Mount Sinai Hospital

National Labor Relations Board - Board Decisions

Jul 20, 1998

325 N.L.R.B. 1136 (N.L.R.B. 1998)

1136
325 NLRB No. 214
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The questions ask for information about the employee’s skills
and areas in which the employee’s performance could be improved.
For employees in patient care related jobs, the form asks that a rec-
ommendation as to the employee’s continued employment be made
by marking a box on the form labeled ‘‘YES,’’ ‘‘NO,’’ or ‘‘CONDI-
TIONAL.’’
The Mount Sinai Hospital and 1199 National Health
and Human Service Employees Union, Peti-
tioner. Case 2–RC–21684
July 20, 1998
DECISION AND DIRECTION
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND HURTGEN
The National Labor Relations Board has considered
the determinative challenge in an election held May
23, 1996, and the hearing officer’s report recommend-
ing disposition of it. The election was conducted pur-
suant to a Stipulated Election Agreement. The tally of
ballots shows 5 for and 5 against the Petitioner, with
1 challenged ballot.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has reviewed the record in light of the
exceptions and briefs, and adopts the hearing officer’s
findings and recommendations only to the extent con-
sistent with this Decision and Direction.
The hearing officer found that senior cardiac
catherization specialist, Ana Gonzalez, was a super-
visor within the meaning of Section 2(11) of the Act,
and therefore recommended that the challenge to her
ballot be sustained. The hearing officer found Gon-
zalez to be a supervisor in view of Gonzalez’ evalua-
tion of probationary employee Wilfredo Gaerlan. For
the reasons set forth below, we find, contrary to the
hearing officer, that Gonzalez’ evaluation of Gaerlan is
insufficient to establish supervisory status.
The Employer operates a cardiac catherization lab-
oratory in its hospital facility. Pursuant to a require-
ment of the Joint Commission of Accreditation of
Health Care Organizations, the Employer evaluates all
newly hired patient care employees at the conclusion
of a 3-month probationary period. In late June 1996,
after the election had taken place, Gonzalez, at the re-
quest of the Employer’s Administrator Margaret
Cheng, prepared such an evaluation of cardiovascular
technician Wilfredo Gaerlan, a new employee whose
3-month probationary period was about to expire.
Cheng testified that, although Gaerlan was nearing the
end of his 3-month probationary period at the time
Gonzalez prepared the evaluation, it usually takes
about 6 months to completely train a new cardio-
vascular technician to cover all of the responsibilities
of that position.
Gonzalez’ preparation of Gaerlan’s evaluation in-
volved discussions with Cheng concerning Gaerlan’s
performance, and the submission of written notes to
Cheng which responded to certain questions that are
set forth on the Employer’s new employee appraisal
forms.1 Relying on both the oral and written informa-
tion provided by Gonzalez, Cheng typed the answers
to the questions on the appraisal form, including
checking the box on the form marked ‘‘YES’’ in re-
sponse to whether Gaerlan should continue to be em-
ployed. Cheng’s typed answers included a paragraph
explaining that a cardiovascular technician requires 6
months of training, that Gaerlan had progressed well
over his first 3 months but still required an additional
3 months of training, that Gaerlan’s probationary pe-
riod would be extended for another 3 months, and that
he would receive another evaluation when he finished
his training at the end of that 3-month period.
Prior to working on Gaerlan’s evaluation, Gonzalez
had not been involved in the preparation of any em-
ployee evaluations.
The hearing officer found that Gonzalez exercised
independent judgment in preparing Gaerlan’s evalua-
tion and had effectively recommended that Gaerlan’s
probationary status be extended for 3 months. From
this conduct, the hearing officer concluded that Gon-
zalez evaluates employees, has the authority to make
recommendations affecting employees’ employment
status, and therefore is a statutory supervisor. Accord-
ingly, the hearing officer concluded that the challenge
to her ballot should be sustained. We disagree.
It is well established that the ability to evaluate em-
ployees, without more, is insufficient to establish statu-
tory supervisory authority. Passavant Health Center,
284 NLRB 887, 891 (1987). This factor has been
deemed unpersuasive in the absence of evidence that
an employee’s job was ever affected by such an eval-
uation. Manor West, Inc., 311 NLRB 655, 663 (1993).
