Lodi Memorial Hospital Association, Inc.

786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lodi Memorial Hospital Assoication, Inc. and Cali- fornia Nurses' Association (American Nurses' Association), Petitioner. Case 32-RC-692 May 23, 1980 DECISION AND DIRECTION OF ELECTION 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 Edward S. Kaplan. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Proce- dure, Series 8, as amended, and by direction of the Regional Director for Region 32, the case was transferred to the Board for decision. Thereafter, briefs were filed by the Petitioner and the Employ- er.1 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon a review of the entire record in this case, the Board finds: 1. According to the parties' stipulation, Lodi Me- morial Hospital Association, Inc., herein also called Lodi Hospital, is a California corporation engaged in the operation of an acute care nonprofit hospital in Lodi, California. It has annual gross revenues in excess of $250,000 and annually purchases goods valued in excess of $50,000 directly from points outside the State of California. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act, and it will effectu- ate the purposes of the Act to assert jurisdiction herein. 2. The record shows that California Nurses' As- sociation (American Nurses' Association), herein also called CNA, is an organization in which em- ployees participate and which exists, at least in part, for the purpose of representing its members in collective bargaining. We find, therefore, that CNA is a labor organization within the meaning of Section 2(5) of the Act. The Employer contends, however, that CNA should be disqualified from representing the Em- ployer's registered nurses because supervisors serve as officials and directors of CNA. In Sierra Vista I Subsequent to the hearing and transfer of this case to the Board, the Employer requested oral argument. That request is hereby denied, as the record and the briefs adequately present the issues and the positions of the parties. 249 NLRB No. 121 Hospital, Inc., 241 NLRB No. 107 (1979), the Board recognized that under some circumstances the participation of supervisors in the internal oper- ation of a state nurses association such as CNA may serve to disqualify the association from repre- senting certain employees. Such disqualification will result when an employer meets the "heavy burden" of showing that the participation of its own supervisors, or supervisors of employers with a demonstrated connection to it, presents a "clear and present danger" of a conflict of interest which compromises the labor organization's bargaining in- tegrity. The Employer concedes that none of its own su- pervisors currently serves in any leadership capac- ity within CNA. Thus, the first part of the Sierra Vista test is not here in issue. There is no conflict between the Employer's interest in the loyalty of its own supervisors and the employees' interest in a bargaining representative uncompromised by loyal- ty to their Employer. The Employer relies on that portion of the Sierra Vista test which would locate CNA's disqualifying conflict of interest in the active participation in bargaining on behalf of CNA by supervisors of other, competing hospitals. However, in our view, the burden of showing that such participation exists and that it presents a clear and present danger to the integrity of the bargaining process has not been proven by the Employer. The Employer first attempts a showing of a "demonstrated connection" between itself and cer- tain third-party employers as required by Sierra Vista. The three hospitals employing supervisors who the Employer contends would interfere with any bargaining between itself and CNA are Ameri- can River Hospital, Methodist Hospital, and St. Jo- seph's Hospital. The former two hospitals are lo- cated in the greater Sacramento area and are each approximately 40 miles north of Lodi Memorial Hospital. St Joseph's is located in Stockton, Cali- fornia, approximately 10 miles south of Lodi. The Employer contends that competition for pa- tients between itself and the other three hospitals is demonstrated by data showing the percentage of Lodi Hospital's aggregate in-patient days account- ed for by patients from selected communities within an approximate 30-mile radius of Lodi. However, we find both the premise and the geo- graphical categories of this statistical breakout to be too crude to demonstrate a degree of competi- tion sufficient to meet the connection test contem- plated in Sierra Vista. 