NLRB Regional Director Issues Decision on Mercy General Health Partners Amicare Home Care

WASHINGTON, Oct. 12 -- The National Labor Relations Board issued the following decision by Regional Director Terry Morgan on Mercy General Health Partners Amicare Home Care v. SEIU Healthcare Michigan, Service Employees International Union, CTW:

MERCY GENERAL HEALTH PARTNERS AMICARE HOME CARE

Employer

and

SEIU HEALTHCARE MICHIGAN, SERVICE

EMPLOYEES INTERNATIONAL UNION, CTW

Petitioner

Case 07-RC-204105

APPEARANCES:

Meghan B. Sullivan, Attorney, of Springfield, Massachusetts, for the Employer. John R. Canzano, Attorney of Royal Oak, Michigan, for the Petitioner.

DECISION AND DIRECTION OF ELECTION

The Employer provides home health nursing services out of its Mercy Hospital and Hackley Hospital campuses, both located in Muskegon, Michigan.

Petitioner seeks to represent a unit of approximately 24 home health care nurses, including seven OASIS3 registered nurses (OASIS RNs), nine primary care-1 registered nurses (PCN-1s), four primary care-2 registered nurses (PCN-2s)4, one licensed practical nurse (LPN), and three home care coordinator (HCCs) s Muskegon nurses employed out of the Employer's Muskegon, Michigan facility located at 888 Terrace Street.

The Employer maintains that the petitioned-for unit is inappropriate because the nurses are statutory supervisors based on supervisory duties and responsibilities expressly required of them per federal Medicare regulations; their role in assessing patients and developing patient and aide care plans; assigning and responsibly directing the Home Healthcare Aides (HHAs) and the LPN in performing their duties and carrying out the care plans; and evaluating the job performance of the HHAs and LPN. The Employer additionally asserts that if these nurses are found not to be supervisors, the unit must exclude the HCCs who do not share a community of interest with them.

As discussed below, based on the record and relevant Board law, I conclude that the Employer has not satisfied its burden of proof that the nurses exercise authority in the interest of the Employer requiring the use of independent judgment to assign and responsibly direct employees pursuant to federal regulations, care plans, or otherwise, or that they are held accountable by the Employer, and thus, they are not statutory supervisors. I find that the HCCs do not share a sufficient community of interest with the OASIS nurses and PCNs such that they should be included in the proposed unit and I will exclude them. Finally, I find that the petitioned-for LPN is a nonprofessional employee and will be excluded from the proposed unit, as discussed herein.

I. Procedural Issues

A. Employer's Argument that the New Election Rules Bar Processing of Petition

The Employer challenges the Board's election rules as arbitrary and capricious, asserting that they have unfairly prejudiced the Employer in this matter. The Board has rejected such challenges to the election rules, as recently stated in UPS Ground Freight, Inc., 365 NLRB No. 113 (slip op. July 27, 2017, page 1, fn1) "[t]he time for extensive policy debate over the provisions of the rule has come and gone - the Board's rule was lawfully enacted, see Associated Builders and Contractors of Texas, Inc. v. NLRB, 826 F.3d 215 (5th Cir. 2016), ... [and] is not susceptible to alteration in an individual adjudication."

B. Rulings on the Parties' various Motions

During the hearing, I granted the Petitioner's motion to amend its petition and I denied the Employer's motion to postpone the hearing and motion to amend its statement of position. The Employer argued that my rulings in refusing to allow it to file an amended statement of position, or postponing the hearing to allow it file a special appeal with the Board, caused prejudicial error and violated its due process.

Under Section 102.66(b) of the Board's Rules and Regulations (R&R), "[t]he Regional Director may permit the Statement of Position to be amended in a timely manner for good cause..." (emphasis added). Petitioner's amendment to exclude non-RN HCCs did not substantially change the character or size of the proposed unit. See The Marley Company, 131 NLRB 866, 866-867 (1961). The Employer had ample opportunity to present evidence with respect to the bargaining unit proposed. Additionally, a special appeal to reconsider a ruling is filed with the Regional Director, and any challenges to my rulings in these proceedings can be filed with the Board at any time following the decision herein up to the final disposition of this proceeding. See R&R 102.65(c); 102.67(c). I herein reaffirm my rulings, and find that they constituted neither prejudicial error nor violated the Employer's due process.

II. Analysis

A. Board Law

Section 2(3) of the Act excludes from the definition of the term "employee" "any individual employed as a supervisor." Section 2(11) of the Act defines a "supervisor" as:

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 merely of a routine or clerical nature, but requires the use of independent judgment.

Individuals are "statutory supervisors if: 1) they hold the authority to engage in any one of the 12 listed supervisory functions, 2) their exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment, and 3) their authority is held in the interest of the employer." NLRB v. Kentucky River Community Care, 532 U. S., 706, 713 (2001). Supervisory status may be shown if the putative supervisor has the authority either to perform a supervisory function or to effectively recommend the same.

In applying this three part test, the Board continues to follow certain established principles. First, the party asserting supervisory status bears the burden of proof. Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006); NLRB v. Kentucky River Community Care, 532 U.S. 706, 711-712 (2001). Second, any lack of evidence is construed against the party asserting supervisory status. Elmhurst Extended Care Facilities, Inc., 329 NLRB 535, 536 fn. 8 (1999). Third, the Board's long-standing recognition that purely conclusory evidence is not sufficient to establish supervisory status remains viable. Golden Crest Healthcare Center, 348 NRLB 727, 731 (2006); Volair Contractors, Inc., 341 NLRB 673, 675 (2004); Sears, Roebuck & Co., 304 NLRB 193, 194 (1991).

