NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Barstow Community Hospital–Operated by Community
Health Systems, Inc. and United
Nurses Association of California, Union of Health Care Professionals, NUHHCE,
AFSCME, AFL–CIO. Case 31–CA–26057
August 18, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On February 23, 2007, Administrative Law Judge Lana H. Parke issued her supplemental decision following the Board’s remand of this case.[1] The Respondent filed exceptions and a supporting brief, and the General Counsel and Charging Party each filed an answering brief.
The National Labor Relations Board[2] has considered the decision, the supplemental decision, and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,[3] findings, and conclusions as modified and to adopt the recommended Order as modified and set forth in full below.[4]
On remand, the judge found that registered nurse Lois Sanders was not acting as a statutory supervisor when she temporarily filled in as relief clinical coordinator because she did not have the authority under Section 2(11) of the Act to assign or responsibly direct employees using independent judgment. For the following reasons, we agree.
The “burden of proving supervisory status rests on the
party asserting that such status exists.” Oakwood Healthcare, supra at 694 (quoting Dean & Deluca New York, Inc., 338
NLRB 1046, 1047 (2003)). The party seeking to prove supervisory status must
establish it by a preponderance of the evidence.
To establish possession of the authority responsibly to direct, the party bearing the burden of proof—here, the Respondent—must present evidence of “actual accountability.” Golden Crest Healthcare, supra at 731. The Respondent failed to present any evidence that registered nurses were held accountable for their direction of others when acting as relief clinical coordinators. There is no evidence that relief clinical coordinators faced a prospect of material adverse consequences based on the performance of those they allegedly supervised. That one of the factors included on the registered nurses’ evaluation form is how they perform “the role of clinical coordinator as needed” is not sufficient. See id. (finding insufficient, to show accountability, evidence that charge nurses were rated on the factor “directs [employees] to ensure quality of care,” absent evidence that the rating might have an effect on their terms and conditions of employment). Accordingly, the Respondent has not shown that the relief clinical coordinators possess the authority to responsibly direct employees.[5]
The judge found that, although Sanders may have possessed authority
to assign, she did not exercise independent judgment in doing so because any
judgment exercised by her was dictated or controlled by the Respondent’s
detailed instructions and policies. See Oakwood Healthcare, supra at 693. However, the Board in Oakwood Healthcare also held that the mere existence of guidelines
and policies is not necessarily incompatible with the existence of independent
judgment. If there is room for
discretionary choices by the putative supervisor, and if the degree of discretion
exercised rises to the requisite level, a finding of independent judgment is warranted.
The record contains conflicting testimony on the issue of whether relief clinical coordinators exercise independent judgment in assigning nursing staff. Sanders testified that, in determining the number of nurses needed and where they should be assigned, she followed the nurse-to-patient ratios in the staffing grid, which in turn were based on the Respondent’s guidelines and State regulations. Sanders also testified that, in making staffing decisions, she did not consider a patient’s acuity or the particular skills or qualifications of the nurses, many of whom she said she did not know beyond their general qualifications as registered nurses.
Testimony from registered nurse Tina Lyle, who also filled in as relief clinical coordinator, as well as from the Respondent’s medical/surgical manager, Donna Rollins, conflicted with Sanders’ testimony in this regard. Lyle testified that in deciding whether to “float” (temporarily transfer) someone or to call someone in, she would take into account the patient’s acuity and the level of experience of the available nurses. Rollins testified that, in deciding whom to call in or float, the relief clinical coordinator has to consider the patients’ needs and the experience level of staff members who could be reassigned from one area to another or called in to work to meet those needs.
We need not resolve this testimonial conflict. Even crediting Lyle’s and Rollins’ testimony, we find the evidence insufficient to sustain the Respondent’s burden of proving that relief clinical coordinators exercised independent judgment in assigning nursing staff. The respondent’s evidence on this issue lacked sufficient specificity. It was devoid of any examples or details of circumstances showing that a relief clinical coordinator, in assigning nursing staff, actually “weighs the individualized condition and needs of a patient against the skills or special training of available nursing personnel.” Oakwood Healthcare, supra at 693. Although Section 2(11) requires only possession of authority to carry out an enumerated supervisory function, not its actual exercise, the evidence still must suffice to show that such authority actually exists and that its exercise requires the use of independent judgment. Avante at Wilson, 348 NLRB 1056, 1057 (2006); see also Chevron Shipping Co., 317 NLRB 379, 381 fn. 6 (1995) (conclusory statements without supporting evidence do not establish supervisory authority); Sears, Roebuck & Co., 304 NLRB 193, 193 (1991) (same).
