Sidney Farber Cancer Institute

National Labor Relations Board - Board Decisions

Jan 2, 1980

247 N.L.R.B. 1 (N.L.R.B. 1980)

THE SIDNEY FARBER CANCER INSTITUTE
The Sidney Farber Cancer Institute and Massachu-
setts Nurses Association, Petitioner. Case I-RC-
15979
January 2, 1980
DECISION ON REVIEW AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Francis A. Molenda
of the National Labor Relations Board. The parties
agreed at the hearing that the issues in contention
should be resolved on the basis of a stipulated record,
which was received by the Hearing Officer, and that
the facts adduced in the stipulated record would
constitute the complete evidence to be submitted by
the parties. On January 11, 1979, the Acting Regional
Director for Region 1 issued a Decision and Direction
of Election in which he found, inter alia, that the
Petitioner, herein also called MNA, is a labor organi-
zation within the meaning of Section 2(5) of the Act,
and that the requested unit of all registered nurses is
an appropriate unit for purposes of collective bargain-
ing.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, a request for review of the
Acting Regional Director's Decision and Direction of
Election was filed by the Employer, contending that
the Acting Regional Director erred in finding that The
Petitioner is a labor organization, that such error
prejudically affects the Employer's rights, and that
there are compelling reasons for reconsideration of the
Board rule relied on by the Acting Regional Director
in his decision.' The Petitioner filed a brief in
opposition to the Employer's request for review. By
telegraphic order dated February 9, 1979, the Board
granted the Employer's request for review.
Thereafter, on March 30, 1979, the National Labor
Relations Board issued its Supplemental Decision and
Order in Sierra Vista Hospital, Inc.,' in which the
Board set forth its policy regarding conflict-of-interest
issues raised by the active participation of supervisors
of the employer with whom a labor organization seeks
to bargain or of third parties in the internal affairs of
state nurses associations. Inasmuch as these issues had
also been raised in the instant proceeding, the Board,
I The Employer's request for review did not contest the Acting Regional
Director's finding that the petitioned-for unit of all registered nurses is
appropriate.
' 241 NLRB 631(1979) (Member Truesdale dissenting).
'Not published in volumes of Board decisions.
' The Board also advised the parties that, upon a proper showing, it would
247 NLRB No. I
by notice dated May 8, 1979,' afforded the parties the
opportunity to submit statements of position on these
issues in light of Sierra Vista, supra.' The Employer
and the Petitioner submitted timely statements of
position.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including the statements of position, and makes
the following findings.
The Employer is a private nonprofit health care
facility engaged in the treatment of cancer patients;
research programs relating to prevention, diagnosis,
and treatment of cancer; teaching of medical person-
nel in cancer-related areas; and the development of
cancer control outreach programs for the assistance of
community hospitals and practicing physicians in the
care of patients with cancer and for programs of
continuing education. The Employer is I of 18
regional comprehensive cancer centers in the country,
designated as such by the National Cancer Institute
pursuant to the National Cancer Act of 1972. Approx-
imately 95 registered nurses are employed by the
Employer.
MNA is a corporation organized under the laws of
the Commonwealth of Massachusetts whose purposes,
as described in its bylaws, are to foster high standards
of nursing practice, promote the professional and
educational advancement of nurses, and promote the
welfare of nurses. A statewide organization which is
affiliated with the American Nurses Association,
MNA is comprised of constituent associations which
admit to membership only registered nurses. MNA
accepts as members individuals whose jobs classify
them as supervisors, but excludes them from its local
professional chapters, described below. MNA has
approximately 9,700 members in the Commonwealth
of Massachusetts, and is party to approximately 40
collective-bargaining agreements applicable to em-
ployees covered by the Act.' MNA has gained
representative status in those units through certifica-
tion by the Board, through certification by the
Massachusetts Labor Relations Commission prior to
the health care amendments to the Act, and through
voluntary recognition.
The members of MNA elect five officers at their
annual membership conventions. The MNA board of
directors is composed of these officers plus 10 other
individuals, 5 of whom are elected as at-large members
entertain a request for further hearing. Neither party contends that further
hearing is necessary.
' MNA is additionally the exclusive bargaining agent for approximately 34
bargaining units comprised of public employees who are not within the
Board's jurisdiction.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the board and 5 of whom represent constituent
associations. Between statewide membership conven-
tions the board of directors has the ultimate responsi-
bility for the operation of MNA. In addition to the
elected officers and directors, MNA functions through
a number of standing committees and councils ap-
pointed by its president with the approval of its board
of directors. One such council, the Council on
Professional, Economic and General Welfare, is pri-
marily engaged in efforts to educate nurses in the
principles and methods of collective bargaining. This
council currently has 12 members, none of whom is a
supervisor or managerial employee as defined in the
Act.
