Centerville Clinics, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1970

181 N.L.R.B. 135 (N.L.R.B. 1970)

CENTERVILLE CLINICS, INC.
Centerville Clinics, Incorporated and International
Union of District 50, United Mine Workers of
America and United Mine Workers of America,
and its District International , Local Union 13986,
Parties to the Contract . Case 6-CA-4310
February 13, 1970
DECISION AND ORDER
BY-CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 21, 1969, Trial Examiner James M.
Fitzpatrick issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Respondent and the
Parties to the Contract filed timely exceptions to the
Decision and briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent, Centerville Clinics,
Incorporated, Centerville, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES M FITZPATRICK, Trial Examiner This
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (the Act), was tried before me
at Pittsburgh, Pennsylvania, April 21, 1969, on a
complaint alleging violations of Section 8(a)(1) and (2) of
the Act and answers denying such violations filed by
Respondent and the Parties to the Contract. The
complaint issued February 20, 1969, pursuant to an initial
charge filed July 17, 1968, amended December 12, 1968,
and again amended February 12, 1969. Jurisdictional
questions are posed as to whether Respondent is an
135
employer as defined in the Act and if so whether the
National Labor Relations Board (the Board) should assert
jurisdiction in view of the nature of its operations and the
amount of its commerce. Assuming jurisdiction, the
principal substantive questions presented are: whether
agents of the Respondent solicited employee signatures on
authorization cards on behalf of the Parties to the
Contract; whether Respondent recognized, bargained with,
contracted with, and put into effect and maintained a
contract including provisions for union security and
checkoff of dues with, the Parties to the Contract at times
when they did not represent an uncoerced majority of
Respondent's employees; and whether the Parties to the
Contract were disqualified from representing Respondent's
employees because of conflict in interest. Assuming
jurisdiction and violations of the Act are established,
remedial questions are presented as to whether recognition
of the Parties to the Contract and the contract between
Respondent and them should be disavowed, and whether
the employees should be made whole for the dues checked
off pursuant to said contract.'
Upon the entire record, including my observation of the
witnesses and consideration of the briefs of the General
Counsel, Respondent, and the Parties to the Contract, I
make the following.
FINDINGS OF FACT
1. JURISDICTION
Centerville Clinics, Incorporated (herein called
Respondent or Clinic) is a nonprofit Pennsylvania
corporation which operates an out-patient medical clinic
at Centerville, Pennsylvania, with a branch at Carmichael,
Pennsylvania, 15 miles south, and three community offices
(staffed by a physician and a nurse) in other communities
in southwestern Pennsylvania.
A. Statutory Jurisdiction
The complaint alleges that Respondent is an employer
within the meaning of the Act. Respondent and the
Parties to the Contract contend that it is not because as a
nonprofit medical facility it qualifies as a hospital as that
term is used in Section 2(2) of the Act and that,
moreover, its operations are so closely interwoven with
those of a nearby nonprofit community hospital, as to
bring it within the meaning of the term hospital as used in
Section 2(2).
The Clinic provides general medical services on an
out-patient basis to members and pensioners of United
Mine Workers of America (herein UMW) and their
families and to the general public with particular emphasis
on the treatment of ailments typical in the coal mining
industry. The staff physicians serving the Clinic are
members of the Centerville Medical Group, an
independent professional association of physicians
organized pursuant to the Professional Association Act of
Pennsylvania. The members of the Medical Group
employ and pay themselves for the services they render at
the Clinic. On its part the Clinic furnishes to the Medical
Group the necessary physical facilities, supplies, and
nonphysician staff and services for which the Medical
Group pays the Clinic a substantial payment. Payments
by or on behalf of patients to whom physicians' services
'The General Counsel does not seek an order requiring Respondent to
recognize and bargain with the Charging Party
181 NLRB No. 23
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are rendered are made to the Medical Group These
receipts include a retainer from the United Mineworkers
of America Welfare and Retirement Fund (herein the
Fund) for medical services to patients covered by the
Fund. In addition the Fund pays a separate retainer to
the Clinic on behalf of the Medical Group to further
compensate for nonphysician services to patients covered
by the Fund.
The Clinic does not provide overnight care for patients.
