08:0651(115)RO - VA Medical Center, Fayetteville, NC and AFGE and North Carolina Nurses Association -- 1982 FLRAdec RP



[ 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