National Medical Enterprises, Inc.

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Doctors' Hospital of Modesto, Inc., a wholly owned subsidiary of National Medical Enterprises, Inc.' and California Nurses' Association, affiliated with American Nurses' Association, Petitioner. Case 20-RC-8148 June 23, 1970 SUPPLEMENTAL DECISION AND DIRECTION BY MEMBERS FANNING, MCCULLOCH, AND JENKINS Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 20, as modified by a Decision on Review issued by the Board on April 14, 1969 (175 NLRB 354), an elec- tion by secret ballot was conducted on May 12, 1969, under the Regional Director's direction and supervision, among the employees in the unit found appropriate. Of approximately 64 eligible voters, 60 cast ballots, of which 13 were for, and 18 against, the Petitioner, and 29 ballots were challenged.' The challenged ballots were sufficient in number to af- fect the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and, on June 9, 1969, issued and duly served on the parties an order and notice of hearing, in which he ordered a hearing to resolve the issues raised by the challenges. Pursuant thereto, a hearing was held on June 17 and 18, 1969, before Hearing Officer David F. Sargent. All parties participated and were given full opportunity to examine and cross-ex- amine witnesses and to introduce evidence bearing on the issues. On August 22, 1969, the Hearing Officer issued and duly served on the parties his Report and Recommendation on Challenged Ballots, a copy of which is attached hereto, in which he recom- mended that the challenges to the ballots of em- ployees Mildrum and Brohm be sustained and that the remaining 27 challenges be overruled. ' The name of the Employer appears as amended by the parties' stipula- tionofJuly 17, 1969 ' At the conclusion of the election, the parties were furnished with a tally of ballots which accurately reflected the votes cast for and against the Pett- tioner, but incorrectly showed the number of ballots cast and challenged as being 59 and 28, respectively See also fn 4, infra ' A discussion of our reasons for affirming the Hearing Officer's overrul- ing of the Employer's objections to the admission of evidence pertaining to the duties and responsibilities of the charge nurses on the hospital's A, B. C, and D wings appears, infra, in our separate determination of the status of these charge nurses a In the absence of exceptions thereto, we adopt pro forma the Hearing Officer's recommendation that the ballot of Eudora Kruppa be included in the count of ballots cast and considered on its merits as a challenged ballot, and his further recommendation that the challenges to the ballots of Mary Bdltngton, Virginia Josselyn, Jean Sorensen, and Edna Van Laar be over- Thereafter, both parties filed exceptions to the Hearing Officer's report, together with supporting briefs, the American Nurses' Association filed an amicus brief, and the Employer filed a reply to the amicus brief. 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 powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed.' The Board has considered the Hearing Officer's report, the exceptions and briefs of the parties, the amicus brief, and the Employer's reply thereto, and the entire record in this case, and hereby adopts the Hearing Officer's findings and recommendations as modified herein.4 We agree with the Hearing Officer that Faye Mil- drum (the obstetrics unit supervisor) and Cora Brohm (the recovery room head nurse) are super- visors within the meaning of the Act and that the challenges to their ballots should be sustained. We also agree with the Hearing Officer's recommenda- tions to overrule the challenges to the ballots cast by the employees who regularly work-in the ob- stetrics units and on the A, B, C, and D wings of the hospitals-as charge nurses, relief charge nurses, floor nurses, or staff nurses. His findings that they are not supervisors within the meaning of the Act are amply supported by the record.' A, B, C, and D wings-charge nurses: At the hearing, and in its exceptions, the Employer ob- jected to the introduction of any evidence pertain- ing to the status of the charge nurses on the wings. The Employer took the position that the Board's Decision on Review had, by implication, deter- mined that these nurses were supervisors and that, therefore, testimony concerning their duties and responsibilities would constitute relitigation of an issue already decided. ruled ' Barbara Clawson , Elizabeth Priester , Sherrilyn Dorworth , Evadean Rydalch , Wanda Winkley , and Beulah Anderson With respect to Barbara Clawson, while we are aware that she spends a portion of her working time relieving the obstetrics supervisor, we find, as did the Hearing Officer, on evidence adduced at the hearing that she does not, in fact , possess super- visory authority when performing such relief duty or at any other time Eudora Kruppa , Rose Singleton , Linda Knutson , Ada Reece , Josephine Montgomery, Jewell Holland, Lupe Perez, Irene Pascal , and Alice House The Hearing Officer recommended that the challenge to the ballot of Beulah Anderson be overruled, but inadvertently omitted her name from the list of employees he determined were not supervisors On the basis of the Hearing Officer's factual findings as to Anderson's duties and responsi- bilities, all well buttressed by the record, we find that she is not a supervisor within the meaning of the Act and was eligible to vote in the election 183 NLRB No. 94 DOCTORS' HOSPITAL OF MODESTO, INC. 951 The Decision on Review found, with respect to the A, B, C, and D wings, that the "floor head nur- ses" Were supervisors within the meaning of the Act. However, in setting forth details as to the operations of the wings, the decision erroneously stated that nurses having the title of "floor head nurse" were on duty in each wing on each shift. We hereby correct this error since, in fact, floor head nurses are on duty only during the day shift. On the p.m. and night shifts, the senior nurse on duty in each wing is generally referred to as a charge nurse.8 The Employer's contention is that the er- roneous reference to the shifts worked by the floor head nurses indicates that the Board "meant" to in- clude the charge nurses, along with the floor head nurses, in the category of persons excluded from the unit as supervisors.' This contention is without merit. No determination as to the status of charge nur- ses was made or intended in the Decision on Review for the reason that the record, at that point, contained no evidence as to their particular duties and responsibilities. As confirmed by the testimony of the night-shift supervisor, an employer witness at the postelection hearing, the charge nurses do not have the degree of responsibility possessed by the floor head nurses and the latter retain a significant amount of overall control with respect to the pa- tient care operations of their respective wings on the p.m. and night shifts when the charge nurses are on duty. Furthermore, the charge nurses do not have the floor head nurses' authority, inter alia, to make periodic formal employee evaluations or to effectively recommend employee transfers and merit pay increases. Also, they receive their wages and fringe benefits only at the regular "staff