French Hospital Medical Center

National Labor Relations Board - Board Decisions

Jan 26, 1981

254 N.L.R.B. 711 (N.L.R.B. 1981)

FRENCH HOSPITAL MEDICAL CENTER
French Hospital Medical Center' and California
Union of Health Care Professionals, Service
Employees International Union, AFL-CIO,
Local No. 723, Petitioner. Case 20-RC-14980
January 26, 1981
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND ZIMMERMAN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Christo-
pher J. Roberts on January 23, 28, and 31, Febru-
ary 4, 5, 7, and 8, and April 9, 1980.2 Following
the hearing and pursuant to Section 102.67(h) of
the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8,
as amended, and by direction of the Regional Di-
rector for Region 20, the case was transferred to
the Board for Decision. Thereafter, briefs were
filed by the Petitioner and the Employer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board, having duly considered the Hearing
Officer's rulings and the Regional Director's rul-
ings on interim appeals, finds they are free of prej-
udicial error. They are hereby affirmed. 3
' The names of the Employer and the Petitioner appear as amended at
the hearing.
2 California Nurses' Association intervened on the basis of a current
collective-bargaining relationship with the Employer.
s During the hearing the Employer challenged the Regional Director's
ability to make unbiased interim rulings regarding various objections and
its request for a continuance. The Employer asserts that the Regional Di-
rector as a member of the Senior Executive Service established by the
Civil Service Reform Act of 1978, 5 U.S.C. 2301, er sreq., could receive a
bonus. One of the elements used to determine whether or not she re-
ceives a bonus, and its amount, is the speed with which representation
cases are proc(essed within her Region. The Employer claims that he Re-
gional Director made adverse interim rulings and denied its request for a
continuance because of pecuniary interest, thereby violating its right to
due process.
In this regard the Employer requested, and the Board issued, ubpoenas
ad testificandum and duces terum to the Regional Director instructing her
to appear and bring certain documents pertaining to the Senior Executive
Service wage system. The Employer withdrew its subpoena duce trecum
after receiving the requested documents pursuant to Sec. 102 117(c) of
the Board's Rules and Regulations. Thereafter, the Hearing Officer grant-
ed the General Counsel's petition to revoke the subpoena ad estifican-
dum. The Regional Director deemed it inappropriate to rule on the Em-
ployer's interim appeal and transferred it to the Board at the close of the
hearing.
At the outset we note that we have affirmed both the Hearing Officer's
and the Regional Director's rulings, supra. These affirmations were based
on the objective evidence in the record. Indeed, all the Regional Direc-
tor's rulings are subject to review by the Board, the members of which
are not in the Senior Executive Service. Also, the rapidity with which
representation cases are processed is but one of many factors considered
under the Senior Executive Service compensation plan. Another factor is
254 NLRB No. 83
Upon the entire record in this case, the Board
finds:
1. French Medical Center operates an acute
health care institution in San Francisco, California.
The parties stipulated that within the past 12-
month period the Employer had gross revenues in
excess of $500,000. During the same period, the
Employer purchased goods valued in excess of
$5,000 which originated outside the State of Cali-
fornia. Accordingly, we find that the Employer is
engaged in commerce within the meaning of the
Act, and it will effectuate the purposes of the Act
to assert jurisdiction herein.
2. The Employer stipulated, and we find, that
the Intervenor, California Nurses' Association,
herein called CNA is a labor organization within
the meaning of Section 2(5) of the Act.
The Employer contends, however, that CNA
and more specifically its regional office, Golden
Gate Nurses' Association (GGNA), should be dis-
qualified from representing the Employer's regis-
tered nurses. The Employer submits that GGNA
has supervisors of other health care related institu-
tions on its board of directors and also that one of
its members is employed as a supervisor by the
Employer. The Employer cites Sierra Vista Hospi-
tal, Inc., 241 NLRB 651 (1979), wherein the Board
recognized that in some circumstances the partici-
pation of supervisors in the internal operations of a
state nurses' association may disqualify the associ-
ation from representing certain employees. Howev-
er, the Employer must meet the "heavy burden" of
showing that the participation of supervisors pre-
sents a "clear and present danger" of a conflict of
interest which compromises the labor organiza-
tion's bargaining integrity.
