North General Hospital

National Labor Relations Board - Board Decisions

Jun 6, 1994

314 N.L.R.B. 14 (N.L.R.B. 1994)

14
314 NLRB No. 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See, e.g., Cedars-Sinai Medical Center, 223 NLRB 251 (1976),
and Kansas City General Hospital, 225 NLRB 108 (1976).
2 In this regard, Alan Liebowitz, the director of human resources,
testified that there were 33 residents in the department of medicine
and 12 residents in the department of surgery, that all residents pro-
vide some degree of patient care, and that if there were no interns
and residents, the Hospital would have to hire approximately 35–40
additional attending physicians to perform their work. Liebowitz also
testified that there was a collective-bargaining agreement in effect
between the Hospital and the Committee of Interns and Residents
that provided terms and conditions of employment for the housestaff.
Moreover, the Hospital treats the residents the same as other em-
ployees in that it provides them with worker’s compensation, W-2
forms, and unemployment insurance.
3 Cedars-Sinai Medical Center, 223 NLRB at 253.
4 See, e.g., Fleet Transport Co., 196 NLRB 436, 438 fn. 6 (1972),
Fordham University, 193 NLRB 134, 136 (1971), and Eureka News-
papers, 154 NLRB 1181, 1185 (1965).
North General Hospital and Doctors Council. Case
2–RC–21323
June 6, 1994
DECISION AND DIRECTION OF ELECTION
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
Upon a petition for election filed under Section 9(c)
of the National Labor Relations Act, a hearing was
held on various dates in July and August 1993 before
a duly designated hearing officer of the National Labor
Relations Board. On October 6, 1993, pursuant to Sec-
tion 102.67(h) of the Board’s Rules and Regulations,
the case was transferred to the Board for decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Having carefully reviewed the entire record in this
proceeding, including the posthearing briefs filed by
the parties, the Board makes the following findings:
1. The hearing officer’s rulings made at the hearing
are free from prejudicial error and are affirmed.
2. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction.
3. The labor organization involved claims to rep-
resent certain employees of the Employer.
4. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
5. North General Hospital (the Hospital) is located
in New York, New York. The Petitioner, Doctors
Council, seeks to represent a unit of all physicians and
dentists employed by the Hospital except directors of
departments. At the hearing, the parties agreed that
there are three issues in dispute: (1) whether the at-
tending physicians in the departments of medicine and
surgery should be excluded from the petitioned-for unit
as statutory supervisors because they supervise resi-
dents; (2) whether the three physicians in the depart-
ment of radiology should be excluded from the unit on
the ground that that department is scheduled to close;
and (3) whether the following 10 physicians are statu-
tory supervisors and should therefore be excluded from
the unit: Drs. Winvull Robinson, Robert Herman, Mark
Alerte, Tapan Sakar, Onwar Aziz, Bernard Langwehr,
Robert Rosenthal, Kutub Nadaf, Magoi Bebawi, and
Moshen Samii.
Attending Physicians in Departments of Medicine
and Surgery
The Hospital contends that the attending physicians
in the departments of medicine and surgery are statu-
tory supervisors based on their supervision of the in-
terns and residents in those departments. Although the
Hospital recognizes that the Board has determined that
interns and residents are not employees under the Act,1
the Hospital contends that the physicians should never-
theless be excluded as statutory supervisors because
they control the work and evaluate the performance of
these individuals. The Hospital also points out that
residents, although not employees for collective-bar-
gaining purposes, possess a number of employee char-
acteristics.2 The Petitioner maintains that because the
interns and residents are not employees under the Act,
the attending physicians cannot be statutory super-
visors.
We agree with the Petitioner. Although interns and
residents possess some characteristics of employee sta-
tus in that they usually receive a stipend and some
fringe benefits, the Board, based on well-established
precedent, has found them to be primarily students, not
employees, because they participate in a residency pro-
gram primarily ‘‘to pursue the graduate medical edu-
cation that is a requirement for the practice of medi-
cine.’’3 Applying this precedent here, we find that the
interns and residents at the Hospital are primarily stu-
dents and therefore are not employees under the Act.
