Beverly Manor Convalescent Centers

BEVERLY MANOR CONVALESCENT CENTERS Beverly Enterprises d/b/a Beverly Manor Convales- cent Centers and United 'Steelworkers of Amer- ica, AFL-CIO-CLC. Case 7-CA- 16071- " - 28 June 1985 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 20 September 1978 the Regional Director for Region .7 issued a Decision and Direction of Elec- tion in which he found appropriate a unit of full- time and regular part-time food service employees, maintenance employees, laundry employees, house- keeping employees, Licensed Practical - Nurses_ (LPNs), nurses aides and orderlies, physical", ther- apy aide and ward clerk and, central supply em- ployee at the Respondent's Petoskey, Michigan fa- cility. The Respondent filed a timely request for review, and on 16 October 1978 the Board denied the request for review. Thereafter, on 1 December 1978, the. Regional Director issued a Supplemental Decision and Certi- fication of Representative in which' he overruled the Respondent's objections to an election; held 18 October 1978 and certified the Union. The, tally',of ballots showed 31 votes cast for and 22 against the Union, with 1 challenged ballot. On .4 June 1979 the Board granted the General Counsel's Motion for Summary Judgment, finding that the Union, was duly certified and ordered the Respondent to 'bar- gain with the Union.' On petition for enforcement of the Board's , 4 June 1979 Order, the United States • Court of, Ap- peals for the Sixth Circuit issued a decision deny= ing enforcement and remanding the case to tlie Board for further findings concerning the authority of LPN charge nurses to "independently assign' and direct the work of aides and orderlies within their wings" and to reassess, as necessary, the placement of the central supply clerk in the unit.2 The court accepted -the Regional Director's findings concern . ing the LPNs' other alleged indicia of supervisory status. On remand the Board solicited position statements from the parties and on 30 September 1982 issued a supplemental decision reaffirming the findings of the Regional Director regarding the status of LPN charge nurses, concluding that these employees were properly included in the unit, and thus finding it unnecessary to reconsider the supply clerk's inclusion in the bargaining unit.3 - 1 242 NLRB 751 (1979) 2 661 F 2d 1095 (6th Cir 1981) 3 264 NLRB 966 (1982) 943 On 10 February 1984 the court issued a second remand order 'with the -following procedural in-' structions: - - • It is the order of this court that the cap- tioned cause be remanded to the Board with specific instructions that the Board, immediate- ly remand the matter, to the Regional Director. The Regional .Director shall review the record of the proceedings leading -to the September 20, • 1978 Decision and Direction of Election and shall order any further proceedings deter- mined necessary to enable the Regional Direc- tor to reconsider inclusion of the LPN charge nurses and the supply, clerk in the bargaining unit, by making specific findings on the fol- lowing questions:. - 1. - Do LPN activities • concerning patient' care involve - independent professional judgement? If not; LPNs are 'properly `included within' the bargaining unit."' - ` 2. If 'so, is that independent judgment exercised in the interest of the LPNs' `employer?4. Accepting the -court's remand. instruction as the law-.of • the case,, the. Board on 5 March, 1984 , or- dered 'that ' the proceeding be remanded to,-the ken - gional Director: for Region 7 for. "all- - additional . action ; and findings- specified by • the - opinion of rthe court.". Thereafter, the Regional-Director reviewed the record, of the proceedings, -concluded that. no. further. proceedings were ;required ,;ilandmade -addi tional findings.of fact and conclusions. of.law, -as re-,° quired by the,. court's ,order. On - 5.- A,pril ,1984 the Regional .Director issued. the, attached , Report,. Re-.; sponse, and Recommendation on Remand:•from the Sixth Circuit Court of Appeals. In his report, the Regional Director found, first,,that LPNs, perform tasks involving patient. care, including, the assign- ment ' and direction, of aides and orderlies , , that are technical in nature, :involving, the use of independ- ent judgment: Second; the Regional 'Director con- cluded 'that , ' in exercising, that independent judg ment, "thetLPNs.at Beverly Manor are not aligned with management but with-employees:" Thus, the Regional ' Director . concluded - that, ;the . LPNs at, Beverly Manor are not supervisors and are proper- ly included in the bargaining unit. The Regional Director proceeded to consider- ation of the central supply clerk's placement in the unit. Although an additional analysis' of this issue was unnecessary in light of his recommendation that the LPNs be found not to be supervisors, the Regional Director determined that, assuming ar- guendo that the LPNs were supervisors, he would 4 727 F 2d 591, 593 (6th Cir 1984) 275 NLRB No. 131 