Eventide South, A Division Of Geriatrics, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1978

239 N.L.R.B. 287 (N.L.R.B. 1978)

EVENTIDE SOUTH, A DIVISION OF GERIATRICS, INC.
Eventide South, a Division of Geriatrics, Inc. and Pro-
fessional and Health Care Employees Division, Re-
tail Clerks Union Local No. 7, chartered by Retail
Clerks International Union, AFLCIO, Petitioner.
Case 27-RC-5700
November 14. 1978
DECISION ON REVIEW, ORDER, AND
DIRECTION OF ELECTION
BY MEMBERS JENKINS. PENFLIO. AND TRUESDALIE
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on May 3 and 30, 1978. before
Hearing Officer Wayne L. Benson. On June 15, 1978,
the Regional Director for Region 27 issued a Deci-
sion and Order in which he found that all registered
nurses employed by the Employer are supervisors
within the meaning of Section 2(11) of the Act. Ac-
cordingly, the Regional Director dismissed the peti-
tion filed herein, which sought a unit consisting of
"all full time and regular part time registered profes-
sional nurses, excluding all other employees, su-
pervisors, confidential employees, business office cleri-
cal employees and guards as defined in the National
Labor Relations Act." Thereafter, in accordance with
Section 102.67 of the National Labor Relations Board
Rules and Regulations and Statements of Procedure,
Series 8, as amended, Petitioner filed a timely request
for review of the Regional Director's decision. In its
request for review, Petitioner contends that the Region-
al Director made factual findings which are clearly
erroneous, and that he departed from officially report-
ed precedent. The Employer filed a statement in opposi-
tion to Petitioner's request for review.
By telegraphic order dated July 26, 1978, the
Board granted Petitioner's request for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
proceeding with respect to the issue under review,
including the briefs of the parties, and makes the fol-
lowing findings:
The Employer operates a nursing home facility, at
which it employs 11 registered nurses. The parties
stipulated that the registered nurses are professional
employees as defined in Section 2(12) of the Act, and
further stipulated that 4 of the II registered nurses
are supervisors within the meaning of the Act.' The
i The four nurses stipulated to be supervisors. and their job titles are as
only issue presented in this case is whether the re-
maining seven registered nurses employed by the
Employer are supervisors within the meaning of the
Act.?
Petitioner contends that the Regional Director
erred in finding that all registered nurses employed by
the Employer are supervisors within the meaning of
Section 2(11) of the Act. We agree.
The job titles of the seven nurses whose status is
contested are: charge nurse day supervisor: relief
charge nurse day supervisor; charge nurse evening
supervisor: relief charge nurse evening supervisor;
charge nurse night supervisor; relief charge nurse
night supervisor; and charge nurse.' The duties and
responsibilities of these charge nurses, as we shall re-
fer to them, are e;sentially identical. Each is respon-
sible for insuring adequate staffing throughout the
nursing home on her shift. Certain minimum staffing
patterns are required by the State, and, if an employ-
ee or employees fail to report for work, resulting in
the facility not meeting the state requirements, each
charge nurse may call in nonscheduled employees to
cover the deficiency. However, the charge nurses do
not have authority to order an employee to report for
work: their only authority is to make a request.
which the employee is free to refuse without risking
discipline. If the charge nurse on duty is unable to
secure adequate staffing, she must contact the direc-
tor of nursing services for approval before calling an
independent labor pool.4 Alternatively, the charge
nurse may temporarily transfer an employee from
one area of the nursing home to another area which
is understaffed. This movement is done on the basis
of a determination that there is not enough staff to
take care of patients in one particular area, and is
strictly limited to cover immediate patient care
needs.5 The charge nurses do not have the authority
to make permanent transfers, which must be made
by the director of nursing services. In the event that
an employee requests, or a charge nurse recom-
mends, a permanent transfer, the director of nursing
follows: Catherine Butler. director of nursing services: Marilyn Garrity.
assistant director of nursing services: Patty Wynkoop. inservice director:
and Nancy McCambridge. assistant inservice director.
2 The parties stipulated that the requested unit is an appropriate one for
bargaining
We attach no weight to the use of the term "supervisor" in these job
titles. as it is settled that "the mere use of a title or the giving of 'paper
authority' which is not exercised does not make an employee a supervisor,"
Sunset Nursing Homes, Inc. d/b/a North Miami Convalescent Home, 224
NLRB 1271. 1273 (1976).