In Harbor City Volunteer Ambulance Squad, 318
NLRB 764, 764–765 (1995), the Board found that cer-
tain field training officers were not statutory super-
visors even though they evaluated new paramedics and
made effective recommendations as to whether the
paramedics should be retained for further training or
advanced to solo status. In finding the evaluations and
recommendations insufficient to establish supervisory
status, the Board noted that there was no evidence the
recommendations would necessarily lead to permanent
employment or to a change in pay status, or would
have any other impact on the employees’ job status.
Similarly, the record fails to show that Gonzalez’
evaluation of Gaerlan included any recommendations
that would necessarily impact the employee’s ultimate
job status. Indeed, there has been no showing that
Gonzalez’ evaluation of Gaerlan led to a wage change,
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01136 Fmt 0610 Sfmt 0610 D:\NLRB\325.168 APPS10 PsN: APPS10
1137MOUNT SINAI HOSPITAL
2 The other two evaluations included the usual recommendation of
continued probation.
3 Our colleague asserts that Cheng’s lack of a technical back-
ground establishes that she did not independently review Marin’s
recommendations that the employees either continue in probationary
status or convert to permanent status. We disagree. Although
Cheng’s lack of a technical background may be indicative of
Marin’s technical advice or input, it does not establish the absence
of any meaningful independent review of Marin’s recommendations.
In addition, our colleague’s speculation, that an independent review
by Cheng ‘‘would not be inconsistent with an effective recommenda-
tion to Cheng,’’ does not affirmatively establish that an effective rec-
ommendation was made to Cheng. In our view, the record fails to
establish that Cheng did not independently review Marin’s rec-
ommendations or that any such recommendation was effective.
4 Our colleague attempts to diminish the significance of the fact
that this conversation occurred postelection by asserting that, prior
to the election, Gonzalez was ‘‘aware’’ that her role in the prepara-
tion of such evaluations could affect the employment status of pro-
bationary employees. We find no record support for our colleague’s
assertion. He relies largely on the speculative assertion that it is ‘‘in-
conceivable’’ that Gonzalez was unaware of her ability to effectively
recommend a change in the employment status of probationary em-
ployees. This, however, does not supply the missing support. The
few ‘‘facts’’ he cites clearly fail to establish an awareness of such
authority with respect to evaluations.
5 See Illinois Veterans Home at Anna L.P., 323 NLRB No. 161,
slip op. at 2 (June 6, 1997), where the Board found that the limited
authority of the RNs to assign and direct employees when special
tasks arise, such as when a resident develops a fever, is not indic-
ative of supervisory status. Our colleague asserts that that case is
distinguishable because the assignments there ‘‘involved procedures
within the normal range of duties of certified nurses’ aides.’’ There
is nothing in the record, however, showing that Gonzalez’ assign-
ments involve tasks outside the employees’ normal range of duties.
Consequently, we fail to see how our colleagues’ assertion provides
any meaningful basis for distinguishing that case from the instant
one.
We also adopt the hearing officer’s finding that Gonzalez’ other
duties are not sufficient to establish supervisory status.
to permanent employment, or to any other change in
Gaerlan’s status.
The hearing officer placed considerable emphasis on
the fact that Gonzalez recommended Gaerlan continue
on probation for another 3 months and be evaluated
again at the end of that period. As noted above, how-
ever, Gaerlan had only completed 3 months of training
at the time of his evaluation, and it usually takes 6
months to completely train a new cardiovascular tech-
nician such as Gaerlan. Thus, it is apparent that Gon-
zalez recommended nothing more than the continuation
of Gaerlan’s training and probationary status until the
end of the usual 6-month training period. As the Board
held in Harbor City, supra, recommendations of this
kind do not constitute the type of personnel decisions
that establish statutory supervisory authority.
Moreover, we find it significant that the conduct re-
lied upon by the hearing officer in finding supervisory
status occurred after the election. Indeed, there has
been no showing that, prior to the election, Gonzalez
had ever prepared employee evaluations. As a general
rule, the Board does not determine voter eligibility
based on evidence of events that occurred after the
election. Georgia-Pacific Corp., 201 NLRB 831, 832
(1973). Thus, the fact that the Employer did not have
Gonzalez prepare an employee evaluation until after
the election had taken place, and after her determina-
tive vote had been challenged, casts further doubt on
the contention that Gonzalez’ evaluation of Gaerlan is
indicative of statutory supervisory status.
