Pinecrest Convalescent Home, Inc.

PINECREST CONVALESCENT HOME, INC. 13 Pinecrest Convalescent Home, Inc. and Local 1115, Joint Board Nursing Home and Hospital Em- ployees-Florida Division, Petitioner. Case 12-RC-4885 January 8, 1976 DECISION ON REVIEW BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On September 10, 1975, the Regional Director for Region 12 issued a Decision and Direction of Elec- tion I in the above-entitled proceeding , finding that licensed practical nurses are not supervisors and con- stitute an appropriate unit, and that a registered nurse is a professional employee and not includable in that unit. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, the Employer filed a timely request for review, with supporting brief, of the Re- gional Director's Decision. Employer alleged that the Regional Director made factual findings which are clearly erroneous, and that he departed from official- ly reported precedents . Petitioner filed an opposition to the Employer's request for review. By telegraphic order dated October 9, 1975, the Board granted the Employer 's request for review and stayed the election pending the Decision on Review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the entire record in this case with respect to the issues under review and here- by affirms the decision' of the Regional Director. We believe the Regional Director's decision is in line with the Board cases finding that charge nurses whose responsibilities are fundamentally limited to providing routine patient care are not supervisors. Mountain Manor Nursing Home, 204 NLRB 425 (1973). In this regard, the record establishes that charge nurses have no authority to hire, fire , or disci- pline ' employees. Any direction that they may give to aides either is routine in nature or connected with providing patient care and assuring that the needs of the patients are fulfilled. Additionally, to find the 10 charge nurses to be supervisors would mean an ab- normal proportion of supervisors to supervisees as there only are 27 nurses aides employed at the hospi- tal. Furthermore, the director of nursing is on call at all hours; when she is not on duty, any serious per- sonnel problems that occur in her absence are han- dled either by calling her (or the administrator) im- mediately or by leaving her a written report for her consideration and action. In these circumstances, it is clear that she can and does effectively supervise all the shifts. That she is performing this function is fur- ther indicated by the fact that the LPN's who testi- fied stated that the assignments of the nurses aides on their shifts are made by the director of nursing. They also testified that the director of nursing re- ceives call-ins when aides are going to be absent and then calls other aides to fill in. The administrator acknowledged that absentee call-ins come to the director of nursing in the morn- ing but he asserted that such calls came to charge nurses at their stations in the afternoon. Neverthe- less, the administrator conceded that, in those in- stances where charge nurses do call replacements, they merely take names from a list of aides already prepared and posted by the hospital for this purpose. Accordingly, the administrator's testimony that charge nurses exercise independent judgment in de- ciding first whether to call for replacements and sec- ondly whom they will call-upon which the Chairman's dissent places much reliance-is not, in our view supported by the record. Nor do we find that charge nurses possess' supervisory authority sim- ply because they can act on such minor matters as initialing timecards, accepting calls from absent aides, and allowing them to leave early in case of illness, since it is clear that all of those duties are accomplished in a perfunctory manner not requiring the exercise of any discretion. Accordingly, we find, contrary to Chairman Mur- phy, ' that charge nurses are employees within the meaning of the Act. Accordingly, we are remanding the case to the Re- gional Director for the purpose of conducting an election pursuant to his Decision and Direction of Election, except that the eligibility payroll period therefore shall be that immediately preceding the date of issuance of this Decision on Review.2 CHAIRMAN MURPHY, dissenting: I dissent from the finding that the LPN's are not supervisors and therefore comprise an appropriate unit. Although much of the independent judgment exercised by the LPN's is involved with patient care and under Board cases would not be sufficient to find supervisory status, traditional standards for de- termining supervisory status remains applicable to i Relevant portions of the Regional Director's Decision and Direction of Election are attached hereto as an Appendix 1 2 [Excelsior footnote omitted from publication.] 