When hospitalization is indicated, patients are referred to
a regular hospital. Many of these referrals are to the
Brownsville Hospital (herein the Hospital), a general
nonprofit hospital for in-patients located about 8-1/2
miles from Centerville For the purposes of this
proceeding I find that the Brownsville Hospital is a
nonprofit hospital and not an employer within the
meaning of Section 2(2) of the Act The Clinic has a close
relationship with the Hospital Joseph Yablonski is
chairman of the board of directors of both. One other
member of the Clinic board of directors, Farrell Jackson,
is also a member of the Hospital board. Members of the
Medical Group which serves the Clinic are also on the
Hospital staff 2 In addition the Clinic shares some of its
technical nonphysician staff with the Hospital, as well as
some of its equipment and has rendered substantial
financial assistance and support to the Hospital In the
words of Richard Feise, administrator of the Clinic, there
exists between the two institutions "many
interrelationships but the financial one and the practice of
the Medical Group are probably the two most important."
However, they are separate corporations The Clinic does
not pay the Hospital for hospital services to patients
which are referred from the Clinic
Considering first the Clinic's own operations, it appears
that it is principally engaged in providing medical services
to patients and, although operated on nonprofit basis, it is
not primarily engaged in education and research activities.
Not having facilities for overnight patients, it is not, solely
on the basis on its own operations a "hospital" as that
term is used in Section 2(2) of the Act. Mayo Clinic, 168
NLRB No. 79.'
As to the Clinic's relationships to the Brownsville
Hospital, although these are numerous and close, the
evidence does not establish that either institution controls
the other.' They are physically separated by a substantial
distance. They are separate corporate entities. The
operations of the Clinic are not "incidental to and
intimately connected with the patient care and medical
education purposes of the Hospital" as found in The Horn
& Hardart Company, 154 NLRB 1368, 1370, cited by the
Mineworkers. In all the circumstances I find that the
Clinic is not an integral part of the Hospital, and it is not
by reason of its relations with the Hospital excluded from
the definition of an employer as that term is used in
Section 2(2) of the Act. Quain & Ramstad Clinic, 173
NLRB No. 182; Mayo Clinic, supra
B. Respondent's Commerce
During the calendar year 1968 the Clinic received gross
revenue of $1,164,382. Of this $884,628 or approximately
76 percent was received directly from the Fund located in
the District of Columbia. Revenue to the Fund derives
from contributions of coal operators of 40 cents per ton of
coal mined pursuant to the National Bituminus Coal
Wage Agreement, a collective-bargaining agreement
between UMW and large operators in the coal industry.'
Also during 1968 the Clinic purchased, chiefly from
vendors within the State of Pennsylvania, approximately
$36,000 in medical supplies, some of which were
manufactured outside Pennsylvania and included some
drugs originating in foreign countries. It also received
during 1968 $8,240 from the Federal Government for
maintaining a home health care program as well as funds
of unspecified amount from the State of Pennsylvania for
providing mental health care.
The Clinic's impact on commerce is sufficient in my
view to warrant the Board in asserting jurisdiction over it.
Its annual gross revenue of over $1 million, as in the cases
of Quain & Ramstad Clinics, supra, and Mavo Clinic,
supra, where the Board asserted jurisdiction, far exceeds
the annual gross revenue standards set by the Board of
$250,000 for proprietary hospitals (Butte Medical
Properties, d/b/a Medical Center Hospital, 168 NLRB
No. 52) and $100,000 for proprietary nursing homes
(University Nursing Home, Inc, 168 NLRB No. 53).
Further, the Clinic received during 1968 substantial direct
dollar inflow of over $800,000 from the Fund, the
revenues of which were contributed by the coal industry
generally. This as well as direct inflow of over $8,000
from the Federal Government, and some inflow of
supplies and drugs from other States and foreign countries
illustrate specifically the Clinic's involvement in interstate
commerce. See Quain & Ramstad Clinic, supra. I find
that the Clinic is subject to the Board's jurisdiction and
that it will effectuate the policies of the Act to assert
jurisdiction over it.,
If. THE UNIONS
The charges herein were filed by international Union of
District 50, United Mine Workers of America (herein
District 50) The complaint names, as parties to the
contract, United Mine Workers of America (herein
UMW) and United Mine Workers of America, and its
District International, Local Union 13986 (herein Local
13986, and sometimes with UMW collectively called
Mineworkers). District 50, UMW, and Local 13986 are
labor organizations within the meaning of the Act.'