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that the central supply clerk should be includ- ed in the unit because of an overriding community of interest with other service and maintenance em- ployees. On issuance of the Regional Director's report, the Respondent filed exceptions and a supporting brief. The Board has considered the report and the record in light of the exceptions and brief and in light of the court's remand instructions and has de- cided to affirm the Regional Director's rulings, findings, and conclusions. We reaffirm the Certifi- cation of Representative issued in Case 7-RC- 14989 and our previous Order in Case 7-CA- 16071.5- ORDER' The National Labor Relations Board affirms its Decision and Order issued in this proceeding on 4 June 1979 (reported at' 242 NLRB 751), and orders that the Respondent, Beverly Enterprises d/b/a Beverly Manor Convalescent Centers, Petoskey,- Michigan, 'its officers, agents, successors, and as- signs, shall take the action set forth therein. 3 Member Hunter notes that he did not participate in the earlier deci- sions of the Board in either the present case or the underlying representa- tion case APPENDIX Regional Director 's Report, Response, and Recommendation on Remand from Sixth Circuit Court of Appeals 1. HISTORY OF THE CASE On August 14, 19, and 20, 1978, pursuant to my order, a hearing was held in Cases No. 7-RC-14989 and 7-RC- 15008 to determine the appropriate bargaining unit and to resolve other possible issues. Thereafter, on September 20, 1978, based upon the formal hearing record, I issued a Decision, Order, and Direction of Election, which con- cluded, inter alia, that the Employer's charge nurses were statutory employees and should be included in the unit and that the central supply clerk should also be in- cluded in the unit. In an election held on October,18, 1978, a majority of the employees - in the unit designated the Petitioner as their representative for the purposes of collective' bar- gaining, and on December 1, 1978, I. issued a Supplemen- tal- Decision and Certification - of Representative. The Employer refused to bargain' with the Union on the grounds that the unit was inappropriate in that- it includ- ed the central supply clerk and the charge nurses, and on March 12, 1979, based upon charges filed by the Union, a complaint alleging a• refusal to bargain issued. Based upon the Counsel for the General Counsel's Motion for Summary Judgment, the-Board on June 4, 1979 issued a Decision and Order requiring the Employer to bargain with the Union. Beverly Manor Convalescent- Centers, 242 NLRB 751 (1979). Review and enforcement proceedings then followed in the Sixth Circuit Court of Appeals, with the Court on October 8, 1981, remanding the case with instructions to "review the record of the proceed- ings leading to the September 20, 1978, Decision and Di- rection of Election" to make certain specific findings on two questions: 1. Do LPN' activities respecting patient care in- volve independent professional judgment? If not, LPNs are properly included within the bargaining unit. 2. If so, is that independent professional judgment exercised primarily in connection with patient care, not in the interest of his or her employer, or it is exercised in the interest-of his or her employ- er?2 On September 30, 1982, the Board issued a Supplemental Decision and Order, at 264 NLRB 966, reaffirming that the LPNs are nonsupervisory. Thereafter, further proceedings' followed before the Sixth Circuit Court of Appeals. By order decided and filed 'on February 10, 1984, the Court remanded the case to the Board with directions to remand to the Regional Director (1) to "review the record of the proceedings leading to the September 20, 1978, Decision and Direc- tion' of Election," and (2) to "order any further proceed- ings determined necessary to enable the Regional Direc- tor to reconsider inclusion of the LPN charge nurses and supply clerk in the bargaining unit, by making specific findings on" the question already set out, above. Beverly Enterprises, v. NLRB, 727 F.2d - 591 (6th Cir 1984). By order dated March 5, 1984, the Board remanded the case to me "for all additional actions and findings specified by the opinion of the court." The Employer requested the opportunity to brief the issues raised by the remand, which I granted, plus two short extensions of briefing time, which I also granted. The parties subsequently filed supplementary briefs with me-, which I have carefully considered. II. THE RECORD Following a review of the record of the proceedings, I conclude that the voluminous record is more than ample to permit a full consideration of the question regarding the inclusion of these employees- in the bargaining unit. No further proceedings are thus required.3 I therefore i Licensed Practical Nurses (hereinafter LPNs) also referred to as charge nurses - , 2 Beverly Enterprises, d/b/a Beverly Manor Convalescent Centers v NLRB, 661 F 2d 1095-(6th Cir 1981) 2 The Respondent urges