on an hourly basis. The director of nursing and the housekeeping and dietary supervisors do not wear uniforms, are salaried, and have offices. The LPN testified that the LPNs' duties are "mainly to give medications , to do the patient charting, and the basic overall patient care." This testimony is consistent with the LPN job descrip- tion that listed 12 LPN duties, 9 of which had spe- cifically to do with patient care.3 With regard to the factors indicating supervisory status listed in Section 2(11) of the Act, the LPNs are not involved in hiring, transferring, laying off, recalling, or adjusting grievances . The evidence on the remaining factors is set forth below. A. Responsible Direction/Assign Factors The director of nursing assigns LPNs and aides to the wing in which they work. These assignments are made infrequently. LPNs have no authority to change an aides' assignment location . On a monthly basis, the director of nursing establishes the hours- of-work schedule for both LPNs and aides. If an employee wanted time off or something similar, the LPN would ask the director of nursing. If an employee calls in sick soon before a sched- uled shift and the director of nursing is not in, an LPN records the time of the call and the reason for the absence. The LPN also calls in a replace- ment from a list of "call-ins." Pursuant to the Em- ployer's policy, the replacement is chosen by se- 3 LPNs' job description made no mention of any supervisory duty regarding aides; rather, the job summary states that the LPNs have "the ability to work under close supervision and to follow oral and written instruction." The closest LPN duty to supervision was duty 9 : "Teaches nurses' aides when opportunity presents itself." However, the nurse aide job description stated that the aide, "Performs a variety of routine resi- dent care duties as designated by the charge nurse " Although "charge nurse" was not defined, the director of nursing indicated that she consid- ered LPNs and "charge nurses" to be the same thing In her description of the LPNs' duties, the director of nursing stated, "LPNs pass medica- tions, they supervise the nurse aides in patient care, they assign the nurse aides their assignments every day, they make out the assignment sheets like for each patient ... just anything each patient is supposed to have according [to] the physician's orders." 295 NLRB No. 55 PHELPS COMMUNITY MEDICAL CENTER 487 niority. The director of nursing testified that if an aide has to leave the facility because she is sick or for some other reason, it is up to an LPN to call in a replacement if it is early in the shift. But, if it is approximately an hour before the end of the shift, they would not call anybody in. If this occurs near the end of the shift, the remaining employees may divide the work of the departing employee. If the employee departs earlier in the shift, the LPN calls in a replacement pursuant to the policy described above. The Regional Director found that the LPNs in- dependently scheduled aides' breaks and "extra duties," a task assigned to the supervisor in the em- ployee handbook.4 The testimony underlying the Regional Director's finding was that, on a monthly basis, the LPNs fill out a patient-care duty sheet pursuant to doctors' instructions and professional practices. These instruction sheets also designate breaktimes and "extra duties" such as restocking supply areas or cleaning designated areas. After filling out the forms, however, the LPN does not assign them to individual aides. Rather, the aides choose the forms on a random basis. The director of nursing explained that "which aide gets which assignment sheet doesn't really make a difference." B. The Reward/Promote Factors There is no contention that the LPNs can reward or promote any employee on their own. The question, rather, is whether they make effec- tive recommendations that result in rewards or pro- motions. There was evidence that aides and LPNs are evaluated annually. The director of nursing tes- tified that she evaluates the day-shift aides if she has the time.5 If she does not have the time, she asks day-shift LPNs to fill out the evaluation forms. Evening- and night-shift LPNs fill out the forms for aides on their shifts. Seven evaluations of aides by LPNs were en- tered into evidence (evaluations of LPNs by an LPN who was also the assistant director of nursing 4 An employee handbook was entered into evidence with the uncontra- dicted testimony that its policies and procedures are those currently used at the facility. Although the Regional Director was technically correct that the employee handbook states that "rest periods are scheduled by your supervisor," he did not consider the fact that the job descriptions of both aides and LPNs state that their supervisor is the director of nursing. 