With regard to the exercise of supervisory authority, the Board has determined that individuals who possess the authority as defined in Section 2(11) of the statute can be held to be supervisors even if the authority has not been exercised. Fred Meyer Alaska, Inc., 334 NLRB 646 (2001). Although the Act demands only the possession of Section 2(11) authority, not its exercise, the evidence still must be persuasive that such authority exists. Avante at Wilson, Inc., 348 NLRB 1056, 1057 (2006). Job titles, job descriptions, or similar documents are not given controlling weight and will be rejected as mere paper, absent independent evidence of the possession of the described authority. Golden Crest Healthcare Center, 348 NLRB 727, 731 (2006), citing Training School at Vineland, 332 NLRB 1412, 1416 (2000). See also Chevron Shipping Co., 317 NLRB 379, 381 fn. 6 (1995) (conclusory statements without specific explanation are not enough).

Additionally, the Board cautions against finding supervisory authority based only on infrequent instances of its existence. Family Healthcare, Inc., 354 NLRB 254 (2009) (overruled on other grounds); Golden Crest Healthcare, supra at 730, fn.9. To separate straw bosses from true supervisors, the Act prescribes that the exercise of supervisory indicia be in the interest of the employer and requires the use of independent judgment. Accordingly, "the exercise of some supervisory authority in a merely routine, clerical, perfunctory or sporadic manner does not confer supervisory status on an employee." Somerset Welding & Steel, Inc., 291 NLRB 913 (1988), quoting Feralloy West Co., 277 NLRB 1083, 1084 (1985).

Thus, "the Board . . . exercise[s] caution 'not to construe supervisory status too broadly because the employee who is deemed a supervisor is denied rights which the Act is intended to protect." Oakwood, supra at 688, quoting Chevron Shipping Co., supra at 381; Azusa Ranch Market, 321 NLRB 811, 812 (1996).

B. Application of Board Law to this Case

(1) The Employer's Operations

The Employer is accredited as a certified home health agency5 through Community Health Accreditation Partner (CHAP) and delivers home health care services out of its Muskegon operations. The Employer's Muskegon home health care entity is known as Mercy Health VNS Muskegon and the governing body thereof since 2009, is Trinity Health at Home (THH). The Employer is affiliated with two hospitals in Muskegon, Mercy Hospital and Hackley Hospital. Mercy and Hackley merged in 2009, and became a part of Trinity Health. A professional building attached to Mercy Hospital houses office space in which two of the petitioned-for HCCs work. Hackley Hospital maintains office space on the fourth floor in which one HCC works. The record indicates the Employer maintains additional offices located at 888 Terrace Street in Muskegon from which the remaining petitioned-for employees work, as explained below in more detail.

In addition to the single LPN and the HCCs, the petitioned-for unit includes seven OASIS registered nurses (RNs), nine primary care-1 RNs (PCN-1s) and four primary care-2 RNs (PCN-2s). Employer exhibits demonstrate that the OASIS nurses work the day shift, Monday through Friday, 8:00 a.m. to 5:00 p.m., with on-call/off-hours, weekend and holiday hours assigned by rotation. The two petitioned-for HCCs stationed at Mercy Hospital work Monday through Friday, 8:30 a.m. to 5:00 p.m. with a 30-minute lunch period, and the HCC stationed at Hackley Hospital works Monday through Friday, 8:00 a.m. to 5:00 p.m. with a one-hour lunch period. The HCCs are not scheduled for on-call, weekend or holiday hours.

The Employer's Muskegon operation is divided into five departments: clinical operations, business department, improvement operations, sales department, and business/facilities department. The petitioned-for OASIS nurses and PCNs work in the clinical operations department, while the petitioned-for HCCs are part of the sales department. Director of Clinical Operations Kerry Akred manages the clinical operations department and Sales Manager Bruce Wood manages the sales department. Akred and Wood report directly to Executive Director Karen Joyce. Joyce reports to Michael Soccio, Vice President of Clinical Operations for THH, and Soccio reports to Erin Denholm, President and CEO for THH. Nurse Leader Kathy Smith reports directly to Akred. 6 Three office-based care managers as well as the petitioned-for OASIS nurses and PCNs report directly to Smith. The OASIS nurses and PCNs also have some case reporting obligations to the care managers. 7 An unknown number of social workers (MSWs) also report directly to Smith. There are five schedulers as well as an unknown number of therapists and therapy assistants in the clinical operations department who report to a therapy leader,8 who reports to Akred. The petitioned-for HCCs report directly to Sales Manager Wood, as do two account executive employees and one sales lead employee.

(2) Standards of Practice and Care

All of the Employer's employees are subject to THH personnel policies and procedures. In addition, the home health nursing industry is federally regulated by the Centers for Medicare & Medicaid Services (CMS) which maintains certain regulations governing the delivery of home nursing care. CMS continually monitors all home health providers and scores them based on quality of services provided. The Employer must maintain specified ratings in order to participate with certain insurance providers. The Employer is subject to fines, penalties, and sanctions, including termination of its Medicare provider agreement, or limited Medicare/Medicaid funding, when CMS standards are violated. The Employer is also subject to nursing regulations enacted by the State of Michigan Department of Licensing and Regulatory Affairs, Board of Nursing.

In August 2016, the state investigated the Employer's home health services. This investigation, called a "survey," was likely initiated by a complaint made to the state telephone hotline. The investigation results were forwarded to CMS for review which found violations of multiple CMS regulations governing skilled nursing services. The violations related to either skilled nursing services provided to patients that were not supported by physician orders or documented in the patient care plan, or a failure to provide skilled nursing services ordered by physicians and documented in the patient care plan. CMS thereafter advised the Employer to submit an approved plan of correction or its Medicare provider agreement would be terminated in November 2016. The Employer complied and submitted a plan for correction and was resurveyed in October 2016. CMS thereafter found the Employer in compliance with the conditions of participation for continuing its Medicare-provided services. However, it also determined that based on the deficiencies found during the August investigation, the Employer would be precluded from operating an HHA training or competency evaluation program for two years. Also as a result of the investigation and sanctions, the Employer conducted a number of mandatory nursing education meetings over the course of the following months to address the deficiencies found in the state investigation.