that the record be reopened to permit evi- dence to be introduced on the questions raised by the Court in its remand and to raise the question of changed conditions I have re-examined the existing voluminous record and find that these issues were more than ade- quately addressed at the heanng. Respondent makes no offer of proof as to what facts would be adduced at a re-opened heanng, or what impact they would have on the issues on remand The re-opening of a hearing even in view of the time lag present herein, or perhaps, because of it, is an unusual event It surely does not effectuate the purposes of the Act to Continued BEVERLY MANOR CONVALESCENT CENTERS make the following additional findings of fact and con- clusions of law, together with a full explication of the reasons therefore, as required' by the Court's Order, based also upon the Court's own findings and upon a review of the'record evidence. III. CHARGE NURSES Respondent Employer, in its Brief on Second Remand, urges that the LPNs be found to be supervisors because they assure that certain tasks are performed and patients are tended to by ensuring proper staffing and assigning aides to meet patient care needs by selecting aides to train newly hired aides, by evaluating aides, and by ad- ministering correction through warnings and counseling. The character of the bulk of these activities has already been directly analyzed by me and by the court. The Court found that there was a reasonable basis in the record as a whole to support the finding that LPNs could not effectively recommend disciplinary action, such as discharge, nor effectively recommend the reten- tion or reward of employees and that any LPN authority to adjust schedules was routine. The only task raised by the Employer not previously addressed by the Court is the training of new aides. New aides are placed in a unit and then assigned to work along with an experienced aide who periodically reports on the trainee's progress to the LPN. In addition, there is available an in-house training program for aides through the Director, of Nurses. Any role the LPNs play in the training of aides has thus been previously ad- dressed by the discussion and findings concerning their. evaluations, as these reflect the trainee's progress. The crux of the issue of concern to the Court and on which it seeks my analysis is quite narrow: it is limited to an examination of the operative factoi that is involved in the exercise of LPN discretion when directing and as- signing aides . As the Court stated: "[Our] concern is not with the Board's assessment of the evidence in this case respecting these kinds of supervisory activity." Rather, the Court was concerned that a fuller analysis of the LPNs authority be made consistent with the congression- al directive that the Board should avoid "applying the definition of `supervisor' to the health care professional who gives direction to other employees in the exercise of professional judgment, which direction is incidental to the professional's treatment of patients and thus is not the exercise of supervisory authority in the interest of the employer." H.R. Rep. No. 93-1051, 93d Cong, 2d Sess. 7 (emphasis added). Put otherwise, when such direction occurs as contingent and accessory to the exercise of professional care, Congress concluded it was not the ex- ercise of authority motivated by the employer's interest. re-open a record without adequate justification No such justification has been proferred Accordingly, the request is denied Respondent, in its brief, also urges that the record be re-opened on the issue of unit employ- ee turnover since the original hearing This argument can be countered in various ways; for present purposes it is sufficient to point out that such.a re-opening would fall well outside the terms of the Court's remand, which only permits me to "order any further proceedings determined necessary to enable [me] to reconsider inclusion of the LPN charge nurses and the supply clerk in the bargaining unit , by making specific findings on the following question 11 1 945 Technical Status It is my conclusion based upon the record and many Board cases, that LPNs in general, and these LPNs in particular, are technical-not professional-employees. As technicals, they perform work of a technical nature involving the use of independent judgment and the exer- cise of specialized training. Where speaking specifically of LPNs, their "licensure is official recognition of their technical competency and proficiency in providing im- portant and necessary nursing care." Barnert Memorial Hospital Center, 217 NLRB 755, 777, 781 (1975); see gen- erally Otis Hospital, Inc., 219 NLRB 164, 165 (1975). LPN Duties A large amount of the LPNs time is spent in matters other than assigning employees, evaluating, giving verbal correction, and performing other quasi-supervisory acts. This is obvious from the ratio of nurses to that of aides and orderlies, their supposed supervisees; it is from 1:2 to 