1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-11-1996

Nat'l Lab. Rel. Bd. v. Konig

Precedential or Non-Precedential:

Docket 95-3085

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Recommended Citation

"Nat'l Lab. Rel. Bd. v. Konig" (1996). 1996 Decisions. Paper 211.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

Nos. 95-3085 and 95-3129 

 

NATIONAL LABOR RELATIONS BOARD 

 Petitioner

v. 

MICHAEL KONIG t/a NURSING HOME 

CENTER AT VINELAND 

 Respondent/

 Cross-Petitioner

* COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO 

 Intervenor-Petitioner

*(Granted as per Court's 4/7/95 Order) 

 

On Application for Enforcement of an Order 

of the National Labor Relations Board 

 

Argued October 30, 1995 

BEFORE: NYGAARD, ALITO and 

SAROKIN, Circuit Judges 

 

(Opinion filed March 11, 1996) 

 Linda J. Dreeben 

 John D. Burgoyne (argued) 

 Aileen A. Armstrong 

 Angela Washington 

 National Labor Relations 
2 

 Board 

 1099 14th St., NW 

 Suite 8101 

 Washington, DC 20570 

 Attorneys for Petitioner

 Steven P. Weissman 

 Weissman & Mintz 

 One Executive Drive, Suite 200 

 Somerset, NJ 08873 

 Attorney for Intervenor

 David Lew (argued) 

 Peckar & Abramson, P.C. 

 70 Grand Avenue 

 River Edge, NJ 07661 

 Attorney for Respondent/

 Cross-Petitioner

 

OPINION OF THE COURT 

 

SAROKIN, Circuit Judge: 

 This case comes before this court on an application of the 

National Labor Relations Board ("NLRB" or "the Board") to enforce 

an Order against Michael Konig t/a Nursing Center at Vineland 

("the Home") to cease and desist from engaging in unfair labor 

practices. The Board had issued a Decision and Order concluding 

that the Home had violated sections 8(a)(1), (3), (4) and (5) of 

the National Labor Relations Act ("NLRA"), 29 U.S.C. §§158(a)(1), 

(3), (4) & (5), by committing unfair labor practices against 
3 

several licensed practical nurses ("LPNs") engaged in union 

activities. The Home contests this Decision and Order on the 

ground that an intervening Supreme Court case, NLRB v. Health 

Care & Retirement Corp. of America, U.S. , 114 S. Ct. 1778 

(1994), overturned Board precedent, rendering LPNs supervisory 

employees who are not covered by the NLRA. Because the Home 

waived this contention by failing to raise it in the prior 

proceedings, we deny review and grant enforcement. 

I. 

 The Home is a long-term nursing home in Vineland, New 

Jersey. In June 1992, the Communications Workers of America, 

Local 1040, AFL-CIO ("CWA" or "the union") began seeking to 

organize the LPNs working at the Home.0 Several LPNs became 

interested in the union. The union filed a petition for 

representation of the Home's LPNs on June 8, 1992. 

 On July 8, 1992, the Board held a representation hearing to 

address three questions: (1) whether the LPNs were already 

represented by another union; (2) whether the unit was 

appropriately limited to LPNs; and (3) whether three of the LPNs 

were "charge nurses" and thus supervisors within the meaning of 

 

0The following brief summary of the facts in this case is based 

on the findings of the Board in its Decision and Order issued in 

Michael Konig t/a Nursing Center at Vineland, 314 NLRB 947 

(1994). The Home has not raised any objections with respect to 

the Board's factual findings, nor did it object to the Board's 

conclusion that these facts constituted unfair labor practices 

under the Act. They have thus waived any objection as to the 

Board's findings, see NLRB v. Browning-Ferris Industries, Etc., 

691 F.2d 1117, 1125 (3d Cir. 1982), and we will accept them as 

true. 
4 

section 2(11) of the NLRA, 29 U.S.C. § 152(11). The Regional 

Director found in favor of the union on all three issues and 

issued a Decision and Direction of Election on September 17, 

1992. The election was conducted, and on October 27, 1992 the 

union was certified as the exclusive bargaining representative of 

the LPNs. 

