New Fern Restorium Co.

National Labor Relations Board - Board Decisions

May 6, 1969

175 N.L.R.B. 871 (N.L.R.B. 1969)

NEW FERN RESTORIUM CO.
New Fern Restorium Co. and Bay Area Local Union
No. 1010 , Retail , Wholesale and Department Store
Union, AFL-CIO, Petitioner. Case 12-RC-3172
May 6, 1969
DECISION ON REVIEW AND
DIRECTION
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 21, 1968, the Regional Director for
Region 12 issued his Decision and Direction of
Election in the above-entitled proceeding, in which
he found that the Employer's licensed practical
nurses are supervisors within the meaning of the
National Labor Relations Act, as amended, and
accordingly excluded them from the unit found
appropriate. Thereafter, in accordance with
National Labor Relations Board Rules and
Regulations, the Employer filed a timely request for
review of the Regional Director's Decision.
By telegraphic order dated February 3, 1969, the
National Labor Relations Board granted the request
for review with respect to the issue of the unit
placement of the licensed practical nurses, and
stayed the election.' Thereafter the parties filed
briefs on review.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
The Board has reviewed the entire record in this
case with respect to the issue under review, including
the briefs of the parties, and makes the following
findings:
The Petitioner seeks a unit of all employees
employed at the Employer's St. Petersburg, Florida,
nursing home, excluding office clerical employees,
professional employees, guards, and supervisors.
Contrary to the Employer, the Petitioner contends
that the Employer's licensed practical nurses should
be excluded from the unit because they are
supervisors and/or professional employees, and in
any event they possess a community of interest
diverse from that of the other employees in the unit.
We find no merit in these contentions.
The Employer' s nursing home is run by a chief
and assistant administrator, under whom serve the
director of nursing, the maintenance and
housekeeping manager , and the food service
manager . All of the foregoing are agreed to be
supervisors.Z Under the director of nursing, who is
also a registered nurse , are 5 other registered nurses
(hereinafter called RN's) all of whom were
stipulated to be supervisors and/or professional
employees; the 14 licensed practical nurses in issue;
and 59 aides and orderlies.
'The Board denied the Employer 's request for review with respect to
certain other contentions raised therein.
'The maintenance and housekeeping manager and the food service
manager supervise smaller numbers of employees in the unit found
871
The nursing home has 135 beds situated on two
floors, each with 2 duty stations, and operates on 3
shifts. The record testimony indicates that pursuant
to requirements of state law and of Medicare, an
RN is always physically present on the premises,
and the one designated to be in charge directly
supervises any other RN's who may be present, as
well as the licensed practical nurses, aides and
orderlies. During the first shift on weekdays, the
director of nursing is in charge. During the second
and third shifts and on weekends, other RN's are in
charge and also operate one of the duty stations.
Patient care, both medical and personal, emanates
from the duty stations, to each of which are
assigned - on all shifts - either an RN or a
licensed practical nurse, and three to six aides and
orderlies. The RN or licensed practical nurse
assigned to the duty station performs most of the
station's medical care herself.' She consults each
patient's patient care plan, maintains and makes
records on the patient's medical chart, and
maintains medications in a locked cabinet. She
alone administers medications to patients. She
assigns certain other medical duties, and most of the
personal care duties, to the aides and orderlies, or
performs them herself. Emergency problems are
referred to the RN in charge when time permits.
When time is of the essence, however, e.g., where a
patient has a coronary attack, all employees have
authority to perform emergency medical treatment.
The authority of the licensed practical nurses over
the aides and orderlies working with them is quite
limited. They do not have the authority to hire,
discharge, promote, or reward these personnel, nor
can they effectively recommend any such action.
While the licensed practical nurses assign work to
aides and orderlies, as previously noted, there is no
indication in the record that they do so in a manner
requiring the exercise of independent judgment.
While it further appears that aides and orderlies
have initially discussed grievances with the licensed
practical nurses, it was not shown that the latter had
authority to resolve such grievances. Finally,
although the licensed practical nurses have the
authority to reprimand the aides and orderlies,
licensed practical nurses do not have the authority
to discipline them. The disciplining of the aides and
orderlies as well as releasing them from work,
scheduling their overtime, and transferring them
among the duty stations, are all matters which are
handled by the director of nursing or the RN in
charge.
Accordingly, we find, in disagreement with the
Regional Director, that the licensed practical nurses
are not supervisors within the meaning of Section
2(11) of the Act.
appropriate.
'The record indicates however , that medical functions performed only by
physicians as late as 1940 have increasingly been performed by RN's,
licensed practical nurses, and aides, and orderlies