(3) Assignment of Work

The Board in Oakwood defined assigning work as "the act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee." Oakwood, supra at 689.

(a) Time and Place

There are seven OASIS nurses, 12 PCNs, three HHAs and one LPN that perform home nursing care in Muskegon. The scheduled hours and assigned patients for all of the petitioned- for OASIS nurses and PCNs, as well as the HHAs and LPN, are determined by a scheduler.9 This information is transmitted electronically by the scheduler via tablet to the employees. The Employer recently instituted a three team system comprised of OASIS nurses and/or PCNs, therapists, HHAs and LPNs per cluster of patients. There is little, if any, contact among the team members as one caregiver, either the nurse, aide, or therapist, depending on the patient's needs, visits the patient per visit. The record demonstrates that there is not necessarily continuity of care among patients as the nurses and aides can be assigned from one patient to another.

In Oakwood, the Board found that emergency room charge nurses designated nursing staff to geographic areas within the emergency room. The Board found that this assignment of nursing staff to specific geographic locations within the emergency room fell within the definition of "assign" for purposes of Section 2(11). Oakwood, supra at 695. Here, there is no evidence that the OASIS nurses or PCNs possess authority to change the assigned shifts of the HHAs or LPN, or to call them in to work. The record evidence demonstrates the only time that employees are called in to work is when the scheduler occasionally contacts the nurses by phone during off-hours when an initial visit needs to be scheduled. While the record does not address what happens when a shift is understaffed or when an assigned employee is unable to report to work, there is some evidence that the Employer employs contingent RNs10 to cover for OASIS nurse and PCN absences. The Employer has not established any exercise of supervisory authority by the OASIS nurses or PCNs in scheduling HHAs and the LPN. See Golden Crest Healthcare Center, supra, at 728-730.

(b) Tasks

In the past, the Employer designated nurses, classified as RNs and case managers, to perform all skilled nursing home care duties, from the initial OASIS assessment and development of the patient care plan, through patient care and patient discharge. However, in about March 2017, the Employer abolished the RN job description for home health RNs and created the RN positions of OASIS nurse, PCN-1 and PCN-2. The Employer streamlined the OASIS position at this time, as part of its Care Revolution initiative, in the hope of cutting expenses and losses related to third party OASIS review, and increasing revenues. OASIS nurses are now primarily responsible for the initial patient visit and assessment, creating the initial 60-day patient care plan, revising or recertifying the plan when necessary,11 and creating the discharge plan. At the initial visit, the OASIS nurse performs a head-to-toe patient assessment which includes taking vitals; reviewing patient medications, abilities, and limitations; and evaluating the patient's home environment and non-medical caregivers and support system.

Much of this patient assessment by the nurse is computer-generated via the Employer's Homecare Homebase computer program. In this regard, the computer program provides a template with patient questions, tasks, and goals. The OASIS nurse also completes mandatory forms and generates and drafts patient orders through the Homecare Homebase computer program. The orders must be signed electronically by a physician. PCNs also perform OASIS duties when needed. Nurses are trained and educated in OASIS practices by Employer Regional Performance Improvement Manager Tracy Grigonis who is in charge of the Employer's performance improvement department and oversees quality assurance including OASIS in the Muskegon and Grand Rapids areas. Grigonis has offices in Muskegon and Grand Rapids and reports to Executive Director Joyce.

The only difference between a PCN-1 and a PCN-2 is that a PCN-2 holds a bachelor of nursing degree (BSN) and a PCN-1 has until 2020 to earn the BSN. A majority of the PCNs' work, as well as the OASIS nurses' work, is performing patient care in patient homes. They occasionally use office space located at the Terrace Street location to complete paperwork. PCNs are now primarily responsible for following the care plan and providing patient care during post-initial care visits, called "re-visits." If the patient's main focus is home therapy, then the therapist (physical, occupational, or speech/language) creates the patient care plan. Care plans are monitored by case managers and Nurse Leader Smith, who alert the original nurse or therapist who created the plan if it is in need of revision. To the extent that a care manager discovers any performance deficiencies by the nurses in following the patient care plan, such deficiencies are raised with Nurse Leader Smith who investigates the matter and determines whether any consequences, including discipline, are warranted.

The LPN and HHAs also provide nursing care during patient re-visits separately from the skilled nursing care provided by the nurses. They provide patient care pursuant to an HHA/LPN care plan which is created by the OASIS nurse or PCN during the initial OASIS visit as part of the OASIS process. The HHA/LPN care plan defines the HHA/LPN tasks and duties for the specific patient. The nurse also estimates the number of HHA or LPN visits which will be required for the patient. As with the patient care plan, the Homecare Homebase computer program contains template-generated tasks and goals for the HHAs and LPN to complete, such as wound care, bathing, dressing, feeding, and ambulating. The HHAs and LPN report any issues regarding patient care to the team PCN. There are some skilled nursing duties that the LPN and HHAs are not qualified to perform including administering IVs and passing medications. Nurses provide minimal orientation, training, and education to HHAs, limited to a nurse accompanying a new HHA on his/her first home visit. The HHAs and LPN have no involvement in creating patient care plans or OASIS assessments.

LPN and HHA patient visits are monitored by the PCNs via "supervisory visits."12 These visits, denominated as "supervisory" by the CMS, are required to take place every 14 days per CMS federal regulations. The purpose of these visits is for the PCN to discuss the care being provided to the patient with the patient and/or the patient's non-medical caregivers/support system, including care provided by the LPN and HHAs. If any deficiencies are raised related to care provided by the LPN or HHAs, the PCN advises Nurse Leader Smith who independently conducts an investigation, if deemed necessary, and decides what if any consequences, including discipline, are warranted. The PCN does not make any recommendation regarding consequences for the HHA or LPN. On occasion, the PCN might briefly address an issue related to patient care provided by the HHA or LPN directly with the HHA or LPN, while simultaneously alerting Nurse Leader Smith of such issue. If a patient, family member or non-medical care giver requests at any time that a different HHA or LPN be assigned to a patient, this information is immediately forwarded by the nurse to the case manager or to Nurse Leader Smith.

