New York University

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York University Medical Center, a Division of New York University andAssociation of Staff Psy- chiatrists, Bellevue Psychiatric Hospital, Peti- tioner. Case 2-RC-16607 April 24, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS KENNEDY 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 Robert A. Reisinger.' Thereafter, the Regional Director for Re- gion 2 transferred this proceeding to the National La- bor Relations Board for decision, pursuant to Section 102.67 of the Board's Rules and Regulations, Series 8, as amended. The Employer and the Petitioner filed briefs in support of their respective positions: -In addi- tion,'the League of Voluntary Hospitals and Homes of New York filed an amicus curiae brief, and the Peti- tioner filed a-response thereto. 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 rulings of the Hearing Officer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby af- firmed. Upon the entire record in this case, including the briefs, the Board finds: 1. New York University Medical Center, herein called Medical Center, is an administrative division of, and operates under the procedures of, New York Uni- versity, herein called NYU, a private, nonprofit institu- tion of higher education located in New York, New York, and elsewhere. The Medical Center is subject to the supervision and control of the NYU board of trus- tees, which selects the members of the Medical Center board of trustees. The chief executive officer of the Medical Center is the provost, who is in charge of the Medical Center's programs in education, research, and patient care and is vice president of health affairs at the University. I The Employer filed a petition for an election in the same unit involved herein in 1973, based on the Petitioner 's demand for recognition . The Act- ing Regional Director, after a hearing, dismissed this petition on November 5, 1973, on the ground that "the unit would be composed of employees who perform substantial services in, and directly for, exempt hospitals , and who function as an integral part thereof " The Employer's request for review was denied on December 4, 1973, and its motion for reconsideration was denied on January 21, 1974. The transcript, including exhibits, of this prior hearing was introduced into evidence in the instant proceeding During the past fiscal year, NYU derived gross reve- nues in excess of $1 million in tuition fees. During the same period, NYU purchased goods, materials, and services in excess of $50,000 directly from sources located outside the State of New York. Based on the foregoing stipulated facts, we find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein.' 2. The labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of "all full-time and regular part-time attending psychiatrists employed by New York University Medical Center ... at its Bellevue facilities." Alternatively, Petitioner seeks a unit of all "Code 101 clinical psychiatric staff and the Code 102 academic staff, exclusive of supervi- sors and individuals primarily engaged in administra- tion, who perform clinical or teaching services at Belle- vue Hospital Center." In addition, Petitioner has a tertiary unit, which consists of the "clinical, non-tenure track psychiatric staff at the Psychiatric Division and all other fully licensed in New York State clinical physicians rendering patient care to patients of Belle- vue General Hospital pursuant to affiliation agree- ments with the Health and Hospital Corporation of the City of New York, herein called HHCNY, excluding regular faculty, supervisors and administrators, and those physicians who receive an `honorarium' for nomi- nal part-time service." The Employer initially contends that no faculty bargaining unit can be appropriate as full-time faculty members are not employees within the meaning of the Act. In making this contention, the Employer requests that the Board reconsider its previ- ous decision on this issue concerning the same Employer.' As in the earlier decision, we find that the faculty members are professional employees under the Act who are entitled to vote for or against collective- bargaining representation. Alternatively, the Employer asserts that, should the Board rule against is contention that faculty members are not "employees" within the Act's definition, the only appropriate unit is one com- posed of all full-time compensated NYU School of Medicine faculty members. Medical Center.- The Medical Center includes the NYU School of Medicine, herein called the Medical School, which has 24 departments, the Postgraduate School of Medicine, the University Hospital, the Rusk Institute of Rehabilitative Medicine, herein called the 2 New York University, 205 NLRB 4 (1973). 