St. Patrick Hospital

ST. PATRICK HOSPITAL Sisters of Charity of Providence , St. Ignatius Prov- ince, d/b/a St. Patrick Hospital I and Montana Nurses' Association, a Constituent of the American Nurses' Association, Petitioner. Case 19-RC-7587 August 2, 1976 DECISION AND ORDER By CHAIRMAN MURPHY 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 on June 30, 1975. Following the hearing, the Regional Director for Region 19 issued a Decision and Direction of Election finding, inter alia, that the Petitioner was a labor organization within the meaning of the Act and directing an election in a bargaining unit consisting of registered nurses. Thereafter, the Employer filed a request for review of the Regional Director's decision contesting the Petitioner's status as a labor organization on the ground that it was allegedly dominated and con- trolled by supervisory personnel. On August 18, 1975, the National Labor Relations Board denied the Employer's request for review as it raised no substan- tial issues warranting review. However, the Board added that "in the event the Petitioner is certified and does not delegate its bargaining to a local auton- omous chapter controlled by nonsupervisory em- ployees, a motion to revoke the certification will be entertained." Thereafter, a secret ballot election was conducted by the Board in the unit previously found appropri- ate. The tally of ballots established that Petitioner had received a majority of the votes cast. No objec- tions to the election were filed. On August 27, 1975, the Regional Director certi- fied the Petitioner as the exclusive bargaining repre- sentative of the Employer's registered nurses.2 Fol- lowing a request for bargaining by the Petitioner, the Employer, on November 6, 1975, filed with the Re- gional Director a motion to revoke certification, al- leging that the Petitioner had failed to delegate its bargaining authority to a local automonous chapter controlled by nonsupervisory employees.' On No- vember 7, the Regional Director referred this motion 1 The name of the Employer appears as amended at the hearing 2 The certified bargaining unit consists of "All registered nurses employed by the Employer at its Missoula, Montana, facility, excluding all other em- ployees, guards, head nurses, and all other supervisors as defined by the Act " 3 Unfair labor practice charges alleging that the Employer violated Sec 8(a)(5) and (1) of the Act by failing to meet with the Petitioner were filed and subsequently withdrawn by the Petitioner 799 to the Board for its consideration. On February 2, 1976, the Board, having concluded that the motion raised substantial issues which could best be resolved at a hearing, remanded the case to the Regional Di- rector for the purpose of adducing further record evi- dence with respect to the issues raised therein 4 Spe- cifically, the Board noted its interest in evidence concerning "(1) a definition, with specificity, of the bargaining process, including what powers, if any, the State Nurses' Association has in determining the composition of the negotiating committee and the authority, if any, of the State Nurses' Association with respect approval or disapproval of a final agree- ment, if one can be reached; (2) the degree of partici- pation, either direct or indirect, of supervisory nurses in the bargaining process; and, (3) such other evi- dence as may be deemed relevant." Thereafter, a hearing was held on March 17, 1976, before Hearing Officer Dale C. Perman of the National Labor Rela- tions Board. Following the close of the hearing, and pursuant to the direction of the Board, the instant case was transferred to the Board for decision. The Employer and the Petitioner filed 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. Upon the entire record in this case, the Board finds: The Employer contends that the Petitioner (here- inafter referred to as MNA) has not delegated its authority with respect to collective bargaining to a local autonomous chapter within the meaning of the Board's decision in Annapolis Emergency Hospital As- sociation, Inc., d/b/a Anne Arundel General Hospital,5 and, therefore, the certification should be revoked. In support of this contention the Employer further con- tends that MNA is actively involved in the bargain- ing process and is controlled and dominated by su- pervisory personnel. For the following reasons, we find that these contentions are not supported by the record. MNA is an organization composed of registered nurses, including registered nurses in supervisory po- sitions,6 which exists, inter alia, for the purpose of providing assistance, both direct and indirect, to groups of nurses who are seeking to become recog- nized or have been recognized for collective-bargain- Member Jenkins, dissenting, would have denied the motion. 