New York Medical College

National Labor Relations Board - Board Decisions

Sep 3, 1982

263 N.L.R.B. 903 (N.L.R.B. 1982)

NEW YORK MEDICAL COLLEGE
New York Medical College and New York State
Federation of Physicians and Dentists, affiliated
with the American Federation of Teachers,
AFL-CIO, Petitioner. Case 2-RC-18687
September 3, 1982
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a petition filed under Section 9(c) of the
National Labor Relations Act, as amended, a hear-
ing was held before Hearing Officer Paul Rickard.
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 2 issued an order
transferring this case to the Board for decision.
The Employer and the Petitioner filed briefs in
support of their respective positions.
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
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
1. The Employer, New York Medical College,
herein referred to as the College or the Employer,
is a not-for-profit New York State corporation
whose principal office and facility are located in
Valhalla, New York. It is engaged in providing
medical education, research, and treatment and
care of patients at Valhalla and in New York City.
During the 12 months preceding the hearing, the
Employer had gross revenues in excess of $1 mil-
lion, exclusive of restrictive grants, and during the
period purchased goods and supplies valued in
excess of $50,000 directly from suppliers located
outside the State of New York. Based on the
record and the foregoing stipulated facts, we find
that the College is engaged in commerce within the
meaning of the Act and that it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain 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)(1)
and Section 2(6) and (7) of the Act.
4. As indicated above, the College is located in
Valhalla, New York, and operates a medical school
263 NLRB No. 124
that offers a 4-year program at the end of which
students become physicians. In addition, the Col-
lege has a Graduate School of Basic Sciences and
operates the Mental Retardation Institute (MRI) in
Valhalla and the Center for Comprehensive Health
Practice (CCHP) in Manhattan, New York City.
The College is also affiliated with and provides
professional staff for four hospitals; namely, West-
chester County Medical Center in Valhalla, which
is owned by Westchester County, Lincoln Hospital
in Bronx, New York City, Metropolitan Hospital in
Manhattan, New York City, and Bird S. Coler
Hospital in Queens, New York City, which are
owned by New York City through its Health and
Hospitals Corporation.
The Petitioner seeks to represent all professional
employees of the Employer who work at the fore-
going facilities 8 or more hours per week, includ-
ing physicians, Ph.D's, dentists, and registered
nurses, but excluding interns, residents, employees
represented by another labor organization, guards,
and supervisors as defined in the Act.
The College contends that the Union's petition
should be dismissed for the following reasons:
(1) The College professionals are predominantly
faculty members in a mature institution of higher
learning and as such are managerial employees
who cannot properly be included in the proposed
unit under the criteria set forth by the Supreme
Court in the Yeshiva case.'
(2) New York City and Westchester County are
joint employers with the College and therefore the
College professionals employed at the four affili-
ated hospitals are exempt from the Board's jurisdic-
tion under Section 2(2) of the Act.
The College further contends that if the Board
decides not to dismiss the petition, it should ex-
clude from the unit the physicians and MRI and
CCHP professionals as managerial employees be-
cause they are intimately involved in the develop-
ment and effectuation of College policy. In the al-
ternative, the Board should exclude the College
physicians, particularly section chiefs, division
chiefs, associate chiefs, and associate directors, as
supervisors within the meaning of the Act. 2
The major governing body of the College is the
board of trustees. 3 Its chief representative is Dr.
i N.LRB. v. Yeshiva University, 444 U.S. 267 (1980).
' However, the parties stipulated, without prejudice to the foregoing
contentions of the College, that the following classifications are manage-
rial and/or supervisors: Dean and associate deans; department chairmen;
chiefs of service and directors of service; MRI administrator, executive
director, associate executive director, medical and other department di-
rectors, and principal; and CCHP director, associate director, and site ad-
ministrators.
s Although the bylaws of the College provide that four members of
the faculty are to serve as nonvoting members of the board, and that fac-
ulty members are to serve as voting members of the board's committees,
the record shows that in fact no faculty members serve in either capacity.
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph Cimino, the president and chief executive
officer of the College.4 Dr. Cimino, who reports
directly to the board and attends its meetings, is re-
sponsible for the overall supervision of the College,
including its administrative and academic func-
tions, 5 and also monitors its financial affairs. The
board is also assisted by Vice President and Chief
Financial Officer Jack Cassidy who oversees the
entire financial program of the College and is re-
sponsible for general administrative support serv-
ices.