3 Ibid 217 NLRB No. 116 NEW YORK UNIVERSITY MEDICAL CENTER Rusk Institute, and various medical dispensaries, medi- cal clinics, and medical institutes. The University Hos- pital is a voluntary nonprofit private hospital , directly owned and operated by the Medical Center , which has 626 beds. It occupies a separate building which is physi- cally connected with the Medical School, has its own staff, and permits physicians who have privileges to admit and treat patients for compensation. The Rusk Institute is a special medical institute which has a sepa- rate wing or building and its own administrative struc- ture within the overall context of the Medical Center. The Medical School and Postgraduate School of Medi- cine offer the "M.D." degree and advanced postgradu- ate medical education . The basic Medical School pro- gram consists of 4 years of didactic and clinical instruction, with about 150 students in each class year. In connection with its role of training undergraduate and graduate medical students, the Medical Center has arranged to have members of its medical faculty- per- form professional services at a number of city , state, and Federal hospital facilities, including Bellevue Hos- pital Center, involved herein and called BHC, which is owned by New York City and operated by HHCNY. The Medical School has the sole responsibility for prov- iding the attending staff, residents, and interns who perform the medical services at BHC . At least 14 of the 24 Medical , School departments have responsibility for patient care at BHC. BHC is a public hospital complex which, with 1 ,572 beds, constitutes the fourth largest hospital in the United States. It admits nearly 30,000 patients annually. BHC has an annual operating budget of $71 million, and employs more than 6,000 nonmedi- cal personnel. Each chief of service at BHC also holds the position of professor and chairman of a department on the faculty of the Medical School and coordinates the clini- cal care, teaching, and research functions. Thus, the psychiatric, division of Bellevue, herein called Bell Psych, a separate building but part of BHC with 488 beds, 1,200 patients a year, and 20 separate wards, houses the department of psychiatry of the Medical School. Bell Psych is within 2 or 3 blocks of University Hospital, the Rusk Institute, the Medical School, and the Postgraduate School of Medicine . Its house staff and attending staff are directed by the chairman of the psychiatry department, and the entire professional medical staff has university faculty status . The attend- ing psychiatrists, who compose the unit sought by the Petitioner, which numbers about 60 individuals, per- form their duties in this hospital, caring ,for patients, advising and consulting with interns and residents, and giving some instruction and guidance to students as described hereafter. All staff appointments to BHC or' to University Hospital are made through the Medical Center by NYU, and no doctor practices or cares for 523 patients in the hospitals who does not have some type of faculty status. NYU is reimbursed under a contrac- tual arrangement with HHCNY for some of the work performed by its medical faculty members at BHC, including the entire work performed by the attending psychiatric staff rendering clinical care to patients at Bell Psych.' Tenure: The approximately 60 psychiatrists sought in the petition are members of the Medical School de- partment of psychiatry and have nontenure-producing appointments . For administrative purposes they are designated "Code 101" as contrasted with the approxi- mately 20-25 tenured or tenure-track faculty of the psychiatry department of the Medical School who are designated "Code 102." Some Code 102 faculty mem- bers do not have tenure-producing appointments. Part- time `faculty may be designated either Code 101 or Code 102 and have nontenure-producing appoint- ments. The Code 101 staff receives faculty titles which are preceded by the word "clinical" which in turn denotes "part-time faculty status.s5 Qualifications: As a condition to initial appointment and maintenance of his or her position as a Code 102 faculty member, a psychiatrist must meet certain more rigorous academic standards and criteria than those required for Code 101 staff members, in particular, scholarly contributions, teaching ability, participation in university governance, and a willingness to limit outside remunerative work. Salaries: The salaries of Code 101 clinical psychia- trists are paid for from the affiliation contracts with New York City. Compared with Code 102 psychia- trists, the average salary for Code 101 psychiatrists is lower in the ranks of professor and instructor but higher in the ranks of associate and assistant professor. However, the majority of the Code 102 staff achieves an average salary in excess of $43,000 per year, while the majority of the Code 101 staff earns an average salary of about $28,000. Of