Because the attending physicians do not exercise su-
pervisory authority over any employees of the Hos-
pital, they cannot be supervisors within the meaning of
the Act.4 Accordingly, we find that the attending phy-
sicians in the departments of medicine and surgery are
not statutory supervisors and shall include them in the
bargaining unit.
Radiology Department
The Hospital seeks to exclude all physicians in the
department of radiology on the ground that the radi-
ology department is scheduled to close in the very near
future. In this regard, Baptiste, the associate adminis-
trator for clinical services, testified that the Hospital
had been planning for over a year to disband the radi-
ology department and to subcontract out the radiology
work, that at the time of the hearing the Hospital was
negotiating with Lennox Hill Radiology Group to take
15NORTH GENERAL HOSPITAL
5 Farmers Rendering Co., 115 NLRB 1014, 1016 (1956) (footnote
omitted; emphasis added). See generally, Apex Paper Box Co., 302
NLRB 67 (1991); Amoco Oil Corp., 289 NLRB 280 (1988); and
Mercy College, 231 NLRB 315 (1977).
6 We note that if the doctors in the radiology department are per-
manently laid off prior to the election, they would no longer be in
the bargaining unit and thus would not be eligible to vote in the
election. It is axiomatic that in order to vote in an election an indi-
vidual must be employed on election day. See, e.g., Roy Lotspeich
Publishing Co., 204 NLRB 517, 518 (1973).
7 Sec. 2(11) of the Act defines a supervisor as:
any individual having authority, in the interest of the employer,
to hire, transfer, suspend, lay off, recall, promote, discharge, as-
sign, reward, or discipline other employees, or responsibly to di-
rect them, or to adjust their grievances, or effectively to rec-
ommend such action, if in connection with the foregoing the ex-
ercise of such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.
over that work, and that the target date for a contract
was October 1, 1993. Baptiste also testified that the
Hospital had informally told the three doctors in its ra-
diology department, Drs. Tong, Lee, and Samii, that
they would be laid off when the contract went into ef-
fect, but that it had not yet given them anything in
writing.
The Board has frequently held that:
the eligibility of voters in Board elections is to be
determined on the basis of employment status of
each voter during the eligibility period and at the
time of the election. Accordingly, any change in
employment status subsequent to the election is
immaterial with regard to eligibility in an elec-
tion.5
Thus, in determining whether the physicians in the ra-
diology department are eligible to vote, the fact that
they may be permanently laid off soon after the elec-
tion is irrelevant to the issue of whether they are eligi-
ble to vote in that election. Accordingly, we find that
the physicians in the radiology department are eligible
to vote in the election if they otherwise satisfy the
Board’s eligibility requirements and shall therefore in-
clude them in the petitioned-for unit.6
Individual Physicians
The Hospital would exclude the following 10 physi-
cians as statutory supervisors. The Petitioner contends
that they are not supervisors and therefore should be
included in the bargaining unit. Applying Section 2(11)
of the Act,7 we find as follows:
1. Dr. Winvull Robinson
Dr. Robinson is the director of the psychiatric in-pa-
tient service in the department of psychiatry. The act-
ing director of the department of psychiatry is Dr.
Gershberg. There are two staff psychiatrists in the in-
patient service, Drs. Paz and Riguer. Dr. Paz works
full time and Dr. Riguer works half-time. Also in the
in-patient service are a psychologist, an art recreation
therapist, and an occupational therapist.
Dr. Gershberg testified that he ‘‘assumed’’ that Dr.
