North Miami Convalscent Home

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1271 (N.L.R.B. 1976)

NORTH MIAMI CONVALESCENT HOME
Sunset Nursing Homes, Inc, d/b/a North Miami
Convalescent Home and Local 1115, Joint Board,
Nursing Home and Hospital Employees-Florida Di-
vision, Petitioner Case 12-RC-4862
June 18, 1976
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, PENELLO, AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officers Jack D
Livingston, Anthony J DiSalvo, and Carl A Pe-
terson I Following the hearing the Acting Regional
Director for Region 12 transferred this case to the
Board for decision Thereafter, the Employer and the
Petitioner filed briefs with the Board 2
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 reviewed the Hearing Officers' rul-
ings made at the hearing and finds that they are free
from prejudicial error 3 They are hereby affirmed as
modified
Upon the entire record in this proceeding, the
Board finds
1 The Employer, a proprietary licensed nursing
home, is engaged in commerce within the meaning of
the Act
2 The labor organization involved claims to rep-
resent certain employees of the Employer
3 A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act
4 The Petitioner seeks a unit of all licensed practi-
cal nurses, excluding registered nurses, aides, or-
derlies, kitchen employees, maids, porters, mainte-
nance employees, office clerical employees, guards,
and supervisors as defined in the Act The Petitioner
currently has a collective-bargaining agreement with
i Although this case involves only one issue-whether licensed practical
nurses are supervisors-the hearing was extended to 10 days between June
17 and October 9 1975 and the transcript is more than 1 850 pages
2
The Employers request for oral argument is hereby denied because the
record and the briefs adequately present the issues and the positions of the
parties
3 The Employer contends that the Hearing Officers (Livingston) ruling
excluding from evidence certain employee evaluations and disciplinary re
ports was clearly erroneous because under the business records exceptions
to the hearsay rule the strict requirements for providing numerous witnesses
to authenticate reports made in the normal course of business has been
obviated We agree However since these exhibits were placed in the reject
ed exhibits file transferred to the Board and have been considered herein
the Hearing Officers ruling has not prejudiced the Employer
1271
the Employer, which the Employer assumed and
adopted from its predecessor, Oliver Manor Nursing
Home, Inc The recognition clause of that agreement
recognized the Petitioner as bargaining representa-
tive for all of the Employer's employees except reg-
istered nurses, licensed practical nurses, supervisors,
and office and clerical workers Petitioner maintains
the only issue is whether the licensed practical nurses
(herein LPN's) are a residual unit The Employer
contends the unit is inappropriate because the LPN's
are supervisors
The record shows 4 that the Employer operates a
245-bed nursing home which has three wings and five
nursing stations Under state regulations each nurs-
ing station must be covered 7 days per week, 24
hours per day The state regulations also set forth the
minimum number of personnel including registered
nurses (RN's), licensed practical nurses (LPN's) and
nursing assistants,5 that must be on duty per number
of patients The home operates on a three-shift basis
with the day or first shift working 7 a in to 3 p m,
the second shift from 3 p in to 11 p in, and the night
or third shift from 11 p in to 7 a in 6 On the day shift
(7 a in to 3 p m) there are about 24 nursing assis-
tants, 5 LPN's, and 3 RN's, on the second shift there
are 16 nursing assistants and 5 LPN's, and on the
third shift there are 12 nursing assistants, 4 LPN's
and an RN
The nursing department is headed by the director
of nursing, who, under state law, is required to be an
RN, the director generally works from 9 30 a in to 6
p in and is always on call The director is assisted by
the assistant director of nursing, also an RN, who
works from 7 a m to 3 p in and is also on call In
addition, there is a first shift RN on duty from 7 a in
to 3 p in who makes the rounds of the nursing sta-
4 As noted supra the record extends to 10 hearing days and 1850 pages In
connection with the length of the record it should be noted that the conduct
of both counsel for the Employer and the Petitioner was less than exempla
ry Questions were constantly repeated as were objections objections were
frequently lengthy and it would appear worded in a manner calculated to
coach the witnesses and bitter arguments between counsel were frequent in
spite of the Hearing Officers attempts to control the situation As a result
the transcript to quote the Petitioners brief is lengthy and contradictory
with respect to the testimony of Petitioners and the Employer s
witnesses The Petitioner added A herculean task would have to be en
gaged in to dissect from the record the pertinent and crucial facts and
testimony Thus Petitoner is of the opinion that rather than engage in a
lengthy citation of record testimony which will serve no useful purpose
it is Petitioner s position (sic) to set out herein its legal argument The
herculean task of evaluating the contradictory and lengthy testimony has
been left to the Board Where there are two three and sometimes even four
different answers to the same question we have used the answer least favor
able to the position of the part whose witness was testifying We have like
wise ignored general self serving statements which lack factual record sup
port i e the LPN s are supervisors The following finding of facts is
