Texas Institute for Rehabilitation and Research

National Labor Relations Board - Board Decisions

Mar 4, 1977

228 N.L.R.B. 578 (N.L.R.B. 1977)

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas Institute for Rehabilitation and Research' and
Texas Nurses Association , Petitioner . Case 23-
RC-4279
March 4, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held on various dates before Hearing
Officer Bernard D. Getto. Following the hearing, by
letter dated October 29, 1975, the Acting Regional
Director for Region 23 informed Petitioner of his
decision to dismiss the petition because the showing
of interest gathered in support of the petition was
tainted by the involvement of head nurses who, in
the judgment of the Acting Regional Director, were
supervisors within the meaning of Section 2(11) of
the Act. Thereafter, Petitioner filed a request with the
Board for review of the Acting Regional Director's
dismissal of the petition and, on February 4, 1976, in
a Ruling on Administrative Action, the Board
granted the request for review, reinstated the peti-
tion, and directed the transfer of this case to the
Board for decision. Thereafter, the Employer filed a
brief and the Petitioner filed a brief supplementing
that filed in support of its 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 reviewed the Hearing Officer's
rulings made at the hearing and fmds that they are
free from prejudicial error. They are hereby affirmed.
On the entire record of the case, including the
briefs, the Board makes the following findings:
1. The Texas Institute for Rehabilitation and
Research (TIRR) is a health care facility engaged in
the rehabilitation of severely handicapped persons of
all ages . It is incorporated as a not-for-profit
institution in, and licensed by, the State of Texas.
During the last calendar year, TIRR received in
excess of $250,000 in patient fees. During the same
period of time, it purchased and received directly
from outside the State of Texas, at its Houston,
Texas, location, goods and supplies valued in excess
of $50,000. We find that TIRR is engaged in
commerce within the meaning of the Act and that the
purposes of the Act will be effectuated by the
assertion of jurisdiction herein.
2. The Employer refused to stipulate that Peti-
tioner is a labor organization within the meaning of
the Act, on the ground that Petitioner's board of
directors is dominated by supervisors. The record
does not, however, establish which particular indivi-
duals on Petitioner's board of directors are supervi-
sors as that term is used in Section 2(11) of the Act.
Moreover, even if certain individuals on Petitioner's
board of directors are assumed to be supervisors,
there is no evidence that any such supervisors work
for the Employer. Oak Ridge Hospital of the United
Methodist Church, 220 NLRB 49 (1975). Rather, the
record shows that Petitioner exists in part for the
purpose of dealing with employees concerning wages,
hours, terms, and conditions of employment. Peti-
tioner is, we find, a labor organization within the
meaning of Section 2(5) of the Act.
3. A question of representation affecting com-
merce exists concerning certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and 7 of the Act.
4. Petitioner seeks to represent a unit of all
registered nurses, including head nurses, employed
by TIRR at its main facility and annex, both in
Houston, Texas. The Employer contends, initially,
that the unit sought is inappropriate because (a)
TIRR and Baylor College of Medicine are together a
single employer and the requested unit fails to
include other registered nurses employed throughout
the Baylor College of Medicine, and (b) the unit fails
to include all other professional employees employed
at TIRR. The Employer, in the latter respect, does
not seek reconsideration of the Board's determina-
tion in Mercy Hospitals of Sacramento, Inc., 217
NLRB 765 (1975), that registered nurses generally
constitute an appropriate unit unto themselves.
Rather, the Employer contends that sufficient differ-
ences exist between rehabilitation and acute care
facilities to justify a different treatment of nurses'
unit requests when the facility involved, unlike the
facilities in Mercy and its progeny, is a rehabilitation
center.
We reject both contentions. Although the record
does demonstrate an affiliation between TIRR and
Baylor, the record does not warrant the conclusion
that TIRR is, standing alone, other than a single
independent employer. It is governed by a board of
trustees of which only 1 member in 16 is, simulta-
neously, a member of the board of trustees of Baylor.
