North Shore University Hospital

852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North Shore University Hospital and New York WE WILL NOT in any like or related manner State Nurses Association. Cases 29-CA-6398 interfere with, restrain, or coerce our employ- and 29-RC-3989 ees in the exercise of the rights guaranteed December 29, 1981 them by Section 7 of the Act. WE WILL, upon request, bargain with the DECISION AND ORDER above-named labor organization, as the exclu- sive representative of all employees in the bar- BY MEMBERS FANNING, JENKINS, AND BYMEMBERSFANNZIMMERMAN JENKINSANgaining unit described below, with respect to ZIMMERMAN rates of pay, wages, hours, and other terms On May 13, 1981, Administrative Law Judge and conditions of employment, and, if an un- Jesse Kleiman issued the attached Decision in this derstanding is reached, embody such under- proceeding. Thereafter, Respondent filed excep- standing in a signed agreement. The bargaining tions and a supporting brief,' and the Charging unit is: Party filed cross-exceptions and a brief in support i i of its cross-exceptions and in opposition to Re-All full-time and regular part-time registered spondent's exceptions. Respondent also filed a brief professional nurses regularly scheduled to in answer to the Charging Party's cross-exceptions.work 22-/2 hours or more per week, in- Pursuant to the provisions of Section 3(b) of the cluding all those authorized by permit to National Labor Relations Act, as amended, the Na- practice as registered nurses, employed by tional Labor Relations Board has delegated its au- us at 300 Community Drive, Manhasset, thority in this proceeding to a three-member panel. New York; excluding all department heads, The Board has considered the record and the at- administrative directors, directors, associate tached Decision in light of the exceptions and directors, assistant directors, all supervisors, briefs and has decided to affirm the rulings, find- clinical supervisors, all clinicians, all instruc- ings, and conclusions of the Administrative Law tors, all specialists, operating rooms nurse Judge and to adopt his recommended Order. specialists, all coordinators, head nurses, as- sistant head nurses, all casual employees, ORDER temporary employees, confidential employ- Pursuant to Section 10(c) of the National Labor ees, managerial employees, all other employ- Relations Act, as amended, the National Labor Re- ees, and guards and supervisors as defined in lations Board adopts as its Order the recommended the Act. Order of the Administrative Law Judge and hereby orders that the Respondent, North Shore NORTH SHORE UNIVERSITY HosPI- University Hospital, Manhasset, New York, its offi- TAL cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, DECISION except that the attached notice is substituted forSTATEMENT OF THE CASE that of the Administrative Law Judge. JESSE KLEIMAN, Administrative Law Judge: Upon a Respondent has requested oral argument. This request is hereby charge filed in Case 29-CA-6398 on May 8, 1978, by denied as the record, the exceptions, and the briefs adequately present the New York State Nurses Association, also referred to issues and the positions of the parties. herein either as the Association or as NYSNA, the Gen- eral Counsel of the National Labor Relations Board, by APPENDIX the Regional Director for Region 29, Brooklyn, New NOTICE To EMPLOYEES York, duly issued a complaint and notice of hearing on June 15, 1978, against North Shore University Hospital, POSTED BY ORDER OF THE herein called the Respondent, alleging that the Respond- NATIONAL LABOR RELATIONS BOARD ent engaged in certain unfair labor practices within the An Agency of the United States Government meaning of Section 8(aX1) and (5) of the National Labor Relations Act, as amended, herein referred to as the Act. WE WILL NOT refuse to bargain collectively On July 17, 1978,' the Respondent, by counsel, duly filed concerning rates of pay, wages, hours, and an answer denying the material allegations in the com- other terms and conditions of employment plaint and raising certain affirmative defenses.2 with New York State Nurses Association, as o employme with New York State Nurses Association, as , The Respondent's time to serve an answer was extended to this date the exclusive representative of the employees by the Regional Director for Region 29 by order dated June 27, 1978. in the bargaining unit described below. The Respondent contends that: 0 ~~~~~~~~~~~259 NLRB No. -~ 121~Continued 259 NLRB No. 121 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North Shore University Hospital and New York WE WILL NOT in any like or related manner State Nurses Association. Cases 29-CA-6398 interfere with, restrain, or coerce our employ- and 29-RC-3989 ees in the exercise of the rights guaranteed December 29, 1981 them by Section 7 of the Act. WE WILL, upon request, bargain with the DECISION AND ORDER above-named labor organization, as the exclu- By MEMBER, FANNING, JENKINS, AND-sive representative of all employees in the bar- BY MEMBERS FANNING, JENKINS, ANDg ^ ZIMMERMAN ~~~~~gaining unit described below, with respect to ZIMMERMAN. .i i rates of pay, wages, hours, and other terms On May 13, 1981, Administrative Law Judge and conditions of employment, and, if an un- Jesse Kleiman issued the attached Decision in this derstanding is reached, embody such under- proceeding. Thereafter, Respondent filed excep- standing in a signed agreement. The bargaining tions and a supporting brief,' and the Charging unit is: Party filed cross-exceptions and a brief in supportAluim a r p ri e of its cross-exceptions and in opposition to Re-pAll full-time and regular part-time registered spondent's exceptions. Respondent also filed a briefwprofessional nurses regularly scheduled to in answer to the Charging Party's cross-exceptions. w o r k 2 2 -1/ 2 h o u r s o r m o re p" w e e k, m- Pursuant to the provisions of Section 3(b) of the eluding all those authorized by permit to National Labor Relations Act, as amended, the Na- practice as registered nurses, employed by tional Labor Relations Board has delegated its au- u s at 3 00 Community Drive, Manhasset, thority in this proceeding to a three-member panel. N e w York; excluding all department heads, The Board has considered the record and the at- administrative directors, directors, associate tached Decision in light of the exceptions and directors, assistant directors, all supervisors, briefs and has decided to affirm the rulings, find- clinical supervisors, all clinicians, all instruc- ings, and conclusions of the Administrative Law tors, all specialists, operating rooms nurse Judge and to adopt his recommended Order. specialists, all coordinators, head nurses, as- sistant head nurses, all casual employees, ORDER temporary employees, confidential employ- Pursuant to Section 10(c) of the National Labor ees, managerial employees, all other employ- Relations Act, as amended, the National Labor Re- ees, and guards and supervisors as defined in lations Board adopts as its Order the recommended the Act. Order of the Administrative Law Judge and hereby orders that the Respondent, North Shore NORTH SHORE UNIVERSITY HOSPI- University Hospital, Manhasset, New York, its offi- TAL cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, DECISION except that the attached notice is substituted for STATEMENT OF THE CASE that of the Administrative Law Judge. JESSE KLEIMAN, Administrative Law Judge: Upon a 'Respondent has requested oral argument. This request is hereby charge filed in Case 29-CA-6398 On May 8, 1978, by denied as the record, the exceptions, and the briefs adequately present the New York State Nurses Association, also referred to issues and the positions of the parties. herein either as the Association or as NYSNA, the Gen- e ral Counsel of the National Labor Relations Board, by APPENDIX the Regional Director for Region 29, Brooklyn, New NmTiCE To EMPLOYvEES Y o r k, d u ly i ss ued a c o m plai nt a nd n o t ic e o f hearing on June 15, 1978, against North Shore University Hospital, POSTED BY ORDER OF THE herein called the Respondent, alleging that the Respond- NATIONAL LABOR RELATIONS BOARD ent engaged in certain unfair labor practices within the An Agency of the United States Government meaning of Section 8(aXl) and (5) of the National Labor Relations Act, as amended, herein referred to as the Act. WE WILL NOT refuse to bargain collectively On July 17, 1978, the Respondent, by counsel, duly filed concerning rates of pay, wages, hours, and a n an s w er denying the material allegations in the com- other terms and conditions of employment plaint and raising certain affirmative defenses. 2 with New York State Nurses Association, as , ^ , , „ ^, „ , with New York tate Nurses Asociation, as The Respondent's time to serve an answer was extended to this date the exclusive representative Of the employees by the Regional Director for Region 29 by order dated June 27, 1978. in the bargaining unit described below. Th e Respondent contends that: 259 No.11Coninud 259 NLRB No. 121 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North Shore University Hospital and New York WE WILL NOT in any like or related manner State Nurses Association. Cases 29-CA-6398 interfere with, restrain, or coerce our employ- and 29-RC-3989 ees in the exercise of the rights guaranteed December 29, 1981 them by Section 7 of the Act. WE WILL, upon request, bargain with the DECISION AND ORDER above-named labor organization, as the exclu- By MEMBER, FANNING, JENKINS, AND-sive representative of all employees in the bar- BY MEMBERS FANNING, JENKINS, ANDg ^ ZIMMERMAN ~~~~~gaining unit described below, with respect to ZIMMERMAN. .i i rates of pay, wages, hours, and other terms On May 13, 1981, Administrative Law Judge and conditions of employment, and, if an un- Jesse Kleiman issued the attached Decision in this derstanding is reached, embody such under- proceeding. Thereafter, Respondent filed excep- standing in a signed agreement. The bargaining tions and a supporting brief,' and the Charging unit is: Party filed cross-exceptions and a brief in supportAluim a r p ri e of its cross-exceptions and in opposition to Re-pAll full-time and regular part-time registered spondent's exceptions. Respondent also filed a briefwprofessional nurses regularly scheduled to in answer to the Charging Party's cross-exceptions. w o r k 2 2 -1/ 2 h o u r s o r m o re p" w e e k, m- Pursuant to the provisions of Section 3(b) of the eluding all those authorized by permit to National Labor Relations Act, as amended, the Na- practice as registered nurses, employed by tional Labor Relations Board has delegated its au- u s at 3 00 Community Drive, Manhasset, thority in this proceeding to a three-member panel. N e w York; excluding all department heads, The Board has considered the record and the at- administrative directors, directors, associate tached Decision in light of the exceptions and directors, assistant directors, all supervisors, briefs and has decided to affirm the rulings, find- clinical supervisors, all clinicians, all instruc- ings, and conclusions of the Administrative Law tors, all specialists, operating rooms nurse Judge and to adopt his recommended Order. specialists, all coordinators, head nurses, as- sistant head nurses, all casual employees, ORDER temporary employees, confidential employ- Pursuant to Section 10(c) of the National Labor ees, managerial employees, all other employ- Relations Act, as amended, the National Labor Re- ees, and guards and supervisors as defined in lations Board adopts as its Order the recommended the Act. Order of the Administrative Law Judge and hereby orders that the Respondent, North Shore NORTH SHORE UNIVERSITY HOSPI- University Hospital, Manhasset, New York, its offi- TAL cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, DECISION except that the attached notice is substituted for STATEMENT OF THE CASE that of the Administrative Law Judge. JESSE KLEIMAN, Administrative Law Judge: Upon a 'Respondent has requested oral argument. This request is hereby charge filed in Case 29-CA-6398 On May 8, 1978, by denied as the record, the exceptions, and the briefs adequately present the New York State Nurses Association, also referred to issues and the positions of the parties. herein either as the Association or as NYSNA, the Gen- e ral Counsel of the National Labor Relations Board, by APPENDIX the Regional Director for Region 29, Brooklyn, New NmTiCE To EMPLOYvEES Y o r k, d u ly i ss ued a c o m plai nt a nd n o t ic e o f hearing on June 15, 1978, against North Shore University Hospital, POSTED BY ORDER OF THE herein called the Respondent, alleging that the Respond- NATIONAL LABOR RELATIONS BOARD ent engaged in certain unfair labor practices within the An Agency of the United States Government meaning of Section 8(aXl) and (5) of the National Labor Relations Act, as amended, herein referred to as the Act. WE WILL NOT refuse to bargain collectively On July 17, 1978, the Respondent, by counsel, duly filed concerning rates of pay, wages, hours, and a n an s w er denying the material allegations in the com- other terms and conditions of employment plaint and raising certain affirmative defenses. 2 with New York State Nurses Association, as , ^ , , „ ^, „ , with New York tate Nurses Asociation, as The Respondent's time to serve an answer was extended to this date the exclusive representative Of the employees by the Regional Director for Region 29 by order dated June 27, 1978. in the bargaining unit described below. Th e Respondent contends that: 259 No. 1Coninued 259 NLRB No. 121 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North Shore University Hospital and New York WE WILL NOT in any like or related manner State Nurses Association. Cases 29-CA-6398 interfere with, restrain, or coerce our employ- and 29-RC-3989 ees in the exercise of the rights guaranteed December 29, 1981 them by Section 7 of the Act. WE WILL, upon request, bargain with the DECISION AND ORDER above-named labor organization, as the exclu- By MEMBER, FANNING, JENKINS, AND-sive representative of all employees in the bar- BY MEMBERS FANNING, JENKINS, ANDg ^ ZIMMERMAN ~~~~~gaining unit described below, with respect to ZIMMERMAN. .i i rates of pay, wages, hours, and other terms On May 13, 1981, Administrative Law Judge and conditions of employment, and, if an un- Jesse Kleiman issued the attached Decision in this derstanding is reached, embody such under- proceeding. Thereafter, Respondent filed excep- standing in a signed agreement. The bargaining tions and a supporting brief,' and the Charging unit is: Party filed cross-exceptions and a brief in supportAluim a r p ri e of its cross-exceptions and in opposition to Re-pAll full-time and regular part-time registered spondent's exceptions. Respondent also filed a briefwprofessional nurses regularly scheduled to in answer to the Charging Party's cross-exceptions. w o r k 2 2 -1/ 2 h o u r s o r m o re p" w e e k, m- Pursuant to the provisions of Section 3(b) of the eluding all those authorized by permit to National Labor Relations Act, as amended, the Na- practice as registered nurses, employed by tional Labor Relations Board has delegated its au- u s at 3 00 Community Drive, Manhasset, thority in this proceeding to a three-member panel. N e w York; excluding all department heads, The Board has considered the record and the at- administrative directors, directors, associate tached Decision in light of the exceptions and directors, assistant directors, all supervisors, briefs and has decided to affirm the rulings, find- clinical supervisors, all clinicians, all instruc- ings, and conclusions of the Administrative Law tors, all specialists, operating rooms nurse Judge and to adopt his recommended Order. specialists, all coordinators, head nurses, as- sistant head nurses, all casual employees, ORDER temporary employees, confidential employ- Pursuant to Section 10(c) of the National Labor ees, managerial employees, all other employ- Relations Act, as amended, the National Labor Re- ees, and guards and supervisors as defined in lations Board adopts as its Order the recommended the Act. Order of the Administrative Law Judge and hereby orders that the Respondent, North Shore NORTH SHORE UNIVERSITY HOSPI- University Hospital, Manhasset, New York, its offi- TAL cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, DECISION except that the attached notice is substituted for STATEMENT OF THE CASE that of the Administrative Law Judge. JESSE KLEIMAN, Administrative Law Judge: Upon a 'Respondent has requested oral argument. This request is hereby charge filed in Case 29-CA-6398 On May 8, 1978, by denied as the record, the exceptions, and the briefs adequately present the New York State Nurses Association, also referred to issues and the positions of the parties. herein either as the Association or as NYSNA, the Gen- e ral Counsel of the National Labor Relations Board, by APPENDIX the Regional Director for Region 29, Brooklyn, New NmTiCE To EMPLOYvEES Y o r k, d u ly i ss ued a c o m plai nt a nd n o t ic e o f hearing on June 15, 1978, against North Shore University Hospital, POSTED BY ORDER OF THE herein called the Respondent, alleging that the Respond- NATIONAL LABOR RELATIONS BOARD ent engaged in certain unfair labor practices within the An Agency of the United States Government meaning of Section 8(aXl) and (5) of the National Labor Relations Act, as amended, herein referred to as the Act. WE WILL NOT refuse to bargain collectively On July 17, 1978, the Respondent, by counsel, duly filed concerning rates of pay, wages, hours, and a n an s w er denying the material allegations in the com- other terms and conditions of employment plaint and raising certain affirmative defenses. 2 with New York State Nurses Association, as , ^ , , „ ^, „ , with New York tate Nurses Asociation, as The Respondent's time to serve an answer was extended to this date the exclusive representative Of the employees by the Regional Director for Region 29 by order dated June 27, 1978. in the bargaining unit described below. Th e Respondent contends that: 259 No. 1Coninued 259 NLRB No. 121 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North Shore University Hospital and New York WE WILL NOT in any like or related manner State Nurses Association. Cases 29-CA-6398 interfere with, restrain, or coerce our employ- and 29-RC-3989 ees in the exercise of the rights guaranteed December 29, 1981 them by Section 7 of the Act. WE WILL, upon request, bargain with the DECISION AND ORDER above-named labor organization, as the exclu- By MEMBER, FANNING, JENKINS, AND-sive representative of all employees in the bar- BY MEMBERS FANNING, JENKINS, ANDg ^ ZIMMERMAN ~~~~~gaining unit described below, with respect to ZIMMERMAN. .i i rates of pay, wages, hours, and other terms On May 13, 1981, Administrative Law Judge and conditions of employment, and, if an un- Jesse Kleiman issued the attached Decision in this derstanding is reached, embody such under- proceeding. Thereafter, Respondent filed excep- standing in a signed agreement. The bargaining tions and a supporting brief,' and the Charging unit is: Party filed cross-exceptions and a brief in supportAluim a r p ri e of its cross-exceptions and in opposition to Re-pAll full-time and regular part-time registered spondent's exceptions. Respondent also filed a briefwprofessional nurses regularly scheduled to in answer to the Charging Party's cross-exceptions. w o r k 2 2 -1/ 2 h o u r s o r m o re p" w e e k, m- Pursuant to the provisions of Section 3(b) of the eluding all those authorized by permit to National Labor Relations Act, as amended, the Na- practice as registered nurses, employed by tional Labor Relations Board has delegated its au- u s at 3 00 Community Drive, Manhasset, thority in this proceeding to a three-member panel. N e w York; excluding all department heads, The Board has considered the record and the at- administrative directors, directors, associate tached Decision in light of the exceptions and directors, assistant directors, all supervisors, briefs and has decided to affirm the rulings, find- clinical supervisors, all clinicians, all instruc- ings, and conclusions of the Administrative Law tors, all specialists, operating rooms nurse Judge and to adopt his recommended Order. specialists, all coordinators, head nurses, as- sistant head nurses, all casual employees, ORDER temporary employees, confidential employ- Pursuant to Section 10(c) of the National Labor ees, managerial employees, all other employ- Relations Act, as amended, the National Labor Re- ees, and guards and supervisors as defined in lations Board adopts as its Order the recommended the Act. Order of the Administrative Law Judge and hereby orders that the Respondent, North Shore NORTH SHORE UNIVERSITY HOSPI- University Hospital, Manhasset, New York, its offi- TAL cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, DECISION except that the attached notice is substituted for STATEMENT OF THE CASE that of the Administrative Law Judge. JESSE KLEIMAN, Administrative Law Judge: Upon a 'Respondent has requested oral argument. This request is hereby charge filed in Case 29-CA-6398 On May 8, 1978, by denied as the record, the exceptions, and the briefs adequately present the New York State Nurses Association, also referred to issues and the positions of the parties. herein either as the Association or as NYSNA, the Gen- e ral Counsel of the National Labor Relations Board, by APPENDIX the Regional Director for Region 29, Brooklyn, New NmTiCE To EMPLOYvEES Y o r k, d u ly i ss ued a c o m plai nt a nd n o t ic e o f hearing on June 15, 1978, against North Shore University Hospital, POSTED BY ORDER OF THE herein called the Respondent, alleging that the Respond- NATIONAL LABOR RELATIONS BOARD ent engaged in certain unfair labor practices within the An Agency of the United States Government meaning of Section 8(aXl) and (5) of the National Labor Relations Act, as amended, herein referred to as the Act. WE WILL NOT refuse to bargain collectively On July 17, 1978, the Respondent, by counsel, duly filed concerning rates of pay, wages, hours, and a n an s w er denying the material allegations in the com- other terms and conditions of employment plaint and raising certain affirmative defenses. 2 with New York State Nurses Association, as , ^ , , „ ^, „ , with New York tate Nurses Asociation, as The Respondent's time to serve an answer was extended to this date the exclusive representative Of the employees by the Regional Director for Region 29 by order dated June 27, 1978. in the bargaining unit described below. Th e Respondent contends that: 259 No. 1Coninued 259 NLRB No. 121 NORTH SHORE UNIVERSITY HOSPITAL 853 Prior thereto, on September 26, 1977, the Association cation of Representative issue to the Association.' The had filed a petition for certification of representative Respondent filed no exceptions to the report on objec- with the Board in Case 29-RC-3989 seeking an election tions. among all the Respondent's full-time and regular part- The Board on February 21, 1978, certified the Associ- time registered professional nurses and persons author- ation as the exclusive representative of all the employees ized by permit to practice as registered professional in the appropriate unit with respect to rates of pay, nurses excluding "managerial, confidential and supervi- wages, hours of employment, and other terms and condi- sory employees as defined by the Act, guards, watchmen tions of employment. and all other employees." The parties executed a Stipula- On July 17, 1978, the Respondent filed a motion to tion for Certification Upon Consent Election on October revoke certification in Case 29-RC-3989 alleging inter 7, 1977. By order dated November 11, 1977, the Region- alia that the Association is "influenced, dominated and al Director for Region 29 denied the Respondent's controlled by supervisors who serve as both officers and motion to reopen the hearing in Case 29-RC-3989 or in directors of the Association, which [the Association] has the alternative to withdraw from the Stipulation for Cer- not delegated its bargaining authority to an autonomous tification Upon Consent Election. 3 local chapter" and therefore that the Association is not a An election by secret ballot was conducted on No- bona fide labor organization. By order dated August 9, vember 16, 1977, among all the Respondent's unit em- 1978, the Regional Director for Region 29, at the request ployees in which 368 votes were cast for the Associ- of the parties, consolidated Cases 29-CA-6398 and 29- ation, 96 votes cast against the participating labor organi- R -389 for the purposes of hearing. zation, and 15 ballots were challenged. On November 23, the ses w hl 1977, the Respondent filed timely objections to the elec- A h e a ring i t h e consolidated cases was duly held tion alleging, in substance, that the Association is not a b ef o r e m e n B r o o k l y n d conc ing on r March 23 99.6 labor organization within the meaning of the Act be- c cause its actions are controlled, directed, and/or influ- the commencement of the hearing, during its course and enced by persons who occupy supervisory positions at the conclusion thereof, various motions were made by the parties.7 In substance these motions were as follows: within health care institutions including the Respondent the es In substance these motions were as follows: and that the Board has no jurisdiction, therefore, and if The Respondent moved that its motion to revoke certifi- the Association is a labor organization under the Act, it cation in Case 29-RC-3989 be granted and for dismissal committed "objectionable pre-election conduct" by ob- ncommitted "objectionable pre-election conductns," by ob- ' The Regional Director for Region 29 found that the Respondent's taming employee support under the "false pretense" that "objections" addressed to the Association's status as a bona fide labor or- it is a "professional organization as distinguished from a ganization "are not objections" as defined in Sec. 102.69 of the Board's union and/or labor organization." The Regional Director Rules and Regulations, Series 8, as amended, and that "Under established for Region 29 on January 23, 1978, issued a report on Board policy, the Employer may revive the issue by a motion to revoke objeti_ s . in which he recommended that each of the . the labor organization's certification or in an appropriate unfair labor objections in which he recommended that each of the practice proceeding." Sisters ofCharity of Providence. St. Ignatius Province. Respondent's objections be overruled and that a Certifi- d/b/a St. Patrick Hospital, 225 NLRB 799 (1976); Sierra Vista Hospital. supra; Handy Andy, Inc., supra (1) New York State Nurses Association "is not a bona ide labor ' The unit found appropriate by the Board for the purposes of collec- organization qualified to be the unit employees' exclusive collective tive bargaining was: bargaining representative within the meaning of the Act because its All full-time and regular part-time registered professional nurses reg- actions are controlled, directed, dominated and/or influenced by per- ularly scheduled to work 22-1/2 hours or more per week, including sons who occupy supervisory positions within health care institu- all those authorized by permit to practice as registered nurses, em- tions, including Respondent." ployed by the employer at 300 Community Drive, Manhasset, New (2) By demanding that Respondent bargain and enter into a collec- York; excluding all department heads, administrative directors, direc- tive bargaining agreement with the Association, the Association has tors, associate directors, assistant directors, all supervisors, clinical engaged and is engaged in unfair labor practices affecting commerce supervisors, all clinicians, all instructors, all specialists, operating within the meaning of Section 8(bXIXA) and Sections 2(6) and (7) of rooms nurse specialists, all coordinators, head nurses, assistant head the Act. nurses, all casual employees, temporary employees, confidential em- The Respondent filed an amended answer herein on July 24, 1978. ployees, managerial employees, all other employees, and guards and ' The Regional Director for Region 29 denied the motion for the fol- supervisors as defined in the Act. lowing reasons: That it was not timely made since it was filed long after The complaint alleges, the Respondent's answer admits, and, as the Board the election agreement was entered into and approved and there was no previously found in Case 29-RC-3981, I find that the above-described evidence that the issues raised then could not have been raised at the unit is appropriate for the purposes of collective bargaining within the time the election agreement was signed, Nebraska Methodist Hospital, 218 meaning of Sec. 9(b) of the Act. NLRB 619 (1975); that no extraordinary circumstances were present to ' The hearing covered 29 days with a record of 3,733 pages and a sub- warrant a hearing at this time and that the Board had found the Associ- stantial number of exhibits. ation to be a labor organization in previous cases and the Respondent had ' It should be noted that the General Counsel maintained a somewhat not indicated that it had any evidence to refute this, albeit it was seeking unique position of "neutrality" concerning both the procedural aspects of to reopen the hearing on the basis that the Association was dominated by the hearing and the substantive issues presented therein despite its burden "management and/or supervisory personnel with respect to its represen- of proof with regard to the allegations set forth in the complaint. Howev- tation activity and concerning the status of the [Association] as a labor er, counsel for the General Counsel did move at the beginning of the organization," Catholic Medical Center of Brooklyn and Queen; Inc., St hearing to strike the second affirmative defense in the Respondent's John's Hospital Division, Case 29-RC-3738; Maimonides Hospital Center, answer which alleges that by demanding bargaining and the execution of Case 29-UC-89; The New York State Nurses Association, 232 NLRB 849 a collective-bargaining agreement the Association engaged in unfair labor (1977); and that, in the event that the Association is certified by the practices within the meaning of Sees. 8(bXIXA) and 2(6) and (7) of the Board, a motion to revoke the certification could be filed or the issue Act. I reserved decision on this motion. As the reason therefor will considered in an appropriate unfair labor practice proceeding. Sierra Vista become apparent from the subsequent discussion herein of the issues in Hospital, Inc., 225 NLRB 1086 (1976); Handy Andy. Inc., 228 NLRB 447 this case, I find the Respondent's second affirmative defense to be with- (1977). out merit and grant the motion to strike this defense. NORTH SHORE UNIVERSITY HOSPITAL 853 Prior thereto, on September 26, 1977, the Association cation of Representative issue to the Association. 4 The had filed a petition for certification of representative Respondent filed no exceptions to the report on objec- with the Board in Case 29-RC-3989 seeking an election tions. among all the Respondent's full-time and regular part- The Board on February 21, 1978, certified the Associ- time registered professional nurses and persons author- ation as the exclusive representative of all the employees ized by permit to practice as registered professional in the appropriate unit with respect to rates of pay, nurses excluding "managerial, confidential and supervi- wages, hours of employment, and other terms and condi- sory employees as defined by the Act, guards, watchmen tions of employment." and all other employees." The parties executed a Stipula- On July 17, 1978, the Respondent filed a motion to tion f o r C e r tifi c a tio n Upon Consent Election on October revoke certification in Case 29-RC-3989 alleging inter 7, 1977. By order dated November 11, 1977, the Region- alia that the Association is "influenced, dominated and al Director for Region 29 denied the Respondent's controlled by supervisors who serve as both officers and motion to reopen the hearing in Case 29-RC-3989 or in directors of the Association, which [the Association] has the alternative to withdraw from the Stipulation for Cer- not delegated its bargaining authority to an autonomous tification Upon Consent Election.3 local chapter" and therefore that the Association is not a An election by secret ballot was conducted on No- bona fide labor organization. By order dated August 9, vember 16, 1977, among all the Respondent's unit em- 1978, the Regional Director for Region 29. at the request ployees in which 368 votes were cast for the Associ- of the parties, consolidated Cases 29-CA-6398 and 29- ation, 96 votes cast against the participating labor organi- -3989 for the purposes of hearing. zation, and 15 ballots were challenged. On November 23, R 3 f t p o of . 1977, the Respondent filed timely objections to the elec- A h ea ring in t h e consolidated cases was duly held tion alleging, in substance, that the Association is not a b ef o r e m e in B r o o k l y n , N ew Y o r k , c o m m en c ing on No- labor organization within the meaning of the Act be- v e mbe r 27 , 197 8, and concluding on March 23, 1979.6 At cause its actions are controlled, directed, and/or influ- the commencement of the hearing, during its course, and enced by persons who occupy supervisory positions at t h e conclusion thereof, various motions were made by within health care institutions including the Respondent t h e pates.7 In substance these motions were as follows: and that the Board has no jurisdiction, therefore, and if T he Respondent mov e d that its m o tio n to revoke certifi- the Association is a labor organization under the Act, it cation in Case 29-RC-3989 be granted and for dismissal committed "objectionable pre-election conduct" by ob-------- taining employee support under the "false pretense" that^ections" addressed to the Association's status as a bona fide labor or- It is a "professional Organization as distinguished from a ganization "are not objections" as defined in Sec. 102.69 of the Board's union and/or labor organization." The Regional Director Rules and Regulations, Series 8, as amended, and that "Under established for Region 29 on January 23, 1978, issued a report on Bo ard policy, the Employer may revive the issue by a motion to revoke i_ .. *ons i." which i. recommendd ha ti- . h i- r e . the labor organization's certification or in an appropriate unfair labor objections in which he recommended that each of the practice proceeding." Sisters of Charity of Providence. st. Ignatius Province. Respondent's objections be overruled and that a Certifi- d/b/a St. Patrick Hospital, 225 NLRB 799 (1976); Sierra Vista Hospital. supra: Handy Andy, Inc., supra (1) New York State Nurses Association "is not a bona fide labor IT h e u"it foun d appropriate by the Board for the purposes of collec- organization qualified to be the unit employees' exclusive collective tiv e bargaining was: bargaining representative within the meaning of the Act because its All full-time and regular part-time registered professional nurses reg- actions are controlled, directed, dominated and/or influenced by per- ularly scheduled to work 22-1/2 hours or more per week, including sons who occupy supervisory positions within health care institu- all those authorized by permit to practice as registered nurses, em- tions, including Respondent." ployed by the employer at 300 Community Drive, Manhasset, New (2) By demanding that Respondent bargain and enter into a collec- York; excluding all department heads, administrative directors. direc- tive bargaining agreement with the Association, the Association has tors, associate directors, assistant directors, all supervisors, clinical engaged and is engaged in unfair labor practices affecting commerce supervisors, all clinicians, all instructors, all specialists, operating within the meaning of Section 8(bX(XA) and Sections 2(6) and (7) of rooms nurse specialists, all coordinators, head nurses, assistant head the Act. nurses, all casual employees, temporary employees, confidential em- The Respondent filed an amended answer herein on July 24, 1978. ployees, managerial employees, all other employees, and guards and ' The Regional Director for Region 29 denied the motion for the fol- supervisors as defined in the Act. lowing reasons: That it was not timely made since it was filed long after The complaint alleges, the Respondent's answer admits, and, as the Board the election agreement was entered into and approved and there was no previously found in Case 29-RC-3981, I find that the above-described evidence that the issues raised then could not have been raised at the unit is appropriate for the purposes of collective bargaining within the time the election agreement was signed, Nebraska Methodist Hospital, 218 meaning of Sec. 9(b) of the Act. NLRB 619 (1975); that no extraordinary circumstances were present to I The hearing covered 29 days with a record of 3,733 pages and a sub- warrant a hearing at this time and that the Board had found the Associ- stantial number of exhibits. ation to be a labor organization in previous cases and the Respondent had ' It should be noted that the General Counsel maintained a somewhat not indicated that it had any evidence to refute this, albeit it was seeking unique position of "neutrality" concerning both the procedural aspects of to reopen the hearing on the basis that the Association was dominated by the hearing and the substantive issues presented therein despite its burden "management and/or supervisory personnel with respect to its represen- of proof with regard to the allegations set forth in the complaint. Howcv- tation activity and concerning the status of the [Association] as a labor er, counsel for the General Counsel did move at the beginning of the organization," Catholic Medical Center of Brooklyn and Quees Inc.. St. hearing to strike the second affirmative defense in the Respondent's John's Hospital Division, Case 29-RC-3738; Maimonides Hospital Center, answer which alleges that by demanding bargaining and the execution of Cae 29-UC-89; The New York State Nurses Association, 232 NLRB 849 a collective-bargaining agreement the Association engaged in unfair labor (1977); and that, in the event that the Association is certified by the practices within the meaning of Sees. 8(b)(X1A) and 2(6) and (7) of the Board, a motion to revoke the certification could be filed or the issue Act. I reserved decision on this motion. As the reason therefor will considered in an appropriate unfair labor practice proceeding. Sierra Vista become apparent from the subsequent discussion herein of the issues in Hospital. Inc., 225 NLRB 1086 (1976); Handy Andy. Inc., 228 NLRB 447 this case. I find the Respondent's second affirmative defense to be with- (1977). out merit and grant the motion to strike this defense. NORTH SHORE UNIVERSITY HOSPITAL 853 Prior thereto, on September 26, 1977, the Association cation of Representative issue to the Association. 4 The had filed a petition for certification of representative Respondent filed no exceptions to the report on objec- with the Board in Case 29-RC-3989 seeking an election tions. among all the Respondent's full-time and regular part- The Board on February 21, 1978, certified the Associ- time registered professional nurses and persons author- ation as the exclusive representative of all the employees ized by permit to practice as registered professional in the appropriate unit with respect to rates of pay, nurses excluding "managerial, confidential and supervi- wages, hours of employment, and other terms and condi- sory employees as defined by the Act, guards, watchmen tions of employment." and all other employees." The parties executed a Stipula- On July 17, 1978, the Respondent filed a motion to tion f o r C e r tifi c a tio n Upon Consent Election on October revoke certification in Case 29-RC-3989 alleging inter 7, 1977. By order dated November 11, 1977, the Region- alia that the Association is "influenced, dominated and al Director for Region 29 denied the Respondent's controlled by supervisors who serve as both officers and motion to reopen the hearing in Case 29-RC-3989 or in directors of the Association, which [the Association] has the alternative to withdraw from the Stipulation for Cer- not delegated its bargaining authority to an autonomous tification Upon Consent Election.3 local chapter" and therefore that the Association is not a An election by secret ballot was conducted on No- bona fide labor organization. By order dated August 9, vember 16, 1977, among all the Respondent's unit em- 1978, the Regional Director for Region 29. at the request ployees in which 368 votes were cast for the Associ- of the parties, consolidated Cases 29-CA-6398 and 29- ation, 96 votes cast against the participating labor organi- -3989 for the purposes of hearing. zation, and 15 ballots were challenged. On November 23, R 3 f t p o of hearing. 1977, the Respondent filed timely objections to the elec- A h ea ring in t h e consolidated cases was duly held tion alleging, in substance, that the Association is not a b ef o r e m e in B r o o k l y n , N ew Y o r k , c o m m en c ing on No- labor organization within the meaning of the Act be- v e mbe r 27 , 197 8, and concluding on March 23, 1979.6 At cause its actions are controlled, directed, and/or influ- the commencement of the hearing, during its course, and enced by persons who occupy supervisory positions at t h e conclusion thereof, various motions were made by within health care institutions including the Respondent t h e pates.7 In substance these motions were as follows: and that the Board has no jurisdiction, therefore, and if T he Respondent moved that its m o tio n to revoke certifi- the Association is a labor organization under the Act, it cation in Case 29-RC-3989 be granted and for dismissal committed "objectionable pre-election conduct" by ob-------- taining employee support under the "false pretense" that^ections" addressed to the Association's status as a bona fide labor or- It is a "professional Organization as distinguished from a ganization "are not objections" as defined in Sec. 102.69 of the Board's union and/or labor organization." The Regional Director Rules and Regulations, Series 8, as amended, and that "Under established for Region 29 on January 23, 1978, issued a report on Bo ard policy, the Employer may revive the issue by a motion to revoke objecti_ ns .. * hich ..* , ecommended that .ah of .. .the labor organization's certification or in an appropriate unfair labor objections in which he recommended that each of the practice proceeding." Sisters of Charity of Providence. st. Ignatius Province. Respondent's objections be overruled and that a Certifi- d/b/a St. Patrick Hospital, 225 NLRB 799 (1976); Sierra Vista Hospital. supra: Handy Andy, Inc., supra (1) New York State Nurses Association "is not a bona fide labor IT h e u"it foun d appropriate by the Board for the purposes of collec- organization qualified to be the unit employees' exclusive collective tiv e bargaining was: bargaining representative within the meaning of the Act because its All full-time and regular part-time registered professional nurses reg- actions are controlled, directed, dominated and/or influenced by per- ularly scheduled to work 22-1/2 hours or more per week, including sons who occupy supervisory positions within health care institu- all those authorized by permit to practice as registered nurses, em- tions, including Respondent." ployed by the employer at 300 Community Drive, Manhasset, New (2) By demanding that Respondent bargain and enter into a collec- York; excluding all department heads, administrative directors. direc- tive bargaining agreement with the Association, the Association has tors, associate directors, assistant directors, all supervisors, clinical engaged and is engaged in unfair labor practices affecting commerce supervisors, all clinicians, all instructors, all specialists, operating within the meaning of Section 8(bX(XA) and Sections 2(6) and (7) of rooms nurse specialists, all coordinators, head nurses, assistant head the Act. nurses, all casual employees, temporary employees, confidential em- The Respondent filed an amended answer herein on July 24, 1978. ployees, managerial employees, all other employees, and guards and ' The Regional Director for Region 29 denied the motion for the fol- supervisors as defined in the Act. lowing reasons: That it was not timely made since it was filed long after The complaint alleges, the Respondent's answer admits, and, as the Board the election agreement was entered into and approved and there was no previously found in Case 29-RC-3981, I find that the above-described evidence that the issues raised then could not have been raised at the unit is appropriate for the purposes of collective bargaining within the time the election agreement was signed, Nebraska Methodist Hospital, 218 meaning of Sec. 9(b) of the Act. NLRB 619 (1975); that no extraordinary circumstances were present to I The hearing covered 29 days with a record of 3,733 pages and a sub- warrant a hearing at this time and that the Board had found the Associ- stantial number of exhibits. ation to be a labor organization in previous cases and the Respondent had ' It should be noted that the General Counsel maintained a somewhat not indicated that it had any evidence to refute this, albeit it was seeking unique position of "neutrality" concerning both the procedural aspects of to reopen the hearing on the basis that the Association was dominated by the hearing and the substantive issues presented therein despite its burden "management and/or supervisory personnel with respect to its represen- of proof with regard to the allegations set forth in the complaint. Howcv- tation activity and concerning the status of the [Association] as a labor er, counsel for the General Counsel did move at the beginning of the organization," Catholic Medical Center of Brooklyn and Quees Inc.. St. hearing to strike the second affirmative defense in the Respondent's John's Hospital Division, Case 29-RC-3738; Maimonides Hospital Center, answer which alleges that by demanding bargaining and the execution of Cae 29-UC-89; The New York State Nurses Association, 232 NLRB 849 a collective-bargaining agreement the Association engaged in unfair labor (1977); and that, in the event that the Association is certified by the practices within the meaning of Sees. 8(b)(X1A) and 2(6) and (7) of the Board, a motion to revoke the certification could be filed or the issue Act. I reserved decision on this motion. As the reason therefor will considered in an appropriate unfair labor practice proceeding. Sierra Vista become apparent from the subsequent discussion herein of the issues in Hospital. Inc., 225 NLRB 1086 (1976); Handy Andy. Inc., 228 NLRB 447 this case. I find the Respondent's second affirmative defense to be with- (1977). out merit and grant the motion to strike this defense. NORTH SHORE UNIVERSITY HOSPITAL 853 Prior thereto, on September 26, 1977, the Association cation of Representative issue to the Association. 4 The had filed a petition for certification of representative Respondent filed no exceptions to the report on objec- with the Board in Case 29-RC-3989 seeking an election tions. among all the Respondent's full-time and regular part- The Board on February 21, 1978, certified the Associ- time registered professional nurses and persons author- ation as the exclusive representative of all the employees ized by permit to practice as registered professional in the appropriate unit with respect to rates of pay, nurses excluding "managerial, confidential and supervi- wages, hours of employment, and other terms and condi- sory employees as defined by the Act, guards, watchmen tions of employment." and all other employees." The parties executed a Stipula- On July 17, 1978, the Respondent filed a motion to tion f o r C e r tifi c a tio n Upon Consent Election on October revoke certification in Case 29-RC-3989 alleging inter 7, 1977. By order dated November 11, 1977, the Region- alia that the Association is "influenced, dominated and al Director for Region 29 denied the Respondent's controlled by supervisors who serve as both officers and motion to reopen the hearing in Case 29-RC-3989 or in directors of the Association, which [the Association] has the alternative to withdraw from the Stipulation for Cer- not delegated its bargaining authority to an autonomous tification Upon Consent Election.3 local chapter" and therefore that the Association is not a An election by secret ballot was conducted on No- bona fide labor organization. By order dated August 9, vember 16, 1977, among all the Respondent's unit em- 1978, the Regional Director for Region 29. at the request ployees in which 368 votes were cast for the Associ- of the parties, consolidated Cases 29-CA-6398 and 29- ation, 96 votes cast against the participating labor organi- -3989 for the purposes of hearing. zation, and 15 ballots were challenged. On November 23, R 3 f t p o of hearing. 