Oak Ridge Hospital of the United Methodist Church

OAK RIDGE HOSPITAL Oak Ridge Hospital of the United Methodist Church and Tennessee Nurses' Association, Petitioner. Case 10-RC-10273 August 29, 1975 DECISION AND DIRECTION OF ELECTION By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on March 31 and April 2, 1975, before Hearing Officer E. Walter Bowman. Follow- ing the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Series 8, as amended, this case was transferred to the Board for decision. Thereafter, the Employer filed a 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 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 case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Employer contends, and the Petitioner de- nies, that Petitioner, hereinafter also referred to as TNA, is not a bona fide labor organization within the meaning of Section 2(5) of the Act because it is controlled and dominated by employers, supervisors, and independent contractors. We find no merit in this contention. TNA, a professional organization whose membership is limited to registered nurses, is affiliated with the American Nurses' Association. TNA's bylaws provide that the association's purpos- es, are, inter alia, "[t]o promote and protect the eco- nomic and general welfare of nurses." In this connec- tion, the record establishes that TNA has negotiated collective-bargaining agreements with various hospi- tals in Tennessee covering units of registered nurses. The record further shows that TNA has since 1967 represented, for purposes of bargaining collectively, ' The Employer excepted to the Hearing Officer's granting of Petitioner's motion to revoke subpenas directed toward Petitioner's executive director and the president of the American Nurses' Association. We find this excep- tion without merit inasmuch as we agree with the Hearing Officer's finding that the subpenas were overly broad and sought material not relevant to any issue raised in this proceeding. 49 the registered nurses employed by the Employer and has negotiated collective-bargaining agreements with the Employer covering its registered nurses since that time. The executive authority of TNA is vested in a board of directors composed of the officers of the association 2 and eight other members elected by the delegates to TNA's biennial convention. TNA's "Economic and General Welfare Program," which includes its basic collective-bargaining policy and strategy, is developed and implemented, with the ap- proval of the board of directors, by the Council of Occupational Sections, a body consisting of the chairmen of the following sections: educational ad- ministrators, consultants and teachers, general duty and head nurses, nursing service administrators, oc- cupational health nurses, private duty nurses, and public health nurses. Virtually all members of TNA are members of one of these constituent sections. According to the uncontradicted testimony of TNA's executive director, Rebecca Clark Culpepper, 3 of the 13 members of the board of directors occupy supervisory positions. However, no member of the board of directors or the Council of Occupational Sections is a supervisor employed by the Employer in this case. Under these circumstances, we find con- trary to the Employer's contention that Petitioner is an organization in which employees meaningfully participate and which exists in part for the purpose of dealing with employers concerning wages, hours, and terms and conditions of employment; and that it has, in fact, negotiated collective-bargaining agree- ments with employers. Accordingly, we find that Pe- titioner is a bona fide labor organization within the meaning of the Act.3 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of em- ployees consisting of all registered nurses employed by the Employer at its Oak Ridge, Tennessee, loca- tion, excluding all supervisors, managerial employ- ees, and all other employees. At the hearing the par- ties agreed to exclude from the unit all clinical managers, assistant clinical managers, the liaison nurse, and the certified registered nurse anesthetist. The Employer would further exclude charge nurses and team leaders, all of whom are registered nurses, as supervisors, and the clinical instructor on grounds 2 These officers are the president, first and second vice presidents, secre- tary, and treasurer, all of whom are elected at TNA's biennial convention. Annapolis Emergency Hospital Association, Inc. d/b/a Anne Arundel Gen- eral Hospital, 217 NLRB No 148 (1975), Carle Clinic Association, 192 NLRB 512 (1971); International Paper Company, Southern Kraft Division, 172 NLRB 933 (1968). 220 NLRB No. 9 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she supervises a secretary and that she lacks a community of interest with other registered nurses. The Petitioner would include these employees. The Employer utilizes the team nursing concept of patient care. The various patient care areas are under the supervision of clinical managers or assistant clini- cal managers, who are registered nurses and were stipulated by the parties to be supervisors. The clini- cal manager assigns each employee under her super- vision to a team, generally composed of a registered nurse and one or more licensed practical nurses, nursing assistants, and nursing technicians. With respect to charge nurses, they are responsible for various patient care areas during the 3-to-11 p.m. shift, when no clinical managers or assistant clinical managers are on duty.4 They report to the nursing supervisors. The charge nurses are paid $2 more per shift than regular staff nurses but do not receive any additional fringe benefits. It appears from the record that the charge nurses spend most of their working time involved in direct patient care as are other regis- tered nurses. Charge nurses, however, in the course of their professional duties, make routine employee team assignments, assign a group of patients to each team, may reassign an employee from one job to an- other, and may verbally correct an employee. How- ever, they do not have authority, as do clinical man- agers, to hire or fire employees, to interview applicants for employment, or to evaluate employees' work, although a charge nurse may occasionally be asked by a clinical manager about some aspect of an employee's work with which the clinical manager is not familiar. The record is also devoid of any evi- dence that charge nurses have any authority to re- solve grievances, set schedules, or grant time off; and there is no evidence