[ v08 p651 ]
08:0651(115)RO
The decision of the Authority follows:
8 FLRA No. 115
VETERANS ADMINISTRATION MEDICAL
CENTER, FAYETTEVILLE, NORTH CAROLINA
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Petitioner
and
NORTH CAROLINA NURSES ASSOCIATION
Intervenor
Case No. 4-RO-69
DECISION ON CHALLENGED BALLOTS
THE ADMINISTRATIVE LAW JUDGE, IN THE ABOVE-ENTITLED PROCEEDING,
ISSUED HIS DECISION RECOMMENDING THAT THE CHALLENGES TO THE BALLOTS OF 9
EMPLOYEES OF THE ACTIVITY BE SUSTAINED AND THEIR BALLOTS NOT BE OPENED
AND COUNTED. /1/
THEREFORE, PURSUANT TO SECTION 2422.20(I)(1) OF THE AUTHORITY'S RULES
AND REGULATIONS (5 CFR 2422.20) AND SECTION 7111 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE JUDGE'S DECISION, AND THE ENTIRE RECORD IN THE
SUBJECT CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS EXCEPT AS MODIFIED HEREIN.
THE JUDGE FOUND THAT NOT ALL "HANDS ON" PATIENT CARE PERFORMED BY
HEAD NURSES IS NONSUPERVISORY IN NATURE. IN AGREEMENT WITH THE JUDGE,
THE AUTHORITY FINDS THAT DIRECT OR "HANDS ON" PATIENT CARE WHICH IS
PERFORMED BY THE HEAD NURSES IN CONJUNCTION WITH THEIR RESPONSIBILITY TO
ASCERTAIN WHETHER SUBORDINATES ARE GIVING PROPER CARE TO PATIENTS, IS
APPROPRIATELY CONSIDERED SUPERVISORY WITHIN THE MEANING OF SECTION
7103(A)(10) OF THE STATUTE. /2/
ORDER /3/
IT IS HEREBY ORDERED THAT THE CHALLENGES TO THE BALLOTS OF THE
FOLLOWING VOTERS ARE SUSTAINED AND THAT THEIR BALLOTS SHALL BE NEITHER
OPENED NOR COUNTED IN THE ABOVE-ENTITLED PROCEEDING: CAROL B. BORDEAUX,
JANICE EVERHART, ORDEAN R. LUTZ, MARGARET MIMS, BARBARA W. REICH, RUTH
M. SMITH, SHIRLEY M. TOWNSEND, AND FLORA T. WHITAKER.
IT IS HEREBY FURTHER ORDERED THAT THE BALLOT OF MARY L. MAYHER CMAYLO
SHALL REMAIN AN UNRESOLVED CHALLENGED BALLOT AND SHALL REMAIN UNOPENED
AND UNCOUNTED.
IT IS HEREBY FURTHER ORDERED THAT THE WITHDRAWAL OF THE CHALLENGE TO
THE BALLOT OF PHYLLIS GREEN SHALL BE APPROVED; HOWEVER, INASMUCH AS HER
VOTE IS NOT DETERMINATIVE OF THE ELECTION RESULTS AND IN ORDER TO
PRESERVE THE SECRECY OF HER BALLOT, IT SHALL REMAIN UNOPENED AND
UNCOUNTED.
IT IS HEREBY FURTHER ORDERED THAT THE REGIONAL DIRECTOR SHALL ISSUE A
REVISED TALLY OF BALLOTS AND AN APPROPRIATE CERTIFICATION OF
REPRESENTATIVE.
ISSUED, WASHINGTON, D.C., MAY 19, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
JAMES M. CRITTENDEN
FOR THE ACTIVITY
RALPH FITCH, JR.
FOR THE PETITIONER
ALLWYN F. CRICHLOW
FOR THE INTERVENOR
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DECISION ON CHALLENGED BALLOTS
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER SECTION 7111 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (HEREIN THE STATUTE), 92 STAT. 1191,
5 U.S.C. 7101ET SEQ. AND PART 2422 OF THE RULES AND REGULATIONS
PROMULGATED BY THE FEDERAL LABOR RELATIONS AUTHORITY.
IN ACCORDANCE WITH THE PROVISIONS OF AN AGREEMENT FOR CONSENT OR
DIRECTED ELECTION APPROVED ON DECEMBER 1, 1980, AN ELECTION BY SECRET
BALLOT WAS CONDUCTED UNDER THE SUPERVISION OF THE ACTING REGIONAL
DIRECTOR, ATLANTA, GEORGIA, ON DECEMBER 18, 1980 IN THE FOLLOWING UNIT:
ALL REGISTERED NURSES OF THE VETERANS ADMINISTRATION MEDICAL CENTER,
FAYETTEVILLE, NORTH
CAROLINA; EXCLUDING ALL OTHER PROFESSIONAL EMPLOYEES;
NON-PROFESSIONAL EMPLOYEES; MANAGEMENT
OFFICIALS; SUPERVISORS; EMPLOYEES DESCRIBED IN 5 U.S.C.
7112(B)(2), (3), (4), (6), AND
(7); AND EMPLOYEES IN THE UNIT CURRENTLY REPRESENTED BY AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO.
THE RESULTS OF THE ELECTION, AS SET FORTH IN THE TALLY OF BALLOTS,
WAS AS FOLLOWS:
APPROXIMATE NUMBER OF ELIGIBLE VOTERS . . . . . . . . . . 97 VOTES
CAST FOR NORTH CAROLINA
NURSES ASSOCIATION . . .31 VOTES CAST FOR AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
. . . . . . . . . . . . . . . . . . . .43 VOTES CAST AGAINST
EXCLUSIVE RECOGNITION
. . . . . . . . 2 VALID VOTES COUNTED . . . . . . . . . . . . . . .
. . . . 76 CHALLENGED
BALLOTS . . . . . . . . . . . . . . . . . . . . 10 VALID VOTES
COUNTED PLUS CHALLENGED BALLOTS
. . . . . . . 86
THE REGIONAL DIRECTOR, IN A REPORT AND FINDINGS ON CHALLENGED BALLOTS
DATED MAY 26, 1981, FOUND THAT THE BALLOTS CAST BY THE FOLLOWING VOTERS
WERE CHALLENGED BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
ON THE GROUNDS THAT EACH IS A SUPERVISOR WITHIN THE MEANING OF 5 U.S.C.
7103(A)(10) OR MANAGEMENT OFFICIAL WITHIN THE MEANING OF 5 U.S.C.
7103(A)(11).
CAROL B. BORDEAUX HEAD NURSE JANICE EVERHART HEAD NURSE PHYLLIS GREEN
HEAD NURSE ODREEN
R. LUTZ HEAD NURSE MARY L. MAHER HEAD NURSE MARGARET MIMS HEAD NURSE
BARBARA W. REICH HEAD
NURSE RUTH M. SMITH HEAD NURSE SHIRLEY M. TOWNSEND HEAD NURSE FLORA
T. WHITAKER HEAD NURSE
THE REPORT FURTHER NOTED THAT THE INTERVENOR TOOK THE POSITION THAT
ALL INDIVIDUALS WHO CAST CHALLENGED BALLOTS WERE ELIGIBLE TO PARTICIPATE
IN THE ELECTION.
