St. Rose de Lima Hospital, Inc.

National Labor Relations Board - Board Decisions

May 21, 1976

223 N.L.R.B. 1511 (N.L.R.B. 1976)

ST. ROSE DE LIMA HOSPITAL, INC. 1511
St. Rose de Lima Hospital , Inc.' and Nevada Nurses
Association a/w American Nurses Association, Peti-
tioner. Case 31-RC-3199
May 21, 1976
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Julius N.
Draznin of the National Labor Relations Board 2
Following the hearing, and pursuant to Section
102.67 of the Board's Rules and Regulations and
Statements of Procedure, Series 8, as amended, and
by direction of the Regional Director for Region 31,
this case, including briefs filed by the Petitioner and
the Employer, was transferred to the National Labor
Relations Board for decision.
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 Officer's rul-
ings made at the hearing and finds that no prejudi-
cial error was committed.3 His rulings are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Employer contends that neither the Peti-
tioner, Nevada Nurses Association (herein called
NNA), nor the Intervenor, Health, Professional &
Technical Employees Association, Local 707, Service
Employees International Union, AFL-CIO (herein
called HPTE), is a labor organization within the
meaning of Section 2(5) of the Act. In support of this
contention, the Employer argues that both NNA and
HPTE are, or have the potential for being, influ-
enced, dominated, or controlled by supervisors with-
in the meaning of Section 2(11) of the Act. We find
no merit in the Employer's contention.
The record, including the proposed revisions to the
NNA bylaws,4 reveals that NNA is a professional
association of registered nurses, affiliated with the
American Nurses Association (herein called ANA),
which exists for the purpose, inter alia, of promoting
and protecting the economic and general welfare of
nurses. The NNA functions through affiliated consti-
tuent district associations in designated geographic
regions within the State of Nevada. Thus, "Consti-
tuency III," which is also known as "District 3," en-
compasses the geographic area in which the Employ-
er is located. The NNA and its constituencies elect
their own officers and directors, except that the presi-
dent of each constituency is automatically a director
of NNA.
The purposes of NNA are carried out through var-
ious standing committees, including the Economic
and General Welfare Committee (herein called EGW
Committee) whose primary function, as described in
the revised bylaws, is "to promote and protect the
economic and general welfare of nurses and to estab-
lish and maintain an Economic Security Program for
the Association's members and constituents." The
EGW Committee is headed by two cochairpersons,
elected from NNA's southern and northern regions,
who, in turn, appoint the. committee members. Mem-
bership in this Committee is expressly limited in the
revised bylaws to persons "who are eligible for mem-
bership in a collective-bargaining unit under the
NLRA." The duty of the EGW Committee is to es-
tablish policies governing the economic security pro-
gram, particularly as it relates to NNA representa-
tion of registered nurses in bargaining collectively
with respect to their hours, wages, and other terms
and conditions of employment. The EGW Commit-
tee must also "approve and execute on behalf of the
Association and bargaining units for which the Asso-
ciation is certified or recognized, all collective-bar-
gaining contracts negotiated for health care employ-
ees as represented by the Association or its agents."
In this latter connection the NNA's revised bylaws
further provide that no collective-bargaining propos-
als or agreement shall be approved, nor shall any
labor dispute be adjusted, by the EGW Committee
without the participation and approval, by majority
vote, of the employees in the bargaining unit.
The name of the Employer appears as amended at the hearing.
z Health , Professional & Technical Employees Association , Local 707,
Service Employees International Union , AFL-CIO, was granted interven-
tion on the basis of an adequate showing of interest.
3 Although we agree with the Employer 's contention that the Hearing
Officer should have directed Petitioner 's witness, Smieczienski , to answer
counsel's question as to the identity of the officers of St. Rose de Lima
Nurses Organization , we find that his failure to do so was not prejudicial
since the Employer was able to elicit the requested information through
other informed witnesses.
4 These revisions were adopted by NNA's board of directors in June 1975,
and were scheduled to be voted on at NNA's general membership meeting
in November 1975. Although we have no knowledge whether the revisions
were adopted by the membership, we consider the absence of such evidence
irrelevant since we find, for the reasons discussed infra, that NNA qualified
in any event as a labor organization of the employees involved herein.
Moreover, even if NNA is certified as the bargaining agent of the employees
herein and thereafter ceases to function in the manner contemplated by the
revised bylaws, i.e., without supervisory interference, an appropriate motion
could be filed with the Board to revoke certification.
