Eventide South, A Division Of Geriatrics, Inc.

EVENTIDE SOUTH, A DIVISION OF GERIATRICS, INC. Eventide South, a Division of Geriatrics, Inc. and Pro- fessional and Health Care Employees Division, Re- tail Clerks Union Local No. 7, chartered by Retail Clerks International Union, AFLCIO, Petitioner. Case 27-RC-5700 November 14. 1978 DECISION ON REVIEW, ORDER, AND DIRECTION OF ELECTION BY MEMBERS JENKINS. PENFLIO. AND TRUESDALIE Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on May 3 and 30, 1978. before Hearing Officer Wayne L. Benson. On June 15, 1978, the Regional Director for Region 27 issued a Deci- sion and Order in which he found that all registered nurses employed by the Employer are supervisors within the meaning of Section 2(11) of the Act. Ac- cordingly, the Regional Director dismissed the peti- tion filed herein, which sought a unit consisting of "all full time and regular part time registered profes- sional nurses, excluding all other employees, su- pervisors, confidential employees, business office cleri- cal employees and guards as defined in the National Labor Relations Act." Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, Petitioner filed a timely request for review of the Regional Director's decision. In its request for review, Petitioner contends that the Region- al Director made factual findings which are clearly erroneous, and that he departed from officially report- ed precedent. The Employer filed a statement in opposi- tion to Petitioner's request for review. By telegraphic order dated July 26, 1978, the Board granted Petitioner's request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this proceeding with respect to the issue under review, including the briefs of the parties, and makes the fol- lowing findings: The Employer operates a nursing home facility, at which it employs 11 registered nurses. The parties stipulated that the registered nurses are professional employees as defined in Section 2(12) of the Act, and further stipulated that 4 of the II registered nurses are supervisors within the meaning of the Act.' The i The four nurses stipulated to be supervisors. and their job titles are as only issue presented in this case is whether the re- maining seven registered nurses employed by the Employer are supervisors within the meaning of the Act.? Petitioner contends that the Regional Director erred in finding that all registered nurses employed by the Employer are supervisors within the meaning of Section 2(11) of the Act. We agree. The job titles of the seven nurses whose status is contested are: charge nurse day supervisor: relief charge nurse day supervisor; charge nurse evening supervisor: relief charge nurse evening supervisor; charge nurse night supervisor; relief charge nurse night supervisor; and charge nurse.' The duties and responsibilities of these charge nurses, as we shall re- fer to them, are e;sentially identical. Each is respon- sible for insuring adequate staffing throughout the nursing home on her shift. Certain minimum staffing patterns are required by the State, and, if an employ- ee or employees fail to report for work, resulting in the facility not meeting the state requirements, each charge nurse may call in nonscheduled employees to cover the deficiency. However, the charge nurses do not have authority to order an employee to report for work: their only authority is to make a request. which the employee is free to refuse without risking discipline. If the charge nurse on duty is unable to secure adequate staffing, she must contact the direc- tor of nursing services for approval before calling an independent labor pool.4 Alternatively, the charge nurse may temporarily transfer an employee from one area of the nursing home to another area which is understaffed. This movement is done on the basis of a determination that there is not enough staff to take care of patients in one particular area, and is strictly limited to cover immediate patient care needs.5 The charge nurses do not have the authority to make permanent transfers, which must be made by the director of nursing services. In the event that an employee requests, or a charge nurse recom- mends, a permanent transfer, the director of nursing follows: Catherine Butler. director of nursing services: Marilyn Garrity. assistant director of nursing services: Patty Wynkoop. inservice director: and Nancy McCambridge. assistant inservice director. 2 The parties stipulated that the requested unit is an appropriate one for bargaining We attach no weight to the use of the term "supervisor" in these job titles. as it is settled that "the mere use of a title or the giving of 'paper authority' which is not exercised does not make an employee a supervisor," Sunset Nursing Homes, Inc. d/b/a North Miami Convalescent Home, 224 NLRB 1271. 1273 (1976). On the first day of the hearings. May 3. 1978, the Employer claimed that the charge nurses had the authority to call the labor pool at their own discretion However. on the second day of the hearings. May 30. 