222 NLRB No. 10 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these LPN's on the basis of their particular job func- tions.' Chief among these is the fact that most of the time the building is under complete control of charge nurses on duty. The home is open 24 hours a day, 7 days a week; the director of nursing, an RN, is pre- sent Monday through Friday from 8 a.m. to 4 p.m.; and the administrator is present Monday through Friday from 7 a.m. to 5 p.m. At all other times the charge nurses make the operational decisions of the facility. Thus, according to the administrator, the LPN's, as charge nurses, are authorized to and do perform the following functions which are superviso- ry in nature over and above the routine patient care, assign ,work on the shifts to the aides, initial time- cards for aides, send aides home early, write incident reports which are placed in aides' personnel files without further investigation, receive calls from an aide who will be absent and then call a replacement, ask aides to work an extra shift, refuse to reassign an aide .to the other wing of the hospital as requested by the charge nurse on duty there, and authorize over- time. Additionally, LPN's are paid 50 percent more than aides. The above facts are not overcome by pointing out, as the majority does, that the director of nursing is on call at all times. Indeed, the evidence discloses that she is called only in the case of emergency medical problems involving greater responsibilities than LPN's are authorized by statute to assume but which RN's can perform. Administrative problems which arise in her absence in the evenings and on week- ends, such as ixiovmg nurses aides around between the wings necessary, allowing an ill aide to go home, and calling other aides to fill in for ,absentees if re- placements are deemed necessary, are handled by, the charge nurses on duty without consulting anyone ;4 and only if an incident is unusual are incident reports prepared and left for the director of nursing to ap- prise her of what- was, done. In these circumstances, the testimony of one LPN that she had called the director of nursing on two or three occasions in 2-1/2 months is hardly enough to allow for adequate super- vision by the director during her off-duty hours,, let alone establish that she, rather than the charge nurs- es, supervise anyone at such times. The majority's reliance on the testimony of two LPN's to conclude that the director of nursing per- forms the key supervisory functions of scheduling the nurses aides and calling in replacements when an aide is going to be absent is also tenuous. One of those two LPN's works from 7 a.m. to 3 p.m. on Mondays through Fridays, and the other from 3 p.m. to 11 p.m. on Tuesdays through Saturdays. Conse- quently, the presence of the director of nursing over- laps their shifts. That fact would appear, -in large measure; to explain the import of their testimony.' Furthermore, as already noted, the Administrator testified that LPN's perform those same duties; and we also know that the director of nursing is not called at home to handle that kind of situation. Nor does the fact that replacements are chosen by charge nurses from prepared lists persuade me that such choices are perfunctory in nature. To the contrary, the evidence shows that charge nurses in such situa- tions first must decide whether to call a replacement, and then, in situations where a choice is available, can pick from the list whomever they wish. Both of these functions clearly require the exercise of inde- pendent judgment. Therefore, it seems to stretch a point to believe that the director of nursing can effec- tively supervise the LPN's and nurses aides 24 hours a day, 7 days a week. Finally, the majority makes much of the fact that there are 10 charge nurses (9 of whom are LPN's) as compared to 27 nurses aides, suggesting that ratio is out of balance if the charge nurses are found to be supervisors. However, the misleading nature of those figures is pointed up by breaking them down into teams of charge nurses and aides. Thus, the LPN's are spread over two wings- of the hospital on three shifts a day, 7 days a week, supervising two to five aides each. So considered, those numbers assume an entirely different proportion, one that clearly is rea- sonable under all the circumstances- Accordingly, I would find the LPN's to be supervi- sors 6 and would dismiss the petition. 3 Wing Memorial Hospital Association, 217 NLRB No 172 (1975) 4 Goodman, the administrator, testified that he knew of no instance in 5 to 6 years of experience in which a director of nursing had been called in her off-duty hours about an administrative matter 5 No other LPN's testified, nor did the director of nursing. 