Extendico-Professional Care, Inc

EXTENDICO-PROFESSIONAL CARE 599 Extendico-Professional Care, Inc and Service Em- ployees International Union Local No. 50, AFL-CIO-CLC. Case 14-CA-15134 28 September 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 9 July 1982 Administrative Law Judge James J O'Meara Jr issued the attached decision The Respondent and the General Counsel filed excep- tions and briefs in support of their exceptions The National Labor Relations Board Was delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified 2 We agree with the judge's findings and conclu- sions that the Respondent's licensed practical nurses (LPNs) are not supervisors within the mean- ing of the Act In view of our colleague's dissent, we review some of the judge's critical findings LPNs do not hire, fire, promote, reward, or ef- fectively recommend such action In the course of their own patient-care duties LPNs direct aides in the performance of aides' patient-related duties, but ' The Respondent has excepted to some of the judge's credibility find ings The Board's established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In agreeing with the judge that jurisdiction was properly asserted over the Respondent, Member Zimmerman notes that the Board has overruled the adjunct theory relied on by the Respondent here Wordsworth Academy, 262 NLRB 438 (1982) Member Dennis agrees that jurisdiction was properly asserted in this case In so doing, she finds it unnecessary to pass on National Transportation Service, 240 NLRB 565 (1979), or Words worth Academy supra, since junscliction would be asserted here under any view of the law The General Counsel excepted to the judge s failure to find that the Respondent violated Sec 8(a)(1) of the Act by informing employees Rose Lankford and Marilynn Walker that they were discharged for having en gaged in union activity In the complaint, the General Counsel specifical ly alleged that the Respondent violated the Act when Director of Nurs mg Brennen told an employee by telephone that the employee was dm charged because she engaged in union activity It was also alleged that the Respondent s administrator Gerstenecker told an employee she was fired because of the employee's union activity The judge in fact found that Director of Nursing Brennen told Walker that Walker was dis charged because of her union involvement He also found that adminis trator Gerstenecker Informed Lankford that Lankford was terminated for coercing people into the Union Based on the foregoing, we find merit in the General Counsel s exceptions, and thus find the additional violations as alleged and proven See R & H Masonry Supply, 238 NLRB 1044, 1048 (1978) 2 The judge inadvertently referred to Region 4" Instead of "Region 14' in pars 2(d) and (e) of his recommended Order He also inadvertent ly entitled his "Appendix" as Notice to Members" instead of Notice to Employees" We hereby correct these inadvertent errors such direction or assignment of duties is of a rou- tine professional nature and emanates from LPNs' high level of training and experience in caring for patients "[D]iscretion exercised in accordance with a professional judgment as to the best interests of the patient rather than a managerial judgment as to the employer's best interests is not super- vision under the statute" NLRB v Res-Care, Inc , 705 F 2d 1461, 1468 (7th Or 1983), enfg 261 NLRB 160 (1982) Our dissenting colleague asserts that LPNs exer- cise disciplinary authority and points to testimony that an LPN could have reported an employee for sleeping on the job and an LPN threatened to write up an employee who did not come to work as evidence of such disciplinary authority Of course, if an individual possessed responsibility for taking such action, it would be evidence of super- visory authority But, we are persuaded that the testimony on which our dissenting colleague relies is anecdotal, and that these isolated instances of action or inaction do not evidence that LPNs have responsibility (much less have ever exercised au- thority) to discipline or effectively to recommend discipline It is asserted that LPNs can require employees to work overtime, and that this power imbues the LPNs with supervisory authority Yet the selection of employees for overtime usually depends on the need for a minimum number of aides on a shift to perform the required tasks to ensure proper patient care As to the LPNs' authority to discipline em- ployees or to threaten discipline, the record is sin- gularly lacking in evidence reflecting statutory su- pervisory powers An example of a threat of disci- pline involved an LPN telling a maintenance em- ployee he would be reported to the facility's ad- ministrator if the maintenance employee did not fix an unsafe working condition No report was ever made In another case, an aide could have been re- ported for sleeping during duty hours Again, the LPN did not report the employee As can be readily observed from the foregoing, and the facts as discussed by the judge and con- tained in the record, the Respondent's LPNs are not supervisors Isolated incidents, routine applica- tion of rules to ensure proper patient care, and lack of any authority to affect an aide's employment status by way of hiring, discharge, evaluation, or discipline, convince us that the LPNs under consid- eration are employees entitled to the protection of the Act Accordingly, we affirm the judge's find- ings on the supervisory issue and the related find- ings of unlawful discrimination against LPNs Lank- ford and Walker 272 NLRB No 95 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AMENDED CONCLUSIONS OF LAW Add the following as Conclusion of Law 4, and renumber the remaining paragraph accordingly "4 The Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) by informing employees Rose Lankford and Marilynn Walker that they were discharged for engaging in union activity and protected concerted activity" ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Extendico-Professional Care, Inc , Troy, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Insert the following as paragraph 1(b) and re- letter the subsequent paragraphs accordingly "(b) Informing employees that they were dis- charged because of their union activities" 2 Substitute the attached notice for that of the administrative law judge MEMBER HUNTER, dissenting This case involves the delicate question of whether the Respondent's nurses are supervisors within the meaning of Section 2(11) of the Act Based on the record evidence indicating that the li- censed practical nurses (LPNs) at the Respondent's residential care facility for the mentally retarded exercise authority which is truly supervisory in nature, I find that the LPNs are statutory supervi- sors Accordingly, I would dismiss the 8(a)(3) alle- gation of