Frenchtown Acquisition Co. v. National Labor Relations Board

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0187p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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FRENCHTOWN ACQUISITION COMPANY, INC.,
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d.b.a. Fountain View of Monroe,
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Petitioner/Cross-Respondent,
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Nos. 11-1418/1499
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v.
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Respondent/Cross-Petitioner. --
NATIONAL LABOR RELATIONS BOARD,
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On Application for Enforcement of an Order of the
National Labor Relations Board.
Nos. 7-CA-53309; 7-CA-52888; 7-UC-628.
Decided and Filed: June 20, 2012
Before: MOORE, SUTTON, and STRANCH, Circuit Judges.
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COUNSEL
ON BRIEF: Grant T. Pecor, NANTZ, LITOWICH, SMITH, GIRARD & HAMILTON,
Grand Rapids, Michigan, for Petitioner/Cross-Respondent. Ruth E. Burdick, Michelle
M. Devitt, Linda Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Respondent/Cross-Petitioner.
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OPINION
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JANE B. STRANCH, Circuit Judge. The essential question in this appeal is
whether substantial evidence supports the National Labor Relations Board’s conclusion
that the charge nurses employed at Frenchtown’s long-term-care and rehabilitation-
services facility are not supervisors under the National Labor Relations Act (Act).
Frenchtown maintains that the charge nurses are supervisors, but the Board determined
1
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 2
in a unit-clarification proceeding that they were not. Frenchtown has refused to bargain
with the nurses’ union as a means to seek indirect review of this determination.
Frenchtown operates Fountain View of Monroe, a nursing home offering long-
term care and rehabilitation. The bargaining unit at issue consists of 43 charge nurses
who work with 45 nursing aides to care for the residents. Frenchtown argues that the
charge nurses are supervisors because they had the authority to assign, responsibly
direct, discipline, hire, and transfer other employees, or effectively recommend these
actions. Because substantial evidence supports the Regional Director’s conclusion that
Frenchtown failed to prove that the nurses are supervisors, we enforce the Board’s order
that Frenchtown bargain with the union in good faith and deny Frenchtown’s petition for
review.
I. BACKGROUND
The nursing home has 119 beds and four distinct care units: Pleasant View,
Meadow View, Pleasant View Heights, and Evergreen. Staffing for each unit is based
on the number of residents living there. The charge nurses have been represented by the
American Federation of State, County, and Municipal Employees, AFL-CIO, Local 1548
(the Union) since April 2003. Frenchtown’s 45 certified nursing aides at the nursing
home are represented by the United Automobile, Aerospace, and Agricultural Implement
Workers of America (UAW).
Seven stipulated supervisors manage the nursing department. Director of
Nursing (DON) JoAnn Maddux heads the department. Directly under her are Assistant
Director of Nursing (ADON) Jill Kontry and PM Manager Jennifer Austermiller. The
Clinical Coordinators (CCs) Nicole Nutt and Jennifer Greening and Minimum Data Set
Coordinators (MDSCs) are one more level down the hierarchy and immediately above
the charge nurses.
In 2003 the Regional Director found the employer’s charge nurses to be statutory
employees and the Board denied review of that finding. After the employees voted to
unionize, the Union and Frenchtown entered a collective bargaining agreement in 2004.
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 3
After that agreement expired, Frenchtown filed a unit-clarification petition in June 2009.
Frenchtown sought to have the Board determine that all of the charge nurses were
statutory supervisors under § 2(11) of the Act (29 U.S.C. § 152(11)). After a hearing,
the Regional Director denied Frenchtown’s petition in April 2010, finding that
Frenchtown did not meet its burden of proof to show that the charge nurses are statutory
supervisors. The Board denied Frenchtown’s request for review in November 2010
based on the evidence introduced at the hearing, though it noted that it may have been
error to allow Frenchtown to relitigate the previously resolved supervisor issue rather
than limiting the hearing to changed factual circumstances.
Because Frenchtown refused the Union’s request to bargain and to provide
information, the Union filed unfair-labor-practice charges in April and November 2010.
The General Counsel consolidated the cases and issued a complaint in November 2010.
In its answer, Frenchtown admitted refusing to bargain but claimed that the charge
nurses were statutory supervisors. The General Counsel filed a summary-judgment
motion and the case was transferred to the Board.
In March 2011, the Board granted the General Counsel’s motion, finding that
Frenchtown violated § 8(a)(5) and (1) of the Act by refusing to bargain with the Union.
The Board’s order requires that Frenchtown cease and desist from the unfair labor
practices and from “interfering with, restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act.” The Board’s order also requires
Frenchtown to bargain in good faith with the Union, to provide the Union with the
information it requested, and to post copies of a remedial notice.
Frenchtown filed a petition for review with this court and the Board filed a cross-
application for enforcement of its order.
