Kansas City General Hospital and Medical Center, Inc.

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kansas City General Hospital and Medical Center, In- corporated and Hospital Hill Health Services Cor- poration and The Housestaff Association of Kansas City General Hospital and Medical Center, Peti- tioner. Case 17-RC-7656 June 24, 1976 REVISED DECISION AND ORDER On June 24, 1976, the National Labor Relations Board issued a Decision and Order in the above-enti- tled proceeding [attached hereto]' wherein it dis- missed a petition seeking to represent a unit of resi- dents and interns employed by Hospital Hill Health Services Corporation 2 based on the Board's Decision in Cedars-Sinai Medical Center.' In dismissing the pe- tition, the Board panel used the following language: In Cedars-Sinai Medical Center, 223 NLRB 251 (1976), the Board found ^ that residents, in- terns, and fellows are not "employees" within the meaning of Section 2(3) of the Act That being so, Hospital Hill is not an "employer" within the meaning of Section 2(2) of the Act for the purpose of any disputes relating to such per- sonnel 5 Accordingly, as the Petitioner seeks to repre- sent only individuals who are not "employees" within the meaning of the Act, we shall dismiss the petition herein. Member Fanning dissenting Our finding herein should not be construed as a determination that the Board would not find Hospital Hill to be an employer within the meaning of the Act and within the Board 's statutory and discre- tionary judgment for other purposes [Remainder of footnote omit- ted ] Since its issuance, the Board's Decision and Order herein has been cited, specifically by the Supreme Court of the State of New York,4 in support of the view that the Board does not consider state jurisdic- tion over interns and residents to have been preempt- ed by the 1974 health care amendments to the National Labor Relations Act. To eliminate unnecessary language appearing in the Board's Deci- sion and Order herein, which in our view has prompted the New York Supreme Court to resolve improperly the preemption question, and to elimi- nate any doubt that it was the intention of a majority of the Board, in Cedars-Sinai, to find state jurisdic- ' Chairman Murphy and Member Penello , Member Fanning dissenting 2 Herein referred to as Hospital Hill 5 223 NLRB 251 (1976) 4 For New York County, Special Term Part I in the matter of Committee of Interns and Residents v The New York State Labor Relations Board, Index No 15928/76 (1976) tion over residents, interns, and fellows to have been preempted by the Federal statute, we have decided, sua sponte, to reconsider and revise the Decision and Order issued in the above-entitled proceeding, and to substitute this Decision for the earlier one. In the instant case, the Petitioner, as noted above, is seeking to represent a unit of residents and interns employed by Hospital Hill. The parties have stipulat- ed, and we find, that Hospital Hill is an employer within the meaning of the Act and thus that it will effectuate the policies of the Act to assert jurisdiction herein.' With regard to the labor organization status of the Petitioner, we find, for the purpose of this pro- ceeding, that the Petitioner is not a labor organiza- tion within the meaning of Section 2(5) of the Act as it is composed solely and exclusively of individuals who are not "employees" within the meaning of the Act. Accordingly, we find, in view of our Decision in Cedars-Sinai where the Board determined that in- terns, residents, and fellows are not "employees" within the meaning of Section 2(3) of the Act, that no question affecting commerce exists concerning the representation of "employees" of the Employer with- in the meaning of Section 9(c) of the Act and thus we shall dismiss the petition herein. Included in the language quoted hereinabove from the original Decision and Order is the statement that "Hospital Hill is not an `employer' within the mean- ing of Section 2(2) of the Act for the purpose of any disputes relating to [residents, interns, and fellows]." (Footnote omitted.) This statement, which in our view was not in any way crucial to the result reached in the Decision and Order herein, has proved to be subject to varying interpretations with regard to its impact on related preemption questions. Thus, this Revised Decision and Order, in dismissing the peti- tion, disavows the above-quoted statement and relies solely on the stipulation as to the employer status of Hospital Hill and on the fact that the Petitioner is seeking to represent only individuals who are not "employees" within the meaning of the Act.6 5 Following the hearing, however, in its brief to the Board , Hospital Hill raised the argument that it is anoint employer with the State of Missouri, in connection with the administration of Hospital Hill's residency program In dismissing the petition herein, we find it unnecessary for the purposes of this proceeding to consider or pass upon the point employer issues raised by Hospital Hill since there is a stipulation as to the employer status of Hospi- tal Hill, which we have accepted, and even if we were to look beyond that stipulation and find that Hospital Hill and the University of Missouri are joint employers, we would dismiss the petition on that basis 6 Chairman Murphy and Member Penello , who participated in the Deci- sion and Order herein , signed the majority opinion which contains the lan- guage quoted in this paragraph We did so, however, because we believed that it logically followed that the Employer, Hospital Hill, could not be an employer of nonemployees, in our view, interns, residents , and fellows The preemption issue was never raised or litigated by the parties nor was it considered or even contemplated by us in reaching our decision Now that the New York Supreme Court has attempted to broaden the original Deci- sion and Order to encompass the preemption