Exeter Hospital

EXETER HOSPITAL 377 Exeter Hospital and Exeter Hospital Nurse Sub- Committee, Petitioner. Case I-RC-16348 March 12, 1980 DECISION AND ORDER 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 Arnold M. Marrow. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 1, the case was transferred to the Board for decision. There- after, briefs were filed by the Petitioner and the Employer. 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 prejudical error. They are hereby af- firmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein.' 2. The labor organization involved, the Petition- er herein, claims to represent certain employees of the Employer. 3. No question affecting commerce exists con- cerning the representation of employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act for the following reasons. The Petitioner seeks to represent one unit of reg- istered nurses, consisting of approximately 101 em- ployees, and a second unit, approximately the same size, of technical employees, including licensed practical nurses. The Employer acknowledges that the Petitioner is a labor organization, but submits that it is not qualified to represent the employees because regular full-time charge nurses are active members of the Petitioner. The Employer contends that, because its charge nurses are supervisors within the meaning of the Act, there exists a con- flict of interest which would jeopardize the collec- tive-bargaining process. Additionally, the Employ- er maintains that three employees should be ex- I Jurisdiction is not contested Exeter Hospital is a Ne%% Hampshire corporation engaged in the operation of a general hospital II has an annual gross x ilume of buhlunSs in excess of $250,O(X) 248 NLRB No. 56 cluded from the units since they do not share a community of interest with the other employees. 2 The Employer operates a general hospital con- sisting of a main building and the Court Street unit, which are approximately 1-1/2 miles apart. Regis- tered nurses, licensed practical nurses, and techni- cal employees are employed at both buildings. At the highest supervisory level in the nursing department is the director of nursing, who is re- sponsible for all nursing personnel, including regis- tered nurses, licensed practical nurses, nurse's aids, nursing assistants, ward clerks, and orderlies. Below the director are approximately nine nursing supervisors, who generally work from 7 a.m. to 3:30 p.m. on the day shift. However, there is one supervisor on the evening shift from 3 to 11:30 p.m., and one supervisor on the night shift from 11 p.m. to 7:30 a.m. Approximately nine head nurses, all of whom work from 7 a.m. to 3:30 p.m., are below the supervisors. At the hearing it was stipu- lated that the director of nursing, the nursing su- pervisors, and the head nurses are all supervisors within the meaning of the Act. The hospital also employs three assistant head nurses3 and a varying number of charge nurses, 16 of whom perform full-time charge duty. Full-time charge nurses direct patient care, and the record discloses that their role is virtually indistinguish- able4 from that of a head nurse when no head nurse are stationed on a particular shift. This situa- tion occurs regularly on both the evening and night shifts, as well as on the day shift in the inten- sive care unit and One South, where pediatric pa- tients and some adult patients are located. Charge nurses are responsible for preparing the work schedules of employees in their respective units, and are authorized to consider and grant re- quests for time off. They also have authority to en- tertain grievances and to discipline employees by verbal or written reprimand. In this capacity they have counseled employees concerning lateness, ab- senteeism, and unprofessional conduct. Additional- ly, if a staff member is recommended for promo- tion by a charge nurse, the promotion will be granted without interference from the nursing di- rector. Charge nurses also evaluate employees to determine whether merit pay increases are appro- priate, and the director of nursing will not change a We agree wsith he Employer hat Sandra Clark, Cathy Cornlish. and Susan Cornish do not share a community of interest ilth other employ- ees. since the record disclose, that hey are clerical employees %%ith no special training Therefo re. they are nol includable il either of Ihe unitls heing ought :' Because the assisrtall head nurses perform the same duties and fullc- tionl as the regular full-lime charge niurse,. e ill treill them the same for the prpose, of this case I The olil: disintiton disclosed bh the record Is thlat chairge nIiurses do not participae ill the preparationl of the budget Exeter Hospital and Exeter Hospital Nurse Sub- EXETER HOSPITAL 377 > _ _ 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that evaluation even if she disagrees with it. Conse- quently, the merit increases are determined solely by the charge nurse's evaluation. Supervisory status under the Act depends upon whether an employee possesses authority to act in the employer's interest in the manner specified in Section 2(11). Although the Board has found in other circumstances 5 that charge nurses do not possess supervisory authority, we find, in light of the above, that the charge nurses in the instant case are supervisors within the meaning of the Act. It remains to be decided whether the Petitioner is qualified to represent the employees in the unit. In Sierra Vista Hospital, Inc.,6 the Board set forth its policy regarding conflict-of-interest issues raised by the active participation of supervisors in a labor organization which seeks to bargain with an em- ployer. The Board stated that the presence of su- pervisors in an association does not bear upon its "labor organization" status, but