Doctors' Hospital

National Labor Relations Board - Board Decisions

Apr 14, 1969

175 N.L.R.B. 354 (N.L.R.B. 1969)

354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sherewood Enterprises , Inc., d/b/a Doctors'
Hospital and California Nurses ' Association,
affiliated with American Nurses' Association,
Petitioner . Case 20-RC-8148
April 14, 1969
DECISION ON REVIEW
On June 28, 1968, the Regional Director for
Region 20 issued a Decision and Direction of
Election, attached hereto, in which he found
appropriate a unit of all registered nurses at the
Employer's Modesto, California, hospital.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer
filed with the National Labor Relations Board a
timely request for review of said Decision,
contending that all the registered nurses employed in
its hospital are supervisors as defined in the
National Labor Relations Act and that, therefore, a
unit composed entirely of such registered nurses is
inappropriate.
By telegraphic order dated July 29, 1968, the
Board granted the request for review and stayed the
election. Thereafter, the parties filed briefs on
review.
The Board has considered the entire record in this
case with respect to the issues under review,'
including the briefs of the parties, and makes the
following findings:
The Petitioner seeks a unit of all registered nurses
at the Employer's hospital. The Employer contends
that all the registered nurses, in each of the
numerous categories of registered nurse in its
employ, are supervisors - hence, nonemployees -
within the meaning of Section 2(l1) of the Act and
that a unit consisting of them could not, therefore,
be appropriate under Section 9. The Regional
Director found that these registered nurses are a
highly trained group of professionals who normally
inform other, lesser skilled, hospital employees as to
the work to be performed for patients, but that their
duties and authority in this regard are solely a
product of their highly developed professional skills
and do not constitute an exercise of supervisory
authority in the interest of their employer. On the
basis of this finding, and in agreement with the
position of the Petitioner, the Regional Director
concluded that the requested unit of registered
nurses comprises a unit of professional employees
that is appropriate for purposes of collective
bargaining.'
As the Regional Director' s Decision , the Request for Review, and
briefs , adequately present the issues and the positions of the parties, the
Employer's request for oral argument is denied
'The Regional Director also found that five registered nurses - the
We generally agree with the above-noted unit
findings of the Regional Director as they are amply
supported by the record. However, with respect to
the head nurses and area supervisors noted below,
we find merit in some of the Employer's
contentions.
The Employer operates a proprietary hospital in
Modesto, California, which contains 146 beds and
has an average patient population of 125. It
employs, inter alia, approximately 40 full-time and
32 regular part-time registered nurses, 85 full and
part-time licensed vocational nurses, and 90 full and
part-time nurses' aids. The hospital administrator is
the overall supervisor of all hospital personnel and
has final authority with regard to the hiring and
discharge of all employees. Reporting directly to
administrator are the heads of the various hospital
departments, including the director of nurses who is
in charge of all nursing operations. Immediately
under the director, and regarded as her assistants,
are the day shift, P.M. shift, and night shift
supervisors who coordinate the work and personnel
of the hospital' s various patient care areas.
The Floor Head Nurses: The A, B, C, and D
wings of the hospital are staffed three shifts per day,
7 days per week. On duty in each wing on each shift
is a registered nurse who has the title "floor head
nurse" and, under her, as many as eight licensed
vocational nurses and nurses' aids.' On the day and
P.M. shifts only, there is an additional registered
nurse, denominated "medication nurse", on duty in
each wing who has responsibility for the ordering,
administering, and charting of medication for each
patient. At the beginning of every shift, the floor
head nurses independently decide on the distribution
of the work load for their wings, assigning each
auxiliary employee to particular patients and
directing them as to how and when particular
procedures should be performed. When a new
employee is hired for one of the wings, the Director
of Nurses assigns her to a particular floor head
nurse on a part-time basis. If that head nurse
approves of the new employee's work, the latter will
be given the assignment full-time, but if the head
nurse finds it unsatisfactory the new employee will
either be transferred to another patient care area or
discharged. Aside from situations involving new
employees, there have been many instances of
auxiliary personnel being transferred within the
hospital at the request of floor head nurses. In
addition, the floor head nurses are responsible for
making periodic formal evaluations of the work of
most of the employees working under them. These
evaluations are written out on the Employer's
"Employee Performance & Merit Review" form
and submitted to the Director of Nurses who relies
upon them when deciding on the granting of merit
director of nurses, the day shift supervisor, the P M shift supervisor, the
night shift supervisor , and the central supply supervisor - were supervisors
within the meaning of the Act and excluded them from the unit None of
the parties has sought review of these findings
'Hereinafter referred to, collectively, as auxiliary personnel
175 NLRB No. 59
SHEREWOOD ENTERPRISES, INC.