5 The Regional Director emphasized that the employee handbook states that employees are to be evaluated by their supervisors in connec- tion with the evidence that certain LPNs fill out the evaluations We do not place reliance on the handbook reference. As noted, the aides' and the LPNs' job descriptions state that the supervisor of both groups is the director of nursing. We also note that the section of the handbook re- ferred to by the Regional Director states that evaluations will be done "by your supervisor and/or the Administrator." As the administrator is one level above the director of nursing in the Employer's administrative hierarchy, the Regional Director's reasoning would appear to indicate that the director of nursing has no role in evaluations . This is contrary to the record were also entered). The seven have numerical scores in seven subject areas: quality of work, quantity of work, dependability, cooperation, initia- tive, self improvement, and personality. The eval- uation form also contains "yes" or "no" blanks after "recommend continued employment." How- ever, this blank was not filled out in all the exam- ples, and there is no testimony that they were ever relied on. In fact, there is no evidence that any per- sonnel action is ever taken based on the evalua- tions. The evaluations go to the director of nursing who places them in the employee's file. The direc- tor of nursing does not meet with the evaluated employee or, apparently, the evaluator. The Em- ployer does not have a policy of granting raises in connection with evaluations, and there is no evi- dence of promotions or demotions . When asked what the evaluations of the aides are used for, the director of nursing stated, "Just to keep a standing record in th[eir] file, about the[ir] status as an em- ployee. And, sometimes they-if they go to [a] dif- ferent facility, they'll ask for copies to take with them." At another point, when asked what she does with an evaluation in a file, the director of nursing testified, "They stay there. The evalua- tions-they stay there." The director of nursing did testify that a dis- charge had been based on an evaluation . However, she qualified the statement, agreeing that it was in connection with discipline for a violation of other rules, in which she makes the determination.6 C. The Discipline/Discharge Factors The discipline and termination section of the Employer's employee handbook states, "To insure consistency and fair play in [behavior requiring dis- ciplinary action] situations , the company has estab- lished rules for disciplinary action , and certain fixed actions." Three levels of offenses are then listed. Under "Automatic Discharge Offenses-Re- quires immediate termination" are 11 offenses, in- cluding patient abuse, theft or attempted theft, in- troduction or consumption of intoxicating bever- ages or drugs on the premises, and unreported ab- sence of 2 or more days. Under "Serious Of- fenses-ay result in dismissal, but must result in at least a suspension of `final' warning," 12 offenses are listed. Under "Progressive discipline Offenses- 6 The director of nursing did not specify any particular example. In his decision, the Regional Director stated, "A decision to terminate an em- ployee can be, and has been, made based upon an LPN's written evalua- tion of a nurse aide." However , the only testimony regarding the effect of an annual evaluation is that discussed above. We do not conclude from this testimony that personnel actions are taken because of evaluations absent separate infractions of disciplinary rules and independent evalua- tion by the director of nursing. 488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD result in at least two warnings prior to termina- tion," 10 offenses are listed. The handbook does not indicate that LPNs have any involvement in the disciplinary process. An LPN testified that LPNs had disciplinary responsi- bility for "only minor things. If a nurse aide comes in late, I can say, `you know you're not supposed to come in late, you're supposed to be on time.' But, any problem that is of any consequence is han- dled by the Director of Nurses." 1. How writeups are initiated The director of nursing testified that LPNs can "writeup" an aide without first checking with her. However, in later testimony, the director of nurs- ing's example contradicted this, indicating that the LPN consulted with the director of nursing before filling out a writeup.7 In agreement with the direc- tor of nursing's example but contrary to the direc- tor of nursing's general statement regarding wri- teups, an LPN testified, "If you feel a nurse aide has done some indiscretion, you call the Director of Nurses and ask her if that is a valid write-up sit- uation. If she say[s] it is, then you fill out the nec- essary paper." The LPN also testified that if an aide violates one of the personnel rules, "The first thing [an LPN does] is report it to your Director of Nurses. If it's an offense that's serious enough for action to be taken, we have disciplinary action forms that we fill out." Six examples of writeups filled out by LPNs about aide's conduct were en- tered into evidence.8 2. The consequence of writeups All writeups go to the director of nursing. The director of nursing testified that, as a result, she would know if there was anything "fishy." If a writeup is "routine" (i.e., with the signatures of the aide and the LPN), the director of nursing just puts the writeup in the aide's personnel file and counts the number of writeups already in it. The director of nursing does not meet with the aide and does not meet with the LPN unless it is a serious of- 7 The director of nursing testified , "If a new nurse aide has been hired and the LPN comes to me and says I feel like she's going to make a real good nurse aide, but she's too slow, then the LPN writes the nurse aide up And later on . . if we have another discussion, and the employee has done real good, I think we should get rid of that black mark off her file, then we do that." (Emphasis added.) 