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
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,
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.
More recently, in light of
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.”
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.”
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).
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).
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.
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.
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.”
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,
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.
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)
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)
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)
Charity
Rast 9, 10, 11,
12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (63.33,
58.01)
Nichole
Slatter 17 (100.00,
100.00)
Joan Wake 9, 10, 11, 13, 14, 15, 18, 23, 25, 26, 3 (31.26, 29.85)
Neonatal
ICU
Name Payroll
Period Nos.
Shauna
Fairbanks 14, 15, 16, 17,
18, 19, 23, 24, 26, 1, 2 (43.88, 46.18)
Nancy Faldmo 11, 13, 14, 18, 21, 22
(67.12, 71.15)
Sandra
Fendt 9, 10, 11,
12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (79.02, 85.08)
Katherine
French 9, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19, 20, 21, 22, 3
(93.83,
97.32)
Lynda
Lawrence 9, 10, 11, 12,
13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (96.17, 96.32)
Susan May 23, 24, 25, 26, 1,
2, 3 (59.16, 53.52)
Paula
McCarty 9, 10, 11,
13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 3 (43.89, 48.27)
Wendy Morris 15, 18, 20, 21, 22, 23,
24, 25, 3 (77.44, 82.09)
Leila
Navales 9, 10, 11,
12,13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (76.04,
75.26)
Michelle
Nebeker 10, 12, 14, 15,
16, 21, 23, 24, 25, 26, 1, 2, 3
(46.50,
40.67)
Janice Sloan 15, 16, 20, 21, 22, 25
(47.57, 47.57)
ICU
& Neonatal NICU
Name Payroll
Period Nos.
Michelle
Weeks 9, 10, 11, 12,
13, 14, 15, 16, 17, 18, 20, 22, 23, 24, 25, 26, 1, 2, 3 (52.52, 49.71)
OR/PACU
Name Payroll
Period Nos.
Suzanne Cole 13, 18 (10.77, 10.77)
Kayleen
Evans 18, 1 (8.99. 7.91)
Denise
Harja 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 2, 3 (6.59, 7.08)
Jacqueline
McAmis 13, 18 (5.77, 5.77)
Same-Day Surgery
Name Payroll
Period Nos.
Sheila
Larsen 11, 12, 16,
20, 22, 23, 24, 25, 2 (13.67, 13.52)
Jewelle
Roberts 9, 10, 11, 13,
14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 1, 2, 3 (25.10, 26.51).
2. Evidence from the
2006 Postelection Hearing
In the 2006 hearing, the Employer presented documentary
evidence and testimony showing which RNs worked as charge nurse, the units in
which they worked, and how often they worked in that position.
Employer Exhibits 34 and 36 identify the RNs who worked as
charge nurses in the ICU, the Medical/Surgical Unit, Labor & Delivery,
Neonatal ICU, OB/GYN-Newborn Nursery, Rehabilitation, and Same-Day
Surgery. Those exhibits show that, for
the period April 1, 2006, though November 17, 2006, many RN charge nurses in
each of those units spent more than 10 percent of their total working time in
the charge role in their respective units.
Also, those exhibits shows that, during that same period, some of the
charge nurses worked substantially higher proportions of their time as charge
nurse, with several working over 75 percent of their time as charge nurse.
The hearing record also includes Employer Exhibits 40, 41,
42, and 43, which are four monthly schedules for the ICU for the latter part of
2006, covering the following time periods:
August 13 through September 9, September 10 through October 7, October 8
through November 4, and November 5 through December 2. Georgianna Wallace testified about the
process for scheduling charge nurses in the ICU. Wallace herself is a long-term ICU RN who
frequently serves as charge nurse.
According to Wallace, after the work schedule is completed, she takes
the schedule and selects someone from each scheduled shift to be charge nurse
for that shift. Wallace testified that
she tries to distribute the charge role fairly and evenly among those RNs who
want to serve as charge nurse, to spread out that responsibility. She writes a “C” on the schedule, designating
which RN will charge on each shift. The
schedule then is posted, so that the staff is notified in advance of their
hours and who will be the charge nurse on each shift. Exhibits 40, 41, 42, and 43 demonstrate that
several of the ICU charge nurses who spent more than 10 percent of their
working time as charge nurse were scheduled to work in the charge role several
times in each month covered by the schedules.