unlawful discharge of the LPNs 1 Foremost in consideration of the supervisory status of the Respondent's LPNs is their authority over aides who work on the shifts with the LPNs LPNs are in charge of seeing that aides perform their duties They can assign the aides work and can check on the aides' performance of that work The significance of these factors is magnified since the LPNs are the sole management personnel on duty during late shifts At these times, it is the LPNs who are truly in charge of the aides Indeed, if employees have problems the LPNs are the only supervisors they can consult In addition, LPNs may exercise disciplinary authority over aides The record contains evidence of an LPN who could have reported an employee for sleeping on the job, but who decided not to report the rule infraction and, instead, tried to correct the immediate prob- ' Although I do not subscribe to the jurisdictional theory as explicated in National Transportation Service 240 NLRB 565 (1979) see my dissent in Wordsworth Academy 262 NLRB 438 (1982), I would assert junsdic lion in this proceeding lem An LPN also threatened to write up an em- ployee who did not come in to work These were not idle threats but were, instead, the exercise of disciplinary authority to achieve desired manage- ment objectives Overtime may be required of an employee by an LPN, since LPNs have the author- ity to hold aides over on to another shift if the fa- cility is short of staff LPNs may also permit em- ployees to leave the facility early if circumstances permit On these facts, it is undeniably clear that the Re- spondent's LPNs are supervisors under the Act The authority exercised by the LPNs here is not simply an outgrowth of their training or primarily incidental to patient care, but requires the use of in- dependent judgment in the Respondent's interest 2 Thus, the Respondent's discharge of its supervisory LPNs Lankford and Walker did not violate the Act 3 I would therefore dismiss the complaint in its entirety 4 2 See, e g, Wedgewood Health Care, 267 NLRB 525 (1983), Northwoods Manor Inc , 260 NLRB 854 (1982), Wright Memorial Hospital, 255 NLRB 1319 (1981) 3 See generally Parker Robb Chevrolet 262 NLRB 402 (1982) 4 Since the Respondent could lawfully discharge its supervisors for en gaging in union activity, It did not violate the Act by telling the dis charged LPNs that the reason for their termination was their union achy/ it y APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT discharge employees because they have engaged in protected concerted activities for the purpose of mutual aid and protection WE WILL NOT inform employees that they were discharged because of their union activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- EXTENDICO-PROFESSIONAL CARE 601 cise of the rights guaranteed you by Section 7 of the National Labor Relations Act WE WILL offer Rose Lankford and Marilynn Walker immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any losses sustained as a result of our discriminatory and unlawful action, with interest WE WILL expunge from our files any reference to the discharges of Rose Lankford and Marilynn Walker and notify them in writing that this has been done and that evidence of their unlawful dis- charges will not be used as a basis for future per- sonnel action against them EXTENDICO-PROFESSIONAL CARE, INC DECISION STATEMENT OF THE CASE JAMES J O'MEARA JR , Administrative Law Judge The charges underlying this case were filed on July 1, 1981, by Service Employees International Union, Local 50, AFL-CIO The complaint was issued on August 7, 1981 The Respondent filed its answer to the complaint on August 20, 1981 The complaint and answer were amended at the commencement of the hearing The hearing was held in St Louis, Missouri, on No- vember 16, 17, and 18, 1981 At the close of the hearing the parties waived oral argument and subsequently filed briefs which have been received and considered The amended complaint alleges that Respondent meets the several criteria necessary to bring it within the statu- tory provisions and Board parameters under which the Board will exercise its jurisdiction, and that the Re- spondent violated Section 8(a)(1) and (3) of the Act by discharging two employees because of the exercise of their several rights guaranteed by Section 7 of the Act and that Respondent also interfered with the rights of its employees under Section 7 of the Act The Respondent denies that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Respondent is not, and should not be, subject to the jurisdiction of the Board It further denies that it has violated the Act In consideration of the entire record in this case, the demeanor of the several witnesses, and the briefs and ar- guments of counsel, the following findings are made I JURISDICTION A Jurisdictional Facts The Respondent, a Delaware corporation, maintains its offices and business facilities in Troy, Illinois, where it operates an intermediate care facility for the develop- mentally handicapped During the 12-month period ending July 31, 1981, the Respondent, in the course and conduct of its business operations, derived gross reve- nues in excess of $100,000, and purchased, and caused to be transported and delivered to its facilities in Illinois, materials and services valued in excess of $50,000, which materials and services were transported and delivered to its facilities directly from points outside the State of Illi- nois 1 The residents at Respondent's facility are persons 18 years of age or over who have, to varying degrees, de- velopmental handicaps Generally, the Respondent pro- vides these residents with housing and subsistence as well as physician-prescribed medication, assistance with personal care, speech and motor development, and those services designed to create an environment proximating, to the extent practicable, a "normalization" The comple- ment of residents at Respondent's facility varies in number to a maximum of 149 At the time in question Respondent's residents numbered 138 Respondent's source of candidates for residence is primarily several agencies of the State of Illinois, however, it also accepts residents from private sources Of the 138 residents, all but one was a resident whose cost of residency at Re- spondent's facility was borne by the State of Illinois When a candidate for residency is proposed by a state agency, the Respondent may accept or reject the pro- posed candidate The decision to accept or reject is made as a result of Respondent's staff evaluation 2 The State of Illinois prescribes certain criteria which Respondent and other similanly situated institutions must meet in order to qualify for state reimbursed placement of residents 3 B Discussion The Respondent contends that it is not an "employer" as that term is defined in Section 