Pinecrest Convalescent Home, Inc.

National Labor Relations Board - Board Decisions

Jan 8, 1976

222 N.L.R.B. 13 (N.L.R.B. 1976)

PINECREST CONVALESCENT HOME, INC. 13
Pinecrest Convalescent Home, Inc. and Local 1115,
Joint Board Nursing Home and Hospital Em-
ployees-Florida Division, Petitioner. Case
12-RC-4885
January 8, 1976
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On September 10, 1975, the Regional Director for
Region 12 issued a Decision and Direction of Elec-
tion I in the above -entitled proceeding , finding that
licensed practical nurses are not supervisors and con-
stitute an appropriate unit, and that a registered
nurse is a professional employee and not includable
in that unit. Thereafter , in accordance with Section
102.67 of the National Labor Relations Board's
Rules and Regulations and Statements of Procedure,
Series 8, as amended , the Employer filed a timely
request for review, with supporting brief, of the Re-
gional Director 's Decision . Employer alleged that the
Regional Director made factual findings which are
clearly erroneous , and that he departed from official-
ly reported precedents . Petitioner filed an opposition
to the Employer 's request for review.
By telegraphic order dated October 9, 1975, the
Board granted the Employer 's request for review and
stayed the election pending the Decision on Review.
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 entire record in this
case with respect to the issues under review and here-
by affirms the decision' of the Regional Director. We
believe the Regional Director 's decision is in line
with the Board cases finding that charge nurses
whose responsibilities are fundamentally limited to
providing routine patient care are not supervisors.
Mountain Manor Nursing Home, 204 NLRB 425
(1973). In this regard , the record establishes that
charge nurses have no authority to hire, fire , or disci-
pline ' employees. Any direction that they may give to
aides either is routine in nature or connected with
providing patient care and assuring that the needs of
the patients are fulfilled . Additionally , to find the 10
charge nurses to be supervisors would mean an ab-
normal proportion of supervisors to supervisees as
there only are 27 nurses aides employed at the hospi-
tal.
Furthermore, the director of nursing is on call at
all hours; when she is not on duty, any serious per-
sonnel problems that occur in her absence are han-
dled either by calling her (or the administrator) im-
mediately or by leaving her a written report for her
consideration and action. In these circumstances, it is
clear that she can and does effectively supervise all
the shifts. That she is performing this function is fur-
ther indicated by the fact that the LPN's who testi-
fied stated that the assignments of the nurses aides
on their shifts are made by the director of nursing.
They also testified that the director of nursing re-
ceives call-ins when aides are going to be absent and
then calls other aides to fill in.
The administrator acknowledged that absentee
call-ins come to the director of nursing in the morn-
ing but he asserted that such calls came to charge
nurses at their stations in the afternoon. Neverthe-
less, the administrator conceded that, in those in-
stances where charge nurses do call replacements,
they merely take names from a list of aides already
prepared and posted by the hospital for this purpose.
Accordingly, the administrator's testimony that
charge nurses exercise independent judgment in de-
ciding first whether to call for replacements and sec-
ondly whom they will call-upon which the
Chairman's dissent places much reliance-is not, in
our view supported by the record. Nor do we find
that charge nurses possess' supervisory authority sim-
ply because they can act on such minor matters as
initialing timecards, accepting calls from absent
aides, and allowing them to leave early in case of
illness, since it is clear that all of those duties are
accomplished in a perfunctory manner not requiring
the exercise of any discretion.
Accordingly, we find, contrary to Chairman Mur-
phy, ' that charge nurses are employees within the
meaning of the Act.
Accordingly, we are remanding the case to the Re-
gional Director for the purpose of conducting an
election pursuant to his Decision and Direction of
Election, except that the eligibility payroll period
therefore shall be that immediately preceding the
date of issuance of this Decision on Review.2
CHAIRMAN MURPHY, dissenting:
I dissent from the finding that the LPN's are not
supervisors and therefore comprise an appropriate
unit. Although much of the independent judgment
exercised by the LPN's is involved with patient care
and under Board cases would not be sufficient to
find supervisory status, traditional standards for de-
termining supervisory status remains applicable to
i Relevant portions of the Regional Director's Decision and Direction of
Election are attached hereto as an Appendix
1
2 [Excelsior footnote omitted from publication.]
