UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION 27

SALT LAKE REGIONAL MEDICAL CENTER, INC.,

Employer,

Case No. 27-RC-8157

and

UNITED AMERICAN NURSES, AFL-CIO

Petitioner.^[1][1]

SUPPLEMENTAL DECISION ON REMAND

This case is before me following a remand from the Board regarding the asserted supervisory status of registered nurses (“RNs”) who serve as charge nurses at an acute-care hospital. As discussed more fully below, I conclude that the charge nurses who work regularly and substantially in that capacity are statutory supervisors based on their Section 2(11) authority to assign other nurses to patients, through the use of independent judgment.

On February 1, 2002, the Petitioner commenced this proceeding by filing a representation petition under Section 9(c) of the National Labor Relations Act, seeking to represent the full-time and regular part-time RNs employed by the Employer at its acute-care hospital in Salt Lake City, Utah, excluding supervisors, guards, confidential employees, and all other employees. A hearing officer held a hearing on February 19-21, 2002.

On April 18, 2002, based on that hearing record, the then Regional Director issued a Decision and Direction of Election. He determined that the appropriate unit consisted of all RNs, including charge nurses and other RNs supplied by temporary employment agencies, who were employed by the Employer at its acute-care hospital located at 1050 East South Temple, Salt Lake City, Utah, excluding supervisors as defined in the Act, guards, confidential employees, and all other employees. The Regional Director concluded that the charge nurses were not supervisors within the meaning of Section 2(11) of the Act because the Employer had not met its burden of proving that they exercised independent judgment.

Subsequently, on approximately May 1, 2002, the Employer filed a request for review with the Board, contending that the charge nurses were statutory supervisors and that the Regional Director abused his discretion in ordering a mixed manual-mail ballot election under which supplied RNs could vote by mail ballot.

In late May and early June 2002, the Regional Office conducted the election. The Employer challenged ballots cast by charge nurses, on the grounds that they were statutory supervisors. By the conclusion of the election, the Board had not yet ruled on the Employer’s request for review. Pursuant to Section 102.67(b) of the Board’s Rules and Regulations, the ballots of the charge nurses were segregated and all ballots were impounded, pending the Board’s decision on the request for review.

On approximately June 12, 2002, the Board granted the Employer’s request for review.

On September 30, 2006, the Board issued an Order remanding the proceeding to the Regional Director. The remand portion of the Board’s Order stated the following:

On September 29, 2006, the Board issued its decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006), Golden Crest Healthcare Center, 348 NLRB No. 39 (2006), and Croft Metals, Inc., 348 NLRB No. 38 (2006), in light of the Supreme Court’s decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). Oakwood Healthcare, Golden Crest, and Croft Metals specifically address the meaning of “assign,” “responsibly to direct,” and “independent judgment,” as those terms are used in Section 2(11) of the Act. Accordingly, the Board remands this proceeding to the Regional Director for further appropriate action consistent with Oakwood Healthcare, Golden Crest, and Croft Metals, including reopening the record, if necessary.

On October 16, 2006, I issued an Order to Show Cause. I directed the parties to show cause, if any, why the record should be reopened for the purpose of receiving additional evidence regarding the authority of charge nurses to assign, responsibly direct, and exercise independent judgment, including potential changed circumstances bearing on the charge nurses’ status.

On approximately November 3, 2006, the Employer submitted a Response to the Order to Show Cause. The Employer contended that changed circumstances required that the April 2002 Decision and Direction of Election be vacated, that the record be reopened, that a supplemental decision be issued, that a new election be ordered, and that the Petitioner be required to submit a new showing of interest.

On November 14, 2006, based on the Employer’s contention that there were changed circumstances warranting reopening the record, a Notice of Representation Hearing issued, setting the case for hearing regarding changed circumstances in the petitioned-for unit.

On November 29 and 30 and December 1, 2006, a hearing officer conducted a supplemental hearing. The Employer and the Petitioner were given full opportunity to present evidence.

After the close of the supplemental hearing, both parties submitted timely briefs.^[2][2] In its brief, the Employer advanced several issues. Those issues include the following: that the Board’s recent decisions establish that the charge nurses are supervisors, that a re-run election is warranted because of the passage of time and substantial management and employee turnover since the 2002 election, that the Regional Office should require that the Petitioner submit a recent showing of interest before proceeding with any new election, and that if a new election is not ordered then the Regional Office should count ballots cast by RNs whom temporary employment agencies supplied to the Employer.^[3][3] In its brief, the Petitioner contended that the RNs who serve as charge nurses are not statutory supervisors because the Employer failed to meet its burden of proving that they serve in that position on a regular and substantial basis, and the charge nurses merely request but do not require other RNs to care for particular patients. The Petitioner also contended that the Regional Office should exclude the ballots that the supplied RNs cast.

