Beverly Enterprises d/b/a Beverly Manor Convalescent Centers

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beverly Enterprises d/b/a Beverly Manor Convales- cent Centers and United Steelworkers of Amer- ica, AFL-CIO-CLC. Case 7-CA-16071 September 30, 1982 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On September 20, 1978, the Regional Director for Region 7 issued a Decision and Direction of Election in the above-entitled proceeding in which he found appropriate the unit sought by Petitioner, one of all full-time and regular part-time food serv- ice employees, maintenance employees, laundry employees, housekeeping employees, Licensed Practical Nurses (LPNs), nurses aides and order- lies, physical therapy aide and ward clerk and cen- tral supply employee employed at Respondent's Petoskey, Michigan, facility. The Regional Direc- tor rejected Respondent's contentions that LPN charge nurses should be excluded as supervisors within the meaning of Section 2(11) of the Act and that the ward and central supply clerk is a clerical, who does not share a sufficient community of inter- est with others in the unit. Thereafter, in accord- ance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, Respondent filed a timely request for review, and, on October 16, 1978, the Board denied the request for review. A representation election was conducted on Oc- tober 18, 1978. The tally of ballots furnished the parties after the election showed 31 votes cast for and 22 against the Union, with I challenged ballot. Respondent filed timely objections to conduct af- fecting the results of the election. The Regional Di- rector conducted an investigation, and, on Decem- ber 1, 1978, issued his Supplemental Decision and Certification of Representative in which he over- ruled Respondent's objections and certified the Union. Subsequently, by letters dated December 28, 1978, and January 18, 1979, the Union requested that Respondent meet for purposes of collective bargaining, and Respondent refused. Thereafter, the Union initiated unfair labor practice charges which culminated in the Board's Decision and Order finding that Respondent, on or about De- cember 28, 1978, and all times thereafter, refused to bargain with the Union as the exclusive collective- bargaining representative of all the employees in the unit found appropriate and ordering it to bar- gain upon request.' ' 242 NLRB 751 (1979). 264 NLRB No. 128 On October 8, 1981, the United States Court of Appeals for the Sixth Circuit issued its decision in this proceeding, 2 wherein it denied enforcement of the Board's Order and remanded the case to the Board. The court accepted the Regional Director's finding that the LPNs' exercise of authority to "in- dependently call in extra help, approve overtime, approve absences, and release employees early" was routine and involved no independent judg- ment. The court also accepted the Regional Direc- tor's finding that the LPNs' participation in the processes of evaluating and disciplining aides and orderlies, and exercise of such authority is "purely routine, involving no independent judgment."3 The court disagreed, however, with the Regional Director's analysis of LPNs' authority to "inde- pendently assign and direct the work of aides and orderlies within their wings." The court directed the Board to reexamine the record and determine whether the LPNs exercise independent profession- al judgment in discharging their patient care re- sponsibilities, and, if so, whether such judgment is exercised in the interest of the employer. Specifi- cally, the court expressed concern that the Region- al Director may have accorded nonsupervisory status to LPN charge nurses solely because their ac- tivities in assigning and directing employees was in connection with patient care. Accordingly, we have carefully reviewed the entire record in the representation proceeding, and, for the reasons dis- cussed below, we affirm the Regional Director's ul- timate conclusion that Beverly LPN charge nurses are not supervisors. In applying the definition of "supervisor" to per- sonnel in the health care industry, we recognize that they perform certain duties predominately in the exercise of professional or technical 4 judgment 2 661 F.2d 1095 (6th Cir. 1981). 3The General Counsel and Respondent have filed statements of posi- tion. In its statement, Respondent urges the Board to reconsider these findings. The court states, however, that "these findings have warrant or support in the record and will not be disturbed." Accordingly, our recon- sideration of the Regional Director's findings has been limited to LPN authority independently to assign and direct the work of aides and order- lies within their wings. 