In sum, we find that the Respondent has not met its burden of showing that Sanders, when acting as a relief clinical coordinator, exercised independent judgment in assigning nurses to patients and, consequently, has not established that she was a statutory supervisor.[6] We agree with the judge, therefore, that the Respondent unlawfully suspended and discharged Sanders for engaging in union activity while acting as a relief clinical coordinator.
Amended Conclusions of Law
1. The Respondent violated Section 8(a)(1) of the Act by interrogating Sanders about her union or other protected concerted activities.
2. The Respondent violated Section 8(a)(3) and (1) of the Act by suspending Sanders on August 31, 2002.
3. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging Sanders on September 26, 2002.
ORDER
The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Barstow Community Hospital–Operated by Community Health Systems, Inc., Barstow, California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union or other protected concerted activities.
(b) Suspending any employee for engaging in union or other protected concerted activities.
(c) Discharging any employee for engaging in union or other protected concerted activities.
(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Lois Sanders full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
(b) Make Lois Sanders whole for any loss of earnings and other benefits suffered as a result of the discrimination against her in the manner set forth in the remedy section of the judge’s initial decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful suspension and discharge, and within 3 days thereafter notify Lois Sanders in writing that this has been done and that the suspension and discharge will not be used against her in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of back pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in
(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
______________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not interrogate employees about their union or other protected concerted activities.
We will not suspend employees because they engage in union or other protected concerted activities.
We will not discharge employees because they engage in union or other protected concerted activities.
We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights set forth above, which are guaranteed them by Section 7 of the National Labor Relations Act.
We will, within 14 days from the date of the Board’s Order, offer Lois Sanders full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
We will make Lois Sanders whole for any loss of earnings and other benefits resulting from her suspension and discharge, less any net interim earnings, plus interest.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to Lois Sanders’ unlawful suspension and discharge and we will, within 3 days thereafter, notify her in writing that this has been done and that the suspension and discharge will not be used against her in any way.
Barstow Community Hospital–operated by Community
Health Systems, Inc.
Nikki N. Cheaney, Esq., for the General Counsel.
Don T. Carmody, Esq., of
Minh Nguyen, Esq. (Gilbert & Sackman), of
DECISION
Statement of the Case
Lana H. Parke,
Administrative Law Judge. This case was
tried in
Respondent
essentially denied the complaint allegations and asserted, as affirmative
defenses, that Sanders was, at relevant times, a supervisor within the meaning
of Section 2(11) of the Act and that it would have terminated Sanders irrespective
of her union and/or protected activities.3
On the entire
record and after considering the briefs filed by the Charging Party and
Respondent4 and the oral argument of
the General Counsel, I make the following
Findings of Fact
i. jurisdiction
Respondent, a
corporation, with a facility in
ii. alleged unfair labor practices
A. The Suspension, Interrogation, and Termination
of Sanders
Respondent
hired Sanders in May 2001. The position
title noted on her position description/evaluation of May 6 is “registered nurse
. . . emergency room.” Her duties
included triaging patients, carrying out doctor orders, and transferring or discharging
patients as directed. Her usual shift
was from 7 p.m. to 7 a.m., the night shift, although she worked for a time on
the day shift. The emergency room (ER) manager and a clinical coordinator (CC)
provided ER oversight. When the CC was
unavailable, other nurses filled in as assigned. Beginning a month or 2 after employment,
Sanders filled in as CC once or twice a week on the night shift.
In early
spring, Sanders told some of her coworkers she would contact a union for them
so they could do something about their various employment complaints. Thereafter, she contacted various unions to
set up a union information meeting for employees. On August 9, Sanders talked to Mary Capolupo
(Capolupo), a registered nurse employed by Respondent, about the
On the night of 8-9-02 Lois Sanders was clinical coordinator. She came by wing 300 and said oh I didn’t
know you were working tonight. I said
actually I am working
She said well what do you think about it? I said you can do what ever you want it’s a free country. Lois then said, since you know all the nurses on the floor I thought maybe you could talk to them about the union. . . . She then said maybe I shouldn’t be asking you to do this because you might get written up and get in trouble.
On August 31,
Bodine telephoned Sanders at home and informed her that Respondent was
suspending her pending investigation but declined to explain why. At the hearing, Bodine testified that
Respondent suspended Sanders while investigating whether Sanders had engaged in
union activities while serving as a CC.
By letter
dated September 6, Bodine informed Sanders, in pertinent part, as follows:
This is to inform you that we desire to schedule an investigatory interview with you for the purpose of inquiring into your conduct while recently assigned as a Clinical Coordinator.
We desire to schedule the interview for September 17, 2002 at 2:00 PM.