1:4, at the most. Daily schedules are posted which list specific patients, requiring particularized medical treat- ments which are to be administered on each shift. The job descriptions and testimony indicate that it is the LPNs who are themselves directly responsible for pre- paring and passing medications, effecting specified treat- ments, feeding patients, passing trays, cleaning, charting, and reporting on patients' conditions, and generally help- ing on the floor. All of these are non-supervisory, patient care tasks. Thus, in issue is the supervisory status of employees who spend the large part of each day providing direct patient care and incidentally oversee employees in the performance of duties, which are routine or which arise directly from patient care needs. The facts that I initially found and which were subse- quently adopted by the Court in its initial decision, indi- cate that the LPNs at Beverly Manor are engaged in but routine superintendents of other employees in meeting patient care needs. Even in cases not involving health care institutions, the assignment of tasks, particularly of a routine nature, does not of itself ' confer supervisory status. See, e.g. Towne Plaza Hotel, 258 NLRB 69, 80 (1981); J. J. Newberry-Co., 249 NLRB 991, 991 (1980); Highland Telephone 'Cooperative, Inc., 192 NLRB 1057, 1057-58 (1971); Commercial Fleet Wash, Inc., 190 NLRB 326, 326 (1971). - - Outside the health care area, it has also been held that occasional correction of the manner in which work is performed does not elevate an employee to supervisory status. See, e.g., :J.J. Newberry Co., 249 NLRB 991, 992 (1980). In' addition; within the, health care field, the Board has held that the mere making : of anecdotal re- ports, see, e.g., Mount Airy, Psychiatric Center, 253 NLRB 1003, 1008 (1981); Madeira Nursing Center, 203 NLRB 323 (1973), or performing a-minor admonitory role, see, e.g., Pine Manor, Inc., 238 NLRB, 1654, 1655 (1978) is not evidence of supervisory authority. Other cases have held that there must be more than mere verbal correction in order for participation in disciplinary action to confer su- pervisory status. See, e.g., Valley Hospital, Ltd., 220 NLRB 1339, 1340 (1975); Wing-Memorial Hospital Assoc., S46 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD 217_ NLRB 1015, 1016 (1975).. The LPNs handling of grievances is similar to their role in the disciplinary pro- cedure; more that of -a counselor to the employees with whom they work. The LPNs rely. on their personal rela- tionship-to the employees to resolve problems informally. Those.that they are able to resolve concern personal ,conflicts-or a request by an employee for a change of ,schedule. or- of •assignment. Those problems that they are ,unable 'to -resolve informally,are reported to the Director -of. Nurse's, or'Administrator for them to take action. The -LPNs have no more than a minor reportorial role' in these' procedures, not,amounting, to making effective rec- ommendattons. This facet is insufficient to elevate them to supervisory status. See Eventide South;_-239 NLRB 287, 288•(1978). -The hearing record contains a. great deal of evidence on the LPNs' authority to call in employees or to make transfers -iii order to, assure' adequate coverage of the floors: As.to this,'! 'found that the LPNs had no'ability to -'make -permanent transfers, that call'tns were effected in-'a predetermined-and-approved manner and that 'both functions we`re -of a routine-nature. 'Of all the authority actually3egercised at Beverly' Manor by the LPNs, assur- ing coverage adequate to- meet the needs of the patients is one most intrinsically related to the..providing of•pa- tient care. Adequate -staffing is a matter that is normally set by state law. The fact' that-it-may involve permitting an :employee to work overtime is incidental " to the main concern: to'comply with the law and `to ,assure adquate care.' Where as` here 'a; policy has been established, where approval is:elicited, and where action is taken only pur- suant to formulated' policy, there is very little in the action of call=ins and, certainly,, also of temporary trans- fers,. "that ,could conceivably constitute acts on behalf of .the Employer which 'are not taken as a result of the ex- igencies , of : patient .care. Similarly, letting , employees leave ,earl y,_.particularly- when, an employee: becomes ill, is San . act, which has ,obvious connections with -patient well ,;being and requires- minimal exercise,- of, discretion Eventide South, 239 NLRB 287(1978). Finally, •it_should be noted that there is no evidence that the 'nurses` have the :authority-,to order an employee to report,to.work or .that an -employee who refuses, can be disciplined:; Id: at 287. Rather, there was 'evidence only,of_actions pursued by ,the nurses resulting from their expertise 'in meeting patient -care needs: The final area which-was, explored.'was the 'LPNs ' role in evaluating employees-.