West Florida Hospital, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1985

273 N.L.R.B. 1421 (N.L.R.B. 1985)

WEST FLORIDA HOSPITAL 1421
West Florida Hospital, Inc. and William M. Hicks.
Case 15-CA-8213
14 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 17 September 1982 Administrative Law
Judge Philip P. McLeod issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a
memorandum in support of the judge's decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
The Respondent admittedly discharged William
Hicks because he was involved in union activity;
the only issue is whether Hicks was an employee
within the meaning of the Act or a supervisor. We
find that he was a supervisor, and accordingly we
will dismiss the complaint.
Hicks was "Evening Coordinator" in the Re-
spondent's operating room, a position equivalent in
the Respondent's organization to assistant head
nurse; from 5:30 to 11 p.m. each day, he was the
person of highest authority assigned to the operat-
ing room on a full-time basis. Above Hicks in the
hospital hierarchy, only the house supervisor was
present in the hospital, and she was responsible for
the Respondent's entire division of nursing serv-
ices, with 400 beds, in which the operating room
was only 1 of 24 units. By Hicks' admission, the
house supervisor stopped in the operating room on
her rounds no more than twice in an evening, for
no more than 10 or 15 minutes altogether; in es-
sence, Hicks testified, she might stop to chat over a
cup of coffee. The General Counsel's witnesses
maintained that Hicks would consult with higher
supervision if a "serious" problem arose, but the
only examples of such problems they were able to
cite involved conflicts between the operating room
and other departments. Thus Hicks was effectively
in charge of the 15 evening shift employees in the
operating room; this alone is strong evidence that
he was a supervisor.2
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convmces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the fmdinp.
2 See Northwoods Manor, 260 NLRB 854 (1982); Emory Convalescent
Home, 260 NLRB 540 (1982); Wright Memorial Hospital, 255 NLRB 1319
(1981); Jeffrey Mfg. Division, 248 NLRB 33, 61 fn. 123 (1980).
The evening coordinator also scheduled any sur-
gery called in during the evening shift, and as-
signed employees—both professional and techni-
cal—to it. In assigning employees, Hicks needed to
assess their skills and to consider their preferences
and availability, thus exercising independent judg-
ment in the interest of the Respondent. While
Hicks testified that other registered nurses some-
times substituted for him, he also admitted that this
generally occurred when a nurse was feeling ill in-
dicating that this did not happen regularly. Al-
though the judge found that Hicks regularly as-
signed work, he minimized the significance of
Hicks' authority because it only occupied 10 to 15
percent of Hicks' time. We view the amount of
time spent as substantial especially considering that
this authority is regularly exercised.3
The record demonstrates that Hicks, as evening
coordinator, had substantial influence in the evalua-
tion of other employees. We note the written eval-
uations of two employees in the record, including
recommendations for salary increases; while the
record does not show that those recommendations
were adopted ultimately, it is nonetheless signifi-
cant that Hicks' opinion was sought. The same is
true of the "assessment" of a part-time registered
nurse: that Hicks made only positive comments
about this employee does not detract from the evi-
dence that he was in a position to affect the em-
ployee's status. 4 We note that Hicks not only com-
pleted the evaluation forms in each case but dis-
cussed them with the affected employees before
submitting the evaluations to higher supervision;
this is further evidence that Hicks performed as a
supervisor and was regarded as one. We do not see
any relevance in the judge's observations that two
of the employees involved were "a mere orderly
and a technician completing his probationary
period." Nor do we see any basis for the judge's
conclusion that Hicks must not have made other
evaluations because only these two were intro-
duced. Someone who supervises lower-level em-
ployees is a supervisor, and evaluation is no less a
form of supervision when it occurs at such times as
completion of an employee's probationary period.
Beyond the written evaluations in evidence, the
record shows that Hicks had continuing oral input
into the evaluation of evening shift employees.
While the judge attempted to minimize the impor-
tance of this input, the Respondent's former operat-
ing room supervisor, testifying for the General
3 Compare Northwoods Manor, supra, m which the charge nurses spent
20 percent of their time in supervisory duties.