8 The Regional Director emphasized, "On one such disciplinary notice, an LPN advised an employee that she should start looking for another job because her receipt of another disciplinary notice would result in her discharge." However, the LPN who wrote this was Director of Nursing Dotson. As the examples of writeups , including this one, were entered without any testimony explaining on whose initiative they were written, whether they were later independently investigated , or whether any action was taken as a result of them, this notation has little value in deter- mining whether LPNs effectively recommend discipline . Cf. Wedgewood Health Care, 267 NLRB 525 (1983). fense. She also testified, however, "If it's just gen- eral things, I just monitor the employee's file . .. . And then if it's say minor things, say somebody's too many days without a doctor's excuse, then I handle it myself."9 As noted in the discussion of evaluations, the di- rector of nursing testified that discharges based (in part) on annual evaluations were made in connec- tion with a violation of "other rules " in which the director of nursing, herself, made the determination. Consistent with this testimony of the director of nursing, when the LPN was asked, whether "LPNs have any input into a recommendation to discharge someone?" she testified, Only if you are a witness to an indiscretion by that person. Then you are obligated to inform the Director of Nurses that you saw this indis- cretion or whatever. But you have no say whether they're fired or not. The director of nursing also testified, however, that on certain, unspecified occasions there are roundtable meetings including LPNs in which she asks them if they agree with her opinion.10 In one example the director of nursing reported unani- mous agreement that an aide , who had "all" the writeups she could have, should be fired."' In the second case there was also apparent unanimous agreement that a suspended aide should be fired.12 8 The director of nursing did not explain what handling it herself meant. She did add, however, But it varies. If there's a question in my mind about an employee, I go to the LPN's. I say, "Am I right? Do you all agree with my opin- ion?" Because they work with these nurse aides, they work closely with them . They know more about how they work than I do. And I ask them before I fire . . . an aide . and I go by their opinion .... We have had employee[s] that have had write ups . over a period of a couple years . . . when they get the third write up, and during that period they would be improved a great deal. And you don't want to fire the employee over missing a couple days work. And I have to rely on my LPNs' judgment.... We don't have a set thing. It's everybody's opinion. The director of nursing's response to the Employer's attorney's question, "How many disciplinary notices would the LPN give before a person would be discharged?" may be interpreted to be "one verbal and three written warnings." We do not draw an inference from this, however, that there is a consistent response to writeups in employees' files. The director of nursing's narrative testimony about the treatment of "general" or "minor" things quoted above and her testimony about serious ones as dis- cussed below clearly indicate that there is no standard response. to The director of nursing's testimony regarding the frequency of such meetings was that, "On certain occasions we have [them], now not all the time." In light of this testimony we discount the director of nursing's af- firmative response to the Employer's attorney's question, "I believe you testified to this, but, before you would discharge an employee, you would sit down with the LPN, and you all would make the decision together, as to whether that employee would be discharged?" I I The director of nursing testified that on the night before the hearing she asked, "Does everybody agree that this employee has gone as far as she can go? Does everybody agree that she needs to be fired? Or does anybody want to take up for her? And everybody agreed." There was no evidence about the identity of the aide , the number, or the content of the notices that the aide had. 12 An LPN had suspended an aide after another aide had complained that the aide was rough with, and cursed in front of, a patient. The direc- Continued PHELPS COMMUNITY MEDICAL CENTER 489 However, in response to the question, "In making your decision to discharge [the suspended aide] did you rely on anything else?" the director of nursing testified that she relied on the fact that the aide had been written up several times before. The director of