2(2) of the Act and is not the "type" of health care institution over which the Board has "intended" to assert jurisdiction Section 2(2) of the Act defines the term "employer" when used in the Act to include [A]ny person acting as an agent of the employer, di- rectly or indirectly, but shall not include the United States or any wholly owned Government corpora- tion, or any federal reserve bank, or any State or political subdivision thereof Section 2(14) of the Act defines the term "health care in- stitution" when used in the Act to include ' The foregoing findings of fact are based on the allegations of the amended complaint and the admissions in regard thereto by the Respond ent The complaint however, Inadvertently alleges the transportation and delivery of materials and services in excess of $50,000 from outside the State of ' Missouri' This inadvertence will be corrected sua sponte by substituting "Illinois" for Missouri 2 The record does not identify the personnel of Respondent comprising such staff nor the details of the evaluation or decisionmaking process with regard to acceptance or rejection of a candidate for residency 3 These criteria are not reflected by this record The record further does not reflect any control nor participation by any state agency over or in the management fiscal policy, staffing, or paraprofessional services rendered by the Respondent to its residents 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [A]ny hospital, convalescent hospital, health mainte- nance organization, health clinic, nursing home, ex- tended care facility, or other institution devoted to the care of sick, infirmed or aged persons It is clear that the Respondent is not a political subdi- vision of the State of Illinois nor does the Respondent argue that it is Respondent, however, contends that it is an "adjunct arm" of and has an "intimate connection" with the State The evidence in this record discloses that the State has referred all but 1 of the 138 residents to Re- spondent's facility and bears the cost of maintaining these 137 residents The record is deficient in detailing any state licensing requirements for facilities such as the Re- spondent's but it can be safely assumed that there are such requirements which facilities such as Respondent must meet in order to make them eligible for placement of residents by state agencies The Supreme Court has held that the employers are exempt political subdivisions under Section 2(2) of the Act if they are either (1) created directly by the State, so as to constitute departments or admin- istrative arms of the government, or (2) adminis- tered by individuals who are responsible to public officials or to the general electorate [Association for the Developmentally Disabled, 231 NLRB 784 (1977) ] The Respondent here does not meet either test The Respondent is a privately owned Delaware corporation It is not created directly by the State of Illinois so as to constitute a department or administrative arm of that state government Respondent's administration is not sub- ject to supervision by the State or any agency thereof nor is it answerable to public officials or the electorate The Respondent determines and sets its policies, super- vises its operations, hires and fires its employees, sets wages and salaries, determines working hours, and other conditions of employment The issue raised by Respond- ent's contention that an "intimate connection" with the State deprives the Board of jurisdiction was set to rest in the case of National Transportation, 240 NLRB 565 (1979) In that case the Board stated A leading case enunciating the "intimate connec- tion" test is Rural Fire Protection Company 3 in which the majority described the test as having two aspects (1) whether the nonexempt employer re- tains sufficient control over its employees' terms and conditions of employment so as to be capable of effective bargaining with the employees' repre- sentative, and (2) where the employer retains such control, "the focus of necessity is on the nature of the relationship between the purposes of the exempt institution and the services provided by the nonex- empt employer We conclude that the first aspect of this test-1 e , whether the employer would be able to bargain effectively about the terms and conditions of employment of its employees—is by itself the appropriate standard for determining whether to assert jurisdiction in situations such as that presented in the instant case Once it is deter- mined that the employer can engage in meaningful collective bargaining with representatives of its em- ployees, jurisdiction will be established Section 14(c)(1) of the Act is the basis of the Board's discre- tion to "decline to assert jurisdiction over any labor dispute involving any class or category of employ- ers, where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdic- tion" However, nothing in the legislative history of this provision indicates any congressional intent that the Board decline to assert jurisdiction over any employer solely because of the relationship between services it provides to an exempt entity and the pur- pose of such entity We see no need to examine the relationship between an employer and an exempt entity for which it performs services for some abstract "inti- mate connection" which has no bearing on the em- ployer's ability to bargain effectively with a labor organization as representative of its employees and which requires a meticulous and, in our view, su- perfluous analysis of the facts in order to ascertain whether in the Board's opinion the employer's serv- ices are essential to the purposes of the exempt entity, universally recognized as a governmental function, statutorily mandated or noncommercial in nature Accordingly, we conclude that the "right of con- trol" test provides a more objective, precise, and definitive standard for determining discretionary ju- risdictional issues than the "intimate connection" test By utilizing the former we shall avoid some of the ambiguities presented by the latter and better exercise the discretionary jurisdiction allowed us under Section 14 of the Act 3 216 NLRB 584 (1975) In a more recent holding involving an entity similar to the Respondent, the Board held in Krebs School Founda- tion, 243 NLRB 514 (1979) that Although the evidence shows that the Employer must meet certain requirements in order to qualify for the placement of students under state or local public funding, in our opinion it does not show that the school is an adjunct of the exempt public school system First, it does not have to accept students re- ferred under chapter 766 and does, in fact, accept other students whose tuition is privately funded Further, the evidence shows that except for setting minimum requirements, the government does not dictate what