Oak Ridge Hospital of the United Methodist Church

National Labor Relations Board - Board Decisions

Aug 29, 1975

220 N.L.R.B. 49 (N.L.R.B. 1975)

OAK RIDGE HOSPITAL
Oak Ridge Hospital of the United Methodist Church
and Tennessee Nurses ' Association, Petitioner.
Case 10-RC-10273
August 29, 1975
DECISION AND DIRECTION OF ELECTION
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on March 31 and April 2, 1975,
before Hearing Officer E. Walter Bowman. Follow-
ing the hearing and pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions and Statements of Procedure, Series 8, as
amended, this case was transferred to the Board for
decision. Thereafter, the Employer filed a 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 has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.'
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Employer contends, and the Petitioner de-
nies, that Petitioner, hereinafter also referred to as
TNA, is not a bona fide labor organization within
the meaning of Section 2(5) of the Act because it is
controlled and dominated by employers, supervisors,
and independent contractors. We find no merit in
this contention. TNA, a professional organization
whose membership is limited to registered nurses, is
affiliated with the American Nurses' Association.
TNA's bylaws provide that the association's purpos-
es, are , inter alia, "[t]o promote and protect the eco-
nomic and general welfare of nurses." In this connec-
tion, the record establishes that TNA has negotiated
collective-bargaining agreements with various hospi-
tals in Tennessee covering units of registered nurses.
The record further shows that TNA has since 1967
represented, for purposes of bargaining collectively,
' The Employer excepted to the Hearing Officer's granting of Petitioner's
motion to revoke subpenas directed toward Petitioner 's executive director
and the president of the American Nurses' Association. We find this excep-
tion without merit inasmuch as we agree with the Hearing Officer's finding
that the subpenas were overly broad and sought material not relevant to any
issue raised in this proceeding.
49
the registered nurses employed by the Employer and
has negotiated collective-bargaining agreements with
the Employer covering its registered nurses since that
time.
The executive authority of TNA is vested in a
board of directors composed of the officers of the
association 2 and eight other members elected by the
delegates to TNA's biennial convention. TNA's
"Economic and General Welfare Program," which
includes its basic collective-bargaining policy and
strategy, is developed and implemented, with the ap-
proval of the board of directors, by the Council of
Occupational Sections, a body consisting of the
chairmen of the following sections: educational ad-
ministrators, consultants and teachers, general duty
and head nurses, nursing service administrators, oc-
cupational health nurses, private duty nurses, and
public health nurses. Virtually all members of TNA
are members of one of these constituent sections.
According to the uncontradicted testimony of
TNA's executive director, Rebecca Clark Culpepper,
3 of the 13 members of the board of directors occupy
supervisory positions. However, no member of the
board of directors or the Council of Occupational
Sections is a supervisor employed by the Employer in
this case. Under these circumstances, we find con-
trary to the Employer's contention that Petitioner is
an organization in which employees meaningfully
participate and which exists in part for the purpose
of dealing with employers concerning wages, hours,
and terms and conditions of employment; and that it
has, in fact, negotiated collective-bargaining agree-
ments with employers. Accordingly, we find that Pe-
titioner is a bona fide labor organization within the
meaning of the Act.3
3. A question affecting commerce exists concern-
ing the representation of certain 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 em-
ployees consisting of all registered nurses employed
by the Employer at its Oak Ridge, Tennessee, loca-
tion, excluding all supervisors, managerial employ-
ees, and all other employees. At the hearing the par-
ties agreed to exclude from the unit all clinical
managers, assistant clinical managers, the liaison
nurse, and the certified registered nurse anesthetist.
The Employer would further exclude charge nurses
and team leaders, all of whom are registered nurses,
as supervisors, and the clinical instructor on grounds
2 These officers are the president, first and second vice presidents , secre-
tary, and treasurer , all of whom are elected at TNA's biennial convention.
Annapolis Emergency Hospital Association, Inc. d/b/a Anne Arundel Gen-
eral Hospital, 217 NLRB No 148 (1975), Carle Clinic Association, 192
NLRB 512 (1971); International Paper Company, Southern Kraft Division,
172 NLRB 933 (1968).
220 NLRB No. 9
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she supervises a secretary and that she lacks a
community of interest with other registered nurses.
The Petitioner would include these employees.
The Employer utilizes the team nursing concept of
patient care. The various patient care areas are under
the supervision of clinical managers or assistant clini-
cal managers , who are registered nurses and were
stipulated by the parties to be supervisors. The clini-
cal manager assigns each employee under her super-
vision to a team, generally composed of a registered
nurse and one or more licensed practical nurses,
nursing assistants , and nursing technicians.
With respect to charge nurses, they are responsible
for various patient care areas during the 3-to-11 p.m.
shift, when no clinical managers or assistant clinical
managers are on duty.4 They report to the nursing
supervisors. The charge nurses are paid $2 more per
shift than regular staff nurses but do not receive any
additional fringe benefits. It appears from the record
that the charge nurses spend most of their working
time involved in direct patient care as are other regis-
tered nurses. Charge nurses, however, in the course
of their professional duties, make routine employee
team assignments , assign a group of patients to each
team, may reassign an employee from one job to an-
other, and may verbally correct an employee. How-
ever, they do not have authority, as do clinical man-
agers, to hire or fire employees, to interview
applicants for employment, or to evaluate employees'
work, although a charge nurse may occasionally be
asked by a clinical manager about some aspect of an
employee's work with which the clinical manager is
not familiar. The record is also devoid of any evi-