therefore our carefully considered determination of what the record in es
Bence shows
5 The term nursing assistant includes both nurses aides and orderlies
6 In July 1975 the shifts were changed somewhat for the nursing assistants
so that they begin their shifts one half hour earlier i e 6 30 a in 2 30 p in
and 10 30 pm
224 NLRB No 176
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions on a regular basis and directly supervises the
LPN's and nursing assistants This RN makes certain
that the required number of employees are on duty
and has full authority to discharge, transfer, assign
work, and call in additional help when needed
The director and assistant director, like the day
shift RN, also make rounds although not as frequent-
ly Under the state regulations the director and the
assistant director have the primary responsibility for
patient care on a 24-hour basis, and any significant
changes in a patient's condition are therefore report-
ed to them or the RN on duty, if any
The LPN's are engaged in patient care There are
about 48 patients assigned to each nursing station, all
of whom are on medication, the LPN must and does
dispense this medication Likewise, the LPN's are
responsible for all other sophisticated nursing care
such as administering oxygen and changing cathe-
ters They are also responsible for calling an RN or a
patient's doctor when a patient's condition changes
and for keeping the patient's charts In fact LPN's or
RN's are required by state law to perform most of
the foregoing functions, as nursing assistants are not
qualified to perform them
The duties of the nursing assistants consist primar-
ily of feeding, bathing or cleaning, dressing, making
the beds of, and otherwise assisting the patients to
whom they are assigned The type of direction given
by the LPN's to the nursing assistants would relate to
those duties, such as bathing a patient, or turning a
patient over or getting a patient into a chair or wheel-
chair The nursing assistants, on the other hand, re-
port to the LPN any changes in the patient's condi-
tion, e g, anything which would indicate the
beginning of a fever or a bed sore or other medical
problem
The primary witness for the Employer was Doro-
thy Aversa, the director of nursing from May 6, 1975,
to July 29, 1975 The petition herein was filed on
May 13, 1975 Aversa testified that when she began
as director the fob description for licensed practical
nurses supervisor was in existence and that she gave
copies of it to all LPN's about 2 weeks after she be-
gan work 7 Aversa's immediate predecessor as direc-
tor, Ehrlacher, however, testified she never saw that
job description while she was the director In any
event, according to the job description and the
Employer's witnesses, the LPN's are required to
make "effective" recommendations concerning,
among other things, hiring, discharges, suspensions,
promotions, layoffs, transfers, pay increases, and va-
cancies Oddly enough, the job description does not
7 She also testified she was not sure that all LPN s were given copies of
the job description and later that she gave them only to new LPN s
mention what would be considered the LPN's nor-
mal or regular duties such as dispensing medicine,
administering oxygen or emergency treatment, or
keeping patient charts I
In spite of the job description, however, the Board
law is clear that the mere use of a title or the giving of
"paper authority" which is not exercised does not
make an employee a supervisor We must therefore
analyze what supervisory functions, if any, the LPN's
actually perform
It is clear that all hiring is done by the director, the
assistant director, or the day shift RN If a nursing
assistant calls in sick or is otherwise absent and a
replacement is needed on the first shift that replace-
ment is called by the day shift RN, the director, or
the assistant director This function is performed by
the director, who stays until 6 p in , for the 3 to 11
p in shift For the third shift Aversa finally admitted
that the calling of replacements was handled by Kol-
linger, an RN, or on Kollinger's days off, by her re-
placement, Mann, also an RN 9
As concerns the authority to discharge or effective-
ly recommend discharge, there is also a significant
difference between the job description, the
Employer's witnesses' testimony, and what appears
to be actual practice No witness testified to a specif-
ic instance in which an LPN discharged a nursing
assistant Aversa did testify that during her tenure
two nursing assistants, Richardson and Corbin, were
fired on an LPN's recommendation As to Corbin,
however, Aversa admitted she considered firing Cor-
bin for excessive absence before he was reported by
an LPN Moreover, contrary to Aversa's testimony,
the LPN did not recommend termination on the
warning slip Finally, the warning slip dated May 31,
1975, raises the question whether Corbin was fired or
just quit since it indicates, over Aversa's signature,
that Corbin was not available so that his absences
could be discussed with him Richardson was admit-
tedly discharged by Aversa, contrary to Aversa's tes-
timony the warning slip written up by the LPN on
May 29, 1975, did not recommend termination 10
8 Throughout the hearing the Employer s witnesses referred to the LPN s
as LPN supervisors and denied they were referred to as charge nurses a
name commonly used for such nurses On the other hand Ehrlacher tests
fled the LPN s were called charge nurses during her tenure and in one of his
memos to employees Burack the administrator also referred to the LPN s
as charge nurses (see Pmecrest Convalescent Home Inc 222 NLRB 13
(1976) )
9 This is an important function because under state law a certain number
