## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3097

___________ Beverly Enterprises, doing business as * Lynwood Health Care Center, * Minnesota, Inc., * * Petitioner, * * v. * * Petitions for Review of an National Labor Relations Board, * Order of the National Labor * Relations Board. Respondent, * * Minnesota’s Health Care Union, * Local 113 SEIU, * * Intervenor on Appeal. *

___________ No. 97-3326

___________ Beverly Enterprises, doing business as * Lynwood Health Care Center, * Minnesota, Inc., * * Respondent, * * v. * *The HONORABLE RICHARD W. GOLDBERG, Judge, United States Court 1 of International Trade, sitting by designation. -2- National Labor Relations Board, * * Petitioner. *

___________ Submitted: March 11, 1998 Filed: July 13, 1998

___________ Before WOLLMAN and HANSEN, Circuit Judges, and GOLDBERG, Judge. 1

___________ WOLLMAN, Circuit Judge.
Beve rly Enterprises -- Minnesota, Inc., d/b/a Lynwood Health Care Cente r (Beverly), petitions for review of a final order of the National Labor Rel ations Board, that Beverly had violated sections 8(a)(1) and (5) of the National Labor Relations Act, 2 9 U.S.C. §§ 151-169, by refusing to recognize and bargain with Minnesota’s Health Care Uni on, Local 113, Service Employees International Union, AFL-CIO, as the certifie d collective bargaining agent for its nurses. The Board has cross-petitioned fo r enforcement of its order, and the Union has intervened in support of the order. We deny the petition for review and enforce the order.

I.
Beverly owns and operates a 54-bed nursing home in Fridley, Minnesota. Thi s facility employs ten full or part-time licensed practical nurses (LPNs) and eight registered nurses (RNs). In addition, the home employs twenty-eight registered nursing assistants (NARs). The parties have stipulated that four of the RNs are supervisors-3-

within the meaning of section 2(11) of the Act (29 U.S.C. § 152(11)). The status of the
re maining four RNs and of the ten LPNs (hereinafter, collectively, “the nurses”) is th e question to be resolved in this appeal.
The duties and responsibilities of th e nurses are essentially identical. Each serves as a t eam leader in the care of nursing home residents assigned to their particular team. Teams are generally composed of one nurse and two NARs. Three teams are typically scheduled during the day shift, which runs from 6:00 a.m. to 2:30 p.m., and during the evening shift, which runs from 2:00 to 10:30 p.m. One team is scheduled during the night shift, which runs from 10:00 p.m. to 6:30 a.m. The overlap in these shifts is designed to aid the de parting shift in reporting patient care concerns to the incoming shift and i n completing paperwork. Assigning and scheduling teams to a particular shift is th e responsibility of the unit manager.

The nur sing department’s four stipulated supervisors -- the Director of Nursin g Services, the Assistant Director of Nursing Services, the Unit Manager, and the Resident Care Coordinator -- typically work ordinary daytime hours and are not on the premises during nights or w eekends. Regulations promulgated by the State of Minnesota require that a nursing home must designate a particular person to be in charge of the facility when
an administrator is not present. To comply with this regulation, Beverly generall y designates one of its on-duty nurses as “charge nurse” whenever no stipulated supervisors
are p resent. Whichever nurse has been designated as charge nurse thus become th e hig hest ranking employee on the premises. The record indicates that one of the fou r stipulated supervisors is always available for consultation via telephone or pager.

The nurses possess authority to alter break schedules and patient care priorities,
oversee and monitor the performance of NARs, seek volunteers to fill shift vacancie s created when NARs are absent, initial NAR time cards, report di sciplinary problems, and evaluate NARs. In addition, the nurses have authority to issue disciplinary-4-

counseling to NARs. This authority is apparently limited to verbally reprimandin g individuals who deviate from the nursing home’s policies and procedures.

The nurses lack authority to require that an off-duty employee report to work i n order to fill a shift vacancy, to order an NAR to perform a particular task, or to authorize an NAR who becomes ill to go home. They also have no authority to affe ct the job status of an employee by explicitly recommending disciplinary action, termination, o r promotion. Moreov er, the authority held by the nurses is limited by various procedures
an d protocols that set forth established guidelines for them to follow in the exercise o f their duties. For example, in monitoring the work of NAR s, nurses are required to utilize
a checklist that sets forth the precise duties to be completed by the team. The nurs e simply che cks “met” or “unmet” to ensure that each listed duty has been adequatel y performed.
In January of 1997, the Union filed a petition with the Board seeking certification to act as the collective bargaining agent of the nurses. Beverly opposed this petition , contending that its nurses were supervis ors under the definition set forth in section 2(11) of the Act and thereby precluded from inclusion in the bargaining unit. Following a hearing, the Board’s Regional Director issued a decision finding that the nurses were not supervisors and were eligible for inclusion in the Union’s bargaining unit.
Beverly file d a request for review, which the Board denied. After an electio n fav orable to the Union, the Regional Director certified the Union as the nurses ’ bargaining agent. Insisting that the nurses were supervisors, Beverly refused to bargain with the Union. The Union then filed an u nfair labor practice charge with the Board and a complai nt was issued. Following the filing of Beverly’s answer, the Board’s General Counsel moved for and was granted summary judgment.-5- II.