4 Cf. ITT Corp. v. NLRB, 712 F.2d 40 (2d Cir. 1983), and cases cited
(authority of prounion supervisors considered with respect to election ob-
jections).
273 NLRB No. 177
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel and credited by the judge, admitted that
she evaluated these employees with little or no
direct knowledge of their ongoing performance
and development, thus necessarily relying on
Hicks' recommendations.
Hicks admitted that he exercised other authority
over employees. For instance, he testified that, if
he noticed an employee overstaying a break or not
working, he would warn that employee to get back
to work. Also, employees who wished to leave
work early sought permission from Hicks who, in
the exercise of his judgment, sometimes granted
such requests and other times did not. Likewise,
Hicks authorized overtime when he believed it was
needed and, although he informed the operating
room supervisor afterwards that overtime had been
worked, the record does not show that his deci-
sions in this regard were ever questioned.
In sum, as evening coordinator William Hicks as-
signed employees, evaluated their performance, and
directed or authorized them in returning from
breaks, leaving work early, and working overtime.
That is, he had authority to assign employees, re-
sponsibly to direct them, and effectively to recom-
mend that they be disciplined, rewarded, or pro-
moted. Each of these responsibilities required, and
Hicks exercised, independent judgment to ensure
that employees carried out the Respondent's re-
quirements of them. Moreover, during most of the
evening shift the evening coordinator was the
person of highest authority in the operating room;
if he was not a supervisor, this crucial department
of the Respondent's operation, with 15 employees,
was unsupervised for about 6 hours each day—an
unlikely situation. These facts establish that Hicks
was a supervisor, and we need not discuss any sec-
ondary indicia of supervisory status. 5 Because
Hicks was a supervisor, not an employee within
the meaning of the Act, we will dismiss the com-
plaint.
ORDER
The complaint is dismissed.
MEMBER DENNIS, dissenting.
I would find that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging Wil-
liam Hicks because of his union activity. I agree
with the judge, for the reasons he stated, that
Hicks is an employee rather than a supervisor
within the meaning of the Act.
5 We note that the judge erred in finding that Hicks had less vacation
than any admitted supervisors, the record indicates that the head nurse,
like Hicks, had 2 weeks of vacation
DECISION
STATEMENT OF THE CASE
PHILIP P MCLEOD, Administrative Law Judge. On
June 18, 1981, a charge was filed in this proceding
against West Florida Hospital, Inc. (Respondent) by Wil-
liam M. Hicks On July 15, 1981, a complaint and notice
of hearing issued alleging that Respondent has violated
Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act), by creating the impression of surveillance
of employee union activities by telling an employee
(Hicks) that Respondent was aware of his attendance at a
union meeting and by terminating Hicks because of his
membership in and activities on behalf of District 1199,
International Union of Hospital and Health Care Em-
ployees, RWDSU, AFL-CIO (the Union). In its answer
to the complaint, Respondent admits all facts alleged re-
garding its business operation, but denies the legal con-
clusion that it is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. Respondent admitted
that at all times material Barbara Thames occupied the
position of director of special services, but denied the
legal conclusion that Thames was a supervisor and agent
of Respondent within the meaning of Section 2(11) and
(13) of the Act. In its answer, Respondent admits that
about June 8, 1981, Respondent terminated Hicks, but
denies it did so because of Hicks' membership in or ac-
tivities on behalf of the Union Respondent denies having
engaged in any conduct which would constitute an
unfair labor practice.
A trial was held before me on June 7, 1982, in Pensa-
cola, Florida, at which all parties were represented and
were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence.
At the close of the trial, the General Counsel availed
himself of the opportunity to argue orally. Thereafter,
the General Counsel and Respondent both filed briefs
which have been duly considered.'
