Misericordia Hospiatl Medical Center

National Labor Relations Board - Board Decisions

Feb 16, 1979

240 N.L.R.B. 823 (N.L.R.B. 1979)

MISERICORDIA HOSPITAL MEDICAL CENTER 823
Misericordia Hospital Medical Center and New York
State Federation of Physicians and Dentists.
AFPD. Petitioner. Case 2 RC 17894
February 16. 1979
DECISION AND DIRECTION OF E.E(CTION
BY CtIAIRM.\N FNNIN(i \N) Mil MItRS Jil \lK\S
AN') TR I SI)\I
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Randall N.
Harakal. Following the hearing, and pursuant to Sec-
tion 102.67 of the National Labor Relations Board
Rules and Regulations and Statements of Proce-
dures, Series 8. as amended, the Regional Director
for Region 2 transferred this case to the National
Labor Relations Board for decision. Both the Em-
ployer and the Petitioner filed briefs.
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.
Upon the entire record in this case, including the
briefs filed herein, the Board finds:
1. Employer Misericordia Hospital Medical ('en-
ter is a voluntary, not-for-profit hospital located in
New York City. Lincoln Hospital in the Bronx is mu-
nicipally owned and operated by the New York ('its
Health and Hospital Corporation. a political subdivi-
sion of a State within the meaning of Section 2(2) of
the Act. The services of physicians. dentists. and re-
lated supporting personnel "necessary for the super-
vision and delivery of health care services" at l.in-
coin Hospital are being provided b Employer
Misericordia pursuant to an affiliation agreement.
The affiliate has an administrator, Betar, who refers
to the affiliation agreement as "standard" for every
affiliation in the city and binding on the parties "out-
side of a few modifications." At the time of hearing.
the parties here involved were operating under a let-
ter of understanding stating that the affiliate had
been providing services since July . 1977. It specifies
a spending rate in dollars pending execution of the
standard agreement.
The director of the affiliation program for the cor-
poration. Seizer, described the program as having
emanated from the expertise of private hospitals in
hiring physicians and their ability to attract Ameri-
can-trained interns, residents, and qualified attend-
ing physicians. Betar confirmed this. noting also that
the affiliate was able to offer better salaries and ben-
efits than the corporation. which is "bound bh ('ivil
240 NLRB No. 119
Service scales."
lThe unit sought b\ Petitioner. and agreed to by the
Employer, consists of ph\sicians and dentists regu-
lark scheduled to work at Lincoln Hospital 20 hours
or more per week.' The affiliate is also authorized to
select the house staff; that is, interns. residents, and
fellows, and to assign and supervise them. These in-
dividuals are bargained for by a committee of interns
and residents recognized by the corporation.
Ihle Emploer would have the Board decline to
assert jurisdiction here on the ground that it cannot
effectively negotiate the terms and conditions of em-
plo3 ment of te physicians and dentists it supplies at
Lincoln Hospital.2 It views the affiliation agreement
as creating joint employers, and the affiliate as enti-
tled to the exemption of the New York ('its Health
and I lospital (orporation. The Petitioner sees the ex-
emption sought as it move to frustrate Section 7
rights. and asserts that the "fact pattern" here shows
sufficient control over labor relations with respect to
the unit sought to require the Board to assert jurisdic-
tion and direct an election. We agree.
Pursuant to the agreement, wages and fringe bene-
fits are to be consistent with those paid employees
rendering similar services to Misericordia Hospital
Medical Center. unless the corporation approves in-
creases or additions to the wages and benefits of the
affiliate's employees at Lincoln Hospital. However,
we note that, pursuant to section 6.01(e) of the agree-
ment. if service payments are insufficient to meet
costs due to any rule or enactment of a public body.