1978. the director of nursing services testified that the charge nurses must get ap- proval from one of the four stipulated supervisors before contacting the pool. The director of nursing services admitted on cross-examination that such a temporary transfer of staff is "a medical judgement concerning a patient's care." 287 DECISIONS OF NATIONAL LABOR RELATIONS BOARD services will independently investigate the need for and feasibility of the transfer before making a deci- sion. It is undisputed that charge nurses have authority to "counsel" employees, through the administration of oral and written warnings. The counseling is done on a "counseling sheet." which, when completed, can constitute a written warning. However, charge nurses do not have the authority to suspend or terminate employees, although they may recommend such ac- tion to the director of nursing services, who then con- ducts an independent investigation. The counseling that the charge nurses to have authority to carry out is also performed by various licensed practical nurses employed by the Employer. Barbara Nelson, one of the charge nurses, testified on cross-examination that an example of the type of infraction for which she would issue a warning would be an employee is leav- ing a patient's bedsheets disarranged, because "that is not good for the patient." We believe that it is clear from the record that the function of the charge nurs- es in the Employer's disciplinary procedure is to ob- serve inadequacies in an employee's work perfor- mance, attempt to point out those inadequacies to the employee and suggest improvements, and then report the facts concerning the employee's perfor- mance to the director of nursing services, who makes her own independent evaluation of the employee's work performance and determines what, if any, disci- pline should be imposed. Moreover, the record con- tains no evidence suggesting that even the minor dis- ciplinary powers exercised by the charge nurses extend beyond the realm of patient care to adminis- trative or personnel matters such as employee absen- teeism.6 The Employer asserts that the charge nurses have the authority to allow employees to leave work early in case of illness, and to grant employees permission to work overtime. However, the record reveals that it is the Employer's policy that only the director of nursing services and her assistant have authority to grant overtime, except in emergency situations where the charge nurse makes a medical determination that the condition of a patient requires one or more em- ployees to work overtime. As we have stated that per- mitting an employee to leave early due to illness is a duty "accomplished in a perfunctory manner not re- quiring the exercise of any discretion," 7 we do not agree that either factor can be considered as an indi- cation of supervisory status. Both Petitioner and the Employer agree that the charge nurses evaluate employees at the facility on a 6See St. Mary s Hospital, Inc., 220 NLRB 496 11975). 7Pinecrest Convalescent Home, Inc, 222 N! RB 13 (1976). standard form supplied by the Employer. Both also agree that the evaluations are not the basis for wage increases, which are awarded strictly by seniority. Nonetheless, the Employer argues that the crucial point is that the charge nurses "are afforded discre- tionary authority to praise or criticize an employee's performance." To the contrary, Petitioner argues that the evaluations are "meaningless," suggesting they are merely a carryover from previous practice when the evaluations were used, at least partially, to de- termine wage increases. The record, however, con- tains no information indicating the purposes of the evaluations, other than that they are not used to de- termine wage increases, and we are unwilling to spec- ulate as to their significance. It is sufficient for our purposes to note that the evaluation of employees, and particularly nonunit employees, is not disposi- tive of supervisory status. Texas Institute for Rehabili- tation and Research, 228 NLRB 578 (1977). That is particularly true where, as here, the employer has no merit increase program and therefore a good evalua- tion cannot lead to a merit wage increase. St. Rose de Lima Hospital, Inc., 223 NLRB 1511 (1976); St. Mary's Hospital, Inc., supra. Charge Nurse Nelson testified that approximately 80 percent of her time on a typical day is devoted to direct patient care. She has no authority to adjust grievances, which must be resolved by the Employ- er's administrator or, if "trivial," by the director of nursing services. If an employee desires a leave of absence, regardless of duration, the employee must seek approval from the director of nursing services. Although it is conceded that charge nurses do not have the authority to hire employees and do not par- ticipate in the interviews of applicants, the Employer argues that charge nurses can effectively recommend that a particular applicant be hired. In support of its contention, the Employer cited only one instance where a charge nurse recommended that an individ- ual be hired. In that case Charge Nurse Nelson sent her sister to see the assistant director of nursing ser- vices, Marilyn Garrity, because Nelson knew there were openings. Nelson's uncontradicted description of the incident was as follows: Q. I believe there was some testimony about your sister becoming