On the entire record in this case, and from my obser-
vation of the witnesses, I make the following
' Following receipt of briefs from both parties, Respondent filed a
motion to strike the brief of the General Counsel because, at the conclu-
sion of the trial, the General Counsel did not specifically request of the
judge the opportunity to file a brief and because counsel for Respondent
did not receive a copy of the brief filed by the Counsel
In its statement in opposition to Respondent's motion, the General
Counsel points out that it did attempt to serve a copy of the brief on
counsel for Respondent, but that the brief was Inadvertently mailed to
the wrong address Another copy of the brief was served along with the
statement in opposition to Respondent's motion Since briefs are filed si-
multaneously and there is no opportunity for a reply brief, I conclude
that no harm has been done by the delay expenenced by counsel for Re-
spondent in receiving the brief of the General Counsel
I also note that neither party herein specifically requested permission to
file a brief with me I inquired and was informed by counsel for Respond-
ent that he intended to file a brief I thereafter set a due date for the re-
ceipt of bnefs The General Counsel did not waive the right to file a
brief herein, and the briefs received were timely filed by both parties
Accordingly, the briefs of both parties have been accepted by me and
have been given due consideration
WEST FLORIDA HOSPITAL 1423
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Florida corporation engaged in the
operation of a hospital facility in Pensacola, Florida,
where it provides nursing and health care services.
During the past 12 months, a representative period, Re-
spondent derived gross revenues in excess of $250,000
and purchased and received goods and materials valued
in excess of $50,000 directly from points located outside
the State of Florida.
I find that Respondent is, and has been at all times ma-
terial herein, a health care institution within the meaning
of Section 2(14) of the Act and an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
District 1199, National Union of Hospital and Health
Care Employees, RWDSU, AFL-CIO is, and has been
at all times material a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A Allegations and Issues
The General Counsel contends that on June 8, 1981,
Respondent created the impression of surveillance of em-
ployee union activities by telling Hicks that Respondent
was aware of Hicks' attendance at a union meeting. He
also contends that Hicks was discharged during that
same conversation for having attended the union meeting
in question.
At the trial Respondent admitted having discharged
Hicks because of his activities on behalf of the Union.
However, it denied doing so because of any meeting
Hicks attended Rather, according to Respondent, the ac-
tivities on behalf of the Union which Hicks engaged in
and which led to his termination were his support of the
Union and his encouragement of other employees to join
and support the Union.
The real issue in this case relates to Hicks' status Re-
spondent contends that Hicks' position with Respondent
was that of a supervisor and that, as such, Hicks is not
entitled to the protection of the Act. Although this af-
firmative defense was not raised in its answer to the
complaint, the General Counsel did not claim surprise
when Respondent raised this issue at the trial The issue
of Hicks' supervisory status was fully litigated, and in
fact took up the greater portion of this trial. According-
ly, that issue is considered on its merits.
B. Facts Regarding Hicks' Status as a Supervisor
Respondent is a 400-bed hospital facility in Pensacola,
Florida. Hicks worked for Respondent from May 1977
until his discharge on June 8, 1981. During that time,
Hicks worked as a graduate registered nurse from the
time he was hired in May 1977 until August 1977 when
he passed the state medical board examinations and
became a staff nurse In December 1978, Hicks was pro-
moted to the position of evening coordinator in the oper-
ating room. Hicks held this position until the time of his
discharge. The duties of that position are considered at
length below.
Within Respondent's hospital there are several depart-
ments, one of which is the division of nursing services
headed by a person entitled "Director of Nursing Serv-
ices." Below the director of nursing services are several
assistant directors of nursing services, one of whom is re-
sponsible for a defined area of the hospital which in-
cludes the operating room Below them are administra-
tive assistants, also known as house supervisors who are
responsible for the overall functioning of the shift to
which they are assigned. Below house supervisors are
department supervisors who, in turn, are assisted by head
nurses and assistant head nurses.
The operating room supervisor, a department supervi-
sor, is responsible for the overall supervision and oper-
ation of the operating room 24 hours a day. The operat-
ing room supervisor, hereafter called the 0 R supervisor,
is assisted on the day shift by a head nurse and on the
evening shift, which runs from 3 until 11 p.m., by the
evening coordinator At the time of his discharge, Hicks
filled the position of evening coordinator.