5217 NLRB 848 (1975) 6 The president and several members of MNA's board of directors and executive committee are supervisors None of them are employed by the Employer 225 NLRB No. 110 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing purposes. It has been engaged in such activities on a local level for approximately 20 years. At the time of the hearing, there were 25 constituent "mem- bership units" or "local units" of registered nurses in the State of Montana, approximately 18 of which have collective-bargaining contracts with various em- ployers. According to undisputed testimony, each of the above local units consists solely of nonsupervisory staff nurses who establish separate unit bylaws, elect unit officers, formulate the unit's bargaining propos- als, and ratify final contract proposals. The evidence also establishes that these facts describe the unit's composition and existence in this case. Thus, the unit of the Employer's nurses was organized by staff nurs- es employed at the Employer's facility who thereafter elected officers by secret ballot and drafted a set of bylaws. The bylaws, which were not subject to ap- proval of any kind by MNA, limit membership in the local unit exclusively to staff nurses employed by the Employer,' and the record shows that no supervisory nurses are members of the local unit. After MNA was certified as the exclusive bargaining representa- tive of the local unit, the members of the unit were advised by MNA that they were responsible for their own affairs, including bargaining with the Employer. Consequently, they drafted contract proposals and elected a negotiating committee solely from their ranks. Although the last of the above-cited factors (ratification of contract proposals) for obvious rea- sons cannot be stated as the fact here, there was un- contradicted testimony that the membership alone will vote on any contract to be ratified in the future. The Employer does not dispute this degree of par- ticipation by unit members in the bargaining process. Rather the thrust of its contention is that MNA has exercised or will exercise control over the unit's bar- gaining affairs by lending a hand in the preparation of contract proposals, participating in negotiations with the Employer, and executing any agreement reached between the parties, thereby precluding a finding of delegation of the bargaining authority to the local unit. As "proof" of this, the Employer relies heavily on the fact that the unit will be assisted in bargaining by MNA's economic and general welfare department, and that the contracts will be submitted to MNA for execution as the bargaining representa- tive. Such assistance as MNA offers to its local units through its economic and general welfare depart- ment is provided by a single field representative who is hired by MNA's board of directors, but is paid by and receives travel expenses from the American Nurses' Association. This representative normally does not participate in organizational drives, leaving such matters to the nurses themselves. After certifica- tion, the field representative may assist local units by providing them with copies of other collective-bar- gaining contracts to aid them in formulating their own contract proposals and, if requested, will make suggestions as to contract language. He also has par- ticipated in negotiations on behalf of these units, in some instances as spokesman for the unit involved, and has, at times, assisted units in the handling of grievances under the relevant contractual grievance procedures. However, there is no evidence that such participation is influenced, directed, or controlled by MNA. Indeed, MNA does not establish or suggest parameters for bargaining demands, and does not have standard guidelines for contract language. In the instant case, the field representative provid- ed the unit with copies of collective-bargaining con- tracts negotiated by other units of registered nurses in the State of Montana to help it formulate its bar- gaining proposals. At the request of the unit mem- bers, the field representative also suggested some contractual language, the exact nature of which is not disclosed in the record. However, the facts show that the actual draft of the contract proposals was prepared solely by unit members themselves. Only then did the field representative contact the Employ- er to arrange the initial negotiating meeting which, because of the motion herein, was canceled by the Employer.8 The above facts concerning the duties and func- tion of the field representative do not persuade us that MNA influences or controls the bargaining pro- cess of its units through this individual. Instead, we find that any assistance the field representative pro- vides is at most supportive in nature, consisting mainly of offering technical advice and bargaining experience to local units or help them achieve the contractual goals which they have set for themselves. Nor are these conclusions refuted by the fact that the field representative may assume an active role in the negotiation of a contract or act as a unit's representa- tive in a grievance. In both roles the field representa- tive is being sought by the unit, as noted, for his bar- gaining expertise, and there is no basis in this record for inferring that any other reason exists for using his services. Indeed, the record is barren of evidence that he may force his will on the unit and its membership, or that, in negotiations in which he takes part, his ' The Employer contends that the bylaws do not specifically provide for the exclusion of supervisory nurses However, the bylaws do expressly limit The evidence indicated that the field representative was prepared to membership to staff nurses which, by definition, would exclude supervisory participate in the negotiations, but the record does not reveal the exact role nurses from membership he would have played therein ST. PATRICK HOSPITAL actions are in any way guided or controlled by MNA.9 