 Throughout this period, particularly following the CWA's 

filing of its representation petition and around the time of the 

representation hearing, the LPNs' unionization efforts met with 

serious impediments by the Home management. The LPNs were 

threatened, harassed, and some eventually were terminated as a 

result of their union activities. 

 The union filed unfair labor practice charges against the 

Home, alleging that the Home had violated sections 8(a)(1), (3), 

(4) and (5) of the NLRA in July, August and September of 1992. 

The case was heard during March and May of 1993. On August 31, 

1994, the NLRB issued a Decision and Order. Michael Konig t/a 

Nursing Center at Vineland, 314 NLRB 947 (1994). The Board found 

that the Home had discouraged employees from engaging in union 

activities and had discharged three LPNS and reduced the pay of a 

fourth because of their union activities and had thus engaged in 

unfair labor practices in violation of the NLRA. The Board 

accordingly ordered the Home to reinstate the three who had been 

terminated to their former positions or substantially similar 

positions and to make them whole for losses incurred, and to 

restore pay to the one whose salary had been reduced, including 

backpay. The Order also required the Home to bargain with the 
5 

CWA as the exclusive representative of the employees in the LPN 

unit on terms and conditions of employment. It is this Decision 

and Order that the Board seeks to enforce before this Court. 

 Meanwhile, on May 23, 1994, after the case had been heard 

but before the Board had issued its opinion, the Supreme Court 

issued its decision in Health Care & Retirement Corp., in which 

it held that nurses who engage in patient care are acting "in the 

interest of the employer" and therefore may be supervisors within 

the meaning of the NLRA. NLRB v. Health Care & Retirement Corp., 

114 S. Ct. 1778 (1994).0 Based on this Supreme Court decision, 

the Home has since refused to bargain with the CWA on the ground 

that the LPNs are supervisors not protected by the NLRA. 

 In an action separate from the instant one, the union filed 

another unfair labor practice charge for refusal to bargain with 

the LPNs in July 1994, and a hearing was held on this issue in 

February 1995. Prodded by the decision in Health Care & 

Retirement Corp. the Home presented evidence that the LPNs were 

supervisors within the meaning of the NLRA and therefore 

unprotected by the Act. On May 12, 1995, the Administrative Law 

Judge ("ALJ") issued a Decision and Order in Case No. 4-CA-22933, 

concluding that the Home was barred from raising the objection to 

the representation unit on the basis that the LPNs were 

 

0As explained, infra, the Supreme Court did not alter the Board's 

statutory interpretation of the other two prongs of the 

definition of supervisor, i.e. that (1) the individual engages in 

at least one of twelve designated supervisory activities; and (2) 

that the individual exercises independent judgment in performing 

these activities. See Health Care & Retirement Corp., 114 S.Ct. 

at 1780. 
6 

supervisors at this unfair labor practices hearing when they had 

not raised this issue at the original representation proceeding, 

and that, in any event, the evidence introduced at the original 

representation hearing and the findings from that hearing did not 

support the contention that the LPNs were supervisors, even under 

Health Care & Retirement Corp. The Home was thus ordered to 

bargain with the union as the representative of the certified LPN 

unit. The Board later affirmed the ALJ's decision, accepting its 

rulings, findings and conclusions and explicitly noting that 

there was "no showing that the LPNs . . . exercise independent 

judgment in performing" assignments and that Health Care & 

Retirement Corp. was therefore inapplicable. Michael Konig t/a 

Nursing Center at Vineland, 318 NLRB No. 64 at 1 n.1 (1995). This 

court summarily denied the Home's petition to review this 

decision and granted the NLRB's cross-petition for enforcement on 

December 14, 1995. Konig v. NLRB, No. 95-3507 (December 14, 

1995) (order). 

 

II. 

 The NLRB had jurisdiction to hear the unfair labor practice 

proceeding under section 10(a) of the NLRA, 29 U.S.C. § 160(a). 

This court has jurisdiction over the Board's appeal for 

enforcement of the Order under section 10(e) of the NLRA, 29 

U.S.C. § 160(e), and over the Home's petition for review of the 

Order under section 10(f). 29 U.S.C. § 160(f). 

