St. Mary's Hospital, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1975

220 N.L.R.B. 496 (N.L.R.B. 1975)

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Mary's Hospital, Inc. and Florida Nurses Associa-
tion, Petitioner . Case 12-RC-4781
September 22, 1975
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING , JENKINS , AND PENELLO
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, a hearing was
held at West Palm Beach, Florida, before Hearing
Officer Jack D. Livingston on January 10 and Febru-
ary 6 and 7, 1975, and before Hearing Officer Antho-
ny J. Disalvo on February 18 and 19, 1975. Follow-
ing the hearing and pursuant to Section 102.67 of the
Board's Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional Direc-
tor for Region 12 transferred the case to the Board
for decision. Thereafter, the Employer and Petitioner
filed briefs with the Board.
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. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer, hereinafter also referred to as
the hospital, is a private nonprofit hospital in West
Palm Beach, Florida. During the past 12 months, its
gross revenue has exceeded $500,000, and during the
same period it received directly from points outside
the State of Florida goods and materials valued in
excess of $50,000. We find that the Employer is en-
gaged in commerce within the meaning of the Act,
and it will effectuate the purposes of the Act to assert
jurisdiction herein.
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 to represent a professional
unit of all registered nurses in the Employer's nursing
department, excluding all other employees and su-
pervisors as defined in Section 2(11) of the Act. The
Employer contends that the unit should consist of all
employees in direct patient care or all professional
employees.' In accordance with our decision in Mer-
1 The Employer also contends that the petition herein is fatally defective
cy Hospitals of Sacramento, Inc., 217 NLRB No. 131
(1975), we find that a unit of registered nurses is an
appropriate unit for the purposes of collective bar-
gaining.
St. Mary's Hospital, a nonprofit Florida corpora-
tion, is a general hospital with 283 beds located in
West Palm Beach, Florida. It has approximately 900
employees, of whom about 500 are in the nursing
services department 2 The hospital is authorized to
employ approximately 200 registered nurses in its
nursing services department. The parties stipulated
or agreed that the following were supervisors within
the meaning of the Act: The director of nursing, the
2 assistant directors of nursing, the director of in-
service education, and 10 house and specialty unit
supervisors. Contrary to the Petitioner, the Employer
contends that clinicians, senior nursing care coordi-
nators (hereinafter SNCC's), nursing care coordina-
tors (hereinafter NCC's), and assistant nursing care
coordinators (hereinafter ANCC's) should be found
to be supervisory. The Employer also contends that
three in-service education instructors are supervisors.
The remaining RN's include about 14 interns, nurses
who have graduated from nursing school but have
not yet been certified by the State of Florida.'
Clinicians: The clinicians are highly skilled RN's
who are available for consultation by any other nurs-
es who have problems in patient care. Like the super-
visors, they are salaried and do not receive overtime
pay. Their starting salary is the same as that of the
supervisors, and they generally work out of the
supervisor's office. The clinicians are responsible for
the Employer's intern program and serve as advisors
to the interns.
It is the Employer's regular practice, when an open
clinician position is to be filled, to have available cli-
nicians interview candidates for the job. Candidates
may be other RN's from within the hospital or appli-
cants from the outside. It appears that clinicians have
effectively recommended the hiring of new clinicians.
Further, clinicians, on a frequent and regular basis,
substitute for the supervisors. The record indicates
that one day-shift clinician has been working 5 days
per week as a supervisor, and a night clinician has
been working 3 to 4 days a week as a supervisor. It is
estimated that a clinician, as part of her regular du-
because it fails to comply with Sec . 9(c)(I) of the Act and that the Board's
delegation of power under Sec . 9 to the Regional Director is improper. We
reject these contentions as lacking in merit
2 The employee statistics discussed herein generally refer to the number of
authorized positions . The Employer 's evidence indicates that frequently
there are somewhat fewer actual employees than authorized positions. For
example , the Employer has authorized nine clinician positions , but at the
time of the hearing had only six clinicians.
' Neither the Employer nor the Petitioner has specifically stated whether
the interns should be included or excluded . We find , in view of their training
and working conditions , that the nurse interns are professional employees,
and we shall include them in the unit
220 NLRB No. 92
ST. MARY'S HOSPITAL, INC. 497
ties, must spend 25 percent of her time doing admin-
istrative work on behalf of the Employer.
Petitioner argues that clinicians differ from the
house and specialty unit supervisors in that their po-
sitions , unlike that of the supervisor, emphasize di-
rect patient care. While this may be true, the record
indicates that the Employer is moving toward a
merger of the positions of supervisor and clinician.
