Doctors Hospital

DOCTORS HOSPITAL - 611 Doctors Hospital and Ohio Nurses Association, Peti- tioner. Case 9-RC-10730 April 30, 1975 DECISION AND DIRECTION OF ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer James E. Murphy at Columbus, Ohio, on September 17, 18, 19, and 20, 1974. Following the hearing and pursuant to Section 102.67 of the Board's Rules and Regulations and Statements of Pro- cedure, Series 8, as amended, the Acting Regional Di- rector for Region 9 transferred the case to the Board for decision. Thereafter, the Employer and Petitioner filed briefs with the Board. 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 reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer, hereinafter also referred to as the Hospital, is a nonprofit Ohio corporation engaged in the operation of a 350-bed hospital and medical center at 1087 Dennison Avenue, Columbus, Ohio, and a 175- bed satellite facility at 5100 West Broad Street, Colum- bus, Ohio. During the past year, it received gross reve- nues in excess of $250,000, and purchased goods from firms located outside the State of Ohio valued in excess of $50,00 which it caused to be shipped directly to its Columbus, Ohio, facilities. The parties stipulated, and we find, that the Employer is engaged in commerce wiLthin the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all full-time and part-time registered nurses employed by the Employer at its two Columbus, Ohio, facilities, excluding the associate administrators and assistant ad- miininstrator in the nursing service department and all other employees. The Employer agrees that a profes- sional unit of registered nurses constitutes a unit appro- priate for collective bargaining. However, contrary to Petitioner, Employer contends that registered nurses classified as directors, assistant directors, coordinators, and assistant coordinators should be excluded from the unit as supervisors within the meaning of Section 2(11) of the Act.' The Hospital employs in its nursing service depart- ment some 650 employees, including approximately 203 registered nurses. Of the 203 registered nurses, there are 2 associate administrators, I assistant ad- ministrator, approximately 23 directors and assistant directors, 18 coordinators, and 25 assistant coordina- tors. The remaining 134 registered nurses are classified as staff nurses. The associate administrators and the assistant administrator report directly to the Em- ployer's administrator, Richard L. Sims, who is the Hospital's chief operating officer. Sims reports to the executive director, William S. Konold, who is charged with the responsibility of administering the Hospital according to policies established by the board of trus- tees. Konold spends practically no time at the hospital facilities, but he alone has the authority to terminate employees who have 5 or more years of service. The associate and assistant administrators have the au- thority to place employees on disciplinary probation and may suspend or discharge employees with less than 5 years of service. One or more of the administrators is present at each of the facilities during the first shift, which runs from 7 a.m. to 3 p.m. House Directors: Both the medical center and the satellite facility are staffed three shifts per day, 7 days per week. The house directors who work on the first shift are in charge of multiple units, e.g., medicine floors consisting of several smaller patient care units or nurses' stations. There are generally two house direc- tors present during the second shift, which runs from 3 p.m. to 11 p.m., and one house director is present at each facility during the third shift, which runs from 11 p.m. to 7 a.m. The house directors are the highest authorities present at the two facilities during the sec- ond and third shifts. Unlike the other registered nurses, including the coordinators and assistant coordinators, the full-time directors and assistant directors are sala- ried employees who do not punch timeclocks. All the hospital's full-time employees enjoy generally the same benefits, except for a program permitting an annual bonus in lieu of sick leave which is not available to the salaried employees, such as the administrators and full- time directors. Although house directors and assistant house directors have no authority to hire or discharge I The parties stipulated that Associate Administrators Rebecca Morton and Frances Copeland and Assistant Administrator Christine Hackman are supervisors under the Act We shall exclude them from the unit found appropriate herein The parties also stipulated that employees Patncia Hurd and Mary R. Ammons are staff nurses who should be included in the unit and that Marion Wilson and Georgia Elliott are casual employees who should be excluded from the unit Weshall include Hurd and Ammons and exclude Wilson and Elliott 217 NLRB No. 87 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, they do have authority to transfer or call in additional personnel, as well as authority to assign overtime and initial timecards. In most cases involving disciplinary action, the house director writes up a for- mal report following a conference with the employee and appropriate coordinator. The house directors' recommendations with respect to disciplinary