223 NLRB No. 224
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a like vein, the revised bylaws provide that orga-
nizing activities among registered nurses for purposes
of obtaining employer recognition and bargaining
rights shall be the primary responsibility of the nurs-
es within the local employer unit. The nurses seeking
to organize may request and obtain the assistance of
NNA's or District 3's EGW Committees in these ef-
forts.
In February or March 1975, the registered nurses
employed by the Employer established the St. Rose
de Lima Nurses Organization (herein called the Or-
ganization) and requested the NNA to file the instant
representation petition . The Organization 's member-
ship is limited to all nonsupervisory registered nurs-
es 5 employed by the Employer and its principal ob-
jective is to promote the general welfare of the nurses
through collective bargaining.
Although some of Petitioner 's past officers and di-
rectors included persons who occupied supervisory
positions with the Employer, the record shows that at
the present time none of Petitioner's officers or direc-
tors is employed by the Employer in a supervisory
capacity .6 Accordingly, we perceive no basis for the
Employer's assertion that NNA is controlled, domi-
nated , or assisted by supervisors. The record also
fails to substantiate the Employer's contention that
NNA could, in the future, become subject to supervi-
sory control , domination, or interference . Indeed, the
record points in just the opposite direction. Thus, as
outlined above, NNA has taken various precaution-
ary steps precisely for the purpose of eliminating any
supervisory taint from its leadership and, more spe-
cifically, from the committees which will formulate
and implement collective-bargaining policies. Fur-
thermore, it appears that if NNA is certified to repre-
sent the Employer's registered nurses, collective bar-
gaining will be conducted on their behalf by NNA's
EGW Committee upon proposals submitted by the
Organization. As stated, neither the EGW Commit-
tee nor the Organization admits statutory supervisors
in its ranks. Furthermore, any agreement reached be-
tween NNA and the Employer must receive the ap-
proval of the Organization . Based on the foregoing
we find that NNA has delegated its bargaining au-
thority to its EGW Committee and to the Organiza-
5 The Employer contends that Head Nurse June Dunson . who is secre-
tary-treasurer of the St . Rose de Lima Nurses Organization. is a supervisor
within the meaning of Sec . 2(11) of the Act . For the reasons discussed . infra.
we find that head nurses are not supervisors within the meaning of the Act.
6 Although the Employers director of nursing . Barbara Generaux. was
president of Constituency Ill in 1974 and , hence, also a director of NNA.
she resigned these positions in June 1975 . after the instant petition was filed.
There is no evidence , however, that she assisted or participated in the filing
of the petition or in creating the local Organization . Generaux continues to
serve as a director of Constituency III but there is no evidence regarding the
role Constituency III will play in the collective-bargaining process in the
event NNA is certified.
tion, neither of which admits supervisors into mem-
bership. Accordingly, we can perceive no likelihood
or threat of supervisory interference with the
employee's rights if NNA is selected by the employ-
ees and certified as their bargaining representative.'
The Employer also contends that NNA's authority
to nominate registered nurses for appointment by the
Governor of the State of Nevada to the State Board
of Nursing creates a potential for conflict and inter-
ference with the employees' rights under Section 7 of
the Act. We find this contention entirely too specula-
tive and, hence, lacking in merit.
Based upon the foregoing, we find that NNA is a
labor organization within the meaning of Section
2(5) of the Act and that it is not disqualified from
representing the Employer's employees for purposes
of bargaining collectively with the Employer.'
We also find without merit the Employer's conten-
tion that the Intervenor, HPTE, is not a labor organi-
zation within the meaning of Section 2(5) of the Act
because it is actually or potentially influenced, domi-
nated, or controlled by supervisors. Although
HPTE's constitution and bylaws do not specifically
exclude statutory supervisors from membership, the
record fails to disclose that any of its present officers
or executive board members are employed by the
Employer in a supervisory capacity.9 We are satisfied
and find that HPTE satisfies the requirements of Sec-
tion 2(5) and, therefore, that it is a labor organization
within the meaning of the Act.10 Accordingly, we
deny the Employer's motion to reject HPTE's inter-
vention herein.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit consisting of
all registered nurses employed by the Employer at its
Henderson, Nevada, location, excluding all other
employees, guards, watchmen, and supervisors. Peti-
tioner and Intervenor would also exclude from such
unit all registered nurses who are members of the
religious order which owns and operates the Employ-
7 Annapolis Emergency Hospital Association , Inc. d/b/a Anne Arundel Gen-
eral Hospital, 217 NLRB 848 (1975): Oak Ridge Hospital of the United Meth-
odist Church, 220 NLRB 49 (1975): Valley Hospital, Ltd.. 220 NLRB 1339
(1975).