Dr. Samuel Rubin, the dean and provost of the
College, is the chief academic officer and as such
has a central role in the governance of the Col-
lege.6 Thus, he is responsible for the supervision of
the 24 departments of the College, controls their
budgets, has a determining role in the evaluation,
salary, selection, and discharge of the departmental
chairmen and associate deans, and appoints most of
the members of the key committees.
As indicated above, Dean Rubin hires as his
"personal staff' a senior associate dean, who is next
in the line of authority; associate deans for educa-
tion and curriculum, continuing education, plan-
ning and programs, student affairs, and minority af-
fairs; an associate dean for budgetary affairs and
business with affiliated hospitals; and associate
deans who represent the College at each of the af-
filiated hospitals and at CCHP.
The College is divided into 6 basic science and
18 clinical departments which are staffed by about
1,000 faculty members who are physicians, Ph.
D.'s, or other professionals, and have the status of
full professor, associate professor, assistant profes-
sor, or instructor. Of that number, about 100 are
employed by the College as basic science teachers
and the other 900 faculty members are paid and
unpaid (voluntary) physicians and other profession-
als. 7
The employees in each department are super-
vised by and are responsible to a chairman who as
a "mini-Dean" and a "very powerful individual"
' Dr. Cimino is also the chairman of and a professor in the Department
of Community and Preventive Medicine.
6 The controller, assistant treasurer, the administrative officer, the
acting dean of the graduate school, and special program officers, such as
those at MRI, are among the officials who report to Dr. Cimino.
6 Dr. Rubin reports to Dr. Cimino with respect to financial matters
and to the Board concerning academic matters.
I A voluntary physician works at an affiliated hospital and receives no
pay from the College or the City of New York or Westchester County.
As indicated below, we shall not include them in the unit because they
are unpaid and consequently lack an essential ingredient of employee
status.
A few of the professionals working at the hospitals are jointly paid by
one or more of the hospitals and the College. As indicated below, we
shall include them in the unit because they are partly paid by the College
and are supervised by it.
runs the department as his own "fiefdom."8 Al-
though the chairman may consult with members of
his department, the chairman himself works out the
departmental budget with the dean, determines the
activities of the department, makes teaching assign-
ments, recruits faculty members, decides on their
salary, and makes space allocations.9
Each Chairman of a clinical department is also
responsible for "service activities" which emanate
from his department. In this connection, they also
designate chiefs of service to be their deputies in
charge of the clinical specialties at each of the four
affiliated hospitals.l°
The faculty"' is organized along the following
lines in accordance with bylaws which were adopt-
ed in April 1974:
The Faculty Senate consists of all professors, as-
sociate professors, assistant professors, and instruc-
tors of the full-time and voluntary faculty. Its
Steering Committee consists of 10 members elected
by the Senate and 4 members appointed by the
dean. 1 2
Although the bylaws also provide for an Execu-
tive Faculty Council chaired by the dean and con-
sisting of all 24 department chairmen and a number
of other officials, the record shows that in practice
it is composed only of the department chairman.
The dean is also the presiding officer of the Execu-
tive Faculty, which consists of the Senate Steering
Committee and the Executive Faculty Council.
According to the bylaws, the Steering Commit-
tee is to act as adviser to the dean on the academic
affairs of the College, and it is empowered to
"advise and agree" with the dean in the selection
of faculty members for appointment to the standing
faculty committees. However, Dr. Levine testified
that the dean did not seek the advice and agree-
ment of the Steering Committee with regard to
committee appointments. In this connection, Dr.
Levine, Dr. Joseph M. Wu, and other members of
the Steering Committee met with Dean Rubin on
May 6, 1980, to complain about his failure to seek
the Steering Committee's advice and, according to
Doctors Levine and Wu, were told by Dean Rubin
that he did not agree with the bylaws because they
8 This description is based on the testimony of Dean Rubin and Dr.
Gerhard Treser who is a professor of medicine.
9 As indicated above, the parties stipulated as to the managerial and/or
supervisory status of the chairmen. Some of the larger departments such
as medicine and radiology have vice chairmen and section heads.