2 2 ince the metric "in-patient days" measures severity or length of ill- ness, the Employer's statistical presentation does not show a distribution of patients among various cities or groups of cities which would more ap- Continued LODI MEMORIAL HOSPITAL ASSOCIATION 787 However, even assuming, arguendo, demonstrat- ed competitive relationships between the Employer and American River, Methodist, and St. Joseph's, the Employer is further required to show a conflict of interest in order to disqualify CNA. Such a con- flict must be between the influence within CNA of supervisors employed by the competing hospitals and CNA's capacity to represent the Employer's employees. Presence alone of third-party supervi- sors in CNA is not sufficient since under Sierra Vista the Board will not assume any "inherent" conflict of interest between supervisors and em- ployees in the bargaining process. We have carefully reviewed the record in this proceeding and find no basis for the Employer's contention that three specified supervisors who are officials in CNA and are employed, respectively, by American River, Methodist, and St. Joseph's Hospitals, could influence to an impermissible degree collective bargaining between the Employer and the Petitioner. Catherine Donovan, a relief supervisor employed by American River Hospital, is a member of CNA's board of directors and its finance commit- tee. The Employer contends that Donovan's par- ticipation in the board's general oversight function with respect to CNA's Economic and General Welfare Commission constitutes a conflict of inter- est. This commission is responsible for all collec- tive-bargaining and representational activities. The board appoints CNA's executive director who hires the commission's director. The finance committee reviews and approves the commission's budget. Thus, according to the Employer, since Donovan's position enables her to influence the formulation and implementation of CNA policy on economic and general welfare matters she may use that influ- ence to secure language in a Lodi Hospital collec- tive-bargaining agreement which might disadvan- tage Lodi Hospital employees with respect to the interests of her employer, American River Hospi- tal. Marilyn Miller, a supervisor at Methodist Hospi- tal, is a member of CNA's regional board of direc- tors for region 8. This region includes all hospitals within and around the cities of Sacramento, Lodi, propriately support a claim of competition between Lodi Hospital and any other hospital. Further, a geographical grouping such as "Stockton, Sacramento, Modesto, and others" which includes at least two communi- ties south of Lodi is too broad to reflect accurately competition with hos- pitals in Sacramento, a city to the north. The Employer's attempt to demonstrate competition for nursing staff through an analysis of advertising expenditures in newspapers published in communities surrounding Lodi is subject to similar frailties. A suffi- cient degree of competition is not shown merely by the fact that Lodi Hospital advertised for staff in Sacramento newspapers, or by the fact that some nurses employed by Lodi Hospital reside not in Lodi, Califor- nia, but in other nearby cities containing hospitals from which they might have sought employment. and Stockton. The Employer contends that Miller's position as a director enables her to influence the scope and direction of the Economic and General Welfare Commission's collective-bargaining activi- ties within region 8. The Employer points particularly to the role of the nurse advocates who are hired and directed by the region. In addition to their work with respect to nurse practice issues, the nurse advocates partici- pate in the Economic and General Welfare Com- mission's organizational and representational activi- ties. The region 8 board, through its personnel committee of which Miller is a member, reviews and determines the allocation of a nurse advocate's time between Economic and General Welfare Commission activities and nurse practice issues. The Employer focuses on Miller's position within the governing structure of CNA to con- struct what it views as the conflict of interest be- tween Miller's allegiance to her employer, Method- ist Hospital, and the bargaining interests of Lodi Hospital's rank-and-file nurses. Namely, Miller could use her influence on the region 8 board to either assign nurse advocates away from assisting with contract negotiations at Lodi Hospital or, in the alternative, to direct the nurse advocates to secure a contract containing terms which would put the Employer at a competitive disadvantage vis-a-vis Methodist Hospital. The third supervisor whose CNA activities the Employer asserts constitute a disqualifying conflict of interest is Carol Cox, director of nursing at St. Joseph's Hospital. She is the region 8 commissioner on the Nursing Service Administration Commis- sion. This commission is devoted to the interests of nursing supervisors and has, inter alia, developed a model employment contract for their use. In a posi- tion paper on the rights and responsibilities of ad- ministrative nurses adopted by the CNA board of directors, the Nursing Service Administration Commission has suggested that such individuals seek assistance in negotiating their individual con- tracts from staff members of the Economic and General Welfare Commission. In addition to this possible contact between su- pervisors and the staff of the all-employee Eco- nomic and General Welfare Commission, the Em- ployer points to other examples such as joint au- thorship of some CNA reports by the two commis- sions. The Employer suggests that, like Supervisor Miller of Methodist Hospital, Cox may influence Economic and General Welfare Commission pro- grams on matters affecting Lodi Hospital such as the assignment of staff members to the negotiation of individual employment contracts for supervisors and away from staff nurse negotiations. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer then points to the further possibil- ity that a supervisor so assisted by a particular Economic and General Welfare Commission staff member might later face that same individual across a bargaining table. This possible situation, in the Employer's view, presents substantial risks of a conflict of interest to the supervisor concurrently indebted to her bargaining adversary.3 However, it is clear from the record that the po- tential impact of Donovan, Miller, and Cox on any collective bargaining involving staff nurses of the Employer is remote. All responsibility for collective bargaining on behalf of CNA resides within the Economic and General Welfare Commission, all of whose mem- bers are nonsupervisory nurses. Collective barain- ing on the local level is conducted by elected em- ployee bargaining committees. These committees are provided with technical assistance and advice in preparing contract proposals and in conducting negotiations by commission staff members. All ten- tative agreements reached at the bargaining table must be ratified by the local bargaining unit. To meet directly the Employer's argument with respect to the roles of Donovan and Miller, we note that CNA's board of directors, on both the state and regional level, has no role in reviewing or approving individual collective-bargaining agree- ments before they are executed. Further, the board of directors on neither level plays any role in au- thorizing strikes at individual hospitals. Also we note particularly that there is no evidence that any director has ever directly intervened in any collec- tive bargaining on the local level, in the manner postulated by the Employer. With respect to the Employer's contentions as to the nurse advocates, the record reveals that region 8 does have primary control over them for their nurse practice activities and for allocating the pro- portion of their working time to be devoted to the collective-bargaining programs of the Economic and General Welfare Commission. However, CNA argues, the Employer concedes, and we find that the director of the Economic and General Welfare Commission, himself responsible to the nonsupervi- sory commission members, has line supervision over the nurse advocates with respect to their work in organizing, negotiating, and handling grievances. Further, there is no evidence that Miller or any other region 8 director has ever at- tempted to influence any nurse advocate in her work on behalf of the Economic and General Wel- fare Commission. 3 This issue, will be discussed infra as part of our consideration of the Employer's second theory of conflict of interest, presented as "analo- gous" to Sierra Vista. We therefore find it speculative at best to sug- gest that either Donovan's participation as a CNA director in statewide policymaking or Miller's re- gional responsibilities for the work of nurse advo- cates could be effectively translated into an ability to penetrate the safeguards created by CNA's allo- cation of collective bargaining to a commission of statutory employees. We further find that Cox's po- tential for influencing any future Lodi Hospital ne- gotiations based on her membership on the Nursing Service Administration Commission and its com- munications with the Economic and General Wel- fare commission is even more remote than that of Miller. Thus, since we perceive no reasonable like- lihood, certainly none rising to the "clear and pres- ent danger" level mandated by Sierra Vista, that Donovan, Miller, or Cox could meaningfully affect the course or content of collective bargaining be- tween CNA and the Employer, we find no conflict of interest between the employees' right to single- minded representation and any interests of these three supervisors, related to the fortunes of their respective employers. The Employer's theory of CNA's disqualifying conflict of interest, however, is not limited by the parameters of Sierra Vista. In brief, the Employer contends that CNA's employment-related assistance to members who are statutory supervisors creates, in light of CNA's possible concurrent representa- tion of employees in collective bargaining, a con- flict of interest analogous to the first part of the Sierra Vista test. Specifically, under the theory, an employer's interests would be compromised when a supervisor who stands to gain from CNA assistance with employment-related problems is called upon to represent it in negotiations with CNA. At the same time the unit employees' interests are compro- mised when CNA assists a supervisor of the em- ployees' for whom it is acting as a bargaining rep- resentative. Thus, the Employer locates a Sierra Vista "analogue" in such "dual representation" by CNA of unit employees and supervisors of the same employer. 