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II. ANALYSIS
A. Legal framework
Our review of the Board’s decisions is limited. NLRB v. Dole Fresh Vegetables,
Inc., 334 F.3d 478, 484 (6th Cir. 2003). The Board’s factual findings and its application
of the law to those facts are conclusive “if supported by substantial evidence on the
record considered as a whole.” Id. (quoting 29 U.S.C. § 160(e)). This test “requires not
the degree of evidence which satisfies the court that the requisite fact exists, but merely
the degree that could satisfy the reasonable fact finder.” Rochelle Waste Disposal, LLC
v. NLRB, 673 F.3d 587, 592 (7th Cir. 2012) (internal quotation marks omitted); accord
Williamson v. NLRB, 643 F.3d 481, 485 (6th Cir. 2011) (determining that substantial
evidence is evidence that a reasonable person might accept as adequate to uphold the
Board’s decision, “even if there is also substantial evidence for an inconsistent
conclusion”). We may not disturb the Board’s reasonable inferences even though we
may have reached a different conclusion had the matter been before us de novo. V & S
ProGalv, Inc. v. NLRB, 168 F.3d 270, 275 (6th Cir. 1999). Although we review the
Board’s legal conclusions de novo, NLRB v. Good Shepherd Home, Inc., 145 F.3d 814,
816 (6th Cir. 1998), we uphold the Board’s interpretation of the Act “as long as it is a
permissible construction of the statute,” Williamson, 643 F.3d at 485 (internal quotation
marks omitted).
Only employees have the right to unionize and bargain collectively under the
Act. 29 U.S.C. § 157. The Act defines employee so as to exclude “any individual
employed as a supervisor.” Id. § 152(3). A supervisor is
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 responsibly 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.
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Id. § 152(11). The Act therefore establishes “a three-part test for determining
supervisory status.” NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 712-
13 (2001). Individuals are supervisors under the Act if they (1) have the authority to
engage in any 1 of the 12 enumerated supervisory actions; (2) use “independent
judgment” in exercising that authority; and (3) hold that authority “in the interest of the
employer.” 29 U.S.C. § 152(11); accord Kentucky River, 532 U.S. at 713.
The Board has interpreted the second requirement—using independent
judgment—as requiring at a minimum that an individual “act, or effectively recommend
action, free of the control of others and form an opinion or evaluation by discerning and
comparing data.” In re Oakwood Healthcare, Inc., 348 NLRB 686, 692-93 (2006). In
addition, “a judgment is not independent if it is dictated or controlled by detailed
instructions, whether set forth in company policies or rules, the verbal instructions of a
higher authority, or in the provisions of a collective bargaining agreement.” Id. at 693.1
Deciding whether an individual is a supervisor is a “highly fact intensive
inquiry.” Kentucky River Community Care, Inc. v. NLRB, 193 F.3d 444, 453 (6th Cir.
2000), aff’d, Kentucky River, 532 U.S. 706. In conducting this inquiry, the Board and
“reviewing courts must take care to assure that exemptions from NLRA coverage are not
so expansively interpreted as to deny protection to workers the Act was designed to
reach.” Holly Farms Corp. v. NLRB, 517 U.S. 392, 399 (1996) (deferring to the Board’s
decision that certain workers were not “agricultural laborer[s]” and were therefore
eligible to unionize under the Act). This court has endorsed the same principle in the
context of determining whether individuals are supervisors: “it is important for the Board
not to construe supervisory status too broadly, for a worker who is deemed to be a
1
The term independent judgment is ambiguous. NLRB v. Health Care & Retirement Corp. of
America, 511 U.S. 571, 579 (1994). We therefore defer to the Board’s interpretation so long as it is
reasonable. See Williamson, 643 F.3d at 485. The Supreme Court reasoned that because “the statutory
term ‘independent judgment’ is ambiguous with respect to the degree of discretion required for supervisory
status . . . [, i]t falls clearly within the Board’s discretion to determine, within reason, what scope of
discretion qualifies.” Kentucky River, 532 U.S. at 713 (emphasis in original). And the Court remarked
that “it is also undoubtedly true that the degree of judgment that might ordinarily be required to conduct
a particular task may be reduced below the statutory threshold by detailed orders and regulations issued
by the employer.” Id. at 713-14. Because we conclude that the Board’s interpretation reasonably defines
the “degree of discretion required for supervisory status,” id. at 713, we defer to it.
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 6
supervisor loses his organizational rights.” Williamson Piggly Wiggly v. NLRB, 827 F.2d
1098, 1100 (6th Cir. 1987) (brackets and internal quotation marks omitted).
“[T]he party asserting supervisory status” (Frenchtown in the present case) bears
the burden of proving that status by a preponderance of the evidence. See Kentucky
River, 532 U.S. at 711-12; accord in re Croft Metals, Inc., 348 NLRB 717, 721 (2006).
General testimony asserting that employees have supervisory responsibilities is not
sufficient to satisfy the burden of proof when there is no specific evidence supporting
the testimony. See Dole Fresh Vegetables, 334 F.3d at 489 (holding that general
statements from the plant manager asserting that the challenged employees possessed
supervisory responsibilities were not sufficient to meet the employer’s burden because
the employer “did not present any specific evidence to support [the] statements”).
“[B]ecause of the serious consequences of an erroneous determination of supervisory
status,” we must be particularly cautious before concluding that a worker is a supervisor
when the asserted supervisory authority has not been exercised. Jochims v. NLRB, 480
F.3d 1161, 1168 (D.C. Cir. 2007) (internal quotation marks omitted). An employee’s
title does not confer supervisory authority. Id. “If an employee has not actually
exercised supervisory authority, there must be other affirmative indications of authority.
Statements by management purporting to confer authority do not alone suffice.” Id.(internal quotation marks omitted).
Because of the Board’s “special expertise,” we afford it “broad discretion in
determining whether an [individual] is a supervisor.”2 Williamson Piggly Wiggly v.