Structurally, MNA consists of five "Districts" or
"Constituent Associations" representing specific geo-
graphic areas within the State. The districts have their
own bylaws, which are consistent with the MNA
bylaws, but do not have any functions relative to
collective bargaining dr contract administration, and
do not participate in the formulation of local chapter
bylaws or policies. The Employer is encompassed
within the jurisdiction of District No. 5.
Pursuant to article XII of the bylaws, MNA
includes "Professional Chapters" which exist for the
purpose of maintaining and improving the profession-
al, economic, and general welfare of nurses represent-
ed by MNA in collective bargaining. No individual
who is a supervisor, manager, or confidential employ-
ee within the meaning of the Act is eligible for
membership or office within the professional chapters.
Each professional chapter establishes its own bylaws
which, like the districts', must be consistent with the
MNA bylaws; elects its own chapter chairperson and
other officers from member nurses who are eligible for
collective bargaining under the Act; and selects its
own collective-bargaining committee. The collective-
bargaining committee's functions include the gather-
ing of contract proposals from the membership,
negotiation of collective-bargaining agreements with
the employer of the chapter members, and the
administration of collective-bargaining agreements
after ratification of such agreements by the chapter
membership.
Supporting the professional chapters in their collec-
tive-bargaining activities is the MNA Professional,
Economic and General Welfare Program, hereinafter
called the PEGW Program, which is staffed with full-
time MNA employees.' This program, administered
by a director and six associate directors, performs a
variety of collective-bargaining services for individual
nursing units. Staff representatives of the PEGW
Program serve as spokespersons and advisors through-
' No member of the PEGW Program staff is employed in any capacity.
supervisory or otherwise, by any health care institution.
' The District No. 5 bylaws also provide for annual dues to be paid to the
out the negotiating process, advise the local chapters
as to strategy and tactics based upon their professional
experience, supply economic data, and consult with
local chapters and labor counsel regarding the filing of
unfair labor practice charges or submission of griev-
ances to arbitration. The PEGW Council and Pro-
gram staff also hold seminars and give lectures on
collective-bargaining matters at various times
throughout the year. However, the decisions with
respect to bargaining strategy, bargaining tactics,
bargaining proposals, contract acceptance, contract
administration, demands for arbitration, and Board
litigation are made by the chapters. Neither the
PEGW Program staff nor labor counsel has a vote in
that decisionmaking process. Nor has the director of
the PEGW Program, who is responsible for the fiscal
affairs of the program, ever refused to authorize an
expenditure for arbitration or other litigation costs
incurred by professional chapters, even though both
he and labor counsel have on occasion disagreed with
the chapters over the value of such litigation.
The PEGW Program director is directly responsible
to MNA's executive director, who is appointed by the
board of directors for the purpose of exercising
managerial control over the business affairs of the
organization and coordinating its voluntary programs.
The executive director is responsible to the board of
directors, which is, in turn, ultimately responsible to
the membership. The director of the PEGW Program,
with the assistance of his staff, supervises the PEGW
Program without the need for prior approval of, or
consultation with, the executive director or the board
of directors. Although reports of the activities of the
PEGW Program and PEGW Council are periodically
submitted to the Board by the PEGW director, the
incumbent director, whose affidavit is included in the
stipulated record, states that he considers these reports
to be for information only and that the board of
directors has at no time questioned or criticized the
reports or given any direction with respect to the
PEGW Program.
The PEGW Program is funded in accordance with
the MNA bylaws providing for a finance committee's
preparation of an annual budget for approval by the
board of directors. Dues and fees are paid by MNA
members to the MNA state organization and to the
American Nurses Association.' Amounts paid by
members of local chapters are commingled with those
paid to MNA by members who are not local chapter
members. According to the stipulated record, no local
chapter has ever been denied requested services for
fiscal reasons. Nor has the board of directors ever
refused to fund any program expenses incurred
constituent association. These funds, however, are not utilized for collective-
bargaining purposes.
THE SIDNEY FARBER CANCER INSTITUTE
relative to collective bargaining, including, inter alia,
costs associated with negotiations, contract adminis-
tration, arbitration, and litigation. On those occasions
when the PEGW Program budget has been exhausted
prior to the end of the fiscal year, all additional
expenditures have been paid from general funds
without the prior approval of the board of directors.
While the board of directors is responsible for
assuring that all MNA programs are carried out in
accordance with the principles of the organization, it
does not establish collective-bargaining strategy or
planning for local chapters; does not participate either
directly or indirectly in the formulation of proposals,
the negotiation of agreements, or contract administra-
tion by local chapters; and does not direct staff
members of the PEGW Program in their consultations
with local chapters in these regards. The board of
directors engages labor relations counsel for MNA,
but such counsel acts independently of the board of
directors when functioning in labor relations matters.
