The Buffalo General Hospital

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Buffalo General Hospital and Buffalo House Staff Association, Petitioner Case 3-RC-6267 May 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on various dates before Hearing Officer Richard L Ahearn Following the hearing and pursuant to Section 102 67 of the National La- bor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, by direction of the Regional Director for Region 3, this case was transferred to the Board for decision The parties waived the filing of briefs 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 rul- ings made at the hearing and finds that they are free from prejudicial error They are hereby affirmed On the entire record in this case, the Board finds 1 The Buffalo General Hospital, herein the Em- ployer, is a private nonprofit New York corporation engaged in the operation of a hospital in Buffalo, New York The Employer annually receives revenues valued in excess of $250,000 from such operations, and annually purchases goods valued in excess of $50,000 from directly outside the State of New York The parties have stipulated, and we find, that the Employer is engaged in commerce Accordingly, we find that it will effectuate the policies of the Act to assert jurisdiction herein 1 i While neither of the parties contested the Board s jurisdiction over the Employer an issue arose at the hearing as to the Employer s possible joint employer relationship with certain exempt institutions in the Buffalo area Thus the record shows that certain of the Employers residency programs are coordinated through the State University of New York at the Buffalo School of Medicine and involve the temporary rotation of participants to various universit) affiliated hospitals including the Employer in the Buf- falo area The record establishes, however that neither the University nor the other university affiliated hospitals exercise any control over the terms and conditions of the residents and interns participation in these residency 2 The Employer refused to stipulate that the Peti- tioner is a labor organization within the meaning of Section 2(5) of the Act The Petitioner's articles of association and bylaws state that the Petitioner's pur- pose is to engage in collective-bargaining negotia- tions with the Employer with respect to salaries, hours, and other working conditions of the Employer's residents and interns As we find herein- after that the residents and interns are not "employ- ees" within the meaning of the Act, and the record shows that the Petitioner is composed solely and ex- clusively of residents and interns, we find, for the purposes of this proceeding, that the Petitioner is not a labor organization within the meaning of the Act 3 No question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act for the following reason The Petitioner herein seeks to represent a unit of physician interns and residents at The Buffalo Gen- eral Hospital The Employer contends that such a unit is inappropriate because, inter alga, these resi- dents and interns are not "employees" within the meaning of the Act For the reasons set forth in Ce- dars-Sinai Medical Center,2 we find merit in the Employer's position In Cedars-Sinai, the Board found that residents and interns, although they pos- sess certain employee characteristics, are primarily students and, therefore, not employees within the meaning of Section 2(3) of the Act The interns and residents involved herein are not unlike those interns and residents involved in Cedars-Sinai Therefore, we conclude that they are primarily students Accord- ingly, as no question affecting commerce exists con- cerning the representation of "employees" of the Employer within the meaning of Section 9(c) of the Act, we shall dismiss the petition herein ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed programs Thus, while the University preliminarily screens applicants to such programs actual recommendations for acceptance into the Employer s residency programs are made by the Employers department heads Further- more all applicants who are accepted into such residency programs sign a contract with the Employer which governs all aspects of their participation in the programs The record also indicates that the Employer receives funds from a private corporation, Anesthesia Associates P C , to defray the ex pence of accepting additional residents into the anesthesiology programs However the record establishes that the donation of such funds does not diminish or infringe upon the Employers sole control over all aspects of a residents application acceptance and tenure in the anesthesiology pro gram In view of the above evidence and in accord with the parties posi tions as stated in the record we find that no joint employer relationship exists between the Employer and the above institutions 2 223 NLRB 251 (1976) 224 NLRB No 17 THE BUFFALO GENERAL HOSPITAL 77 MEMBER FANNING, dissenting training institution for which they are compensated For reasons stated in my dissenting opinion in Ce- by that training institution They are, therefore, em- dars-Sinai Medical Center, 223 NLRB 251 (1976), ployees within the meaning of the Act, and the Peti- I dissent from the dismissal of this petition Resi- tioner is a labor organization Accordingly, I would dents and interns, clearly, perform a service for the process the petition