physical facilities the Employer main- tains, its hours of operation, its personnel policies, salaries, or any of its day-to-day operations The fact that the school performs an educational func- tion for the Commonwealth of Massachusetts which, by law, is required to guarantee an educa- tion to each child does not make the school an ad- junct of the public school system EXTENDICO-PROFESSIONAL CARE 603 Nor is the Employer's contention that it is "inti- mately connected" to the state and local govern- ments a ground for declining jurisdiction As the Board stated in National Transportation Services, Inc , it will no longer consider the so-called intimate connection test in ascertaining whether to assert ju- risdiction over an employer Rather, if an employer meets the definition of an "employer" under the Act and has sufficient control over the employment conditions of its employees to enable it to bargain with a labor organization as their representative, we will assert jurisdiction The evidence here shows that the Employer hires and fires its own employees and sets their hours of work, salaries, supervision, and other working conditions without outside inter- ference Accordingly, we conclude that the Em- ployer retains sufficient control over its employees to enable it to engage in collective bargaining with a representative of its employees It is clear from the foregoing that the Respondent here is not immune from the jurisdiction of the Board and, on the contrary, is an entity, the nature of which reflects that type of entity which the Board has, in the past, exer- cised, and continues to exercise, jurisdiction both as a matter of law and Board rule of decision pursuant to Section 14(c) of the Act C Conclusion The Respondent is, and at all times material herein was, an employer enaged in commerce within the mean- ing of Section 2(2), (6), (7), and (14) of the Act and that it will effectuate the policies of the Act to assert jurisdic- tion in this case II THE LABOR ORGANIZATION Service Employees International Union, Local 50, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A General Factual Findings As set forth above, the Respondent operates an inter- mediate care facility for the developmentally handi- capped over 18 years of age The facility, at the time in question, housed 138 residents in a mens' wing, womens' wing, and what is called the new wing The residents suffer from a variety of mental and physical handicaps and nearly all receive regular medical attention Some residents require assistance in personal care and hygiene while others have the ability to function more independ- ently Some residents suffer seizures which require nurs- ing attention The residents receive other kinds of medi- cal treatment from the nursing staff such as enemas, foot soaks, etc The Respondent also provides therapeutic and rehabilitation services for its residents of whom some, termed "workers," work outside the home in various outreach programs Janice Gerstenecker is the administrator of the facility and is responsible for the day-to-day operation of the fa- cility She and Respondent's owner set employee wages and benefits and hire, discharge, and discipline employ- ees Respondent also employs a director of nursing to su- pervise the nursing staff At the time material, Margaret Brennen occupied that position She supervised a nursing staff of 6 LPNs and 16 to 18 nurses aides The LPNs are licensed by the State of Illinois after completing a 1-year course of study and passing a required examination The nurses aides complete a shorter training course and are also certified by the State The LPNs and nurses aides are paid hourly and punch timeclocks The home provides nursing services and care to pa- tients 24 hours a day There are three 8-1/2 hour over- lapping shifts which are staffed by at least one LPN and two to four aides The shifts run from 7 a m to 3 30 pm, 3 pm to 11 30 pm, and 11 pm to 730 am The administrator and the director of nursing are at Respond- ent's facility Monday through Friday from 9 a m to 5 30 p m and from 7 a m to 3 30 p m, respectively Both share being "on call" during the remaining hours and are available to th; staff 24 hours a day LPNs, in the course of their daily functions, provide direct patient care, see to the preparation and administra- tion of medications, and are responsible for the mainte- nance of patients charts Nurses aides perform tasks re- quiring little or no professional knowledge such as, cleaning showers, mopping floors, assisting residents with personal care and hygiene, making bed checks, and generally assisting LPNs when requested The LPNs see that the nurses aides complete their regularly scheduled duties, do not overstay breaks or lunch periods, do not sleep on the job, and correct an aide improperly per- forming her duties 4 The LPNs were also required to see to it that the employees conform to the expressed and written policies of the Respondent's facility Such poli- cies included appropriate dress, no gambling or drinking on the job, and courtesy in the treatment of, and contact with, residents LPNs do not engage in the written job evaluation of aides In the event a supervisor would request an opinion on a nurses aide it would be given by the LPN The em- ployee evaluations, however, were made by the director of nursing who is responsible for interviewing, hiring, promoting, transferring, or discharging a nurses aide and that she performed these duties without any assistance from LPNs When no director of nursing was employed, the administrator did the hiring for the facility No LPN ever hired, interviewed, discharged, promoted, or trans- ferred any employee nor have they recommend any such action LPNs do verify nurses aides' timecards Overtime is approved only by the director of nursing and, in the 4 The LPNs who testified stated that their duties were as above set forth, however, the need for such action has not arisen frequently and no LPN was ever required to report an offending nurses aide to the director of nursing nor have the LPNs ever taken any written disciplinary action against an aide Such action has been taken by supervisors on occasion The former director of nursing, Joyce Mueth, testified that It was she who was responsible for disciplining the nursing staff and that she did not expect LPNs to do more than tell the nurses aides to do their job or to report problems to her 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD event such requests for overtime, arose on shifts other than that in which the director of nursing was at the fa- cility, the request was telephonically approved by the di- rector Respondent periodically held staff meetings on Monday mornings at which various departmental super- visors attended, the director of nursing, the administra- tor, and the day