UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BEVERLY ENT MA INC

v.

NLRB


97-1672a

D.C. Cir. 1999


*	*	*


Sentelle, Circuit Judge: Employer East Village Nursing  &
Rehabilitation Center ("East Village") petitions for review  of an
order of the National Labor Relations Board ("NLRB"  or "Board")
finding that it violated sections 8(a)(1) and (5) of  the National
Labor Relations Act, 29 U.S.C. s 158(a)(1), (5).  East Village
acknowledges that it refused to bargain with the  union certified as
the representative of licensed practical  nurses ("LPNs") and
registered nurses ("RNs") at the Cen- ter, but argues that
certification was improper because the  LPNs and RNs serve as "charge
nurses" and are "supervi- sors" within the meaning of the National
Labor Relations Act.  East Village contends that the nurses are
supervisors based  on their independent disciplinary authority over
the certified  nursing assistants, yet cannot point to any instance in
which  that purported independent authority was exercised. While  the
exercise of supervisory authority is not always necessary  to
establish that authority is possessed, the repeated failure  to
exercise putative authority in circumstances where such  exercise
would be appropriate can be evidence that the au- thority is more
imagined than real. Concluding that the  Board was justified in
viewing this as such a case, we deny  the petition for review and


I.


East Village Nursing & Rehabilitation Center has four  nursing units,
each supervised by a Unit Coordinator who  reports to the Director of
Nursing. Each unit is at all times  staffed with from one to three
nurses (one or more of whom  serve as "charge nurses") and from one to
six certified  nursing assistants ("CNAs"). The job description of a
charge  nurse includes, inter alia, independently disciplining CNAs. 
In numerous training seminars, charge nurses have been 


instructed in how to exercise their independent discipline over  CNAs,
and charge nurses have been criticized on their job  evaluations for
failing to exercise their authority over CNAs.


In 1995, the Service Employees International Union, Local  285
("Union"), petitioned to represent all RNs and LPNs  employed by East
Village. East Village contended that repre- sentation was
impermissible because the nurses were statuto- ry supervisors under s
2(11) of the National Labor Relations  Act. The Regional Director
issued a decision in 1995 conclud- ing that the nurses were not
supervisors. An election was  held, in which there were insufficient
votes in favor of repre- sentation, and the Union was not certified.


In November 1996, the Union again petitioned to represent  the East
Village nurses. East Village again objected that the  nurses were
supervisors under the Act, emphasizing that all  RNs and LPNs
sometimes act as "charge nurses," and as  such have independent
authority to discipline certified nurs- ing assistants. However, the
Regional Director issued a  Decision and Direction of Election finding
that the nurses  were not "supervisors." The Director acknowledged
that the  nurses had been instructed that they have independent au-
thority to discipline. However, she noted that in none of the  seven
recorded incidents of discipline of CNAs in the record  had the charge
nurse exercised independent authority--in  practice, charge nurses
always reported the incident to their  shift supervisor, unit
coordinator, or the Director of Nursing  or Administrator. The
Regional Director acknowledged East  Village's contention that it is
the existence and not the  exercise of the power to discipline that is
dispositive, but  concluded that the giving of "paper authority" which
is not  exercised does not make an employee a supervisor. East 
Village argued that the nurses' failure to exercise their disci-
plinary authority was due to fear of retaliation by the CNAs,  who had
allegedly threatened them and vandalized their  vehicles. However, the
Director found the nurses' motives  for refusing to follow East
Village's directives to exercise  independent discipline "irrelevant,"
noting that "[t]he fact  remains that the charge nurses have not
performed the  supervisory duties the Employer has attempted to confer


them and the Employer has permitted this situation to go  on."
Accordingly, the Director directed election. East Vil- lage filed a
Request for Review, which the Board denied, 2-1.


In the ensuing election, there were 22 votes in favor of 
representation and 5 against. The Union was certified.  However, East
Village refused to bargain with the Union,  leading to the present
unfair labor charge alleging violations  of sections 8(a)(1) and (5)
of the National Labor Relations  Act, 29 U.S.C. s 158(a)(1) and (5).
After the unfair labor  practice charge was filed, East Village
requested reconsidera- tion of the Board's decision not to grant
review of the  underlying issues. The NLRB denied East Village's
recon- sideration request in its final Decision and Order, issued on 
September 30, 1997, which ordered East Village to cease and  desist
from refusing to bargain with the Union. The employ- er petitions for
review, and the Board seeks enforcement of  its order.


II.