On September
17, Sanders attended the scheduled investigatory meeting held in Bodine’s
office. Bodine and Michael Trumble
(Trumble), Respondent’s director of human resources, were present. Bodine refused to tell Sanders the purpose of
the meeting, saying the questions she was about to ask would provide the
answer. Bodine queried Sanders from a
list of prepared questions. The
questions and a summary of Sanders’ answers6
are as
follows:
1. Where [sic] you the Clinical Coordinator on the night of 8/9/02? Ms. Sanders said she was.
2. What are the responsibilities of the Clinical Coordinator? Ms. Sanders answered that she had no sense of authority, could not reprimand or discipline, did staffing for the following shift, and dealt with the pharmacy needs, and that she often did the job under protest.
3. During the shift of 8/9/02, did you have any conversations with any employee about Unions or organizing Unions? Ms. Sanders said she did not recall.
4. Did you say anything to anyone about getting written up or getting in trouble in reference to union activities? Ms. Sanders again said she did not recall.
5. Have you ever engaged in Union Activity while assigned as Clinical Coordinator? Ms. Sanders denied doing so.
By letter
dated September 26, Bodine notified Sanders, in pertinent part, “[B]ased upon
our recent investigation into your conduct while assigned as a Clinical
Coordinator, your employment with
At the
hearing, Bodine testified that Respondent terminated Sanders because she was
conducting union activity on August 9 while acting in a management position as
a “supervisor or clinical coordinator.”
Bodine said that Sanders’ engaging in union activity while acting in the
role of management was “against [Respondent’s] policy which [was] to remain
union-free.” Respondent reiterated the
basis for Sanders’ termination in its brief:
Sanders, while
vested with the responsibilities of Clinical Coordinator, sought to enlist
Capolupo’s assistance in organizing the Hospital’s nurses. For this reason, and this reason alone, the
Hospital rightfully decided to terminate Sanders’ employment.7
B. Sanders’ Supervisory Status
As with all ER
nurses, Respondent hired Sanders with the expectation that she would fill in as
relief CC. Donna Rollins (Rollins),
medical surgical manager, testified that Bodine tells all nurse-applicants for
the ER that part of their roles will be to act as a clinical coordinator on the
night shift in the absence of the CC or the manager, that it is mainly staffing
they will be involved in, but they may have to deal with other issues that come
up, at which time they may call a manager.
As noted above, the position description/evaluation for Sanders signed
by Schneider on May 6, states Sanders’ position as “registered nurse . . . emergency
room.” There is no mention of any relief
CC position, and Sanders was not regularly scheduled as relief or acting
CC. Bonnie Lou Schneider (Schneider), manager
of medical surgical department, generally informed her once or twice a week
that she was to fill in as CC. Respondent
did not require employees to accept the acting CC assignment, and on occasion,
Sanders declined to fill in as CC or asked management to find someone
else. Respondent paid acting CCs a 10-percent
shift differential when they served in that capacity. I find that although
Sanders served as an ad hoc acting
CC as did other ER nurses, she did not have any regular, established assignment
as a relief CC.
When nurses
were directed to act as CC, a manager gave the assigned individual a staffing
book containing staff guidelines, staffing grids,8 master schedules, daily assignment
sheets, a list of patients’ names and rooms, an emergency call list, instructions
on how to “stock” the emergency rosters, other pertinent information for CCs,
and contact phone or pager numbers of all supervisors. Rollins referred to the staffing book as “the
brains.” The manager told the nurse what
to expect on the shift (e.g. staffing, patient issues, pending admissions, available
beds). As noted by Rollins, Respondent
“encouraged . . . absolutely” acting CCs to follow Respondent’s written
policies. The daily assignment sheets,
prepared by the regular CCs, listed names of employees to be called in to work
or “cut” (excused from scheduled work) along with Schneider’s suggestions as to
which employees were to be called in or excused. As Rollins testified, the notes were
sometimes very specific: “These are the people that if you need to call people
up these are the order to do it . . . it is their turn.” On the one occasion Rollins could recall
giving the book to Sanders, she told Sanders the staffing was already done and
reviewed it with her. In assigning the
acting CCs, the managers “usually tried to make sure that things were sorted
out beforehand.” Respondent’s training
for acting CCs consisted of showing them how to use the staffing book, how to
read the staffing grid, where to obtain medications, and where the pharmacy
keys were kept. When Sanders acted as
CC, in addition to her normal nursing work, she performed the following duties,
which accounted, at the most, for less than 17 percent of her time.9
1. Assessed the need for staff by applying the
established staffing grids and “called in” or “called off” staff as required by
patient flow, utilizing the employee lists in the staffing book.
2. Obtained necessary medications by going to
the facility’s locked pharmacy with security personnel, obtaining and signing
for specified medications, and relocking the pharmacy.
3. When physicians determined that patients were
to be admitted to the hospital from the emergency room, called the appropriate
floor nurses and obtained a patient room number for admittance.
During the
periods she filled in as CC, Sanders spent the bulk of her worktime performing
nursing duties. Like other acting CCs,
she had no authority to discipline employees.