222 NLRB No. 10
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these LPN's on the basis of their particular job func-
tions.'
Chief among these is the fact that most of the time
the building is under complete control of charge
nurses on duty. The home is open 24 hours a day, 7
days a week; the director of nursing, an RN, is pre-
sent Monday through Friday from 8 a.m. to 4 p.m.;
and the administrator is present Monday through
Friday from 7 a.m. to 5 p.m. At all other times the
charge nurses make the operational decisions of the
facility. Thus, according to the administrator, the
LPN's, as charge nurses, are authorized to and do
perform the following functions which are superviso-
ry in nature over and above the routine patient care,
assign ,work on the shifts to the aides, initial time-
cards for aides, send aides home early, write incident
reports which are placed in aides' personnel files
without further investigation, receive calls from an
aide who will be absent and then call a replacement,
ask aides to work an extra shift, refuse to reassign an
aide .to the other wing of the hospital as requested by
the charge nurse on duty there, and authorize over-
time. Additionally, LPN's are paid 50 percent more
than aides.
The above facts are not overcome by pointing out,
as the majority does, that the director of nursing is on
call at all times. Indeed, the evidence discloses that
she is called only in the case of emergency medical
problems involving greater responsibilities than
LPN's are authorized by statute to assume but which
RN's can perform. Administrative problems which
arise in her absence in the evenings and on week-
ends, such as ixiovmg nurses aides around between
the wings necessary, allowing an ill aide to go home,
and calling other aides to fill in for ,absentees if re-
placements are deemed necessary, are handled by, the
charge nurses on duty without consulting anyone ;4
and only if an incident is unusual are incident reports
prepared and left for the director of nursing to ap-
prise her of what- was, done. In these circumstances,
the testimony of one LPN that she had called the
director of nursing on two or three occasions in 2-1/2
months is hardly enough to allow for adequate super-
vision by the director during her off-duty hours,, let
alone establish that she, rather than the charge nurs-
es, supervise anyone at such times.
The majority's reliance on the testimony of two
LPN's to conclude that the director of nursing per-
forms the key supervisory functions of scheduling the
nurses aides and calling in replacements when an
aide is going to be absent is also tenuous. One of
those two LPN's works from 7 a.m. to 3 p.m. on
Mondays through Fridays, and the other from 3 p.m.
to 11 p.m. on Tuesdays through Saturdays. Conse-
quently, the presence of the director of nursing over-
laps their shifts. That fact would appear, -in large
measure; to explain the import of their testimony.'
Furthermore, as already noted, the Administrator
testified that LPN's perform those same duties; and
we also know that the director of nursing is not
called at home to handle that kind of situation. Nor
does the fact that replacements are chosen by charge
nurses from prepared lists persuade me that such
choices are perfunctory in nature. To the contrary,
the evidence shows that charge nurses in such situa-
tions first must decide whether to call a replacement,
and then, in situations where a choice is available,
can pick from the list whomever they wish. Both of
these functions clearly require the exercise of inde-
pendent judgment. Therefore, it seems to stretch a
point to believe that the director of nursing can effec-
tively supervise the LPN's and nurses aides 24 hours
a day, 7 days a week.
Finally, the majority makes much of the fact that
there are 10 charge nurses (9 of whom are LPN's) as
compared to 27 nurses aides, suggesting that ratio is
out of balance if the charge nurses are found to be
supervisors. However, the misleading nature of those
figures is pointed up by breaking them down into
teams of charge nurses and aides. Thus, the LPN's
are spread over two wings- of the hospital on three
shifts a day, 7 days a week, supervising two to five
aides each. So considered, those numbers assume an
entirely different proportion, one that clearly is rea-
sonable under all the circumstances-
Accordingly, I would find the LPN's to be supervi-
sors 6 and would dismiss the petition.
3 Wing Memorial Hospital Association, 217 NLRB No 172 (1975)
4 Goodman, the administrator , testified that he knew of no instance in 5
to 6 years of experience in which a director of nursing had been called in her
off-duty hours about an administrative matter
5 No other LPN's testified , nor did the director of nursing.
6 North Dade Medical Center, 210 NLRB 588, 592 (1974).
APPENDIX
Regional Director's Decision and Direction of
Election
4 The Employer is a Florida corporation engaged
in a business of providing care for the ill and aged.
