Lancaster Osteopathic Hospital Assn.

National Labor Relations Board - Board Decisions

Nov 29, 1979

246 N.L.R.B. 600 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lancaster Osteopathic Hospital Association, Inc.' and
Pennsylvania Nurses Association, Petitioner. Case
4 RC 12930
November 29, 1979
DECISION AND DIRECTION OF ELECTION
BY MEMBEIRS PNEIL.(), MURPIIY, ANI) TRUES)Al.A
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held on December 19 and 20, 1977, before Hear-
ing Officer Phyllis H. Allen. Following the hearing,
and pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations. Series 8, as
amended, the Regional Director for Region 4 trans-
ferred this case to the Board. Thereafter, the Em-
ployer and the Petitioner, Pennsylvania Nurses Asso-
ciation (PNA), filed briefs.
On March 30, 1979, the National Labor Relations
Board issued its Supplemental Decision and Order in
Sierra Vista Ho.pital, Inc., 241 NLRB 631, in which
the Board set forth its policy regarding conflict of in-
terest issues raised by the active participation of su-
pervisors of the employer with which a labor organi-
zation seeks to bargain, or by supervisors of third
parties, in the internal affairs of state nurses associ-
ations. Inasmuch as these issues also had been raised
in the instant proceeding, the Board, on May 18,
1979, issued its Order remanding the proceeding to
the Regional Director for Region 4 "for the limited
purpose of receiving evidence as to whether the pres-
ence of supervisors of the Employer or of third parties
as officers in, on the board of directors of, or in other
positions of authority to speak for or bargain on be-
half of the Petitioner disqualifies that association as
the collective-bargaining representative of the Em-
ployer's employees." Pursuant to said Order, a hear-
ing was held on June 22, 1979, and the proceeding
was again transferred to the Board. Thereafter, the
Employer filed a supplemental brief.2
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 has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the Board
finds:
t The name of the Employer appears as amended at the hearing.
2 Subsequent to the initial hearing and transfer of this case to the Board,
the Employer requested oral argument. That request was not renewed after
the hearing held on remand and it is unclear whether the Employer still
desires oral argument. In any event, the request is hereby denied. as the
record and the briefs adequately present the issues and the positions of the
parties.
I. The parties stipulated that the Employer is a
nonprofit Pennsylvania corporation engaged in pro-
viding short-term acute patient care at its Lancaster,
Pennsylvania, location. The parties further stipulated
that during the calendar year preceding the Decem-
ber 1977 hearing, the Employer's gross volume of
business exceeded $500,000, and the Employer's pur-
chases of goods directly from outside the Common-
wealth of Pennsylvania exceeded $50,000. Accord-
ingly, we find that the Employer is engaged in
commerce within the meaning of the Act and that it
will effectuate the purposes of the Act to assert juris-
diction herein.
2. The record shows that PNA is an organization
in which employees participate and which exists, at
least in part, for the purpose of representing its mem-
bers in collective bargaining. We find, therefore, that
PNA is a labor organization within the meaning of
Section 2(5) of the Act.
The Employer asserts, however, that PNA should
be disqualified from representing the Employer's
nurses because supervisors and management level
employees serve as officers in, and on the board of
directors of, PNA. In Sierra Vista, supra, we recog-
nized that under some circumstances the participa-
tion of supervisors in the internal operations of a state
nurses association such as PNA may serve to disqual-
ify the nurses association from representing certain
employees. Such disqualification will result when an
employer meets its burden of showing that the par-
ticipation of its own supervisors, or supervisors of
third parties, presents a "clear and present danger" of
a conflict of interest interfering with the collective-
bargaining process. The Employer herein has not met
that burden.
The Employer concedes that none of its own super-
visors currently serves in a leadership capacity in
PNA. Thus, the Employer's interest in the loyalty of
its own supervisors and the employees' interest in a
bargaining representative uncompromised by loyalty
to their Employer are not in issue. The Employer as-
serts, however, that the Board should "give little
weight to the fact that none of [PNA's] present lead-
ers work for [the Employer]," since "It]here is nothing
in [PNA's] structure or by-laws which would bar such
persons from holding office." We do not agree. We
emphasized in Sierra Vista the heavy burden imposed
upon an employer which seeks to establish a disquali-
fying conflict of interest. We find the potential that
the Employer's own supervisors may in the future
hold office in PNA does not constitute a "clear and
present danger of interference with the bargaining
process."