"O In some cases, the chairman also doubles as the chief of service. The
chairman of the pathology department serves not only as chief of service
but also as associate dean at the Westchester Center.
I As used by Dean Rubin, the term "faculty" encompasses all teach-
ing, nonteaching, and clinical professionals, including the classifications
which were stipulated to be managerial and/or supervisory.
1" Doctor Norman Levine, a member and secretary of the Steering
Committee, testified that Dean Rubin "chose essentially" only chairmen
or chiefs of service as his appointees on the committee.
904
NEW YORK MEDICAL COLLEGE
were too rigid, that he was too busy to consult
with the faculty concerning the committee appoint-
ments, and that the faculty should not be involved
with administrative decisions and should stick to
teaching, research, and providing medical service.
Dean Rubin conceded in his testimony that he had
expressed the view that the faculty should limit
themselves to such academic matters.
The bylaws further provide, inter alia, for a
number of principal committees which deal with
significant aspects of governance:
The Education and Curriculum Committee: This
committee is charged with reviewing the curricu-
lum and teaching program of the College and rec-
ommending changes therein to the dean and facul-
ty. The record shows that the Committee, whose
members are selected by the dean, is predominantly
composed of professionals who are acknowledged
by stipulation to be managerial and/or supervisory.
Thus, the 1978 Committee was comprised of two
associate deans, seven chairmen, one chief of serv-
ice, and two associate professors. In 1979, the
Committee consisted of an associate dean, eight
chairmen, two chiefs of service, and one associate
professor. 1
As indicated above, the Committee is responsible
for the overall design of the curriculum and makes
recommendations as to the time to be allocated to
each department. The guidelines established by the
Committee are expected to be followed by the var-
ious departments.' 4 The ultimate responsibility as
to the hours spent on each course and what is
taught within a given department rests with its
chairman who may, however, take into considera-
tion suggestions from its members.
The Committee on Faculty Tenure, Appointments,
and Promotions (TAP): The bylaws provide that
TAP shall review all proposed appointments to the
positions of associate professor and professor, and
recommend to the dean and the Executive Faculty
approval or rejection of such appointments. The
bylaws specify that TAP shall "initially" be select-
ed by the dean from professors and associate pro-
fessors of the full-time preclinical and clinical facul-
ty. The record shows that by 1979 TAP was limit-
ed to tenured faculty members and consisted pre-
dominantly of department chairmen.
The record also shows that in practice the fol-
lowing procedure is followed with respect to
hiring, promotion, and tenure:
Each chairman or chief of service recruits mem-
bers for his particular department. The chairman
'S The committee is assisted by three or four students.
" However, if the committee's recommendations are not accepted by
a department chairman, the committee may appeal to the Executive Fac-
ulty which, as noted above, is predominantly composed of managerial
and/or supervisory professionals.
makes promotions from instructor to assistant pro-
fessor which become effective without referral to
TAP.'6 However, promotions to asociate professor
and full professor go to the dean for approval, then
to TAP which checks a candidate's credentials,
and to the Executive Faculty only if Tap approves
the promotion. The final step occurs upon the
review and approval of the promotion by the Aca-
demic Affairs Committee of the board of trustees.
Those who are promoted to full professor are usu-
ally also considered for tenure.
Search Committees: The bylaws provide that
search committees shall be formed to fill vacancies
in certain categories.
When the vacancy pertains to the position of
chairman, the Executive Council and Steering
Committee are required under the bylaws to pre-
pare a list of names from which the dean selects a
search committee.' 6 Members of the department
involved may be asked for advice but they do not
sit with the committee or participate in its delibera-
tions when it goes into final executive session. 7
Although the bylaws require that one student serve
on the search committee, they do not otherwise
limit its membership. However, the record shows
that the various search committees consist substan-
tially of acknowledged supervisors and/or manage-
rial employees. Thus, for example, three of about
seven members of the search committee for a
chairman of the Pathology Department were an as-
sociate dean, a chairman, and a chief of service.
The seven-member search committee for a chair-
man of the Department of Community and Preven-
tive Medicine included at least three department
chairmen. In the case of the search committee for a
chairman of the Pharmacology Department, the
majority of its seven members were four chairmen
and an associate dean.