nurse" rate-as do the other nurses included in the unit- rather than at the higher "head nurse" scale given to the floor head nurses. A, B, C, and D wings-relief head nurses: Norma Leri, Arlene Lichty, Bonnie Jones, and Avis Berg- stedt are full-time registered nurses assigned to the A, B, C, and D wings during the day shift. They usually work 3 days per week as medication or staff nurses10 and serve the remaining 2 days as relief replacements for their respective floor head nurses, on the latter's days off. They also replace the head nurses during their vacation and sick leave periods. As previously set forth, the floor head nurses were found to be supervisors in the Decision on Review and were, therefore, excluded from the unit in which the election was held. At the hearing, the Employer asserted that as Leri, Lichty, Jones, and Bergstedt regularly relieve the floor head nurses, they should likewise be excluded from the unit. The Hearing Officer, relying on Westinghouse Electric Corporation, 163 NLRB 723, recommended that the Board qualify as eligible to vote those relief head nurses who spend 50 percent or more of their time performing work as medication nurses. On this basis, he further recommended that the challenges to all four of these ballots be overruled. In its ex- ceptions, the Employer contends that the Hearing Officer's reliance on Westinghouse is misplaced. We agree. The unit placement and eligibility criteria enun- ciated in Westinghouse do not apply to circum- stances like the instant case, wherein the disputed individuals are performing both their allegedly su- pervisory and nonsupervisory jobs during the same workweek, in the same department with essentially the same complement of employees.tt If the relief head nurses possess supervisory authority 2 days per week, they will be excluded from the unit, re- gardless of the fact that they spend a major portion of their time working at nonsupervisory jobs. How- ever, the fact that they regularly substitute for the floor head nurses does not, of itself, establish their possession of such supervisory authority. As more fully set forth in the Regional Director's Decision and Direction of Election and the Deci- sion on Review, the Employer's registered nurses are a highly trained group of professionals who nor- mally inform other, lesser skilled, employees as to the work to be performed for patients and insure that such work is done. But, their daily on-the-job duties and authority in this regard are solely a product of their highly developed professional skills and do not, without more, constitute an exercise of supervisory authority in the interest of their Em- ployer. In the Decision on Review, we found the floor head nurses, inter alia, to be supervisors because, in addition to performing their professional duties and responsibilities, they also possessed the authority to make effective recommendations which affected the job status and.pay of the em- ' The testimony at the hearing indicates that some of these nurses, par- ticularly those on the night shift, refer to themselves as "floor nurses - Hereinafter, the term "charge nurse" will be used in reference to both ti- tles 9 We note that in both its request for review and brief on review the Em- ployer repeatedly stated that there was "a Head Nurse (or 'Floor Super- visor')" on duty on each wing during each shift, with no reference being made to the charge nurses or to their authority over employees "' Medication and staff nurses are categories found to be nonsupervisory in the Regional Director's Decision and Direction of Election and in the Decision on Review " In contrast, Westinghouse concerned a unit of steam service fielo en- gineers assigned to specific work projects at the sites of their employer's customers for measurable and continuous periods of time Certain of the engineers had supervisory authority, but only at some of the projects at which they worked While employed at the nonsupervisory projects, they did not work with any of the employees over whom they exercised super- visory authority On this basis, it was held that engineers who spend 50 per- cent or more of their time performing nonsupervisory duties would be eligi- ble to vote 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees working on their wings. Specifically, the su- pervisory status of the floor head nurses rests on their authority to effectively recommend pay in- creases, job transfers, and departmental assign- ments for both regular and newly hired employees. The evidence in the record shows, and we find, that nurses Leri, Lichty, Jones, and Bergstedt, when working as relief replacements for the floor head nurses, do not possess any of the above-noted authority to make recommendations affecting the employment status or pay of employees.12 Nor do they have the authority to hire, discharge, promote, or discipline employees or to resolve employee grievances. At no time are their duties and respon- sibilities significantly greater than those of em- ployees who function as charge nurses-a category found to be nonsupervisory both herein and in other cases.13 Accordingly, we find that Leri, Lichty, Jones, and Bergstedt are not supervisors within the meaning of the Act and shall overrule the challenges to their ballots. Intensive care/cardiac care units' nurses (IC/C- CU): The Decision on Review affirmed the Re- gional Director's finding that the IC/CCU nurses were not supervisors within the meaning of the Act and they were, therefore, included in the bargaining unit . Nevertheless, at the election the Employer challenged the ballots cast by four IC/CCU nursests on the ground that there had been such a material change in circumstances since the date of the hear- ing on the petition that these employees had become supervisors by the date on which the elec- tion was held. The IC/CCU is usually staffed by two registered nurses on each shift, with the head nurse on duty during the day shift. No auxiliary personnel16 are regularly assigned to the unit, but they are brought in when the patient load requires their assistance. Subsequent to the hearing on the petition, the unit expanded its capacity from 7 to 11 beds and its "' A floor head nurse, when completing an employee evaluation form, will sometimes consult with her relief nurse But this does not constitute an effective recommendation All decisions affecting personnel are made by either the hospital's administrator or the director of nurses The adminis- trator bases his judgments on the recommendations of the director of nur- ses, while the latter relies on recommendations made to her by shift super- visors and floor head nurses Lower level consultations between head nur- ses and relief head nurses are clearly not in the category of effective recom- mendations Avis Bergstedt, unlike the other relief head nurses, has on four occasions filled out employee evaluation forms herself This is apparently due to the fact that the particular floor head nurse she relieves takes more time off than the others and is, therefore, sometimes absent when a particular evaluation form is due to be filed with the nursing office As distinct from the evaluation written by the floor head nurses, there is no indication in the record that the director of nurses relies on Bergstedt 's evaluations in