dissenting:
Because I believe that the licensed practical nurses (LPNs) in this ease are “supervisors” as defined by § 2(11) of the National Labor Relations Act (NLRA), and that therefore the Board erred in ordering Beverly Enterprises to bargain with a unit that includes these LPNs, I dissent.
Bargaining units that include supervisors are not protected by the NLRA, which gives only “employees” the right to organize and bargain collectively. See 29 U.S.C. § 157; see also Hanna Mining Co. v. District 2, Marine Eng’rs Beneficial Ass’n, 382 U.S. 181, 188, 86 S.Ct. 327, 331, 15 L.Ed.2d 254 (1965). The NLRA defines the term “supervisor” to include “any individual having authority, in the interest of the employer, to ... assign ... or discipline other employees, or responsibly to direct them, ... or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” 29 U.S.C. § 152(11). Employees thus qualify as supervisors for purposes of enforcing the Act when (1) they are authorized to perform or recommend at least one of twelve duties enumerated in § 2(11); (2) their authority promotes the interest of their employer; and (3) the exercise of the authority requires the use of independent judgment.
In the case before us, six LPNs, who function as “charge nurses” at the Carter Hall Nursing Home in Dryden, Virginia, were certified for inclusion in the bargaining unit. Because these LPNs are supervisors as defined by the Act, the employer contends that it was legal error for . the Board to require the employer to bargain collectively with a bargaining unit which includes LPNs. I agree.
The employee handbook at Carter Hall describes the LPNs as “charge nurses” who are supervisors of certified nurse’s aides (CNAs). The handbook states that whenever it indicates that a CNA go to his or her supervisor, it means that the CNA must go to the LPN charge nurse.
*364The LPNs’ supervisory role is borne .out by the authority given them and the functions they exercise.- For a majority of the work week — the second and third shifts — at Carter Hall, LPNs are the highest level of supervisor present and are the only persons directing the work of the CNAs. While the director of nursing assigns CNAs to given shifts, this schedule does not assign a particular CNA to a given group of patients’ rooms. Rather, the LPN charge nurse determines which CNA is assigned which group of rooms, based on the LPN’s knowledge of each CNA’s skills, experiences, and personality, and the LPN’s assessment of which patients would best be matched with the CNA. Moreover, if a given CNA is unable to make her shift, when the director of nursing or the assistant director of nursing is not- on the site, the LPN is authorized to request a" CNA to work overtime to fill the gap or to call other CNAs until an available CNA is found. The LPNs have authority to allow'CNAs to leave a shift early in cases of emergency or for serious rule infractions. In addition, the LPNs can write up disciplinary incidents involving CNAs and can recommend that, a CNA be fired. The record in this case reveals that this authority was exercised on at least one occasion when an LPN ordered a CNA to leave for a rule infraction and recommended that the CNA be fired. The CNA was fired, with the ultimate disciplinary decision made by the.nursing home administrator.
Finally, and by no means least importantly, for the majority of the work week when the LPN is the highest-ranking person at the facility, she must exercise unspecified judgment in cases of emergencies with respect to the home. This responsibility includes the authority to evacuate the home.
Under these facts, it is readily apparent that LPNs are authorized to perform several of the functions or to recommend actions with respect to several of the functions defined in § 2(11) of the NLRA. Only one such authorization is required to satisfy the definition. Moreover, LPNs exercise judgment on behalf of Carter Hall with respect to all of these activities. These facts bring the LPNs in this ease directly under our precedent finding them to be supervisors. See NLRB v. St. Mary’s Home, Inc., 690 F.2d 1062 (4th Cir.1982); Beverly Cal. Corp. v. NLRB, 976 F.2d 725, 1992 WL 223815 (4th Cir.1992) (unpublished disposition) (Judges Hall, Butzner, and Legg finding that LPNs in similar circumstances are supervisors); see also Caremore, Inc. v. NLRB, 129 F.3d 365 (6th Cir.1997) (holding the ability to recommend that other employees be fired makes LPNs supervisors).
Fqr the foregoing reasons, I would grant the petition for review and deny the NLRB’s petition to enforce its order.