ISSUE PRESENTED

While the parties advanced several issues in their recent posthearing briefs, the only issue currently before me is whether, in light of the Board’s decisions in Oakwood Healthcare, Golden Crest, and Croft Metals, the RN charge nurses are statutory supervisors. Of the many issues identified above, the only one that the Employer presented to the Board in its request for review is the supervisory status issue. Based on the narrow scope of the issues presented to the Board in the request for review and on the express terms of the remand Order itself, it appears that the Board remanded this case to me solely for reexamination of that supervisory status issue, in light of its recent decisions. Additionally, some of the issues that the parties advanced appear to be premature given the current posture of this case. This proceeding still is at the unit-determination stage. To the extent that the parties seek resolution of other issues that do not directly relate to supervisory status unit-determination matters, those issues may be addressed at later stages of the processing of this case, as appropriate.

SUMMARY OF SUPPLEMENTAL DECISION ON REMAND

Upon further consideration of the entire factual record in this case, in conjunction with the Board’s recent decisions in the cases cited above, I conclude that the Employer has met its burden of establishing that the charge nurses have the authority to exercise the Section 2(11) function of assigning work by designating particular nurses to care for particular patients, that the charge nurses use independent judgment in performing that function, and that they have the authority to require the nurses to take those assignments. Additionally, I conclude that the Employer demonstrated that numerous RNs who served as charge nurse worked regularly and substantially in that position as of the February 2002 preelection hearing, but that the Employer did not demonstrate that several other such RNs worked regularly and substantially as charge nurse at that time. Accordingly, I conclude that many, although not all, of the Employer’s charge nurses were statutory supervisors.

Below, I set forth evidence from the 2002 preelection hearing and the 2006 postelection hearing. Although I have considered the entire record in this case, I have based my decision primarily on evidence from the 2002 hearing. My reason for focusing on the evidence from that hearing is that the Regional Office conducted an election in this case in May and June 2002, at which voters cast ballots. Given that voters already cast ballots, the supervisory issue herein must be assessed in light of the charge nurses’ status before and at the time of the election, which status is best revealed by the evidence presented in the preelection 2002 hearing. While I have considered the evidence from the 2006 hearing, I have done so primarily to determine if any postelection changed circumstances should affect my decision herein.

THE SUPERVISORY STATUS OF THE CHARGE NURSES

1. The Board’s Recent Decisions Concerning Supervisory Status

In NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), the Supreme Court addressed the validity of the Board’s views at that time concerning the Section 2(11) term “independent judgment.” The Supreme Court rejected the Board's then-extant view that "a particular kind of judgment, namely, 'ordinary professional or technical judgment in directing less skilled employees to deliver services[,]'" cannot be supervisory independent judgment. Id. at 714. As the Court stated the matter, "the Board's contention that the policy of covering professional employees under the Act justifies the categorical exclusion of professional judgments from a term, 'independent judgment,' that naturally includes them . . . contradict[s] both the text and structure of the statute, and they contradict as well the rule . . . that the test for supervisory status applies no differently to professionals than to other employees." Id. at 721.

More recently, in light of Kentucky River, the Board issued three decisions in which it refined and clarified the analysis to be applied in assessing supervisory status. See Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006); Croft Metals, Inc., 348 NLRB No. 38 (2006); and Golden Crest Healthcare Center, 348 NLRB No. 39 (2006). In those decisions, the Board analyzed the Section 2(11) terms “assign” and “independent judgment.” The Board also discussed the proper analysis for determining whether individuals who rotate periodically into a supervisory position are statutory supervisors who must be excluded from a bargaining unit.^[4][4]

In Oakwood, the Board construed the Section 2(11) term “assign” to refer to “the act of designating an employee to a place (such as a location, department, or wing), appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks to an employee.” Id. at 4. “[T]o ‘assign’ for purposes of Section 2(11) refers to the . . . designation of significant overall duties to an employee, not to the . . . ad hoc instruction that the employee perform a discrete task.” Id. The Board observed that some job assignments are more difficult and demanding than others, and that the power to assign an employee’s overall duties is important to the employee and management. Id.

With regard to the health care context, the Board concluded that “the term ‘assign’ encompasses . . . charge nurses’ responsibility to assign nurses and aides to particular patients.” Id. As the Board stated, “the assignment of a nurse’s aide to patients with illnesses requiring more care rather than to patients with less demanding needs will make all the difference in the work day of that employee . . . [and i]t may also have a bearing on the employee’s opportunity to be considered for future promotions or rewards.” Id.