1977, the Respondent filed timely objections to the elec- A h ea ring in t h e consolidated cases was duly held tion alleging, in substance, that the Association is not a b ef o r e m e in B r o o k l y n , N ew Y o r k , c o m m en c ing on No- labor organization within the meaning of the Act be- v e mbe r 27 , 197 8, and concluding on March 23, 1979.6 At cause its actions are controlled, directed, and/or influ- the commencement of the hearing, during its course, and enced by persons who occupy supervisory positions at t h e conclusion thereof, various motions were made by within health care institutions including the Respondent t h e pates.7 In substance these motions were as follows: and that the Board has no jurisdiction, therefore, and if T he Respondent moved that its m o tio n to revoke certifi- the Association is a labor organization under the Act, it cation in Case 29-RC-3989 be granted and for dismissal committed "objectionable pre-election conduct" by ob-------- taining employee support under the "false pretense" that^ections" addressed to the Association's status as a bona fide labor or- It is a "professional Organization as distinguished from a ganization "are not objections" as defined in Sec. 102.69 of the Board's union and/or labor organization." The Regional Director Rules and Regulations, Series 8, as amended, and that "Under established for Region 29 on January 23, 1978, issued a report on Bo ard policy, the Employer may revive the issue by a motion to revoke i_ .. *ons i." which i. recommendd ha ti- . h i- r e . the labor organization's certification or in an appropriate unfair labor objections in which he recommended that each of the practice proceeding." Sisters of Charity of Providence. st. Ignatius Province. Respondent's objections be overruled and that a Certifi- d/b/a St. Patrick Hospital, 225 NLRB 799 (1976); Sierra Vista Hospital. supra: Handy Andy, Inc., supra (1) New York State Nurses Association "is not a bona fide labor IT h e u"it foun d appropriate by the Board for the purposes of collec- organization qualified to be the unit employees' exclusive collective tiv e bargaining was: bargaining representative within the meaning of the Act because its All full-time and regular part-time registered professional nurses reg- actions are controlled, directed, dominated and/or influenced by per- ularly scheduled to work 22-1/2 hours or more per week, including sons who occupy supervisory positions within health care institu- all those authorized by permit to practice as registered nurses, em- tions, including Respondent." ployed by the employer at 300 Community Drive, Manhasset, New (2) By demanding that Respondent bargain and enter into a collec- York; excluding all department heads, administrative directors. direc- tive bargaining agreement with the Association, the Association has tors, associate directors, assistant directors, all supervisors, clinical engaged and is engaged in unfair labor practices affecting commerce supervisors, all clinicians, all instructors, all specialists, operating within the meaning of Section 8(bX(XA) and Sections 2(6) and (7) of rooms nurse specialists, all coordinators, head nurses, assistant head the Act. nurses, all casual employees, temporary employees, confidential em- The Respondent filed an amended answer herein on July 24, 1978. ployees, managerial employees, all other employees, and guards and ' The Regional Director for Region 29 denied the motion for the fol- supervisors as defined in the Act. lowing reasons: That it was not timely made since it was filed long after The complaint alleges, the Respondent's answer admits, and, as the Board the election agreement was entered into and approved and there was no previously found in Case 29-RC-3981, I find that the above-described evidence that the issues raised then could not have been raised at the unit is appropriate for the purposes of collective bargaining within the time the election agreement was signed, Nebraska Methodist Hospital, 218 meaning of Sec. 9(b) of the Act. NLRB 619 (1975); that no extraordinary circumstances were present to I The hearing covered 29 days with a record of 3,733 pages and a sub- warrant a hearing at this time and that the Board had found the Associ- stantial number of exhibits. ation to be a labor organization in previous cases and the Respondent had ' It should be noted that the General Counsel maintained a somewhat not indicated that it had any evidence to refute this, albeit it was seeking unique position of "neutrality" concerning both the procedural aspects of to reopen the hearing on the basis that the Association was dominated by the hearing and the substantive issues presented therein despite its burden "management and/or supervisory personnel with respect to its represen- of proof with regard to the allegations set forth in the complaint. Howcv- tation activity and concerning the status of the [Association] as a labor er, counsel for the General Counsel did move at the beginning of the organization," Catholic Medical Center of Brooklyn and Quees Inc.. St. hearing to strike the second affirmative defense in the Respondent's John's Hospital Division, Case 29-RC-3738; Maimonides Hospital Center, answer which alleges that by demanding bargaining and the execution of Cae 29-UC-89; The New York State Nurses Association, 232 NLRB 849 a collective-bargaining agreement the Association engaged in unfair labor (1977); and that, in the event that the Association is certified by the practices within the meaning of Sees. 8(b)(X1A) and 2(6) and (7) of the Board, a motion to revoke the certification could be filed or the issue Act. I reserved decision on this motion. As the reason therefor will considered in an appropriate unfair labor practice proceeding. Sierra Vista become apparent from the subsequent discussion herein of the issues in Hospital. Inc., 225 NLRB 1086 (1976); Handy Andy. Inc., 228 NLRB 447 this case. I find the Respondent's second affirmative defense to be with- (1977). out merit and grant the motion to strike this defense. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the complaint in Case 29-CA-6398; the Association remedy the Association seeks therein, as hereinafter set moved for a dismissal of the Respondent's motion to forth. revoke certification and that the complaint herein be sus- Upon the entire record and the briefs of the parties, tained, seeking a bargaining order and several extraordi- and upon my observation of the witnesses, I make the nary remedies in addition thereto. I initially denied these following: motions and upon the renewal thereof reserved decision thereon. The Respondent also moved to amend the first FINDINGS OF FACT affirmative defense in its amended answer and its motion to revoke certification to include therein "managerial" as I. THE BUSINESS OF THE RESPONDENT well as "supervisory" employees in alleging unlawful The Respondent, at all times material herein, has been control, direction, domination, and/or influence of the a corporation organized under and existing by virtue of Association by persons occupying such positions within the laws of the State of New York, maintaining its prin- health care instituti ones cipal office and place Respondents hof business at 300 Community tal. I granted the Respondent's motion to amend. Drive, in the town of Manhasset, county of Nassau, and All parties were afforded full opportunity to appear, to State of New York, where it is, and has been at all times introduce evidence, to examine and cross-examine wit- material herein, continuously engaged in the operation of nesses, to argue orally on the record, and to file briefs. a hospital and in providing hospital and health care serv- Thereafter, briefs were filed by the Respondent and the ices and related services. In the course and conduct of Association." In its brief the Respondent seeks dismissal the Respondent's business operations during the preced- of the complaint and the granting of its motion to revoke ing 12 months, these operations being representative of the Association's certification. The Association in its the operations at all times material herein, the Respond- brief asserts that ent derived gross revenues therefrom in excess of . . the Hospital's Motion to Revoke the Associ- $250,000 and purchased and caused to be transported and ation's Certification should be denied and the Hos- delivered to its Manhasset hospital medical supplies, pital should be ordered to bargain in good faith goods, and equipment valued in excess of $50,000 in in- with the Association. In addition, as the Hospital's terstate commerce directly from States of the United "domination" defense is plainly frivolous, the Asso- States other than the State of New York. The complaint ciation should be awarded the extraordinary relief alleges, the Respondent admits, and I find that the Re- specified at p. 78, supra or alternatively, the record spondent is now, and has been at all times material should be reopened to receive the evidence of the herein, an employer engaged in commerce within the Hospital's election interference and unfair labor meaning of Section 2(2), (6), and (7) of the Act. practices specified in the Association's offer of proof, pp. 79-82, supra.9 II. THE LABOR ORGANIZATION INVOLVED For the reasons hereinafter set forth I deny the Respond- The Respondent alleges that the New York State ent's motions both to revoke certification in Case 29- Nurses Association, RC-3989 and to dismiss the complaint in Case 39-CA- 6398 in their entirety, and grant the Association's mo- .. is not a bona fide labor organization qualified to tions concerning the above but only in part as to the be the unit employees' exclusive collective bargain- ing representative within the meaning of the Act Robert H. Jones Ill, counsel for the Association, died on October 24, because its actions are controlled, directed, domi- 1979, and in view of this and the length of the record in this proceeding, nated and/or influenced by persons who occupy su- the Association's time to file briefs was extended to April 17, 1980. pervisory and/or management positions within The following extraordinary remedies are sought by the Association: health care institutions and/or other institutions. (1) expenses incurred in the investigation, preparation, presenta- tion, and conduct of these cases, including reasonable counsel fees, The Respondent therefore maintains that since the Asso- witness fees, transcript and record costs, travel expenses and per ciation is not a "bona fide" organization under the Act 0 diem, and other reasonable costs and expenses; (2) the Hospital should be ordered to mail copies of the "Notice to i cannot be forced to bargain" with the Association. Employees" to each of the employees in the bargaining unit at his or The Respondent further asserts that the Association is her home; not, albeit its certification by the Board as the bargaining (3) the Hospital's Personnel Administrator should be ordered per- representative of the Respondent's nurses in an appropri- sonally to read the "Notice to Employees" to the members of the bargaining unit of the Hospital, in the presence of representatives of- the Association and the Board; tive of a unit which is dominated, controlled and influ- (4) the Association should be granted access to the Hospital's bul- enced by supervisors both at (North Shore University letin boards and premises during the entire period of contract negoti- Hospital] and at other institutions through the [Associ- ations;iation contends that it is a labor orga- (5) all terms of any contract agreed to in collective bargaining, in- cluding but not limited to wages and benefits, should be made retro- nization within the meaning of the Act and as such is active to the date of the election; fully qualified to act as the collective-bargaining repre- (6) the Hospital should be ordered to reimburse the Association sentative of the nurses' unit at the Respondent's hospital for lost dues and initiation fees since the election and to reimburse employee-members who have paid such dues and initiation fees to pursuant to the Board's certification thereof. the Association while the Hospital was engaged in its unlawful refus- al to bargain. ' Sec. 2(5) of the Act, as amended. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the complaint in Case 29-CA-6398; the Association remedy the Association seeks therein, as hereinafter set moved for a dismissal of the Respondent's motion to forth. revoke certification and that the complaint herein be sus- Upon the entire record and the briefs of the parties, tained, seeking a bargaining order and several extraordi- and upon my observation of the witnesses, I make the nary remedies in addition thereto. I initially denied these following: motions and upon the renewal thereof reserved decision thereon. The Respondent also moved to amend the first FINDINGS OF FACT affirmative defense in its amended answer and its motion to revoke certification to include therein "managerial" as I. THE BUSINESS OF THE RESPONDENT well as "supervisory" employees in alleging unlawful The Respondent, at all times material herein, has been control, direction, domination, and/or influence of the a corporation organized under and existing by virtue of Association by persons occupying such positions within ^ ^ e State of New York, maintaining its prin- health care institutions including the Respondent's hospi- cipal office and place of business at 300 Community tal. I granted the Respondent s motion to amend. Drive, in the town of Manhasset, county of Nassau, and All parties were afforded full opportunity to appear, to State of New York, where it is, and has been at all times introduce evidence, to examine and cross-examine wit- material herein, continuously engaged in the operation of nesses, to argue orally on the record, and to file briefs. a hospital and in providing hospital and health care serv- Thereafter, briefs were filed by the Respondent and the ices and related services. In the course and conduct of Association." In its brief the Respondent seeks dismissal the Respondent's business operations during the preced- of the complaint and the granting of its motion to revoke ing 12 months, these operations being representative of the Association's certification. The Association in its the operations at all times material herein, the Respond- brief asserts that ent derived gross revenues therefrom in excess of ... the Hospital's Motion to Revoke the Associ- $250,000 and purchased and caused to be transported and ation's Certification should be denied and the Hos- delivered to its Manhasset hospital medical supplies, pital should be ordered to bargain in good faith goods, and equipment valued in excess of $50,000 in in- with the Association. In addition, as the Hospital's terstate commerce directly from States of the United "domination" defense is plainly frivolous, the Asso- States other than the State of New York. The complaint ciation should be awarded the extraordinary relief alleges, the Respondent admits, and I find that the Re- specified at p. 78, supra or alternatively, the record spondent is now, and has been at all times material should be reopened to receive the evidence of the herein, an employer engaged in commerce within the Hospital's election interference and unfair labor meaning of Section 2(2), (6), and (7) of the Act. practices specified in the Association's offer of proof, pp. 79-82, supra.9 IL TH E LABOR ORGANIZATION INVOLVED For the reasons hereinafter set forth I deny the Respond- The Respondent alleges that the New York State ent's motions both to revoke certification in Case 29- Nurses Association, RC-3989 and to dismiss the complaint in Case 39-CA- 6398 in their entirety, and grant the Association's mo- ... is no t a b ona fide la bo r organization qualified to tions concerning the above but only in part as to the be the uni t employees' exclusive collective bargain- ing representative within the meaning of the Act *Robert H. Jones HII, counsel for the Association, died on October 24, because its actions are controlled, directed, domi- 1979, and in view of this and the length of the record in this proceeding, nated and/Or influenced by persons who occupy su- the Association's time to file briefs was extended to April 17, 1980. pervisory and/or management positions within The following extraordinary remedies are sought by the Association: health care institutions and/or Other institutions. (1) expenses incurred in the investigation, preparation, presenta- tion, and conduct of these cases, including reasonable counsel fees, The Respondent therefore maintains that since the Asso- witness fees transcript and record costs, travel expenses and per ciation is not a "bona fide" organization under the Act' diem, and other reasonable costs and expenses; , . „. r -i * i- * i- t * . (2) the Hospital should be ordered to mail copies of the "Notice to li c a nn o t b e f o rc e d t o bargain" with the Association. Employees" to each of the employees in the bargaining unit at his or The Respondent further asserts that the Association is her home; not, albeit its certification by the Board as the bargaining (3) the Hospital's Personnel Administrator should be ordered per- representative of the Respondent's nurses in an appropri- sonally to read the "Notice to Employees" to the members of the aeuiLqaiidt eantebrann ersna bargaining unit of the Hospital, in the presence of representativesf unit "qualified to remain the bargaining representa- the Association and the Board; tive of a unit which is dominated, controlled and influ- (4) the Association should be granted access to the Hospital's bul- enced by supervisors both at (North Shore University letin boards and premises during the entire period of contract negoti- Hospital] and at Other institutions through the [Associ- ations; ation]." Ile Association contends that it is a labor orga- (5) a11 terms of any contract agreed to in collective bargaining, in- . s cluding but not limited to wages and benefits, should be made retro- nization Within the meaning of the Act and as such is active to the date of the election; fully qualified to act as the collective-bargaining repre- (6) the Hospital should be ordered to reimburse the Association sentative of the nurses' unit at the Respondent's hospital for lost dues and initiation fees since the election and to reimburse employee-members who have paid such dues and initiation fees to pursuant to the Board's certification thereof. the Association while the Hospital was engaged in its unlawful refus- al to bargain. '° Sec. 2(5) of the Act, as amended. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the complaint in Case 29-CA-6398; the Association remedy the Association seeks therein, as hereinafter set moved for a dismissal of the Respondent's motion to forth. revoke certification and that the complaint herein be sus- Upon the entire record and the briefs of the parties, tained, seeking a bargaining order and several extraordi- and upon my observation of the witnesses, I make the nary remedies in addition thereto. I initially denied these following: motions and upon the renewal thereof reserved decision thereon. The Respondent also moved to amend the first FINDINGS OF FACT affirmative defense in its amended answer and its motion to revoke certification to include therein "managerial" as I. THE BUSINESS OF THE RESPONDENT well as "supervisory" employees in alleging unlawful The Respondent, at all times material herein, has been control, direction, domination, and/or influence of the a corporation organized under and existing by virtue of Association by persons occupying such positions within ^ the State of New York, maintaining its prin- health care institutions including the Respondent's hospi-mcipal office and place of business at 300 Community tal. I granted the Respondent s motion to amend. Drive, in the town of Manhasset, county of Nassau, and All parties were afforded full opportunity to appear, to State of New York, where it is, and has been at all times introduce evidence, to examine and cross-examine wit- material herein, continuously engaged in the operation of nesses, to argue orally on the record, and to file briefs. a hospital and in providing hospital and health care serv- Thereafter, briefs were filed by the Respondent and the ices and related services. In the course and conduct of Association." In its brief the Respondent seeks dismissal the Respondent's business operations during the preced- of the complaint and the granting of its motion to revoke ing 12 months, these operations being representative of the Association's certification. The Association in its the operations at all times material herein, the Respond- brief asserts that ent derived gross revenues therefrom in excess of ... the Hospital's Motion to Revoke the Associ- $250,000 and purchased and caused to be transported and ation's Certification should be denied and the Hos- delivered to its Manhasset hospital medical supplies, pital should be ordered to bargain in good faith goods, and equipment valued in excess of $50,000 in in- with the Association. In addition, as the Hospital's terstate commerce directly from States of the United "domination" defense is plainly frivolous, the Asso- States other than the State of New York. The complaint ciation should be awarded the extraordinary relief alleges, the Respondent admits, and I find that the Re- specified at p. 78, supra or alternatively, the record spondent is now, and has been at all times material should be reopened to receive the evidence of the herein, an employer engaged in commerce within the Hospital's election interference and unfair labor meaning of Section 2(2), (6), and (7) of the Act. practices specified in the Association's offer of proof, pp. 79-82, supra.9 IL TH E LABOR ORGANIZATION INVOLVED For the reasons hereinafter set forth I deny the Respond- The Respondent alleges that the New York State ent's motions both to revoke certification in Case 29- Nurses Association, RC-3989 and to dismiss the complaint in Case 39-CA- 6398 in their entirety, and grant the Association's mo- ... is no t a b ona fide la bo r organization qualified to tions concerning the above but only in part as to the be the un it employees' exclusive collective bargain- ing representative within the meaning of the Act *Robert H. Jones HII, counsel for the Association, died on October 24, because its actions are controlled, directed, domi- 1979, and in view of this and the length of the record in this proceeding, nated and/Or influenced by persons who occupy su- the Association's time to file briefs was extended to April 17, 1980. pervisory and/or management positions within The following extraordinary remedies are sought by the Association: health care institutions and/or Other institutions. (1) expenses incurred in the investigation, preparation, presenta- tion, and conduct of these cases, including reasonable counsel fees, The Respondent therefore maintains that since the Asso- witness fees transcript and record costs, travel expenses and per ciation is not a "bona fide" organization under the Act' diem, and other reasonable costs and expenses; , . „. r -i * i- * i- t * . (2) the Hospital should be ordered to mail copies of the "Notice to li c a nn o t b e f o rc e d t o bargain" with the Association. Employees" to each of the employees in the bargaining unit at his or The Respondent further asserts that the Association is her home; not, albeit its certification by the Board as the bargaining (3) the Hospital's Personnel Administrator should be ordered per- representative of the Respondent's nurses in an appropri- sonally to read the "Notice to Employees" to the members of the aeuiLqaiidt eantebrann ersna bargaining unit of the Hospital, in the presence of representativesf ate unit "qualified to remain the bargaining representa- the Association and the Board; tive of a unit which is dominated, controlled and influ- (4) the Association should be granted access to the Hospital's bul- enced by supervisors both at (North Shore University letin boards and premises during the entire period of contract negoti- Hospital] and at Other institutions through the [Associ- ations; ation]." Ile Association contends that it is a labor orga- (5) a11 terms of any contract agreed to in collective bargaining, in- . s cluding but not limited to wages and benefits, should be made retro- nization Within the meaning of the Act and as such is active to the date of the election; fully qualified to act as the collective-bargaining repre- (6) the Hospital should be ordered to reimburse the Association sentative of the nurses' unit at the Respondent's hospital for lost dues and initiation fees since the election and to reimburse employee-members who have paid such dues and initiation fees to pursuant to the Board's certification thereof. the Association while the Hospital was engaged in its unlawful refus- al to bargain. '° Sec. 2(5) of the Act, as amended. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the complaint in Case 29-CA-6398; the Association remedy the Association seeks therein, as hereinafter set moved for a dismissal of the Respondent's motion to forth. revoke certification and that the complaint herein be sus- Upon the entire record and the briefs of the parties, tained, seeking a bargaining order and several extraordi- and upon my observation of the witnesses, I make the nary remedies in addition thereto. I initially denied these following: motions and upon the renewal thereof reserved decision thereon. The Respondent also moved to amend the first FINDINGS OF FACT affirmative defense in its amended answer and its motion to revoke certification to include therein "managerial" as I. THE BUSINESS OF THE RESPONDENT well as "supervisory" employees in alleging unlawful The Respondent, at all times material herein, has been control, direction, domination, and/or influence of the a corporation organized under and existing by virtue of Association by persons occupying such positions within e laws of the State of New York, maintaining its prin- health care institutions including the Respondent's hospi-mcipal office and place of business at 300 Community tal. I granted the Respondent s motion to amend. Drive, in the town of Manhasset, county of Nassau, and All parties were afforded full opportunity to appear, to State of New York, where it is, and has been at all times introduce evidence, to examine and cross-examine wit- material herein, continuously engaged in the operation of nesses, to argue orally on the record, and to file briefs. a hospital and in providing hospital and health care serv- Thereafter, briefs were filed by the Respondent and the ices and related services. In the course and conduct of Association." In its brief the Respondent seeks dismissal the Respondent's business operations during the preced- of the complaint and the granting of its motion to revoke ing 12 months, these operations being representative of the Association's certification. The Association in its the operations at all times material herein, the Respond- brief asserts that ent derived gross revenues therefrom in excess of ... the Hospital's Motion to Revoke the Associ- $250,000 and purchased and caused to be transported and ation's Certification should be denied and the Hos- delivered to its Manhasset hospital medical supplies, pital should be ordered to bargain in good faith goods, and equipment valued in excess of $50,000 in in- with the Association. In addition, as the Hospital's terstate commerce directly from States of the United "domination" defense is plainly frivolous, the Asso- States other than the State of New York. The complaint ciation should be awarded the extraordinary relief alleges, the Respondent admits, and I find that the Re- specified at p. 78, supra or alternatively, the record spondent is now, and has been at all times material should be reopened to receive the evidence of the herein, an employer engaged in commerce within the Hospital's election interference and unfair labor meaning of Section 2(2), (6), and (7) of the Act. practices specified in the Association's offer of proof, pp. 79-82, supra.9 IL TH E LABOR ORGANIZATION INVOLVED For the reasons hereinafter set forth I deny the Respond- The Respondent alleges that the New York State ent's motions both to revoke certification in Case 29- Nurses Association, RC-3989 and to dismiss the complaint in Case 39-CA- 6398 in their entirety, and grant the Association's mo- ... is no t a b ona fide labor organization qualified to tions concerning the above but only in part as to the be the un it employees' exclusive collective bargain- ing representative within the meaning of the Act *Robert H. Jones HII, counsel for the Association, died on October 24, because its actions are controlled, directed, domi- 1979, and in view of this and the length of the record in this proceeding, nated and/Or influenced by persons who occupy su- the Association's time to file briefs was extended to April 17, 1980. pervisory and/or management positions within The following extraordinary remedies are sought by the Association: health care institutions and/or Other institutions. (1) expenses incurred in the investigation, preparation, presenta- tion, and conduct of these cases, including reasonable counsel fees, The Respondent therefore maintains that since the Asso- witness fees transcript and record costs, travel expenses and per ciation is not a "bona fide" organization under the Act' diem, and other reasonable costs and expenses; , . „. r -i * i- * i- t * . (2) the Hospital should be ordered to mail copies of the "Notice to li c a n n o t b e f o rc e d t o bargain" With the Association. Employees" to each of the employees in the bargaining unit at his or The Respondent further asserts that the Association is her home; not, albeit its certification by the Board as the bargaining (3) the Hospital's Personnel Administrator should be ordered per- representative of the Respondent's nurses in an appropri- sonally to read the "Notice to Employees" to the members of the aeuiLqaiidt eantebrann ersna bargaining unit of the Hospital, in the presence of representativesf ate unit "qualified to remain the bargaining representa- the Association and the Board; tive of a unit which is dominated, controlled and influ- (4) the Association should be granted access to the Hospital's bul- enced by supervisors both at (North Shore University letin boards and premises during the entire period of contract negoti- Hospital] and at Other institutions through the [Associ- ations; ation]." Ile Association contends that it is a labor orga- (5) a11 terms of any contract agreed to in collective bargaining, in- . s cluding but not limited to wages and benefits, should be made retro- nization Within the meaning of the Act and as such is active to the date of the election; fully qualified to act as the collective-bargaining repre- (6) the Hospital should be ordered to reimburse the Association sentative of the nurses' unit at the Respondent's hospital for lost dues and initiation fees since the election and to reimburse employee-members who have paid such dues and initiation fees to pursuant to the Board's certification thereof. the Association while the Hospital was engaged in its unlawful refus- al to bargain. '° Sec. 2(5) of the Act, as amended. NORTH SHORE UNIVERSITY HOSPITAL 855 The question of statutory labor organization status is, 11. THE UNFAIR LABOR PRACTICES'L however, distinct from the question of a statutory labor i , i , organization's qualifications to act as a bargaining repre- The complaint alleges 8(a substancea that the Respond- sentative in all instances and without regard to the cir- e n t v o a t e e c t o n 5) a n d 1) o f t h e c t r e f u s - cumstances under which bargaining takes place or will take place." As the Board held in Sierra Vista Hospital, The Association in it brief aserts that: Inc. 241 NLRB 631 (1979): The Hospital in this proceeding is seeking to raise issues concerning the propriety of the Association's representation of its registered [T]he mere presence of supervisors in a labor orga- nurses long after those very issues were waived by the Hospital by nization is virtually irrelevant to determining status its entering into the Stipulation for Certification Upon Consent Elec- of tche Act. ndeed, we hA tion. To even consider the merits of the Hospital's contention at this under Section 2(5) of the Act. Indeed, we have, time would violate a long line of NLRB decisions forbidding the with court approval, uniformly construed Section wasteful practice of litigating allegations which could have been as- 2(5) to reach all associations which exist for the serted but which were waived by an employer. The fact is that the purpose, in whole or in part, of collective bargain- Hospital, with competent legal counsel advising it, stipulated to an election. ing and which admit employees to membership, de- A respondent in a Section 8(aXS) proceeding is not entitled to reli- spite the fact that supervisors, in addition to em- tigate issues which were or could have been litigated in the prior ployees and even in substantial numbers, may like- representation proceeding. wise be admitted. 14 The Association cites a multitude of cases in support of its assertion which correctly stand for the proposition against relitigation, i.e., R. W As long as nurse-employees participate in the asso- Harmon d Sons, Inc, 246 NLRB 223 (1979); H. M. Patterin d Son Inc. ciation and one of its purposes is representing em- 245 NLRB 1412 (1979); The Standard Register Company, 243 NLRB 300 ployees in collective bargaining, a nurses' associ- (1979); Colorflo Decorator Produts Inc., 240 NLRB 1134 (1979); Gould ation, like any other, meets the definition of "labor Inc, Electrical Components Division, 237 NLRB 66 (1978). ation, like any othemestedfnio of"aHowever, the Board's Supplemental Decision and Order in Sierra Vista organization" in Section 2(5) of the Act.[ 1] Hospital Inc., supra, compels a rejection of the Association's above con- tention in this matter. A procedural account of what transpired in the 14 International Organitation of Master Uates and Plots of various Sierra Vista Hospital caes is instructive: Ineaonal Organian of Master Mates and Pilos O After a hearing held in Cases -RC-3166 the Regional Director direct- America Inc., AFL-CIO (Chicago Camet Stevedoring Ca, Inc.), LAmerica, Inc AFL-CIO (Chicago Calumet Stevedoring Ca, Inc.), ed an election in a unit consisting of registered nurses. Sierra Vista Hos- 144 NLKR~B 1172,~ 1177 (9163). pital, Inc., the employer therein, filed a request for review of the Region- The evidence herein clearly shows that the Associ- al Director's decision. The Board denied the employer's request for ation is an organization in which employees meaningfully review "as it raised no substantial issues," and noted that "in the event the Petitioner is certified and does not delegate its bargaining authority to participate and which exists in part for the purpose of local autonomous chapter controlled by nonsupervisory employees, a dealing with employers concerning wages, hours, and motion to revoke the certification will be entertained." The election was terms and conditions of employment; and that it has, in held, the California Nurses Association (CNA) won, and the Board certi- fact, negotiated collective-bargaining agreements with fled it as the exclusive collective-bargaining representative of the employ- er's registered nurses in an appropriate unit. The employer then filed with employers. Accordingly, I find that the New York the Board a motion to revoke certification alleging that the CNA had State Nurses Association is, and has been at all times ma- failed to delegate its bargaining authority to a local autonomous chapter terial herein, a labor organization within the meaning of controlled by nonsupervisory employees. The Board remanded the case Section 2(5) of the Act. 1 to the Regional Director to adduce further evidence, particularly con- cerning the CNA's negotiating procedure and the degree of participation of supervisory nurses in the bargaining process. Thereafter the Board " The isue of the Association's qualifications to act as the bargaining denied the employer's motion to revoke certification as being unmeritor- representative of the Respondent's nurses in an appropriate unit will be iou. (225 NLRB 1086 (1976).) considered in a different part of this Decision. The employer refused to bargain with CNA, and the latter consequent- "Abington Memorial Hospital, 250 NLRB 682 (1980); N. T. Enloe Me- ly filed a charge in Case 31-CA-5760, upon which the Regional Director mortal Hospital, 250 NLRB 583 (1980); Lodi Memorial Hospital Associ- isued a complaint alleging that the employer had violated Sec. 8(aX5) atlon, Inc, 249 NLRB 786 (1980); Albert Einstein Medical Center, 248 and (1) of the Act. Thereafter, the General Counsel filed a Motion for NLRB 63 (1980); Lancaster steopathic Hospital Association, Inc, 246 Summary Judgment, which was granted by the Board (229 NLRB 232, NLRB 600 (1979); Oak Ridge Hospital of the United Methodist Church, 233 (1977)). The Board stated therein: 220 NLRB 49 (1975); Carle Clinic Association, 192 NLRB 512 (1971). A220 NLRB 49 (1975); Care Clinic Association, 192 NLRB 512 (1971). It thus appears that Respondent is attempting to raie in the instant Also see Say-On Drugs. Inc., 243 NLRB 859 (1979). unfair labor practice proceeding matters which were raised and re- 's Catheryne Welch, the Association's deputy director for programs, sunderlying reproceeding matten c h we re solved in the underlying rresentation -se. testified uncontradictedly that at the time of the hearing the Association It is well settled that in the absence of newly discovered or previ- had about 29,000 registered professional nurse members of whom sly aalalepdence o l iuman repod proximately 25,000 are represented by it for purposes of collective bar- procu ding alleging a violation of Section 8(c) is not entitled to gaining in approximately 115 bargaining units at public and private heallegig a violtion of Section St )() is not enttled to gaining in approximately II5 bargaining units at public and private helth relitigate issues which were or could have been litigated in a prior care and related facilities located throughout New York State. Further, representation proceeding.h ee o f c he above circumstante were the Asociation's certificate of incorporation was amended in or about shown to be preen o o t pplicbble.o 1950 to add, as an additional purpoe, the power to act as the collective- bargaining representative of registered professional nures with their em- ployen concerning wages, hours, and terms and conditions of employ- 'See Pittsburh Plate Glass Co v. N.LR.B, 313 U.S. 146 162 ment. Alo see Welch's testimony regarding the participation of the (1941); Rules nd Regulations of the Bord, Sec. 102.67( and nurses in the collective-bargaining process as will be more fully set forth 102.69(c). hereinafter. Thereafter in view of the decision of the United States Court of Ap- " Additionally, it should be noted that the Board has previously found peals for the Fourth Circuit in N LR.B v. Annapolis Emergency Hospital The Association to be a labor organization within the meaning of the Association, Inc., d/b/a Anne Arundel General Hospital, 561 F.2d 524 Act. The New York State Nurses Association, 232 NLRB 849 (1977). Also (1977), the Board requested the Court of Appeals for the Ninth Circuit, ee Lutheran Medical Center, Cae 29-RC-4543 (1979); Jewish Hospital before which the Sierra Vista Hospita Inc., case (Cae 31-CA-5750) was Medical Center of Brooklyn Nursing Home, Cse 29-RC-4528 (1979); The now pending vis-a-vis, petition and cross-petition for review and for en- Catholic Medical Center of Brooklyn and Queens Inc. St. John's Queens forcement, respectively, to remand the case to the Board for reconsider- Hspital Division, Case 29-RC-3738 (1977). Continued NORTH SHORE UNIVERSITY HOSPITAL 855 The question of statutory labor organization status is, 11. THE UNFAIR LABOR PRACTICES"s however, distinct from the question of a statutory labor The c a g in s a ta t s organization's qualifications to act as a bargaining repre- T h e complaint alleges8 m substanced that the Rbspond- sentative in all instances and without regard to the cir- en t v lo la te d S ec t lo n ^X 5) an d <1) o f t h e A c t b v re f us- cumstances under which bargaining takes place or will take place." As the Board held in Sierra Vista Hospital, T he Association in its brief asserts that: Inc. 241 NLRB 631 (1979): The Hospital in this proceeding is seeking to raise issues concerning the propriety of the Association's representation of its registered [T]he mere presence of supervisors in a labor orga- nurses long after those very issues were waived by the Hospital by nization is virtually irrelevant to determining status its entering int o the Stipulation for Certification Upon Consent Elec- A t o n. T o even consider the merits of the Hospital's contention at this under Section 2(5) of the Act. Indeed, we have, ,'ime would violate a long line of NLRB decisions forbidding the With court approval, Uniformly Construed Section wasteful practice of litigating allegations which could have been as- 2(5) to reach all associations which exist for the serted but which were waived by an employer. The fact is that the purpose, in whole or in part, of collective bargain- HosPi'tal wit h competent legal counsel advising it, stipulated to an election. ing and which admit employees to membership, de- A respondent in a Section 8(aX5) proceeding is not entitled to reli- spite the fact that supervisors, in addition to em- tigate issues which were or could have been litigated in the prior ployees and even in substantial numbers, may like- representation proceeding. wise be admitted. 14 The Association cites a multitude of cases in support of its assertion which correctly stand for the proposition against relitigation, i.e., R. W. As long as nurse-employees participate in the asso- Harmon d Sons, Inc, 246 NLRB 223 (1979); H. M. Plaitron & Son Inc. ciation and one of its purposes is representing em- 245 NLRB 1412 (1979); The Standard Register Company, 243 NLRB 300 ployees in collective bargaining, a nurses' associ- (1979); Colorflo Decorator Products inc., 240 NLRB 113 (1979); Gould . in, .ike ,ny ,ther, ceets ... ,efinition ,„ .labor Inc, Electrical Components Division, 237 NLRB 66 (1978). ation, like any Other, meets the definition of "labor However, the Board's Supplemental Decision and Order in Sierra Vista Organization" in Section 2(5) of the Act.[ 12]Hospital. Inc., supm, compels a rejection of the Association's above con- tention in this matter. A procedural account of what transpired in the various Sierra Vista Hospital cass is instructive: International Organization of Masters, Mates and Pilots of^After a hering held in Caes I-RC-3166 the Regional Director direct- America, Inc, AFL-CIO (Chicago Calumet Stevedoring Ca, Inc.), ed an election in a unit consisting of registered nurses. Sierra Vista Hos- 144 NLRB 1172,1177 (163). pital, Inc., the employer therein, filed a request for review of the Region- The evidence herein clearly shows that the Associ- al Director's decision. The Board denied the employer's request for ation is an organization in which employees meaningfully review "a it raised no substantial issues," and noted that 'in the event ,he Petitioner is certified and does not delegate its bargaining authority to participate and Which exists in part for the purpose of a local autonomous chapter controlled by nonsupervisory employees, a dealing with employers concerning wages, hours, and motion to revoke the certification will be entertained." The election was terms and conditions of employment; and that it has, in held, th e California Nurses Association (CNA) won, and the Board ccrti- fact, negotiated collective-bargaining agreements with fed it a the exclusive collective-bargaining representative of the employ- er's registered nurses in an appropriate unit. The employer then filed with employers." Accordingly, I find that the New York the Board a motion to revoke certification alleging that the CNA had State Nurses Association is, and has been at all times ma- failed to delegate its bargaining authority to a local autonomous chapter terial herein, a labor organization within the meaning of controlled by nonsupervisory employees. The Board remanded the case Section 2(5) of the Act. to the Regional Director to adduce further evidence, particularly con- cerning the CNA's negotiating procedure and the degree of participation of supervisory nurses in the bargaining process. Thereafter the Board " The issue of the Association's qualifications to act as the bargaining denied the employer's motion to revoke certification as being unmeritor- representative of the Respondent's nurses in an appropriate unit will be iou. (225 NLRB 1086 (1976).) considered in a different part of this Decision. The employer refused to bargain with CNA, and the latter consequent- "Abington Memorial Hospital, 250 NLRB 682 (1980); N. T. Enloe Me- ly filed a charge in Cae 31-CA-5760, upon which the Regional Director morial Hospital, 250 NLRB 583 (1980); Lodi Memorial Hospital Associ- isued a complaint alleging that the employer had violated Sec. 8(aX5) aton, Inc-, 249 NLRB 786 (1980); Albert Einstein Medical Center, 248 and (1) of the Act. Thereafter, the General Counsel filed a Motion for NLRB 63 (1980); Lancaster Ostlepathic Hspital Association, Inc., 246 Summary Judgment, which was granted by the Board (229 NLRB 232, NLRB 600 (1979); Oak Ridge Hospital of the United Methodist Church, 233 (1977)). The Board stated therein: 220 NLRB 49 (1975); Carle Clinic A'ociation, 192 N L RB 512 ( 1971). I t thus -ppe"* tha Respondent i atp n g to ri e i the insta t Also see ay-On Drus, Inc., 43 NLRB 89 (1979).unfair labor practice proceeding matters which were raised and re- 's Catheryne Welch, the Association's deputy director for progras ovd nteudrligrpeenaincw ^-£^5~~~~~~~~~~~~~~~~~sle in the underlyi"^ WCTCr"*edwdre- testified uncontriscictedly that at the time of the hearing the Association It is well settled that in the absence of newly discovered or previ- had about 29,000 registered professional nurse member of whom aously unavailable evidence or specal circumstance a respondent in a proximately 25,000 are represented by it for purposes of collective bar- proceeding alleging a violation of Section 8(.X5) is not entitled to gaining in approximately II5 bargaining units at public and private health relitigate issues which were or could have been litigated in a prior care and related facilities located throughout New York State. Further, representation proceeding.' [None of the above circumstancs were the Amociation's certi fi cate of inorporation was amended in or about shown to be present or applicable.] 1950 to add, as an additional purpos, the power to act as the collective- bargaining representative of registered profeasional nurses with their cm- ployen concerning wages, hours, and terms and conditions of employ- See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146. 162 ment Also see Welch's testimony regarding the participation of the (1941); Rules and Regulations of the Board, Sec*. 102.67(f) and nurses in the collective-bargaining process as will be more fully set forth 102.69(c). hereinafter.Thereafter in view of the decision of the United States Court of Ap- " Additionally, it should be noted that the Board has previously found peals for the Fourth Circuit in N.LR.B v. Annapolis Emergency Hospital The Association to be a labor organization within the meaning of the Association, Inc., d/b/a Anne Arundel General Hospital, 561 F.2d 524 Act. The New York State Nurses Association, 232 NLRB 849 (1977). Also (1977), the Board requested the Court of Appeals for the Ninth Circuit, we Lutheran Medical Center, Case 29-RC-4543 (1979); Jewish Hospital before which the Sierra Vista Hospital Inc., cua (Cue 31-CA-5750) was Medical Center of Brooklyn Nursing Home, Cae 29-RC-4528 (1979); The now pending vis-a-vis, petition and cross-petition for review and for en- Catholk Medical Center /fBrooklyn and Queens Inc. St. John's Queens forcement, respectively, to remand the case to the Board for reconsider- Hospital Division, Cae 29-RC-3738 (1977). Continued NORTH SHORE UNIVERSITY HOSPITAL 855 The question of statutory labor organization status is, 11. THE UNFAIR LABOR PRACTICES"s however, distinct from the question of a statutory labor The c a g in s a ta t s organization's qualifications to act as a bargaining repre- T h e complaint alleges8 m substanced that the Rbspond- sentative in all instances and without regard to the cir- en t v lo la te d S ec t lo n ^X 5) an d <1) o f t h e A c t b v re f us- cumstances under which bargaining takes place or will take place." As the Board held in Sierra Vista Hospital, T he Association in its brief asserts that: Inc. 241 NLRB 631 (1979): The Hospital in this proceeding is seeking to raise issues concerning the propriety of the Association's representation of its registered [T]he mere presence of supervisors in a labor orga- nurses long after those very issues were waived by the Hospital by nization is virtually irrelevant to determining status its entering int o the Stipulation for Certification Upon Consent Elec- A t o n . T o ev e n consider the merits of the Hospital's contention at this Under Section 2(5) Of the Act. Indeed, we have, ,'ime would violate a long line of NLRB decisions forbidding the With court approval, Uniformly Construed Section wasteful practice of litigating allegations which could have been as- 2(5) to reach all associations which exist for the serted but which were waived by an employer. The fact is that the purpose, in whole or in part, of collective bargain- HosPi'tal wit h competent legal counsel advising it, stipulated to an election. ing and which admit employees to membership, de- A respondent in a Section 8(aX5) proceeding is not entitled to reli- spite the fact that supervisors, in addition to em- tigate issues which were or could have been litigated in the prior ployees and even in substantial numbers, may like- representation proceeding. wise be admitted. 14 The Association cites a multitude of cases in support of its assertion which correctly stand for the proposition against relitigation, i.e., R. W. As long as nurse-employees participate in the asso- Harmon d Sons, Inc, 246 NLRB 223 (1979); H. M. Plaitron & Son Inc., ciation and one of its purposes is representing em- 245 NLRB 1412 (1979); The Standard Register Company, 243 NLRB 300 ployees in collective bargaining, a nurses' associ- (1979); Colorflo Decorator Products inc., 240 NLRB 113 (1979); Gould . in, .ike ,ny ,ther, ceets ... ,efinition ,„ .labor Inc, Electrical Components Division, 237 NLRB 66 (1978). ation, like any Other, meets the definition of "labor However, the Board's Supplemental Decision and Order in Sierra Vista Organization" in Section 2(5) of the Act.