 We will uphold the Board's findings of fact if they are 

supported by substantial evidence on the record considered as a 
7 

whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 485-87 

(1951). Our review of questions of law is plenary. Tubari Ltd. 

v. NLRB, 959 F.2d 451, 453 (3d Cir. 1992). 

III. 

 The NLRA does not provide protection for individuals who are 

supervisors within the meaning of the Act. See 29 U.S.C. §152(3); 

see also Waverly-Cedar Falls Health Care Center v. NLRB, 933 F.2d 

626, 629 (8th Cir. 1991) ("By excluding 'supervisors' from the 

definition of 'employee,' § 2(3) of the Act . . . excludes 

supervisors from protection under the Act."). Section 2(11) of 

the NLRA defines "supervisor" as follows: 

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. 

29 U.S.C. § 152(11) (emphasis added). An individual is a 

supervisor within the meaning of the statute, then, if she (1) 

has the authority to engage in one of the twelve listed 

activities; (2) exercises that authority with "the use of 

independent judgment;" and (3) holds the authority "in the 

interest of the employer." Health Care & Retirement Corp., 114 

S. Ct. at 1780. 

 Prior to Health Care & Retirement Corp., the Board 

consistently had held that "'a nurse's direction of less skilled 

employees, in the exercise of professional judgment incidental to 
8 

the treatment of patients, is not authority exercised "in the 

interest of the employer."'" Id. (citation omitted). See, e.g., 

Northcrest Nursing Home, 313 NLRB 491, 493-94 (1993); Beverly 

Enters., Alabama Inc., 304 NLRB 861, 864 (1991) ("[W]e further 

find that assignment and direction of nurses aides' work by LPNs 

is routine and primarily in connection with patient care and does 

not establish that the LPNs are supervisors."); Phelps Community 

Medical Center, 295 NLRB 486, 490 (1989) (same); The Ohio Masonic 

Home, 295 NLRB 390, 395 (1989) (LPNs not supervisors because 

their direction of aides' work was done in "connection with 

patient care and did not go beyond into 'personnel authority 

which more directly promote the interests of the employer and 

which is not motivated by patient care needs.'") (citation 

omitted). 

 The Supreme Court overturned the Board's statutory 

interpretation in its opinion in Health Care & Retirement Corp, 

114 S. Ct. 1778 (1994). There, the Court concluded that 

"[p]atient care is the business of a nursing home, and it follows 

that attending to the needs of the nursing home patients, who are 

the employer's customers, is in the interest of the employer." 

Id. at 1782. It thus found that four LPNs who performed some of 

the twelve activities listed in the statute in the interest of 

patient care necessarily did so "in the interest of the employer" 

and were therefore supervisors under the Act. Id. at 1781, 1785. 

A. 

 The Home argues that in light of this recent decision, this 

court should deny enforcement of the Board's Order because it 
9 

renders the LPNs in the instant case supervisors and thus not 

entitled to the protection of the Act. Initially, we emphasize 

that Health Care & Retirement Corp. did not rule that all LPNs 

are necessarily supervisors; rather it ruled that all LPNs who 

perform one of the twelve tasks listed in section 2(11), 

exercising their own independent judgment and in the interest of 

patient care, are supervisors. Id. 

 The Home claims that the record from the hearing before the 

administrative law judge in Michael Konig t/a Nursing Center at 

Vineland, Case No. 4-CA-22933, the action filed by the union in 

July of 1994 for the Home's refusal to bargain, demonstrates that 

the LPNs are supervisors under Health Care & Retirement Corp. We 

first note that case No. 4-CA-22933 was not consolidated with the 

instant case and is thus not presently before this panel on 

appeal.0 Therefore, we decline to consider the record from that 

case in this appeal. In any event, the Board in case No. 4-CA22933 ruled that the record failed to demonstrate that the LPNs 

were supervisors, even in light of Health Care & Retirement 

Corp.,

0 and this court has affirmed the Board.0 Thus, even were 

 

0On October 3, 1995, this court denied a motion to consolidate 

the instant appeal with the appeal from the Board's decision in 

case No. 4-CA-22933. Case No. 4-CA-22933 was then appealed 

separately from the instant matter, and a panel of this court 

denied review and granted enforcement. See Konig v. NLRB, No. 

95-3507 (December 14, 1995) (order). 

