American National Red Cross Badger Regional Blood Center

DANE COUNTY CHAPTER AMERICAN RED CROSS Dane County Chapter, American National Red Cross Badger Regional Blood Center and Union of Madi- son Red Cross Employees,' Petitioner. Case 30- RC-2683 June 2, 1976 DECISION AND DIRECTION OF ELECTION By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Dana L Hesse Following the hearing and pursuant to Sec- tion 102 67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, this case was transferred to the Board for decision Thereafter, the Employer filed a brief 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 The rulings are hereby af- firmed Upon the entire record in this case, the Board finds 1 The Dane County Chapter, American National Red Cross Badger Regional Blood Center, an affili- ate of the American National Red Cross headquar- tered in Washington, D C, is an unincorporated as- sociation with tax-exempt status The Employer provides blood services to meet the requirements of approximately 81 hospitals located in an area stretch- ing from northwestern Illinois to the Upper Peninsu- la of Michigan The Employer has uniform contracts for the supplying of blood with these hospitals which are usually reexecuted annually The Employer also has separate contracts with three VA hospitals which are entered into nationally Of the approximately 81 hospitals serviced, approximately 25 are county or municipal hospitals The standard contract requires the participating hospital to reimburse the Employer in part for the cost of collecting, processing, and dis- tributing the blood at set rates per unit for the vari- ous kinds of blood products During the past fiscal year the Employer realized gross revenues in excess of $1 8 million, and pur- i Petitioner's unopposed motion to withdraw from the proceedings hav- ing been timely made is hereby granted 323 chased and received goods in excess of $300,000 from points outside the State The Employer contends that it should be exempt from the Act as an instrumentality of the Federal Government The Employer further contends that, should the Board assert jurisdiction, it should be found to be a health care institution We reject both of the Employer's contentions and we find that the Employer's operations warrant the Board's assertion of jurisdiction 2 2 The labor organization involved claims to rep- resent certain employees of the Employer 3 A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act 4 The Employer, contrary to the Intervenor,' con- tends that Pamela Reynolds is a confidential employ- ee who should be excluded from the unit Reynolds is secretary to Dr Becker, medical director 4 of the Em- ployer The Employer primarily contends that, inas- much as the parties have agreed that the secretaries to its division manager and administrator should be excluded as confidentials and the administrator re- ports to the medical director, the latter's secretary should therefore automatically be considered to be a confidential employee However, the record shows that, although the administrator reports to the medi- cal director, he has primary responsibility for labor relations problems, while the medical director over- sees the technical aspects of the Employer's opera- tion Dr Becker's attendance at meetings of the per- sonnel committee and employee Reynolds' duties with respect to his attendance do not establish that he formulates, determines, and effectuates manage- ment policies in the field of labor relations 5 Cf Lit- ton Financial Planning, 216 NLRB 380 (1975) Ac- cordingly, we shall include her within the unit herein found appropriate The parties stipulated and we find that the follow- ing employees constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 2 Greene County Chapter American Red Cross 221 NLRB 776 (1975) 3 Badger Regional Blood Center Employees Wisconsin Council 40 of County and Municipal Employees, American Federation of State, County and Municipal Employees, AFL-CIO, is the Intervenor herein Intervenor's motion to intervene was granted by the Hearing Officer and it shall appear on the ballot herein on the basis of its more than 30-percent showing of interest which has been administratively verified 4 Dr Becker s job description, which was submitted by the Employer, is entitled Director or Medical Director" and he is referred to by either title in the record 5 Dr Becker is a member of the Employers medical advisory committee and is not a member of its personnel committee Although the record does indicate that the medical advisory committee is apprised of problems in the area of labor relations, there is no evidence in the record that it is Dr Becker s function to report on labor problems 224 NLRB No 30 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time employees of the American National Red Cross, Dane Coun- ty Chapter, Badger Regional Red Cross Blood Center, but excluding professional employees, confidential employees, managerial employees, guards and supervisors as defined in the Act [Direction of Election omitted from publication ] 6 CHAIRMAN MURPHY, concurring in part and dissent- ing in part I agree with my colleagues that Employer's opera- tions and impact on commerce are sufficient to war- rant the Board's assertion of jurisdiction and that the Employer is not a health care institution within the meaning of Section 2(14) of the Act Unlike my col- leagues, I would find that the secretary to the Employer's director I is a confidential employee and should be excluded from the unit on that basis The Board defines as confidential employees those who assist and act in a confidential capacity to per- sons who formulate, determine, and effectuate man- agement policies in the field of labor relations 8 The Employer's director, Dr Gary Becker, is re- sponsible for its direction in all matters and, in car- rying out such responsibilities, participates in formu- lating and carrying out its labor policies Despite this overall responsibility and participating, my col- leagues find that Dr Becker is in reality not involved in labor relations problems Instead, they imply that he concerns himself solely with the technical aspects of the operations while leaving administrative mat- ters, including labor relations, entirely to his immedi- ate subordinate, the Employer's administrator, L J Petersen This is not borne out by the record While Petersen , as stipulated by the parties, is a person who formulates and effectuates labor relations policy,' he does not do so to the exclusion of Dr Becker Peter- sen testified, without contradiction, that Dr Becker both formulates and carries out labor relations poll- 6 [Excelsior footnote omitted from publication ] 7 My colleagues refer to the director by his former title, medical director The B F Goodrich Company, 115 NLRB 722, 724 (1956) 9 Petersen's secretary was excluded from the unit on the basis that she acts in a confidential capacity to Petersen cies to the same extent that he, Petersen, does Fur- ther, Dr Becker attends medical advisory committee meetings and keeps notes of those meetings This committee is kept apprised of various matters includ- ing any problems in labor relations which the Em- ployer may be experiencing 10 Dr Becker also at- tends all meetings of the personnel committee, which recommends pay rates and fringe benefits to the Chapter's board of directors Thus, contrary to the picture my colleagues attempt to portray, Dr Becker is a direct participant in the formulation and imple- mentation of the Employer's labor relations policy Dr Becker's secretary, Pamela Reynolds, acts for him in a confidential capacity She opens all of his mail, prepares all of his correspondence, including that of a confidential nature, and has access to all of his files Indeed, my colleagues do not contend other- wise However, they do urge that Reynolds has very few duties with respect to labor matters This asser- tion, of course, is in large measure based on their misconception as to the extent of Dr Becker's in- volvement in such matters Since Reynolds opens all of Dr Becker's mail and types all of his correspon- dence she, of necessity, acts with respect to all items related to labor matters in which the doctor becomes involved These, as noted, touch all aspects of the Employer's labor relations by virtue of Dr Becker's responsibility and participation therein Further, Reynolds types the minutes of the medical advisory committee meetings which include Dr Becker's notes concerning labor matters, and personnel committee reports routinely pass across her desk Thus, in the performance of her duties for Dr Becker, Reynolds spends a substantial amount of her time working on labor matters for him Since Dr Becker is involved in the formulation and/or carrying out of Employer's labor relations policies, and Reynolds acts for him in a confidential capacity, I would find that she is a confidential em- ployee and, therefore, may not be included in the requested unit 11 10 The medical advisory committee acts as the advisor to the Employer for the technical medical aspects of its program 11 Victor Industries Corporation of California, 215 NLRB 48 (1974)