Any employee misconduct was to be referred to management. No occasion occurred where she gave
permission for any employee to leave work, and she believed she would have to
contact management in such a situation.
Schneider instructed Sanders that if a problem occurred, she was to call
Schneider at home, and Rollins said that if acting CCs encountered any “issues,
they would certainly call.”
If staff
members called in sick or were otherwise unable to fulfill their shifts, they
had to be replaced so as to maintain the grid level or ratio. If patient numbers fluctuated in the course
of a shift, nursing personnel had to be called in or released to maintain the
appropriate grid level. Acting CCs had
the authority to “float”10
employees from one treatment area to another.
Schneider’s description of the process was that the CC might call
another department and say, “Who can come over and help us get through this
crisis?”
If unscheduled
employees had to be called in to work, Sanders either utilized the staff lists
in the staffing book or contacted a registry (contract service) to obtain
personnel. In utilizing the staffing
book, Sanders followed the prepared staffing log, starting with the top name
and working down the list.11 If staffing difficulty occurred, the acting
CC could contact Rollins who would then make the calls for them. The acting CC had no authority to order any
employee to work; if employees refused to report, the information would be
passed on to a manager for determination of disciplinary action.12
Contract nursing personnel were used when no employees were available to
work. In summoning contract help,
Sanders contacted the registry as designated by Respondent. If contract personnel were used, Sanders
oriented them to the ER by following Respondent’s checklist for ascertaining if
they knew emergency procedures.
From the ER,
patients were admitted to either the intensive care unit (ICU) or one of the
two medical-surgery floors of the hospital, as designated by the attending physician. The system for determining to which of the
medical-surgery floors the patient would be admitted was, according to Rollins,
generally “pretty routine” and consisted of alternating admissions between the
two floors. When, on one occasion, the
staff of one floor refused to accept an admission, the acting CC called Rollins
who handled the problem.
Although an
acting CC needed to deal with the “concerns” of patient family members, physicians,
and staff, Rollins knew of no specific occasion where an acting CC had occasion
to resolve conflicts among staff. It was
“not uncommon” for CCs to call Rollins at home when problems developed or for
her to return to the hospital to deal with issues arising during acting-CC
stints.
iii. discussion
When Sanders
spoke briefly about union organizing to Capolupo on August 9, she was engaged
in protected activity as described in Section 7 of the Act. There is no dispute that Respondent
thereafter suspended Sanders pending its investigation of whether she had
engaged in union activities as reported by Capolupo.13 There is no dispute that Respondent, in the
course of the investigation, interrogated Sanders about her union activities,
and there is no dispute that Respondent fired Sanders on August 26, because she
had engaged in union activities. An
employer’s investigation undertaken to determine an employee’s involvement in
protected activities is unlawful as are all the disciplinary consequences
flowing therefrom. See Preferred
Transportation, 339 NLRB 1 (2003), citing Accord Business Products–Division
of Kidde, Inc., 224 NLRB 840 fn. 3 (1989).
It does not matter that the employer may have believed, in good faith,
that the statutory employee was a supervisor within the meaning of the
Act. See General Security Services
Corp., 326 NLRB 312, 313 (1998).
Respondent’s conduct in investigating Sanders’ union activity, suspending
her during the pendency of the investigation, interrogating her about her union
activity, and firing her is unlawful on its face under Section 8(a)(3) and (1)
of the Act.
Respondent
defends its conduct on the ground that Sanders lost the protection of the Act
when she engaged in union activities because she was, at the time, acting CC
and a supervisor within the meaning of Section 2(11) of the Act. Respondent carries the burden of proving
supervisory status. Kentucky River
Community Care, Inc., 121
According to
the Board, “An employee’s temporary assumption of supervisory duties is not
sufficient to establish statutory supervisory status [citations omitted].” Health Resources of Lakeview, 332 NLRB
878 (2000). The Board, quoting Aladdin
Hotel, 270 NLRB 838, 840 (1984),
has stated that “[T]he appropriate test for determining the status of employees
who substitute for supervisors is whether the part-time supervisors spend a regular
and substantial portion of their working time performing supervisory
tasks.” St. Francis Medical Center-West,
323 NLRB 1046 (1997).14 There is no evidence Sanders exercised or
possessed any supervisory authority when she filled in as a CC. Rather, the evidence shows that Sanders followed
established written procedures and policies as an acting CC and that she did
not exercise independent judgment within the meaning of Section 2(11) of the
Act. See Beverly Health &
Rehabilitation, 335 NLRB 635 (2001) (exercise of only routine authority); Dean
& Deluca, New York, Inc., 338 NLRB 1046 fn. 15 (2003) (direction and
scheduling of employees does not establish an employee as a supervisor). Sanders’ responsibility in any disciplinary
process was nothing more than reportorial, and there is no evidence she
exercised even that limited role. See Ken-Crest
Services, 335 NLRB 777 (2001).