or to "substantial increases in labor costs under col-
lective bargaining settlements unforeseen at the date
of this agreement," the corporation agrees to bargain
in good faith with the affiliate to provide fair com-
pensation. Employer contends that funds from the
corporation are the affiliate's sole source of revenue
for pay to physicians and dentists, and then asserts
that on termination of the affiliation the corporation
does not even reimburse Misericordia Hospital Med-
ical (Center for costs paid pursuant to "collectively
bargained labor agreements." The provisions of the
agreement cited read as follows:
Section 14.03 (Employer's Exh. 2)
(4) The ('orporation shall be obligated to
reimburse the Affiliate in an amount equal to
the Affiliate's liability. plus applicable overhead
in Its brief i'.rimploer notes that as of that tirle there ere i) dentiitits
cltipl\ ed h the ffilihate .11 1 , lt pml hospi.il ere rcgiIrlrI scheduled
to ork 2) o1 Ilre Iholr' a leek
See 1f-lJ izic.rp Hi f,dl i,,P (un al. 224 N RH 8hr' 197t1 . anir
ad~lr[. (lpirttl coicludiitlle hat he llpl~oer', operatitons sa.ii fied the
[½oi. ' tlu irlSdltioln.ll .lild.ards ftr hedlib .are inxtitutil,
.
In it, brief it
the pendiln a'e, tie I loo r .ir ee, Iht i1 is "Geierall" ,Ubihlectl tile
tar d', midJ1 tllt h ,iwI
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for those items subject to overhead as set forth
in Section 6.03 hereof, due to employees of the
Affiliate providing contract services at the Hos-
pital as follows:
(a) For accrued vacation of all employees not
to exceed 40 days to any individual employee.
(b) For other costs paid by the Affiliate pur-
suant to collectively bargained labor agreements
(excluding house staff, attending physicians and
dentists) or due to those non-collectively bar-
gained employees serving in equivalent posi-
tions.
(c) With regard to attending phvsicians and
dentists and other employvees of the Affiliate for
such costs as are provided inAnnex K. [Emphasis
supplied.]
(d) With regard to house staff for such costs
as are set forth in Annex L.
Annex K (and Annex L} have not been included in
the exhibits, thus it cannot be determined on this rec-
ord exactly what the contract provides in this respect.
However, entirely apart from reimbursement at the
end of an affiliation, we note that Seizer testified that
the affiliate can, out of the lump sum received from
the Corporation of which Seizer is the director of
affiliation-give higher increases to staff physicians
and lower increases to chiefs of services.
Advertisements for the hire of physicians to work
at Lincoln Hospital are placed by the affiliate. Those
employed have no contact with the personnel office
of the corporation. The affiliation agreement requires
the affiliate to keep "separate books and records re-
lating to this agreement," and the affiliate has its own
bank account and maintains its own payroll. Al-
though the corporation provides forms for applicants
to sign when interviewed by the affiliate, and such
forms thereafter indicate corporation approval of the
applicant, no application submitted by the affiliate
has been rejected.' Betar recalled an instance where
the president of the corporation interviewed "direc-
tors of service" before signing their letters of appoint-
ment, a procedure that is not applicable to nonsuper-
visory employees.
Supervision of the affiliate's staff is provided by
chiefs of service pursuant to section 3.03 of the affili-
Betar testified that there are approximately 185 ph icians and dentists
on the affiliate's payroll at Lincoln Hospital. Additional physicians and
dentists apparently less than 15 are emplosed by the corpora:tion and
represented by the Doctors' (ouncll of the cilt of New York. T he president
of the Doctors' Association of the cits of New York testified that the Doc-
tors' Council is made up of the Doctors' Association and another group
called the Public Health Ph sicians' Association. and that "together we hold
the joint certificate of collective bargaining with the City of New York and
its agencies such as the Health and Hospital (Corporations." The latter has
an office of labor relations that is conferred with regarding problems con-
cerning corporation-employed physicians and dentists. Affiliate-employed
physicians and dentists are entitled to no cits benefits.
ation agreement. This function is described as "pro-
fessional direction and supervision of Contract Ser-
vices ... provided by permanent, full time Chiefs of
Service, certified in their respective specialities."
Their appointment is made with the approval of the
corporation, but it is significant that the affiliate spe-
cifically has the right to remove or terminate a chief
of service subject only to the corporation having "a
reasonable opportunity to object." In addition, in-
line supervisors employed by the affiliate are sta-
tioned at Lincoln Hospital. They also supervise those
few physicians and dentists employed directly by the
corporation at Lincoln Hospital.4
Ms. Noriega, the executive director at Lincoln
tlospital, is said to have "full responsibility for daily
operation" of Lincoln Hospital. She, or her designat-
ed representative, uses the monthly work schedules
prepared by the affiliate to make floor checks con-
cerning whether physicians and dentists are working
as scheduled, whether they have signed "in" and
"out," and whether they are wearing identification
tags while on duty. Any problems discovered are re-
ported to the affiliate administrator for correction.