In Oakwood, in accordance with the Supreme Court’s opinion in Kentucky River, the Board also adopted an interpretation of “independent judgment” that focuses on the degree of discretion involved in making a decision, not on the kind of discretion involved (e.g. professional or technical). Id. at 7-8. For an individual’s judgment to be “independent” within the meaning of Section 2(11), the individual must form an opinion or evaluation by discerning and comparing data. Id. at 8. As the Board explained, “actions form a spectrum between the extremes of completely free actions and completely controlled ones, and the degree of independence necessary to constitute a judgment as ‘independent’ under the Act lies somewhere in between these extremes.” Id. at 8. Extending the Supreme Court’s analysis in Kentucky River, the Board recognized that at one end of the spectrum there are situations where there are detailed instructions for the actor to follow, but that at the other end there are situations where the actor is wholly free from constraints. Id. It found that “a judgment is not independent if it is dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective-bargaining agreement[,]” but that a judgment is independent even where there is a guiding policy so long as that policy allows for discretionary choices. Id. Similarly, “if [a] hospital has a policy that details how a charge nurse should respond in an emergency, but the charge nurse has the discretion to determine when an emergency exists or the authority to deviate from that policy based on the charge nurse’s assessment of the particular circumstances, those deviations, if material, would involve the exercise of independent judgment.” Id. at 9.

Additionally, the judgment that the putative supervisor exercises must “rise above the merely routine or clerical” for it to be truly supervisory within the meaning of Section 2(11). Id. at 8. “If there is only one obvious and self-evident choice (for example, assigning the one available nurse fluent in American Sign Language (ASL) to a patient dependent upon ASL for communicating), or if the assignment is made solely on the basis of equalizing workloads, then the assignment is routine or clerical in nature and does not implicate independent judgment, even if it is made free of the control of others and involves forming an opinion or evaluation by discerning and comparing data.” Id. at 8-9. With regard to its statement that assigning work solely on the basis of equalizing workloads does not involve independent judgment, the Board observed that the process of equalizing workloads does involve independent judgment where it entails assessment of the difficulty of the work and the competence of the staff available to do it, rather than only assessment of the quantity of the work to be assigned. Id. at 12.

In applying its independent judgment test, the Board elucidated its meaning with respect to charge nurses’ authority to assign available staff to particular patients. The Board made clear its view that:

[i]n the health care context, choosing among the available staff frequently requires a meaningful exercise of discretion. Matching a nurse with a patient may have life and death consequences. Nurses are professionals, not widgets, and may possess different levels of training and specialized skills. Similarly, patients are not identical and may require highly particularized care. A charge nurse’s analysis of an available nurse’s skill set and level of proficiency at performing certain tasks, and her application of that analysis in matching that nurse to the condition and needs of a particular patient, involves a degree of discretion markedly different than the assignment decisions exercised by most leadmen.

Id. at 10-11. The Board also stated that “where [a] charge nurse makes an assignment based upon the skill, experience, and temperament of other nursing personnel and on the acuity of the patients, that charge nurse has exercised the requisite discretion to make the assignment a supervisory function ‘requir[ing] the use of independent judgment[,]’” and that “if [a] registered nurse weighs the individualized condition and needs of a patient against the skills or special training of available nursing personnel, the nurse’s assignment involves the exercise of independent judgment.” Id. at 8, 13.

In Golden Crest Healthcare Center, 348 NLRB No. 39 (2006), the Board reaffirmed existing case law holding that, for supervisory status to exist, the alleged supervisor’s authority with regard to Section 2(11) functions must include the power to require employees to undertake certain actions. The Board reiterated that supervisory authority is not established where the putative supervisor has the authority merely to request that an employee take a certain action. Id. at 3.

The Board also made clear in Oakwood that, where an individual is engaged part of the time as a supervisor and the rest of the time as an employee, the legal standard for a supervisory determination is whether the individual spends a “regular” and “substantial” portion of her/his work time performing supervisory functions. Oakwood, 348 NLRB No. 37, slip op. at 9. “Regular” means “according to a pattern or schedule, as opposed to sporadic substitution.” Id. Offering an example to distinguish between “regular” and “sporadic,” the Board provided case citations (Rhode Island Hospital, 313 NLRB 343, 349 (1993), and St. Francis Medical Center West, 323 NLRB 1046, 1046-1047 (1998)), contrasting regular, recurring rotations into supervisory positions with sporadic service in supervisory positions due to temporary, extraordinary circumstances with little likelihood of recurrence, such as illness or vacation of the supervisors. Id. at 9 n.47. The requirement that a “substantial” position of time be spent in supervisory functions can be satisfied where the individuals have served in a supervisory role for at least 10 percent of their total work time. Id. (citing Archer Mills, Inc., 115 NLRB 674, 676 (1956) (10 percent is sufficient)).