The one policy which the board of directors has
established relating to the collective-bargaining pro-
cess is a requirement that at least 50 percent of the
nurses in a prospective bargaining unit be MNA
members before MNA will petition to represent them.
All collective-bargaining agreements negotiated and
ratified by the professional chapters must be adopted
by MNA without revision unless their provisions do
not conform with applicable law or article XII, which
further provides that, upon ratification by a profes-
sional chapter, the agreement shall be signed by the
chapter chairperson and by the MNA director of
PEGW or his designee, and shall thereupon be
considered as adopted by MNA.
The professional chapter in which registered
nurse/employees of the Employer participate, desig-
nated "The Professional Chapter of Registered Nurses
at Sidney Farber Cancer Institute," was formed by
several registered nurses who are employees under the
Act. These nurses solicited authorization cards from
other registered nurse/employees without the assis-
tance or involvement of supervisory personnel, and
arranged for the filing of the petition in this proceed-
ing. The registered nurse/employee organizers also
formulated temporary bylaws for the chapter, and
arranged an election of temporary officers and an
organizing committee. All voters and members of the
chapter are employees within the meaning of the Act.
The Employer contends, inter alia.' that because, as
stipulated, 5 to 6 of the 15 MNA state officers and
directors, as well as 4 to 5 of the 11 officers and
directors of District No. 5, are supervisors, the MNA
' In its request for review the Employer also asserted that MNA is not a
"hona fide labor organization within the meaning (of the Act" Assuming that
by this statement the Employer contends that MNA des not meet the
statutory definition of labor orgaizatiIon, we find no, merit to it, for the record
is influenced, dominated, and controlled by supervi-
sors and hence is not a proper bargaining representa-
tive under the Act. It further asserts that, even though
no officer or director of either the constituent associa-
tion or the state body is employed by or is in any way
associated with the Employer, certification of MNA
would create uncertainty and instability in the collec-
tive-bargaining process because a supervisor of the
Employer may become involved in MNA and cause a
conflict to exist at some future date. Such an event
could, according to the Employer, disrupt the bargain-
ing process and management-staff relations, and
would be contrary to established labor relations
policy. The Employer does not, however, offer to
adduce evidence of any specific present conflict arising
from the representation of its nurse employees by
MNA, but instead relies upon what it asserts is
inherent control of collective-bargaining policies-
both through the MNA professional, economic, and
general welfare activities and MNA control of fund-
ing-to support its position.
In Sierra Vista Hospital, Inc., supra, we rejected the
contention that there is an inherent conflict between
all supervisors and all employees which automatically
disqualifies a labor organization in which supervisors
participate from properly representing employees.
Instead, as we stated in that case, a conflict of interest
justifying a labor organization's disqualification from
representing a particular unit because of supervisory
involvement in the internal affairs of the bargaining
agent would depend () upon whether a supervisor or
supervisors employed by the employer were in a
position of authority within the labor organization
and, if so, upon the role of that individual or
individuals in the affairs of the labor organization, or
(2) in the instance of supervisory nurses employed by
third-party employers and holding positions of author-
ity, upon some demonstrated connection between the
employer of the unit employees concerned and the
employer or employers of those supervisors which
might affect the bargaining agent's ability to single-
mindedly represent the unit employees. The burden of
establishing the existence of a conflict interfering with
the collective-bargaining process is upon the employer
asserting the disqualifying conflict, and is a heavy one.
The Board in Sierra Vista approved the United States
Court of Appeals for the First Circuit's formulation of
an employer's burden in establishing such a conflict as
that of coining forward "with a showing that danger
establishes that MNA is an organization "in which employees participate"
and which exist, at least in part fr the purpole "of dealing with employers
concerining griesances, labor disputes wages,. rates of pay, hours of employ-
ment,. or conditions of ,work" wthin the meaning if Sec. 2(5) of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a conflict of interest interfering with the collective
bargaining process is clear and present." 9
The Employer has adduced no evidence establishing
a disqualifying conflict of interest in accordance with
the above-described standards set forth in Sierra Vista.