THE REGIONAL DIRECTOR CONCLUDED THAT THE TEN (10) CHALLENGED BALLOTS
WERE SUFFICIENT IN NUMBER TO AFFECT THE RESULTS OF THE ELECTION, /4/ AND
THAT A HEARING WAS REQUIRED TO RESOLVE A RELEVANT QUESTION OF FACT
CONCERNING THE TEN (10) CHALLENGED BALLOTS. ACCORDINGLY, THE DIRECTOR
ISSUED A NOTICE OF HEARING ON CHALLENGED BALLOTS DATED MAY 26, 1981
NOTIFYING THE PARTIES THAT A HEARING WOULD BE CONDUCTED BEFORE AN
ADMINISTRATIVE LAW JUDGE PURSUANT TO SECTION 2422.20(G) OF THE
REGULATIONS. THE HEARING WAS CONDUCTED BY THE UNDERSIGNED AT
FAYETTEVILLE, NORTH CAROLINA ON JULY 16 AND 17, 1981. THE ACTIVITY, THE
PETITIONER, AND THE INTERVENOR WERE EACH REPRESENTED AT THE HEARING AND
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE AND CALL, EXAMINE, AND
CROSS-EXAMINE WITNESSES, AND ARGUE ORALLY. BRIEFS FILED BY THE ACTIVITY
AND THE INTERVENOR HAVE BEEN DULY CONSIDERED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING MY
EVALUATION OF THE TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, AND
FROM MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
FINDINGS AND CONCLUSIONS
THE VETERANS ADMINISTRATION MEDICAL CENTER, FAYETTEVILLE, NORTH
CAROLINA IS A GENERAL MEDICAL, SURGICAL HOSPITAL WITH A PSYCHIATRIC UNIT
AND A NURSING HOME CARE UNIT. THE NURSING SERVICE EMPLOYS A TOTAL OF
217 EMPLOYEES, AS FOLLOWS:
CHIEF . . . . . . . . . . . . . . . . . . . . . . . . 1 ASST. CHIEF
. . . . . . . . . . . . . . . . . . . . . 1 ASSOCIATE CHIEF (FOR
EDUCATION)
. . . . . . . . . . 1 EVENING AND NIGHT COORDINATOR . . . . . . . .
. . . 3 NURSE COORDINATOR
. . . . . . . . . . . . . . . . . . 4 SUPERVISOR NURSING HOME CARE
UNIT . . . . . . . . 1
INSTRUCTOR (RN) . . . . . . . . . . . . . . . . . . . 1 CLERICALS
. . . . . . . . . . . . . . . . . . . . . . 3 HEAD NURSE
.. . . . . . . . . . . . . . . . . . . . 12 /5/ STAFF NURSE (RN)
. . . . . . . . . . . . . . . . . 96 LICENSED PRACTICAL NURSES . . .
. . . . . . . . . . 43
NURSING ASSISTANTS . . . . . . . . . . . . . . . . . 51 . . . . . . .
. . . . . . . . . . . . . . . . . . . . . 216
AT THE HEARING, THE ACTIVITY REPRESENTATIVE STATED THAT HEAD NURSE
PHYLLIS GREEN WAS IN CHARGE OF A SPECIAL MEDICAL PROGRAM AND ACTUALLY
HEADED UP A SATELLITE UNIT OUT OF THE DURHAM MEDICAL CENTER. SHE DOES
NOT SUPERVISE ANY EMPLOYEES. ACCORDINGLY, THE PARTIES STIPULATED THAT
SHE IS NOT A SUPERVISOR AND THE PETITIONER WITHDRAW ITS CHALLENGE. THE
REMAINING 11 HEAD NURSES ARE LOCATED IN THE FOLLOWING UNITS: NURSING
HOME CARE (1), SURGICAL SERVICE (2), MEDICAL SERVICE (5), PSYCHIATRIC
SERVICE (1), SPECIAL CARE-ICU/HEMODIALYSIS (1), AND OPERATING ROOM (1).
INDICIA OF SUPERVISORY AUTHORITY
SECTION 7103(A)(10) OF THE STATUTE SETS FORTH THE DEFINITION OF A
SUPERVISOR IN THE FOLLOWING MANNER:
'SUPERVISOR' MEANS AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING
AUTHORITY IN THE INTEREST OF
THE AGENCY TO HIRE, DIRECT, ASSIGN, PROMOTE, REWARD, TRANSFER,
FURLOUGH, LAYOFF, RECALL,
SUSPEND, DISCIPLINE, OR REMOVE EMPLOYEES, TO ADJUST THEIR GRIEVANCES,
OR TO EFFECTIVELY
RECOMMEND SUCH ACTION, IF THE EXERCISE OF THE AUTHORITY IS NOT MERELY
ROUTINE OR CLERICAL IN
NATURE BUT REQUIRES THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT,
EXCEPT THAT, WITH RESPECT
TO ANY UNIT WHICH INCLUDES FIREFIGHTERS OR NURSES, THE TERM
'SUPERVISOR' INCLUDES ONLY THOSE
INDIVIDUALS WHO DEVOTE A PREPONDERANCE OF THEIR EMPLOYMENT TIME TO
EXERCISING SUCH AUTHORITY;
THE RECORD SHOWS THAT HEAD NURSES ARE RESPONSIBLE FOR THEIR
RESPECTIVE UNITS ON A 24-HOUR 7-DAY WEEK BASIS, ALTHOUGH THEIR OWN TOUR
OF DUTY IS THE DAY SHIFT. IN THE EXERCISE OF THEIR ADMINISTRATIVE
DUTIES, HEAD NURSES DRAW UP WORK SCHEDULES, DESIGNATE TEAM LEADERS,
ASSIGN PATIENTS AND ESTABLISH WORK PRIORITIES AND GOALS. IF A
PARTICULAR UNIT IS SHORT-STAFFED, THE HEAD NURSE MAY FILL IN FOR A STAFF
NURSE IF A REPLACEMENT IS NOT TRANSFERRED FROM ANOTHER UNIT. REQUESTS
FOR ANNUAL LEAVE ARE SUBMITTED TO THE HEAD NURSES WHO COMPLETE A MASTER
LEAVE SCHEDULE FOR THE ENTIRE YEAR. SHE APPROVES AND SIGNS REQUESTS FOR
ANNUAL AND SICK LEAVE, SHE MAKES OUT THE TIME SHEETS, SIGNS THE TIME
CARDS, AND COUNSELS EMPLOYEES ON THEIR LEAVE USAGE. SHE IS THE FIRST
STEP OF THE GRIEVANCE PROCEDURE.
HEAD NURSES MAKE RECOMMENDATIONS FOR HIRING, PROMOTIONS, WITHIN-GRADE
INCREASES, AWARDS AND COMPLETE PROFICIENCY REPORTS FOR EMPLOYEES
ASSIGNED TO THEIR UNITS. THEY EFFECTIVELY RECOMMEND THE RETENTION OR
DISCHARGE OF PROBATIONARY EMPLOYEES. THEY COUNSEL EMPLOYEES CONCERNING
RULES INFRACTIONS AND MAY RECOMMEND DISCIPLINARY ACTION TO HIGHER
AUTHORITY. HEAD NURSES ATTEND REGULARLY SCHEDULED MANAGEMENT MEETINGS,
SERVE AS MEMBERS OF HOSPITAL COMMITTEES AND ATTEND TRAINING SESSIONS.
IF A HEAD NURSE IS SICK OR ON VACATION, SHE IS NORMALLY REPLACED BY ONE
OF FOUR DESIGNATED CHARGE NURSES OR ASSISTANT HEAD NURSES. PROFICIENCY
REPORTS FOR HEAD NURSES INCLUDE CATEGORIES PERTAINING TO SUPERVISORY AND
ADMINISTRATIVE ABILITY.