0In affirming the ALJ, the Board specifically noted that any 

evidence in the record suggesting that LPNs assigned and directed 

nurses' aides indicated that such actions were not taken with the 

exercise of independent judgment and therefore Health Care & 

Retirement Corp. was not applicable. Konig, 318 NLRB No. 64 at 1 

n.1. 

0We note that, because the Board's decision in case No. 4-CA22933 was based on alternative grounds (i.e. that the Home waived 
10 

we to consider the record, it seems doubtful that it would 

support the Home's contentions. 

 Accordingly, there is nothing in the record before us to 

support the Home's contention that the LPNs are supervisors under 

Health Care & Retirement Corp. However, because we decide, 

infra, that the Home may not object to the Board's Order on the 

ground that the LPNs are supervisors at this juncture in the 

proceeding, it will not be necessary to remand this case to 

determine whether the LPNs are supervisors. 

B. 

 In the original proceeding before the Board, the Home failed 

to raise its current contention that the Act did not apply to the 

LPNs because they were supervisors.0 Section 10(e) of the NLRA 

bars an appellate court from reviewing an issue that was not 

 

its opportunity to raise this issue and that the record did not 

demonstrate that the LPNS were supervisors), this court's denial 

of review and grant of enforcement in that action does not 

preclude the Home from litigating the supervisory status of the 

LPNs in this action. The Board's findings regarding the 

supervisory status of the LPNs was not essential to the court's 

judgment. See Restatement (Second) of Judgments, § 27 cmt. h 

(1982) ("If issues are determined but the judgment is not 

dependent upon the determinations, relitigation of those issues 

in a subsequent action between the parties is not precluded."). 

0During the hearing regarding the union's petition for 

representation, the Home did raise the claim that certain LPNs 

were supervisors within the meaning of § 2(11) because they are 

charge 

nurses. First, we note that this objection was proffered in a 

different proceeding from the one at issue in this appeal for 

review and therefore has no bearing on the instant action. 

Second, even had this objection been raised in the instant 

action, it was only in reference to these three LPNs as charge 

nurses. The objection did not apply to the remaining LPNs in the 

bargaining unit. In fact, by claiming supervisory status 

specifically as to these three employees, the Home implicitly 

accepted that the other LPNs were not supervisors. 
11 

raised in the Board proceeding: "No objection that has not been 

urged before the Board . . . shall be considered by the court, 

unless the failure or neglect to urge such exception shall be 

excused because of extraordinary circumstances." 29 U.S.C. 

§160(e). The Supreme Court has construed this rule strictly. 

See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 

(1982). In Woelke & Romero Framing, the Board had addressed an 

issue sua sponte which had not been raised or argued by either 

party. When the petitioner sought review of the court of 

appeals' ruling on that issue before the Supreme Court, the Court 

held that under section 10(e), the court of appeals had no 

jurisdiction to consider the question because the petitioner had 

not raised it before the Board. The Court specifically noted 

that the petitioner "could have objected to the Board's decision 

in a petition for reconsideration or rehearing" and its "failure 

to do so prevents consideration of the question by the courts." 

Id. at 666. 

 The Home argues, however, that the Supreme Court's decision 

in Health Care & Retirement Corp. constitutes an "extraordinary 

circumstance," and that, thus, by the terms of section 10(e) of 

the NLRA, its failure to raise the issue of the LPNs' supervisory 

status before the Board should be excused in this case. 

 The Supreme Court has held on at least one occasion that 

intervening Supreme Court case law may be considered an 

"extraordinary circumstance" under section 10(e), allowing a 

reviewing court to decide an issue that was not raised originally 
12 

before the Board. In Sure-Tan, Inc. v. NLRB, the petitioners 

sought to raise for the first time a First Amendment argument 

suggested by a Supreme Court decision, Bill Johnson's Restaurant,

Inc. v. NLRB, 461 U.S. 731 (1983), which had been issued six 

months after the petition for certiorari in Sure-Tan had been 

filed. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896 & n.7 (1984). 

The Court held that it could address this argument even though 

petitioners had not raised it before the Board as required by 

section 10(e) because the intervening and substantial change in 

controlling law occasioned by Bill Johnson's Restaurant qualified 

as an extraordinary circumstance. Sure-Tan, 467 U.S. at 896 n.7. 