pay increases to the employees concerned.' The head
nurses and the medication nurses, if any, on duty at
the same time on the same wing often assist one
another in the performance of their respective
duties. However, the record clearly establishes that
the medication nurses do not possess the authority
over auxiliary personnel, as set forth above, that is
exercised by the head nurses. The head nurses are
paid approximately $45 more per month than
medication and-; other staff nurses having equal
seniority.
The Operating Room Supervisor: The operating
room is regularly staffed only on the day shift,
Monday through Friday. Six or seven registered
nurses, including one designated "OR supervisor",
and an unspecified number of auxiliary personnel
are usually on duty. The OR supervisor has
responsibility for staffing the unit, ordering supplies,
scheduling cases, determining that particular
facilities are in sterile condition, and seeing to it
that all the employees in the unit are carrying out
their specific jobs. Like the floor head nurses, the
OR supervisor has the effective authority to reject
personnel who are assigned to jobs within her
jurisdiction, and such employees are either
discharged or transferred to other areas of the
hospital. At the request of the director of nurses, the
OR supervisor evaluates most of the operating room
employees either quarterly or semiannually, filling
out the Employer's evaluation forms and adding
additional written comments. The completed forms
are shown to and discussed with the affected
employees and are then forwarded to the director of
nurses, who fully relies on the evaluations in
determining the award of the merit pay increases
which are periodically given to all satisfactory
employees. The OR supervisor is paid
approximately $65 more per month than other
operating room registered nurses with equal
seniority.
Upon all of the foregoing, we conclude that the
floor head nurses and the operating room supervisor
are supervisors within the meaning of the Act. We
shall accordingly exclude them from the unit.
We are unable to ascertain, on the present state
of the record, whether or not the duties of the
obstetrics supervisor, the obstetrics charge nurses,
and the recovery room head nurse encompass such
authority over auxiliary personnel as would make
them supervisors within the meaning of the Act. We
shall, therefore, permit them to vote subject to
challenge. With respect to the in-service training
supervisor and the head nurse in the intensive
care/cardiac care unit, the record amply supports
the Regional Director's finding that they are not
supervisors within the meaning of the Act and they
'So far as the record shows, the director of nurses and her assistants, the
shift supervisors , obtain all their information as to the work performance
of auxiliary employees through these evaluations and through other - oral
- comments and reports made by the floor head nurses
355
are, therefore, included in the unit.
Accordingly, the case is hereby remanded to the
Regional Director for Region 20 for the purpose of
conducting an election pursuant to his Decision and
Direction of Election, as modified herein, except
that the payroll for determining eligibility shall be
that immediately preceding the date below.'
MEMBER BROWN, dissenting in part:
I cannot agree with my colleagues that floor head
nurses are supervisory and should be excluded from
the unit. Nor do I concur in their view that the
status of the obstetrics supervisor, the obstetrics
charge nurses, and the recovery room head nurse is
so questionable as to require these individuals to
vote by challenged ballot. Rather I find no basis for
granting review as to them under Section 102.67(c)
of the Rules, and hence I would adopt the Regional
Director's conclusions that the incumbents of these
positions do not exercise supervisory authority and
would include them in the unit.