THE FOREGOING EVIDENCE APPLIES TO ALL THE HEAD NURSES EXCEPT, AS
NOTED ABOVE, PHYLLIS GREEN. BASED UPON THIS TESTIMONY AS WELL AS THE
STIPULATION OF THE PARTIES, I FIND THAT HEAD NURSES POSSESS SUPERVISORY
AUTHORITY REQUIRING THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT
WITHIN THE MEANING OF SECTION 7103(A)(10). ACCORDINGLY, THE ONLY ISSUE
TO BE DECIDED IS WHETHER THE HEAD NURSES "DEVOTE A PREPONDERANCE OF
THEIR EMPLOYMENT TIME TO EXERCISING SUCH AUTHORITY." UNLIKE CASES
DECIDED UNDER EXECUTIVE ORDER 11691, IT IS NOT SUFFICIENT TO ESTABLISH
THAT INDIVIDUALS POSSESS AND EXERCISE SUPERVISORY AUTHORITY, /6/ BUT
RATHER, INQUIRY MUST ALSO BE DIRECTED TOWARDS DETERMINING WHETHER A
PREPONDERANCE OF THEIR EMPLOYMENT TIME IS SPENT IN THE ACTUAL EXERCISE
OF SUPERVISORY AUTHORITY. /7/
THE ACTIVITY'S ARGUMENT
THE ACTIVITY TAKES THE SAME POSITION AS THE PETITIONER AND THE
FOLLOWING EXCERPT FROM THE ACTIVITY'S BRIEF SETS FORTH ITS PRINCIPAL
ARGUMENTS IN FAVOR OF EXCLUDING THE HEAD NURSES AS SUPERVISORS.
IT MUST BE RECOGNIZED THAT ONE OF THE PRIMARY FUNCTIONS OF THE
VETERANS ADMINISTRATION IS
PATIENT CARE. THE PRIMARY FUNCTION OF NURSING SERVICE IS TO
EFFECTUATE PATIENT CARE ON A
DAILY BASIS. OBVIOUSLY, THE CARRYING OUT OF THE PATIENT CARE PROGRAM
IS DONE ON A WARD OR
UNIT. THE SUPERVISORY DUTIES OF A HEAD NURSE ARE INTER-RELATED WITH
THE TYPE OF PATIENT CARE
PERFORMED ON HER WARD OR UNIT. THE ACCOMPLISHMENT OF THE PATIENT
CARE PROGRAM DEPENDS, TO A
GREAT EXTENT, ON THE ABILITY OF THE HEAD NURSE TO SUPERVISE THE STAFF
ON THAT WARD OR
UNIT. THE DIRECTING AND ASSIGNMENT OF WORK TO EMPLOYEES PRESUPPOSES
A KNOWLEDGE OF THE
ABILITIES OF THOSE EMPLOYEES AS IT RELATES TO THE REQUIREMENTS OF THE
TASK TO BE PERFORMED IS
PATIENT CARE.
CONTACT WITH PATIENTS EITHER THROUGH OBSERVATION OR DIALOGUE, IS A
SUPERVISORY TOOL THE
HEAD NURSE UTILIZES TO MORE EFFECTIVELY DIRECT HER STAFF IN THE
ACCOMPLISHMENT OF THEIR
DUTIES. THE TEST OF WHETHER OR NOT HEAD NURSES MEET THE DEFINITION
OF SUPERVISOR UNDER THE
CHAPTER 71 OF TITLE 5 DOES NOT REST ON THE ABSENCE OF PATIENT CARE
INVOLVEMENT NOR DOES IT
REST ON A SIMPLE CALCULATION OF THE TIME SPENT ON ANY PARTICULAR DAY;
E.G., PERFORMING EVERY
SUPERVISORY FUNCTION LISTED IN SECTION 7103(A)(10), CHAPTER 71 OF
TITLE 5. INSTEAD,
CONSIDERATION MUST BE GIVEN TO THE, (SIC) PURPOSES OF THE HEAD NURSE
POSITION, THE
RESPONSIBILITIES INHERENT IN THE POSITION, THE AUTHORITY EXERCISED
AND THE ACCOUNTABILITY OF
THE HEAD NURSE FOR HER ACTIONS AND THAT OF HER STAFF. CONSIDERATION
MUST ALSO BE GIVEN TO THE
FACT THAT SUPERVISION IS NOT AN "ON AGAIN, OFF AGAIN" RESPONSIBILITY
BUT IS A CONTINUAL 24
HOURS A DAY RESPONSIBILITY WITH ALL ITS INHERENT SUPERVISORY
FUNCTIONS FULLY PRESENT ALL THE
TIME. THE FACT THAT THE DUTIES SUPERVISED ARE THOSE OF SUBORDINATES
DELIVERING CLINICAL CARE
DOES NOT DILUTE THE HEAD NURSES' ROLE AND RESPONSIBILITY FOR
PLANNING, SCHEDULING, ASSIGNING
AND DIRECTING THE WORK OF OTHERS, NOR DOES IT INDICATE THAT THE
PREPONDERANCE OF TIME IS NOT
SPENT IN CARRYING OUT THESE SUPERVISORY FUNCTIONS THAT ARE AN
INTEGRAL PART OF DELIVERING THIS
CLINICAL CARE TO THE VETERAN PATIENT.
THE INTERVENOR'S ARGUMENT
THE INTERVENOR'S FIRST CONTENTION IS THAT "PREPONDERANCE" MEANS A
MAJORITY OF ONE'S EMPLOYMENT TIME AND THAT CONGRESS INTENDED THE
AUTHORITY TO DETERMINE HOW MUCH EMPLOYMENT TIME IS SPENT BY NURSES
EXERCISING SUPERVISORY AUTHORITY. IN THIS REGARD, INTERVENOR STATES AS
FOLLOWS:
. . . "TO EXPAND THE TERM "EXERCISING" TO ENCOMPASS THE POSSIBILITY
OF "THINKING" ABOUT
DOING THESE ACTIVITIES CONSTITUTES AN EXTENSION OF THE TERM
"EXERCISING" BEYOND ANY REASONABLE
LIMIT. EXERCISING IS DOING.
THE ASSOCIATION CONTENDS THAT THERE ARE ACTIVITIES IN WHICH HEAD
NURSES ENGAGE WHICH DO NOT
COUNT TOWARD ESTABLISHING A "SUPERVISORY PREPONDERANCE." EXERCISING
SUPERVISORY AUTHORITY
MEANS DOING THOSE ACTS DEFINITELY SET FORTH IN THE STATUTE. WHEN A
HEAD NURSE IS INVOLVED IN
PROVIDING DIRECT PATIENT CARE OR THE CARE GIVING PROCESS, THAT NURSE
IS NOT EXERCISING ANY OF
THE AUTHORITY SET FORTH IN THE STATUTE. ALSO, WHEN THE NURSE IS
ENGAGED IN ACTIVITIES WHICH
ARE NEITHER DIRECT PATIENT CARE ACTIVITIES OF THE EXERCISE OF THE
SUPERVISORY AUTHORITY
DEFINED IN THE ACT SUCH AS CLERICAL FUNCTIONS, ATTENDANCE AT
NON-MANAGERIAL MEETINGS OR
IN-SERVICE PROGRAMS DESIGNED TO IMPROVE PATIENT CARE TECHNIQUES AND
ABILITIES, ETC.