Other examples given as to her responsibility include
the right to veto a proposed new service by the affili-
ate (such as an animal laboratory), the right to refuse
to discontinue an existing service (such as an or-
thopedic clinic), and the right or option to expressing
a preference for hiring physicians for general medi-
cine rather than for a cardiology clinic. The activities
described here are consistent with monitoring a con-
tract for professional services and exploring possible
expansion or restriction of such services by the sup-
plier during the course of that contract. In our view,
they do not detract from the possibility of mean-
ingful collective bargaining by the affiliate with re-
spect to those it hires to perform the contract services
furnished to Lincoln Hospital.
Seizer also testified that the corporation has only
indirect input in the hiring process of the affiliate,
that he could think of no instance of rejection of an
applicant by the corporation, and that it would be
rare to have an independent investigation of an
applicant's qualifications. He recalled no instance of
such an investigation. In his observation, the Miseri-
cordia Hospital Medical Center has a "strong input
on hiring" for the affiliate, as well as in the choice to
be made in a cutback of staff; the ultimate responsi-
bility for promotions rests with the affiliate, and the
corporation is concerned only if the affiliate pays
I We note that the medical staff bylaws, rules and regulations at Lincoln
Hospital. referred to b the Employer as controlling the privileges of physi-
cians and dentists as members of the medical staff, were being revised at the
time of hearing. Prominent in the preamble of the copy in evidence is a
reference to direct and nondelegable responsibility for medical care to pa-
tients at .incoln Hospital.
MISERICORDIA HOSPITAL MEDICAL CENTER 825
more to employees at Lincoln Hospital than is paid
at the Misericordia Hospital Medical Center. To his
knowledge, auditors of the corporation check the sal-
aries of employees of the affiliate to see whether nmore
is being paid than the affiliation agreement provides:
there is no interest in whether the amount is less.
Also according to Seizer, the amount of fringe ben-
efits to be paid those hired by the affiliate was, at the
time of hearing, an open issue under the affiliation
agreement. The executive director of the corporation
merely recommends as to retention or layoff of an
employee hired by the affiliate; review of the month-
ly schedules furnished by the affiliate is, in effect.
review of a checklist of services required on a day-to-
day basis, which is audited by the corporation, "but
not in terms of labor policy." Seizer viewed the
corporation's executive director "as a watchdog, if
you will," to see that services are being provided as
contracted for, but also as being there for her input
"through a negotiating process with the Affiliate." In
effect, should the executive director disagree with ac-
tion taken by the affiliate, the matter is negotiated
with the affiliate administrator.
In light of the foregoing. we conclude that the role
of the corporation, based upon its "general supervi-
sion," as frequently referred to in the affiliation
agreement, does not constitute effective participation
in the affiliate's professional staffing of the hospital
or in day-to-day supervision of that staff. As shown
by this record those important functions have been
ceded to Misericordia Hospital Medical Center as
the affiliate. We therefore find that a joint employer
relationship with the corporation does not exist with
respect to the contract services here discussed, and
accordingly, the affiliate does not share the statutory
exemption of the corporation. We find Misericordia
Hospital Medical Center as the affiliate, to be the
Employer of the employees sought and shall assert
jurisdiction.
The Board has recently decided that the "intimate
connection" test as applied to service furnished to
exempt entities, such as the New York City Health
and Hospital Corporation in this case, is no longer a
viable test for refusing to assert jurisdiction. See Na-
tional ran.sportation Service, Inc., 240 NLRB 565
(1979). Accordingly. we find no merit in that conten-
tion of the Employer.
2. The labor organization claims to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)( ) and
Section 2(6) and (7) of the Act.
4. The parties agree. and we find, that the follow-
ing employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time salaried physicians and dentists
and all part-time salaried physicians and den-
tists regularly scheduled to work 20 hours or
more per week employed by the Employer at the
Lincoln Hospital Medical and Mental Health
Center. East 149th Street and Morris Avenue.
Bronx, New York. excluding all chairmen. direc-
tors, deputy directors, chiefs, interns, residents,
fellows, all other employees, guards and super-
visors as defined in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]