Although Sanders made certain work assignments and called in employees
as needed, work assignments made by following plans and schedules of management
do not establish statutory supervisory status,15
neither does requesting off-duty employees to come in to work. Health Resources of Lakeview,
supra. Sanders oriented registry-nursing
employees when they were called in, but such orientation does not confer supervisory
status, especially where orientation consists of referring employees to
established procedures and policies. Chrome
Deposit Corp., 323 NLRB 961 (1997).
Even assuming
Sanders exercised some supervisory authority during those occasions when she
acted as a CC, Respondent has not established that Sanders spent a regular and
substantial portion of her worktime doing so as required by Aladdin Hotel,
supra. Sanders was assigned CC responsibility
irregularly and when she was, the performance of those responsibilities did not
involve a substantial portion of her working time. Accordingly, the evidence does not support
Respondent’s contention that Sanders was a supervisory employee at any
time. Specifically, the evidence does
not show that Sanders was a supervisory employee when, on August 9, she
discussed union organization with a fellow employee.
Sanders,
having been a statutory employee at all relevant times and specifically on
August 9 when she engaged in union activity, was entitled to exercise the
rights guaranteed by Section 7 of the Act.
When Respondent placed Sanders on suspension on August 31, pending its
investigation of her union or other concerted protected activities and when
Respondent terminated her for having engaged in such activities on September
26, Respondent violated Section 8(a)(3) and (1) of the Act.16
When Respondent instituted an investigation of Sanders’ union or other
concerted protected activities between August 9 and September 17, and when
Respondent interrogated Sanders about her union or other concerted protected
activities on September 17, Respondent violated Section 8(a)(1) of the Act.
Conclusions of Law
1. Respondent violated Section 8(a)(1) of the
Act by investigating Sander’s union or other concerted, protected activities.
2. Respondent violated Section 8(a)(1) of the
Act by interrogating Sanders about her union or other concerted, protected activities.
3. Respondent violated Section 8(a)(3) and (1)
of the Act by suspending Sanders on August 31, 2002.
4. Respondent violated Section 8(a)(3) and (1)
of the Act by terminating Sanders on September 26, 2002.
Remedy
Having found
that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Respondent
having discriminatorily suspended and terminated Lois Sanders, it must offer
her reinstatement and make her whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of suspension to date of
proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended17
ORDER
Respondent,
Barstow Community Hospital–operated by Community Health Systems, Inc.,
1. Cease and desist from
(a) Investigating
employees’ union or other concerted, protected activities.
(b) Interrogating
employees about their union or other concerted, protected activities.
(c) Suspending
any employee for engaging in union or other concerted, protected activities.
(d) Terminating
any employee for engaging in union or other concerted, protected activities.
(e) In any like
or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action
necessary to effectuate the policies of the Act.
(a) Within 14
days from the date of this Order, offer Lois Sanders full reinstatement to her
former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges
previously enjoyed.
(b) Make Lois
Sanders whole for any loss of earnings and other benefits suffered as a result
of the discrimination against her in the manner set forth in the remedy section
of the decision.
(c) Expunge
from its files any reference to Lois Sanders’ unlawful suspension and
termination and thereafter notify her in writing that this has been done and
that the suspension and/or termination will not be used against her in any way.
(d) Preserve
and, within 14 days of a request, or such additional time as the Regional Director
may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Order.
(e) Within 14
days after service by the Region, post at its facility in
(f) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not investigate employees’ union or other concerted,
protected activities.
We will not interrogate employees about their union
or other concerted, protected activities.
We will not suspend employees because they engage in
union or other concerted, protected activities.
We will not terminate employees because they
engage in union or other concerted, protected activities.
We will not in any like or similar manner interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed
you by Section 7 of the Act.
We will offer Lois Sanders full reinstatement to
her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges
previously enjoyed.
We will make Lois Sanders whole for any loss of
earnings and other benefits resulting from her suspension and termination.
We will remove from our files any reference to
the unlawful suspension and termination of Lois Sanders and we will notify
her in writing that this has been done and that the suspension and termination
will not be used against her in any way.
Barstow Community
Hospital–operated by Community Health Systems, Inc.
Nikki N. Cheaney, Esq., for the General Counsel.