Nor has the Employer met its burden of establish-
ing that the presence of supervisors employed by
third parties in positions of authority in PNA war-
246 NLRB No. 96
600
LANCASTER OSTEOPATHIC HOSPITAI. ASSOCIATION
rants disqualification of PNA. Even assuming. argu-
endo, that a majority of the officers and directors of
PNA are employed by third parties as supervisors
and management-level employees,' the Employer has
not established a resulting conflict of interest. At the
hearing, in its initial brief and its supplemental brief,
the Employer contended that through the organiza-
tional structure and policymaking hierarchy of PNA.
"the supervisory dominated leadership of PNA] is
able to directly influence the Association's collective
bargaining activities." The contention that this "influ-
ence," in itself, creates a conflict of interest presup-
poses an inherent conflict between those supervisors
in positions of authority in PNA and the employees
represented by PNA. Again, as we stated in Sierra
Vista, we do not assume an inherent conflict in the
bargaining process between supervisors and employ-
ees. The active involvement in PNA of a supervisor
employed by a third party may create a conflict of
interest "[n]ot because ... there is an inherent conflict
between all supervisors and all employees, but be-
cause of the possible relation between the employer
with whom bargaining is sought and the employer or
employers of the supervisor participating in the bar-
gaining process."4 With respect to supervisors of third
parties, a disqualifying conflict of interest may result
from a demonstrated connection between the em-
ployer of the employees whom the nurses association
seeks to represent and the third party employer or
employers. In this case, the Employer has merely as-
serted that some of PNA's leaders hold supervisory
positions in hospitals which are in competition with
the Employer for the services of nurses. This bald
assertion that the Employer competes in some man-
ner with other employers clearly is insufficient to
demonstrate a clear and present danger of a conflict
of interest which compromises PNA's bargaining in-
tegrity.5 Accordingly, we find that PNA is not dis-
qualified from representing the Employer's employees
for purposes of collective bargaining.
I The evidence introduced at the June 22. 1979, hearing included a listing
of all officers and members of the board of directors of PNA, including their
places of employment and positions at the time of the hearing. Although the
record contains some conclusionary testimony with respect to the supervi-
sury status of the officers and directors. the record does not clearly estabhlish
which of these individuals, if any. are in fact supervisors within the meaning
of the Act.
4Sierra Vista, supra
At the hearing, the parties stipulated that one of the Employer's supervi-
sors, Barbara Knosp, currently serves as a member of the board of directors
of the Lancaster County Nurses Association, which is also known as D)istrict
16 of PNA. There is no showing or contention, however, that the count or
district organizations play a role in collective bargaining or negoltiations Nor
is there a showing or contention that. by virtue of her position in the counts
organizations, Knosp has a role in the state organization's internal affairs.
The Employer cites Knosp's position in support of its contention that per-
sons in leadership positions on the counts level will "'work their way up" to
leadership positions on the statewide leel.
In the absence of a showing that one or more of the Eimployer's own
supervisors serves in a position of authority in PNA and in the absence of a
demonstrated connection or relation between the Employer and the employ-
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. In its petition PNA requested an election in a
bargaining unit consisting of "all full-time and part-
time registered nurses including staff nurses, charge
nurses and head nurses. and all full-time and part-
time licensed practical nurses; excluding all guards,
other professional and non-professional employees,
and supervisors as defined in the Act." During the
hearing, the parties stipulated that full-time head
nurses and full-time charge nurses are supervisors
and, therefore, should be excluded from the bargain-
ing unit.6 Also during the hearing. PNA indicated
that if a combined unit of registered nurses (RNs) and
licensed practical nurses (LPNs) is found inappropri-
ate, it would proceed to an election in two separate
units, one composed of RNs, the other composed of
LPNs. PNA further indicated that if the LPNs are
found not to constitute a separate appropriate unit, it
would proceed to an election in a unit of the Employ-
er's RNs. The Employer agreed at the hearing that a
separate unit of RNs is appropriate. It asserts, how-
ever, that the LPNs must be included in a unit of all
the Employer's technical employees. PNA has ex-
pressed no interest in representing any of the Employ-
er's employees other than its RNs and LPNs.