action, including discharge, are often followed by the adminis- trators. Petitioner acknowledges that, under traditional Board standards, the house directors and asssistant house directors would appear to be supervisors. How- ever, Petitioner contends that the characteristics which they exhibit are actually nothing more than a manifes- tation of their functions as registered nurses. Specifi- cally, Petitioner asserts that these employees perform their allegedly supervisory functions in the interest of the patients rather than the Employer. Although we recognize that all the Employer's registered nurses dis- charge duties and responsibilities unique to their highly skilled profession, we reject Petitioner's contentions that the traditional standards for determining supervi- sory status are not applicable in this case. On the basis of all the facts in this case, we find that, in addition to performing their professional duties and responsibili- ties, the house directors and assistant house directors also exhibit characteristics and possess authority which indicate the performance of supervisory functions in the interest of the Employer. Accordingly, we conclude that the full-time and regular part=time house directors and assistant house directors are supervisors within the meaning of the Act, and we shall exclude them from the unit.' Directors of Staff Development: Employer' contends that the three directors of staff development in the nursing service department are also supervisors within the meaning of the Act. The record reveals that, in addition to active participation in personnel recruit- ment and training, these employees hire new personnel, including staff nurses, and establish their salaries, within guidelines. In addition, two of the staff develop- ment directors fill in as house directors every fifth weekend, and the third fills in when needed in emer- gency situations and during vacation periods. On the basis of these facts, we conclude that the three directors of staff development are supervisors within the mean- ing of the Act who should be excluded from the unit. Director of Extended Care: Employer contends that the director of extended care at the main facility, Ruth Stickrod, is a supervisor within the meaning of the Act 2 Like all the Hospital's part-time employees, the two part-time directors, Barbara Memman and Bernice Simone, are paid on an hourly basis and receive no fringe benefits Other than these distinctions due to their part- time status, they possess and exercise the same authority enjoyed by the full-time house directors Thus, we shall also exclude the regular part-time house directors as supervisors and should be excluded from the unit. The Employer also took the position at the hearing that Elizabeth Lawrence, a registered nurse at the satellite facility who performs functions similar to those of the director of extended care, likewise should be excluded from the unit. The-record reveals that these two employees place patients in extended care facilities or nursing homes and counsel such patients and their families. While it does not appear that they exercise supervisory au- thority, the present record does not sufficiently detail the duties and responsibilities of these employees to enable us to make a definitive determination as to their unit placement. We shall therefore permit them to vote subject to challenge. Coordinators and Assistant Coordinators- The Em- ployer also contends that the approximately 18 coor- dinators and 25 assistant coordinators it employs at its 2 facilities are supervisors within the meaning of the Act and should be excluded from the unit. Petitioner contends that these employees do nothing more than exercise highly developed professional skills typical of all the staff nurses who make up-'the requested unit. Although the coordinators work on the first shift, 7 a.m. to 3 p.m., they are said to have "twenty-four hour responsibilitys3 for their respective nursing units, e.g., a medical-surgical unit or an intensive care unit. Assist- ant coordinators replace the coordinators on the two later shifts and are often the only registered nurses present on their respective units during that time.' The Employer contends that these employees have pos- sessed supervisory authority since the Employer un- veiled its so-called "management in-depth policy" in 1962, and our dissenting colleague cites the "Em- ployer's manual" to support the contention that the coordinators and assistant coordinators possess super- visory authority. According to the Employer, this "In- ternal Organizational Manual" followed an extensive analysis of the operational and management structure of the Hospital, as well as other area institutions, and the Employer contends that changes indicated therein, including the extension of supervisory authority to coordinators and assistant coordinators, were imple- mented in 1962 and have continued in existence until the present time. However, the record indicates that much of this program has never been implemented in actual practice. Contrary to the Employer's assertions, the testimony of coordinators called as witnesses at the hearing reveals that the coordinators themselves were 3 Employer's Associate Administrator Copeland testified that "twenty- four hour responsibility" entails assuring that there are adequate supplies available to the other two shifts on the nursing unit. She added that coor- dinators were responsible for "follow-through of care cards" and their con- toued formulation, but that they are not responsible for errors committed on the other two shifts when they are not present. 