Mountain View Health Care and Rehabilitation Center, LLC and Retail Wholesale and Department Store Union

Decision Date31 July 2019
Docket Number04-RC-242288
PartiesMOUNTAIN VIEW HEALTH CARE AND REHABILITATION CENTER, LLC Employer v. RETAIL WHOLESALE AND DEPARTMENT STORE UNION (RWDSU) Petitioner
CourtNational Labor Relations Board

MOUNTAIN VIEW HEALTH CARE AND REHABILITATION CENTER, LLC Employer and RETAIL WHOLESALE AND DEPARTMENT STORE UNION (RWDSU) Petitioner

No. 04-RC-242288

United States of America, National Labor Relations Board

July 31, 2019


REGIONAL DIRECTOR'S DECISION AND DIRECTION OF ELECTION

The supervisory status of a group of Licensed Practical Nurses (LPNs) employed by the Employer, a nursing home, is determinative in this case of whether those employees will be able to vote on whether they want to join an existing unit of the Employer's employees. In this case, Mountain View Health Care and Rehabilitation Center, LLC (Employer), contends that its LPNs are statutory supervisors because they use their independent judgment to assign work to CNAs, discipline them, and responsibly direct them in their daily job functions, while Petitioner argues that the LPNs are employees. As explained fully below, and mindful of the directive to interpret broadly the Act's definition of employee, I find that the Employer has failed to carry its burden to establish that LPNs are supervisors excluded from the Act's coverage. There was insufficient evidence that LPNs exercised independent judgment to satisfy the statutory definition of supervisor. Any LPN involvement in discipline was minimal, existed in a reporting context, and did not amount to effective recommendation. Any assignment or direction of work was shown to be dictated by established Employer guidelines, of a routine nature, and was not frequent. There was also insufficient evidence that LPNs were held accountable for the work of CNAs.

The Petitioner, Retail Wholesale and Department Store Union, seeks a self-determination election, commonly referred to as an Armour-Globe [1] election, to ascertain whether approximately 25 full-time and regular part-time Licensed Practical Nurses (LPNs) and 11 PRN LPNs, Flex-time LPNs, Super Flex-Time LPNs, and Per Diem LPNs (collectively referred to as PRN LPNs)[2]employed by the Employer wish to be included in an existing bargaining unit of CNAs and Restorative Aides (collectively referred to as CNAs).[3]

Additionally, the Employer argues that that the petitioned-for unit is inappropriate even if LPNs are employees because the PRN LPNs do not share a sufficient community of interest with the full-time and regular part-time employees because they have different wages and benefits and are subject to different rules for assignment to their shifts. I reject this argument and find that the PRN LPNs share a community of interest with the full-time and regular part-time LPNs as well as with the CNAs in the existing bargaining unit because they perform similar duties, have frequent contact, and share common supervision. Accordingly, based on the hearing conducted by the Hearing Officer of the Board on June 6, 2019, and after carefully considering the evidence and arguments presented by the parties, including in their post-hearing briefs, I have concluded that the petitioned-for unit of all full-time and regular part-time LPNs, Flex-Time LPNs, Super Flex-Time LPNs, Per Diem LPNs, and PRN LPNs is an appropriate voting group for the purposes of a self-determination election, and I shall order an election in the petitioned-for unit.

I. OVERVIEW OF OPERATIONS

The Employer, a Pennsylvania corporation, provides rehabilitation services and nursing home care to approximately 180 residents at its facility in Scranton, Pennsylvania (the Facility). The Employer assumed the operation of the Facility from another operator some time prior to July 2018. Since July 2018, Donna Molinaro has been the Employer's Administrator and she is responsible for the overall operations of the Facility. Under Molinaro is Tracy Burkhard, the Director of Nursing, who oversees the entire Facility in Molinaro's absence and oversees the clinical staff including Registered Nurses, LPNs, and CNAs. Heather Rogers is the Assistant Director of Nursing and Debbie Gibbs is the Scheduler/Staffing Coordinator, who is responsible for creating the daily work schedule. The Employer also employs an unspecified number of Unit Managers or Nursing Supervisors, who are Registered Nurses, and who supervise the clinical staff consisting of LPNs and CNAs. There are three wings at the Facility - Alcore (or "A Wing"), Bella Bay (or "B Wing'), and Camelot (or "C Wing"), which is the memory care section and which contains a 24-bed secured Alzheimer's wing called "Magical Court." The Employer's operation is 24 hours a day, seven days a week, and consists of multiple shifts.