TIRR, a separate nonprofit corporation, is separately
housed, in two facilities, both owned by TIRR. The
board of trustees of TIRR appoints an executive
director who is, "for those duties that entail the
functions of [TIRR] and care in research and
The Employer' s name appears as amended at the heanng in this case.
228 NLRB No. 56
TEXAS INSTITUTE FOR REHABILITATION
teaching" responsible to the board of trustees of
TIRR. Administrative operation of TIRR resides in
an associate director of administration, paid by
TIRR, who has no formal connection with Baylor.
TIRR and Baylor have separate personnel depart-
ments. Although some 100 employees of Baylor do
work at TIRR, they are, apparently, hired by Baylor
and Baylor is reimbursed by TIRR for the services
they perform. TIRR hires its own employees, has a
separate budget and, from an operational standpoint,
its own supply, maintenance, laundry, receiving,
purchasing, and food services departments. There
does not appear to be any involvement by Baylor in
the labor relations policies of TIRR. Separate
retirement and other benefits plans exist, and TIRR
adopted and distributed a policy statement opposing
unionization of its employees without any apparent
involvement of Baylor. In terms of the unit sought
here, the record adequately demonstrates only one
registered nurse being employed by Baylor-Dr.
Fuszard, the director of nursing at TIRR. She is,
however, responsible to TIRR's board of trustees and
not Baylor's. We, therefore, conclude that TIRR is
the employer of the employees involved herein and
that the petition is, therefore, not deficient in its
failure to encompass other registered nurses em-
ployed by Baylor.
Nor is it deficient because of its exclusion of other
professional employees employed by TIRR. While
we do not assert that the differences between
institutions devoted to long-term rehabilitation and
other types of health care facilities are negligible, our
decision in Mercy Hospitals of Sacramento, supra, to
find appropriate units composed exclusively of
registered nurses was based on a number of consider-
ations we find equally applicable to the kind of
institution involved here. Registered nurses at TIRR,
like those found in Mercy Hospitals and cases relying
upon it, must, pursuant to state requirements, pass a
licensing examination and maintain their licenses;
significant aspects of their duties may not be
delegated to other nursing personnel; they are
required to be on duty 24 hours a day and are, in the
main, responsible to a department whose separate
status is a requirement of accreditation, the depart-
ment of nursing. The decision in Mercy Hospitals also
relied on the exclusionary representation pattern of
registered nurses across the country, both prior to
and at the time of the debate surrounding the
question of appropriateness of registered nurse units,
patterns which the Board had, even prior to the
health care amendments, acknowledged.2 No evi-
dence was presented on the record which tends to
undermine these considerations.
2 See , e.g, Doctors' Hospital of Modesto, Inc., a wholly owned subsidiary of
National Medical Enterprises, Inc., 193 NLRB 833 (1971).
579
Accordingly we find that a unit limited to regis-
tered nurses employed by TIRR is appropriate for
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
The Employer would exclude from this unit "head
nurses," on the ground that they are supervisors
within the meaning of Section 2(11) of the Act. The
Acting Regional Director, after conducting a hearing
on the petition, administratively dismissed the
petition on the ground that such head nurses were
statutory supervisors, and their participation in
Petitioner's organizational campaign consequently
tainted the petition filed herein.
Upon careful examination of the entire record in
this proceeding, we conclude the Acting Regional
Director erred.
We are concerned here with approximately five
head nurse positions, two of which were not filled at
the time of hearing, and one "Assistant Director-
Clinical," Roberta Eisman.3 Structurally, the depart-
ment of nursing is headed by Director Fuszard.
Three individuals are formally listed as reporting to
her-Eisman, a director of in-service, and an
assistant director of administration, the latter posi-
tion filled, at the time of hearing, by a day shift
supervisor. There are two additional shift supervisors
to cover evening and night shifts. The head nurses
work at one of five stations of TIRR, each station,
apparently, set up according to the type of impair-
ment with which patients are afflicted. (Station 5 is
also the TIRR annex.) There are approximately 36
staff nurses completing the registered nurse comple-
ment. TIRR also employs some 150 nurses aides and
15 licensed vocational nurses.
The description of the head nurses' duties and
responsibilities given by the Employer's witnesses,
most notably Director of Nursing Fuszard, contrasts
sharply with that provided by the two head nurses
and two staff nurses testifying on behalf of Petition-
er.
According to Dr. Fuszard, head nurses, who
receive approximately 10 percent more pay than staff
nurses, spend only about 10-20 percent of their time
in patient care activities, decide whether employees
should be retained upon completion of 3- and 6-
month probationary periods, prepare staffing sche-
dules, have authority to transfer employees, alter
work schedules, grant time off, authorize leaves of
absence, and, on the basis of annual evaluations,
determine whether employees receive pay increases.
In addition, according to Dr. Fuszard, head nurses
advise her of their projected equipment and staffing
needs toward the end of each year; and, without
independent investigation or subsequent alteration,
3 But see fn . 7, infra.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those recommendations are forwarded, as the nurs-
ing service budget, to TIRR's board of trustees.
The testimony of Dr. Fuszard, relative to the duties
and responsibilities of head nurses, is, for the most
part, supportive of that of Head Nurse Stephaney
(station 2) who, the Petitioner stipulates, is a
statutory supervisor.4
With regard to the status of the assistant director-
clinical, Eisman, Director Fuszard testified that she
has authority to discipline employees, place them on
probation, terminate or effectively recommend termi-
nation, assign and direct the work of the nine
specialists and clinicians she "supervises," grant time
off, approve leaves of absence, and interview and
hire new employees. It is uncontroverted that Eisman
has, on occasion, filled in for the director of nursing
during the latter's absence from TIRR, attends
supervisory and administrative meetings , and re-
ceives approximately $4,000 more in salary than the
staff nurses at TIRR.
Head Nurse Keniston testified, on behalf of
Petitioner, that approximately 75 percent of his time
is devoted to direct patient care and that there was
very little change in his duties upon assumption of
his head nurse role in December 1974. He does not
make job assignments since staff RN's work indepen-
dently and are aware of their responsibilities, has
never adjusted a grievance or been told that he has
such authority, nor has he ever called an off-duty
employee to report to work. Although he initials the
timesheets of employees on his station, this action is,
according to him, routine and the timesheets are
filled out by the employees themselves. He has never
transferred an employee, never hired or participated
in an interview of one. He testified that the 3-month
evaluation he fills out on probationary employees
represents a restatement of his responses to oral
requests by the director of nursing on how a
particular employee is "working out." On three
separate occasions he requested the director to
discharge a nonprofessional employee. The director,
he thinks, finally did. When he was a staff nurse, he
told another employee to leave work, on the
assumption that staff nurses, as such, have such
authority. When asked for his recommendations
concerning two employees on his station who had
been fighting, he recommended that one be retained.
Both were terminated. He has "counseled" other
employees who are not staff nurses. He has filled out
a termination evaluation but so have charge nurses
4 Stephaney was not involved in the organizational campaign and,
consequently , her status is not relevant to the "taint" issue presented herein.
who sometimes are licensed vocational nurses. Upon
being asked by an employee for a change in hours, he
called the nursing office for approval, but employees
can and have gone "over his head" and made such
requests directly to the nursing office.
Without encapsulating the lengthy record in this
proceeding, the testimony of Head Nurse Baxter and
Staff Nurse Clayton, located, respectively, on sta-
tions 5 and 1,5 is consistent with that of Keniston
with respect to, most notably, the amount of a head
nurse's time spent in direct patient care, as opposed
to any other duties in the interest of the Employer;
the similarity between head nurses and staff nurses in
terms of their functions; and the degree to which
whatever authority is vested in head nurses is
exercised with respect to other registered nurses in
the unit sought here.