Don T. Carmody, Esq., of
Cynthia L. Hernandez, Esq. (Gilbert &
Sackman), of
SUPPLEMENTAL DECISION
Remand Order
By
Order dated September 30, 2006, the National Labor Relations Board (the Board)
remanded this matter for further consideration in light of its recent decisions
in Oakwood Healthcare, Inc., 348 NLRB
686 (2006); Croft Metals, Inc., 348 NRLB 717 (2006); and Golden Crest Healthcare Center, 348 NLRB
727 (2006), which addressed the meaning of terms “assign,” “responsibly to
direct,” and “independent judgment,” as used in Section 2(11) of the Act, under
the framework of the Supreme Court’s decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001).
The Respondent’s Motion for Reconsideration of
Motion
to Reopen the Record
The
Board’s Order allowed the parties to file briefs on the remand issues and, if
warranted, directed reopening the record to obtain evidence relevant to the
principles enunciated in Oakwood
Healthcare, Croft Metals, and Golden
Crest. By motion to reopen record
dated November 20, 2006, Respondent sought to reopen the record to present
additional testimony and documentary evidence regarding alleged supervisory
responsibilities of Lois Sanders (Sanders) whose supervisory status is at
issue. By Order dated November 27, I
denied Respondent’s motion as unwarranted and set a date for the filing of
briefs.1
All parties have filed timely briefs herein concerning the issue of
whether Sanders is a supervisor within the meaning of Section 2(11) of the
Act. Although titling its submission as
a brief on remand and motion for reconsideration of motion to reopen the
record, Respondent has presented argument only on its motion for
reconsideration. Respondent asserts that
the filing of a brief based upon the record presently developed is pointless:
Thus, inasmuch
as the hospital never undertook during the Trial . . . to prove, let alone
argue . . . that Ms. Sanders’ responsibilities strictly as a Registered Nurse,
irrespective of her role as a Clinical Coordinator, involved the performance of
“supervisory” functions, the Record is barren of evidence of Ms. Sanders’
supervisory status strictly in her capacity qua
Registered Nurse—that is to say, the Record already developed instead only
contains evidence and legal argument of Ms. Sanders’ supervisory status as
Clinical Coordinator. Consequently,
there is no basis, let alone an insufficient basis, for
While
it is true, as the Respondent contends, that the primary focus of the parties’
examination in the underlying hearing was on Sanders’ duties as relief CC, it
is not true that the record is silent regarding Sanders’ responsibilities as an
RN. The record provides pertinent
information regarding Sanders’ RN duties in the ER.
During
the relevant period, core staffing in the emergency room (ER) of the Respondent’s
40–50 bed acute-care facility consisted of two registered nurses (RN), an ER
technician, and two additional staff members who worked part of the daytime ER
shifts. The ER manager and a clinical coordinator
(CC) had overall responsibility for nursing activities on the ER day
shift. On the night shift, a CC provided
ER oversight. The CC insured that the
hospital ran efficiently and smoothly, dealt with interpersonal employee
conflicts, gathered supplies, and handled staffing. In making staffing decisions and assignments,
the CC took into account the acuity of patients and the relative skills,
experience, and trustworthiness of the available staff. The CCs gave no patient care, although they
might fill in as needed for an absent RN.
On occasion, the ER registered nurses were called upon to fill in as
relief clinical coordinator on the night shift.
At
all times relevant, Sanders worked as an RN in the ER. The position title noted on her position description/evaluation
of May 6, 2002, was “registered nurse . . . emergency room,” and her position
description was summarized as follows:
“The Registered Nurse shall be responsible for planning, supervising and
evaluating the nursing care of patients and for correlating the nursing
process, the medical plan of care and policies.” Sanders usually worked the ER night shift from
7 p.m. to 7 a.m., and her duties included triaging patients, carrying out
doctor orders, and transferring or discharging patients as directed. In fulfilling her duties as an RN, Sanders
did not make assignments to other workers, evaluate their performance, or
discipline them; her only involvement with corrective action was to report
problems to the CC or ER manager.
Beginning a month or two after employment, Sanders filled in as CC once
or twice a week.
Regarding
Sanders’ work as an RN, the following is clear from the record: (1) at all
relevant times, the Respondent’s ER had a complement of only two RNs who were
overseen by a CC; (2) the CC had full oversight responsibility for the ER; (3)
the CC was responsible for staffing in the ER; (4) as an RN, Sanders had no
responsibility for making work assignments to other employees; and (5) as an
RN, Sanders had no responsibility for evaluating the work performance of other
employees or disciplining them.
The
Board’s decision in Oakwood Healthcare,
Inc., supra, deals with the issue of whether certain charge nurses are supervisors
within the meaning of the Act. In
arriving at its conclusions, the Board adopted definitions for the terms “assign,”
“responsibly to direct,” and “independent judgment,” as used by Section 2(11)
of the Act in denoting supervisory authority.
As to the term “assign,” the Board construed it to mean designating an
employee to perform significant overall duties.