II. BARGAINING HISTORY

The Petitioner has represented the unit of full-time and regular part-time CNAs at the Facility since it was certified as the collective-bargaining representative on June 14, 2018 in Case 04-RC-220072. On May 20, 2019, the Petitioner filed a petition in Case 04-RC-241150 seeking an Armour-Globe election to include approximately 47 PRN CNAs, Flex-time CNAs, Super Flex-Time CNAs, and Per Diem CNAs in that existing unit. A hearing was held before a Hearing Officer on May 22, 2019 and a decision issued in that case on June 24, 2019, ordering that an election be held on July 15, 2019. On July 25, 2019, the Acting Regional Director issued a Certification of Representative to include the PRN CNAs after the July 15 election resulted in these employees designating Petitioner as their collective-bargaining representative. There is no evidence of any bargaining history with respect to any of the LPNs at the Facility.

III. THE RELEVANT LEGAL STANDARDS

A. Armour-Globe Elections

An Armour-Globe self-determination election permits employees who share a community of interest with a unit of already represented employees to vote on whether to join the existing unit. NLRB v. Raytheon Co., 918 F.2d 249, 251 (1st Gir. 1990); Armour & Co., 40 NLRB 1333 (1942); Globe Machine & Stamping Co., 3 NLRB 294 (1937). The Board has long recognized that a self-determination election is the proper mechanism by which an incumbent union adds unrepresented employees to its existing unit if the employees sought to be included share a community of interest with unit employees and "constitute an identifiable, distinct segment so as to constitute an appropriate voting group." Warner-Lambert Co., 298 NLRB 993, 995 (1990).

B. Supervisory Status

The National Labor Relations Act specifically excludes supervisors from its coverage. It is well settled that the party asserting supervisory status bears the burden of establishing it by a preponderance of the evidence. NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 711-12 (2001); Shaw Inc., 350 NLRB 354, 355 (2007); Croft Metals, Inc., 348 NLRB 717, 721 (2006); Oakwood Healthcare, Inc., 348 NLRB 686 (2006). The evidentiary burden is significant and substantial, and purely conclusory evidence is insufficient to establish supervisory status. Golden Crest Healthcare Center, 348 NLRB 727, 729 (2006); Avante at Wilson, Inc., 348 NLRB 1056, 1057 (2006). The Board must not construe the statutory language too broadly because an individual found to be a supervisor is denied the Act's protections. Avante at Wilson, supra at 1057; Oakwood Healthcare, supra at 687-88, quoting Chevron Shipping Co., 317 NRLB 379, 381 n.6 (1995). The party seeking exclusion must therefore demonstrate specific details or circumstances clearly showing that the claimed supervisory authority exists and is not merely paper authority, and that the authority is exercised on more than a sporadic basis. Avante at Wilson, supra at 1057-58; Shaw, supra at 357, fn. 21; Oakwood Healthcare, supra at 693; Kanahwa Stone Co., 334 NLRB 235, 237 (2001). Although the Act demands only the possession of Section 2(11) authority, not its exercise, the evidence still must be persuasive that such authority exists. Avante at Wilson, supra at 1057. Job titles, job descriptions, or similar documents are not given controlling weight and will be rejected as mere paper authority, absent independent evidence of the possession of the described authority. Golden Crest Healthcare Center, supra at 731, citing Training School at Vineland, 332 NLRB 1412, 1416 (2000); see also Chevron Shipping Co., supra at 381 fn. 6. Conclusionary statements without specific explanation are not enough. Further, where the evidence conflicts or is inconclusive regarding particular indicia of supervisory authority, the Board will find that a party has not established supervisory status on the basis of those indicia. The Republican Co., 361 NLRB 93, 97 (2014); Dole Fresh Vegetables, Inc., 339 NLRB 785, 792 (2003).

Section 2(11) of the Act sets forth a three-part test for determining whether an individual is a supervisor. Under that test, employees are statutory supervisors if: (1) they hold the authority to engage in any one of the 12 listed supervisory functions; (2) the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment; and (3) the authority is held in the interest of the employer. Kentucky River, supra, 532 U.S. at 712-13; NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 573-74 (1994). The 12 supervisory functions listed in the statute are the authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend any of these actions. 29 U.S.C. § 152(11).

The criteria for supervisory status enumerated in Section 2(11) are read in the disjunctive; possession of any one of the 12 indicia listed will confer supervisory status, as long as they are exercised using independent judgment. Kentucky River, supra at 713; Shaw, supra at 355. On a case-by-case basis, the Board differentiates between exercising independent judgment and giving routine instruction, between effective recommendation and forceful suggestion, and between the appearance of...

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