Driftwood Convalescent Hospital

National Labor Relations Board - Board DecisionsMay 20, 1975

217 N.L.R.B. 1026 (N.L.R.B. 1975)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Western Medical Enterprises , Inc. d/b/a- Driftwood Convalescent Hospital and Hospital Workers Union Local 22, AFL-CIO, Petitioner .- Case 20- RC-12365 May 20, 1975 DECISION ON REVIEW BY MEMBERS JENKINS, KENNEDY, AND PENELLO On November 22, 1974, the Regional Director for Region 20 issued a Decision and Direction of Election in the above-entitled proceeding, wherein he found ap- propriate a unit of all regular registered nurses (RN's) at the Employer's convalescent hospital, rejecting its contention that they are supervisors as defined in the National Labor Relations Act, as amended. Thereafter, in accordance with Section 102.67 of the National La- bor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision on the ground that, in finding the RN's not to be supervisors, he made findings of fact which are clearly erroneous. The Petitioner filed opposition thereto. By telegraphic order dated December 30, 1974, the National Labor Relations Board granted the Em- ployer's request for review and stayed the election pending decision on review. 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 has considered the entire record' in this case with respect to the issues under review and hereby affirms the Regional Director's finding that the charge nurses here involved are not supervisors as defined in the Act.' 1 The Employer attached to its request for review affidavits taken from seven licensed vocational nurses (LVN's) and RN's in which the affiants described their "supervisory" functions It asserts the Hearing Officer refused to permit the introduction of these statements and urges that the record be reopened to permit these nurses to testify as to the issues herein We find that the Regional Director properly affirmed the Hearing Officer's ruling, as the excluded affidavits were hearsay statements which could only have properly been introduced on the issue of-supervisory status had the nurses themselves testified at the hearing Moreover, we have considered these statements and conclude that they contain no basic facts which would require a finding that the charge nurses involved are supervisors as defined in the Act There is therefore no basis advanced for reopening the record for further evidence on the issue under review. 2 The Regional Director's findings with respect to this issue are excerpted from his Decision and Direction of Election and are attached hereto as an Appendix. In its request for review, the Employer asserts, inter aka, that daily patient assignments made by charge nurses are not routine, and that charge nurses have broad authority to reprimand aides and orderlies. The record reveals that charge nurses must adhere to established hospital proce- dures as set forth by Western Medical Enterprises in its book on patient care policy, sections of which are reviewed at staff meetings Daily patient assign- ments are routinely made based on personal observation of patient progress, Accordingly, as we have affirmed the Regional Director's unit finding, we shall-remand the case to him in order that he may conduct an election pursuant to his Decision and Direction of Election, except that the eligibility payroll period therefor shall be the one im- mediately preceding the date of issuance of this Deci- sion. [Excelsior footnote omitted from publication.] MEMBER KENNEDY, dissenting: I cannot agree with my colleagues' decision to' affirm the Regional Director's finding that the RN charge nurses at Driftwood Convalescent Hospital are not supervisors within the meaning of Section 2(11) of the Act. The director of nursing testified that the RN's, as charge nurses, have authority effectively to recommend the termination of employees,' to approve overtime, to call in employees before their regularly scheduled starting time, to send them home early, to replace aides, to evaluate probationary employees, and to reprimand employees both orally and in writing.' They prepare daily schedules when, according to their own judg- ment, new schedules are necessary. Moreover, the di- rector of nursing testified that, at the time new charge nurses and aides are oriented to their duties, and at weekly meetings, it is made clear to them that the charge nurses have the above-described authority and are the ones to whom aides should direct problems and complaints. It is only when the charge nurse cannot handle a problem that the director of nursing is con- sulted. When the director of nursing is away from the facility, the RN's make decisions on their own. on doctors' orders, and on hospital policy which requires, for example, showers to be given at least twice weekly to patients. With respect to reprimands, the record reveals that, on average, one written reprimand is issued in the hospital each month, but the record does not establish that the charge nurses have the authority, on their own, to give a personal written reprimand without the director of