Vencor Hospital-Los Angeles

National Labor Relations Board - Board DecisionsAug 5, 1999

328 N.L.R.B. 1136 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1136 Vencor Hospital-Los Angeles and United Nurses As- sociation of California, National Union of Hospi- tal and Health Care Employees, American Fed- eration of State, County and Municipal Employ- ees, AFL–CIO. Case 31–RC–7181 August 5, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN Pursuant to a Stipulated Election Agreement, a secret- ballot election was conducted on July 15, 1994, in a unit of all professional employees.1 The tally of ballots shows that of approximately 65 eligible voters, 56 cast ballots, of which 4 were in favor of Petitioner, 7 were cast against the Petitioner, and 45 were challenged. The challenged ballots are sufficient in number to affect the results of the election. On July 28, 1994, the Regional Director issued a report of Challenged Ballots, Order Directing Hearing and No- tice of Hearing wherein he found that the challenged ballots raised substantial and material factual and legal issues that can best be resolved by a hearing. Pursuant to the Regional Director’s Order, a hearing was held on August 19, September 7, and September 14, 1994. On October 14, 1994, Hearing Officer Andrea P. Beaubien issued a report recommending that the Peti- tioner’s challenges to 10 ballots based on supervisory grounds be overruled, but that the Employer’s challenges to the 33 ballots cast by the registered nurse team leaders on the ground they are statutory supervisors be sus- tained.2 The Petitioner filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the record in light of the ex- ceptions and brief, and adopts the hearing officer’s rul- ings, findings, and conclusions only to the extent consis- tent with this decision. The hearing officer recom- mended that the Petitioner’s challenges be overruled be- cause the record contains no evidence that those 10 em- ployees possess any supervisory indicia within the mean- ing of Section 2(11) of the Act. We agree with that rec- ommendation for the reasons stated by the hearing offi- cer. Contrary to the hearing officer’s recommendation, however, we find for the reasons stated below that the Employer’s challenges to the ballots of the 33 registered nurses should also be overruled because the record fails to establish that these employees are statutory supervi- sors. 1 The unit is described as follows: Included: All professional employees including registered nurses, social workers, medical technologists, registered dietitians, registered pharmacists, case managers, registered physical therapists, quality review employees, director of patient re- ferral, and biomedical engineer. Excluded: All other employees, guards and supervisors as defined in the Act. 2 The two other employees whose ballots were challenged were found by the hearing officer to be ineligible to vote based on stipula- tions by the parties. FACTS Vencor Hospital-Los Angeles (Vencor) is an 81-bed licensed facility specializing in the treatment of medi- cally complex acute patients. Most of these patients have been transferred to Vencor from intensive care units at other hospitals. Vencor consists of three medical surgi- cal wings, an intensive care unit, a radiology department, an operating room, a laboratory and a pharmacy; it does not have an emergency room. Vencor employs about 225 employees including approximately 175 clinical em- ployees. Vencor’s clinical staff works 12-hour shifts to cover a 24-hour period, from 7 a.m. to 7 p.m. and from 7 p.m. to 7 a.m. Most of the nonclinical staff works five 8- hour days, with three 8-hour shifts to cover a 24-hour period. Vencor’s administrative staff is composed of an ad- ministrator, who is responsible for the overall operation of the hospital, an assistant administrator of clinical op- erations, a director of nursing, a respiratory manager, and a quality review manager. Under the director of nursing there are five house supervisors, one of whom is on duty every 12-hour shift. The house supervisors are all regis- tered nurses and function as onsite administrators with overall responsibility for the hospital’s operation during their shift. Vencor uses a team concept in its approach to patient care. One of the primary responsibilities of the house supervisor is to schedule and staff the teams which pro- vide direct patient care. On each 12-hour shift, there are usually five or six teams functioning in the hospital. The teams normally consist of a registered nurse (RN), who serves as team leader, a respiratory therapist (RT), a li- censed vocational nurse (LVN), and a certified nursing assistant (CNA). Each team is assigned a group of 8 to 12 patients by the house supervisor. Depending on the number and acuity of the patients, the house supervisor may assign more than one CNA or LVN to a team. The RN team leaders are responsible for assigning to team members the tasks that need to be performed for each patient. These assignments are based on the needs of the patient, the number of patients assigned to the