Waverly-Cedar Falls Health Care, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 1989

297 N.L.R.B. 390 (N.L.R.B. 1989)

390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Waverly-Cedar Falls Health Care, Inc. and Chauf-
feurs, Teamsters and Helpers, Local Union No.
238, a/w I.B. of T.C.W. & H. of A., AFL-
CIO,' Petitioner. Case 18-RC-14443
November 28, 1989
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 6, 1988, the Acting Regional Di-
rector issued a Decision and Order in which he dis-
missed the petition based on his finding that the
Employer's licensed practical nurses (LPNs) em-
ployed as charge nurses were supervisors under
Section 2(11) of the National Labor Relations Act
Thereafter, in accordance with Section 102 67 of
the National Labor Relations Board's Rules and
Regulations, the Petitioner filed with the Board a
timely request for review of the Acting Regional
Director's Decision and Order By order dated
April 14, 1989, the Board granted the request for
review
We have considered the entire record in this
case, including the Petitioner's and the Employer's
briefs on review, and make the following findings
I
The Employe': operates a 100-bed intermediate
nursing care facility in Cedar Falls, Iowa At the
time of the hearing, the Employer housed 86 pa-
tients The facility consists of four wings, with two
nursing stations
The Employer's regional director, Rita Edwards,
supervises the Employer's 10 Iowa facilities by
providing guidance with respect to finances,
employer/employee relationships, and policy, pro-
cedure, and safety implementation Administrator
John Studer has administrative responsibility over
the Employer's Cedar Falls facility Under Studer
are the department heads, Director of Nursing
Gladys Petersen and the assistant director of nurs-
ing Petersen and the assistant director of nursing
are registered nurses The Employer employs seven
LPNs and four med-aides The Employer also em-
ploys approximately 35 aides and orderlies, who
perform direct patient care and are currently repre-
sented by the International Union, United Automo-
bile, Aerospace and Agricultural Workers of
America, Local 838
Employees are scheduled to provide patients
with 24-hour care, 7 days a week The LPNs,
aides, and orderlies are assigned to one of the three
'On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
shifts each day 6 a m to 2 p m (day shift), 2 p m
to 10 p m (night shift), or 10 p m to 6 a m (late
night shift) Two LPNs and eight aides or orderlies
are assigned to the day shift, two LPNs and seven
aides or orderlies are assigned to the night shift,
and one LPN and four aides or orderlies are as-
signed to the late night shift Med-aides substitute
for LPNs The assistant director of nursing sched-
ules the days and shifts worked by LPNs, med-
aides, aides, and orderlies The administrator and
the director of nursing work during the week from
8 a m to 5 p m The assistant director of nursing
usually works during the week from 8 a m to 2 30
p m, but had also worked the night shift during
the weekend for the 3 months preceding the hear-
ing Petersen stated that the assistant director of
nursing would stop working weekends when an-
other LPN is hired
II
The Petitioner seeks to represent a unit of seven
LPNs working as charge nurses The Employer,
contrary to the Petitioner, contends that the LPNs
are statutory supervisors The Acting Regional Di-
rector found the LPNs to be supervisors, reasoning
that they are the only supervisory personnel
present during evenings and on weekends, that
they assign work, evaluate aides and orderlies,
excuse absences, approve overtime, and send aides
and orderlies home without prior approval, and
that if they are not supervisors there would be an
unrealistic ratio of 2 supervisors for 46 nursing de-
partment employees Our review of the facts, as set
forth below, convinces us that the LPNs do not
possess supervisory authority Thus, we reverse the
Acting Regional Director's decision and remand
the case to the Regional Director for further proc-
essing in accordance with this decision
III
At the hearing, the Employer introduced into
evidence the LPNs' job description The descrip-
tion clearly lists eight patient care areas, including
directing and rendering nursing care as a unit
leader, informing the director of nursing of patient
status, observing and reporting patient symptoms,
providing physician-prescribed medicines and treat-
ment, keeping records of observations and care,
making daily rounds, ensuring that medications and
treatments conform to physician orders, and re-
viewing patient care plans The LPNs' job descrip-
tion also lists other nonpatient-care duties, includ-
ing offering hiring recommendations, making em-
ployee work assignments and changing duties to
meet patient needs, authorizing overtime, excusing
employees for good cause and securing replace-
297 NLRB No 40
WAVERLY-CEDAR FALLS HEALTH CARE

391
ments, evaluating employees' job performances and
counseling employees, issuing warnings and suspen-
sions when appropriate, following grievance proce-
dures, attending supervisory meetings, involvement
in training, enforcing the Employer's policies, as-
sisting the director of nursing in implementing poli-
cies, and other duties assigned by the director of
nursing
At the hearing, the Employer also introduced
into evidence the aides' and orderlies' job descrip-
tion These employees provide primary basic per-
sonal care to patients Aides and orderlies bathe,
dress, feed, and turn patients, change linen, take
temperature, pulse, and blood pressure readings,