NLRB, 827 F.2d 1098, 1100 (6th Cir. 1987) (internal quotation marks omitted). This
determination is a mixed question of law and fact and thus will be upheld if it is
2
Frenchtown ignores a decade of changed law in this Circuit by relying on a litany of historic
cases to support its conclusion that we have “repeatedly confirmed” that nurses working in nursing homes
are statutory supervisors. But these cases do not establish that the nurses in question are supervisors for
two reasons. First, except for one unpublished case, all of these cases were decided before the Supreme
Court rejected this Circuit’s reasoning and held that the employer bears the burden of proving supervisory
status. Kentucky River, 532 U.S. at 711-12 (rejecting this Circuit’s rule that the Board bore the burden of
proving that the employees were not supervisors under the Act). Second, deciding who is a supervisor is
a highly fact-intensive inquiry. So “rules designating certain classes of jobs as always or never supervisory
are generally inappropriate.” Jochims, 480 F.3d at 1168; accord Nathan Katz Realty, LLC v. NLRB, 251
F.3d 981, 990 (D.C. Cir. 2001). The facts of the present case show that the charge nurses in question are
not supervisors.
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 7
supported by substantial evidence. Highland Superstores, Inc. v. NLRB, 927 F.2d 918,
923 (6th Cir. 1991).
Frenchtown argues that its charge nurses are supervisors because they had the
authority to assign, responsibly direct, discipline, hire, and transfer other employees, or
effectively recommend these actions.3 We disagree.
B. Disciplining
Frenchtown contends that charge nurses have the power to discipline aides and
effectively recommend discipline. Substantial evidence supports the Regional Director’s
conclusion that Frenchtown failed to satisfy its burden of proving this contention.
Only the undisputed managers discipline employees. Frenchtown’s progressive-
discipline policy for aides lists four types of discipline: verbal warning, written warning,
three-day suspension, and termination. These disciplines are documented on an
Employee Counseling Record (ECR) form. Frenchtown provides only one instance of
a charge nurse issuing a discipline to an aide—charge nurse Thompson signing the ECR
for an aide’s verbal warning. A single instance of discipline does not support a finding
of supervisory status. Dole Fresh Vegetables, 334 F.3d at 487. Additionally, as even
Director of Nursing (DON) Maddux admitted, the aides’ union contract prohibits charge
nurses from delivering progressive discipline, rendering Thompson’s action an ultra
vires act that directly contravenes the union contract. Thus, the evidence offered is both
a single example and unauthorized. This does not satisfy Frenchtown’s burden.
Instead of disciplining aides, charge nurses can give “one-on-one in-services” to
correct the aides’ performance by educating aides on what is expected of them. Even
DON Maddux conceded that these in-services are “outside of the realm of discipline.”
3
Frenchtown maintains in its reply brief that it also “challenges the Board’s findings that its
Charge Nurses do not reward, promote, suspend, discharge, evaluate employees, or adjust their grievances,
as well as the Board’s finding that they do not make effective recommendations in those areas.” But
Frenchtown forfeited these issues by not arguing them in its appellate briefs. See United States v. Johnson,
440 F.3d 832, 845-46 (6th Cir. 2006) (“An appellant abandons all issues not raised and argued in its initial
brief on appeal.” (brackets and internal quotation marks omitted)); Conley v. NLRB, 520 F.3d 629, 638 (6th
Cir. 2008) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” (brackets and internal quotation marks omitted)).
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 8
Concluding that the in-services are not discipline is supported by witness testimony,
Frenchtown’s disciplinary policy—which contains no mention of the in-services—and
the aides’ union contract.4 For example, employees were not allowed to have a union
representative with them when they received an in-service because the in-service is not
a discipline. Further, a union steward for the aides succeeded in having management
rescind a disciplinary write-up for another aide based on the argument that management
could not use in-services—which are educational and nondisciplinary—to support a
discipline.
Because in-services are “outside of the realm of discipline,” even the historic
cases Frenchtown relies on are inapposite. In Integrated Health Services of Michigan,
at Riverbend, Inc. v. NLRB, the staff nurses were “authorized to determine whether and
to what extent [nursing assistants] should be disciplined for insubordination or failure
to respond to patient needs.” 191 F.3d 703, 711 (6th Cir. 1999). The nurses in
Extendicare Health Services, Inc. v. NLRB were undisputedly empowered to “initiate
formal disciplinary proceedings by completing a ‘disciplinary action report.’” 182 F.
App’x 412, 416-17 (6th Cir. 2006). And the nurses in NLRB v. Beacon Light Christian
Nursing Home filled out “disciplinary reports” that resulted in “formal disciplinary
action” after repeat offenses. 825 F.2d 1076, 1077-78 (6th Cir. 1987). Similarly, the
progressive-discipline system in NLRB v. Promedica Health Systems, Inc. expressly
included the “coachings” at issue in that case. 206 F. App’x 405, 408 (6th Cir. 2006);
accord in re Promedica Health Systems, Inc., 343 NLRB 1351, 1351-52 (2004). Unlike
the in-services performed by the charge nurses in the present case, the actions taken by
the employees in the cited cases were expressly part of the disciplinary process. See also
in re Oak Park Nursing Care Center, 351 NLRB 27, 28-30 (2007) (holding that the
“employee counseling forms” filled out by the nurses were a form of discipline because
4
Frenchtown’s attempt to use the aides’ union contract to its avail is unpersuasive. The section
at issue provides that “[a]ny disciplinary action will be presented by management, but does not diminish
the authority or responsibility of charge nurse to initiate a disciplinary action.” Again, DON Maddux
concedes that this contract prohibits charge nurses from delivering progressive discipline. Moreover, this
language can be reasonably interpreted as providing that the contract would not nullify any authority that
the charge nurses may have to discipline, rather than as affirmatively providing that the nurses do in fact
have such authority.
