Barstow Community Hospital

National Labor Relations Board - Administrative Judge Opinions

Feb 23, 2007

31-CA-026057 (N.L.R.B. Feb. 23, 2007)

JD(SF)-07-07
Barstow, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BARSTOW COMMUNITY HOSPITAL – OPERATED
BY COMMUNITY HEALTH SYSTEMS, INC.
and Case 31-CA-26057
UNITED NURSES ASSOCIATION OF CALIFORNIA,
UNION OF HEALTH CARE PROFESSIONALS,
NUHHCE, AFSCME, AFL-CIO
Nikki N. Cheaney, Atty., Los Angeles, California,
Counsel for the General Counsel
Don T. Carmody, Atty., Woodstock, New York
Counsel for Respondent
Cynthia L. Hernandez, Atty., Gilbert & Sackman,
Los Angeles, California, Counsel for the
Charging Party
SUPPLEMENTAL DECISION
Remand Order
By Order dated September 30, 2006, the National Labor Relations Board (the Board)
remanded this matter for further consideration in light of its recent decisions in Oakwood
Healthcare, Inc., 348 NLRB No. 37 (2006); Croft Metals, Inc., 348 NRLB No. 38 (2006); and
Golden Crest Healthcare Center, 348 NLRB No. 39 (2006), which addressed the meaning of
terms “assign,” “responsibly to direct,” and “independent judgment,” as used in Section 2(11) of
the Act, under the framework of the Supreme Court’s decision in NLRB v. Kentucky River
Community Care, 532 U.S. 706 (2001).
The Respondent’s Motion for Reconsideration
Of Motion to Reopen the Record
The Board’s Order allowed the parties to file briefs on the remand issues and, if
warranted, directed reopening the record to obtain evidence relevant to the principles
enunciated in Oakwood Healthcare, Croft Metals, and Golden Crest. By Motion to Reopen
Record dated November 20, 2006, Respondent sought to reopen the record to present
additional testimony and documentary evidence regarding alleged supervisory responsibilities of
Lois Sanders (Ms. Sanders) whose supervisory status is at issue. By order dated
November 27, I denied Respondent’s motion as unwarranted and set a date for the filing of
briefs.1 All parties have filed timely briefs herein concerning the issue of whether Ms. Sanders
is a supervisor within the meaning of Section 2(11) of the Act. Although titling its submission as