IN ITS FINAL ARGUMENT, INTERVENOR CITES GENERAL DYNAMICS, 213 NLRB
124 AND ARGUES BY ANALOGY THAT A NURSE IS LIKE A PROFESSIONAL ENGINEER
WHOSE DIRECTION OF OTHERS AND WHOSE RESPONSIBILITY FOR QUALITY WORK IS
MERELY THAT OF PROVIDING "PROFESSIONAL DIRECTION AND COORDINATION
PRIMARILY FOR THE OTHER PROFESSIONAL EMPLOYEES." INTERVENOR'S EMPHASIS
HERE IS ON THE WORD "PROFESSIONAL." THUS, IT ARGUED THAT A HEAD NURSE
REALLY IS LIKE ANY OTHER REGISTERED NURSE WHO, REGARDLESS OF TITLE, IS A
PROFESSIONAL EMPLOYEE AND MUST AT SOME TIME OR ANOTHER PERFORM THE
FUNCTIONS OF MANAGING, OF INTERPRETING HOSPITAL POLICY, AND OF
INSTRUCTING THOSE WITH EQUAL OR LESSER QUALIFICATIONS. ACCORDINGLY, TO
THE EXTENT THAT A HEAD NURSE HAS RESPONSIBILITY FOR ENSURING THAT
PATIENTS RECEIVE QUALITY CARE, A STAFF NURSE UNDER HER SUPERVISION HAS
NO LESS RESPONSIBILITY AND, THEREFORE, THERE IS NO SIGNIFICANT
DIFFERENCE BETWEEN THE TWO, WITH RESPECT TO PATIENT CARE DELIVERY.
ACCORDING TO INTERVENOR, WITHIN THE CONTEXT OF TEAM NURSING, "WHATEVER
AUTHORITY HEAD NURSES HAVE OVER OTHER EMPLOYEES IS USUALLY NOT
SUPERVISORY, BUT RATHER A MANIFESTATION OF THEIR PROFESSIONAL ROLE IN
THE NURSING CARE OF PATIENTS."
DISCUSSION
ESSENTIALLY I AM IN AGREEMENT WITH THE ARGUMENTS MADE BY THE
ACTIVITY, WITH ONE EXCEPTION. THE FACT THAT A HEAD NURSE MAY HAVE
ROUND-THE-CLOCK "RESPONSIBILITY" FOR HER UNIT DOES NOT ELIMINATE THE
NECESSITY FOR CARRYING OUT THE STATUTORY MANDATE TO DETERMINE WHETHER A
PREPONDERANCE OF HER EMPLOYMENT TIME IS ENGAGED IN "EXERCISING"
SUPERVISORY AUTHORITY. THERE IS, I BELIEVE, CONGRESSIONAL AWARENESS
THAT SOME NURSES AND FIREFIGHTERS MAY HAVE SUPERVISORY AUTHORITY BUT
WHO, FOR THE MOST PART, ARE RANK-AND-FILE EMPLOYEES. THE QUESTION
REALLY IS WHETHER A HEAD NURSE IS PRIMARILY A SUPERVISOR OR PRIMARILY A
RANK-AND-FILE EMPLOYEE DURING A MAJORITY OF HER EMPLOYMENT TIME.
I REJECT INTERVENOR'S ARGUMENT THAT BECAUSE THE HEAD NURSE AND STAFF
NURSE ARE BOTH PROFESSIONALS, THE HEAD NURSE IS MERELY PROVIDING
PROFESSIONAL DIRECTION RATHER THAN SUPERVISION. I FIND ABSOLUTELY NO
MERIT IN THIS ATTEMPT TO MINIMIZE THE HEAD NURSE'S SUPERVISORY ROLE. ON
THE CONTRARY, IT WOULD BE EASIER TO FIND THAT THE STAFF NURSES ARE
REGULARLY ENGAGED IN SUPERVISORY DUTIES WHEN, IN THEIR ROLE AS TEAM
LEADERS, THEY ASSIGN AND DIRECT THE WORK OF TEAM MEMBERS. BY WAY OF
ILLUSTRATION LET'S TAKE THE EXAMPLE OF HEAD NURSE SMITH WHO TESTIFIED
THAT WHEN SHE ENTERS A PATIENT'S ROOM SHE LOOKS AT EVERYTHING CONCERNING
THE PATIENT. SHE EXAMINES THE IV FLUID TO DETERMINE WHETHER IT IS
INFILTRATED AND OPERATING AT THE PRESCRIBED RATE. SHE CHECKS WHETHER
THE PATIENT IS CLEAN AND DRY, AND WHETHER THE ENVIRONMENT IS SAFE. NOW,
THE INTERVENOR APPARENTLY WOULD ARGUE THAT IN SO DOING THE HEAD NURSE IS
PERFORMING LIKE THE TRUE PROFESSIONAL REGISTERED NURSE THAT SHE IS, AND
ESSENTIALLY DOING NOTHING DIFFERENT FROM THAT EXPECTED OF THE STAFF
NURSE. I WOULD REJECT SUCH ARGUMENT. THE POINT IS THAT THE STAFF NURSE
AND HEAD NURSE HAVE DIFFERENT RESPONSIBILITIES EVEN THOUGH THEY ARE BOTH
REGISTERED NURSES AND ARE BOTH PROFESSIONALS. THE STAFF NURSE ENTERS
THE ROOM BECAUSE HER PRIMARY STAFF RESPONSIBILITY IS THE IMPLEMENTATION
OF NURSING CARE TO A PARTICULAR PATIENT; THE HEAD NURSE ENTERS THE ROOM
BECAUSE SHE HAS OVERALL SUPERVISORY RESPONSIBILITY FOR THE
ADMINISTRATION OF NURSING ACTIVITIES IN THE ENTIRE UNIT. INDEED, THE
HEAD NURSE ENTERS THE ROOM IN A COMPLETELY DIFFERENT CAPACITY THAN THE
STAFF NURSE; SHE ENTERS AS A SUPERVISOR WHO IS RESPONSIBLE FOR ENSURING
THAT HER SUBORDINATE EMPLOYEES ARE PERFORMING THEIR PRIMARY DUTIES.
ACCORDINGLY, WHEN THE HEAD NURSE ENTERS A PATIENT'S ROOM IT IS FOR THE
PURPOSE OF REVIEWING AND EVALUATING THE WORK OF HER SUBORDINATES-- A
FUNCTION WHICH CLEARLY IS SUPERVISORY. IN THE EXAMPLE GIVEN, IT WOULD
BE ACCURATE TO STATE THAT HEAD NURSE SMITH IS ENGAGED IN DIRECT PATIENT
CARE OF THE SAME KIND DONE BY A STAFF NURSE, BUT IT WOULD BE GROSSLY
INACCURATE TO CHARACTERIZE HER ACTIVITIES AS NON-SUPERVISORY WHEN THE
VERY REASON FOR HER BEING THERE IS TO FULFILL HER SUPERVISORY
OBLIGATIONS AND RESPONSIBILITIES. THUS, HER MISSION IS DISTINCTLY
DIFFERENT FROM THAT OF A STAFF NURSE, NOTWITHSTANDING THE FACT HER
DIRECT OR INDIRECT INVOLVEMENT IN PATIENT CARE IS THE SAME OR SIMILAR TO
THAT OF THE STAFF NURSE. IT IS ALSO OBVIOUS THAT THE HEAD NURSE'S
ATTENDANCE AT CERTAIN ADMINISTRATIVE MEETINGS AND TRAINING SESSIONS IS
IN HER CAPACITY AS A SUPERVISOR.