In adopting the hearing officer’s finding that Gon-
zalez’ authority to evaluate probationary employees es-
tablishes supervisory status, our dissenting colleague
essentially relies on two record facts. First, he relies on
the fact that employee Gerry Marin—who filled in for
Gonzalez while she was on maternity leave from April
1994 through January 1995—worked on three com-
petency evaluations, one of which included a rec-
ommendation that a probationary employee be con-
verted to permanent status.2 The record fails to show,
however, whether Marin—in his acting capacity—
made an effective recommendation in this regard or,
conversely, whether the recommendation was subject
to the independent review of the Respondent’s admin-
istrator, Margaret Cheng.3 In the absence of evidence
of an effective recommendation by Marin, we find that
Marin’s involvement in the evaluation process is insuf-
ficient to confer supervisory status upon Gonzalez.
Second, our colleague relies on Cheng’s testimony
that she informed Gonzalez that—in evaluating
Gaerlan—Gonzalez had the option of recommending
the continuation of Gaerlan’s probationary status, or al-
ternatively, recommending Gaerlan’s termination or
conversion to permanent status. The record shows,
however, that this conversation occurred in the course
of preparing Gaerlan’s evaluation, which, as noted
above, occurred after the election. Accordingly, it is
postelection conduct that has no bearing on Gonzalez’
eligibility to vote. Georgia-Pacific Corp., supra.4 In
addition, there has been no showing that any rec-
ommendation for termination or conversion to perma-
nent status would be followed by Cheng without an
independent review, and thus no showing that such a
recommendation would be ‘‘effective’’ within the
meaning of Section 2(11).
Our colleague would also find, contrary to the hear-
ing officer, that Gonzalez is a supervisor in view of
her assignment of work to employees in emergency sit-
uations. We find no merit to this contention and adopt
the hearing officer’s finding that this conduct does not
establish supervisory status.5
In sum, we find that the evidence fails to establish
that Gonzalez is a statutory supervisor, and thus the
challenge to her ballot should be overruled. Accord-
ingly, we shall remand the case to the Regional Direc-
tor for the purpose of opening and counting the chal-
lenged ballot and for further appropriate action.
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01137 Fmt 0610 Sfmt 0610 D:\NLRB\325.168 APPS10 PsN: APPS10
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer claims that Gonzalez was informed in November
1993 that she was responsible for the competency evaluations. Al-
though the record is not clear on this point, Gonzalez admits that,
by at least March 1995—shortly after her return from maternity
leave—she was informed of this responsibility.
2 I find unpersuasive the majority’s argument that Cheng’s lack of
technical expertise does not establish that she failed to conduct a
meaningful, independent review of SCCS competency recommenda-
tions. I believe that the weight of the evidence demonstrates pre-
cisely that. Thus, not only does Cheng concede that she lacks the
technical background to evaluate the competency of CCS employees,
but she testified that the SCCS conducts such evaluations, and the
proffered recommendations are followed. Significantly, Cheng also
testified that it is the SCCS who is ultimately held accountable for
the competency of newly hired CCS employees.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 2 shall, within 14 days from the date of this Deci-
sion and Direction, open and count the ballot of Ana
Gonzalez. The Regional Director shall then serve on
the parties a revised tally of ballots and issue the ap-
propriate certification.
MEMBER HURTGEN, dissenting.
Contrary to my colleagues, I find that Senior Car-
diac Catherization Specialist (SCCS) Ana Gonzalez is
a Section 2(11) supervisor who was ineligible to vote
in the election. Accordingly, I would sustain the chal-
lenge to her ballot and certify the results of the May
23, 1996 election.
It is well settled that individuals are statutory super-
visors when they evaluate others in circumstances
where the evaluations lead to personnel actions affect-
ing the appraised employees, such as the grant of merit
increases, or the determination that the rated employ-
ees will be retained, discharged, or placed on proba-
tion. See generally, Northcrest Nursing Home, 313
NLRB 491, 498 fns. 36, 37 (1993). The determinative
factor in assessing the evaluator’s supervisory status is
whether the evaluations impinge on the rated employ-
ees’ job status. Manor West, Inc., 311 NLRB 655, 663
(1993). Under this standard, I agree with the hearing
officer that Gonzalez is a supervisor based on her au-
thority to undertake competency evaluations.