8 In Valley Hospital, Ltd, supra, we found that Nevada Nurses Associa-
tion a/w American Nurses Association , the Petitioner herein, is a labor
or&anization within the meaning of Sec . 2(5) of the Act.
We note that Norma Cleveland, president of HPTE, is employed as a
head nurse by Valley Hospital . In its recent decision involving registered
nurses at that hospital . the Board found that Cleveland is not a supervisor
within the meaning of the Act. We also find no merit in the Employer's
argument that a potential conflict of interest exists between HPTE and the
employees sought by the petition because a sister local of HPTE represents
doctors at another hospital . A similar contention was rejected by the Board
in Valley Hospital, Ltd., supra.
10 Valley Hospital, Ltd., supra.
ST. ROSE DE LIMA HOSPITAL, INC. 1513
er hospital. The Employer, on the other hand, con-
tends that the only appropriate unit is one which in-
cludes all professional employees, including the
pharmacists, medical technologists, and radiological
technologists. The Intervenor expressed neutrality at
the hearing as to whether a narrow or broad profes-
sional unit is appropriate.
The question of the appropriateness of a separate
unit of registered nurses was recently considered by
the Board in Mercy Hospitals of Sacramento, Inc."
There, as here , the.employer had argued that the ap-
propriate professional unit must consist of all profes-
sional employees at the employer's facilities. We re-
jected that contention there and, for the same
reasons , do so here. Accordingly, we find that a unit
consisting of all registered nurses employed at the
Employer's Henderson, Nevada, hospital is appropri-
ate, and the Employer's motion to dismiss the peti-
tion on the grounds that the unit is inappropriate is
therefore denied.12
The status of the following employees is in dis-
pute:
Members of a religious order: At the hearing, HPTE
contended that the registered nurses who are mem-
bers of the religious order which owns and operates
the Employer hospital should be excluded. Although
the Petitioner has agreed with this position, the Em-
ployer has expressed no position on the matter.
The record shows that the Sisters of St. Dominic of
Adrian, Michigan, owns and operates the Employer
hospital. The hospital's board of trustees consists of
five persons who are members of this religious order
and four lay persons. The board of trustees has dele-
gated the day-to-day operation of the hospital to an
administrator who also is a member of the Sisters of
St. Dominic and is a member of the board of trus-
tees. The record further shows that the Employer em-
ploys two registered nurses who are members of the
religious order which owns the hospital. For the rea-
sons stated in Saint Anthony Center 13 and Seton Hill
College,14 we shall exclude members of the Sisters of
St. Dominic from the unit.
Head nurses and charge nurses: The Petitioner con-
tends that the head nurses and charge nurses should
be included in the unit. The Employer, on the other
hand, contends that the head nurses and charge nurs-
es are supervisors within the meaning of the Act and,
hence, must be excluded. The Intervenor, HPTE, has
expressed no position on this issue.
"217 NLRB 765 (1975).
12 In view of our findings, above , it is unnecessary to decide whether the
medical and radiological technologists are professional employees under the
Act.
13 220 NLRB 1009 (1975).
14 201 NLRB 1026 (1973).
At the time of the hearing, there were approxi-
mately 89 employees in the nursing department, in-
cluding some 38 registered nurses, 13 licensed practi-
cal nurses (LPN's), 18 nurses aides, and 17
employees in unspecified job categories, including
orderlies and clerks. In overall charge of the nursing
department is Barbara Generaux, the director of
nursing, who reports directly to the hospital adminis-
trator. Immediately under Generaux's supervision is
an assistant director of nursing who assumes
Generaux's responsibilities in her absence. The direc-
tor and assistant director of nursing work only on the
day shift. Also under Generaux's overall supervision
are three house supervisors who are in charge of the
nursing department on the afternoon and night
shifts. The parties stipulated that the director of nurs-
ing, assistant director of nursing, and the house su-
pervisors are supervisors within the meaning of the
Act.