[ 12]Hospital. Inc., supm, compels a rejection of the Association's above con- tention in this matter. A procedural account of what transpired in the various Sierra Vista Hospital cass is instructive: International Organization of Masters, Mates and Pilots of^After a hering held in Caes I-RC-3166 the Regional Director direct- America, Inc, AFL-CIO (Chicago0Calumet Stevedoring Ca, Inc.), ed an election in a unit consisting of registered nurse. Sierra Vista Hos- 144 NLRB 1172,1177 (163). pital, Inc., the employer therein, filed a request for review of the Region- The evidence herein clearly shows that the Associ- al Director's decision. The Board denied the employer's request for ation is an organization in which employees meaningfully review "a it raised no substantial issues," and noted that 'in the event ,he Petitioner is certified and does not delegate its bargaining authority to participate and Which exists in part for the purpose of a local autonomous chapter controlled by nonsupervisory employees, a dealing with employers concerning wages, hours, and motion to revoke the certification will be entertained." The election was terms and conditions of employment; and that it has, in held, th e California Nurses Association (CNA) won, and the Board ccrti- fact, negotiated collective-bargaining agreements with fed it a the exclusive collective-bargaining representative of the employ- er's registered nurses in an appropriate unit. The employer then filed with employers." Accordingly, I find that the New York the Board a motion to revoke certification alleging that the CNA had State Nurses Association is, and has been at all times ma- failed to delegate its bargaining authority to a local autonomous chapter terial herein, a labor organization within the meaning of controlled by nonsupervisory employees. The Board remanded the case Section 2(5) of the Act. to the Regional Director to adduce further evidence, particularly con- cerning the CNA's negotiating procedure and the degree of participation of supervisory nurses in the bargaining process. Thereafter the Board " The issue of the Association's qualifications to act as the bargaining denied the employer's motion to revoke certification as being unmeritor- representative of the Respondent's nurses in an appropriate unit will be iou. (225 NLRB 1086 (1976).) considered in a different part of this Decision. The employer refused to bargain with CNA, and the latter consequent- "Abington Memorial Hospital, 250 NLRB 682 (1980); N. T. Enloe Me- ly filed a charge in Cae 31-CA-5760, upon which the Regional Director morial Hospital, 250 NLRB 583 (1980); Lodi Memorial Hospital Associ- isued a complaint alleging that the employer had violated Sec. 8(aX5) aton, Inc-, 249 NLRB 786 (1980); Albert Einstein Medical Center, 248 and (1) of the Act. Thereafter, the General Counsel filed a Motion for NLRB 63 (1980); Lancaster Ostlepathic Hspital Association, Inc., 246 Summary Judgment, which was granted by the Board (229 NLRB 232, NLRB 600 (1979); Oak Ridge Hospital of the United Methodist Church, 233 (1977)). The Board stated therein: 220 NLRB 49 (1975); Carle Clinic A'ociation, 192 N L RB 512 ( 1971). I t thus -ppe"* tha Respondent i atp n g to ri e i the insta t Also see ay-On Drus, Inc., 43 NLRB 89 (1979).unfair labor practice proceeding matters which were raised and re- 's Catheryne Welch, the Association's deputy director for progras ovd nteudrligrpeenaincw ^-£^5~~~~~~~~~~~~~~~~~sle in the underlyin WCTCr"*edwdre-e testified uncontriscictedly that at the time of the hearing the Association It is well settled that in the absence of newly discovered or previ- had about 29,000 registered professional nurse memer of whom apously unavailable evidence or specal circumstance a respondent in a proximately 25,000 are represented by it for purposes of collective bar- proceeding alleging a violation of Section 8(.X5) is not entitled to gaining in approximately II5 bargaining units at public and private health relitigate issues which were or could have been litigated in a prior care and related facilities located throughout New York State. Further, representation proceeding.' [None of the above circumstancs were the Amociation's certi fi c a te of inorporation was amended in or about shown to be present or applicable.] 1950 to add, as an additional purpos, the power to act as the collective- bargaining representative of registered profeasional nurses with their cm- ployen concerning wages, hours, and terms and conditions of employ- See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146. 162 ment Also see Welch's testimony regarding the participation of the (1941); Rules and Regulations of the Board, Sec*. 102.67(f) and nurses in the collective-bargaining process as will be more fully set forth 102.69(c). hereinafter.Thereafter in view of the decision of the United States Court of Ap- " Additionally, it should be noted that the Board has previously found peals for the Fourth Circuit in N.LR.B v. Annapolis Emergency Hospital The Association to be a labor organization within the meaning of the Association, Inc., d/b/a Anne Arundel General Hospital, 561 F.2d 524 Act. The New York State Nurses Association, 232 NLRB 849 (1977). Also (1977), the Board requested the Court of Appeals for the Ninth Circuit, we Lutheran Medical Center, Case 29-RC-4543 (1979); Jewish Hospital before which the Sierra Vista Hospital Inc., cua (Cue 31-CA-5750) was Medical Center of Brooklyn Nursing Home, Cae 29-RC-4528 (1979); The now pending vis-a-vis, petition and cross-petition for review and for en- Catholk Medical Center /fBrooklyn and Queens Inc. St. John's Queens forcement, respectively, to remand the case to the Board for reconsider- Hospital Division, Cae 29-RC-3738 (1977). Continued NORTH SHORE UNIVERSITY HOSPITAL 855 The question of statutory labor organization status is, 11. THE UNFAIR LABOR PRACTICES"s however, distinct from the question of a statutory labor The c a g in s a ta t s organization's qualifications to act as a bargaining repre- T h e complaint alleges8 m substanced that the Rbspond- sentative in all instances and without regard to the cir- en t v lo la te d S ec t lo n ^X 5) an d <1) o f t h e A c t b v re f us- cumstances under which bargaining takes place or will take place." As the Board held in Sierra Vista Hospital, T he Association in its brief asserts that: Inc. 241 NLRB 631 (1979): The Hospital in this proceeding is seeking to raise issues concerning the propriety of the Association's representation of its registered [T]he mere presence of supervisors in a labor orga- nurses long after those very issues were waived by the Hospital by nization is virtually irrelevant to determining status its entering int o the Stipulation for Certification Upon Consent Elec- A t o n . T o ev e n consider the merits of the Hospital's contention at this Under Section 2(5) Of the Act. Indeed, we have, ,'ime would violate a long line of NLRB decisions forbidding the With court approval, Uniformly Construed Section wasteful practice of litigating allegations which could have been as- 2(5) to reach all associations which exist for the serted but which were waived by an employer. The fact is that the purpose, in whole or in part, of collective bargain- HosPi'tal wit h competent legal counsel advising it, stipulated to an election. ing and which admit employees to membership, de- A respondent in a Section 8(aX5) proceeding is not entitled to reli- spite the fact that supervisors, in addition to em- tigate issues which were or could have been litigated in the prior ployees and even in substantial numbers, may like- representation proceeding. wise be admitted. 14 The Association cites a multitude of cases in support of its assertion which correctly stand for the proposition against relitigation, i.e., R. W. As long as nurse-employees participate in the asso- Harmon d Sons, Inc, 246 NLRB 223 (1979); H. M. Plaitron & Son Inc., ciation and one of its purposes is representing em- 245 NLRB 1412 (1979); The Standard Register Company, 243 NLRB 300 ployees in collective bargaining, a nurses' associ- (1979); Colorflo Decorator Products inc., 240 NLRB 113 (1979); Gould . in, .ike ,ny ,ther, ceets ... ,efinition ,„ .labor Inc, Electrical Components Division, 237 NLRB 66 (1978). ation, like any Other, meets the definition of "labor However, the Board's Supplemental Decision and Order in Sierra Vista Organization" in Section 2(5) of the Act.[ 12]Hospital. Inc., supm, compels a rejection of the Association's above con- tention in this matter. A procedural account of what transpired in the various Sierra Vista Hospital cass is instructive: International Organization of Masters, Mates and Pilots of^After a hering held in Caes I-RC-3166 the Regional Director direct- Ameic In. ^ ^ s I ~hr o Cim Stevedoring Co.. Inc.), ^ ^ Amerca, nc, FL-CO (hicao CaumetSteedorng C, In.), ed an election in a unit consisting of registered nurses. Sierra Vista Hos- 144 NLRB 1172,1177 (163). pital, Inc., the employer therein, filed a request for review of the Region- The evidence herein clearly shows that the Associ- al Director's decision. The Board denied the employer's request for ation is an organization in which employees meaningfully review "a it raised no substantial issues," and noted that 'in the event ,he Petitioner is certified and does not delegate its bargaining authority to participate and Which exists in part for the purpose of a local autonomous chapter controlled by nonsupervisory employees, a dealing with employers concerning wages, hours, and motion to revoke the certification will be entertained." The election was terms and conditions of employment; and that it has, in held, th e California Nurses Association (CNA) won, and the Board ccrti- fact, negotiated collective-bargaining agreements with fed it a the exclusive collective-bargaining representative of the employ- er's registered nurses in an appropriate unit. The employer then filed with employers." Accordingly, I find that the New York the Board a motion to revoke certification alleging that the CNA had State Nurses Association is, and has been at all times ma- failed to delegate its bargaining authority to a local autonomous chapter terial herein, a labor organization within the meaning of controlled by nonsupervisory employees. The Board remanded the case Section 2(5) of the Act. to the Regional Director to adduce further evidence, particularly con- cerning the CNA's negotiating procedure and the degree of participation of supervisory nurses in the bargaining process. Thereafter the Board " The issue of the Association's qualifications to act as the bargaining denied the employer's motion to revoke certification as being unmeritor- representative of the Respondent's nurses in an appropriate unit will be iou. (225 NLRB 1086 (1976).) considered in a different part of this Decision. The employer refused to bargain with CNA, and the latter consequent- "Abington Memorial Hospital, 250 NLRB 682 (1980); N. T. Enloe Me- ly filed a charge in Cae 31-CA-5760, upon which the Regional Director mortal Hospital. 250 NLRB 583 (1980); Lodi Memorial Hospital Associ- isued a complaint alleging that the employer had violated Sec. 8(aX5) aton, Inc-, 249 NLRB 786 (1980); Albert Einstein Medical Center, 248 and (1) of the Act. Thereafter, the General Counsel filed a Motion for NLRB 63 (1980); Lancaster Ostlepathic Hspital Association, Inc., 246 Summary Judgment, which was granted by the Board (229 NLRB 232, NLRB 600 (1979); Oak Ridge Hospital of the United Methodist Church, 233 (1977)). The Board stated therein: 220 NLRB 49 (1975); Carle Clinic A'ociation, 192 N L RB 512 ( 1971). I t thus -ppe"* tha Respondent i atp n g to ri e i the insta t Also see ay-On Drus, Inc., 43 NLRB 89 (1979).unfair labor practice proceeding matters which were raised and re- 's Catheryne Welch, the Association's deputy director for progras ovd nteudrligrpeenaincw ^-£^5~~~~~~~~~~~~~~~~~sle in the underlyin WCTCr"*edwdre-e testified uncontriscictedly that at the time of the hearing the Association It is well settled that in the absence of newly discovered or previ- had about 29,000 registered professional nurse memer of whom apously unavailable evidence or specal circumstance a respondent in a proximately 25,000 are represented by it for purposes of collective bar- proceeding alleging a violation of Section 8(.X5) is not entitled to gaining in approximately II5 bargaining units at public and private health relitigate issues which were or could have been litigated in a prior care and related facilities located throughout New York State. Further, representation proceeding.' [None of the above circumstancs were the Amociation's certi fi c a te of inorporation was amended in or about shown to be present or applicable.] 1950 to add, as an additional purpos, the power to act as the collective- bargaining representative of registered profeasional nurses with their cm- ployen concerning wages, hours, and terms and conditions of employ- See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146. 162 ment Also see Welch's testimony regarding the participation of the (1941); Rules an Regulations of the Board, Sec*. 102.67(f) and nurses in the collective-bargaining process as will be more fully set forth 102.69(c). hereinafter.Thereafter in view of the decision of the United States Court of Ap- " Additionally, it should be noted that the Board has previously found peals for the Fourth Circuit in N.LR.B v. Annapolis Emergency Hospital The Association to be a labor organization within the meaning of the Association, Inc., d/b/a Anne Arundel General Hospital, 561 F.2d 524 Act. The New York State Nurses Association, 232 NLRB 849 (1977). Also (1977), the Board requested the Court of Appeals for the Ninth Circuit, we Lutheran Medical Center, Case 29-RC-4543 (1979); Jewish Hospital before which the Sierra Vista Hospital Inc., cua (Cue 31-CA-5750) was Medical Center of Brooklyn Nursing Home, Cae 29-RC-4528 (1979); The now pending vis-a-vis, petition and cross-petition for review and for en- Catholk Medical Center /fBrooklyn and Queens Inc. St. John's Queens forcement, respectively, to remand the case to the Board for reconsider- Hospital Division, Cae 29-RC-3738 (1977). Continued 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing and continuing to refuse to recognize and bargain sentative of the Respondent's registered professional collectively with the Association as the Board-certified nurses in an appropriate unit on February 21, 1978. On exclusive collective-bargaining representative of the Re- or about April 18, 1978, the Association requested the spondent's employees in an appropriate unit. The Re- Respondent to recognize it as the bargaining representa- spondent denies these allegations and asserts as an affirm- tive of the Respondent's employees in the nurses' unit ative defense that the Association is not qualified to act and to bargain collectively with it with respect to these as the collective-bargaining representative of the nurses employees' rates of pay, wages, hours of employment, in the appropriate unit because the Association is domi- and other terms and conditions of employment. The Re- nated, controlled, directed, and/or influenced by persons spondent, on or about April 21, 1978, and continuing who occupy supervisory and/or managment positions thereafter, refused and continues to refuse to recognize within the Respondent's hospital and/or other health and bargain with the Association. As legal justification care institutions. for its actions the Respondent maintains that the Associ- ation is disqualified from acting as the collective-bargain- A. Background ing representative of its registered professional nurse em- ployees in the appropriate unit because the Association's As set forth hereinbefore, the Board certified the As- "actions are controlled, directed, dominated and/or influ- sociation as the exclusive collective-bargaining repre- enced by persons who occupy supervisory and/or man- agerial positions within health care institutions, including ation. The court granted the Board's request and remanded the case to it. Respondent." The Board then decided to reopen the representation proceeding (Case 31-RC-3166) and consolidate it with the unfair labor practice proceeding (Case 31-CA-5760) in order to reconsider the issues posed therein, dis- B. The Evidence" avowing and discarding its previous "conditional certification approach" to resolving the problems created by the participation of supervisors in The New York State Nurses Association is a profes- nurses associations as labor organizations and setting forth the standards sional membership corporation created and existing by which to thereafter resolve such issues as will be discussed more fully under the not-for-profit corporation law of the State of hereinafter. The Board's order therein rescinded its prior decisions and New York admitting into membership any person "li- orders in Case 31-RC-3166 and Case 31-CA-5750 and directed that a hearing be held for the purpose of receiving evidence "to resolve issues censed or otherwise duly authorized to practice as a reg- raised by Respondent's motion to revoke certification in Case 31-RC- istered professional nurse."' s The Association's primary 3166, namely, whether or not the presence of supervisors as officers in, objective is "to further the efficient care of the sick, dis- on the board of directors of, or in other positions of authority to speak abled and others needing nursing care." As a secondary for or bargain on behalf of CNA disqualifies that association as the col- lective-bargaining representative of Respondent's nonsupervisory nurses." purpose and to assist in effectuating its primary objective (241 NLRB 631, 635 (1979).) the Association seeks "to advance the educational and The obvious similarity between what occurred therein and what oc- professional standards of nursing" and as one of the curred in the instant case, excepting the consent election stipulation means to this end "concerns itself with the economic and herein, is clear. Since the decision in the Sierra Vista Hospital, Inc. case came after the hearing was concluded in the instant case and dictates a general welfare of nurses" through representation of li- need for considering the effect, if any, that supervisors or managers, who censed professional nurse units for purposes of collective are members, have upon the NYSNA's collective-bargaining functions, I bargaining. do not find that the Respondent waived its right to present such evi- dence, especially in view of the necessity imposed by Sierra Vista upon . T o o t the Respondent to meet a "heavy burden" of establishing the disqualifica-zaon of the Association tion of the Association as a certified collective-bargaining representative because of a "danger of a conflict of interest interfering with the collec- a. The Association's board of directors tive-bargaining process," by entering into a Stipulation for Certification Upon Consent Election in the representation case. It might well be The Association is governed by a 13-member elected argued that what procedurally occurred herein has created "special cir- board of directors which establishes the major adminis- cumstances" warranting the holding of such a hearing trative policies under which the Association's goals, Normally, pursuant to Sierra Vista Hospital, the hearing would have been held in the representation case upon remand to the Regional Direc- through ts programing, are accomplished. The members tor by the Board pursuant to the Respondent's motion to revoke certifi- of the board of directors are elected by the voting body cation. But in the instant case the parties themselves requested that the which consists of all member registered professional representation case and the unfair labor practice case, Cases 31-RC-3166 nurses in good standing (validly licensed as nurses and and 31-CA-5750, respectively, be consolidated and set for formal hearing have paid Association dues) The board of directors of before an administrative law judge, which was done. In view of all of the above, consideration of the merits of the issues presented herein does not violate the Board's "relitigation prohibition." It should be noted that most of the evidence presented herein, This is not to say that future cases involving challenges to the qualifica- whether in the form of sworn testimony or documentary exhibits, was tion of nurses associations on the basis of alleged supervisory or manage- generally uncontradicted in the record. rial nomination will not require employers to raise and litigate these very " The parties herein stipulated that among the Association's member- issues within the confines of the representation case now that Sierra Vista ship are persons who would be supervisors as defined in the Act, having Hospital is applicable thereto. In fact, the Board's Second Supplemental the same voting rights and privileges as members as do the nonsupervi- Decision and Order in Case 31-RC-3166 (249 NLRB 602 (1980)), and its sory member nurses. Notice To Show Cause in Case 31-CA-5750 (249 NLRB 603 (1980)), '" See the testimony of the Association's executive director, Veronica both involving the Sierra Vista Hospital, Inc., and CNA, strongly indi- Driscoll, and its deputy director for programs and main witness at the cates that this will be so. hearing, Catheryne Welch. " Sec. 8(aX5) of the Act prohibits an employer from refusing to bar- I The evidence shows that the regular employment positions held by gain collectively with the collective-bargaining representative of its em- various of the directors include "clinical nursing specialist, research asso- ployees. Sec. 8(aXI) of the Act prohibits an employer from interfering ciate, director of nursing, assistant professor of nursing, supervisor of a with, restraining, or coercing its employees in the exercise of the rights county health department, associate director for continuing education, guaranteed in Sec. 7 of the Act. Continued 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing and continuing to refuse to recognize and bargain sentative of the Respondent's registered professional collectively with the Association as the Board-certified nurses in an appropriate unit on February 21, 1978. On exclusive collective-bargaining representative of the Re- or about April 18, 1978, the Association requested the spondent's employees in an appropriate unit. The Re- Respondent to recognize it as the bargaining representa- spondent denies these allegations and asserts as an affirm- tive of the Respondent's employees in the nurses' unit ative defense that the Association is not qualified to act and to bargain collectively with it with respect to these as the collective-bargaining representative of the nurses employees' rates of pay, wages, hours of employment, in the appropriate unit because the Association is domi- and other terms and conditions of employment. The Re- nated, controlled, directed, and/or influenced by persons spondent, on or about April 21, 1978, and continuing who occupy supervisory and/or managment positions thereafter, refused and continues to refuse to recognize within the Respondent's hospital and/or other health a"nd bargain with the Association. As legal justification care institutions. f o r it s actions the Respondent maintains that the Associ- ation is disqualified from acting as the collective-bargain- A. Background ing representative of its registered professional nurse em- ployees in the appropriate unit because the Association's As set forth hereinbefore, the Board certified the As- .,actions are controlled, directed, dominated and/or influ- sociation as the exclusive collective-bargaining repre- enced by persons who occupy supervisory and/or man- agerial positions within health care institutions, including ation. The court granted the Board's request and remanded the case to it. Respondent." The Board then decided to reopen the representation proceeding (Case 31-RC-3166) and consolidate it with the unfair labor practice proceeding (Case 31-CA-5760) in order to reconsider the issues posed therein, dis- B. The Evidence" avowing and discarding its previous "conditional certification approach" to resolving the problems created by the participation of supervisors in The New York State Nurses Association is a profes- nurses associations as labor organizations and setting forth the standards sional membership corporation created and existing by which to thereafter resolve such issues as will be discussed more fully under the not-for-profit corporation law of the State of hereinafter. The Board's order therein rescinded its prior decisions and New York, admitting into membership any person "li- orders in Case 31-RC-3166 and Case 31-CA-5750 and directed that a hearing be held for the purpose of receiving evidence "to resolve issues censed or Otherwise duly authorized to practice as a reg- raised by Respondent's motion to revoke certification in Case 31-RC- istered professional nurse." 18 The Association's primary 3166, namely, whether or not the presence of supervisors as officers in, objective is "to further the efficient care of the sick, dis- on the board of directors of, or in other positions of authority to speak ab led and o t he r s needing nursing care." As a secondary for or baroan on behalf of CNA disqualifies that association as the col- lective-bargaining representative of Respondent's nonsupervisory nurses.", purpose and to assist in effectuating Its primary objective (241 NLRB 631, 635 (1979).) the Association seeks "to advance the educational and The obvious similarity between what occurred therein and what oc- professional Standards of nursing" and as One of the cuffed in the instant case, excepting the consent election stipulation m ean s t o t h is end "c o n cerns itsel f with the economic and herein, is clear. Since the decision in the Sierra Vista Hospita4 Ilec. case came after the hearing was concluded in the instant case and dictates a general welfare of nurses" through representation of li- need for considering the effect, if any, that supervisors or managers, who censed professional nurse Units for purposes of collective are members, have upon the NYSNA's collective-bargaining functions, I bargaining. 1 do not find that the Respondent waived its right to present such evi- dence, especially in view of the necessity imposed by Sierra Vista uponi. ... r .1 * * .. the Respondent to meet a "heavy burden" of establishing the disqualica- T h e organization of the Association tion of the Association as a certified collective-bargaining representative because of a "danger of a conflict of interest interfering with the collec- a. The Association's board of directors tive-bargaining process," by entering into a Stipulation for Certification Upon Consent Election in the representation case. It might well be The Association is governed by a 13-member elected argued that what procedurally occurred herein has created "special cir- board of directors which establishes the major adminis- cumstances" warranting the holding of such a hearing,.trative policies under which the Association's goals, Normally, pursuant to Sierra Vista Hospital, the hearing would have been held in the representation case upon remand to the Regional Direc- through Its programing, are accomplished. The members tor by the Board pursuant to the Respondent's motion to revoke certifi- of the board of directors are elected by the voting body cation. But in the instant case the parties themselves requested that the which consists of all member registered professional representation case and the unfair labor practice caw, Cases 31-RC-3166 nurses in good standing (validly licensed as nurses and and 31-CA-5750, respectively, be consolidated and set for formal hearing .,- ... " - ,,„ ' , , , ,. , before an administrative law judge, which was done. h a e pad Association dues). The board of directors of In view of all of the above, consideration of the merits of the issues presented herein does not violate the Board's "relitigation prohibition." " It should be noted that most of the evidence presented herein, This is not to say that future cases involving challenges to the qualifica- whether in the form of sworn testimony or documentary exhibits, was tion of nurses associations on the basis of alleged supervisory or manage- generally uncontradicted in the record. rial nomination will not require employers to raise and litigate these very '" The parties herein stipulated that among the Association's member- issues within the confines of the representation case now that Sierra Vista ship are persons who would be supervisors as defned in the Act, having Hospital is applicable thereto. In fact, the Board's Second Supplemental the same voting rights and privileges as members as do the nonsupervi- Decision and Order in Case 31-RC-3166 (249 NLRB 602 (1980)), and its sory member nurses. Notice To Show Cause in Case 31-CA-5750 (249 NLRB 603 (1980)), "I See the testimony of the Association's executive director, Veronica both involving the Sierra Vista Hospital, Inc., and CNA, strongly indi- Driscoll, and its deputy director for programs and main witness at the cates that this will be so. hearing, Catheryne Welch. " Sec. 8(aX5) of the Act prohibits an employer from refusing to bar- I The evidence shows that the regular employment positions held by gain collectively with the collective-bargaining representative of its em- various of the directors include "clinical nursing specialist, research asso- ployees. Sec. 8(aXI) of the Act prohibits an employer from interfering ciate, director of nursing, assistant professor of nursing, supervisor of a with, restraining, or coercing its employees in the exercise of the rights county health department, associate director for continuing education, guaranteed in Sec. 7 of the Act. Continued 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing and continuing to refuse to recognize and bargain sentative of the Respondent's registered professional collectively with the Association as the Board-certified nurses in an appropriate unit on February 21, 1978. On exclusive collective-bargaining representative of the Re- or about April 18, 1978, the Association requested the spondent's employees in an appropriate unit. The Re- Respondent to recognize it as the bargaining representa- spondent denies these allegations and asserts as an affirm- tive of the Respondent's employees in the nurses' unit ative defense that the Association is not qualified to act and to bargain collectively with it with respect to these as the collective-bargaining representative of the nurses employees' rates of pay, wages, hours of employment, in the appropriate unit because the Association is domi- and other terms and conditions of employment. The Re- nated, controlled, directed, and/or influenced by persons spondent, on or about April 21, 1978, and continuing who occupy supervisory and/or managment positions thereafter, refused and continues to refuse to recognize within the Respondent's hospital and/or other health a"nd bargain with the Association. As legal justification care institutions. f o r it s actions the Respondent maintains that the Associ- ation is disqualified from acting as the collective-bargain- A. Background ing representative of its registered professional nurse em- ployees in the appropriate unit because the Association's As set forth hereinbefore, the Board certified the As- .,actions are controlled, directed, dominated and/or influ- sociation as the exclusive collective-bargaining repre- enced by persons who occupy supervisory and/or man- agerial positions within health care institutions, including ation. The court granted the Board's request and remanded the case to it. Respondent." The Board then decided to reopen the representation proceeding (Case 31-RC-3166) and consolidate it with the unfair labor practice proceeding (Case 31-CA-5760) in order to reconsider the issues posed therein, dis- B. The Evidence" avowing and discarding its previous "conditional certification approach" to resolving the problems created by the participation of supervisors in The New York State Nurses Association is a profes- nurses associations as labor organizations and setting forth the standards sional membership corporation created and existing by which to thereafter resolve such issues as will be discussed more fully under the not-for-profit corporation law of the State of hereinafter. The Board's order therein rescinded its prior decisions and New York, admitting into membership any person "li- orders in Case 31-RC-3166 and Case 31-CA-5750 and directed that a hearing be held for the purpose of receiving evidence "to resolve issues censed or Otherwise duly authorized to practice as a reg- raised by Respondent's motion to revoke certification in Case 31-RC- istered professional nurse." 18 The Association's primary 3166, namely, whether or not the presence of supervisors as officers in, objective is "to further the efficient care of the sick, dis- on the board of directors of, or in other positions of authority to speak ab led and o t he r s needing nursing care." As a secondary for or baroan on behalf of CNA disqualifies that association as the col- lective-bargaining representative of Respondent's nonsupervisory nurses.", purpose and to assist in effectuating Its primary objective (241 NLRB 631, 635 (1979).) the Association seeks "to advance the educational and The obvious similarity between what occurred therein and what oc- professional Standards of nursing" and as One of the cuffed in the instant case, excepting the consent election stipulation m ean s t o t h is end "c o ncerns itsel f with the economic and herein, is clear. Since the decision in the Sierra Vista Hospita4 Ilec. case came after the hearing was concluded in the instant case and dictates a general welfare of nurses" through representation of li- need for considering the effect, if any, that supervisors or managers, who censed professional nurse Units for purposes of collective are members, have upon the NYSNA's collective-bargaining functions, I bargaining. 1 do not find that the Respondent waived its right to present such evi- dence, especially in view of the necessity imposed by Sierra Vista uponi. ... r .i * * .. the Respondent to meet a "heavy burden" of establishing the disqualica- T h e organization of the Association tion of the Association as a certified collective-bargaining representative because of a "danger of a conflict of interest interfering with the collec- a. The Association's board of directors tive-bargaining process," by entering into a Stipulation for Certification Upon Consent Election in the representation case. It might well be The Association is governed by a 13-member elected argued that what procedurally occurred herein has created "special cir- board of directors which establishes the major adminis- cumstances" warranting the holding of such a hearing,.trative policies under which the Association's goals, Normally, pursuant to Sierra Vista Hospital, the hearing would have been held in the representation case upon remand to the Regional Direc- through Its programing, are accomplished. The members tor by the Board pursuant to the Respondent's motion to revoke certifi- f the board of directors are elected by the voting body cation. But in the instant case the parties themselves requested that the which consists of all member registered professional representation case and the unfair labor practice caw, Cases 31-RC-3166 nurses in good standing (validly licensed as nurses and and 31-CA-5750, respectively, be consolidated and set for formal hearing .,- ... " - ;>n ' , , , ,. , before an administrative law judge, which was done. h a e pad Association dues). The board of directors of In view of all of the above, consideration of the merits of the issues presented herein does not violate the Board's "relitigation prohibition." " It should be noted that most of the evidence presented herein, This is not to say that future cases involving challenges to the qualifica- whether in the form of sworn testimony or documentary exhibits, was tion of nurses associations on the basis of alleged supervisory or manage- generally uncontradicted in the record. rial nomination will not require employers to raise and litigate these very '" The parties herein stipulated that among the Association's member- issues within the confines of the representation case now that Sierra Vista ship are persons who would be supervisors as defned in the Act, having Hospital is applicable thereto. In fact, the Board's Second Supplemental the same voting rights and privileges as members as do the nonsupervi- Decision and Order in Case 31-RC-3166 (249 NLRB 602 (1980)), and its sory member nurses. Notice To Show Cause in Case 31-CA-5750 (249 NLRB 603 (1980)), "I See the testimony of the Association's executive director, Veronica both involving the Sierra Vista Hospital, Inc., and CNA, strongly indi- Driscoll, and its deputy director for programs and main witness at the cates that this will be so. hearing, Catheryne Welch. " Sec. 8(aX5) of the Act prohibits an employer from refusing to bar- I The evidence shows that the regular employment positions held by gain collectively with the collective-bargaining representative of its em- various of the directors include "clinical nursing specialist, research asso- ployees. Sec. 8(aXI) of the Act prohibits an employer from interfering ciate, director of nursing, assistant professor of nursing, supervisor of a with, restraining, or coercing its employees in the exercise of the rights county health department, associate director for continuing education, guaranteed in Sec. 7 of the Act. Continued 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing and continuing to refuse to recognize and bargain sentative of the Respondent's registered professional collectively with the Association as the Board-certified nurses in an appropriate unit on February 21, 1978. On exclusive collective-bargaining representative of the Re- or about April 18, 1978, the Association requested the spondent's employees in an appropriate unit. The Re- Respondent to recognize it as the bargaining representa- spondent denies these allegations and asserts as an affirm- tive of the Respondent's employees in the nurses' unit ative defense that the Association is not qualified to act and to bargain collectively with it with respect to these as the collective-bargaining representative of the nurses employees' rates of pay, wages, hours of employment, in the appropriate unit because the Association is domi- and other terms and conditions of employment. The Re- nated, controlled, directed, and/or influenced by persons spondent, on or about April 21, 1978, and continuing who occupy supervisory and/or managment positions thereafter, refused and continues to refuse to recognize within the Respondent's hospital and/or other health a"nd bargain with the Association. As legal justification care institutions. f o r it s actions the Respondent maintains that the Associ- ation is disqualified from acting as the collective-bargain- A. Background ing representative of its registered professional nurse em- ployees in the appropriate unit because the Association's As set forth hereinbefore, the Board certified the As- .,actions are controlled, directed, dominated and/or influ- sociation as the exclusive collective-bargaining repre- enced by persons who occupy supervisory and/or man- agerial positions within health care institutions, including ation. The court granted the Board's request and remanded the case to it. Respondent." The Board then decided to reopen the representation proceeding (Case 31-RC-3166) and consolidate it with the unfair labor practice proceeding (Case 31-CA-5760) in order to reconsider the issues posed therein, dis- B. The Evidence" avowing and discarding its previous "conditional certification approach" to resolving the problems created by the participation of supervisors in The New York State Nurses Association is a profes- nurses associations as labor organizations and setting forth the standards sional membership corporation created and existing by which to thereafter resolve such issues as will be discussed more fully under the not-for-profit corporation law of the State of hereinafter. The Board's order therein rescinded its prior decisions and New York, admitting into membership any person "li- orders in Case 31-RC-3166 and Case 31-CA-5750 and directed that a hearing be held for the purpose of receiving evidence "to resolve issues censed or Otherwise duly authorized to practice as a reg- raised by Respondent's motion to revoke certification in Case 31-RC- istered professional nurse." 18 The Association's primary 3166, namely, whether or not the presence of supervisors as officers in, objective is "to further the efficient care of the sick, dis- on the board of directors of, or in other positions of authority to speak ab led and o t he r s needing nursing care." As a secondary for or baroan on behalf of CNA disqualifies that association as the col- lective-bargaining representative of Respondent's nonsupervisory nurses.", purpose and to assist in effectuating Its primary objective (241 NLRB 631, 635 (1979).) the Association seeks "to advance the educational and The obvious similarity between what occurred therein and what oc- professional Standards of nursing" and as One of the cuffed in the instant case, excepting the consent election stipulation m ean s t o t h is end "c o ncerns itsel f with the economic and herein, is clear. Since the decision in the Sierra Vista Hospita4 Ilec. case came after the hearing was concluded in the instant case and dictates a general welfare of nurses" through representation of li- need for considering the effect, if any, that supervisors or managers, who censed professional nurse Units for purposes of collective are members, have upon the NYSNA's collective-bargaining functions, I bargaining. 1 do not find that the Respondent waived its right to present such evi- dence, especially in view of the necessity imposed by Sierra Vista upon i. T.. r .1 « * .. the Respondent to meet a "heavy burden" of establishing the disqualica- T h e organization of the Association tion of the Association as a certified collective-bargaining representative because of a "danger of a conflict of interest interfering with the collec- a. The Association's board of directors tive-bargaining process," by entering into a Stipulation for Certification Upon Consent Election in the representation case. It might well be The Association is governed by a 13-member elected argued that what procedurally occurred herein has created "special cir- board of directors which establishes the major adminis- cumstances" warranting the holding of such a hearing,.trative policies under which the Association's goals, Normally, pursuant to Sierra Vista Hospital, the hearing would have been held in the representation case upon remand to the Regional Direc- through Its programing, are accomplished. The members tor by the Board pursuant to the Respondent's motion to revoke certifi- f the board of directors are elected by the voting body cation. But in the instant case the parties themselves requested that the which consists of all member registered professional representation case and the unfair labor practice caw, Cases 31-RC-3166 nurses in good standing (validly licensed as nurses and and 31-CA-5750, respectively, be consolidated and set for formal hearing .,- ... " - ;>n ' , , , ,. , before an administrative law judge, which was done. h a e paid Association dues). The board of directors of In view of all of the above, consideration of the merits of the issues presented herein does not violate the Board's "relitigation prohibition." " It should be noted that most of the evidence presented herein, This is not to say that future cases involving challenges to the qualifica- whether in the form of sworn testimony or documentary exhibits, was tion of nurses associations on the basis of alleged supervisory or manage- generally uncontradicted in the record. rial nomination will not require employers to raise and litigate these very '" The parties herein stipulated that among the Association's member- issues within the confines of the representation case now that Sierra Vista ship are persons who would be supervisors as defined in the Act, having Hospital is applicable thereto. In fact, the Board's Second Supplemental the same voting rights and privileges as members as do the nonsupervi- Decision and Order in Case 31-RC-3166 (249 NLRB 602 (1980)), and its sory member nurses. Notice To Show Cause in Case 31-CA-5750 (249 NLRB 603 (1980)), "I See the testimony of the Association's executive director, Veronica both involving the Sierra Vista Hospital, Inc., and CNA, strongly indi- Driscoll, and its deputy director for programs and main witness at the cates that this will be so. hearing, Catheryne Welch. " Sec. 8(aX5) of the Act prohibits an employer from refusing to bar- I The evidence shows that the regular employment positions held by gain collectively with the collective-bargaining representative of its em- various of the directors include "clinical nursing specialist, research asso- ployees. Sec. 8(aXI) of the Act prohibits an employer from interfering ciate, director of nursing, assistant professor of nursing, supervisor of a with, restraining, or coercing its employees in the exercise of the rights county health department, associate director for continuing education, guaranteed in Sec. 7 of the Act. Continued NORTH SHORE UNIVERSITY HOSPITAL 857 the Association, besides establishing administrative program directors, each of whom is immediately respon- policy, also determines membership qualifications, dues sible to the deputy director for programs." requirements, the Association's administrative and pro- gram budget, and appoints members to various standing C. The Association's Economic and General Welfare committees. 2' The Association's programs cover the Program areas of nursing education, nursing practice and services, The EGWP under which the Association's collective- legislation, economic and general welfare, and organiza- bargaining functions are conducted is organized on the tion services. 2 basis of four geographical regions within the State of New York. Each region is headed by a regional coordi- The Assoiations staffnator who reports to the EGWP director. These regions The administrative programing functions of the Asso- are additionally staffed by nursing and labor relations ciation are performed by a staff of paid full-time employ- representatives who provide assistance to nurses in orga- ees, who are usually themselves licensed professional nizing bargaining units and in negotiating and administer- nurses,23 and who are not employed by any hospital or ing collective-bargaining agreements. The Association's health care facility or in fact by any other employer. The executive director hires all the above employees. 2 The Association's chief executive administrative officer is its Association also has a "Council on Economic and Gen- executive director, who is responsible for implementing eral Welfare," herein called the Council. The members all of the Association's program activities including the thereto are appointed by the board of directors and staff- "Economic and General Welfare Program," also referred ing is provided by the director of the program. The Council makes recommendations to the board of direc- to herein as the EGWP, which we are particularly con- o u ncil m ak es rcommendations to the board of direc- cerned with herein. 24 The executive director is assisted in t o r s sn t h e are as c o v er ed by t Association's EGWP her duties by a deputy director for programs and a and serves as a n adviso r y body t o the A s so a t o n's deputy director for administration who are responsible, The Association's collective-bargaining process func- respectively, for coordinating the Association's program tions as follows: activities and administrative functions. The deputy direc- tors are in turn assisted by the administrative and pro- Nurses at a hospital or other health care related fa- gram staff of the Association. Activities in each of the cility will contact the Association for preliminary Association's four major programs are coordinated by advice and guidance concerning representation. If the Association determines that it is able to provide department head for surgical nursing, etc." While the Association main- the requested representational services, it assigns tains, as a general proposition, that the definition of "supervisor" under. the Act is not applicable to licensed professional nursing positions below staff members, "nursing representative" and a the title of assistant director of nursing of hospital and health care related "labor relations representative," to assist the nurses institutions, it admitted for purposes of this proceeding that "statutory su- in accomplishing their representational goal. The pervisors" have in the past, are presently, and can in the future be elected nursing and labor relations representatives will meet to membership on its board of directors, and while no supervisory or managerial employee from the Respondent's hospital has ever been elect- with the interested nurses, hold organizational meet- ed as a director it is conceivable that this could happen. ings to advise the nurses as to the scope of the As- " The record shows that the Association's board of directors has never sociation's program, the manner in which it is con- included as a member any supervisory or managerial employee employed ducted and the potential outcome for certification by the Respondent. Additionally, albeit there have been in the past and now are presently on the board of directors supervisors and managerial and bargaining, and provide any necessary technical employees employed by other hospitals and health care related institu- guidance and assistance required, i.e., the how and tions, the Respondent introduced no evidence which showed that any of wherefore of obtaining signed authorization cards, these members interfered with, dominated, influenced, or controlled any etc of the Association's collective-bargaining activities, or that the board members who were supervisors at some competing hospital acted in any way so as to create any conflict of interest, nor that these board members Following Board certification of the Association as the had any motive to compromise the interests of employee-nurses. collective-bargaining representative of the nurses in the Concerning the board of directors' input into the Association's bargain- appropriate unit, 27 the Association provides the nurses ing process, Welch testified that she knew of no instance in which the i i i i i t r o board of directors vetoed, prohibited, or overrode any decision of any bargaining unit or even considered doing so nor any instance in which the board countermanded a staff decision. » See C.P. Exh. 8(b) in evidence (Association's organizational chart). The evidence herein does show however that, in 1977, the Associ- The Association's "Organizational Chart-Economic and General ation's board of directors established a special voluntary S12 "service fee" Welfare Program" shows that the EOWP is headed by its director, fol- to be paid by nurses represented by the Association to "assist in provid- lowed by its regional coordinator (there is one regional coordinator for ing additional financial resources for implementing the collective bargain- each of the 4 goegraphical regions in New York State), and then its nurs- ing program." This voluntary "fee" was discontinued by the board of di- ing representative and labor relations representative (the number of nurs- rectors after I year when it was determined that a dues increase which it ing and labor relations representatives varies in each geographical area had approved for submission to the Association's voting body would pro- based on need and availability of trained personnel in these fields). vide any needed financial support of the program. m' The particular unit of nurses represented by the Association at a hos- n The Association also has support services such as, library, research pital or other health care related facility is referred to by the Association and publications, and public relations. as a Council of Nursing Practitioners although at what stage of the col- u However, there are exceptions such as the librarian, public relations lective-bargaining process this title becomes effective is not clear from personnel, and the labor relations representative. the record. These nurses units or "councils" always exclude therefrom 2 This program encompasses the Association's labor relations func- statutory supervisors and managerial employees in pursuance of the Act tions. and Board policy. NORTH SHORE UNIVERSITY HOSPITAL 857 the Association, besides establishing administrative program directors, each of whom is immediately respon- policy, also determines membership qualifications, dues sible to the deputy director for programs." requirements, the Association's administrative and pro- gram budget, and appoints members to various standing C. The Association's Economic and General Welare committees. 