employed at the facility; is that correct? A. Yes. Q. Would you tell us how that came about? A. Well, my sister came to the facility one day to drop some things off to me and told me that she was short on hours at another job that she was working at that time, and I knew that we were short in the facility. So. I took her up to Mrs. Garrity and introduced her and told her 288 EVENTIDE SOUTH, A DIVISION OF GERIATRICS, INC. that Sue was possibly looking for maybe some more employment, some more hours within the facility. Q. What happened after you introduced her to Mrs. Garrity? A. I left her in the office and went back to work. Without any further evidence, however, we cannot conclude that one isolated referral of a relative estab- lishes that the charge nurses have the authority to effectively recommend action with respect to hiring, and, in the absence of other evidence, we expressly find to the contrary.8 The Employer places great reliance on the fact that on weekends the charge nurses are in charge of the entire facility. Petitioner, however, argues that all of the authority exercised by the charge nurses on week- ends is based on their medical experience and medi- cal judgment. The director of nursing services testi- fied that on those occasions when the charge nurses were in charge of the facility one of the four stipulat- ed supervisors was always on call for emergencies. Patty Wynkoop, the Employer's inservice director, testified that "on the average" she receives "about" two calls per weekend. The record also reveals that there is posted in the facility a list of persons who should be contacted in case of nonmedical emergen- cies when the administrator is not there. In de- scending order, the instructions list the assistant ad- ministrator, the director of nursing services, the assistant director of nursing services, and the recep- tionist. Charge nurses are not included on the list. Finally, the record reveals that the charge nurses are paid hourly, as are licensed practical nurses, and that both classifications receive identical benefits. Based on the foregoing evidence, we conclude that charge nurses perform their duties and functions pre- dominantly in the exercise of professional judgment incidental to their treatment of patients. Their duties and authority are all directed toward quality treat- ment of patients and do not, without more, constitute supervisory authority in the Employer's interest. Fur- ther, we find that charge nurses possess neither the authority to hire or discharge. or discipline be)ond the stage of a minor reprimand. nor the authority to make effective recommendations affecting the em- ployment status of employees. The Board has care- fully avoided applying the definition of "supervisor" to a health care professional who gives direction to other employees which is incidental to the Cf. Sutter (Communitt lsrirotalr a t ,a ,-raomtle,. lnc. 227 NI RB Il ( 1976L. professional's treatment of patients. Wing Memorial Hospital Association, 217 NLRB 1015 (1975). As we stated in Meharrv Medical College, 219 NLRB 488, 490 (1975): [lit appears that charge nurses do not exercise an, real supervisory authority on behalf of man- agement over employees. Rather, their duties are for the most part routine, involving the general direction of employees in the performance of their normal patient care duties and, as such, the charge nurses function more in the nature of lead persons. Even assuming that charge nurses may exercise some supervisory authority, the fact they may do so only for a short period of time and on a sporadic basis would not require their exclusion from the unit. In our opinion the record does not support a find- ing that charge nurses are statutory supervisors. We are satisfied that their duties are generally limited to giving directions in the performance of their profes- sional duties and, as such, are not responsibilities considered supervisory within the meaning of Sec- tion 2( I1) of the Act. Accordingly, we conclude that the charge nurses are. with the exception of those stipulated to be supervisors, statutory employees and we shall therefore direct an election in the following unit which we find to be appropriate: 9 All full-time and regular part-time registered professional nurses employed by the Employer at its Fort Collins. Colorado, facility, excluding all other employees, supervisors, confidential employees, business office clerical employees, and guards as defined in the Act. On June 15. 1978. the Regional Director for Re- gion 27 issued a Decision and Order in which he found all members of the petitioned-for unit to be supervisors within the meaning of Section 2(11) of the Act. and, accordingly. dismissed Petitioner's peti- tion. The Board, having reviewed the Regional Direc- tor's Decision and Order, has found that all members of the petitioned-for unit are statutory employees. and that said unit is an appropriate one for collective bargaining. ORDER It is herebN ordered that Petitioner's petition filed on Mas 3. 1978. be. and it hereby is, reinstated. [Direction of Election and E.x-celsior footnote omit- ted from publication.l Wei,; it lprJ1 tl ,t Sal-milU1 t,,. Ir, 217 NilRB 765 (1975). 289