2. The Employer’s Current Contentions Regarding the Charge Nurses’ Supervisory Status

As set forth in the Decision and Direction of Election, in the underlying preelection proceedings the Employer contended that its charge nurses were statutory supervisors based on their authority over several functions. The Employer contended that the charge nurses were supervisors because they assigned other employees by designating which staff would care for particular patients; orienting, instructing, and counseling RNs; inspecting RNs’ work; scheduling RNs’ breaks and lunches; asking RNs to work overtime; calling RNs in to work in short-handed situations; and sending RNs home when the workload was light. The Employer also contended that the charge nurses were supervisors based on their involvement in hiring, evaluating, disciplining, and adjusting grievances.

In the brief that it submitted after the supplemental hearing, the Employer primarily argued that its charge nurses are statutory supervisors based on their role in assigning other staff members. More specifically, the Employer argued that the charge nurses exercise supervisory independent judgment in designating RNs to care for particular patients, and that their performance of that function qualifies them as statutory supervisors under the Oakwood trilogy.

Given that the Employer focused in this remanded proceeding on the charge nurses’ role in designating which RNs will care for particular patients, I will deal only with that contention below. More specifically, I will discuss the facts pertinent to whether the charge nurses exercise Section 2(11) assignment authority in designating staff to particular patients, whether any such assignment involves the exercise of independent judgment, whether the charge nurses’ assignments constitute job requirements, and whether the charge nurses serve in that capacity on a regular and substantial basis. I do not give further consideration to the other issues that the Employer previously advanced but does not now advance as part of this remand. I conclude that the Decision and Direction of Election adequately covers those other issues.^[5][5]

3. The Evidence Relating to Supervisory Status of Charge Nurses

The Decision and Direction of Election sets forth the background facts and other pertinent findings. In this Supplemental Decision on Remand, I will not repeat evidence already covered in the earlier Decision and Direction of Election, except as may be necessary.

A. Evidence Relating to Charge Nurses Designating Staff to Particular Patients

1. Evidence from the 2002 Preelection Hearing

At the time of the February 2002 hearing, the Employer employed charge nurses in various units within its Departments of Inpatient Services, Perinatal Services, and Perioperative Services. Inpatient Services used charge nurses in the Intensive Care Unit (“ICU”), Medical Unit, Surgical Unit, and Inpatient Rehabilitation Unit.^[6][6] Perinatal Services used charge nurses in the Labor & Delivery Unit, the Maternal/Infant Unit, and the Neonatal ICU.^[7][7] Perioperative Services used charge nurses in the Operating Room/Post-Anesthesia Care Unit (“OR/PACU”) and the Same-Day Surgery Unit.^[8][8]

In the original hearing in February 2002, Employer witnesses Cathy Story, Christina Carter, and Christina Monson and Petitioner witnesses Laurie Gay, Richelle Welling, and Michelle Weeks testified about the charge nurses’ role in the various units.^[9][9]

Cathy Story testified that she was the Employer’s Interim Chief Nursing Officer and the Regional Director of Clinical Operations for the Employer’s parent company, IASIS Healthcare Corporation. Story had overall responsibility for all nursing services at the facility. Story testified about the authority of charge nurses in all the involved units to designate staff members to care for particular patients. Story testified that the charge nurses “decide” who takes care of whom and they have “complete” and “full” authority in making those assignments. She testified that, in carrying out that function, the charge nurses consider the staff members’ skill sets and the patients’ needs and acuity of their conditions, so that they can “mesh” nurses with patients in order to provide the best possible care. Story offered the example of how a charge nurse typically would handle a situation involving an open-heart surgery patient in the ICU. Story stated that the charge nurse is responsible for recognizing the needs of the patient and then examining the available nurses’ skills and work load to ensure that there is a “match” between the patients needs and the assigned nurse’s competence level and available time. Story also testified that, in making assignments, the charge nurses can consider patient preferences, such as a patient’s desire to receive care by a nurse of a particular gender. Story also explained that the charge nurses can shift workloads based on changes in patients’ physical conditions and on how difficult particular patients are, including with regard to personality issues. She emphasized that patients are not “widgets,” and that charge nurses are expected to recognize changes in patients’ health conditions and to make appropriate staffing decisions to meet the patients’ needs.

