The Presbyterian Medical Center

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1266 (N.L.R.B. 1975)

1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Presbyterian Medical Center and Colorado
Nurses' Association, Petitioner. Case 27-RC-4906
June 30, 1975
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, KENNEDY, 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 John F.
Sayre. 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, the case was
transferred to the Board for decision. Briefs were
filed by The Presbyterian Medical Center, herein
called the Employer, and the Colorado Nurses'
Association, herein called the Petitioner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and fords that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. The Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and it
will effectuate the purposes of the Act to assert
jurisdiction herein.
2. The labor organization' involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of . the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of all
registered and professional nurses (herein referred to
as RN's) including head nurses, staff nurses, and
clinical- specialists, and all licensed practical nurses
(herein referred to as LPN's), all of whom it
considers to be professional employees involved in
direct patient care. In the event the LPN's are found
not to be professionals, it would include them in the
same unit subject to a separate vote for RN's as to
1 The Employer declined to stipulate that the Petitioner is a labor
organization within the meaning of the Act. It contends the Petitioner's
board of directors is dominated by nurses employed in management
positions and that conflict of interest would result should Petitioner act as a
bargaining agent for the employees involved herein. We disagree. The
record does not show that employees holding supervisory positions for this
Employer, or any other, are members of the Petitioner's board of directors,
or would be involved in bargaining for a contract should the employees in
218 NLRB No. 192
whether they wish to be so included. As a "last
alternative" it is willing to represent RN's and LPN's
in separate units.
The Employer contends that Petitioner is actually
seeking a multidepartment unit because of the
assignment of RN's and LPN's to departments other
than nursing services and has failed to show that
these nurses have a distinct separate community of
interest, hence the Board should dismiss. It asserts
that, unlike RN's, LPN's are not professional
employees. In the alternative, the Employer contends
that RN's and other professionals share a community
of interest warranting a unit of many classifications it
considers professional, but excluding all nonprofes-
sionals.
The parties also disagree on the supervisory status
of certain nurses and whether employees at the
Employer's new Aurora hospital should be included
in the appropriate unit as requested by Petitioner.
The Employer is a nonprofit, eleemosynary corpo-
ration in the State of Colorado which owns and
operates a medical center in Denver, Colorado,
consisting of a general hospital which provides care
fdr injured, sick, and disabled persons, an extended
care facility, and a home for the aged. At the time of
the hearing, the Employer was constructing a
hospital at Aurora, Colorado, some 12 miles east of
the medical center and had scheduled to commence
its operation in January 1975.
Although the Petitioner contends LPN's, like RN's,
are professional employees, it argues that, in deter-
mining the appropriate unit, professional status is not
dispositive because these employees share a commu-
nity of interest based on their duties and responsibili-
ties as nurses involved in direct patient care.
The parties have stipulated that RN's are profes-
sional employees. The record indicates that they
receive extensive medical training and are licensed
by the State of Colorado. Those RN's assigned to the
nursing services department are responsible for the
total nursing care of patients. Their high degree of
skill is reflected by their license to perform all the
treatments and procedures customarily required in
nursing and in the significant responsibility they
have in assessing, planning, and directing the care of
patients. Many are members of various committees
in the hospital that develop and review nursing care
policy and in-service training programs. Most of
these nurses have served as charge nurse or team
the unit found appropriate herein choose to be represented by the
Petitioner. International Paper Company, Southern Kraft Division, 172 NLRB
933 (1968). As the record evidences that Petitioner currently represents
employees of other employers for the purpose of collective bargaining and
that those employees participate in it, we conclude that it is a labor
organization within the meaning of Sec . 2(5) of the Act. N.LRB. v. Cabot
Carbon Company and Cabot Shops, Inc., 360 U.S. 203 (1959); Walker Process
Equipment, Inc., 163 NLRB 615 (1967).
THE PRESBYTERIAN MEDICAL CENTER 1267
leader, thereby overseeing the care given patients by
other nursing personnel, and some of the more
experienced RN's have been promoted to head nurse
positions.