1 The Association's programs cover the Program areas of nursing education, nursing practice and services, The EGWP under which the Association's collective- legislation, economic and general welfare, and organiza- bargaining functions are conducted is organized on the tion services." basis of four geographical regions within the State of b. The Association's staff New York. Each region is headed by a regional coordi- nator who reports to the EGWP director. These regions The administrative programing functions of the Asso- are additionally staffed by nursing and labor relations ciation are performed by a staff of paid full-time employ- representatives who provide assistance to nurses in orga- ees, who are usually themselves licensed professional nizing bargaining units and in negotiating and administer- nurses, 23 and who are not employed by any hospital or i"B collective-bargaining agreements. The Association's health care facility or in fact by any other employer. The executive director hires all the above employees.2 The Association's chief executive administrative officer is its Association also has a "Council on Economic and Gen- executive director, who is responsible for implementing e r a l Welfare," herein called the Council. The members all of the Association's program activities including the t h e r e t o a r e appointed by the board of directors and staff- "Economic and General Welfare Program," also referred ing is provided by the director of the program. The to herein as the EGWP, which we are particularly con- C o u n c il m a k e s recommendations to the board of direc- cerned with herein. 24 The executive director is assisted in t o r s in t h e a r e a s c o v e r e d by the Association's EGWP her duties by a deputy director for programs and a and serves as a n adviso r y body t o the A s so cia tio n 's deputy director for administration who are responsible, E . respectively, for coordinating the Association's program tioheas sociaion s colctv-barg pro fun c - activities and administrative functions. The deputy direc- tors are in turn assisted by the administrative and pro- Nurses at a hospital or other health care related fa- gram staff of the Association. Activities in each of the cility will contact the Association for preliminary Association's four major programs are coordinated by advice and guidance concerning representation. If the Association determines that it is able to provide department head for surgical nursing, etc." While the Association main- the requested representational Services, it assigns tains, as a general proposition, that the definition of "supervisor" under the Act is not applicable to licensed professional nursing positions below s t a f members, "nursing representative" and a the title of assistant director of nursing of hospital and health care related "labor relations representative," to assist the nurses institutions, it admitted for purposes of this proceeding that "statutory su- in accomplishing their representational goal. The pervisors" have in the past, are presently, and can in the future be elected nursing and labor relations representatives will meet to membership on its board of directors, and while no supervisory or managerial employee from the Respondent's hospital has ever been elect- wi t h the interested nurses, hold organizational meet- ed as a director it is conceivable that this could happen. ings to advise the nurses as to the scope of the As- " The record shows that the Association's board of directors has never sociation's program, the manner in which it is con- included aa member any supervisory or managerial employee employed ducted and the potential outcome for certification by the Respondent. Additionally, albeit there have been in the past and now are presently on the board of directors supervisors and managerial a n d bargaining, and provide any necessary technical employees employed by other hospitals and health care related institu- guidance and assistance required, i.e., the how and tions, the Respondent introduced no evidence which showed that any of wherefore of obtaining signed authorization Cards, these members interfered with, dominated, influenced, or controlled any etc. of the Association's collective-bargaining activities, or that the board members who were supervisors at some competing hospital acted in any way so as to create any conflict of interest, nor that these board members Following Board certification of the Association as the had any motive to compromise the interests of employee-nurses. collective-bargaining representative of the nurses in the Concerning the board of directors' input into the Association's bargain- appropriate unit, 2 7 the Association provides the nurses ing process, Welch testified that she knew of no instance in which the ui w i a i t for o moe board of directors vetoed, prohibited, or overrode any decision of any bargaining unit or even considered doing so nor any instance in which the board countermanded a staff decision.» See C.P. Exh. 8(b) in evidence (Association's organizational chart). The evidence herein does show however that, in 1977, the Associ- The Association's "Organizational Chart-Economic and General ation's board of directors established a special voluntary $12 "service fee" Welfare Program" shows that the EOWP is headed by its director, fol- to be paid by nurses represented by the Association to "assist in provid- lowed by its regional coordinator (there is one regional coordinator for ing additional financial resources for implementing the collective bargain- each of the 4 goegraphical regions in New York State), and then its nurs- ing program." This voluntary "fee" was discontinued by the board of di- ing representative and labor relations representative (the number of nurs- rectors after I year when it was determined that a dues increase which it ing and labor relations representatives varies in each geographical area had approved for submission to the Association's voting body would pro- based on need and availability of trained personnel in these fields). vide any needed financial support of the program. 11 The particular unit of nurses represented by the Association at a hos- " The Association also has support services such as, library, research pital or other health care related facility is referred to by the Association and publications, and public relations. as a Council of Nursing Practitioners although at what stage of the col- ° However, there are exceptions such as the librarian, public relations lective-bargaining process this title becomes effective is not clear from personnel, and the labor relations representative. the record. Thewe nurses units or "councils" always exclude therefrom U This program encompasses the Association's labor relations func- statutory supervisors and managerial employees in pursuance of the Act tions. and Board policy. NORTH SHORE UNIVERSITY HOSPITAL 857 the Association, besides establishing administrative program directors, each of whom is immediately respon- policy, also determines membership qualifications, dues sible to the deputy director for programs." requirements, the Association's administrative and pro- gram budget, and appoints members to various standing C. The Association's Economic and General Welare committees.2 The Association's programs cover the Program areas of nursing education, nursing practice and services, The EGWP under which the Association's collective- legislation, economic and general welfare, and organiza- bargaining functions are conducted is organized on the tion services." basis of four geographical regions within the State of b. The Association's staff New York. Each region is headed by a regional coordi- nator who reports to the EGWP director. These regions The administrative programing functions of the Asso- are additionally staffed by nursing and labor relations ciation are performed by a staff of paid full-time employ- representatives who provide assistance to nurses in orga- ees, who are usually themselves licensed professional nizing bargaining units and in negotiating and administer- nurses, 23 and who are not employed by any hospital or i"B collective-bargaining agreements. The Association's health care facility or in fact by any other employer. The executive director hires all the above employees.2 The Association's chief executive administrative officer is its Association also has a "Council on Economic and Gen- executive director, who is responsible for implementing e r a l Welfare," herein called the Council. The members all of the Association's program activities including the t h e r e t o a r e appointed by the board of directors and staff- "Economic and General Welfare Program," also referred ing is provided by the director of the program. The to herein as the EGWP, which we are particularly con- C o u n c il m a k e s recommendations to the board of direc- cerned with herein. 24 The executive director is assisted in t o r s in t h e a r e a s c o v e r e d by the Association's EGWP her duties by a deputy director for programs and a and serves as a n adviso r y body t o the A s so cia tio n 's deputy director for administration who are responsible, E . respectively, for coordinating the Association's program tioheas sociaion s colctv-barg pro fun c - activities and administrative functions. The deputy direc- tors are in turn assisted by the administrative and pro- Nurses at a hospital or other health care related fa- gram staff of the Association. Activities in each of the cility will contact the Association for preliminary Association's four major programs are coordinated by advice and guidance concerning representation. If the Association determines that it is able to provide department head for surgical nursing, etc." While the Association main- the requested representational Services, it assigns tains, as a general proposition, that the definition of "supervisor" under the Act is not applicable to licensed professional nursing positions below s t a f members, "nursing representative" and a the title of assistant director of nursing of hospital and health care related "labor relations representative," to assist the nurses institutions, it admitted for purposes of this proceeding that "statutory su- in accomplishing their representational goal. The pervisors" have in the past, are presently, and can in the future be elected nursing and labor relations representatives will meet to membership on its board of directors, and while no supervisory or managerial employee from the Respondent's hospital has ever been elect- wi t h the interested nurses, hold organizational meet- ed as a director it is conceivable that this could happen. ings to advise the nurses as to the scope of the As- " The record shows that the Association's board of directors has never sociation's program, the manner in which it is con- included aa member any supervisory or managerial employee employed ducted and the potential outcome for certification by the Respondent. Additionally, albeit there have been in the past and now are presently on the board of directors supervisors and managerial a n d bargaining, and provide any necessary technical employees employed by other hospitals and health care related institu- guidance and assistance required, i.e., the how and tions, the Respondent introduced no evidence which showed that any of wherefore of obtaining signed authorization Cards, these members interfered with, dominated, influenced, or controlled any etc. of the Association's collective-bargaining activities, or that the board members who were supervisors at some competing hospital acted in any way so as to create any conflict of interest, nor that these board members Following Board certification of the Association as the had any motive to compromise the interests of employee-nurses. collective-bargaining representative of the nurses in the Concerning the board of directors' input into the Association's bargain- appropriate unit, 2 7 the Association provides the nurses ing process, Welch testified that she knew of no instance in which the ui w i a i t for o moe board of directors vetoed, prohibited, or overrode any decision of any bargaining unit or even considered doing so nor any instance in which the board countermanded a staff decision.» See C.P. Exh. 8(b) in evidence (Association's organizational chart). The evidence herein does show however that, in 1977, the Associ- The Association's "Organizational Chart-Economic and General ation's board of directors established a special voluntary $12 "service fee" Welfare Program" shows that the EGWP is headed by its director, fol- to be paid by nurses represented by the Association to "assist in provid- lowed by its regional coordinator (there is one regional coordinator for ing additional financial resources for implementing the collective bargain- each of the 4 goegraphical regions in New York State), and then its nurs- ing program." This voluntary "fee" was discontinued by the board of di- ing representative and labor relations representative (the number of nurs- rectors after I year when it was determined that a dues increase which it ing and labor relations representatives varies in each geographical area had approved for submission to the Association's voting body would pro- based on need and availability of trained personnel in these fields). vide any needed financial support of the program. 11 The particular unit of nurses represented by the Association at a hos- " The Association also has support services such as, library, research pital or other health care related facility is referred to by the Association and publications, and public relations. as a Council of Nursing Practitioners although at what stage of the col- ° However, there are exceptions such as the librarian, public relations lective-bargaining process this title becomes effective is not clear from personnel, and the labor relations representative. the record. Thewe nurses units or "councils" always exclude therefrom U This program encompasses the Association's labor relations func- statutory supervisors and managerial employees in pursuance of the Act tions. and Board policy. NORTH SHORE UNIVERSITY HOSPITAL 857 the Association, besides establishing administrative program directors, each of whom is immediately respon- policy, also determines membership qualifications, dues sible to the deputy director for programs." requirements, the Association's administrative and pro- gram budget, and appoints members to various standing C. The Association's Economic and General Welare committees. 1 The Association's programs cover the Program areas of nursing education, nursing practice and services, The EGWP under which the Association's collective- legislation, economic and general welfare, and organiza- bargaining functions are conducted is organized on the tion services." basis of four geographical regions within the State of b. The Association's staff New York. Each region is headed by a regional coordi- nator who reports to the EGWP director. These regions The administrative programing functions of the Asso- are additionally staffed by nursing and labor relations ciation are performed by a staff of paid full-time employ- representatives who provide assistance to nurses in orga- ees, who are usually themselves licensed professional nizing bargaining units and in negotiating and administer- nurses, 23 and who are not employed by any hospital or i"B collective-bargaining agreements. The Association's health care facility or in fact by any other employer. The executive director hires all the above employees.2 The Association's chief executive administrative officer is its Association also has a "Council on Economic and Gen- executive director, who is responsible for implementing e r a l Welfare," herein called the Council. The members all of the Association's program activities including the t h e r e t o a r e appointed by the board of directors and staff- "Economic and General Welfare Program," also referred ing is provided by the director of the program. The to herein as the EGWP, which we are particularly con- C o u n c il m a k e s recommendations to the board of direc- cerned with herein. 24 The executive director is assisted in t o r s in t h e a r e a s c o v e r e d by the Association's EGWP her duties by a deputy director for programs and a and serves as a n adviso r y body t o the A s so cia tio n 's deputy director for administration who are responsible, E . respectively, for coordinating the Association's program The Asociaion s cletv-brang p r o c e s s func - activities and administrative functions. The deputy direc- tors are in turn assisted by the administrative and pro- Nurses at a hospital or other health care related fa- gram staff of the Association. Activities in each of the cility will contact the Association for preliminary Association's four major programs are coordinated by advice and guidance concerning representation. If the Association determines that it is able to provide department head for surgical nursing, etc." While the Association main- the requested representational Services, it assigns tains, as a general proposition, that the definition of "supervisor" under the Act is not applicable to licensed professional nursing positions below s t a f members, "nursing representative" and a the title of assistant director of nursing of hospital and health care related "labor relations representative," to assist the nurses institutions, it admitted for purposes of this proceeding that "statutory su- in accomplishing their representational goal. The pervisors" have in the past, are presently, and can in the future be elected nursing and labor relations representatives will meet to membership on its board of directors, and while no supervisory or managerial employee from the Respondent's hospital has ever been elect- wi t h the interested nurses, hold organizational meet- ed as a director it is conceivable that this could happen. ings to advise the nurses as to the scope of the As- " The record shows that the Association's board of directors has never sociation's program, the manner in which it is con- included aa member any supervisory or managerial employee employed ducted and the potential outcome for certification by the Respondent. Additionally, albeit there have been in the past and now are presently on the board of directors supervisors and managerial a n d bargaining, and provide any necessary technical employees employed by other hospitals and health care related institu- guidance and assistance required, i.e., the how and tions, the Respondent introduced no evidence which showed that any of wherefore of obtaining signed authorization Cards, these members interfered with, dominated, influenced, or controlled any etc. of the Association's collective-bargaining activities, or that the board members who were supervisors at some competing hospital acted in any way so as to create any conflict of interest, nor that these board members Following Board certification of the Association as the had any motive to compromise the interests of employee-nurses. collective-bargaining representative of the nurses in the Concerning the board of directors' input into the Association's bargain- appropriate unit, 2 7 the Association provides the nurses ing process, Welch testified that she knew of no instance in which the ui w i a i t for o moe board of directors vetoed, prohibited, or overrode any decision of any bargaining unit or even considered doing so nor any instance in which the board countermanded a staff decision.» See C.P. Exh. 8(b) in evidence (Association's organizational chart). The evidence herein does show however that, in 1977, the Associ- The Association's "Organizational Chart-Economic and General ation's board of directors established a special voluntary $12 "service fee" Welfare Program" shows that the EGWP is headed by its director, fol- to be paid by nurses represented by the Association to "assist in provid- lowed by its regional coordinator (there is one regional coordinator for ing additional financial resources for implementing the collective bargain- each of the 4 goegraphical regions in New York State), and then its nurs- ing program." This voluntary "fee" was discontinued by the board of di- ing representative and labor relations representative (the number of nurs- rectors after I year when it was determined that a dues increase which it ing and labor relations representatives varies in each geographical area had approved for submission to the Association's voting body would pro- based on need and availability of trained personnel in these fields). vide any needed financial support of the program. 11 The particular unit of nurses represented by the Association at a hos- " The Association also has support services such as, library, research pital or other health care related facility is referred to by the Association and publications, and public relations. as a Council of Nursing Practitioners although at what stage of the col- ° However, there are exceptions such as the librarian, public relations lective-bargaining process this title becomes effective is not clear from personnel, and the labor relations representative. the record. Thewe nurses units or "councils" always exclude therefrom U This program encompasses the Association's labor relations func- statutory supervisors and managerial employees in pursuance of the Act tions. and Board policy. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "rules" suggesting guidelines designed to help them con- herein indicates that the above procedure was substan- ceive a working structure, i.e., election of unit officers, tially followed in the Association's initial organizing of establishing unit employee committees, and defining the nurses employed at the Respondent's hospital and up committee responsibilities, preparation of bylaws, etc.2 through the election and its certification by the Board. The nominating committee is elected from among the nurses in the bargaining unit who then elect officers from d. The Association's nominating committee a slate of candidates prepared by the committee also a slate of candidates prepared by the committee also Pursuant to the Association's bylaws, the duties of the from among the unit nurses. The negotiating committee no natn co tte ae to the ssoi is usually constituted from the elected bargaining unit of- nomnang committee are to notify the Assocatons fis usually constitute from among the bargaining unit of membership and its "constituent district nursing associ- fic ers or from among for co ie bargai nit ng wh te ms. ations" of the offices to be filled, evaluate persons whose In preparation for collective bargaining with the em- names have been submitted for office, prepare slates of ployer the unit nurses develop their own contract pro- candidates for such office and notify the Association's posals through consultation with the Association's nurs- e ers of e o oruot to thir s c ing and labor relations representatives and through solici- tion 3 It is clear t he nominating committee is one tation thereof from the bargaining unit nurses them- ttotselvesr. T fhe bargaining unit nredecides which of importance with its members having "great responsi- posals will be submitted to the employer as demands by bility." 3 The fve members of this committee are elected the negotiating committee. 29 Contract negotiations them- through secret mail ballot by the entire membership of selves are conducted by the negotiating committee with the Association. the assistance of the Association's nursing and labor rela- The evidence shows that in 1977 the nominating com- tions representatives as a collective-bargaining team with mittee included Marilyn McClellan, admittedly a supervi- the labor relations representative often functioning as the sory employee (assistant director, staff development, Uni- "primary negotiator on behalf of the nurses unit." 30 versity of Rochester School of Nursing),34 and Catherine When negotiations are completed, unit members vote Foster, whom the Respondent employs and alleges to be whether to accept or reject the agreement. If the nursing a supervisor under the Act. 35 unit approves the contract, the Association generally takes responsibility for the technical aspects of reducing Special committees the agreement to written contract form. The agreement Evidence was offered by the Respondent concerning is typed, reproduced, and sent back to the unit for particular "Special Committees" and "Task Forces." review by the nurses unit's representatives and the Asso- Members of the "Special Committees" and "Task ciation's labor relations representative for accuracy and Forces" of the Association are appointed by the board of completeness. If the agreement conforms to the nurses directors. The "Special Committee to Consider Concerns unit's understanding of what was agreed to in the negoti- of Directors of Nursing Practice and Services" was cre- ations, the contract is submitted to the employer and to ated to study the impact of the Association's collective- the Association's executive director for execution. Al- bargaining activities upon the right of directors of nurs- though the executive director generally signs the collec- ing services to full participation in the activities of the tive-bargaining agreement on behalf of the Association, Association and whether the collective-bargaining pro- he does not have the authority to reject an agreement gram of the Association should be separate, in effect, and her execution thereof "simply signifies that she is whether there should be two associations. The commit- satisfied that the agreement conforms to what the bar- tee recommended, in substance, that there be continued gaining unit has actually negotiated." 3 ' The record "full participation by Directors of Nursing Practices and Services" in the Association, that legal assistance be pro- U According to the uncontradicted testimony of Catheryne Welch, S , each nurses unit makes the ultimate decisions as to what rules to adopt vided to any director of nursing forced or coerced to and the method for establishing nominating and negotiating committees. resign from membership in the Association, and that the Further, Welch testified that the Association does not advise the unit as Association develop a model employment contract for to who should be on these committees nor does it have a vote in the s- directors of nursing and assist them in securing such con- tablishment thereof. " Welch testified uncontravertedly that the proposals to be negotiated tracts. While there was some dispute among the parties during collective bargaining with the employer are determined by the as to just how many members of this committee were su- nurses units themselves, not the Association's nursing or labor relations pervisory employees, it is clear that at least two of the representatives, and are not submitted to the Association for approval. six members were3 Even when Association staff are conducting negotiations, their authority to bargain on behalf of the unit is always limited by the ultimate authori- ty of the nurses unit to authorize the negotiation of all proposals and to " See the testimony of Catheryne Welch. accept or reject proposed modifications of unit proposals. See the testimony of Ruth Harper, executive director of District 14, m According to the evidence, even though the labor relations repre- a constituent district nursing association of the NYSNA. sentative may assume the function of primary negotiator because of his " Geographically, the school of nursing is located over 300 miles from expertise in this area, the negotiating committee may preclude this if the the Respondent's hospital. nurses unit so desires." While the Association does not concede Foster's supervisory status, "' Both Catheryne Welch, the Association's deputy director for pro- it maintains that even if she were a statutory supervisor this would have gram, and Jeanette Coane, employed by the Association as a nursing rep- no effect on its ability to represent the Respondent's nurses in an appro- resentative, testified that they knew of no instance in which the Associ- priate unit for purposes of collective bargaining. It should be noted that ation's executive director, or anyone authorized to sign a collective-bar- Foster was chairwoman of this committee and at the same time was also gaining agreement on her behalf, had refused to execute a bargaining president of District 14. agreement submitted for such signature. o Louise Pam and Audrey Byrnes. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "rules" suggesting guidelines designed to help them con- herein indicates that the above procedure was substan- ceive a working structure, i.e., election of unit officers, tially followed in the Association's initial organizing of establishing unit employee committees, and defining the nurses employed at the Respondent's hospital and up committee responsibilities, preparation of bylaws, etc."' through the election and its certification by the Board. The nominating committee is elected from among the nurses in the bargaining unit who then elect officers from d. The Association's nominating committee a slate of candidates prepared by the committee also o . i * ., i r. a slae ofcanddatesprepred y thecommtteealso Pursuant to the Association's bylaws, the duties of the from among the unit nurses. The negotiating committee p nomi a ng co mt t e a t o n otify the Autoeston's is usually constituted from the elected bargaining unit of- n o ~ a n omte r ontf h soito' ficers or from among the bargaining unit nursesmembership and its "constituent district nursing associ- In preparation for collective bargaining with the um- at io n s " o f the offices to be filled, evaluate persons whose ployer the unit nurses develop their own contract pro- n am es have been submitted for office, prepare slates of ployr th unt nusesdeveop teirown ontact ro- candidates for such offices, and notify the Association's posals through consultation with the Association's nurs- mem esh th op rity to votefy to theiatsones ing and labor relations representatives and through solici- tinS32 t p o f t h e opportunity to vote as to their selec- tation thereof from the bargaining unit nurses them- t lo n s- h l s c le ar t h a t t h e "ommating committee is one selves. The bargaining unit decides which of these pro- o f imp o r t a nc e wi t h its members having "great responsi- posals will be submitted to the employer as demands by throtyu 3 Th e f e v e members of this committee are elected the negotiating committee. 29 Contract negotiations them-through secret mail ballot by the entire membership of selves are conducted by the negotiating committee with the Association. the assistance of the Association's nursing and labor rela- T h e evidence shows that in 1977 the nominating com- tions representatives as a collective-bargaining team with mittee included Marilyn McClellan, admittedly a supervi- the labor relations representative often functioning as the sory employee (assistant director, staff development, Uni- "primary negotiator on behalf of the nurses unit." 30 versity of Rochester School of Nursing)," and Catherine When negotiations are completed, unit members vote Foster, whom the Respondent employs and alleges to be whether to accept or reject the agreement. If the nursing a supervisor under the Act. 3f unit approves the contract, the Association generally takes responsibility for the technical aspects of reducing e. -V^"" committees the agreement to written contract form. The agreement Evidence was offered by the Respondent concerning is typed, reproduced, and sent back to the unit for particular "Special Committees" and "Task Forces." review by the nurses unit's representatives and the Asso- Members of the "Special Committees" and "Task ciation's labor relations representative for accuracy and Forces" of the Association are appointed by the board of completeness. If the agreement conforms to the nurses directors. The "Special Committee to Consider Concerns unit's understanding of what was agreed to in the negoti- of Directors of Nursing Practice and Services" was cre- ations, the contract is submitted to the employer and to ated to study the impact of the Association's collective- the Association's executive director for execution. Al- bargaining activities upon the right of directors of nurs- though the executive director generally signs the collec- ing services to full participation in the activities of the tive-bargaining agreement on behalf of the Association, Association and whether the collective-bargaining pro- he does not have the authority to reject an agreement gram of the Association should be separate, in effect, and her execution thereof "simply signifies that she is whether there should be two associations. The commit- satisfied that the agreement conforms to what the bar- tee recommended, in substance, that there be continued gaining unit h a s actually negotiated."J3 The record "full participation by Directors of Nursing Practices and „ . .. , .,..,. , ^ ,. „, , ,.Services" in the Association, that legal assistance be pro- ~ According to the uncontradicted testimony of Catheryne Welch, S i t Ao t, t l a b each nurses unit makes the ultimate decisions as to what rules to adopt vid e d to any director of nursing forced or coerced to and the method for establishing nominating and negotiating committees. resign from membership in the Association, and that the Further, Welch testified that the Association does not advise the unit as Association develop a model employment Contract for t*bos woh ouldhebe on t h es e commi t t ees n o r d o es it h ave a v o t e i n the es- directors of nursing and assist them in securing such con. " Welch testified uncontravertedly that the proposals to be negotiated tracts. While there was some dispute among the parties during collective bargaining with the employer are determined by the as to just how many members of this committee Were su- nurses units themselves, not the Association's nursing or labor relations pervisory employees, it is clear that at least two of the representative&, and are not submitted to the Association for approval. six members were.33 Even when Association staff are conducting negotiations, their authority to bargain on behalf of the unit is always limited by the ultimate authori- ty of the nurses unit to authorize the negotiation of all proposals and to " See the testimony of Catheryne Welch. accept or reject proposed modifications of unit proposals." See the testimony of Ruth Harper, executive director of District 14, M According to the evidence, even though the labor relations repre- a constituent district nursing association of the NYSNA. sentative may assume the function of primary negotiator because of his " Geographically, the school of nursing is located over 300 miles from expertise in this area the negotiating committee may preclude this if the the Respondent's hospital. nurses unit so desires. " While the Association does not concede Foster's supervisory status, " Both Catheryne Welch, the Association's deputy director for pro- it maintains that even if she were a statutory supervisor this would have gram, and Jeanette Coane, employed by the Association as a nursing rep- no effect on its ability to represent the Respondent's nurses in an appro- resentative, testified that they knew of no instance in which the Associ- priate unit for purposes of collective bargaining. It should be noted that ation's executive director, or anyone authorized to sign a collective-bar- Foster was chairwoman of this committee and at the same time was also gaining agreement on her behalf, had refused to execute a bargaining president of District 14. agreement submitted for such signature. M Louise Pam and Audrey Bymes. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "rules" suggesting guidelines designed to help them con- herein indicates that the above procedure was substan- ceive a working structure, i.e., election of unit officers, tially followed in the Association's initial organizing of establishing unit employee committees, and defining the nurses employed at the Respondent's hospital and up committee responsibilities, preparation of bylaws, etc."' through the election and its certification by the Board. The nominating committee is elected from among the nurses in the bargaining unit who then elect officers from d. The Association's nominating committee a slate of candidates prepared by the committee also o . i * *, i r. a slae ofcanddatesprepred y thecommtteealso Pursuant to the Association's bylaws, the duties of the from among the unit nurses. The negotiating committee p nomi a ng co mt t e ato noby the Autoeston's is usually constituted from the elected bargaining unit of- oma gcomte artontfth Ascatns ficers or from among the bargaining unit nursesmembership and its "constituent district nursing associ- In preparation for collective bargaining with the um- at io n s " o f the offices to be filled, evaluate persons whose ployer the unit nurses develop their own contract pro- n am es have been submitted for office, prepare slates of ployr th unt nusesdeveop teirown ontact ro- candidates for such offices, and notify the Association's posals through consultation with the Association's nurs- cmebeshi o th op rity to votefy to theiatsones ing and labor relations representatives and through solici- tinS32 t p o f t h e opportunity to vote as to their selec- tation thereof from the bargaining unit nurses them- t lo n s- h l s Glar that the nominating committee is one selves. The bargaining unit decides which of these pro- o f imp o r t a nc e wi t h its members having "great responsi- posals will be submitted to the employer as demands by bility.ho 3 The five members of this committee are elected the negotiating committee. 29 Contract negotiations them-through secret mail ballot by the entire membership of selves are conducted by the negotiating committee with the Association. the assistance of the Association's nursing and labor rela- T h e evidence shows that in 1977 the nominating com- tions representatives as a collective-bargaining team with mittee included Marilyn McClellan, admittedly a supervi- the labor relations representative often functioning as the sory employee (assistant director, staff development, Uni- "primary negotiator on behalf of the nurses unit." 30 versity of Rochester School of Nursing)," and Catherine When negotiations are completed, unit members vote Foster, whom the Respondent employs and alleges to be whether to accept or reject the agreement. If the nursing a supervisor under the Act. 3f unit approves the contract, the Association generally takes responsibility for the technical aspects of reducing e. -V^"" committees the agreement to written contract form. The agreement Evidence was offered by the Respondent concerning is typed, reproduced, and sent back to the unit for particular "Special Committees" and "Task Forces." review by the nurses unit's representatives and the Asso- Members of the "Special Committees" and "Task ciation's labor relations representative for accuracy and Forces" of the Association are appointed by the board of completeness. If the agreement conforms to the nurses directors. The "Special Committee to Consider Concerns unit's understanding of what was agreed to in the negoti- of Directors of Nursing Practice and Services" was cre- ations, the contract is submitted to the employer and to ated to study the impact of the Association's collective- the Association's executive director for execution. Al- bargaining activities upon the right of directors of nurs- though the executive director generally signs the collec- ing services to full participation in the activities of the tive-bargaining agreement on behalf of the Association, Association and whether the collective-bargaining pro- he does not have the authority to reject an agreement gram of the Association should be separate, in effect, and her execution thereof "simply signifies that she is whether there should be two associations. The commit- satisfied that the agreement conforms to what the bar- tee recommended, in substance, that there be continued gaining unit h a s actually negotiated."J3 The record "full participation by Directors of Nursing Practices and „ . .. , .,..,. , ^ ,. „, , ,.Services" in the Association, that legal assistance be pro- ~ According to the uncontradicted testimony of Catheryne Welch, S i t Ao t, t l a b each nurses unit makes the ultimate decisions as to what rules to adopt vid e d to any director of nursing forced or coerced to and the method for establishing nominating and negotiating committees. resign from membership in the Association, and that the Further, Welch testified that the Association does not advise the unit as Association develop a model employment Contract for t*bos woh ouldhebe on t h es e commi t t ees n o r d o es it h ave a v o t e i n t he es- directors of nursing and assist them in securing such con. " Welch testified uncontravertedly that the proposals to be negotiated tracts. While there was some dispute among the parties during collective bargaining with the employer are determined by the as to just how many members of this committee Were su- nurses units themselves, not the Association's nursing or labor relations pervisory employees, it is clear that at least two of the representative&, and are not submitted to the Association for approval. six members were.33 Even when Association staff are conducting negotiations, their authority to bargain on behalf of the unit is always limited by the ultimate authori- ty of the nurses unit to authorize the negotiation of all proposals and to " See the testimony of Catheryne Welch. accept or reject proposed modifications of unit proposals." See the testimony of Ruth Harper, executive director of District 14, M According to the evidence, even though the labor relations repre- a constituent district nursing association of the NYSNA. sentative may assume the function of primary negotiator because of his " Geographically, the school of nursing is located over 300 miles from expertise in this area the negotiating committee may preclude this if the the Respondent's hospital. nurses unit so desires. " While the Association does not concede Foster's supervisory status, " Both Catheryne Welch, the Association's deputy director for pro- it maintains that even if she were a statutory supervisor this would have gram, and Jeanette Coane, employed by the Association as a nursing rep- no effect on its ability to represent the Respondent's nurses in an appro- resentative, testified that they knew of no instance in which the Associ- priate unit for purposes of collective bargaining. It should be noted that ation's executive director, or anyone authorized to sign a collective-bar- Foster was chairwoman of this committee and at the same time was also gaining agreement on her behalf, had refused to execute a bargaining president of District 14. agreement submitted for such signature. M Louise Pam and Audrey Bymes. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "rules" suggesting guidelines designed to help them con- herein indicates that the above procedure was substan- ceive a working structure, i.e., election of unit officers, tially followed in the Association's initial organizing of establishing unit employee committees, and defining the nurses employed at the Respondent's hospital and up committee responsibilities, preparation of bylaws, etc."' through the election and its certification by the Board. The nominating committee is elected from among the nurses in the bargaining unit who then elect officers from d. The Association's nominating committee a slate of candidates prepared by the committee also o . i * *, i r. a slae ofcanddatesprepred y thecommtteealso Pursuant to the Association's bylaws, the duties of the from among the unit nurses. The negotiating committee p nomi a ng t o th e A sso c iation's is usually constituted from the elected bargaining unit of- oma gcomte artontfth Ascatns fluers or from among the bargaining unit nursesmembership and its "constituent district nursing associ- In preparation for collective bargaining with the um- at io n s " o f the offices to be filled, evaluate persons whose ployer the unit nurses develop their own contract pro- n am es have been submitted for office, prepare slates of ployr th unt nusesdeveop teirown ontact ro- candidates for such offices, and notify the Association's posals through consultation with the Association's nurs- cmembershi offthe and notefy to theiatsones ing and labor relations representatives and through solici- tinS32 t p o f t h e opportunity to vote as to their selec- tation thereof from the bargaining unit nurses them- t lo n s- h l s Glar that the nominating committee is one selves. The bargaining unit decides which of these pro- o f imp o r t a nc e wi t h its members having "great responsi- posals will be submitted to the employer as demands by bility.ho 3 The five members of this committee are elected the negotiating committee. 29 Contract negotiations them-through secret mail ballot by the entire membership of selves are conducted by the negotiating committee with the Association. the assistance of the Association's nursing and labor rela- T h e evidence shows that in 1977 the nominating com- tions representatives as a collective-bargaining team with mittee included Marilyn McClellan, admittedly a supervi- the labor relations representative often functioning as the sory employee (assistant director, staff development, Uni- "primary negotiator on behalf of the nurses unit." 30 versity of Rochester School of Nursing)," and Catherine When negotiations are completed, unit members vote Foster, whom the Respondent employs and alleges to be whether to accept or reject the agreement. If the nursing a supervisor under the Act. 3f unit approves the contract, the Association generally takes responsibility for the technical aspects of reducing e. -V^"" committees the agreement to written contract form. The agreement Evidence was offered by the Respondent concerning is typed, reproduced, and sent back to the unit for particular "Special Committees" and "Task Forces." review by the nurses unit's representatives and the Asso- Members of the "Special Committees" and "Task ciation's labor relations representative for accuracy and Forces" of the Association are appointed by the board of completeness. If the agreement conforms to the nurses directors. The "Special Committee to Consider Concerns unit's understanding of what was agreed to in the negoti- of Directors of Nursing Practice and Services" was cre- ations, the contract is submitted to the employer and to ated to study the impact of the Association's collective- the Association's executive director for execution. Al- bargaining activities upon the right of directors of nurs- though the executive director generally signs the collec- ing services to full participation in the activities of the tive-bargaining agreement on behalf of the Association, Association and whether the collective-bargaining pro- he does not have the authority to reject an agreement gram of the Association should be separate, in effect, and her execution thereof "simply signifies that she is whether there should be two associations. The commit- satisfied that the agreement conforms to what the bar- tee recommended, in substance, that there be continued gaining unit h a s actually negotiated."J3 The record "full participation by Directors of Nursing Practices and „ . .. , .,..,. , ^ ,. „, , ,.Services" in the Association, that legal assistance be pro- ~ According to the uncontradicted testimony of Catheryne Welch, S i t Ao t, t l a b each nurses unit makes the ultimate decisions as to what rules to adopt vid e d to any director of nursing forced or coerced to and the method for establishing nominating and negotiating committees. resign from membership in the Association, and that the Further, Welch testified that the Association does not advise the unit as Association develop a model employment Contract for t*bos woh ouldhebe on t h es e commi t t ees n o r d o es it h ave a v o t e i n t he es- directors of nursing and assist them in securing such con. " Welch testified uncontravertedly that the proposals to be negotiated tracts. While there was some dispute among the parties during collective bargaining with the employer are determined by the as to just how many members of this committee Were su- nurses units themselves, not the Association's nursing or labor relations pervisory employees, it is clear that at least two of the representative&, and are not submitted to the Association for approval. six members were.33 Even when Association staff are conducting negotiations, their authority to bargain on behalf of the unit is always limited by the ultimate authori- ty of the nurses unit to authorize the negotiation of all proposals and to " See the testimony of Catheryne Welch. accept or reject proposed modifications of unit proposals." See the testimony of Ruth Harper, executive director of District 14, M According to the evidence, even though the labor relations repre- a constituent district nursing association of the NYSNA. sentative may assume the function of primary negotiator because of his " Geographically, the school of nursing is located over 300 miles from expertise in this area the negotiating committee may preclude this if the the Respondent's hospital. nurses unit so desires. " While the Association does not concede Foster's supervisory status, " Both Catheryne Welch, the Association's deputy director for pro- it maintains that even if she were a statutory supervisor this would have gram, and Jeanette Coane, employed by the Association as a nursing rep- no effect on its ability to represent the Respondent's nurses in an appro- resentative, testified that they knew of no instance in which the Associ- priate unit for purposes of collective bargaining. It should be noted that ation's executive director, or anyone authorized to sign a collective-bar- Foster was chairwoman of this committee and at the same time was also gaining agreement on her behalf, had refused to execute a bargaining president of District 14. agreement submitted for such signature. M Louise Pam and Audrey Bymes. NORTH SHORE UNIVERSITY HOSPITAL 859 The "Task Force on Impediments to Quality Nursing organization" is one whose "constitution and bylaws are Care" was created to prepare, for submission to the As- in harmony" with each other and, in the case of District sociation's voting body, a report concerning the Associ- 14's "constituency" with the New York State Nurses As- ation's no-strike policy. The task force's final report con- sociation, has "been approved by a majority vote of the tained recommendations expressly leaving to each bar- board of directors of this Association." Welch continued gaining unit the final decision as to whether to withhold that the ANA, the Association, and District 14 are its services in a particular case. The task force itself exer- autonomous and separate nonprofit membership organi- cises no authority unilaterally to implement its proposals zations, each having its own constitution and bylaws, its since the Association's membership, its voting body, own membership, its own staff and programing, and its would have final approval as to any collective-bargaining own dues requirements, with "constituent" status ob- matters within the scope of its study and thereafter the tained on a voluntary basis. 42 However, the New York individual bargaining units of employee-nurses would State Nurses Association collects its own membership decide what to do if the recommendations were accept- dues as well as those of the American Nurses Associ- ed. The evidence shows that while none of the members ation and the district nurses associations, where applica- of this task force was a supervisory or managerial em- ble, in one payment and then forwards the respective ployee of the Respondent some members were supervi- dues amounts to the appropriate nurses association. The sory employees at other public or private hospitals or in- reason therefor appears to be that the NYSNA has its stitutions.3 7 own computerized payroll equipment which readily Another task force, "On Organizational Implication of lends itself to this arrangement. 4 It is clear from the the 1985 Proposal," a six-member group, included no su- record that a part of the dues paid to the association is pervisory or managerial employees of the Respondent. 3 used to further the association's EGW program. This task force was an advisory body charged with Welch in describing the interaction between the ANA studying whether the Association should extend member- ad t A test d ship privileges to licensed practical nurses who do not hold baccalaureate degrees. The task force recommended Periodically and from time to time the two organi- against so extending Association membership. zations work collaboratively on issues which fall f. The Council on Economic and General Welfare within their similar statements of purpose and func- tions, but each is a separate organization and func- This is a seven-member Council which serves, pursu- tions in that fashion. ant to the Association's bylaws, in an advisory capacity to the Association's board of directors who appoint its The Association has an "advisory council" composed members. The EGW Council also advises the EGWP of its "president" and the president or executive director staff. According to the uncontradicted testimony of of each of the 18 constituent districts and which meets Catheryne Welch, the Council does not implement the quarterly "for the sharing of information, for reacting to collective-bargaining program of the Association, does ideas, to bring concerns from local areas." While the not participate in organizing or negotiating on behalf of "advisory council" does not "make or implement policy" the Association, and has no authority for the conduct of it "may suggest to the board [of directors] or recom- any collective-bargaining activity. While there is some mends." Ruth Harper, District 14's executive director, dispute as to the supervisory or managerial status of two testified that its representatives to the "advisory council" of the seven members of the EGW Council, it is ad- had never made a suggestion concerning the Associ- mitted that supervisory or managerial employees can be ation's EGWP at any of these meetings. appointed to membership on the Council by the Associ- Concerning the "constituency" relationship between ation's board of directors. the Association and District 14, Harper testified that it, 2. The American Nurses Association,3 9 the New 2. T h e Americ an Nurses Assciation,39 the Nue w . . . really is that we are all bound by the same York State Nurses Association, and the Nurses Association of the Counties of Long Island, Inc.,ethical concept, the same general purpose for which Association of the C nties of L g Isl , Inc., we exist and that we don't vary and that is to ele- District 144°0~ vate the standards of the profession so we may The New York State Nurses Association (ANA) is a render the best care to the public. 4 "constituent" of the American Nurses Association and District 14 a "constituent" of the New York State Welch testified that the Association "has no requirement to simulta- Nurses Association.4 Welch testified that a "constituent neous or concurrent membership in any district association or the Ameri- can Nurses Association." However, according to the testimony of Ruth Harper, the American Nurses Association does require "tri-level" mem- " The evidence indicates that of 21 persons who have served as mem- bership, in the American Nurses Association, the New York or particular bers of this task force at least 4 were or now are supervisory employees. State Nurses Association, and the constituent district nurses association if " The record does not establish whether any of the six members of this applicable. task force were supervisors or managers at other hospitals. Harper testified that the Association's collection of District 14 mem- m The American Nurses Association is also referred to therein as - The American Nurses Association is also referred to therein as bership dues without charge to the District is one of the benefits it de- ANA. rives from its "constituency" status with the Association. " The Nurses Association of the Counties of Long Island, Inc., Dis- trict 14, is referred to hereinafter as District 14. Harper related that, while there is no direct relationship between 41 NYSNA has 18 constituent districts throughout the State of New District 14 and the American Nurses Association, District 14 does re- York. The Respondent's hospital is located within the geographical area ceive bulletins and newsletters about nursing or nursing practice from the encompassed by District 14. Continued NORTH SHORE UNIVERSITY HOSPITAL 859 The 'Task Force on Impediments to Quality Nursing organization" is one whose "constitution and bylaws are Care" was created to prepare, for submission to the As- in harmony" with each other and, in the case of District sociation's voting body, a report concerning the Associ- 14's "constituency" with the New York State Nurses As- ation's no-strike policy. The task force's final report con- sociation, has "been approved by a majority vote of the tained recommendations expressly leaving to each bar- board of directors of this Association." Welch continued gaining unit the final decision as to whether to withhold that the ANA, the Association, and District 14 are its services in a particular case. The task force itself exer- autonomous and separate nonprofit membership organi- cises no authority unilaterally to implement its proposals zations, each having its own constitution and bylaws, its since the Association's membership, its voting body, own membership, its own staff and programing, and its would have final approval as to any collective-bargaining own dues requirements, with "constituent" status ob- matters within the scope of its study and thereafter the tained on a voluntary basis. 4 2 However, the New York individual bargaining units of employee-nurses would State Nurses Association collects its own membership decide what to do if the recommendations were accept- dues as well as those of the American Nurses Associ- ed. The evidence shows that while none of the members ation and the district nurses associations, where applica- of this task force was a supervisory or managerial em- ble, in one payment and then forwards the respective ployee of the Respondent some members were supervi- dues amounts to the appropriate nurses association. The sory employees at other public or private hospitals or in- reason therefor appears to be that the NYSNA has its stitutions.37 own computerized payroll equipment which readily A no t h e r t as k fo r c e, " O n Organizational Implication of lends itself to this arrangement. 43 It is clear from the the 1985 Proposal," a six-member group, included no su- record that a part of the dues paid to the association is pervisory or managerial employees of the Respondent. 3 ^ used to further the association's EGW program. This task force was an advisory body charged withdescribing the interaction between the ANA studying whether the Association should extend member- a the NYSNA testifid that ship privileges to licensed practical nurses who do not hold baccalaureate degrees. The task force recommended Periodically and from time to time the two organi- against so extending Association membership. zations work collaboratively on issues which fall f. The Council on Economic and General Welfare w it h i n t h ei r si m il ar statements of purpose and func- tions, but each is a separate organization and func- This is a seven-member Council which serves, pursu- tions in that fashion. ant to the Association's bylaws, in an advisory capacity to the Association's board of directors who appoint its The Association has an "advisory council" composed members. The EGW Council also advises the EGWP of its "president" and the president or executive director staff. According to the uncontradicted testimony of of each of the 18 constituent districts and which meets Catheryne Welch, the Council does not implement the quarterly "for the sharing of information, for reacting to collective-bargaining program of the Association, does ideas, to bring concerns from local areas." While the not participate in organizing or negotiating on behalf of "advisory council" does not "make or implement policy" the Association, and has no authority for the conduct of it "may suggest to the board [of directors] or recom- any collective-bargaining activity. While there is some mends." Ruth Harper, District 14's executive director, dispute as to the supervisory or managerial status of two testified that its representatives to the "advisory council" of the seven members of the EGW Council, it is ad- had never made a suggestion concerning the Associ- mitted that supervisory or managerial employees can be ation's EGWP at any of these meetings. appointed to membership on the Council by the Associ- Concerning the "constituency" relationship between ation's board of directors. the Association and District 14, Harper testified that it, 2 . T h e A meri c an N u r sies A ssoc i at io ~ n 39 t h e N e w ... really is that we are all bound by the same York State Nurses Association, and the Nurses^ York tate ursesAssoiatio, andthe Nrsesethical concept, the same general purpose for which Association of the Counties of Long Island, Inc., we ei an that w d rv » * t IA«° w e e xl s t an (^ t n a t w e u o n t v arv a n" t n a t l s t o el e' vate the standards of the profession so we may The New York State Nurses Association (ANA) is a render the best care to the public. 4 "constituent" of the American Nurses Association and District 14 a "constituent" of the New York State " Welch testified that the Association "has no requirement to simulta- Nurses Association." Welch testified that a "constituent neous or concurrent membership in any district association or the Ameri- can Nurses Association." However, according to the testimony of Ruth Harper, the American Nurses Association does require "tri-level" mem- " The evidence indicates that of 21 persons who have served as mem- bership, in the American Nurses Association, the New York or particular bers of this task force at least 4 were or now are supervisory employees. State Nurses Association, and the constituent district nurses association if ' The record does not establish whether any of the six members of this applicable. task force were supervisors or managers at other hospitals. " Harper testified that the Association's collection of District 14 mem- " The American Nurses Association is also referred to therein as ^, , y, ^„^^^^isi e 0 Th AmeicanNurs Assciaton i als refrredto terei as bership dues without charge to the District is one of the benefits it de- ANA_ ., . .. .,.,-, * ,, ii~it r "ri v es from it s "constituency" status with the Association. - The Nurses Association of the Counties of Long Island, Inc., Dis- trict 14, is referred to hereinafter as District 14. " Harper related that, while there is no direct relationship between 41 NYSNA has 18 constituent districts throughout the State of New District 14 and the American Nurses Association, District 14 does re- York. The Respondent's hospital is located within the geographical area ceive bulletins and newsletters about nursing or nursing practice from the encompassed by District 14. Continued NORTH SHORE UNIVERSITY HOSPITAL 859 The 'Task Force on Impediments to Quality Nursing organization" is one whose "constitution and bylaws are Care" was created to prepare, for submission to the As- in harmony" with each other and, in the case of District sociation's voting body, a report concerning the Associ- 14's "constituency" with the New York State Nurses As- ation's no-strike policy. The task force's final report con- sociation, has "been approved by a majority vote of the tained recommendations expressly leaving to each bar- board of directors of this Association." Welch continued gaining unit the final decision as to whether to withhold that the ANA, the Association, and District 14 are its services in a particular case. The task force itself exer- autonomous and separate nonprofit membership organi- cises no authority unilaterally to implement its proposals zations, each having its own constitution and bylaws, its since the Association's membership, its voting body, own membership, its own staff and programing, and its would have final approval as to any collective-bargaining own dues requirements, with "constituent" status ob- matters within the scope of its study and thereafter the tained on a voluntary basis. 4 2 However, the New York individual bargaining units of employee-nurses would State Nurses Association collects its own membership decide what to do if the recommendations were accept- dues as well as those of the American Nurses Associ- ed. The evidence shows that while none of the members ation and the district nurses associations, where applica- of this task force was a supervisory or managerial em- ble, in one payment and then forwards the respective ployee of the Respondent some members were supervi- dues amounts to the appropriate nurses association. The sory employees at other public or private hospitals or in- reason therefor appears to be that the NYSNA has its stitutions.37 own computerized payroll equipment which readily A no t h e r t as k fo r c e, " O n Organizational Implication of lends itself to this arrangement. 43 It is clear from the the 1985 Proposal," a six-member group, included no su- record that a part of the dues paid to the association is pervisory or managerial employees of the Respondent. 3 ^ used to further the association's EGW program. This task force was an advisory body charged withdescribing the interaction between the ANA studying whether the Association should extend member- a the NYSTA testifid that ship privileges to licensed practical nurses who do not hold baccalaureate degrees. The task force recommended Periodically and from time to time the two organi- against so extending Association membership. zations work collaboratively on issues which fall f. The Council on Economic and General Welfare w it h i n t h ei r similar statements of purpose and func- tions, but each is a separate organization and func- This is a seven-member Council which serves, pursu- tions in that fashion. ant to the Association's bylaws, in an advisory capacity to the Association's board of directors who appoint its The Association has an "advisory council" composed members. The EGW Council also advises the EGWP of its "president" and the president or executive director staff. According to the uncontradicted testimony of of each of the 18 constituent districts and which meets Catheryne Welch, the Council does not implement the quarterly "for the sharing of information, for reacting to collective-bargaining program of the Association, does ideas, to bring concerns from local areas." While the not participate in organizing or negotiating on behalf of "advisory council" does not "make or implement policy" the Association, and has no authority for the conduct of it "may suggest to the board [of directors] or recom- any collective-bargaining activity. While there is some mends." Ruth Harper, District 14's executive director, dispute as to the supervisory or managerial status of two testified that its representatives to the "advisory council" of the seven members of the EGW Council, it is ad- had never made a suggestion concerning the Associ- mitted that supervisory or managerial employees can be ation's EGWP at any of these meetings. appointed to membership on the Council by the Associ- Concerning the "constituency" relationship between ation's board of directors. the Association and District 14, Harper testified that it, 2 . T h e A meri c an N u r sies A ssoc i at io ~ n 39 t h e N e w ... really is that we are all bound by the same York State Nurses Association, and the Nurses^ York tate ursesAssoiatio, andthe Nrsesethical concept, the same general purpose for which Association of the Counties of Long Island, Inc., we ei an that w d rv » * t IA«° w e e xl s t an (^ t n a t w e u o n t v arv a n" t n a t l s t o el e' vate the standards of the profession so we may The New York State Nurses Association (ANA) is a render the best care to the public. 4 "constituent" of the American Nurses Association and District 14 a "constituent" of the New York State " Welch testified that the Association "has no requirement to simulta- Nurses Association." Welch testified that a "constituent neous or concurrent membership in any district association or the Ameri- can Nurses Association." However, according to the testimony of Ruth Harper, the American Nurses Association does require "tri-level" mem- " The evidence indicates that of 21 persons who have served as mem- bership, in the American Nurses Association, the New York or particular bers of this task force at least 4 were or now are supervisory employees. State Nurses Association, and the constituent district nurses association if ' The record does not establish whether any of the six members of this applicable. task force were supervisors or managers at other hospitals. " Harper testified that the Association's collection of District 14 mem- " The American Nurses Association is also referred to therein as ^, , y, ^„^^^^isi e 0 Th AmeicanNurs Assciaton i als refrredto terei as bership dues without charge to the District is one of the benefits it de- ANA_ ., . .. .,.,-, * ,, ii~it r "riv es from its "constituency" status with the Association. - The Nurses Association of the Counties of Long Island, Inc., Dis- trict 14, is referred to hereinafter as District 14. " Harper related that, while there is no direct relationship between 41 NYSNA has 18 constituent districts throughout the State of New District 14 and the American Nurses Association, District 14 does re- York. The Respondent's hospital is located within the geographical area ceive bulletins and newsletters about nursing or nursing practice from the encompassed by District 14. Continued NORTH SHORE UNIVERSITY HOSPITAL 859 The 'Task Force on Impediments to Quality Nursing organization" is one whose "constitution and bylaws are Care" was created to prepare, for submission to the As- in harmony" with each other and, in the case of District sociation's voting body, a report concerning the Associ- 14's "constituency" with the New York State Nurses As- ation's no-strike policy. The task force's final report con- sociation, has "been approved by a majority vote of the tained recommendations expressly leaving to each bar- board of directors of this Association." Welch continued gaining unit the final decision as to whether to withhold that the ANA, the Association, and District 14 are its services in a particular case. The task force itself exer- autonomous and separate nonprofit membership organi- cises no authority unilaterally to implement its proposals zations, each having its own constitution and bylaws, its since the Association's membership, its voting body, own membership, its own staff and programing, and its would have final approval as to any collective-bargaining own dues requirements, with "constituent" status ob- matters within the scope of its study and thereafter the tained on a voluntary basis. 4 2 However, the New York individual bargaining units of employee-nurses would State Nurses Association collects its own membership decide what to do if the recommendations were accept- dues as well as those of the American Nurses Associ- ed. The evidence shows that while none of the members ation and the district nurses associations, where applica- of this task force was a supervisory or managerial em- ble, in one payment and then forwards the respective ployee of the Respondent some members were supervi- dues amounts to the appropriate nurses association. The sory employees at other public or private hospitals or in- reason therefor appears to be that the NYSNA has its stitutions.37 own computerized payroll equipment which readily A no t h e r t as k fo r c e, " O n Organizational Implication of lends itself to this arrangement. 43 It is clear from the the 1985 Proposal," a six-member group, included no su- record that a part of the dues paid to the association is pervisory or managerial employees of the Respondent. 3 ^ used to further the association's EGW program. This task force was an advisory body charged withdescribing the interaction between the ANA studying whether the Association should extend member- a the NYSTA testifid that ship privileges to licensed practical nurses who do not hold baccalaureate degrees. The task force recommended Periodically and from time to time the two organi- against so extending Association membership. zations work collaboratively on issues which fall f. The Council on Economic and General Welfare w it h i n t h ei r similar statements of purpose and func- tions, but each is a separate organization and func- This is a seven-member Council which serves, pursu- tions in that fashion. ant to the Association's bylaws, in an advisory capacity to the Association's board of directors who appoint its The Association has an "advisory council" composed members. The EGW Council also advises the EGWP of its "president" and the president or executive director staff. According to the uncontradicted testimony of of each of the 18 constituent districts and which meets Catheryne Welch, the Council does not implement the quarterly "for the sharing of information, for reacting to collective-bargaining program of the Association, does ideas, to bring concerns from local areas." While the not participate in organizing or negotiating on behalf of "advisory council" does not "make or implement policy" the Association, and has no authority for the conduct of it "may suggest to the board [of directors] or recom- any collective-bargaining activity. While there is some mends." Ruth Harper, District 14's executive director, dispute as to the supervisory or managerial status of two testified that its representatives to the "advisory council" of the seven members of the EGW Council, it is ad- had never made a suggestion concerning the Associ- mitted that supervisory or managerial employees can be ation's EGWP at any of these meetings. appointed to membership on the Council by the Associ- Concerning the "constituency" relationship between ation's board of directors. the Association and District 14, Harper testified that it, 2 . T h e A meri c an N u r sies A ssoc i at io ~ n 39 t h e N e w ... really is that we are all bound by the same York State Nurses Association, and the Nurses^ York tate ursesAssoiatio, andthe Nrsesethical concept, the same general purpose for which Association of the Counties of Long Island, Inc., we ei an that w d rv » * t IA«° w e e xl s t an (^ t n a t w e u o n t v arv a n" t n a t l s t o el e' vate the standards of the profession so we may The New York State Nurses Association (ANA) is a render the best care to the public. 4 "constituent" of the American Nurses Association and District 14 a "constituent" of the New York State " Welch testified that the Association "has no requirement to simulta- Nurses Association." Welch testified that a "constituent neous or concurrent membership in any district association or the Ameri- can Nurses Association." However, according to the testimony of Ruth Harper, the American Nurses Association does require "tri-level" mem- " The evidence indicates that of 21 persons who have served as mem- bership, in the American Nurses Association, the New York or particular bers of this task force at least 4 were or now are supervisory employees. State Nurses Association, and the constituent district nurses association if ' The record does not establish whether any of the six members of this applicable. task force were supervisors or managers at other hospitals. " Harper testified that the Association's collection of District 14 mem- " The American Nurses Association is also referred to therein as ^, , y, ^„^^^^isi e 0 Th AmeicanNurs Assciaton i als refrredto terei as bership dues without charge to the District is one of the benefits it de- ANA_ ., . .. .,.,-, * ,, ii~it r "riv es from its "constituency" status with the Association. - The Nurses Association of the Counties of Long Island, Inc., Dis- trict 14, is referred to hereinafter as District 14. " Harper related that, while there is no direct relationship between 41 NYSNA has 18 constituent districts throughout the State of New District 14 and the American Nurses Association, District 14 does re- York. The Respondent's hospital is located within the geographical area ceive bulletins and newsletters about nursing or nursing practice from the encompassed by District 14. Continued 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD She stated that, while District 14 has its own bylaws, any tion, does not engage in any collective-bargaining activi- proposed changes thereof are submitted to the Associ- ties itself, nor does it have any input into the NYSNA's ation for approval.45 Harper added: collective-bargaining activities. She stated that District In essence we conform with the general statements 14 does not engage in "any specific activities that are of the purpose for these associates and of all these solely limited to improving working conditions of its levels and I think they are in harmony and the members." 47 Catheryne Welch testified similarly. membership categories must be uniform . . . regis- Additionally and concerning District 14 and the tered nurse duly licensed, eligible to practice. NYSNA, the record shows: that Catherine Foster, a su- pervisory nurse employed by the Respondent, was presi- Harper continued that District 14 programs, pursuant dent of District 14 from May 1976 to May 1978 and to its bylaws, include promoting nursing standards as de- uring this time she also was chairman of the NYSNA's fined by the ANA (educational programs concerning nominating committee in 1977; that various other mem- statements of nursing standards and practice), participat- bers of District 14 held or now hold positions on other ing in and supporting the NYSNA's legislative program NYSNA's committees, i.e., Sister Mary Louise Murray is (but not including lobbying which District 14 is not chairman of the NYSNA's nominating committee, Patri- equipped financially or personnel-wise to do), and en- cia Barry belongs to the NYSNA council on legislation cia Barry belongs to the NYSNA council on legislation, couragement and recruitment of qualified persons to Dr. Margaret McClure serves on the NYSNA's Special enter the nursing field (maintaining a speakers' bureau Committee on the Nurse Practice Act, and Esther Chan- which provides speakers to nursing schools, high which provides speakers to nursing schools, high nis is District 14's designee to the NYSNA's Education schools, and private or public groups, and as part of this lnnng o ttee he esondent l Planning Committee. The Respondent also offered evi- program District 14 prepares and issues a directory of ece to ho t es V ad D M e nursing schools). Harper stated that District 14 also dence to show that James Vanderveld and Dr Margaret maintains and publishes a "nurses' professional registry" acCure members of District 14,hattended the Associ- which is a placement service for private duty nurses a t o n s 9 77 c o n v t o n w h c h the issue of the under standards set by the Association. e dy n s Association's no-strike policy was discussed and voted under standards set by the Association. 46 District 14 also prepares an annual survey of personnel up practices and policies at the various hospitals in its geo-C. Analysis and Conclusions graphical area and makes the survey available to individ- ual nurses as well as to hospitals and other health care In Sierra Vista Hospital, supra, the Board noted (241 institutions within its jurisdiction. Harper testified that NLRB at 623, 633): the purposes of the survey are: To collect "current accu- rate statistical data about nurses employment in our geo- But, while the presence of supervisors in an asso- graphic area," to "assist nurses and others to improve ciation does not bear upon its "labor organization" their employment situations," and to "update the infor- status, the identity and role of those supervisors in mation presently in our files." She added that this survey the labor organization may operate, nonetheless, to is prepared with the "excellent cooperation of the hospi- disqualify it from bargaining in certain instances.[ 41 tal directors of nursing and also some of the larger nurs- Central factors involved in considering this issue are ing homes." Information concerning nurses' salaries at the employees' right to a collective-bargaining rep- the various hospitals is also set forth in an issue of Dis- resentative whose undivided concern is for their in- trict 14's membership newsletter. terests and the employer's right to expect loyalty Harper testified that District 14 during the implemen- from its supervisors. Active participation by the em- tation of its programs disseminates information about ployer's own supervisors may, in a given case, con- both the ANA and the NYSNA for membership promo- travene either or both of these legitimate inter- tional purposes and supplies trilevel membership applica- ests.[4 ] Indeed, we have held that an employer has tion forms when requested. Her testimony indicates that, a duty to refuse to bargain where the presence of while District 14 encourages membership in both ANA that employer's supervisors on the opposite side of and NYSNA, its membership promotions are primarily the bargaining table poses a conflict between those directed towards its own District 14 membership. interests. 8 According to Harper while it is one of the purposes of District 14 to improve the working conditions of nurses the NYSNA (executive director, deputy director for programs, and the EGWP director), various area hospitals' directors of nursing and confer- in the context of "improving nurses conditions of prac- ence group, and District 14 members. The meeting was chaired by tice," District 14 does not function as a labor organiza- Harper and was convened to explore some of the aspects of the NYSNA's EGWP and the role of the directors of nursing in such a pro- ANA, competes for special project moneys from the ANA, and can par- ram a sup, ticipate in special programs such as "a creative nursing award." Harper added that District 14's relationship with ANA is "informational, histori- This potential for disqualification stems from an inherent statutory cal, friendly, cooperative, we subscribe . . . in all ways with the code of concern that "[e]mployees have the right to be represented in collec- ethics which is adopted on the national level." tive-bargaining negotiations by individuals whohave a single-minded loyalty to their interests,"' e and the identity and role of supervisors This does not include, however, changes concerning the amount of admitted to membership in a labor organization can, in certain cir- dues charged to its membership. cumstances, compromise the statutory interest. Thus, active participa- The NYSNA maintains its own registry for private duty nurses, pub- tion in the affairs of a labor organization by supervisors employed by lishes standards of review of nursing registries, and supplies information the employer with whom that labor organization seeks to bargain on private duty nurse rates throughout the State, although District 14 can give rise to question about the labor organization's ability to deal sets its own fee rates for private duty nurses in its geographical area. with the employer at arm's length. [Emphasis supplied.] " Harper testified about one of District 14's organizational subgroups, "the nurse service administrators conference group," which held a meet- ' Nassau and Suffolk Contractors' Association, Inc.. et ao., 118 ing on October 4, 1977. Attending this meeting were representatives of NLRB 174, 187 (1957) In~~~~ ~ ~ --- nc -- conor wit th-eea-taeet-4dosnteggei-aysecfcatvtista-r 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD She stated that, while District 14 has its own bylaws, any tion, does not engage in any collective-bargaining activi- proposed changes thereof are submitted to the Associ- ties itself, nor does it have any input into the NYSNA's ation for approval. 45 Harper added: collective-bargaining activities. She stated that District In essence we conform with the general statements 14 does not engage in "any specific activities that are of the purpose for these associates and of all these solely limited to improving working conditions of its levels and I think they are in harmony and the members."4 Catheryne Welch testified similarly. membership categories must be uniform . . . regis- Additionally and concerning District 14 and the tered nurse duly licensed, eligible to practice. NYSNA, the record shows: that Catherine Foster, a su- pervisory nurse employed by the Respondent, was presi- Harper continued that District 14 programs, pursuant dent of District 14 from May 1976 to May 1978 and to its bylaws, include promoting nursing standards as de- uring this time she also was chairman of the NYSNA's fined by the ANA (educational programs concerning nominating committee in 1977; that various other mem- statements of nursing standards and practice), participat- bers of District 14 held or now hold positions on other ing in and supporting the NYSNA's legislative program NYSNA' c m e i St M Loui M is (but not including lobbying which District 14 is not chairman of the NYSNA's nominating committee, Patri- equipped financially or personnel-wise to do), and en- c i a B ar o n t h e N Y S N A cou n c l egis atin , *' . r rr j - ~~~cia Barry belongs to the NYSNA council on legislation, couragement and recruitment of qualified persons to Dr M M l seve on the 1, Speia enter the nursing field (maintaining a speakers' bureau D r . M a r g are t M c C l ur e se r v es o n t h e NYJ^. 8 Spec ia l ene h urigfed mitiin paer'bra Committee on the Nurse Practice Act, and Esther Chan- wihprovides speakers to nursing schools, high c o m t e n h u s " "AtadEte hn whic proidesspeaers o nusingschols, igh nis is District 14's designee to the NYSNA's Education schools, and private or public groups, and as part of this la Commit t the ndenAls eduevi- program District 14 prepares and issues a directory of de nce nt s o w t t Jam es V r and r. Margare t nursing schools). Harper stated that District 14 also dence to show that James Vanderveld and Dr Margaret maintains and publishes a "nurses' professional registry" McCure members of District 14, attended the Associ- which is a placement service for private duty nurses a tio n 's 9 77 c o n v entio n duin w h ic h the issue of the under standards set by the Association. 46Association's no-strike policy was discussed and voted District 14 also prepares an annual survey of personnel upon practices and policies at the various hospitals in its geo- C. Analysis and Conclusions graphical area and makes the survey available to individ- ual nurses as well as to hospitals and other health care In Sierra Vista Hospital, supra, the Board noted (241 institutions within its jurisdiction. Harper testified that NLRB at 623, 633): the purposes of the survey are: To collect "current accu- rate statistical data about nurses employment in our geo- But, while the presence of supervisors in an asso- graphic area," to "assist nurses and others to improve ciation does not bear upon its "labor organization" their employment situations," and to "update the infor- status, the identity and role of those supervisors in mation presently in our files." She added that this survey the labor organization may operate, nonetheless, to is prepared with the "excellent cooperation of the hospi- disqualify it from bargaining in certain instances. [41 tal directors of nursing and also some of the larger nurs- Central factors involved in considering this issue are ing homes." Information concerning nurses' salaries at the employees' right to a collective-bargaining rep- the various hospitals is also set forth in an issue of Dis- resentative whose undivided concern is for their in- trict 14's membership newsletter,.terests and the employer's right to expect loyalty Harper testified that District 14 during the implemen- from its supervisors. Active participation by the em- tation of its programs disseminates information about ployer's own supervisors may, in a given case, con- both the ANA and the NYSNA for membership promo- travene either or both of these legitimate inter- tional purposes and supplies trilevel membership applica- ests.[4l Indeed, we have held that an employer has tion forms when requested. Her testimony indicates that, a duty to refuse to bargain where the presence of while District 14 encourages membership in both ANA that employer's supervisors on the opposite side of and NYSNA, its membership promotions are primarily the bargaining table poses a conflict between those directed towards its own District 14 membership, interests. 8 According to Harper while it is one of the purposes of---- District 14 to improve the working conditions of nurses o h NYSNA (executive director, deputy director or pirognams, and the Distrit 14 t improe the orkingconditons ofnurses EGWP director), various area hospitals' directors of nursing and confer- in the context Of "improving nurses conditions of prac- ence group, and District 14 members. The meeting was chaired by tice," District 14 does not function as a labor organiza- Harper and was convened to explore some of the aspects of the NYSNA's EGWP and the role of the directors of nursing in such a pro- ANA, competes for special project moneys from the ANA, and can par- e B d in Sr Va Hsit e ticipate in special programs such as "a creative nursing award." Harper added that District 14's relationship with ANA is "informational, histori- This potential for disqualification stems from an inherent statutory cal, friendly, cooperative, we subscribe ... in all ways with the code of concern that "[e]mployees have the right to be represented in collec- ethics which is adopted on the national level." tive-bargaining negotiations by individuals whohave a single-minded loyalty to their interests'" 6 and the identity and role of supervisors "This does not include, however, changes concerning the amount of admitted to membership in a labor organization can, in certain cir- dues charged to its membership. cumstances, compromise the statutory interest. Thus, active participa- " The NYSNA maintains its own registry for private duty nurses, pub- tion in the affairs of a labor organization by supervisors employed by lishes standards of review of nursing registries, and supplies informationthe employer with whom that labor organization seeks to bargain on private duty nurse rates throughout the State, although District 14 can give rise to question about the labor organization's ability to deal sets its own fee rates for private duty nurses in its geographical area. with the employer at arm's length. [Emphasis supplied.] " Harper testified about one of District 14's organizational subgroups, "the nurse service administrators conference group," which held a meet-" Nassau and Suffolk Contractors' Association, Inc., et at., 118 ing on October 4, 1977. Attending this meeting were representatives of NLRB 174, 187 (1957). 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD She stated that, while District 14 has its own bylaws, any tion, does not engage in any collective-bargaining activi- proposed changes thereof are submitted to the Associ- ties itself, nor does it have any input into the NYSNA's ation for approval. 45 Harper added: collective-bargaining activities. She stated that District In essence we conform with the general statements 14 does not engage in "any specific activities that are of the purpose for these associates and of all these solely limited to improving working conditions of its levels and I think they are in harmony and the members."4 Catheryne Welch testified similarly. membership categories must be uniform . . . regis- Additionally and concerning District 14 and the tered nurse duly licensed, eligible to practice. NYSNA, the record shows: that Catherine Foster, a su- pervisory nurse employed by the Respondent, was presi- Harper continued that District 14 programs, pursuant dent of District 14 from May 1976 to May 1978 and to its bylaws, include promoting nursing standards as de- uring this time she also was chairman of the NYSNA's fined by the ANA (educational programs concerning nominating committee in 1977; that various other mem- statements of nursing standards and practice), participat- bers of District 14 held or now hold positions on other ing in and supporting the NYSNA's legislative program NYSNA' c m e i St M Loui M is (but not including lobbying which District 14 is not chairman of the NYSNA's nominating committee, Patri- equipped financially or personnel-wise to do), and en- c i a B ar o n t h e N Y S N A couni t n le at n , , *' . r re- j - ~~~cia Barry belongs to the NYSNA council on legislation, couragement and recruitment of qualified persons to Dr M M l seve on the 1, Speia enter the nursing field (maintaining a speakers' bureau D r . M a r g are t M c C l ur e se r v es o n t h e NYJ^. 8 Spec ia l ene h urigfed mitiin paer'bra Committee on the Nurse Practice Act, and Esther Chan- wihprovides speakers to nursing schools, high c o m t e n h u s " "AtadEte hn whic proidesspeaers o nusingschols, igh nis is District 14's designee to the NYSNA's Education schools, and private or public groups, and as part of this la Commit t the ndenAls eduevi- program District 14 prepares and issues a directory of de nce nt s o w t t Jam es V r and r. Margare t nursing schools). Harper stated that District 14 also dence to show that James Vanderveld and Dr Margaret maintains and publishes a "nurses' professional registry" McCure members of District 14, attended the Associ- which is a placement service for private duty nurses a tio n 's 9 77 c o n v entio n duin w h ic h the issue of the under standards set by the Association. 46Association's no-strike policy was discussed and voted District 14 also prepares an annual survey of personnel upon practices and policies at the various hospitals in its geo- C. Analysis and Conclusions graphical area and makes the survey available to individ- ual nurses as well as to hospitals and other health care In Sierra Vista Hospital, supra, the Board noted (241 institutions within its jurisdiction. Harper testified that NLRB at 623, 633): the purposes of the survey are: To collect "current accu- rate statistical data about nurses employment in our geo- But, while the presence of supervisors in an asso- graphic area," to "assist nurses and others to improve ciation does not bear upon its "labor organization" their employment situations," and to "update the infor- status, the identity and role of those supervisors in mation presently in our files." She added that this survey the labor organization may operate, nonetheless, to is prepared with the "excellent cooperation of the hospi- disqualify it from bargaining in certain instances. [41 tal directors of nursing and also some of the larger nurs- Central factors involved in considering this issue are ing homes." Information concerning nurses' salaries at the employees' right to a collective-bargaining rep- the various hospitals is also set forth in an issue of Dis- resentative whose undivided concern is for their in- trict 14's membership newsletter,.terests and the employer's right to expect loyalty Harper testified that District 14 during the implemen- from its supervisors. Active participation by the em- tation of its programs disseminates information about ployer's own supervisors may, in a given case, con- both the ANA and the NYSNA for membership promo- travene either or both of these legitimate inter- tional purposes and supplies trilevel membership applica- ests.[4l Indeed, we have held that an employer has tion forms when requested. Her testimony indicates that, a duty to refuse to bargain where the presence of while District 14 encourages membership in both ANA that employer's supervisors on the opposite side of and NYSNA, its membership promotions are primarily the bargaining table poses a conflict between those directed towards its own District 14 membership, interests. 8 According to Harper while it is one of the purposes of---- District 14 to improve the working conditions of nursesof the NYSNA (executive director, deputy director for piroams, and the Distrit 14 t improe the orkingconditons ofnurses EGWP director), various area hospitals' directors of nursing and confer- in the context Of "improving nurses conditions of prac- ence group, and District 14 members. The meeting was chaired by tice," District 14 does not function as a labor organiza- Harper and was convened to explore some of the aspects of the NYSNA's EGWP and the role of the directors of nursing in such a pro- ANA, competes for special project moneys from the ANA, and can par- e B d in Sr Va Hsit e ticipate in special programs such as "a creative nursing award." Harper added that District 14's relationship with ANA is "informational, histori- This potential for disqualification stems from an inherent statutory cal, friendly, cooperative, we subscribe ... in all ways with the code of concern that "[e]mployees have the right to be represented in collec- ethics which is adopted on the national level." tive-bargaining negotiations by individuals whohave a single-minded loyalty to their interests'"* and the identity and role of supervisors "This does not include, however, changes concerning the amount of admitted to membership in a labor organization can, in certain cir- dues charged to its membership. cumstances, compromise the statutory interest. Thus, active participa- " The NYSNA maintains its own registry for private duty nurses, pub- tion in the affairs of a labor organization by supervisors employed by lishes standards of review of nursing registries, and supplies informationthe employer with whom that labor organization seeks to bargain on private duty nurse rates throughout the State, although District 14 can give rise to question about the labor organization's ability to deal sets its own fee rates for private duty nurses in its geographical area. with the employer at arm's length. [Emphasis supplied.] " Harper testified about one of District 14's organizational subgroups, "the nurse service administrators conference group," which held a meet-" Nassau and Suffolk Contractors' Association, Inc., et at., 118 ing on October 4, 1977. Attending this meeting were representatives of NLRB 174, 187 (1957). 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD She stated that, while District 14 has its own bylaws, any tion, does not engage in any collective-bargaining activi- proposed changes thereof are submitted to the Associ- ties itself, nor does it have any input into the NYSNA's ation for approval. 45 Harper added: collective-bargaining activities. She stated that District In essence we conform with the general statements 14 does not engage in "any specific activities that are of the purpose for these associates and of all these solely limited to improving working conditions of its levels and I think they are in harmony and the members."4 Catheryne Welch testified similarly. membership categories must be uniform . . . regis- Additionally and concerning District 14 and the tered nurse duly licensed, eligible to practice. NYSNA, the record shows: that Catherine Foster, a su- pervisory nurse employed by the Respondent, was presi- Harper continued that District 14 programs, pursuant dent of District 14 from May 1976 to May 1978 and to its bylaws, include promoting nursing standards as de- uring this time she also was chairman of the NYSNA's fined by the ANA (educational programs concerning nominating committee in 1977; that various other mem- statements of nursing standards and practice), participat- bers of District 14 held or now hold positions on other ing in and supporting the NYSNA's legislative program NYSNA' c m e i St M Loui M is (but not including lobbying which District 14 is not chairman of the NYSNA's nominating committee, Patri- equipped financially or personnel-wise to do), and en- c i a B ar o n t h e N Y S N A couni t n le at n , , *' . r IT j - ~~~cia Barry belongs to the NYSNA council on legislation, couragement and recruitment of qualified persons to Dr M M l seve on the 1, Speia enter the nursing field (maintaining a speakers' bureau D r . M a r g are t M c C l ur e se r v es o n t h e NYJ^. 8 Spec ia l ene h urigfed mitiin paer'bra Committee on the Nurse Practice Act, and Esther Chan- wihprovides speakers to nursing schools, high c o m t e n h u s " "AtadEte hn whic proidesspeaers o nusingschols, igh nis is District 14's designee to the NYSNA's Education schools, and private or public groups, and as part of this la Commit t the ndenAls eduevi- program District 14 prepares and issues a directory of de nce nt s o w t t Jam es V r and r. Margare t nursing schools). Harper stated that District 14 also dence to show that James Vanderveld and Dr Margaret maintains and publishes a "nurses' professional registry" McCure members of District 14, attended the Associ- which is a placement service for private duty nurses a tio n 's 9 77 c o n v entio n duin w h ic h the issue of the under standards set by the Association. 46Association's no-strike policy was discussed and voted District 14 also prepares an annual survey of personnel upon practices and policies at the various hospitals in its geo- C. Analysis and Conclusions graphical area and makes the survey available to individ- ual nurses as well as to hospitals and other health care In Sierra Vista Hospital, supra, the Board noted (241 institutions within its jurisdiction. Harper testified that NLRB at 623, 633): the purposes of the survey are: To collect "current accu- rate statistical data about nurses employment in our geo- But, while the presence of supervisors in an asso- graphic area," to "assist nurses and others to improve ciation does not bear upon its "labor organization" their employment situations," and to "update the infor- status, the identity and role of those supervisors in mation presently in our files." She added that this survey the labor organization may operate, nonetheless, to is prepared with the "excellent cooperation of the hospi- disqualify it from bargaining in certain instances. [41 tal directors of nursing and also some of the larger nurs- Central factors involved in considering this issue are ing homes." Information concerning nurses' salaries at the employees' right to a collective-bargaining rep- the various hospitals is also set forth in an issue of Dis- resentative whose undivided concern is for their in- trict 14's membership newsletter,.terests and the employer's right to expect loyalty Harper testified that District 14 during the implemen- from its supervisors. Active participation by the em- tation of its programs disseminates information about ployer's own supervisors may, in a given case, con- both the ANA and the NYSNA for membership promo- travene either or both of these legitimate inter- tional purposes and supplies trilevel membership applica- ests.[4l Indeed, we have held that an employer has tion forms when requested. Her testimony indicates that, a duty to refuse to bargain where the presence of while District 14 encourages membership in both ANA that employer's supervisors on the opposite side of and NYSNA, its membership promotions are primarily the bargaining table poses a conflict between those directed towards its own District 14 membership, interests.'8 According to Harper while it is one of the purposes of---- District 14 to improve the working conditions of nursesof the NYSNA (executive director, deputy director tor piroams, and the Distrit 14 t improe the orkingconditons ofnurses EGWP director), various area hospitals' directors of nursing and confer- in the context Of "improving nurses conditions of prac- ence group, and District 14 members. The meeting was chaired by tice," District 14 does not function as a labor organiza- Harper and was convened to explore some of the aspects of the NYSNA's EGWP and the role of the directors of nursing in such a pro- ANA, competes for special project moneys from the ANA, and can par- The B in Sr Vs Hsi , epand ticipate in special programs such as "a creative nursing award." Harper added that District 14's relationship with ANA is "informational, histori- This potential for disqualification stems from an inherent statutory cal, friendly, cooperative, we subscribe ... in all ways with the code of concern that "[e]mployees have the right to be represented in collec- ethics which is adopted on the national level." tive-bargaining negotiations by individuals whohave a single-minded loyalty to their interests'"* and the identity and role of supervisors "This does not include, however, changes concerning the amount of admitted to membership in a labor organization can, in certain cir- dues charged to its membership. cumstances, compromise the statutory interest. Thus, active participa- " The NYSNA maintains its own registry for private duty nurses, pub- tion in the affairs of a labor organization by supervisors employed by lishes standards of review of nursing registries, and supplies informationthe employer with whom that labor organization seeks to bargain on private duty nurse rates throughout the State, although District 14 can give rise to question about the labor organization's ability to deal sets its own fee rates for private duty nurses in its geographical area. with the employer at arm's length. [Emphasis supplied.] " Harper testified about one of District 14's organizational subgroups, "the nurse service administrators conference group," which held a meet-" Nassau and Suffolk Contractors' Association, Inc., et at., 118 ing on October 4, 1977. Attending this meeting were representatives of NLRB 174, 187 (1957). NORTH SHORE UNIVERSITY HOSPITAL 861 ests.[ 4] Indeed, we have held that an employer has There is a strong public policy favoring the free a duty to refuse to bargain where the presence of choice of a bargaining agent by employees. The that employer's supervisors on the opposite side of choice is not lightly to the frustrated. There is a the bargaining table poses a conflict between those considerable burden on a nonconsenting employer, interests. " in such a situation as this, to come forward with a The active, internal union participation of super- showing that danger of a conflict of interest inter- visors of a third-party employer (i.e., an employer fering with the collective bargaining process is clear other than the one with whom the labor organiza- and present. tion seeks to bargain) does not present the danger that an employer may be "bargaining with itself." N.LRB. v. David Butrick Company, 399 F.2d 505, 507 (1st But it may operate, nonetheless, to disqualify a Cir. 1968). There can be no question with regard to a conflict-of- labor organization from acting as a bargaining rep- interest defense that the Board agrees with the Court of Appeals resentative for particular employees. Although, in for the First Circuit's formulation of a respondent's burden of such cases, the legitimate interest of an employer in showing a "cler and present danger" and that the Board will the loyalty of its supervisors is not in issue (the strike that defense when a respondent fails to carry its burden. active supervisors are not its own), the presence of The Respondent contends that the New York State supervisors of third-party employers may impinge Nurses Association should be disqualified from acting as upon the employees' right to a bargaining repre- the collective-bargaining representative of the Respond- sentative whose undivided concern is for their inter- ent's licensed professional nurses in an appropriate unit ests . . . because of the possible relation between because of a conflict of interest due to the Association's the employer with whom bargaining is sought and being "influenced, directed, dominated and/or controlled the employer or employers of the supervisor partici- by persons who occupy supervisory and/or management pating in the bargaining process. Thus, we have positions" within the Respondent's own hospital or in held that an employer may lawfully refuse to bar- other hospitals or health care institutions. I do not credit gain with a bargaining representative which itself this contention. The Respondent has clearly failed to sus- was in a competing business. 2 tain its "considerable burden . . . in such a situation as this, to come forward with a showing that danger of a " Nassau and Suffolk Contractors' Association, supra Banner conflict of interest interfering with the collective bar- Yarn Dyeing Corporation, 139 NLRB 1018 (1962); Welsbach Electric gaining process is clear and present."" corporation, 236 NLRB 503 (1978). Initially, it is clear from the record in this case that no * * * * * supervisory or managerial employee of the Respondent has ever been an official or director of the NYSNA. Fur- "Bausch d Lomb Optical Company, 108 NLRB 1555 (1954).(l ther, while it is true that statutory supervisors employed While recognizing that an employer who establishes a by third-party employers have been and are now mem- disqualifying conflict of interest may lawfully refuse to bers of the Association's board of directors the evidence bargain, the Board in Sierra Vista Hospital, supra, also herein shows that, as a practical matter, the board of di- held that "the burden on the employer to show such rectors has no input into the NYSNA's collective-bar- conflict is a heavy one." The Board stated: gaining process. Bargaining unit decisions are not brought to the board of directors' attention for review or "Sierra Vista Hospital Inc., supra at 633, fn. 17: action and Welch testified uncontradictedly that she We emphasize that we are here concerned with supervisors who knew of no instance when the board of directors had have an active role in and some authority with respect to directing considered or actually vetoed or overridden any bargain- the affairs of a labor organization. Cf. International Organization of Masters. Mates and Pilots, supra; Allen B. Dumont Laboratories, Inc., ing unit decision. 88 NLRB 1296(1950). The uncontradicted evidence herein further shows that "The Board continued: the "Councils of Nursing Practitioners," the bargaining Under the foregoing analysis, it is conceivable that the presence of units of nurses at the various hospitals and other health even one supervisor on CNA's [California Nurses Associationl board care facilities, control the bargaining process. The bar- of directors, if employed by Respondent, could present a danger that gaining unit adopts its own rules for conducting bargain- unit employees' interests might not be single-mindedly represented. That would depend on the role if any, of that supervisor in CNA 's inter- ing unit business and elects a negotiating committee from nal affairs. It is also conceivable that the active involvement in CNA among unit members. It should be particularly noted that of supervisory nurses employed by other employers may, in some these bargaining units are composed of licensed profes- circumstances, present a conflict of interest requiring that CNA be sional staff nurses excluding all statutory nurse supervi- disqualified from representing a particular unit for which it was cer- tified. That would depend on a demonstrated connection between the srs and managers. The Association does not advise the employer of those unit employees and the employer or employers of those unit concerning the composition of the negotiating com- superisors, and, with respect to this possibility, we stress that the mittee, and does not have a vote in establishing the com- participation of supervisors (of third-prty employers), even if consti- mittee. 52 Proposals for bargaining are generated by the tuting a majority of a nurses' asssociation's board of directors, would not in and of itself necessarily require disqualification, absent some other demonstrated conflict of interest, for we do not assume an "in- " Sierra Vista Hospital Inc., supra herent" conflict between supervisors and employees in the bargain- " At the Respondent's hospital the bargaining unit nurses elected their ing process. [Sierra Vista Hospital Inc. supra at 633 (emphasis sup- own negotiating committee consisting exclusively of members of the bar- plied).] gaining unit. NORTH SHORE UNIVERSITY HOSPITAL 861 ests.['4] Indeed, we have held that an employer has There is a strong public policy favoring the free a duty to refuse to bargain where the presence of choice of a bargaining agent by employees. The that employer's supervisors on the opposite side of choice is not lightly to the frustrated. There is a the bargaining table poses a conflict between those considerable burden on a nonconsenting employer, interests."Iin such a situation as this, to come forward with a The active, internal union participation of super- showing t h at danger o f a conflict of interest inter- visors of a third-party employer (i.e., an employer fering w ith t h e collective bargaining process is clear other than the one with whom the labor organiza- a n d present.2 tion seeks to bargain) does not present the danger that an employer may be "bargaining with itself." XLR.R v. David Buttrick company, 399 F.2d 505, 507 (is. But It may Operate, nonetheless, to disqualify a Cir. 1968). There can be no question with regard to a conflict-of- labor organization from acting as a bargaining rep- interest defense that the Board agrees with the Court of Appeals resentative for particular employees. Although, in for the First Circuit's formulation of a respondent's burden of such cases, the legitimate interest of an employer in sh o w ing a "c lea a nd present danger" and that th e B o ar d w ill the loyalty of its supervisors is not in issue (the strike th at d efe nse wh en a r esp o nd e nt fails t o carr y it s bur den. active supervisors are not its own), the presence of The Respondent contends that the New York State supervisors of third-party employers may impinge Nurses Association should be disqualified from acting as upon the employees' right to a bargaining repre- the collective-bargaining representative of the Respond- sentative whose undivided concern is for their inter- ent's licensed professional nurses in an appropriate unit ests . . . because of the possible relation between because of a conflict of interest due to the Association's the employer with whom bargaining is sought and being "influenced, directed, dominated and/or controlled the employer or employers of the supervisor partici- by persons who occupy supervisory and/or management pating in the bargaining process. Thus, we have positions" within the Respondent's own hospital or in held that an employer may lawfully refuse to bar- other hospitals or health care institutions. I do not credit gain with a bargaining representative which itself this contention. The Respondent has clearly failed to sus- was in a competing business. 2 tain its "considerable burden ... in such a situation as this, to come forward with a showing that danger of a " Nassau and Suffolk Contractors' Association, supra; Banner conflict of interest interfering with the Collective bar- yarn Dyeing Corporation, 139 NLRB 1018 (1962); Welsbach Electric gaining process is clear and present.""1 Corporation, 236 NLRB 503 (1978). Initially, it is clear from the record in this case that no supervisory or managerial employee of the Respondent has ever been an official or director of the NYSNA. Fur- "Bausch d Lomb Optical Company, 108 NLRB 1555 (1954).(l ther, while it is true that statutory supervisors employed While recognizing that an employer who establishes a by third-party employers have been and are now mem- disqualifying conflict of interest may lawfully refuse to bers of the Association's board of directors the evidence bargain, the Board in Sierra Vista Hospital, supra, also herein shows that, as a practical matter, the board of di- held that "the burden on the employer to show such rectors has no input into the NYSNA's collective-bar- conflict is a heavy one." The Board stated: gaining process. Bargaining unit decisions are not brought to the board of directors' attention for review or 4Sierra Vista Hospital Inc., supra at 633, fa. 17: action and Welch testified uncontradictedly that she We emphasize that we are here concerned with supervisors who knew of no instance when the board of directors had have an active role in and some authority with respect to directing considered or actually vetoed or overridden any bargain- the affairs of a labor organization. Cf. International Organization of . , . Mastersm Mates and Pilots, supra; Allen B. Dumont Laboratories, Inc., in u nit decision. 88 NLRB 1296(1950). The uncontradicted evidence herein further shows that "The Board continued: t h e "Councils of Nursing Practitioners," the bargaining Under the foregoing analysi*, it is conceivable that the presence of units of nurses at the various hospitals and Other health even one supervisor on CNA's [California Nurses Association] board care facilities, control the bargaining process. The bar- of directors, if employed by Respondent, could present a danger that gaining unit adopts its own rules for conducting bargain- unit employees' interests might not be single-mindedly represented. n i bses d lc egtan om te fm T7at would depend on oe ifany, oa sup ornter- i" unit business and elects a negotiating committee from nal affairs. It is also conceivable that the active involvement in CNA among unit members. It should be particularly noted that of supervisory nurses employed by other employers may, in some these bargaining units are composed of licensed profes- circumstances, present a conflict of interest requiring that CNA be sional staff nurses excluding all Statutory nurse supervi- disqualified from representing a particular unit for which it was cer- " . . , , . , tified. Thaz would depend on a demonstrated connection between the s ad managers. The Association does not advise the employer of those unit employees and the employer or employers of those unit concerning the composition of the negotiating com- supemsors, and, with respect to this possibility, we stress that the mittee, and does not have a vote in establishing the com- participation of supervisors (of third-pity employers), even if consti- mittee.52 Proposals for bargaining are generated by the tuting a majority of a nurses' asssociation's board of directors, would not in and of itself necessarily require disqualification, absent some other demonstrated conflict of interest, for we do not assume an "in- " Sierra Vista Hospital Inc. supra. herent" conflict between supervisors and employees in the bargain- "' At the Respondent's hospital the bargaining unit nurses elected their ing process. [Sierra Vista Hospital. Inc., supra at 633 (emphasis sup- own negotiating committee consisting exclusively of members of the bar- plied).] gaining unit. NORTH SHORE UNIVERSITY HOSPITAL 861 ests.['4] Indeed, we have held that an employer has There is a strong public policy favoring the free a duty to refuse to bargain where the presence of choice of a bargaining agent by employees. The that employer's supervisors on the opposite side of choice is not lightly to the frustrated. There is a the bargaining table poses a conflict between those considerable burden on a nonconsenting employer, interests."Iin such a situation as this, to come forward with a The active, internal union participation of super- showing t h at danger o f a conflict of interest inter- visors of a third-party employer (i.e., an employer fering w ith t h e collective bargaining process is clear other than the one with whom the labor organiza- a n d present.2 tion seeks to bargain) does not present the danger that an employer may be "bargaining with itself." XLR.R v. David Buttrick company, 399 F.2d 505, 507 (is. But It may Operate, nonetheless, to disqualify a Cir. 1968). There can be no question with regard to a conflict-of- labor organization from acting as a bargaining rep- interest defense that the Board agrees with the Court of Appeals resentative for particular employees. Although, in for the First Circuit's formulation of a respondent's burden of such cases, the legitimate interest of an employer in sh o w ing a "c lea a nd present danger" and that th e B o ar d w ill the loyalty of its supervisors is not in issue (the strike th at d efe nse wh en a r esp o nd e nt fails t o carr y it s bur den. active supervisors are not its own), the presence of The Respondent contends that the New York State supervisors of third-party employers may impinge Nurses Association should be disqualified from acting as upon the employees' right to a bargaining repre- the collective-bargaining representative of the Respond- sentative whose undivided concern is for their inter- ent's licensed professional nurses in an appropriate unit ests . . . because of the possible relation between because of a conflict of interest due to the Association's the employer with whom bargaining is sought and being "influenced, directed, dominated and/or controlled the employer or employers of the supervisor partici- by persons who occupy supervisory and/or management pating in the bargaining process. Thus, we have positions" within the Respondent's own hospital or in held that an employer may lawfully refuse to bar- other hospitals or health care institutions. I do not credit gain with a bargaining representative which itself this contention. The Respondent has clearly failed to sus- was in a competing business. 2 tain its "considerable burden ... in such a situation as this, to come forward with a showing that danger of a " Nassau and Suffolk Contractors' Association, supra; Banner conflict of interest interfering with the Collective bar- Yarn Dyeing Corporation, 139 NLRB 1018 (1962); Welsbach Electric gaining process is clear and present.""' Corporation, 236 NLRB 503 (1978). Initially, it is clear from the record in this case that no supervisory or managerial employee of the Respondent has ever been an official or director of the NYSNA. Fur- "Bausch d Lomb Optical Company, 108 NLRB 1555 (1954).(l ther, while it is true that statutory supervisors employed While recognizing that an employer who establishes a by third-party employers have been and are now mem- disqualifying conflict of interest may lawfully refuse to bers of the Association's board of directors the evidence bargain, the Board in Sierra Vista Hospital, supra, also herein shows that, as a practical matter, the board of di- held that "the burden on the employer to show such rectors has no input into the NYSNA's collective-bar- conflict is a heavy one." The Board stated: gaining process. Bargaining unit decisions are not brought to the board of directors' attention for review or 4Sierra Vista Hospital Inc., supra at 633, fa. 17: action and Welch testified uncontradictedly that she We emphasize that we are here concerned with supervisors who knew of no instance when the board of directors had have an active role in and some authority with respect to directing considered or actually vetoed or overridden any bargain- the affairs of a labor organization. Cf. International Organization of . , . Mastersm Mates and Pilots, supra; Allen B. Dumont Laboratories, Inc., ing u cision. 88 NLRB 1296(1950). The uncontradicted evidence herein further shows that "The Board continued: t h e "Councils of Nursing Practitioners," the bargaining Under the foregoing analysi*, it is conceivable that the presence of units of nurses at the various hospitals and Other health even one supervisor on CNA's [California Nurses Association] board care facilities, control the bargaining process. The bar- of directors, if employed by Respondent, could present a danger that gaining unit adopts its own rules for conducting bargain- unit employees' interests might not be single-mindedly represented. n i bses d lc egtan om te fm T7at would depend on t iany, tha o nter- i"g unit business and elects a negotiating committee from nal affairs. It is also conceivable that the active involvement in CNA among unit members. It should be particularly noted that of supervisory nurses employed by other employers may, in some these bargaining units are composed of licensed profes- circumstances, present a conflict of interest requiring that CNA be sional staff nurses excluding all Statutory nurse supervi- disqualified from representing a particular unit for which it was cer- " . . , , . , tified. Thaz would depend on a demonstrated connection between the sors and managers. The Association does not advise the employer of those unit employees and the employer or employers of those unit concerning the composition of the negotiating com- supemsors, and, with respect to this possibility, we stress that the mittee, and does not have a vote in establishing the com- participation of supervisors (of third-pity employers), even if consti- mittee.52 Proposals for bargaining are generated by the tuting a majority of a nurses' asssociation's board of directors, would not in and of itself necessarily require disqualification, absent some other demonstrated conflict of interest, for we do not assume an "in- " Sierra Vista Hospital Inc. supra. herent" conflict between supervisors and employees in the bargain- "' At the Respondent's hospital the bargaining unit nurses elected their ing process. [Sierra Vista Hospital. Inc., supra at 633 (emphasis sup- own negotiating committee consisting exclusively of members of the bar- plied).] gaining unit. NORTH SHORE UNIVERSITY HOSPITAL 861 ests.[ 49] Indeed, we have held that an employer has There is a strong public policy favoring the free a duty to refuse to bargain where the presence of choice of a bargaining agent by employees. The that employer's supervisors on the opposite side of choice is not lightly to the frustrated. There is a the bargaining table poses a conflict between those considerable burden on a nonconsenting employer, interests."Iin such a situation as this, to come forward with a The active, internal union participation of super- showing t h at danger o f a conflict of interest inter- visors of a third-party employer (i.e., an employer fering w ith t h e collective bargaining process is clear other than the one with whom the labor organiza- a n d present.2 tion seeks to bargain) does not present the danger that an employer may be "bargaining with itself." XLR.R v. David Buttrick company, 399 F.2d 505, 507 (is. But It may Operate, nonetheless, to disqualify a Cir. 1968). There can be no question with regard to a conflict-of- labor organization from acting as a bargaining rep- interest defense that the Board agrees with the Court of Appeals resentative for particular employees. Although, in for the First Circuit's formulation of a respondent's burden of such cases, the legitimate interest of an employer in sh o w ing a "c lea a nd present danger" and that th e B o ar d w ill the loyalty of its supervisors is not in issue (the strike th at d efe nse wh en a r esp o nd e nt fails t o carr y it s bur den. active supervisors are not its own), the presence of The Respondent contends that the New York State supervisors of third-party employers may impinge Nurses Association should be disqualified from acting as upon the employees' right to a bargaining repre- the collective-bargaining representative of the Respond- sentative whose undivided concern is for their inter- ent's licensed professional nurses in an appropriate unit ests . . . because of the possible relation between because of a conflict of interest due to the Association's the employer with whom bargaining is sought and being "influenced, directed, dominated and/or controlled the employer or employers of the supervisor partici- by persons who occupy supervisory and/or management pating in the bargaining process. Thus, we have positions" within the Respondent's own hospital or in held that an employer may lawfully refuse to bar- other hospitals or health care institutions. I do not credit gain with a bargaining representative which itself this contention. The Respondent has clearly failed to sus- was in a competing business. 2 tain its "considerable burden ... in such a situation as this, to come forward with a showing that danger of a " Nassau and Suffolk Contractors' Association, supra; Banner conflict of interest interfering with the Collective bar- Yarn Dyeing Corporation, 139 NLRB 1018 (1962); Welsbach Electric gaining process is clear and present.""1 Corporation, 236 NLRB 503 (1978). Initially, it is clear from the record in this case that no supervisory or managerial employee of the Respondent has ever been an official or director of the NYSNA. Fur- "Bausch d Lomb Optical Company, 108 NLRB 1555 (1954).(l ther, while it is true that statutory supervisors employed While recognizing that an employer who establishes a by third-party employers have been and are now mem- disqualifying conflict of interest may lawfully refuse to bers of the Association's board of directors the evidence bargain, the Board in Sierra Vista Hospital, supra, also herein shows that, as a practical matter, the board of di- held that "the burden on the employer to show such rectors has no input into the NYSNA's collective-bar- conflict is a heavy one." The Board stated: gaining process. Bargaining unit decisions are not brought to the board of directors' attention for review or 4Sierra Vista Hospital Inc., supra at 633, fa. 17: action and Welch testified uncontradictedly that she We emphasize that we are here concerned with supervisors who knew of no instance when the board of directors had have an active role in and some authority with respect to directing considered or actually vetoed or overridden any bargain- the affairs of a labor organization. Cf. International Organization of . , . Mastersm Mates and Pilots, supra; Allen B. Dumont Laboratories, Inc., ing u cision. 88 NLRB 1296(1950). The uncontradicted evidence herein further shows that "The Board continued: t h e "Councils of Nursing Practitioners," the bargaining Under the foregoing analysis, it is conceivable that the presence of units of nurses at the various hospitals and Other health even one supervisor on CNA's [California Nurses Association] board care facilities, control the bargaining process. The bar- of directors, if employed by Respondent, could present a danger that gaining unit adopts its own rules for conducting bargain- unit employees' interests might not be single-mindedly represented. n i bses d lc egtan om te fm T7at would depend on t iany, tha o nter- i"g unit business and elects a negotiating committee from nal affairs. It is also conceivable that the active involvement in CNA among unit members. It should be particularly noted that of supervisory nurses employed by other employers may, in some these bargaining units are composed of licensed profes- circumstances, present a conflict of interest requiring that CNA be sional staff nurses excluding all Statutory nurse supervi- disqualified from representing a particular unit for which it was cer- " . . , , . , tified. Thaz would depend on a demonstrated connection between the s ad managers. The Association does not advise the employer of those unit employees and the employer or employers of those unit concerning the composition of the negotiating com- supemsors, and, with respect to this possibility, we stress that the mittee, and does not have a vote in establishing the com- participation of supervisors (of third-pity employers), even if consti- mittee.52 Proposals for bargaining are generated by the tuting a majority of a nurses' asssociation's board of directors, would not in and of itself necessarily require disqualification, absent some other demonstrated conflict of interest, for we do not assume an "in- " Sierra Vista Hospital Inc. supra. herent" conflict between supervisors and employees in the bargain- "' At the Respondent's hospital the bargaining unit nurses elected their ing process. [Sierra Vista Hospital. Inc., supra at 633 (emphasis sup- own negotiating committee consisting exclusively of members of the bar- plied).] gaining unit. NORTH SHORE UNIVERSITY HOSPITAL 861 ests.[ 49] Indeed, we have held that an employer has There is a strong public policy favoring the free a duty to refuse to bargain where the presence of choice of a bargaining agent by employees. The that employer's supervisors on the opposite side of choice is not lightly to the frustrated. There is a the bargaining table poses a conflict between those considerable burden on a nonconsenting employer, interests."Iin such a situation as this, to come forward with a The active, internal union participation of super- s h o w in g t h at danger o f a conflict of interest inter- visors of a third-party employer (i.e., an employer fering w ith t h e collective bargaining process is clear other than the one with whom the labor organiza- a n d present.2 tion seeks to bargain) does not present the danger that an employer may be "bargaining with itself." XLR.R v. David Buttrick company, 399 F.2d 505, 507 (is. But It may Operate, nonetheless, to disqualify a Cir. 1968). There can be no question with regard to a conflict-of- labor organization from acting as a bargaining rep- interest defense that the Board agrees with the Court of Appeals resentative for particular employees. Although, in for the First Circuit's formulation of a respondent's burden of such cases, the legitimate interest of an employer in sh o w ing a "c lea a nd present danger" and that th e B o ar d w ill the loyalty of its supervisors is not in issue (the strike th at d efe nse wh en a r esp o nd e nt fails t o carr y it s bur den. active supervisors are not its own), the presence of The Respondent contends that the New York State supervisors of third-party employers may impinge Nurses Association should be disqualified from acting as upon the employees' right to a bargaining repre- the collective-bargaining representative of the Respond- sentative whose undivided concern is for their inter- ent's licensed professional nurses in an appropriate unit ests . . . because of the possible relation between because of a conflict of interest due to the Association's the employer with whom bargaining is sought and being "influenced, directed, dominated and/or controlled the employer or employers of the supervisor partici- by persons who occupy supervisory and/or management pating in the bargaining process. Thus, we have positions" within the Respondent's own hospital or in held that an employer may lawfully refuse to bar- other hospitals or health care institutions. I do not credit gain with a bargaining representative which itself this contention. The Respondent has clearly failed to sus- was in a competing business. 2 tain its "considerable burden ... in such a situation as this, to come forward with a showing that danger of a " Nassau and Suffolk Contractors' Association, supra; Banner conflict of interest interfering with the Collective bar- Yarn Dyeing Corporation, 139 NLRB 1018 (1962); Welsbach Electric gaining process is clear and present.""1 Corporation, 236 NLRB 503 (1978). Initially, it is clear from the record in this case that no supervisory or managerial employee of the Respondent has ever been an official or director of the NYSNA. Fur- "Bausch A Lomb Optical Company, 108 NLRB 1555 (1954).(l ther, while it is true that statutory supervisors employed While recognizing that an employer who establishes a by third-party employers have been and are now mem- disqualifying conflict of interest may lawfully refuse to bers of the Association's board of directors the evidence bargain, the Board in Sierra Vista Hospital, supra, also herein shows that, as a practical matter, the board of di- held that "the burden on the employer to show such rectors has no input into the NYSNA's collective-bar- conflict is a heavy one." The Board stated: gaining process. Bargaining unit decisions are not brought to the board of directors' attention for review or 4Sierra Vista Hospital Inc., supra at 633, fa. 17: action and Welch testified uncontradictedly that she We emphasize that we are here concerned with supervisors who knew of no instance when the board of directors had have an active role in and some authority with respect to directing considered or actually vetoed or overridden any bargain- the affairs of a labor organization. Cf. International Organization of . , . Mastersm Mates and Pilots, supra; Allen B. Dumont Laboratories, Inc., ing u cision. 88 NLRB 1296(1950). The uncontradicted evidence herein further shows that "The Board continued: t h e "Councils of Nursing Practitioners," the bargaining Under the foregoing analysis, it is conceivable that the presence of units of nurses at the various hospitals and Other health even one supervisor on CNA's [California Nurses Association] board care facilities, control the bargaining process. The bar- of directors, if employed by Respondent, could present a danger that gaining unit adopts its own rules for conducting bargain- unit employees' interests might not be single-mindedly represented. n i bses d lc egtan om te fm T7at would depend on t iany, tha o nter- i"g unit business and elects a negotiating committee from nal affairs. It is also conceivable that the active involvement in CNA among unit members. It should be particularly noted that of supervisory nurses employed by other employers may, in some these bargaining units are composed of licensed profes- circumstances, present a conflict of interest requiring that CNA be sional staff nurses excluding all Statutory nurse supervi- disqualified from representing a particular unit for which it was cer- " . . , , . , tified. Thaz would depend on a demonstrated connection between the sors and managers. The Association does not advise the employer of those unit employees and the employer or employers of those unit concerning the composition of the negotiating com- supemsors, and, with respect to this possibility, we stress that the mittee, and does not have a vote in establishing the com- participation of supervisors (of third-pity employers), even if consti- mittee.52 Proposals for bargaining are generated by the tuting a majority of a nurses' asssociation's board of directors, would not in and of itself necessarily require disqualification, absent some other demonstrated conflict of interest, for we do not assume an "in- " Sierra Vista Hospital Inc. supra. herent" conflict between supervisors and employees in the bargain- "' At the Respondent's hospital the bargaining unit nurses elected their ing process. [Sierra Vista Hospital. Inc., supra at 633 (emphasis sup- own negotiating committee consisting exclusively of members of the bar- plied).] gaining unit. NORTH SHORE UNIVERSITY HOSPITAL 861 ests.[ 49] Indeed, we have held that an employer has There is a strong public policy favoring the free a duty to refuse to bargain where the presence of choice of a bargaining agent by employees. The that employer's supervisors on the opposite side of choice is not lightly to the frustrated. There is a the bargaining table poses a conflict between those considerable burden on a nonconsenting employer, interests."Iin such a situation as this, to come forward with a The active, internal union participation of super- s h o w in g t h at danger o f a conflict of interest inter- visors of a third-party employer (i.e., an employer fering w ith t h e collective bargaining process is clear other than the one with whom the labor organiza- a n d present.2 tion seeks to bargain) does not present the danger that an employer may be "bargaining with itself." XLR.R v. David Buttrick company, 399 F.2d 505, 507 (is. But It may Operate, nonetheless, to disqualify a Cir. 1968). There can be no question with regard to a conflict-of- labor organization from acting as a bargaining rep- interest defense that the Board agrees with the Court of Appeals resentative for particular employees. Although, in for the First Circuit's formulation of a respondent's burden of such cases, the legitimate interest of an employer in sh o w ing a "c lea a nd present danger" and that th e B o ar d w ill the loyalty of its supervisors is not in issue (the strike th at d efe nse wh en a r esp o nd e nt fails t o carr y it s bur den. active supervisors are not its own), the presence of The Respondent contends that the New York State supervisors of third-party employers may impinge Nurses Association should be disqualified from acting as upon the employees' right to a bargaining repre- the collective-bargaining representative of the Respond- sentative whose undivided concern is for their inter- ent's licensed professional nurses in an appropriate unit ests . . . because of the possible relation between because of a conflict of interest due to the Association's the employer with whom bargaining is sought and being "influenced, directed, dominated and/or controlled the employer or employers of the supervisor partici- by persons who occupy supervisory and/or management pating in the bargaining process. Thus, we have positions" within the Respondent's own hospital or in held that an employer may lawfully refuse to bar- other hospitals or health care institutions. I do not credit gain with a bargaining representative which itself this contention. The Respondent has clearly failed to sus- was in a competing business. 2 tain its "considerable burden ... in such a situation as this, to come forward with a showing that danger of a " Nassau and Suffolk Contractors' Association, supra; Banner conflict of interest interfering with the Collective bar- Yarn Dyeing Corporation, 139 NLRB 1018 (1962); Welsbach Electric gaining process is clear and present.""' Corporation, 236 NLRB 503 (1978). Initially, it is clear from the record in this case that no supervisory or managerial employee of the Respondent has ever been an official or director of the NYSNA. Fur- "Bausch A Lomb Optical Company, 108 NLRB 1555 (1954).(l ther, while it is true that statutory supervisors employed While recognizing that an employer who establishes a by third-party employers have been and are now mem- disqualifying conflict of interest may lawfully refuse to bers of the Association's board of directors the evidence bargain, the Board in Sierra Vista Hospital, supra, also herein shows that, as a practical matter, the board of di- held that "the burden on the employer to show such rectors has no input into the NYSNA's collective-bar- conflict is a heavy one." The Board stated: gaining process. Bargaining unit decisions are not brought to the board of directors' attention for review or 4Sierra Vista Hospital Inc., supra at 633, fa. 17: action and Welch testified uncontradictedly that she We emphasize that we are here concerned with supervisors who knew of no instance when the board of directors had have an active role in and some authority with respect to directing considered or actually vetoed or overridden any bargain- the affairs of a labor organization. Cf. International Organization of . , . Mastersm Mates and Pilots, supra; Allen B. Dumont Laboratories, Inc., ing u cision. 88 NLRB 1296(1950). The uncontradicted evidence herein further shows that "The Board continued: t h e "Councils of Nursing Practitioners," the bargaining Under the foregoing analysis, it is conceivable that the presence of units of nurses at the various hospitals and Other health even one supervisor on CNA's [California Nurses Association] board care facilities, control the bargaining process. The bar- of directors, if employed by Respondent, could present a danger that gaining unit adopts its own rules for conducting bargain- unit employees' interests might not be single-mindedly represented. n i bses d lc egtan om te fm T7at would depend on t iany, tha o nter- i"g unit business and elects a negotiating committee from nal affairs. It is also conceivable that the active involvement in CNA among unit members. It should be particularly noted that of supervisory nurses employed by other employers may, in some these bargaining units are composed of licensed profes- circumstances, present a conflict of interest requiring that CNA be sional staff nurses excluding all Statutory nurse supervi- disqualified from representing a particular unit for which it was cer- " . . , , . , tified. Thaz would depend on a demonstrated connection between the s ad managers. The Association does not advise the employer of those unit employees and the employer or employers of those unit concerning the composition of the negotiating com- supemsors, and, with respect to this possibility, we stress that the mittee, and does not have a vote in establishing the com- participation of supervisors (of third-pity employers), even if consti- mittee.52 Proposals for bargaining are generated by the tuting a majority of a nurses' asssociation's board of directors, would not in and of itself necessarily require disqualification, absent some other demonstrated conflict of interest, for we do not assume an "in- " Sierra Vista Hospital Inc. supra. herent" conflict between supervisors and employees in the bargain- "' At the Respondent's hospital the bargaining unit nurses elected their ing process. [Sierra Vista Hospital. Inc., supra at 633 (emphasis sup- own negotiating committee consisting exclusively of members of the bar- plied).] gaining unit. NORTH SHORE UNIVERSITY HOSPITAL 861 ests.[ 49] Indeed, we have held that an employer has There is a strong public policy favoring the free a duty to refuse to bargain where the presence of choice of a bargaining agent by employees. The that employer's supervisors on the opposite side of choice is not lightly to the frustrated. There is a the bargaining table poses a conflict between those considerable burden on a nonconsenting employer, interests."Iin such a situation as this, to come forward with a The active, internal union participation of super- s h o w in g t h at danger o f a conflict of interest inter- visors of a third-party employer (i.e., an employer fering w ith t h e collective bargaining process is clear other than the one with whom the labor organiza- a n d present.2 tion seeks to bargain) does not present the danger that an employer may be "bargaining with itself." XLR.R v. David Buttrick company, 399 F.2d 505, 507 (is. But It may Operate, nonetheless, to disqualify a Cir. 1968). There can be no question with regard to a conflict-of- labor organization from acting as a bargaining rep- interest defense that the Board agrees with the Court of Appeals resentative for particular employees. Although, in for the First Circuit's formulation of a respondent's burden of such cases, the legitimate interest of an employer in sh o w ing a "c lea a nd present danger" and that th e B o ar d w ill the loyalty of its supervisors is not in issue (the strike th at d efe nse wh en a r esp o nd e nt fails t o carr y it s bur den. active supervisors are not its own), the presence of The Respondent contends that the New York State supervisors of third-party employers may impinge Nurses Association should be disqualified from acting as upon the employees' right to a bargaining repre- the collective-bargaining representative of the Respond- sentative whose undivided concern is for their inter- ent's licensed professional nurses in an appropriate unit ests . . . because of the possible relation between because of a conflict of interest due to the Association's the employer with whom bargaining is sought and being "influenced, directed, dominated and/or controlled the employer or employers of the supervisor partici- by persons who occupy supervisory and/or management pating in the bargaining process. Thus, we have positions" within the Respondent's own hospital or in held that an employer may lawfully refuse to bar- other hospitals or health care institutions. I do not credit gain with a bargaining representative which itself this contention. The Respondent has clearly failed to sus- was in a competing business. 2 tain its "considerable burden ... in such a situation as this, to come forward with a showing that danger of a " Nassau and Suffolk Contractors' Association, supra; Banner conflict of interest interfering with the Collective bar- Yarn Dyeing Corporation, 139 NLRB 1018 (1962); Welsbach Electric gaining process is clear and present.""1 Corporation, 236 NLRB 503 (1978). Initially, it is clear from the record in this case that no supervisory or managerial employee of the Respondent has ever been an official or director of the NYSNA. Fur- "Bausch A Lomb Optical Company, 108 NLRB 1555 (1954).(l ther, while it is true that statutory supervisors employed While recognizing that an employer who establishes a by third-party employers have been and are now mem- disqualifying conflict of interest may lawfully refuse to bers of the Association's board of directors the evidence bargain, the Board in Sierra Vista Hospital, supra, also herein shows that, as a practical matter, the board of di- held that "the burden on the employer to show such rectors has no input into the NYSNA's collective-bar- conflict is a heavy one." The Board stated: gaining process. Bargaining unit decisions are not brought to the board of directors' attention for review or 4Sierra Vista Hospital Inc., supra at 633, fa. 17: action and Welch testified uncontradictedly that she We emphasize that we are here concerned with supervisors who knew of no instance when the board of directors had have an active role in and some authority with respect to directing considered or actually vetoed or overridden any bargain- the affairs of a labor organization. Cf. International Organization of . , . Mastersm Mates and Pilots, supra; Allen B. Dumont Laboratories, Inc., ing u cision. 88 NLRB 1296(1950). The uncontradicted evidence herein further shows that "The Board continued: t h e "Councils of Nursing Practitioners," the bargaining Under the foregoing analysis, it is conceivable that the presence of units of nurses at the various hospitals and Other health even one supervisor on CNA's [California Nurses Association] board care facilities, control the bargaining process. The bar- of directors, if employed by Respondent, could present a danger that gaining unit adopts its own rules for conducting bargain- unit employees' interests might not be single-mindedly represented. n i bses d lc egtan om te fm T7at would depend on t iany, tha o nter- i"g unit business and elects a negotiating committee from nal affairs. It is also conceivable that the active involvement in CNA among unit members. It should be particularly noted that of supervisory nurses employed by other employers may, in some these bargaining units are composed of licensed profes- circumstances, present a conflict of interest requiring that CNA be sional staff nurses excluding all Statutory nurse supervi- disqualified from representing a particular unit for which it was cer- " . . , , . , tified. Thaz would depend on a demonstrated connection between the sors and managers. The Association does not advise the employer of those unit employees and the employer or employers of those unit concerning the composition of the negotiating com- supemsors, and, with respect to this possibility, we stress that the mittee, and does not have a vote in establishing the com- participation of supervisors (of third-pity employers), even if consti- mittee.52 Proposals for bargaining are generated by the tuting a majority of a nurses' asssociation's board of directors, would not in and of itself necessarily require disqualification, absent some other demonstrated conflict of interest, for we do not assume an "in- " Sierra Vista Hospital Inc. supra. herent" conflict between supervisors and employees in the bargain- "' At the Respondent's hospital the bargaining unit nurses elected their ing process. [Sierra Vista Hospital. Inc., supra at 633 (emphasis sup- own negotiating committee consisting exclusively of members of the bar- plied).] gaining unit. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit itself and are not submitted to the Association for Moreover, the mere fact that supervisory or manageri- approval. The Association's labor relations representa- al employees of the Respondent hold membership in the tives, who generally act as chief negotiators on behalf of Association, attend voting sessions of the Association's the individual bargaining units, are paid staff employees conventions, or vote by secret ballot where provided for of the Association and are not supervisors or managerial concerning Association policy and functioning in and of employees of any hospital, including the Respondent's. itself does not present the "clear and present danger" of However, as the evidence indicates, at times the bargain- conflict with employees' Section 7 bargaining rights en- ing unit will elect to have a member of the negotiating visioned by the Board's Decision in Sierra Vista, supra." s committee present a particular contract proposal to the The Respondent also argues that the Association is dis- employer at the bargaining session. Members of the bar- qualified from bargaining as the representative of the ap- gaining unit retain authority to authorize the negotiation propriate nurses' bargaining unit because of the activities of all proposals and to accept or reject proposed modifi- of supervisors or managers of other employers. The Re- cations of unit proposals. When negotiations are complet- spondent states that, at least from 1976 through 1978, a ed, acceptance or rejection of the proposed agreement majority of the members of the Association's board of di- lies solely with the bargaining unit. rectors have been "statutory supervisors employed at Additionally, the evidence clearly shows that the As- hospitals and other health care institutions" and since, in sociation's role in the bargaining process is purely advi- addition, "important [Association] policy formation com- sory and, to the extent that the Association's staff are in- mittees are laden with statutory supervisors" including volved in bargaining, no supervisory or managerial per- the "Special Committee to Consider Concerns of Direc- sonnel affect the process. The Association's staff s5 who tors of Nursing Practice and Services," the "Task Force advise the unit regarding organizational aspects and bar- on Inpediments to Quality Nursing Care," and the gaining are full-time employees of the Association and NYSNA nominating committee, supervisors at all levels are not employed elsewhere. The executive director of are thus involved "without restriction" in every important the Association, who generally executes the collective- phase of the Association's operations, "including finan- bargaining agreements on behalf of the Association, is cial matters, the life blood of EGW and policy making also a full-time Association employee and is not a super- directly affecting EGWP." visor or manager of any hospital or health care related As indicated hereinbefore the Board in Sierra Vista institution. Moreover, her authority with respect to col- Hospital, Inc., supra, stated: lective bargaining is purely ministerial, as she does not have the authority to reject a collective-bargaining [W]e stress that the participation of supervisors (of agreement submitted for execution. third-party employers), even if constituting a major- Significantly, the Board has rejected employer's con- ity of a nurses' association's board of directors, flict-of-interest contentions in a number of cases in which would not in and of itself necessarily require dis- bargaining units retain similar control over the collec- qualification, absent some other demonstrated con- tive-bargaining process as do the Association's bargain-flict of interest, for we do not assume an "inherent" ing units.54 conflict between supervisors and employees in the As to the Respondent's own supervisory and manage-argaining process. rial employees, the Respondent alleges that because Thus, it is clear that the employer must show some con- Catherine Foster, a supervisor at its hospital, was "Presi- nection between the employer of those unit employees dent of District 14, which compiles wage and area prac- and the employer or employers of those supervisors." It tice surveys, sets private duty nurse fees and otherwise is also clear that it is insufficient to establish disqualifica- assists in [NYSNA] EGW activities, and Chairman of the tion of the Association herein to bargain simply because [NYSNA] Nominating Committee . . . these relation- one, a few, or even a majority of its board of directors ships forced an intolerable compromise of loyalties that are supervisors or managers of some other hospital or to is precisely the kind of conflict of interest both the suppose some conflict when in fact none exists or has Board and the Courts have condemned." I do not agree. ever occurred before. The record in this case is devoid The evidence herein clearly shows that District 14 is of any evidence showing that any member of the Associ- not a labor organization, does not engage in collective ation's board of directors has ever interfered with, domi- bargaining itself, and does not influence the collective- nated, or controlled any of the Association's collective- bargaining process or programs of the NYSNA. The bargaining activities. Further, the Respondent failed to Board has expressly rejected employer's conflict of inter- show any evidence that a "supervisory" member of the est contentions based upon the activities of the employ- er's own alleged supervisors in constituent districts of While there are some supervisors of the Employer and of Lourdes state nurses' associations. a Hospital who serve as officers and directors of [Kentucky Nurses Association]'s District 5, the record indicates that there is nothing in u Usually the Association's nursing and labor relations representatives. KNA's organizational structure which allows for district officers and " See Abington Memorial Hospital supra, Lodi Memorial Hospital Asso- directors to interfere with the collective-bargaining process of a local clation, Inc., supra, Rockford Memorial Association d/b/a Rockford Memo- Unit rial Hospital, 247 NLRB 319 (1980); The Sidney Farber Cancer Institute, Also see Lancaster Osteopathic Hospital Association. Inc., supra, St. Rose de 247 NLRB I (1980); Lancaster Osteopathic Hospital Association. Inc., 246 Lima Hospital, Inc., 223 NLRB 1511 (1976). NLRB 600 (1979); Baptist Hospitals, Inc. d/b/a Western Baptist Hospital, I Also see Lancaster Osteopathic Hospital, supra; Healdsburg General 246 NLRB 170 (1979). Hospital, 247 NLRB 212 (1980). In Baptist Hospitals Inc., supra at 171, the Board stated: "Sierra Vista Hospital. Inc.. supra 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit itself and are not submitted to the Association for Moreover, the mere fact that supervisory or manageri- approval. The Association's labor relations representa- al employees of the Respondent hold membership in the tives, who generally act as chief negotiators on behalf of Association, attend voting sessions of the Association's the individual bargaining units, are paid staff employees conventions, or vote by secret ballot where provided for of the Association and are not supervisors or managerial concerning Association policy and functioning in and of employees of any hospital, including the Respondent's. itself does not present the "clear and present danger" of However, as the evidence indicates, at times the bargain- conflict with employees' Section 7 bargaining rights en- ing unit will elect to have a member of the negotiating visioned by the Board's Decision in Sierra Vista, supra."* committee present a particular contract proposal to the The Respondent also argues that the Association is dis- employer at the bargaining session. Members of the bar- qualified from bargaining as the representative of the ap- gaining unit retain authority to authorize the negotiation propriate nurses' bargaining unit because of the activities of all proposals and to accept or reject proposed modifi- of supervisors or managers of other employers. The Re- cations of unit proposals. When negotiations are complet- spondent states that, at least from 1976 through 1978, a ed, acceptance or rejection of the proposed agreement majority of the members of the Association's board of di- lies solely with the bargaining unit. rectors have been "statutory supervisors employed at Additionally, the evidence clearly shows that the As- hospitals and other health care institutions" and since, in sociation's role in the bargaining process is purely advi- addition, "important [Association] policy formation com- sory and, to the extent that the Association's staff are in- mittees are laden with statutory supervisors" including volved in bargaining, no supervisory or managerial per- the "Special Committee to Consider Concerns of Direc- sonnel affect the process. The Association's staff3" who tors of Nursing Practice and Services," the "Task Force advise the unit regarding organizational aspects and bar- on Inpediments to Quality Nursing Care," and the gaining are full-time employees of the Association and NYSNA nominating committee, supervisors at all levels are not employed elsewhere. The executive director of are thus involved "without restriction" in every important the Association, who generally executes the collective- phase of the Association's operations, "including finan- bargaining agreements on behalf of the Association, is cial matters, the life blood of EGW and policy making also a full-time Association employee and is not a super- directly affecting EGWP." visor or manager of any hospital or health care related As indicated hereinbefore the Board in Sierra Vista institution. Moreover, her authority with respect to col- Hospital, Inc., supra, stated: lective bargaining is purely ministerial, as she does not have the authority to reject a collective-bargaining [W]e stress that the participation of supervisors (of agreement submitted for execution. third-party employers), even if constituting a major- Significantly, the Board has rejected employer's con- ity o f a n u r se s' association's board of directors, flict-of-interest contentions in a number of cases in which w o ul d no t in and o f itsel f necessarily require dis- bargaining units retain similar control over the collec- qualification, absent some other demonstrated con- tive-bargaining process as do the Association's bargain-f l c t o f int e r es t, fo r w e d o n o t ass u m e a "i n he re n t ing units. 54conflict between supervisors and employees in the As to the Respondent's own supervisory and manage-argaing process. rial employees, the Respondent alleges that because Thus, it is clear that the employer must show some con- Catherine Foster, a supervisor at its hospital, was "Presi- nection between the employer of those unit employees dent of District 14, which compiles wage and area prac- and the employer or employers of those supervisors."7 It tice surveys, sets private duty nurse fees and otherwise is ls clear that it is insufficient to establish disqualifica- assists in [NYSNA] EGW activities, and Chairman of the tion of the Association herein to bargain simply because [NYSNA] Nominating Committee . . . these relation- one, a few, or even a majority of its board of directors ships forced an intolerable compromise of loyalties that are supervisors or managers of some other hospital or to is precisely the kind of conflict of interest both the suppose some conflict when in fact none exists or has Board and the Courts have condemned." I do not agree. ever occurred before. The record in this case is devoid The evidence herein clearly shows that District 14 is of any evidence showing that any member of the Associ- not a labor organization, does not engage in collective ation's board of directors has ever interfered with, domi- bargaining itself, and does not influence the collective- nated, or controlled any of the Association's collective- bargaining process or programs of the NYSNA. The bargaining activities. Further, the Respondent failed to Board has expressly rejected employer's conflict of inter- show any evidence that a "supervisory" member of the est contentions based upon the activities of the employ- er's own alleged supervisors in constituent districts of While there are some supervisors of the Employer and of Lourdes State nurses' associations. 55 Hospital who serve as officers and directors of [Kentucky Nurses Associationl's District 5, the record indicates that there is nothing in " Usually the Association's nursing and labor relations representatives. KNA's organizational structure which allows for district officers and " See Abington Memorial Hospital supra; Lodi Memorial Hospital Asso- directors to interfere with the collective-bargaining process of a local ciation, Inc., supra; Rockford Memorial Association d/b/a Rockford Memo- "unit. rial Hospital, 247 NLRB 319 (1980); 7he Sidney Farber Cancer Institute, Also see Lancaster Osteopathic Hospital Association. Inc.. supra St. Raw de 247 NLRB 1 (1980); Lancaster Osleopalhic Hospital Association. Inc., 246 Lima Hospital. Inc., 223 NLRB 1511 (1976). NLRB 600 (1979); Baptist Hospitals, Inc., d/b/a Western Baptist Hospital. Also see Lancaster Osteopathic Hospital, supra; Healdsburg General 246 NLRB 170 (1979). Hospital. 247 NLRB 212 (1980). " In Baptist Hospitals% Inc., supra at 171, the Board stated:" Sierra Vista Hospital. Inc.. supra 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit itself and are not submitted to the Association for Moreover, the mere fact that supervisory or manageri- approval. The Association's labor relations representa- al employees of the Respondent hold membership in the tives, who generally act as chief negotiators on behalf of Association, attend voting sessions of the Association's the individual bargaining units, are paid staff employees conventions, or vote by secret ballot where provided for of the Association and are not supervisors or managerial concerning Association policy and functioning in and of employees of any hospital, including the Respondent's. itself does not present the "clear and present danger" of However, as the evidence indicates, at times the bargain- conflict with employees' Section 7 bargaining rights en- ing unit will elect to have a member of the negotiating visioned by the Board's Decision in Sierra Vista, supra."* committee present a particular contract proposal to the The Respondent also argues that the Association is dis- employer at the bargaining session. Members of the bar- qualified from bargaining as the representative of the ap- gaining unit retain authority to authorize the negotiation propriate nurses' bargaining unit because of the activities of all proposals and to accept or reject proposed modifi- of supervisors or managers of other employers. The Re- cations of unit proposals. When negotiations are complet- spondent states that, at least from 1976 through 1978, a ed, acceptance or rejection of the proposed agreement majority of the members of the Association's board of di- lies solely with the bargaining unit. rectors have been "statutory supervisors employed at Additionally, the evidence clearly shows that the As- hospitals and other health care institutions" and since, in sociation's role in the bargaining process is purely advi- addition, "important [Association] policy formation com- sory and, to the extent that the Association's staff are in- mittees are laden with statutory supervisors" including volved in bargaining, no supervisory or managerial per- the "Special Committee to Consider Concerns of Direc- sonnel affect the process. The Association's staff3" who tors of Nursing Practice and Services," the "Task Force advise the unit regarding organizational aspects and bar- on Inpediments to Quality Nursing Care," and the gaining are full-time employees of the Association and NYSNA nominating committee, supervisors at all levels are not employed elsewhere. The executive director of are thus involved "without restriction" in every important the Association, who generally executes the collective- phase of the Association's operations, "including finan- bargaining agreements on behalf of the Association, is cial matters, the life blood of EGW and policy making also a full-time Association employee and is not a super- directly affecting EGWP." visor or manager of any hospital or health care related As indicated hereinbefore the Board in Sierra Vista institution. Moreover, her authority with respect to col- Hospital, Inc., supra, stated: lective bargaining is purely ministerial, as she does not have the authority to reject a collective-bargaining [W]e stress that the participation of supervisors (of agreement submitted for execution. third-party employers), even if constituting a major- Significantly, the Board has rejected employer's con- ity o f a n u r se s' association's board of directors, flict-of-interest contentions in a number of cases in which w o ul d no t in and o f itsel f necessarily require dis- bargaining units retain similar control over the collec- qualification, absent some other demonstrated con- tive-bargaining process as do the Association's bargain-f l c t o f int e r es t, fo r w e d o n o t ass u m e a "i n he re n t ing units. 54conflict between supervisors and employees in the As to the Respondent's own supervisory and manage-argaing process. rial employees, the Respondent alleges that because Thus, it is clear that the employer must show some con- Catherine Foster, a supervisor at its hospital, was "Presi- nection between the employer of those unit employees dent of District 14, which compiles wage and area prac- and the employer or employers of those supervisors."7 It tice surveys, sets private duty nurse fees and otherwise i also clear that it is insufficient to establish disqualifica- assists in [NYSNA] EGW activities, and Chairman of the tion of the Association herein to bargain simply because [NYSNA] Nominating Committee . . . these relation- one, a few, or even a majority of its board of directors ships forced an intolerable compromise of loyalties that are supervisors or managers of some other hospital or to is precisely the kind of conflict of interest both the suppose some conflict when in fact none exists or has Board and the Courts have condemned." I do not agree. ever occurred before. The record in this case is devoid The evidence herein clearly shows that District 14 is of any evidence showing that any member of the Associ- not a labor organization, does not engage in collective ation's board of directors has ever interfered with, domi- bargaining itself, and does not influence the collective- nated, or controlled any of the Association's collective- bargaining process or programs of the NYSNA. The bargaining activities. Further, the Respondent failed to Board has expressly rejected employer's conflict of inter- show any evidence that a "supervisory" member of the est contentions based upon the activities of the employ- er's own alleged supervisors in constituent districts of While there are some supervisors of the Employer and of Lourdes State nurses' associations. 55 Hospital who serve as officers and directors of [Kentucky Nurses Associationl's District 5, the record indicates that there is nothing in " Usually the Association's nursing and labor relations representatives. KNA's organizational structure which allows for district officers and " See Abington Memorial Hospital supra; Lodi Memorial Hospital Asso- directors to interfere with the collective-bargaining process of a local ciation, Inc., supra; Rockford Memorial Association d/b/a Rockford Memo- "unit. rial Hospital, 247 NLRB 319 (1980); 7he Sidney Farber Cancer Institute, Also see Lancaster Osteopathic Hospital Association. Inc.. supra St. Raw de 247 NLRB 1 (1980); Lancaster Osleopalhic Hospital Association. Inc., 246 Lima Hospital. Inc., 223 NLRB 1511 (1976). NLRB 600 (1979); Baptist Hospitals, Inc., d/b/a Western Baptist Hospital. Also see Lancaster Osteopathic Hospital, supra; Healdsburg General 246 NLRB 170 (1979). Hospital. 247 NLRB 212 (1980). " In Baptist Hospitals% Inc., supra at 171, the Board stated:" Sierra Vista Hospital. Inc.. supra 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit itself and are not submitted to the Association for Moreover, the mere fact that supervisory or manageri- approval. The Association's labor relations representa- al employees of the Respondent hold membership in the tives, who generally act as chief negotiators on behalf of Association, attend voting sessions of the Association's the individual bargaining units, are paid staff employees conventions, or vote by secret ballot where provided for of the Association and are not supervisors or managerial concerning Association policy and functioning in and of employees of any hospital, including the Respondent's. itself does not present the "clear and present danger" of However, as the evidence indicates, at times the bargain- conflict with employees' Section 7 bargaining rights en- ing unit will elect to have a member of the negotiating visioned by the Board's Decision in Sierra Vista, supra.** committee present a particular contract proposal to the The Respondent also argues that the Association is dis- employer at the bargaining session. Members of the bar- qualified from bargaining as the representative of the ap- gaining unit retain authority to authorize the negotiation propriate nurses' bargaining unit because of the activities of all proposals and to accept or reject proposed modifi- of supervisors or managers of other employers. The Re- cations of unit proposals. When negotiations are complet- spondent states that, at least from 1976 through 1978, a ed, acceptance or rejection of the proposed agreement majority of the members of the Association's board of di- lies solely with the bargaining unit. rectors have been "statutory supervisors employed at Additionally, the evidence clearly shows that the As- hospitals and other health care institutions" and since, in sociation's role in the bargaining process is purely advi- addition, "important [Association] policy formation com- sory and, to the extent that the Association's staff are in- mittees are laden with statutory supervisors" including volved in bargaining, no supervisory or managerial per- the "Special Committee to Consider Concerns of Direc- sonnel affect the process. The Association's staff3" who tors of Nursing Practice and Services," the "Task Force advise the unit regarding organizational aspects and bar- on Inpediments to Quality Nursing Care," and the gaining are full-time employees of the Association and NYSNA nominating committee, supervisors at all levels are not employed elsewhere. The executive director of are thus involved "without restriction" in every important the Association, who generally executes the collective- phase of the Association's operations, "including finan- bargaining agreements on behalf of the Association, is cial matters, the life blood of EGW and policy making also a full-time Association employee and is not a super- directly affecting EGWP." visor or manager of any hospital or health care related As indicated hereinbefore the Board in Sierra Vista institution. Moreover, her authority with respect to col- Hospital, Inc., supra, stated: lective bargaining is purely ministerial, as she does not have the authority to reject a collective-bargaining [W]e stress that the participation of supervisors (of agreement submitted for execution. third-party employers), even if constituting a major- Significantly, the Board has rejected employer's con- ity o f a n u r se s' association's board of directors, flict-of-interest contentions in a number of cases in which w o ul d no t in and o f itsel f necessarily require dis- bargaining units retain similar control over the collec- qualification, absent some other demonstrated con- tive-bargaining process as do the Association's bargain-f l c t o f int e r es t, fo r w e d o n o t ass u m e a "i n he r en t ing units. 54conflict between supervisors and employees in the As to the Respondent's own supervisory and manage-argaing process. rial employees, the Respondent alleges that because Thus, it is clear that the employer must show some con- Catherine Foster, a supervisor at its hospital, was "Presi- nection between the employer of those unit employees dent of District 14, which compiles wage and area prac- and the employer or employers of those supervisors."7 It tice surveys, sets private duty nurse fees and otherwise i also clear that it is insufficient to establish disqualifica- assists in [NYSNA] EGW activities, and Chairman of the tion of the Association herein to bargain simply because [NYSNA] Nominating Committee . . . these relation- one, a few, or even a majority of its board of directors ships forced an intolerable compromise of loyalties that are supervisors or managers of some other hospital or to is precisely the kind of conflict of interest both the suppose some conflict when in fact none exists or has Board and the Courts have condemned." I do not agree. ever occurred before. The record in this case is devoid The evidence herein clearly shows that District 14 is of any evidence showing that any member of the Associ- not a labor organization, does not engage in collective ation's board of directors has ever interfered with, domi- bargaining itself, and does not influence the collective- nated, or controlled any of the Association's collective- bargaining process or programs of the NYSNA. The bargaining activities. Further, the Respondent failed to Board has expressly rejected employer's conflict of inter- show any evidence that a "supervisory" member of the est contentions based upon the activities of the employ- er's own alleged supervisors in constituent districts of While there are some supervisors of the Employer and of Lourdes State nurses' associations. 55 Hospital who serve as officers and directors of [Kentucky Nurses Associationl's District 5, the record indicates that there is nothing in " Usually the Association's nursing and labor relations representatives. KNA's organizational structure which allows for district officers and " See Abington Memorial Hospital supra; Lodi Memorial Hospital Asso- directors to interfere with the collective-bargaining process of a local ciation, Inc., supra; Rockford Memorial Association d/b/a Rockford Memo- "unit. rial Hospital, 247 NLRB 319 (1980); 7he Sidney Farber Cancer Institute, Also see Lancaster Osteopathic Hospital Association. Inc.. supra St. Raw de 247 NLRB 1 (1980); Lancaster Osleopalhic Hospital Association. Inc., 246 Lima Hospital. Inc., 223 NLRB 1511 (1976). NLRB 600 (1979); Baptist Hospitals, Inc., d/b/a Western Baptist Hospital. Also see Lancaster Osteopathic Hospital, supra; Healdsburg General 246 NLRB 170 (1979). Hospital. 247 NLRB 212 (1980). " In Baptist Hospitals% Inc., supra at 171, the Board stated:" Sierra Vista Hospital. Inc.. supra NORTH SHORE UNIVERSITY HOSPITAL 863 Association's board of directors employed at another interests of supervisors (advising supervisory nurses of hospital "has used or could use his or her position to in- their rights and responsibilities as members of manage- fluence that board to advance the competitive position of ment and concerning their own contract negotiations any hospital as against the Employer." 8 with their hospital employers, and representing them in Significantly, the Board has repeatedly rejected an em- their employment relations with the hospitals, all at high ployer's assertions of disqualifying conflicts of interests cost) it is "influenced, dominated and controlled" by where "third-party" supervisors were or had been mem- member supervisors. The employer therein asserted that bers of a nurses' association's board of directors absent a the diversion of sorely needed funds from bargaining unit showing by an employer of proof of a connection be- employees' needs to the promotion of supervisors' inter- tween the hospital and the employers of such supervisors ests presents a "classic conflict of interest for, if CNA sufficient to evidence a conflict of interest that would has allegiance to supervisors, that allegiance compro- compromise the integrity of the bargaining process. 59 In mises its representation of bargaining unit employees at the instant matter the Respondent has failed to show the bargaining table." The employer further asserted that either that its own supervisors serve on the Association's supervisors, because they are represented by CNA and board of directors, or that there exists a connection be- their interests are protected by CNA owe allegiance to tween the Respondent's hospital and the employers of CNA as well as to their employer and that such a rela- the supervisors who are now or have served previously i i i on the Association's board of directors which could compromise bargaining.en compromise bargaining. The Board stated in the Healdsburg General Hospital Furthermore, in considering the Respondent's other The Board stated the H burg Gene Hospial contentions it should be noted that the Board in The case Sidney Farber Cancer Institute, supra, stated: Sidney Farber Cancer Institute, supra, stated: [T]he Employer claims that, because CNA is influ- As to the Employer's assertions that the MNA enced by supervisors, it cannot give its undivided board of directors' various powers, such as those of loyalty to the interests of employees. In this the appointment, approval, and fiscal control, amount Employer alleges that CNA is, in fact, influenced to supervisory domination, we find these functions by supervisors; that CNA represents "all" nurses in- of organizational oversight to be both remote end cluding supervisors; and that such representation is speculative in relation to the local chapters' bargain- costly and controversial. Even assuming that to be ing activities. Something more than mere potential the case, the Employer failed to establish that any for influence must be shown to warrant disqualify- of these factors creates a conflict of interest suffi- ing a labor organization. [247 NLRB at 4.] cient to prevent CNA from acting as bargaining representative. As emphasized, the Board in Sierra Thus the Board has expressly rejected the Respondent's Vista stated that "there is no inherent conflict be- argument that the "power of the purse" as represented in tween supervisors and employees in the bargaining the Association's board of directors' authority to adopt, process." The Employer apparently takes the posi- approve, or modify the Association's annual operating tion that there is and offers the above evidence as budget creates a potential for interference with collective proof. However, it is clear that the internal struc- bargaining which requires disqualification of the Associ- ture and problems of CNA, as presented by the ation. Employer, are irrelevant to our inquiry absent some The Respondent also points to the presence of supervi- showing of a particular conflict. None has been sory or managerial employees of other hospitals or shown by the Employer either in its offer of proof health care related institutions on the Association's "Spe- or in its brief. [247 NLRB at 214. cial Committee to Consider Concerns of Directors of Nursing Practice and Services" as creating a clear and Thus it is not enough for an employer to show that su- present danger of conflict with employee rights. This pervisors participate or even "influence" the Association. committee recommended, in substance, that the Associ- The respondent must show a "direct" conflict of interest, ation allow the continued full participation of the direc- "that a danger of a conflict of interest interfering with tors of nursing practice and services in the Association, the collective bargaining process is clear and present." 6° provide legal and employment assistance to directors of A nurses association's interest in supervisory nurses' nursing practice and services, and challenge and publi- problems does not evidence a "clear and present" danger cize any discriminatory action by employers against of conflict of interest to disqualify it from representing these directors of nursing and services because of their rank-and-file nurses. Association membership. Additionally, as stated by the Board, in The Sidney In Healdsburg General Hospital, supra, a case involving Frber Cancer Institute, supra at 4: somewhat similar circumstances, the Board rejected the employer's contention that because the California Nurses We likewise find the Employer's assertion that its Association (CNA) maintained a division devoted to the supervisors may hold office or positions of authori- "HealdsbugGeneralH tal. supra at ty in MNA at some future time entirely too specula- "See Healdsbug General Hospital supr n arer Cancert 2. tive to warrant disqualification of MNA. Nor is that " See lcealdsbr General Hospital, supma' The Sidncy Ferber Cancer In- slitute. spra. Lancaster Osteopathic Hospital Association, Inc., supra; Baptist Hospital Inc. d/b/a Western Baptist Hospital, supra. Healdsburg General Hospital. supra NORTH SHORE UNIVERSITY HOSPITAL 863 Association's board of directors employed at another interests of supervisors (advising supervisory nurses of hospital "has used or could use his or her position to in- their rights and responsibilities as members of manage- fluence that board to advance the competitive position of ment and concerning their own contract negotiations any hospital as against the Employer." 5'with their hospital employers, and representing them in Significantly, the Board has repeatedly rejected an em- their employment relations with the hospitals, all at high ployer's assertions of disqualifying conflicts of interests cost) it is "influenced, dominated and controlled" by where "third-party" supervisors were or had been mem- member supervisors. The employer therein asserted that bers of a nurses' association's board of directors absent a the diversion of sorely needed funds from bargaining unit showing by an employer of proof of a connection be- employees' needs to the promotion of supervisors' inter- tween the hospital and the employers of such supervisors ests presents a "classic conflict of interest for, if CNA sufficient to evidence a conflict of interest that would has allegiance to supervisors, that allegiance compro- compromise the integrity of the bargaining process. 59 In mises its representation of bargaining unit employees at the instant matter the Respondent has failed to show the bargaining table." The employer further asserted that either that its own supervisors serve on the Association's supervisors, because they are represented by CNA and board of directors, or that there exists a connection be- teir interests are protected by CNA. owe allegiance to tween the Respondent's hospital and the employers of CNA as well as to their employer and that such a rela- the supervisors who are now or have served previously ts in h an av1 ia o n on the Association's board of directors which could men. compromise bargaining. e B st in t H G H Furthermore, in considering the Respondent's other T h e B o a r d st at ed cs t h e Heburg General Hospital contentions it should be noted that the Board in The c a se : Sidney Farber Cancer Insritute, supra, stated:r-i 1 - <.. Sidney Farber Cancer Institute, supra, stated: [T]he Employer claims that, because CNA is influ- As to the Employer's assertions that the MNA e n c e d by supervisors, it cannot give its undivided board of directors' various powers, such as those of loyalty to the interests of employees. In this the appointment, approval, and fiscal control, amount Employer alleges that CNA is, in fact, influenced to supervisory domination, we find these functions by supervisors; that CNA represents "all" nurses in- of organizational oversight to be both remote end eluding supervisors; and that such representation is speculative in relation to the local chapters' bargain- costly and controversial. Even assuming that to be ing activities. Something more than mere potential t h e c a s e, t h e Employer failed to establish that any for influence must be shown to warrant disqualify- of these factors creates a conflict of interest suffi- ing a labor organization. [247 NLRB at 4.] cient to prevent CNA from acting as bargaining representative. As emphasized, the Board in Sierra Thus the Board has expressly rejected the Respondent's Vista stated that "there is no inherent conflict be- argument that the "power of the purse" as represented in tween supervisors and employees in the bargaining the Association's board of directors' authority to adopt, process." The Employer apparently takes the posi- approve, or modify the Association's annual operating tion that there is and offers the above evidence as budget creates a potential for interference with collective proof. However, it is clear that the internal struc- bargaining which requires disqualification of the Associ- ture and problems of CNA, as presented by the a tio n . Employer, are irrelevant to our inquiry absent some The Respondent also points to the presence of supervi- showing of a particular conflict. None has been sory or managerial employees of other hospitals or shown by the Employer either in its offer of proof health care related institutions on the Association's "Spe- or in its brief. [247 NLRB at 214.] cial Committee to Consider Concerns of Directors of Nursing Practice and Services" as creating a clear and Thus it is not enough for an employer to show that su- present danger of conflict with employee rights. This pervisors participate or even "influence" the Association. committee recommended, in substance, that the Associ- The respondent must show a "direct" conflict of interest, ation allow the continued full participation of the direc- "that a danger of a conflict of interest interfering with tors of nursing practice and services in the Association, the collective bargaining process is clear and present." 80 provide legal and employment assistance to directors of A nurses association's interest in supervisory nurses' nursing practice and services, and challenge and publi- problems does not evidence a "clear and present" danger cize any discriminatory action by employers against of conflict of interest to disqualify it from representing these directors of nursing and services because of their rank-and-file nurses. Association membership. Additionally, as stated by the Board, in The Sidney In Healdsburg General Hospital, supra, a case involving Farber Cancer Institute, supra at 4: somewhat similar circumstances, the Board rejected the employer's contention that because the California Nurses We likewise find the Employer's assertion that its Association (CNA) maintained a division devoted to the supervisors may hold office or positions of authori- ------- sburg General Ha~ital. supra at 214. ty in MNA at some future time entirely too specula- See H ki Ge l eSineyF r Cancer In- tive to warrant disqualification of MNA. Nor is that stitute. supa Lancaster Osteopathic Hospital Association, Inc., supra; Baptist Hospital Inc., d/b/a Western Baptist Hospital, supra.' Healdsburg General Hospital supra. NORTH SHORE UNIVERSITY HOSPITAL 863 Association's board of directors employed at another interests of supervisors (advising supervisory nurses of hospital "has used or could use his or her position to in- their rights and responsibilities as members of manage- fluence that board to advance the competitive position of ment and concerning their own contract negotiations any hospital as against the Employer." 5'with their hospital employers, and representing them in Significantly, the Board has repeatedly rejected an em- their employment relations with the hospitals, all at high ployer's assertions of disqualifying conflicts of interests cost) it is "influenced, dominated and controlled" by where "third-party" supervisors were or had been mem- member supervisors. The employer therein asserted that bers of a nurses' association's board of directors absent a the diversion of sorely needed funds from bargaining unit showing by an employer of proof of a connection be- employees' needs to the promotion of supervisors' inter- tween the hospital and the employers of such supervisors ests presents a "classic conflict of interest for, if CNA sufficient to evidence a conflict of interest that would has allegiance to supervisors, that allegiance compro- compromise the integrity of the bargaining process. 59 In mises its representation of bargaining unit employees at the instant matter the Respondent has failed to show the bargaining table." The employer further asserted that either that its own supervisors serve on the Association's supervisors, because they are represented by CNA and board of directors, or that there exists a connection be- teir interests are protected by CNA. owe allegiance to tween the Respondent's hospital and the employers of CNA as well as to their employer and that such a rela- the supervisors who are now or have served previously ts in h an av1 ia o n on the Association's board of directors which could men. compromise bargaining. e B st in t H G H Furthermore, in considering the Respondent's other T h e B o a r d st at ed cs t h e Heburg General Hospital contentions it should be noted that the Board in The c a se : Sidney Farber Cancer Insritute, supra, stated:r-i 1 - <.. Sidney Farber Cancer Institute, supra, stated: [T]he Employer claims that, because CNA is influ- As to the Employer's assertions that the MNA e n c e d by supervisors, it cannot give its undivided board of directors' various powers, such as those of loyalty to the interests of employees. In this the appointment, approval, and fiscal control, amount Employer alleges that CNA is, in fact, influenced to supervisory domination, we find these functions by supervisors; that CNA represents "all" nurses in- of organizational oversight to be both remote end eluding supervisors; and that such representation is speculative in relation to the local chapters' bargain- costly and controversial. Even assuming that to be ing activities. Something more than mere potential t h e c a s e, t h e Employer failed to establish that any for influence must be shown to warrant disqualify- of these factors creates a conflict of interest suffi- ing a labor organization. [247 NLRB at 4.] cient to prevent CNA from acting as bargaining representative. As emphasized, the Board in Sierra Thus the Board has expressly rejected the Respondent's Vista stated that "there is no inherent conflict be- argument that the "power of the purse" as represented in tween supervisors and employees in the bargaining the Association's board of directors' authority to adopt, process." The Employer apparently takes the posi- approve, or modify the Association's annual operating tion that there is and offers the above evidence as budget creates a potential for interference with collective proof. However, it is clear that the internal struc- bargaining which requires disqualification of the Associ- ture and problems of CNA, as presented by the a tio n . Employer, are irrelevant to our inquiry absent some The Respondent also points to the presence of supervi- showing of a particular conflict. None has been sory or managerial employees of other hospitals or shown by the Employer either in its offer of proof health care related institutions on the Association's "Spe- or in its brief. [247 NLRB at 214.] cial Committee to Consider Concerns of Directors of Nursing Practice and Services" as creating a clear and Thus it is not enough for an employer to show that su- present danger of conflict with employee rights. This pervisors participate or even "influence" the Association. committee recommended, in substance, that the Associ- The respondent must show a "direct" conflict of interest, ation allow the continued full participation of the direc- "that a danger of a conflict of interest interfering with tors of nursing practice and services in the Association, the collective bargaining process is clear and present." 80 provide legal and employment assistance to directors of A nurses association's interest in supervisory nurses' nursing practice and services, and challenge and publi- problems does not evidence a "clear and present" danger cize any discriminatory action by employers against of conflict of interest to disqualify it from representing these directors of nursing and services because of their rank-and-file nurses. Association membership. Additionally, as stated by the Board, in The Sidney In Healdsburg General Hospital, supra, a case involving Farber Cancer Institute, supra at 4: somewhat similar circumstances, the Board rejected the employer's contention that because the California Nurses We likewise find the Employer's assertion that its Association (CNA) maintained a division devoted to the supervisors may hold office or positions of authori- ------- sburg General Ha~ital. supra at 214. ty in MNA at some future time entirely too specula- e H ki Gene seSineyF r Cancer In- tive to warrant disqualification of MNA. Nor is that stitute. supa Lancaster Osteopathic Hospital Association, Inc., supra; Baptist Hospital Inc, d/b/a Western Baptist Hospital, supra.' Healdsburg General Hospital supra. NORTH SHORE UNIVERSITY HOSPITAL 863 Association's board of directors employed at another interests of supervisors (advising supervisory nurses of hospital "has used or could use his or her position to in- their rights and responsibilities as members of manage- fluence that board to advance the competitive position of ment and concerning their own contract negotiations any hospital as against the Employer." 5'with their hospital employers, and representing them in Significantly, the Board has repeatedly rejected an em- their employment relations with the hospitals, all at high ployer's assertions of disqualifying conflicts of interests cost) it is "influenced, dominated and controlled" by where "third-party" supervisors were or had been mem- member supervisors. The employer therein asserted that bers of a nurses' association's board of directors absent a the diversion of sorely needed funds from bargaining unit showing by an employer of proof of a connection be- employees' needs to the promotion of supervisors' inter- tween the hospital and the employers of such supervisors ests presents a "classic conflict of interest for, if CNA sufficient to evidence a conflict of interest that would has allegiance to supervisors, that allegiance compro- compromise the integrity of the bargaining process. 59 In mises its representation of bargaining unit employees at the instant matter the Respondent has failed to show the bargaining table." The employer further asserted that either that its own supervisors serve on the Association's supervisors, because they are represented by CNA and board of directors, or that there exists a connection be- teir interests are protected by CNA. owe allegiance to tween the Respondent's hospital and the employers of CNA as well as to their employer and that such a rela- the supervisors who are now or have served previously ts in h an av1 ia o n on the Association's board of directors which could men. compromise bargaining. e B st in t H G H Furthermore, in considering the Respondent's other T h e B o a r d st at ed cs t h e Heburg General Hospital contentions it should be noted that the Board in The c a se : Sidney Farber Cancer Insritute, supra, stated:r-i 1 - <.. Sidney Farber Cancer Institute, supra, stated: [T]he Employer claims that, because CNA is influ- As to the Employer's assertions that the MNA e n c e d by supervisors, it cannot give its undivided board of directors' various powers, such as those of loyalty to the interests of employees. In this the appointment, approval, and fiscal control, amount Employer alleges that CNA is, in fact, influenced to supervisory domination, we find these functions by supervisors; that CNA represents "all" nurses in- of organizational oversight to be both remote end eluding supervisors; and that such representation is speculative in relation to the local chapters' bargain- costly and controversial. Even assuming that to be ing activities. Something more than mere potential t h e c a s e, t h e Employer failed to establish that any for influence must be shown to warrant disqualify- of these factors creates a conflict of interest suffi- ing a labor organization. [247 NLRB at 4.] cient to prevent CNA from acting as bargaining representative. As emphasized, the Board in Sierra Thus the Board has expressly rejected the Respondent's Vista stated that "there is no inherent conflict be- argument that the "power of the purse" as represented in tween supervisors and employees in the bargaining the Association's board of directors' authority to adopt, process." The Employer apparently takes the posi- approve, or modify the Association's annual operating tion that there is and offers the above evidence as budget creates a potential for interference with collective proof. However, it is clear that the internal struc- bargaining which requires disqualification of the Associ- ture and problems of CNA, as presented by the a tio n . Employer, are irrelevant to our inquiry absent some The Respondent also points to the presence of supervi- showing of a particular conflict. None has been sory or managerial employees of other hospitals or shown by the Employer either in its offer of proof health care related institutions on the Association's "Spe- or in its brief. [247 NLRB at 214.] cial Committee to Consider Concerns of Directors of Nursing Practice and Services" as creating a clear and Thus it is not enough for an employer to show that su- present danger of conflict with employee rights. This pervisors participate or even "influence" the Association. committee recommended, in substance, that the Associ- The respondent must show a "direct" conflict of interest, ation allow the continued full participation of the direc- "that a danger of a conflict of interest interfering with tors of nursing practice and services in the Association, the collective bargaining process is clear and present." 