Texas Institute for Rehabilitation and Research

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texas Institute for Rehabilitation and Research' and Texas Nurses Association, Petitioner. Case 23- RC-4279 March 4, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on various dates before Hearing Officer Bernard D. Getto. Following the hearing, by letter dated October 29, 1975, the Acting Regional Director for Region 23 informed Petitioner of his decision to dismiss the petition because the showing of interest gathered in support of the petition was tainted by the involvement of head nurses who, in the judgment of the Acting Regional Director, were supervisors within the meaning of Section 2(11) of the Act. Thereafter, Petitioner filed a request with the Board for review of the Acting Regional Director's dismissal of the petition and, on February 4, 1976, in a Ruling on Administrative Action, the Board granted the request for review, reinstated the peti- tion, and directed the transfer of this case to the Board for decision. Thereafter, the Employer filed a brief and the Petitioner filed a brief supplementing that filed in support of its request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and fmds that they are free from prejudicial error. They are hereby affirmed. On the entire record of the case, including the briefs, the Board makes the following findings: 1. The Texas Institute for Rehabilitation and Research (TIRR) is a health care facility engaged in the rehabilitation of severely handicapped persons of all ages. It is incorporated as a not-for-profit institution in, and licensed by, the State of Texas. During the last calendar year, TIRR received in excess of $250,000 in patient fees. During the same period of time, it purchased and received directly from outside the State of Texas, at its Houston, Texas, location, goods and supplies valued in excess of $50,000. We find that TIRR is engaged in commerce within the meaning of the Act and that the purposes of the Act will be effectuated by the assertion of jurisdiction herein. 2. The Employer refused to stipulate that Peti- tioner is a labor organization within the meaning of the Act, on the ground that Petitioner's board of directors is dominated by supervisors. The record does not, however, establish which particular indivi- duals on Petitioner's board of directors are supervi- sors as that term is used in Section 2(11) of the Act. Moreover, even if certain individuals on Petitioner's board of directors are assumed to be supervisors, there is no evidence that any such supervisors work for the Employer. Oak Ridge Hospital of the United Methodist Church, 220 NLRB 49 (1975). Rather, the record shows that Petitioner exists in part for the purpose of dealing with employees concerning wages, hours, terms, and conditions of employment. Peti- tioner is, we find, a labor organization within the meaning of Section 2(5) of the Act. 3. A question of representation affecting com- merce exists concerning certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and 7 of the Act. 4. Petitioner seeks to represent a unit of all registered nurses, including head nurses, employed by TIRR at its main facility and annex, both in Houston, Texas. The Employer contends, initially, that the unit sought is inappropriate because (a) TIRR and Baylor College of Medicine are together a single employer and the requested unit fails to include other registered nurses employed throughout the Baylor College of Medicine, and (b) the unit fails to include all other professional employees employed at TIRR. The Employer, in the latter respect, does not seek reconsideration of the Board's determina- tion in Mercy Hospitals of Sacramento, Inc., 217 NLRB 765 (1975), that registered nurses generally constitute an appropriate unit unto themselves. Rather, the Employer contends that sufficient differ- ences exist between rehabilitation and acute care facilities to justify a different treatment of nurses' unit requests when the facility involved, unlike the facilities in Mercy and its progeny, is a rehabilitation center. We reject both contentions. Although the record does demonstrate an affiliation between TIRR and Baylor, the record does not warrant the conclusion that TIRR is, standing alone, other than a single independent employer. It is governed by a board of trustees of which only 1 member in 16 is, simulta- neously, a member of the board of trustees of Baylor. TIRR, a separate nonprofit corporation, is separately housed, in two facilities, both owned by TIRR. The board of trustees of TIRR appoints an executive director who is, "for those duties that entail the functions of [TIRR] and care in research and The Employer's name appears as amended at the heanng in this case. 228 NLRB No. 56 TEXAS INSTITUTE FOR REHABILITATION teaching" responsible to the board of trustees of TIRR. Administrative operation of TIRR resides in an associate director of administration, paid by TIRR, who has no formal connection with Baylor. TIRR and Baylor have separate personnel depart- ments. Although some 100 employees of Baylor do work at TIRR, they are, apparently, hired by Baylor and Baylor is reimbursed by TIRR for the services they perform. TIRR hires its own employees, has a separate budget and, from an operational standpoint, its own supply, maintenance, laundry, receiving, purchasing, and food services departments. There does not appear to be any involvement by Baylor in the labor relations policies of TIRR. Separate retirement and other benefits plans exist, and TIRR adopted and distributed a policy statement opposing unionization of its employees without any apparent involvement of Baylor. In terms of the unit sought here, the record adequately demonstrates only one registered nurse being employed by Baylor-Dr. Fuszard, the director of nursing at TIRR. She is, however, responsible to TIRR's board of trustees and not Baylor's. We, therefore, conclude that TIRR is the employer of the employees involved herein and that the petition is, therefore, not deficient in its failure to encompass