274 N.L.R.B. 1289 (N.L.R.B. 1985)

North Shore University Hospital

National Labor Relations Board - Board DecisionsMar 29, 1985

274 N.L.R.B. 1289 (N.L.R.B. 1985)

NORTH SHORE HOSPITAL North Shore University Hospital and New York State Nurses Association . Cases 29-CA-6398 and 29-RC-3989 29 March 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 29 December 1981 the National Labor Rela- tions Board issued its Decision and Order in this proceeding,' denying the Respondent's motion to revoke the Association's certification as the exclu- sive bargaining representative of the Respondent's registered professional nurses, and finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Association. Upon application for enforcement of the Board's Order in Case 29-CA-6398, the United States Court of Appeals for the Second Circuit denied en- forcement of the Order and remanded the case to the Board for further consideration consistent with the court's opinion.2 The Board thereafter accept- ed the court's remand and notified the parties that they could file statements of position with the Board. The General Counsel, the Respondent, and the Association filed statements of position. The Board has reviewed the cases in light of the court's opinion and the parties' statements of posi- tion and now makes the following findings. In its original decision in these cases, the Board adopted the judge's Decision and Order which re- quired the Respondent to bargain with the Associa- tion in a unit of the Respondent's nonsupervisory, registered professional nurses. In so doing, the Board agreed with the judge's reliance on Sierra Vista Hospital, 241 NLRB 631 (1979), in rejecting the Respondent's affirmative defense that the Asso- ciation should be disqualified as exclusive repre- sentative of these employees because its actions are controlled, directed, dominated, and influenced by persons occupying positions as statutory supervi- sors with the Respondent and other health care in- stitutions. In this regard, the judge found, inter alia, that statutory supervisors generally participate in the Association and possess the same voting rights and privileges as employee members. In addition, the judge found that supervisors employed by insti- tutions other than the Respondent serve, or have served, on the Association's board of directors, its "Economic and General Welfare" (herein EGW), i 259 NLRB 852 Chairman Dotson did not participate in this case 2 ''LRB v N'ortli Shore Universoy Hospital. 724 F 2d 269 (2d Cir 1983) 1289 advisory council3 and various special committees and task forces, including some which have stud- ied, and reported to the membership on, matters re- lated to the Association's labor relations functions. The judge further found that an individual, em- ployed by the Respondent and alleged by it to be a supervisor, previously served on the committee re- sponsible for nominating candidates for election to the board of directors. This individual also partici- pated in the administration of the Nurses Associa- tion of the Counties of Long Island, Inc., District 14, a "constituent"4 of the Association which in the past has sponsored informational programs dealing with subjects within the area of labor rela- tions and which annually publishes a survey of wages, hours, and other personnel practices and policies of hospitals within its geographical area. Notwithstanding the foregoing, the judge found that the Respondent had not met its burden under Sierra Vista of demonstrating that supervisory par- ticipation within the Association gave rise to a "clear and present danger" of conflict of interest interfering with the collective-bargaining process. In making the latter finding, the judge noted that the mere participation of supervisory personnel, in- cluding supervisory personnel of the Respondent, in the general affairs of the Association is insuffi- cient to disqualify it, and that under Sierra Vista the Board does not assume an "inherent" conflict be- tween supervisors and employees in the bargaining process. In addition, the judge noted that whether the participation in the Association of supervisors employed by institutions other than the Respondent could give rise to a conflict of interest depended, under Sierra Vista, on "a demonstrated connection between the employer of [the] unit employees and the employer or employers of [the] supervisors." The judge found no evidence of such a connection nor evidence that any supervisor had directly inter- fered with any of the Association's collective-bar- gaining activities. In this regard, the judge found that all matters related to the collective-bargaining process are controlled by the members of the indi- vidual bargaining units for which the Association is the exclusive representative, and that any assistance given by the Association to bargaining unit em- ployees is provided through full-time staff employ- ees of the Association and is purely advisory in nature. Thus, while acknowledging that statutory supervisors participate at all levels of the Associa- tion, the judge found that the Respondent had not 3 This is a seven-member body appointed by the board of directors to advise the board and the EGW staff on matters related to the EGW pro- gram, which encompasses the Association's labor relations functions 4 A "constituent in this context is a separate organization with a consti- tution and bylaws which are in harmony with those of the Association 274 NLRB No. 188 1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shown such supervisory involvement to constitute a direct conflict of interest interfering with the col- lective-bargaining process. As noted above, the Board adopted the judge's findings. Upon review, the court agreed that a labor orga- nization is' not disqualified as an exclusive repre- sentative merely because it admits supervisors to membership. The court further agreed that Sierra Vista sets forth the correct test in these circum- stances, and that a labor organization should not be disqualified unless there is a "clear and present danger" of "a conflict of interest interfering with the collective bargaining process." The court dis- agreed, however, with the Board's application of the Sierra Vista test to the facts of the instant cases, "because it limits the inquiry as to a conflict of in- terest to proof of explicit supervisory interference in the case of the particular bargaining unit" before the Board The court added:5 While that narrow inquiry may be appropriate in the case of an organization representing the employees of one employer in an industrial context, it is inadequate to effectuate the poli- cies of the Act in the case of a multipurpose professional organization representing thou- sands of employees in numerous bargaining units. We believe that in the latter case the in- quiry must extend to all relevant circum- stances, including the governing structure and actual practice of the organization seeking cer- tification as a bargaining representative so far as participation by supervisors is concerned. In finding the broader inquiry appropriate, the court observed that supervisors who are active in a professional organization which represents employ- ees serving under them are inherently subject to conflicting pressures, and that the degree to which these pressures exist is determined by the structure of the professional organization and the extent to which the collective-bargaining functions of the or- ganization have been insulated