Thus, it might appear that under Sure-Tan, the Home may raise the 

issue of the LPNs' supervisory status in light of the Health Care 

& Retirement Corp. decision. 

 We find, however, that the facts of the instant matter are 

substantially different from those in Sure-Tan, rendering that 

holding inapplicable to the instant case. As noted above, the 

decision in Bill Johnson's Restaurant was issued six months after

the petition for certiorari in Sure-Tan was filed. The 

petitioner in that case thus could not have raised the issue 

before the Board or even the court of appeals because Bill 

Johnson's Restaurant had not yet been decided. Here, by 

contrast, the Supreme Court's decision in Health Care & 

Retirement Corp. was issued on May 24, 1994, three months before

the Board's August 31, 1994 decision in this matter. Thus, the 

Home easily could have informed the Board of the Health Care & 

Retirement Corp. decision and raised the issue of the LPNs' 
13 

supervisory status before the Board during those three months. 

Indeed, as made clear in Woelke & Romero Framing, the Home had 

the obligation to raise the argument itself because, even had the 

Board addressed the issue sua sponte, any reviewing court would 

not have had jurisdiction due to the parties' failure to argue 

the point before the Board. Woelke & Romero Framing, 456 U.S. at 

665-66. The Home could even have filed a petition for 

reconsideration as permitted by 29 CFR § 102.48(d)(1) following 

the Board's decision.0 Yet, it failed to do so. 

 Unlike in Sure-Tan, then, where the petitioner could not 

have raised the argument suggested by intervening precedent until 

after the petition for certiorari was granted, there were no 

extraordinary circumstances here that would have prevented the 

Home from raising the issue of the LPNs' supervisory status until 

now. The Home's failure to raise the argument, and certainly its 

failure to file a petition for reconsideration, deprives this 

court of jurisdiction to address this question under section 

10(e) of the NLRA. See Woelke & Romero Framing, 456 U.S. at 665-

66. 

C. 

 

0The text of 29 CFR § 102.48(d)(1) reads, in relevant part, as 

follows: 

A party to a proceeding before the Board may, because 

of extraordinary circumstances, move for 

reconsideration, . . . after the Board decision or 

order. A motion for reconsideration shall state with 

particularity the material error claimed and with 

respect to any finding of material fact shall specify 

the page of the record relied on. 
14 

 We now briefly address the question of whether, assuming the 

LPNs at issue in the current action are supervisory personnel, 

the Board had jurisdiction to issue an order compelling 

reinstatement and backpay for supervisors. We address this issue 

despite our conclusion, supra, that the Home has waived its 

objection because the Home claims that a challenge regarding lack 

of jurisdiction can be raised at any time. Petitioner's Brief at 

27. 

 The Home's argument fails to recognize the distinction 

between jurisdiction in the sense of the overall authority of the 

Board to hear the case under the NLRA and the jurisdiction of the 

Board to issue an order based upon a factual determination made 

by the Board. "While the Board's statutory jurisdiction may be 

raised at any time, the facts upon which the Board determines it 

has jurisdiction may be challenged only upon timely exception." 

NLRB v. Peyton Fritton Stores, Inc., 336 F.2d 769, 770 (10th Cir. 

1964) (per curiam); see also Polynesian Cultural Center, Inc. v. 

NLRB, 582 F.2d 467, 472 (9th Cir. 1978). 

 The question of whether the Board had the jurisdiction to 

order reinstatement and backpay to the LPNs rests on the factual 

determination by the Board regarding their supervisory status. 

The Home cannot raise this type of jurisdictional objection for 

the first time before this court absent extraordinary 

circumstances. 