the granting of pay increases or in the taking of other personnel action Under all the circumstances, including the minimal and perfunctory nature of the evaluations she has made and the availability of her floor head nurse and shift supervisor for later comment on the same employees , we find that Bergstedt 's four completed evaluation forms are not indicative of authority average patient population from 5 to 8. Prior to the expansion, auxiliary personnel were in the unit only a minority of the time. However, as a result of the patient population increase, auxiliary personnel (usually one licensed vocational nurse) are now on duty a majority, although not all, of the time. But, like before, none of them are regularly assigned to IC/CCU and all of them perform work in other, de- partments of the hospital as well. Also, prior to the expansion, most of the nurses on the staff rotated among the three shifts, while now each shift has a more or less regular complement of two registered nurses, one of whom is regarded as a charge nurse and has overall responsibility for the shift. As in the case of the hospital's other departments, the charge nurses here receive the same wages and fringe benefits as the other staff nurses with whom they work. The Hearing Officer concluded that the facts per- taining to the unit's operational expansion do not demonstrate that the status of the IC/CCU nurses has 'materially changed since the hearing on the petition and, therefore, he recommended that the challenges to their ballots be overruled. With respect to nurses Neill, Perier, and Baker, we fully agree with the Hearing Officer. Thus, subsequent to the unit's expansion of capacity, they have con- tinued to perform their duties as highly skilled professionals who use independent judgment and discretion in overseeing the care of patients en- trusted to them, but do not exercise supervisory authority in behalf of the Employer. 17 However, with respect to Head Nurse Norma Martin, the record shows that she now has the authority to make personnel recommendations to the director of nurses. Her written negative evalua- tion of a staff nurse resulted in the latter's transfer out of the unit and auxiliary personnel recom- mended by her were given special intensive care/cardiac care training courses18 which, in ef- to make effective recommendations affecting the status or benefits of em- ployees " See, for example, Diversified Health Services, Inc , d/b/a Convalescent Center of Honolulu, 180 NLRB 461, and Neii Fern Restorutni Co, 175 NLRB 871 i Hereinafter referred to as the IC/CCU " Norma Martin (head nurse ), Carole Neill , Verna Perier, and Janet Baker " Licensed vocational nurses , nurses aides , and orderlies 'r Although staff nurse Janet Baker regularly relieves head nurse Norma Martin, our determination , infra, that the latter is a supervisor does not af- fect our agreement with the Hearing Officer's conclusions and recommen- dations as to Baker When acting as relief head nurse, Baker does not pos- sess Martin's authority to make effective recommendations affecting the status of employees and she does not, in fact , possess any greater degree of responsibility and authority than the charge nurses on duty during the p in and night shifts '" Five licensed vocational nurses took and completed courses which consisted of approximately 40 hours of classes over a 2-1/2-month period The employees either attended the classes during their working hours or received extra pay if on their own time DOCTORS' HOSPITAL OF MODESTO, INC. fect, determined that they, rather than others, would be assigned to work in the unit in the future. Although the issue is not entirely free from doubt, we find, after full evaluation of all the testimony, that Martin's evaluations and judgments as to em- ployees have been relied on by the director of nur- ses and constitute effective recommendations for the assignments and transfer of unit employees. Further, we note that, unlike the other IC/CCU nurses, Martin is given wages and fringe benefits at the higher "head nurse" rate-which rate is also given to the other nurses excluded as supervisors from the unit herein.19 On the basis of all the foregoing, we find Norma Martin to be a supervisor within the meaning of the Act and shall, therefore, sustain the challenge to her ballot. Accordingly, as we have overruled the challenges to 26 of the above-designated challenged ballots, and as these ballots may affect the results of the election, we shall direct the Regional Director to open and count them and prepare and cause to be served on the parties a revised tally of ballots and an appropriate certification. DIRECTION It is hereby directed that, as part of his investiga- tion to ascertain the representative for purposes of collective bargaining with the Employer, the Re- gional Director for Region 20 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Direction, open and count the bal- lots cast by Barbara Clawson, Elizabeth Priester, Sherrilyn Dorworth, Evadean Rydalch, Wanda Winkley, Beulah Anderson, Eudora Kruppa, Rose Singleton, Linda Knutson, Ada Reece, Josephine Montgomery, Jewell Holland, Lupe Perez, Irene Pascal, Alice House, Norma Leri, Arlene Lichty, Bonnie Jones, Avis Bergstedt , Carole Neill, Verna Perier, Janet Baker, Mary Billington, Virginia Jos- selyn, Jean Sorensen, and Edna Van Laar, and thereafter prepare and cause to be served on the parties a revised tally of ballots including therein the count of the above-mentioned ballots and the appropriate certification. 'B The director of nurses and the shift supervisors , whose exclusion from the unit was not contested , are paid at an even higher rate HEARING OFFICER'S REPORT AND RECOMMENDATION ON CHALLENGED BALLOTS Pursuant to a Board Decision on Review of the Decision and Direction of Election issued on June 953 20, 1968, by the Regional Director for Region 20 of the National Labor Relations Board,' an election by secret ballot was conducted on May 12,2 under the direction and supervision of the aforesaid Re- gional Director. At the conclusion of the election, a tally of bal- lots was furnished the parties which shows that of approximately 64 eligible voters, 59 cast ballots, of which 13 were for the Petitioner, and 18 were against. There were 28 challenged ballots which are sufficient in number to affect the results of the elec- tion On June 9, the Regional Director issued and duly served upon the parties an order and notice of hearing in which he found that the challenges raised substantial and material issues which could best be resolved through a hearing. Accordingly, the Regional Director ordered that a hearing be held to resolve the eligibility of the challenged voters and directed the Hearing Officer to prepare and cause to be served a report containing resolu- tions of the credibility of witnesses, findings of fact, and recommendations to the Board. Pursuant to the notice and in accordance with the aforesaid order of the Regional Director, a hearing was held in Modesto, California, on June 17 and 18, before me, the duly appointed Hearing Officer. Both parties were represented by counsel and afforded a full and complete opportunity to be heard, to examine and cross-examine witnesses, and to present evidence pertinent to the issues. The Employer challenged