175 NLRB No. 142
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Next we consider Petitioner's contention, not
reached by the Regional Director, that licensed
practical nurses should be excluded as professional
employees.
The Employer's practical nurses are licensed as
such in the State of Florida. The Florida statute
defines licensed practical nurses as individuals
"engaged in the performance of nursing acts in the
care of the ill, injured, or infirm under the direction
of licensed physician ... or a registered professional
nurse; provided, however, that all such acts do not
require the specialized skill, judgment, and
knowledge required in professional nursing."" Under
this statute, an individual 18 years of age, with 2
years of high school and a course in an accredited
school of practical nursing, is eligible to take the
examination and obtain certification as a licensed
practical nurse. Record testimony reveals that the
course of instruction may be as short as 12 months.
It does not appear that the Employer imposes any
additional educational or training requirements upon
its licensed practical nurses beyond those expressed
in the statute.
In these circumstances, we find that the licensed
practical nurses are not required to attain that
"knowledge of an advanced type in a field of science
or learning customarily acquired by a prolonged
course of specialized intellectual instruction and
study in an institution of higher learning or a
hospital" which is the necessary hallmark of a
professional employee within the contemplation of
Section 2(12) of the Act. Accordingly, we find that
the licensed practical nurses are not professional
employees.'
Finally, there remains only the question whether
licensed practical nurses share a sufficient
community of interest with the aides and orderlies
to warrant the inclusion of both groups in a single
unit.
The record reveals that licensed practical nurses,
like RN's, sign in at their duty stations, while other
employees in the unit punch timeclocks. Further, the
Employer is somewhat more generous with RN's
and licensed practical nurses with respect to sick
leave than with other employees.
On the other hand, as noted above, the licensed
practical nurses work at duty stations with aides and
orderlies , performing medical and personal care
'Fla. Stat . Anno., Title XXX, Chapter 464, sections 021,111,121.
'The Petitioner has directed our attention to certain decisions of the New
York State Labor Relations Board and Michigan Labor Mediation Board
which have excluded licensed practical nurses from units of service and
maintenance employees . We have carefully considered these decisions, but
do not find them dispositive of the question whether the licensed practical
nurses herein are professional employees within the meaning of the Act.
under the same supervision as the aides and
orderlies . Both groups are hourly paid and may earn
overtime . The licensed practical nurses ' starting
wage is about 50 percent higher than the initial rate
paid to aides , but some experienced aides enjoy a
rate almost as high as the beginning rate for
licensed practical nurses .' In all other respects, the
licensed practical nurses share the same conditions
of employment as do the aides and orderlies. Under
all the circumstances disclosed by the record, we
find that there is sufficient commonality of interests
between the licensed practical nurses and the aides
and orderlies , to warrant the inclusion of the
licensed practical nurses in the unit sought by
Petitioner.
Accordingly, we conclude that the appropriate
unit is:
All employees employed at the Employer's New
Fern nursing home , located at 859 10th Avenue N.,
St. Petersburg , Florida , including ward clerical
employees , aides, orderlies , licensed practical nurses,
and regular part-time employees, but excluding all
office clerical employees , professional employees,
watchmen, guards and supervisors as defined in the
Act.
DIRECTION'
The case is hereby remanded to the Regional
Director for Region 12 for the purposes of
conducting an election - pursuant to his Decision and
Direction of Election , as modified herein , subject to
the Petitioner' s presentation of an adequate showing
of interest among the employees in the appropriate
unit . The eligibility date shall be the payroll period
immediately preceding the date below.
'RN's start at a rate 100 percent to 125 percent higher than do the
aides.
'However, as the unit found appropriate is broader than that sought by
the Petitioner , the Petitioner may withdraw its petition without prejudice
upon written notice to the Regional Director within 10 days from the date
of this Decision on Review . Independent Linen Service Company of
Mississippi, 122 NLRB 1002
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear, Inc, 156 NLRB 1236; N. L R.B. v . Wyman-Gordon Company,
394 U . S 759. Accordingly, it is hereby directed that a corrected election
eligibility list , containing the names and addresses of all the eligible voters,
must be filed with the Regional Director for Region 12 within 7 days of
the date of this Decision on Review . The list may initially be used by the
Regional Director to assist in determining an adequate showing of interest.
The Regional Director shall make the list available to all parties to the
election when he shall have determined that an adequate showing of
interest has been established among the employees in the unit found
appropriate . No extension of time to file 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.