As to the floor head nurses, the Regional
Director's evaluation of the evidence led him to
conclude that their authority was merely a
manifestation of their professional status and high
degree of training and skill, rather than the exercise
of supervisory authority. The only duty set out by
the majority which might be relevant is their
evaluation of auxiliary personnel. However, it does
not appear from the record that the director of
nurses relies extensively on such evaluations; she
merely considers them as one factor.' I would not
find in these circumstances that the Director's
decision concerning the floor head nurses is clearly
erroneous and prejudicial to the rights of a party, as
required to secure review under Section 101.67(c) of
the Board's Rules and Regulations, or that any of
'An amended election eligibility list, containing the names and addresses
of all eligible voters, must be filed by the Employer with the Regional
Director for Region 20 within 7 days after the date of this Decision on
Review The Regional Director shall make this list available to all parties
to the election No extension of time to rile this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed Excelsior Underwear Inc , 156 NLRB
1236.
`Contrary to the statement of the majority, the record, in my view, does
not establish affirmatively that the director of nurses or the shift
supervisors obtain all their information as to the work performance of
auxiliary employees through the floor head nurses Nor does it appear that
the recommendations of the floor head nurses are relied on in any
substantial respect One floor head nurse testified , for example, that some
employees had received merit increases before she even filled out the
evaluation forms which were sent to her for completion when such
increases were due . And it is obvious that shift supervisors (the supervisory
level between the floor head nurses and the director of nurses) were a
source of information as to employee performance For, although the
director of nurses cited three instances in which raises were withheld
because of negative recommendations , in two of these cases there was a
joint recommendation by a shift supervisor and a floor RN (presumably a
head nurse) Further it is to be noted that the director of nurses testified
that she took no disciplinary action without making an investigation (which
might consist only of a discussion with the RN but clearly was not said to
be limited to any report of a floor head nurse ). Finally, it is clear that any
final decision to discharge could be made only by the administrator (the
overall supervisor of all hospital personnel) and that he does not act solely
on the recommendation made to him, even by the director of nurses
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other grounds for review there set forth is
satisfied. This is particularly true, moreover, as to
those categories whose status the majority states it
cannot determine and who are permitted to vote
only subject to challenge. It seems quite clear that
the so-called obstetrics supervisor and charge nurses
perform the regular professional nursing functions to
which they are assigned and there is no indication
that any of them, or the recovery room head nurse,
responsibly direct the work of others.
I agree that the operating room supervisor
undoubtedly exercises such authority as to require
that she be excluded, and hence I concur in the
reversal of the Director's finding as to her.
However, I would affirm the Director's decision in
all other respects.
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, a hearing was held before
a hearing officer of the National Labor Relations Board.
The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act,
the Board has delegated its powers in connection with this
case to the undersigned Regional Director.
Upon the entire record in this case, the Regional
Director finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6) and
(7) of the Act.
4. The 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 its
Modesto, California operation, excluding all other
employees, the director of nurses, day supervisor, PM
supervisor, night supervisor, central supply supervisor,
guards and other supervisors as defined in the Act
[Direction of Election2 omitted from publication
The Employer operates a proprietary hospital in Modesto, California
The hospital employs approximately 40 full-time and 40 part-time
registered nurses and approximately 245 other employees including
Licensed Vocational Nurses (LVN's) nurses aides , and maintenance
personnel Petitioner seeks a unit composed of all registered nurses The
Employer contends that all registered nurses are supervisors within the
meaning of the Act
The director of nurses is in charge of all nursing operations She
interviews all applicants for nursing jobs and makes effective
recommendations with respect to the hiring and discharge of registered
nurses to the hospital administrator who has final authority She also
assigns registered nurses to various departments within the hospital, and
periodically evaluates their work . The day supervisor , the PM supervisor,
and the night supervisor have authority to direct the work of the registered
nurses during their shifts , and to discipline employees The PM and night
supervisor are in full control of the nursing operations during their shifts
since the director of nurses is not on duty at those times The day, PM,
and night supervisors receive a base pay of $690 per month while head
nurses receive a base pay of $650 and staff nurses with one year experience
receive a base pay of $615 In accordance with the positions of the parties,
the director of nurses , the day supervisor, the PM supervisor and the night
supervisor are found to be supervisors within the meaning of the Act
The operating room is staffed by six or seven registered nurses , including
the operating room supervisor , and by several LVN's and aides It is run
on a regular basis only dunng the day shift, and at other times the
registered nurses are on call for emergency duties The operating room
supervisor coordinates the activities of the other personnel , and has made
recommendations to the director of nurses regarding the qualifications of
interchangeably The PM and night shifts are staffed by registered nurses
persons assigned to the operating room She receives $690 per month, the
same rate of pay as the day, PM, and night supervisors , which is
somewhat greater than that received by other head nurses This difference
is attributed to the fact that operating room nurses receive a monthly
premium of $20 In the absence of the operating room supervisor, any
registered nurse who is on call for the operating room during the evening
and night shifts will assume her duties During the course of operations she
performs duties similar to those performed by the other registered nurses
on duty It appears that the degree of control exercised by the operating
room supervisor over other personnel is attributed to her status as a
professional employee with a high degree of training and skill , rather than
to her possession of supervisory authority.