of employees must be on duty In fact the nursing assistants shifts were
changed on July 10 1975 to begin one half hour earlier to insure the home
was fully staffed at all times Copies of Aversa s memo of July 10 1975 to
the nursing assistants informing them of the shift change were sent to the
ad-ninistrator the assistant director the day shift RN and Kollinger the
night shift RN Copies were not sent to the LPN s the purported supervisors
of the nursing assistants
10 Under the collective bargaining agreement an employee cannot be ter
urinated except for certain serious offenses without a written warning and
NORTH MIAMI CONVALESCENT HOME
Guerin , the most senior of the LPN's, with 7 years'
experience , was called as a witness by the Employer
Guerin testified that she has not discharged and did
not know of another LPN who had discharged a
nursing assistant She testified , however , that on one
occasion she told Burack , the administrator , a nurs-
ing assistant had abused a patient and that Burack
later terminated him Burack , however , testified that
nursing assistant would have been fired for patient
abuse with or without an LPN's recommendation
and that instances of patient abuse are investigated
and action taken no matter who reports them In
sum, the authority of the LPN's to discharge or effec-
tively recommend such action appears to be little
more than "paper authority "
Guerin further testified that in her 7 years she has
not hired or interviewed employees for hire , has Yiot
recommended anyone for a wage increase , could not
recall any employee being given a warning on her
account , has never promoted or recommended the
promotion of a nursing assistant , and has not been
involved in resolving a grievance with the union shop
steward
Guerin further testified that in 7 years she has
written only one warning slip Although, according
to the Employer, the LPN's may report orally or by
written warning notice that a nursing assistant has
done something wrong , it appears that such reports
or notices are reviewed by the director, assistant di-
rector , or the day shift RN who then makes an inde-
pendent decision Moreover, the collective-bargain-
ing agreement calls for written notice to the Union
before discharge or suspension except for certain vio-
lations (e g, excessive drinking or patient abuse), and
provides that any dispute over a discharge will go to
arbitration Ehrlacher testified that during her tenure
as director the LPN's would occasionally report a
nursing assistant but that she or the assistant director
would investigate and make an independent decision
on the matter , she added that one of the reasons for
this procedure was to avoid unnecessary confronta-
tions with the Union
Aversa testified that while she was director, Lor-
deus , an orderly, was given a wage increase on the
basis of an evaluation by an LPN In fact, contrary
to Aversa's testimony, the evaluation did not recom-
mend Lordeus be given an increase Moreover, wage
increases are governed by the collective-bargaining
agreement and any proposed merit increase , bonus,
or increase other than a scheduled increase must be
negotiated with the Union In sum , it does not ap-
pear that LPN's can either grant or effectively rec-
ommend wage increases
subsequent discussion w th the Union unless the employee is probationary
1273
At the end of May 1975, Aversa had some of the
LPN's do evaluations on some of the nursing assis-
tants The evaluation form utilized apparently was
new, at least Ehrlacher testified she had never seen it
before Ehrlacher also testified that while she was di-
rector the LPN's did not complete evaluation forms
and that she and not the LPN's evaluated the new
employees and decided whether they would stay
Guerin, in essence , corroborated Ehrlacher She testi-
fied that although LPN's always had the authority or
responsibility for evaluating the nursing assistants,
they rarely completed such evaluations , and that, in
fact , she had done only a few evaluations in her 7
years at the Home
The work schedules of the LPN's and the nursing
assistants are made up by the assistant director who
schedules all days off , vacations , and holidays The
day shift RN can change the schedule if someone is
sick Room or patient assignments , however, within a
nursing station are made by the LPN's Such assign-
ments are determined by the care required by indi-
vidual patients and the experience and ability of the
nursing assistants available Once assigned , nursing
assistants usually stay with a patient on a day-to-day
basis , assignments are therefore not necessarily made
each day as a nursing assistant may stay with the
same patients for many months It seems clear that
the making of such assignments , which are de-
termined by the medical needs of the patients , is rou-
tine in nature
There was also testimony that the LPN' s can verify
timecards when the timeclock is not functioning or
does not print the time clearly , and can allow nursing
assistants to leave early Guerin testified she was told
that if a nursing assistant had to leave to let the assis-
tant go and then to notify the office Ehrlacher, on
the other hand, said it was unnecessary for the LPN's
to allow nursing assistants to leave early as they only
had to call the office for permission In sum, it ap-
pears that the LPN's may at least in an emergency
situation allow the nursing assistants to leave early
They do not grant time off however , as that is han-
dled solely by the director' s office
In view of the written authority purportedly grant-
ed the LPN' s, at least after the petition was filed, this
case may be considered rather close For that reason,
we have carefully attempted to examine the actual