Of the 24 physicians on the Hospital staff, 19 are members of the
Medical Group
'Respondent and the parties to the contract argue that Mayo Clinic is
not controlling here because all of the parties there involved consented to,
and urged the assertion of, Board jurisdiction The General Counsel points
out, however, that the Board in its decision set out the facts of the case
The Board then said in part , "It is clear from the facts set forth above that
the operations of Mayo Clinic affect commerce within the meaning of Sec
2(6) and (7) of the Act As the parties agree that the Board should assert
jurisdiction herein and, as no claim is advanced, and it does not in this
record appear, that Mayo Clinic is a nonprofit hospital and/or is primarily
engaged in education and research , we shall , consistent with the request of
all interested parties, assert jurisdiction in this case "
'While there may be some influence on Hospital policy by virtue of the
fact that Joseph Yablonski is chairman of the board of directors of both
institutions and that another member of the Clinic's board of directors is
also on the Hospital 's board, these common directors do not make up a
majority of either board Cf Mayo Clinic, supra
'See United Mine Workers of America v Pennington , 381 U S 657.
'At the conclusion of the hearing herein I reserved ruling on motions of
the Mine Workers and the Clinic to strike the testimony of Joseph
Yablonski concerning the Fund as irrelevant to these proceedings . I hereby
deny that motion . The Mineworkers and the Clinic also moved to dismiss
the complaint on jurisdictional grounds In view of my findings above, I
also deny those motions
'This finding with respect to Local 13986 assumes, as is found
hereinabove , that Respondent is an employer within the meaning of the
CENTERVILLE CLINICS, INC. 137
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Organization of the Clinic and Its Relation to
UM W
Prior to the founding of the Clinic the medical facilities
available and suited to the needs of coal miners and their
families in southwestern Pennsylvania were inadequate To
fill this need, a group of interested miners in 1954 or 1955
incorporated the Clinic as a nonprofit medical facility.
These original organizers, all members of UMW, included
Joseph Yablonski who since the formation of the Clinic
has been chairman of its board of directors, Michael
Encrapera, secretary and member of the board of
directors as well as representative of UMW Local 1787 on
the board, Farrell Jackson, treasurer and member of the
board, and Max Coulter, also a member of the board.'
The purpose of the Clinic was to provide adequate
out-patient medical service with particular emphasis on
ailments associated with coal mining This was to be
accomplished by erecting appropriate facilities and by
attracting staff physicians and other medical personnel
with special competence in the desired fields of medicine.
Since its establishment the Clinic has been patronized
chiefly by UMW members, pensioners, and their families.
However, the facilities are also available to and do serve
the general public
The principal executive of the Clinic is Richard Feise,
the administrator, who is responsible for all day-to-day
operations. Although subject to the overall authority of
the board of directors, he basically runs the Clinic. The
directors are not doctors but coal miners or ex-coal
miners who know little about running a clinic. The first
board was chosen by the incorporators Since then
members have been chosen by incumbent members of the
board from nominations supplied by UMW affiliates
whose members use the Clinic. None of the directors are
paid for their services. As of February 1969 there were
114 members on the board including 14 alternates. All but
two members represent various districts or locals of
UMW.' The board functions as an overall policy group
whose individual members, being representatives from
various districts or locals, feed back to the Clinic
criticisms or views expressed by UMW members who use
the Clinic. The administrator reports monthly to the
board. Between board meetings an executive committee
consisting of the president, vice president, secretary, and
treasurer functions."
As noted previously, the Clinic has associated with it a
staff of physicians not directly involved in this proceeding.
Over and above the staff physicians the Clinic employs in
various capacities about 150 employees, most of them the
sons and daughters of miners or ex-miners. It is the
representation of these employees that is involved in this
proceeding.
Since its inception the Clinic has maintained
contractual relations with the Fund pursuant to which the
Clinic has provided its medical services to eligible
patients. Although associated with UMW, the Fund is a
separate organization governed by a three-member board
of directors, one appointed by UMW, one by
organizations of coal mining employers, and one public
member
B. District 50 as Bargaining Representative of Clinic
Employees
According to the testimony of James Krumenacker,
International representative of District 50, that
organization was born in 1935-36 as an integral part of
UMW It continued in that form until 1961 when it was
organized into an International union in its own right and
in that capacity it then entered into an affiliation
agreement with UMW. This relationship continued
unchanged until February or March 1968" when a
dispute, the nature of which does not appear in this
record, arose between District 50 and UMW."