Once the search committee presents a list of can-
didates to the dean, the latter makes his own inves-
tigation and negotiates with the candidate his
salary and the department budget. Since 1975, the
dean's choice of chairmen had been approved by
the Executive Faculty and the board of trustees.' 8
The bylaws further provide that the president,
who is responsible for filling the position of dean,
shall select a search committee consisting of three
I' Sometimes, the initiative as to promotions came from senior depart-
ment members who suggest such action.
L' According to Dr Norman Levine, who served as secretary of the
Steering Committee, that committee was not, in the 2 years prior to the
hearing, formally requested by the dean to submit a list of narnes for var-
ious search committees.
In this connection, Dean Rubin testified that "generally speaking" he
has asked that Executive Faculty to suggest names.
i7 According to Dean Rubin, it would be "self serving" to permit
members of a department to pick their own leader.
"1 Twelve of the incumbent chairmen are appointees of Dean Rubin.
905
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members each of the preclinical and clinical facul-
ty, two members of the voluntary faculty, one
alumnus, the president of the senior class, and a
member of the board of trustees. Although Dean
Rubin's name was submitted by a search commit-
tee, the record does not show whether the compo-
sition of the committee followed the specifications
of the bylaws.
The bylaws also provide that, in the event of a
vacancy in the position of president, the chairman
of the board of trustees shall so notify the Steering
Committee and the Executive Faculty Council, and
that the board form a search committee consisting
of six members of the board, two chairmen, two
full-time members of the faculty who are not chair-
men, two voluntary members of the faculty, and
two medical students. Although there was a search
committee appointed with respect to an earlier va-
cancy, it apears that no such committee was
formed at the time Dr. Cimino, the incumbent
president, was appointed to that position by the
board.
The Grievance Committee: The bylaws provide
that this committee shall be elected from the Facul-
ty Senate and prohibits chairmen and members of
the College administration from serving thereon.
Its stated purpose is "to protect the benefits and
rights, including academic freedom" of faculty
members. In the 5 years preceding the hearing, the
committee processed two grievances.1 9 In one
case, the committee agreed with administration that
the grievant was properly dismissed. In the other
case, the committee directed Dean Rubin, who had
fired a faculty member, to rehire him but Dean
Rubin refused to do so.
Student Admissions Committee: The bylaws pro-
vide that this committee shall consist of six or more
members who are appointed by the dean for the
purpose of selecting candidates for admission or
transfer to the College. The record shows that in
fact 50 to 60 members of the faculty, whose man-
agerial or supervisory status is not indicated, serve
on the committee that interviews applicants. How-
ever, the dean has also appointed an Executive Ad-
missions Committee which is comprised of the
senior associate dean, two associate deans, two
chairmen, a chief of service, and two line physi-
cians. According to President Cimino, it is the Ex-
ecutive Admissions Committee which basically
makes the final decisions as to which applicants are
admitted.
Student Promotions Committees: The students are
graded by the faculty on the basis of standards de-
veloped by an ad hoc committee of six faculty
19 Four other grievances were filed but the individuals concerned lost
interest in pursuing their grievance.
members and two student representatives and ap-
proved by the Executive Faculty.
Promotions from 1 year to another are made by
committees which determine whether a student has
satisfactorily completed the course for that year.
The bylaws provide that appointments to these
committees shall be made by the dean upon the
recommendation of the department chairmen. As-
sociate Dean Robert Goldstein testified that "in
practice" the committees are composed of chair-
men but the chairmen may recommend members of
their department to serve thereon.
As indicated above, the initial question to be re-
solved is whether the members of the Employer's
faculty are managerial employees under the United
States Supreme Court's decision in N.L.R.B. v. Ye-
shiva University, supra. The Court defined manage-
rial employees as those employees who "formulate
and effectuate management policies by expressing
and making operative the decisions of their em-
ployer" through "taking or recommending discre-
tionary actions that effectively control or imple-
ment employer policy." In this connection, the
Court cautioned that "professors may not be ex-
cluded merely because they determine the content
of their own courses, evaluate their own students
and supervise their own research."
