Greenpark Care Center

GREENPARK CARE CENTER Sol Henkind, an Individual, d/b/a Greenpark Care Center, formerly known as Willoughby Health Related Facility and Local 144, Hotel, Hospital, Nursing Home and Allied Health Services Union, Service Employees International Union, AFL-CIO and District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, Petitioners. Cases 29-RC-3134 and 29-RC-3488 August 30, 1977 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS MURPHY AND WALTHER On February 28, 1977, the Regional Director for Region 29 issued his Decision, Order, and Direction of Elections in the above-entitled proceeding, in which he found, inter alia, that the Employer's licensed practical nurses (LPNs) were supervisors. He accordingly dismissed the petition in Case 29- RC-3488, and as much of the petition in Case 29- RC-3134 as seeks a unit of technical employees at the Employer's health care center. Thereafter, in accordance with Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, Petitioners filed requests for review on the basis that, inter alia, the Regional Director, in finding the LPNs to be supervisors, departed from recently reported Board precedent. By telegraphic order dated March 30, 1977, the Board granted Petitioners' requests for review. Thereafter, District 1199 filed a brief on 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 considered the entire record in this case, and makes the following findings: The record shows that the Employer operates a nursing home and health-related facility in Brooklyn, New York. The facility consists of 12 floors, 3 of which are used as a nursing home; the remaining floors are used as a health-related facility which provides a lower level patient care service. The health care center operates on a three-shift basis. On the day shift, 7 a.m. - 3 p.m., there are four registered nurses (RNs) on duty who are undisputed supervi- sors. These include the directress and assistant directress of nursing. During this shift there is one I There was testimony which indicated that some LPNs may cover only one floor during these shifts. The number of aides and orderlies on duty during these shifts cannot be determined from the record. Aides and orderlies are apparently referred to as PCAs. 231 NLRB No. 104 LPN on each patient floor. Each nursing floor has one LPN and four or five aides and orderlies. On other floors there are fewer aides and orderlies. On the evening shift, 3 p.m. - 11 p.m., there are two RNs, and on the night shift, 11 p.m. - 7 a.m., there is one RN on duty. During each of these latter shifts, an LPN may cover as many as three floors.' The directress of nursing and her assistant have overall responsibility for patient care and nursing functions. One of their duties includes monitoring the work of the LPNs whose status is in question here. The offices of these two undisputed supervisors, like those of other RNs, are located on the first floor of the facility. The other RNs fill out required paper- work, handle doctors' visits, process complaints, and make daily rounds. RNs may also schedule, call in, or change assignments of aides and orderlies. On the evening shift, the RNs act in the capacity of assistant administrators. RNs may also perform complex nursing procedures, such as hooking up intravenous apparatus, which LPNs are not permitted to perform. The approximately 20-25 LPNs are engaged in daily patient care. They schedule routine tasks on a daily basis for the aides and orderlies who are assigned to their floors.2 They give instructions to these employees and also discuss proper care of individual patients. Instruction and orientation include, among other things, how to administer exercises or baths to particular patients. In addition to assigning and orienting aides and orderlies, LPNs also give medication and injections, dispense narcot- ics, change dressings, and administer oxygen, if necessary; they may also call doctors and make rounds. Further, they requisition supplies on a weekly basis. Testimony from LPNs indicates that they spend from 50-85 percent of their time performing nursing services. It is undisputed that LPNs do not interview, hire, discharge, or discipline employees. These functions are performed by the RNs and administrators. Job descriptions introduced into evidence at the hearing provide that LPNs are "to supervise" all nursing paraprofessionals on their assigned floors. However, the Board has long held that the existence of a job description will not preclude analysis of the facts as to whether the employee actually can or does exercise the authority therein described. We there- fore turn to the record in this case. With respect to recommendation of discipline, Administrator Pelman, a witness for the Employer, 2 RNs check these schedules on a daily basis. LPNs do not schedule the number of aides and orderlies who work nor do they schedule holidays or vacations. 753 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that the LPNs can initiate warning slips. In his testimony Pelman referred to five warning slips.3 The record reveals that of these five slips, four were signed by former LPN Blair, who Petitioners contend had greater authority than present LPNs.4 The fifth warning slip was signed by an RN as well as by an LPN, and the word "witness" appeared next to the LPN's signature. There was no showing that employ- ees had been disciplined as a result of the issuance of these five slips. Both LPN witnesses for the Petitioners testified that they did not have the authority to issue warning slips. LPN Brown testified that she reports infrac- tions and other incidents directly to an RN and it is the RN who takes appropriate action based on the reported incident. Brown did state that warning slips can lead to suspension or termination of an employ- ee. She testified that she had been present when RNs wrote up warnings and she had been asked to sign warning slips. RNs, according to Brown, write up warning slips based on what LPNs have told them, on their own observations, and on what other department employees or heads have informed them. LPN Murray stated that she had never seen a warning slip. It appears that there are two facets to the evaluation process used by the Employer. One is a detailed rating of the capabilities of aides and orderlies which is completed by the LPNs. LPNs evaluate the performance of employees on tasks such as bathing a patient or taking pulse and temperature. Apparently, these evaluations are placed in the employee's personnel file, but