With regard to Labor & Delivery, Employer Exhibit 47
consists of four monthly schedules for that unit for the following
periods: July 16 though August 12, 2006;
August 13 through September 9, 2006; October 8 through November 4, 2006; and
December 3, 2006, through January 1, 2007.
The schedules designate the RNs who will serve as charge nurse on
particular shifts. Ellen Schafer, a
clinical coordinator, decides who will charge.
She notifies the RNs who will charge by placing a “C” on the schedule
next to the RN’s name, similar to how RN Georgianna Wallace does it in the ICU,
and posts the schedule several weeks in advance. Employer Exhibit 47 shows that some of the
RNs charge frequently, at least on a weekly basis. RN Clare Valles testified that she usually
works as charge nurse on Sundays.
In the Neonatal ICU, RN Chris
Lawrence designates the charge nurses for that unit, approximately four to six
weeks in advance. Employer Exhibit 48
consists of three work schedules for the Neonatal ICU for the months of October
2005, November 2005, and April 2006.
Those schedules show that some of the charge nurses work every week,
sometimes multiple times in a week, as charge nurse. Also, Employer Exhibit 34 and 36 show that
there are RNs in that unit who work as charge nurse 99.7, 90.6, and 86.5 percent
of their total working time. Charge Nurse
Clare Valles testified that the charge nurses in the Neonatal ICU are selected
based on who is the most senior RN on a particular shift.
In OB/GYN-Newborn Nursery, RN charge nurses Nemia German or
Charity Rast decide which of the scheduled RNs will serve as charge nurse on
each shift. They make that decision
approximately 10 days in advance. They
communicate the decision by filling out a form and placing it in the “blue book.” While the record from the 2006 hearing does
not include completed examples of those blue book forms, Employer Exhibits 34
and 36 show that several of the charge nurses in that unit work well over half
of their time as charge nurse.
Same-Day Surgery has only one RN, Jewelle Roberts, who
serves as charge nurse. Roberts serves as
charge nurse every Friday, when she substitutes for Clinical Coordinator Mary
Daigle.
In the Medical/Surgical Unit, the
RNs themselves decide which of them will act as charge nurse. They make the decision on each shift. The RNs for that shift gather at the
beginning of the shift and discuss who will be the charge nurse. Chief Nursing Officer John Kass testified
that the most senior RN on the shift normally ends up being the charge nurse. One the RNs in that unit, Judee Brasher,
testified that the RNs on the shift discuss whose turn it is to charge and who
wants to charge. She stated that there
is “no set way” of deciding who is going to charge and that “it varies maybe
from day to day” how they decide who will charge. According to Brasher, she works as charge
nurse two out of three scheduled work days on average, with some weeks
including only one out three work days as charge and other weeks including
three out of three work days as charge.
Employer Exhibits 34 and 36 show that one of the charge nurses in that
unit works 76.2 percent of her time as charge nurse, and another one works 57.7
percent of her time in that capacity.
The record from the 2006 hearing does not reflect how the
charge nurses are designated in the Rehabilitation Unit. Employer Exhibits 34 and 36 show that several
of the RNs work over half of their time as charge nurse, with two of them
working almost 100 percent of their time as charge nurse (98.7 and 95.5
percent), another one of them working 75.3 of her time as charge nurse, and
three others working over 50 percent of their time as charge nurse (59.5, 58.8,
and 51.0 percent).
4. Analysis of Charge Nurses’ Supervisory Status
A. Charge Nurses’ Authority to Assign
Based on the evidence summarized above, I find that the
Employer’s charge nurses “assign” employees within the meaning of Section
2(11). In Oakwood, the Board
concluded that the term “assign” encompasses charge nurses’ responsibility to
assign nurses and aides to particular patients.
The testimony demonstrates that the charge nurses have authority to
decide which staff members will care for which patients.
B. Charge Nurses’ Exercise of Independent
Judgment
Additionally, I find the charge nurses exercise independent
judgment in performing their function of assigning personnel to patients. The testimony of most of the witnesses
demonstrates that the charge nurses, in assigning personnel to patients, consider the skills set of the available staff members
and the various conditions and needs of the patients, and that they try to
match staff members with patients based on those factors. The testimony also shows that the charge
nurses can take into account the personalities of the staff and the patients
and patients’ preferences from whom they want to receive care. Moreover, the evidence shows that the
Employer has not controlled the range of choices available to the charge nurses
– for example, through promulgation of detailed policies, rules, or
instructions – such that the level of discretion they can exercise falls below
the level necessary for supervisory status to exist. The Board made clear in Oakwood that,
in such circumstances, the charge nurses’ process of matching nurses and
patients involves a meaningful exercise of discretion that amounts to
“independent judgment” within the meaning of Section 2(11). Oakwood, 348 NLRB No. 37, slip op. at
10-11.