nursing also testified that she conducted an inde- pendent investigation of the incident. D. The Suspension Factor The director of nursing testified that if an aide's conduct involved a patient, or a serious offense, it would be the LPN's responsibility to send the aide home. She testified that such suspensions had oc- curred a couple of times in the past . When asked under what circumstances an LPN could send an aide home, the director of nursing testified , "Under extreme circumstances . If a-patient abuse, if an aide comes to work intoxicated, or starts a fight, something like that . . . . Basically, what they're doing, you know, when they send one home, they're not firing that employee. . . . They're send- ing them home until we can get together and talk about what steps to take." The only example of a suspension was given in response to a question about discipline of the aide discussed above. Specifically, the director of nurs- ing testified that after the complaint to an LPN about the aide's roughness and cursing, the charge nurse sent her home. It is clear from the director of nursing's testimony that the LPN called the direc- tor of nursing before sending the aide home. In re- sponse to the hearing officer's question whether the LPN called "to get permission to send her home or to inform that she was sending her home ," the di- rector of nursing testified "to inform me." As already noted, the employee handbook details disciplinary offenses in three levels of seriousness. In addition, the director of nursing testified about two other documents that are on the nursing floor. They're manuals that are required to be there by state/Federal guidelines and [an LPN of 1 or 2 months' seniority who] is not real familiar with all the routine and extreme things that can happen. She can go to these books and look at what to do. Like, for example, run- away patient . . . that would be in the disaster manual. Steps to take if that event should occur. There's [also] a policy and procedure tor of nursing testified that because the aide had been written up before and because this involved a patient , she had a meeting with all the LPNs, all of whom had worked with the aide before In the meeting she stated, "Look, I don't want to fire the girl unless everybody agrees in this case because everybody can have a bad day ." All the LPNs agreed that the aid should be discharged . This discharge occurred in the month before the hearing. No discipline warning on the incident was put into evidence A September 1986 "second written warning" to the aide for two unex- cused absences was one of the written warnings put in evidence. book governing the nursing department .. . even down to taking blood pressure, even down to changing a catheter , or even putting a patient's clothes on, or making a bed . That's all in the policy and procedure manual. The Employer's attorney attempted, through lead- ing questions, to have the director of nursing testi- fy that LPNs use independent judgment in decid- ing whether to suspend (rather than relying on the employee handbook). The director of nursing testi- fied, however, "Well, I've been there so long, that I know the rule books are there, but I don't-I never have to look at them. But no, they're there if they're needed." When asked if something is "not directly covered by a rule" the director of nursing testified, "Well, if she couldn't get a hold of me, like on the evening shift, then she would have to use her judgment, you know." No examples of dis- ciplinary conduct were given that were not includ- ed in the employee handbook. The final duty in the LPNs' job description states, "Has knowledge of all policies and procedures as written by Phelps Community Medical Center and follows according [sic]." II. ANALYSIS Section 2(11) of the Act defines a "supervisor" as, [A]ny individual having authority, in the inter- est of the employer, to hire , transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or re- sponsibly 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. The types of supervisory authority are listed in the disjunctive and authority with regard to any one is sufficient to confer supervisory status. Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949), cert. denied 338 U.S. 899 (1950). However, the exercise of authority must be in conjunction with independ- ent judgment in the employer's interest. NLRB v. City Yellow Cab Co., 344 F.2d 575 (6th Cir. 1965). Although the Regional Director recognized that a significant portion of the LPNs' duties relate to patient care and involve routine work, he found that they are statutory supervisors. As noted previ- ously, the LPNs are not involved in hiring, trans- ferring, laying off, recalling, or adjusting employee grievances. However, the Regional Director found that LPNs schedule breaks and "extra duties"; an- 490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nually fill out evaluations of aides that have been relied on in terminating an employee; write disci- plinary warnings that have been acted on in disci- plining an employee; are authorized to suspend em- ployees; and are in charge of the facility at night and on weekends . We find that the evidence does not support the Regional Director 's conclusions. Our assessment of the record evidence reflects our view that a party seeking to exclude an individual from voting for a collective-bargaining representa- tive has the burden of establishing that the individ- ual is, in fact, ineligible to vote. Ohio Masonic Home, 295 NLRB 373 (1989), and cases there cited. Accordingly, whenever the evidence is in conflict or otherwise inconclusive on particular indicia of supervisory authority, we will find that supervisory status has not been established, at least on the basis of those indicia. A. Responsible Direction/Assign Factors In agreement with the Regional Director, we find that a significant portion of the LPNs day-to- day direction of aides is routine. Moreover, we find that it is "primarily in connection with patient care, and not in the interest of the employer." Beverly Manor Convalescent Center v. NLRB, 727 F.2d 591 (6th Cir. 1984). On this issue, the testimony of the LPN and the director of nursing and the documen- tary evidence were in agreement . Most of the LPNs' duties are for them to provide patient care. To the extent that they direct the work of the aides it is primarily regarding patient care pursuant to physician's orders. The only evidence of nonpatient care direction or assignment is the inclusion on the monthly patient care assignment sheet of duties such as cleaning or restocking supplies. The Re- gional Director placed emphasis on this assignment but failed to consider the fact that these occasional and minor assignments are randomly selected by the aides. This removes any independent judgment that might have been associated with this duty. With regard to the assignment of employees, the director of nursing assigns both the LPNs and the aides to their work locations and the LPNs have no authority to change these assignments . The di- rector of nursing also establishes the hours that the LPNs and the aides work . The only situation in which LPNs are associated with changing employ- ees' working hours is in case of sickness or emer- gency. The LPNs do not determine if employees who are sick or in an emergency situation can leave work. The LPNs' calling in replacements for employees who call in sick before the start of the shift does not indicate the exercise of independent judgment because it is done pursuant to the Em- ployer's standing policy of calling in replacements on a strict seniority basis . Similarly, deciding to call in a replacement based on the hour in which a sick employee leaves does not indicate the inde- pendent judgment necessary to show supervisory status. B. The Reward/Promote Factors As noted earlier, there is no contention that LPNs have the authority to reward or promote any employee on their own. The only question is whether their participation in the annual review process establishes supervisory status . There is no evidence that an evaluation, on its own, has result- ed in any personnel action . The Employer has no policy of granting raises based on them , and there is no evidence of promotions or demotions. The noneffect of the evaluations is illustrated best by the director of nursing's testimony, "They stay there. The evaluations-they stay there" in the em- ployee's personnel file. In Passavant Health Center, 284 NLRB 887, 891 (1987), the Board stated that, "The authority simply to evaluate employees without more is in- sufficient to find supervisory status ." In this case, as in Passavant, the record does not show that the evaluations constitute effective recommendations for promotions, wage increases, or discipline. See also Geriatrics, Inc., 239 NLRB 287 (1978). C. Discipline/Discharge Factors In Passavant Health Center, supra, in which no supervisory status was found , the Board stated: [T]he issuance of written warnings that do not alone affect job status or tenure do not consti- tute supervisory authority. [F]or the issuance of reprimands or warnings to constitute statutory supervisory authority, the warning must not only initiate , or be con- sidered in determining future disciplinary action, but also it must be the basis of later personnel action without independent investi- gation or review by other supervisors. [284 NLRB 889-890.] In the present case, the Regional Director found that LPNs are authorized to write up aides without consulting with the director of nursing and that de- cisions to discharge aides can be and have been made based on such notices. Neither of these find- ings is supported by the evidence considered as a whole. As noted above, an LPN testified, "If you [an LPN] feel a nurse aide has done some indiscretion, you call the Director of Nursing and ask her if that is a valid write-up situation. If she says it is, then PHELPS COMMUNITY MEDICAL CENTER 491 you fill out the necessary paper." The director of nursing, who testified after the LPN, merely an- swered negatively to the question "Does [the LPN] have to check with you before she gives that disci- plinary notice?" Thereafter, in her only narrative testimony about how a writeup comes to exist, the director of nursing provided an example in which the LPN