On the first day of the hearings. May 3. 1978, the Employer claimed that
the charge nurses had the authority to call the labor pool at their own
discretion However. on the second day of the hearings. May 30. 1978. the
director of nursing services testified that the charge nurses must get ap-
proval from one of the four stipulated supervisors before contacting the
pool.
The director of nursing services admitted on cross-examination that
such a temporary transfer of staff is "a medical judgement concerning a
patient's care."
287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
services will independently investigate the need for
and feasibility of the transfer before making a deci-
sion.
It is undisputed that charge nurses have authority
to "counsel" employees, through the administration
of oral and written warnings. The counseling is done
on a "counseling sheet." which, when completed, can
constitute a written warning. However, charge nurses
do not have the authority to suspend or terminate
employees, although they may recommend such ac-
tion to the director of nursing services, who then con-
ducts an independent investigation. The counseling
that the charge nurses to have authority to carry out
is also performed by various licensed practical nurses
employed by the Employer. Barbara Nelson, one of
the charge nurses, testified on cross-examination that
an example of the type of infraction for which she
would issue a warning would be an employee is leav-
ing a patient's bedsheets disarranged, because "that
is not good for the patient." We believe that it is clear
from the record that the function of the charge nurs-
es in the Employer's disciplinary procedure is to ob-
serve inadequacies in an employee's work perfor-
mance, attempt to point out those inadequacies to
the employee and suggest improvements, and then
report the facts concerning the employee's perfor-
mance to the director of nursing services, who makes
her own independent evaluation of the employee's
work performance and determines what, if any, disci-
pline should be imposed. Moreover, the record con-
tains no evidence suggesting that even the minor dis-
ciplinary powers exercised by the charge nurses
extend beyond the realm of patient care to adminis-
trative or personnel matters such as employee absen-
teeism. 6
The Employer asserts that the charge nurses have
the authority to allow employees to leave work early
in case of illness, and to grant employees permission
to work overtime. However, the record reveals that it
is the Employer's policy that only the director of
nursing services and her assistant have authority to
grant overtime, except in emergency situations where
the charge nurse makes a medical determination that
the condition of a patient requires one or more em-
ployees to work overtime. As we have stated that per-
mitting an employee to leave early due to illness is a
duty "accomplished in a perfunctory manner not re-
quiring the exercise of any discretion," 7 we do not
agree that either factor can be considered as an indi-
cation of supervisory status.
Both Petitioner and the Employer agree that the
charge nurses evaluate employees at the facility on a
6See St. Mary s Hospital, Inc., 220 NLRB 496 11975).
7Pinecrest Convalescent Home, Inc, 222 N! RB 13 (1976).
standard form supplied by the Employer. Both also
agree that the evaluations are not the basis for wage
increases, which are awarded strictly by seniority.
Nonetheless, the Employer argues that the crucial
point is that the charge nurses "are afforded discre-
tionary authority to praise or criticize an employee's
performance." To the contrary, Petitioner argues that
the evaluations are "meaningless," suggesting they
are merely a carryover from previous practice when
the evaluations were used, at least partially, to de-
termine wage increases. The record, however, con-
tains no information indicating the purposes of the
evaluations, other than that they are not used to de-
termine wage increases, and we are unwilling to spec-
ulate as to their significance. It is sufficient for our
purposes to note that the evaluation of employees,
and particularly nonunit employees, is not disposi-
tive of supervisory status. Texas Institute for Rehabili-
tation and Research, 228 NLRB 578 (1977). That is
particularly true where, as here, the employer has no
merit increase program and therefore a good evalua-
tion cannot lead to a merit wage increase. St. Rose de
Lima Hospital, Inc., 223 NLRB 1511 (1976); St.
Mary's Hospital, Inc., supra.
Charge Nurse Nelson testified that approximately
80 percent of her time on a typical day is devoted to
direct patient care. She has no authority to adjust
grievances, which must be resolved by the Employ-
er's administrator or, if "trivial," by the director of
nursing services. If an employee desires a leave of
absence, regardless of duration, the employee must
seek approval from the director of nursing services.
Although it is conceded that charge nurses do not
have the authority to hire employees and do not par-
ticipate in the interviews of applicants, the Employer
argues that charge nurses can effectively recommend
that a particular applicant be hired. In support of its
contention, the Employer cited only one instance
where a charge nurse recommended that an individ-
ual be hired. In that case Charge Nurse Nelson sent
her sister to see the assistant director of nursing ser-
vices, Marilyn Garrity, because Nelson knew there
were openings. Nelson's uncontradicted description
of the incident was as follows:
Q. I believe there was some testimony about
your sister becoming employed at the facility; is
that correct?
