Albany Medical Center Hospital

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 485 (N.L.R.B. 1984)

ALBANY MEDICAL CENTER 485
Albany Medical Center Hospital and New York
State Nurses Association, Petitioner. Case 3-
RC-8289 -
, 14 December 1984
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenges in an election held 23 September 1982 1 and
the Acting Regional Director's report recommend-
ing disposition of them. The election was conduct-
ed pursuant to the Decision and-Direction of Elec-
tion issued by the Regional Director on 17 August.
The tally of ballots shows 259 for and 303 against
the Petitioner, with 100 challenged ballots.2
Following a hearing conducted on 19 through 21
July, the Regional Director for Region 3 -issued his
Decision and Direction of Election referred to
above and determined that, contrary to the Em-
ployer's assertion, its 94 assistant head nurses and
operating room charge nurses (all referred to as
AHN5) 3 are not supervisors within the meaning of
Section 2(11) of the Act and that they should be
included in the following described unit:
All full-time and regular part-time registered
professional nurses, and all persons authorized
by permit to practice as registered professional
nurses, employed by the Employer in the nurs-
ing department to perform registered profes-
sional nursing, including assistant head nurses
and operating room charge nurses; excluding
all other employees, guards and supervisors as
defined in the Act.4
The Employer subsequently filed a request for
review which was denied by the Board. However,
as there remained unresolved the question of
whether AHNs assume supervisory authority when
they substitute for head nurses, the Board directed
that the AHNs vote subject to challenge.
In the ensuing investigation of those challenged
ballots, both the Employer and the Union acknowl-
edged that, although AHNs substitute to varying
extents for head nurses, they do not assume addi-
1 All dates are in 1982
Six ballots were challenged on the basis that the names of the voters
casting them did not appear on the eligibility list Our disposition of the
other 94 challenged ballots renders those 6 ballots nondeterminative
3 The parties stipulated that assistant head nurses and operating room
charge nurses perform essentially the same duties and should be accorded
the Same status
4 In view of our resolution of the challenges and the disposition of this
proceeding as set forth below, we find It unnecessary to pass on the ap-
propriateness of the designated unit -
tional duties on these occasions. Since it had previ-
ously been determined that the AHNs' regular
duties do not support a finding that they are super-
visors, the Acting Regional Director, on 20 Octo-
ber, issued his Report on Challenges in which he
found that mere substitution for head nurses was
insufficient to confer supervisory status on AHNs
and recommended that the challenges to their bal-
lots be overruled.
The Employer has filed timely exceptions to the
Acting Regional Director's report in which it reas-
serts its contention that AHNs' performance of
their regular duties—irrespective of their substitut-
ing for head nurses—compels a finding that they
are supervisors. Having reviewed the record in
light of the exceptions and briefs, we agree.
The Employer is a 720-bed hospital that employs
3300 employees, approximately 725 of 'whom are
registered nurses. The Employer's nursing depart-
ment is comprised of four nursing divisions and is
further broken down into nursing units. The nurs-
ing department is headed by an assistant vice presi-
dent of nursing and each of its divisions is headed
by an assistant director of nursing. Nine supervisors
of nursing and 12 assistant supervisors run the sev-
eral units. Supervisors of nursing generally work
the day shift while assistant supervisors work the
evening and night shifts. Next in the department's
supervisory hierarchy are 43 head nurses who usu-
ally work the day shift. The 94 AHNs, whose
status is at issue in this proceeding, work all three
shifts. Those AHNs assigned to the day shift report
to the head nurses on duty and the AHNs assigned
to the evening and night shifts report to the assist-
ant supervisors on duty.
AI-INs spend an average of 50 percent of their
time taking care of patients' needs and the rest of
their time performing administrative tasks. AHNs
are primarily responsible for ensuring that staffing
requirements for subsequent shifts are met. Al-
though basic schedules are prepared by computer
in accordance with a staffing formula, AHNs
adjust the base schedules to reflect nurses' vacation
and personal days. The AHNs do have authority to
grant days off so long as staffing levels are met.
AHNs also have authority to request that nurses
work overtime although only head nurses and nurs-
ing supervisors can compel nurses to do so. Addi-
tionally, AHNs initial the timecards of nurses who
work overtime and those whom they allow to start
shifts early or leave early. No one below the level
of AHN has authority to adjust schedules, initial
timecards, or otherwise affect nurses' hours of
work. Additionally, AHNs have authority to issue
written warnings to nurses. These warnings are re-
273 NLRB No. 75
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viewed by and may be changed by a head nurse or
supervisor.
Although AHNs have no authority regarding
several of the statutory indicia of supervisory
status, they regularly prepare written evaluations of
nurses which are given substantial weight in deter-
mining merit wage increases and promotions.
AHNs evaluate nurses 3 months after hire, 6
months after hire, and annually thereafter. On this
basis, we find that AHNs have authority effectively
to promote and reward employees working under
them. In support of this conclusion, we note par-
ticularly that the Employer's assistant director for
nursing services stated that she would not promote
an employee unless the assistant head nurse as-
signed to that unit had recommended such action.
Inasmuch as the statutory indicia set forth in
Section 2(11) of the Act are stated in the disjunc-
tive and only one need exist to confer supervisory
status, we find that the vesting of authority 'in
AHNs to evaluate employees and thereby to
reward and promote them compels a finding that
AHNs are supervisors 5 and that the challenges to
their ballots must, be sustained. We also find signifi-
cant the fact there is an extraordinarily low super-
visor-to-employee ratio if AHNs are not supervi-
sors. The record establishes that, if AHNs are
found statutory employees, the supervisor-to-em-
ployee ratio on the evening and night shifts would
average approximately 1-to-37 and be as low as
140-to-1 in some units. Such an inordinately low
ratio further supports the conclusion that they are
supervisors.
On the basis of all of the foregoing, .we sustain
the challenges to the 94 ballots cast by AHNs, and
shall certify the results of the election.
CERTIFICATION OF RESULTS OF'
ELECTION
IT IS CERTIFIED , that a majority of the valid bal-
lots have not been cast for New York State- Nurses
Association and that it is not the exclusive repre-
sentative of these bargaining unit employees.
MEMBER ZIMMERMAN, dissenting.
Contrary to my colleagues, I would, not find the
assistant head nurses (hereafter referred to as
AHNs) to be supervisors within the meaning of
Section 2(11) of the Act.
I do not agree with the majority's conclusion
that because AHNs prepare written evaluations of
5. See Moon Valley Health Services, 238 NLRB 916, 925 (1978) In view
of our reliance on the AHNs' authonty to evaluate employees, we need
not consider whether their supervisory status is further shown by addi-
tional responsibilities, such as their involvement in the issuance of wntten
warnings and then- authority to adjust schedules and grant days off to
employees
nurses they effectively recommend them for re-
wards (raises) and promotions. The record reveals
that AHNs fill out written evaluation forms that
are restricted to evaluating an employee's care of
patients. Although these forms become part of an
employee's personnel file, the record fails to indi-
cate how the AHN's role in completing the forms
constitutes an effective recommendation for a Pro-
motion or raise. Nowhere on these forms is there a
section, provision, or space for recommendations
about raises and promotions. That AHNs evaluate
the performance of nurses does not, without more,
establish that they have the authority to effectively
make recommendations concerning raises and pro-
motions.' All the record shows is that, as found by
the Regional Director in his Decision and Direc-
tion of Election, decisions about such matters are
made by several levels of authority in the nursing
department beyond the AHN. Nor does Assistant
Director Spath's testimony that she would not pro-
mote an employee if the AHN objected establish
that the AHNs effectively recommend employees
for promotion. That testimony. is speculative and
not probative of any pattern of action in the hospi-
tal. Indeed, it implies either that AHNs make no
recommendations concerning these matters, or that
the AHNs' comments in the evaluation about the
employee's performance play little or no part in the
decision. In either case, the implication militates
against a finding that AHNs effectively recom-
mended action to be taken concerning the employ-
ees' terms and conditions of employment.
My colleagues' reliance on the low supervisor-
to-employee ratio that will exist if AHNs are not
found to be supervisors is also misplaced. They fail
to take into account the AHNs duties of assigning
employees to patients and directing those employ-
ees in their professional capacity. The AHNs' prin-
cipal administrative function is assignment of per-
sonnel, including granting time off and approving
overtime. The question is whether AHNs, in per-
forming this function, exercise independent judg-
ment. The record establishes that the Employer
uses a basic formula for assignment which the
AHNs follow. For example, in authorizing over-
time, AHNs act within the standards set by the
Employer; further, they cannot compel employees
to work overtime. Similarly, in granting time off to
employees, AHNs may do so only if the employee
is entitled to leave and staffing needs can be other-
wise met. As for making assignments of nurses to
patients, AHNs are guided by the patients' needs
rather than the Employer's employment interests.
In these circumstances the AHNs' scheduling and
1 St Mary's Hospital, 220 NLRB 496 (1975)
ALBANY MEDICAL CENTER

487
assigning employees does not require the exercise
of independent judgment. Under these circum-
stances, it is not extraordinary that a head nurse
could be the only immediate supervisor of from 30
to 140 employees.
2 Wing Memorial Hospital Assn, 217 NLRB 1015 (1975)
Accordingly, I would find that the AHNs are
not supervisors and that any independent judgment
exercised on their part was incidental to the profes-
sional treatment of patients.2