The Employer argues that the nurses' creation of patient and HHA/LPN care plans amounts to the assignment or delegation of work by the nurses to the HHAs and LPN. However, the daily tasks of the HHAs and LPNs are largely defined by the template-generated tasks and goals in the Employer's Homecare Homebase computer program. The nurses' assignment of these "discrete task[s]" is closer to "ad hoc assignments" described in Croft Metals, 348 NLRB 717, 721 (2006). In that case, the Board found that the switching of tasks by lead persons among employees assigned to their line or department was insufficient to confer supervisory status. Croft Metals, supra at 722. Here, the nurses' assignments of discrete tasks to HHAs and the LPN is insufficient to confer supervisory status. The Board has held that the role of RNs in preparing a care plan and directing other employees to carry it out does not usually require the use of Section 2(11) independent judgment, particularly when directing employees in the performance of routine, repetitive tasks. Oakwood Healthcare, supra at 693; Loyalhanna Health Care Associates, 332 NLRB 933, 935 (2000); Bowne of Houston, 280 NLRB 1222, 1223 (1986); Franklin Home Health Agency, 337 NLRB 826, 831 (1997). Generally, showing other employees the correct way to perform a task does not confer supervisory status. See Frenchtown Acquisition Co., Inc. 683 F.3d 298, 311-313 (6th Cir. 2012); Shaw, Inc., 350 NLRB 354, 357 n.13 (2007); Beverly Health & Rehabilitation Services, 335 NLRB 635 (2001).

(c) ndependent Judgment and Assignment of Work

In Oakwood, the Board found that the term "assign" encompassed a charge nurse's responsibility to assign nurses and aides to particular patients. Oakwood, supra at 689. The Board found that "if the registered nurse weighs the individualized condition and needs of a patient against the skills or special training of available nursing personnel, the nurse's assignment involves the exercise of independent judgment." Oakwood, supra at 693. The Board found that the charge nurses who worked outside of the emergency room used independent judgment in matching patients and nursing staff. For example, nurses who were proficient in administering dialysis were assigned to a kidney patient. The charge nurse assigned staff with skills in chemotherapy, orthopedics or pediatrics to the patients with needs in those areas. Charge nurses also assigned the nursing personnel to the same resident to ensure continuity of care. The nurses who were assisting a patient with a blood transfusion were not assigned to other ill patients. Charge nurses determined whether a mental health nurse or an RN should be assigned a psychiatric patient. Oakwood, supra at 696-697. In contrast, the Board found that the emergency room charge nurses did not "take into account patient acuity or nursing skill in making patient care assignments." The evidence did not show "discretion to choose between meaningful choices on the part of charge nurses in the emergency room." Oakwood, supra at 698.

As noted above, the scheduler, not the nurses, makes initial patient assignments to HHAs and the LPN, and their overall tasks are largely defined by the template-generated tasks and goals in the Homecare Homebase computer program. To the extent the nurses make isolated reassignments, the Employer has not shown that they perform a detailed analysis of HHAs' or the LPN's abilities and residents' needs. Rather, the record demonstrates that these assignments for HHAs and the LPN are routine in nature, do not require significant training or education, and are not based on any particular expertise possessed by the HHA or LPN. In the spectrum set out by the Board, the nurses' assignment of discrete tasks and the isolated temporary switching of tasks by nurses falls closer to "completely controlled" actions, rather than "free actions." They do not involve a "degree of discretion that rises above routine or clerical." Oakwood, supra at 693. (Where no evidence that purported supervisor considers the relative skills of employees in shifting them from one task or crew to another Board will not find burden is met to demonstrate that direction of employees entails the exercise of independent judgment and rises above merely routine or clerical. See, Network Dynamics Cabling, Inc., 351 NLRB 1423, 1425 (2007)). Thus, the assignment of tasks does not require the use of independent judgment.

(4) Independent Judgment and Discipline

In the instant matter, the record is devoid of evidence demonstrating that the OASIS nurses or PCNs discipline HHAs or the LPN in any way, or that they recommend such action. However, the Employer implies that nurses possess authority and use independent judgment to impose adverse consequences on HHAs and the LPN, including discipline, by virtue of the patient care plans they create. That is, if an HHA or LPN fails to provide the care outlined, she or he could suffer some adverse consequence.

The Oakwood Board, consistent with Kentucky River, adopted an interpretation of "independent judgment" that applies to any supervisory function at issue "without regard to whether the judgment is exercised using professional or technical expertise." The Board explained that "professional or technical judgments involving the use of independent judgment are supervisory if they involve one of the 12 supervisory functions of Section 2(11)." Oakwood, supra at 692. The Board considered whether the exercise of those functions is carried out with independent judgment: "actions form a spectrum between the extremes of completely free actions and completely controlled ones, and the degree of independence necessary to constitute a judgment as 'independent' under the Act lies somewhere in between these extremes," and instructed that the relevant test for supervisory status utilizing independent judgment is that "an individual must at minimum act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data." Oakwood, supra at 693. Further, the judgment must involve a degree of discretion that rises above the "routine or clerical." Id.

Regarding the implied disciplinary authority of the OASIS nurses and PCNs, under Section 2(11) of the Act, individuals are statutory supervisors if they have the authority, in the interest of the employer, to discipline employees 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. Oakwood, supra at 687; Arlington Masonry Supply, 339 NLRB 817, 818 (2003).