The bulk of the head nurses' duties are, as the
preponderance of the evidence adduced here reveals,
related directly to patient care activities. Minimal
"supervision" of other registered nurses, as opposed
to licensed practical nurses and nurses aides, is
demonstrated in the record, and whatever responsi-
bilities head nurses may have with respect to the
latter employees do not appear to arise from factors
other than head nurses' professional qualifications.
Vis-a-vis staff nurses, the head nurses appear only to
be senior employees whose experience is relied upon
by the Employer to more effectively fulfill its patient
care functions, as the absence of orientation of or
instruction to the head nurses about additional
"supervisory" duties would tend to establish. See The
Trustees of Noble Hospital, 218 NLRB 1441 (1975).
That head nurses may "counsel" or place on an
undefined "probation," or evaluate other employees,
particularly when those employees are nonunit
employees, see Adelphi University, 195 NLRB 639,
644 (1972), is clearly not dispositive of their statutory
status. Cf. Valley Hospital, Ltd., 220 NLRB 1339
(1975); Doctors Hospital, 217 NLRB 611 (1975).
Because the preponderance of evidence reveals that
head nurses spend most of their time in functions
indistinct from staff nurses, exercise little, if any,
directional role with respect to other unit employees,
and perform supervisory related functions, with
respect to nonunit personnel, which either evolve
only from their status as senior professional employ-
ees or involve little utilization of independent
S At the time of this hearing, station I had no head nurse.
TEXAS INSTITUTE FOR REHABILITATION 581
judgment, we conclude the heaa nurses are, with the
exception of Head Nurse Stephaney,s statutory
employees.?
With regard to the status of Assistant Director-
Clinical Eisman, her testimony reveals a similar
contrast in the description of her duties and
responsibilities from that provided by Director
Fuszard. Eisman testified that she was not given any
orientation or job description concerning any addi-
tional duties she would have to assume upon
becoming the assistant director-clinical and her
duties did not, in fact, substantially change after
appointment. She does not, she testified, adjust
grievances, transfer personnel, authorize overtime, or
set the hours or direct the work of other clinical
specialists, whom she stated are not responsible to
anyone but Director Fuszard. It is, however, clear
that Eisman receives a substantially greater salary
than other registered nurses in her department,
whom she has, on occasion, evaluated, is coequal, at
least in title, with the two other assistant directors,
and has, on more than one occasion, been placed by
6 See fn 4, supra That Stephaney is stipulated to be a supervisor does not
determine, per se, the status of the other head nurses First, her testimony is
not supported by that of the other head nurses Second, although it may
appear unusual for an employer to specifically authorize a particular
individual to perform "supervisory" functions and for that individual to
thereupon so conduct himself or herself, at the same time that the employer
fails to so authorize other individuals similarly titled and for those
individuals not to exercise sufficient authority in the employer' s interest to
Director Fuszard in complete charge of the nursing
department. On these bases, particularly her substitu-
tion for Fuszard, we conclude that Eisman is a
supervisor.
In view of the foregoing we remand this proceeding
to the Regional Director for reexamination of the
previous finding that the petition herein was tainted
by the involvement of head nurses in its filing. In the
event the Regional Director concludes an election
upon the instant petition may be held, he is
authorized to conduct such election in the unit found
appropriate herein at the earliest time deemed
appropriate by him.
ORDER
It is hereby ordered that the above-entitled matter
be remanded to the Regional Director for Region 23
for further appropriate action.
mark them statutory supervisors, our careful review of this record convinces
us that such is the case herein
r The record reveals that TIRR employs two additional head nurses in its
operating room and clinic The record is substantially devoid of any
evidence relative to their responsibilities In the event the Regional Director,
upon the reexamination of the taint question ordered herein, concludes an
election should be directed, these two head nurses shall be voted subject to
challenge