Brattleboro Memorial Hospital, Inc.

National Labor Relations Board - Board DecisionsNov 19, 1976

226 N.L.R.B. 1036 (N.L.R.B. 1976)

1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brattleboro Memorial Hospital , Inc. and Vermont State Nurses Association , Petitioner . Case 1-RC- 13786 November 19, 1976 DECISION AND CERTIFICATION OF REPRESENTATIVE By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On September 2, 1975, the Regional Director for Region 1 issued a Decision and Direction of Election in the above-entitled proceeding, in which he direct- ed an election in a unit of all RN's including head nurses. Thereafter, the Employer filed a timely re- quest for review of the Regional Director's action, contending, inter alia, that the head nurses were su- pervisors, and that they had engaged in objectionable activity in connection with the Petitioner's organiza- tional effort. On September 30, 1975, the National Labor Relations Board denied the Employer's re- quest for review except as it related to issues regard- ing the supervisory status of head nurses. As these issues could best be resolved through the challenge procedure, the Board amended the Decision to per- mit the head nurses to vote subject to challenge. Fol- lowing an election by secret ballot conducted on Oc- tober 2, 1975, the parties were furnished a tally of ballots which showed that, of approximately 65 eligi- ble voters, 36 cast valid votes for, and 15 cast valid votes against, the Petitioner. There were seven chal- lenged ballots, which were not determinative of the results of the election. The Employer filed timely ob- jections to conduct affecting the results of the elec- tion. The Regional Director investigated the objec- tions and, on November 18, 1975, issued a Supplemental Decision and Certification of Repre- sentative, in which he found no merit to the Employer's objections, overruling them in their en- tirety, and certified the Petitioner as bargaining rep- resentative of the employees in the unit he had found appropriate in his Decision and Direction of Elec- tion. Thereafter, the Employer filed a timely request for review. On December 23, 1975, the Board granted the request for review, and remanded the case for hearing on the supervisory status of the head nurses and the operating room supervisor, and the Employer's objections. Following a hearing held February 27, 1976, Hearing Officer Joseph A. Stu- pak, Jr., issued his Hearing Officer's report on May 24, 1976. He recommended that the Employer's ob- jections be dismissed, and that Petitioner be certified in the unit as amended by the Board, although he did not specifically resolve the supervisory status of the head nurses and the operating room supervisor. Thereafter, the Employer filed timely exceptions to- gether with a supporting brief. 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. The Board, having considered the exceptions and the entire record in this case, has decided to affirm the rulings, findings, and conclusions of the Hearing Officer and to adopt his recommendations except as modified herein. We agree with the Hearing Officer's determination that, whether or not the head nurses and operating room supervisor are supervisors within the meaning of Section 2(11) of the Act, their actions did not in- terfere with the employees' choice in the election, and we adopt his recommendation that the Employer's objections be overruled and that the Peti- tioner be certified. The record reveals that these indi- viduals limited their prounion activity to button wearing, attendance at meetings, and membership in the Petitioner. There were no solicitation efforts by, or any threats of retaliation from, the alleged super- visors. Further, the Employer firmly opposed the Pe- titioner and communicated this position to its em- ployees. Therefore, even assuming arguendo that the head nurses are supervisors, under neither of the tests articulated in Stevenson Equipment Company' can it be said that the conduct in issue unreasonably influ- enced the employees' choice.2 The head nurses and the operating room supervi- sor involved herein voted challenged ballots on the basis that they were allegedly supervisors under the Act. Since their votes could not have affected the results of the election, the Hearing Officer found that it was unnecessary to resolve their status. Although generally we approve of such disposition of chal- lenged ballots, we agree with the Employer that in the special circumstances of this case, the determina- tion of the status of the operating room supervisor and the head nurses will facilitate bargaining. Ac- cordingly, we shall determine the unit placement of these individuals. With regard to the operating room supervisor, un- contradicted testimony shows that she has the au- thority to hire, and has hired, personnel without seeking approval from higher officials, and has ap- proved a demotion. We find her, therefore, to be a supervisor within ' 174 NLRB 865 (1969) 2 Since, as discussed below, we find the head nurses to be employees who appropriately belong in the unit, we would, in any event , find that the Employer's objections on their face raise no material or substantial issues and would dismiss them 226 NLRB No. 148 BRATTLEBORO MEMORIAL HOSPITAL 1037 the meaning of the Act and shall exclude her from the unit' Contrary to our dissenting colleague, however, we shall include the head nurses in the bargaining unit for the reasons discussed below, as we find that they neither possess nor exercise supervisory authority as defined in Section 2(11) of the Act. Although each of the head nurses is said to be "in charge" of one of the seven departments within the nursing services