Christina Carter, the Employer’s Interim Director of Inpatient Services and a former ICU clinical coordinator, testified that she had responsibility for overseeing the ICU and the Medical, Surgical, and Inpatient Rehabilitation Units. She testified that the charge nurses in all those units have complete authority to decide which nurses will take care of which patients. She testified that the charge nurses use their “judgment” to evaluate the patients’ needs and the skills of the available nurses and then make appropriate staffing decisions based on those factors. She stated that, as part of that matching process, the charge nurses decide how many patients each nurse will have during a shift. Also, Carter testified that the charge nurses have the authority to shift workloads as patients’ medical conditions change. Carter also stated that the charge nurses consider patients’ preferences in making assignments.

Clinical Coordinator Christine Monson testified that her responsibility covered Perinatal Services, which included the Labor & Delivery Unit, the Maternal/Infant Unit, and the Neonatal ICU. Monson testified that the charge nurses in those units have complete authority to decide which nurses will take care of which patients. She stated that the charge nurses take into account the level of patient acuity and the skill level of the available nurses. She also confirmed that the charge nurses can consider patient preferences for particular nurses, and that the charge nurses can shift assignments depending on workload.

Petitioner witness Lauri Gay, an RN in the ICU, testified that there can be a range of nurses, anywhere from two to eight, assigned to work in the ICU, depending on the number of patients in that unit at a given time. Gay testified the charge nurse on a particular shift makes staff assignments for the next shift, so that when the nurses for that shift arrive to begin work their patient assignments are ready. During a particular shift, the charge nurse can shift nurses around as needed, to account for changes in patients’ conditions, new admissions, or discharges. Gay acknowledged that the ICU charge nurse, in assigning nurses to patients, has the authority to assess nurses’ skill levels and patients’ acuity levels. She stated that the charge nurse decides how many nurses to assign to particular patients based on the patients’ acuity, and that there are only “general rules of thumb” that guide that decision-making. Gay acknowledged that the patients in the ICU have a variety of conditions, and that the charge nurses have the authority to assess nurses’ skills and patients’ acuity levels in assigning nurses to those patients. She stated that, as charge nurse, she would tend to assign a nurse with much experience in treating open-heart surgery patients to a patient who was brought into the ICU after having such surgery. She also stated that she would tend to assign a nurse with longer tenure in the ICU rather than a new nurse to treat a critically ill patient. Gay also testified that the charge nurse can take patient preferences into account, and that the charge nurse also has the authority to take nurses’ and patients’ personalities into account. Gay testified that it is the “rare occasion” when a nurse questions a charge nurse’s patient assignment. Gay also testified that the RNs can be subject to discipline by higher-level authorities for not obeying the assignments of a charge nurse.

Richelle Welling testified that she serves as a charge nurse in the Labor & Delivery Unit. She stated that there usually are three RNs on a shift, and that at the beginning of the shift the charge nurse talks to the other RNs about who will care for which patients. Welling acknowledged that the charge nurse has the ultimate authority and responsibility to make sure that nurses are assigned to patients, particularly when things get hectic. Welling stated that the charge nurse and the RNs usually divvy the work among themselves in a cooperative fashion after each RN has expressed a preference for patients. She also testified that, although all the nurses try to cooperate, the decision about assignment ultimately rests with the charge nurse, subject to possible appeal to higher management.

Michelle Weeks testified that she is a charge nurse who alternates between the ICU and the Newborn ICU. Weeks testified primarily about the charge role in the Newborn ICU. Weeks testified that the charge nurse in the Newborn ICU has the ultimate responsibility to assign nurses to patients based on the nurses’ skill levels and the patients’ acuity levels, as does the charge nurse in the ICU. Weeks testified, for example, that if there is a situation where a temporary staff nurse is assigned to work with her she determines that nurse’s skill level and then makes sure not to assign that person to patients whose needs are too great for the nurse’s skill level. She stated that in the Newborn ICU the charge nurse and the other RNs participate in a mutual decision-making process to divvy up the work. Weeks testified that the nurses all try to cooperate, but that ultimately the decision about assignment rests with the charge nurse, subject to possible appeal to higher management.

2. Evidence from the 2006 Postelection Hearing

By the time of the 2006 hearing, the Employer had modified its department structures somewhat, but continued to employ charge nurses in various units.^[10][10] Currently, the Employer uses charge nurses in the ICU, the Medical/Surgical Unit, Women’s Services (including Labor & Delivery, Neonatal ICU, OB/GYN-Newborn Nursery), Rehabilitation, and Same-Day Surgery.

The Employer and the Petitioner each called witnesses to testify about the current role of the charge nurses. The Employer called Chief Nursing Officer John Kass, Director of Critical Care Services Daniel Davis, and Director of Women’s Services Carol Lindsay. The Petitioner called RNs Shauna Mann, Clare Valles, Judee Brasher, and Georgianna Wallace.