shift LPN The purpose of these meet- ings was to discuss patient problems which had occurred over the weekend and to evaluate applications from pro- spective residents These staff meetings were not attend- ed by evening and night shift LPNs B The Rise of Union Activity LPN Marilynn Walker was employed by Respondent as an LPN from September 21, 1975, to June 25, 1981 During the latter part of her tenure with Respondent, Marilynn Walker worked the night shift with aides Painter, Ganes, Moore, and Hoffman During the month of June, the night aides received a new assignment from Administrator Gerstenecker whereby they were required to mop the dining room floor This apparently caused unrest among the employees and the subject of organiz- ing was raised LPN Rose Lankford testified that her husband, a steward in his own union, arranged for a rep- resentative from Local 50, Services Employees' Interna- tional Union, to contact her This contact was made on June 23, 1981, after which Lankford spoke with Man- lynn Walker about the Union and she and Walker began talking to fellow employees about the benefits of union- ization A petition for representation was filed with Region 14 of the Board on July 27, 1981 LPN Marilynn Walker worked the night shift on June 24 and 25 (11 p m to 7 30 a m) Between 5 and 7 am, on the morning of June 25, she dispensed prescribed medication to those residents who she knew were out- side workers since the worker residents must leave the facility before 9 a m, which was the prescribed time for morning medication Such outside workers were given medication early even if they were not to leave for work on the given day This established procedure included the posting of the medication distribution in the patients' medication records It was also the practice of the night- shift LPN and the day-shift LPN to exchange informa- tion at the change of shifts Marilynn Walker, conform- ing with the practice, distributed the 9 a m medication to worker patients between 6 and 7 30 a m, including one Gerald Travelstead Travelstead had returned to the facility from the hospital on the day before and had not been released to return to work Marilynn Walker did not record this distribution of Travelstead's medication in his medication record 5 For some reason, not clear in the record, Marilynn Walker did not confer with Bernice Walker, the LPN charge nurse on the day shift (7 a m to 3 30 p m), about the advance distribution of medica- tion 5 The record is not clear whether Manlynn Walker recorded the act improperly or failed to record it at all The failure to record such infor mation in a timely manner was not unprecedented at Respondent's facili ty Bernice Walker dispensed the 9 a m medication to those patients who were nonworkers about 9 a m Tra- velstead, a worker but not working on the day in ques- tion, was given a second 9 a m medication Bernice Walker had dispensed the medication to Travelstead without checking his medication record nor conferring with Marilynn Walker about advance medication Later in the morning Travelstead told Bernice Walker that he had taken a second dosage of his morning medication Bernice Walker checked the medication record and called Marilynn Walker at her home and confirmed that Travelstead had received a double dosage of his 9 a m medication 6 Later that afternoon Marilynn Walker was discharged by Administrator Gerstenecker allegedly for the error in medical distribution of that morning Man- lynn Walker contacted Director of Nursing Brennen to ask the reason for her discharge Brennen advised her that it was because of her union involvement On June 27, Gerstenecker called employees Lankford, Painter, and Ganes to her office Gerstenecker raised the subject of the Union and talked about a nursing home which had been through a union organizing campaign where the employees had been on strike for 4 months The employees were eventually replaced She stated that Respondent would not tolerate a union and that Re- spondent's employees would have to do the same as those employees at other nursing homes Gerstenecker also told Lankford that she was a supervisor and could not vote in a union election On June 30, Gerstenecker called Lankford and in- formed her that she was being discharged because she was not "cooperating with management in a supervisory way" When Lankford asked what she meant by that, Gerstenecker told her that Lankford was "coercing people into the union "7 C Discussion and Conclusion In addition to contesting the jurisdiction of the Board over the Respondent in this case, the Respondent has contended that both LPNs Marilynn Walker and Rose Lankford were "charge nurses" and supervisory person- nel and the Respondent's actions in regard to these em- ployees are not covered by the provisions of the Act Section 2(11) of the Act defines supervisors The term "supervisor" means any 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 re- sponsibly to direct them, or to adjust their griev- ances, 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 judg- ment 6 Travelstead's doctor was advised and precautionary measures were taken Travelstead did not suffer any damage as a result of the double dosage 7 Respondent's counsel has conceded that if Lankford is not found to be a supervisor her discharge was a violation of the Act EXTENDICO-PROFESSIONAL CARE 605 In Madeira Nursing Center, 203 NLRB 323, 324 (1973), the Board deemed similarly employed nurses not to be within the statutory definition of supervisor and, there- fore, entitled to the protection of the provisions of the Act The Board said The operations are divided into nursing or patient care, housekeeping, and dietary Nursing is provid- ed at all times on a three-shift basis There are 9 nurses, about 25 nurses aides, and 2 orderlies The nursing home has east, west, and south wings On each shift, each wing has a charge nurse (RN or LPN) who is assisted by a varying number of aides, depending on the wing, the shift, or the need The LPN's are paid an hourly rate which is about 80 percent higher than aides' One orderly is on duty the first and second shift The aides and orderlies are assigned duties by the nurses There is also a housekeeping staff of four (at least one on each shift) and a kitchen staff (a first and a second cook and approximately two full-time and part-time help- ers), who receive instructions as to menus from a part-time outside consultant dietician and are super- vised directly by the director of nursing and her as- sistant The duties of the RNs and LPNs relate solely to patient care and include the administering of medi- cations, ordering of prescription refills, charting of patients' conditions, applying established procedures in emergencies, summoning physicians when, in their judgment, their services are required, and maintaining