4 4 The Hearing Officer granted CNA's motion to revoke Item 5 of the Employer's subpena in which the Employer sought production of all of CNA's documents relating to actions in behalf of members who are su- pervisors within the meaning of the Act. The Employer's interim appeal of this ruling to the Regional Director resulted in a partial reversal. The Regional Director limited the geographical scope of Item to the Em- ployer and all other employers within San Joaquin County, California. The Employer now contends before the Board that the Regional Direc- tor's ruling improperly limits the scope of the subpena and that it is enti- tled to documents relating to assistance to supervisors on a statewide, or at least a regionwide basis. We find no basis for reversing the Regional Director's ruling and find it free from prejudicial error. Since we find, infra, that the Employer's conflict-of-interest theory concerning CNA's employment assistance to supervisors is without merit, we find that any additional evidence which might be obtained by the Employer under its subpena would not be relevant. Continued LODI MEMORIAL HOSPITAL ASSOCIATION 789 The Employer's evidence under this theory as to CNA's conflict of interest at Lodi Hospital con- cerns CNA's relationship with Juanita Ponton. It began in 1977 when a staff nurse at Lodi Hospital was discharged by then Director of Nursing Ponton. Catherine Ross, a CNA labor representa- tive on the staff of the Economic and General Wel- fare Commission, represented the nurse in an unem- ployment compensation hearing and also filed an unfair labor practice with the Board in her behalf. These events took place before any organizing ac- tivities by CNA at Lodi Hospital. Ponton herself was discharged in March 1979. She then contacted Ross with whom she discussed the grievance procedures at Lodi Hospital, the nurse practice issues involved in the discharge, and the possibility of legal representation by a CNA at- torney. In May 1979, CNA attorney Neil Bodine met with Ponton after CNA had filed a representa- tion petition with respect to the Employer, and ad- vised her about processing a grievance and filing for unemployment compensation. Bodine wrote a letter to the Employer asserting that Ponton had received an offer of employment as director of nurses at Oak Park Hospital in Stockton and that it had been rescinded because of untrue and deroga- tory statements sent by the Employer to Oak Park. Bodine demanded that the Employer send Oak Park a written retraction and cease from making derogatory remarks about Ponton to potential em- ployers. At this point Ponton took Bodine's advice and engaged private legal counsel. CNA's only fur- ther connection with Ponton in a representational capacity was the sending of a telegram to her de- ploring the lack of due process in her discharge by the Employer. We find no merit in the Employer's analogizing the role of a nursing supervisor assisted by a labor organization to that of a similarly situated supervi- sor acting in behalf of the same labor organization as that theory is applied to the facts of this case. We also find no basis for reversing the Regional Director's denial of the Employer's interim appeals from two other rulings of the Hearing Of- ficer. The Employer's subpena requested the complete minutes of CNA's board of directors and those of the region 8 board as well. CNA moved before the Hearing Officer to revoke the subpena. The Hearing Officer ruled that he would conduct an in camera inspection of those portions of the minutes not voluntarily produced by CNA. The Employer's interim appeal contended that this procedure inadequately protected its discovery interests. Secondly, the Hearing Officer granted CNA's motion to quash the Employer's subpena for the minutes of CNA's Nursing Service Ad- ministration Commission. The Regional Director's rulings sustaining the rulings of the Hearing Officer are, in our judgment, free from prejudicial error. The evidence sought to be admitted by the Employer is, in our view, not relevant, for the reasons stated infra, to the issue of whether the Petitioner is qualified under a conflict-of-interest theory to represent the unit employees. We further find no basis for reversing the Hearing Officer's ruling sus- taining CNA's objection to the Employer's questions concerning Juanita Ponton's possible involvement in organizing activities at Lodi Hospital. The ruling is free from prejudicial error and hereby affirmed For CNA could only be