Chief Nursing Officer Kass testified that he started to work for the Employer in December 2003 as the Director of Critical Care Services and that, since September 2004, he has served as the Chief Nursing Officer, initially on an interim basis and then in April 2005 becoming permanent. As Director of Critical Care Services, Kass oversaw the ICU’s operations. As Chief Nursing Officer, he is responsible for oversight of all nursing units. Kass testified primarily about the ICU charge nurses, although he provided some information about the charge nurses in other units. According to Kass, the ICU charge nurses all have a high skill level, but there is still a wide range in skill level of the nurses in the ICU. Kass also stated that there is a wide range in patients’ medical conditions in the ICU. Kass testified that one of the charge nurses’ duties and responsibilities is to assign other staff to care for particular patients. Generally, near the end of a work shift, the charge nurse for that shift gets a detailed report from each primary care nurse about the patients’ conditions, and then uses that information to assign particular patients to nurses and other staff who are scheduled for the incoming shift. The incoming charge nurse can change those assignments if she disagrees with them. In making those assignments, the charge nurse uses her judgment to make sure that the patients’ needs are matched by the assigned nurses’ skills. The charge nurse also considers other factors, such as maintaining continuity of care, language and other communication issues between patient and staff, and doctors’ preferences. Kass also testified that once a charge nurse assigns a nurse to a patient the nurse is required to take the patient, although he acknowledged that the nurse’s input about the assignment usually is welcome and that if the nurse disagrees with the assignment she/he can go to higher management.

Daniel Davis, the Director of Critical Care Services, has had overall responsibility for the ICU and the Intermediate Care Unit since April 2003, when he first started to work for the Employer. Consistent with Chief Nursing Officer Kass’ testimony, Davis testified that the ICU patients have a very high level of acuity and that there is wide variation in their conditions. He testified about Employer’s Exhibit 49, which set forth a summary of some of the various medical conditions of numerous ICU patients.

Shauna Mann, one of the Petitioner’s witnesses, has been an ICU nurse for over 20 years. Mann testified that the ICU charge nurse position was basically the same in 2006 as it was in 2002, with the possible exception of reporting to the scheduling coordinator or nursing supervisor. She testified that the charge nurse on the outgoing shift assigns nurses to patients for the next shift, and that when a new patient arrives in the ICU during a shift the charge nurse designates a nurse to care for that patient. Mann acknowledged that charge nurses consider nurses’ skills and patients’ acuity in designating the nurses to care for particular patients. She also testified that the charge nurse takes into account how much time the various nurses have available. For example, if a nurse were caring for an extremely ill patient and another extremely ill patient came into the ICU, the charge nurse probably would not have that nurse care for the new patient because the nurse probably would not have adequate time to care for both patients. Mann also testified that, as charge nurse, she takes nurses’ preferences into account in designating nurses to patients. She stated that charge nurses discuss patient assignments with staff and that nurse preferences often are followed, but that if a charge nurse insisted that a particular nurse take a particular patient then the nurse would do so. Mann testified that a nurse can disagree with an assignment and that there can be a give-and-take discussion about it, but she also acknowledged that if she determined that a particular nurse had enough time available to take a patient, then she would not just accept the nurse’s claim that she was too busy and would become more forceful to get the nurse to take the patient.

Judee Brasher, one of the RNs who serves as a Medical/Surgical charge nurse, testified that the charge nurse assigns patients to rooms and nurses to care for those patients. Brasher stated that, in assigning nurses to patients, the charge nurse considers the nurses’ skill level and the patients’ acuity levels. She testified that the charge nurse also considers which nurses are on shift, how busy each nurse is, and who has a patient load that could accommodate another patient. Brasher testified that she consults with the nurses before making assignments, and that she typically asks a nurse who is less busy if she can take more patients before assigning that nurse to another patient.

Carol Lindsay, the Director of Women’s Services since April 2004, testified about the charge nurse role in Labor & Delivery, Neonatal ICU, and OB/GYN-Newborn Nursery. She testified that the charge nurses in those units are responsible for assigning nurses to patients. Lindsay testified that the health conditions of the mothers and babies varies throughout Women’s Services. She also testified that the nurses have a range of backgrounds and experience, and that some nurses are better than others at handling certain situations and issues. For example, Lindsay testified that some nurses are very good at dealing with breast-feeding issues while other nurses are very good with handling postpartum depression issues. In assigning nurses to patients, the charge nurses consider factors such as nurses’ skills and patients’ conditions to make sure that a nurse with appropriate skills is assigned. Lindsay stated that the charge nurse also will consider other factors, such as the nurses’ preferences, the patients’ preferences, doctors’ preferences, and workflow within the units. Lindsay explained that the various charge nurses have different styles in exercising their authority, so that some charge nurses are “bossy” while others are friendlier. Lindsay testified that, regardless of the particular style that a charge nurse uses, the charge nurse is responsible for making sure that appropriate staffing assignments are made.