Although organized on paper in 1954, the Clinic did not
begin operating to any extent until about 1956 by which
time some building facilities and some staff had been
acquired. By then it had about a dozen employees and
recognized District 50 as their collective- bargaining
representative. Local Union 13986 of District 50,
consisting entirely of employees of the Clinic, was
organized and thereafter recognized together with District
50 as the exclusive bargaining representative of the
employees. A succession of collective-bargaining
agreements were entered into between the Clinic and
District 50 on behalf of Local 13986, the most recent
covering the period July 1, 1966, to June 30, 1968." It
contained provisions for union security and checkoff of
union dues Pursuant thereto, until July 1, 1968, the Clinic
checked off employee union dues and remitted them to
District 50.
C Transfer of Allegiance From District 50 to
Mineworkers
Michael Encrapera is employed by the Clinic as a
patient counselor, a nonsupervisory position." He is a
member of Local 13986. According to Encrapera in the
spring of 1968 he heard from various Clinic employees
that they were dissatisfied with District 50 and desired
representation by UMW, and he was asked if he could
obtain the necessary UMW blank authorization cards. He
did so, and in late April let it be known among the
employees that he had such cards available. Some of the
cards he gave to his coworker, patient counselor Jack
Peters, also a member of Local 13986, as well as a
member of the Clinic's board of directors. During late
Act
'Others of the original organizers were George Machines and Robert
Gould who at that time were president and secretary , respectively, of
UMW Local 688
'The list of Clinic directors includes two members of the International's
executive board (one being Joseph Yablonski, chairman of the Clinic
board), the presidents of District 4 and District 5, the secretary-treasurer
of District 5, an International auditor, an international representative,' five
District 5 representatives , and three executive board members of District 5
The balance of the directors (except for two) are associated with UMW
locals
"Other standing committees include committees on personnel and on
liaison
"Dates hereinafter are 1968 unless otherwise indicated
"Counsel for UMW indicated that the dispute is currently the subject of
litigation in the courts
"This last contract was signed on behalf of the Clinic by Joseph
Yablonski , chairman of its board of directors , Michael Encrapera,
secretary and member of the board , and Richard Feise, Clinic
administrator On behalf of District 50 it was signed by, among others,
William Chabricky, president of Local 13986, four other members of the
local, Jess M Vicini, regional director of District 50, and J Krumenacker,
International representative of District 50 The International president of
District 50 also approved the agreement
"in addition to being one of the founders of the Clinic , Encrapera is
secretary and a member of the board of directors , its executive committee,
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April, May, and June, Encrapera and Peters made these
cards available in their offices Some employees came into
the offices and signed cards in their presence Others came
in, took cards away, and later returned them signed.
Senior accounting clerk Marlene Dranzo got cards for her
entire department from Encrapera. These were later
returned to him signed."
Margaret Schillings, the head nurse, supervisor of 21
nurses in her department, and a supervisor within the
meaning of the Act," obtained from Encrapera sufficient
cards for the other nurses under her Schillings, although
a supervisor, was a member of the Local, as were all other
supervisors except the administrator. The cards she
obtained were later returned signed to Encrapera I find
that Schillings distributed these cards among the
employees that she supervised.
Eventually, all employees but one signed cards
authorizing UMW to represent them. Even the officers of
Local 13986, who were identical before and after the
change over, signed. No vote was taken among the
members of Local 13986. The record does not indicate
any specific basis for dissatisfaction with the
representation given the employees by District 50. When
the cards had been returned to either Peters or Encrapera,
Peters turned his over to Encrapera and Encrapera
presented them to Feise, the administrator. Feise later
returned the cards to Encrapera.
D. Recognition and Bargaining With Mineworkers
Until June 30 the Clinic maintained in effect its
contract with District 50, including the union-security and
dues checkoff provisions. However, in anticipation of the
termination date of the contract, Administrator Feise
advised District 50 by letter of April 26 that, "I have been
instructed by the Board of Directors of Centerville Clinics,
Inc. to notify your organization that we wish to terminate
our agreement with you as of June 30, 1968 "" A copy of
the letter was also sent to Local 13986. A few days later
on April 29 in a letter to the Clinic, District 50 gave
anotice of its desire to meet and negotiate a new contract."