During the day shift the intensive care unit (ICU) and cardiac care unit
(CCU) are staffed by two registered nurses, one of whom is designated the
head nurse On the other two shifts, both units are staffed by four
registered nurses on a rotating basis The Employer contends that the head
nurse is a supervisor She coordinates the activities in ICU-CCU, schedules
the rotation of nurses on the three shifts, receives $650 monthly, which is
greater than other nurses in the ICU-CCU who receive $625 per month,
but less than the $690 rate paid to the day, night and PM Supervisors On
one occasion she recommended to the director of nurses that a person be
hired On the other hand , it appears from the record that during the day
shift she and the other registered nurse perform similar functions
Generally, one is in the ICU and one is in the CCU Both are trained to
use various specialized equipment such as defibrallators and pacemakers,
and are authorized to do so without consulting a doctor In an emergency
situation both may request extra help from the director of nurses During
the PM and night shifts when the head nurse is not on duty, her functions
are performed by the registered nurse assigned to ICU-CCU The head
nurse does not have authority to hire or discharge , or to formulate,
determine or effectuate management policy Accordingly, it is found that
she is a highly skilled professional who uses independent judgment and
discretion commensurate with her training , rather than a supervisor within
the meaning of the Act
During the day shift the obstetrics ward is staffed by three registered
nurses , one of whom is designated the OB Supervisor, and a number of
LVN's and nurses aides During the PM and night shifts one registered
nurse is on duty and one is on call The record discloses that the OB
supervisor coordinates the activities of the other obstetrics personnel on the
day shift, and occasionally interviews prospective employees and reports
their qualifications to the director of nurses On the other hand, it is clear
that she performs duties similar to the other registered nurses Normally
one of the registered nurses is in the delivery room , one in the labor room
and one in the postpartum room Each nurse is responsible for the care of
the patients in her area, and they are assigned to the various areas
on a rotation system Any nurse on duty assumes responsibility for
coordinating the activities of the other employees, and each oversees the
work of the LVN's and nurses' aides Thus, the OB supervisor has little or
no more authority over employees than do the other registered nurses, and
the authority she has is attributable to her professional status and
relatively greater degree of training , knowledge , experience and skill
Accordingly, it is found that she is not a supervisor
The central supply supervisor is on duty during the day shift only, and is
responsible for the sterilization and distribution of supplies throughout the
hospital She has authority to purchase supplies valued up to $1,000, and,
contrary to the other head nurses , she interviews all job applicants for
central supply, makes effective recommendations regarding the hire and
termination of employees , and makes periodic written evaluations of these
employees Central supply is staffed by a number of nurses ' aides and
licensed vocational nurses who do the actual sterilization and distribution
at the direction of the central supply supervisor As the central supply
supervisor has authority to pledge the employer's credit, direct the work of
other employees and make effective recommendations regarding the hire
and termination of employees , it is found that she is a supervisor within
the meaning of the Act
The function of the in service training supervisor is to develop and
implement a nurses training program The record shows that she does not
SHEREWOOD ENTERPRISES , INC. 357
direct the work of any employees , and that she has no authority to hire or
terminate employees or to effectively recommend such action Accordingly,
it is found that she is not a supervisor
Each wing of the hospital is staffed by two registered nurses on the day
and PM shift, one of whom is designated as the head nurse or charge nurse
and the other the medication nurse, and by a number of LVN's and nurses'
aides On the night shift only one registered nurse is on duty The head
nurses receive slightly greater pay than the medication nurses and assign