authority exercised by the LPN's as evidenced by the
record The record, when stripped of self-serving
statements and conclusions that the LPN' s are super-
visors , indicates that the LPN's exercise little, if any,
of the authority set forth in the job description In
our opinion, the LPN's are not supervisors and we so
find
The LPN's are primarily involved in patient care
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including dispensing medication, ordering prescrip-
tions, keeping the patients' charts, giving emergency
treatment, and notifying the nursing office or a
patient's doctor about changes in a patient's condi-
tion, each LPN is responsible for 48 patients While
making their rounds or treating patients, the LPN's
may see that a nursing assistant has not performed
certain work or given certain treatment and so in-
form the nursing assistant They may also report to
the front office either orally or in writing that a nurs-
ing assistant has done something wrong, but such a
report is subject to independent review by the direc-
tor of nursing, her assistant, or the day shift RN be-
fore any action is taken or a written warning is given
The reason for this appears to be that except for a
few very serious violations such as patient abuse, the
Employer must meet with the Union before any ad-
verse action is taken In our opinion the record does
not establish that the LPN's have authority to hire,
fire, discipline employees, or effectively recommend
the same Any direction that they may give to nurs-
ing assistants appears to be either routine in nature
or connected with providing patient care and meet-
ing the needs of the patients
Likewise, although the LPN's do assign the nurs-
ing assistants to patients and inform the nursing as-
sistants what care is necessary, that assignment is
routine in nature and depends only on the doctor's
orders as set forth on the patient charts, the amount
of care necessary, and the ability or experience of the
nursing assistants involved Nor do we find that the
LPN's possess supervisory authority simply because
they can act on such minor matters as initialing time-
cards of nursing assistants when the timeclock is bro-
ken or allowing the nursing assistants under some
limited circumstances to leave early inasmuch as
these duties are performed in a manner that does not
require the exercise of independent judgment
Although the Employer has, at least since the peti-
tion was filed, directed some of the LPN's to com-
plete evaluation forms on nursing assistants, there is
no clear indication as to the purpose for which these
forms will be used The Employer's witnesses testi-
fied that LPN's can effectively recommend wage in-
creases, however, we note that, in addition to the fact
that only one such alleged instance was testified to,
under the collective-bargaining agreement wage in-
creases such as merit increases which are not auto-
matic must be negotiated with the Union
The director, assistant director, and the day shift
RN are all on duty for the first shift The director
works until 6 pm and is therefore available to di-
rectly supervise the first 3 hours of the second shift
As the director and the assistant director are on call
on a 24-hour basis, any serious problems including
personnel problems are handled by calling them In
addition, the director receives all call-ins when sec-
ond shift nursing assistants are going to be absent
and calls replacements On the third or night shift all
call-ins are handled by the third shift RN, Kollinger
It is therefore clear that the director, the assistant
director, and the day RN and night shift RN with
regard to finding replacements, can and do effective-
ly supervise all the shifts
Finally, we note that if the 14 LPN's who work
each day were found to be supervisors there would
be an abnormal proportion of supervisors to employ-
ees, particularly in view of the routine nature of the
nursing assistants' work, for on a three-shift basis
there would be 18 supervisors for 52 employees Ac-
cordingly, we find that the LPN's are employees
within the meaning of the Act "
According to the recognition clause of the Union's
current agreement with the Employer, the Union rep-
resents all of the Employer's employees except
LPN's, RN's, office and clerical workers, and super-
visors The Union contends that LPN's are a residual
unit We agree Since the Union represents the other
employees of the Employer with the above-noted ex-
clusions, it appears to us that it would serve no useful
purpose to hold an election and in the event the
Union received a majority, certify such a residual
unit Instead, we believe that LPN's should be given
an opportunity by an election to express their desires
as to being included in the unit currently represented
by the Union Accordingly, we shall direct an elec-
tion in the following voting group
All licensed practical nurses, but excluding all
other represented employees, office and clerical
employees, registered nurses, and supervisors as
defined in the Act
If a majority of the employees in the above voting
group cast their ballots for the Union, they will be
taken to have indicated their desire to constitute a
part of the existing unit currently represented by the
Union, and the Union may bargain for such employ-
ees as part of that unit If a majority of them vote
against the Union they will have indicated their de-
sire not to be represented by the Union and the Re-
gional Director will issue a certification of results of
election to that effect
[Direction of Election and Excelsior footnote omit-
ted from publication I
" See P,necrest Convalescent Home Inc 222 NLRB 13 (1976) Pikeville
Investors Inc d/b/a Mountain Manor Nursing Home 204 NLRB 425 (1973)