Clare Valles, a Women’s Services staff nurse who works primarily in Labor & Delivery, testified that there is a wide range of patients in the various Women’s Services units. In the Labor & Delivery Unit, some women go through childbirth with no complications while others need to have labor induced or possibly even have a scheduled or emergency Caesarian section. In the Neonatal ICU, some babies need only to add some bodyweight while other babies are on respirators or are being treated with antibiotics. Valles also stated that all the nurses in Labor & Delivery are certified to care for all patients in the unit, but that some nurses are stronger in some areas than in others. As an example, she stated that some nurses are better than others at dealing with a mother whose baby died. Valles acknowledged that the charge nurses have the authority to assign nurses to patients in accordance with the acuity of the patient, and that some of the charge nurses exercise that authority without consulting the nurses while others choose to work in a more collaborative fashion. Valles stated that, when she serves as charge nurse, she and the other nurses work out patient assignments in a collaborative manner. She often asks the other nurses which patients they want, and the nurses express their wishes. Frequently, to maintain continuity of care, the nurses stay with patients that they previously treated.

B. Evidence Relating to RNs’ Time Spent as Charge Nurse

As set forth above, in Oakwood the Board decided that where an individual is engaged part of the time as a supervisor and the rest of the time as an employee, the legal standard for a supervisory determination is whether the individual spends a regular and substantial portion of her/his work time performing supervisory functions. Below, I set forth evidence from the 2002 and 2006 hearings relating to the regular/substantial analysis. Because the main issue is whether the charge nurses were supervisors before and at the time of the election, in analyzing the regular/substantial issue I will focus on the evidence from the 2002 hearing. The evidence from the 2006 hearing concerning issues of regularity and substantiality at the time of that hearing does not illuminate whether charge nurses worked regularly and substantially in that position before the 2002 election. Accordingly, below I will discuss the evidence from 2006 in a much more summary fashion.

1. Evidence from the 2002 Preelection Hearing

In the February 2002 hearing, the Employer presented documentary evidence showing which RNs worked as charge nurse, the units in which they worked, and how often they worked in that position. The evidence was in the form of two exhibits, Employers Exhibits 21 and 22, which covered payroll periods for different, but substantially overlapping, time periods. Employer Exhibit 21 covered payroll periods from May 27, 2001, through February 2, 2002 (payroll period 12 in 2001 through payroll period 3 in 2002). Employer Exhibit 22 covered payroll periods from April 15, 2001, through December 22, 2001 (payroll period 9 in 2001 through payroll period 26 in 2001). Thus, the information included in the two exhibits, when combined, covered the time period from April 15, 2001, through February 2, 2002.

Below, I have listed in summary form the names of all the RNs identified in Employer Exhibits 21 and 22 as RNs who worked as charge nurse in the various units, along with the number of each payroll period in which the RN worked as charge nurse. A payroll period number in regular font signifies that the RN spent at least 10 percent of her/his time as charge nurse in that payroll period. A payroll period number in bold font signifies that the RN spent less than 10 percent of her/his time as charge nurse in that payroll period.^[11][11] Additionally, for each listed RN, I have set forth, in parentheses after the payroll period numbers, the percentages of total time spent working as charge nurse.^[12][12]

ICU

Name Payroll Period Nos.

Cynthia Aagard^[13][13] 12, 13, 15, 16, 17, 18, 20, 21, 22, 24, 26, 1, 2, 3 (48.95, 48.35)

Angie Adams 12, 13 (47.74, 47.74)

Christine Anderson 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 26, 1 (58.43, 62.39)

Laura Beck 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 26, 1, 2, 3 (41.01, 42.16)

Virginia Clark 15 (100.00, 100.00)

Susan Earl 9, 10, 11, 13, 14, 16, 17, 18, 19, 20, 21, 23, 26, 1, 2, 3

(25.13, 27.40)

Maria Esquibel 9, 10, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 3 (31.02, 31.54)

Lauri Gay 9, 10, 13, 14, 16, 17, 18, 19, 21, 22, 24, 25, 26, 2 (39.81, 37.30)

Lee Ann Gillund 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (31.27, 37.88)

Jeffrey Gorzitze^[14][14] 10, 16, 24, 25, 26, 1, 2, 3 (40.15, 37.63)

Ann Lapolla 18, 24 (9.65, 9.65)

Shauna Mann 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (34.50, 30.21)

