Minnesota Health Care Union, Service Employees International Union, Local 113, Minneapolis, Minnesota, Relator, vs. Saint Michael's Hospital and Nursing Home, Sauk Centre, Minnesota, Respondent, Bureau of Mediation Services, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA IN COURT OF APPEALS

C7-00-419

 

 

Minnesota Health Care Union,

Service Employees International Union,

Local 113, Minneapolis, Minnesota,

Relator,

 

vs.

 

Saint Michael's Hospital and Nursing Home,

Sauk Centre, Minnesota,

Respondent,

Bureau of Mediation Services,

Respondent.

 

Filed September 26, 2000 Affirmed Anderson, Judge

 

Bureau of Mediation Services

File No. 99HCL1664

 

 

Bruce P. Grostephan, Peterson, Engberg & Peterson, 700 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN  55401-2498 (for relator)

 

Frank Kundrat, 14 Seventh Avenue North, Suite 118, P.O. Box 699, St. Cloud, MN  56302-0699 (for respondent St. Michael's Hospital and Nursing Home)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103 (for respondent Bureau of Mediation Services)

 

            Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

            Respondent St. Michael's Hospital petitioned the State Bureau of Mediation Services for clarification of the appropriate bargaining unit for its CSR Director position. Relator Service Employees International Union Local 113 challenges the finding made by the Commissioner of the State Bureau of Mediation Services that the CSR Director position is managerial and should be excluded from union representation.  Relator claims that the Commissioner erred as a matter of law: (1) in concluding that an employee does not have to be a supervisor in order to be a manager and (2) in failing to apply the limitations on nursing supervision imposed by the Minnesota Nurse Practice Act, Minn. Stat. §§ 148.171-.285 (1998 & Supp. 1999).  Because the Commissioner did not err in concluding that the CSR Director position is managerial and consequently excluded from representation by relator union, we affirm.  

FACTS

            Before June 1998, Deborah Himsl, a licensed practical nurse (LPN), worked as a Unit Coordinator at respondent hospital.  Himsl's position fell within the scope of the collective bargaining agreement between St. Michael's and Local 113.  In June 1998, Himsl accepted the position of Director of the Central Service Receiving Department (CSR) at St. Michael's.  Because the collective bargaining agreement specifically excludes managerial and supervisory employees, including department heads, from union representation, it no longer covered Himsl.

Relator argued to the Commissioner that Himsl was wrongfully removed from union coverage because her duties remained substantially the same as her duties as Unit Coordinator and her position had merely been reclassified.  Relator further contended that Himsl cannot be classified as a manager when she does not meet the definition of a supervisor under the Minnesota Public Employment Labor Relations Act (PELRA), Minn. Stat. § 179 A. 03, subd. 17 (1998), and that classifying Himsl as a manager violates the Minnesota Nurse Practice Act, Minn. Stat. §§ 148.171-.285 (1998 & Supp. 1999), which precludes LPNs from supervising, but not from monitoring, nursing personnel.  Neither party asserted that Himsl currently performs supervisory duties, but relator argued that Himsl would not be able to function as a manager without taking on a supervisory role. 

            The Commissioner held that "an employee does not have to be a supervisor in order to be a manager."  The Commissioner determined that although Himsl continues to perform some of the same duties that she performed as Unit Coordinator, as CSR Director she has acquired additional managerial responsibilities.  As CSR Director, Himsl oversees the hospital's outreach program and the CSR department, makes equipment evaluations and recommendations, assists in marketing and expanding the business of the department, and is responsible for implementing hospital policy.  Based on these duties, the Commissioner determined that the CSR Director position is managerial in nature and is consequently excluded by the terms of the collective bargaining agreement from representation by relator union.  The Commissioner did not make any findings relating to the Minnesota Nurse Practice Act.  

D E C I S I O N

I.

Relator argues that the Commissioner erred in concluding that Himsl could be classified as a "manager" without being a supervisor under the Minnesota Public Employment Relations Act (PELRA), Minn. Stat. § 179 A. 03, subd. 17 (1998).  Relator claims that the Commissioner improperly defined "managerial" and that the  CSR Director position cannot properly be classified as managerial. 

An agency's determination that turns on statutory interpretation presents a question of law that this court reviews de novo.  St. Otto's Home v. Minn. Dep't of Human Servs., 437 N.W.2d 35, 39-40 (Minn. 1989).  This court's review of the Commissioner's application of the definition of "managerial" is limited to whether its findings, inferences, conclusions and decisions are supported by evidence in the record, unaffected by error of law and not arbitrary and capricious.  County of Scott v. Pub. Employment Relations Bd., 461 N.W.2d 503, 504 (Minn. App. 1990), review denied (Minn. Dec. 20, 1990).  