`It-is only=when evaluations are •-tlie medium by which personnel actions, such, as, promo- Lion; rewards; or -discipline; are' effectively:recomniend- ed, that they become -a: factor ,pointing 'tot supervisory status. Sutter Community Hospitals of Sacramento, Inc., 227 NLRB 181, 192-' (1976j:-'At•'Beverly Manor, the LPNs who,perform, evaluations make no, recommenda- tions,: effective•,or otherwise,,in;their evaluations.. In fact, ;it-±is_unclear!what -purpose the ;evaluations:•are,, to,^ serve, since; ' as noted ; by the Court; - if a- negative evaluation is made, .then the Employer- carries out -an -investigation of its. own. See generally, • Sunset Nursing Homes, ,Inc., 224 NLRB 1271; 1273'(1976):-( Direction of Employees - The Board has held that in deciding whether health care professionals-and this analysis has been applied as well in' the case of technical employees engaged in pa- tient care, such'as LPNs-are supervisors, it is necessary to look at' traditional standards for determining supervi- sory status. See'Sutter Community Hospital of Sacramento, Inc., 227 NLRB 181, 192 (1976). These-include the abili- ty to make effective reommendations to hire, fire, trans- fer, or discipline, to modify work schedules or to author- ize overtime. Id.; Newton- Wellesley Hospital, 219 NLRB 699, 700 (1975)'. If there is no exercise of such superviso- ry powers; or if exercised irregularly or sporadically, this is an insufficient basis to establish supervisory status. Me- harry Medical College, 219 NLRB 488, 490 (1975); Meer Supermarkets, Inc., 142 NLRB 513, 517 n. 8 (1963). On the other hand, if it is found that some authority exists which in other contexts would be found to bestow supervisory status, the qualitative nature of this authority must-be subjected to',a 'second-step analysis in order to determine' the `ends for ' which it ' is exercised. Thus, acts which ' would ordinarily be supervisory may, in the health care context, indicate no more than the exercise of technical or 'professional judgment. "[T]he Senate indi- cated that a health care professional does not exercise au- thoriny in the, interest of an employer when that individ- ual's, `d'irect'ion` to- other employees is the `exercise of professional judgment' incidental 'to the professional's treatment of patients." Sutter, supra, at 192. In following this dictate of congressional intent, it may be' that the Board` has,at times, 'explained its rationale for deciding that certain powers exercised by health care professionals or technicals did 'not constitute supervisory au'thority'by accentuating a dichotomy between that au- thority exercised on behalf of the employer and that ex- ercised` in 'the interests of patient care. -See, e.g. Mount Airy Psychiatric Center, 253 NLRB 1003 (1981); Eventide South, '239 ^ NLRB 287, 289 '(1978); Sutter Community Hospitals of Sacramento, Inc., 227 NLRB 181, 192 (1976); •cf. ,Milwaukee Children's Hospital Assoc., 255 NLRB 1009 (1981);'Meharry Medical College, 219 NLRB 488, 490 (1975). It is obvious, however, that Congress and certain- ly the Board did not intend a mutually exclusive dichoto- my.:Indeed, as set out by Congress, this test is merely another way of asking the question put in any case in- volving the issue of supervisory status: Does the individ- ual identify with the interests of the employer, rather than ,the interests of employees. -In.other -words, it is the exercise of independent judgment allied with the Em- ployer's:interests, and not greater skill or responsibility, which sets apart a:person as a supervisor. See NLRB v. Lauren Mfg.. Co., 712 F.2d 245,` 113 LRRM 3552, 3554- 55 (6th Cir. 1983). Indeed,, it -would be a rare health care 'provider- which could' employ _ a . nursing staff which acted' to' the 'detriment of ,the • patients in order to act in the interest of. the employer or -who would. tolerate a :work force dedicated-to spiting the employer in order to satisfy the patients' needs. Rather, there is naturally a co- incidence of interests so that by catering to patient needs and -providing necessary care, the employer's.broader in- terests are , also advanced. Obviously, even rank and file - BEVERLY MANOR CONVALESCENT CENTERS employees, and not only supervisors, are employed to work for the advancement of an employer's interests. The Board has more directly addressed this state of af- fairs and set out the proper analysis in those cases in which it has required a finding of supervisory status to be based on the exercise of more authority than actions incidental to patient care. These have required additional personnel authority which more directly promotes the interests of the employer and which.is not motivated by patient care needs: See, e.g., French Hospital Medical Center, 254 NLRB 711, 713 _(1981); Newton-Wellesley Hospital, 219 NLRB 699, 699-700 (1975). Such analysis embodies the express congressional intent that when di- rection of other employees is given in connection with treatment of patients that this is not the exercise of