the ballots of the fol- lowing employees: 1. Janet Baker 3. Carole Neill 2. Norma Martin 4. Verna Perier The basis for the Employer's challenges is that circumstances have changed materially since the date of the original hearing held in this matter on May 24, 1968, and that, at the time of the election, the aforesaid employees were supervisors within the meaning of the Act. The Board agent conducting the election chal- lenged the ballots of the following employees: 1. Cora Brohm 13. Norma Leri 2. Sherrilyn Dorworth 14. Arlene Lichty 3. Evadean Rydalch 15. Rose Singleton 4. Elizabeth Priester 16. Linda Knutson 5. Irene Pascal 17. Ada Reece 6. Jean Sorensen 18. Bonnie Jones 7. Wanda Winkley 19. Josephine Montgomery 8. Beulah Anderson 20. Jewell Holland 9. Faye Mildrum 21. Mary Billington 10. Barabara Clawson 22. Lupe Perez 11. Alice House 23. Avis Bergstedt 12. Virginia Josselyn 24. Edna Van Laar The basis for the Board challenges was that the em- ployees' names did not appear on the eligibility list. Herein the Board All dates herein are for the year 1969 unless otherwise noted 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board agent also challenged the ballot of Eu- dora Kruppa on the basis that her name had been removed from the list of eligible voters by mutual agreement of the Employer and the Petitioner, at the preelection conference. The ballot of Kruppa was not included in the tally of ballots served upon the parties at the conclusion of the election. Sub- sequent to the election but prior to the counting of the ballots, the parties allegedly agreed that the bal- lot of Kruppa would not be counted. Petitioner contends that this agreement was reached based on the information that Kruppa was a full-time head nurse and that subsequent facts have indicated that this is not the case. The Employer contends that an agreement was reached to exclude the ballot of Kruppa. Under the circumstances, and absent a written stipulation from the parties, I recommend that the ballot of Kruppa be included and con- sidered along with the other challenged ballots in this matter. Upon the entire record in the case, including ob- servations of the witnesses and consideration of the briefs submitted by each of the parties, the Hearing Officer makes the following: FINDINGS OF FACT The Employer operates a proprietary hospital in Modesto, California, which at the time of the hear- ing in this matter contained 147 beds and had an average daily patient population of 130. In considering the question raised by the chal- lenged ballots in this matter, the Hearing Officer is limited to consideration of the issue of whether, as contended by the Employer, the employees whose ballots were challenged were ineligible to vote on the grounds that at all material times they possessed and exercised supervisory authority, or whether, as urged by the Petitioner, they were eligible to vote because they did not possess this authority. In reaching a decision on this. issue, the Hearing Officer has carefully considered the matter of credibility of the witnesses. An examination of the record reveals few, if any, divergences in testimony or directly contradictory facts such as would make necessary a detailed comparative evaluation of the credibility and veracity of the opposing witnesses. All witnesses testified in the forthright, credible, and professional manner befitting their status as re- gistered nurses. In consequence of this and the foregoing, the Hearing Officer finds that credibility resolutions are not required to make a decision in this matter. The individuals whose ballots were challenged fall into three categories as outlined by the Board in its Decision on Review. 1. INCLUDED BY THE BOARD IN THE UNIT-THE INTENSIVE CARE/CARDIAC CARE UNIT3 Within this unit, the ballots of Janet Baker, Verna Perier, Norma Martin, and Carole Neill were challenged by the Employer as alleged supervisors, on the grounds that circumstances within this unit have changed materially since the time of the original hearing on the matter, and that at the time of the election the aforesaid individuals were super- visors within the meaning of the Act. The Petitioner takes a contrary position. In the Board's Decision on Review, the head nurse in IC/CCU was found not to be a supervisor and was specifically included in the unit of eligible employees. The Hearing Officer is, therefore, limited to the consideration of whether the duties, responsibilities, and authority of the individuals oc- cupying the position of head nurse have changed to an extent warranting a change in the original Board determination of their status. Norma Martin is the day-shift head nurse in IC/CCU. She is relieved on her days off by Janet Baker. Verna Perier is the night charge nurse in IC/CCU. Carole Neill relieves the regular p.m. charge nurse, Riley, on Riley's days off. The Employer introduced evidence showing that the average daily patient load in IC/CCU has in- creased since June 1968, when the number of beds was increased in that area, and that additional per- sonnel , principally licensed vocational nurses, have been added, who perform some patient care tasks, formerly done by the RNs. The Employer introduced testimony purporting to show the exercise of supervisory authority by Martin. Thus, Director-of Nursing Services Knippel stated that Martin runs the unit and that she tries to keep aides out of the unit who Martin prefers not to have working with her. Knippel testified concerning employee Betty Baker, who Martin felt was too curt with patients, and not suited to work in the IC/CCU area. After a talk by Knippel, Baker failed to cor- rect the problem. Later, Martin and another em- ployee, Janet Baker, again discussed the matter with Knippel, who asked Martin to evaluate the situation on paper. As a result of this evaluation, Betty Baker was transferred out of IC/CCU. Knip- pel stated that both with respect to keeping em- ployees out of IC/CCU that Martin prefers not to have there, as well as the Baker incident, these facts represented no increase or change in Martin's duties or responsibilities since the first hearing, and Martin herself in her testimony confirmed this. Verna Perier is the charge nurse on the night shift in IC/CCU. She testified that when she is on duty with another RN, she is in charge and has the final authority. As an example, she mentioned that she makes the decision whether or not to call "code blue."' She further testified that when she receives the status report from the previous shift supervisor, the nonprofessionals listen to this report and upon conclusion of the report she makes the assignment of personnel to particular patients. Perier testified that it is part of her responsibility to determine the number of people needed in the unit, and to obtain a Herein referred to as IC/CCU 4 A call for a doctor and anesthetist when a patient ceases respiration DOCTORS' HOSPITAL OF MODESTO, INC. 955 additional help if necessary. When asked what ac- tion she would take with respect to an employee who could not or was not performing up to the proper standards, she testified she would report it to her immediate supervisor and request someone else. the testified that she had been told by the night su pervisor, Achelpohl, to advise her if such a situa- tion came