THROUGHOUT THE HEARING, AS WELL AS IN ITS BRIEF, THE INTERVENOR USES
THE PHRASE "DIRECT PATIENT CARE" TO DESCRIBE WHAT IT REGARDS AS A
NONSUPERVISORY FUNCTION. THIS VIEW SEEMS TO BE CONSISTENT WITH ITS
POSITION THAT HEAD NURSES ARE PROFESSIONALS AND WHEN THEY HAVE CONTACT
WITH PATIENTS THEY ARE ESSENTIALLY LIKE STAFF NURSES. IT IS CLEAR FROM
THE TESTIMONY, HOWEVER, THAT WHEN HEAD NURSES USED THE PHRASE DIRECT
PATIENT CARE THEY WERE REFERRING TO (1) "HANDS ON" CARE OF THEIR OWN
PATIENTS, (2) "HANDS ON" CARE OF SOMEONE ELSE'S PATIENTS, (3) ANY VISITS
TO PATIENTS' ROOMS, AND (4) MAKING THE ROUNDS WITH DOCTORS OR ON THEIR
OWN. NOT ALL OF THESE FUNCTIONS ARE NONSUPERVISORY OR ARE REGARDED AS
SUCH BY THE HEAD NURSE THEMSELVES.
"HANDS ON" PATIENT CARE IS A NARROW TERM INTENDED TO DESCRIBE
PERSONALLY ADMINISTERING TO THE PATIENTS' NEEDS AND PERFORMING THE
DUTIES NORMALLY PERFORMED BY A STAFF NURSE, LPN, OR NURSING ASSISTANT,
SUCH AS TURNING THE PATIENT, GIVING MEDICATION, REPLENISHING THE WATER
SUPPLY, TAKING TEMPERATURE, CHECKING THE PULSE, RECORDING BLOOD PRESSURE
AND ASSISTING A PATIENT TO WALK TO A LAVATORY OR FOR EXERCISE. TO THE
EXTENT THAT HOSPITAL ADMINISTRATION EXPECTS A HEAD NURSE, AS PART OF HER
ASSIGNED DUTIES, TO REGULARLY BE ENGAGED IN "HANDS ON" PATIENT CARE, IT
IS MY OPINION THAT TIME SPENT PERFORMING SUCH DUTIES IS TIME SPENT IN A
NONSUPERVISORY CAPACITY. HOWEVER, WHEN A HEAD NURSE FINDS IT NECESSARY
IN EMERGENCY SITUATIONS TO SUBSTITUTE ON AN INTERMITTENT BASIS FOR A
STAFF NURSE, I WOULD FIND THAT DURING SUCH PERIODS SHE IS PERFORMING
DOUBLE DUTY, BOTH SUPERVISORY AND NONSUPERVISORY. IT IS CLEAR FROM THE
TESTIMONY THAT HEAD NURSES CONTINUE TO EXERCISE THEIR VARIOUS
SUPERVISORY DUTIES EVEN WHILE THEY MAY HAVE PATIENTS TEMPORARILY
ASSIGNED TO THEMSELVES. THIS IS NOT A SITUATION WHERE THEY ARE REPLACED
AS SUPERVISORS WHILE THEY ARE ENGAGED IN PERSONALLY ADMINISTERING
PATIENT CARE.
I ALSO FIND THAT VISITING PATIENTS' ROOMS OR MAKING "ROUNDS" IS
DIRECT PATIENT CARE OF A SUPERVISORY NATURE AND THAT THIS IS DIFFERENT
FROM "HANDS ON" CARE DESCRIBED ABOVE. THE POSITION DESCRIPTION FOR THE
HEAD NURSE STATES THAT SHE IS "ACCOUNTABLE TO AND FUNCTIONS UNDER THE
CLINICAL CARE COORDINATOR AND ASSUMES THE RESPONSIBILITY FOR THE
ADMINISTRATION OF NURSING ACTIVITIES ON THE UNIT; PLANS, DIRECTS,
COORDINATES, ASSESSES, EVALUATES AND IMPLEMENTS PROGRAMS AND ACTIVITIES
OF A DESIGNATED WARD NURSING UNIT." OF ALL THE ACTION VERBS SET FORTH IN
SECTION 7103(A)(10) OF THE STATUTE, THE MOST IMPORTANT IN TERMS OF A
HEAD NURSE POSITION IS THE WORD "DIRECT." AS NOTED IN THE POSITION
DESCRIPTION A PRINCIPAL RESPONSIBILITY OF A HEAD NURSE IS THAT OF
DIRECTING THE EMPLOYEES UNDER HER SUPERVISION IN ORDER TO ENSURE THAT
THEY CARRY OUT THEIR ASSIGNED TASKS OF PROVIDING QUALITY PATIENT CARE.
THE BEST WAY A CONSCIENTIOUS HEAD NURSE CAN ACCOMPLISH HER OWN MISSION
OF DIRECTING EMPLOYEES IS TO BE WHERE THOSE EMPLOYEES ARE WORKING,
NAMELY, IN ROOMS WHERE PATIENTS ARE SITUATED AND THROUGHOUT THE WARD.
IT IS ONLY BY VISITING A PATIENT'S ROOM THAT THE HEAD NURSE CAN ASSESS A
PATIENT'S CHANGING NEEDS AND EVALUATE THE WORK OF HER SUBORDINATES IN
CARRYING OUT THEIR ASSIGNED DUTIES. INDEED, AS ONE WITNESS NOTED, IT IS
THE PATIENTS THEMSELVES WHO ARE A SOURCE OF COMPLAINTS ABOUT ALLEGED
DERELICTION OF DUTY BY THOSE RESPONSIBLE FOR IMMEDIATE "HANDS ON"
PATIENT CARE. THIS IS NOT TO SUGGEST THAT THE SOLE PURPOSE OF VISITING
PATIENTS IS TO CHECK UP ON SUBORDINATES, AS SOME TESTIFIED, BUT I
SUGGEST THAT THIS IS A LEGITIMATE FUNCTION ENTIRELY CONSISTENT WITH THE
HEAD NURSE'S DUTY TO IDENTIFY AND RESOLVE PROBLEMS AS THEY RELATE TO
PATIENTS AND STAFF. MOREOVER, I WOULD INCLUDE IN THE PHRASE "DIRECTING
EMPLOYEES" ANY TIME SPENT BY THE HEAD NURSE ACTING AS A ROLE MODEL IN
TEACHING OR DEMONSTRATING PROPER PROCEDURES AND TECHNIQUES TO HER
SUBORDINATES. FINALLY, I WOULD NOTE THAT THE CULMINATION OF A HEAD
NURSE'S ACTIVITIES IN DIRECTING, TEACHING, AND OBSERVING HER
SUBORDINATES IS THE ABILITY TO INTELLIGENTLY AND KNOWLEDGEABLY EVALUATE
THEIR PERFORMANCE AND PROMOTION POTENTIAL. THUS, THE HEAD NURSE WHO IS
IN REGULAR CONTACT WITH HER SUBORDINATES AND THEIR PATIENTS IS A BETTER
INFORMED PERSON WHEN THE TIMES COMES TO COMPLETE THE ANNUAL PROFICIENCY
REPORT OR THE PERIODIC REPORTS REQUIRED WITH RESPECT TO PROBATIONARY
EMPLOYEES.