course, these figures do not include outside income which will be discussed later. The Code 101 clinical staff is paid biweekly while the Code 102 staff is paid on a monthly basis. Fringe Benefits: Code 101 faculty members are eligi- ble for a Blue Cross medical insurance program of 120 days' coverage, while Code 102 staff members receive a program of 21 days' full coverage and 180 days' half coverage. Members of the Code 102 staff are eligible for an extended group life insurance program, while Code 4 The parties stipulated that the Medical Center controls all phases of the professional, medical, and psychiatric staff of those services at BHC operat- ing under the contract with HHCNY in regard to the supervision, assign- ment, wages, hours , conditions of employment, and labor relations policies affecting the professional, medical, and psychiatric staffs in those services, and further that HHCNY does not exercise control in any of the aforemen- tioned areas. ' The distinction between full-time and part-time faculty in this context is unrelated to the number of hours worked. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 101 staff members are not eligible. Code 101 faculty members are entitled to various types of leave for health or personal reasons which do not apply to Code 102 faculty. But members of the Code 102 staff get sabbatical leave which Code 101 members cannot ob- tain. Hours: Code 101 faculty members are scheduled to work from 8:45 a.m. to 4:15 p.m., Monday through Friday, and are assigned to a particular ward or clinical service unit. The time that Code 102 faculty members are present depends on their actual assignment within the department and they are not assigned to ward or unit duty. The Code 102 faculty members have profes- sional discretion to discharge their duties within a gen- eral time frame while the Code 101 staff members have a very specific assignment of time in which they are expected to fulfill their responsibilities. In practice, it appears that the schedules of both groups are quite flexible. Code 101 faculty can have outside patients after hours on an unlimited basis and have scheduled outside patients during their regular hours, putting in an additional 20 or 30 private patient hours per week sometime. Full-time Code 102 faculty members are supposed to limit their outside patient work to 1 day a week. University Citizenship: In terms of academic gover- nance, Code 101 and 102 staff members are eligible to serve and have equal voting rights on BHC committees for attending physicians. In addition, both staff are members of a number of Medical School committees. Both groups have members on departmental commit- tees, although the Code 101 participation is more lim- ited. There is only one Code 101 member on the depart- mental policy committee and-none on the grievance committee or the appointments and promotion com- mittees. There are Code 101 faculty members on the joint faculty-resident committee, the undergraduate curriculum committee, the resident admissions com- mittee, and the peer review committee. In addition, the space committee is chaired by a member of the Code 101 staff. Supervision: The chairman of the department of psy- chiatry of the Medical School makes all recommenda- tions about appointments and promotions of both Code 101 and Code 102 faculty members, which in turn must be approved by the dean and the board of trustees. The chairman's recommendations are usually followed. The hiring process for Code 101 and Code 102 faculty is the same. The director for psychiatric services, Dr. Alex- ander Thomas, is one of several directors who are subordinate to the chairman. Dr. Thomas has been delegated the responsibility for the professional care services provided by the department. However, he coordinates his responsibilities with the supervisors re- sponsible for undergraduate and resident teaching in the Medical School if his decisions involve the re- scheduling or shifting of the teaching schedule for ei- ther the medical students or residents or both. Dr. Thomas interviews applicants for positions as Code 101 psychiatrists and makes recommendations to the chair- man. The chairman also interviews applicants for Code 101 positions. Teaching and Research: Both Code 101 and Code 102 faculty members participate in-the instruction of first-, second-, third-, and fourth-year medical school students and first-, second-, and third-year residents. Third-year medical students are divided into groups and rotated through various departments in 4- to 5- week cycles. There are 170 students in the third-year program. The class is divided into sixths for the rota- tional process described above. The instruction in psy- chiatry consists primarily of clinical supervision of the students' workup and care of psychiatric patients, and formal conference time. Both Code 101 and Code 