checked with the director of nursing before writing up an aide for being "too slow." We note also that although the LPN job description and the employee handbook disciplinary rules are quite detailed, neither mentions LPN responsibility for writing up employees. And, although the writeups in evidence indicate that LPNs do write up aides in some circumstances , there is no evi- dence on which we can determine whether these were written after consultation with the director of nursing or without consultation. Based on the evi- dence as described above, we cannot conclude, as did the Regional Director, that the LPNs exercise independent judgment in writing up employees. Pine Manor Nursing Home, 238 NLRB 1654 (1978). Even if we were to find that the LPNs exercised independent judgment in deciding to write up em- ployees, no supervisory status in the LPNs would be established because the facts do not support the Regional Director's finding that decisions to dis- charge aides have been based on the writeups.13 All that can be concluded from the evidence is that once an infraction is written up (however it is initiated) it is placed in the employee's personnel file. From the director of nursing's narrative testi- mony, if the writeup is "general" or "minor," e.g., too many days without a doctor's excuse, then she handles it herself. The director of nursing did not explain the meaning of handling it herself-wheth- er she investigates the conduct or evaluates the penalty on her own. However, subsequent testimo- ny of the director of nursing indicates that she does not automatically take adverse action based on the writeups. She added that her response "varies" and "we don't have a set policy" and explained that she would not want to fire an employee who had three writeups if that employee had improved over the course of receiving them and that she would ask the LPNs' opinion.14 's The Regional Director's finding may have been based on the direc- tor of nursing's affirmative response to the following question by the Em- ployer's attorney. "And based on that [disciplinary notice] and [in] the manner in which you previously discussed the meeting with the LPNs, are decisions made to discharge such employees ?" We note that the ques- tion specifically relates any discharges to the director of nursing's prior testimony, which we discuss below 14 Nor does the evidence of the two roundtable meetings indicate that personnel action is taken on a certain number of writeups without further review Regarding the meeting over the employee accused of roughness and cursing there is no evidence that there was any writeup at all that triggered the meeting Moreover, the director of nursing herself had con- ducted an independent investigation of the incident. With regard to the We also do not find supervisory status based on the director of nursing's request for LPNs' "opin- ions" or "judgment" when she was planning ad- verse personnel action in the three-writeup situa- tion and the two roundtable meetings. The director of nursing admitted on cross-examination that it is she who makes the determination to discharge someone in connection with a violation of rules. The three examples of consultation with the LPNs do not disturb this admission because, we find, they are essentially requests for information. First, we note that it is the director of nursing who initiates the consultation, not an LPN, and the director of nursing does it only on occasion-"If there's a question in my mind about an employee." In each case, it is apparent that, before the consultations, the director of nursing had determined the person- nel action that she thought was appropriate: dis- charge unwarranted in the three-writeup situation; warranted in the other two. In the consultations the director of nursing asked if everybody agreed with her judgment. A literal reading of her testi- mony would indicate that there was always unani- mous agreement with the director of nursing with no discussion. This would fail to show that the LPNs exercised any independent judgment in such matters. It would be unreasonable to conclude, however, that the director of nursing's request- "Am I right? Do you all agree with my opin- ion?"-is met with silent acquiescence . As the di- rector of nursing explained, "[t]hey work with these nurse aides, they work closely with them. They know more about how they work than I do." It is apparent to us that the director of nursing, having made a provisional determination of what is an appropriate personnel action based on the perti- nent facts of which she is aware, is seeking confir- mation or correction of her view of the facts from persons with closer knowledge. D. The Suspension Factor As noted above, the director of nursing testified that LPNs can send an aide home "under extreme circumstances" such as "patient abuse, if an aide comes to work intoxicated, or starts a fight." She stated that such suspensions had occurred a couple of times in the past, and she gave one example- the incident involving the aide who cursed and roughly treated a patient (fn. 11, infra). For several reasons, this testimony does not establish 2(11) au- thority on