Healdsburg General Hospital

National Labor Relations Board - Board Decisions

Jan 10, 1980

247 N.L.R.B. 212 (N.L.R.B. 1980)

212 DECISIONS OF NATIONAL
Healdsburg General Hospital and California Nurses'
Association, Petitioner. Case 20-RC-14687
January 10, 1980
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held on October 3, 1978, before Hearing Officer
Paula J. Paley. Following the hearing and pursuant to
Section 102.67 of the National Labor Relations Board
Rules and Regulations and Statements of Procedure,
Series 8, as amended, this case was transferred to the
Board for decision. Thereafter, the Employer filed a
brief. However, on March 30, 1979, the Board issued
its Decision in Sierra Vista Hospital, Inc., 241 NLRB
631 (1979) (herein called Sierra Vista), in which it
made substantive rulings affecting issues raised by the
Employer in this case. Therefore, on June 1, 1979, the
Board remanded this case to the Regional Director for
further hearings "[i]n accordance with the principles
set forth in Sierra Vista Hospital Inc.," supra, and
specifically "for the limited purpose of receiving
evidence as to whether or not the presence of
supervisors of the Employer or third parties as officers
in, on the Board of Directors of, or in other positions
of authority to speak for or bargain on behalf of the
Petitioner disqualifies that association as the collec-
tive-bargaining representative of the Employer's em-
ployees." Subsequently, a hearing was held on July 24,
1979. Thereafter, both parties filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.'
Upon the entire record in this case, the Board finds:
1. According to the parties' stipulation, Healdsburg
General Hospital, operated by AMI-Chanco, a Cali-
fornia corporation, is engaged in the operation of an
acute health care institution in Healdsburg, California.
During the calendar year ending December 31, 1977,
the Employer had gross revenues in excess of
$250,000. During the same period, the Employer
purchased and received goods and services valued in
excess of $2,500 which originated outside the State of
California. Accordingly, we find that the Employer is
engaged in commerce within the meaning of the Act,
' The Employer excepted to the Hearing Officer's granting of Petitioner's
motion to revoke subpenas. For the reasons stated in the text, we find this
exception without merit.
247 NLRB No. 30
L LABOR RELATIONS BOARD
and it will effectuate the purposes of the Act to assert
jurisdiction herein.
2. The Employer contends that Petitioner, Califor-
nia Nurses' Association, herein also called CNA, is
not qualified for certification as the collective-bargain-
ing representative of the unit employees on the ground
that it is subject to the influence, domination, and
control of supervisors and permits supervisors to be
members. We find no merit in this contention.
As stated in the Employer's brief, the parties
stipulated at the first hearing that (1) CNA was also
the petitioner in Sierra Vista Hospital, Inc., 225 NLRB
1086 (1976) (herein called Sierra Vista 1); (2) the
record of hearings in Sierra Vista I would serve as the
basis for the Board's Decision in the instant case; (3)
the relevant facts were materially identical to the facts
as they existed when Sierra Vista I was litigated; (4)
the witnesses who testified in Sierra Vista I, or
witnesses similarly situated, would testify to the same
facts in the instant case; (5) the Board would not
disregard any evidence in the Sierra Vista I record
because of the passage of time since that case was
litigated; and (6) the only exception to the above was
that Toni Propotnik was currently the president of
CNA.
Prior to the commencement of the reopened hear-
ing, the Employer issued and served three subpoenas
ad testificandum on officers and representatives of
CNA. At this second hearing, Petitioner filed a
petition to revoke the subpenas. The Employer op-
posed the petition and later made an offer of proof
with respect to what the witnesses would testify to if
they complied with the subpenas, contending that
such evidence would establish that CNA's active
representation and promotion of the interests of
supervisors employed by third parties in connection
with the terms and conditions of their employment
created a conflict of interest such as to disqualify
Petitioner as the collective-bargaining representative
of the Employer's employees. Thereafter, the Hearing
Officer granted the petition to revoke the subpenas on
the ground that the issue on which the Employer
sought to elicit testimony was outside the scope of the
remand order. The parties then stated that they did
not wish to offer any other evidence. No witnesses
were presented by either party. At the conclusion of
the hearing, the Hearing Officer, pursuant to the
remand order, transferred the case to the Board.
The Employer argues in its brief that under the
Sierra Vista test CNA is disqualified from representing
its employees in collective bargaining because of a
conflict of interest preventing CNA from giving
single-minded loyalty to the interests of employees.
The Employer submits that, because it was precluded
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HEALDSBURG GENERAL HOSPITAL
by the Hearing Officer from presenting testimony to
demonstrate this conflict of interest, the Board should
remand the case again to the Regional Director for
further hearing and should reverse the Hearing
Officer's ruling on the petition to revoke the subpenas.