other registered nurses em- ployed by Baylor. Nor is it deficient because of its exclusion of other professional employees employed by TIRR. While we do not assert that the differences between institutions devoted to long-term rehabilitation and other types of health care facilities are negligible, our decision in Mercy Hospitals of Sacramento, supra, to find appropriate units composed exclusively of registered nurses was based on a number of consider- ations we find equally applicable to the kind of institution involved here. Registered nurses at TIRR, like those found in Mercy Hospitals and cases relying upon it, must, pursuant to state requirements, pass a licensing examination and maintain their licenses; significant aspects of their duties may not be delegated to other nursing personnel; they are required to be on duty 24 hours a day and are, in the main, responsible to a department whose separate status is a requirement of accreditation, the depart- ment of nursing. The decision in Mercy Hospitals also relied on the exclusionary representation pattern of registered nurses across the country, both prior to and at the time of the debate surrounding the question of appropriateness of registered nurse units, patterns which the Board had, even prior to the health care amendments, acknowledged.2 No evi- dence was presented on the record which tends to undermine these considerations. 2 See, e.g, Doctors' Hospital of Modesto, Inc., a wholly owned subsidiary of National Medical Enterprises, Inc., 193 NLRB 833 (1971). 579 Accordingly we find that a unit limited to regis- tered nurses employed by TIRR is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. The Employer would exclude from this unit "head nurses," on the ground that they are supervisors within the meaning of Section 2(11) of the Act. The Acting Regional Director, after conducting a hearing on the petition, administratively dismissed the petition on the ground that such head nurses were statutory supervisors, and their participation in Petitioner's organizational campaign consequently tainted the petition filed herein. Upon careful examination of the entire record in this proceeding, we conclude the Acting Regional Director erred. We are concerned here with approximately five head nurse positions, two of which were not filled at the time of hearing, and one "Assistant Director- Clinical," Roberta Eisman.3 Structurally, the depart- ment of nursing is headed by Director Fuszard. Three individuals are formally listed as reporting to her-Eisman, a director of in-service, and an assistant director of administration, the latter posi- tion filled, at the time of hearing, by a day shift supervisor. There are two additional shift supervisors to cover evening and night shifts. The head nurses work at one of five stations of TIRR, each station, apparently, set up according to the type of impair- ment with which patients are afflicted. (Station 5 is also the TIRR annex.) There are approximately 36 staff nurses completing the registered nurse comple- ment. TIRR also employs some 150 nurses aides and 15 licensed vocational nurses. The description of the head nurses' duties and responsibilities given by the Employer's witnesses, most notably Director of Nursing Fuszard, contrasts sharply with that provided by the two head nurses and two staff nurses testifying on behalf of Petition- er. According to Dr. Fuszard, head nurses, who receive approximately 10 percent more pay than staff nurses, spend only about 10-20 percent of their time in patient care activities, decide whether employees should be retained upon completion of 3- and 6- month probationary periods, prepare staffing sche- dules, have authority to transfer employees, alter work schedules, grant time off, authorize leaves of absence, and, on the basis of annual evaluations, determine whether employees receive pay increases. In addition, according to Dr. Fuszard, head nurses advise her of their projected equipment and staffing needs toward the end of each year; and, without independent investigation or subsequent alteration, 3 But see fn. 7, infra. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those recommendations are forwarded, as the nurs- ing service budget, to TIRR's board of trustees. The testimony of Dr. Fuszard, relative to the duties and responsibilities of head nurses, is, for the most part, supportive of that of Head Nurse Stephaney (station 2) who, the Petitioner stipulates, is a statutory supervisor.4 With regard to the status of the assistant director- clinical, Eisman, Director Fuszard testified that she has authority to discipline employees, place them on probation, terminate or effectively recommend termi- nation, assign and direct the work of the nine specialists and clinicians she "supervises," grant time off, approve leaves of absence, and interview and hire new employees. It is uncontroverted that Eisman has, on occasion, filled in for the director of nursing during the latter's absence from TIRR, attends supervisory and administrative meetings, and re- ceives approximately $4,000 more in salary than the staff nurses at TIRR. Head Nurse Keniston testified, on behalf of Petitioner, that approximately 75 percent of his time is devoted to direct patient care and that there was very little change in his duties upon assumption of his head nurse role in December 1974. He does not make job assignments since staff RN's work indepen- dently and are aware of their responsibilities, has never adjusted a grievance or been told that he has such authority, nor has he ever called an off-duty employee to report to work. Although he initials the timesheets of employees on his station, this action is, according to him, routine and the timesheets are filled out by the employees themselves. He has never transferred an employee, never hired or participated in an interview of one. He testified that the 3-month evaluation he fills out on probationary employees represents a restatement of his responses to oral requests by the director of nursing on how a particular employee is "working