Directing an employee to perform discrete tasks within such an
assignment, as in giving an ad hoc instruction, is not, in the Board’s view,
indicative of supervisory authority to “assign.”2 With regard to the term “responsibly to
direct,” the Board concluded that for an individual’s action to be so described,
the directing person “must be accountable for the performance of the task so as
to fundamentally align the person with management.3
Finally, the Board considered that “independent judgment” is exercised
when an individual acts or recommends action free of the control of others,
which action rises above the merely routine or clerical.4
With
the Board’s definitions in mind, it is apparent that Sanders’ performance of RN
functions, in and of itself, does not fit the Board’s denotation of supervisory
status. The Respondent ceded oversight
responsibility in its ER to a CC. The
CC, not Sanders, was responsible for staffing the ER, making work assignments,
and evaluating the work performance of ER employees. In such a limitedly staffed department as the
Respondent’s ER, it is highly improbable that two individuals would possess
2(11) authority to exercise independent judgment in assigning and directing employees. Since clearly the CC possessed such
authority, a fortiori, Sanders, when functioning as an RN, did not. Accordingly, the Respondent’s motion for
reconsideration of motion to reopen record in order to adduce evidence of
Sanders’ RN responsibilities, irrespective of her role as a relief CC, is
denied.
Consideration of Underlying Decision in Light of Oakwood Healthcare, Croft Metals, and Golden Crest
While
the Respondent’s brief on remand appears to concede that the Board’s decisions
in Oakwood Healthcare, Inc., Croft Metals, Inc., and
The
question of Sanders’ supervisory status rests on her work as a relief CC. In Oakwood
Healthcare, Inc., supra at slip op. 11, the Board addressed the status of
individuals who are engaged part of their worktime in supervisory roles and
held to its established legal standard that determination of supervisory status
in such situations depends on whether the individual spends a regular and
substantial portion of worktime performing supervisory functions. As the Board did not modify its standard for
assessing the regularity and substantiality of part-time performance of
supervisory functions, there is no basis for revising the earlier finding that
Sanders served as a relief CC only on an ad hoc basis and did not have any regular,
established assignment as such.
Even
assuming Sanders spent a regular and substantial portion of her worktime as
relief CC, utilizing the Board’s definitions set forth in Oakwood Healthcare, Inc., and reiterated in Croft Metals, Inc., and Golden Crest Healthcare Center, the
evidence fails to establish that Sanders exercised independent judgment in
assigning or responsibly directing any employee when she served as relief
CC. In Oakwood Healthcare, Inc., the Board construed the authority “to
assign” to involve the act of designating an employee to a specific place in
which to perform his or her work, appointing an employee to a particular time
during which to perform that work, or giving an employee significant overall
duties or tasks to perform. The authority
“responsibly to direct” involves deciding which job shall be undertaken and who
shall do it, provided that the direction is both responsible and given with
independent judgment. For the direction
to be responsible, the person giving the direction must be accountable for the
performance of the task under penalty of adverse consequences for improper
execution. “Independent judgment” does
not exist if directions are dictated or controlled by detailed instructions
that do not allow for discretionary choices.5
During
the periods she filled in as CC, Sanders spent the bulk of her worktime
performing nursing duties and was instructed to contact management regarding
any nonroutine issues. As relief CC,
Sanders was expected to follow a staffing book prepared by higher authority,
which contained detailed staff guidelines, staffing grids, master schedules,
daily assignment sheets, and other pertinent administrative information and
instructions. Sanders assigned admitted
ER patients to the nursing staffs of two medical-surgery floors by alternating
between the two floors. Any disagreement
over patient placement was referred to upper management. Sanders could request help as needed from
other departments or call in unscheduled employees but had no authority to
affix consequences to any refusal to comply and was not accountable for other
employees’ performance of tasks. Any
employee misconduct was to be referred to upper management. Clearly, when functioning as a relief CC,
Sanders was not free from the control of others but followed the detailed
instructions and policies provided in the staffing book and formed no opinions
or evaluations by discerning and comparing data. In such circumstances, following the
instruction of Oakwood Healthcare, Inc., I
find that Sanders did not responsibly direct other employees’ work. While Sanders may, in a broad sense, have
assigned work to employees by requesting help, calling in unscheduled employees,
and making bed assignments for patients admitted to the hospital from the ER,
she did not exercise independent judgment in doing so. Any judgment exercised by Sanders was
dictated or controlled by detailed instructions and policies established by a
higher authority that did not allow for discretionary choices and, thus, was
not “independent.”
Accordingly,
having reviewed the evidence in the light of the Board’s recent decisions
construing Section 2(11) of the Act, I find the evidence does not establish
that Lois Sanders was a supervisor within the meaning of that section on August
31 and/or September 26, 2002, when Respondent respectively suspended and fired
her.