The following four individuals are supervisors of
other employers and members of the GGNA's
board of directors: Janet Veatch, head nurse at the
University of California pediatric clinic located in
San Francisco; Maura Carroll, associate dean for
continuing education at the University of Califor-
nia's School of Nursing in San Francisco; and
Sandra Weiss and Ruth Colavecchio, both of
whom are employed by the San Francisco Consor-
tium.4 The Employer contends that these individ-
uals are employed by its competitors and/or insti-
tutions that employ nurses and thus compete in the
the quality of the Regional Director's decisions and the percentage of re-
versals by the Board
Bascd on the foregoing, and he position of the General Counsel set
fiorth in the petition to revoke, we find no merit to the Employer's con-
tention and consequently we find that there is no need for the Regional
Director to testify V'e hereby affirm the Hearing Officer's ruling revok-
ing the subpoena ad terficandum
4The Consortium is funded by state and Federal grants to conduct
various research projects inolving nurses in the health care field
711
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hiring of qualified nurses. Jan Gersonde is em-
ployed as a supervisor by the Employer. The Em-
ployer argues that by the very nature of her em-
ployment a conflict of interest is created. Addition-
ally, it is the Employer's position that because
these individuals serve on the GGNA's board of
directors they are in a position to control the selec-
tion and functions of nurse advocates. Nurse advo-
cates are employed by the GGNA and participate
in a variety of ways in GGNA's organizational and
representational activities.
The Employer alleges that there is a disqualify-
ing conflict of interest in the active participation on
behalf of the Intervenor by supervisors of other
hospitals. However, having carefully reviewed the
record, we find no support for the Employer's con-
tention that the supervisors employed by the other
organizations could influence, to an impermissible
degree, the collective-bargaining relationship be-
tween the employer and the Intervenor, a factor
necessary to establish a clear and present danger of
a conflict of interest. 5 Nor has the Employer
shown that its own supervisor would or could
exert any influence on the Employer's collective-
bargaining relationship.
The Employer's contention that the position of
nurse advocate is controlled by the GGNA's board
of directors and consequently could be manipulated
to the detriment of the Employer or its employees
is also without merit. Lois Riboli testified that she
was currently the only nurse advocate in the
region and had held that position for approximately
3 years. She stated unequivocally that she had
never received any directions from either the state
or the regional board of directors. She also testified
that her supervisor was the director of the pro-
gram. Moreover, while she does attend collective-
bargaining sessions, most of the negotiations are
conducted by labor representatives, not by the
nurse advocates.
In sum, we find that the potential of GGNA's
board of directors to influence the collective-bar-
gaining activities of the Employer is nebulous at
best and certainly not within the limits necessary to
sustain a finding of "clear and present danger" as
contemplated in Sierra Vista.6
The Employer contends that the Petitioner, Cali-
fornia Union of Health Care Professionals, Service
Employees International Union, AFL-CIO, Local
No. 723, is not a labor organization and that the In-
ternational Union is the Petitioner in this case.
5 Abington Memorial Iospital, 250 NLRB 682 (1980); and Lod Memorl-
al Hospital Association, Inc., 249 NLRB 786 (1980).
6 We are also not unmindful of the fact that the Employer and the In-
tervenor have had a collective-bargaining relationship for a period of at
least 30 years
The Petitioner was formed to represent health
care professionals with respect to wages, hours,
and other conditions of employment. It has its own
staff and elected officers; it issues a newsletter.
The Employer argues that Local 723 is a "sham"
because it currently depends on the International
Union for its financial existence. However, the Pe-
titioner does not yet represent anyone and conse-
quently receives no dues.
The Employer next contends that even if the Pe-
titioner is a labor organization it should be disquali-
fied from representing the Employer's registered
nurses because another Local of the same Interna-
tional represents the nursing attendants and li-
censed vocational nurses (LVNs). The Employer's
argument is that under California law a registered
nurse is responsible for insuring that nursing atten-
dants and LVNs adequately perform their duties.
The Employer asserts that, because instructions or
counseling may be given, the Employer would be
faced with the divided loyalty of its registered
nurses, who would be torn between professional re-
sponsibility and a reluctance to counsel a fellow
employee who is a member of another local be-
cause of union sympathy or fear of union retribu-
tion.
We find the Employer's contention is not sup-
ported by the record. We cannot presume that a
registered nurse's legal, professional, and moral re-
sponsibility for insuring that the nursing attendants
and LVNs administer adequate patient care would
be outweighed by an appeal to union solidarity
which is only conjecture.
In its final argument regarding the Petitioner, the
Employer states that at the "very least" the Board
should amend the petition to reflect the Petitioner's
association with the International Union. This
amendment was requested by the Petitioner at the
hearing and has been effectuated. See footnote I,
supra.
On the basis of the foregoing, we find that the
Petitioner is a labor organization within the mean-
ing of the Act and that it is not disqualified from
representing the employees of the Employer.