A. Yes.
Q. Would you tell us how that came about?
A. Well, my sister came to the facility one
day to drop some things off to me and told me
that she was short on hours at another job that
she was working at that time, and I knew that
we were short in the facility. So. I took her up to
Mrs. Garrity and introduced her and told her
288
EVENTIDE SOUTH, A DIVISION OF GERIATRICS, INC.
that Sue was possibly looking for maybe some
more employment, some more hours within the
facility.
Q. What happened after you introduced her
to Mrs. Garrity?
A. I left her in the office and went back to
work.
Without any further evidence, however, we cannot
conclude that one isolated referral of a relative estab-
lishes that the charge nurses have the authority to
effectively recommend action with respect to hiring,
and, in the absence of other evidence, we expressly
find to the contrary.8
The Employer places great reliance on the fact that
on weekends the charge nurses are in charge of the
entire facility. Petitioner, however, argues that all of
the authority exercised by the charge nurses on week-
ends is based on their medical experience and medi-
cal judgment. The director of nursing services testi-
fied that on those occasions when the charge nurses
were in charge of the facility one of the four stipulat-
ed supervisors was always on call for emergencies.
Patty Wynkoop, the Employer's inservice director,
testified that "on the average" she receives "about"
two calls per weekend. The record also reveals that
there is posted in the facility a list of persons who
should be contacted in case of nonmedical emergen-
cies when the administrator is not there. In de-
scending order, the instructions list the assistant ad-
ministrator, the director of nursing services, the
assistant director of nursing services, and the recep-
tionist. Charge nurses are not included on the list.
Finally, the record reveals that the charge nurses are
paid hourly, as are licensed practical nurses, and that
both classifications receive identical benefits.
Based on the foregoing evidence, we conclude that
charge nurses perform their duties and functions pre-
dominantly in the exercise of professional judgment
incidental to their treatment of patients. Their duties
and authority are all directed toward quality treat-
ment of patients and do not, without more, constitute
supervisory authority in the Employer's interest. Fur-
ther, we find that charge nurses possess neither the
authority to hire or discharge. or discipline be)ond
the stage of a minor reprimand. nor the authority to
make effective recommendations affecting the em-
ployment status of employees. The Board has care-
fully avoided applying the definition of "supervisor"
to a health care professional who gives direction to
other employees which is incidental to the
Cf. Sutter (Communitt lsrirotalr a t ,a ,-raomtle,. lnc. 227 NI RB Il
( 1976L.
professional's treatment of patients. Wing Memorial
Hospital Association, 217 NLRB 1015 (1975). As we
stated in Meharrv Medical College, 219 NLRB 488,
490 (1975):
[lit appears that charge nurses do not exercise
an, real supervisory authority on behalf of man-
agement over employees. Rather, their duties are
for the most part routine, involving the general
direction of employees in the performance of
their normal patient care duties and, as such, the
charge nurses function more in the nature of
lead persons. Even assuming that charge nurses
may exercise some supervisory authority, the
fact they may do so only for a short period of
time and on a sporadic basis would not require
their exclusion from the unit.
In our opinion the record does not support a find-
ing that charge nurses are statutory supervisors. We
are satisfied that their duties are generally limited to
giving directions in the performance of their profes-
sional duties and, as such, are not responsibilities
considered supervisory within the meaning of Sec-
tion 2( I1) of the Act. Accordingly, we conclude that
the charge nurses are. with the exception of those
stipulated to be supervisors, statutory employees and
we shall therefore direct an election in the following
unit which we find to be appropriate: 9
All full-time and regular part-time registered
professional nurses employed by the Employer
at its Fort Collins. Colorado, facility, excluding
all other employees, supervisors, confidential
employees, business office clerical employees,
and guards as defined in the Act.
On June 15. 1978. the Regional Director for Re-
gion 27 issued a Decision and Order in which he
found all members of the petitioned-for unit to be
supervisors within the meaning of Section 2(11) of
the Act. and, accordingly. dismissed Petitioner's peti-
tion.
The Board, having reviewed the Regional Direc-
tor's Decision and Order, has found that all members
of the petitioned-for unit are statutory employees.
and that said unit is an appropriate one for collective
bargaining.
ORDER
It is herebN ordered that Petitioner's petition filed
on Mas 3. 1978. be. and it hereby is, reinstated.
[Direction of Election and E.x-celsior footnote omit-
ted from publication.l
Wei,; it lprJ1 tl ,t Sal-milU1 t,,. Ir, 217 NilRB 765 (1975).
289