It is clear from the foregoing evidence that the
professionals sought herein by the Petitioner are
not managerial employees under Yeshiva criteria as
the governance of the College rests with the board
of trustees, Vice President and Chief Financial Of-
ficer Cassidy, and the acknowledged managerial
employees and/or statutory supervisors; namely,
the president, the dean, the associate deans, and the
department chairmen. Thus, the board of trustees,
which is the major governing body of the College,
has as its chief representative, Dr. Cimino, the
president and chief executive officer of the Col-
lege, who is responsible for the overall supervision
of administrative, academic, and financial matters.
Cassidy oversees the financial program of the Col-
lege. Dean Rubin, the chief academic officer of the
College, is responsible for the supervision of all de-
partments, controls their budgets, has a determin-
ing role in the evaluation, salary, selection, and dis-
charge of chairmen and associate deans, and ap-
points most of the members of the principal com-
mittees. The chairmen, who are "mini-Deans" and
"very powerful," run the departments as their own
"fiefdoms." 2 0
10 Members of each basic science department have the responsibility of
grading their students. As indicated above, the Supreme Court noted in
Yeshiva that professors may not be excluded or deemed managerial
merely because they evaluate their own students.
906
NEW YORK MEDICAL COLLEGE
As noted above, the bylaws provide for a Facul-
ty Senate which elects 10 of the 14 members of its
Steering Committee. Although the latter is charged
with acting as adviser to the dean on academic af-
fairs and "advising and agreeing" with him in the
selection of faculty members, it appears that the
dean failed to seek such advice and in May 1980
told some committee representatives that the facul-
ty should not become involved in administrative
decisions and should instead concentrate on teach-
ing, research, and providing medical care. Al-
though the Steering Committee is part of the Ex-
ecutive Faculty, which is charged by the bylaws
with meeting at least four times a year to "review
all policy matters and to recommend approval or
rejection of all proposed appointments to the rank
of Associate Professor and Professor," the depart-
ment chairmen, who as members of the Executive
Faculty Council serve on the Executive Faculty,
constitute the great majority of the latter and are
for that reason in a position to dominate its deci-
sions. Similarly, the membership of the Search
Committees and other principal committees, which
are concerned with such matters as curriculum,
faculty tenure, appointments and promotions, and
student admissions and promotions, consist pre-
dominantly or substantially of such acknowledged
managerial professionals as associate deans, chair-
men, and chiefs of service. In sharp contrast, the
Grievance Committee, which is elected by the Fac-
ulty Senate, is the only committee from which
chairmen and members of the college administra-
tion are specifically excluded by the bylaws.
Accordingly, as we find that the faculty mem-
bers sought by the Petitioner are not managerial
employ,.es within the meaning of the Yeshiva case,
we conclude that they are not exempt from the
protection of the Act.2 1
We turn now to the question whether the profes-
sionals who are employed by the College at the
four affiliated hospitals come within the political
subdivision exemption pursuant to Section 2(2) of
the Act. It is well established 2 2 that the test for de-
termining the applicability thereof is whether a
nongovernment employer, whose employees work
at hospitals that are owned by a political entity, re-
tains sufficient control over the terms and condi-
tions of those employees to be capable of effective
2i As in Montefiore Hospital and Medical Center, 261 NLRB 569 (1982),
here the medical departments have less policymaking autonomy than the
individual schools of Yeshiva University.
The record also shows that the professionals at MRI and CCHP par-
ticipate in decisions with respect to the admission and treatment of pa-
tients at those facilities of the Employer. We find, contrary to the Em-
ployer, that these employees are not managerial because those functions
are within the ambit of their duties as professionals.
22 National Transportation Service, Inc., 240 NLRB 565 (1979).
bargaining. For reasons given below, we find that
the College meets that test.
As indicated above, the College, which has affili-
ation agreements with New York City and West-
chester county, is required thereby to provide pro-
fessional services and is responsible for the supervi-
sion and direction of the medical staffs of the affili-
ated hospitals. As already noted, the provision of
these services by the employees of the College is
implemented by a network of College officials in-
cluding, inter alia, the dean, the associate dean for
affiliation affairs, associate deans who are assigned
to each hospital, and the chairmen of the clinical
departments. Chiefs of service are appointed by the
latter and are assigned to the clinical departments
of the hospitals where they direct the activities of
the department and are responsible for interviewing
and hiring line physicians,2 3 evaluating their per-
formance, making recommendations to the chair-
men regarding salary increases and promotions, su-
pervising patient service and teaching, setting
schedules, making work assignments, taking disci-
plinary action, and recommending to the chairmen
the discharge of unsatisfactory employees.