about. Perier has not filled out personnel evaluation forms. Director of Nursing Services Knippel testified that there had been no change or increase in Perier's duties since the previous hear- ing. Neither Janet Baker nor Carole Neill was called by the Employer or the Petitioner to testify as to their duties while in IC/CCU. Upon a careful examination of the testimony of Martin and Perier, testimony given by other em- ployees concerning their duties, as well as those of Baker and Neill, and upon consideration of the testimony given in the original hearing, it is the conclusion of the Hearing Officer that the Em- ployer has failed to demonstrate that the status of these individuals has materially changed since that time. Thus, since the category of head nurse in IC/C- CU was found eligible to vote by the Board, I there- fore recommend that the challenge to the ballots of Martin, Perier, Baker, and Neill be overruled and that their ballots be opened and counted II. INDIVIDUALS ALLOWED TO VOTE SUBJECT TO CHALLENGE: OBSTETRICS5 SUPERVISORS, OBSTETRICS CHARGE NURSES, AND RECOVERY ROOM HEAD NURSE Faye Milldrum, the OB supervisor, testified that she is responsible for seeing that the various depart- ments within the OB area are staffed and oversees these areas in the instances where they are being staffed by personnel not familiar with them. She does the scheduling for day and p.m. shifts in OB, but not for the night shift. She gives the initial as- signments to personnel coming into OB from other areas and makes the decision whether or not these extra persons are needed. She is relieved by Bar- bara Clawson. Applicants for employment are brought to her by Director of Nursing Services Knippel and she interviews them, inquiring about what they know in the area of OB and what hours they would like to work. On conclusion of the inter- view she sends the applicant back to the personnel office with a recommendation to Knippel whether or not the person should be hired. On Milldrum's recommendation, employee Loveland, who was being considered for termination, was given a 3- month probation instead, and subsequently rein- stated. Milldrum is responsible for ordering of medication supplies for OB with the assistance of Mrs. Clawson who orders when she is not present. Milldrum effectively recommended Clawson, Pri- ester, and Von Latta for hire. She has also effec- tively recommended against the hiring of an in- dividual for her department. Milldrum completes personnel evaluation forms and when doing so recommends whether or not em- ployees are ready for promotion. Milldrum testified she has been given the authority to advise em- ployees of violations of hospital rules or procedures and that when she took the department over it was understood that she would be supervisor and have supervisory capacity. She testified that if an em- ployee asks permission to leave the shift early and if there is coverage for that employee on the floor, she may release the employee. Milldrum testified that she attends meetings held by the hospital ad- ministration where personnel matters are discussed. She deals with salesmen from various companies in- terested in selling particular products to the hospital and recommends whether or not the hospital try this particular product. Milldrum is paid in the same category as the floor head nurses on the day shift, excluded by the Board. Upon a careful consideration of the record evidence as well as the briefs filed by both the Em- ployer and the Petitioner, I conclude that Milldrum possesses and exercises those indicia requisite to a finding of supervisory authority. She makes effec- tive recommendations for the hiring of personnel, completes employee personnel evaluations which determine whether the individual in question is granted a raise, and is paid in the category of in- dividuals excluded by the Board. On the basis of the foregoing, I recommend that the challenge to her ballot be sustained. Barbara Clawson relieves the obstetrics super- visor, Milldrum, 2 days per week. During the remainder of the week Clawson works in the post- partum area of obstetrics. Clawson also relieves Milldrum for sick, vacation, and holiday leave. During the 2 days Clawson relieves Milldrum, a nurses aide works under her in both the postpartum and labor and delivery area following a set routine. If the aide is needed elsewhere, she is told by Clawson where to go. Clawson has not interviewed employees, instructed new employees on correct hospital procedures, filled out personnel evaluation sheets, recommended the termination, promotion, transfer, or probation of an employee, nor attended personnel meetings with hospital administrators. With respect to her authority to discipline em- ployees, she testified that on one occasion where vital signs of a patient had not been taken as they should have been, she did not report this to the floor shift supervisor but merely advised the aide of the correct procedure. Clawson receives 13 work- ing days' vacation per year, in the category of staff nurse. She testified that she had been consulted by Mrs. Milldrum for her opinion about performance of employees in her department, but that it was merely for questioning about how an employee was performing that Milldrum was training and appears ' Herein abbreviated as OB 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to have been a routine matter not in connection with the evaluation of the employee for a pay raise or promotion . An examination of the work schedule submitted for Barbara Clawson covering the period of time , August 25 , 1968, through June 14, 1969 , reveals that during that time she worked 186 days , of which 90 were spent as the head RN, 96 were spent as second RN, or medication nurse. Careful examination of the testimony of Clawson fails to reveal that she possesses the indicia necessa- ry for a finding of supervisory status . It is apparent from her testimony that although she makes the decision as to whether an aide will work in the labor and delivery or postpartum areas of ob- stetrics, the aide follows a set routine in carrying out her duties . The Employer contends that Clawson possesses authority and responsibility equivalent to that of Milldrum on the 2 days when she relieves Milldrum, but this position is not sup- ported by the record . I find that Clawson, in the performance of her duties , in the assignments of work to the extra employees , and in direction of their work , is exercising the high degree of techni- cal competence and independent judgment as- sociated with- -and typical of work regarded as "professional" and her responsibilities entrusted to independent judgment do not include matters of policy of the Employer or duties, managerial in na- ture, such as would show her to be in a supervisory status.6 Elizabeth Priester, in the obstetrical department on the 3 to 11 p.m . shift, divides her time between labor and delivery and the postpartum areas. She testified that she normally works in the postpartum area but relieves in the labor and delivery when necessary , such as for vacation . She does not have the authority to recommend employees for hire or discharge , transfer , or probation . When she is in the postpartum area she is normally alone and thus does not direct employees. She has not filled out company