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 9
they were an “integral part of the Employer’s progressive disciplinary system in that
they are used to document each phase of the disciplinary process and routinely result in
actual discipline”).
Frenchtown’s argument that the in-services are part of the disciplinary process
because they routinely lead to discipline is unpersuasive. Although DON Maddux did
testify generally that in-services lead to discipline and are the first step in the
disciplinary process, general, conclusory testimony that employees have supervisory
responsibilities is not sufficient to satisfy Frenchtown’s burden of proof. See Dole Fresh
Vegetables, 334 F.3d at 489. And her testimony runs contrary to the significant evidence
that in-services are educational rather than disciplinary in nature, such as charge nurse
Cranford’s testimony that DON Maddux assured her that in-services “would not lead to
discipline” or the evidence that management rescinded a discipline for an aide after the
union steward argued that the in-services in the aide’s file could not be used to support
a discipline since in-services are not disciplinary, but educational. Moreover,
Frenchtown’s reliance on the charge nurses’ job descriptions that it created,5 which
provide that the nurses “discipline[] employees,” is similarly deficient because
“[t]heoretical or paper power does not a supervisor make.” New York University
Medical Center v. NLRB, 156 F.3d 405, 414 (2d Cir. 1998).
Frenchtown’s purported examples fall far short. Clinical Coordinator (CC)
Jennifer Greening did place an aide back on orientation following an in-service from a
charge nurse. But the aide in question had previously received four or five in-services
from a different nurse. So the aide had received five or six in-services total from two
nurses before management took action. And there is no evidence that any of the in-
services recommended whether the aide should be disciplined. Moreover, CC Greening
talked to the aide herself to see what was going on before transferring the aide. This
evidence hardly establishes that in-services routinely lead to discipline, let alone that the
5
The language of these job descriptions mirrors the statutory language for determining
supervisory status, which, as the Regional Director observed, suggests that they “have been consciously
drafted to mirror the Board’s shibboleths.” He also accurately concluded that “the expansive power set
forth in the documents is at odds with the realities.” We concur with the cited principle of law that “actual
authority trumps mere paper authority.”
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 10
in-services are disciplines. Rather, it simply shows that in-services can bring aide errors
or misconduct to a manager’s attention and that the manager decides how to proceed.6
“The fact that these [in-services] may result in disciplinary action is irrelevant; the
[charge nurse] is acting as a conduit for information and exercises no judgment in
passing the knowledge along to management.” NLRB v. Meenan Oil Co., L.P., 139 F.3d
311, 322 (2d Cir. 1998); accord in re Vencor Hosp.-L.A., 328 NLRB 1136, 1139 (1999)
(holding that nurse reports documenting poor performance or misconduct do not show
supervisory authority when “[t]here is no evidence that such reports . . . automatically
lead to [discipline] or otherwise affect job tenure or status).
Frenchtown’s next example fares no better. Charge nurse Corin Greene gave
aide Gigi Childs an in-service. According to CC Nicole Nutt, nurse Greene thought that
discipline was more appropriate, and she told CC Nutt this. Nurse Greene did not
support this testimony. In any event, CC Nutt decided to issue a disciplinary verbal
warning to aide Childs only after discussing the underlying conduct with nurse Greene
and reviewing the in-service. And the in-service does not recommend whether aide
Childs should be disciplined. Once again, all this evidence shows is that the manager
made the decision to discipline and that in-service merely brought performance issues
to the manager’s attention. This is not enough to prove supervisory status. See Meenan
Oil Co., 139 F.3d at 322. Further, Frenchtown’s claim that in-services routinely lead to
discipline is undercut by the fact that CC Nutt mentioned neither considering aide
Childs’s prior in-service in her file nor even checking aide Childs’s file before issuing
the discipline.
Frenchtown’s last example is unpersuasive because the record belies the
conclusions that Frenchtown attempts to draw. Frenchtown maintains that an in-service
aide Ruth Burlew received on October 1 led to her suspension that same day, and then
6
We doubt that sending an aide back to orientation is discipline per se: CC Greening testified that
she thought the charge nurses were being too hard on the new aide, who was struggling but trying, and
made the decision to send her back to orientation to give her a fresh start rather than discipline her. But
even if returning the aide to orientation constituted discipline, the point stands that this discipline stemmed
from the aide’s repeated mistakes rather than the in-services themselves. That the aide was transferred to
a new unit and eventually terminated is irrelevant because those actions were not prompted by the charge
nurses’ in-services, but rather by the aide’s further mistakes.
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 11
an October 2 in-service led to her discharge on October 3. But the record shows that
aide Burlew received a disciplinary written warning on September 18 for failing to
change a urine-soaked patient. So when the manager learned that aide Burlew again
failed to change a soiled patient on October 1 and 2, they simply followed the next steps
of progressive discipline by first suspending and then terminating her. The in-services
did not progress to a discipline; they instead informed management of a recurring
problem for which discipline had already begun, and management dealt with the problem
through progressive discipline. Moreover, the in-services themselves do not recommend
whether aide Burlew should be disciplined. Frenchtown’s evidence thus establishes at
best that the in-services created a possibility of discipline, and this is not sufficient to
show supervisory authority. See Jochims, 480 F.3d at 1170.