the part of the LPNs. aide discharged the night before the hearing , it is clear that it was not merely an application of a progressive discipline system because the di- rector of nursing's testimony indicates that she reviewed the conduct on her own and developed her own opinion about the proper result that she then presented to the persons gathered 492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD First, regarding "extreme circumstances " disci- pline generally, the Board has long held that au- thority that is limited to taking action in response "to flagrant violation of common working condi- tions, such as being drunk , is insufficient by itself to establish supervisory status." Loffland Bros. Co., 243 NLRB 74, 75 fn. 4 (1979), and cases there cited. Second, concerning the particular example given, the action appeared to be taken in connec- tion with patient-care responsibilities , and the LPN called the director of nursing before sending the aide home. Whether the call was to obtain permis- sion or simply to inform the LPN's superior, the fact remains that the director of nursing was af- forded an opportunity to review the proposed action and either approve or countermand it. Finally, we note that in this case the exercise of independent judgment in matters of discipline is further limited by the Employer's extensive set of rules of conduct that indicate the response to be taken to various forms of misconduct. The director of nursing's testimony indicates that the LPNs either know the rules or use the handbook. No ex- amples were presented of situations that would not be covered by the published rules. Further, the di- rector of nursing and assistant director of nursing are always either present in the facility or on call- available to be consulted as in the cursing and rough treatment incident referred to above. would be 1 to 3. Either ratio could be argued, with some force, to be unreasonable . We find that in the instant case it is not a useful indicator.' 6 The Employer emphasized, and the Regional Di- rector relied on, the fact that the night and week- end LPNs are "in charge" of the facility . We note, however, that the employee handbook for person- nel matters, the policy and procedure manual, and the disaster manual are always on hand . According to the director of nursing's testimony, the latter two manuals contain detailed instructions on a gamut of potential issues, from making beds to run- away patients. Moreover, the director of nursing and the assistant director of nursing are on call. In these circumstances, we do not find that the LPNs' independent judgment is required . Geriatrics, Inc., supra; Western Union, 242 NLRB 825, 829 (1979). We agree with the Seventh Circuit in Westing- house Electric v. NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970): The act gives the employer a right to have employees who are really supervisors excluded from bargaining units. But the board has a duty to employees to be alert not to construe supervisory status too broadly because the em- ployee who is deemed a supervisor is denied employee rights which the act is intended to protect. E. Other Factors When none of the factors listed in Section 2(11) indicate supervisory status, the Board has also ex- amined certain secondary factors. Flexi-Van Corp., 228 NLRB 956 (1977). One is the designation of the employee in question . Here, we have noted, the Employer's job descriptions state that the director of nursing is the supervisor of both the LPNs and the aides. There is no evidence of LPN attendance at management or supervisory meetings, another secondary factor. Moreover, the LPNs, like the aides and unlike most of the stipulated supervisors, wear uniforms and are hourly paid. The ratio of supervisors to employees is another secondary factor that the Board has considered. If the LPNs are found not to be supervisors, the su- pervision of the nursing department would include the administrator, the director of nursing, and the assistant director of nursing, a ratio of about 1 to 18. If they are found to be supervisors, the ratio In this case the evidence does not show that the LPNs exercise, in the Employer's interest, inde- pendent judgment in conjunction with any of the factors that establish supervisory status under Sec- tion 2(11). We conclude that they are not statutory supervisors. ORDER The Regional Director's decision is reversed with regard to the supervisory status of the li- censed practical nurses and licensed practical nurse applicants and the case is remanded to him for fur- ther appropriate action. 18 Even if it were possible to conclude that a 1 to 18 ratio is unreason- able and I to 3 is reasonable, it would not change our conclusion because such a ratio is not a factor that the Act directs us to consider . It is not the province of the Board to determine the "proper " number of supervi- sors Sec. 2(11) determines the factors that, in conjunction with the exer- cise of independent judgment, indicate supervisory status for the purpose of this Act, and it is the Employer who determines how its business is operated and what kind of responsibility to give to its various employees.