In the underlying Decision and Direction of Election, the
then Regional Director addressed the degree of judgment that the charge nurses
exercised in assigning staff to patients.
The Regional Director determined that the evidence concerning the degree
of judgment was general and conclusionary, and that it therefore was
insufficient to meet the Employer’s burden of proving that the charge nurses
exercised independent judgment. However,
as explained more fully immediately below, in light of the Board’s decision in Oakwood
I find that the evidence relating to the degree of judgment that the charge
nurses exercise in assigning staff to patients should not be deemed insufficient
on the grounds that it is general and conclusionary.
In Oakwood, in finding that the employer met its
burden of proving that the charge nurses exercised independent judgment in
assigning employees to patients, the Board relied on evidence similar to that
described above. For example, the Board
determined that the following testimony supported its conclusion that the
charge nurses in that case used independent judgment in assigning staff to
patients:
“Theisen testified
that the charge nurses can choose personnel for assignments based on judgments
as to the particular condition and medical needs of a given patient and the
skill sets or specialized training of the available staff. Theisen testified, for example, that a charge
nurse would select a nurse ‘who is particularly good [at peritoneal dialysis]
to take care of [a] patient who requires [such treatment]’ or assign a nurse
with a proficiency in ‘vasoactive drug monitoring’ to take care of a patient
requiring such attention. Theisen also
testified that charge nurses take into account a host of other factors in
making assignments, including the amount of time required to perform specific
patient care functions (which, in turn, would limit a nurse’s availability to
attend to other patients), competence levels, licensing, personalities, and
compatibility of staff members.”
“. . . [Carolyn]
Carney testified that charge nurses are required to make informed judgments
about their patients and staff in order to make patient care assignments. As an example, she testified that if a
patient in the behavioral health unit had medical as well as psychiatric
problems, the charge nurse could exercise her discretion to assign an RN rather
than a mental health worker to that patient.
Similarly, Carney testified that charge nurses would take into account a
myriad of factors, such as the aggressiveness of the patient and a care giver’s
ability to respond to the same, in making assignment decisions.”
“[Sue Caines] . . .
testified that charge nurses consider specific patient conditions and needs,
staff’s special training or certifications, the continuity of care, and
geographic location of the patient’s room in making assignments. She testified, for example, that if a
chemotherapy, orthopedic, or pediatric patient is involved, the charge nurse
considers whether the staff to be assigned has the special training and can
perform the necessary care for that type of patient before making the
assignments.”
“Nicholas Paul
Makaelian . . . testified that the charge nurse takes several factors – such as
the nature and severity of the patient’s condition, patients’ gender-based
sensitivities, patient population number and length of stay, and staff
licensing – into consideration when making assignment decisions.”
“Nancy Coffee . . .
testified that the charge nurse in her unit makes staff assignments based on
several factors. She explained that the
charge nurse considers such factors as the patient’s condition, continuity of
care, gender and personality of the staff and patients, and specific skills and
abilities (especially if flex nurses are temporarily assigned to her
unit). She testified that as charge
nurse she reassessed patient care assignments during a shift because of
personality clashes between a patient and a nurse.”
C. Charge Nurses’ Authority to Require Action
With regard to the charge nurses’ authority to require RNs
to take particular patients, the testimony indicates that it involves more than
the authority merely to request nurses to take certain patients. Chief Nursing Officer Cathy Story, Interim
Director of Inpatient Services Christina Carter, and Clinical Coordinator
Christine Monson all testified that the charge nurses “decide” who takes care
of whom and that they have “complete” or “full” authority in making those
assignments. Chief Nursing Officer Kass
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
is welcome and that the nurse can go to higher management if she/he disagrees
with the assignment. Director of Women’s
Services Carol Lindsay stated that the nurses are expected to abide by the
charge nurses’ assignments. Laurie Gay, an
ICU RN who served as charge nurse, testified that it is “rare” for a nurse to
question a charge nurse’s assignment and that RNs can be subject to discipline
by higher-level authorities for not obeying.