4 The record reveals that, in addition to the 25 registered nurses classified as assistant coordinators, there are 7 licensed practical nurses who also serve as assistant coordinators. DOCTORS HOSPITAL not aware that they had authority to discharge other employees or to relieve them from unit work. In addi- tion, the Employer's actions taken with respect to mod- ification of the job descriptions found in the nursing manuals, the handbooks kept at each nurses' station and actually used by the registered nurses, further serve to reveal the true nature of these employees' duties. Until the petition was filed, the job description for a coordinator did not differ substantially from the job description for a staff nurse. The job description was modified after the petition was filed so that it now states that coordinators may recommend disciplinary action or termination of unit personnel. However, the new job descriptions were distributed on September 11, 1974, only 6 days before the hearing in this case, and we find no more evidence of implementation of these eleventh- hour changes in the nursing manual than we do of the changes indicated in the Employer's "Internal Organi- zational Manual" of 1962. On the contrary, we believe that the entire record, including the facts set forth be- low, establishes that the actual functions and duties of these coordinators and assistant coordinators5 remain not significantly different from those of the typical staff nurse employed at the Hospital. Employer asserts that the coordinators and assistant coordinators assign work daily to other registered nurses and to ancillary personnel on their respective units. However, the record indicates that daily work assignments are routinely determined according to the "team nursing" concept under which unit personnel are split into smaller groups. Each team has its respec- tive team leader, and the teams are responsible for the care of the patients assigned to them. Team leadership rotates among the registered nurses and the licensed practical nurses in an effort to maintain continuity of patient care, i.e., the nurse or nurses present on the floor one day usually serve as team leaders on the fol- lowing day. According to the testimony of the coor- dinators themselves, the first nurse in the unit to arrive, whether staff nurse or coordinator, writes up the team assignments. Coordinators also testified that, like the staff nurses, the majority of their time is spent in patient care.6 - With respect to the assistant coordinators, no job description existed unl it after the petition was filed. f, The Employer asserts that coordinators and assistant coordinators devote only about 15 percent of their working lime to direct patient care. This figure comes from Employer's Exh. 5, a chart which the Employer introduced as "a business record" allegedly "prepared" by the Hospital's associate and assistant administrators prior to a management seminar held in January 1974. However, Associate Administrator Morton conceded that the chart was actually copied from a magazine article, that "it really was not a true picture-not really accurate," and that she and other administrators "did not prepare any studies for this" Associate Administrator Copeland joined in Morton's admission that the chart was copied from a magazine article whose author and title she could not recall, and Copeland further stated that the percentages appearing on the chart did not relate to Doctors Hospital Under these circumstances, we prefer to rely on the testimony of 613 Coordinators and assistant coordinators have the limited authority to give verbal reprimands. If further action is contemplated, a conference with the director and the employee is held, followed by the forwarding of a director's written recommendation to the the ad- ministrators. Any recommendation which a coordina- tor makes to a director at a disciplinary conference is subject to the independent investigation of of the direc- tor. Should the coordinator's recommendation be in- cluded in the report forwarded to the administrators, it is subject to another independent investigation by the administrators. Coordinators and assistant coordinators have peri- odically filled out forms evaluating other employees, including staff nurses, and the Employer contends that these evaluations are given weight by higher manage- ment in considering promotions and wage increases under the Hospital's merit pay plan. However, the rec- ord reveals that the Employer has not granted a single merit wage increase since November 15, 1971, and the coordinators and assistant coordinators called as wit nesses testified that their recommendations for pay in- creases have not been approved by higher management and that they have not recommended promotions. One assistant coordinator testified that she was never in- formed that she had authority to recommend wage increases. Thus, the record does not provide substantial