American Medical Services, Inc., d/b/a River Hills Nursing Home West

National Labor Relations Board - Board Decisions

Jul 29, 1982

262 N.L.R.B. 1458 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Medical Services, Inc., d/b/a River Hills
Nursing Home West and 1199W, a Subdivision
of National Union of Hospital and Health Care
Employees (RWDSU/AFL-CIO). Case 30-CA-
6528
July 29, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 30, 1981, the National Labor Re-
lations Board issued its Decision and Order' in the
above-entitled proceeding, in which it granted the
General Counsel's Motion for Summary Judgment
and found that Respondent had violated Section
8(a)(5) and (1) of the National Labor Relations
Act, as amended, by refusing to bargain collective-
ly with 1199W, a Subdivision of National Union of
Hospital and Health Care Employees (RWDSU/-
AFL-CIO), herein referred to as the Union, fol-
lowing a Board election in Case 30-RC-3946 and
the Union's certification as the exclusive collective-
bargaining representative of Respondent's employ-
ees in the unit found appropriate. On May 27, 1982,
the Board notified the parties that it had decided,
sua sponte to reconsider its Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
We hereby reaffirm our previous Decision.
This case involves Respondent's test of the
Board's certification of the Union as the exclusive
bargaining agent for a unit composed of Respond-
ent's full-time and regular part-time registered
nurses. In its answer to the complaint, Respondent
argued that the unit employees were supervisors
within the meaning of Section 2(11) of the Act,
and were therefore exempt from coverage under
the Act. Counsel for the General Counsel filed di-
rectly with the Board a Motion for Summary Judg-
ment finding that Respondent improperly sought to
relitigate issues which were raised and decided in
the earlier representation case. The Board agreed
with the General Counsel and granted summary
judgment.
Subsequently, on March 11, 1982, the Board's
Decision and Order in Northwoods Manor, Inc., 260
NLRB 854, issued. In that case, which involved a
unit of registered nurses serving as charge nurses,
the Board rejected the Regional Director's applica-
tion of the 50-percent rule developed in A. Barron
Hepburn Hospital, 238 NLRB 95 (1978), and New
l 258 NLRB 425.
York University, 205 NLRB 4 (1973). The Board
stated that where a "substantial supervisory func-
tion is a principal duty common to the entire group
of employees sought to be represented," the fact
that the function is exercised with respect to em-
ployees outside the unit is irrelevant and "the
Board must ascertain whether the supervisory
duties evidenced, even if they consume less than 50
percent of an individual's work time, are more than
merely sporadic or irregular." Relying on the inde-
pendent authority of the registered nurses to disci-
pline employees and effectively to recommend dis-
charge, the Board concluded that the charge nurses
exercised substantial supervisory authority. Because
the unit involved in this case is composed solely of
registered nurses serving as charge nurses, p.m. or
night supervisors, who direct nonunit employees,
and because the Acting Regional Director relied
upon A. Barron Hepburn Hospital and New York
University, we decided to reconsider our derision.
Although there are similarities between the fac-
tual circumstances presented in this case and those
in Northwoods Manor, we do not find Northwoods
Manor to be controlling. While the Acting Region-
al Director relied upon A. Barron Hepburn Hospital
and New York University, the 50-percent principle
was not essenital to his conclusion that the nurses
are not supervisors with the meaning of Section
2(11) of the Act. He also found that the registered
nurses do not utilize any authority or ability not
garnered from professional experience and ability
and that many of their duties involve no more than
routine matters based upon objective policy consid-
erations established by Respondent. In this regard,
the Acting Regional Director noted that if the reg-
istered nurses have doubts about whether patient
abuse has occurred, they are to take no action but
simply report the occurrence to the director. The
record discloses one exception to this policy: a reg-
istered nurse spontaneously recommended the dis-
charge of an employee for leaving a patient unat-
tended on a toilet for 2-1/2 hours. The director of
nursing subsequently approved the recommenda-
tion. The Acting Regional Director found, and we
agree, that the incident occurred under unique and
isolated circumstances and does not appear to be
indicative of the registered nurses' authority. To
the contrary, the Acting Regional Director found
that the record shows that the staff coordinator
does the majority of the disciplining in addition to
evaluating registered nurses and licensed practical
nurses. He further found that the registered nurses
have no authority to hire, grant wage increases, va-
cations, sick leave, personal leave, funeral leave, or
the authority to effectively recommend such. These
factors alone support the conclusion that the duties
262 NLRB No. 185
1458
RIVER HILLS NURSING HOME WEST
and authority of the registered nurses regarding the
grievance, disciplinary, or evaluation process is too
circumscribed to constitute supervisory authority
as contemplated under the Act. Thus, in contrast to
the facts in Northwoods Manor, there is no evidence
of a "substantial supervisory function" which rep-
resents "a principal duty common to the entire
group of employees sought to be represented." Ac-
cordingly, we conclude that Respondent, by refus-
ing to recognize and bargain with the Union fol-
lowing its certification, violated Section 8(a)(5) and
(1) of the Act.
On the basis of the foregoing, we hereby reaf-
firm our original findings, conclusions of law, and
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby reaffirms the original Deci-
sion and Order in this proceeding and orders that
the Respondent, American Medical Services, Inc.,
d/b/a River Hills Nursing Home West, Pewaukee,
Wisconsin, its officers, agents, successors, and as-
signs, shall take the action set forth in the Board's
original Decision and Order (258 NLRB 425).
1459