Although the clinician emphasizes direct patient care
more than the supervisor, it is clear that the clinician
engages in significant supervisory functions on be-
half of the Employer. The clinicians' authority and
responsibilities extend substantially beyond giving
direction to other employees as part of a health care
professional's treatment of patients. Accordingly, we
find that the clinicians are supervisors within the
meaning of the Act, and we shall exclude them from
the unit.
Senior Nursing Care Coordinators, Nursing Care
Coordinators, and Assistant Nursing Care Coordina-
tors: The Employer has replaced the term "head
nurse" with the term "nursing care coordinator."
Currently, the Employer has authorized 8 SNCC's,
12 NCC's, and 46 ANCC's. The SNCC's are usually
assigned to the Employer's specialty units, and the
NCC's are assigned to the medical-surgical units.
Generally, the SNCC's and NCC's work on the day
shift but are considered responsible for their units on
a 24-hour basis. Many ANCC's work on the evening
and night shifts, though some work days, assisting
the SNCC's and the NCC's. The SNCC's and the
NCC's apparently have the same responsibilities, and
the ANCC's either assist them on the day shift or act
in their place on the evening and night shifts. All
these nurses are hourly paid, punch timeclocks, and
receive overtime pay. There is about a 4-percent pay
differential between successive levels of registered
nurses (from staff RN to ANCC to NCC to SNCC).
The primary responsibility of the SNCC's, NCC's,
and ANCC's is patient care.4 The Employer has re-
lieved these nurses of most administrative functions
so that they may concentrate on direct patient care.
The record indicates that all levels of nursing care
coordinators defined and described their responsibil-
ities to be clinical and that they direct other employ-
In assessing the duties , responsibilities , and authority of these nurses, we
have relied, in part , on the testimony of former Director of Nursing Stef-
fens . Steffens served as the Employer's director of nursing for 2 years. The
Employer argues that we should discount Steffens ' testimony because she
left her position on or about October 1, 1974, and is thus unfamiliar with the
Employer's current situation . However , the hearing in this case commenced
January 10, 1975, a short time after Steffens ' departure. Further, numerous
witnesses testified that they were unaware of any change in their duties,
responsibilities , or authority since the departure of Steffens . Therefore, ex-
cept where evidence specifically shows that an Employer practice or proce-
dure changed after Steffens ' departure , we find it proper to rely, in part, on
Steffens' testimony in reaching our decision herein.
ees only to the extent necessary to assure the best
possible patient care. An SNCC and an NCC testi-
fied that they spend only about 2 percent of their
time engaging in any administrative functions on be-
half of the Employer. Neither the SNCC's nor the
NCC's have a role in the hiring or firing of employ-
ees. Unlike clinicians, SNCC's, NCC's, and ANCC's
do not interview candidates for nursing positions.
Staff RN's look upon the SNCC or NCC as "a co-
worker" with, more experience in nursing.
The Employer contends that the SNCC's, NCC's,
and ANCC's all have supervisory authority. Howev-
er, having carefully examined the Employer's conten-
tions and the evidence in the record, we find that
these nurses only exercise authority and give direc-
tion to other employees as part of their professional
care of patients.
The Employer notes that the SNCC's and NCC's,
and at times the ANCC's, will make up the work
schedules for the RN's. However, the record shows
that all nurses generally work as a group in trying to
arrange schedules and the days off desired. In the
event that the nurses cannot collectively work out a
satisfactory schedule, the SNCC or NCC will make
the final decision, and then turn the schedule over to
the nursing staff coordinator, a clerical in the nursing
department, who checks to make sure all shifts are
covered and coordinates the schedules from the vari-
ous units. After she approves them, they are printed
and sent back to the various units for posting. If,
after the posting of the schedule, a nurse desires a
schedule change, she speaks to the nursing care coor-
dinator (not the SNCC or NCC). Apparently, if the
nurse requesting the change can find a substitute, she
will be allowed to make the desired change.
The Employer argues that the SNCC's, NCC's,
and ANCC's can give verbal reprimands. However,
the record indicates that this authority is limited. In
matters relating to patient care, the coordinators may
and do verbally reprimand employees who have
failed to provide proper patient care. On the other
hand, reprimands for personnel matters such as em-
ployee absenteeism are left to the supervisors. The
Employer notes that the coordinators may file "con-
tact reports" with the supervisors. But the record
shows that any employee may file a "contact report,"
which either praises or condemns the actions of any
other employee. For example, LPN's have filed "con-
tact reports" about RN's.