Depending upon individual preference and compe-
tency, the Employer may assign particular RN's to
duties in specialized clinical departments where they
are expected to utilize their professional skills in
assisting physicians or in giving specialized medical
treatments.
Other RN's are employed as instructors in the
School of Nursing. These instructors, most of whom
hold graduate degrees, regularly teach in the school's
3-year nursing program, and as a part of the clinical
instruction serve as model nurses for students to
observe by performing various duties throughout the
hospital customarily performed by regularly assigned
nurses.
The record indicates, however, that LPN's, most of
whom apparently are assigned to the nursing services
department, do not possess similar medical skills or
training, or perform the same functions as RN's.
LPN's are required to have only i year of formal
nursing education divided between academic instruc-
tion and clinical experience and, as their job
description states, they work under the direction of
an RN and provide care based on an RN's
evaluation of the patient's needs. As a result of their
limited training, they are prohibited by state law
from performing certain medical procedures or
administering- certain drugs and the Employer
further restricts the handling of certain treatments
and procedures to selected LPN's. LPN's do not
generally have significant responsibility in planning
or directing the care of patients; they are not
considered for head nurse or charge nurse positions
and seldom serve as nursing team leaders or on
hospital committees that determine policy.
Based upon the entire record we are satisfied that
the evidence does not support the Petitioner's
contention that LPN's are professional employees
within the meaning of the Act. Thus their inclusion
in the, same bargaining unit with RN's is prohibited
unless the latter are given a separate vote as to
whether they wish to be included with nonprofes-
sional employees. If the RN's were to vote no, but
both RN's and LPN's were to vote for representa-
tion, two separate units would result, contrary to the
emerging pattern of appropriate units pursuant to
recent legislation with respect to the industry.2
2 see Nathan and Mariam Barnert Memorial Hospital Association d/b/a
Barnert Memorial Hospital Center, 217 NLRB No. 132 (1975); Newington
Children 's Hospital, 217 NLRB No. 134 ( 1975); Mount Airy Foundation,
d/b/a Mount Airy; Psychiatric Center, 217 NLRB No. 137 (1975).
a :tee Barnert, supra, section entitled "Licensed Practical Nurses (LPN's)."
For the reasons set forth in the dissenting opinion in that case, Members
Kennedy and , Penello would not find a separate unit of techmcals , including
LPN's, to be appropriate.
Viewing these LPN's as technical employees, they
may appropriately be included in an all technical
unit, but such a unit is not sought here.3
In our view the record evidences that all RN's
share a community of interest entitling them to
separate representation. As nurses they are involved
in work requiring unique professional skills. Whether
assigned to nursing services, special medical depart-
ments, or as instructors in the nursing school, they
are all equally committed to the high standards of
their profession and share responsibility for insuring'
a high quality of nursing care. The record indicates
that their assigned jobs bring them in regular contact
with each other, that all regularly perform patient
care, and that their professional status gives them a
separate community of interest among themselves
which entitles them to a separate unit .4
Supervisors
The nursing services department is supervised by a
director of nursing services, an associate director,
two assistant directors, approximately six day area
supervisors, three evening-shift supervisors, and four
night-shift supervisors. The department is divided
into 18 nursing care units. Each unit has a head nurse
assigned to it and, in her absence, she appoints a
charge nurse. The nursing unit personnel made up of
RN's, LPN's, and aides is further divided into
nursing care teams with each team being assigned a
team leader.
The parties have stipulated that the director, the
associate director, the assistant directors, the day
area supervisors, evening-shift supervisors, and
night-shift supervisors, the in-service coordinator of
training in the nursing department, and the two in-
service instructors are all supervisors within the
meaning of Section 2(11) of the Act. Apart from
these approximately 20 supervisory RN's, to cover
the 21 shifts, there are about 208 RN's on the nursing
staff.
The Employer contends that -the 18 head nurses
assigned to each nursing care unit are supervisors
and that both charge nurses and team leaders,
positions normally held by RN's, are also supervi-
sors. The Petitioner disagrees.