super- visory authority in the interest of the employer. Such an analysis is imbued with the reality of the nurs- ing home situation in general and that which exists at Beverly Manor in particular. The LPNs, by virtue of their specialized training, are called to take on responsi- bilities beyond those of aides. For the most part, nursing homes exist to provide routine caretaking services of pa- tients. When skilled direct patient care is necessitated it is the LPNs at Beverly Manor who provide such services. These services entail the majority of their work ' tasks. Thus, the three to four nurses assigned to each shift di- rectly care for over 100 patients preparing and passing medications, giving treatments, contacting doctors for in- structions or to consult on problems, updating patients charts, and filling in as needed. The supervision which takes place concerns aides' work 'quality and this "is not supervision within the meaning of the statute." NLRB v. Hillview Health Care Center, 705 F.2d 1461, 113 LRRM 2337, 2340 (7th Cir. 1983). Such authority is that of the industrial straw boss or leader, employees with modest authority but considerable skill, who are routinely ex- cluded from the definition of supervisor. Id. ' The LPNs' activities can be instructively- compared with those of the Director of Nurses, whose only duty is to oversee all patient care and to supervise all aides and -nurses, including direct observation of aides. As there are only aproximately ten aides scheduled on a shift, the Di- rector of Nursing can effectively supervise and observe them with minimal reliance having to be placed on the LPNs'. Unfortunately for the decision maker, at these lower echelons, there is a thin line between lead status and stat- utory supervisory status: The analysis of supervisory status is never easy and becomes particularly difficult when, as with LPNs, it involves "paraprofessionals whose leadership status is narrowly circumscribed to work force direction, who themselves engage in manual duties primarily, but who are cast in a position of respon- sibility by virtue of special training and/or experience." St. Mary's Infant Home, 258 NLRB 1024, 1038-39 ( 1981). As a result of this state of affairs, the Board has been re- luctant to confer supervisory status on charge nurses or to give an expansive definition to their powers. To do so would be at the expense of employees who are funda- mentally engaged in rendering patient care-either by themselves or through aides, id. at 32, and more identi- 947 feed with those they direct on the lower tiers of the hier- archy. -The- authority of the LPNs at Beverly Manor would be insufficient in the industrial setting to render them su- pervisors. As is 'the case of leaders in manufacturing plants, the LPNs at Beverly Manor have no authority to fire, hire, or effectively recommend such actions; they do not grant vacations or leave time. At most they give general direction, train 'employees, and seek to maintain product quality control. See Dura- Vent Corp., 257 NLRB 430, 431-32 (1981);- see also Cobra Ltd. d/b/a Cobra Gunskin, 267 NLRB No. 52, slip op. at 7 (1983) (ALJD); Advanced Mining Group, 260 NLRB 486, 507 (1982), en- forced, 112 LRRM 2793 (D.C. Cir. 1983); Ralston Purina Co., 260 NLRB 314 (1982); Injected Rubber Products Corp:, 258 NLRB 687 (1981); See also Magnolia Manor Nursing Home, Inc., 260 NLRB 377, 385 (1982). LPN duties which are performed at night when most of the patients are sleeping do not demonstrate that any addi- tional supervisory authority in terms of personnel action is exercised by them. Little happens at night in a care center setting; the staff performs a holding action, the LPNs keep the premises and those there from harm but do not take action apart from those tasks to facilitate the employer's mission. - That these LPNs would not be supervisors even in an industrial setting suggests they are not supervisors merely because their employer's product is that of pro- viding health care services to people rather than machin- ing widgets. Congress' mandate, that any. ostensible au- thority exercised by health care providers must be scruti- nized to determine by what it is motivated, sets up an an- alytical scheme which requires the Board not to deprive individuals of the protection of the Act when their ac- tions are not motivated by an alliance with management but grow out of professional or 'technical concerns for patient well being. See, e.g., Milwaukee Children's Hospi- tal Assoc., 255 NLRB 1009, 1015 (1981); French Hospital Medical Center, 254 NLRB 711, 713 (1981); accord, Wedgewood Health Care, 267 NLRB No.' 86 (1983). It is precisely this motivation that demonstrates that the LPNs at Beverly Manor are not aligned with manage- ment but with employees. Other factors which buttress this conclusion are the large amount of work time spent by the LPNs themselves providing direct patient care, and, as noted above, the unreasonably low supervisor to employee ratio which