FINALLY, I AM CONSTRAINED TO ADDRESS INTERVENOR'S ARGUMENT THAT WHEN
A SUPERVISOR IS "THINKING" ABOUT HER SUPERVISORY RESPONSIBILITIES, THE
TIME SPENT SHOULD BE PLACED IN THE NONSUPERVISORY CATEGORY ON THE THEORY
THAT THINKING IS NOT "DOING." FRANKLY, THE NOTION THAT "THINKING" IS
SOME SORT OF MENTAL DOWNTIME STRIKES ME AS TOO FAR FETCHED TO DESERVE
ANY SERIOUS OR EXTENDED DISCUSSION. I REJECT THIS CONTENTION.
HEAD NURSE - OPERATING AND RECOVERY ROOM
LIKE OTHER HEAD NURSES, CAROL BORDEAUX ASSIGNS WORK, DIRECTS AND
COUNSELS EMPLOYEES, PREPARES PROFICIENCY REPORTS AND PERFORMANCE
EVALUATIONS, PREPARES WORK SCHEDULES AND TIME SHEETS, AND RECOMMENDS
AWARDS, PROMOTIONS AND SATISFACTORY COMPLETION OF A PROBATIONARY PERIOD.
UNLIKE OTHER HEAD NURSES, SHE SUPERVISES A UNIT WHICH IS NOT CLASSIFIED
AS A WARD AND HAS SIGNIFICANTLY DIFFERENT WORKING CONDITIONS EVEN THOUGH
THE PATIENTS, WHILE IN THE UNIT, REQUIRE TOTAL PATIENT CARE. THE NUMBER
OF PATIENTS ASSIGNED TO A WARD DEPENDS UPON THE NUMBER OF AVAILABLE BEDS
AND ROOMS. THE NUMBER OF PATIENTS IN OPERATING AND RECOVERY ROOM
DEPENDS UPON THE NUMBER OF SCHEDULED AND UNSCHEDULED OPERATIONS. A
PATIENT TYPICALLY ARRIVES IN THE MORNING, HAS AN OPERATION, IS MOVED TO
THE RECOVERY ROOM AND, BEFORE THE DAY IS OVER, IS ASSIGNED OR RETURNED
TO AN APPROPRIATE WARD. THUS, QUICK TURNOVER OF PATIENTS IS A COMMON
CHARACTERISTIC OF THE OPERATING AND RECOVERY ROOM. THE NUMBER OF
PATIENTS MAY AVERAGE 3 OR 4 ON A DAILY BASIS, WITH A PEAK OF 12. ON A
WEEKLY BASIS, 30 PATIENTS IS AVERAGE.
WHEN THE HEAD NURSE BEGINS HER DAY SHIFT, THE FIRST THING SHE DOES IS
TO CHECK THE TIME SHEET TO ASCERTAIN WHICH EMPLOYEES ARE PRESENT, CHECK
THE OPERATING ROOM SCHEDULES TO SEE IF THERE HAVE BEEN ANY ADDITIONS OR
CANCELLATIONS, CHECK FOR ANY NOTES OR INSTRUCTIONS WHICH MAY HAVE BEEN
LEFT FOR HER, AND CONDUCT A MEETING WITH HER STAFF. SHE THEN CHECKS THE
ASSIGNMENT SHEET TO ENSURE THAT ALL NECESSARY TASKS HAVE BEEN ASSIGNED
TO SPECIFIC PERSONNEL, INCLUDING CHECKING THE SPORES IN THE AUTOCLAVE
FOR INFECTION CONTROL, CHECKING ROOM TEMPERATURE AND CLEANLINESS, AND
CHECKING THE ELECTRICAL EQUIPMENT. THE HEAD NURSE IS RESPONSIBLE FOR
ENSURING THAT ALL THESE TASKS ARE PERFORMED. UNLIKE WARD HEAD NURSES
WHO SUPERVISE AN AVERAGE OF 16 OR 17 EMPLOYEES ON THREE SHIFTS, THE
OPERATING AND RECOVERY ROOM HEAD NURSE HAS ONLY 3 STAFF NURSES AND 3
OPERATING ROOM TECHNICIANS, ALL OF WHOM WORK UNDER HER ON THE DAY SHIFT.
IN THE NORMAL OPERATION OF A HOSPITAL IT APPARENTLY IS NOT UNUSUAL TO
SOMETIMES HAVE PERSONNEL SHORTAGES, WHETHER DUE TO BUDGETARY REASONS,
TURNOVER OR UNEXPECTED ABSENTEEISM. ON SUCH OCCASIONS, IT IS THE WARDS
WHICH ARE MOST LIKELY TO SUFFER FROM SUCH SHORTAGES RATHER THAN THE
OPERATING AND RECOVERY ROOM WHERE THE VERY NATURE OF THE WORK REQUIRES
THAT IT BE GIVEN HIGH PRIORITY TO ENSURE PROPER AND ADEQUATE STAFFING AT
ALL TIMES IN RELATION TO ITS SCHEDULED NEEDS. THUS, THE OPERATING AND
RECOVERY ROOM HEAD NURSE, UNLIKE HER COUNTERPARTS ON THE WARDS, IS LESS
APT TO BE INVOLVED IN "HANDS ON" PATIENT CARE BECAUSE THE NEED ARISES
LESS OFTEN. THE CONCLUSION IS SUBSTANTIATED BY HEAD NURSE CAROL
BORDEAUX WHO CONSISTENTLY TESTIFIED THAT, EXCEPT FOR A FEW EMERGENCY
SITUATIONS, SHE SELDOM FOUND IT NECESSARY TO BE ENGAGED IN DIRECT
PATIENT CARE OF THE TYPE NORMALLY DELEGATED TO A STAFF NURSE. BUT EVEN
WHEN BORDEAUX FILLS IN FOR A STAFF NURSE SHE IS CONCURRENTLY RESPONSIBLE
FOR DIRECTING HER UNIT.
UNLIKE WARD HEAD NURSES WHO MAKE ROUNDS VISITING PATIENT ROOMS 3 OR 4
TIMES PER DAY, THE OPERATING AND RECOVERY ROOM HEAD NURSE IS IN AND OUT
OF THESE ROOMS CONSTANTLY, USUALLY 6 HOURS PER DAY, CHECKING THE
PATIENTS, CHECKING THE ROOM, CHECKING FOR BREAKS IN CONTAMINATION AND
CHECKING FOR ELECTRICAL AND HAZARD PROBLEMS REQUIRING IMMEDIATE
CORRECTION, AND INSTRUCTING EMPLOYEES BY EXPLANATION OR GIVING EXAMPLE
AS A ROLE MODEL. THE HEAD NURSE SELDOM TALKS TO PATIENTS BECAUSE THEY
NORMALLY ARE ASLEEP, AS A RESULT OF A GENERAL ANESTHETIC. ACCORDING TO
BORDEAUX, THE PURPOSE OF HER VISITS IS NOT ONLY TO CHECK CONDITIONS, BUT
TO EVALUATE THE NURSES AND NURSING ASSISTANTS UNDER HER SUPERVISION. IF
ANY EMPLOYEE IS SICK OR HAS A CUT ON HIS OR HER HAND AND IS UNABLE TO
SCRUB, THE HEAD NURSE MUST PROMPTLY ARRANGE FOR A REPLACEMENT. BORDEAUX
TESTIFIED THAT SHE NEVER SCRUBS. OF ALL THE HEAD NURSES WHO TESTIFIED,
BORDEAUX SPENDS THE LEAST AMOUNT OF TIME IN "HANDS ON" PATIENT CARE.