In the instant matter, if the nurse believes that a HHA or LPN is not providing adequate care, s/he merely reports such deficiencies to Nurse Leader Smith who determines what if any action, is necessary, such as a discussion with the HHA or LPN, or an investigation of the employee's conduct. If an investigation ensues, it is independently conducted by Smith who may consult with the nurse as well as the patient and/or patient's non-medical caregivers. Smith thereafter independently determines, with Human Resources, what, if any consequences, should be implemented, including discipline. This reporting of deficiencies in the HHAs' and the LPN's job performance falls short of disciplinary authority because the nurses do not impose or effectively recommend discipline. Community Education Centers, 360 NLRB 85, 85 (2014), citing Oakwood, supra at 692-693. Their actions are subject to an independent investigation by a higher management official. Property Market Groups, Inc., 339 NLRB 199, 206 (2003); Children's Farm Home, 324 NLRB 61, 61 (1997)

Relying on NLRB v Federal Labor Relations Authority, 613 F. 3d 275 (D.C. Cir. 2010) and NLRB v US Truck Co., 124 F.2d 887 (6th Cir. 1942), the Employer argues that federal CMS regulations governing home health care settings relate to safety and expressly require the performance of supervisory duties and obligations by the OASIS nurses and PCNs and take precedence over any potential conflict with the Act's definition and meaning of supervisory status. The Employer specifically argues that the CMS-imposed sanctions against the Employer for skilled nursing violations in 2016, related to the nurses failure to comply with directives and responsibilities related to "supervising" the HHAs and LPN. Additionally, the Employer asserts that CMS regulations requiring nurses to conduct 14-day "supervisory" visits is an indicia of supervisory status under the Act. This argument is misplaced and without merit. The CMS report substantiating the state violations related to skilled nursing services provided to patients that were not supported by physician orders or documented in the patient care plan, or failure to provide services ordered by physicians and documented in the patient care plan. There are no violations reported relating to the job performance of the HHAs or LPN. Rather, the violations are related to the nurses' own failures to perform their job duties satisfactorily, rather than that of the HHAs or LPN. Moreover, as pointed out by the Petitioner in its brief and stated by the Board such nurse practice laws relate to nurses' professional obligations and have nothing to do with the purpose of the Section 2(11) supervisory exclusion, with its definitional language, or with the Board's application of the provision. Those laws do not purport to in anyway track the Act's definition of a supervisor and the Board will not substitute the wording of any nurse practice acts for the Congressional mandated requirement for supervisory status in the Act. Crittenton Hospital, 328 NLRB 879, 879 (1999). That CMS references "supervisory" visits by nurses or supervisory skills does not make such nurses supervisors within the meaning of the Act, as argued by the Employer.

(5) Responsible Direction

In Oakwood, the Board interpreted the Section 2(11) phrase "responsibly to direct" as follows: "If a person on the shop floor has men under him, and if that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, provided that the direction is both 'responsible' (as explained below) and carried out with independent judgment." Oakwood, supra at 690-691. The Board, in agreement with several U.S. courts of appeals, held that, for direction to be "responsible," the person directing the performance of a task must be accountable for its performance. Oakwood, supra at 691-692. The Board defined "accountability" as follows:

[T]o establish accountability for purposes of responsible direction, it must be shown that the employer delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary. It also must be shown that there is a prospect of adverse consequences for the putative supervisor if he/she does not take these steps. Oakwood, supra at 692.

For direction to be responsible, the person directing must have oversight of another's work and be accountable for the other's performance. To establish accountability, it must be shown that the putative supervisor is empowered to take corrective action, and that there is a "prospect of adverse consequences" for others' deficiencies. Community Education Centers, supra, 85-86; Oakwood, supra at 691-692, 695.

The Employer argues that the nurses are held accountable as a result of any HHA or LPN deficiencies. However, as stated, there is no record evidence that any nurses have been adversely affected in any way based on the conduct of HHAs or the LPN. The instant record contains no evidence of discipline issued to a nurse concerning HHA or LPN performance. The record more clearly demonstrates that patient care is ultimately and undeniably the direct responsibility of the nurses. The evidence presented by the Employer does not demonstrate that it holds the OASIS nurses or PCNs accountable for the HHAs'or LPN's poor performance. I find that there is insufficient record evidence to establish accountability as required under Oakwood. The record does not demonstrate that the Employer imparted clear and formal notice to the nurses that they will be held accountable for the job performance of HHAs or the LPN. See Golden Crest, supra at 731. The Employer has not met its burden to establish that the nurses are accountable for their actions in directing the CNAs.

The record also demonstrates that the OASIS nurses and PCNs will set forth certain HHA and LPN tasks in the patient and HHA care plans when the nurse determines that such tasks are necessary. For example, in the care plans, the nurses may direct HHAs to bathe, dress, feed, walk, or perform wound care for patients. However, the Employer has not demonstrated that the nurses direct the HHAs or LPN using independent judgment, or that nurses' direction of the HHAs and LPN via the care plans is not controlled by the Employer's own policies or procedures or involves a degree of discretion rising above the merely routine. Community Education Centers, supra at 85, citing Oakwood, supra at 692-693.

(6) Evaluations

The OASIS nurses, PCNs, HHAs and LPN are all evaluated annually by Nurse Leader Smith. There is some limited record evidence that OASIS nurses and PCNs are involved in completing peer reviews for each other, as well as the HHAs and LPN. In this regard, the nurses record comments about the evaluated employee on the employee's performance evaluation form. There is no record evidence that such feedback from the nurses results in adverse consequences for the evaluated employees such as the institution of a performance improvement plan or discipline, or in favorable consequences, such as a raise, bonus, or promotion. There is no evidence that the nurses discuss or present evaluations to any employees, or make any recommendations for their continued employment. All employee evaluation forms are required to be signed by the evaluated employee, "manager," and "next level of management." The nurses are evaluated in the "essential functions" of qualification of care, administration, communication, professional development, supervision, and customer service. The criteria for supervision include delegating tasks to HHAs and LPNs, developing HHA care plan, 14-day supervisory visits, and participating in orientation and training of new employees. There were no completed nurse evaluations in the record.