strict control over the narcotics supply Following schedules made up by the director of nursing, the nurses assign their aides a certain number of patients to attend The aides and order- lies are involved primarily in the environmental care of patients, i e, making their beds, tidying their rooms, bathing them, and assisting them in dressing, feeding, and moving about They may also be given direct nursing duties, such as taking temperatures When dictated by the condition of a patient, nurses also direct aides and orderlies to assist in medical treatments Testimony taken at the reopened hearing indi- cates that the RNs and LPNs do not have any au- thority to affect, either directly or by making effec- tive recommendations, the employment status of aides and orderlies working under their direction With respect to discipline, their role is confined to reporting situations to the director of nursing, who takes action only after conducting an independent investigation Work assignments and directions given by the nurses to aides and orderlies do not, in our opinion, require independent judgment but are either in accord with the scheduling done by the di- rector of nursing or dictated by the needs of the pa- tients The RNs and LPNs are not, therefore, super- visors as defined in the Act The record in this case establishes that no LPN had the authority to hire or to discharge any of Respondent's personnel nor did they have the authority to set the wages of such personnel or in any way to determine, or affect, the employment status of such employees nor could such nurses effectively recommend any of the above action The Respondent's administrator expressly reserved such authority to herself The work schedules for the nurses aides, as well as other employees, were prepared by the administrator or the director of nursing The extent of the LPN charge nurses' authority was to determine that the aides per- formed the functions necessary to maintain a proper en- vironment and assist patients in their personal needs In Madeira, the Board found that such question of aides in the performance of their work assignments does not re- quire independent judgment but are "either in accord with the scheduling done by the director of nursing or dictated by the needs of the patients" In this case, the LPNs did not prepare work assignments for the aides See also Trustees of Noble Hospital, 218 NLRB 1441, 1442 (1975), Brattleboro Memorial Hospital, 226 NLRB 1036 (1976), Valley Hospital, 220 NLRB 1339 (1975) While in this case it is clear that the LPNs have the au- thority to direct aides as to patient care, such authority arises from the LPNs' professional, rather than independ- ent, judgment Such directions can include cleaning up after an incontinent patient, assisting the LPN with a pa- tient experiencing a seizure, retrieving a resident who has removed himself or herself from the premises, or mop- ping floors pursuant to the directions from the adminis- tration Activities such as these related solely to the pa- tients' well-being or are prescheduled into the aides' rou- tine The aides at Respondent's facility made up their own schedules subject to approval by the director of nursing The LPNs did not participate in this process The aides, on being employed, trained each other and rotated jobs according to their own practice Clearly the authority possessed and practiced by the LPN charge nurse in this case in no way affects the employment status of the aides and such authority does not constitute indicia of supervi- sorship The LPNs at Respondent's facility had never engaged in any oral or written disciplinary procedures It is clear, from the testimony, that in the event a need for disci- pline arose the charge nurse was limited to advising the director of nursing or the administrator No such discipli- nary episode has ever arisen A former director of nurs- ing, Joyce Mueth, testified that it was not expected that the LPNs would discipline aides as that was the direc- tor's responsibility In Madeira, supra, the Board held that such type of disciplinary authority did not render a charge nurse a supervisor See also Pine Manor Nursing Home, 238 NLRB 1654 (1978) The LPNs here had never made written records of disciplinary warnings, however, supervisors at Respond- ent's facility had used warning forms which became part of the employees' record The lack of evidence of writ- ten disciplinary procedures by the LPNs, particularly in light of the evidence that admitted supervisors completed written disciplinary forms, supports the conclusion that the LPNs here are not supervisory personnel 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The LPNs had the authority to initial timecards for aides reflecting their absences from work if ill, and under certain circumstances, the LPNs could require employ- ees to work overtime The expressed policy of Respond- ent with regard to overtime, however, is that such must be approved by the administrator or the director of nurs- ing The charge nurses were not authorized to adjust em- ployee grievances nor is there any evidence in this record that such was undertaken by any LPN Supervisory meetings held by the Respondent were at- tended by the administrator, the director of nursing, and other acknowledged supervisors as well as the LPN on the day shift These meetings were not attended by other shift charge nurses The purpose of such meetings was acknowledged to be the discussion of patient care and progress or other circumstances which may have arisen over the weekend while management personnel were absent Such meetings, although characterized as supervi- sory meetings, were not, in themselves, indicia of the su- pervisory status of those who attended The fact that the LPN was the highest professionally trained person at the facility at night suggests some su- pervisory capacity However, it is important to note that the administrator and the director of nursing were on 24- hour call See Geriatrics, Inc , 239 NLRB 287 (1978) There was no authority, which the record disclosed, extended to the charge nurse LPN which can be deemed to establish a supervisory status for the LPN charge nurse Whatever authority was possessed by the LPNs is concluded to be merely routine or clerical in nature or such which naturally arises from the LPNs' higher level of training and experience In no way does any of such characteristics of employment require the use of the LPNs charge nurses' independent judgment such as would support a conclusion that they have authority, in the interest of the employer, to do those things which the Act lists in the definition of a supervisor The LPN charge nurse and specifically Marilynn Walker and Rose Lankford are, therefore, not supervisors as defined by the Act D The Discharges Rose Lankford was discharged on June 