team, the patient’s plan of care, and the background, skill and experience of the team members. For example, if a patient needs a level of care that an LVN can give, but not a CNA, then the LVN is assigned those tasks. RN team leaders also perform direct patient care, and conse- quently, assign themselves those tasks which only an RN 328 NLRB No. 167 VENCOR HOSPITAL-LOS ANGELES 1137 can perform.3 No team member has the sole responsibil- ity for any one patient; instead, each team member per- forms various tasks for a number of different patients and, as a group, the entire team is responsible for all of its assigned patients. The RN team leader also makes rounds of all the pa- tients assigned to the team and regularly receives reports from team members on the condition of the patients. During the course of a shift, the RN may have to adjust the team members’ assignments if a new patient is admit- ted, if a particular patient requires a special procedure, or if a patient’s condition deteriorates. In the latter case, the RN may need to replace a CNA with an LVN because a higher level of skill is needed. The RN team leader also determines when team members can go on breaks. If a team member does not show up for work or addi- tional staff is needed because of patient acuity or the number of patients assigned to the team is greater than anticipated, the RN team leader contacts the house su- pervisor who provides the additional staff. Similarly, when a team has too many staff members due to low patient count and/or high acuity, the RN notifies the house supervisor so that they can be reassigned to other areas of the hospital where needed. The duties of the house supervisors also include making rounds and au- thorizing overtime for nursing staff employees who work 1 hour or more in excess of their 12-hour shift. The house supervisors also approve vacations and conduct in- service training. It is the responsibility of the RN team leader to see that appropriate care is given to each patient. To accomplish this, the RN tells each team member what tasks need to be done. For example, a CNA’s duties may include such tasks as bed baths and recording vital signs; LVNs would be directed to perform specific procedures and/or admin- ister medications. At times, patients need special proce- dures such as a bronchoscopy or a surgical procedure and in those instances the RN gives directions to the team members as to what procedures they are to follow. If a team member is not caring for patients in accord with hospital protocol or policy or the case is substandard, the RN gives the employee proper directions and instruc- tions. In the spring of 1994, the Employer implemented a 7- step “Disciplinary Process” which includes the follow- ing: (1) tell employees what kind of performance is ex- pected, (2) talk with the employee to see if the employee understands what is expected, (3) verbal counseling: tell the employee that performance is not up to expectations, (4) verbal warning to the employee that if poor perform- ance continues, a written warning will follow; the verbal 3 The hearing officer found that RNs spend more than 50 percent of their time performing nonpatient care duties such as reassessing patient needs and assigning responsibilities to other team members. warning is documented and put in the employee’s file, (5) written warning, (6) suspension, and (7) termination. RN team leaders are authorized to initiate and imple- ment steps 1 through 4 without input from the house su- pervisor or the director of nursing. An RN can issue a written warning, step 5, only if it is reviewed and signed by the house supervisor or the director of nursing. This is done to assure that the issuance of a written warning is done properly and that it is fair for the employee.4 A suspension (step 6) must be approved by the assistant administrator of clinical operations or the administrator. These managers have input into any decision to suspend. Termination (step 7) must have administrative involve- ment and approval. The record describes an incident in which an RN team leader documented verbal counseling (step 3) given to an LVN for failing to administer medicine to a patient as scheduled and for failing to make proper and accurate entries on patients’ charts.5 This report was sent to the director of nursing, who spoke with the RN and then placed the report in the employee’s file. The record also contains an example of a written warn- ing (step 5).6 The RN team leader in a written report to the house supervisor recited that a CNA was not turning the patients properly and when this problem was called to the CNA’s attention, the CNA responded using ob- scene language. The house supervisor wrote on the re- port that the supervisor reminded the CNA to turn the patients every 2 hours and not to use improper language. The CNA responded on the document that she turns her patients every 2 hours and that she did not say anything vulgar. The report was reviewed by the director of nurs- ing who then investigated it by talking to all the people involved. Ultimately, the DON issued a