The Employer argues that comments provided by OASIS nurses and PCNs regarding HHA and LPN performance incorporated into HHA and LPN evaluations amount to exercise of supervisory status. However, there are no HHA or LPN evaluations in the record. Moreover, there is no evidence that such the HHA or LPN evaluations containing comments by OASIS nurses and/or PCNs have any effect on the future employment of the evaluated employees. The Employer has not established any practice of nurse involvement in the HHA/LPN evaluation process that establishes supervisory authority. Moreover, simply evaluating employees is not a statutory indicia of supervisory authority. The Board has consistently declined to find supervisory status based on evaluations without evidence that they constitute effective recommendations to reward, promote, discipline, or likewise affect the evaluated employee's job status. GS4 Regulated Security Solution, 358 NLRB, slip op. at 3-4 (2013); Coventry Health Continuum, 332 NLRB 52, 53-55 (2000); Ten Broeck Commons, 320 NLRB 806, 813 (1996).

(7) Secondary Indicia

The existence of secondary indicia, such as title and higher pay, standing alone, is insufficient to demonstrate supervisory status. Shen Automotive Dealership Group, 321 NLRB 586, 594 (1996); Billows Electric Supply, 311 NLRB 878 fn.2 (1993). The OASIS nurses and PCNs wear scrubs or business-casual attire to perform their work duties while the record is silent as to the work attire of the HHAs and the LPN. The nurses attend monthly nurse meetings with nursing management during which in-service education takes place involving issues related to patient care performed by nurses as well as HHAs and the LPN. There is no evidence that they attend other meetings including any supervisory or management meetings held by Employer. All of the Employer's employees are subject to THH personnel policies and procedures. The OASIS nurses and PCNs are paid by salary, while the HHAs and LPN are paid hourly. New HHAs are trained by a nurse on the job during a single patient visit. The new job descriptions of the OASIS nurses and PCNs purport to vest them with authority over HHAs and the LPN to delegate tasks, develop and update HHA care plans, make 14-day supervisory visits to assess quality of HHA services, supervise LPN care and competence on a monthly basis, provide feedback for evaluations, train, discipline, and participate in orientations. However, as demonstrated above, the record does not establish that the nurses perform such functions for the Employer utilizing independent judgment.

Nor does the record support the Employer's argument that if the nurses do not follow the purported authority outlined in their job descriptions with regard to supervising the HHAs and LPN that they will be held accountable and subject to adverse consequences such as a performance improvement plan or discipline. Additionally, the Nurse Leader job description in evidence provides that s/he "[m]anage[s]/[s]upervise[s] nurses/HHAs/other assigned personnel" and is "responsible for direct supervision and performance improvement of assigned teams." I conclude that these job descriptions are a mere paper conveyance of supervisory authority that do not impart actual supervisory authority. Golden Crest, supra at 731, citing Training School at Vineland, 332 NLRB 1412, 1416 (2000); Loyalhanna Health Care Associates 352 NLRB 863, 864 (2008); Chevron U.S.A., Inc., 309 NLRB 59, 62 (1992) (job titles, job descriptions, or similar documents are not given controlling weight and will be rejected as mere paper, absent independent evidence of the possession of the described authority).

Finally, I note that if the OASIS nurses and PCNs are found to be supervisors, the ratio of supervisors to employees would be quite high. The Employer would employ no non-supervisory nurses. Overall, for the day shift there would be at least 16 supervisors for approximately 3 HHAs and one LPN; about 80% percent of the Employer's day shift home health nursing staff of 20 employees would be supervisory. This is an unusually top-heavy ratio. Oakwood, supra at 715-716; Beverly California Corp., supra at 1555-1556 (classifying 25% of nursing home staff as supervisors makes ranks of supervisors "pretty populous"); NLRB v. Res-Care, Inc., 705 F.2d 1461,1468 (7th Cir. 1983) (33% found to be high); Airkaman, Inc., 230 NLRB 924, 926 (1977) (one to three ratio is unrealistic and excessively high).

C. HCCs

There are three HCCs, formerly called patient liaisons, in the proposed unit. Unlike the other petitioned-for employees, the HHCs work inside one of two Muskegon hospitals operated by the Employer. Two HHCs work in an office at the Mercy Hospital campus in a professional building and one works in an office on the fourth floor of Hackley Hospital. All three HCCs are RNs, although this is not required for the HCC position. The duties of the RN HCCs are identical to those of the non-RN HCCs. The HCCs work exclusively from their offices and receive home care referrals from approximately 10 case managers employed at Mercy Hospital and seven employed at Hackley Hospital. They process the referrals by confirming with the patient that the information therein is correct, and then they fax the referrals to central intake located in Livonia, Michigan. Once the referral form is transmitted to central intake, the HCC has no further contact with the patient. The HCCs do not engage in any patient medical assessments or perform any patient care in the hospital. Rather, the case managers handle all aspects of assessing patients for discharge to home and determine patient needs and qualifications for home care. Likewise, the HCCs do not perform any care in patient homes, and they do not substitute in any way for the petitioned-for OASIS nurses or PCNs, or vice versa. Contact between HCCs and the other petitioned-for nurses is limited to the HCCs providing basic information regarding patient discharges from hospital to home care, and nurses advising HCCs, as well as case managers, regarding home care patients that need to be readmitted to the hospital.

As stated above, the HCCs are part of the Employer's sales department and report to Sales Manager Wood. Although the majority of their time is spent receiving and processing referrals, they have some marketing duties including marketing standard nursing and therapy services as well as some specialty programs offered by the Employer to patients upon discharge from the hospital. Specialty programs offered by the Employer include Beyond Balance, a fall- risk program and Home Care Connect, a tele-health program for patient-administered at-home care. For the Home Care Connect program, HCCs also train patients at discharge on the Employer-provided tablet for the patient to report medical findings, such as weight, blood pressure, and oxygen saturation levels.13 The HCCs' are not paid any commissions or bonuses related to their marketing duties.