102 faculty members participate in this instruction. In addi- tion to Medical Center residents, Code 101 and Code 102 faculty members instruct Veterans Administration residents while they are rotating through Bell Psych and the Veterans Administration Hospital, and Dunlop Hospital residents rotating through Bell Psych. They also participate in the instruction of psychology interns and social workers, and teach some miscellaneous courses. There are as many as 200 medical students assigned to the department of psychiatry at any one time. There are only 3 weeks during the year, Christmas week and the last 2 weeks of August, when it is likely that no students would be present. Because of gaps between the various cycles, there are a total of 4 weeks between late November and early March when only a few elective students are assigned to the department. There are no weeks when residents are not present. The Code 101 psychiatrists as a group are primarily engaged in patient care, However, the functions of teaching and patient care often overlap and become integrated. Thus, the Code 101 faculty members- give both clinical and theoretical seminars to medical stu- dents and residents. They also provide the teaching and consulting supervision for the trainees of the patients' clinical care. The trainee will examine the patient and present findings to the attending physician who is a faculty member. The faculty member will then review the findings with the trainee, criticizing or supporting him or her, directing the trainee to the appropriate literature, or taking other appropriate action. However, some Code 101 faculty members spend in excess of 70 percent of their time in traditional teach- ing. During the 26 weeks that third-year students are assigned to wards, Code 101 clinical psychiatrists on those wards spend 50 percent of their time teaching. NEW YORK UNIVERSITY MEDICAL CENTER 525 Some Code 101 psychiatrists are not currently teach- ing, but this is sometimes the case with Code 102 faculty members. Some courses are taught by both Code 102 and 101 faculty members. Some Code 102 faculty members spend a majority of their time per- forming patient care and others perform patient care for only a small portion of their time. However, on the whole, Code 101 faculty members spend more time with patients than do Code 102 faculty and Code 102 faculty spend more time in formal teaching. Out of a staff of about 60 Code 101 clinical psychiatrists, only 23 participated at all in formal instruction, and all but 7 of them taught only 1 class of 1 seminar section over the entire year. On the other hand, out of a staff of about 25 Code 102 faculty members, some 21 taught courses or led seminars during the year. Some Code 101 faculty members are engaged in research projects and some of this research is done in collaboration with Code 102 faculty members. interchange: There is some permanent interchange between Code 101 and 102 psychiatrists and between members of the department of psychiatry and members of other departments. Some courses in the department of psychiatry are taught by both Code 101 and 102 faculty members on an interchangeable basis. There have been instances when a Code 101 psychiatrist has been appointed to a Code 102 position. There are like- wise instances where a position in the psychiatry de- partment has been held, at different times, by a Code 101 or 102 faculty member. If a Code 102 faculty mem- ber does not attain tenure it is possible to continue his or her association with the Medical Center by giving the faculty member a Code 101 appointment. If this option were not available, it would be necessary to terminate the faculty member. Members of other Medical School departments have become members of the department of psychiatry. Similarly, psychiatry department members have as- signments in other medical departments. Dr. Farr, a Codle 101 and president of the Petitioner, testified that Code 101 faculty members had either minimal or, in the majority of cases, no direct contact with those doc- tors located anywhere other than Bell Psych. History of Collective Bargaining: There is no prior history of representation concerning the psychiatrists. While the Medical Center has a number of bargaining units, none were established under the provisions of the Act„ The Medical Center and the Committee of Interns and Residents of New York City agreed to include all interns, residents, and certain fellows who are on the payroll of the Medical Center. No distinction is made as to where the interns, residents, or fellows are work- ing. The Medical School has three separate collective- bargaining agreements with Local 1199, Drug and Hospital Employees Union, one for certain service em- ployees at University Hospital, another for BHC, and a third for Goldwater Memorial. The contract covering University Hospital includes