            Relator claims that the Commissioner improperly defined "managerial" because managers must supervise.  The PELRA does not contain a definition of a managerial employee.  To determine what constitutes a managerial employee, the Commissioner looked to three definitions of "manager."  The first, found in Black's Law Dictionary (5th ed. 1995), defines a manager, in part, as

[a] person chosen or appointed to manage, direct, or administer the affairs of another person or of a corporation or company.  The designation of "manager" implies general power and permits reasonable inferences that the employee so designated is invested with the general conduct and control of his employer's business.

 

            Second, the National Labor Relations Board (NLRB) defines managerial employees as those who "formulate and effectuate management policies by expressing and making operative the decisions of their employer,"  NLRB v. Bell Aerospace Co., 416 U.S. 267, 288, 94 S. Ct. 1757, 1768 (1974) (citation omitted), and "those who have discretion in the performance of their jobs, but not if the discretion must conform to an employer's established policy."  Id. at n.16 (citation omitted).

            Finally, the Commissioner has, in the past, relied on the definition provided in the Minnesota Civil Service Act, Minn. Stat. § 43 A. 02, subd. 28 (1998) when examining managerial status under the PELRA.  That definition provides:

"Managerial" means those positions designated pursuant to sections 43 A. 18, subdivision 3 as being accountable for determining, securing, and allocating human, financial, and other resources needed to accomplish objectives.  Positions in this category also are accountable for determining overall objectives, priorities, and policies within a program area.  Higher level positions in this category handle significant and involved relationships with governmental leadership.  Incumbents of these positions have the authority to exercise discretionary powers on a regular basis.

 

Minn. Stat. § 43 A. 02, subd. 28.

Based on these definitions, the Commissioner concluded that "an employee does not have to be a supervisor in order to be a manager;" that conclusion is not erroneous.  In general, statutory terms "should be construed according to their plain and ordinary meaning."  Nadeu v. Austin Mut. Ins. Co., 350 N.W.2d 368, 373 (Minn. 1984).  Supervision of employees is not a responsibility listed within the statutory definition of "managerial" provided in the Minnesota Civil Service Act, Minn. Stat. § 43 A. 02, subd. 28.  Because the PELRA is silent on the issue, and nothing in Minn. Stat. § 43 A. 02, subd. 28 suggests that the legislature intended to make the supervision of other employees a prerequisite to managerial status, the Commissioner did not err by concluding that Himsl, as the CSR Director could be a manager without being a supervisor.

The Commissioner's conclusion is further supported by the NLRB's definition of managerial employees as those "who formulate and effectuate management policies by expressing and making operative decisions of their employer."  Bell Aerospace, 416 U.S. at 288, 94 S. Ct. at 1768 (citation omitted).  Under this definition, managerial status is not limited to supervision.

Evidence from the record also supports the Commissioner's determination that the CSR Director position is managerial.  The CSR Director job description provides that the CSR Director: (1) is in charge of the hospital's outreach programs; (2) is responsible for the management, coordination, and organization of the CSR and Operating Room staff; (3) is responsible to make sure that applicable and established policies are followed by employees under her management; (4) makes independent evaluations of equipment and prepares proposals with recommendations for the Board of Directors relative to purchase of said equipment; (5) serves on the Hospital Product Review Committee; and (6) exercises independent control over her area of jurisdiction reporting directly to hospital administration and/or the Board of Directors.

Himsl's testimony shows that she took on additional responsibilities once she accepted the CSR Director position, including promoting the growth of the CSR department, developing new hospital programs, and overseeing all billing for the surgery department.  Himsl also changed from an hourly employee as Unit Coordinator to a salaried employee as CSR Director.  St. Michael's did not merely rename Himsl's position as relator claims.  Himsl continues to perform some incidental nursing duties as needed at the hospital, including working every third weekend as an LPN, but that does not diminish the overall managerial nature of her position as CSR Director.[1]

II.

            Relator claims that the Commissioner erred by failing to apply the Minnesota Nurse Practice Act, Minn. Stat. § 148.171-.285 (1998 & Supp. 1999), which precludes LPNs like Himsl from supervising other nursing personnel.  See Minn. Stat. § 148.171 (Supp. 1999).  Relator argues that Himsl's classification as a manager violates the provisions of the Act because Himsl is also required, at times, to provide direct patient care.  Apart from her duties as CSR Director, Himsl functions as an LPN on an as-needed basis at the hospital.  It is relator's contention that if Himsl is a manager, placing her in a position where she also works as an LPN alongside other nursing personnel creates a situation where she may be called upon to supervise other nurses in violation of the Nurse Practice Act.  The legislature has declined to prohibit this type of dual service; and where the legislature has declined to act, this court will not find that a managerial employee cannot perform some non-managerial duties as needed by an employer, particularly where the employer is a small, rural hospital with limited staff and financial resources. 

            The Commissioner did not commit an error of law in declining to address relator's claim that classifying the CSR Director position as managerial when that position is held by an LPN violates the Nurse Practice Act.

            Affirmed.

[1] As respondent hospital points out, in a small hospital, in a rural community, the performance of incidental nursing duties by a managerial employee should not be considered unusual.