Thus, the Employer asserts: (1) the Hearing Officer
adopted a "niggardly" view of the scope of the remand
order, and at an again-reopened hearing the Employer
should be granted wide latitude to present evidence as
to possible conflicts of interest; (2) a reviewing court in
this case would accept statements in the Employer's
offer of proof as true and thus would be compelled to
remand the case for further proceedings before the
Board if it agrees that the proffered evidence was
pertinent to the issue of whether a disqualifying
conflict of interest exists; and (3) a remand by a
reviewing court, which could be avoided if a full
hearing on the conflict issue were held now, is likely to
take many years with a consequent delay in resolution
of the representation question.
The Employer adduced no evidence at the first
hearing to support its "conflict-of-interest" position.
Instead the Employer stipulated, as stated above, that
the record in Sierra Vista I would serve as the record
here. However, there is nothing in that record to
indicate that the collective-bargaining process is taint-
ed by any clear and present conflict of interest between
CNA and the Employer's employees it seeks to
represent, and the Employer makes no contention to
the contrary. Similarly, the Employer adduced no
evidence at the second hearing in support of its
position. Rather, when its subpenas were revoked, the
Employer made an offer of proof as to the evidence it
could produce on the conflict-of-interest issue if
allowed to question the CNA officials who were
subpenaed. Thus, it is essential to turn our attention to
the offer of proof in order to determine whether the
Employer has met its burden of showing a conflict of
interest.
At issue then is whether the factual statements in
the Employer's offer of proof, assuming arguendo that
the Employer could prove such facts if the witnesses
were compelled to testify as subpenaed, demonstrate a
conflict of interest sufficient to disqualify CNA as
bargaining representative. Initially, as emphasized in
Sierra Vista, the burden on the Employer to show that
there is a conflict of interest is a heavy one.2 In
addition, it is clear that the Board sought in Sierra
'Sierra Vista Hospital. Inc., 241 NLRB 631, 633 (1979), quoting the court
in N.LR.B. v. David Buttrick Company. 399 F.2d 505, 507 (Ist Cir. 1968), as
follows:
There is a strong public policy favoring the free choice of a bargaining
agent by employees. The choice is not lightly to be frustrated. There is a
considerable burden on a nonconsenting employer, in such a situation as
this, to come forward with a showing that danger of a conflict of interest
interfering with the collective bargaining process is clear and present.
Vista to discourage any "fishing expeditions" or delays
in representation proceedings:
[W]e cannot agree with the dissent that our
decision herein will have the effect of delaying the
speedy resolution of representation cases or that
we are permitting Respondent "to embark on a
fishing expedition in a pond which [we] virtually
concede is dry." For it should be clear that we are
not by this decision countenancing any fishing
e.peditions in representation hearings, and if
Respondent (or any other employer who raises a
similar issue) is unable to adduce probative
evidence substantiating a claim that supervisory
participation in the affairs of the union presents a
clear and present danger of interference with the
bargaining process, its contention will be summa-
rily found lacking in merit. [241 NLRB at 634.]
The Employer asserts in its offer of proof that CNA
has an entire division known as the Nursing Service
Administration Commission devoted to the interests
of supervisors, and that the division (1) advises
supervisory nurses of their rights and responsibilities
as members of management; (2) advises them on
negotiation of their individual contracts with hospital
employers; (3) represents them in their employment
relations with the hospitals; and (4) finances, at high
cost, that representation. The Employer further asserts
that CNA is suffering a financial crisis which requires
careful allocation of scarce resources and, as a result
of the prominence of supervisors in CNA, funds
needed for representation of employees in collective
bargaining and related matters are diverted to the
promotion of supervisors' interests and, consequently,
services to bargaining unit employees are curtailed.
The Employer concludes that this high priority on
representing supervisors would not exist if supervisors
of third-party employers were not in positions of
authority in CNA and that, moreover, the supervisors
at Healdsburg are eligible to join CNA and would,
therefore, receive the benefits of representation de-
scribed above. The Employer submits that this situa-
tion presents a classic conflict of interest for, if CNA
has allegiance to supervisors, that allegiance compro-
mises its representation of bargaining unit employees
at the bargaining table. Thus, the Employer asserts
that supervisors, because they are represented by
CNA and their interests are protected by CNA, owe
allegiance to CNA as well as to their employer and
The Board in Sierra Vista further stated:
There can be no question with regard to a conflict-of-interest defense
that the Board agrees with the Court of Appeals for the First Circuit's
formulation of a respondent's burden of showing a "clear and present
danger." and that the Board will strike that defense when a respondent
fails to carry its burden. [Id. at 633, fn. 22.]
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such a relationship, inevitably, has an adverse
impact on management.
Additionally, in its offer of proof the Employer
contends that tension exists within CNA over whether
the association should serve as a labor organization at
all, i.e., that one faction advocates spending more
money on collective-bargaining functions while anoth-
er advocates spending money on other activities of the
organization, such as promoting the interests of
supervisory nurses. Thus, according to the Employer
the expenditure of much time, money, and energy is
required for this ongoing debate over whether CNA
should continue to represent employees in collective
bargaining, and the effect of this opposition is the
diversion of funds from union functions.