dence that charge nurses have any authority to re-
solve grievances, set schedules, or grant time off; and
there is no evidence that they effectively recommend
action affecting other employees' terms and condi-
tions of employment. Furthermore, clinical managers
prepare budgets while charge nurses do not. In addi-
tion, while there are four full-time charge nurses,
there are also six to eight nurses who function part
time as charge nurses and at other times as staff nurs-
es. On the basis of these facts, we find that the charge
nurses' direction of other employees in performance
of routine patient care duties is solely a product of
their highly developed professional skills rather than
a indication of supervisory status. Accordingly, we
find that the charge nurses are not supervisors and
are therefore eligible to vote in the election to be
directed herein.
With respect to the team leaders, the record estab-
lishes that the team leader is usually the only regis-
Charge nurses also are appointed to serve two shifts per week in two
small patient care areas when the clinical manager is off duty and there is
no assistant clinical manager.
tered nurse on a team. Team leaders apparently are
responsible for implementing physicians' instructions
and providing direct patient care. They have less au-
thority to direct the work of other employees than do
the charge nurses. Accordingly, inasmuch as we find
that the charge nurses are not supervisors, we also
find that the team leaders are not supervisors and
shall include them within the unit.
The Employer contends that the clinical instructor
should be excluded from any unit herein found ap-
propriate on grounds that (1) she lacks a sufficient
community of interest with other registered nurses to
warrant her inclusion, and (2) she is a supervisor
within the meaning of Section 2(11) of the Act. We
disagree.
The clinical instructor is a registered nurse. She is
responsible for the continuing medical education of
all hospital personnel, primarily nurses. She holds
seminars and classes on medical terminology, new
systems of medication, and proper procedures with
respect to therapy and traction. Although her posi-
tion does not require an RN license, her knowledge
of medicine and nursing procedures are, of course,
necessary to the performance of her teaching duties.
Her office is located in the medical arts building
where some of her classes or seminars are given.
Other classes are given in the conference room of the
main hospital.
Contrary to our dissenting colleague, we cannot
agree that it is "merely fortuitous" that the clinical
instructor is a registered nurse. Obviously, her quali-
fications must be at least equal, if not superior, to
those of registered nurses who are taught or trained
by her in the performance of their professional du-
ties. In this respect they must rely entirely upon her
for information relating to new improvements in
medicine and hospital technology. Obviously, too,
the proper performance of her duties is critical to the
well-being of hospital patients and to the actual nurs-
ing functions of those nurses and other assigned to
direct patient care. As she works in close proximity
to other registered nurses and her duties do, in fact,
substantially affect patient care, we shall include her
in the unit of registered nurses.'
We find the following employees constitute a unit
appropriate for the purposes of collective bargaining:
5 We find no merit in the Employer 's contention that the clinical instruc-
tor is a supervisor because she effectively recommended the employment of
a secretary . The only witness to testify on this issue , the Employer 's person-
nel director, testified that she did not know whether the clinical instructor
interviewed the secretary but that she did recommend her. However, the
record does not establish that the secretary was hired on the basis of the
clinical instructor's recommendation . Accordingly, we find that this inci-
dent constituted at most a sporadic exercise of supervisory power not in-
volving a unit employee and therefore does not warrant a finding that the
clinical instructor is a supervisor within the meaning of Sec . 2(11) of the Act.
Adelphi University, 195 NLRB 639 at 643-644 (1972).
OAK RIDGE HOSPITAL 51
All full-time and regular part-time registered
nurses employed by the Employer at its Oak
Ridge, Tennessee, facility, including all charge
nurses, team leaders, and the clinical instructor;
but excluding the liaison nurse, certified regis-
tered nurse anesthetist, all other employees,
guards, and supervisors as defined within the
meaning of the Act.
[Direction of Election 6 omitted from publication.]
CHAIRMAN MURPHY, dissenting in part:
I agree with my colleagues that Petitioner is a bona
fide labor organization within the meaning of the Act
and that the charge nurses and team leaders em-
ployed by the Employer are not supervisors and
should therefore be included in the bargaining unit
found appropriate. However,.I do not agree that the
clinical instructor is properly included in that unit.
The record establishes that the clinical instructor's
duties are confined to conducting training programs
and seminars and that she, unlike all other unit nurs-
6 [Excelsior footnote omitted from publication.]
es, has no patient care duties whatsoever. The clinical
instructor receives a higher rate of pay and is paid on
a different schedule than unit nurses and does not
interchange with them, she does not wear a uniform
when in the hospital, and her office is located in a
separate office building where no other unit nurses
work and where no hospital patients are treated. She
is not supervised by the nursing supervisors as are
other unit nurses but by the director of education.
Moreover, the Employer's personnel director testi-
fied without contradiction that an RN is not required
for the clinical instructor position and it therefore
appears to be merely fortuitous that the jncumbent is
a registered nurse. In view of these facts, I would find
that the clinical instructor neither performs the same
job functions as other registered nurses nor shares
their terms and conditions of employment and that,
therefore, she does not have a sufficient community
of interest with other registered nurses to warrant her
inclusion in the bargaining unit.'
7 1 note that no labor organization seeks to represent the clinical instruc-
tor in a different bargaining unit. However, the parties stipulated to exclude
the certified registered nurse anesthetist and the liaison nurse , and, there-
fore , the clinical instructor is not the only registered nurse who is not found
to be a supervisor who will remain unrepresented.