Under Section 2(11) of the Act, the definition of "supervi- sor"
includes an individual "having authority, in the interest  of the
employer, to ... discipline other 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." 29 U.S.C. s
152(11). The Board's findings  regarding supervisory status are
entitled to affirmance on  review if supported by substantial evidence
on the record as a  whole. Passaic Daily News v. NLRB, 736 F.2d 1543,
1550  (D.C. Cir. 1984). The burden of proving supervisory status 
rests upon the party asserting it. Beverly Enters.-Pennsyl- vania,
Inc. v. NLRB, 129 F.3d 1269 (D.C. Cir. 1997).


In construing Section 2(11), the Board has often noted that  it is the
possession of supervisory authority and not its  exercise which is
critical. See, e.g., Cherokee Heating and  Air Conditioning Co., 280
NLRB 399, 404 (1986); Sheet  Metal Workers Local 85, 273 NLRB 523, 526
(1984); Hook  Drugs, Inc., 191 NLRB 189, 191 (1971). At the same time,


" 'theoretical [or] paper power will not suffice' to make an 
individual a supervisor." Food Store Employees Union, Lo- cal 347 v.
NLRB, 422 F.2d 685, 690 (D.C. Cir. 1969) (quoting  NLRB v. Security
Guard Serv., 384 F.2d 143, 149 (5th Cir.  1967)). Accord NLRB v.
Sayers Printing Co., 453 F.2d 810,  813-15 (8th Cir. 1971); Sunset
Nursing Homes, Inc., 224  NLRB 1271, 1272 (1976) ("[T]he mere use of a
title or the  giving of 'paper authority' which is not exercised does
not  make an employee a supervisor."); Great Lakes Towing Co.,  168
NLRB 695, 700 (1967). Appellant urges that these two  principles are
in such tension that their coexistence is unrea- sonable and invites
arbitrariness. We do not agree.


Supervisory status determinations carry important conse- quences for
the workers whose status is in question. Section  2(3) of the National
Labor Relations Act, 29 U.S.C. s 152(3),  excludes from the definition
of the term "employee" "any  individual employed as a supervisor,"
and, under Section 14(a)  of the Act, 29 U.S.C. s 164(a), an employer
cannot be re- quired to bargain about the working conditions of
supervisors.  Thus when a worker is found to be a "supervisor" within
the  meaning of the Act, she is excluded from the NLRB's collec- tive
bargaining protections. VIP Health Servs., Inc. v.  NLRB, No. 97-1608,
1999 WL 7831, *4 (D.C. Cir. Jan. 12,  1999). In light of this, the
Board must guard against constru- ing supervisory status too broadly
to avoid unnecessarily  stripping workers of their organizational
rights. See Wil- liamson Piggly Wiggly v. NLRB, 827 F.2d 1098, 1100
(6th  Cir. 1987). Because of the serious consequences of an erro-
neous determination of supervisory status, particular caution  is
warranted before concluding that a worker is a supervisor  despite the
fact that the purported supervisory authority has  not been exercised.
In some cases, such a conclusion is no  doubt appropriate. For
example, in a given situation, the  failure to exercise supervisory
authority may indicate only  that circumstances have not warranted
such exercise. In  such a case, it may be quite possible to establish
that real  authority is possessed, despite the lack of exercise. In
fact, a  supervisor's lack of occasion to exercise authority may
itself  indicate that that authority is very strong indeed. But absent


exercise, there must be other affirmative indications of au- thority.
Statements by management purporting to confer  authority do not alone
suffice. See Chevron, U.S.A., Inc., 309  NLRB 59, 69 (1992) (no weight
given "job descriptions that  attribute supervisory authority where
there is no independent  evidence of its possession or exercise");
Advanced Mining  Group, 260 NLRB 486, 607 (1982) ("What is relevant is
the  actual authority possessed and not the conclusory assertions  of
a company's officials."). For example, in Oil, Chemical  and Atomic
Workers Int'l Union, AFL-CIO v. NLRB, 445  F.2d 237 (D.C. Cir. 1971)
("OCAW"), this court upheld the  Board's conclusion that "senior
operators" were not supervi- sors, despite notices and postings by the
employer that the  senior operators were to supervise the personnel on
their  shift. We noted that "beyond the statements or directives 
themselves, what the statute requires is evidence of actual 
supervisory authority visibly translated into tangible exam- ples
demonstrating the existence of such authority." Id. at  243.


