Madeira Nursing Center, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1973

203 N.L.R.B. 323 (N.L.R.B. 1973)

MADEIRA NURSING CENTER, INC. 323
Madeira Nursing Center , Inc. and National Union of
Hospital and Nursing Home Employees, Local
1199H, Retail , Wholesale and Department Store
Union, AFL-CIO, Petitioner. Case 9-RC-9404
April 30, 1973
DECISION ON REVIEW
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On April 7, 1972, the Regional Director for Region
9 issued a Decision and Direction of Election in the
above-entitled proceeding, in which he found appro-
priate the Petitioner's requested unit of employees at
the Employer's nursing home excluding licensed prac-
tical nurses (LPN's) and registered nurses (RN's).
Thereafter, in accordance with National Labor Rela-
tions Board Rules and Regulations, the Employer
filed a timely request for review of the Regional
Director's Decision on the ground that he erred in
excluding the LPN's and RN's from the unit.
By telegraphic order dated May 1, the National
Labor Relations Board granted the request for review
and stayed the election pending decision on review.
Thereafter, the parties filed briefs on review. Pursuant
to leave granted by the Board, Licensed Practical
Nurses Association of Ohio, Inc., and National Asso-
ciation for Practical Nurse Education and Service,
Inc., herein referred to as the Ohio Association and
the National Association, respectively, filed briefs
amici curiae.
By telegraphic order dated June 30, the Board, on
review, concluded that the issues raised with respect
to the unit placement of the Employer's LPN's and
RN's could best be resolved on the basis of further
record testimony and remanded the case to the Re-
gional Director "for the purpose of holding a further
hearing to receive further and more detailed evidence
as to: (1) the pattern of local and national bargaining
with respect only to whether there is a prevailing prac-
tice as to the inclusion or exclusion of licensed practi-
cal nurses in nursing home or related health care
industry bargaining units (said pattern evidence need
not be restricted to contracts with employers subject
to NLRB jurisdiction) and (2) the specific duties and
supervisory authority, if any, of [LPN's and RN's] at
the Employer' s nursing home with particular regard
to the specific scope and extent of their authority, if
any, with respect to each of the several items referred
to in Section 2(11) of the Act."
Pursuant to the Board's order, a further hearing was
held before the same hearing officer of the Board who
had conducted the earlier hearing, Robert Smith. Af-
ter the hearing, the Employer and the Ohio Associa-
tion filed supplemental briefs with the Board.
The hearing officer's rulings made at the reopened
hearing are free from prejudicial error and are hereby
affirmed.
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
case with respect to the issues under review, including
the briefs on review filed by the parties and the amici,
and the supplemental briefs of the Employer and the
amicus, Ohio Association, and makes the following
findings:
The Regional Director found appropriate the
Petitioner's requested unit of nurses aides, orderlies,
housekeeping employees, maids, cooks, and kitchen
employees at the Employer's Madeira, Ohio, nursing
home facility, excluding, among others, LPN's and
RN's on the basis that they constitute identifiable
homogeneous groups entitled to separate representa-
tion, citing Drexel Home, Inc., 182 NLRB 1045. In
view of his exclusion of the LPN's and RN's on this
basis, he found it unnecessary to resolve issues raised
as to their status as supervisors and/or professional
employees as defined in the Act. The Employer, in its
request for review, renews its contention that its
LPN's and RN's are neither supervisors nor profes-
sionals and asserts that the Regional Director's basis
for excluding them is inconsistent with New Fern Res-
torium Co., 175 NLRB 871. In its supplemental brief,
the Employer contends that the record on remand
does not support a finding that its LPN's and RN's
are supervisors or that a pattern of bargaining exists
for separate units of LPN's in the nursing home indus-
try. The Petitioner and the amicus curiae, in their
briefs on review, support the Regional Director's deci-
sion and urge the Board to find the LPN's and RN's
to be supervisors. The amici urge that LPN's by rea-
son of their education and training and their in-
creased responsibilities in recent years in the
treatment of patients, enjoy a separate community of
interest apart from nurses aides and orderlies and are
much more closely allied in interest with RN's. Ami-
cus, Ohio Association, in its supplemental brief, ar-
gues on the basis of evidence submitted at the
reopened hearing that there is a prevailing practice of
excluding LPN's from broad nursing home bargain-
ing units and that a pattern exists, nationally and in
Ohio, of their representation in separate bargaining
units.