issue , we have decided to join our colleagues in deleting the quoted language in this Revised Decision and 225 NLRB No. 14 KANSAS CITY GENERAL HOSPITAL & MEDICAL CENTER 109 Turning to the preemption question, we believe that it has now become necessary for us to state ex- plicitly that which is, in our view, implicit in the Board's Decision in Cedars-Sinai; that is, at the risk of being somewhat repetitious, that the majority of this Board intended by its decision therein to find Federal preemption of the health care field to pre- clude States from exercising their power to regulate in this area. It is our judgment that the Congress, in passing the 1974 health care amendments, simply made a determination that residents, interns, and fel- lows, inter alia, were not supervisors within the meaning of the Act, but left the question as to wheth- er they were "employees" entitled to collective-bar- gaining rights for resolution by the Board in the exer- cise of its discretion.' Having exercised its discretion in Cedars-Sinai, by finding residents, interns, and fel- lows to be primarily students and not "employees" within the meaning of the Act, the Board confirmed, in our view, that it has not put hospital residents and interns beyond the reach of national labor policy, but has rather held that to extend them collective-bar- gaining rights would be contrary to that very policy. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. MEMBER FANNING, dissenting: I dissent from my colleagues ' decision to reconsid- er, sua sponte, the original decision in this case, and from their reconsidered decision. I would not be averse to reconsideration if the pur- pose were to reverse my colleagues' decision that in- terns, residents, and fellows employed by the Em- ployer are not employees within the meaning of Section 2(3) of the Act. Such a reversal would not only remove an aberration from the law, it would also achieve what my colleagues profess to be their goal herein-establishment beyond question of the proposition that the Act has preempted state regula- tion of labor relations of hospitals and housestaff. My colleagues' reconsideration , however, is limited to the withdrawal from their original decision herein of the finding that, "Hospital Hill is not an 'employ- er' within the meaning of Section 2(2) of the Act for Order to avoid even the slightest impression that a majority of this Board believes that state jurisdiction over residents, interns, and fellows has not been preempted by the Federal statute In addition, however, Chairman Murphy notes that she did not intend at the time Cedars-Sinai Medical Center, supra, was decided that the Board preempt the field insofar as Federal labor policy might apply to interns and residents, but she has now been persuaded by her colleagues that this was the effect of the 4-to-I majority holding therein 7 On the supervisory issue, see S Rept 93d Cong , 2d Sess 6 (1974) The same language appears in the substantially identical House Report the purpose of any dispute relating to such person- nel." In their view such language was unnecessary to the original decision and "has prompted the New York Supreme Court to resolve improperly the preemption question." So, "to eliminate any doubt that it was the intention . . . in Cedars-Sinai to find state jurisdiction over residents, interns, and fellows to have been preempted by the Federal statute," my colleagues have withdrawn the finding of nonem- ployer status of the hospital in its relationship vis-a- vis housestaff. Of course, simply withdrawing the finding does not change the relationship. If housestaff are not "employees" of the hospital, it is rather difficult to establish the proposition that the hospital is their "employer " But I do not read my colleagues' opin- ion as trying to establish that proposition; they wish merely to withdraw their own statement in recogni- tion of the contrary, hopeful, apparently, that once withdrawn no state court or board will be perceptive of the reality behind their Cedars-Sinai decision. To that extent, my colleagues perform merely a useless and futile act. They do not stop there, however. They have added the finding, not found in the original de- cision, that "Petitioner is not a labor organization within the meaning of Section 2(5) of the Act, be- cause it is composed solely and exclusively of indi- viduals who are not `employees' within the meaning of the Act," and they insist that their Cedars-Sinai decision simply resolved a question of policy that Congress had entrusted the Board to make, and that therefore, having, in the exercise of discretion decid- ed to withhold from housestaff the operation of those provisions of the Act which would protect their right to organize and bargain collectively, no state can en- ter the field to bestow upon housestaff such protec- tion under state laws. But observe, the effect of my colleagues' decision is that housestaff, though not protected in their right to organize and bargain collectively, are not prohib- ited from doing so, and their organizational, recogni- tional, and bargaining strikes are no longer subject to the restraints on such activities that Congress en- acted specifically to regulate such activities in the health care industry. For, if housestaff are not em- ployees, if their associations are not labor organiza- tions, none of the provisions of Section 8(b), 8(d), and 8(g) apply to such activities. Of course, it is true also that the restraints of Section 8(a) do not apply to those hospitals wishing to combat housestaff at- tempts to organize and bargain collectively. My col- leagues have, thus, assertedly as an exercise of discre- tion, decided that it will effectuate the policies of the Act not to apply provisions of the Act enacted specif- ically to bring about the peaceful settlement of labor 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disputes in this industry to the end that