St. Mary's Hospital, Inc.

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Mary's Hospital, Inc. and Florida Nurses Associa- tion, Petitioner. Case 12-RC-4781 September 22, 1975 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held at West Palm Beach, Florida, before Hearing Officer Jack D. Livingston on January 10 and Febru- ary 6 and 7, 1975, and before Hearing Officer Antho- ny J. Disalvo on February 18 and 19, 1975. Follow- ing the hearing and pursuant to Section 102.67 of the Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Direc- tor for Region 12 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 Officers' 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 private nonprofit hospital in West Palm Beach, Florida. During the past 12 months, its gross revenue has exceeded $500,000, and during the same period it received directly from points outside the State of Florida goods and materials valued in excess of $50,000. We find that the Employer is en- gaged in commerce within 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 rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a professional unit of all registered nurses in the Employer's nursing department, excluding all other employees and su- pervisors as defined in Section 2(11) of the Act. The Employer contends that the unit should consist of all employees in direct patient care or all professional employees.' In accordance with our decision in Mer- 1 The Employer also contends that the petition herein is fatally defective cy Hospitals of Sacramento, Inc., 217 NLRB No. 131 (1975), we find that a unit of registered nurses is an appropriate unit for the purposes of collective bar- gaining. St. Mary's Hospital, a nonprofit Florida corpora- tion, is a general hospital with 283 beds located in West Palm Beach, Florida. It has approximately 900 employees, of whom about 500 are in the nursing services department 2 The hospital is authorized to employ approximately 200 registered nurses in its nursing services department. The parties stipulated or agreed that the following were supervisors within the meaning of the Act: The director of nursing, the 2 assistant directors of nursing, the director of in- service education, and 10 house and specialty unit supervisors. Contrary to the Petitioner, the Employer contends that clinicians, senior nursing care coordi- nators (hereinafter SNCC's), nursing care coordina- tors (hereinafter NCC's), and assistant nursing care coordinators (hereinafter ANCC's) should be found to be supervisory. The Employer also contends that three in-service education instructors are supervisors. The remaining RN's include about 14 interns, nurses who have graduated from nursing school but have not yet been certified by the State of Florida.' Clinicians: The clinicians are highly skilled RN's who are available for consultation by any other nurs- es who have problems in patient care. Like the super- visors, they are salaried and do not receive overtime pay. Their starting salary is the same as that of the supervisors, and they generally work out of the supervisor's office. The clinicians are responsible for the Employer's intern program and serve as advisors to the interns. It is the Employer's regular practice, when an open clinician position is to be filled, to have available cli- nicians interview candidates for the job. Candidates may be other RN's from within the hospital or appli- cants from the outside. It appears that clinicians have effectively recommended the hiring of new clinicians. Further, clinicians, on a frequent and regular basis, substitute for the supervisors. The record indicates that one day-shift clinician has been working 5 days per week as a supervisor, and a night clinician has been working 3 to 4 days a week as a supervisor. It is estimated that a clinician, as part of her regular du- because it fails to comply with Sec . 9(c)(I) of the Act and that the Board's delegation of power under Sec . 9 to the Regional Director is improper. We reject these contentions as lacking in merit 2 The employee statistics discussed herein generally refer to the number of authorized positions . The Employer's evidence indicates that frequently there are somewhat fewer actual employees than authorized positions. For example, the Employer has authorized nine clinician positions, but at the time of the hearing had only six clinicians. ' Neither the Employer nor the Petitioner has specifically stated whether the interns should be included or excluded . We find, in view of their training and working conditions, that the nurse interns are professional employees, and we shall include them in the unit 220 NLRB No. 92 ST. MARY'S HOSPITAL, INC. 497 ties, must spend 25 percent of her time doing admin- istrative work on behalf of the Employer. Petitioner argues that clinicians differ from the house and specialty unit supervisors in that their po- sitions, unlike that of the supervisor, emphasize di- rect patient care. While this may be true, the record indicates that the Employer is moving toward a merger of the positions of supervisor and clinician. Although the clinician emphasizes direct patient care more than the supervisor, it is clear that the clinician engages in significant supervisory functions on be- half of the Employer. The clinicians' authority