3. The petitioned-for unit is "all graduate regis-
tered nurses employed by the Employer perform-
ing nursing services." The Petitioner and the Inter-
venor take the position that this is an appropriate
unit. We note that the petitioned-for unit is the
same unit for which the Employer and the Inter-
venor have negotiated collective-bargaining agree-
ments for over 30 years. The Employer has not
712
FRENCH HOSPITAL MEDICAL CENTER
taken a position regarding the appropriateness of
the unit.7
The Employer does, however, contend that per-
manent charge nurses are supervisors and should
be excluded from the unit.8 Charge nurses work in
various sections within the hospital and report to
head nurses whom the parties agree are supervisors
within the meaning of the Act.
The charge nurse assigns staff registered nurses,
LVNs, and attendants to teams. The teams are as-
signed to various patients. After making the initial
assignments the charge nurse may render patient
care, but generally she insures that the teams are
performing their assignments, and the various re-
ports and records are completed. One report is the
"acuity level." The acuity level is determined by
multiplying the seriousness of the illnesses of the
patients by the number of patients. The numbers in-
dicating the severity of the illness are accompanied
by specific definitions. The charge nurse need only
determine within which definition the patient best
fits and choose the corresponding number. This
data is sent to the nursing office and is used to de-
termine the staffing requirement for the following
shift. If overtime is required, the charge nurse re-
quests the authorization from the head nurse.
Charge nurses do not have the authority to hire,
transfer, suspend, lay off, recall, or discharge em-
ployees. Nor do they possess authority effectively
to recommend these actions. They do counsel em-
ployees, and notations of the counseling may be
placed in the employee's personnel folder. If an in-
cident occurs which the charge nurse believes
might require discipline, she is expected to write an
incident report and send it to the head nurse. If the
head nurse believes discipline may be warranted
she will conduct an investigation and complete the
disciplinary action form, if necessary.
Charge nurses do evaluate nonunit attendants.
They do not evaluate other staff nurses, but they
have been consulted if the head nurse believes that
I The Employer did, however, introduce evidence concerning other
employees. In Newton-Wellesley Hospital, 250 NLRB 409 (1980). we held
that the presumption of the appropriateness of a unit of registered nurses
is rebuttable. However, there is nothing in the evidence adduced by the
Employer which on its face demonstrates that this unit is inappropriate,
and the Employer does not urge that the unit he found inappropriate.
Indeed the Employer advances no argument with respect to the rel-
evance of its evidence.
" The position of charge nurse had been rotated among all the staff
registered nurses. At the time of the hearing the Employer indicated that
it had permanently filled eight charge nurse positions and it was its inten-
tion to have only permanent charge nurses.
she is not adequately familiar with the staff nurse
to complete the evaluation. However, the responsi-
bility for the evaluation rests with the head nurse.
To the extent that charge nurses assign specific
employees to teams and the teams to specific pa-
tients, this is a routine function; the charge nurse
merely matches the employee's qualifications with
the immediate needs of the patients. The Board has
frequently held that this type of authority to assign
work is more akin to the exercise of professional
rather than supervisory responsibility. 9 Similarly,
the preparation of the acuity report under estab-
lished guidelines does not reflect the exercise of su-
pervisory discretion or judgment. It is also clear
that the counseling performed by the charge nurse
consists of observing inadequacies in an employee's
professional competence and suggesting improve-
ments. The fact that charge nurses may counsel or
evaluate other employees, particularly when those
employees are nonunit employees, is clearly not
dispositive of their statutory status.1 0
Based on the foregoing, we conclude that charge
nurses perform their duties and functions predomi-
nantly in the exercise of professional judgment inci-
dental to the treatment of patients. Their duties and
authority are all directed toward quality patient
care and this, without more, does not constitute su-
pervisory status. 1
Accordingly, we find that the permanent charge
nurses are statutory employees; that a question af-
fecting commerce exists concerning the representa-
tion of certain employees of the Employer, and
that, considering the evidence before us, the unit,
as described below, is appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All graduate registered nurses employed by
the Employer performing nursing services; ex-
cluding head nurses, administrative nurses, all
other employees, guards and supervisors as de-
fined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
(allr Hospital. Ld., 220 NLRB 1339 1975): The Tlrusrees of Nobl
Hospital. 218 NLRB 1441 (1975).
o l7exas Institute for Rehabilitation and Research, 228 NLRH 578
(1977).
'' Evenide South. A Division of Gerialrics. Inc., 239 NLRB 287 (1978).
Miehurr, Medical College. 219 NLRB 488 (1975)
713