Catherine Mason 9, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 1, 3 (30.71, 35.28)

Sheila Moomaw 9, 10, 11, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 26, 1, 2, 3 (23.59, 20.24)

Dianne Player 10, 11, 12, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3

(32.54, 28.89)

Louise Shryers 9, 13, 14, 15, 18, 21, 2, 3 (33.65, 35.86)

Leland Smith 10, 11, 12, 13, 14, 15, 16, 17, 18, 25, 26, 1

(27.94, 30.13)

Sheri Tesseyman 19, 20, 21, 22, 23, 24, 25, 26, 2, 3 (33.53, 33.83)

Donald Tetzloff 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (39.84, 44.54)

Georgianna Wallace 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2 (31.18, 35.82)

Surgical Unit

Name Payroll Period Nos.

Judee Brasher 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 12, 3 (60.41, (62.89)

Marilyn Castagno^[15][15] 22, 23, 25, 26, 3 (28.36, 24.45)

Sandy Garrand 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (51.62, 51.32)

Keri Holzworth 25, 26, 1, 2, 3 (51.87, 50.92)

Janae Paulson 2 (61.82)

Andrea Veniegas 24, 25, 26, 1, 2, 3 (94.83, 93.87)

Medical Unit

Name Payroll Period Nos.

Aaron Friel^[16][16] 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3

(67.24, 67.58)

Rebecca Jenkins 9, 10, 11, 12, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (72.24, 68.09)

Edita Lucero^[17][17] 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (63.79, 68.28)

Tonia Martinez 9, 10, 11 (38.78)

Rachel Tanner 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (49.31, 47.47)

Karen Valdez^[18][18] 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (67.51, 71.81)

Bradley Wardle 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (77.40, 77.19)

Inpatient Rehabilitation Unit

Name Payroll Period Nos.

Susan Brown 11, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26,

1, 2, 3 (117.48, 121.99)

Debbie Gibson^[19][19] 24, 25, 26, 2, 3 (81.02, 85.22)

Susan Griffin^[20][20] 9, 10, 11, 12, 13, 14, 15, 16, 17, 21, 22, 23, 24, 25, 26, 1, 2, 3 (83.70, 79.16)

Kari Goris 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 24, 25, 26, 2, 3 (65.93, 79.47)

Corina Jachmann 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (96.99, 96.35)

Vilate Klein 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (95.12, 92.31)

Sandra Ogzewalla^[21][21] 17, 18, 19, 20, 23, 24, 25, 26, 1, 2 (86.36, 83.51)

Labor & Delivery Unit

Name Payroll Period Nos.

Sharon Coons^[22][22] 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (85.81, 84.32)

Heather Erickson 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (61.51, 54.42)

Maureen Feighan-Perkins 10, 12, 13, 15, 16, 18, 19, 20, 22, 23, 24, 25, 26, 1, 2, 3 (35.24, 30.53)

Virginia Fields 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 1, 2, 3 (66.24, 63.04)

Margaret Frye-Maack 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 25, 26, 1, 2, 3 (39.78, 42.29)

Glenda Green 19 (4.36, 4.36)

Sandy Hampton Jones 9, 10, 12, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3

(40.25, 49.65)

Rebecca Huggins 22, 23, 24, 25, 26 (23.10, 23.10)

Heather Johnson 2 (36.92)

Lorraine Lysaght 26 (33.33, 33.33)

Stephanie Parks 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (50.38, 49.56)

Ellen Shafer 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (73.74, 79.39)

Jennifer Slingerland 12, 15, 17, 19, 20, 21, 22, 25, 26, 2, 3 (16.88, 15.90)

Barbara Tewell 10, 11, 12, 14, 15, 17, 21, 22 (90.55, 73.13)

Clare Valles 24, 26, 1 (30.34, 23.33)

Cynthia Watson^[23][23] 9, 17, 19, 2, 3 (17.27, 21.22)

Richelle Welling 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (84.37, 86.98)

Maternal/Infant Unit

Name Payroll Period Nos.

Amber Baker 23 (40.00, 40.00)

Marilyn Buman 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25, 26, 1 (75.52, 78.00)

Mary Burch 9, 11, 12, 13, 14, 15, 16, 18, 19, 24, 1, 2, 3

(59.81, 58.98)

Nemia German 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (63.77, 60.18)

Chun-Hee Han 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (84.37, 84.75)

Mary Hargett 9, 10, 11, 12 (70.37, 37.84)

Sharon Hermanson 25, 26, 2 (18.76, 16.58)

Stephanie Loosle 12, 17, 20 (25.62, 25.62)

Lori Minnick 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (62.02, 58.35)

Heather Nielson 13 (15.95, 15.95)