written warning to the CNA. The record contains no evidence that the RN team leaders have ever recommended that employees be sus- pended (step 6) or terminated (step 7). In any event, the Employer’s disciplinary process handout states that sus- pension must be preapproved by the assistant administra- tor of clinical operations or the administrator and termi- nation “[m]ust have administrative involvement and ap- proval.” There is record testimony by the DON that when she was an RN team leader she could send a CNA home if the CNA was unable to perform the assigned 4 Contrary to the findings of the hearing officer, RN team leaders cannot issue a step-5 written warning without input from the house supervisor or director of nursing. Indeed, the hearing officer even noted in her report that a written warning must be reviewed and signed by the house supervisor or the director of nursing. 5 The hearing officer characterizes this example as a written warning (i.e., step 5). The record is unclear as to this point: the Employer’s director of nursing describes this written report as a verbal counseling (step 3), but under the Employer’s discipline schema, a verbal counsel- ing would not be sent to the director of nursing. 6 The hearing officer mischaracterized this example as a documented oral warning. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1138 tasks and thereby endangered the health or safety of the patients. She testified that she would document the prob- lem and immediately forward it to the DON, who then discussed the incident with both the RN and the CNA. The house supervisor and the RN team leader together evaluate the work performance of the RN’s team mem- bers. When a CNA is being evaluated, the LVN member of the team also has input in the evaluation. The evalua- tion also considers other factors such as attendance, work performance, and disciplinary actions, as well as any employee reports, such as a documented verbal warning, that are contained in the employee’s file. The evalua- tions have no effect on employee wages. Supervisory Authority The term “supervisor” is defined in Section 2(11) of the Act as: [A]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such ac- tion, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical na- ture, but requires the use of independent judgment. The possession of any one of the above-listed criteria will render a person a statutory supervisor so long as the exercise of that authority is not routine but requires the use of inde- pendent judgment. As recognized by the hearing officer, the Supreme Court in NLRB v. Health Care & Retirement Corp., 511 U.S. 571 (1994), examined the application of Section 2(11) in the health care field. In doing so, the Court re- jected the Board’s “patient care analysis” for determining the supervisory status of charge nurses7 and found that the Board’s use of the phrase “in the interest of the em- ployer” was “inconsistent with both the statutory lan- guage and this Court’s precedents.” (Id. at 1783.) Subsequently, but not until after the hearing officer is- sued her report in this case, the Board in Providence Hospital, 320 NLRB 717 (1996),8 and Ten Broeck Com- mons, 320 NLRB 806 (1996), analyzed the supervisory status of health care employees and found in both in- stances that the disputed nurses were not statutory super- visors. In these cases, the Board decided that it would henceforth analyze the supervisory status of nurses under the Board’s traditional test, whether the nurses in ques- tion possess any Section 2(11) authority and whether the 7 The Board’s “patient care analysis” was described in Northcrest Nursing Home, 313 NLRB 491, 493–497 (1993), as: “a nurse’s as- signment and direction of other employees does not involve the exer- cise of supervisory authority because it stems from the nurse’s profes- sional or technical judgment in the interest of patient care and is not “in the interest of the employer.” 8 Enfd. sub nom. Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir. 1997). performance of that authority requires the exercise of independent judgment.9 Under that test, the burden of proving supervisory status rests with the party asserting that status. Youville Health Care Center, 327 NLRB 237, 238 (1998); Bennett Industries, 313 NLRB 1363 (1994). Moreover, in applying this test, the Board is cautious in finding supervisory status because supervi- sors are excluded from the protections of the Act. As the Court of Appeals for the District of Columbia Circuit stated in approving the Board’s approach: when a worker is found to be a “supervisor” within the meaning of the Act, she is excluded from the NLRB’s collective bargaining protections. In light of this, the Board must guard against construing supervisory status too broadly to avoid unnecessarily stripping workers of their organization rights. Because of the serious conse- quences of an erroneous determination of supervisory status, particular caution is warranted before conclud- ing that a worker is a supervisor despite the fact that that the purported supervisory status has not been