found to have created a disqualifying conflict of interest for itself when the assistance rendered to an employer's supervisor en- tails taking a position adverse to that employer's employees whom it represents. With respect to the instant case, however, the advice and assistance from which Ponton benefited involved issues not shown by the Employer to have required CNA to sacrifice the interests of unit employees to those of Ponton. Ponton's discharge arose from a dispute with the Employer as to the maintenance of nursing practice standards. Employees' interests in the enforcement of these professional standards at Lodi Hospital could be either congruent with or adverse to those of Ponton. The Employer has offered no evidence that in this instance the underlying interests were in conflict or that CNA's due process and procedural assistance to Ponton actively involved it in pitting one member-supervisor against employees whom it was seeking to represent in collective bargaining. We conclude, therefore, that unit employees' in- terest in a bargaining representative free of supervi- sory influence is not necessarily affected adversely by CNA's rendering of personal employment-relat- ed assistance to one of their supervisors. In any event, it is unduly speculative to premise, as does the Employer, an inherent conflict of interest as to a labor organization's representative capacity on as- sistance to a statutory supervisor. First, staff mem- bers of CNA's Economic and General Welfare Commission exercise individual discretion both as to whether to assist a supervisor with individual employment problems and as to the form such as- sistance should take. Secondly, an employer is able independently to determine whether a supervisor so indebted to a labor organization should be as- signed to bargain on its behalf with that labor orga- nization. Thus, the Employer's argument, advanced both with respect to situations exemplified by CNA's as- sistance to Ponton and by the CNA activity of third-party supervisor Carol Cox, that CNA is jeopardizing the loyalty of supervisors to their em- ployers, has no merit. Accordingly, having found that the Petitioner is a labor organization within the meaning of the Act, we now further find that it is not disqualified from representing 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. The Petitioner seeks to represent a unit of em- ployees consisting of all full-time, part-time, and per diem registered nurses with the stipulated ex- 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceptions of the director of nursing, assistant direc- tor of nursing, director of education, administrative supervisor, the 3-11 shift supervisor, the 11-7 shift supervisor, the OR supervisor, the recovery room supervisor, and all other employees and guards as defined in the Act. The parties have agreed to ex- clude Ines Williams as a managerial employee. In contesting the appropriateness of the Petition- er's proposed unit the Employer contends that the head nurses are supervisors and therefore should be excluded. The record shows that the head nurses regularly attend meetings of the stipulated supervi- sors to discuss, inter alia, staffing shortages and other personnel problems. They consult with the administrative supervisor in the preparation of written evaluations to determine staff nurses' eligi- bility for wage increases. The head nurses also have authority to assign and schedule work and to authorize overtime. Additionally, they effectively recommend approval or disapproval of staff nurses' vacation requests and are responsible for adjusting work schedules when employees request conflict- ing days off. The head nurses exercise their author- ity effectively to recommend or veto shift and unit transfers. Also, six of the eight head nurses substi- tute for stipulated supervisors I or 2 days a month on a rotating basis for which they receive pay at a supervisor's rate. Finally, head nurses receive higher pay than staff nurses, the pay differential at the highest step of the pay scale being $110 per month. Since supervisory status depends on whether an employee possesses authority to act in the employ- er's interest in the manner specified in Section 2(11), we find, in light of the above, that the head nurses at Lodi Memorial Hospital are supervisors within the meaning of the Act. Accordingly, we will exclude them from the unit of the following employees which we find to constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time, part-time, and per diem regis- tered nurses employed by Lodi Memorial Hos- pital at its Lodi, California, location; but ex- cluding the director of nursing, assistant direc- tor of nursing, director of education, adminis- trative supervisor, the 3-11 shift supervisor, the 11-7 shift supervisor, the OR supervisor, the recovery room supervisor, the head nurses, and all other employees and guards as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.]