DURING THE COURSE OF THE DAY, THE HEAD NURSE ALSO IS BUSY ORDERING
AND RECEIVING SUPPLIES, AND DISCUSSING NEW PRODUCTS WITH SALESMEN. IT
IS HER RESPONSIBILITY TO SUBMIT PRIORITIES TO THE CHIEF OF SURGERY WITH
RESPECT TO ORDERING SUPPLIES WITHIN BUDGETARY LIMITATIONS. BORDEAUX
ESTIMATED THAT 80% OF HER TIME WAS SPENT IN THE EXERCISE OF SUPERVISORY
FUNCTIONS AND HER ENTIRE TESTIMONY IS CONSISTENT WITH THIS ESTIMATE.
BASED UPON THE RECORD, AND THE CREDITED TESTIMONY OF BORDEAUX, I FIND
THAT THE HEAD NURSE OF THE OPERATING AND RECOVERY ROOM PERFORMS
SUPERVISORY DUTIES INVOLVING THE CONSISTENT EXERCISE OF INDEPENDENT
JUDGMENT, AND THAT SHE DEVOTES A PREPONDERANCE OF HER EMPLOYMENT TIME TO
EXERCISING SUCH AUTHORITY. ACCORDINGLY, I FIND THAT SHE IS A SUPERVISOR
WITHIN THE MEANING OF SECTION 7103(A)(10) AND RECOMMEND THAT THE
CHALLENGE TO HER BALLOT BE SUSTAINED.
HEAD NURSES-- WARDS
AS NOTED ABOVE, THERE IS NO DISPUTE THAT THESE HEAD NURSES POSSESS
AND EXERCISE SUPERVISORY AUTHORITY. EACH OF THE 9 HEAD NURSES IN THIS
CATEGORY WERE ASKED TO ESTIMATE THE PERCENT OF TIME SPENT IN EXERCISING
SUPERVISORY DUTIES, BUT THEIR RESPONSES INDICATED THAT THEY HAD
DIFFERING PERCEPTIONS AS TO WHAT DID OR DID NOT CONSTITUTE SUPERVISORY
DUTIES. THEREFORE, EACH WITNESS WAS EXAMINED AND CROSS-EXAMINED AT
LENGTH IN ORDER TO GAIN INSIGHT INTO THEIR PRECISE JOB DUTIES ON ANY
GIVEN PERIOD OF TIME (DAY, WEEK, MONTH, OR YEAR), WITH A VIEW TOWARDS
DETERMINING WHETHER ANY OR ALL OF THEM SPENT A PREPONDERANCE OF THEIR
EMPLOYMENT TIME EXERCISING SUPERVISORY FUNCTIONS.
ALL THE WITNESSES TESTIFIED IN A FORTHRIGHT MANNER AND PROVIDED
EVIDENCE HELPFUL IN MAKING A COMPLETE RECORD. EACH APPEARED TO BE
EXTREMELY CAPABLE, VERY CONSCIENTIOUS, AND A CREDIT TO THE NURSING
PROFESSION. I CREDIT THE TESTIMONY OF ALL THE HEAD NURSES, AS WELL AS
THAT OF THE CHIEF OF NURSING.
THE FOLLOWING HEAD NURSES TESTIFIED THAT IN EXCESS OF 70 PERCENT OF
THEIR TIME WAS ENGAGED IN SUPERVISORY DUTIES: SMITH, REICH, LUTZ,
EVERHART, AND MIMS. SUCH ESTIMATES WERE CONSISTENT WITH THE REST OF
THEIR TESTIMONY WHICH DESCRIBED WITH PARTICULARITY HOW THEY ARRIVED AT
THESE ESTIMATES. TOWNSEND ESTIMATED 60 PERCENT SUPERVISORY (TR. 293)
AND THIS COULD HAVE BEEN HIGHER HAD IT INCLUDED MAKING THE ROUNDS.
THREE OTHER WITNESSES, CMAYLO, GWYNN, AND WHITAKER MAKE ESTIMATES WHICH,
IF ACCEPTED, WOULD REQUIRE A FINDING THAT THEY SPENT LESS THAN A
MAJORITY OF THEIR TIME IN SUPERVISORY DUTIES. THEIR ESTIMATES ARE NOT
ACCEPTED FOR THE REASONS STATED BELOW.
MARY MAYHER CMAYLO TESTIFIED THAT ON THOSE OCCASIONS WHEN SHE HAD HER
OWN PATIENT CASELOAD AND, IN ADDITION, HELPED OTHER NURSES IN DIRECT
PATIENT CARE, SHE SPENT A TOTAL OF 60 PERCENT OF HER TIME IN DIRECT
PATIENT CARE. BUT IT IS CLEAR THAT THIS WAS NOT AN EVERYDAY OCCURRENCE
AND, IN ANY EVENT, HER PERCEPTION THAT ALL DIRECT PATIENT CARE IS
NON-SUPERVISORY IS INCORRECT. MOREOVER, IT IS MY VIEW THAT TIME SPENT
BY A HEAD NURSE PERFORMING REGULAR STAFF NURSE DUTIES IN AN EMERGENCY OR
TEMPORARY PERSONNEL SHORTAGE DOES NOT DETRACT FROM THEIR PRIMARY ROLE
AS
A SUPERVISOR. CMAYLO TESTIFIED, FOR EXAMPLE, THAT IT WAS NOT UNUSUAL
FOR HER, IN ALLOCATING WORK TO SUBORDINATES, TO PRIMARILY ASSIST A
DOCTOR WITH SOME PROCEDURE RATHER THAN TIE UP A STAFF NURSE FOR AN UNDUE
LENGTH OF TIME. IN MY OPINION, SUCH ACTIVITY BY A RESPONSIBLE AND
DEDICATED HEAD NURSE SHOULD BE PERMITTED WITHOUT FEAR OF LOSING ONE'S
SUPERVISORY STATUS. ANY INTERPRETATION OF SECTION 7103(A)(10) WHICH
WOULD DISCOURAGE A HEAD NURSE FROM PITCHING IN TO ASSIST SUBORDINATES IN
ADMINISTERING PATIENT CARE WOULD BE A SAID COMMENTARY ON THE EFFICACY OF
THE STATUTE AND WOULD BE COUNTERPRODUCTIVE TO THE NURSING PROFESSION. I
FIND AND CONCLUDE THAT MARY MAYHER CMAYLO SPENDS A PREPONDERANCE OF HER
EMPLOYMENT TIME EXERCISING SUPERVISORY AUTHORITY.
MARGARET GWYNN DID NOT VOTE IN THE ELECTION AND, THEREFORE, HER
STATUS IS NOT IN ISSUE AS A CHALLENGED VOTER. HER TESTIMONY, HOWEVER,
IS SIGNIFICANT IN TERMS OF THE UNIT PLACEMENT OF HERSELF AND HEAD NURSES
GENERALLY. HER ESTIMATE OF THE TIME SPENT IN NONSUPERVISORY DUTIES
INCLUDED TIME SPENT IN "DIRECT PATIENT CARE OR THE CARE GIVING PROCESS"
(TR. 125) WHICH SHE LATER EXPLAINED TO INCLUDE MAKING ROUNDS TO OBSERVE
PATIENTS OTHER THAN THOSE SHE MAY ASSIGN TO HERSELF. SINCE HER TIME
ESTIMATES INCLUDE DUTIES I HAVE FOUND TO BE SUPERVISORY, HER ESTIMATES
MUST BE DISCOUNTED ACCORDINGLY. I FIND AND CONCLUDE THAT SHE SPENDS A
PREPONDERANCE OF HER EMPLOYMENT TIME EXERCISING SUPERVISORY AUTHORITY.