exer- cised. East Village Nursing & Rehabilitation Center v. NLRB, 165 F.3d 960, 963 (D.C. Cir. 1999). Applying this test here, we find that the Employer has failed to carry its burden of demonstrating that the RN team leaders are statutory supervisors. A. Assignment and Direction The RN team leaders have no authority to assign staff employees to teams; that is done by the RN house super- visor. Although the RNs have the authority to assign tasks to members of the team, such authority is limited in that assignments are based primarily on the patients’ acu- ity and health care needs and are given to the team mem- ber who is qualified to perform the required task, e.g., LVN or CNA. The RN’s determination of when team members can go on breaks also appears to be governed by patient needs, especially in view of the overriding responsibility of every team member for the well being of each patient. In view of the limited nature of the RN’s assignment authority, especially the fact that assignments 9 We point out that the Board’s approach to the charge nurse super- visory issue has been upheld by the Seventh, Eighth, Ninth, and District of Columbia Circuits. NLRB v. Audubon Health Care Center, 170 F.3d 662 (7th Cir. 1999); Lynwood Health Care Center, Minnesota, Inc. v. NLRB, 148 F.3d 1042 (8th Cir. 1998); Grandview Health Care Center v. NLRB, 129 F.3d 1269 (D.C. Cir. 1997); Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir. 1997). In contrast, the Third, Fourth, and Sixth Circuits have denied enforcement of the Board’s orders in similar cases, rejecting the Board’s distinction. Beverly En- terprises, Virginia, Inc. v. NLRB, 165 F.3d 290 (4th Cir. 1999); Passa- vant Retirement & Health Center v. NLRB, 149 F.3d 242 (3d Cir. 1998); Mid-America Care Foundry v. NLRB, 148 F.3d 638 (6th Cir. 1998). We shall continue to adhere to our decision in Providence Hos- pital, supra, and we respectfully decline to follow the latter circuits’ opinions. We also note that this case arises within the geographical jurisdiction of the Ninth Circuit. VENCOR HOSPITAL-LOS ANGELES 1139 are dictated by which team member has the obvious re- quired skill, we find that the team leader’s assignments do not require the exercise of independent judgment. Providence Hospital, supra at 727; Clark Machine Corp., 308 NLRB 555 (1992). The record also fails to show that the RN team leaders use independent judgment in directing the work of their team members. The directions given by the RNs vary from simple tasks, such as giving the patient a bed bath, to more complicated procedures, such as a broncho- scopy, and may also include instructions on the proper methods to be used in performing the procedure. In ad- dition, when the RN sees that patients are not being at- tended to properly, the RN will give appropriate instruc- tions. This type of direction, however, does not require the independent judgment of Section 2(11). Ten Broeck Commons, supra at 811. Rather, such directions are based on the RN’s greater professional skill and experi- ence, and the communication of such directions to a lesser skilled employee does not make the RN a supervi- sor. Providence Hospital, supra at 729. RN team leaders are not responsible for obtaining sub- stitute nurses when needed or for reassigning nurses on those occasions when the team has too many staff mem- bers. Nor do RNs authorize overtime or approve vaca- tions. All of this is done by the house supervisors. B. Discipline We also find, contrary to the hearing officer, that the record evidence does not establish that the RN team leaders either discipline team members or effectively recommend disciplinary action. The Employer relies on the ability of the RN team leaders to issue oral warnings and to recommend discipline as demonstrating supervi- sory status. As to the oral warnings, the evidence introduced by the Employer indicates that RNs issue oral warnings, which are then reduced to writing and placed in the employee’s personnel file. These reports describe incidents of unac- ceptable work performance or behavior. There is no evi- dence that RNs make any recommendations as to disci- pline when making such reports. Moreover, there is no evidence as to what role these reports play in any disci- pline that may be imposed. The reports are reviewed by the house supervisor or the Director of Nursing when a written warning (step 5 under the disciplinary proce- dure), suspension (step 6), or termination (step 7) is in- volved. The two specific incidents cited by the Employer do not demonstrate that RN team leaders utilize independent judgment in exercising disciplinary authority, or effec- tively recommend discipline. The first incident involved a CNA’s failure to turn a patient and the CNA’s use of foul language, as described above. The RN reported the incident to the house supervisor, and neither imposed actual discipline or made a specific recommendation to her superiors as to discipline.10 It was the DON who issued a warning to the CNA after a full investigation. The second incident involved an RN’s verbal counseling of an LVN in which the