The hospitals, through executive directors who
represent New York City and a commissioner des-
ignated by Westchester County,2 4 have a limited
role with respect to College personnel and the fol-
lowing functions performed by the College:
The College recruits and selects candidates for
the position of chief of service and has the right to
remove any of the incumbents. However, the ex-
ecutive director's approval is required before the
candidate of the College is hired and the executive
director may also object to the removal of an in-
cumbent chief of service.2 5
As noted above, College officials are in charge
of recruiting and hiring line physicians. The medi-
cal boards of the hospitals participate in that proc-
ess only to the extent that they examine an appli-
cant's medical credentials for the purpose of decid-
ing whether to grant him the attending privilege at
a particular hospital. 2 6 Beyond that function, the
medical boards have no voice in determining the
terms and conditions of employment of the line
physicians. Thus, they have no control over such
22 Subject to the approval of their medical credentials by one of the
medical boards which are composed of all or most staff physicians at the
hospitals
2" For convenience, the title of executive director will also be applied
to the Westchester County Medical Center.
26 The record shows that in a few& instances the executive director has
requested the College to remove certain chiefs of service. However, in
one case the College resisted such a request.
26 In this connection, it is noteworthy that the credentials committee
at Metropolitan is composed of chiefs of service.
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matters as wages, department budgets, transfers,
disciplinary action, layoffs, and discharges.
The record also shows that the executive direc-
tors have minimal involvement in the hiring of line
physicians which, as already noted, is the responsi-
bility of the College. Their participation in this
regard has been restricted to relatively few occa-
sions when they asked the College to hire specific
applicants for positions on the medical staff. While
the authority to terminate line physicians rests es-
sentially with the College, there was during the
budget crisis of 1977 a "strong input" from the ex-
ecutive director of the Metropolitan Hospital in de-
ciding on certain layoffs. In addition, affiliation
agreements give the executive directors the right to
request the College to remove those employees
who violate their terms or whose continued serv-
ices are not in the "best interests" of the hospital.2 7
The affiliation agreements provide that salary
ranges and fringe benefits of the College employees
at the hospitals shall be consistent with those of
medical personnel employed by New York City
and Westchester County. However, the College,
which is not bound by Civil Service regulations,
has some flexibility in offering salaries at a level de-
signed to attract highly qualified physicians. Simi-
larly, the College makes its own decisions on how
to allocate fringe benefits for insurance, health
plans, and pensions. The scope of the College's au-
thority in regard to salaries and benefits is en-
hanced by virtue of a provision in the agreements
which enables the College to seek a greater pay-
ment from the city and the county in the event it
has increased labor costs.
As indicated above, the chiefs of service are re-
sponsible for determining their employees' hours
and work schedules and seeing to it that they main-
tain proper time and medical records. The execu-
tive director or his representative reviews the
records, conducts sporadic time and floor checks,
and brings any inadequacies or discrepancies in the
records to the attention of the chief of service who
takes the matter up with the physician involved.
The executive director has also suggested the
hiring of additional personnel and on occasion
questions whether certain schedules provide the
best patient coverage. 28
Finally, the chief of service has the authority to
approve sick leave and requests for leaves of ab-
sence. However, the Health and Hospital Corpora-
tion may decide that in some cases pay for sick
leave is not warranted under the terms of the affili-
ation agreements.
27 However, there is no evidence that this provision has been invoked
except at the Metropolitan Hospital in 1977.
a' In one case, an executive director requested that the hours of a phy-
sician be reduced.
The Board in Misericordia Hospital Medical
Center, 240 NLRB 823 (1979), which involved an
affiliation agreement between Misericordia and
New York City for the Lincoln Hospital,2 9 held in
reliance on National Transportation Service, Inc.,
supra, that Misericordia did not share the statutory
exemption of New York City. The facts in the in-
stant case, which also involves the standard affili-
ation agreement, parallel those in Misericordia.