The Clinic made no response to District 50's request for
bargaining sessions. Instead beginning in late May and
continuing through June, it entered into what Joseph
Yablonski called "informal" discussions with the
Mineworkers looking toward a contract with them to
succeed the one with District 50 expiring on June 30 In
the meantime on June 26 District 50 reiterated its request
for negotiations, but this request was also ignored by the
Clinic. After June 30 the Clinic gave no effect whatever to
the District 50 contract Negotiations between the Clinic
and the Mineworkers then continued on a "formal" basis
until July 27, when substantial agreement was reached on
the terms of a contract. On July 29 these terms were
ratified by the membership of Local 13986. However, the
contract as negotiated was subject to ratification by
UMW which thereafter raised some question concerning
the presence of a no-strike clause in the agreement By
about August 10 these differences were ironed out and the
terms of the new agreement were put into effect
and its personnel committee.
"No contention is made that Dranzo was a supervisor
"Schillings' responsibilities regarding the other nurses included the
assigning of hours and shifts, the assigning , directing, and reviewing of
work , and the authority to effectively recommend time off, leave,
vacations , and wage increases She also had authority to effectively
recommend hiring or dismissal , but did not have authority to directly hire
or fire
retroactive to July 1. At the time of the hearing herein,
although all terms had been agreed upon and were in
effect, and the contract was ready to be signed by the
parties, it in fact had not yet been formally signed None
of the parties contend however that there was not in fact a
collective-bargaining agreement in effect.
In the negotiations between the Mineworkers and the
Clinic both before and after July 1, the Mineworkers were
represented by a bargaining committee consisting of the
same local officers who were incumbent both before and
after the transfer of allegiance from District 50 to UMW,
and, at most of the bargaining sessions by Peter Phillipe
of UMW The Clinic was represented in negotiation by
Feise, the hospital administrator, and Yablonski, the
chairman of the board of directors At the time both
Yablonski and Phillipe were members of the UMW
International executive board.
E. Maintenance of Contract With Mineworkers
Since August 10, and retroactive to July 1, the Clinic
has maintained in effect its agreement with the
Mineworkers, including union security as well as dues
checkoff provisions and, pursuant to the latter provisions
has checked off the dues of employees for the period
beginning July 1, and remitted the dues to the
Mineworkers. In this connection the Clinic has not
required that existing employees give any further
authorization for such dues checkoff but has proceeded to
check off dues on the basis of authorizations previously
given when District 50 was the incumbent union
Approximately 25 new employees have been employed
since the new contract has been in effect and these have
been required to sign cards authorizing dues checkoff for
UMW
F. Discussion and Concluding Findings
I Solicitation of UMW cards
With respect to the "solicitation" of employees
signatures on UMW cards by Encrapera, Peters, and
Schillings, two questions are presented (1) Whether their
acts were attributable to the Clinic, and (2) whether their
acts violated Section 8(a)(1) and (2) of the Act
As to Schillings there is no doubt that she was a
supervisor within the meaning of Section 2(11) of the Act
and that her conduct if unlawful was attributable to
respondent whether or not it was specifically authorized
by management. See Section 2(13) of the Act.
The status of Encrapera and Peters was quite different.
Neither was a supervisor, and, according to the testimony,
Encrapera was not directed by the Clinic's board of
directors, its chairman, or its administrator to solicit cards
"The letter also indicated that it was being sent pursuant to art XIX of
the contract Art XIX provided in pertinent part as follows
All provisions of the Agreement shall continue in full force and effect
beginning July I, 1966 and for the period ending June 30, 1968, and
from year to year thereafter, remain inforce and effect , unless either
party shall desire a change or termination at least sixty (60) days prior
to the aforesaid termination date
"This notice, which appears to be a form letter, also stated , "You are
further notified that if said proposed negotiating conferences fail to result
in the execution of a satisfactory contract by the termination date of the
existing contract , or sixty (60) days after receipt of this notice , whichever
date last occurs , the existing contract and any practices or customs
thereunder are hereby declared to be terminated and of no further force or
effect as of such later date "
CENTERVILLE CLINICS, INC.
on behalf of UMW. There is testimony to the effect that
employees asked him to obtain blank UMW cards. I do
not discredit this testimony , but even assuming its truth,
the record does not indicate that members of the board of
directors , including Chairman Yablonski , were in the dark
about what Encrapera and Peters were doing. On the
contrary the circumstances argue against their ignorance.
