Kodiak Island Hospital

National Labor Relations Board - Board Decisions

Sep 7, 1979

244 N.L.R.B. 929 (N.L.R.B. 1979)

KODIAK ISLAND HOSPITAL
Lutheran Hospitals and Homes Society of America,
d/b/a Kodiak Island Hospital and Alaska Nurses
Association, affiliated with the American Nurses As-
sociation, Petitioner. Case 19 RC-8915
September 7, 1979
DECISION ON REVIEW
BY CHAIRMAN FANNING AND MEMBERS PNEI.I.O.
MURPHY, AND TRUESDALE
On September 27, 1978, the Regional Director for
Region 19 issued a Decision and Direction of Elec-
tion in this proceeding in which he found, contrary to
the Employer, that the Petitioner herein is a labor
organization within the meaning of Section 2(5) of the
National Labor Relations Act, as amended, and is
qualified to represent the petitioned-for units of the
Employer's professional and nonpofessional employ-
ees. Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and Regu-
lations, Series 8, as amended, the Employer filed a
timely request for review of the Regional Director's
decision on the grounds, inter alia, that it raised a
substantial question of law and policy and contained
clearly erroneous and prejudicial factual findings.
The Petitioner filed a brief in response to the request
for review.
By telegraphic order dated October 27, 1978, the
Board granted the Employer's request for review and
stayed the election. Thereafter, by order dated May
14, 1979, the Board remanded the case to the Re-
gional Director for purposes of reopening the hearing
to take further evidence in light of the Board's recent
decision in Sierra Vista Hospital, Inc., 241 NLRB 631
(1979), in which it made substantive rulings affecting
issues raised by the Employer's request for review.'
Other issues raised by the request for review were not
affected by the remand order and remained for dispo-
sition by the Board.
Having considered the existing record in this pro-
ceeding, including the Employer's brief on review, the
Board has decided that, under the circumstances of
this case, a decision on those issues not affected by
remand order is now warranted. Accordingly, the
Board makes the following findings:
The Employer operates a 25-bed hospital in Kodi-
ak, Alaska. The Petitioner seeks to represent, in sepa-
rate units, the Employer's professional employees (in-
cluding approximately eight registered nurses) and
nonprofessional employees.2 One issue involves the
I For the reasons stated in his dissenting opinion in Sierra Vista, supra,
Member Truesdale would not have remanded this case for further hearing.
2 In its petition, the Petitioner states the number of employees it seeks to
represent is approximately 35. The Employer claims the total number of
employees in the units is approximately 56.
effect of Petitioner's constitution and bylaws on its
ability to represent the unit employees.
The Petitioner's constitution limits membership to
RNs, and its bylaws provide for representation of
non-RN units on a "fee-for-service" basis. Pursuant
to this arrangement, the Petitioner charges the local
unit a fee of 1.5 percent of gross wages plus $5 per
month per unit member for its services in negotiating
and administering a collective-bargaining agreement.
The local unit at Kodiak Island Hospital has officers
and a dues structure, and at the time of the represen-
tation hearing was in the process of formulating by-
laws and a written understanding concerning the fee-
for-service arrangement. The Petitioner provides col-
lective-bargaining services to employees through its
collective-bargaining arm, the Committee on Eco-
nomic and General Welfare (hereinafter the El&GW
Committee), which is headed by the Petitioner's ex-
ecutive director. The E&GW Committee's "State-
ment of Philosophy" guarantees local units "complete
autonomy" with respect to collective-bargaining deci-
sions, including the right of final ratification of all
negotiated employment agreements.
The Petitioner has an agreement with the Pofes-
sional and General Employees Council (hereinafter
PAGE), whereby the Petitioner pays a fee to PAGE
in return for PAGE's services in negotiating and ad-
ministering collective-bargaining agreements on be-
half of the Petitioner. The agreement expressly pro-
vides that it is to be construed as a delegation
agreement whereby PAGE performs certain func-
tions "at the direction of' and "subject to the ap-
proval of' the Petitioner. The Petitioner retains all
certifications, all collective agreements are expressly
subject to employee ratification, and the agreement is
terminable on 120 days' notice prior to the expiration
of any collective-bargaining agreement.
The Employer contends. inter alia, that the Peti-
tioner is not a "labor organization" within the mean-
ing of Section 2(5) of the Act because a labor organi-
zation must be one in which employees participate,
and here the overwhelming majority of unit employ-
ees cannot participate in the Petitioner's internal af-
fairs due to the restriction of membership to RNs. We
find no merit in this argument. It is well established
that in determining labor organization status "the
willingness of a union to represent employees, rather
than the eligibility of the employees to membership in
that union, is controlling" under the Act.3 By filing
the instant petition, the Petitioner has indicated its
willingness to represent the employees. Moreover, al-
though only RNs are accorded full membership and
'Community Service Publishing. Inc., 216 NLRB 997. 1000 (1975):
Buzza-Cardoza Comparny. 99 NLRB 40, fn. 4 (1952); "M" Sysrem Inc. .M0-
bile Home Div.. Mid-Stares Corp. 115 NLRB 1316 (1956).
244 NLRB No. 151
930 DECISIONS OF NATIONAl
participation rights, non-RNs are accorded participa-
tion rights in the collective-bargaining process by the
provisions of the E&GW Committee's "Statement of
Philosophy" and he terms of the "fee-for-service"
agreement between the Petitioner and the local unit.
In addition, the record shows that the unit employees
will elect representatives to the negotiating table and
will participate in formulating bargaining proposals.
Thus, the Petitioner is an organization in which the
unit employees will participate. In view of the forego-
ing, we conclude that the Petitioner is a "labor or-
ganization" within the meaning of the Act.
We find no merit in the Employer's further conten-
tion that the Petitioner is not a "labor organization"
because it has contractually relinquished all powers
of representation to another organization (PAGE).
The record clearly reveals that the PAGE-Petitioner
relationship involves a revocable delegation of bar-
gaining authority and not the type of irrevocable
delegation found in N.L.R.B. v. Annapolis Emergency
Hospital Association, Inc., db/a Anne Arundel Gen-
eral Hospital, 561 F.2d 524 (4th Cir. 1977). Further-
more, contrary to the Employer's assertion that
L LABOR RELATIONS BOARD
PAGE has become the controlling agent for bargain-
ing, the record reveals that the contract establishes a
principal-agent relationship. Should the Petitioner be
certified, it will deal with the Employer through its
agent PAGE, which will be at all times contractually
bound to act at the Petitioner's direction. Such an
arrangement is not unlike a situation where parties
hire experienced negotiators to handle the negotiating
function for them. In our view, this arrangement does
not disqualify the Petitioner as a labor organization.4
Accordingly, in view of our resolution of the fore-
going issues, we hereby affirm the Regional Director's
decision to the extent consistent herewith. The Re-
gional Director may now proceed in accordance with
our previous remand order.
' The Employer also contends that the Petitioner is a "front" for PAGE.
and that this "surreptitious" arrangement precludes employees from voting
for a representative "of their own choosing" as guaranteed by Sec. 7 of the
Act. We disagree. There is no record evidence of subterfuge whereby one
labor organization is attempting to "piggy-back" on the name and reputa-
tion of another in order to gain bargaining rights, and no evidence even to
suggest that the Petitioner anticipates affiliating with PAGE after obtaining
Board certification. See General Dynamics Corporation. Convair Division, 175
NLRB 1035 (1969).