The 0 R supervisor, charged with the overall supervi-
sion of the operating room, is responsible for coordinat-
ing the surgery schedule and handling all personnel-relat-
ed matters. The 0 R supervisor works until approximate-
ly 5:30 p.m. and consequently has a normal workday
which overlaps the beginning of the evening shift for
about 2-1/2 hours The 0 R supervisor is responsible for
correlating the surgery schedules for both the day and
evening shifts The 0 R supervisor has authority to hire
and fire employees. Neither the head nurse nor the
evening coordinator possesses such authority. Even the
0 R supervisor would have to confer with the assistant
director of nursing services before terminating an em-
ployee. In addition to correlating surgery schedules, the
primary functions of the 0 R supervisor are to make out
work schedules of employees, assign vacation times, con-
duct performance and merit evaluations of employees,
and take disciplinary actions against employees where
necessary. In addition, the 0 R supervisor makes budget
recommendations to her superiors regarding the operat-
ing room.
As previously indicated, the 0 R supervisor is assisted
on the day shift by a head nurse and on the evening shift
by the evening coordinator. The authority and functions
of the 0 R supervisor described above are exclusive to
her and are not shared with nor exercised by either the
head nurse or the evening coordinator, except as noted
below. Further, while both the head nurse and evening
coordinator assist the 0 R supervisor, their functions and
authorities are also different from one another The head
nurse does not generally scrub and circulate among pa-
tients. Rather, because there are more employees as-
signed to the operating room on the day shift and be-
cause the operating room is generally busier during the
day shift than it is on the evening shift, most of the head
nurse's time is spent making work assignments to em-
ployees and providing overall direction in the depart-
ment. The head nurse does conduct performance and
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merit evaluations of employees who work in the operat-
ing room on the day shift, including staff nurses. She
participates in counseling and disciplining of employees
to the extent of making recommendations to the 0 R su-
pervisor. The head nurse reviews and approves the time-
cards of all employees below her in the operating room,
including employees who work on the evening shift, and
the evening coordinator himself.
There is no head nurse in the operating room on the
evening shift. Rather, the operating room is under the
direct supervision and control of the 0 R supervisor
from 3 until approximately 5:30 p.m. After 5:30 p.m. the
evening coordinator is the person of highest authority as-
signed to the operating room on a full-time basis.
Respondent points to the job description of the
evening coordinator as one of the primary bases for find-
ing that position to be a supervisor within the meaning of
the Act. That job description describes the specific duties
of the evening coordinator in part as follows:
In addition to the duties of the operating room
staff nurse, the evening coordinator will:
1. Coordinate the completion of scheduled proce-
dures which extend beyond the day shift.
2. Make shift assignments for evening personnel.
5. Supervise and provide guidance to all evening
personnel.
6. Assist with counseling and guidance when
needed; document and communicate outcomes.
7 Assist in evaluating staff members, identifying
needs, recommending appropriate interventions and
supporting strengths, leading toward the fulfillment
and unit goals.
It is primarily these enumerated functions to which
Respondent points in support of its position that the
evening coordinator is a supervisor. Reliance on the job
description, however, tends to beg the question A job
description prepared by management stating that the
evening coordinator shall exercise supervisory functions
does not establish that the evening coordinator is, in fact,
a supervisor. The determination of that question turns on
what functions Hicks as evening coordinator actually
performed. Valley Hospital, 226 NLRB 309, 312 (1976).
Respondent argues that, as evening coordinator, Hicks
exercised five indicia of supervisory authority which
warrant a conclusion that he was a supervisor within the
meaning of the Act. These five indium are: making work
assignments to employees; evaluating employees; disci-
plining employees; granting employees time off; and, fi-
nally, the absence of other supervisors in the operating
room on the evening shift.
With regard to Hicks' actual duties, the record reflects
the following
As evening coordinator, Hicks had no authority to
hire or discharge, suspend or transfer, lay off, or recall,
nor promote or demote employees. Hicks had no author-
ity to alter the work schedules of employees established
by the 0 R supervisor, and he played no part in the as-
signment of vacation times.