Respondent and the Mineworkers urge that Encrapera
and Peters were acting only in their capacity as employees
and members of the local union and that , even though
both were members of the board of directors , as to that
capacity they were acting without authority and were on a
frolic of their own . The very size of the board lends
support to this position in that the responsibility of an
individual member necessarily would have been much less
than if the board were small . Nevertheless, both
Encrapera and Peters were members of the board, known
to be such , and unlike many other board members were
constantly present at the Clinic . Moreover , Encrapera held
a unique status in that he was one of the originators of the
Clinic. The timing also seems to me to be an important
factor here Encrapera testified that in late April he
obtained the blank UMW cards and let it be known
among the employees that he had them available. It was
about the same time, April 26, that Administrator Feise
wrote District 50 that he had been " instructed by the
Board of Directors" to notify that union of the Clinic's
desire to terminate their agreement . In the circumstances
I am convinced that members of the board of directors in
addition to Encrapera and Peters knew what they were up
to and at least permitted , if not instructed , them to go
about their project . If what they did was an unfair labor
practice , the Clinic bears responsibility for it " Without
ignoring the fact that Encrapera and Peters were both
employees and members of the local, I find that in the
situation here presented they could not easily, and in fact
vis-a-vis the other employees did not , remove the hats they
wore as directors at the time they gave out and received
back the UMW cards . I find their conduct in that regard
was attributable to respondent . Eastman Cotton Mills, 90
NLRB 31, 76; Caroline Mills, Inc ., 64 NLRB 376, 377.
The record is barren as to what , if anything , Encrapera,
Peters, or Schillings said to other employees with respect
to signing the UMW authorization cards. Without giving
his specific words, Encrapera testified that he let it be
known among the employees that he had the UMW cards
available. The significance of the card "solicitation,"
therefore , must be assessed in light of the circumstances
apparent to the employees who were signing them. One
obvious fact was that the Clinic was organized and existed
for the purpose of serving UMW members, pensioners,
and their families. The Clinic was dependent financially
upon the Fund which in turn was closely associated with
UMW. The Clinic, UMW, and its affiliates were closely
interrelated by, among other things, the composition of
the Clinic's board of directors which was made up almost
entirely of representatives from UMW affiliates, and
included Board Chairman Yablonski and another director
who were members of the International's executive board.
Another circumstance of importance is that the UMW
cards came to the employees through two members of the
board of directors and the head nurse . Moreover, a copy
" I note further that Encrapera was secretary of the board and on both
the executive committee and the personnel committee of the board
Jackson Farrell and Board Chairman Yablonski , who both along with
Encrapera were among the originators of the Clinic, were also members of
those committees
139
of the Clinic's April 26 letter to District 50 was sent to
Local 13986, and some employee knowledge of the
Clinic's attitude toward continuing relations with District
50 may be inferred from that communication. I note
further the negative factors that, although there was
testimony to the effect that some employees were
dissatisfied with representation by District 50, no evidence
was offered of any specific basis for dissatisfaction, and
that with regard to the change of affiliation from District
50 to UMW, no vote of the members was taken in the
Local Scrutinizing these factors, I find that the employees
had cause to believe that Encrapera, Peters, and Schillings
were acting on behalf of the Clinic management and
consistent with the will of UMW which controlled the
management. I find also that in these circumstances the
employees did not have that complete and unhampered
freedom of choice to sign or not to sign the UMW
authorization cards which the Act contemplates. See
IAM, et al. v. N.L.R.B, 311 U S. 72, 79-80. It follows,
therefore, that the conduct of Encrapera, Peters, and
Schillings, which I find was attributable to respondent,
violated Section 8(a)(l) and (2) of the Act.
2. Recognition of, and negotiation of contract with,
UMW
It follows from the above that the Mineworkers status
as bargaining representative, being based as it was on
authorization cards which passed through Encrapera in
the manner described above, was ill founded since they did
not reflect the uncoerced will of a majority of the
employees. Moreover, at the time the Clinic first
recognized and began informal negotiations with the
Mineworkers, District 50 was still the incumbent exclusive
bargaining representative under its then current contract.
For the Clinic to recognize the Mineworkers under these
circumstances was a further violation of Section 8(a)(1)
and (2). Duralite Co, Inc, 132 NLRB 425; Carlton
Paper Corporation, 173 NLRB No. 26; International
Ladies' Garment Workers' Union, AFL-CIO v. N.L R.B.,
366 U.S. 731. The Clinic and the Mineworkers then
unlawfully locked in the Mineworkers as bargaining
representative by negotiating a contract containing union
security and dues checkoff provisions. After negotiating
this agreement they put it into effect retroactive to July 1.