from its governance. The court further noted that supervisors as a class have interests which are distinct from those of rank-and-file employees and that a professional or- ganization in which supervisors play a significant governing role will have difficulty in isolating and reflecting only the views of rank-and-file employ- ees. The court also pointed out that the Board's in- sistence in Sierra Vista that evidence of "explicit" interference in collective bargaining be shown, ig- nored the possibility that acquiescence of the rank and file may make supervisory influence more diffi- cult to prove as it becomes more pervasive Final- ly, the court observed that the Board's analysis ig- 5 NLRB v North Shore University Hospital , supra at 273 nored the inevitable violations of Section 8(a)(2) of the Act6 which would result from certifying the Association as the exclusive representative of the Respondent's employees at a time when supervisors employed by the Respondent were actively partici- pating in its internal affairs.? The court concluded, therefore, that the narrow inquiry made by the Board under Sierra Vista was "not consistent with the policies of the Act." Analyzing the evidence in light of the general structure and practice of the Association, the court found that here "supervisory influence is ubiqui- tous." It added:8 Quite apart from the formal structure in which supervisors vote on various matters, status as a senior member of SNA and supervisory au- thority within a health care facility often go together and it is well nigh inevitable that some of SNA's most active members will also be supervisors. SNA's board of directors, its ultimate governing authority to which the ex- ecutive director and other staff employees must report, has supervisors as members. The nominating committee, which has great influ- ence in determining who will become an offi- cer or director, was chaired by a supervisor from North Shore Hospital at the time of the election. Little, if anything, has been done to insulate collective bargaining activities from the governance of the organization generally. The staff members who advise organized nurses and negotiate on their behalf serve at the pleasure of SNA's board. Even the EGW advisory council has supervisors as members, as did a task force on SNA's no-strike policy. District 14, which collects information on wages, hours, etc., of nurses, key information in developing bargaining demands, was chaired by a supervisor from North Shore Hospital. Supervisors have used a district meeting to voice opposition to the representa- tion of rank and file nurses by a competing union. Finally, SNA seems quite prepared to refuse to cooperate with employers in seeing that Section 8(a)(2) is not systematically violat- ed by the activities of supervisory nurses in SNA. To the contrary, it may be prepared to resist any attempts by employer hospitals to 8 Sec 8(a)(2) of the Act reads in relevant part (a) It shall be an unfair labor practice for an employer (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it 7 NLRB v North Shore Hospital , supra at 273-274 8 Id at 275 NORTH SHORE HOSPITAL 1291 comply with the law, even by providing legal assistance to any supervisor whose continued employment is made contingent on resignation from SNA. That was in fact the recommenda- tion of an SNA committee which studied the conflict of interest problem. The court concluded that were the Association an industrial union, the court "would be forced to conclude as a matter of law that it could not be permitted to represent rank and file employees." The court declined to so hold, however, stating: Although the Board had not distinguished be- tween the legal rules applicable to professional organizations and those which govern industri- al unions, seeking refuge instead in the com- fortably narrow doctrine of Sierra Vista, it may be that some distinctions of that character will emerge upon remand. While we are skeptical that an organization such as SNA will emerge unmodified after the broader inquiry required by us, we do not want to discourage a full review of the problem on a clean slate by sug- gesting imitations on the results of that review.9 Having accepted the remand, the Board also ac- cepts the court's opinion as the law of the case. Thus, given the court's reasoning, we are com- pelled to disqualify the Association as the exclusive representative of the Respondent's nonsupervisory, registered professional nurses unless under the broadened analysis directed by the court we may establish legal rules applicable to professional orga- nizations different from those which govern indus- trial unions concerning conflicts of interest occa- sioned by supervisory participation. In Sierra Vista, the Board found that organizations such as the As- sociation should not be considered differently from other labor organizations in this regard-10 From all the foregoing, it is clear that we find state nurses' associations which meet the criteria set forth in Section 2(5) of the Act to be labor organi- 8 Id at 275 The court also explained that it was not precluding the possibility that a professional orgam7euon could have a collective-bar- gaining component or that the Board could consider the multiple pur- poses of professional organizations when fashioning rules under Sec 8(a)(2) of the Act '° 241 NLRB at 635 See also St Joseph's Hospital, 254 NLRB 634, 638 in 15 (1981) zations and that we will treat claims that the asso- ciations are dominated or controlled by supervisors, or have some other conflict of interest which dis- qualifies them from representing employees, in the same manner that we will treat such allegations against other labor organizations. No party to this proceeding urges the Board to reconsider its position with regard to establishing different rules applicable to professional organiza- tions. On the contrary, the General Counsel, the only party to address this issue in its statement of position, recommends that the Board not do so. Thus, we have been presented with no basis for distinguishing the legal rules applicable to industri- al unions from those which govern the Association. Under the circumstances, we shall treat the Asso- ciation no differently than we would another labor organization alleged to suffer from a disqualifying conflict of interest occasioned by supervisory par- ticipation in the organization. Applying the court's opinion as the law of this case, and for the reasons set forth in that opinion, we conclude that the active participation of supervisory personnel in the Association, the lack of insulation of the collective- bargaining process from governance of the organi- zation, and the lack of a mechanism to assist the Respondent and other employers from violating Section 8(a)(2) of the Act through supervisory em- ployees' participation in the Association's affairs, combine to present a clear and present danger of a conflict of interest. Accordingly, we shall revoke the Board's certification of the Association as the bargaining representative of the Respondent's nurses and shall vacate the Board's prior Decision and Order finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Association. ORDER The National Labor Relations Board orders that the Certification of Representative previously issued in Case 29-RC-3989 is revoked. IT IS FURTHER ORDERED that the Board's Deci- sion and Order in Case 29-CA-6398 (259 NLRB 852) is vacated and that the complaint therein is dismissed.