personnel evaluation forms nor discussed the performance of an employee in the obstetrics department with the floor supervisors . On those oc- casions when extra help is necessary , she is respon- sible to see that the work is done properly. Sherrilyn Dorworth also works in the OB depart- ment, in the labor and delivery area, 3 days a week and in postpartum 2 days per week . She testified that she has no greater responsibilities than those of Priester. She does not have the authority to recom- mend the hire, discharge , layoff, suspension, or probation of an employee, has not filled out person- nel evaluation forms, has not discussed with her su- periors the performance of any employee, and is only assigned nonprofessional employees such as aides or orderlies in postpartum or labor and delivery, when the section becomes busy. She testified that she has not had occasion to discipline aides or orderlies , or ask one to leave and is unaware whether she has the authority to do so. She has not attended meetings of the hospital ad- ministration where personnel policies and labor relations matters were discussed. Evadean Rydalch works in the OB department on the p .m. shift, 3 to 11 , 2 days per week , usually Friday and Saturday . She testified that her im- mediate supervisor is Milldrum. She generally works alone in labor and delivery . She does not have the authority to recommend the hiring , dismis- sal, probation , or transfer of an employee , and has no authority with respect to employee personnel status, job tenure, or promotion . The work of other employees has not been discussed with her. She has not filled out company personnel forms , nor at- tended meetings of hospital administrators where labor relations policies or personnel policies were discussed. Beulah Anderson is employed on the night shift 11 p.m. to 7 a.m., working 2 nights per week in IC/CCU and 3 nights per week in the labor and delivery. While in labor and delivery , her im- mediate supervisor is Mrs. Achelpohl, the night su- pervisor . Anderson testified that when she works in labor and delivery she has no employees under her supervision . She does not have the authority to recommend the hire , termination , probation, promotion , suspension , or transfer of an employee. She has not filled out personnel evaluation forms and does not have the authority to discipline non- professional personnel in OB, has never requested anyone to leave the shift , punch out early, or been asked permission to leave early , and has not at- tended meetings with the hospital administrators where labor relations matters and personnel poli- cies were discussed . While in IC/CCU she relieves other employees who are off work, Mrs. Perier, for example . She does not have the authority while in IC/CCU to recommend the hire , discharge , suspen- sion, promotion , or probation of an employee. On those nights when she is working in IC/CCU with Verna Perier , she testified that the two of them share the responsibilities for problems within the unit. She testified also that as an example of profes- sional judgment that she has as much authority as Perier to call a "code blue." Wanda Winkley works in the OB department on the night shift , 1 1 p.m. to 7 a.m., 3 days per week. She did not testify, but was covered in a stipulation between the Employer and the Petitioner to the ef- fect that her duties and responsibilities while in labor and delivery are the same as those described by Dorworth , Rydalch , and Priester. Upon a careful examination of the record testimony , as well as briefs filed by each of the parties, it is the conclusion of the Hearing Officer that Clawson , Priester, Dorworth, Rydalch, and Winkley, in the exercise of their duties within the OB department , function as professional employees 6 Westinghouse Electric Corporation , 163 NLRB 723 DOCTORS' HOSPITAL OF MODESTO, INC. and do not possess the indicia of a supervisor as defined in the Act. The authority which they do possess over nonprofessional employees is clearly a manifestation of their professional skill and train- ing' While it is true that they may give orders to nonprofessional employees working with them, "[n]early every employee at some time, under cer- tain conditions, tells someone else what to do... Every order-giver is not a supervisor. "8 Accordingly, I conclude that they were eligible to vote in the election and I recommend that the chal- lenge to their ballots be overruled and that their ballots be opened and counted. Cora Brohm is the head nurse in the recovery room. One LVN and one orderly regularly work under her and she assigns them their work. Brohm interviewed the orderly when he applied for work and, upon completion of the interview, discussed the matter with Knippel and recommended that the orderly be hired. She has completed personnel evaluation forms on both the LVN and the orderly in the recovery room and discussed the evaluations with Knippel. Brohm spends the bulk of her day checking patients and taking vital statistics, the same type of work done by the LVN and the or- derly, who follow a set and standard procedure in the performance of their duties. Brohm testified that although the LVN and orderly normally call in to the nursing office if they plan to arrive late, she herself has given permission for them to arrive late. She examines their timecards and approves over- time or deviation from regular working hours. She has the authority to grant overtime and to decide which of the two employees under her will work the overtime. Brohm attends head nurse meetings, at one of which certain demands made of the adminis- tration by a group known as the PPC were discussed. Brohm is paid in the category of head RN and in-service coordinator, which salary in the experienced category begins at approximately $42 per month greater than the beginning salaries for an experienced staff nurse. Vacations for the head nurses begin at 15 working days per year whereas those of staff nurses begin at 13 days per year. Brohm testified that she presently receives 18 working days' vacation per year. From the above, it is apparent and I so find that Brohm possesses and exercises authority and responsibility above and beyond that of the charge nurses. The record as a whole fails to substantiate the Petitioner's assertion that Brohm neither pos- sesses nor has exercised any supervisory authority whatever. It is apparent from the testimony that decisions she makes extend beyond the realm of mere professional judgment and directly affect the employees' personnel status. This is seen in the evaluations she performs on employees, her effec- tive recommendations for hiring of employees, her authority to approve deviations from regular work- ' Westinghouse Electric Corp, supra 8 Security Guard Service, Inc , 384 F 2d 143 (C A 5) 957 ing hours, and the fact that she is one of the three employees whose ballots were challenged, who is paid in the category of head RN and in-service coordinator. Under all the circumstances, I recommend that the challenge to her ballot be sustained. III. EXCLUDED BY THE BOARD: FLOOR HEAD NURSES A. Relief Day Head Nurses Norma Leri, Arlene Lichty, Bonnie Jones9 and Avis Bergstedt are known as relief day head nurses. All work 5 days a week, spending 3 days a week as medication nurses