4 We note that the LPNs at Petoskey are not "professional employees" as defined in the Act, but rather are technicals. Both technical and pro- fessional employees perform work requiring the use of independent judg- ment and specialized training. As we noted in Nathan and Miriam Bar- nerr Memorial Hospital Association. d/b/a Barnerr Memorial Hospital Center, 217 NLRB 775, 777 (1975), technical employees are those "who do not meet the strict requirements of the term 'professional employee' as defined in the Act but whose work is of a technical nature involving the use of independent judgment and requiring the exercise of specialized training usually acquired in colleges or technical schools or through spe- cial courses." Thus, similar considerations to those we discuss in evaluat- ing the judgments rendered by professional employees are applicable to examining the judgments of technical employees. Accordingly, though strictly speaking technical employees exercise judgments based on their technical expertise, we find appropriate, as did the court, to refer to the "independent professional judgment" exercised by technical employees. 966 BEVERLY MANOR CONVALESCENT CENTERS incidental to treatment of patients. Their function in assigning employees to particular patients and di- recting their work is often more the product of technical skills than of responsibility in carrying out an employer's personnel policy. Thus, we have in the past found that head nurses and charge nurses serve basically as "team leaders" or "source persons" who exercise no real authority in the in- terest of the employer. 5 Congress has noted our approach with approval in enacting the 1974 NLRB health care amendments, stating that "the Board has carefully avoided applying the definition of 'supervisor' to a health care professional who gives direction to other employees in the exercise of professional judgment, which direction is inci- dental to the professional's treatment of patients, and thus not the exercise of supervisory authority in the interest of the employer."6 In a broad sense, nearly every task of assignment and direction a health care employee undertakes in connection with patient care, because it facilitates the mission of his or her health care employer, is in the interest of that employer. Consequently, to bring the Board's evaluation of these functions in line with traditional standards of supervisory status applied outside the health care field,7 we have re- quired that a finding of supervisory status be grounded on more authority than actions "funda- mentally limited to providing routine patient care."8 Indeed, the court recognized that "the ex- ercise of professional judgment in directing em- ployees when treating patients is not always the ex- ercise of authority strictly in the interest of the em- ployer." However, as the court also observed, the exercise of professional or technical judgment in the direction of employees and the interest of the employer are not necessarily mutually exclusive.9 a See, eg., Sr Mary's Home, Inc.. t/a St. Mary's Infant Home, 258 NLRB 1024 (1981); Meharry Medical College, 219 NLRB 488, 490 (1975); .Vewton-Wellesley Hospital, 219 NLRB 699, 702 (1975). 6 S. Rept 93-766, 93d Cong., 2d sess. 6 (April 2, 1974). 7 See, e.g.. Morco, Inc., d/b/a Towne Plaza Hotel, 258 NLRB 69 (1981); J J. ;Newb,rry Co.. etc., 249 NLRB 991, 992 (1980); Highland Telephone Cooperative, Inc, 192 NLRB 1057 (1971) s Pinecrest Convalescent Home, Inc., 222 NLRB 13 (1976). See also St Mary's Home Inc. supra, Shadecrest Health Care Center, 228 NLRB 1081, 1082 (1977); Sutter Community Hospitals of Sacramento. Inc., 227 NLRB 181. 192 (1976); Pikeville Investors, Inc. d/h/a Mountain Manor Nursing Home, 204 NLRB 425 (1973). g 661 F.2d at 1103. As the court noted, in Avon Convalescent Center. Inc., 200 NLRB 702 (1972), the Board considered the authority of five nursing home nurses to assign and responsibly to direct employees and concluded that the nurses were supervisors In so concluding, the Board stressed that the Avon nurses were empowered to enforce important per- sonnel policies detailed in the nursing home's "Policies, Rules and Regu- lations for Non-Professional Personnel" The Board observed that "em- ployees were notified of this power of the nurses and expected to obey their directions and assignments and interpretations of the Respondent's policies and rules." Id. at 706. The Board relied on the testimony of aides that employees regarded these five nurses, including a director of nursing and an assistant director of nursing, as "superiors identified with manage- ment." Similarly, in Northwoods Manor, Inc., 260 NLRB 854 (1982), we The exercise of authority "in the interest of the em- ployer," as the term has been construed under the Act, is the employees' authority and responsibility to enforce major personnel policies, including those in connection with assignment and direction of other employees. However, when such assignment or direction is merely an outgrowth of the employ- ee's professional or technical training and is primar- ily incidental to patient care, as is often the case in