Working under Generaux's supervision on the day
shift are five head nurses, each of whom is in charge
of patient care in a particular nursing unit ( i.e., inten-
sive/coronary care, surgical care, obstetrics, etc.).
Head nurses work only on the day shift. On the eve-
ning and night shifts, when the house supervisors are
in charge of the nursing department, there are eight
charge nurses whose work is substantially similar to
that of the head nurses. The testimony as to the du-
ties and responsibilities of the head and charge nurs-
es is conflicting. It was generally agreed, however,
and it appears from the record, that the head nurses
possess a wider range of responsibilities than the
charge nurses. Thus, according to the Employer's tes-
timony, head nurses are in charge of their respective
operational units for 24 hours, 7 days a week and,
also unlike charge nurses, they attend the
department's supervisory meetings. Head nurses are
required to prepare annual budgets for their re-
spective units, they assign specific personnel to per-
form specific tasks as needed within their units, they
evaluate employee performance within their units,
they may approve overtime for themselves or for em-
ployees working in their units, and they have authori-
ty to correct timecards.
On the other hand, the Petitioner's witnesses testi-
fied that neither the head nurses nor the charge nurs-
es have authority to hire, transfer, suspend, lay off,
recall, promote, or discharge employees. Nor do they
possess authority effectively to recommend the hire,
transfer, or dishcarge of employees. Head nurses and
charge nurses have no authority or responsibility for
scheduling the employees' shifts, hours, vacations, or
time off. According to Head Nurse Dunson's testi-
mony, head nurses have no authority on their own to
approve overtime or to permit employees to leave
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
early. Although head nurses prepare evaluations of
employees, it does not appear that they do so exclu-
sively or that their evaluations as a rule constitute
effective recommendations with respect to an
employee 's wages. Indeed, evaluations may be made
or requested after a raise determination has already
been made by the director.
To the extent that head and charge nurses assign
specific tasks to specific employees within their re-
spective units, this is a relatively routine function in
that the head nurse merely matches the employee's
qualifications with the immediate needs of a patient.
The Board has frequently held that this type of au-
thority to assign work is more akin to the exercise of
professional rather than supervisory responsibility."
Similarly, the preparation of the unit 's budget under
strictly established guidelines does not, in the circum-
stances here, reflect the exercise of supervisory dis-
cretion or judgment. Although Generaux testified
that head nurses have authority to effectively recom-
mend discipline or discharge after repeated viola-
tions of the hospital 's personnel rules, it appears
from the testimony of the head nurses that they were
never told that they possessed such authority, nor
does the record indicate they ever exercised it. Lastly,
the fact that head nurses are paid at a higher hourly
wage rate than staff registered nurses does not estab-
lish their supervisory status.
In sum , and based on the record as a whole, we
conclude that head nurses and charge nurses perform
' The Trustees of Noble Hospital, 218 NLRB 1441 (1975 ); Valley Hospital.
Lid, supra.
their duties and functions predominantly in the exer-
cise of their professional judgment incidental to their
treatment of, and responsibilities for, the patients.
Their duties and authority are all directed toward
assuring quality care of patients within their re-
spective nursing units and do not, without more, con-
stitute supervisory authority in the Employer's inter-
est. Further, we find that the head and charge nurses
possess neither the authority to hire, fire, or disci-
pline employees beyond the state of a verbal repri-
mand, nor the authority to make effective recom-
mendations affecting the employment status of
employees. Accordingly, we find that the head nurses
and the charge nurses are not supervisors as defined
in the Act and we shall include them in the unit. We
shall therefore direct an election in the following unit
which we find appropriate:16
All registered nurses employed by the Employer
at its Henderson, Nevada, hospital including
head nurses and charge nurses, but excluding
members of the Sisters of St. Dominic, the direc-
tor and assistant director of nursing, the house
supervisors, all other employees, guards, watch-
men, and supervisors as defined in the Act.
[Direction of Elections and Excelsior footnote
omitted from publication.]
16 As stated in the text above , the record fails to disclose any threat of
potential supervisory interference with the collective -bargaining agent in the
event that NNA wins the election and is certified . If, however , it later ap-
pears that Generaux 's role as director of Constituency III interferes with
NNA's ability to represent the Employer's registered nurses fairly and fully,
an appropriate motion could be filed with the Board to revoke said certifica-
tion.
U.S. GOVERNMENT PRINTING OFFICE : 1977-210-754/2