 Indeed, in NLRB v. International Health Care, Inc., 898 F.2d 

501, 506-507 (6th Cir. 1990), the Sixth Circuit arrived at the 

same conclusion when addressing an issue virtually identical to 
15 

the one currently before us. There, as here, the court was 

called upon to decide whether the employer could raise an 

objection for the first time that the Board lacked jurisdiction 

to order the employer to bargain with a unit of LPNs because the 

LPNs were supervisors under the reasoning of the Sixth Circuit's 

case NLRB v. Beacon Light, 825 F.2d 1076 (6th Cir. 1987). The 

court concluded that this sort of jurisdictional challenge based 

on factual determinations could not be raised for the first time 

before the court of appeals. International Health Care, 898 F.2d 

at 506-07 (citing NLRB v. Ferraro's Bakery, Inc., 353 F.2d 366 

(6th Cir. 1965) (holding that the Board had jurisdiction to 

determine whether certain workers were "employees" within the 

NLRA and failure of respondent to file timely exception to 

factual determination was not an exceptional circumstance)). 

 We accept the reasoning of the Sixth Circuit, as well as the 

Ninth and Tenth Circuits, and conclude that the Home cannot raise 

for the first time before this court an objection to the Board's 

jurisdiction to award backpay and reinstatement to LPNs on the 

theory that they are supervisors.0 

 We further mention here, as an aside, that even if the LPNs 

are in fact supervisors, the Board may still have jurisdiction to 

order their reinstatement and backpay. First, "it is settled law 

that, notwithstanding the statutory exclusion of supervisors from 

the Act's protection . . . an employer's discharge of a 

supervisor may give rise to an 8(a) (1) violation." Kenrich 

 

0Judge Alito does not join the portion of Part III of this 

opinion that comes after this footnote. 
16 

Petrochemicals, Inc. v. NLRB, 893 F.2d 1468, 1475 (3d Cir.), 

enforced on other grounds, 907 F.2d 400 (3d Cir. 1990) (in banc) 

(citations omitted). Specifically, the Board has the authority 

"to order the reinstatement of a supervisor whose firing resulted 

not from her own pro-union conduct, but from the employer's 

efforts to thwart the exercise of section 7 rights by protected 

rank-and-file employees." Kenrich Petrochemicals, 907 F.2d at 

406. 

 We recognize that, assuming arguendo that the LPNs are 

supervisors under Health Care & Retirement Corp., this case does 

not involve the discharge of supervisors for purposes of 

thwarting the exercise of rights of non-supervisory employees. 

Rather, the LPNs in this case were discharged for engaging in 

pro-union activity to protect their own rights. This court has 

held that in instances where a supervisor is discharged for 

seeking to invoke the Board's protection on her own behalf, the 

Board lacks jurisdiction to grant reinstatement and backpay. HiCraft Clothing Co. v. NLRB, 660 F.2d 910, 917-18 (3d Cir. 1981). 

 Nonetheless, we cannot ignore the reality that, at the time 

that the LPNs were engaged in pro-union activity and the Home 

actively discouraged it, the Home knew that under the Board's 

legal precedent in force at the time, the LPNs were employees not 

supervisors. It would be ironic to deny enforcement of the 

Board's Order merely because the Home's egregious violations of 

the Act were perpetrated against individuals who subsequently 

were determined to be supervisors and thus not protected. Such a 

conclusion would violate the spirit of the Act. Thus, while 
17 

there is no precedent on this exact question, there are strong 

policy arguments that militate in favor of finding that the Board 

has jurisdiction to order reinstatement and backpay of 

supervisors in this type of situation. These policy reasons, 

considered in tandem with the well-settled rule that the Board 

has jurisdiction to reinstate supervisors in instances where 

their discharge was accomplished to thwart the exercise of rights 

of protected employees, could support a conclusion that the Board 

has jurisdiction to order reinstatement and backpay to 

supervisors under these circumstances. See, e.g., Oil City Brass 

Works v. NLRB, 357 F.2d 466, 471 (5th Cir. 1966) (ordering 

reinstatement of supervisor discharged for testifying before the 

Board on behalf of the union so as to ensure that "the overriding 

purpose of the Act [is not] frustrated."). 

 The Home engaged in deliberate conduct intended to 

discourage, prevent and punish union activity by those whom it 

believed were entitled to engage in such activity. If subsequent 

events fortuitously rendered those employees not subject to the 

protection of the Act, the intentional wrongful conduct of their 

employers should not be without remedy. However, because of our 

decision that the Home is barred from challenging the LPNs 

supervisory status in this appeal, we do not decide this issue. 

IV. 

 For the foregoing reasons, we will deny review of the 

Board's Decision and grant enforcement of the Board's Order.