the middle and lower tiers of the nursing home hierarchy, the employee is not acting in the interest of the employer.1 0 Thus, in French Hospital Medi- cal Center, 254 NLRB 711, 713 (1981), we stated that the assignment of employees by health care professionals is often a routine task and alone is in- sufficient to align the professional with supervisory employees: "the charge nurse merely matches the employee's qualifications with the immediate needs of the patients." When serving as charge nurses, the LPNs spend much of their time giving out medications, prepar- ing and administering treatments, feeding patients, passing trays, mopping spills, and charting and re- porting on patients' conditions. Each LPN charge nurse has two to five aides or orderlies assigned to her who perform such duties as bedmaking, dis- pensing water, laundry, feeding patients, passing trays, and cleaning spills. The director of nursing prepares biweekly work schedules and assigns aides and orderlies to particu- lar shifts. Then, the LPN charge nurses, after con- sulting with the nursing staff of the previous shift, assign the aides and orderlies their daily tasks on the basis of patient needs and employee abilities. LPN charge nurses, aides, and orderlies work out mutually satisfactory rest breaks and lunch hours. When a difference over staffing arises that the LPN charge nurse and her staff cannot resolve, she refers the matter to the director of nursing, the ad- ministrator, or whoever is on call." I When a new recently found charge nurses' authority to be supervisor) since their re- sponsibility required the usce if independent professional judgment and 'sent "beyond the mere exercising of patient care responsibilities" We do not find that Resprondent's I.PN charge nurses exercise comparable au- thority in the interest of the ernployer 'o See Sr. Mary', Home. Inc. supra. lounrtain Manor .ursing Home. supra at 42%-426: The 7rusree of -Noble lltopital, 218 NLRB 1441, 1442 (1975). " In the absence of both tile administrator and the director of nursing. charge nurses assigned to the first and second wings of the facility refer differences ofr opinion over staffing that arise between aides and them- selves to the third ,sing charge nurse I'hi, charge nurse is almost always an RN or a graduate nurse because the third wing serves the patients re- quiring the most medical care. Occasionally, however. LPNs are assigned as the charge nurse of the third sing Assuming that the resolution of the aforementioned staffing disputes involves the exercise of supervisory au- thority, we find that the occasional performance of that function by LPN charge nurses is insufficient to confer supersisory status under the Act See Evenrtide South. a Dviision of Geriatric, Inc. 239 Nl RB 287, 289 (1978). 967 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee joins the unit, the LPN charge nurse has the employee with the most experience spend a few days training that individual and report back to her on the employee's progress. We do not find that any of the aforenoted activi- ties of LPNs involve the exercise of independent judgment "in the interest of the employer," as dis- cussed above, within the meaning of Section 2(11) of the Act. Rather, the judgments made by the LPNs primarily foster patient care and not the per- sonnel policies of the Employer. Additionally, we note that, among the duties in assigning and direct- ing employees, LPN charge nurses are responsible for verifying employee work hours and reviewing timecards. These duties, however, are routine and, in the circumstances, clerical in nature and do not demand the exercise of independent judgment. 2 Thus, we have concluded that certain LPN ac- tivities incidental to patient care do involve inde- pendent judgment but, because such judgment is not exercised in the interest of the Employer, these activities are not supervisory. Other LPN activities, 12 See Pinecrest Convalescent Home. Inc., supra, 222 NLRB at 13. however, are undertaken in the Employer's inter- est, but are clerical and purely routine, involving no use of independent professional judgment, and therefore are likewise nonsupervisory. We thus reaffirm the ultimate conclusions of the Regional Director regarding the status of LPN charge nurses and find that these employees were properly included in the unit. It is therefore unnecessary for us to reconsider the supply clerk's inclusion in the bargaining unit. We hereby reaffirm the Certifica- tion of Representative issued in Case 7-RC-14989 and our Order in Case 7-CA-16071. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board affirms its Decision and Order issued in this proceeding on June 4, 1979 (reported at 242 NLRB 751), and hereby orders that the Respond- ent, Beverly Enterprises d/b/a Beverly Manor Convalescent Centers, Petoskey, Michigan, its offi- cers, agents, successors, and assigns, shall take the action set forth therein. 968