Leisure Hills Health Centers, Inc.

National Labor Relations Board - Board DecisionsApr 30, 1973

203 N.L.R.B. 326 (N.L.R.B. 1973)

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leisure Hills Health Centers, Inc. and United Steel- workers of America , AFL-CIO, CLC, Petitioner. Case 38-RC-1229 April 30, 1973 DECISION ON REVIEW By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 15, 1972, the Regional Director for Region 13 issued a Decision and Direction of Election in the above-entitled proceeding, wherein he found appropriate a unit of employees at the Employer's nursing home, excluding licensed practical nurses (LPN's) as supervisors. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's Decision on the ground, inter alia, that, in finding the LPN's to be supervisors, he made findings of fact which are clearly erroneous and de- parted from officially reported Board precedent. The Employer filed an opposition thereto. By telegraphic order dated January 9, 1973, the National Labor Relations Board granted the Petitioner'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 makes the following findings: The Petitioner requested a broad unit of employees at the Employer's Kewanee, Illinois, nursing home facility, including LPN's. The Regional Director con- cluded that the LPN's are supervisors on the basis that they responsibly direct the work of nurses aides and have an effect upon the aides' retention in employ- ment and periodic wage increases. The Petitioner con- tends that the evidence does not support these findings. We agree. The Employer is engaged in the business of provid- ing skilled nursing and convalescent care. The Employer's facility is headed by an administrator and an assistant administrator. Nursing care is the respon- sibility of the director of nursing and her assistant, both of whom are registered nurses. In the absence of the director and her assistant, a house supervisor is in charge of the facility. The director and her assistant are present on the morning shift. A registered nurse is the usual house supervisor on the second shift, and a licensed practical nurse is the house supervisor on the night shift. The LPN's employed at the Employer's facility fall into two categories: those who have fulfilled the edu- cational requirements for a license by experience, re- ferred to as "LPN's by waiver," and those who become licensed by virtue of their education, desig- nated "LPN's by education." An LPN by waiver is prohibited by state regulation from serving as house supervisor. Each LPN has approximately five nurses aides un- der her direction. At the beginning of each shift the LPN makes room assignments to aides. The aides are familiar with the work to be done and follow a stan- dard procedure for each room assigned to them. In addition to the nursing procedures they follow, the LPN's perform some duties regularly performed by aides. Any nonroutine problem relating to aides or patients is referred to the house supervisor. The LPN's have no authority to reward or disci- pline aides. Although the LPN's fill out evaluation forms on the aides assigned to them which include recommendations for continued employment and wage increases, any action on these recommendations and evaluations is based on an independent investiga- tion by admitted supervisors. Likewise, the LPN's have no authority to hire or discharge aides and any recommendations they may make for such action are independently investigated by the director of nursing and the administrator.' An LPN, when assigned as house supervisor in the absence of the director of nursing or her assistant, exercises independent judgment in the direction of the operations of the Employer's facility. Therefore, con- trary to the Petitioner's contention, the LPN regularly assigned as house supervisor on the night shift is a supervisor as defined in the Act. However, there is no showing that other LPN's have or exercise supervisory authority over the aides working with them. While the LPN's on occasion direct and assign work to aides, the record does not show that they do so in a manner requiring the exercise of independent judgment, but that such directions and assignments are made pur- suant to established procedures or are dictated by the needs of patients. Nor do they hire, discharge, pro- mote, reward, or discipline aides or effectively recom- mend such action. Upon this evidence, we conclude that such LPN's are not supervisors as defined in the ' Although LPN job descriptions as modified by the Employer after the instant petition was filed indicate that LPN's possess supervisory authority. including authority to discharge aides, the evidence shows that LPN's had never been informed that they had such authority and have never in fact exercised it Indeed , as indicated above, no actions affecting the status of employees are taken without an independent investigation by admitted su- pervisors 203 NLRB No. 46 LEISURE HILLS HEALTH CENTERS 327 Act .2 As the record shows that they have duties very similar to other employees , such as aides , who are included in the unit , it is obvious that they have suffi- cient interests in common with other nursing home employees sought to be represented herein? We shall therefore include them in the appropriate unit, as de- 2 Diversified Health Services, Inc. d/b/a Convalescent Center of Honolulu, 180 NLRB 461; Jackson Manor Nursing Home Inc. and/or Issac Mizraht d/b/a/Jackson Manor Nursing Home, Snapper Creek Nursing Home and Arch Creek Nursing Home, 194 NLRB 892. 3This case is distinguishable from Madeira Nursing Center, Inc, 203 NLRB No. 40, where we excluded nonsupervisory LPN's from a nursing home unit in accord with the petitioner 's request Here the Petitioner has requested the inclusion of the LPN' s, and no union is seeking to represent them separately . Moreover , here , as above indicated, it has been shown that LPN's have duties and interests in common with other employees in the unit sought , while in Madera the LPN's did not perform nurses aides duties as such and we found that the LPN's had a substantial community of interests separate and distinct from the broader one they shared with the employees sought. scribed below: All full-time and regular part-time nurses aides, LPN's, laundry employees, kitchen employees, housekeeping employees, maintenance employ- ees and activity employees employed by the Em- ployer at its location at Kewanee, Illinois, but excluding all registered nurses, chief cook, activi- ty director, head housekeeper, head maintenance man, head of laundry, office clerical employees, professional employees and supervisors as de- fined in the Act, and all other employees. Accordingly, we shall remand the case to the Re- gional Director for the purpose of conducting an elec- tion pursuant to his Decision and Direction of Election, as modified herein, except that the payroll period for determining eligibility shall be that imme- diately preceding the date of issuance . [Excelsior foot- note omitted from publication.]