patient care will not be disrupted. They now compound the prob- lem by seeking to preclude intervention by any state court or board, whether by making available proce- dures for the peaceful settlement of such disputes, or by injunction. Such disputes will be resolved solely in accordance with the militancy and economic re- sources of the contending parties, free of any re- straining or mediatory influences of Federal or state law. If this be preemption, it is preemption solely for its own sake. It is not preemption designed to carry forward any policy established by Congress: The Committee was also impressed with the fact, emphasized by many witnesses, that the ex- emption of nonprofit hospitals from the Act had resulted in numerous instances of recognition strikes and picketing. Coverage under the Act should completely eliminate the need for such activity, since the procedures of the Act will be available to resolve organizational and recogni- tion disputes.' Those procedures and those designed "to insure the continuity of health care to the community and the care and well being of patients by providing for a statutory notice of any anticipated strike or picket- ing" 9 and "for mandatory mediation by the parties with the FMCS in the case of collective bargaining [disputes]" 10 are, by my colleagues' act of "discre- tion," no longer applicable to disputes involving housestaff. Yet they wish also to preclude the States from intervening in order to effectuate peaceful reso- lution of such disputes. I must, and do, dissent. 8 S Rep No 93-766, p 3 9Id at p 4 10 /d at p 5 DECISION AND ORDER 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 Ronald Broun. Following the hearing and pursuant to Section 102.67 of the National Labor Re- lations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, by direction of the Regional Director for Region 17, this case was transferred to the Board for decision. Thereafter, the Hospitals, Petitioner,' and Intervenor 2 filed briefs. Pursuant to the provisions of Section 3(b) of the The names of the Hospitals and the Petitioner appear as amended at the hearing 2 Service Employees International Union was permitted to intervene sole- ly on the issue of jurisdiction but has no interest in the petitioned-for unit 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, the Board finds: The Petitioner seeks to represent a unit of residents and interns employed by Hospital Hill Health Serv- ices Corporation (hereinafter referred to as Hospital Hill).' Hospital Hill is a private not-for-profit profes- sional corporation, established under the laws of the State of Missouri, using the services of physicians, dentists, residents, and interns and supplying medical and dental services, through its professional staff, to various hospitals and health care institutions in Kan- sas City and Jackson County, Missouri. The parties stipulated that Hospital Hill annually receives gross revenues valued in excess of $250,000 from its opera- tions and annually purchases goods valued between $30,000 and $35,000 from directly outside the State of Missouri. The record further establishes that a substantial portion of Hospital Hill's gross revenues derives from Medicare and Medicaid payments as well as from privately administered national health insurance companies. In Cedars-Sinai Medical Center, 223 NLRB 251 (1976), the Board found 4 that residents, interns, and fellows are not "employees" within the meaning of Section 2(3) of the Act. That being so, Hospital Hill is not an "employer" within the meaning of Section 2(2) of the Act for the purpose of any disputes relat- ing to such personnel.' Accordingly as the Petitioner seeks to represent only individuals who are not "employees" within the 3 Initially, about half of the residents and interns presently employed by Hospital Hill were formerly employed by Kansas City General Hospital and Medical Center (hereinafter referred to as General ) and the Petitioner sought a single unit of residents and interns employed by Hospital Hill and General However, the record established that as of July 1, 1975, General ceased to employ any residents and interns and that its residents and interns thereafter signed employment contracts with Hospital Hill Accordingly, since none of the petitioned-for residents and interns are presently em- ployed by General, we find it unnecessary, for the purposes of this proceed- ing, as acknowledged by the parties in their respective briefs , to reach or resolve the issues with respect to General 's status as an employer within the meaning of the Act For the same reason , we deny the request for decision on jurisdiction filed by General and Hospital Hill in which all other parties joined 4 Member Fanning dissenting 5 Our finding herein should not be construed as a determination that the Board would not find Hospital Hill to be an employer within the meaning of the Act and within the Board's statutory and discretionary judgment for other purposes Hospital Hill contends , inter ala, that it is a joint employer with the University of Missouri , a political subdivision of the State of Missouri, in connection with the administration of Hospital Hill's residency program Since we have found that the residents and interns at Hospital Hill are not "employees" within the meaning of the Act and have thus dismissed the petition for lack of statutory jurisdiction herein, we find it unnecessary, for the purposes of this proceeding , to consider or pass upon the joint employer issues raised by Hospital Hill KANSAS CITY GENERAL HOSPITAL & MEDICAL CENTER III meaning of the Act, we shall dismiss the petition MEMBER FANNING, dissenting: herein. For the reasons set forth in my dissenting opinion in Cedars-Sinai, I would find the housestaff to be ORDER employees, and proceed to resolution of the other issues in this case. It is hereby ordered that the petition filed herein be, and it hereby is, dismissed.