Section 2(3) of the National Labor Relations Act excludes “any individua l employed a s a supervisor” from the definition of “employee.” 29 U.S.C. § 152(3). By doing so, section 2(3) excludes supervisors from protectio n under the Act. See WaverlyCedar Falls Health Care Ctr., Inc. v. NLR B , 933 F.2d 626, 629 (8th Cir. 1991). Section 2(11) defines the term “supervisor”as

any individual having authority, in the interest of the employer, to hire , transfer, suspend, lay off, recall, promote, discharge, assign, reward, o r discipline other emp loyees, or responsibly to direct them, or to adjust their grievan ces, or effectively to recommend such action, if in connection with the f oregoing the exercise of such authority is not of a merely routine o r clerical nature, but requires the use of independent judgment.
29 U.S.C. § 152(11).

The de finition set forth in section 2(11) has two components. See Schnuc k Mark ets, Inc. v. NLRB , 961 F.2d 700, 703 (8th Cir. 1992). First, the employee mus t have actu al authority to accomplish one of the enumerated functions. See id. Thi s requirement is read disjunctively. Thus, if the employee has authorityto exercise any one of the enumer ated functions, he satisfies the first component of the definition. See id

. Moreover, the actual exercise of the enumerated power is irrelevant so long as th e authority to do so is present. See Waver ly , 933 F.2d at 629. Second, the authority must inv olve the use of independent judgment and be more than routine or clerical in nature. See Schnu ck , 961 F.2d at 703. Thus, “so-called ‘straw bosses’ are not necessaril y supervisors even if they give minor orders or supervise the work of others.” Id. (quoting Phillips v. Kennedy , 542 F.2d 52, 56 (8th Cir. 1976)).

Genera lly, whether a particular employee is a supervisor is a factual questio n within the Board’s special expertise. See Schuck , 961 F.2d at 703. The Board’sBeverly points to NLRB v. Health Care & Retirement Corp. of America , 511 2 U.S. 571 (1994), as an example of the Boa rd’s biased approach in these cases. In that case, the B oard found that a group of nurses employed by a nursing home directe d other em ployees but nevertheless were not supervisors because their authority wa s exercised not in the interest of their employer, but in the interest of the home’s patients. Se e id. at 575. The Supreme Court rejected this approach, chiding the board fo r creating a “false dichotomy.” Id. at 577. The Court stated that “[p]atient care is the business of a nursing home, and it follows that attending to the needs of the nursin g home patients, who are the employer’s customers, is in the interest of the employer.” Id. Beverly asserts that the Board’s employment of this false dichotomy is reflective of its predisposition against finding nurses to be supervisors -- a predisposition tha t Beverly contends is ongoing.
-6- findings regarding supervisory status will be upheld so long as they are supported b y substantial e vidence on the record as a whole. See Pony Express Courier, Corp. v

. N L RB , 981 F.2d 358, 362 (8th Cir. 1992). Beverly contends, however, that deference to the Board’s expertise is inapprop riate in light of the Board’s pattern of pro-union bias when determining supervisory status. 2

The Board’s treatment of cases i nvolving the supervisory status of employees has prompted more than one court to express a reluctance to accord deference to the Board’s findings in such cases. See, e.g. , Spentonbush/Red Star Co. v. NLRB , 10 6 F.3d 484, 492 (2 d Cir. 1997) (“the Board’s biased mishandling of cases involving supervisor s increasingly has called into question our obeisance to the Board’s decisi ons in this area”); NLRB v. W innebago Television Corp. , 75 F.3d 1208, 1214 (7th Cir. 1996) (“th e NLRB’s mani pulation of the definition provided in [section 2(11)] has earned it littl e deferen ce”). We have expressed a similar reluctance. In Schnuck , we noted tha t “n umerous courts have assailed the Board’s inconsistent determinations in this regard” and that “our review necessarily becomes more probing when the Board has exhibite d a pattern of applying the statute inconsistently.” 961 F.2d at 704.-7-

Thus, a close and thorough examination of the record is called for to ensure that the Bo ard’s findings are supported by substantial evidence and that its decision is no t arbitrary and capricious. See Winnebago Television , 75 F.3d at 1212. Beverly would have us go further and commence our review with the presumption that the Board’ s decision wa s the inevitable product of a pro-union bias. This we will not do. Th e standard, as we have reiterated many times, is whether substanti al evidence on the record
as a wh ole supports the board’s determinations. See Schnuck , 961 F.2d at 703. I n applyi ng this standard, we consider not only the evidence that supports the Board’ s determination, but evidence that detracts from the decision as well. See id. at 704.