As evening coordinator, Hicks spent approximately 85
to 90 percent of his time performng routine staff nursing
functions, including scrubbing and circulating cases, set-
ting up equipment for surgical procedures, and stocking
surgical supplies for the operating rooms. In addition to
his base wage rate, Hicks received an hourly shift differ-
ential which was received by all employees working on
the evening shift. In addition, he received 50 cents per
hour more than a staff nurse for his duties as evening co-
ordinator. Unlike the head nurse or the 0 R supervisor,
Hicks was required like other staff nurses to make him-
self available on-call from 11 p.m. to 7 a m. on 5 out of
every 10 workdays during which he was subject to being
called back to the hospital by the house supervisor to
assist physicians in emergency operations Also, unlike
the head nurse and the 0 R supervisor, both of whom
received 3 weeks' paid vacation per year, Hicks received
only 2 weeks.
As evening coordinator, Hicks correlated some of the
surgery to be scheduled on the evening shift, sometimes
with the help of the 0 R supervisor prior to her leaving
in the evening and sometimes on his own. The 10 to 15
percent of Hicks' time not spent in the actual performace
of routine staff nursing functions was spent primarily as-
signing work to other employees in the operating room
on the evening shift The record is clear that Hicks did
regularly assign work to such employees and that these
assignments called for the use of at least some independ-
ent judgment. I credit Hicks, however, that these assign-
ments were routinely made on the basis of various
nurses' known special skills and preferences. Thus, em-
ployees with specialized skills in these areas were rou-
tinely assigned to cardiac, neurological, and orthopedic
cases. The remaining employees were then assigned to
surgery cases based on their availability. Thus, most as-
signments were the same night after night with little
variance I also credit Hicks that if he was busy perform-
ing routine nursing functions himself, thus not behind the
desk to make an assignment at a time when the need
arose, other registered nurses on the shift regularly took
it on themselves to make the necessary assignments.
Regarding Hicks' role in the performance evaluation
of employees, Respondent introduced two evaluations of
employees in which Hicks had a direct part. The first in-
volved an orderly named Timothy Cremshaw. This eval-
uation was dated November 23, but undated as to the
year. The evaluation was filled out by Hicks and signed
by him as "RN-evening coordinator." Below Hicks' sig-
nature are also the signatures of Frances Traynon as
"O.R. Supervisor" and Barbara Thames as "Director of
Special Services." Prior to July 1980, Traynon was head
nurse under 0 R supervisor Faye Lewis. In July 1980,
Lewis left and Traynon took over as 0 R supervisor, a
position she still holds. In the section of this evaluation
entitled "recommendation," Hicks checked one of five
available options indicating that Cremshaw should re-
ceive a salary increase. The record is silent as to whether
Cremshaw, in fact, got that increase.
The second evaluation introduced by Respondent in-
volved an operating room technician named Stephen
Nichols. It is dated August 14, 1980. The front page of
this evaluation indicates that it is one conducted at the
end of an employee's first 90 days of employment. The
WEST FLORIDA HOSPITAL 1425
evaluation is signed jointly by Traynon as "OR. Super-
visor" and by Hicks as "evening coordinator." Traynon's
name appears above Hicks. Below their joint signatures,
Traynon's signature appears again on the line denoted
"department supervisor." Below Traynon's second signa-
ture appears the signature of Barbara Thames as "direc-
tor of special services." In the "recommendations" sec-
tion of this evaluation, the choice "salary increase" is
also checked. Apparently to show they were effective,
Respondent asked Traynon whether Hicks' recommenda-
tions for salary increases were followed. Traynon an-
swered that they were, but failed to provide any specific
instance to support her assertion and failed to mention
either Nichols or Cremshaw as having received raises
based on Hicks' recommendation. On cross-examination,
Traynon admitted that the only recommendation she
could recall was that of Nichols and that Nichols was
not given the recommended wage increase.
