Mountain Manor Nursing Home

National Labor Relations Board - Board Decisions

Jun 22, 1973

204 N.L.R.B. 425 (N.L.R.B. 1973)

MOUNTAIN MANOR NURSING HOME
Pikeville Investors, Inc., d/b/a Mountain Manor Nurs-
ing Home and Communications Workers of Ameri-
ca, AFL-CIO, Petitioner . Case 9-RC-9767
June 22, 1973
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, JENKINS, AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer J. Michael Fischer.
Following the hearing and pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as
amended, by direction of the Regional Director for
Region 9, the case was transferred to the Board for
decision. Thereafter, the Employer filed a brief with
the Board.
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.
Upon the entire record in this case, including the
brief filed herein, the Board finds:
1. The Employer, a Kentucky corporation, is en-
gaged in the operation of a proprietary extended care
Center in Pikeville, Kentucky. During the past 12
months, a representative period, its gross revenues
exceeded $100,000, and it purchased goods valued in
excess of $50,000 from Kentucky firms which, in turn,
purchased and caused to be shipped the same goods
directly from points outside the State of Kentucky.
The parties stipulated, and we find, that the Employer
is engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer. The Employ-
er contends, however, that the Petitioner is not a labor
organization within the meaning of Section 2(5) of the
Act. The record discloses that the Petitioner admits
employees to membership, holds regular meetings at
which employees participate and elect officers, and
that it does represent employees in matters of collec-
tive bargaining with employers. We are satisfied,
therefore, that the Petitioner is a labor organization
within the meaning of the Act.
3. A question affecting commerce exists concern-
ing representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. The Petitioner seeks to represent a unit of all
licensed practical nurses, graduate practical' nurses,
425
nurses aides, dietary aides, housekeeping maids, or-
derlies, ward clerks, maintenance helpers, activities
director and evening cook, excluding registered nurs-
es and supervisors as defined in the Act. The parties
are in general agreement as to certain classifications,
but the Employer contends that the licensed practical
nurses and graduate practical nurses are professional
employees and supervisors and should therefore be
excluded from the unit. In addition, issues remain as
to whether the day shift cook, and the maintenance/
janitor should be included in the unit.
The facts show that there are currently approxi-
mately 20 licensed practical nurses (LPN's) in the
Employer's nursing department who work under the
supervision of Lois Jones. The Kentucky statute gov-
erning LPN's defines them as people who perform
" . . . for compensation delegated acts in the care of
the ill, injured or infirm under the direction of a reg-
istered nurse or a licensed physician or licensed den-
tist; and not requiring the substantial specialized
judgment and knowledge required of the registered
nurse." I Under this statute, an individual 18 years of
age, with at least 2 or 3 years of high school, depend-
ing on his age, and who has completed a 12-month
course at an accredited school of nursing is eligible to
take the examination and be licensed as a licensed
practical nurse.2 The LPN's can administer all types
of medication except for intravenous injections which
are administered only by registered nurses; in con-
trast, nurses aides and orderlies do not administer any
medication whatsoever.
The Employer's facility operates on a three-shift
basis and has two wings or nursing units. On the first
shift, there are three LPN's and five to six aides and
orderlies at each unit; on the second, two LPN's and
four to five aides and orderlies; and on the third, one
LPN and three to four aides and orderlies. It appears
from the record that all LPN's act as charge nurses on
a rotating basis on their respective shifts and, as such,
direct the activities of the aides and orderlies. All
recommendations for hiring or disciplining of aides
and orderlies are independently investigated by the
director of nursing before any action is taken.
With respect to the Employer's contention that the
LPN's are professional employees, we are of the opin-
ion that they are not required, either by statute or by
the Employer herein, to attain that "knowledge of an
advanced type in a field of science or learning custom-
arily acquired by a prolonged course of specialized
intellectual instruction and study in an institution of
higher learning or a hospital," which is a prerequisite
1 Kentucky Revised Statute 314011(4)
2 The record shows that graduate practical nurses are practical nurses who
have completed their scholastic training and are awaiting the results of the
examination
204 NLRB No. 71
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a "professional employee" as defined in Section
2(12) of the Act. We therefore find that the LPN's are
not professional employees.
With respect to their alleged supervisory status, al-
though the LPN's serve as charge nurses on a rotating
basis, there has been no evidence that they exercise
supervisory authority over the aides and orderlies
when in such positions. Their directions are of a rou-
tine nature and follow established procedures, and all
recommendations with respect to personnel actions
are independently investigated by the director of
nursing. We therefore conclude that the LPN's are not
supervisors as defined in the Act. However, as the
record discloses that the duties of the LPN's are simi-
lar to the aides and orderlies' and that they have
interests in common with these employees, we shall
include them in the appropriate unit.4
As to the alleged supervisory status of Lacy Little,
the day-shift cook, the record shows that she works
with the consultant dietician in scheduling and pre-
paring meals. While she does direct the activities of
the four or five dietary aides who work in the kitchen,
such directions do not require the exercise of indepen-
dent judgment. Furthermore, Little has no indepen-
J For example , the record discloses that both LPN's and the aides and
orderlies may turn and feed patients and give them baths
4 See Leisure Hills Health Centers, 203 NLRB No 46
dent authority to hire, fire, or discipline employees
and any recommendations she makes in this regard
are independently investigated by the administrator
of the Employer. Upon this evidence, we conclude
that Little is not a supervisor within the meaning of
the Act and that she should therefore be included in
the unit.
With respect to the maintenance/janitor, it appears
that he was not included in the unit sought because
of his alleged supervisory status. However, the record
is clear that his duties consist of taking care of the
building, grounds, and mechanical equipment, that he
does not assign work,' and that he has no authority to
hire, fire, or recommend such action. In our opinion,
he should be included in the unit found appropriate.
We find that the following employees of Mountain
Manor Nursing Home constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All licensed practical nurses, graduate practical
nurses , nurses aides, dietary aides, housekeeping
maids, orderlies, ward clerks, maintenance/jani-
tor, maintenance helpers, activities director, day
cook, and evening cook employed by the Em-
ployer, but excluding all registered nurses and
supervisors as defined in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
5 The maintenance helpers work under the direction of the housekeeper