As stated above, the Mercy Hospital HCC works 8:00 a.m. to 5:00 p.m. with a one-hour lunch break and the two Hackley Hospital HCCs work 8:30 a.m. to 5:00 p.m. with a 30-minute lunch break. They do not work any on-call/off-hours, weekend or holiday hours. They wear business-casual attire with white lab coats. Sales Manager Wood completes annual performance evaluations for the HCCs. The Mercy Hospital HCC is paid by salary and the two Hackley Hospital HCCs are paid hourly.

A primary consideration in determining an appropriate unit is whether there is a shared community of interest between the employees that would require their inclusion in the unit. NLRB v. Action Automotive, Inc., 469 U.S. 490(1985). When deciding whether a group of employees share a community of interest, the Board considers a variety of factors, including whether the employees sought are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the Employer's other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; are separately supervised; and bargaining history. United Operations, Inc., 338 NLRB 123 (2002); Boeing Co., 337 NLRB 152, 153 (2001); NLRB v. Paper Mfrs. Co., 786 F.2d 163, 167 (3rd Cir. 1984); Rinker Materials Corp. 294 NLRB 738, 738-739 (1989). While the Petitioner's position regarding the scope of the unit is a relevant consideration (see, International Bedding Company, supra, slip op. at 2, citing Marks Oxygen Co., 147 NLRB 228, 230 (1964)), that issue is not dispositive with regard to what constitutes an appropriate unit. Certain proposed units, such as those based on an arbitrary, heterogeneous, or artificial grouping of employees, will be found to be inappropriate. Moore Business Forms, Inc., 204 NLRB 552, 553 (1973).

In determining that the unit sought by the Petitioner is not appropriate, I have carefully weighed the community-of-interest factors cited in United Operations, supra. I agree with the Employer that the petitioned-for RN HCCs do not share a sufficient community of interest with the other petitioned-for employees to be included in the unit. I conclude that the unit sought by the Petitioner is not appropriate because the record reveals that the HCCs, who work in an office at the hospital, have little to no contact with the other-petitioned for employees, who work primarily in patient homes. They do not share common supervision or work duties. The only commonality among them is possession of the same nursing degree. While I note that there is some limited bargaining history in that HCC/Liaison RNs employed by Hackley Visiting Nurse Services and Hospice, Inc., were briefly included in an RN bargaining unit represented by the Michigan Nurses Association, such unit ceased to exist following an RM election held in September 2009.14 Such bargaining history does not weigh heavily in support of a finding that the Employer's OASIS nurses and PCNs share any community of interest with its petitioned-for HCCs herein. Their differences heavily outweigh any similarities. The unit sought does not conform to an administrative grouping and is not appropriate. Thus, the petitioned-for HCCs will be excluded from the proposed unit.

D. LPN

At the hearing, the parties stipulated, without any factual basis, that the single LPN in the proposed unit is a professional employee within the meaning of Section 2(12) of the Act. The duties of the LPN are as described above. The job description for the LPN position requires the LPN to be licensed by the State of Michigan and have one year of experience in another healthcare setting, preferably in home healthcare.

Under Section 2(12) of the Act, in order to qualify as a professional, an employee must perform work of a predominantly intellectual and varied character, involving the consistent exercise of discretion and judgment. The Act defines a professional employee in terms of the work performed rather than in terms of individual qualifications. The work must be of such a character that the output produced cannot be standardized in relation to a given period of time, and it must require knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital. Avco Corp., 313 NLRB 1357, 1357 (1994). Although educational background does not control, the Board examines educational background for the purpose of deciding whether the work of the group satisfies the "knowledge of an advanced type" requirement. If a group of employees consists primarily of individuals with professional degrees, the Board may presume that the work requires "knowledge of an advanced type." Conversely, if few in the group possess the appropriate degree, it follows that the work does not require the use of advanced knowledge. Id. at 1357.

Unlike the OASIS nurse and PCN job descriptions which address knowledge and skills, the LPN job description does not reflect such a requirement. Rather, the LPN performs more routine medical care and basic patient assessments rather than any OASIS or other skilled nursing assessments. They perform only uncomplicated wound care and they do not administer IVs. While the LPN, like the petitioned-for RNs, must be licensed, the education required to become an LPN is limited to a school of practical nursing versus a four-year BSN nursing education program.

The Board has consistently found LPNs to be technical employees and, therefore, nonprofessionals. Mountain Manor Nursing Home, 204 NLRB 425 (1973); Waterloo Surgical & Medical Group, 213 NRLB 321 (1974); Barnert Memorial Hospital, 217 NLRB 775, 780- 781 (1975); Presbyterian Medical Center, 218 NRLB 1266 (1975); Trinity Memorial Hospital of Cudahy, 219 NLRB 215, 216 (1975); Samaritan Health Services, Inc., 238 NLRB 629 (1978). The Employer has cited no cases in which the Board has found LPNs to be professionals. Accordingly, I reject the parties' stipulation that the LPN in the petitioned-for unit is a professional employee, and I find the LPN to be a nonprofessional employee. The Board prohibits including professional employees in a unit with nonprofessional employees unless a majority of the professional employees vote for inclusion in such a unit. Sonotone Corp., 90 NLRB 1236 (1950). However, because there is only one LPN nonprofessional employee in the petitioned-for unit, and a unit of one employee is inappropriate (a potential outcome were a Sontone election held), a Sonotone election is not appropriate in this matter. Thus, I find that the petitioned-for LPN is excluded from the proposed unit.

E. Conclusions and Findings

Based on the foregoing discussion and on the entire record,15 I find and conclude as follows:

1. The hearing officer's rulings are free from prejudicial error and are affirmed.

2. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction.16

3. The labor organization involved claims to represent certain employees of the Employer.

4. A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.

5. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:

All full-time, regular part-time OASIS registered nurses (OASIS RNs), primary care-1 registered nurses (PCN-1s), and primary care-2 registered nurses (PCN-2s) employed by the Employer out of its facility located at 888 Terrace Street, Muskegon, Michigan; but nursing services and hospice nursing services out of its facility located at 888 Terrace Street, Muskegon, Michigan. During the calendar year ending December 31, 2016, the Employer derived gross revenues in excess of $100,000, and purchased and received at its Muskegon, Michigan facility goods and materials valued in excess of $5,000 directly from points located outside the State of Michigan.

excluding all home care coordinators (HCCs), contingent registered nurses (contingent RNs), licensed practical nurses (LPNs), home health aides (HHAs), physical therapists (PTs), occupational therapists (OTs), office staff, casual employees, student nurses, managers, and guards and supervisors as defined in the Act.