I conclude that the evaluations of Cremshaw and
Nichols were the only evaluations actually completed by
Hicks for if there were others Respondent would surely
have introduced them. Traynon testified that, in addition
to completing these evaluations, Hicks was consulted by
her before she evaluated other employees on the evening
shift. Traynon asserted that she relied heavily on Hicks'
reports since Traynon was not on the evening shift past
5:30 p.m. Traynon, who became rather unnerved and
upset under cross-examination, struck me as a biased wit-
ness whose testimony is largely unworthy of belief. Re-
garding Hicks' real degree of authority, I fmd it signifi-
cant that the two evaluations actually completed by
Hicks involved a mere orderly and a technician complet-
ing his probationary period. All other employees on the
shift, including nurses, were evaluated by the 0 R super-
visor. I found the testimony of former 0 R Supervisor
Faye Lewis, who is no longer employed by Respondent,
to be much more candid and straightforward regarding
Hicks' actual duties than the testimony of any of Re-
spondent's current supervisors. I credit Lewis, and on
the basis of her testimony I conclude that, while Hicks
did have some input into employees' annual evaluations,
it was substantially more limited than suggested by
Traynon and was not independently relied upon. I be-
lieve the degree of Hicks' actual authority was well ex-
emplified by Lewis' testimony that, if Hicks thought an
employee was not performing properly, Hicks could
report it to the head nurse or the 0 R supervisor, who
would investigate the matter.
Regarding Hicks' role in assessing discipline, Respond-
ent introduced one "behavior assessment" form complet-
ed by Hicks regarding part-time registered nurse Al-
phonso Vacarro dated November 5, 1980. The reason
Hicks had occasion to fill out this form is not clear from
the record. Hicks testified without contradiction that a
"behavior assessment" form such as that introduced by
Respondent is not the same as an employee reprimand.
According to Hicks, a reprimand involved adverse
action being taken against an employee. The evening co-
ordinator clearly had no authority to issue reprimands. A
behavior assessment, as near as I can tell from Hicks' tes-
timony, was more in the nature of a notice to an employ-
ee that he/she was engaging in some behavior which re-
quired correction. Thus, it was more in the nature of a
preliminary warning.
The behavior assessment form itself contains the fol-
lowing direction to the person completing it:
Please make comments on the individual's perform-
ance in the following areas: . . . .
Twelve areas of professional and generalized skills are
enumerated and listed. The lower right hand corner of
the form contains a signature line which is designated
"head nurse signature." As indicated, the testimony of all
witnesses suggests that "behavior assessment" forms of
this type play some role in the discipline of employees.
The remarks of Hicks, however, on the form in question
are all positive comments such as "good," "satisfactory,"
or "excellent." Thus, it would appear that on the one oc-
casion when Hicks completed such a form it served
more as an evaluation of the employee than as part of
discipline imposed on the employee. I find the "behavior
assessment" form introduced by Respondent to be of
little probative weight regarding Hicks' role in imposing
discipline on employees for that reason and for an addi-
tional reason. In the lower left hand corner of the form,
there is a signature line on which the employee is expect-
ed to place his/her signature. The form introduced by
Respondent is unsigned by the employee in question.
This is the only such form introduced by Respondent
signed by Hicks. There is no indication the employee in
question received, or was intended to receive, this par-
ticular form which Hicks completed. These facts and the
additional fact that all of the comments by Hicks on the
form are positive lead me to believe that on this occasion
the form was not used regarding the discipline of an em-
ployee, but rather was used in some preliminary way
with regard to an employee evaluation. Its use in this
manner is consistent with the evidence discussed above
concerning Hicks' role in the evaluation of employees,
and is considered as such. It reveals little about Hicks'
role in the discipline of employees, and I rely instead on
the testimony of former 0 R Supervisor Faye Lewis,
which I credit, regarding that subject. I credit Lewis
that, as evening coordinator, Hicks could independently
take care of only minor disciplinary matters, such as re-
minding people to return from coffeebreak or pointing
out to a person the fact that they were breaking sterile
techniques.
Whenever problems of a more serious nature arose,
Hicks would be expected to contact the head nurse, the
0 R supervisor, or the house supervisor. If Hicks report-
ed such a problem to one of his superiors, the superior
would first conduct an independent investigation before
meting out discipline. All witnesses agree that Hicks
never attempted to send someone home for the day as a
disciplinary action. I discredit the assertion of some of
Respondent's witnesses, particularly Traynon, that even
though he never exercised it, Hicks possessed such au-
thority. Rather, I credit Lewis that Hicks did not have
such authority and that if such a serious situation arose
Hicks would be expected to contact the house supervisor
or to telephone the 0 R supervisor at home. Lewis testi-
fied credibly that whenever problems of any major con-
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sequence arose, including even scheduling problems in
the operating room, Hicks would be expected to and did
call in the house supervisor. I credit Lewis that the
house supervisor on the evening shift was very often in-
volved in resolving matters related to the operating
room
Regarding Hicks' authority to grant time off, the
record reflects that Hicks did possess such authority
under certain circumstances. Hicks played no part in es-
tablishing the work schedules of employees. Schedules
were established by the 0 R supervisor, and Hicks had
no authority to alter the established work schedule.