ICU Charge Nurse Shauna Mann similarly testified that she has the
authority to use her authority to force a nurse to accept an assignment if she
were to conclude that the nurse lacked legitimate grounds for not wanting
it. Charge Nurses Richelle Welling and
Michelle Weeks also testified that ultimately the decision about assignment
rests with the charge nurses, subject to possible appeal. While Charge Nurse Clare Valles testified
that most charge nurses in Labor & Delivery have a collaborative style, she
also testified that some have an “authoritative” style, thereby confirming that
charge nurses can dictate assignments, even if some of them choose not to wield
that authority in a “bossy” fashion.
Valles also testified about one particular charge nurse with an
“authoritative” style. Valles confirmed
that when that charge nurse makes assignments, the nurses accept them.
In contending that the charge nurses only have the authority
to request that nurses take particular patients, the Petitioner relies on
testimony that some charge nurses include the RNs in the assignment
process. Although I find that the record
includes evidence that some charge nurses do solicit RNs’ opinions about
assignments, I conclude that charge nurses’ inclusion of RNs in the assignment
process does not relegate their ultimate assignment decisions to the category
of mere requests. In those situations
where the charge nurses seek the nurses’ views about particular assignments,
the discussion seems to facilitate the charge nurses’ process of deciding
whether a particular assignment should be made.
The fact that a charge nurse may involve a nurse in discussion about
whether an assignment is appropriate does not make the assignment, if given,
one that the nurse would be free to ignore.
Moreover, as the previous Regional Director found in the Decision and
Direction of Election, the charge nurses here do not have independent authority
to discipline. Given the charge nurses’
lack of such disciplinary authority, it may be an effective supervisory
technique for them to gain the support of the nurses by seeking their input,
without actually giving up their discretion to make appropriate judgments about
assignments.
The Petitioner also relies on evidence showing that charge
nurses sometimes acquiesce to RNs’ resistance to particular assignments. For example, Labor & Delivery Charge Nurse Clare Valles described how nurses
occasionally had problems with assignments from a particular charge nurse,
Nemia German, because of their belief that German distributed work to them to
make her own workload lighter. Valles
testified that, on those few occasions, the nurses complained and thereafter
either German or another nurse took the assignments. In my view,
such acquiescence does not demonstrate that the charge nurses have the
authority only to request, but not require, that nurses take particular
assignments. Rather, such acquiescence
is consistent with the conclusion that, in such situations, the charge nurse
exercised discretion and decided not to adhere to the initial assignments. There
is no indication that any of those situations escalated to a point where Charge
Nurse German insisted that the staff nurses take the assignments and the staff
nurses refused. Charge nurses’ willingness to take into account nurses’
objections to particular assignments does not demonstrate that the charge
nurses lack the authority to require nurses to take assignments that the charge
nurses deem to be appropriate and necessary.
The Petitioner also contends that the charge nurses’
assignments are not genuine requirements because there is no consequence for
nurses who disregard them. In advancing
that contention, the Petitioner relies on the Board’s decision in
Finally, the Petitioner contends that the charge nurses do
not exercise independent judgment in assigning nurses to patients because the
charge nurses’ ability to get the nurses to accept assignments ultimately
depends on the power of higher-level authority to compel compliance. The record indicates, however, that the
nurses accept almost all of the charge nurses’ assignments without higher
management having to intervene to back up the charge nurse. In any event, it does not seem that the authority of higher management to support a
charge nurse’s assignment with the threat of discipline, or with actual discipline,
negates the existence of the charge nurses’ supervisory authority based on
their role in assigning.