DIRECTION OF ELECTION

The National Labor Relations Board will conduct a secret ballot election among the employees in the unit found appropriate above. Employees will vote whether or not they wish to be represented for purposes of collective bargaining by SEIU HEALTHCARE MICHIGAN, SERVICE EMPLOYEES INTERNATIONAL UNION, CTW.

A. Election Details

The election will be held on October 24, 2017 at 7:00 a.m. to 9:00 a.m., and 4:00 p.m. to 6:00 p.m., in the Healing Center room on the 1st floor of the Employer's premises located at 888 Terrace Street, Muskegon, Michigan.

All ballots from all polling times will be commingled and counted on October 24, 2017, at 6:00 p.m. in the Healing Center room on the 1st floor of the Employer's premises located at 888 Terrace Street, Muskegon, Michigan.

B. Voting Eligibility

Eligible to vote are those in the unit who were employed during the payroll period ending October 7, 2017, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off.

Employees engaged in an economic strike, who have retained their status as strikers and who have not been permanently replaced, are also eligible to vote. In addition, in an economic strike that commenced less than 12 months before the election date, employees engaged in such strike who have retained their status as strikers but who have been permanently replaced, as well as their replacements, are eligible to vote. Unit employees in the military services of the United States may vote if they appear in person at the polls.

Ineligible to vote are (1) employees who have quit or been discharged for cause since the designated payroll period; (2) striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the election date; and (3) employees who are engaged in an economic strike that began more than 12 months before the election date and who have been permanently replaced.

C. Voter List

As required by Section 102.67(l) of the Board's Rules and Regulations, the Employer must provide the Regional Director and parties named in this decision a list of the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cell telephone numbers) of all eligible voters. The Employer must also include in a separate section of that list, the same information for those individuals who, according to this direction of election, will be permitted to vote subject to challenge.

To be timely filed and served, the list must be received by the regional director and the parties by October 16, 2017. The list must be accompanied by a certificate of service showing service on all parties. The region will no longer serve the voter list.

Unless the Employer certifies that it does not possess the capacity to produce the list in the required form, the list must be provided in a table in a Microsoft Word file (.doc or docx) or a file that is compatible with Microsoft Word (.doc or docx). The first column of the list must begin with each employee's last name and the list must be alphabetized (overall or by department) by last name. Because the list will be used during the election, the font size of the list must be the equivalent of Times New Roman 10 or larger. That font does not need to be used but the font must be that size or larger. A sample, optional form for the list is provided on the NLRB website at www.nlrb.gov/what-we-do/conduct-elections/representation-case-rules- effective-april-14-2015.

When feasible, the list shall be filed electronically with the Region and served electronically on the other parties named in this decision. The list may be electronically filed with the Region by using the E-filing system on the Agency's website at www.nlrb.gov. Once the website is accessed, click on E-File Documents, enter the NLRB Case Number, and follow the detailed instructions.

Failure to comply with the above requirements will be grounds for setting aside the election whenever proper and timely objections are filed. However, the Employer may not object to the failure to file or serve the list within the specified time or in the proper format if it is responsible for the failure.

No party shall use the voter list for purposes other than the representation proceeding, Board proceedings arising from it, and related matters.

D. Posting of Notices of Election

Pursuant to Section 102.67(k) of the Board's Rules, the Employer must post copies of the Notice of Election accompanying this Decision in conspicuous places, including all places where notices to employees in the unit found appropriate are customarily posted. The Notice must be posted so all pages of the Notice are simultaneously visible. In addition, if the Employer customarily communicates electronically with some or all of the employees in the unit found appropriate, the Employer must also distribute the Notice of Election electronically to those employees. The Employer must post copies of the Notice at least 3 full working days prior to 12:01 a.m. of the day of the election and copies must remain posted until the end of the election. For purposes of posting, working day means an entire 24-hour period excluding Saturdays, Sundays, and holidays. However, a party shall be estopped from objecting to the nonposting of notices if it is responsible for the nonposting, and likewise shall be estopped from objecting to the nondistribution of notices if it is responsible for the nondistribution.

Failure to follow the posting requirements set forth above will be grounds for setting aside the election if proper and timely objections are filed.

RIGHT TO REQUEST REVIEW

Pursuant to Section 102.67 of the Board's Rules and Regulations, a request for review may be filed with the Board at any time following the issuance of this Decision until 14 days after a final disposition of the proceeding by the Regional Director. Accordingly, a party is not precluded from filing a request for review of this decision after the election on the grounds that it did not file a request for review of this Decision prior to the election. The request for review must conform to the requirements of Section 102.67 of the Board's Rules and Regulations.

A request for review may be E-Filed through the Agency's website but may not be filed by facsimile. To E-File the request for review, go to www.nlrb.gov, select E-File Documents, enter the NLRB Case Number, and follow the detailed instructions. If not E-Filed, the request for review should be addressed to the Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001. A party filing a request for review must serve a copy of the request on the other parties and file a copy with the Regional Director. A certificate of service must be filed with the Board together with the request for review.

Neither the filing of a request for review nor the Board's granting a request for review will stay the election in this matter unless specifically ordered by the Board.

Dated at Detroit, Michigan this 12th day of October, 2017.

Terry Morgan, Regional Director

National Labor Relations Board, Region 7

Patrick V. McNamara Federal Building

477 Michigan Avenue, Room 300

Detroit, MI 48226