United States Department of the Army, Womack Army Medical Center, Fort Bragg, North Carolina (Activity) and American Federation of Government Employees, Local 1770, AFL-CIO (Petitioner/Union)

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63 FLRA No. 10







November 13, 2008


Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on an application for review filed by the Activity under § 2422.31 of the Authority's Regulations. [n1]  The Petitioner filed an opposition to the Activity's application for review.

      As relevant here, the petitioner sought clarification of the bargaining unit status of the Clinical/Infection Control Nurse position (CIC Nurse) and the Regional Director (RD) determined that the position should be included in the bargaining unit because the incumbent is not a supervisor within the meaning of § 7103(a)(10) of the Federal Service Labor-Management Relations Statute (the Statute).  [n2]  For the reasons that follow, we deny the application for review.

II.     Background and RD's Decision

A.     Background

      As relevant here, the Petitioner filed a petition seeking clarification of the CIC Nurse position, of which there is one incumbent who is a Registered Nurse (RN). The CIC Nurse's primary role is to prevent the spread of infection at the Activity. RD's Decision at 4. She accomplishes this by investigating potential or actual infection hazards, including deviations in the expected hospital-acquired infection rates. Id. The CIC Nurse does not start intravenous devices (IVs), give injections, administer medication, or draw blood. She does, however, visit patients to look at their wounds in order to ensure that other nurses are following infection control procedures. Id.

      At the time of the hearing, the CIC Nurse was the only employee in the Infection Control Branch. The CIC Nurse had an active duty military assistant until June 2007. Id. at 5. The day before the hearing, a vacancy announcement for a civilian assistant to the CIC Nurse was posted. However, there is no evidence that the position has been filled. Id.; Application for Review at 4.

      The CIC Nurse serves as the Chair of the Infection Control Committee Functional Management Team at the Activity. The committee, through its chair, has authority to initiate appropriate infection control measures. Id. This is accomplished through the issuance of Medical Center (MEDCEN) memos, which are signed by the Activity's Chief of Staff and are applicable to all Activity personnel, and through general infection control guidelines. The CIC Nurse is involved in the initial drafting of both the MEDCEN memos and the general [ v63 p23 ] infection control guidelines, but the documents receive multiple levels of review and comment prior to issuance. Id. at 6-7.

      The CIC Nurse also represents the Department of Nursing on a committee to prepare for implementation of the National Security Personnel System (NSPS) at the Activity. Further, the CIC Nurse serves on the Activity's pay pool panel, the purpose of which is to validate the ratings given to 125 "non-bargaining unit individuals (supervisors)" who are under NSPS. RD's Decision at 9. As an ad hoc member of the nursing executive committee, the CIC Nurse has also served as a member of a peer review group that makes recommendations regarding whether the standard of care has been met and decides whether nurses should be reported to their State Boards. Id. at 10.

      In addition to her committee duties, the CIC Nurse spends one to two hours daily making rounds at the Activity. While making her rounds, the CIC Nurse observes nurses and other employees to ensure that infection control policies are being followed and makes on-the-spot corrections when she observes something improper. Further, when any construction or renovation occurs at the Activity, the CIC Nurse reviews the blueprints and provides a risk-assessment of infection control requirements. In addition, she ensures that steps are taken to prevent mold, fungus, or dust from entering the patient areas, and monitors any private contractor's compliance with the Activity's requirements.

B.     RD's Decision

      As relevant here, the RD determined that the CIC Nurse is not a supervisor within the meaning of § 7103(a)(10) of the Statute.

      The RD rejected the Activity's claim that the special nurse supervisor rule found in § 7103(a)(10), which provides that, to be deemed supervisors, nurses must "devote a preponderance of their employment time" to exercising supervisory authority, does not apply to the CIC Nurse. 5 U.S.C. § 7103(a)(10). In this regard, the RD stated that, although the Statute does not define "nurse," there is sufficient evidence to conclude that the CIC Nurse is a nurse within the meaning of the Statute. In support, the RD found that the CIC Nurse works at a medical center that employs a wide variety of nurses to care for its patients. Further, the RD found that many of these nurses, including the CIC Nurse, have a specialty. In addition, the RD found that the CIC Nurse position requires the incumbent to be an RN, the position is classified as a nurse, and the incumbent must "have and maintain active, current registration as a professional nurse in a State" in order to perform her duties. RD's Decision at 18. In particular, the RD determined that being an RN "is an absolute requirement of her position." Id. Accordingly, the RD found that, under these circumstances, the special nurse supervisor rule in § 7103(a)(10) applies.