In accordance with it the Clinic checked off UMW dues
from employees' wages and remitted them to the UMW
even though, with the exception of dues authorizations
obtained from a few new employees, no authorizations for
the checkoff of dues to UMW were ever obtained from
the employees. This further enlarged the Clinic's violation
of Section 8(a)(1) and (2). Duralite Co , Inc , supra;
Lunardi-Central Distributing Co, Inc, 161 NLRB 1443.
3. The conflict of interest question
Apart from the manner in which the Mineworkers were
substituted for District 50 as the employees' bargaining
representative, a serious question exists as to whether the
Mineworkers are competent in any case to represent the
Clinic's employees because of their relationship to the
Clinic. In this connection it is noteworthy that the purpose
of the Clinic is to serve eligible UMW members,
pensioners, and their families. Its principal source of
revenue is the Fund which throughout its history has been
closely associated with UMW. The Fund and the moneys
it disburses are both products of UMW's national
bargaining with operators in the coal industry. Almost all
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the Clinic's large board of directors are
representatives from constituent locals and districts of
UMW, including Chairman of the Board Yablonski who
is a member of UMW's International executive board. As
representatives for Clinic employees, therefore, both
UMW and Local 13986, now affiliated with it, are deeply
involved in a conflict of interest which necessarily deprives
the employees of that single-minded representation to
which they are entitled. The conflict is amply illustrated in
the facts of this case where, during the negotiations for
the contract which was ultimately agreed upon between
the Clinic and the Mineworkers, members of the UMW
International executive board (Joseph Yablonski and Peter
Phillipe) sat on opposite sides of the bargaining table. On
the record before me I find that the Mineworkers
(including UMW and Local 13986) because of this
conflict of interest are not competent to represent the
Clinic employees. Bausch and Lomb Optical Company,
108 NLRB 1555; Oregon Teamsters' Security Plan Office,
119 NLRB 207, 211-212, 113 NLRB 987, 1007, 1008-09,
1036; Welfare and Pension Funds, 178 NLRB No. 3. See
also Seafarers International Union of North America, 138
NLRB 1142; General Teamsters, etc., Local 249, 139
NLRB 605; International Brotherhood of Teamsters v.
US., 275 F.2d 610 (C.A. 4), cert. denied 362 U.S. 975.
The purpose of the Clinic to serve UMW membership,
its heavy reliance on revenue from the Fund closely
associated with UMW, and the domination of its board of
directors by personnel of UMW and UMW affiliates, all
are factors indicating the strong influence of UMW in the
operation of the Clinic. Both UMW and the Fund have an
obvious interest in seeing the Clinic prosper. In the
situation here there is at least "the potential . of
conflict of interest" which the law forbids. N L R.B. v.
David Buttrick Company, 361 F.2d 300, 309 (C.A. 1).
Considering "the interrelationship of powers and
temptations created by" UMW's dual role30 together with
its actual participation in the collective-bargaining sessions
both indirectly through its affiliated Local 13986 and
directly by the participation of its International
representative and member of its executive board on the
union bargaining committee, the presence of another
member of its executive committee on the other side of
the bargaining table in his capacity as chairman of the
Clinic board of directors, and considering further that the
product of the bargaining table was subject to UMW's
approval (and in fact in part vetoed by UMW, albeit in a
manner adverse to the Clinic and favorable to the
employees), I find that there exists and will continue to
exist "a proximate danger of infection of the bargaining
process." N.L.R.B. v. David Buttrick Company, 399 F.2d
505, 508 (C.A. 1). Accordingly in recognizing , bargaining
with and entering into and enforcing a contract with, an
organization which was not legally competent to represent
its employees, the Clinic violated Section 8(a)(1) and (2)
of the Act Oregon Teamsters' Security Plan Office,
supra; Seafarers International Union of North America,
etc., supra
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Clinic found to be unlawful, as set
forth in section III, above, occurring in connection with
"See N L R B v. David Buttrick Company, supra, 304, cited by the
Board in its Supplemental Decision in David Buttrick Company. 167
NLRB No. 58
its operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V. THE REMEDY
Having found that the Clinic engaged in unfair labor
practices in violation of Section 8(a)(l) and (2) of the Act,
I recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act. Among other things the Clinic should
permanently forebear recognizing or bargaining with the
Mineworkers as the representative of its employees or
giving effect to its collective-bargaining agreement with
the Mineworkers. In Bausch and Lomb, supra, the Board
set the standard that a union must approach the
bargaining table "with the single-minded purpose of
protecting and advancing the interests of the employees
who have selected it as their bargaining agent and there
must be no ulterior purpose" I have found that the
Mineworkers "has allegiances which conflict with that
purpose" and for that reason lacks the qualities essential
for it now or in the future to be an appropriate bargaining
agent for the Clinic's employees. Accordingly the
Recommended Order attached hereto omits language
which might limit the period of time during which the
Clinic must withhold recognition from the Mineworkers.