Having rejected the argument that MNA controls bargaining through the field representative, we next turn to the claim that such control is manifested by MNA's being a party and signator to any agreement that might be negotiated, and the implications those facts purportedly carry. The record shows that the contract, as proposed by the unit's membership here- in, designates MNA as the labor organization to be accorded recognition, provides for the deduction of MNA dues from the pay of the unit employees, and specifies that it is to be executed by a representative of MNA. The evidence also establishes that the field representative will submit any such contract to MNA's executive committee. However, such submis- sion can occur only after the membership has ratified the agreement and its terms. As ratified, it will not be submitted to review or approval by the executive committee and the latter will have no power or au- thority to veto or modify its terms. In other words, any contract submitted to MNA will represent a final and binding agreement which MNA lawfully must execute. Therefore, we find that submission of the contract to MNA and its execution by that party constitute nothing more than a mere formality.10 Similarly, we find that the contractual designation of MNA as the unit's bargaining representative and the dues-checkoff provision in MNA's favor 11 simply represent recognition of the Board's certification of MNA as the exclusive bargaining representative of 9 The fact that the field representative is employed by MNA does not lead to a different conclusion We note that the representative is paid by the American Nurses' Association, and is reimbursed by that organization for travel expenses incurred in assisting the local units. In these circumstances, it seems clear to us that the field representative is only nominally an em- ployee of MNA, and that in reality his actions are governed by the wishes of the individual units rather than the association's Also, contrary to the Employer's assertion , MNA does not have a publi- cation devoted to disseminating information concerning wages, hours, and working conditions The record shows only that MNA has a publication which at times has contained, among other types of articles of professional interest to registered nurses, articles emanating from the economic and gen- eral welfare department, which have been addressed to the wages, hours, or working conditions of registered nurses in general 10 We also note the uncontradicted evidence that one or more of the duly elected officers of the local unit will execute the contract as well 11 Local units, such as the one involved in this case , are financed through local contributions, assessments , and social functions designed to raise funds therefor 801 the unit employees. It does not establish that MNA has such control over the bargaining process as to require revocation of the certification." In light of the foregoing, we find that the evidence falls to establish that the affairs of the unit in this case with respect to the conduct of collective bar- gaining, including the negotiation and execution of contracts, have been or will be subject to the influ- ence, domination, or control of MNA or by supervi- sors who hold offices in that organization. On the contrary, the evidence, as we have found, establishes that the present unit freely elected its own officers and a negotiating committee from its ranks, which consist solely of nonsupervisory staff nurses; pre- pared its own bargaining proposals; without interfer- ence, will, as far as the record here shows, conduct negotiations with the Employer unimpeded by its parent; and, similarly, will ratify contract terms which will not be subject to revision or veto by MNA or the latter's representatives. Accordingly, we conclude and find that MNA's collective-bargaining authority regarding the Em- ployer's registered nurses is being properly exer- cised through this local unit, and that the fact that bargaining is in the name of MNA as the certified representative of the staff nurses at the Employer's hospital is not inconsistent with the effective delega- tion of such authority." Therefore, we reject the con- tention that Petitioner (MNA) is disqualified as the representative of the unit herein and we shall deny the Employer's motion to revoke certification. 14 ORDER It is hereby ordered that the Employer's motion to revoke certification be, and it hereby is, denied. 12 The Petitioner moved the Board to open the record to receive as evi- dence a letter written by the Employer addressed to the members of the local unit's negotiating committee for the purpose of showing the Em- ployer's recognition of the local unit. However, inasmuch as we have found that record evidence is sufficient upon which to base our finding that MNA has delegated its collective-bargaining authority to the local unit, we shall deny the Petitioner's motion 13 See Annapolis Emergency Hospital Association, Inc, d/b /a Anne Arundel General Hospital, supra 14 Member Jenkins would have reached this conclusion on the basis of the facts and allegations of the Employer submitted to the Board prior to the hearing in this case, his view was that, even if the allegations were sustained, the certified union had sufficient autonomy to be the representative of the employees, and that the delay and expense of a hearing was unnecessary