and otherwise minister to the patient's needs They
perform these duties independently or with mini-
mal direction from the LPNs If an aide or orderly
wishes to leave the facility for any reason during
the shift and the administrator, the director of nurs-
ing, and the assistant director of nursing are not
present, he or she notifies the LPN Director of
Nursing Petersen stated that LPNs can approve
aides' and orderlies' requests to leave work if they
have completed their work and the other aides and
orderlies do not object
LPNs do not have authority to hire new employ-
ees The director of nursing interviews all appli-
cants Petersen ,estimated that LPNs made three or
four hiring recommendations when they knew the
applicants, but did not state that she followed their
recommendations without regard to her interview
of the applicants Petersen provided one example
where LPNs made a termination recommendation
during an aide's probationary period After receiv-
ing the recommendation, Petersen spoke with the
aide and kept the aide on the floor Only after a
second recommendation did Petersen terminate the
aide
LPNs have evaluated aides and orderlies after
their 90-day probationary period, as well as annual-
ly However, during the year preceding the hear-
ing only the late night shift LPN had performed an
evaluation The LPNs use a standard form, which
is also used by the director of nursing to evaluate
LPNs The form covers nine categories with five
possible ratings in each category Petersen stated
that she reviews the evaluations, speaks with the
aides and orderlies, and can write additional com-
ments or change the evaluations LPNs make no
recommendations on these forms with respect to
retention, discharge, probation, promotions, or
raises There is no evidence that the terms and con-
ditions of employment of aides or orderlies have
been affected as a result of these evaluations Peter-
sen testified that the purpose of the evaluations is
simply to "strengthen the employee"
LPNs participate in the Employer's disciplinary
system by writing and signing oral and written
warnings on counseling forms, which are placed in
the aides' and orderlies' personnel files These
warnings consist of a factual account of an alleged
incident of misconduct, but do not contain any dis-
ciplinary recommendations Petersen stated that
after a form is completed the LPN comes to her to
discuss what resolution should be taken Petersen
acknowledged that she usually writes in the "reso-
lution taken"
Petersen also testified that after three violations
an employee can be terminated or suspended No
evidence was presented that the Employer auto-
matically follows this disciplinary system Rather,
the director of nursing apparently reviews each
case and determines whether to implement disci-
pline beyond the LPNs' warnings Twelve of the
17 counseling forms introduced into evidence were
not marked whether the incident was the first,
second, or third violation The Employer's employ-
ee handbook lists a written verbal warning for a
first offense, a written warning or suspension for a
second offense, and a warning with 1-3 days' sus-
pension for a third offense The handbook also lists
13 grounds for immediate dismissal including arriv-
ing to work under the influence of alcohol, cursing,
abusing patients, and insubordination
In addition to issuing written and oral warnings,
LPNs can temporarily suspend an employee or tell
an employee to punch out Three examples were
introduced into evidence In one case, an aide was
sent home for smelling of alcohol and was told to
speak with the director of nursing before returning
to work In another case, an aide was sent home
for smelling of alcohol, but Regional Director Ed-
wards extended the suspension for another 48
hours pending an administrative 'investigation In
the third case, an aide was sent home for smelling
of alcohol and for cursing, but the director of nurs-
ing counseled the aide and warned that another
violation would result in termination
The assistant director of nursing schedules the
aides, orderlies, med-aides, and LPNs LPNs call
replacements for absent aides and orderlies by
starting with part-time employees, who are at the
bottom of the Employer's list Director of Nursing
Petersen stated that she, the assistant director of
nursing, and the department heads are on call 24
hours a day Petersen was called the night before
the hearing because an LPN could not find a re-
placement for an aide Petersen admitted that
LPNs cannot alter shifts and cannot require aides
to come to work She stated that LPNs assign
duties to aides using the activities daily list Peter-
sen listed weighing, showering, taking tempera-
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tures, and changing linens as some of the assigned
duties Petersen admitted that physicians record the
type of care and a patient's special concerns, and
she, with the department heads, prepares a patient's
care plan
IV
The Board will not exclude an individual from
voting for a collective-bargaining representative
unless the record evidence establishes that the indi-
vidual is, in fact, ineligible to vote Ohio Masonic
Home, 295 NLRB 390, 393 (1989), and cases cited
therein We find here that the evidence does not
establish that the LPNs possess supervisory author-
ity
It is undisputed that the charge nurses have no
authority to transfer, lay off, or recall employees
Neither do they effectively recommend such
action The Acting Regional Director found, how-
ever, that the LPNs are supervisors based on their
effective hiring and firing recommendations, their