As the Board explained in Sierra Vista, which is
controlling here, analysis of the conflict-of-interest
question should be divided into two parts. The first
question is: Do supervisors of the Employer occupy
positions of authority in CNA sufficient to disqualify
CNA as the bargaining representative? There is no
evidence that supervisors at Healdsburg belong to
CNA nor does the Employer so assert. Instead, the
Employer contends that supervisors are eligible and
might join at some future time. However, the Board
will not, given the strong public policy favoring free
selection of a bargaining agent, resort to such specula-
tion about possible subsequent courses of conduct in
this preelection proceeding. Moreover, if that contin-
gency should arise, the Employer has ample remedies
of which it could avail itself.' Sierra Vista, supra.
The second question is: Does the active participa-
tion in CNA of supervisors of third-party employers
disqualify that labor organization from acting as a
bargaining representative for the particular employees
at Healdsburg? In this regard, the Board stated in
Sierra Vista:
Although, in such cases, the legitimate interest of
an employer in the loyalty of its supervisors is not
in issue (the active supervisors are not its own),
the presence of supervisors of third-party employ-
ers may impinge upon the employees' right to a
bargaining representative whose undivided con-
cern is for their interests. Not because, as has
been argued during the course of the debate on
this issue, there is an inherent conflict between all
supervisors and all employees, but because of the
possible relation between the employer with
whom bargaining is sought and the employer or
employers of the supervisor participating in the
bargaining process. [241 NLRB at 633.]
The Board elaborated further on this possibility:
' Bausch & Lomb Optical Company. 108 NLRB 1555 (1954); CBS Inc.. 226
NLRB 537 (1976); Sec. 14(a) of the Act.
[The conflict] would depend on a demonstrated
connection between the employer of those unit
employees and the employer or employers of
those supervisors, and, with respect to this
possibility, we stress that the participation of
supervisors (of third-party employers), even if
constituting a majority of a nurses' association's
board of directors, would not in and of itself
necessarily require disqualification, absent some
other demonstrated conflict of interest, for we do
not assume an "inherent" conflict between super-
visors and employees in the bargaining process.
[Ibid.]
The Board has clearly articulated its position that
an employer has a "heavy burden" of showing a
"direct" conflict of interest in order to disqualify a
labor organization as a bargaining representative. The
Employer has failed to meet its burden in this case.
There is no evidence in the record to indicate that any
member of the CNA board of directors has used or
could use his or her position to influence that board to
advance the competitive position of any hospital as
against the Employer. Neither does the offer of proof
in any way intimate a possible financial conflict of
interest between CNA or its agents and the Employer
or that the presence of supervisory nurses employed
by other employers on CNA's board of directors or in
other positions of authority conflict with the interests
of the hospital. Rather, the Employer claims that,
because CNA is influenced by supervisors, it cannot
give its undivided loyalty to the interests of employees.
In this the Employer alleges that CNA is, in fact,
influenced by supervisors; that CNA represents "all"
nurses including supervisors; and that such represen-
tation is costly and controversial. Even assuming that
to be the case, the Employer failed to establish that
any of these factors creates a conflict of interest
sufficient to prevent CNA from acting as bargaining
representative. As emphasized, the Board in Sierra
Vista stated that "there is no inherent conflict between
supervisors and employees in the bargaining process."
The Employer apparently takes the position that there
is and offers the above evidence as proof. However, it
is clear that the internal structure and problems of
CNA, as presented by the Employer, are irrelevant to
our inquiry absent some showing of a particular
conflict. None has been shown by the Employer either
in its offer of proof or in its brief.
Accordingly, the Employer, in urging that CNA
should be disqualified, has failed to meet either of the
tests articulated in Sierra Vista for showing that the
collective-bargaining process is tainted by any clear
and present conflict of interest. We therefore find that
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HEALDSBURG GENERAL HOSPITAL
Petitioner is a labor organization within the meaning
of the Act and is not disqualified from representing
employees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Employ-
er within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit of employees
consisting of all registered nurses employed by the
Employer at its Healdsburg, California, location,
excluding the director of nurses, department supervi-
sors, and all other employees. The Employer does not
allege that this unit is inappropriate and we have
'* See, e.g., Mercy Hospitals of Sacramento. Inc.. 217 NLRB 765 (1975); Oak
Ridge Hospital of the United Methodist Church. 220 NLRB 49 (1975).
repeatedly found such units to be appropriate for
collective bargaining.4
Therefore, we find the following employees consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All registered nurses employed by Healdsburg
General Hospital at its Healdsburg, California,
location; but excluding the Director of Nurses,
department supervisors, and all other employees.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
215