As found by the Regional Director, the Employer
is a proprietary nursing home with facilities for ap-
proximately 94 patients, many of whom are bedfast or
203 NLRB No. 42
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
senile . Under a director of nursing and her assistant,
both of whom are RN's and stipulated to be supervi-
sors, are some 40 employees, including 9 RN's and
LPN's whose status and unit placement is in dispute.
The operations are divided into nursing or patient
care, housekeeping, and dietary. Nursing is provided
at all times on a three-shift basis. There are 9 nurses,
about 25 nurses aides, and 2 orderlies. The nursing
home has east, west, and south wings. On each shift,
each wing has a charge nurse (RN or LPN)' who is
assisted by a varying number of aides, depending on
the wing, the shift. or the need. The LPN's are paid
an hourly rate which is about 80 percent higher than
aides'. One orderly is on duty the first and second
shift. The aides and orderlies are assigned duties by
the nurses. There is also a housekeeping staff of four
(at least one on each shift) and a kitchen staff (a first
and a second cook and approximately two full-time
and part-time helpers), who receive instructions as to
menus from a part-time outside consultant dietician
and are supervised directly by the director of nursing
and her assistant.
The duties of the RN's and LPN' s relate solely to
patient care and include the administering of medica-
tions, ordering of prescription refills, charting of pa-
tients ' conditions, applying established procedures in
emergencies, summoning physicians when, in their
judgment, their services are required, and maintaining
strict control over the narcotics supply. Following
schedules made up by the director of nursing, the
nurses assign their aides a certain number of patients
to attend. The aides and orderlies are involved pri-
marily in the environmental care of patients; i.e., mak-
ing their beds, tidying their rooms, bathing them, and
assisting them in dressing, feeding, and moving about.
They may also be given direct nursing duties, such as
taking temperatures. When dictated by the condition
of a patient, nurses also direct aides and orderlies to
assist in medical treatments.
Testimony taken at the reopened hearing indicates
that the RN's and LPN's do not have any authority
to affect, either directly or by making effective recom-
mendations, the employment status of aides and or-
derlies working under their direction. With respect to
discipline, their role is confined to reporting situations
to the director of nursing, who takes action only after
conducting an independent investigation. Work as-
signments and directions given by the nurses to aides
and orderlies do not, in our opinion, require indepen-
dentjudgment but are either in accord with the sche-
duling done by the director of nursing or dictated by
the needs of the patients. The RN's and LPN's are
i There is at least one RN on each shift Intravenous feedings may be
initiated only by RN's
not, therefore, supervisors as defined in the Act.
With respect to the pattern of bargaining, if any, for
LPN's, the record of the reopened hearing discloses
that in the local Cincinnati, Ohio. area the Petitioner
bargains for employees at eight nursing homes and
that in only two of them are LPN's included in a
broader unit. The Petitioner's national director of or-
ganization testified that of the Petitioner's approxi-
mately 80,000 members in 15 States and the District
of Columbia about 95 percent are employed mainly in
nonprofit hospitals and that of the approximately
5,000 members who are LPN's there may be 150-200
who are included in broader units.'
The Ohio Association presented the findings of an
expert who conducted a nationwide survey commis-
sioned by the National Association to determine the
national pattern, if any, concerning the unit place-
ment of LPN's as to service and maintenance units in
nursing homes. He testified that to this end a ques-
tionnaire was devised and sent to a random sample
consisting of 611 nursing homes in 28 major cities in
the United States. Responses from 248 of the nursing
homes, stated by the expert witness to be statistically
reliable, indicated that LPN's are generally (97.1 per-
cent of those responding) regarded by nursing homes
as part of the nursing staff; that they are generally
(91.3 percent) designated as "charge nurses" and, as
such, "supervise" aides, orderlies, and housekeeping
personnel;3 that union representation of nursing
home employees is not extensive (19.3 percent); that
in about three out of four nursing homes whose em-
ployees were organized to some extent, LPN's are not
represented; that representation of LPN's as part of
broad units of nursing home employees is minimal
(4.1 percent of those responding were organized to
some degree). On the basis of the foregoing, the wit-
ness stated his professional opinion to be that there is
a prevailing pattern in nursing homes in the United
States of excluding LPN's from bargaining units en-
compassing aides, orderlies, and housekeeping per-
sonnel. He stated that he conducted a similar survey
of Ohio nursing homes which resulted in the same
factual conclusions and professional opinions.