1 The original due date of January 4, 2007 for the filing of briefs was extended upon
Respondent’s request to January 16, 2007.
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a Brief on Remand and Motion for Reconsideration of Motion to Reopen the Record,
Respondent has presented argument only on its Motion for Reconsideration. Respondent
asserts that the filing of a brief based upon the record presently developed is pointless:
Thus, inasmuch as the hospital never undertook during the Trial…to prove, let
alone argue…that Ms. Sanders’ responsibilities strictly as a Registered Nurse,
irrespective of her role as a Clinical Coordinator, involved the performance of
“supervisory” functions, the Record is barren of evidence of Ms. Sanders’
supervisory status strictly in her capacity qua Registered Nurse—that is to say,
the Record already developed instead only contains evidence and legal
argument of Ms. Sanders’ supervisory status as Clinical Coordinator.
Consequently, there is no basis, let alone an insufficient basis, for Barstow to
argue from the existing Record that, under the principles articulated by the Board
in Oakwood, Ms. Sanders’ status as a Registered Nurse, alone, was supervisory.
While it is true, as the Respondent contends, that the primary focus of the parties’
examination in the underlying hearing was on Ms. Sanders’ duties as relief CC, it is not true that
the record is silent regarding Ms. Sanders’ responsibilities as an RN. The record provides
pertinent information regarding Ms. Sanders’ RN duties in the ER.
During the relevant period, core staffing in the emergency room (ER) of the
Respondent’s 40-50 bed acute-care facility consisted of two registered nurses (RN), an ER
technician, and two additional staff members who worked part of the daytime ER shifts. The ER
manager and a clinical coordinator (CC) had overall responsibility for nursing activities on the
ER day shift. On the night shift, a CC provided ER oversight. The CC insured that the hospital
ran efficiently and smoothly, dealt with interpersonal employee conflicts, gathered supplies, and
handled staffing. In making staffing decisions and assignments, the CC took into account the
acuity of patients and the relative skills, experience, and trustworthiness of the available staff.
The CCs gave no patient care, although they might fill in as needed for an absent RN. On
occasion, the ER registered nurses were called upon to fill in as relief clinical coordinator on the
night shift.
At all times relevant, Ms. Sanders worked as an RN in the ER. The position title noted
on her Position Description/Evaluation of May 6, 2002 was “Registered Nurse…Emergency
Room,” and her position description was summarized as follows: “The Registered Nurse shall
be responsible for planning, supervising and evaluating the nursing care of patients and for
correlating the nursing process, the medical plan of care and policies.” Ms. Sanders usually
worked the ER night shift from 7 p.m. to 7 a.m., and her duties included triaging patients,
carrying out doctor orders, and transferring or discharging patients as directed. In fulfilling her
duties as an RN, Ms. Sanders did not make assignments to other workers, evaluate their
performance, or discipline them; her only involvement with corrective action was to report
problems to the CC or ER manager. Beginning a month or two after employment, Ms. Sanders
filled in as CC once or twice a week.
Regarding Ms. Sanders’ work as an RN, the following is clear from the record: (1) at all
relevant times, the Respondent’s ER had a complement of only two RNs who were overseen by
a CC; (2) the CC had full oversight responsibility for the ER; (3) the CC was responsible for
staffing in the ER; (4) as an RN, Ms. Sanders had no responsibility for making work
assignments to other employees; and (5) as an RN, Ms. Sanders had no responsibility for
evaluating the work performance of other employees or disciplining them.
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The Board’s decision in Oakwood Healthcare, Inc., supra, deals with the issue of
whether certain charge nurses are supervisors within the meaning of the Act. In arriving at its
conclusions, the Board adopted definitions for the terms “assign,” responsibly to direct,” and
“independent judgment,” as used by Section 2(11) of the Act in denoting supervisory authority.
As to the term “assign,” the Board construed it to mean designating an employee to perform
significant overall duties. Directing an employee to perform discrete tasks within such an
assignment, as in giving an ad hoc instruction, is not, in the Board’s view, indicative of
supervisory authority to “assign.”2 With regard to the term “responsibly to direct,” the Board
concluded that for an individual’s action to be so described, the directing person “must be
accountable for the performance of the task so as to fundamentally align the person with
management.3 Finally, the Board considered that “independent judgment” is exercised when an
individual acts or recommends action free of the control of others, which action rises above the
merely routine or clerical.4
With the Board’s definitions in mind, it is apparent that Ms. Sanders’ performance of RN
functions, in and of itself, does not fit the Board’s denotation of supervisory status. The
Respondent ceded oversight responsibility in its ER to a CC. The CC, not Ms. Sanders, was
responsible for staffing the ER, making work assignments, and evaluating the work performance
of ER employees. In such a limitedly staffed department as the Respondent’s ER, it is highly
improbable that two individuals would possess Section 2(11) authority to exercise independent
judgment in assigning and directing employees. Since clearly the CC possessed such authority,
a fortiori, Ms. Sanders, when functioning as an RN, did not. Accordingly, the Respondent’s
Motion for Reconsideration of Motion to Reopen Record in order to adduce evidence of
Ms. Sanders’ RN responsibilities, irrespective of her role as a relief CC, is denied.
Consideration of Underlying Decision in Light of
Oakwood Healthcare, Croft Metals, and Golden Crest.
While the Respondent’s brief on remand appears to concede that the Board’s decisions
in Oakwood Healthcare, Inc., Croft Metals, Inc., and Golden Crest Healthcare Center would not
alter the findings in the underlying decision, the Board’s Order to reconsider those findings
dictates further review. In the recent decisions, the Board reiterated that the burden of proving
supervisory status rests on the party asserting it. After reconsideration of the underlying
findings of fact in light of Oakwood Healthcare, Inc., Croft Metals, Inc., and Golden Crest
Healthcare Center, I find that the Respondent has failed to meet its evidentiary burden.
The question of Ms. Sanders’ supervisory status rests on her work as a relief CC. In
Oakwood Healthcare, Inc., supra at slip op. 11, the Board addressed the status of individuals
who are engaged part of their work time in supervisory roles and held to its established legal
standard that determination of supervisory status in such situations depends on whether the
individual spends a regular and substantial portion of work time performing supervisory
functions. As the Board did not modify its standard for assessing the regularity and
substantiality of part-time performance of supervisory functions, there is no basis for revising the
earlier finding that Ms. Sanders served as a relief CC only on an ad hoc basis and did not have
any regular, established assignment as such.