Robinson had a role in hiring Dr. Paz and that it was
Dr. Robinson’s responsibility to monitor the perform-
ance of the professionals in the in-patient service and
to take care of any problems that arose. Dr. Robinson
testified that he neither interviewed nor recommended
the hire of either Dr. Paz or Dr. Riguer, and that he
does not hire, fire, or discipline the employees in this
department. Dr. Robinson also testified that while he
coordinates some functions concerning clinical duties
for quality assurance monitoring and holds general
staff meetings weekly, there are no other differences
between his duties and those of Drs. Paz and Riguer.
It is well established that ‘‘[t]he Board will not ex-
clude an individual from voting for a collective-bar-
gaining representative unless the record evidence es-
tablishes that the individual is, in fact, ineligible to
vote.’’ Waverly-Cedar Falls Health Care, 297 NLRB
390, 392 (1989). Based on this record, we find no evi-
dence that Dr. Robinson possesses any authority de-
scribed in Section 2(11) of the Act. The mere fact that
Dr. Robinson ‘‘monitors’’ certain procedures and
‘‘takes care of any problems’’ does not establish that
his interaction with the other professionals in the de-
partment rises to the level of responsible direction. Ac-
cordingly, we find that Dr. Robinson is not a statutory
supervisor and therefore include him in the petitioned-
for unit.
2. Dr. Robert Herman
Dr. Herman is the director of the Hospital’s Alco-
holism and Substance Abuse Treatment Program. The
progam includes the Alcoholism and Substance Abuse
Treatment Center (ATC), a free-standing out-patient
clinic 1 block from the Hospital, and the in-patient de-
toxification ward. The ATC and the detoxification unit
are included in the department of psychiatry. As noted
above, Dr. Gershberg is the acting director of that de-
partment.
Dr. Herman testified that both he and Paul
Zukrensky, the acting director of the ATC, are in-
volved in the supervision of the clinical staff in both
the ATC and the detoxification ward. Zukrensky re-
ports to Karen Cobham, the administrative coordinator
in the department of psychiatry. Although their duties
overlap somewhat, in general, Dr. Herman defers to
Zukrensky on administrative issues and Zukrensky de-
fers to Dr. Herman on clinical issues. Thus, Dr. Her-
man’s responsibility for the clinical staff involves such
matters as developing treatment plans for patients and
reviewing patients’ clinical progress. Dr. Herman plays
no role in hiring, firing, or disciplining employees or
in their evaluation.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In finding that Dr. Alerte effectively recommended the hire of
other physicians, we do not rely on Dr. Alerte’s recommendations
regarding the hire of Drs. Johnson and Carabuena because there is
no evidence that Dr. Huff relied on Dr. Alerte’s recommendations.
See A. Barton Hepburn Hospital, 238 NLRB 95, 96 (1978).
Dr. Gershberg testified that his knowledge of Dr.
Herman’s duties ‘‘relates to the job descriptions and
the organization.’’ According to Dr. Gershberg, Dr.
Herman coordinates and directs all operations and ‘‘su-
pervises’’ the acting director of the ATC who in turn
‘‘supervises’’ the clinical coordinator of the ATC and
the counselors in that unit. Dr. Herman also ‘‘super-
vises’’ the coordinator of the detoxification unit who
is the immediate supervisor of the four counselors in
that unit. There is, however, a ‘‘dual reporting func-
tion’’ in the detoxification unit and the coordinator re-
ports both to Dr. Herman and Cobham.
The mere fact that an employer states that an em-
ployee ‘‘supervises’’ other employees or holds that
employee out to other employees as a ‘‘supervisor’’ is
not enough to establish that that individual is a super-
visor within the meaning of Section 2(11) of the Act.
See, e.g., Polynesian Hospitality Tours, 297 NLRB
228 (1989), enfd. 920 F.2d 71 (D.C. Cir. 1990).