FLORA WHITAKER SPENDS MORE TIME IN DIRECT CARE TO PATIENTS THAN ANY
OTHER HEAD NURSE WHO TESTIFIED. SHE VOLUNTARILY MAKES THESE ASSIGNMENTS
TO HERSELF BECAUSE SHE FEELS THAT BETTER PATIENT CARE IS PROVIDED WHEN
SHE IS ABLE TO TAKE SOME OF THE EASIER PATIENTS AND LIGHTEN THE WORKLOAD
OF HER SUBORDINATES. THERE IS NO EVIDENCE THAT THESE ASSIGNMENTS ARE
MADE AT THE DIRECTION OF HIGHER MANAGEMENT OR THAT WHITAKER IS EXPECTED
TO BE SO ENGAGED ON A REGULAR BASIS. WHITAKER SPENDS 2 HOURS PER DAY,
OR 25 PERCENT OF HER TIME, WITH APPROXIMATELY 4 OR 5 PATIENTS. SHE DOES
THIS 3 OR 4 DAYS PER WEEK. THE REMAINDER OF HER TIME IS SPENT IN DIRECT
PATIENT CARE IN HER SUPERVISORY CAPACITY, PLUS THE SAME SUPERVISORY AND
ADMINISTRATIVE DUTIES PERFORMED BY OTHER HEAD NURSES. SHE SPENDS 2
HOURS PER DAY MAKING ROUNDS WITH THE DOCTORS AND 3 HOURS MAKING ROUNDS
GENERALLY (TR. 177, 178). ONE REASON SHE HAS THE TIME AVAILABLE TO
DEVOTE TO 5 PATIENTS IS THAT SHE MAKES THE TIME AVAILABLE BY BRINGING
SUPERVISORY WORK HOME; I.E. PREPARATION OF PROFICIENCY REPORTS AND TIME
SCHEDULES. I FIND AND CONCLUDE THAT WHITAKER'S "EMPLOYMENT TIME" IS THE
8 HOUR DAY SHIFT WHICH SHE WORKS AND FOR WHICH SHE IS BEING COMPENSATED.
SHE SPENDS A PREPONDERANCE OF THIS EMPLOYMENT TIME EXERCISING
SUPERVISORY AUTHORITY. I FIND IT UNNECESSARY TO DECIDE WHETHER HER
"EMPLOYMENT TIME" MAY BE LENGTHENED BY THE TIME SPENT IN PERFORMING
SUPERVISORY DUTIES AT HOME.
IN SUMMARY, I FIND THAT THE WARD HEAD NURSES POSSESS AND EXERCISE
SUPERVISORY DUTIES AS SET FORTH IN SECTION 7103(A)(10) A PREPONDERANCE
OF THEIR EMPLOYMENT TIME AND, ACCORDINGLY, ARE EXCLUDED FROM THE UNIT AS
SUPERVISORS.
RECOMMENDATIONS
1. THE CHALLENGES TO THE BALLOTS OF THE FOLLOWING VOTERS ARE
SUSTAINED AND IT IS DIRECTED THAT THE BALLOTS NOT BE OPENED: CAROL B.
BORDEAUX, JANICE EVERHART, ODREEN R. LUTZ, MARY L. MAYHER, MARGARET
MIMS, BARBARA W. REICH, RUTH M. SMITH, SHIRLEY M. TOWNSEND, AND FLORA T.
WHITAKER.
2. THE PETITIONER'S WITHDRAWAL OF ITS CHALLENGE TO THE BALLOT OF
PHYLLIS GREEN IS HEREBY APPROVED BUT INASMUCH AS HER VOTE IS NOT
DETERMINATIVE OF THE ELECTION RESULTS, AND IN ORDER TO PRESERVE THE
SECRECY OF HER BALLOT IN THESE CIRCUMSTANCES, IT IS DIRECTED THAT HER
BALLOT NOT BE OPENED.
3. THE REGIONAL DIRECTOR SHALL ISSUE A REVISED TALLY OF BALLOTS AND
CERTIFICATION OF REPRESENTATIVE.
FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
--------------- FOOTNOTES: ---------------
/1/ HE FURTHER RECOMMENDED THAT, INASMUCH AS THE BALLOT OF A TENTH
VOTER, PHYLLIS GREEN, COULD NOT BE DETERMINATIVE OF THE ELECTION
RESULTS, PRESERVATION OF THE SECRECY OF THE BALLOT DICTATED THAT THE
BALLOT REMAIN UNOPENED AND UNCOUNTED DESPITE THE WITHDRAWAL OF THE
CHALLENGE TO IT. NO EXCEPTIONS WERE FILED TO THIS RECOMMENDATION.
/2/ SECTION 7103(A)(10) PROVIDES:
(10) "SUPERVISOR" MEANS AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING
AUTHORITY IN THE
INTEREST OF THE AGENCY TO HIRE, DIRECT, ASSIGN, PROMOTE, REWARD,
TRANSFER, FURLOUGH, LAYOFF,
RECALL, SUSPEND, DISCIPLINE, OR REMOVE EMPLOYEES, TO ADJUST THEIR
GRIEVANCES, OR TO
EFFECTIVELY RECOMMEND SUCH ACTION, IF THE EXERCISE OF THE AUTHORITY
IS NOT MERELY ROUTINE OR
CLERICAL IN NATURE BUT REQUIRES THE CONSISTENT EXERCISE OF
INDEPENDENT JUDGMENT, EXCEPT THAT,
WITH RESPECT TO ANY UNIT WHICH INCLUDES FIREFIGHTERS OR NURSES, THE
TERM "SUPERVISOR" INCLUDES
ONLY THOSE INDIVIDUALS WHO DEVOTE A PREPONDERANCE OF THEIR EMPLOYMENT
TIME TO EXERCISING SUCH
AUTHORITY(.)
/3/ IN VIEW OF THE ABOVE CONCLUSION, IT IS UNNECESSARY TO RESOLVE THE
QUESTION OF MARY MAYHER CMAYLO'S ELIGIBILITY OR TO PASS UPON THE JUDGE'S
RATIONALE IN REACHING A DETERMINATION WITH REGARD TO THAT EMPLOYEE.
/5/ IF ALL TEN (10) CHALLENGED VOTERS ARE DETERMINED TO BE ELIGIBLE
TO VOTE, AND IF-- UPON OPENING THEIR BALLOTS-- ALL TEN VOTERS SELECT THE
INTERVENOR, THEN THIS WOULD RESULT IN A TIE VOTE WITH THE PETITIONER AND
THUS REQUIRE A RUNOFF ELECTION WITH ONLY TWO CHOICES ON THE BALLOT: THE
PETITIONER OR THE INTERVENOR.
/5/ ONLY 10 OF THE 12 HEAD NURSES VOTED IN THE ELECTION, THUS
ACCOUNTING FOR 10 CHALLENGED BALLOTS.
/6/ DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, PUBLIC HEALTH
SERVICE HOSPITAL, 7 A/SLMR 765; VETERANS ADMINISTRATION HOSPITAL,
BUFFALO, NEW YORK, 1 A/SLMR 448; VETERANS ADMINISTRATION HOSPITAL,
AUGUSTA, GEORGIA, 1 A/SLMR 42.
/7/ VETERANS ADMINISTRATION HOSPITAL, TUCSON, ARIZONA, 4 FLRA NO.
21.