The record indicates that no supervisor employed by
the Employer holds office, is a member of the MNA
board of directors, or is otherwise claimed by the
Employer to hold a position of authority within that
labor organization. While several officers and direc-
tors of the MNA state organization and District No. 5
are employed as supervisors of other employers, the
Employer has proffered no evidence of any connection
between itself and the employers of those supervisors
which might in any way impinge upon the employees'
right to a bargaining representative whose undivided
concern is for their interests. Rather, the Employer
argues that the high degree of supervisory involvement
in the membership and leadership of MNA (as
evidenced by the number of supervisors holding office
and acting as directors for the organization), supervi-
sory control over collective-bargaining policies
through the power of appointment and approval of
PEGW Council members by the MNA board of
directors, the requirement that collective-bargaining
agreements ratified by local chapters must be signed
by the MNA board, and that board's power to hire
legal counsel as well as control the PEGW Program's
funding, all establish that MNA is subject to the
influence, domination, and control of its supervisory
members and is therefore not qualified to serve as a
collective-bargaining representative.
The record fails to substantiate these contentions,
for MNA has taken numerous precautionary measures
to insulate the collective-bargaining process from
supervisory participation or influence. Thus, as out-
lined above, the collective-bargaining function is
locally controlled by professional chapters which
specifically exclude from membership supervisory
nurses and which possess the sole authority to make
decisions regarding their own bargaining affairs. As
noted, article XII of the MNA bylaws provides for
adoption of the locally determined collective-bargain-
ing agreements upon ratification by the professional
Sierra Vista Hospital. Inc., 241 NLRB 631 at fn. 22, citing N.L.R.B. v.
David Buttrick Co.. 399 F.2d 505. 507 (Ist Cir. 1968).
'" See, for instance, Bridgeport Jai Alai. Inc.. 227 NLRB 1519 (1977),
wherein we stated that "a labor organization may be disqualified as a
collective-bargaining representative when the objecting party has shown that
'there is an innate or proximate danger that the interests of the employees will
be subordinated to factors which are not germane to the employer-employee
relationship,"' citing David Buttrick Co.. 167 NLRB 438 (1967). As discussed
in Bridgeport Jai Alai with reference to the Buttrick cases (N.L.R.B. v. David
Buttrick Company.. 361 F.2d 300 (st Cir. 1966), remanding 154 NLRB 1468
chapter without modification by either the MNA state
or district leadership, as they have no discretion to
reject such agreements on policy grounds. Indeed, as
noted, MNA must adopt locally ratified contracts that
conform to applicable law and article XII. We find
that this procedure adequately protects the chapters
from supervisory interference and insures that the
local chapters will be free of any meaningful restric-
tion of their power to set an independent course in
collective bargaining.
As to the Employer's assertions that the MNA
board of directors' various powers, such as those of
appointment, approval, and fiscal control, amount to
supervisory domination, we find these functions of
organizational oversight to be both remote and specu-
lative in relation to the local chapters' bargaining
activities. Something more than mere potential for
influence must be shown to warrant disqualifying a
labor organization."' We likewise find the Employer's
assertion that its supervisors may hold office or
positions of authority in MNA at some future time
entirely too speculative to warrant disqualification of
MNA." Nor is that assertion probative of establishing
the existence of a clear and present danger of conflict.
Hence, we find no merit to the Employer's assertions
that these matters indicate a disability on the part of
MNA to properly function as bargaining representa-
tive for the Employer's employees.
Based upon the foregoing, we find that MNA is not
disqualified because of an alleged conflict of interest
from representing the Employer's employees for the
purposes of collective bargaining with the Employer.
The Employer has failed to sustain the burden
required by us in Sierra Vista of showing that "there is
a clear and present danger of a conflict of interest
which compromises [the Petitioner's] bargaining in-
tegrity."'2 Accordingly, we shall direct that the im-
pounded ballots from the election conducted on
February 15, 1979, be opened and counted, and in the
event no objections to the conduct of the election are
filed and the results of the election are not affected by
challenged ballots, if any, the Regional Director shall
issue the appropriate certification.
(1965); 399 F.2d 505 (Ist Cir. 1968), enfg. 167 NLRB 438 (1967)), the Board
will inquire into two interrelated areas in making a determination of this issue:
(I) whether the organization or persons alleged to be in conflict with the
bargaining agent's representative integrity have the power to control bargain-
ing, and (2) whether the temptation, likelihood, or incentive for exercising
that power adheres.
" Cf. Baptist Hospitals. Inc., d/b/a Western Baptist Hospital. 246 NLRB
No, 25 (1979); American Arbitration Association. Inc.. 225 NLRB 291 (1976).
Sierra Vista Hospital. Inc.. supra.
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THE SIDNEY FARBER CANCER INSTITUTE
DIRECTION
It is hereby directed that the Regional Director for
Region 1 shall open and count the ballots cast in the
election conducted in this proceeding on February 15,
1979, and issue a tally of ballots based thereon.
Thereafter, the provisions of Section 102.69 of the
Board's Rules and Regulations, Series 8, as amended,
shall be applicable.
5