Dr. Herman’s alleged supervision of the clinical
staff in the ATC and the detoxification ward primarily
concerns the care and treatment of patients. To the ex-
tent that he responsibly directs the work of others, res-
olution of his status involves the consideration of the
Supreme Court’s recent decision in NLRB v. Health
Care & Retirement Corp., No. 92-1964, 1994 WL
197042 (May 23, 1994). Because this issue involves
the status of only one individual, we have decided to
defer the resolution of Dr. Herman’s status. Accord-
ingly, we direct that Dr. Herman vote subject to chal-
lenge.
3. Dr. Mark Alerte
Dr. Alerte is the medical director of the Hospital’s
Paul Robeson Clinic within the department of medi-
cine. Dr. Huff, the acting director of the department of
medicine, testified that while Dr. Alerte prepares qual-
ity assurance reports and submits them to Dr. Huff, Dr.
Alerte otherwise independently runs the Robeson Clin-
ic. Thus, according to Dr. Huff, Dr. Alerte supervises
two other physicians who work on a regular basis at
the clinic, Drs. Johnson and Carabuena, as well as
other physicians who work on a ‘‘processional’’ basis
(i.e., interns and residents). Also, Dr. Alerte personally
recruited Dr. Limburg and recommended that he be
hired. Specifically, Dr. Alerte ‘‘advised’’ Dr. Huff of
his decision to hire Dr. Limburg, and based on that de-
cision Dr. Limburg was hired. Dr. Alerte also inter-
viewed Drs. Johnson and Carabuena and recommended
that they be hired; Dr. Huff made the final decision to
hire them. Dr. Alerte also has the authority to dis-
cipline the physicians at the Robeson Clinic. In fact,
Dr. Limburg was disciplined and dismissed based on
Dr. Alerte’s evaluation of his performance as unsatis-
factory.
Based on the above evidence, we find that the
record establishes that Dr. Alerte has the authority to
effectively recommend the hire,8 discipline, and dis-
charge of doctors at the Robeson Clinic. Based on this
Section 2(11) authority, we find that Dr. Alerte is a
statutory supervisor and shall exclude him from the
unit.
4. Dr. Tapan Sarkar
Dr. Sarkar is the associate director of the department
of medicine and the director of the intensive care unit.
He is also the attending physician in charge of pul-
monary diseases. Dr. Sarkar testified that he neither
interviewed nor was involved in the hiring of the six
or seven doctors hired in the department of medicine
within the last year. Dr. Huff, however, testified that
Dr. Sarkar participated in the evaluations of Drs.
Gertman and Issah, who were under consideration for
hire as infectious disease attending physicians, and that
Dr. Sarkar shared his opinions with her, as then deputy
director, and with Dr. Reichman, the former director of
medicine.
Together with Dr. Reichman, Dr. Sarkar also inter-
viewed Shadad Parmar, a pulmonary function techni-
cian, 12 years ago. Dr. Reichman subsequently hired
Parmar. At present, Dr. Sarkar oversees the clinical as-
pects of Parmar’s work. Otherwise, Parmar reports to
Mrs. Richardson, the administrator in the department
of medicine.
Finally, Dr. Huff testified that Dr. Sarkar was in
charge of the department of medicine when she was
absent from the Hospital.
Even assuming that Dr. Sarkar participated in the
evaluations of candidates for attending physician, there
is no evidence that he effectively recommended the
hire of those candidates. Mere participation in the hir-
ing process, absent the authority to effectively rec-
ommend hire, is insufficient to establish Section 2(11)
supervisory authority. See Jerry’s United Super, 289
NLRB 125, 141 (1988). Likewise, Dr. Sarkar’s partici-
pation in Parmar’s interview is insufficient to establish
supervisory authority under the Act because there is no
evidence that Dr. Sarkar effectively recommended that
Parmar be hired. Further, while Dr. Sarkar may be ‘‘in
charge’’ of the department in Dr. Huff’s absence, the
Hospital failed to present any evidence that Dr.
Sarkar’s duties in this regard encompass the exercise
of Section 2(11) authority or that Dr. Sarkar’s substi-
tution for Dr. Huff is regular and substantial.
