NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 23 (1994)

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Cite as: 511 U. S. 571 (1994)

Ginsburg, J., dissenting

ern Bleacher & Print Works, Inc., 115 N. L. R. B. 787, 791 (1956), enforced, 257 F. 2d 235, 239 (CA4 1958); cf. Northcrest Nursing Home, 313 N. L. R. B., at 494-495 (drawing the analogy between leadpersons and charge nurses in hospitals and nursing homes). Differentiating the role of front-line managers from that of leadperson, the Board has placed some nurses, because of the level of their authority, in the supervisor category, while ranking others, as in this case, in a professional (or technical), but not supervisor, class. See cases cited in id., at 498, n. 36.

III

Following the pattern revealed in NLRB decisions, the Administrative Law Judge (ALJ), affirmed by the Board, determined that the four licensed practical nurses in this case were not supervisors. The ALJ closely examined the organization and operation of nursing care at Heartland and found the nurses' direction of aides "closely akin to the kind of directing done by leadmen or straw bosses, persons . . . Congress plainly considered to be 'employees.' " 306 N. L. R. B., at 70. Backing up this finding, the ALJ pointed out that, although the nurses "g[a]ve orders (of certain kinds) to the aides, and the aides follow[ed] those orders," id., at 72, the nurses "spen[t] only a small fraction of their time exercising that authority," id., at 69. Essentially, the nurses labored "to ensure that the needs of the residents [were] met," and to that end, they "check[ed] for changes in the health of the residents, administer[ed] medicine, . . . receive[d] status reports from the nurses they relieve[d], and g[a]ve [such] reports to aides coming on duty and to the nurses' reliefs," pinch-hit for aides in "bathing, feeding or dressing residents," and "handle[d] incoming telephone calls from physicians and from relatives of residents who want[ed] information about a resident's condition." Ibid.

The ALJ noted, too, that "when setting up the aide-resident assignments," the nurses "followed old patterns"; indeed, "the nurses routinely let the aides decide among

593

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