The record establishes that, in November 1993,
Gonzalez was selected for the newly created SCCS po-
sition. In this position, Gonzalez was responsible for
performing accreditation-required competency evalua-
tions on cardiac catherization specialists (CCSs), 3
months after their hire.1 These competency evaluations
assess: the individual CCS’s skills, i.e., the tasks the
employee can or cannot perform; areas requiring im-
provement; employee strengths; and how the employee
interrelates with other workers. The competency eval-
uation directly affects the rated employee’s employ-
ment status. Thus, the competency evaluations deter-
mine whether the assessed employee will be termi-
nated, converted to full-time employment, or extended
in probationary status.
Shortly after her selection for the SCCS position,
Gonzalez went on maternity leave from about April
1994 until January 1995. During this leave, CCS
Marin was temporarily promoted to Gonzalez’ SCCS
position. As acting SCCS, Marin completed com-
petency evaluations on three employees. Marin rec-
ommended that one employee be converted to perma-
nent status and that the other two have their probation-
ary periods extended. Marin’s recommendations were
followed by management. Indeed, as found by the
hearing officer, only the SCCS has the technical exper-
tise to evaluate the competence of recent CCS hires.
Upon her return from maternity leave, Administrator
Cheng informed Gonzalez that she was responsible for
performing competency evaluations, including one for
new CCS employee Gaerlan. Gaerlan was the first
CCS hired while Gonzalez was employed and working
in the SCCS position. Cheng informed Gonzalez that,
in evaluating Gaerlan, Gonzalez had the option of rec-
ommending his termination, his conversion to perma-
nent status, or his extension as a probationary em-
ployee.
In preparation for evaluating Gaerlan, Gonzalez re-
vised the evaluation form for competency evaluations
and worked with Gaerlan to assess his performance. At
the conclusion of Gaerlan’s first 3 months of employ-
ment, Gonzalez completed his competency evaluation.
Gonzalez recommended that Gaerlan be retained as a
probationary employee and be reevaluated 3 months
later. This recommendation was followed.
The majority argues that the record does not estab-
lish that Marin’s or Gonzalez’ recommendations were
effective, i.e., that they were adopted without inde-
pendent review by Administrator Cheng. I disagree. As
to Marin, the evidence amply establishes that he made
effective recommendations. Thus, the record shows
that Marin undertook the evaluations, compiled the in-
formation recorded on the forms, and recommended—
as the appraising individual that certain action be
taken. The record also shows that this action was
taken. Similarly, as to Gonzalez, the record shows that
she undertook the evaluation of Gaerlan and, based on
her assessment, recommended that his probation be ex-
tended. Again, this recommendation was followed.
With respect to whether Cheng independently reviewed
either Marin’s or Cheng’s recommendations, the record
establishes that Cheng (as well as Gonzalez’ imme-
diate supervisor, Weinstein) lacked the technical back-
ground to gauge the competency of catherization spe-
cialists (Marin and Gonzalez, respectively) for this pur-
pose.2
Finally, even if Cheng did some independent review,
that would not be inconsistent with an effective rec-
ommendation to Cheng. The fact that a decision maker
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01138 Fmt 0610 Sfmt 0610 D:\NLRB\325.168 APPS10 PsN: APPS10
1139MOUNT SINAI HOSPITAL
3 Georgia-Pacific Corp., 201 NLRB 831 (1973), on which the ma-
jority relies is distinguishable. In that case, which involved whether
students were temporary or regular part-time employees, there was
no evidence that the students knew prior to the election that they
would be retained as part-time employees. Here, conversely, the
record established that prior to the election that Gonzalez was re-
sponsible for performing competency evaluations and had taken
steps in furtherance of this responsibility.
Further, I find that Harbor City Volunteer Ambulance Squad, 318
NLRB 764 (1995), on which my colleagues rely, is distinguishable.
In Harbor City, the evidence failed to establish that the FTO’s eval-
uations signaled the end of the rated employee’s probationary period,
led to the rated employee’s permanent employment, or that the
FTO’s recommendation for additional training affected the evaluated
employee’s job status.