and 2 days as charge nurses. They also relieve the regular charge nurses on their days off and for vacation holiday and sick leave. The Employer takes the position that, since these four employees relieve the day floor head nurses a substantial period of time and since the day floor head nurses were found by the Board to be super- visors, they should likewise be excluded from the unit. The Petitioner contends that the record does not establish relief day head nurses possess the same su- pervisory authority and responsibility as the regular day head nurses, and that they should therefore be included in the unit. The parties stipulated in paragraph 1 of Board Exhibit 4 that, At the beginning of every shift when they re- lieve the regular day head nurse, the relief day head nurses Leri, Lichty, Bergstedt and Jones prepare a schedule establishing the distribution of patients and personnel assignment for their wings. During their shift they direct the em- ployees under them as to how and when par- ticular procedures should be performed. If dif- ferent auxiliary personnel are assigned to their wing than were assigned the previous day, they independently assign each auxiliary employee to particular patients. If new patients are received, they independently assign the patient to the particular personnel. If no new patients are received and the staffing is the same as that of the previous day, the relief day head nurses follow the assign- ments made by the regular day head nurse. The Director of Nurses consults with the regular head nurse concerning the work of new employees but does not normally consult with the relief head nurses about such employees. With the exception of Bergstedt, the relief head nurses do not fill out evaluation forms. Copies of the evaluation forms completed by Bergstedt will be submitted and received into evidence as company Exhibits 15. The regular day head nurses do, however, sometimes consult with the relief day head 9 No longer employed by the Employer 95 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nurse about such evaluation forms for auxiliary personnel. The relief day head nurses receive a pay differential for those days on which they act as relief day head nurses. The Employer cites The Horn and Hardart Com- pany case ,10 wherein it was found by the Board that relief assistant foremen who regularly performed the duties of assistant foremen at least 1 day per week were excludable from the unit. Unlike the situation in Horn & Hardart, the record in the in- stant case does not establish that the duties and responsibilities of the relief day head nurses are the same as those of the regular day head nurses. As noted in the quoted stipulation, the relief day head nurses are not normally consulted by the director of nursing about the work of new employees, nor, with the apparently limited exception of Bergstedt, do they complete personnel evaluation forms. The re- lief day head nurses spend 3 of their 5 days working as medication nurses, a category included by the Board in its initial decision. The payroll records submitted by the Employer reveal that of the four individuals in question, only Bergstedt has spent more time as a relief day head nurse than as medi- cation nurse . The relief day head nurses receive the same amount of vacation as a staff nurse, and are paid as staff nurses, except when working as relief day head nurses, when they are paid a $2 shift dif- ferential. On the basis of the foregoing, the Hearing Officer finds that the work performed by the relief day head nurses is not sufficient to remove them from the category of eligible voters. Rather, the Hearing Officer recommends, in accord with the formula enunciated by the Board in Westinghouse Electric Corporation, 163 NLRB 723, that the Board qualify as eligible to vote those relief day head nurses who, during the 12 months preceding the date of the Board's decision, spent 50 percent or more of their working time performing work as medication nur- ses. B. P.M. and Night Charge Nurses At the hearing and in its brief, the Employer took the position that the Board decision referring to the category of floor head nurse was intended to in- clude the floor charge nurses on the p.m. and night shift and that there should be no relitigation of these employees' duties since their status had al- ready been decided. Petitioner contends that, in fact, the employees known as charge nurses on the p.m. and night shift do not possess the equivalent responsibility and authority of the floor head nurses on days and that they should, therefore, be in- cluded in the bargaining unit. Instructive in as- sessing the authority of the p.m. and night charge nurses is the testimony of Eudora Kruppa, p.m. charge nurse on D wing. Kruppa testified that when she is on duty, she gives medication and performs similar duties to those of the medication nurse, such as filling out charts on patients, giving in- travenous injections, and changing dressings. Her testimony reveals a natural concern for the well being of patients and to some extent this concern makes necessary the assumption of duties and responsibilities dictated by her position. She has not filled out personnel evaluation forms and her testimony both on direct and on cross-examination fails to reveal evidence of the exercise of superviso- ry authority over the LVN's and other nonprofes- sional employees who work on her shift. She testified that only on one occasion that she could recall had she been asked her opinion of the per- formance of a new employee, and that she does not have the authority to remove an employee from her ward, but would have to call her supervisor to ef- fect this action. The Hearing Officer finds signifi- cant the answer of Kruppa to a question from coun- sel for the Employer concerning discipline, in which she stated, "We wouldn't have anything to do with the discipline; we would merely contact the supervisor about the problem, and she would take care of it." Upon the entire record, and considering the briefs of both parties, the Hearing Officer finds that in the exercise of her duties and responsibilities over they nonprofessional \\employees on her shift, Kruppa is acting in the capacity of a highly skilled, professional employee. The record does not demonstrate that she possesses those indicia of authority necessary to a finding of supervisory status. Accordingly, I recommend that the chal- lenge to her ballot be overruled, and that it be opened and counted. Rose Singleton began work full time 5 nights a week on May 1, 1969, and prior to that time worked 2 nights per week part time. During the period of time surrounding the eligibility date Singleton was working 3 nights per week on the pediatrics floor, on A wing. The Employer's work schedule revealed that as of May 1, Singleton began work on C wing. She has no responsibilities with re- gard to the scheduling of the auxiliary personnel who work with her on the shift, and who have their routines set and take the same rooms every night. They are present when Singleton receives her re- port from the p.m. charge nurse and are briefed as to the condition of all the patients on the floor. Singleton has not filled out the personnel evalua- tion forms. She has not requested or recommended discipline of the aides working on