Switching from in-services, Frenchtown argues that the few examples of charge
nurses sending aides home proves that charge nurses are supervisors. This argument is
unpersuasive because the common thread running through these examples is that they
involved egregious misconduct from the aides. Sending employees home for egregious
misconduct does not require independent judgment. Jochims, 480 F.3d at 1171-72.
Frenchtown’s evidence that charge nurses effectively recommend discipline is
likewise deficient. The Regional Director found that the “record does not contain even
one written disciplinary recommendation from any nurse.” In its appellate brief,
Frenchtown does not contest this finding. This alone shows that substantial evidence
supports the Regional Director’s conclusion that charge nurses do not effectively
recommend discipline. Besides, even Frenchtown’s attempts to show that the nurses
exercised this power orally falls short. Aside from general, conclusory testimony that
charge nurses possess this authority, the only example adduced that we have not already
addressed—the firing of aide Hampton which DON Maddux alleges was based on
Charge Nurse O’Rourke’s oral recommendation—is unpersuasive. First, O’Rourke does
not testify that she orally recommended terminating the aide. Moreover, according to
the DON, that aide was terminated based on “her progression of her discipline. There
wouldn’t have been a lot of choice to do anything else.” (Emphasis added.) Remarking
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 12
that the aide was terminated based on the progression of her discipline indicates that the
decision to terminate was based on prior disciplines, not the nurse’s recommendation.
Even setting these problems aside, one example hardly proves that the nurses effectively
recommend discipline. Cf. Highland Superstores, 927 F.2d at 922 (“[A] solitary
instance of discipline is not sufficient to confer supervisory status as a matter of law.”).
In sum, substantial evidence supports the Regional Director’s conclusion that the
charge nurses do not discipline or effectively recommend discipline. Frenchtown has
failed to carry its burden on this point.7
C. Hiring
Frenchtown next argues that charge nurses can effectively recommend the hiring
of aides. Yet again, however, substantial evidence supports the Regional Director’s
conclusion that Frenchtown did not satisfy its burden of proof on this point.
The undisputed managers control the hiring process. They solicit applications,
grant and conduct interviews, and decide when and whom to hire. Although a job
description for charge nurses states that they have the power to “recommend[] hires,” as
we have noted, “[t]heoretical or paper power” such as job descriptions “does not a
supervisor make.” New York University Medical Center, 156 F.3d at 414. Charge nurses’
involvement in the hiring process is limited to interviewing candidates when managers
are too busy, an occurrence which has happened only a few times.
To be sure, DON Maddux testified generally that she had hired four to five aides
whom charge nurses had interviewed and given input on, but with one exception
discussed below, her testimony lacked important details. She did not specify who these
7
Without noting the Regional Director’s full explication of the factual record, Frenchtown takes
issue with the Regional Director’s conclusion that the alleged examples of discipline orally recommended
by a charge nurse are not effective because managers conducted their own independent investigation before
deciding to issue a discipline. This court has concluded that the Act “does not preclude supervisory status
simply because [a] recommendation is subject to a superior’s investigation.” Caremore, Inc. v. NLRB,
129 F.3d 365, 370 (6th Cir. 1997). But ruling that a manager’s independent investigation does not
preclude a finding of supervisory status is a far cry from holding that the existence of that investigation
does not matter. On the contrary, whether a manager independently investigates before acting on a
recommendation is a key factor that must be considered when undertaking the highly fact-intense inquiry
to determine whether an alleged supervisor effectively recommends discipline.
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 13
aides were; what precisely the charge nurses said about the aides; what role or weight
the charge nurses’ input played in hiring the aides; who else, if anyone, reviewed the
applications; or who made the final decisions. General testimony asserting that
employees have supervisory responsibilities is not sufficient to satisfy Frenchtown’s
burden of proof. See Dole Fresh Vegetables, 334 F.3d at 489. The exception is charge
nurse Angela Theisen’s interview of aide Jayme Kilbert, who was later hired. DON
Maddux testified that Theisen strongly recommended hiring Kilbert after interviewing
her and followed up twice to ask Maddux why Kilbert hadn’t been hired yet. But
Theisen denies these facts. She testified that she merely alerted Maddux that Kilbert had
called to inquire about the status of her application and to add a reference. Theisen
denied recommending Kilbert and stated that she was merely expressing her opinion in
a handwritten note that explained why Kilbert was “worth a shot”—a descriptor quite
at odds with Maddux’s testimony that Theisen was very impressed with Kilbert and
thought she was great. Even if we assume that Theisen’s opinion constituted an effective
recommendation to hire (a conclusion we very much doubt), this isolated instance does
not suffice to confer supervisory status. See Dole Fresh Vegetables, 334 F.3d at
487 (holding that a single instance of an employee interviewing an applicant and passing
along to an undisputed supervisor his opinion of the applicant’s experience and
knowledge was insufficient to prove supervisory status); Cf. Highland Superstores,
927 F.2d at 922 (“[A] solitary instance of discipline is not sufficient to confer
supervisory status as a matter of law.”)