would otherwise exist. See, e.g., Washington Post Co., 254,NLRB 168, 174 (1981); J. J. Newberry Co., 249 NLRB 991, 991 (1980). . . , For the foregoing reasons, I conclude that the LPNs at Beverly Manor are not supervisors and are,properly included within the bargaining unit.. - IV. SUPPLY-CLERK Both Court remands seek- additional analysis on the unit placement'of'the supply" clerk. The remands suggest that such analysis need'be made only if I determine that LPNs are not to be included in the unit (i.e., if I con- clude them to be supervisors). Since I reached the oppo- site conclusion, such analysis is facially unnecessary. However, since the -Board or the Court may disagree 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with me on the LPN supervisory status issue, it appears provident to make a further examination, on the assump- tion, arguendo, that the LPNs are-ultimately found to. be supervisors. This I now do.4 - Having concluded in my initial decision that the LPNs should be included in the unit,-it was unnecessary for me to decide whether the.supply clerk should also be includ- ed because of her community of interests with the LPNs, on the one hand, or the aides and orderlies,, on the other;_ an affinity finding with the total, unit complement suf- ficed. Accordingly, I can not rely, on my original deci- sion to satisfy the new analysis. -Therefore, it becomes, necessary to reconsider the unit placement determination, assuming, arguendo, that the LPNs are determined super- visors. , The supply clerk performs some tasks related to busi- ness office clerical functions, such as substituting for the administrator's secretary, but these tasks are not suffi- cient to make her an office clerical rather than a service and maintenance clerical.5 The record does not disclose whether the- supply- clerk's' contacts witl^'the LPN" are greater than those with the ward clerks and orderlies, or whether the opposite is tine. In her-daily visits to the nursing stations, -she presumably has contact with 'both groups. As already noted in thy' original decision, she wears the same uniforms as do the ward aides and order- lies, and receives a similar ' wage and same benefits. The- LPNs are technical -employees, while the stock clerk, as well as the.other' unit employees, are not. While -a unit encompassing technicals' as Well-ii non=technicals ,in the- health care industry, as here, has been found to be appr'o•- priate; a dichotomy 'of units based upon' technical and non-technical status is also appropriate Barnert Memorial' Hospital; Center, 217 NLRB 775 (1975);. Newington Chil-' dren's Hospital, 217 -NLRB .793 (1975): In applying this .i 4 The parties did not brief this issue • . 5 This issue is in fact a closed one , as the Court, in-its original decision, accepted the Board 's (i e , the Regional Director's) conclusion that the' supply clerk is not an office clerical. " . - . distinction, the Board does not at all times examine the usual community of interest factors, -such as work con- tact; it heavily relies on technical and non-technical status. While the same issue is not present herein, the same method. of analysis applies; the supply clerk, as a non-technical, by definition, has a greater community of interests. with the other non-technicals, rather than with the LPNs, 'who are technicals. Similarly, if one assumes the LPNs to be statutory supervisors, the-supply clerk would have an overriding community of interests with her fellow- employees, -the aides and orderlies, as opposed to the LPNs, who'as supervisors would have rio right of self organization.6 I am unaware of any case wherein the Board or any court has excluded a group of employees from a bargaining unit because of an alleged greater community of interests with a _group of individuals, such as, supervisors, who are excluded from coverage in the Act. ,. Based upon these factors as well as the rationale set forth in my original decision, I conclude that the supply clerk's primary and only community of interests lies with the, -service and maintenance employees, and not the LPNs,should'the LPNs be.deemed supervisors. V. CONCLUSION' I conclude. that, the 'charge nurses are not supervisors, but that, assuming that they are, the supply clerk should be'includecl in the service and maintenance unit, because of an `overriding community of ,interests with them, rather than with the LPN charge nurses.' 6 While'a mixed unit of employees and supervisors is not unlawful, the Board 'cannot certifiy one; and neither can it compel an-employer to bar- gain in respect to supervisors . - 7 Exceptions, cross exceptions, briefs and answering briefs with respect to this report may be filed with the Board , pursuant to Section 102 46 of the Board's Rules ' and Regulations To be timely, exceptions , to this report or a brief in support of the.report , must be filed with the Execu- tive Secretary,. National Labor Relations Board, Washington, DC, 20570, on or before April 25, 1984 - . - ii-: