Greenpark Care Center

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 753 (N.L.R.B. 1977)

GREENPARK CARE CENTER
Sol Henkind, an Individual, d/b/a Greenpark Care
Center, formerly known as Willoughby Health
Related Facility and Local 144, Hotel, Hospital,
Nursing Home and Allied Health Services Union,
Service Employees International Union, AFL-CIO
and District 1199, National Union of Hospital and
Health Care Employees, Retail, Wholesale and
Department Store Union, AFL-CIO, Petitioners.
Cases 29-RC-3134 and 29-RC-3488
August 30, 1977
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
MURPHY AND WALTHER
On February 28, 1977, the Regional Director for
Region 29 issued his Decision, Order, and Direction
of Elections in the above-entitled proceeding, in
which he found, inter alia, that the Employer's
licensed practical nurses (LPNs) were supervisors.
He accordingly dismissed the petition in Case 29-
RC-3488, and as much of the petition in Case 29-
RC-3134 as seeks a unit of technical employees at
the Employer's health care center. Thereafter, in
accordance with Section 102.67 of the Board's Rules
and Regulations, Series 8, as amended, Petitioners
filed requests for review on the basis that, inter alia,
the Regional Director, in finding the LPNs to be
supervisors, departed from recently reported Board
precedent.
By telegraphic order dated March 30, 1977, the
Board granted Petitioners' requests for review.
Thereafter, District 1199 filed a brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, and makes the following findings:
The record shows that the Employer operates a
nursing home and health-related facility in Brooklyn,
New York. The facility consists of 12 floors, 3 of
which are used as a nursing home; the remaining
floors are used as a health-related facility which
provides a lower level patient care service. The health
care center operates on a three-shift basis. On the
day shift, 7 a.m. - 3 p.m., there are four registered
nurses (RNs) on duty who are undisputed supervi-
sors. These include the directress and assistant
directress of nursing. During this shift there is one
I There was testimony which indicated that some LPNs may cover only
one floor during these shifts. The number of aides and orderlies on duty
during these shifts cannot be determined from the record. Aides and
orderlies are apparently referred to as PCAs.
231 NLRB No. 104
LPN on each patient floor. Each nursing floor has
one LPN and four or five aides and orderlies. On
other floors there are fewer aides and orderlies. On
the evening shift, 3 p.m. - 11 p.m., there are two
RNs, and on the night shift, 11 p.m. - 7 a.m., there is
one RN on duty. During each of these latter shifts,
an LPN may cover as many as three floors.'
The directress of nursing and her assistant have
overall responsibility for patient care and nursing
functions. One of their duties includes monitoring
the work of the LPNs whose status is in question
here. The offices of these two undisputed supervisors,
like those of other RNs, are located on the first floor
of the facility. The other RNs fill out required paper-
work, handle doctors' visits, process complaints, and
make daily rounds. RNs may also schedule, call in,
or change assignments of aides and orderlies. On the
evening shift, the RNs act in the capacity of assistant
administrators. RNs may also perform complex
nursing procedures, such as hooking up intravenous
apparatus, which LPNs are not permitted to perform.
The approximately 20-25 LPNs are engaged in
daily patient care. They schedule routine tasks on a
daily basis for the aides and orderlies who are
assigned to their floors.2 They give instructions to
these employees and also discuss proper care of
individual patients. Instruction and orientation
include, among other things, how to administer
exercises or baths to particular patients. In addition
to assigning and orienting aides and orderlies, LPNs
also give medication and injections, dispense narcot-
ics, change dressings, and administer oxygen, if
necessary; they may also call doctors and make
rounds. Further, they requisition supplies on a
weekly basis. Testimony from LPNs indicates that
they spend from 50-85 percent of their time
performing nursing services.
It is undisputed that LPNs do not interview, hire,
discharge, or discipline employees. These functions
are performed by the RNs and administrators. Job
descriptions introduced into evidence at the hearing
provide that LPNs are "to supervise" all nursing
paraprofessionals on their assigned floors. However,
the Board has long held that the existence of a job
description will not preclude analysis of the facts as
to whether the employee actually can or does
exercise the authority therein described. We there-
fore turn to the record in this case.
With respect to recommendation of discipline,
Administrator Pelman, a witness for the Employer,
2 RNs check these schedules on a daily basis. LPNs do not schedule the
number of aides and orderlies who work nor do they schedule holidays or
vacations.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that the LPNs can initiate warning slips. In
his testimony Pelman referred to five warning slips.3
The record reveals that of these five slips, four were
signed by former LPN Blair, who Petitioners contend
had greater authority than present LPNs.4 The fifth
warning slip was signed by an RN as well as by an
LPN, and the word "witness" appeared next to the
LPN's signature. There was no showing that employ-
ees had been disciplined as a result of the issuance of
these five slips.
Both LPN witnesses for the Petitioners testified
that they did not have the authority to issue warning
slips. LPN Brown testified that she reports infrac-
tions and other incidents directly to an RN and it is
the RN who takes appropriate action based on the
reported incident. Brown did state that warning slips
can lead to suspension or termination of an employ-
ee. She testified that she had been present when RNs
wrote up warnings and she had been asked to sign
warning slips. RNs, according to Brown, write up
warning slips based on what LPNs have told them,
on their own observations, and on what other
department employees or heads have informed them.
LPN Murray stated that she had never seen a
warning slip.
It appears that there are two facets to the
evaluation process used by the Employer. One is a
detailed rating of the capabilities of aides and
orderlies which is completed by the LPNs. LPNs
evaluate the performance of employees on tasks such
as bathing a patient or taking pulse and temperature.
Apparently, these evaluations are placed in the
employee's personnel file, but the LPN does not
discuss the rating with the employee. In addition to
this evaluation, RNs write up evaluations of aides
and orderlies. These evaluations are based in part on
consultations between RNs and LPNs during the
former's rounds, and just prior to the actual
evaluation. LPNs subsequently check the RNs'
evaluations to ensure their accuracy. RNs always
sign the evaluation, and the LPN who reviewed it
may sign if she desires. Although these evaluations
apparently can be used in deciding whether to
terminate an employee, or to rehire an employee
after a leave of absence, there is no evidence in the
record that they have actually affected the status of
employees. Moreover, the evidence is contradictory
as to whether these evaluations are performed on a
regular basis.
With respect to the transfer of employees, the
record shows that if there is an absence or emergency
on a floor, LPNs may transfer an aide or orderly to
:' These warning slips were never introduced into evidence.
According to testimony, Blair was an LPN who was assigned to all
floors operated by the Employer when the care center was first opened. The
Employer did not utilize all floors immediately. Blair was also apparently
paid at a higher rate than other LPNs.
another floor at the request of another LPN. LPNs
subsequently inform an RN of this transfer. The
transfer is temporary in nature, its duration being
only the time needed to assist during the emergency
or absence. Administrator Pelman testified that
LPNs effectively recommend permanent transfers.
He referred to a document which purported to be a
recommendation by an LPN to transfer an aide, who
was subsequently transferred. 5 On further examina-
tion, Pelman testified that the directress of nursing
made the decision to transfer the aide. LPN Brown
testified that she once requested that an aide be
transferred from her floor, but that an RN stated that
they should "see how she performs and see what
happens." The aide was not transferred. Brown
further testified that in one instance an aide who
wanted to transfer spoke directly with an RN and
not Brown. Brown learned of the request after the
aide was transferred. In another example, Brown
stated that she once informed an RN that an aide
was performing poorly and the aide was taken off her
floor although Brown did not actually recommend
such action.
The testimony with respect to the LPNs' power to
recommend the hiring and discharge of employees is
to some extent in conflict. It is clear from the record
that LPNs are consulted by RNs on decisions to
discharge and LPNs voice opinions on the perfor-
mance of aides and orderlies. Pelman testified that
LPN recommendations regarding hiring or discharge
are followed by RNs. He referred to a document 6 in
which an LPN allegedly recommended that a
temporary employee be retained and placed on her
floor. On further examination, Pelman stated that the
directress of nursing made the final decision with
respect to the permanent hiring of the employee. This
same pattern of testimony emerged with respect to an
example in which an LPN allegedly recommended
the discharge of an employee. In that instance, the
assistant directress of nursing made the ultimate
decision to discharge the employee involved.
The LPNs make no recommendations with respect
to pay raises. Although there was some testimony to
indicate that LPNs grant time off or sick leave, one
LPN who testified stated that she referred such
requests to the RNs, who made the determination,
and another LPN stated she had not been told she
could permit employees to go home.
The Regional Director, in concluding that the
LPNs were supervisors, found that LPNs "apparent-
ly" have recommended, or effectively recommended,
discharge of employees, may initiate warning slips
5 This document was not placed into evidence.
6 The document in question was dated February 3, 1977, which came
between the two hearing dates on this matter.
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GREENPARK CARE CENTER
and transfer employees on a temporary basis. He
also found that RNs "presumably" rely on LPN
recommendations with respect to the evaluations
they make on aides and orderlies. After careful
consideration of the entire record, we conclude,
contrary to the Regional Director, that the LPNs are
not supervisors. We recognize, as did the Regional
Director, that the record contains certain conclusion-
ary statements which, at times, are contradicted by
the facts presented. However, the import of the
record evidence leads us to conclude that the LPNs
do not possess supervisory indicia under Section
2(1 1) of the Act.
As indicated, the record reveals that LPNs are
primarily engaged in providing patient care and the
exercise of any authority by them is routine and not
the product of independent judgment. Thus, al-
though LPNs may inform RNs of infractions which
lead to issuance of warning slips, perform periodic
evaluations of the tasks performed by employees and
review those made by RNs, or temporarily transfer
employees to meet exigencies at the facility, we find
I Shadescrest Health Care Center, 228 NLRB 1081, 1082 (1977).
" Shadescrest Health Care Center, supra, Sunset Nursing Homes, Inc.,
d, h/a ,North Miami Convalescent Home, 224 NLRB 1271 (1976); North Dade
Medical Center. 210 NLRB 588 (1974); Pinecrest Convalescent Home, Inc..
222 NLRB 13(1976) (Member Murphy who dissented in that case finds the
instant case distinguishable on its facts); Wing Memorial Hospital Associa-
that the LPNs' exercise of these duties is "fundamen-
tally limited to providing routine patient care" and
that they are not supervisors within the meaning of
the Act.7 Recent Board decisions have found LPNs
who performed functions similar to those done by
the LPNs here not to be supervisors. 8 We also note
that RNs are on duty during each of the shifts at the
health care center, and that a disproportionate ratio
of supervisors to employees may exist if these 20-25
LPNs were found to be supervisors.
Accordingly, we find that the following employees
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All technical employees, including licensed prac-
tical nurses, employed by the Employer, exclud-
ing all other employees, professional employees,
guards, and supervisors as defined in the Act.
[Direction of Election omitted from publica-
tion.]9 10
lion, 217 NLRB 1015 (1975); Pikeville Investors, Inc.. d/b/a Mountain Manor
Nursing Home, 204 NLRB 425 (1973); New Fern Restorium Co., 175 NLRB
871 (1969).
9 [Excelsior footnote omitted from publication.]
'O Local 719 intervened in all petitions on the basis of a showing of
interest.
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