evaluating and disciplining employees, their direct-
ing and assigning employees' work, their granting
overtime, the supervisor/employee ratio, and their
being "in charge" during the night shifts and on
weekends
A Hiring and Firing Recommendations
Although the record shows that the LPNs have
made hiring and firing recommendations, the direc-
tor of nursing independently investigated and inter-
viewed the aides before making the ultimate hiring
or firing decision The Employer does not contend
and the Acting Regional Director did not find that
the director of nursing relied solely on the LPNs'
recommendations without further inquiries There-
fore, it cannot be said that the LPNs effectively
recommend hiring or firing Passavant Health
Center, 284 NLRB 887, 891 (1987) Accordingly,
we find that the LPNs' authority to recommend
hiring or firing here' does not rise to the level of
statutory supervisory authority
B Evaluation of Employees
Although the record shows that the LPNs evalu-
ate both probationary and nonprobationary em-
ployees by assessing their performance in various
job-related categories, it does not establish that the
LPNs' evaluations of employee performance affect
those employees' job status In evaluating employ-
ees, the LPNs do not recommend promotions,
raises, discipline, or retention Furthermore, no evi-
dence was presented showing that an employee's
job status has been affected by an LPN's evalua-
tion See Ohio Masonic, supra at 393, where the
evaluation systems in Wedgewood Health Care, 267
NLRB 525 (1983), and in Pine Manor Nursing
Center, 270 NLRB 1008 (1984), were distinguished
In Wedgewood, 267 NLRB at 526, the nurses were
found to be supervisors in part because poor eval-
uations resulted in personnel action In Pine Manor,
270 NLRB at 1009, the nurses were also found to
be supervisors in part because poor evaluations
could effectively mandate a discharge and good
evaluations were used to reward employees
The authority simply to evaluate employees
without more is insufficient to establish supervisory
status Passavant, 284 NLRB 888, 891 Because we
find that the LPNs' evaluations have not been
shown to have an effect on the aides' and orderlies'
job status, we find that the LPNs' preparation of
evaluations does not support a finding of superviso-
ry authority
C Discipline of Employees
The record establishes that LPNs play a role in
the Employer's disciplinary system by issuing oral
and written warnings These warnings consist of
factual accounts of the alleged incidents of miscon-
duct, but do not recommend any further discipli-
nary action Rather, the LPN consults with the di-
rector of nursing about the resolution to be taken,
and the director of nursing writes in the resolution
taken This participation by the director of nursing
indicates that the warnings do not automatically
lead to any further discipline or adverse action
against the employee, although they are placed in
the employee's personnel file Further, there is no
defined progressive disciplinary scheme because
the warnings, without more, do not affect job
status See Passavant, supra, distinguishing Con-
course Village, Inc , 276 NLRB 12 (1985), where
the employer's express policy provided that receipt
of three written warnings automatically resulted in
termination Here the LPNs do not usually list the
number of the offense on the warning, and the Em-
ployer's employee handbook and the director of
nurses' testimony conflict as to what happens after
the third offense Also, it is undisputed that the
LPNs consult with the director of nursing before a
resolution is taken
The mere authority to issue oral and written
warnings that do not alone affect job status does
not constitute supervisory authority Ohio Masonic,
supra, Passavant, supra, Beverly Manor Convalescent
Center, 275 NLRB 943, 945 (1985)
LPNs have the authority to require aides and or-
derlies to punch out, a temporary suspension In
the three cases in evidence, the LPN smelled alco-
hol In one case, the aide had to speak with the di-
rector of nursing before returning to work In an-
other, the Regional Director extended the suspen-
WAVERLY-CEDAR FALLS HEALTH CARE 393
sion for another 48 hours pending her investigation
In the third case, the aide also cursed and the di-
rector of nursing spoke with the aide and warned
that another violation would result in termination
This evidence does not establish supervisory au-
thority on the part of the LPNs
The Board has held that authority that is limited
to taking action in response to flagrant violations,
such as being drunk, is insufficient by itself to es-
tablish supervisory status Phelps Community Medi-
cal Center, 295 NLRB 486 (1989), and cases cited
therein Also, where suspensions are taken in con-
nection with patient care and the action is reviewa-
ble by the director of nursing, such authority is in-
sufficient to establish supervisory status Phelps,
supra at 491 Here, it is obvious the aides' condi-
tion could have affected the quality of patient care,
and the director of nursing or the regional director
reviewed the incident The Employer's employee
handbook indicates that the Employer considers
drinking alcohol and cursing as flagrant violations,
because they are grounds for immediate termina-
tion However, because LPNs cannot terminate
employees, their closest alternative is to send the
employee home Therefore, we find that the evi-
dence is inadequate to establish that the LPNs ex-
ercise independent judgment sufficient to support a
finding of supervisory status
D Assigning and Directing Employees' Work