D. RNs’ Time Spent as Charge Nurses
Based on my review of Employer Exhibits 21 and 22, I
conclude that, as of the February 2002 hearing, a substantial number of the
Employer’s charge nurses worked regularly and substantially in the charge nurse
position, but that several of the charge nurses did not regularly and
substantially as charge nurse.[26][26]
The following list identifies the RN charge nurses who I
conclude worked regularly and substantially as charge nurse as of February
2002. The evidence shows that these
individuals worked at least 10 percent of their time in the charge nurse
position, that the great majority of them worked considerably more than 10
percent of their time in the charge nurse position, and that they worked as
charge nurse on a regular and recurring basis over numerous pay periods
throughout the lengthy time period covered by the documentary evidence. Based on their recurring service in that
position for substantial amounts of time, I conclude that their service as
charge nurse cannot be considered to be mere sporadic substitution. The charge nurses who worked regularly and
substantially are the following:
ICU
Cynthia
Aagard
Christine
Anderson
Laura
Beck
Susan Earl
Maria
Esquibel
Lauri
Gay
Lee
Ann Gillund
Jeffrey
Gorzitze
Shauna
Mann
Catherine
Mason
Sheila
Moomaw
Dianne Player
Louise
Shryers
Leland Smith
Sheri
Tesseyman
Donald
Tetzloff
Georgianna
Wallace
Surgical
Unit
Judee
Brasher
Sandy
Garrand
Keri Holzworth
Andrea
Veniegas
Medical
Unit
Aaron Friel
Rebecca
Jenkins
Edita
Lucero
Rachel
Tanner
Karen
Valdez
Bradley
Wardle
Inpatient
Rehabilitation Unit
Susan Brown
Debbie
Gibson
Susan
Griffin
Kari
Goris
Corina
Jachmann
Vilate
Klein
Sandra
Ogzewalla
Labor
& Delivery Unit
Heather
Erickson
Maureen
Feighan-Perkins
Virginia
Fields
Margaret
Frye-Maack
Sandy
Hampton Jones
Stephanie
Parks
Ellen
Shafer
Jennifer
Slingerland
Barbara
Tewell
Richelle
Welling
Maternal/Infant
Unit
Marilyn
Buman
Mary
Burch
Nemia
German
Chun-Hee
Han
Lori
Minnick
Charity
Rast
Joan Wake
Neonatal
ICU
Shauna
Fairbanks
Sandra
Fendt
Katherine
French
Lynda
Lawrence
Susan May
Paula
McCarty
Wendy Morris
Leila
Navales
Michelle
Nebeker
ICU
& Neonatal NICU
Michelle
Weeks
Same-Day Surgery
Sheila
Larsen
Jewelle
Roberts.
In contrast, I conclude that several of the RNs who worked
as charge nurse as of February 2002 did not work regularly and substantially in
that position. Several of the RNs worked
very few pay periods in the charge nurse position, some worked on a sporadic
and intermittent basis, and some of the charge nurse time in particular pay
periods amounted to less than 10 percent of their working time for that
period. The RNs who I conclude did not work
regularly and substantially as charge nurse as of February 2002 are the
following:
ICU
Angie Adams
Virginia Clark
Ann
Lapolla
Surgical
Unit
Marilyn
Castagno
Janae Paulson
Medical Unit
Tonia
Martinez
Labor
& Delivery Unit
Glenda Green
Rebecca Huggins
Heather
Johnson
Clare Valles
Cynthia
Watson
Maternal/Infant
Unit
Amber Baker
Mary Hargett
Sharon
Hermanson
Stephanie
Loosle
Heather
Nielson
Nichole
Slatter
Neonatal ICU
Nancy Faldmo
Janice
Sloan
OR/PACU[27][27]
Suzanne Cole
Kayleen
Evans
Denise
Harja
Jacqueline
McAmis.
With regard to the evidence from the 2006 hearing concerning
the regular/substantial issue, as explained above I have found that it is not
necessary to examine that evidence in detail for each individual charge nurse,
as I did for the charge nurses in 2002.
For purposes of this Supplemental Decision on Remand, I find only that
the record from the 2006 hearing shows that, as of the time of that hearing,
the Employer continues to employ some RNs who serve regularly and substantially
in the charge nurse position.
CONCLUSION
Based upon the above analysis, I conclude that the
registered nurses who serve as charge nurse on a regular and substantial basis
are excluded from the appropriate unit, but that registered nurses who do not
serve as charge nurse on a regular and substantial basis are included.
BALLOT
COUNT
In light of the above findings and conclusions, I hereby
direct that, at a time and place to be determined by me after consulting with
the Employer and the Petitioner, the impounded ballots of all eligible voters
from the election in May and June 2002 be opened and counted and thereafter
that other appropriate action be taken.[28][28]
RIGHT TO REQUEST REVIEW
Under the provisions of Section 102.67 of the Board’s Rules
and Regulations, a request for review of this Supplemental Decision on Remand
may be filed with the National Labor Relations Board, addressed to the
Executive Secretary,
Dated at
/s/ Michael W. Josserand____________
Michael
W. Josserand, Regional Director
National
Labor Relations Board
Region
27
700
North Tower,
600
[1][1] The Decision and Direction of Election identified the Petitioner as United American Nurses, AFL-CIO, ANA. The Petitioner no longer is associated with ANA, and the case caption has been so modified to reflect that change.