Moreover, the testimony of the other charge nurses who interviewed potential
aides buttresses the conclusion that the charge nurses lacked the power to effectively
recommend hiring. Only one of these four nurses testified that she recommended that
an applicant be hired. But the applicant was not hired, undercutting Frenchtown’s
argument that recommendations were effective. Another nurse reported to management
that the applicant was “nice” and “clean”—descriptions that do not amount to a
recommendation either way—and that applicant was not hired. The final two nurses
explicitly denied making any recommendations and did not know whether the applicants
were hired. Because the preponderance of the evidence shows that charge nurses did not
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 14
have the supervisory power to effectively recommend hiring, it follows even more
strongly that substantial evidence supports the Regional Director’s conclusion that
Frenchtown failed to meet its burden of proof.
D. Assigning
The next issue is whether the charge nurses have supervisory authority to assign
employees or to effectively recommend assigning employees. “The Board has construed
the term ‘assign’ to ‘refer to the act of designating an employee to a place, appointing
an employee to a time, or giving significant overall duties, i.e., tasks, to an employee.’”
Mars Home for Youth v. NLRB, 666 F.3d 850, 855 (3d Cir. 2011) (quoting Oakwood
Healthcare, 348 NLRB at 689) (ellipses omitted). In the healthcare context, assign
“encompasses the charge nurses’ responsibility to assign nurses and aides to particular
patients.” Oakwood Healthcare, 348 NLRB at 689. Nurses use independent judgment
in making these assignments when they weigh the needs of a patient against the skills
or special training of staff. Id. at 693. In terms of assigning work, nurses are not
supervisors by virtue of simply instructing an “employee [to] perform a discrete task”;
they instead must designate “significant overall duties to an employee” in order to be a
supervisor.8 Id. at 689.
Frenchtown first contends that the Regional Director’s conclusion that charge
nurses do not assign significant overall duties to aides is not supported by substantial
evidence. Aides’ daily duties are prescribed in the care kardex, activities of daily living
(ADL) sheets, and preprinted daily assignment sheets. These documents inform aides
in great detail what to do for each resident and also set forth general duties like stocking
linen and cleaning showers and wheelchairs. Although charge nurses update the kardex,
none of these documents are created by charge nurses. And the kardex is also updated
by MDSCs, CCs, and aides. Based on the record, substantial evidence supports the
conclusion that charge nurses do not assign significant duties to aides.
8
The term assign is not defined in the Act and is ambiguous. We find the Board’s interpretation
of assign to be reasonable and accord it deference. See Mars Home for Youth, 666 F.3d at 855 (deferring
to the Board’s interpretation of assign because that interpretation is reasonable).
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 15
Frenchtown next challenges the Regional Director’s conclusion that charge
nurses do not assign aides to particular patients or, in the alternative, that any such
assignments do not require independent judgment. The record, however, does not
support Frenchtown’s claim.
Charge nurses’ involvement in dividing up the sets of residents that aides will
care for and in making adjustments to these assignments when necessary is marginal at
best. Several nurses and aides testified that the aides typically divide up these sets
themselves and fill out the assignment sheet accordingly. In addition, aides swap
residents and rooms when necessary to accommodate changes in patient number and
resident or family preferences. Other testimony shows that when charge nurses do
become involved in these decisions, they do so only after consulting with aides.
Assigning work “through a cooperative process” is not an exercise of supervisory
powers. Hosp. Gen’l Menonita v. NLRB, 393 F.3d 263, 267 (1st Cir. 2004).
Frenchtown failed to overcome this testimony with specific examples of charge
nurses assigning aides. The conclusory testimony it adduces is insufficient to carry its
burden of proof under the Act. Other portions of the record establish that the nurses
sometimes make routine adjustments to patient assignments, such as pulling an aide from
a resident because the resident requests it, or requesting another aide to help out a
struggling aide when the struggling aide specifically asked that the nurse request another
aide to help. The testimony that nurse Dozier assigned aide Bullard to assist a newer
aide with a shower is not an example of assigning under the Act because nurse Dozier
was simply instructing the aide “to perform a discrete task,” rather than designating
“significant overall duties” as required by the Act. Oakwood Healthcare, 348 NLRB at
689. Further, Frenchtown did not provide actual examples of nurses adjusting patient
assignments that also described the factors the nurse considered in making the
adjustment, a showing necessary to establish independent judgment. Moreover, the
concrete example in Charge Nurse Dozier’s testimony of a charge nurse modifying the
aides’ division of patients is insufficient because the record reveals that Dozier modified
the aide’s division of patients under the guidance of management. Giving assignments
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 16
based on management’s instructions does not show the requisite independent judgment.
See NLRB v. Aquatech, Inc., 926 F.2d 538, 549 (6th Cir. 1991).
Once again, substantial evidence more than supports the Regional Director’s
conclusion that Frenchtown failed to prove that the charge nurses assigned aides under
the Act.
E. Transferring
Frenchtown next argues that the nurses are supervisors because of their ability
to transfer aides. Substantial evidence again supports the Regional Director’s conclusion
that Frenchtown failed to satisfy its burden of proof on this point.
Temporary transfers of aides to ensure adequate staffing levels among the four
units is accomplished using a float sheet, which determines which aides are transferred.