4 My colleagues rely on Illinois Veterans Home of Anna L.P., 323
NLRB No. 161 (June 6, 1997). I did not participate in that decision.
I do not pass on the majority finding in that case that registered
nurses’ assignment and direction of CNA work was insufficient to
establish supervisory status. In any event, however, I find that case
distinguishable. In Illinois Veterans, the assignments involved proce-
dures within the normal range of duties that the certified nurses’
aides (CNAs) were expected to perform and generally involved as-
signments to the CNAs who customarily worked in the specific area
of the hospital. Here, however, the cardiac catherization specialists
(CCSs) perform diverse complex procedures using technical medical
apparatus. Not every CCS is capable of working in each
catherization room. Training is required to operate the various types
of complex equipment. Gonzalez must decide when CCSs are suffi-
ciently trained so that they can work alone. Also, even once trained,
CCSs develop varying proficiencies on the different equipment.
Thus, in emergency assignments, (or, according to the hearing offi-
cer, when staff-power needs dictate), Gonzalez is required to assess
the CCSs’ expertise and experience on the specific equipment to be
operated, and she takes this into account when assigning and reas-
signing work. In my view, her actions clearly constitute an inde-
pendent assignment of work.
may wish to make her own inquiry into a matter does
not mean that she eschews reliance on the rec-
ommendation.
The majority concedes that Cheng informed Gon-
zalez that she (Gonzalez) had the authority to make
recommendations concerning the status of Gaerlan.
However, the majority contends that this conversation
took place after the election, and that there is no
record evidence that Gonzalez was aware of her au-
thority to affect employee status (i.e., by recommend-
ing their termination, conversion to permanent status,
or extension of the probationary period) prior to that
time. In so arguing, the majority, in my view, ignores
all of the facts above. Those facts clearly show that
well before the election, persons holding the SCCS po-
sition (Gonzalez and Marin) were well aware that they
were responsible for evaluating employees, that Marin
filled out forms assessing employees under the three
options, and that Gonzalez revised the forms that
Marin had used for the probationary reviews. Under
these facts, it is inconceivable that Gonzalez could
have been unaware that her evaluations of probationary
employees would result in termination, conversion to
permanent status, or an extended probationary period.
Under these facts, I agree with the hearing officer
that Gonzalez is a Section 2(11) supervisor based on
her authority to perform CCS competency evaluations.
Thus, I find that Gonzalez directly affected CCSs’ job
status by her ability to effectively recommend termi-
nation, permanent employment, or extended probation-
ary status. The fact that Gonzalez recommended con-
tinued probationary status for Gaerlan, rather than the
other available options, is consistent with that author-
ity.
In denying her supervisory status, my colleagues
place particular significance on the fact that Gonzalez
completed Gaerlan’s competency evaluation after the
election. I disagree. What is relevant is that at all times
since establishment of the SCCS position—which es-
tablishment substantially predated the election—the
SCCS has been authorized to and, indeed, has com-
pleted CCS competency evaluations. Gonzalez’ re-
placement did so during her maternity leave, Gonzalez
was informed that this was her responsibility, and
Gonzalez promptly resumed these duties upon her re-
turn to work in early 1995. Under these circumstances,
the fact that Gaerlan’s evaluation was not due until
after the election neither diminishes Gonzalez’ author-
ity nor renders Gaerlan’s evaluation irrelevant.3 Ac-
cordingly, I would find Gonzalez to be a supervisor
based on her authority to evaluate CCSs.
Finally, contrary to my colleagues and the hearing
officer, I would additionally find Gonzalez to be a su-
pervisor based on her use of independent judgment in
assigning work to CCS employees. Thus, as found by
the hearing officer, Gonzalez was responsible, in the
event of an emergency, for making personnel assign-
ments. Specifically, during these regularly recurring
emergencies, Gonzalez is required to decide which
CCSs to assign to perform which procedures. Her deci-
sion is based on her own knowledge of the CCSs’ ex-
pertise and experience on the equipment. Gonzalez’
decision, which necessitates her consideration of a
number of subjective factors, and which does not need
approval, is quintessentially the exercise of independ-
ent judgment. Thus, I would additionally find Gon-
zalez a supervisor on this basis.4
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01139 Fmt 0610 Sfmt 0610 D:\NLRB\325.168 APPS10 PsN: APPS10