Finally, the Employer states that the SNCC's,
NCC's, and ANCC's periodically fill out evaluation
forms on other employees and that the evaluation
forms may affect the job status of those employees.
The evaluation form does not provide for the evalua-
tor to recommend that the employee be promoted.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, the Employer has no merit increase program
and therefore a good evaluation cannot lead to a
merit increase. The forms are to be prepared in pen-
cil for presentation to the supervisor, who makes any
changes she thinks necessary. Apparently, if the eval-
uation contains any serious negative aspects, the su-
pervisor will independently investigate the matter to
determine if any remedial action is required. After
the supervisor approves and signs the evaluation
form, the coordinator discusses the evaluation with
the employee.
On the basis of the evidence before us, we find that
the SNCC's, NCC's, and ANCC's are not supervisors
within the meaning of the Act. The Employer's prac-
tice has been to minimize the administrative and su-
pervisory functions of all coordinators and to em-
phasize their patient care functions. The Board has
not found supervisory a health care professional who
gives directions to other employees, which directions
are incidental to the professional's treatment of pa-
tients . See, e .g., Wing Memorial Hospital Association,
217 NLRB No. 172 (1975). In this case, it is clear that
the authority, duties, and responsibilities of all coor-
dinators are clinical in nature and closely related to
direct patient care. There nurses do not hire, dis-
charge, promote, or have the authority to recom-
mend effectively changes in the employment status
and wages of other employees. Overall, the SNCC's,
NCC's, and ANCC's engage in no significant super-
visory functions on behalf of the Employer, and we
conclude they are not supervisors within the meaning
of the Act. Accordingly, we shall include them in the
unit.
In-Service Education Instructors: In its nursing
services department, the Employer has a separate
section known as in-service education. The director
of this section is stipulated to be a supervisor. At the
time of the hearing, this section also employed three
assistant instructors (nondegree RN's) and one in-
structor assistant (an LPN). The Employer contends
that the three assistant instructors are supervisors
within the meaning of the Act. Petitioner apparently
takes no position as to the status of the assistant in-
structors.
New employees, from orderlies to RN's, in the
nursing services department go through a 2-week or-
ientation program conducted by the in-service in-
structors. For the first few days of orientation, all
new employees are trained together; thereafter they
are divided into groups based on job classifications.
The assistant instructors train the new employees
and can extend a new employee's orientation period.
If a new employee seems deficient during orienta-
tion, the problem is discussed by the instructor, the
director of in-service education, a supervisor, and
possibly the director or assistant director of nursing.
Usually, some effort is made to find suitable func-
tions that the new employee can perform. If the new
employee cannot successfully perform any suitable
functions, a decision to terminate may be made. Nor-
mally, the director of in-service education has the
final word as to whether any new employee success-
fully completes orientation or is terminated.
On this record, we are not persuaded that the assis-
tant instructors are supervisors within the meaning of
the Act. Their function is to teach new employees
during a brief 2-week orientation period. In their
teaching capacity, it is necessary for the instructors
to evaluate the new employees and inform their supe-
riors of the new employees' success or lack of success
in orientation. The instructor may extend the orien-
tation period of a new employee encountering prob-
lems. Nonetheless, we cannot conclude that the
teaching function of the instructors automatically
leads to a finding that the instructors promote or dis-
charge employees or make effective recommenda-
tions regarding the job status of new employees. On
this record, we are not persuaded that the in-service
instructors are supervisors within the meaning of the
Act, and we shall include them in the unit.
We also note that there are other RN's working
outside of the nursing services department. One RN,
who works as an EEG technician and is also a de-
partment head, was stipulated by the parties to be
out of the unit, and we shall exclude her. Other RN's
are working as a nurse epidemiologist, a nurse con-
sultant in product evaluation, and a nurse in the em-
ployee health service. As we shall normally find it
appropriate to group together in the RN unit all
RN's wherever assigned in the hospital, we shall in-
clude these RN's in the unit.
Upon the entire record, we find that the following
employees of the Employer constitute a unit appro-
priate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time registered
nurses employed by the Employer at its hospital
at 900-49th Street, West Palm Beach, Florida,
including senior nursing care coordinators, nurs-
ing care coordinators, assistant nursing care
coordinators, assistant instructors, nurse interns,
nurse epidemiologist, nurse consultant in prod-
uct evaluation, and nurse in the employee health
service, but excluding the director of nursing, di-
rector of in-service education, assistant directors
of nursing, house and specialty unit supervisors,
clinicians, EEG technician-nurse, all other em-
ployees, and all supervisors and guards as de-
fined in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]