Head Nurses. Each head nurse is required to have
at least 3 years of good nursing experience, to have
knowledge and skills in the clinical area, to be
currently licensed in Colorado, and to possess
Member Kennedy views the facts with respect to the supervision and
duties performed by the RN's in this case to be substantially different from
those presented in Mercy Hospitals of Sacramento, Inc., 217 NLRB No. 131
(1975).
4 Mercy Hospitals of Sacramento, Inc, 217 NLRB No. 131 (1975).
1268 DECISIONS OF NATIONAL
demonstrated leadership ability. The record indicates
that besides those duties usually associated with her
professional responsibilities for providing patient
care, such as continuously evaluating the overall
nursing care being rendered, the head nurse performs
certain administrative duties with respect to the
employee complement.
The record indicates that when on duty head
nurses will interview applicants for staff nurse
positions and will recommend to the director of
nursing services, ,Fern Howard, whether the individu-
al should be hired. Howard testified that no
applicant is assigned to a nursing unit over the
objections of the unit's head nurse.
Each head nurse is responsible for preparing the
annual report reflecting staff requirements and for
setting weekly work schedules, and resolves any
grievances concerning those schedules. As part of her
scheduling duties the head nurse approves vacation
requests. On occasion a staff member may request
time off and, if the head nurse agrees, the request will
customarily be approved.
Both . the director and Head Nurse Squicciarni
testified that head nurses' prepare or participate in
the preparation of the 3-month probationary period
evaluations and the annual evaluation of all nursing
unit employees. These written evaluations are used
by the head nurse to record, among other things, the
individual's level of performance, the need for
additional training, and eligibility for wage increases.
Squicciarni testified that all annual increases she
recommended have been granted but on two occa-
sions merit increases she recommended were not
granted. The record does not show the reasons for
denying these increases; the director testified that
these evaluations are the major factor in determining
whether increases are warranted, thus implying that
they are relied on. The record shows no evidence of
an increase in wages being granted when a head
nurse has recommended otherwise.
As to grievances, there is some indication that head
nurses settle these within their assigned units. They
recommend disciplinary action, which recommenda-
tions, according to Squicciarni, are generally fol-
lowed. According to the director these recommenda-
tions may include written warnings, suspension, and,
at times, discharge.
Unlike other staff nurses, head nurses may work
four 10-hour days a week, are not paid overtime, and
do not punch a timeclock. They receive a higher
salary and are responsible for recording their own
5 Sherewood Enterprises, Inc., d/b/a Doctors' Hospital, 175 NLRB 354
(1969).
6 The Employer's director of nursing services testified that the two head
nurses in the operating room do not exercise the same degree of supervisory
authority as other head nurses assigned to the nursing services department.
As the record is unclear in describing their alleged duties as statutory
LABOR RELATIONS BOARD
hours at work. Even when not on duty they are still
responsible for the effective operation of their units.
Based upon our review of the record, we are
satisfied that head nurses in addition to their
professional duties responsibly assign work, effec-
tively recommend wage increases 5 and discipline,
and settle grievances within their own nursing units,
hence are supervisors 6 within the meaning of Section
2(11) of the Act. Accordingly, we exclude them from
the unit.?
Charge Nurses. A charge nurse selected by the head
nurse is usually assigned for the evening shift and for
the night shift to direct and coordinate the patient
care activities of the unit. The record indicates that
almost all of the Employer's RN's in the nursing
services department have been assigned this duty at
one time or another and, at times, this assignment is
rotated among RN's in a particular unit to bolster
each nurse's level of experience. The record does not
show, however, that charge nurses exercise the same
authority as head nurses. There is no evidence that
the charge nurse hires or discharges, regularly settles
grievances or gives time off, sets schedules, or is
responsible for the written performance evaluations
made on each employee in the unit. At times the
charge nurse may assist in preparing a written
evaluation due to her familiarity with the particular
employee's work performance, but she does this only
when she is requested to do so by the head nurse, and
it is the latter who reviews the evaluation and is
ultimately responsible for it.