      Having determined that the CIC Nurse is a "nurse" within the meaning of the Statute, the RD considered whether the CIC Nurse spends a preponderance of her employment time as a supervisor. In this connection, the RD noted that the Authority has stated: "There [are] . . . some nurses and firefighters [who] 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." Id. (quoting United States Dep't of the Army, Parks Reserve Training Ctr., Dublin, Cal., 61 FLRA 537, 541 (2006)). In determining whether a position is excluded, the RD stated that the focus must be on the type and nature of the work performed. See RD's Decision at 19 (citing SSA, Balt., Md., 59 FLRA 137, 145 (2003)).

      Applying these standards, the RD determined that the CIC Nurse is not responsible for the direct supervision of any group of nurses, but rather, that she spends almost all of her employment time on infection control issues. Id. at 19. In this connection, the RD rejected the Agency's assertion that some of the CIC Nurse's time spent making rounds should be considered as supervisory because she can make on-the-spot corrections to other employees. Specifically, the RD found that "[n]o evidence was presented to show that on-the-spot corrections generally result in discipline." Id. In this regard, the RD cited the CIC Nurse's testimony that she has addressed an on-the-spot correction to a bargaining unit employee's head nurse only once or twice and that neither of those incidents resulted in discipline to the bargaining unit employee.

      The RD also considered, and rejected, the time that the CIC Nurse spends on her committee assignments as evidence that she performs supervisory duties. In this regard, the RD found that the pay pool panel is only in session two weeks per year and that its decisions "only affect[] supervisors[.]" Id. Similarly, the RD found that the CIC Nurse's work on peer review, determining whether nurses have met "the standard of care," is also not enough to establish that she performs supervisory duties. Id.

      Further, the RD rejected the Agency's reliance on the CIC Nurse's eventual direction of an assistant, when  [ v63 p24 ] hired, as evidence of her supervisory status. In this regard, the RD stated that unit determinations must reflect the conditions of employment at the time of the hearing. The RD found that the CIC Nurse has been without an assistant since June 2007 and that the vacancy announcement to fill the assistant position was posted the day before the hearing began. RD's Decision at 5, 19. As there was no evidence that the position had actually been filled, the RD determined that the time spent supervising a civilian assistant could not be counted towards the CIC Nurse's performance of supervisory duties. See id. at 19-20.

      Based on the foregoing, the RD determined that the CIC Nurse is not a supervisor within the meaning of § 7103(a)(10) of the Statute and should be included in the bargaining unit. [n3] 

III.     Positions of the Parties

A.     Activity's Application for Review

      The Activity requests review of the RD's Decision on the ground that it raises an issue for which there is an absence of precedent. In this regard, the Activity alleges that the term "nurse" is not defined in the Statute and the RD does not cite any precedent defining the term. On this basis, the Activity argues that review of the RD's Decision is warranted to clarify the definition of "nurse" for purposes of the special nurse supervisor rule under § 7103(a)(10).

      In support of its contention, the Activity asserts that the RD's Decision fails to give adequate weight to the extensive evidence presented at the hearing that the CIC Nurse performs "virtually no duties associated with direct or hands-on patient care." Application for Review at 3. In the absence of Authority precedent, the Activity states that National Labor Relations Board precedent suggests that the purpose of evaluating nurse supervisors differently from other supervisors concerns possible conflicting loyalties between duties to management and duties to patients. See id. However, the Activity contends that "[t]here is no professional dichotomy between supervision and direct patient care[,]" here, because the CIC Nurse "does not directly supervise nurses." Id. at 4. Accordingly, the Activity asserts that the special nurse supervisor rule should not apply in this case because the concerns the special nurse supervisor rule were designed to address are not present in this case. Without elaboration, the Activity further contends that the CIC Nurse should be excluded from the bargaining unit as a supervisor. See id. at 5.

B.     Petitioner's Opposition

      As relevant here, the Petitioner asserts that the RD's analysis and conclusion that the CIC Nurse is not a supervisor were based on Authority precedent and that the Activity's arguments to the contrary are merely an attempt to relitigate the merits of the RD's Decision. The Petitioner also argues that under § 2422.31(b) of the Authority Regulations, the Authority should not consider the Activity's contention that there is an absence of precedent regarding the definition of "nurse" because this argument was not presented to the RD. [n4] 

IV.     Analysis and Conclusions

      The Activity argues that the special rule for nurses and firefighters in § 7103(a)(10) is not applicable here. However, separate and apart from the special rule for nurses and firefighters, under § 7103(a)(10), a "