Shadescrest Health Care Center

National Labor Relations Board - Board Decisions

Mar 28, 1977

228 N.L.R.B. 1081 (N.L.R.B. 1977)

SHADESCREST HEALTH CARE CENTER
Shadescrest Health Care Center, Employer-Petitioner
and American Federation of State, County and
Municipal Employees , AFL-CIO, and its Local
2904. Case 10-UC-75
March 28, 1977
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On October 15, 1976, the Acting Regional Director
for Region 10 of the National Labor Relations Board
issued his Decision and Direction of Election in the
above-entitled proceeding,' in which he granted the
Employer's requested clarification of the bargaining
unit by excluding therefrom all "charge nurses"
employed by the Employer at its Jasper, Alabama,
location. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, the Union
filed a timely request for review of the Acting
Regional Director's decision on the grounds, inter
alia, that in rejecting the Union's contention that the
Employer's licensed practical nurses were properly
included within the bargaining unit, the Acting
Regional Director made erroneous findings of fact
and departed from officially reported Board prece-
dent.
By telegraphic order dated November 30, 1976, the
National Labor Relations Board granted the request
for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issue under review and
concludes that the record herein does not support the
Acting Regional Director's finding that the "charge
nurses" are supervisors who should be excluded from
the certified unit.
On December 18, 1975, a Certification of Repre-
sentative issued in Case 10-RC-10503 certifying the
Union herein as exclusive bargaining representative
for a unit of "all employees employed by the
i By erratum dated October 19, 1976, the Regional Director for Region
10 corrected the caption in the Decision to read "Decision and Clarification
of Bargaining Unit."
2 Subsequently, in September 1976, the Employer changed the name of
the facility to Shadescrest Health Care Center. The petition herein was filed
on September 10, 1976.
3 Cf. Northwest Publications, Inc., d/b/a San Jose Mercury and San Jose
News, 197 NLRB 213 (1972). In the instant case, inasmuch as we find the
LPN's were appropriately included within the unit , we do not reach the issue
of whether it would be inappropriate, as disruptive of the collective-
bargaining process, to exclude such individuals so shortly after the signing
of the contract . Northwest Publications, supra; Wallace-Murray Corporation,
Schwitzer Division, 192 NLRB 1090 (1971 ). Nor do we find it necessary to
228 NLRB No. 135
1081
Employer (People's Nursing Home, Inc.), at its
Jasper, Alabama nursing home; but excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act."
Subsequent to the certification, in March 1976, the
Employer herein purchased the People's Nursing
Home facility, recognized the Union as the duly
certified representative of the employees, and there-
after, on August 25, 1976, People's and the Union
herein entered into a collective-bargaining agreement
effective for a 3-year period.2 The contract specifical-
ly covers, inter alia, licensed practical nurses (herein-
after LPN's). However, the contract does not
mention the title "charge nurses ," nor does the unit
description mention such a title. The Employer now
asserts that all of the LPN's are "charge nurses" who
must be excluded from the unit as supervisors.
In appropriate circumstances, the Board will
entertain a petition for clarification of the unit even
during the existence of a current collective-bargain-
ing agreement. The Western Colorado Power Compa-
ny, 190 NLRB 564, fn. 1(1971).3
The Employer operates a nursing home licensed for
77 skilled care beds and 30 intermediate care facility
beds. The titular head is owner Joe R. Blackston,
who is frequently on the premises. In addition, there
is an associate administrator who is responsible for
the day-to-day operations of the facility. Directly in
charge of the nursing service is Director of Nursing
Ann Hudson, who has an administrative assistant,
Doris Crapps. Both work a daytime shift, 5 days per
week. The above three individuals are salaried,
whereas LPN's like other unit employees are hourly
paid.4 The record establishes that charge nurses have
no authority to hire or fire employees. Any direction
that they may give to aides and orderlies is routine in
nature or connected with providing patient care and
assuring that the needs of the patients are fulfilled.5
The record also reveals that the director of nursing
as well as her administrative assistant are on call at
all hours. When the director of nursing is not on
duty, any serious personnel problems which arise are
handled either by calling her (or her assistant, or the
administrator) or by leaving a written report for her
consideration and action. If an aide or orderly fails
to show up for a shift, the LPN must call the director
our Decision herein, to resolve the conflicting testimony regarding the
Employer's asserted position as to the exclusion of LPN's during its
negotiations with the Union.
4 Mr. Blackston testified that , while the associate administrator, the
director of nursing, and her administrative assistant are not routinely
present on other than the day shift , they may come in at other times to check
on employees and patients . Mr. Blackston himself had been at the nursing
home the previous evening until 9:30.
5 Thus Mr. Blackston testified that charge nurses have authority over
personnel other than that linuted to immediate nursing service to the extent
that they may oversee the delivery of food to the patient and insure that the
patients are properly fed.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of nursing who then makes the decision whether an
employee will be called to fill in for the shift and, if
so, which employee is to be called. The director of
nursing or her administrative assistant also makes
out the work schedule for all of the nurses aides and
orderlies, and routinely during and at the end of the
day shift inspects each room of the nursing home as
to the work of the aides and orderlies, and the
housekeeping personnel.
We conclude that the facts in this case are
governed by Board cases finding that charge nurses
whose responsibilities are "fundamentally limited to
providing routine patient care" are not supervisors.
See Pikeville Investors, Inc., d/b/a Mountain Manor
Nursing Home, 204 NLRB 425 (1973); Pinecrest
Convalescent Home, Inc., 222 NLRB 13 (1976).
Accordingly, the bargaining unit certified in Case
10-RC-10503 is clarified to include the classification
"charge nurses," which we find to be nonsupervisory.
CHAIRMAN MURPHY, concurring:
I agree with the finding that the LPN charge nurses
in issue in this case are not supervisory and properly
belong in the certified unit.
The status of charge nurses in any given situation
depends on the facts of that case. Thus, I have found
in some instances that charge nurses or head nurses
are supervisors (see, e.g., my separate opinion in
Brattleboro Memorial Hospital, Inc., 226 NLRB 1036
(1976)), while in others I have found them nonsuper-
visory (St. Rose de Lima Hospital, 223 NLRB 1511
(1976)). In the instant case it is clear that the LPN
charge nurses do not exercise the type of authority or
responsibility which justifies their exclusion from the
unit. On the contrary, only the fact that higher
supervision is absent except during regular daytime
hours weighs in favor of finding these charge nurses
to be supervisors; but it is clear that during those
periods the director of nursing and her administra-
tive assistant are on call and handle any problems
which may arise.
Accordingly, I concur in the clarification of the
certified unit to include LPN's classified as charge
nurses.