that they effectively recommend action affecting other employees' terms and condi- tions of employment. Furthermore, clinical managers prepare budgets while charge nurses do not. In addi- tion, while there are four full-time charge nurses, there are also six to eight nurses who function part time as charge nurses and at other times as staff nurs- es. On the basis of these facts, we find that the charge nurses' direction of other employees in performance of routine patient care duties is solely a product of their highly developed professional skills rather than a indication of supervisory status. Accordingly, we find that the charge nurses are not supervisors and are therefore eligible to vote in the election to be directed herein. With respect to the team leaders, the record estab- lishes that the team leader is usually the only regis- Charge nurses also are appointed to serve two shifts per week in two small patient care areas when the clinical manager is off duty and there is no assistant clinical manager. tered nurse on a team. Team leaders apparently are responsible for implementing physicians' instructions and providing direct patient care. They have less au- thority to direct the work of other employees than do the charge nurses. Accordingly, inasmuch as we find that the charge nurses are not supervisors, we also find that the team leaders are not supervisors and shall include them within the unit. The Employer contends that the clinical instructor should be excluded from any unit herein found ap- propriate on grounds that (1) she lacks a sufficient community of interest with other registered nurses to warrant her inclusion, and (2) she is a supervisor within the meaning of Section 2(11) of the Act. We disagree. The clinical instructor is a registered nurse. She is responsible for the continuing medical education of all hospital personnel, primarily nurses. She holds seminars and classes on medical terminology, new systems of medication, and proper procedures with respect to therapy and traction. Although her posi- tion does not require an RN license, her knowledge of medicine and nursing procedures are, of course, necessary to the performance of her teaching duties. Her office is located in the medical arts building where some of her classes or seminars are given. Other classes are given in the conference room of the main hospital. Contrary to our dissenting colleague, we cannot agree that it is "merely fortuitous" that the clinical instructor is a registered nurse. Obviously, her quali- fications must be at least equal, if not superior, to those of registered nurses who are taught or trained by her in the performance of their professional du- ties. In this respect they must rely entirely upon her for information relating to new improvements in medicine and hospital technology. Obviously, too, the proper performance of her duties is critical to the well-being of hospital patients and to the actual nurs- ing functions of those nurses and other assigned to direct patient care. As she works in close proximity to other registered nurses and her duties do, in fact, substantially affect patient care, we shall include her in the unit of registered nurses.' We find the following employees constitute a unit appropriate for the purposes of collective bargaining: 5 We find no merit in the Employer 's contention that the clinical instruc- tor is a supervisor because she effectively recommended the employment of a secretary. The only witness to testify on this issue, the Employer's person- nel director, testified that she did not know whether the clinical instructor interviewed the secretary but that she did recommend her. However, the record does not establish that the secretary was hired on the basis of the clinical instructor's recommendation . Accordingly, we find that this inci- dent constituted at most a sporadic exercise of supervisory power not in- volving a unit employee and therefore does not warrant a finding that the clinical instructor is a supervisor within the meaning of Sec . 2(11) of the Act. Adelphi University, 195 NLRB 639 at 643-644 (1972). OAK RIDGE HOSPITAL 51 All full-time and regular part-time registered nurses employed by the Employer at its Oak Ridge, Tennessee, facility, including all charge nurses, team leaders, and the clinical instructor; but excluding the liaison nurse, certified regis- tered nurse anesthetist, all other employees, guards, and supervisors as defined within the meaning of the Act. [Direction of Election 6 omitted from publication.] CHAIRMAN MURPHY, dissenting in part: I agree with my colleagues that Petitioner is a bona fide labor organization within the meaning of the Act and that the charge nurses and team leaders em- ployed by the Employer are not supervisors and should therefore be included in the bargaining unit found appropriate. However,.I do not agree that the clinical instructor is properly included in that unit. The record establishes that the clinical instructor's duties are confined to conducting training programs and seminars and that she, unlike all other unit nurs- 6 [Excelsior footnote omitted from publication.] es, has no patient care duties whatsoever. The clinical instructor receives a higher rate of pay and is paid on a different schedule than unit nurses and does not interchange with them, she does not wear a uniform when in the hospital, and her office is located in a separate office building where no other unit nurses work and where no hospital patients are treated. She is not supervised by the nursing supervisors as are other unit nurses but by the director of education. Moreover, the Employer's personnel director testi- fied without contradiction that an RN is not required for the clinical instructor position and it therefore appears to be merely fortuitous that the jncumbent is a registered nurse. In view of these facts, I would find that the clinical instructor neither performs the same job functions as other registered nurses nor shares their terms and conditions of employment and that, therefore, she does not have a sufficient community of interest with other registered nurses to warrant her inclusion in the bargaining unit.' 7 1 note that no labor organization seeks to represent the clinical instruc- tor in a different bargaining unit. However, the parties stipulated to exclude the certified registered nurse anesthetist and the liaison nurse, and, there- fore, the clinical instructor is not the only registered nurse who is not found to be a supervisor who will remain unrepresented.