Thus, as in that case, the basic role of the executive
directors herein is to monitor the agreements for
the purpose of assuring that their terms are ob-
served by the College. Accordingly, in view of the
limited role of the executive directors and the
broad scope of authority exercised by the College,
it is clear that the latter retains sufficient control
over the terms and conditions of employment of its
professionals to be capable of effective bargaining.
Therefore, we shall assert jurisdiction with respect
to those employees.3 0
There remains the question whether the follow-
ing classifications, which are in dispute, are super-
visors as defined in the Act:
All College Physicians: The College contends that
all of the physicians it employs at its facilities and
the four affiliated hospitals are supervisors. We dis-
agree as it is clear from the foregoing that they are
under the direction of and are responsible to ac-
knowledged supervisors and do not themselves
possess any indicia of supervisory authority with
respect to any unit employees.
Section Chiefs, Division Chiefs, Associate Chiefs or
Associate Directors of Service, Department Vice
Chairmen: The College contends that these classifi-
cations are supervisory. The section chiefs and di-
vision chiefs are involved in subspecialties of the
various clinical departments, and the associate
chiefs and directors of service assist the chiefs and
directors of service respectively. An exhibit submit-
ted by the College subsequent to the hearing lists
222 individuals who work at the hospitals in one of
these categories. In addition, vice chairmen serve
under some department chairmen. The evidence re-
garding the foregoing classifications is insufficient
to show that they possess supervisory authority.
Moreover, as in the case of the College physicians,
a finding that they are supervisors would result in
an unusually high proportion of supervisors. We
shall therefore include them in the unit.
Principal Investigators: The College contends that
individuals in this category are supervisors within
the meaning of the Act. At the time of the hearing,
'I Thereafter, the College replaced Misericordia as the supplier of pro-
fessional services at Lincoln Hospital when it entered into an affiliation
agreement with respect to that hospital.
So See also Montefiore Hospital and Medical Center, supra, 575 (1982).
908
NEW YORK MEDICAL COLLEGE
there were about 86 research programs. Before a
member of the faculty applies for a grant, he must,
as the prospective principal investigator, establish
with the appropriate department chairman the
time, space, and equipment available for work on a
particular research project. While the department
chairman has overall responsibility for the research,
the principal investigator is directly responsible for
the conduct of the scientific work. Most principal
investigators perform a variety of other functions,
including teaching and clinical work, and they re-
ceive the same salary and benefits as other mem-
bers of their department. Some are department
chairmen, chiefs of service, or associate deans, and
others are full, associate, or assistant professors. As
those in the first three categories are acknowledged
supervisors, there is no question that they do not
belong in the unit. Although the other principal in-
vestigators decide which professionals are to be on
the research staff, it is not clear whether this func-
tion is more than sporadic and minimal in terms of
their nonsupervisory teaching and clinical work.
We shall therefore permit those principal investiga-
tors who are not acknowledged supervisors to vote
subject to challenge.
In view of the foregoing, we find the following
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act:
All professional employees partly or wholly
on the payroll of the Employer who work at
the facilities listed herein for 8 or more hours
per week, including physicians, PH. D's, den-
tists, registered nurses, section chiefs, division
chiefs, associate chiefs of service, associate di-
rectors of service, department vice chairmen,
but excluding interns, residents, employees
represented by another labor organization,
dean and associate deans; department chair-
men; chiefs of service and directors of service;
Mental Retardation Institute administrator, ex-
ecutive director, associate executive director,
medical directors and directors of other de-
partments, and principal; and Center for Com-
prehensive Health Practice director, associate
director, and site administrators; and all other
supervisors as defined in the Act. (The Em-
ployer's Medical School, the Graduate School
of Basic Sciences, and the Mental Retardation
Institute in Valhalla, New York; the Center
for Comprehensive Health Practice in Manhat-
tan, New York City; Westchester County
Medical Center in Valhalla, New York; Lin-
coln Hospital in Bronx, New York City; Met-
ropolitan Hospital in Manhattan, New York
City; and Bird S. Coler Hospital in Queens,
New York City.)3 1
[Direction of Election and Excelsior footnote
omitted from publication.]
"3 As indicated above, we shall also permit all principal investigators
who are not chiefs of service, department chairmen, and associate deans
to vote subject to challenge
909