The float sheet makes selecting which aide to transfer a routine choice rather than a
decision requiring independent judgment. On one occasion, however, two charge nurses
who had to transfer an aide chose to retain their more experienced aide rather than
consult the float sheet. Frenchtown argues that this shows the nurses exercised
independent judgment in transferring aides. But as the Regional Director observed,
“[t]he record does not clarify whether the nurses simply retained their more senior aides,
thus making their choices more routine than evaluative.” And even if the nurse’s choice
showed judgment, these two isolated instances are not enough to support a finding of
supervisory status. Cf. Dole Fresh Vegetables, 334 F.3d at 486-87 (holding that two
examples of alleged supervisors completing and signing written warnings to other
employees was not sufficient to satisfy the employer’s burden of proof that the alleged
supervisors had the authority to discipline).
Frenchtown also points to a permanent transfer as evidence that charge nurse
Lisek effectively recommended aide Farris’s transfer to another unit. Lisek told DON
Maddux and CC Greening that the aide was struggling at Pleasant View and suggested
that the aide might do better at Pleasant View Heights, which was slower-paced. Later,
CC Greening told DON Maddux that she was going to transfer the aide to the Heights
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 17
because it wasn’t working out for the aide at Pleasant View. There is no evidence
concerning whether CC Greening relied on nurse Lisek’s suggestion in making this
decision. Substantial evidence therefore supports the Regional Director’s conclusion
that Frenchtown failed to prove that the charge nurses transfer or effectively recommend
the transfer of aides.
F. Responsibly directing
Frenchtown’s final argument is that the charge nurses responsibly directed the
aides. We disagree. The Board has held that a person directs other employees when
“that person decides what job shall be undertaken next or who shall do it.” Oakwood
Healthcare, 348 NLRB at 691. If that direction “is both ‘responsible (as explained
below) and carried out with independent judgment,” then that person is a supervisor. Id.Direction is responsible only if “the person directing and performing the oversight of the
employee [is] accountable for the performance of the task by the other, such that some
adverse consequence may befall the one providing the oversight if the tasks performed
by the employee are not performed properly.” Oakwood Healthcare, 348 NLRB at 691-
92. Frenchtown argues that this accountability rule is based on an unreasonable
interpretation of the Act.
Before turning to the merits of Frenchtown’s challenge, we must determine
whether we have jurisdiction to do so. The Board contends that we lack jurisdiction to
review the reasonableness of the Board’s accountability rule because Frenchtown did not
raise it during the proceedings before the Board. But Frenchtown did argue in its
Petition for Review that because the charge nurses acted to remedy aide errors, the
nurses responsibly directed the aides, even if the nurses were not disciplined.
Frenchtown concluded that its failure to discipline nurses for the aides’ errors “should
not have any bearing on the Region’s supervisory analysis.” Under this interpretation
of the Act, supervisory status turns on whether the alleged supervisor acted to correct the
mistakes of employees underneath them. But this interpretation is at odds with Oakwood
Healthcare’s interpretation that supervisory status turns on whether the alleged
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 18
supervisor could suffer adverse consequences for those mistakes. Frenchtown therefore
did challenge the Board’s accountability rule.
Turning to the merits of this rule, we must defer to the Board’s interpretation of
ambiguities in the Act so long as they are reasonable. Williamson, 643 F.3d at 485. The
phrase responsibly to direct is not defined in the Act and is ambiguous. Health Care &
Retirement Corp., 511 U.S. at 579. Our court addressed this phrase more than 60 years
ago, reasoning that “[t]o be responsible is to be answerable for the discharge of a duty
or obligation.” Ohio Power Co. v. NLRB, 176 F.2d 385, 387 (1949). The word
answerable certainly encompasses the idea of being accountable. Picking up on this
common understanding of answerable, the Fifth Circuit expanded on the meaning of
responsibly to direct: “To be responsible is to be answerable for the discharge of a duty
or obligation. In determining whether direction in any particular case is responsible, the
focus is on whether the alleged supervisor is held fully accountable and responsible for
the performance and work product of the employees he directs.” NLRB v. KDFW-TV,
Inc., 790 F.2d 1273, 1278 (5th Cir. 1986) (internal citations and quotation marks
omitted). This is the definition the Board adopted in Oakwood Healthcare, 348 NLRB
at 691-92. Not only do we find it a reasonable interpretation of responsible, but it is an
interpretation that fits comfortably within the ambit of the more general interpretation
that this court set forth in Ohio Power Co. We are not alone in finding this interpretation
reasonable. See Mars Home for Youth, 666 F.3d at 854 (deferring to the Board’s
interpretation of responsibly to direct because that interpretation is reasonable); Rochelle
Waste Disposal, 673 F.3d at 594 (deferring to the Board’s interpretation of responsibly
to direct under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984)).
Substantial evidence supports the Regional Director’s conclusion that
Frenchtown failed to show that its charge nurses are held accountable for the job
performance of its aides. Frenchtown relies on the nurses’ job descriptions and their
evaluations to argue that nurses knew they were accountable for the performance of
aides. But “paper power” like these documents is insufficient to prove supervisory
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 19
status. New York University Medical Center, 156 F.3d at 414. Moreover, these
documents do not convey that nurses may suffer adverse consequences for the aides’
performance. Managers’ statements on the evaluations that nurses “use leadership” and
“supervise” aides do not specifically inform them that they could face discipline for
poor aide performance. Moreover, Frenchtown has not shown that these evaluations
affect the nurses’ terms and conditions of employment. Although DON Maddux
testified that the evaluations could affect promotions or lead to discipline,9 there was no
evidence that this had ever happened. And DON Maddux admitted that the evaluations
had no effect on the nurses’ pay.