evidence to support the Employer's assertion that these evaluations are given weight by higher management in considering promotions and wage increases. Moreover, the record reveals that staff nurses, including a part- time staff nurse, have also prepared evaluation forms. Unlike the house directors, whom we have found to be supervisors, the coordinators and assistant coordina- tors are paid on an hourly basis rather than by salary,. and they are required to punch a timeclock. Although the average pay for coordinators and assistant coor- dinators is slightly higher than that of the average staff nurse, some staff nurses receive higher wages than many of the coordinators and assistant coordinators. On the basis of all these facts, we find that the coor- dinators and assistant coordinators do not possess the authority to hire, discharge, promote, or discipline beyond the stage of a verbal reprimand.' Nor do they possess authority to make effective recommendations affecting the employment status or wage rate of em- ployees. At no time do their duties and responsibilities appear to be significantly greater than those of em- ployees who function as charge nurses-a category found to be nonsupervisory in other cases.' Accord- the coordinators themselves who stated that, like the staff nurses, they devote from 90 to 95 percent of their time to patient care 7 See Wm. P McDonald Corporation, 97 NLRB 1471 (1952) s See, e.g., Doctors'Hospital of Modesto, Inc., a wholly owned subsidiary of National Medical Enterprises, Inc., 183 NLRB 950 (1970), Diversified (Continued) '614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ingly, we conclude that the coordinators and assistant coordinators are not supervisors within the meaning of the Act, and we shall include them in the unit. Upon the entire record, we find that the following employees of the Employer constitute a unit appropri- ate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time registered nurses employed by the Employer at its hospital and medical center at 1087 Dennison Avenue, Columbus, Ohio, and its satellite facility at 5100 West -Broad Street, Columbus, Ohio, including coordinators and assistant coordinators, but ex- cluding associate and assistant administrators, house directors, directors of staff development, all other employees, and all supervisors and guards as defined in the Act. [Direction of Election omitted from publication.]' MEMBER KENNEDY, dissenting: In my view, the coordinators and the assistant coor- dinators are supervisors within the meaning of the Act and, therefore, they must be excluded from the bargain- ing unit: Both the coordinators and the assistant coordinators possess the authority to discipline employees by verbal reprimands and such authority has been exercised by them. Thus, they clearly meet at least one of the criteria set forth in Section 2(11) of the Act for finding in- dividuals to be supervisors. 10 It is not necessary, that Health Services, Inc. d/b/a Convalescent Center of Honolulu, 180 NLRB 461 (1969); New Fern Restortum Co., 175 NLRB 871 (1969). 9 [Excelsior In. omitted from publication ] 10 Since 1962, the duties and responsibilities of the coordinators and assistant coordinators have been designated in the Employer's manual as follows: The Coordinators and Assistant Coordinators are those responsible for the management of a single Unit of Nursing Service It is the responsibility of the Coordinators to supervise and utilize to the fullest extent, the Unit's nursing personnel. The various procedures incident to the total care of the patient and the utilization and control of all equipment and supplies utilized by the Unit is under their manage- ment control It is the responsibility of the Coordinator to have the Unit in com- plete order and sufficiently stocked with necessary supplies used in the proper function of the Unit by the Assistant Coordinator of the "Eve- ning and Night Service." The Assistant Coordinator is responsible for the total function of the Unit including the utilization of all Nursing personnel assigned to the Unit, the supplies of the Unit, the equipment of the Unit and all phases involved in the total care of the patient. It is the Assistant Coordinator's responsibility to assist the Coordina- tor and the Director of the Service in developing and managing a perfect Unit of Nursing Service s s n s Coordinators and Assistant Coordinators have the authority and re- sponsibility to recommend to Directors and Assistant Administrators, the dismissal or the transfer of any employee who appears to be in- competent or inefficient they also possess the authority to impose more strin- gent disciplinary action, such as discharging an em- ployee, in order to meet the test for supervisory status. It is sufficient if they meet any one of the criteria speci- fied in Section 2(11).11 Nevertheless, they also make written recommendations to higher authority where more serious actions are required. These recommenda- tions have included recommendations to transfer an unsuitable employee out of a particular unit; to put an employee on a leave of absence because she was not capable of carrying out her duties; to place an employee on probation because she did not adjust to various orders; to terminate an employee who was