the floor with her. Singleton testified that the floor head nurses work on days and that they have other registered nurses under them, whereas the charge nurses have only nonprofessional personnel, i.e., aides and or- derlies, under them. On cross-examination she testified that she shares responsibility for patient care with the night supervisor, Mrs. Achelpohl. Of note in Singleton's testimony is the fact that she 10 147 NLRB 654 DOCTORS' HOSPITAL OF MODESTO, INC. 959 does not have the effective authority to remove an aide or an LVN from her shift but must take this up with her supervisor . Singleton has not interviewed employees looking for work, has not asked an aide to leave work early , and has not resolved grievances or complaints . She has not been asked to comment on the performance of the nonprofes- sional help and has nothing to do with the signing of timecards of the nonprofessional employees. Achelpohl testified that Holland is also on her shift, working 4 days per week , 2 days as charge nurse and 2 days in central supply. The Hearing Officer finds it significant that in response to a question from the Employer 's attor- ney as to whether or not Achelpohl asks the charge nurses their opinion of new employees ' work, she testified that she deployed them to different wings and that if they don 't seem to fit into one area she puts them into another area . She testified that it is not the charge nurses who move these employees around . Also significant in evaluating the relative differences in authority between the day floor head nurses and the p .m. and the night charge nurses is Achelpohl 's testimony that it was the day head nur- ses who set up the shifts and who are in charge of patient care for all three shifts. Achelpohl testified that when the hospital holds supervisors or head nurses meetings, it is the day floor head nurses who attend and not the p.m. and night charge nurses. Achelpohl further testified that Montgomery, Singleton , Holland , and Perez, who also work on the night shift , do not have the authority to recom- mend the hire of other employees, not to recom- mend the discharge , transfer, suspension , promo- tion , layoff, or probation of an employee. She testified that the nonprofessionals come directly to her as the shift supervisor when they are requesting to leave early , rather than going to the charge nurse , as she is the only one who can give them per- mission to leave. She testified that , if overtime for LVN's or orderlies is necessary , the charge nurses contact her and request permission to grant this overtime. The Employer and the Petitioner stipulated that the duties of Holland , Montgomery , Jones, Reece, Knutson , House , and Pascal , who work as p.m. and night charge and relief charge nurses, and who did not testify , are the same as those of other people occupying similar positions . In addition, it was stipulated between the parties that if Lupe Perez were called to testify that he would testify that his duties and responsibilities as part -time night charge nurse are the same as those described in their testimony by other employees occupying the posi- tion of charge nurse on the night shift. Conclusion Upon a careful study of the record, as well as the briefs submitted by both the Employer and the Peti- tioner, the Hearing Officer concludes that there is a difference between the scope of the responsibility of p.m. and night charge nurses and those of the day floor head nurses. The Employer contends that these employees occupy the identical position to their counterparts on the day shift and possess the equivalent responsibilities, but this contention is not supported by the record as a whole. Rather, the Hearing Officer finds that the evidence and testimony reveal that authority with respect to hir- ing, discharge, suspension, and salaries is prin- cipally reserved to the director of nursing services, and that these matters are not within the scope of the charge nurses. All nurses at one time or another give bedside care, instruct those with less training in proper nursing techniques, carry out the nursing orders and policies of doctors and of the hospital, and perform their duties in the same environment and locality. The fact that a charge nurse on a p.m. or night shift may instruct an LVN or other non- professional in the proper techniques of patient care or may reprimand this individual for failure to carry out a prescribed treatment or course of action does not necessarily invest her with supervisory authority. Of those employees whose ballots were chal- lenged, only Milldrum, Martin, and Brohm are paid in the category of head RN and in-service coordina- tors and enjoy 15 working days' vacation per year. The other challenged voters are paid in the staff nurse category. As the Board stated in Westinghouse Electric Cor- poration, 113 NLRB 337, 339-340: While manufacturing engineers make recom- mendations on matters which are of great im- portance to management, that factor is usually present in the work of all professional em- ployees, and does not in and of itself make them a part of management so as to preclude their inclusion in a professional unit. Indeed, this common factor, in our opinion, was one of the reasons Congress specifically provided for the establishment of separate professional units. On the basis of the foregoing and on the entire record, the Hearing Officer finds that the p.m. and night charge nurses do not possess and exercise those indicia of supervisory authority necessary to remove them from a grouping of the unit found ap- propriate by the Board. Accordingly, it is recom- mended that the challenge to the ballots of Kruppa, Singleton, Holland, Montgomery, Jones, Reece, Knutson, House, Pascal, and Perez be overruled and that their ballots be opened and counted. The parties stipulated that Billington, Sorensen, and Josselyn who work as staff nurses on Cwing, part time, on the p.m. shift, and Van Laar, who works as staff nurse on D wing, part time on days, are eligible to vote. Accordingly, the Hearing Of- ficer recommends that their ballots be opened and counted. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATION On the basis of the foregoing report, it is recom- mended that the challenges to the ballots of Martin, Perier, Neill, Baker, Dorworth, Rydalch, Priester, Pascal, Winkley, Anderson, Clawson, House , Josse- lyn, Leri, Lichty, Singleton, Knutson, Reece, Jones, Montgomery , Holland, Billington, Sorensen, Perez, Bergstedt, Van Laar, and Kruppa be overruled, and that the challenges to the ballots of Milldrum and Brohm be sustained ; and that the results of the election disclosed by the revised tally of ballots be certified. FILING OF EXCEPTIONS Pursuant to Section 102.69 (d) of the Board's Rules and Regulations , Series 8 , as amended, co- pies of this report are being served on the parties to this proceeding who, within 10 days, or within such further time as the Board may allow, may file with the Board in Washington , D.C., eight copies of ex- ceptions to this report. Immediately upon the filing of such exceptions the parties filing same shall serve a copy thereof on the other party and shall file a copy with the Regional Director, together with a statement of service to the Board simultane- ously with the filing of exceptions.