Team Leaders. As noted above, the patient care
employees on each shift are divided into teams. Each
team is led by a team leader, a position assigned by
the head nurse or charge nurse. This duty is usually
assigned to an RN and it appears that all the RN's
have, on occasion, also acted in this capacity. The
team leader's responsibilities are primarily the
coordination of the team's direct patient care, such as
insuring continuous treatment, implementing physi-
cians' orders, and assisting and evaluating care
rendered, as well as accurately recording a patient's
treatments, reactions, and changes of condition. As
in the case of the charge nurse, there is no evidence
that the team leader normally exercises supervisory
authority "in the interest of the Employer."
In our opinion the record does not support a
fmding that either charge nurses or team leaders are
statutory supervisors. We are satisfied that their
duties are generally limited to giving directions in the
performance of their professional duties and, as such,
supervisors, we shall allow these two head nurses to vote subject to
challenge.
T Contra: Wing Memorial Hospital Association, 217 NLRB No. 172
(1975). The head nurses here are more like the shift supervisors involved in
Wing Memorial in terms of duties. In Wing Memorial we included those
RN's in the category of "head nurse."
THE PRESBYTERIAN MEDICAL CENTER 1269
are not responsibilities considered supervisory within
the meaning of Section 2(l 1) of the Acts According-
ly, we shall include the RN's who perform these
duties in the appropriate unit.
Aurora Division
The Employer contends that the new hospital is
separate from the Denver medical facility because,
although governed by the same board of managers, it
will have its own director to whom Aurora employees
will be responsible, separately hire and discharge,
and determine its own manning needs. Employees
will not be interchanged and a patient going from
one hospital to the other must be readmitted. The
Petitioner asserts that the appropriate unit should
include employees at both facilities and we agree.
Although each facility will be directed by different
individuals responsible to the board of managers,
when the Aurora Division was originally conceived it
was expected that the method of operating both
hospitals would be coordinated. Henderson, the
superintendent of the Medical Center, who partici-
pated in planning Aurora and refers to Aurora as a
"wing" of the Denver facility, testified that he will
coordinate operation of the Medical Center with the
new hospital and that its director, already employed,
is also the associate director of the Medical Center.
Although the Employer contends that the Aurora
Division will develop its own manning requirements
and separately hire, the record shows that depart-
ment heads at the Denver hospital were participating
in setting up the new hospital's manning require-
ments, that the Medical Center's personnel office
would be involved in the administration of the new
hospital's personnel policies and perform certain
unspecified functions for Aurora, and that no
decision had been made, at the time of hearing, to
interchange employees which would be affected by
patient census. The record also shows that doctors
admitted to one hospital will be admitted to both and
that both hospitals will use the same ward manual
containing basic operational policies and guidelines.
Employees in Denver have been offered an oppor-
tunity to transfer to Aurora, and wages will be
similar and benefits the same.
Departments at each hospital will coordinate
operations, such as personnel, library, and food
service. The new hospital's bookkeeping, accounting,
and laundry will all be performed by departments in
the Denver hospital. In addition, certain specialized
medical services or equipment available at only one
facility will be available for use by the staff of both
hospitals.
Based on this evidence we conclude that the
Employer intends to coordinate and integrate the
operation of these two medical facilities and to
govern each hospital's labor policy similarly so that
the RN's at the Aurora Division will, in effect, share
a community of interest with RN's at the Denver
Medical Center. In these circumstances we fmd that
the appropriate unit consists of both facilities.
Employer also contends that, should the Board
find a two-facility unit, no election should be held at
Aurora until it is completely operational. It appears,
however, based on the record showing of a projected
January 1975 opening at Aurora, that by the time our
Decision and Direction of Election issues the Aurora
facility will be open and in operation.
Accordingly, we find the following employees of
the Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All registered nurses employed by the Employer
at The Presbyterian Medical Center, Denver,
Colorado, and at its Aurora Division, excluding
all other employees, guards, head nurses and
supervisors as defined in the National Labor
Relations Act, as amended.s
[Direction of Election and Excelsior • footnote
omitted from publication.]
e See also id
But see fn 6, supra