Evidence was introduced as to another survey tak-
en of all nursing homes in Ohio which indicated that
only 1.2 percent of LPN's there employed are repre-
sented in the same unit with other employees.
There was also testimony that, due primarily to the
2 He testified that the Petitioner represents many employees in nonprofit
exempt hospitals, and the uniform practice is to represent such employees in
five different units. RN's, LPN 's, technical employees , clerical employees,
and service and maintenance employees (normally including therein the
nurses aides and orderlies ). He stated that the Petitioner attempts to follow
the same practice in nursing homes, but that it has agreed in a few cases, in
order to avoid delays, to include LPN 's in service and maintenance units
No attempt was made in the questionnaires to ascertain whether or not
LPN charge nurses exercised supervisory authority as it is defined in the Act
MADEIRA NURSING CENTER, INC. 325
nurse shortage which developed in the nation during
the 1950's, LPN's have emerged from essentially an
auxiliary role in patient care to the status of a nurse,
performing duties which 12 or 15 years ago were per-
formed by an RN. Moreover, today generally an LPN
to qualify as such must undergo a period of special-
ized education for at least 1 year.
While the record testimony with respect to a pat-
tern of bargaining for LPN's indicated that in those
nusing homes where collective-bargaining relation-
ships exists, LPN's are excluded from broader units,
it is not clear from the surveys made whether they
were excluded on the basis that they are supervisors
or that they have a separate and distinct community
of interest. Our experience with proprietary nursing
home cases, since adoption of a standard for assertion
of jurisdiction over them, suggests that the duties and
responsibilities given to LPN's vary considerably
from one nursing home to another. However, we are
persuaded, in view of the educational requirements
generally prevailing for the practice of licensed practi-
cal nursing and the pattern which exists for broad
nursing home units excluding LPN's that we ought
not, by a rigid insistence that LPN's always be includ-
ed in overall nursing home units, preclude their exclu-
sion from a unit petitioned for when, as here, they
enjoy a substantial community of interest among
themselves which is separate and distinct from the
broader interests they share with other nursing home
employees. In the instant case, as the LPN's involved
are performing virtually the same nursing duties as
RN's, we find that they, like the RN's have a commu-
nity of interest separate and apart from the requested
employees and that the interests the LPN's share with
them are not such as, to require their inclusion in the
unit .4
Accordingly , as we have affirmed the Regional
Director's unit finding, we shall remand the case to
him in order that he may conduct an election pur-
suant to his Decision and Direction of Election, ex-
cept that the eligibility payroll period therefor shall be
the one immediately preceding the date of issuance.
[Excelsior footnote omitted from publication.]
New Fern Resiorium Co., supra, and Jackson Manor Nursing Home, Inc.,
and/or Isaac Mizrahi d/b/a Jackson Manor Nursing Home, Snapper Creek
Nursing Home and Arch Creek Nursing Home, 194 NLRB 892, to the extent
inconsistent herewith , are hereby overruled. We note that Jackson Manor
Nursing is distinguishable , as there the LPN's were under the supervision of
RN's and were assigned duties similar to those of nurses aides . In view of
our exclusion of LPN 's on the above ground , the RN 's are excluded on the
same ground and it is unnecessary to determine herein the issue raised by the
Employer as to their status as professional employees.
Our decision herein is not to be viewed as prohibiting the inclusion of
LPN's in a broader unit when a petitioner seeks their inclusion and the
circumstances justify their inclusion . See, for example , leisure Hills Health
Centers, Inc, 203 NLRB No. 46, where we found appropriate a broad nursing
home unit , encompassing LPN's in accord with the petitioning labor
organization's request , on the basis that the LPN's were not supervisors as
defined in the Act, and where, under the circumstances, we found that the
facts showed that they shared sufficient interests in common with other
requested employees to warrant their inclusion . See also Drexel Home, supra.