Such "tangible examples" evidencing authority are lacking  here. The
record reveals that in multiple training sessions,  and on their
performance evaluations, the nurses were en- couraged by management to
"independently discipline" certi- fied nursing assistants. Yet the
record also reveals seven  recorded occasions on which the nurses were
involved in  disciplinary incidents involving certified nursing
assistants.  On each of these seven occasions, the nurse involved
reported  the incident to her supervisors rather than independently 
disciplining the CNA. Accordingly, the Board concluded that  the
employer's efforts to communicate to the nurses that they  possessed
independent disciplinary authority did not "demon- strate supervisory
authority in the absence of evidence that  [the nurses] have any role
in discipline beyond a reporting  function." Cf. Nymed, Inc., 320 NLRB
806, 812 (1996);  Passavant Health Ctr., 284 NLRB 887, 889 (1987).


Appellant argues, however, that the Board erred in failing  to
adequately consider why the nurses did not exercise the  independent
authority they purportedly possessed. In partic- ular, appellant
claims that the Board did not give sufficient 


weight to the testimony of several nurses that they had been 
threatened by CNAs, that their vehicles had been vandalized,  and that
they feared retaliation by CNAs if they exercised  their disciplinary
authority. But even if accurate, appellant's  explanation for the
nurses' failure to exercise their authority  is beside the point. The
Board was not charged with deter- mining whether management desired
the nurses to be super- visors. Nor was it charged with determining
whether the  nurses would have acted as supervisors but for some
inter- vening factor. The Board was required to decide whether the 
nurses were supervisors, and the consistent failure to exercise 
putative disciplinary authority despite the opportunity to do  so was
certainly an appropriate factor for the Board to  consider in making
its decision, whatever the reason for that  failure.


Indeed, under the approach appellant advocates, an em- ployer could
effectively disqualify employees from a bargain- ing unit by granting
them paper authority that they will be  too intimidated to exercise.
This possibility would be particu- larly troublesome where, as here,
much of the evidence of  conferred authority is based on management
actions which  occurred when a union campaign was in progress or on
the  horizon. See OCAW, 445 F.2d at 173 ("In [an atmosphere  prior to
any union campaign], untainted by live controversies  over the
statutory status of any particular group of employ- ees, management's
statements conferring responsibilities and  allocating duties are
likely to be more reliable than similar  statements made in the
context of union conflict when di- rectives are often addressed as
much to the Board as they are  to the company's personnel.").


East Village may well have had every intention that the  charge nurses
assume true supervisory roles. Nonetheless,  whatever their intention,
East Village's management failed to  take adequate measures to ensure
that the nurses' authority  would materialize in practice. Appellant
acknowledges that it  did not "discipline" the nurses for not
exercising their super- visory authority, and did not "discipline"
CNAs for retaliatory  conduct, but argues the lack of formal
disciplinary procedures  in no way indicates that East Village


nurses' failure to exercise their supervisory roles. Indeed,  East
Village asserts that, far from permitting this situation, it  strove
to correct it through unfavorable reviews on nurses'  evaluations and
continuing encouragement to exercise disci- plinary authority. Without
purporting to suggest what would  have been an appropriate management
strategy, we note only  that the strategy employed, however
well-intentioned, was  ineffectual. The record does indicate that at
training time  and evaluation time, East Village enthusiastically
championed  the charge nurses' supervisory authority. But each time an
 incident calling for discipline of a CNA occurred, the charge  nurses
failed to act independently, and other supervisory and  management
personnel consistently stepped in and handled  the discipline.
Furthermore, even to the degree that it  suggests supervisory
authority, but see VIP Health Servs.,  1999 WL 7831 at *6, there is no
evidence that there are any  times when no shift or unit supervisors
are present. In  short, East Village has apparently structured its
nursing staff  in such a way that the charge nurses, for whatever
reason, do  not meaningfully possess the purported authority they have
 been given. If the nurses refuse to exercise the authority 
management intended due to fear of the CNAs, it is a  problem for
management to correct. It is not, however, a  reason for the Board or
this court to impute to the nurses an  authority which they do not in
fact possess. In the circum- stances of this case, the Board was
justified in concluding that  the nurses' authority is not an
actuality, albeit undemonstrat- ed, but is instead a speculative


Conclusion


Because the Board's conclusion that the East Village nurs- es are not
supervisors was supported by substantial evidence  on the record as a
whole, East Village's refusal to bargain  was unjustified.
Accordingly, we deny appellant's petition for  review, and grant the
Board's cross-petition for enforcement  of its order.