RN described the LVN’s defi- ciencies in administering medication, patient charting, and tardiness. This report, which contained no recom- mendation for further action, was sent to the DON, who spoke with the RN and then placed the report in the em- ployee’s file. There is no evidence that such reports submitted by RNs automatically lead to the imposition of suspension or termination or otherwise affect job tenure or status. The ability to issue oral warnings in itself does not dem- onstrate supervisory authority.11 Accord: Ohio Masonic Home, 295 NLRB 390, 393–394 (1989). We find that the Employer also failed to carry its bur- den of showing that the RN team leaders’ authority to recommend employee suspension or termination under the disciplinary procedure demonstrated statutory super- visory authority. The record contains no evidence of any instance in which such a recommendation was made and, accordingly, no evidence with respect to what resulted from such a recommendation. The record evidence therefore does not suffice to demonstrate that the team leaders had the authority to effectively recommend sus- pension or termination. See Ryder Truck Rental, Inc., 326 NLRB 796, 796 (1998) (finding no supervisory au- thority where technician would report instances where employee was doing a poor job or behaved badly, but did not make recommendation as to what should happen to employee). Although there was testimony that the RN team lead- ers have the authority to send an employee home, such authority is limited to situations involving egregious misconduct, i.e., behavior which endangers the health or safety of the patients. Such authority when limited to flagrant employee conduct is typically found by the Board not to constitute statutory supervisory authority. Washington Nursing Home, 321 NLRB 366 (1996). C. Evaluations Although the Board has consistently found supervisory status when nurses independently perform employee evaluations which lead directly to personnel actions, the Board just as consistently has declined to find supervi- sory status when nurses perform evaluations that do not, by themselves, directly affect other employees’ job status. See Ten Broeck Commons, supra at 813; Hill- haven Rehabilitation Center, 325 NLRB 202 (1997), enf. denied in relevant part 161 LRRM 2128 (6th Cir. 1999) (unpublished). 10 The RN wrote in her report, “Request further action by Admini- stration,” but did not make any recommendation as to discipline. 11 Although these written reports are considered when the employee is being evaluated, as discussed supra, the reports are only one of sev- eral factors considered and there is no evidence as to how much weight is given to these reports. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1140 Although the RN team leaders participate in the prepa- ration of employee evaluations, and their prior written reports which were placed in the employee’s file are also considered, the evaluations are not the sole product of the RN team leaders. The evaluations are also prepared by the house supervisor, who is on the hospital floor making patient rounds and thus has the opportunity to observe employees at work. LVNs also contribute to the process when CNAs are being evaluated. Other factors have a bearing on evaluations, such as employee attendance. Consequently, although RN team leaders may have some effect on the employee’s evaluation through their com- ments at the time the evaluation is written and through their prior written reports, there is no evidence as to how much weight is given to these reports in determining the appropriate evaluation. Moreover, the extent of the RN team leader’s partici- pation is unknown. The record is silent as to the nature of the RN’s input, as well as the weight given to the RN’s opinions or comments. In addition, there is no evidence that these evaluations have any, let alone a di- rect, effect on employees wages. Accordingly, the Em- ployer has failed to carry its burden to establish that RN team leaders use independent judgment to complete evaluations which have a direct correlation to the evalu- ated employee’s pay or retention, or to make effective recommendations regarding wage increases or continued employment. See Hillhaven Rehabilitation Center, su- pra. CONCLUSION Based on the above, we find that the Employer’s RN team leaders are not statutory supervisors since they do not assign, direct, discipline, or evaluate using independ- ent judgment within the meaning of Section 2(11) of the Act. We also find, as stated above, that the 10 individual employees challenged by the Petitioner are not statutory supervisors. Accordingly, the challenges to the ballots of these employees are moverruled, and we shall remand this proceeding to the Regional Director to open and count the challenged ballots and to take further appropri- ate action. ORDER This proceeding is remanded to the Regional Director with directions to open and count the challenged ballots of those employees found eligible to vote, to prepare a revised tally of ballots, and to issue the appropriate certi- fication.