Based
on these findings and the findings of fact and conclusions of law contained in
the decision herein issued on August 29, 2003, and the entire record, I issue
the following recommended6
ORDER
The
Respondent, Barstow Community Hospital–operated by Community Health Systems,
Inc.,
Dated,
[1] On August 29, 2003, Judge Parke issued her
original decision in this proceeding.
The Respondent filed exceptions and a supporting brief, and the Charging
Party filed an answering brief. The
Board remanded the case to the judge on September 30, 2006, for further consideration
in light of the Board’s decisions in Oakwood Healthcare, Inc.,
348 NLRB 686 (2006); Croft Metals, Inc., 348 NLRB 717 (2006); and Golden
Crest Healthcare Center, 348 NLRB 727 (2006) (hereinafter Oakwood Healthcare,
et al.).
[2] Effective midnight December 28, 2007, Members
Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in
anticipation of the expiration of the terms of Members Kirsanow and Walsh on
December 31, 2007. Pursuant to this
delegation, Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they
have the authority to issue decisions and orders in unfair labor practice and
representation cases. See Sec. 3(b) of
the Act.
[3] The Respondent excepted to the judge’s ruling at the 2003 hearing precluding the Respondent from introducing evidence concerning its affirmative defenses related to the Region’s investigation of the unfair labor practice charges. The Respondent, however, fails to state with any degree of particularity, either in its exception or in its supporting brief, on what grounds it believes the judge’s ruling should be overturned. Accordingly, we find, in accordance with Sec. 102.46(b)(2), that the Respondent’s exception to this ruling should be disregarded. See, e.g., Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006).
The Respondent also excepted to the judge’s denial of its
post-remand motion to reopen the record, contending that it should have the
opportunity to prove that the authority possessed by discriminatee Lois Sanders
in her role as a registered nurse made her a statutory supervisor under the
standards articulated in Oakwood Healthcare,
et al. The exception is without
merit. At the original hearing, the
Respondent clearly limited the supervisory status issue to whether Sanders was
a 2(11) supervisor when working as a relief clinical coordinator. Efforts to inject a new issue after the close
of a hearing are normally deemed untimely.
[4]
The Respondent excepted to the judge’s findings that it violated Sec. 8(a)(3)
and (1) by suspending Sanders and Sec. 8(a)(1) by conducting an investigation of Sanders’ union activity,
because neither violation was alleged in the complaint. We adopt the judge’s finding that Sanders’
suspension was unlawful, as the issue was closely connected to the complaint allegations
and was fully litigated. Pergament
United Sales, Inc., 296 NLRB 333,
334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). Sanders’ suspension arose out of the same
events as, and was a precursor to, her discharge, and the Respondent’s
motivation for both actions is undisputed.
Thus, the suspension, like the discharge, stands or falls depending on
whether Sanders was a supervisor, an issue the Respondent litigated fully.
Having affirmed the judge’s finding that the Respondent unlawfully interrogated Sanders during its investigation, we find it unnecessary to pass on the finding that the investigation was unlawful, as it would not materially affect the remedy in this case.
[5] Because the Respondent did not demonstrate that the relief clinical coordinators responsibly direct employees, we need not determine whether they exercise “independent judgment” in this regard. Golden Crest Healthcare, supra at 732 fn. 14.
[6] Because the Respondent has not established that when filling in as a relief clinical coordinator Sanders exercised sufficient independent judgment to qualify her as a statutory supervisor, we find it unnecessary to rely on the judge’s further finding that Sanders was also not a supervisor because her relief clinical coordinator assignments were not “regular and substantial.”
[7]
If this Order is enforced by a judgment of a
1 All dates are in 2002, unless otherwise indicated.
2 The General Counsel amended the complaint on April 10, 2003, changing certain charge filing and service dates.
3 Respondent also raised affirmative defenses that the Region failed to conduct its investigation of these matters in compliance with the General Counsel’s Memorandum OM 02-36 and the Board’s Casehandling Manual and that the Region failed to afford Respondent sufficient time to cooperate in the investigation and produce evidence in its defense. I declined to receive evidence concerning these affirmative defenses. The adequacy of the General Counsel’s investigation is not litigable in an unfair labor practice hearing, Redway Carriers, 274 NLRB 1359, 1371 (1985), and the agency’s Casehandling Manual provides guidance only and is not binding on General Counsel or the Board. Starlite Cutting, Inc., 280 NLRB 1071 fn. 3 (1986). Evidence regarding these affirmative defenses is not relevant to the unfair labor practice proceeding herein.
4 Respondent filed its brief on the due date but, through the inadvertence of the person charged with filing responsibility during counsel’s absence from his office, filed it with the Regional Director of Region 31 rather than the Division of Judges as required. The following day, Counsel rectified the mistake, making proper filings to all parties. The Charging Party also untimely filed its decision