division, they are directly responsi- ble to and work directly under the supervision of the division administrative coordinator and clinical coor- dinator. They also generally work only the day shift. While the formal job descriptions-admittedly pro- mulgated after the Union filed its petition-state that head nurses recommend promotions and dismissals, the record does not support the conclusion that any head nurse has ever effectively exercised such au- thority.' Head nurses evaluate employees in their depart- ments based on prescribed hospital policy and stan- dards, but any final action taken is determined by the nursing service office, and there is no formal pro- cedure for notifying head nurses of any action taken relative to their evaluations. Thus, we are unable to agree with our dissenting colleague that such evalua- tions or opinions are sufficient to demonstrate super- visory responsibility.' The evaluations are more in the nature of a senior, more experienced professional employee passing judgment on the work of less expe- rienced employees, and for the most part are routine and do not involve independent judgments of a man- agerial nature. In all cases the evaluations must be approved by the head nurses' superiors. Further- more, the head nurses take virtually no part in the hiring process. Final decisions are made by the Ad- ministrator coordinator or personnel director. The job descriptions state that each head nurse "is responsible for the operation of the unit 24 hours a day, 7 days a week." However, while most of the head nurses do assign the personnel in their units to particular patients, these assignments are made on the basis of the patient's needs and the employee's skill. During the evening and night shifts, such as- 3 See Wing Memorial Hospital Association , 217 NLRB 1015 (1975) "Only Carolyn Hayes, former head nurse in obstetrics , testified that she had considered herself to be the supervisor of her department She testified that she had blocked the transfer of a nurse into her unit and obtained instead an LPN whom she had requested from the "float pool " Miss Hayes also testified that she interviewed two applicants for an RN vacancy and advised the personnel director of her preference , which was honored Miss Hayes was hired under unusual circumstances with the understanding that she would stay only 6 months , and we do not regard these instances where her assertion of authority went unchallenged or her recommendations were adopted as sufficient to establish the supervisory status of the position which she formerly held or of other head nurses 5 See The Trusteees of Noble Hospital, 218 NLRB 1441 , 1443 (1975), St Rose de Lima Hospital, Inc, 223 NLRB 1511 (1976) signments are similarly made by registered nurses (RN's) serving as charge nurses, a category stipulated by the parties to be included in the unit. Staff nurses included in the unit routinely substitute for head nurses during evening and night shifts and over weekends when fewer higher-level supervisors are on duty. The personnel policy booklet states that head nurs- es should be the first level of supervision approached by those employees having grievances. However, there is no evidence that the head nurses have au- thority to adjust such grievances or that, in practice, employees ordinarily come to them with their griev- ances. Head nurses prepare long-term schedules in their departments and must make frequent alterations in these schedules. However, scheduling is a routine task, done approximately once a month, and fre- quently undertaken also by staff nurses in the depart- ment. When replacements are needed for absent per- sonnel, the head nurses obtain substitutes from lists maintained in the nursing service office. Also, when a head nurse wishes to authorize either overtime or letting an employee leave early,, this authority, con- trary to the impression stated in the dissent, is strictly proscribed and she generally first contacts one of the stipulated supervisors in the nursing service office be- fore so authorizing. Personnel seeking either leaves of absence or a re- duction in their hours will usually first approach their head nurse. However, such requests are for- warded to the personnel office, where they are grant- ed or disapproved in accordance with established hospital policy. Transfers of personnel from one de- partment to another are made by the head nurses, but only after authorization from their superiors. The Employer placed in evidence certain written reprimands signed by head nurses and issued to members of their departments. These were only is- sued, however, after the head nurses received instruc- tion from their supervisors on their issuance. In our opinion the head nurses here do not possess or exercise authority differing in any material respect from that involved in Trustees of Noble Hospital, su- pra, where the Board found head nurses to be em- ployees and included them in the appropriate bar- gaining unit. As in that case the head nurses in dispute perform their functions and duties almost ex- clusively in the "exercise of professional judgment" incidental to their treatment of patients. Their work here differs little from that of other registered nurses, and they spend the vast majority of their time in di- rect patient care. We also find significant that there are only five to eight other registered nurses normally scheduled to 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work during the day shift in the various depart- ments.' Thus, designation of the 7 head nurses, in addition to the Administrative coordinator, operat- ing room supervisor, and clinical coordinator, as su- pervisors would create a greater