Frenchtown’s reliance on conclusory and general statements that nurses are held
responsible for the well-being of the patients is also unpersuasive. Such statements do
not satisfy Frenchtown’s burden of proof: “Statements by management purporting to
confer authority do not alone suffice. . . . [B]eyond the statements or directives
themselves, what the statute requires is evidence of actual supervisory authority visibly
translated into tangible examples demonstrating the existence of such authority.”
Beverly Enterprises-Massachusetts, Inc. v. NLRB, 165 F.3d 960, 963 (D.C. Cir. 1999)
(internal citations and quotation marks omitted); accord Dole Fresh Vegetables,
334 F.3d at 489.
The specific examples Frenchtown adduces do not help advance its case. Several
of these supposed examples of accountability involve only educational in-services,
which are not disciplinary and which do not affect the terms and conditions of
employment. They are not evidence of nurses facing the risk of actual adverse
consequences. Frenchtown cites three actual disciplines without analyzing them; all
reveal that the nurses are held accountable for their own performance rather than that of
aides. The discipline examples Frenchtown discusses at greater length suffer from the
same defect. Charge nurse Peggy Mayner received a verbal warning for failing to
document weights. Under Frenchtown’s weight policy, aides obtain resident weights
9
DON Maddux analogized the evaluations to in-services, which are not disciplines and do not
lead to disciplines.
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 20
and charge nurses are to record these weights on the Medication Administration Record
(MAR). Nurse Mayner’s verbal warning specifically warns her that “[n]o holes should
be left in the MAR’s [sic] and TARs.” So she was disciplined for her own performance,
not that of an aide.10
The closest Frenchtown comes to demonstrating accountability is the verbal
warning given to charge nurse Heather Ouellette. But even this falls short. The
discipline listed the following offenses: “snacks still in the unit; incontinent residents
were not changed timely; no direction provided to staff; hand washing not being done;
call lites [sic] not answered timely; also observed 3 [aides] off the unit at the same time.”
But as the Regional Director observed, the discipline does not specify whether any of
these errors were the aides’ errors rather than nurse Ouellette’s.11
Frenchtown’s failure to satisfy the accountability rule is underscored by the
evidence that the charge nurses were not disciplined for aide errors, even though there
were many and even though some were serious. When asked why the nurses hadn’t been
disciplined in instances involving aide errors or misconduct, DON Maddux testified that
the nurses in those situations were blameless. As the Seventh Circuit aptly observed,
when a “lower level employee performs inadequately, and the purported supervisor is
in fact not held accountable, it highly supports a finding that the purported supervisor
is not actually at risk of suffering adverse consequences.” Rochelle Waste Disposal, 673
F.3d at 596. There is more than substantial evidence to support the Regional Director’s
conclusion that Frenchtown failed to show charge nurses were accountable for the
performance of the aides.
10
That the discipline also mentions “not completing daily [weights]” is not dispositive.
Frenchtown argues that since its policy makes taking the weights an aide’s responsibility, this language
shows that nurse Mayner was disciplined for the errors of an aide. But a charge nurse testified that if aides
do not take weights, then the charge nurses simply take the weights themselves. So Mayner’s discipline
does not show that she was disciplined for an aide’s error.
11
At least one of the errors was nurse Ouellette’s alone. Faulting Ouellette for not providing
direction to staff criticizes her for poorly supervising the aides. Since one could fault an employee for
failing to provide direction to other subordinate employees even when those employees are performing
satisfactorily, this is Ouellette’s error.
Nos. 11-1418/1499 Frenchtown Acquisition Co. v. NLRB Page 21
G. Secondary indicia of supervisory status
Finally, Frenchtown argues that the charge nurses are supervisors because they
are the highest-ranking employees in the nursing home on weekends and during the gaps
between the day- and night-manager shifts. But this fact—which is only a secondary
indicia of supervisory status—cannot support a finding of supervisory status where, as
here, Frenchtown has failed to prove that the nurses exercise any of the 12 supervisory
actions listed in 29 U.S.C. § 152(11). See Dole Fresh Vegetables, 334 F.3d at 487-88(holding that the secondary indicia relied upon by the employer did not prove
supervisory status in the absence of primary-indicia evidence). Moreover, “the highest-
ranking employees on-site at a given time are not ‘ipso facto’ made into supervisors
simply because of their presence.” Id. at 489 (quoting Highland Superstores, 927 F.2d
at 922). Further, when the undisputed managers are not at the nursing home, at least one
manager is available on call. So as the Board argued, charge nurses “can, and do, seek
managers’ guidance and permission in supervisory matters when they need to.”
Even if a secondary indicia of supervisory status could alone suffice to prove that
the charge nurses are supervisors, the secondary indicia in this case on balance support
the opposite conclusion. There are 45 aides, 43 charge nurses, and 7 nurse managers at
the nursing home. If charge nurses were supervisors, then there would be more
supervisors than employees. Such a result stands at odds with reason. Indeed, we have
previously reasoned that even a ratio of one supervisor for every two employees is
“suspect.” Highland Superstores, 927 F.2d at 923.
III. CONCLUSION
For the above reasons, we DENY Frenchtown’s Petition for Review and GRANT
the Board’s Cross-Application for Enforcement of its Order.