making er- rors in administering medication; and to terminate another employee who was continually absent without notice. The recommendations were followed except as to one employee who was transferred to another section of the Hospital rather than terminated. Employee evaluations are prepared by the coordina- tors and assistant coordinators. These appraisals of an employee's job performance include a written rating of such topices as: quality of work, quantity of work, dependability, cooperation, initiative, self-improve- ment, and personality. The written evaluation requires the coordinator or assistant coordinator to exercise her judgment in mak- ing an appraisal of each of the foregoing job criteria. She is requested to rate the individual employee's per- formance on a numerical scale and to make written comments. Finally, the coordinator or assistant coor- dinator must make a decision as to whether to recom- mend the employee for continued employment. These evaluations are placed in the employee's personnel folder and are given weight by higher management in considering promotions and pay increases. The coordinators and assistant coordinators received 12 percent and 6 percent more in wages, respectively, than the staff nurses. They are responsible for using their discretion in making assignments of work to em- ployees on their team and they are responsible for the initial handling of grievances of employees. All coordinators are required to attend weekly man- agement meetings. The subjects covered at such meet- ings have included: evaluation of employees, discussion of a review of the training program, new vacation sched- uling, salary changes, how to handle the assignment of personnel most effectively, overtime policies, and discipline policies. They are responsible for the supervision of employees in their De- partment or Section and for the carrying-out of established policies and procedures of the Service and the hospital They have the responsibility of the direct supervision involved in the training of new employees assigned to their Service and have the direct responsibility for all phases of activity as well as for the performance of equipment in the area of their Service. I Ohio Power Co. v N.LR.B, 176 F.2d 385 (C A 6), cert. denied 338 U S. 899 (1949) DOCTORS HOSPITAL 615 Moreover, the ratio of supervisors to employees is a further indication that the coordinators and assistant coordinators are supervisors . The Employer operates two separate hospitals with a total employee comple- ment of about 1,300 employees. About 650 of these employees work in the nursing services department. The main hospital facility has 350 beds . The satellite hospital has 175 beds and is located approximately 10 miles from the main facility where all of the administra- tive offices are housed. There are one or two house directors at the satellite hospital per shift and five coordinators or assistant coordinators per shift , but under the majority's view only the house directors would be supervisors. Thus, the majority would have us believe that there are only two immediate supervisors per shift running a 175-bed hospital. The two house directors would have to di- rectly supervise 90 employees on the first shift and 44 employees on the second shift . On the third shift, the one house director at the satellite hospital would have 31 employees to supervise. On the second and third shifts at each facility, house directors are the highest in management authority. In my view , the record establishes that the coordina- tors and assistant coordinators are supervisors within the meaning of the Act and, therefore, should not be included in the unit. 12 Finally, I am not persuaded that a professional unit limited solely to registered nurses would be appropriate in every hospital case. Usually, a hospital will have several categories of professional employees, such as physicians and pharmacists, as well as registered nurses and others. There may be factors which would support the finding of a broader unit of all professional em- ployees at the hospital. However, in the instant case the parties are in agreement as to a professional unit of registered nurses and no other labor organization seeks a larger unit at this time. Since I disagree with my colleagues' unit finding on other grounds and would not direct an election in this unit , it is unnecessary for me to address myself to the scope of the unit in this case. 12 My colleagues are critical of the Employer's exhibit regarding time spent on direct patient care and instead prefer to rely on the testimony of certain coordinators However, those coordinators work in units which do not appear to be typical, such as the intensive care unit where no more than four patients in one room receive almost continual observation and care. The intermediate intensive care unit also is unusual in that the coordinator testified regarding the patients that , "Most of them are from the Emergency Room or from a general floor where the patient is critically ill and needs more specialized care." Another coordinator witness worked in the special- ized unit devoted to eye, ear, nose, and throat care. In these circumstances , I rely neither on the exhibit nor the limited testimony concerning nontypical units.