and responsibilities extend substantially beyond giving direction to other employees as part of a health care professional's treatment of patients. Accordingly, we find that the clinicians are supervisors within the meaning of the Act, and we shall exclude them from the unit. Senior Nursing Care Coordinators, Nursing Care Coordinators, and Assistant Nursing Care Coordina- tors: The Employer has replaced the term "head nurse" with the term "nursing care coordinator." Currently, the Employer has authorized 8 SNCC's, 12 NCC's, and 46 ANCC's. The SNCC's are usually assigned to the Employer's specialty units, and the NCC's are assigned to the medical-surgical units. Generally, the SNCC's and NCC's work on the day shift but are considered responsible for their units on a 24-hour basis. Many ANCC's work on the evening and night shifts, though some work days, assisting the SNCC's and the NCC's. The SNCC's and the NCC's apparently have the same responsibilities, and the ANCC's either assist them on the day shift or act in their place on the evening and night shifts. All these nurses are hourly paid, punch timeclocks, and receive overtime pay. There is about a 4-percent pay differential between successive levels of registered nurses (from staff RN to ANCC to NCC to SNCC). The primary responsibility of the SNCC's, NCC's, and ANCC's is patient care.4 The Employer has re- lieved these nurses of most administrative functions so that they may concentrate on direct patient care. The record indicates that all levels of nursing care coordinators defined and described their responsibil- ities to be clinical and that they direct other employ- In assessing the duties, responsibilities, and authority of these nurses, we have relied, in part, on the testimony of former Director of Nursing Stef- fens. Steffens served as the Employer's director of nursing for 2 years. The Employer argues that we should discount Steffens ' testimony because she left her position on or about October 1, 1974, and is thus unfamiliar with the Employer's current situation. However, the hearing in this case commenced January 10, 1975, a short time after Steffens' departure. Further, numerous witnesses testified that they were unaware of any change in their duties, responsibilities, or authority since the departure of Steffens. Therefore, ex- cept where evidence specifically shows that an Employer practice or proce- dure changed after Steffens' departure, we find it proper to rely, in part, on Steffens' testimony in reaching our decision herein. ees only to the extent necessary to assure the best possible patient care. An SNCC and an NCC testi- fied that they spend only about 2 percent of their time engaging in any administrative functions on be- half of the Employer. Neither the SNCC's nor the NCC's have a role in the hiring or firing of employ- ees. Unlike clinicians, SNCC's, NCC's, and ANCC's do not interview candidates for nursing positions. Staff RN's look upon the SNCC or NCC as "a co- worker" with, more experience in nursing. The Employer contends that the SNCC's, NCC's, and ANCC's all have supervisory authority. Howev- er, having carefully examined the Employer's conten- tions and the evidence in the record, we find that these nurses only exercise authority and give direc- tion to other employees as part of their professional care of patients. The Employer notes that the SNCC's and NCC's, and at times the ANCC's, will make up the work schedules for the RN's. However, the record shows that all nurses generally work as a group in trying to arrange schedules and the days off desired. In the event that the nurses cannot collectively work out a satisfactory schedule, the SNCC or NCC will make the final decision, and then turn the schedule over to the nursing staff coordinator, a clerical in the nursing department, who checks to make sure all shifts are covered and coordinates the schedules from the vari- ous units. After she approves them, they are printed and sent back to the various units for posting. If, after the posting of the schedule, a nurse desires a schedule change, she speaks to the nursing care coor- dinator (not the SNCC or NCC). Apparently, if the nurse requesting the change can find a substitute, she will be allowed to make the desired change. The Employer argues that the SNCC's, NCC's, and ANCC's can give verbal reprimands. However, the record indicates that this authority is limited. In matters relating to patient care, the coordinators may and do verbally reprimand employees who have failed to provide proper patient care. On the other hand, reprimands for personnel matters such as em- ployee absenteeism are left to the supervisors. The Employer notes that the coordinators may file "con- tact reports" with the supervisors. But the record shows that any employee may file a "contact report," which either praises or condemns the actions of any other employee. For example, LPN's have filed "con- tact reports" about RN's. Finally, the Employer states that the SNCC's, NCC's, and ANCC's periodically fill out evaluation forms on other employees and that the evaluation forms may affect the job status of those employees. The evaluation form does not provide for the evalua- tor to recommend that the employee be promoted. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further, the Employer has no merit increase program and therefore a good evaluation cannot lead to a merit increase. The forms are to be prepared in pen- cil for presentation to the supervisor, who makes any changes she thinks necessary. Apparently, if the eval- uation contains any serious negative aspects, the su- pervisor will independently investigate the matter to determine if any remedial action is required. After the supervisor approves and signs the evaluation form, the coordinator discusses the evaluation with the employee. On the basis of the evidence before us, we find that the SNCC's, NCC's, and ANCC's are not supervisors within the meaning of the Act. The Employer's prac- tice has been to minimize the administrative and su- pervisory functions of all coordinators and to em- phasize their patient care functions. The Board has not found supervisory a health care professional who gives directions to other employees, which directions are incidental to the professional's treatment of pa- tients. See, e.g., Wing Memorial Hospital Association, 217 NLRB No. 172 (1975). In this case, it is clear that the authority, duties, and responsibilities of all coor- dinators are clinical in nature and closely related to direct patient care. There nurses do not hire, dis- charge, promote, or have the authority to recom- mend effectively changes in the employment status and wages of other employees. Overall, the SNCC's, NCC's, and ANCC's engage in no significant super- visory functions on behalf of the Employer, and we conclude they are not supervisors within the meaning of the Act. Accordingly, we shall include them in the unit. In-Service Education Instructors: In its nursing services department, the Employer has a separate section known as in-service education. The director of this section is stipulated to be a supervisor. At the time of the hearing, this section also employed three assistant instructors (nondegree RN's) and one in- structor assistant (an LPN). The Employer contends that the three assistant instructors are supervisors within the meaning of the Act. Petitioner apparently takes no position as to the status of the assistant in- structors. New employees, from orderlies to RN's, in the nursing services department go through a 2-week or- ientation program conducted by the in-service in- structors. For the first few days of orientation, all new employees are trained together; thereafter they are divided into groups based on job classifications. The assistant instructors train the new employees and can extend a new employee's orientation period. If a new employee seems deficient during orienta- tion, the problem is discussed by the instructor, the director of in-service education, a supervisor, and possibly the director or assistant director of nursing. Usually, some effort is made to find suitable func- tions that the new employee can perform. If the new employee cannot successfully perform any suitable functions, a decision to terminate may be made. Nor- mally, the director of in-service education has the final word as to whether any new employee success- fully completes orientation or is terminated. On this record, we are not persuaded that the assis- tant instructors are supervisors within the meaning of the Act. Their function is to teach new employees during a brief 2-week orientation period. In their teaching capacity, it is necessary for the instructors to evaluate the new employees and inform their supe- riors of the new employees' success or lack of success in orientation. The instructor may extend the orien- tation period of a new employee encountering prob- lems. Nonetheless, we cannot conclude that the teaching function of the instructors automatically leads to a finding that the instructors promote or dis- charge employees or make effective recommenda- tions regarding the job status of new employees. On this record, we are not persuaded that the in-service instructors are supervisors within the meaning of the Act, and we shall include them in the unit. We also note that there are other RN's working outside of the nursing services department. One RN, who works as an EEG technician and is also a de- partment head, was stipulated by the parties to be out of the unit, and we shall exclude her. Other RN's are working as a nurse epidemiologist, a nurse con- sultant in product evaluation, and a nurse in the em- ployee health service. As we shall normally find it appropriate to group together in the RN unit all RN's wherever assigned in the hospital, we shall in- clude these RN's in the unit. Upon the entire record, we find that the following employees of the Employer constitute a unit appro- priate 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 at 900-49th Street, West Palm Beach, Florida, including senior nursing care coordinators, nurs- ing care coordinators, assistant nursing care coordinators, assistant instructors, nurse interns, nurse epidemiologist, nurse consultant in prod- uct evaluation, and nurse in the employee health service, but excluding the director of nursing, di- rector of in-service education, assistant directors of nursing, house and specialty unit supervisors, clinicians, EEG technician-nurse, all other em- ployees, and all supervisors and guards as de- fined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.]