Hexacomb Corp., 313 NLRB No. 148, slip op. at 2
(Mar. 3, 1994). In these circumstances, we find that
17NORTH GENERAL HOSPITAL
9 As the physician’s assistant in the employee health service, Salib
examines new employees, performs followup examinations, and car-
ries out diagnostic studies.
10 The Petitioner asserts that, even assuming that Dr. Aziz exer-
cises supervisory authority within the meaning of Sec. 2(11), he
should still be included in the unit because Salib is a nonunit em-
ployee. See Detroit College of Business, 296 NLRB 318 (1989). In
view of our finding that Dr. Aziz is not a statutory supervisor, we
find it unnecessary to reach this issue. 11 A. Barton Hepburn Hospital, supra at 96.
Dr. Sarkar has not been shown to be a statutory super-
visor and shall include him in the bargaining unit.
5. Dr. Onwar Aziz
Dr. Aziz is the attending physician in the employee
health service. Dr. Aziz works at the Hospital approxi-
mately 12-1/2 hours per week and oversees medical
care and diagnoses on physical exams. In this capacity
Dr. Aziz ‘‘supervises’’ Gabby Salib, a physician’s as-
sistant in the employee health service.9 According to
Dr. Huff, Salib reports to Dr. Aziz ‘‘professionally,’’
and his vacation time has to be ‘‘coordinated’’ with
Dr. Aziz.
We find that the Hospital has failed to present spe-
cific evidence that Dr. Aziz exercises supervisory au-
thority within the meaning of Section 2(11). As noted
above, the mere fact that an employer states that an
employee ‘‘supervises’’ other employees is not enough
to establish 2(11) supervisory status. Although Dr.
Aziz interviewed Salib for employment, he was not the
only interviewer, and the Employer has not shown that
Dr. Aziz effectively recommended the hiring of Salib.
Dr. Aziz shall therefore be included in the bargaining
unit.10
6. Dr. Bernard Langwehr
Dr. Langwehr is both the acting chief of the emer-
gency room, spending 8–16 hours per week in that ca-
pacity, and an attending physician in the department of
surgery. Dr. Huff testified that although the emergency
room is currently a shared service under the depart-
ments of medicine and surgery, the Hospital plans to
make it into a separate, independent department in the
very near future. To this end, the Hospital selected Dr.
Bonnie Ross to become the director of the emergency
department at the end of August 1993 and at that time
Dr. Langwehr was to become a full-time attending
physician with primary responsibility for patient care.
There is no evidence in the record that Dr.
Langwehr exercises any supervisory authority within
the meaning of Section 2(11) either in his capacity as
acting chief of the emergency room or as a physician
in the department of surgery. Accordingly, we find that
he is not a statutory supervisor and shall include him
in the bargaining unit.
7. Dr. Robert Rosenthal
Dr. Rosenthal is the director of the blood bank and
the hematology lab. He reports to Dr. Bocar who has
been the acting director of the department of labora-
tories since January 1992. Dr. Rosenthal also interacts
with Fajardo, the acting supervisor of the blood bank,
the blood bank technologists, and the night staff tech-
nologists, all of whom report to Wunder, the adminis-
trative coordinator of the lab.
Dr. Rosenthal testified that he oversees the technical
aspects of the blood bank and lab and that his contact
with the technologists is related to clinical issues in-
volving patient care. Fajardo and Wunder schedule
blood bank employees and arrange their vacations. Dr.
Rosenthal plays no role in their evaluation or dis-
cipline. In fact, Dr. Rosenthal testified that the Hos-
pital terminated Richard Meade, the night and weekend
lab supervisor, although he had opposed that termi-
nation. Dr. Rosenthal also testified that, although he
had written a memo in 1991 critical of Veronica
Comrie, the administrative coordinator who preceded
Wunder, he had never recommended her discharge and
had played no part in her discharge a year later. How-
ever, Ernest Baptiste, the Hospital’s associate director
for clinical services, testified that Dr. Rosenthal had
recommended Comrie’s termination.