the Rusk Institute but not the Medical School. The contract covering BHC no longer includes the social workers at Bell Psych be- cause that portion of the affiliation contract ter- minated, and the social workers were transferred to the New York City payroll at Bell Psych. Pharmacists employed at Bell Psych are not covered by any contract with the Medical Center but pharma- cists employed at University Hospital, and until re- cently the special pediatric project at BHC, have been covered. X-ray technicians and other technical em- ployees are covered at University Hospital, the Rusk Institute, and BHC, if they are on the NYU payroll. Occupational therapists paid under affiliation contracts are covered except those at the Rusk Institute. Fifty- five physical therapists employed by the Medical Cen- ter at various locations have been represented by APTA for the last 4 or 5 years- Local 810 of the Teamsters represents maintenance employees such as carpenters, plumbers, painters, elec- tricians, stationary engineers, and various helper groups at the Medical Center, excluding places under affiliation contract, such as BHC, where the mainte- nance work is performed by craftsmen on the city pay- roll. Relation of Code 101 Psychiatrists to Other Code 101 Faculty Physicians at BHC.• The Medical Center pro- vides under affiliation contracts with New York City the professional staffs for the following services in addi- tion to psychiatry: anesthesiology, chest service, home care, intermediate care, pathology, pediatrics, radi- ology, and rehabilitative medicine. The affiliated clini- cal staff at Bell Psych is about 10 times the size of the next largest clinical staff at Bellevue, the chest service. About half of the aforementioned medical services, anesthesiology, home care, pathology, and pediatrics, have no Code 101 clinical staff and the remainder are composed of physicians whose terms and conditions are entirely distinct from those of Bell Psych physi- cians. Conclusion The intent of Congress to prevent the proliferation of bargaining units in the health care industry is clear. Both the Senate and House Reports contain the follow- ing language:6 Due consideration should be given by the Board to preventing proliferation of bargaining units in the 6 S Rept 93-766, 93d Cong, 2d sess 4 (1974), p 5, H. Rept. 93-1051, 93d Cong., 2d sess 5 (1974), pp. 6, 7 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD health care- industry. In this connection, the Com- mittee notes with approval the recent Board deci- sions in Four Seasons Nursing Center, 208 NLRB No. 50, 85 LRRM 1093 (1974), and Woodland Park Hospital, 205 NLRB No. 144, 84 LRRM 1075 (1973), as well as the trend toward broader units enunciated in Extendicare of West Virginia, 203 NLRB No. 170, 83 LRRM 1242 (1973).1 1 By our reference to Extendicare, we do not necessarily approve all of the holdings of that decision In deciding this case, we-have duly considered the con- gressional intent to avoid an undue proliferation of units in the health care industry in determining appro- priate bargaining units through the application of our standards and experience which Congress expected us to continue to apply. Based on the entire record, we find that any separate community of interest that the Code 101 psychiatrists employed by the Medical Center at Bell Psych might enjoy has been largely submerged in the broader com- munity of interest which they share. with other physi- cians and also may share with closely allied profession- als. In so finding, we rely on (1) the proliferation of bargaining units which could occur if clinical physi- cians at BHC in the 13 departments other than the psychiatry department rendering patient care, or clini- cal physicians at BHC under affiliation contracts, were found to be entitled to separate representation; (2) the basic-similarity of functions between Code 101- and Code 102 psychiatrists and, to a lesser degree, among all the physicians at BHC; (3) the community of inter- est which ^ physicians might share with allied profes- sionals which was not fully explored herein; (4) the average salaries ofCode 101 and Code 102 psychiatrists are in the same range; (5) Code 101 and Code 102 psychiatrists and all other faculty engage in faculty government,' permanently interchange with each other to some degree, and have relatively flexible schedules; (6) the Medical Center, BHC, and Bell Psych are in close geographic proximity; (7) the prece- dent concerning the insignificance the Board has at- tached to whether individuals have tenure or the source of their salary;' (8) similar overall supervision; and (9) lack of any prior history of representation under the Act. Accordingly, we shall, in view of the foregoing, dis- miss the petition. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. 7 University of Miami, 213 NLRB No. 64 (1974). 8 Ibid.