The assistant director of nursing assigns LPNs,
med-aides, aides, and orderlies to their shifts The
LPNs have no authority to change these assign-
ments The only situation in which LPNs change
employees' working hours is in case of sickness or
emergency Although LPNs call in replacements,
this does not indicate that they exercise independ-
ent judgment LPNs call replacements by following
the Employer's standing policy to use employees
from the Employer's call-in list, starting with part-
time employees Further, the director of nursing
and the assistant director of nursing are called if
the LPN cannot find a replacement from the list
Accordingly, we find that the LPNs' assignment of
employees is routine, not requiring independent
judgment
We further find that the LPNs' day-to-day direc-
tion of the aides and orderlies is also routine
Moreover, we find that the direction is primarily in
connection with patient care Beverly Manor, 275
NLRB at 944-947 To the extent that LPNs direct
aides and orderlies, they do so in routine patient
care areas such as bathing patients, taking tempera-
tures, changing linens, and weighing patients
LPNs instruct aides and orderlies following the ac-
tivities daily list, which is derived from the physi-
cian's orders and the director of nursmg's and de-
partment heads' care plan LPNs also ask aides and
orderlies not to take breaks or to postpone breaks,
but with the purpose of ensuring that there is
someone available to administer to a patient's need
Therefore, we find that the LPNs' direction of em-
ployees' work and granting breaks does not align
the LPNs with the Employer, but solely involves
patient care We also find that any judgment exer-
cised by the LPNs with regard to directing work
and granting time off is routine and in furtherance
of patient care, rather than supervisory judgment
on behalf of the Employer
E Other Factors
LPNs initial timecards, and the director of nurs-
ing stated that LPNs have authority to authorize
overtime However, there is no evidence about any
specific case where an LPN granted overtime, or
the circumstances under which an LPN granted
overtime Thus, there is insufficient evidence that
LPNs exercise supervisory judgment on behalf of
the Employer in scheduling overtime
The Board has examined other secondary fac-
tors, such as the ratio of supervisors to employees,
in determining supervisory status Phelps, supra at
492 The administrator, the director of nursing, and
the assistant director of nursing are supervisors
over the nursing department Therefore, if the
LPNs are found not to be supervisors there would
be 3 supervisors over approximately 46 nursing de-
partment employees, a ratio of 1 supervisor to ap-
proximately 15 employees If the LPNs are found
to be supervisors, there would be 10 supervisors
over approximately 39 employees, a ratio of 1 su-
pervisor to approximately 4 employees Either ratio
would be arguably unreasonable Therefore, we
find that the ratio of supervisors to employees in
the instant case is not a dispositive factor for deter-
mining supervisory status Phelps, supra
The Acting Regional Director relied heavily on
the fact that the late night and weekend LPNs are
"in charge" of the facility However, the director
of nursing, the assistant director of nursing, and the
other department heads are on-call 24 hours a day
As indicated by Director of Nursing Petersen, the
LPNs call her or the assistant director of nursing
when the LPN has problems that cannot be re-
solved following the Employer's usual or written
procedures, such as the inability to find a replace-
ment from the Employer's call-in list Also, Peter-
sen admitted that she reviews -the employees' work
and reviews the employees' and patients' reports
Therefore, it appears the LPNs do not have to ex-
ercise independent judgment unrelated to patient
care during the times that they are "in charge"
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Based on the foregoing, we find that the LPNs
do not exercise independent judgment in regard to
any of the factors establishing supervisory status
under Section 2(11) of the Act, and that LPNs are
not supervisors under the Act 2
2 The Employer also argues that the LPNs are managerial employees
The Acting Regional Director did not address this Issue since he found
the LPNs to be supervisors We find that the LPNs' duties are routine,
that they do not require significant Independent discretion, and, in any
event that they do not Involve the formulation and effectuation of em-
ployer policies The only additional evidence presented in this regard is
that the LPNs order supplies when there are unexpected shortages How-
ever, the director of nursing is primarily responsible for ordering regular
supplies, and must authorize payment for the supplies Also, two LPNs
attended an unemployment hearing with the director of nursing and the
administrator There is no evidence that the LPNs performed any mana-
ORDER
The Acting Regional Director's decision is re-
versed, the petition filed in Case 18-RC-14443 by
the Chauffeurs, Teamsters, and Helpers, Local
Union No 238, a/w I B of TCW & H of A,
AFL-CIO is reinstated, and Case 18-RC-14443 is
remanded to the Regional Director for further ap-
propriate action
gerial duty at the hearing LPNs and med-aides attend a monthly meeting
with the director of nursing, where they discuss scheduling, new informa-
tion, following up on assignments to aides, and discipline of aides There
is no evidence that LPNs formulate or effectuate employer policies at the
monthly meeting Accordingly, we find the LPNs are not managerial em-
ployees