out." On three separate occasions he requested the director to discharge a nonprofessional employee. The director, he thinks, finally did. When he was a staffnurse, he told another employee to leave work, on the assumption that staff nurses, as such, have such authority. When asked for his recommendations concerning two employees on his station who had been fighting, he recommended that one be retained. Both were terminated. He has "counseled" other employees who are not staff nurses. He has filled out a termination evaluation but so have charge nurses 4 Stephaney was not involved in the organizational campaign and, consequently, her status is not relevant to the "taint" issue presented herein. who sometimes are licensed vocational nurses. Upon being asked by an employee for a change in hours, he called the nursing office for approval, but employees can and have gone "over his head" and made such requests directly to the nursing office. Without encapsulating the lengthy record in this proceeding, the testimony of Head Nurse Baxter and Staff Nurse Clayton, located, respectively, on sta- tions 5 and 1,5 is consistent with that of Keniston with respect to, most notably, the amount of a head nurse's time spent in direct patient care, as opposed to any other duties in the interest of the Employer; the similarity between head nurses and staff nurses in terms of their functions; and the degree to which whatever authority is vested in head nurses is exercised with respect to other registered nurses in the unit sought here. The bulk of the head nurses' duties are, as the preponderance of the evidence adduced here reveals, related directly to patient care activities. Minimal "supervision" of other registered nurses, as opposed to licensed practical nurses and nurses aides, is demonstrated in the record, and whatever responsi- bilities head nurses may have with respect to the latter employees do not appear to arise from factors other than head nurses' professional qualifications. Vis-a-vis staff nurses, the head nurses appear only to be senior employees whose experience is relied upon by the Employer to more effectively fulfill its patient care functions, as the absence of orientation of or instruction to the head nurses about additional "supervisory" duties would tend to establish. See The Trustees of Noble Hospital, 218 NLRB 1441 (1975). That head nurses may "counsel" or place on an undefined "probation," or evaluate other employees, particularly when those employees are nonunit employees, see Adelphi University, 195 NLRB 639, 644 (1972), is clearly not dispositive of their statutory status. Cf. Valley Hospital, Ltd., 220 NLRB 1339 (1975); Doctors Hospital, 217 NLRB 611 (1975). Because the preponderance of evidence reveals that head nurses spend most of their time in functions indistinct from staff nurses, exercise little, if any, directional role with respect to other unit employees, and perform supervisory related functions, with respect to nonunit personnel, which either evolve only from their status as senior professional employ- ees or involve little utilization of independent S At the time of this hearing, station I had no head nurse. TEXAS INSTITUTE FOR REHABILITATION 581 judgment, we conclude the heaa nurses are, with the exception of Head Nurse Stephaney,s statutory employees.? With regard to the status of Assistant Director- Clinical Eisman, her testimony reveals a similar contrast in the description of her duties and responsibilities from that provided by Director Fuszard. Eisman testified that she was not given any orientation or job description concerning any addi- tional duties she would have to assume upon becoming the assistant director-clinical and her duties did not, in fact, substantially change after appointment. She does not, she testified, adjust grievances, transfer personnel, authorize overtime, or set the hours or direct the work of other clinical specialists, whom she stated are not responsible to anyone but Director Fuszard. It is, however, clear that Eisman receives a substantially greater salary than other registered nurses in her department, whom she has, on occasion, evaluated, is coequal, at least in title, with the two other assistant directors, and has, on more than one occasion, been placed by 6 See fn 4, supra That Stephaney is stipulated to be a supervisor does not determine, per se, the status of the other head nurses First, her testimony is not supported by that of the other head nurses Second, although it may appear unusual for an employer to specifically authorize a particular individual to perform "supervisory" functions and for that individual to thereupon so conduct himself or herself, at the same time that the employer fails to so authorize other individuals similarly titled and for those individuals not to exercise sufficient authority in the employer' s interest to Director Fuszard in complete charge of the nursing department. On these bases, particularly her substitu- tion for Fuszard, we conclude that Eisman is a supervisor. In view of the foregoing we remand this proceeding to the Regional Director for reexamination of the previous finding that the petition herein was tainted by the involvement of head nurses in its filing. In the event the Regional Director concludes an election upon the instant petition may be held, he is authorized to conduct such election in the unit found appropriate herein at the earliest time deemed appropriate by him. ORDER It is hereby ordered that the above-entitled matter be remanded to the Regional Director for Region 23 for further appropriate action. mark them statutory supervisors, our careful review of this record convinces us that such is the case herein r The record reveals that TIRR employs two additional head nurses in its operating room and clinic The record is substantially devoid of any evidence relative to their responsibilities In the event the Regional Director, upon the reexamination of the taint question ordered herein, concludes an election should be directed, these two head nurses shall be voted subject to challenge