Albany Medical Center Hospital

ALBANY MEDICAL CENTER 485 Albany Medical Center Hospital and New York State Nurses Association, Petitioner. Case 3- RC-8289 - ,14 December 1984 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held 23 September 1982 1 and the Acting Regional Director's report recommend- ing disposition of them. The election was conduct- ed pursuant to the Decision and-Direction of Elec- tion issued by the Regional Director on 17 August. The tally of ballots shows 259 for and 303 against the Petitioner, with 100 challenged ballots.2 Following a hearing conducted on 19 through 21 July, the Regional Director for Region 3 -issued his Decision and Direction of Election referred to above and determined that, contrary to the Em- ployer's assertion, its 94 assistant head nurses and operating room charge nurses (all referred to as AHN5) 3 are not supervisors within the meaning of Section 2(11) of the Act and that they should be included in the following described unit: All full-time and regular part-time registered professional nurses, and all persons authorized by permit to practice as registered professional nurses, employed by the Employer in the nurs- ing department to perform registered profes- sional nursing, including assistant head nurses and operating room charge nurses; excluding all other employees, guards and supervisors as defined in the Act.4 The Employer subsequently filed a request for review which was denied by the Board. However, as there remained unresolved the question of whether AHNs assume supervisory authority when they substitute for head nurses, the Board directed that the AHNs vote subject to challenge. In the ensuing investigation of those challenged ballots, both the Employer and the Union acknowl- edged that, although AHNs substitute to varying extents for head nurses, they do not assume addi- 1 All dates are in 1982 Six ballots were challenged on the basis that the names of the voters casting them did not appear on the eligibility list Our disposition of the other 94 challenged ballots renders those 6 ballots nondeterminative 3 The parties stipulated that assistant head nurses and operating room charge nurses perform essentially the same duties and should be accorded the Same status 4 In view of our resolution of the challenges and the disposition of this proceeding as set forth below, we find It unnecessary to pass on the ap- propriateness of the designated unit - tional duties on these occasions. Since it had previ- ously been determined that the AHNs' regular duties do not support a finding that they are super- visors, the Acting Regional Director, on 20 Octo- ber, issued his Report on Challenges in which he found that mere substitution for head nurses was insufficient to confer supervisory status on AHNs and recommended that the challenges to their bal- lots be overruled. The Employer has filed timely exceptions to the Acting Regional Director's report in which it reas- serts its contention that AHNs' performance of their regular duties—irrespective of their substitut- ing for head nurses—compels a finding that they are supervisors. Having reviewed the record in light of the exceptions and briefs, we agree. The Employer is a 720-bed hospital that employs 3300 employees, approximately 725 of 'whom are registered nurses. The Employer's nursing depart- ment is comprised of four nursing divisions and is further broken down into nursing units. The nurs- ing department is headed by an assistant vice presi- dent of nursing and each of its divisions is headed by an assistant director of nursing. Nine supervisors of nursing and 12 assistant supervisors run the sev- eral units. Supervisors of nursing generally work the day shift while assistant supervisors work the evening and night shifts. Next in the department's supervisory hierarchy are 43 head nurses who usu- ally work the day shift. The 94 AHNs, whose status is at issue in this proceeding, work all three shifts. Those AHNs assigned to the day shift report to the head nurses on duty and the AHNs assigned to the evening and night shifts report to the assist- ant supervisors on duty. AI-INs spend an average of 50 percent of their time taking care of patients' needs and the rest of their time performing administrative tasks. AHNs are primarily responsible for ensuring that staffing requirements for subsequent shifts are met. Al- though basic schedules are prepared by computer in accordance with a staffing formula, AHNs adjust the base schedules to reflect nurses' vacation and personal days. The AHNs do have authority to grant days off so long as staffing levels are met. AHNs also have authority to request that nurses work overtime although only head nurses and nurs- ing supervisors can compel nurses to do so. Addi- tionally, AHNs initial the timecards of nurses who work overtime and those whom they allow to start shifts early or leave early. No one below the level of AHN has authority to adjust schedules, initial timecards, or otherwise affect nurses' hours of work. Additionally, AHNs have authority to issue written warnings to nurses. These warnings are re- 273 NLRB No. 75 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD viewed by and may be changed by a head nurse or supervisor. Although AHNs have no authority regarding several of the statutory indicia of supervisory status, they regularly prepare written evaluations of nurses which are given substantial weight in deter- mining merit wage increases