[2][2] On February
2, 2007, the Petitioner submitted a Supplemental Citation of Authority. By Order dated February 8, 2007, I rejected
that pleading because the Board’s rules do not provide for such supplemental
filings.
[3][3] In the Decision and Direction of Election, the Regional Director concluded that the Board’s rule on bargaining units in acute-care hospitals – which provides that eight specifically defined units will be the only appropriate units in such facilities - required that the supplied RNs be included in the RN unit. In reaching that conclusion, the Regional Director relied on the Board’s decision in M.B. Sturgis, Inc., 331 NLRB 1298 (2000), holding that a bargaining unit can combine employees who are solely employed by a particular employer with other employees who are jointly employed by that employer and a supplier employer. The Employer recognizes that, after the Decision and Direction of Election issued, the Board overruled Sturgis and concluded that units combining those two categories of employees are statutorily impermissible without the consent of all parties. See H.S. Care LLC, 343 NLRB 659 (2004). The Employer argues only that the Board should not apply H.S. Care LLC retroactively, but should treat Sturgis as the controlling precedent because it was the law at the time of the election.
[4][4] The Board
also discussed the Section 2(11) term “responsibly to direct.” For responsible direction to exist, the
putative supervisor must direct and perform oversight of employees and be
accountable for the performance of tasks by those employees such that adverse
consequences may befall the putative supervisor if the employees do not
properly perform the tasks. See Oakwood,
348 NLRB No. 37, slip op. at 7, 10. In
this remanded proceeding, the Employer does not argue that the charge nurses
responsibly direct employees. In any
event, the record does not demonstrate that the charge nurses responsibly
direct, as the evidence does not demonstrate that they are accountable for the
performance of others’ work. In this
Supplemental Decision on Remand, I will not further discuss responsible
direction.
[5][5] In its brief,
the Employer also mentioned the charge nurses’ role in calling in employees to
work in short-handed situations and sending them home in overstaffed
situations. I find that the evidence is
insufficient to establish that the charge nurses are supervisors based on their
role in dealing with those staffing needs.
The witnesses’ testimony does not clearly explain the actual process
that is used in each of the various units.
Also, the evidence does not establish that the charge nurses have the
independent authority to require employees to come into work on short notice or
to send them home. See, e.g.,
Golden
Crest Healthcare Center, 348 NLRB No. 39, slip op. at 3-4 (2006) (employer had not
met its burden of proving that charge nurses were supervisors based on calling
in employees or sending them home); Avante at Wilson, Inc., 348 NLRB No.
71, slip op. at 1-2 (2006) (employer did not prove the charge nurses were
supervisors based on sending employees home).
[6][6] The ICU
treats patients with severe medical conditions.
The Medical Unit is an area for patients who need to be treated for a
variety of non-surgical medical conditions, such as pneumonia. The Surgical Unit treats surgical
patients. The Inpatient Rehabilitation
Unit treats patients who need extended rehabilitation, due to problems such as
stroke or orthopedic issues.
[7][7] The Labor & Delivery Unit is for birthing. The Maternal/Infant Unit is the area where
mothers stay after giving birth. The
Neonatal ICU is a special-care nursery for babies who are sick and/or premature
and who need special care and treatment.
[8][8] The OR/PACU
includes the operating rooms and the recovery area for patients after
surgery. Same-Day Surgery is the
pre-operative and recovery area for patients who have surgery and are released
on the same day.
[9][9] The Employer
also called Interim Director of Perioperative Services Lori Jensen as a
witness, but her testimony did not cover the subject of charge nurses’
assignment of nurses to patients.
[10][10] For example, since the 2002 hearing the Employer combined its Medical and Surgical Units into one unit.
[11][11] A few of the
entries on Employer Exhibits 21 and 22 included obvious mathematical mistakes,
such as reflecting that a charge nurse spent more than 100 percent of her/his
total work time working as a charge nurse.
Those obviously incorrect entries are denoted with an underline beneath
the affected payroll period number. The
parties were aware of those errors during the February 2002 hearing. The Employer proffered that those
inaccuracies were due to accounting corrections to handle RN mistakes in
clocking their time spent as charge nurse.