nursing independently reviewing the mat- ter. Although daily schedules are prepared by charge nurses, they must be in conformity with the monthly work schedule, setting out work hours for charge nurses, aides, and orderlies, which is posted by the director of nurs- ing With respect to the authority of the charge nurses on the p in and night shifts when the director of nursing is not present, the director of nursing testified, "I'm sure things have come up that they've made decisions on their own because I was not there." Such testimony, when viewed in conjunction with other evidence in the record that charge nurses must adhere to estab- lished hospital procedures, is, in our opinion, insufficient to establish that at such times they responsibly direct employees under them There was also testimony of an instance where a notice of personnel action was submitted to the director of nursing by a charge nurse reporting on an employee's frequent intoxication and requesting that action be taken to remedy the situation. We view that action merely as an instance of factual reporting and therefore not a basis for finding that charge nurses have authority effectively to recommend termination of employees 3 The record does not indicate the frequency of termination recommenda- tions One instance is given where the director of nursing terminated an employee primarily on the basis of an RN's written "Notice of Personnel Action" in which the RN reported on the employee's frequent intoxication and requested her termination 4 The record reveals that, on the average, one written reprimand is filed in the hospital each month 217 NLRB No. 183 DRIFTWOOD CONVALESCENT HOSPITAL Although the administrator and the director of nurs- ing are available to provide overall supervision of oper- ations on the day shift, it appears that during the other two shifts the charge nurses for the most part are the only persons at the facility with any authority over aides and orderlies at their stations .5 On the particular facts of this case, I conclude that the charge nurses exercise authority over the other em- ployees which exceeds the professional judgmental di- rections normally incident to the care and treatment of patients. Accordingly, I would dismiss the petition. 5 The director of nursing may be present during the early part of the p in shift. APPENDIX The Employer contends that the unit petitioned for is inappropriate on the ground that registered nurses (RN's) are supervisors . Marilyn Allen is the Adminis- traitor at the Davis facility and Patricia Butts, the Di- rector of Nurses, is the head of the nursing department. In addition to the nursing department there are sepa- rate departments for maintenance , housekeeping and the kitchen, each of which has its own department head . The nursing department consists of RN's, lic- ensed vocational nurses (LVN's), nurses aides and or- derlies, all of whom are assigned to one of two nursing stations on each of the Employer 's three shifts. Each nursing station on each shift is headed by a "charge" nurse, who may be either one of the Employer's six RN's or six LVN's. Generally speaking , the RN's, when functioning as charge nurse , are responsible for direct patient care at their station , including the admin- istering of prescribed treatments and medications. In 1027 addition, and specifically with respect to other em- ployees, they make the daily patient assignments for their shift using the monthly work schedule prepared by Butts as a guide . The patient assignments appear to be routine except when a scheduled employee is absent, in which case the charge nurse will telephone those employees subject to call . In other personnel related matters, RN's (and all charge nurses ) prepare evalua- tions of aides and orderlies , authorize overtime, al- though the necessity for such must be explained to Butts, and issue reprimands concerning improper pa- tient care procedures. The evaluations, authorized overtime and reprimands are all reviewed by Butts, however, who independently determines what action, if any, is appropriate. Butts interviews all applicants and investigates all allegations of malfeasance and makes the ultimate decisions. In general , the facts in this case correspond to those of several recent cases where it has been contended that RN's are supervisors . In the context of a convalescent hospital, the Board has consistently held that where, as here, directions to aides and orderlies are of routine nature and follow established guidelines and where, as here, all recommendations with respect to personnel action are independently investigated by a higher au- thority, there is no basis for concluding that RN's are supervisors within the meaning of the Act. Madeira Nursing Center, 203 NLRB 323 (1973); Pikeville Inves- tors, Inc., 204 NLRB 425 (1973). Based on the forego- ing and the entire record , it is concluded that the Em- ployer's RN's are not supervisors within the meaning of Section 2(11) of the Act, and, further, that they, constitute , in agreement with the parties, an appropri- ate unit.