30, by Admin- istrator Gerstenecker who informed her that she "wasn't cooperating with management in a supervisory way" and that she was "coercing people into the Union" The ad- ministrator had acted under the alleged assumption that Lankford, an LPN charge nurse, was a supervisor As heretofore determined, Lankford was not a supervisor and is an employee subject to the protection of the pro- visions of the Act Her discharge, therefore, was a viola- tion of Section 8(a)(1) and (3) of the Act 8 Marilynn Walker was discharged by the administrator on the afternoon of June 25, allegedly because of her failure to record the distribution of medication to a resi- dent Marilynn Walker as night shift "LPN in charge" distributed prescribed medication to one Gerald Travel- stead who was a "worker" resident It was Respondent's practice to advance the time at which prescribed medica- 8 Respondent's counsel acknowledged that Lankford's discharge violat ed the Act if she was not found to be a supervisor bons were distributed to "worker" residents, since such resident was required to leave the facility to reach his place of employment prior to 9 a m Such practice pre- vailed even when a "worker" such as Travelstead, in this case, was not leaving for work on a given day 9 The Re- spondent's procedure provided that the resident's medi- cation record was caused to reflect the administration of prescribed medication Such entries were to be made by the LPN distributing the medication Athough Marilynn Walker gave Travelstead his 9 a m dosage, prior to the end of her shift at 7 30 a m , she either did not record such in the patient's medication record, or erroneously recorded it Marilynn Walker and LPN Bernice Walker who succeeded her as "LPN in charge" on the 7 a m shift did not, as was customary, confer orally at the change of the shift regarding matters including the ad- vanced dosage of medication to Travelstead As a result, Travelstead who, although a "worker," did not leave the premises to work that day, appeared at the nurses station and was given a second dosage of his medication by Ber- nice Walker Prior to distributing the second dosage of medication to Travelstead, Bernice Walker did not check the patient's medication record and, since she had not discussed this matter with Marilynn Walker at the end of the night shift, she was unaware that the dosage dis- pensed by her to Travelstead was his second for that time period The error came to light when Travelstead, after apparently taking his second 9 a m dosage, told Bernice Walker that he had been given medication by Marilynn Walker It is conceded that the error was a serious misfeasance caused by, first, the distribution of medication by LPN Marilynn Walker without so advising her successor charge nurse Second, this was compounded by the fail- ure of Bernice Walker to note that Travelstead, a "worker," appeared at the nurses' station for the 9 a m medication Bernice Walker did not consult the medical record for guidance (although such consultation would not have prevented the error) nor did she contact Man- lynn Walker for oral information until Travelstead dis- closed the error Bernice Walker should have recognized Travelstead as a "worker" and, in view of the practice to advance the 9 a m medication for such residents whether or not they were to go to work that day, should have been alerted 10 The discharge of Marilynn Walker for her part in the misdosage was within the prerogative of the Respondent It was a serious misfeasance and could have caused seri- ous damage or injury to Travelstead However, Man- lynn Walker, although she initiated the events compris- ing the error, was not the only employee involved in the 9 Travelstead had returned from a period in the hospital and had not yet been released by his doctor to work 10 It is deemed Imprudent for the Respondent to engage in such a loose practice as demonstrated by the evidence in the distribution of medication Advancing medication to some designated patients by a prior shift nurse and relying on a written record or oral advice of the fact cre ates conditions that make a duplication of medication a highly potential risk If this case included the issue of fault for the error of medication I would be compelled to find not only Marilynn Walker and Bernice Walker at fault but also the Respondent, itself, for allowing such a loose procedure to be maintained EXTENDICO-PROFESSIONAL CARE 607 mistake Bernice Walker gave Travelstead a "worker" medication at the 9 a m prescribed period when he was known to be a "worker" and should have received medi- cation from Marilynn Walker prior to the termination of the night shift Bernice Walker, thus, was also at fault She did not consult the medical record She did not dis- cuss the early medication with Marilynn Walker Only Travelstead's statement alerted her to the error Bernice Walker was not disciplined even by a reprimand but in fact was later promoted to assistant director of nursing I deem such discipline against Marilynn Walker to be dis- parate and thus credit Marilynn Walker's testimony that Margaret Brennen, the director of nursing at the time, told her that she was dismissed because of her union ac- tivity Respondent's right to discipline Manlynn Walker is undenied, however, the severe discipline was not meted to Marilynn Walker because she was a participant in a series of errors even though initiated by her and of a serious degree, but, I conclude, she was discharged be- cause, as the director of nursing told her, of her engage- ment in union activities One can only speculate as to the reason Respondent did not produce the former director of nursing, Brennen She was not shown to be unavailable to refute Marilynn Walker's testimony, however, I find that Marilynn Walk- er's testimony injecting Walker's union activity as a reason for her discharge to be credible The Respondent has not met its onus to show that Marilynn Walker's dis- charge was for good cause and not for engagement in any protected union activity Director of Nursing Bren- nen's statement that her discharge was for her union ac- tivities and the disparity of the treatment of Marilynn Walker compel the conclusion that Marilynn Walker's measure of discipline was inflicted because of her en- gagement in protected activities See Wright Line, 251 NLRB 1083 (1980) Accordingly, I find that the dis- charge of Marilynn Walker violates Section 8(a)(1) and (3) of the Act E Administrator's Antiunion Discussion On the morning of June 27, Administrator Gersten- ecker met with several of the Respondent's employees and discussed the union organization campaign at the fa- cility Gerstenecker testified that she made no statement which could be interpreted as stating that the employees would inevitably be required to strike and potentially be replaced