than 1-to-1 supervi- sory ratio among the professional employees in the bargaining unit, and the Board is inclined to place weight upon such an unrealistic ratio.' For the above reasons, we find that the head nurs- es are not supervisors within the meaning of Section 2(11) of the Act and we will include them in the unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Vermont State Nurses As- sociation and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the following unit which we herein find appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All full-time and regular part-time registered nurses employed at the Employer's hospital in Brattleboro, Vermont, including per diem nurs- es, admissions nurse, pharmacy assistant, nurse anesthetists, in-service coordinator, utilization review nurse, relief supervisors, and head nurses, but excluding all other employees, managerial employees, confidential employees, guards and supervisors as defined in the Act. CHAIRMAN MURPHY, dissenting in part: Contrary to my colleagues, I would find the head nurses to be supervisors within the meaning of Sec- tion 2(11) of the Act and would exclude them from 6 Head nurses usually work only on the day shift Charge nurses working on the other two shifts and on weekends, who are admittedly included in the unit, normally perform most of the duties of the head nurses 7Cf Pennsylvania Truck Lines, Inc, 199 NLRB 641, 642 (1972), Ridgely Manufacturing Co, Inc, 198 NLRB 860, 861 ( 1972) We disagree with our dissenting colleague that weight should not be given to this ratio because many nonunit employees work alongside of and frequently work in con- junction with unit employees The record shows that the duties and respon- sibilities of head nurses in respect to nonunit employees differs little from that which they exercise in regard to registered nurses Where , as here, the head nurses spend the vast majority of their time in direct patient care, rather than any possible supervisory duties with respect to nonunit person- nel, their status within the unit is not thereby affected Moreover , we note that even including the nonunit personnel working on the day shift, as our dissenting colleague suggests , would result in a ratio of approximately I supervisor per 2 employees Adelphi University, 195 NLRB 639, 644 ( 1972), Westinghouse Electric Corp, 163 NLRB 723, 726-727 (1967) the bargaining unit. I find their duties to include a degree of supervisory authority commensurate with that possessed by the head nurses in The Trustees of Noble Hospital, supra, in which I also dissented and would have found the head nurses to be supervisors. As in Noble, a head nurse has constant responsibil- ity for the operation of her unit, schedules worktime, and informally resolves vacation conflicts. She regu- lates overtime when the patient's condition necessi- tates it, contacting the nursing service office for prior permission only in those rare instances where the ab- sence of scheduled oncoming personnel requires that a nurse remain overtime for an entire shift. She regu- larly stays beyond the day shift to give directions to oncoming personnel. She makes written evaluations of the department employees with recommendations as to merit wage increases. With one exception, every wage increase recommended by a head nurse for an eligible nurse has been granted.' This contrasts with St. Rose de Lima Hospital,' where I joined in finding the head nurses to be em- ployees. There the head nurses had no authority to approve overtime and had no responsibility for sche- duling. Although they prepared employee evalua- tions for the purpose of wage increases, these were frequently neither requested nor submitted until after the director of nursing had made a determination on whether to give a raise. In the instant case, I find that the record contains even more evidence than in Noble that the head nurs- es possess and exercise supervisory authority. Here, the former head nurse in obstetrics testified that she possessed full supervisory authority and actually ex- ercised authority relating to hiring, adjusting griev- ances, and calling in substitutes when regular person- nel were absent. The other head nurses conceded that their official job description, which they them- selves had prepared, and which stated, inter aba, that they recommended and approved promotions, dis- missals, and salary increases, was correct in all mate- nal respects. Finally, I do not think that my colleagues' charac- terization of the supervisory ratio is realistic. It must be recognized that the head nurses' supervisory au- thority extends far beyond just the other RN's work- ing on the day shift. At a minimum, the supervisory ratio should include the LPN's and other nonunit personnel on the day shift, creating a total contingent of 20. Furthermore, the record indicates that the head nurses schedule and evaluate the approximately 8 Evidence was introduced regarding two other instances where increases recommended by the head nurse were not granted However, both of these involved employees already at the top of their wage scale and therefore ineligible for any merit increase '223 NLRB 1511 (1976) BRATTLEBORO MEMORIAL HOSPITAL 1039 63 employees working on other shifts in their 7 de- I conclude that the duties and responsibilities of partments . As the head nurses apparently share in the head nurses extend beyond the professional di- the supervision of these employees , the majority has rection of the employees assigned to their depart- improperly excluded them altogether from their anal- ments and involve the exercise of supervisory author- ysis of the supervisory ratio. ity as defined in Section 2(11) of the Act.