the LPN does not discuss the rating with the employee. In addition to this evaluation, RNs write up evaluations of aides and orderlies. These evaluations are based in part on consultations between RNs and LPNs during the former's rounds, and just prior to the actual evaluation. LPNs subsequently check the RNs' evaluations to ensure their accuracy. RNs always sign the evaluation, and the LPN who reviewed it may sign if she desires. Although these evaluations apparently can be used in deciding whether to terminate an employee, or to rehire an employee after a leave of absence, there is no evidence in the record that they have actually affected the status of employees. Moreover, the evidence is contradictory as to whether these evaluations are performed on a regular basis. With respect to the transfer of employees, the record shows that if there is an absence or emergency on a floor, LPNs may transfer an aide or orderly to :' These warning slips were never introduced into evidence. According to testimony, Blair was an LPN who was assigned to all floors operated by the Employer when the care center was first opened. The Employer did not utilize all floors immediately. Blair was also apparently paid at a higher rate than other LPNs. another floor at the request of another LPN. LPNs subsequently inform an RN of this transfer. The transfer is temporary in nature, its duration being only the time needed to assist during the emergency or absence. Administrator Pelman testified that LPNs effectively recommend permanent transfers. He referred to a document which purported to be a recommendation by an LPN to transfer an aide, who was subsequently transferred. 5 On further examina- tion, Pelman testified that the directress of nursing made the decision to transfer the aide. LPN Brown testified that she once requested that an aide be transferred from her floor, but that an RN stated that they should "see how she performs and see what happens." The aide was not transferred. Brown further testified that in one instance an aide who wanted to transfer spoke directly with an RN and not Brown. Brown learned of the request after the aide was transferred. In another example, Brown stated that she once informed an RN that an aide was performing poorly and the aide was taken off her floor although Brown did not actually recommend such action. The testimony with respect to the LPNs' power to recommend the hiring and discharge of employees is to some extent in conflict. It is clear from the record that LPNs are consulted by RNs on decisions to discharge and LPNs voice opinions on the perfor- mance of aides and orderlies. Pelman testified that LPN recommendations regarding hiring or discharge are followed by RNs. He referred to a document 6 in which an LPN allegedly recommended that a temporary employee be retained and placed on her floor. On further examination, Pelman stated that the directress of nursing made the final decision with respect to the permanent hiring of the employee. This same pattern of testimony emerged with respect to an example in which an LPN allegedly recommended the discharge of an employee. In that instance, the assistant directress of nursing made the ultimate decision to discharge the employee involved. The LPNs make no recommendations with respect to pay raises. Although there was some testimony to indicate that LPNs grant time off or sick leave, one LPN who testified stated that she referred such requests to the RNs, who made the determination, and another LPN stated she had not been told she could permit employees to go home. The Regional Director, in concluding that the LPNs were supervisors, found that LPNs "apparent- ly" have recommended, or effectively recommended, discharge of employees, may initiate warning slips 5 This document was not placed into evidence. 6 The document in question was dated February 3, 1977, which came between the two hearing dates on this matter. 754 GREENPARK CARE CENTER and transfer employees on a temporary basis. He also found that RNs "presumably" rely on LPN recommendations with respect to the evaluations they make on aides and orderlies. After careful consideration of the entire record, we conclude, contrary to the Regional Director, that the LPNs are not supervisors. We recognize, as did the Regional Director, that the record contains certain conclusion- ary statements which, at times, are contradicted by the facts presented. However, the import of the record evidence leads us to conclude that the LPNs do not possess supervisory indicia under Section 2(1 1) of the Act. As indicated, the record reveals that LPNs are primarily engaged in providing patient care and the exercise of any authority by them is routine and not the product of independent judgment. Thus, al- though LPNs may inform RNs of infractions which lead to issuance of warning slips, perform periodic evaluations of the tasks performed by employees and review those made by RNs, or temporarily transfer employees to meet exigencies at the facility, we find I Shadescrest Health Care Center, 228 NLRB 1081, 1082 (1977). " Shadescrest Health Care Center, supra, Sunset Nursing Homes, Inc., d, h/a ,North Miami Convalescent Home, 224 NLRB 1271 (1976); North Dade Medical Center. 210 NLRB 588 (1974); Pinecrest Convalescent Home, Inc.. 222 NLRB 13(1976) (Member Murphy who dissented in that case finds the instant case distinguishable on its facts); Wing Memorial Hospital Associa- that the LPNs' exercise of these duties is "fundamen- tally limited to providing routine patient care" and that they are not supervisors within the meaning of the Act.7 Recent Board decisions have found LPNs who performed functions similar to those done by the LPNs here not to be supervisors. 8 We also note that RNs are on duty during each of the shifts at the health care center, and that a disproportionate ratio of supervisors to employees may exist if these 20-25 LPNs were found to be supervisors. Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All technical employees, including licensed prac- tical nurses, employed by the Employer, exclud- ing all other employees, professional employees, guards, and supervisors as defined in the Act. [Direction of Election omitted from publica- tion.]9 10 lion, 217 NLRB 1015 (1975); Pikeville Investors, Inc.. d/b/a Mountain Manor Nursing Home, 204 NLRB 425 (1973); New Fern Restorium Co., 175 NLRB 871 (1969). 9 [Excelsior footnote omitted from publication.] 'O Local 719 intervened in all petitions on the basis of a showing of interest. 755