and promotions. AHNs evaluate nurses 3 months after hire, 6 months after hire, and annually thereafter. On this basis, we find that AHNs have authority effectively to promote and reward employees working under them. In support of this conclusion, we note par- ticularly that the Employer's assistant director for nursing services stated that she would not promote an employee unless the assistant head nurse as- signed to that unit had recommended such action. Inasmuch as the statutory indicia set forth in Section 2(11) of the Act are stated in the disjunc- tive and only one need exist to confer supervisory status, we find that the vesting of authority 'in AHNs to evaluate employees and thereby to reward and promote them compels a finding that AHNs are supervisors 5 and that the challenges to their ballots must, be sustained. We also find signifi- cant the fact there is an extraordinarily low super- visor-to-employee ratio if AHNs are not supervi- sors. The record establishes that, if AHNs are found statutory employees, the supervisor-to-em- ployee ratio on the evening and night shifts would average approximately 1-to-37 and be as low as 140-to-1 in some units. Such an inordinately low ratio further supports the conclusion that they are supervisors. On the basis of all of the foregoing, .we sustain the challenges to the 94 ballots cast by AHNs, and shall certify the results of the election. CERTIFICATION OF RESULTS OF' ELECTION IT IS CERTIFIED , that a majority of the valid bal- lots have not been cast for New York State- Nurses Association and that it is not the exclusive repre- sentative of these bargaining unit employees. MEMBER ZIMMERMAN, dissenting. Contrary to my colleagues, I would, not find the assistant head nurses (hereafter referred to as AHNs) to be supervisors within the meaning of Section 2(11) of the Act. I do not agree with the majority's conclusion that because AHNs prepare written evaluations of 5. See Moon Valley Health Services, 238 NLRB 916, 925 (1978) In view of our reliance on the AHNs' authonty to evaluate employees, we need not consider whether their supervisory status is further shown by addi- tional responsibilities, such as their involvement in the issuance of wntten warnings and then- authority to adjust schedules and grant days off to employees nurses they effectively recommend them for re- wards (raises) and promotions. The record reveals that AHNs fill out written evaluation forms that are restricted to evaluating an employee's care of patients. Although these forms become part of an employee's personnel file, the record fails to indi- cate how the AHN's role in completing the forms constitutes an effective recommendation for a Pro- motion or raise. Nowhere on these forms is there a section, provision, or space for recommendations about raises and promotions. That AHNs evaluate the performance of nurses does not, without more, establish that they have the authority to effectively make recommendations concerning raises and pro- motions.' All the record shows is that, as found by the Regional Director in his Decision and Direc- tion of Election, decisions about such matters are made by several levels of authority in the nursing department beyond the AHN. Nor does Assistant Director Spath's testimony that she would not pro- mote an employee if the AHN objected establish that the AHNs effectively recommend employees for promotion. That testimony. is speculative and not probative of any pattern of action in the hospi- tal. Indeed, it implies either that AHNs make no recommendations concerning these matters, or that the AHNs' comments in the evaluation about the employee's performance play little or no part in the decision. In either case, the implication militates against a finding that AHNs effectively recom- mended action to be taken concerning the employ- ees' terms and conditions of employment. My colleagues' reliance on the low supervisor- to-employee ratio that will exist if AHNs are not found to be supervisors is also misplaced. They fail to take into account the AHNs duties of assigning employees to patients and directing those employ- ees in their professional capacity. The AHNs' prin- cipal administrative function is assignment of per- sonnel, including granting time off and approving overtime. The question is whether AHNs, in per- forming this function, exercise independent judg- ment. The record establishes that the Employer uses a basic formula for assignment which the AHNs follow. For example, in authorizing over- time, AHNs act within the standards set by the Employer; further, they cannot compel employees to work overtime. Similarly, in granting time off to employees, AHNs may do so only if the employee is entitled to leave and staffing needs can be other- wise met. As for making assignments of nurses to patients, AHNs are guided by the patients' needs rather than the Employer's employment interests. In these circumstances the AHNs' scheduling and 1 St Mary's Hospital, 220 NLRB 496 (1975) ALBANY MEDICAL CENTER 487 assigning employees does not require the exercise of independent judgment. Under these circum- stances, it is not extraordinary that a head nurse could be the only immediate supervisor of from 30 to 140 employees. 2 Wing Memorial Hospital Assn, 217 NLRB 1015 (1975) Accordingly, I would find that the AHNs are not supervisors and that any independent judgment exercised on their part was incidental to the profes- sional treatment of patients.2