III.

Th e question before us is whether substantial evidence supports the Board’ s conclusion that the nurses are not supervisors. Beverly contends that the followin g factors su pport its argument that the Board erred in finding that its nurses are no t supervisors: (1) the nurses have authority to issue “disciplin ary counseling” to the NARs; (2) the nurses evaluate the NARs’ job performance; (3) the nurses have authority t o
mo dify NAR assignments, change break schedules, and fill shift vacancies that aris e when NA Rs call in sick; and (4) the Board’s characterization of the ratio betwee n supervisors and employees was inaccurate.

A.
We begin with Beverly’s contention that the nurses possess disciplinary authority. Essentially, Beverly contends that this authority is conferred by a job description tha t authorizes the nurses to perform disciplinary cou nseling. The record indicates, however, that this authority is extremely limited. The nurses’ power to engage in disciplinar y counseling consists solely of the power to v erbally reprimand NARs. Although this may constitut e disciplinary authority in the broadest sense of the word, these verba l reprimands have no tangible effect on the NARs’ job status. We-8-

have he ld that such negligible disciplinary authority “is not sufficient for supervisor y status,” Waverly , 933 F.2d at 630, and we conclude that it is likewise insufficient here.
Beverly contends that the nurses are supervisors because they are expected t o report violations of its policies and any accidents that occur. Because these reports can ultimate ly lead to formal discipline, Beverly argues that the duty to report constitute s disciplinary authori ty under section 2(11). We do not agree. The disciplinary authority contemplated by section 2(11) exists only where an employee exercises independen t judgment in prescribing a particular discipline or in recommending that one be prescribed. Here, the nurses are not an integral part of the disciplinary process. They play no role in determining whether an employee is disciplined or in determinin g the type of discipline to be imposed. Ins tead, their role is limited to a reporting function and does not require the use of in dependent judgment. “[T]he mere reporting of facts is not enough to make the reporter a supervisor.” Highland Su perstores, Inc. v. NLRB , 927 F.2d 918, 922 (6th Cir. 1991).

B.

We turn next to Beverly’s contention that the nurses’ duty to complete jo b evaluations renders them supe rvisors under section 2(11). To support this contention, it relies on NLRB v. Chem Fab Corp. , 691 F.2d 1252 (8th Cir. 1982), and NLRB v. Ely’s Foods, Inc. , 656 F.2d 290 (8th Cir. 1981). In both Chem Fab and Ely’s Foods , however, the employees in question were vested with more than simply the authority to evaluate other employees. Rather, they possessed authority to effectively recommend wag e increase s, discharge, and formal disciplinary action. See Chem-Fab , 691 F.2d at 1256; Ely’s Foods , 656 F.2d at 292 n.1. Here, substantial evidence supports the Board’ s finding that the nurses enjoyed no such authority. Their evaluatory function was instead primarily a reporting function. See Beverly Enterprises-Pennsy lvania, Inc. v. NLRB , 129 F.3d 1269, 1270-71 (D.C. Cir. 1997) (upholding finding t hat nurses were not supervisors where nurses’ evaluations had-9-

never resul ted in adverse personnel action); NLRB v. Res-Care, Inc. , 705 F.2d 1461 , 1467 (7th Cir. 1983) (finding significant the fact that a nurse “cann ot cause a nurse’s aide to be fired by giving her a poor evaluation or cause her to be promoted by giving her a superlative evaluation”).

C.
Beverly a lso contends that its nurses have supervisory authority to assign an d direct other employees. The nurses are expecte d to reassign NAR duties, change patient
care priorities, and change employee breaks and lunches to avoid shorthanded shifts

. Moreover, when a NAR calls in sick or is otherwise unable to work, the nurses ar e expected to call off-duty NARs to fill the vacant shift.