The Petitioner indicated that it was satisfied with that
explanation. No party claims that the
data included in the Employer Exhibits 21 and 22 generally is inaccurate.
[12][12] For most of
the listed RNs, the percentages differ because the two exhibits cover slightly
different payroll periods. For some RNs,
only one percentage is set forth because those RNs are listed on only one of
the two exhibits.
[13][13] Cynthia
Aagard worked as a charge nurse primarily in the ICU, but she worked as a
charge nurse in the Neonatal ICU in pay period numbers 16, 21, 2, and 3, and as
a charge nurse in the Surgical Unit in pay period number 24.
[14][14] Jeff Gorzitze
worked as a charge nurse primarily in the ICU, but he worked as a charge nurse
in the Medical Unit in pay period numbers 10 and 16.
[15][15] Marilyn
Castagno worked as a charge nurse primarily in the Surgical Unit, but she
worked as a charge nurse in the Medical Unit in pay period number 3.
[16][16] Aaron Friel
worked as a charge nurse primarily in the Medical Unit, but he worked as a
charge nurse in the Surgical Unit in pay period numbers 22 and 3.
[17][17] Edita Lucero
worked as a charge nurse primarily in the Medical Unit, but she worked as a
charge nurse in the Inpatient Rehabilitation Unit in pay period number 25.
[18][18] Karen Valdez
worked as a charge nurse primarily in the Medical Unit, but she worked as a
charge nurse in the Surgical Unit in pay period number 25.
[19][19] Debbie Gibson
worked as a charge nurse primarily in the Inpatient Rehabilitation Unit, but
she worked as a charge in the Surgical Unit in pay period number 24.
[20][20] Susan Griffin
worked as a charge nurse in the Surgical Unit from pay period numbers 9 through
17, and then became a charge nurse in the Inpatient Rehabilitation Unit from
pay period numbers 21 through 3.
[21][21] Sandra Ogzewalla worked as a charge nurse primarily in the Inpatient Rehabilitation Unit, but worked as a charge nurse in the Surgical Unit in pay period numbers 18, 19, and 23.
[22][22] Sharon Coons
worked as a charge nurse primarily in the Labor & Delivery Unit, but she
worked as a charge nurse in the Maternal/Infant Unit in pay period number 9.
[23][23] Cynthia Watson worked as a charge nurse primarily in the Labor & Delivery Unit, but she worked as a charge nurse in the Maternal/Infant Unit in pay period number 9.
[24][24] In the Decision and Direction of Election, the then Regional Director pointed out that the record from the February 2002 hearing does not include specific, detailed evidence demonstrating differences in nurses’ skills and variations in patients’ conditions. While the Regional Director’s observation is accurate, I conclude that the testimony that the charge nurses examine nurses’ skills and patients’ needs in making assignments necessarily implies the existence of such differences and variations. Moreover, the record from the 2006 hearing includes additional evidence showing that there are such differences and variations.
[25][25] The penalty
for refusing the mandate was assessment of one-third of an absenteeism point.
[26][26] I recognize that in Oakwood, 348 NLRB No. 37, slip op. at 14, the Board determined that the “rotating” charge nurses were not statutory supervisors because the evidence failed to demonstrate regularity. The Board found that there was no evidence of an established or predictable pattern, schedule, or system demonstrating the frequency with which the RNs served as charge nurse. However, I find that this case is distinguishable with regard to regularity as of the February 2002 hearing, in light of the fairly detailed evidence on that issue as reflected in the Employer’s Exhibits 21 and 22.
[27][27] Lori Jensen,
the Interim Director of Perioperative Services, testified that in the OR/PACU
the clinical coordinators usually assign staff to patients and that it is rare
for the OR/PACU to use charge nurses.
[28][28] As explained
above, the only issue in this remanded proceeding is the supervisory status of
RN charge nurses. Accordingly, in this
Supplemental Decision on Remand I have not decided what impact, if any, the
Board’s decision in H.S. Care LLC may have on the Regional Director’s
earlier decision, made at a time when Sturgis still was valid case law,
to include the Employer’s supplied RNs in the appropriate unit and to allow
them to vote. The supplied RNs could
have voted by mail ballot. The issue of
the supplied RNs’ voting eligibility may be determined in future proceedings,
such as challenged ballot proceedings.
[29][29] The Board has
expanded the list of permissible documents that may be filed electronically
with the Board’s office in