Hicks did possess authority to allow employees on the
evening shift to clock out and go home early when the
workload was slack and there was no need for staff per-
sonnel. I note, however, that Hicks was limited to grant-
ing a request to go home initiated by an employee. Hicks
had no authority to make an independent judgment that
employees were no longer needed and direct them to
clock out. I also note that the timecards of all employees
on the evening shift, including Hicks, had to be ap-
proved by the head nurse In view of all the above, I
find that the circumstances under which Hicks could ex-
ercise the authority to grant time off were so limited and
circumscribed that Hicks had little real authority
Finally, Respondent argues that Hicks should be found
to be a supervisor because he is the person of highest au-
thority in the operating room during the evening shift. I
must note, however, that Respondent concedes the 0 R
supervisor is responsible for the overall supervision of
the operating room 24 hours per day. Further, I am con-
vinced that it is by no means accidental that while the
day shift ends at 3 p m., the 0 R supervisor works a
schedule which overlaps the beginning of the evening
shift for approximately 2-1/2 hours While Hicks corre-
lated some of the surgery to be scheduled on the evening
shift, it was most often with the help of the 0 R supervi-
sor prior to her leaving and only sometimes on his own.
The overlap in work schedules of the 0 R supervisor al-
lowed her to oversee coordination of the surgery sched-
ule for the evening shift and to assure herself that every-
thing was functioning smoothly before she left, and
would continue to do so in her absence. As I have found
above, Hicks' authority vis-a-vis other employees was
limited. Whenever a problem of any serious nature arose,
Hicks was expected to contact the house supervisor on
duty or, if necessary, to even telephone the 0 R supervi-
sor at home. As I have found above, the house supervi-
sor was in fact very often involved in seeing to it that
the operating room functioned smoothly on the evening
shift.
In conclusion, my review of all the evidence leads me
to the conclusion that Hicks' role in evaluating employ-
ees was primarily advisory. There is nothing on which to
base a finding that his recommendations were followed
and, in fact, the evidence is to the contrary. Further, any
negative remarks or recommendations made by Hicks
would be investigated independently by his superior
before being acted on, and contrary to Respondent's
claim, I conclude Hicks did not play any effective role in
the discipline of employees. Hicks' authority to grant
time off was circumscribed and could be exercised only
when an employee requested to go home Hicks had no
authority to independently determine that employees
were not needed and send them home Hicks played no
part in establishing work schedules and had no authority
to change the established schedule. Hicks possessed no
real authority vis-a-vis other employees, and whenever a
problem of any serious nature arose, he was expected to
contact the house supervisor or, if necessary, the 0 R su-
pervisor. Hicks had no authority to hire, discharge, sus-
pend, transfer, lay off, recall, promote, demote, or repri-
mand employees Hicks spent 85 to 90 percent of his
time performing routine staff nursing functions. The only
authority really exercised by Hicks which might be su-
pervisory in nature was his assignment of work to other
employees on the evening shift. Even this, however, was
minimal, requiring no more than 10 to 15 percent of his
time. Respondent concedes that Hicks possessed no more
authority than, and that his title as evening coordinator
was interchangeable with, assistant head nurse. Hicks' as-
signment of work to other employees, while involving
the use of some independent judgment, tended to be rou-
tine, made primarily on the basis of various nurses'
known special skills and preferences. Accordingly, I con-
clude and find that Hicks was not a supervisor but rather
was an employee within the meaning of the Act. Milwau-
kee Children's Hospital, 255 NLRB 1009 (1981); Mount
Airy Psychiatric Center, 253 NLRB 1003 (1981); Victor
Valley Hospital, 227 NLRB 513 (1976), Valley Hospital,
supra. Cases cited by Respondent are inapposite for in
each of those cases the individual found to be a supervi-
sor possessed significantly greater authority than that ex-
ercised by Hicks.