It is well established that in the health care indus-
try, absent special circumstances such as a stipulation
by the parties. or existing separate representation, or
a separate bargaining history, LPNs should be in-
cluded in a bargaining unit of all technical employees
and a separate unit of L PNs, excluding other techni-
cal employees, is an inappropriate bargaining unit.7
The record clearly establishes a community of interest
among the Employer's LPNs and other technical em-
ers of supervisors ho do serve in positions (f authority in PN A, we need not
examine the internal affairs Iof PNA or the role the third party supervisors
play in the bargaining process. However, we note that PNA has taken steps
to insure that collective bargaining at the local level is insulated from super-
visor) participation or influence. Thus. ultimate responsibility for collective
bargaining lies with the local bargaining unit, membership in which is lim-
ited to bargaining unit personnel. (Collective-hargaining agreements are ne-
gotiated by the local bargaining committee and, while PNA staff members
assist and advise the local committee on matters relating to collective bar-
gaining, the PNA staff has no veto power oser contract proposals or the final
substantive content of collective-bargaining agreements.
I The parties further stipulated at the hearing that, for the purposes of the
unit descriptin, the phrase "part-time" shall mean those emplioyees '"ho
are regularly scheduled at least two shifts n each biweekly pay period during
the tenure of' their employment. excluding casuals and PRN nurses."
'See Poniiac Oiep,pahii- Horplal. 227 N IRB 1706 1977). and cases cited
therein. See also The Preshvrerian Medical (enter. 218 NL.RB 1266 (1975).
where petitioner sought a combined unit of RNs and .PNs. Ihere the Board
noted that inclusion f LPNs in the same bargaining unit with RNs is pro-
hlbited unless the latter are given a separate vote as to whether, as profes-
sionals. they wish to be included n a unit with nonprofessional employees.
The BHoard pointed out that if the RNs were to sote for separate representa-
tion. but both RNs and I.PNs voted fr representation. two separate bar-
gaining units would result. contrary to the congressional admonition against
unit prolileratiin in the health care industr.
601
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees and reveals no special circumstances which
would warrant departure from our well-established
policy of including LPNs in a bargaining unit with
other technical employees.8 Inasmuch as the Employ-
er's LPNs should be included in a bargaining unit
with other technical employees, we find PNA's re-
quested unit comprised of LPNs and RNs is inappro-
priate. We also deny PNA's alternative request for
separate units of LPNs and RNs, since a separate unit
of LPNs would also be inappropriate. Accordingly,
and in light of both PNA's expressed willingness to
proceed to an election is a unit of RNs and the Em-
ployer's agreement that a separate unit of RNs is ap-
propriate, we shall direct an election 9 in the following
I For the reasons set forth in his dissenting opinions in Nathan and Miriam
Barnert Memorial Hospital Association db/a Barnerl Memorial Hospital
Center, 217 NLRB 775 (1975). and in Newington Children's Hospital, 217
NLRB 793 (1975), Member Penello would not find a unit of technical em-
ployees, including LPNs, to be appropriate, inasmuch as he would include
technical employees, including LPNs, in a broad service and maintenance
unit. See also his dissenting opinion in Allegheny General Hospital, 239
NLRB 872 (1978).
c In its supplemental brief, the Employer has requested that the showing of
interest ubmitted by Petitioner be checked against a list of the Employer's
RNs employed on June 10, 1979, inasmuch as the petition was filed on
November 14, 1977, and assertedly 41 percent of the RNs employed on that
date are no longer employed by the Employer. We reject the Employer's
request. The showing of interest requirement is an administrative device
designed both to effectuate employee free choice through the running of
representation elections, and to conserve the limited resources available to
the Agency by insuring that a significant number of employees actually de-
sire to participate in such elections. See the Board's Rules and Regulations
unit, which we find appropriate for the purpose of
collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and part-time registered nurses, in-
cluding staff nurses, employed at the Employer's
Lancaster, Pennsylvania, location: excluding
full-time head nurses and full-time charge
nurses, all guards, other professional and non-
professional employees, and supervisors as de-
fined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
MEMBERS TRUESDALE, concurring:
I agree with my colleagues' determination that nei-
ther a combined unit of the Employer's RNs and
LPNs nor a separate unit of LPNs constitutes an ap-
propriate unit. Additionally, I agree with their finding
appropriate a separate unit limited to the RNs. Ac-
cordingly, and for the reasons set forth in my concur-
ring opinion in Baptist Hospitals, Inc., d/b/a Western
Baptist Hospitals, 246 NLRB 170 (1979), and my dis-
sent in Sierra Vista Hospital, Inc., supra, I concur
with my colleagues' decision and direction of an im-
mediate election in the unit found appropriate.
and Statements of Procedure, Series 8, as amended, Sec. 101.18(a). The ques-
tion of whether Petitioner represents a majority of the employees in the
appropriate bargaining unit can best be resolved on the basis of the election.
602