It is u ndisputed that the Resident Care Coordinator, a stipulated supervisor , devises the care plan fo r each of the patients at the nursing home. However, changes in patient condition, changes in personnel, and other circumstances often dictate change s in a particular team’s duties and pri orities. When this occurs, the nurses are expected to reassign duties and re-prioritize. The Board concluded that to the extent that the nurses assign and direct, such authority does not require the use of independent judgment but is instead narrowly circumscribed by an elaborate system of procedures, policies, an d pro tocol regarding patient care. We find that this determination is supported b y substantial evidence. Although the parties dispute the significance of the facility’ s policies and procedures, we conclude that the Board “has engaged in neither unsupported fact-finding nor arbitrary deci sion-making” and that its determination “in a close case of this nature” should be upheld. Waverly , 933 F.2d at 631 (Loken, J., concurring). W e reach a similar conclusion with regard to the Board’s conclusion that the nu rses’ authority to change lunch times and other break periods to avoi d the problem of shorthanded shifts is routine in nature and does not require the use of substantial independent judgment.-10-

Regard ing the nurses’ duty to contact off-duty NARs to fill in when schedule d NARs are ill or otherwise unable to work, Beverly notes that no established guidelines exist to aid the nurses in

determining which off-duty NAR to contact, leaving the matter to the nurses’ complete discretion. The record reflects, however, that the nurses have
no authority to require or order an off-duty NAR to fill a particular shift. Instead, th e nurses’ function is limited to seeking off-duty volunteers to help out when the facility is short handed, which falls short of the supervisory authority to assign contemplated b y section 2(11).

D.

The r atio of supervisors to non-supervisory employees is often significant i n determining whether an employee has supervisory status. See Schnuck , 961 F.2d at 706; W a verly , 933 F.2d at 630. In calculating this ratio, the Board combined the number of stipulated supervisors with the entire roster of nurses and compared this number to the total number of NARs. Thus, the Board concluded that if the nurses were supervisors, the resulting ratio would have been eighteen su pervisors to twenty-eight non-supervisory employees . As the Board recognized, this ratio of less than one to two is unreasonably high. Beverly contends, however, that the Board’s ratio calculation is misle ading because there are never eighteen supervisors on duty at one time.

Th is argument ignores the fact that the number of NARs on duty at a particular time is also significantly lower than twenty-eight. On a typi cal day shift, for instance, the number of NARs on duty is approximately six, while the number of stipula ted supervisors and nurses is typically seven, resulting in a disproportionate ratio if the nurses ar e consid ered supervisors. The results are not substantially different for the evening an d night shifts. When the stipulated supervisors are not on the premises, the ratio during the evening shift would typically be three supervisors to six non--11-

supervisory workers, or one to two. The night shift ratio is identical, with one supervisor and two non-supervisory employees on duty.
Beverly also notes that because the s tipulated supervisors are generally not on the prem ises during much of the evening shift and all of the night shift, the nurses ar e general ly the highest ranking employees on the premises for a large percentage of th e facilit y’s hours of operation. Thus, if the nurses are not considered supervisors, th e facility is left without on-site supervision for the majority of its hours of operation. I n Wa verly , we indicated that on-site supervision is not necessary so long as off-dut y supervisors are on call, stating:

As Waverly notes, if the LPNs are not supervisors, then the facility i s “unsuper vised” during the majority of its hours of operation. However , both the Director and Assista nt Director of Nursing are on call twenty-four hours a day. Moreover, the test for su pervisory status requires the exercise of in dependent judgment; the record indicates that LPNs merely follo w routine procedures while they are “in charge.”
933 F.2d at 630. We reached a contrary result in Schnuck . There we stated:

In NLRB v. Beacon Light Christian Nursing Home , 825 F.2d 1076, 1080 (6th Cir. 1987), the Six th Circuit concluded that the Board’s determination that licensed practical nurses were not supervisors meant that fifteen t o th irty nursing personnel were providing patient care with no on-sit e supervi sion. “This is not a reasonable conclusion for a well-run nursin g home.” Id. Nor is it a reasonable conclusion to suppose that Schnuck s would operate one of its largest stores for eight hours e very day with twelve to sixteen employees on staff without on-site supervision.

961 F.2d at 706.-12-

In Schnuck , the unsupervised staf f consisted of twelve to sixteen employees. See 961 F.2d at 706. In Waverly , on the other hand, the unsupervised nursing staff wa s signif icantly smaller. Moreover, in Waverly we placed emphasis on the fact tha t stipulated supervisors, although not on the premises, were on call twenty-fours hours a day. See 933 F.2d 630. There is no indication in Schnuc k that the stipulated supervisors were on call or even accessible while absent from the premises.

In the present case, it is undisputed that one of the four stipulated supervisors is at all times readily accessible via telephone o r pager. We conclude that where this is the case, the highest ranking on-site employee will not invariab ly be considered a supervisor. See Waverly , 9 33 F.2d at 630; Res-Care, Inc. , 705 F.2d at 1467 (fact that nurses ar e highest ranking employees on the prem ises during the evening and night shifts “does not ipso fa cto make them supervisors”). This is especially true where, as here, the recor d indicates that the employees left in charge merely follow routine procedures and do not exercise independent judgment. See Waverly , 933 F.2d at 930.

We co nclude that the Board’s determination that the nurses are not supervisor s unde r section 2(11) is supported by substantial evidence. Accordingly, we den y Beverly’s petition for review, and we enforce the Board’s order.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.