in the event of a union contract Gerstenecker admits that she discussed the Union and included within that discussion that under a union contract there was a risk of strike, fines, assessments, and so forth She further acknowledged that she directed the employees' attention to the history of the particular union with regard to its record for calling, and engaging in, strikes Gerstenecker further testified that the discussion she had with employees regarding unions was from a written document which she followed while speaking Rose Lankford characterized the discussion of June 27 by Gerstenecker as stating that the Respondent "would not tolerate a union" and that the "employees would have to strike and risk replacement in the event of union representation" The recollection of Lankford of the statements of Ger- stenecker at the June 27 meeting raises the suspicion of inaccuracy Gerstenecker's statements to these employees followed a written document prepared by her attorney which she had used on at least one previous occasion It does not submit to the characterization recited by Lank- ford and at close scrutiny suggests that the characteriza- tion testified to by Lankford comprises the listeners' in- terpretation of what was stated and appears that such characterization arises from taking certain statements out of context Notwithstanding this, I conclude that al- though Gerstenecker's statements may be deemed "brinkmanship" it is not such that the employees could reasonably interpret as meaning that negotiations with the Union would be unsuccessful and result in a strike and eventual replacement of workers The Board in Amerace Corp, 217 NLRB 850, 852 (1975), stated In arguing against unionism, an employer is free to discuss rationally the potency of strikes as a weapon and the effectiveness of the union seeking to represent his employees It is, however, a differ- ent matter when the employer leads the employees to believe that they must strike in order to get con- cessions A major presupposition of the concept of collective bargaining is that minds can be changed by discussion and that skilled, rational, cogent argu- ment can produce change without the necessity for striking When an employer frames the issue of whether or not the employees should vote for a union purely in terms of what a strike might accom- plish, he demonstrates an attitude of predetermina- tion that bargaining itself will accomplish nothing Employees should not be led to believe, before voting, that the choice is simply between no union or striking It is concluded here that the statements of Gersten- ecker as reflected by the clearest evidence of the context (the written statement used by Gerstenecker), in fairness, reflected those rights which an employer has to promul- gate to its employees a rational pro and con comparison of rights of an employee as a union member and those circumstances existing without a union Not only is this the inherent right of the employer but a valuable asset to the unsophisticated employee who may or may not be fully advised in the consequences of his choice In no in- stance could the discussion of Gerstenecker be interpret- ed as a misstatement of law or facts designed to unlaw- fully influence her audience against the Union Accord- ingly, I conclude that Gerstenecker's discussion of June 27 did not constitute statements which comprise a viola- tion of the Act CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), (7), and (14) of the Act, and the Board has jurisdiction over the subject matter and the parties hereto, and further that it will effectuate the policies of the Act to assert jurisdic- tion in this case 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 The Union is, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act 3 Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) by dis- charging employees Rose Lankford and Marilynn Walker because of their having engaged in union and protected concerted activities guaranteed by the provi- sions of Section 7 of the Act 4 The General Counsel has failed to establish by a preponderance of the evidence in this record that the Respondent has violated the Act by statements to the employees regarding the effect of a successful union or- ganizing campaign The aforecited practices are unfair labor practices af- fecting commerce within the meaning of the Act THE REMEDY Having found that Respondent engaged in unfair labor practices it shall be ordered that it cease and desist there- from or from engaging in any similar or related conduct and that it take certain affirmative action to effectuate the policies of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Extendico-Professional Care, Inc , Troy, Illinois, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging employees because of their union ac- tivities (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed to them by Section 7 of the Act 2 Take the following affirmative action which will ef- fectuate the policies of the Act " If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur poses (a) Offer Rose Lankford and Marilynn Walker imme- diate and full reinstatement to their former jobs or, if said positions no longer exist, to substantially equivalent positions of employment without prejudice to the seniori- ty or the rights and privileges enjoyed by each and to make each of the above whole for any loss of pay or other benefits which they have suffered by reason of the discrimination practiced against them, to be computed in accordance with the Woolworth formula, 12 with interest thereon calculated in accordance with the adjusted prime rate used by the U S Internal Revenue Service to com- pute interest on tax payments Florida Steel Corp, 231 NLRB 651 (1977), Isis Plumbing Co, 138 NLRB 716 (1962) (b) Preserve and upon request make available to the Board or to its agents for examination and copying, all payroll records, social security cards, timecards, person- nel reports, and all other records necessary to analyze the amount of backpay due under the terms of this order (c) Expunge from its files any reference to the dis- charge of Rose Lankford and Marilynn Walker and notify them in writing that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against them (d) Post in a conspicuous place on Respondent's prem- ises copies of the attached notice marked "Appendix "13 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees eligible to vote are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 4 in writ- ing within 20 days from the date of this Order what steps the Respondent has taken to comply " F W Woolworth Co, 90 NLRB 289 (1950) " If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading 'Posted by Order of the Na tional Labor Relations Board' shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board"