Oregon Teamsters' Security Plan Office, supra, 211-212.
In addition the Clinic, having unlawfully withheld dues
from the employees' wages, should reimburse the
employees for all such moneys exacted from them since
July 1, 1969, the effective date of its agreement with the
Mineworkers, with interest as provided in Isis Plumbing
& Heating Co., 138 NLRB 716, and computed in the
manner set forth in Seafarers International Union of
North America, supra The Clinic should also preserve
and, upon request, make available to the Board or its
agents all pertinent records and data necessary to assist in
the computation of the amount of reimbursement due.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following.
CONCLUSIONS OF LAW
1. The Clinic is an employer within the meaning of
Section 2(2) and is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. UMW, Local 13986, and District 50 are labor
organizations within the meaning of Section 2(5) of the
Act.
3. By the conduct set forth in section III, above, which
has been found to constitute unfair labor practices, the
Clinic interfered with , restrained , and coerced its
employees in the exercise of rights guaranteed to them by
Section 7 of the Act, and interfered with the formation
and administration of Local 13986 in its affiliation with
UMW and contributed financial and other support to
UMW and Local 13986, and thereby engaged in and is
engaging in unfair labor practices within the meaning of
Section 8 (a)(1) and (2) of the Act.
4. The aforesaid unfair practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
CENTERVILLE CLINICS, INC. 141
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
I recommend that Centerville Clinics, Incorporated, its
officers, agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Soliciting, passing out, or receiving applications for
membership in United Mine Workers of America or its
District International Local Union 13986, or any
successor thereto.
(b) Recognizing or dealing with United Mine Workers
of America or its District International Local Union
13986 as the representative of its employees.
(c) Giving any force or effect to its collective-bargaining
agreement with United Mine Workers of America and its
District International Local Union 13986, or to any
amendment, supplement, or addition thereto.
(d) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from United
Mine Workers of America or its District International
Local Union 13986 as the bargaining representative of its
employees.
(b) Reimburse to each employee all moneys unlawfully
withheld since July 1, 1968, in the form of dues to United
Mine Workers of America or its District International
Local Union 13986 in the manner set forth in the section
hereto entitled "The Remedy "
(c) Preserve and, upon request, make available to the
National Labor Relations Board and its agents, for
examination and copying, all pertinent data and records
necessary to assist in the computation of amounts of
reimbursement due hereunder.
(d) Post at all of its premises including its clinics at
Centerville, Pennsylvania, Carmichael, Pennsylvania, and
its three community offices, copies of the attached notice
marked "Appendix."" Copies of said notice, on,forms
provided by the Regional Director for Region 6, after
being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
"In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions , and order, and
all objections thereto shall be deemed waived for all purposes in the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an Agency of the United States Government
WE WILL NOT solicit membership in or pass out or
receive applications for membership in United Mine
Workers of America or its District International Local
Union 13986 or any successor to them.
WE WILL NOT recognize or deal with United Mine
Workers of America or its District International Local
Union 13986 as the representative of our employees.
WE WILL NOT give any effect whatever to our
collective-bargaining agreement which was made
retroactive to July 1, 1968, with United Mine Workers
of America and its District International Local Union
13986 or to any amendment, supplement, or addition
thereto.
WE WILL NOT in any other way interfere with the
rights of our employees to join or not to join any labor
union.
WE WILL withdraw and withhold all recognition from
United Mine Workers of America or its District
International Local Union 13986 as the bargaining
representative of our employees.
WE WILL reimburse our employees for dues checked
off since July 1, 1968, in favor of United Mine Workers
of America or its District International Local Union
13986.
CENTERVILLE CLINICS,
INCORPORATED
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board 's Office,
1536 Federal Building, 1000 Liberty Avenue, Pittsburgh,
Pennsylvania 15222, Telephone 412-644-2977.