that the identity and role of those supervisors in the labor organiza- tion could operate to disqualify it from bargaining in certain instances. The Board noted that an active role by supervisors in internal union affairs could jeopardize the employees' right to a representative with an undivided concern for their interests, as well as the employer's right to expect loyalty from its own supervisors. The Board concluded that a labor organization may be disqualfied from bar- gaining if it is established that there exists a clear and present danger of a conflict of interest which would interfere with the collective-bargaining pro- cess. 7 Applying the Sierra Vista analysis to the instant case, we find that the Petitioner is not qualified to represent the employees for collective-bargaining purposes. The Petitioner's leadership is composed of a chairperson, who is the sole officer, and four representatives from each of the three shifts, with three additional representatives from the Court Street unit. Charge nurses are permitted to assume leadership positions, and the record discloses that the current chairperson and several of the shift rep- resentatives are charge nurses. We conclude that the involvement of supervisors in the Petitioner's organization presents a clear and present danger of a conflict of interest which would interfere with the collective-bargaining pro- cess. By occupying the important office of chair- person and by serving as shift representatives, su- pervisors are clearly in a position to play a crucial role in the Petitioner's internal affairs. Consequent- b Doctor's Community Hospital of Victor Valley, d/b/a Victor Valley Hos- pital, 220 NLRB 977 (1975); Meharry Medical College, 219 NLRB 488 (1975); Mercy Hospitals of Sacramento, Inc., 217 NLRB 765 (1975). 6 241 NLRB No. 107 (1979). 7Ibid. ly, permitting representation by the Petitioner would jeopardize the employees' right to a bargain- ing representative which is exclusively concerned with their interests, and the Employer's right to loyalty from its own supervisors. It should be noted that the Petitioner met with the Employer to discuss wages, hours, and working conditions up until November 15, 1978. However, there is no evidence that the Petitioner has ever taken steps to insulate the collective-bargaining process from supervisory participation or influence. This case is therefore distinguishable from Baptist Hospitals, Inc., d/b/a Western Baptist Hospital,8 where we observed that the labor organization's bylaws provided for a separate collective-bargain- ing branch, consisting exclusively of nonsupervi- sory personnel and accountable only to the general membership. Similarly, in Lancaster Osteopathic Hospital Association, Inc., 9 we noted that negotia- tions were protected from supervisory influence, since the local bargaining unit assumed ultimate re- sponsibility for collective bargaining, and the statewide nurses association had no veto power over the final content of the contract.1 0 The result we reach in this case is consistent with other well-established Board precedent in- volving supervisory participation in union affairs. In Bausch & Lomb Optical Company," the Board reiterated its policy that supervisors should not be permitted to represent employees for collective- bargaining purposes no matter how strongly em- ployees may desire otherwise. The underlying pur- pose of this policy is "to draw a clear line of de- marcation between supervisory representatives of management and employees because of the possible conflicts in allegiance if supervisors were permitted to participate in union activities with employ- ees."' 2 Indeed, the Board has imposed a duty on an employer to refuse to bargain when confronted with one of its own supervisors on the union's bar- gaining committee. 13 This policy has been applied, in cases outside the hospital context, to disqualify labor organizations similar to the Petitioner, which consists exclusively of employees of the Employer and is not affiliated with any large association. Thus, where employees formed a union and then elected supervisors to the positions of business agent, vice president, trustee, and executive board member, the union was dis- qualified because supervisors would be in a position a 246 NLRB No. 25 (1979). 9 246 NLRB No. 96 (1979). 10 Id. at fn. 5. '' 108 NLRB 1555 (1954). 12 Id. at 1557. 13 Welsbach Electric Corporation, 236 NLRB 503 (1978); Banner Yarn Dyeing Corporation, 139 NLRB 1018 (1962); Nassau and Suffolk Contrac- tors' Association,lnc., 118 NLRB 174 (1957). EXETER HOSPITAL 379 to influence the union's policies and practices.1 4 Similarly, a union was not permitted to bargain where supervisors had been instrumental in its for- mation, and where three of four union officers and two of three members of the negotiating committee were supervisors.' 5 The Board also dismissed the petition of a union whose bylaws provided that only supervisors were eligible to become members " Alaska Salmon Industry, Inc., 78 NLRB 185 (1948). See also New York City Omnibus Corporation, 104 NLRB 579 (1953); Kennecoltt Copper Corporation, 98 NLRB 75 (1952). '5 American District Telegraph Company of Pennsylvania, 89 NLRB 1635 (1950) of its board of governors, which was to have a final voice in all matters.' 6 Therefore, dismissal of the instant petition is con- sistent with our longstanding refusal to "knowingly accord a place on the ballot in any election con- ducted by the Board to a labor organization which is not capable of dealing on behalf of ordinary em- ployees at arm's length with their employer."' 7 ORDER It is hereby ordered that the petition herein be, and it hereby is, dismissed. '6 Brunswick Pulp & Paper Company, 152 NLRB 973 (1965) " Rochester and Pittsburgh Coal Company, 56 NLRB 1760, 1764 (1944).