During the past 12 months, Employer's gross revenue
exceeded $250,000 and during the same period Em-
ployer purchased drugs and supplies valued in excess
of $50,000 from suppliers, who in turn, received the
said drugs and supplies directly from outside the
State of Florida. I find that Employer meets the
Board's jurisdictional standards, Mountain Manor
Nursing Home, 204 NLRB 425.
6 Petitioner already represents many of Employer's
employees in a service and maintenance unit and
PINECREST CONVALESCENT HOME, INC. 15
herein seeks to be certified as the collective bargain-
ing representative of, Employer's licensed practical
nurses (LPN's). Employer contends that these nurses
are supervisors within the meaning of the Act and
therefore can not constitute an appropriate bargain-
ing unit.
Employer's nursing department is headed by the
Director of Nurses, a Registered Nurse, and contains
licensed, practical nurses (about 9) and aides (about
27) Employer's nursing home is divided into 2 sta-
tions with an LPN serving as the charge nurse at
each station, with several aides working at the sta-
tion. Each station must be covered 7 days a week and
24 hours each day. The licensed practical nurses and
aides are assigned their shifts to continuously cover
these stations and the nursing department works on a
3-shift basis, with the day shift running from 7 a.m.
to 3 p.m., the second shift running from 3 p.m. to 11
p.m., and the third shift running from 11 p.m. to 7
a.m. The number of aides assigned to each station
varies depending on the shift. There are 4 or 5 at
each station on the first shift, 3 aides, per station on
the second shift and 2 aides per station on the third
shift. The Director of Nurses works from 8 a.m. to 4
p.m. on Monday through Friday, and at all other
times is on call if the charge nurses have problems. It
was noted at the hearing that under the law the li-
censed practical nurses may not engage in certain
patient treatments, but must call a registered nurse
for the treatment to be given.
It is clear from the record that the charge nurses
do not have the authority to hire or fire employees,
nor authority to effectively recommend such action.
The aides and nurses are hired by the Director of
nurses. The charge nurses may report that an aide
had done something wrong, but this report is re-
viewed and a meeting is held with the Union and
Employer's owner before any adverse action is taken.
The charge nurses make up work schedules for the
aides on their stations and shift, assigning them pa-
tients and noting what care is necessary. The care to
be given each patient depends upon the doctor's or-
ders and the charge nurse's knowledge of what gener-
al care should be given to a patient. Two LPN's testi-
fied at the hearing for Petitioner. One testified that at
her station the aides work as a team, while the other
testified that she assigns patients among her aides to
divide the work evenly.
The charge nurses are entirely involved in patient
care, including the giving of medicine, the ordering
of prescriptions, keeping charts of the patients' medi-
cal conditions, and giving emergency treatment.
Both charge nurses testified that while making
their rounds they may see that an aide has not per-
formed certain work, and so advise that aide. Both
further testified that if the aide refused to do the
work they would report this to the Administrator or
Director of Nursing and had never been told that
they had authority to discipline aides.
Upon consideration of the above facts and entire
record, I find that the charge nurses cannot hire or
fire employees, or effectively recommend such action
and their assignment of work to aides is routine in
nature or depends on the medical needs of a patient.
They are therefore not supervisors as defined in Sec-
tion 2(11) of the Act. New Fern Restorium Co. 175
NLRB 871; Madeira Nursing Center, Inc., 203 NLRB
323; Pikeville Investors, Inc. d/b/a Mountain Manor
Nursing Home, 204 NLRB 425.
Employer takes the position that if the charge
nurses constitute an appropriate unit," the relief Reg-
istered Nurse, Mrs. Gascoigne, should be included
therein. Mrs. Gascoigne works for Employer on a
part-time basis. As Florida Law requires that Em-
ployer have a Registered Nurse on the property sev-
en days a week, she has been working on the week-
ends. She occasionally works on other shifts. When
the Director of Nurses was absent because of illness,
Mrs. Gascoigne replaced her in that position.
While she otherwise serves as a charge nurse, she
also reviews the conditions of patients at both sta-
tions and gives patient treatments which may not be
given by the LPN's. As she makes, patient care deci-
sions and ,gives patient treatment on the basis of her
advanced education, I find her to be a professional
employee and therefore excluded from the unit.
Morton Goodman (home administrator) and Lorna
Richardson (director of nursing) have "the authority to
hire and fire employees, and J find them to be super-
visors as defined in the Act.