Although Dr. Bocar testified that Dr. Rosenthal di-
rectly supervises the lab technicians, participates in
interviewing, and recommends, if necessary, the termi-
nation of technologists, she was not aware of any in-
stances in which Dr. Rosenthal had, in fact, inter-
viewed, suspended, or fired any employee. She also
testified that the director of the department made all
final decisions and that Dr. Rosenthal could only make
recommendations regarding discipline.
Although the evidence regarding Dr. Rosenthal’s
role in Comrie’s termination is in conflict, we observe
that even had Dr. Rosenthal recommended Comrie’s
discharge, there is no evidence in the record regarding
what role, if any, that recommendation played in the
Hospital’s decision to terminate her.11 Accordingly,
there is no record evidence that Dr. Rosenthal has ef-
fectively recommended the discharge of any employee
or that he possesses any other supervisory authority as
defined in Section 2(11). We find therefore that Dr.
Rosenthal is not a statutory supervisor and shall in-
clude him in the bargaining unit.
8.–9. Dr. Kutub Nadaf and Dr. Magoi Bebawi
The Hospital provided no testimony regarding Drs.
Nadaf’s and Bebawi’s supervisory status. Neither Dr.
Nadaf nor Dr. Bebawi testified at the hearing. Because
there is no record evidence in support of the Hospital’s
contention that Drs. Nadaf and Bebawi are statutory
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Jerry’s United Super, 289 NLRB 125, 141 (1988).
supervisors, we find that these individuals are not stat-
utory supervisors and shall include them in the bar-
gaining unit.
10. Dr. Moshen Samii
As discussed above, Dr. Samii is one of two doctors
in the radiology department along with Dr. Tong, the
director of the department. Baptiste, the associate di-
rector of clinical services, testified that Dr. Samii
works approximately 30 to 32 hours per week, spend-
ing 50 to 60 percent of the time in readings and proce-
dures and the remainder teaching and working with the
other doctors at the Hospital. When Dr. Tong is absent
from the department, Dr. Samii is in charge, and in
that capacity he is ‘‘involved with’’ scheduling and
disciplinary matters. In particular, Baptiste testified
that Dr. Samii can recommend disciplinary action, al-
though he, Waite, the manager of the department, and
Dr. Tong are also involved in decisions as to discipline
and discharge. In addition, Dr. Samii was ‘‘involved
and informed’’ in the decision to replace the hospital
transcribers with an outside service, although Baptiste
and the chief operating officer made the final decision
to use the outside service.
Based on the above, we find that the Hospital has
failed to present specific evidence that Dr. Samii exer-
cises 2(11) supervisory authority. It is well established
that ‘‘in connection with the authority to recommend
actions, Section 2(11) requires that the recommenda-
tion must be effective.’’12 Here, although Samii can
recommend discipline, there is no evidence in the
record that his recommendations were the basis for any
disciplinary actions or discharges. Moreover, although
Dr. Samii may have been ‘‘involved’’ in the decision
to replace the hospital transcribers with an outside
service, the Hospital has failed to establish that Dr.
Samii’s involvement included an effective rec-
ommendation in this regard or that his involvement
touched on matters reached by Section 2(11). Accord-
ingly, Dr. Samii shall be included in the bargaining
unit.
Appropriate Unit
Accordingly, based on the foregoing, we find that
the following employees constitute an appropriate unit
for collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part-time physicians and
dentists employed by the Employer, including at-
tending physicians in the Departments of Medi-
cine and Surgery and physicians in the Depart-
ment of Radiology; but excluding Directors of
Departments, Dr. Mark Alerte, all other employ-
ees, guards and supervisors as defined in the Act.
[Direction of Election omitted from publication.]