LVN's and nurses ' aides to particular patients They occasionally request
the transfer of employees from their ward, and at the request of the day
supervisor , or the director of nurses , evaluate the other employees The
head nurse does not have authority to hire or terminate employees, or to
grant time off She and the medication nurse are jointly responsible for the
care of the patients and both visit each patient at least twice a day The
medication nurse is responsible for the administration of drugs and
medicines , while the head nurse reviews the patient 's chart to ascertain if
all required services are being performed Both nurses oversee the other
employees with respect to the services that can be rendered by nurses aides
or licensed vocational nurses , and both can give these employees short
breaks Their authority in this regard is a manifestation of their
professional status and high degree of training and skill, rather than the
exercise of supervisory authority on behalf of management It is therefore
found that they are not supervisors
Aside from the particular registered nurses discussed above, the
Employer contends that all full-time and part-time registered nurses are
supervisors The record shows that the registered nurses possess a greater
degree of skill than other hospital employees , and accordingly, they
normally inform the LVN's and nurses' aides of the work to be performed
on patients , and insure that such work is done They do not have authority
to hire or terminate employees , or to effectively recommend such action, to
grant time off, or to discipline employees All the registered nurses,
including the parttime registered nurses , work interchangeably on their
particular ward , occasionally assuming the duties of the head nurse While
the Employer contends that this interchange establishes that the registered
nurses on each wing and in each department are "joint supervisors," the
contrary appears to be true That is, they are essentially a homogeneous
group of highly skilled professional employees who are assigned separate,
equal but overlapping responsibilities requiring the exercise of judgment
and discretion normally expected of professional employees They do not
formulate , effectuate or enforce management policies on behalf of
management Moreover , the Board has consistently held that registered
nurses constitute a well-defined professional group whose training , skill and
duties differ from other employees and that a unit confined to registered
nurses is appropriate for collective bargaining purposes Accordingly, it is
found that except for the director of nurses , the day supervisor, the PM
supervisor , the night supervisor , and the central supply supervisor, all of
whom are supervisors , the remaining registered nurses are not supervisors
and comprise an appropriate unit for collective -bargaining purposes
Consolidated Vultee Aircraft Corporation , Fort Worth Division, 108
NLRB 591
The Employer also employs approximately 40 registered nurses on a
part-time basis , approximately 32 of whom work I or 2 days a week on a
regularly scheduled basis performing the same duties as the fulltime
registered nurses It is clear that they possess sufficient community of
interest with the registered nurses to be included in the unit as regular
part-time employees As to the other eight part-time employees , the record
shows that they work only sporadically or in emergency situations, do not
have regularly scheduled hours, and work only when available or not
working at other jobs Accordingly , the following shall be excluded from
the unit as casuals Jeannette Hubbard, Roger Hugg, Mr Swift. Mr
Dolan , Mrs Schoate , Jean McAnulty , Verna Perier , June Weese
An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
within seven days of the date of this Decision and Direction of Election.
The Regional Director shall make the list available to all the parties to the
election In order to be timely filed , such list must be received in the
Regional Office , 450 Golden Gate Avenue, Box 36047 , San Francisco,
California 94102, on or before July 5, 1968 No extension of time to file
this list may be granted except in extraordinary circumstances , nor shall
the filing of a request for review operate to stay the filing of such list
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed Excelsior Underwear,
Inc, 156 NLRB 1236