6 North Dade Medical Center, 210 NLRB 588, 592 (1974). APPENDIX Regional Director's Decision and Direction of Election 4 The Employer is a Florida corporation engaged in a business of providing care for the ill and aged. During the past 12 months, Employer's gross revenue exceeded $250,000 and during the same period Em- ployer purchased drugs and supplies valued in excess of $50,000 from suppliers, who in turn, received the said drugs and supplies directly from outside the State of Florida. I find that Employer meets the Board's jurisdictional standards, Mountain Manor Nursing Home, 204 NLRB 425. 6 Petitioner already represents many of Employer's employees in a service and maintenance unit and PINECREST CONVALESCENT HOME, INC. 15 herein seeks to be certified as the collective bargain- ing representative of, Employer's licensed practical nurses (LPN's). Employer contends that these nurses are supervisors within the meaning of the Act and therefore can not constitute an appropriate bargain- ing unit. Employer's nursing department is headed by the Director of Nurses, a Registered Nurse, and contains licensed, practical nurses (about 9) and aides (about 27) Employer's nursing home is divided into 2 sta- tions with an LPN serving as the charge nurse at each station, with several aides working at the sta- tion. Each station must be covered 7 days a week and 24 hours each day. The licensed practical nurses and aides are assigned their shifts to continuously cover these stations and the nursing department works on a 3-shift basis, with the day shift running from 7 a.m. to 3 p.m., the second shift running from 3 p.m. to 11 p.m., and the third shift running from 11 p.m. to 7 a.m. The number of aides assigned to each station varies depending on the shift. There are 4 or 5 at each station on the first shift, 3 aides, per station on the second shift and 2 aides per station on the third shift. The Director of Nurses works from 8 a.m. to 4 p.m. on Monday through Friday, and at all other times is on call if the charge nurses have problems. It was noted at the hearing that under the law the li- censed practical nurses may not engage in certain patient treatments, but must call a registered nurse for the treatment to be given. It is clear from the record that the charge nurses do not have the authority to hire or fire employees, nor authority to effectively recommend such action. The aides and nurses are hired by the Director of nurses. The charge nurses may report that an aide had done something wrong, but this report is re- viewed and a meeting is held with the Union and Employer's owner before any adverse action is taken. The charge nurses make up work schedules for the aides on their stations and shift, assigning them pa- tients and noting what care is necessary. The care to be given each patient depends upon the doctor's or- ders and the charge nurse's knowledge of what gener- al care should be given to a patient. Two LPN's testi- fied at the hearing for Petitioner. One testified that at her station the aides work as a team, while the other testified that she assigns patients among her aides to divide the work evenly. The charge nurses are entirely involved in patient care, including the giving of medicine, the ordering of prescriptions, keeping charts of the patients' medi- cal conditions, and giving emergency treatment. Both charge nurses testified that while making their rounds they may see that an aide has not per- formed certain work, and so advise that aide. Both further testified that if the aide refused to do the work they would report this to the Administrator or Director of Nursing and had never been told that they had authority to discipline aides. Upon consideration of the above facts and entire record, I find that the charge nurses cannot hire or fire employees, or effectively recommend such action and their assignment of work to aides is routine in nature or depends on the medical needs of a patient. They are therefore not supervisors as defined in Sec- tion 2(11) of the Act. New Fern Restorium Co. 175 NLRB 871; Madeira Nursing Center, Inc., 203 NLRB 323; Pikeville Investors, Inc. d/b/a Mountain Manor Nursing Home, 204 NLRB 425. Employer takes the position that if the charge nurses constitute an appropriate unit," the relief Reg- istered Nurse, Mrs. Gascoigne, should be included therein. Mrs. Gascoigne works for Employer on a part-time basis. As Florida Law requires that Em- ployer have a Registered Nurse on the property sev- en days a week, she has been working on the week- ends. She occasionally works on other shifts. When the Director of Nurses was absent because of illness, Mrs. Gascoigne replaced her in that position. While she otherwise serves as a charge nurse, she also reviews the conditions of patients at both sta- tions and gives patient treatments which may not be given by the LPN's. As she makes, patient care deci- sions and ,gives patient treatment on the basis of her advanced education, I find her to be a professional employee and therefore excluded from the unit. Morton Goodman (home administrator) and Lorna Richardson (director of nursing) have "the authority to hire and fire employees, and J find them to be super- visors as defined in the Act.