C. Hicks' Discharge
The General Counsel and Respondent do not disagree
that Hicks engaged in prounion activities. Respondent in
fact admits that these activities led to Hicks' discharge
and does not contend that the activities are, in any way,
unprotected by the Act when engaged in by a statutory
employee. As noted, Respondent simply argues that
Hicks' discharge was unprotected because he was a su-
pervisor within the meaning of the Act. Nevertheless,
testimony was introduced both by the General Counsel
and the counsel for Respondent regarding the conversa-
tions between Director of Special Services Thames, 0 R
Supervisor Traynon, and Hicks during which Hicks was
discharged Some of Hicks' testimony is disputed by
Thames and Traynon. The reason testimony was intro-
duced regarding this conversation is because the General
Counsel alleges that during the conversation Thames cre-
ated the impression that Hicks' union activities were
under surveillance by stating that Respondent was aware
of Hicks' attendance at a union meeting This was also
specifically alleged in the complaint
I credit the testimony of Hicks over that of Thames
and Traynon where there is direct conflict. For example,
Thames testified that during the conversation, she asked
Hicks if he considered himself to be a part of manage-
ment, and Hicks stated that he did Hicks denied this.
Hicks testified that during the meeting Thames asserted
Hicks was a supervisor, but denied he, too, said he con-
WEST FLORIDA HOSPITAL 1427
sidered himself to be a part of management. I credit
Hicks.
It is undisputed that when Thames told Hicks he was
being discharged because of his prounion activities and
his alleged status as a supervisor, Hicks offered to resign
his position as evening coordinator and remain a staff
nurse. Thames informed Hicks that was not an option
available to him and that he was being discharged. Fol-
lowing the conversation with Thames, Hicks asked and
was allowed to meet with Personnel Director Kenneth
Korff. Korff also informed Hicks that resigning as
evening coordinator was not an available option and that
he was being discharged.
The General Counsel argues that in the conversation
between Thames, Traynon, and Hicks, Thames stated
that Hicks had broken the law as a first line supervisor
by going to a union meeting. Thames and Traynon testi-
fied that it was Hicks who first raised the subject of the
union meeting. More specifically, they testified that
Hicks stated he had not been told that his actions or ac-
tivities on behalf of the Union "would get him into this
kind of trouble, even at the meeting he attended."
Traynon and Thames testified that they did not bring up
the subject of union meetings and that neither of them
was aware Hicks had attended a meeting. In Hicks'
cross-examination, he candidly admitted that in the con-
versation with Thames and Traynon he may well have
been the one to begin the discussion regarding the union
meeting by saying he had not been told that as a supervi-
sor he could not attend the meeting. Accordingly, I do
not believe there is a direct conflict between the testimo-
ny of Hicks and that of Thames and Traynon. Rather, I
conclude that counsel for General Counsel's argument
regarding the facts is not clearly supported by the
record. Accordingly, I find that the General Counsel has
not established by a preponderance of the evidence that
Thames made the alleged remark. Therefore, while
Hicks clearly was discharged because of his support for
and activities on behalf of the Union, itself in violation of
Section 8(a)(1) and (3) of the Act, I do not specifically
find that Respondent otherwise created the impression of
surveillance of employee union activities.
CONCLUSIONS OF LAW
1. The Respondent, West Florida Hospital, Inc., is a
health care institution within the meaning of Section
2(14) of the Act and an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. District 1199, National Union of Hospital and
Health Care Employees, RWDSU, AFL-CIO is a labor
organization within the meaning of Section 2(5) of the
Act.
3. William M. Hicks, prior to and at the time of his
discharge on June 8, 1981, was an employee within the
meaning of the Act.
4. Respondent discharged Hicks because of his support
for and activities on behalf of the Union in violation of
Section 8(a)(1) and (3) of the Act.
5. The unfair labor practices which Respondent has
been found to have engaged in, as described above, have
a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I shall recommend that it be ordered-to
cease and desist therefrom and to take certain affirmative
actions designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]