2 Oakwood Healthcare, Inc., supra, at slip op. 4-5.
3 Oakwood Healthcare, Inc., supra, at slip op. 8.
4 Oakwood Healthcare, Inc., supra, at slip op. 9-10. The concepts detailed in Oakwood
Healthcare, Inc. are echoed in Croft Metals, Inc., supra, and Golden Crest Healthcare Center,
supra.
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Even assuming Ms. Sanders spent a regular and substantial portion of her work time as
relief CC, utilizing the Board’s definitions set forth in Oakwood Healthcare, Inc., and reiterated in
Croft Metals, Inc., and Golden Crest Healthcare Center, the evidence fails to establish that
Ms. Sanders exercised independent judgment in assigning or responsibly directing any
employee when she served as relief CC. In Oakwood Healthcare, Inc., the Board construed the
authority “to assign” to involve the act of designating an employee to a specific place in which to
perform his or her work, appointing an employee to a particular time during which to perform
that work, or giving an employee significant overall duties or tasks to perform. The authority
“responsibly to direct” involves deciding which job shall be undertaken and who shall do it,
provided that the direction is both responsible and given with independent judgment. For the
direction to be responsible, the person giving the direction must be accountable for the
performance of the task under penalty of adverse consequences for improper execution.
“Independent judgment” does not exist if directions are dictated or controlled by detailed
instructions that do not allow for discretionary choices.5
During the periods she filled in as CC, Ms. Sanders spent the bulk of her work time
performing nursing duties and was instructed to contact management regarding any nonroutine
issues. As relief CC, Ms. Sanders was expected to follow a staffing book prepared by higher
authority, which contained detailed staff guidelines, staffing grids, master schedules, daily
assignment sheets, and other pertinent administrative information and instructions.
Ms. Sanders assigned admitted ER patients to the nursing staffs of two medical-surgery floors
by alternating between the two floors. Any disagreement over patient placement was referred to
upper management. Ms. Sanders could request help as needed from other departments or call
in unscheduled employees but had no authority to affix consequences to any refusal to comply
and was not accountable for other employees’ performance of tasks. Any employee misconduct
was to be referred to upper management. Clearly, when functioning as a relief CC,
Ms. Sanders was not free from the control of others but followed the detailed instructions and
policies provided in the staffing book and formed no opinions or evaluations by discerning and
comparing data. In such circumstances, following the instruction of Oakwood Healthcare, Inc.,
I find that Ms. Sanders did not responsibly direct other employees’ work. While Ms. Sanders
may, in a broad sense, have assigned work to employees by requesting help, calling in
unscheduled employees, and making bed assignments for patients admitted to the hospital from
the ER, she did not exercise independent judgment in doing so. Any judgment exercised by
Ms. Sanders was dictated or controlled by detailed instructions and policies established by a
higher authority that did not allow for discretionary choices and, thus, was not “independent.”
Accordingly, having reviewed the evidence in the light of the Board’s recent decisions
construing Section 2(11) of the Act, I find the evidence does not establish that Lois Sanders was
a supervisor within the meaning of that section on August 31 and/or September 26, 2002, when
Respondent respectively suspended and fired her.
Based on these findings and the findings of fact and conclusions of law contained in the
decision herein issued on August 29, 2003, and the entire record, I issue the following
recommended6

5 Oakwood Healthcare, Inc., supra, at slip op. 4-10
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, Barstow Community Hospital – Operated by Community Health
Systems, Inc., Barstow, California, its officers, agents, successors, and assigns, shall comply
with the Order issued herein on August 29, 2003.
Dated, Washington, D.C., February 23, 2007.
Lana H. Parke
Administrative Law Judge