80 provide legal and employment assistance to directors of A nurses association's interest in supervisory nurses' nursing practice and services, and challenge and publi- problems does not evidence a "clear and present" danger cize any discriminatory action by employers against of conflict of interest to disqualify it from representing these directors of nursing and services because of their rank-and-file nurses. Association membership. Additionally, as stated by the Board, in The Sidney In Healdsburg General Hospital, supra, a case involving Farber Cancer Institute, supra at 4: somewhat similar circumstances, the Board rejected the employer's contention that because the California Nurses We likewise find the Employer's assertion that its Association (CNA) maintained a division devoted to the supervisors may hold office or positions of authori- ------- sburg General Ha~ital. supra at 214. ty in MNA at some future time entirely too specula- e H ki Genel Hospit eSiney Farber cancerIn- tive to warrant disqualification of MNA. Nor is that stitute. supa Lancaster Osteopathic Hospital Association, Inc., supra; Baptist Hospital Inc, d/b/a Western Baptist Hospital, supra.' Healdsburg General Hospital supra. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assertion probative of establishing the existence of a V. CASE 29-RC-3989 clear and present danger of conflict.61 Subsequent to the Board's certification of the Associ- In support of its contentions the Respondent intro- ation, on February 21, 1978, as the bargaining representa- duced evidence that the NYSNA submits the names of tive of all the Respondent's licensed professional nurses nominees to the New York State Education Department in an appropriate unit in Case 29-RC-3989, the Respond- for appointment to that State's board of nursing. The ent on July 17, 1978, filed a motion to revoke certifica- Board in St. Rose de Lima Hospital, Inc., supra, involving tion alleging inter alia that the Association is influenced, a similar allegation concerning the Nevada Nurses Asso- dominated, and controlled by supervisors and/or manag- ciation's authority to nominate registered nurses for ap- ers who serve as both officers and directors of the Asso- pointment to the Nevada State Board of Nursing, found ciation and therefore the Association is not a bona fide "this contention entirely too speculative and, hence, lack- labor organization and is disqualified from acting as a ing in merit." bargaining representative. From all of the foregoing I Based upon all of the foregoing, I find that the New deny the Respondent's motion to revoke certification in York State Nurses Association is not disqualified because Case 29-RC-3989. of an alleged conflict of interest from representing the VI. THE REMEDY Respondent's employees in an appropriate unit for the purposes of collective bargaining. The Respondent has Having found that the Respondent has engaged in and failed to sustain its burden of showing that danger of a is engaging in unfair labor practices within the meaning conflict of interest interfering with the collective-bar- of Section 8(a)(5) and (1) of the Act, I shall recommend gaining process is clear and present.6 2 that it cease and desist therefrom, and, upon request, bar- gain collectively with the Association as the exclusive D. The Request To Bargain and the Respondent's representative of all employees in the appropriate unit, Refusal and, if an understanding is reached, embody such under- standing in a signed agreement. As noted hereinbefore, the Board certificated the As- standing in a signed agreement soio. . tI . c brg i . rp. r e. Of In order to insure that the employees in the appropri- sociation as the collective-bargaining representative of ate unit will be accorded the services of their selected the Respondents licensed professional nurses in an ap- bargaining agent for the period provided by law, the ini- propriate unit on February 21, 1978. On or about April tial period of certification shall be construed as beginning 18, 1978, the Association requested the Respondent to on the date the Respondent commences to bargain in bargain collectively with it as the exclusive collective- good faith with the Association as the recognized bar- bargaining representative of all the employees in the unit. gaining representative in the appropriate unit." Commencing on or about April 21, 1978, and continuing at all times thereafter to date, the Respondent has re- Additional Remedies Sought by the Association fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- The Association seeks additional remedial relief herein tive bargaining of all employees in the unit. As found because "The Hospitals 'Domination Defense was Plain- ly Frivolous." As noted hereinbefore the Association above the Association is not disqualified because of any Frvolous As noted herebefore the Association seeks the following additional remedies: (1) expenses in- conflict of interest from acting as such certified bargain- curd the ins tigation, preparation, presentation, and curred in the investigation, preparation, presentation, and ~~~ing representative~~. . conduct of these cases, including reasonable counsel fees, Accordingly, I find that the Respondent has, since witness fees, transcript and record costs, travel expenses April 21, 1978, and at all times thereafter, refused to bar- and per diem, and other reasonable costs and expenses; gain collectively with the Association as the exclusive (2) the hospital should be ordered to mail copies of the representative of the employees in the appropriate unit, "Notice to Employees" to each of the employees in the and that, by such refusal, the Respondent has engaged in bargaining unit at his or her home; (3) the hospital's per- and is engaging in unfair labor practices within the sonnel administrator should be ordered personally to meaning of Section 8(a)(5) and (1) of the Act. read the "Notice to Employees" to the members of the bargaining unit at the hospital, in the presence of repre- IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES sentatives of the Association and the Board; (4) the Asso- UPON COMMERCE ciation should be granted access to the hospital's bulletin The activities of the Respondent set forth in section boards and premises during the entire period of contract III, above, occurring in connection with its operations negotiations; (5) all terms of any contract agreed to in described in section I above, have a close, intimate, and collective bargaining, including but not limited to wages , . ' ', _.~ ' ~ ' ~ 'and benefits, should be made retroactive to the date of substantial relationship to trade, traffic, and commerce te eet should be ordered to re- among the several States and tend to lead to labor dis- i the Association for lost dues and initiation fees iimburse the Association for lost dues and initiation fees putes burdening and obstructing commerce and the free flow thereof. Brookside Manor. Inc and Willowbrook Inc., 255 NLRB 1134 (1981); Burnett Construction Company, 149 NLRB 1419 (1964), enfd. 350 F.2d 57 ' Also see Baptist Hospitals, Inc.. d/b/a Western Baptist Hospital, supra; (10th Cir. 1965); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226 American Arbitration Association. Inc., 225 NLRB 291 (1976). (1962). enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Mar- l Sierra Vista Hospital supra Jac Poultry Company, Inc., 136 NLRB 785 (1962). 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assertion probative of establishing the existence of a V. CASE 29-RC-3989 clear and present danger of conflict.61 .„ . . Subsequent to the Board's certification of the Associ- In support of its contentions the Respondent intro- ation, on February 21, 1978, as the bargaining representa- duced evidence that the NYSNA submits the names of tive of all the Respondent's licensed professional nurses nominees to the New York State Education Department in an appropriate unit in Case 29-RC-3989, the Respond- for appointment to that State's board of nursing. The ent on July 17, 1978, filed a motion to revoke certifica- Board in St. Rose de Lima Hospital, Inc., supra, involving tion alleging inter alia that the Association is influenced, a similar allegation concerning the Nevada Nurses Asso- dominated, and controlled by supervisors and/or manag- ciation's authority to nominate registered nurses for ap- ers who serve as both officers and directors of the Asso- pointment to the Nevada State Board of Nursing, found ciation and therefore the Association is not a bona fide "this contention entirely too speculative and, hence, lack- labor organization and is disqualified from acting as a ing in merit." bargaining representative. From all of the foregoing I Based upon all of the foregoing, I find that the New deny t h e Respondent's motion to revoke certification in York State Nurses Association is not disqualified because Ca s e 29-RC-3989. of an alleged conflict of interest from representing the *R * * « * * '.t~~~~~~r ~i~~i-VI. THE REMEDY Respondent's employees in an appropriate unit for the purposes of collective bargaining. The Respondent has Having found that the Respondent has engaged in and failed to sustain its burden of showing that danger of a is engaging in unfair labor practices within the meaning conflict of interest interfering with the collective-bar- of Section 8(a)(5) and (1) of the Act, I shall recommend gaining process is clear and present. 6 2 that it cease and desist therefrom, and, upon request, bar- gain collectively with the Association as the exclusive D. The Request To Bargain and the Respondent's representative of all employees in the appropriate unit, Refusal and, if an understanding is reached, embody such under- . _,,_.,. r i- r> -i -» . -i »i- standing in a signed agreement. As noted hereinbefore, the Board certificated the As- s i a s ageeen. sociation as the collective-bargaining representative Of, In order to insure that the employees in the appropri- sociation as the collective-bargaining representative of ^ at uni wil be acore the sevie of thi J^ the Respondent's licensed professional nurses in an ap- bargaining agent for the period provided by law, the ini- propniate unit on February 21, 1978. On or about April tial period of certification shall be construed as beginning 18, 1978, the Association requested the Respondent to on the date the Respondent commences to bargain in bargain collectively with it as the exclusive collective- good faith with the Association as the recognized bar- bargaining representative of all the employees in the unit. gaining representative in the appropriate unit." Commencing on or about April 21, 1978, and continuing at all times thereafter to date, the Respondent has re- Additional Remedies Sought by the Association fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- T h e A s so ciatio n seeks additional remedial relief herein tive bargaining of all employees in the unit. As found be c a us e "The Hospitals 'Domination' Defense was Plain- above the Association is not disqualified because of any l F r iv o l o u s A s no t ed h e r ei be fo r e t h e Association conflict of interest from acting as such certifiedbargain- seeks the following additional remedies: (1) expenses in- conflict of interest from acting as such certified bargain- , Jinvestigation, preparation, presentation, and ing representative. conduct of these cases, including reasonable counsel fees, Accordingly, I find that the Respondent has, since witness fees, transcript and record costs, travel expenses April 21, 1978, and at all times thereafter, refused to bar- and per diem, and other reasonable costs and expenses; gain collectively with the Association as the exclusive (2) the hospital should be ordered to mail copies of the representative of the employees in the appropriate unit, "Notice to Employees" to each of the employees in the and that, by such refusal, the Respondent has engaged in bargaining unit at his or her home; (3) the hospital's per- and is engaging in unfair labor practices within the sonnel administrator should be ordered personally to meaning of Section 8(a)(5) and (1) of the Act. read the "Notice to Employees" to the members of the bargaining unit at the hospital, in the presence of repre- IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES sentatives of the Association and the Board; (4) the Asso- UPON COMMERCE ciation should be granted access to the hospital's bulletin The activities of the Respondent set forth in section b o ar d s a nd premises during t h e e nt i r e period o f c o n t r ac t III, above, occurring in connection with its operations negotiations; (5) all terms of any contract agreed to in described in section I, above, have a close, intimate, and collective bargaining, including but not limited to wages substantial relationship to trade, traffic, and commerce and benefits, should be made retroactive to the date of substantial relationship to trade, traflic, and commerce the election; and (6) the hospital should be ordered to re- among the several States and tend to lead to labor dis- imburse the Association for lost dues and initiation fees putes burdening and obstructing commerce and the free flow thereof. « Brookside Manor. Inc and Willowbmok Inc., 255 NLRB 1134 (1981); Burnell Construction Company, 149 NLRB 1419 (1964), enfd. 350 F.2d 57 " Also see Baptist Hospitals Inc.. d/b/a Western Baptist Hospital, supra; (10th Cir. 1965); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226 American Arbitration Association. Inc., 225 NLRB 291 (1976). (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Mar- Sierra Vista Hospital supra.Jac Poultry Company, Inc., 136 NLRB 785 (1962). 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assertion probative of establishing the existence of a V. CASE 29-RC-3989 clear and present danger of conflict.61 .„ . . Subsequent to the Board's certification of the Associ- In support of its contentions the Respondent intro- ation, on February 21, 1978, as the bargaining representa- duced evidence that the NYSNA submits the names of tive of all the Respondent's licensed professional nurses nominees to the New York State Education Department in an appropriate unit in Case 29-RC-3989, the Respond- for appointment to that State's board of nursing. The ent on July 17, 1978, filed a motion to revoke certifica- Board in St. Rose de Lima Hospital, Inc., supra, involving tion alleging inter alia that the Association is influenced, a similar allegation concerning the Nevada Nurses Asso- dominated, and controlled by supervisors and/or manag- ciation's authority to nominate registered nurses for ap- ers who serve as both officers and directors of the Asso- pointment to the Nevada State Board of Nursing, found ciation and therefore the Association is not a bona fide "this contention entirely too speculative and, hence, lack- labor organization and is disqualified from acting as a ing in merit." bargaining representative. From all of the foregoing I Based upon all of the foregoing, I find that the New deny t h e Respondent's motion to revoke certification in York State Nurses Association is not disqualified because Ca s e 29-RC-3989. of an alleged conflict of interest from representing the *R * * « * * *. f ,\_~~~~~~~VI. THE REMEDY Respondent's employees in an appropriate unit for the purposes of collective bargaining. The Respondent has Having found that the Respondent has engaged in and failed to sustain its burden of showing that danger of a is engaging in unfair labor practices within the meaning conflict of interest interfering with the collective-bar- of Section 8(a)(5) and (1) of the Act, I shall recommend gaining process is clear and present. 6 2 that it cease and desist therefrom, and, upon request, bar- gain collectively with the Association as the exclusive D. The Request To Bargain and the Respondent's representative of all employees in the appropriate unit, Refusal and, if an understanding is reached, embody such under- . _,,_.,. r i- r> -i -» . -i »i- standing in a signed agreement. As noted hereinbefore, the Board certificated the As- s i a s ageeen. sociation as the collective-bargaining representative Of, In order to insure that the employees in the appropri- sociation as the collective-bargaining representative of ^ at uni wil be acore the sevie of PP^rs the Respondent's licensed professional nurses in an ap- bargaining agent for the period provided by law, the ini- propniate unit on February 21, 1978. On or about April tial period of certification shall be construed as beginning 18, 1978, the Association requested the Respondent to on the date the Respondent commences to bargain in bargain collectively with it as the exclusive collective- good faith with the Association as the recognized bar- bargaining representative of all the employees in the unit. gaining representative in the appropriate unit." Commencing on or about April 21, 1978, and continuing at all times thereafter to date, the Respondent has re- Additional Remedies Sought by the Association fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- T h e A s so ciatio n seeks additional remedial relief herein tive bargaining of all employees in the unit. As found be c a us e "The Hospitals 'Domination' Defense was Plain- above the Association is not disqualified because of any l F r iv o l o u s A s no t ed h e r ei be fo r e t h e Association conflict of interest from acting as such certifiedbargain- seeks the following additional remedies: (1) expenses in- conflict of interest from acting as such certified bargain- , Jinvestigation, preparation, presentation, and ing representative. conduct of these cases, including reasonable counsel fees, Accordingly, I find that the Respondent has, since witness fees, transcript and record costs, travel expenses April 21, 1978, and at all times thereafter, refused to bar- and per diem, and other reasonable costs and expenses; gain collectively with the Association as the exclusive (2) the hospital should be ordered to mail copies of the representative of the employees in the appropriate unit, "Notice to Employees" to each of the employees in the and that, by such refusal, the Respondent has engaged in bargaining unit at his or her home; (3) the hospital's per- and is engaging in unfair labor practices within the sonnel administrator should be ordered personally to meaning of Section 8(a)(5) and (1) of the Act. read the "Notice to Employees" to the members of the bargaining unit at the hospital, in the presence of repre- IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES sentatives of the Association and the Board; (4) the Asso- UPON COMMERCE ciation should be granted access to the hospital's bulletin The activities of the Respondent set forth in section b o ar d s a nd premises during t h e e nt i r e period o f c o n t r ac t III, above, occurring in connection with its operations negotiations; (5) all terms of any contract agreed to in described in section I, above, have a close, intimate, and collective bargaining, including but not limited to wages substantia relationship to. trade, traffic, and commerce and benefits, should be made retroactive to the date of substantial relationship to trade, traflic, and commerce the election; and (6) the hospital should be ordered to re- among the several States and tend to lead to labor dis- imburse the Association for lost dues and initiation fees putes burdening and obstructing commerce and the free flow thereof. « Brookside Manor. Inc and Willowbmok Inc., 255 NLRB 1134 (1981); Burnell Construction Company, 149 NLRB 1419 (1964), enfd. 350 F.2d 57 " Also see Baptist Hospitals Inc.. d/b/a Western Baptist Hospital, supra; (10th Cir. 1965); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226 American Arbitration Association. Inc., 225 NLRB 291 (1976). (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Mar- Sierra Vista Hospital supra.Jac Poultry Company, Inc., 136 NLRB 785 (1962). 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assertion probative of establishing the existence of a V. CASE 29-RC-3989 clear and present danger of conflict.61 .„ . . Subsequent to the Board's certification of the Associ- In support of its contentions the Respondent intro- ation, on February 21, 1978, as the bargaining representa- duced evidence that the NYSNA submits the names of tive of all the Respondent's licensed professional nurses nominees to the New York State Education Department in an appropriate unit in Case 29-RC-3989, the Respond- for appointment to that State's board of nursing. The ent on July 17, 1978, filed a motion to revoke certifica- Board in St. Rose de Lima Hospital, Inc., supra, involving tion alleging inter alia that the Association is influenced, a similar allegation concerning the Nevada Nurses Asso- dominated, and controlled by supervisors and/or manag- ciation's authority to nominate registered nurses for ap- ers who serve as both officers and directors of the Asso- pointment to the Nevada State Board of Nursing, found ciation and therefore the Association is not a bona fide "this contention entirely too speculative and, hence, lack- labor organization and is disqualified from acting as a ing in merit." bargaining representative. From all of the foregoing I Based upon all of the foregoing, I find that the New deny t h e Respondent's motion to revoke certification in York State Nurses Association is not disqualified because Ca s e 29-RC-3989. of an alleged conflict of interest from representing the *R * * « * * '.t~~~~~~r ~i~~i-VI. THE REMEDY Respondent's employees in an appropriate unit for the purposes of collective bargaining. The Respondent has Having found that the Respondent has engaged in and failed to sustain its burden of showing that danger of a is engaging in unfair labor practices within the meaning conflict of interest interfering with the collective-bar- of Section 8(a)(5) and (1) of the Act, I shall recommend gaining process is clear and present. 6 2 that it cease and desist therefrom, and, upon request, bar- gain collectively with the Association as the exclusive D. The Request To Bargain and the Respondent's representative of all employees in the appropriate unit, Refusal and, if an understanding is reached, embody such under- . _,,_.,. r i- r> -i -» . -i »i- standing in a signed agreement. As noted hereinbefore, the Board certificated the As- s i a s ageeen. sociation as the collective-bargaining representative Of, In order to insure that the employees in the appropri- sociation as the collective-bargaining representative of ^ at uni wil be acore the sevie of PP^rs the Respondent's licensed professional nurses in an ap- bargaining agent for the period provided by law, the ini- propniate unit on February 21, 1978. On or about April tial period of certification shall be construed as beginning 18, 1978, the Association requested the Respondent to on the date the Respondent commences to bargain in bargain collectively with it as the exclusive collective- good faith with the Association as the recognized bar- bargaining representative of all the employees in the unit. gaining representative in the appropriate unit." Commencing on or about April 21, 1978, and continuing at all times thereafter to date, the Respondent has re- Additional Remedies Sought by the Association fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- T h e A s so ciatio n seeks additional remedial relief herein tive bargaining of all employees in the unit. As found be c a us e "The Hospitals 'Domination' Defense was Plain- above the Association is not disqualified because of any l F r iv o l o u s A s no t ed h e r ei be fo r e t h e Association conflict of interest from acting as such certifiedbargain- seeks the following additional remedies: (1) expenses in- conflict of interest from acting as such certified bargain- , Jinvestigation, preparation, presentation, and ing representative. conduct of these cases, including reasonable counsel fees, Accordingly, I find that the Respondent has, since witness fees, transcript and record costs, travel expenses April 21, 1978, and at all times thereafter, refused to bar- and per diem, and other reasonable costs and expenses; gain collectively with the Association as the exclusive (2) the hospital should be ordered to mail copies of the representative of the employees in the appropriate unit, "Notice to Employees" to each of the employees in the and that, by such refusal, the Respondent has engaged in bargaining unit at his or her home; (3) the hospital's per- and is engaging in unfair labor practices within the sonnel administrator should be ordered personally to meaning of Section 8(a)(5) and (1) of the Act. read the "Notice to Employees" to the members of the bargaining unit at the hospital, in the presence of repre- IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES sentatives of the Association and the Board; (4) the Asso- UPON COMMERCE ciation should be granted access to the hospital's bulletin The activities of the Respondent set forth in section b o ar d s a nd premises during t h e e nt i r e period o f c o n t r ac t III, above, occurring in connection with its operations negotiations; (5) all terms of any contract agreed to in described in section I, above, have a close, intimate, and collective bargaining, including but not limited to wages substantia relationship to. trade, traffic, and commerce and benefits, should be made retroactive to the date of substantial relationship to trade, traflic, and commerce the election; and (6) the hospital should be ordered to re- among the several States and tend to lead to labor dis- imburse the Association for lost dues and initiation fees putes burdening and obstructing commerce and the free flow thereof. « Brookside Manor. Inc and Willowbmok Inc., 255 NLRB 1134 (1981); Burnell Construction Company, 149 NLRB 1419 (1964), enfd. 350 F.2d 57 " Also see Baptist Hospitals Inc.. d/b/a Western Baptist Hospital, supra; (10th Cir. 1965); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226 American Arbitration Association. Inc., 225 NLRB 291 (1976). (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Mar- Sierra Vista Hospital supra.Jac Poultry Company, Inc., 136 NLRB 785 (1962). NORTH SHORE UNIVERSITY HOSPITAL 865 since the election and to reimburse employee-members motive throughout this proceeding." 70 Even assuming who have paid such dues and initiation fees to the Asso- that the evidence to be produced would prove what the ciation while the hospital was engaged in its unlawful re- Association alleges it would show in its offer of proof, I fusal to bargain. do not believe that this would warrant the imposition of The Board in Tiidee Products, Inc., 194 NLRB 1234 the above remedies nor change my findings thereon. (1972), held that where a respondent engaged in frivo- lous litigation that is clearly unwarranted and meritless CONCLUSIONS OF LAW on its face, it should be compelled to reimburse the Board and the charging party for all expenses incurred in 1. North Shore University Hospital is an employer en- the investigaton, preparation, and presentation of the gaged in commerce within the meaning of Section 2(6) case. 64 The Board's purpose therefore was to discourage and (7) of the Act. frivolous litigation and to "prevent the employer from 2. New York State Nurses Association is a labor orga- having a free ride during the period of litigation."" This nization within the meaning of Section 2(5) of the Act. remedy has also been imposed where an employer fol- 3. All full-time and regular part-time registered profes- lows a pattern of unlawfully resisting union organizing sional nurses regularly scheduled to work 22-1/2 hours or engages in "flagrant repetition of conduct previously or more per week, including all those authorized by found unlawful" and to that end unduly burdens the permit to practice as registered nurses, employed by the processes of the Board and the courts." employer at 300 Community Drive, Manhasset, New However, in examining the propriety of awarding liti- York; excluding all department heads, administrative di- gation and organizational expenses against a respondent, rectors, directors, associate directors, assistant directors, the Board has distinguished between cpatently frivolous" all supervisors, clinical supervisors, all clinicians, all in- defenses 67 to unfair labor practice charges and defenses tructors, all specialists, operating rooms nurse special- which are "debatable." In the latter situation the Board structors, all specialists, operating rooms nurse special- has held that reimbursement of litigation and organiza- all coordinators, head nurses, assistant head nurses tional expenses is inappropriate, even when the unfair all casual employees, temporary employees, confidential labor practices are flagrant and repetitious." Also theemployees, managerial employees, all other employees, Board has consistently followed its rule that litigation guards and supervisors as defined in the Act, constitute a and organizational expenses are not to be awarded unit appropriate for the purposes of collective bargaining against a respondent unless the defenses raised are pa- within the meaning of Section 9(b) of the Act. tently frivolous."6 An additional prerequisite to the 4. Since February 21, 1978, the above-named labor or- awarding of organizational costs was set forth in Winn- ganization has been and now is the certified and exclu- Dixie Stores; Inc., 224 NLRB 1418 (1976). The Board sive representative of all employees in the aforesaid ap- there held that it will not award organizational costs to a propriate unit for the purpose of collective bargaining union unless the union proves that the employer's unfair within the meaning of Section 9(a) of the Act. labor practices were causally related to any extraordi- 5. By refusing on or about April 21, 1978, and at all nary organizational expenses incurred by the union. times thereafter, to bargain collectively with the above- In view of the above, and the record herein as a named labor organization as the exclusive bargaining whole, I do not find that the Respondent's actions nor its representative of all the employees of the Respondent in defenses were so "patently frivolous" as to warrant the the appropriate unit, the Respondent has engaged in additional and extraordinary remedies sought by the As- unfair labor practices within the meaning of Section sociation herein and therefore deny the Association's mo- 8(a)(5) of the Act. tions and applications for such relief. I also deny as un- . the a . necessary the Association's request to reopen the record 6. B the aforew d refusal to bargain, the Respondent "to receive evidence of Hospital unfair labor practices has interfered with, restrained, and coerced, and is inter- and election interference which were excluded at the fering with, restraining, and coercing, employees in the hearing but directly revealed the hospital's improper exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in U These include reasonable counsel fees, witness fees, transcript and unfair labor practices within the meaning of Section record costs, travel expenses, and other costs and expenses. 8(a)(1) of the Act. m International Union of Electrical, Radio and Machine Workers. AFL- 7. The unfair labor practices found above are unfair CIO [Tiidee Products. Inc.] v. N.LR.B., 426 F.2d 1243, 1251 (D.C. Cir. 1970). labor practices affecting commerce within the meaning # Food Store Employees Union, Local No. 347, Amalgamated Meat Cut- of Section 2(6) and (7) of the Act. tes and Butcher Workmen /North America. AFLCIO v. N.LR.B.. 476 Upon the basis of the foregoing findings of fact, con- F.2d 546, 551 (D.C. Cir. 1973). " Tiidee Products Inc.. supelusions of law, and upon the entire record, and pursuant Heck's Inc., 215 NLRB 765 (1974); Metco. Incorporated, 205 NLRB to Section 10(c) of the Act, I hereby issue the following 875 (1973), enfd. 496 F.2d 1342 (5th Cir. 1974); Long Towing. Inc., 201 recommended: NLRB 629 (1973). Betra Manufacturing Company, 233 NLRB 1126 (1977); Schuck Com- ponent Systems. Inc., 230 NLRB 838 (1977); The Hartz Mountain Corpora- tion, 228 NLRB 492 (1977); Winn-Dixie Stores Inc., supra; Royal Typewrit- er Company, etc. v. N.LR.B., 533 F.2d 1030 (8th Cir. 1976). In Sabine Towing d Transportation Ca, Inc., 224 NLRB 941 (1976), this rule was followed even though the employer had committed similar unfair labor ' While such evidence was excluded by me at the hearing, I did allow practices in the past. the Association to make an offer of proof thereof. NORTH SHORE UNIVERSITY HOSPITAL 865 since the election and to reimburse employee-members motive throughout this proceeding." 70 Even assuming who have paid such dues and initiation fees to the Asso- that the evidence to be produced would prove what the ciation while the hospital was engaged in its unlawful re- Association alleges it would show in its offer of proof, I fusal to bargain. do not believe that this would warrant the imposition of The Board in Tiidee Products, Inc., 194 NLRB 1234 the above remedies nor change my findings thereon. (1972), held that where a respondent engaged in frivo- lous litigation that is clearly unwarranted and meritless CONCLUSIONS OF LAW on its face, it should be compelled to reimburse the Board and the charging party for all expenses incurred in 1. N o rth S h o r e University Hospital is an employer en- the investigaton, preparation, and presentation of the gaged in commerce within the meaning of Section 2(6) case. 64 The Board's purpose therefore was to discourage and (7) of the Act. frivolous litigation and to "prevent the employer from 2. New York State Nurses Association is a labor orga- having a free ride during the period of litigation."" This nization within the meaning of Section 2(5) of the Act. remedy has also been imposed where an employer fol- 3. All full-time and regular part-time registered profes- lows a pattern of unlawfully resisting union organizing sional nurses regularly scheduled to work 22-1/2 hours or engages in "flagrant repetition of conduct previously or more per week, including all those authorized by found unlawful" and to that end unduly burdens the permit to practice as registered nurses, employed by the processes of the Board and the courts." employer at 300 Community Drive, Manhasset, New However, in examining the propriety of awarding liti- York; excluding all department heads, administrative di- gation and organizational expenses against a respondent, rectors, directors, associate directors, assistant directors, the Board has distinguished between "patently frivolous" all supervisors, clinical supervisors, all clinicians, all in- defenses67 to unfair labor practice charges and defenses structors, all specialists, operating rooms nurse special- which are "debatable." In the latter situation the Board ists, all coordinatos, hanreastn head nurses,- has held that reimbursement of litigation and organiza- a la empoyees, tead nulses, contidential tional expenses is inappropriate, even when the unfair ea p c a su a l employees, temporary employees, confidential labor practices are flagrant and repetitious." Also theemployees, managerial employees, all other employees, Board has consistently followed its rule that litigation guards a n d supervisors as defined in the Act, constitute a and organizational expenses are not to be awarded un i t appropriate for the purposes of collective bargaining against a respondent unless the defenses raised are pa- within the meaning of Section 9(b) of the Act. tently frivolous. 69 An additional prerequisite to the 4. Since February 21, 1978, the above-named labor or- awarding of organizational costs was set forth in Winn- ganization has been and now is the certified and exclu- Dixie Stores, Inc., 224 NLRB 1418 (1976). The Board sive representative of all employees in the aforesaid ap- there held that it will not award organizational costs to a propriate unit for the purpose of collective bargaining union unless the union proves that the employer's unfair within the meaning of Section 9(a) of the Act. labor practices were causally related to any extraordi- 5. By refusing on or about April 21, 1978, and at all nary organizational expenses incurred by the union,.times thereafter, to bargain collectively with the above- In view of the above, and the record herein as a named labor organization as the exclusive bargaining whole, I do not find that the Respondent's actions nor its representative of all the employees of the Respondent in defenses were so "patently frivolous" as to warrant the the appropriate unit, the Respondent has engaged in additional and extraordinary remedies sought by the As- unfair labor practices within the meaning of Section sociation herein and therefore deny the Association's mo- 8 5 of e Act .. , ,. ,. , . ' , - . ,~~~~~8(a1)(5) of the Act. tions and applications for such relief. I also deny as un- . B t a i r t b t Respnden necessary the Association's request to reopen the record has t e wit r e s ained and ce e andi nt "to receive evidence of Hospital unfair labor practices h as m t er f e r ed w f t h . restrained, and coercedi andel e i ter- and election interference which were excluded at the ""8 w ith , restraining, and coercing, employees in the hearing but directly revealed the hospital's improper exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in U These include reasonable counsel fees, witness fees, transcript and unfair labor practices within the meaning of Section record costs, travel expenses, and other costs and expenses. 8(a)(1) of the Act. " International Union of Electrical, Radio and Machine Workers AFL- 7. The unfair labor practices found above are unfair CIO [Tidee Products. Inc.] v. N.L.R.B., 426 F.2d 1243, 1251 (D.C. Cir. 1970). labor practices affecting commerce within the meaning " Food Store Employes Union Local No. 347, Amalgamated Meat Cut- of Section 2(6) and (7) of the Act. ten and Butcher Workmen ofNort A merica AFL-CIO v. N .L R.B., 476 Upon the basis of the foregoing findings of fact, con- F.2d W4, 551 (D.C. Cit. 1973). " Tiidee Products Inc., supra.elusions of law, and upon the entire record, and pursuant Heck's Inc., 215 NLRB 765 (1974); Metco, Incorporated, 205 NLRB to Section 10(c) of the Act, I hereby issue the following 875 (1973), enfd. 496 F.2d 1342 (5th Cir. 1974); Long Towing, Inc., 201 recommended: NLRB 629 (1973). Betra Manufacturing Company, 233 NLRB 1126 (1977); Schuck Com- ponent Systems, Inc., 230 NLRB 838 (1977); The Hart Mountain Corpora- tion, 228 NLRB 492 (1977); Winn-Dixie Stores Inc., supra; Royal Typewrit- er Company, etc. v. N.LR.B, 533 F.2d 1030 (8th Cir. 1976). In Sabine Towing 4 Transpooration Ca, Inc., 224 NLRB 941 (1976), this rule was followed even though the employer had committed similar unfair labor While such evidence was excluded by me at the hearing, I did allow practices in the past. the Association to make an offer of proof thereof NORTH SHORE UNIVERSITY HOSPITAL 865 since the election and to reimburse employee-members motive throughout this proceeding." 70 Even assuming who have paid such dues and initiation fees to the Asso- that the evidence to be produced would prove what the ciation while the hospital was engaged in its unlawful re- Association alleges it would show in its offer of proof, I fusal to bargain. do not believe that this would warrant the imposition of The Board in Tiidee Products, Inc., 194 NLRB 1234 the above remedies nor change my findings thereon. (1972), held that where a respondent engaged in frivo- lous litigation that is clearly unwarranted and meritless CONCLUSIONS OF LAW on its face, it should be compelled to reimburse the Board and the charging party for all expenses incurred in 1. N o rth Shore University Hospital is an employer en- the investigaton, preparation, and presentation of the gaged in commerce within the meaning of Section 2(6) case. 64 The Board's purpose therefore was to discourage and (7) of the Act. frivolous litigation and to "prevent the employer from 2. New York State Nurses Association is a labor orga- having a free ride during the period of litigation."" This nization within the meaning of Section 2(5) of the Act. remedy has also been imposed where an employer fol- 3. All full-time and regular part-time registered profes- lows a pattern of unlawfully resisting union organizing sional nurses regularly scheduled to work 22-1/2 hours or engages in "flagrant repetition of conduct previously or more per week, including all those authorized by found unlawful" and to that end unduly burdens the permit to practice as registered nurses, employed by the processes of the Board and the courts." employer at 300 Community Drive, Manhasset, New However, in examining the propriety of awarding liti- York; excluding all department heads, administrative di- gation and organizational expenses against a respondent, rectors, directors, associate directors, assistant directors, the Board has distinguished between "patently frivolous" all supervisors, clinical supervisors, all clinicians, all in- defenses67 to unfair labor practice charges and defenses structors, all specialists, operating rooms nurse special- which are "debatable." In the latter situation the Board ists', all coordinator, hanreastn head nurses, has held that reimbursement of litigation and organiza- l l asa emloee, tead nulses, contidential tional expenses is inappropriate, even when the unfair ea p c a su a l employees, temporary employees, confidential labor practices are flagrant and repetitious." Also theemployees, managerial employees, all other employees, Board has consistently followed its rule that litigation guards a n d supervisors as defined in the Act, constitute a and organizational expenses are not to be awarded un i t appropriate for the purposes of collective bargaining against a respondent unless the defenses raised are pa- within the meaning of Section 9(b) of the Act. tently frivolous. 69 An additional prerequisite to the 4. Since February 21, 1978, the above-named labor or- awarding of organizational costs was set forth in Winn- ganization has been and now is the certified and exclu- Dixie Stores, Inc., 224 NLRB 1418 (1976). The Board sive representative of all employees in the aforesaid ap- there held that it will not award organizational costs to a propriate unit for the purpose of collective bargaining union unless the union proves that the employer's unfair within the meaning of Section 9(a) of the Act. labor practices were causally related to any extraordi- 5. By refusing on or about April 21, 1978, and at all nary organizational expenses incurred by the union,.times thereafter, to bargain collectively with the above- In view of the above, and the record herein as a named labor organization as the exclusive bargaining whole, I do not find that the Respondent's actions nor its representative of all the employees of the Respondent in defenses were so "patently frivolous" as to warrant the the appropriate unit, the Respondent has engaged in additional and extraordinary remedies sought by the As- unfair labor practices within the meaning of Section sociation herein and therefore deny the Association's mo- 8 5 of e Act .. , ,. ,. , . ' , - . ,~~~~~8(a1)(5) of the Act. tions and applications for such relief. I also deny as un- . B t a i r t b t Respnden necessary the Association's request to reopen the record has t e wit resal ao b orced, and ispinter- "to receive evidence of Hospital unfair labor practices h as m t er f e r ed w f t h . restrained, and coercedi andel e i ter- and election interference which were excluded at the ""8 w ith , restraining, and coercing, employees in the hearing but directly revealed the hospital's improper exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in U These include reasonable counsel fees, witness fees, transcript and unfair labor practices within the meaning of Section record costs, travel expenses, and other costs and expenses. 8(a)(1) of the Act. " International Union of Electrical, Radio and Machine Workers AFL- 7. The unfair labor practices found above are unfair CIO [Tidee Products. Inc.] v. N.L.R.B., 426 F.2d 1243, 1251 (D.C. Cir. 1970). labor practices affecting commerce within the meaning " Food Store Employes Union Local No. 347, Amalgamated Meat Cut- of Section 2(6) and (7) of the Act. ten and Butcher Workmen ofNort A merica AFL-CIO v. N .L R.B., 476 Upon the basis of the foregoing findings of fact, con- F.2d W4, 551 (D.C. Cit. 1973). " Tiidee Products Inc., supra.elusions of law, and upon the entire record, and pursuant Heck's Inc., 215 NLRB 765 (1974); Metco, Incorporated, 205 NLRB to Section 10(c) of the Act, I hereby issue the following 875 (1973), enfd. 496 F.2d 1342 (5th Cir. 1974); Long Towing, Inc., 201 recommended: NLRB 629 (1973). Betra Manufacturing Company, 233 NLRB 1126 (1977); Schuck Com- ponent Systems, Inc., 230 NLRB 838 (1977); The Hart Mountain Corpora- tion, 228 NLRB 492 (1977); Winn-Dixie Stores Inc., supra; Royal Typewrit- er Company, etc. v. N.LR.B, 533 F.2d 1030 (8th Cir. 1976). In Sabine Towing 4 Transpooration Ca, Inc., 224 NLRB 941 (1976), this rule was followed even though the employer had committed similar unfair labor While such evidence was excluded by me at the hearing, I did allow practices in the past. the Association to make an offer of proof thereof NORTH SHORE UNIVERSITY HOSPITAL 865 since the election and to reimburse employee-members motive throughout this proceeding." 70 Even assuming who have paid such dues and initiation fees to the Asso- that the evidence to be produced would prove what the ciation while the hospital was engaged in its unlawful re- Association alleges it would show in its offer of proof, I fusal to bargain. do not believe that this would warrant the imposition of The Board in Tiidee Products, Inc., 194 NLRB 1234 the above remedies nor change my findings thereon. (1972), held that where a respondent engaged in frivo- lous litigation that is clearly unwarranted and meritless CONCLUSIONS OF LAW on its face, it should be compelled to reimburse the Board and the charging party for all expenses incurred in 1. N o rth Shore University Hospital is an employer en- the investigaton, preparation, and presentation of the gaged in commerce within the meaning of Section 2(6) case. 64 The Board's purpose therefore was to discourage and (7) of the Act. frivolous litigation and to "prevent the employer from 2. New York State Nurses Association is a labor orga- having a free ride during the period of litigation."" This nization within the meaning of Section 2(5) of the Act. remedy has also been imposed where an employer fol- 3. All full-time and regular part-time registered profes- lows a pattern of unlawfully resisting union organizing sional nurses regularly scheduled to work 22-1/2 hours or engages in "flagrant repetition of conduct previously or more per week, including all those authorized by found unlawful" and to that end unduly burdens the permit to practice as registered nurses, employed by the processes of the Board and the courts." employer at 300 Community Drive, Manhasset, New However, in examining the propriety of awarding liti- York; excluding all department heads, administrative di- gation and organizational expenses against a respondent, rectors, directors, associate directors, assistant directors, the Board has distinguished between "patently frivolous" all supervisors, clinical supervisors, all clinicians, all in- defenses67 to unfair labor practice charges and defenses structors, all specialists, operating rooms nurse special- which are "debatable." In the latter situation the Board ists', all coordinator, hanreastn head nurses, has held that reimbursement of litigation and organiza- l l asa emloee, tead nulses, contidential tional expenses is inappropriate, even when the unfair ea p c a su a l employees, temporary employees, confidential labor practices are flagrant and repetitious." Also theemployees, managerial employees, all other employees, Board has consistently followed its rule that litigation guards a n d supervisors as defined in the Act, constitute a and organizational expenses are not to be awarded un i t appropriate for the purposes of collective bargaining against a respondent unless the defenses raised are pa- within the meaning of Section 9(b) of the Act. tently frivolous. 69 An additional prerequisite to the 4. Since February 21, 1978, the above-named labor or- awarding of organizational costs was set forth in Winn- ganization has been and now is the certified and exclu- Dixie Stores, Inc., 224 NLRB 1418 (1976). The Board sive representative of all employees in the aforesaid ap- there held that it will not award organizational costs to a propriate unit for the purpose of collective bargaining union unless the union proves that the employer's unfair within the meaning of Section 9(a) of the Act. labor practices were causally related to any extraordi- 5. By refusing on or about April 21, 1978, and at all nary organizational expenses incurred by the union,.times thereafter, to bargain collectively with the above- In view of the above, and the record herein as a named labor organization as the exclusive bargaining whole, I do not find that the Respondent's actions nor its representative of all the employees of the Respondent in defenses were so "patently frivolous" as to warrant the the appropriate unit, the Respondent has engaged in additional and extraordinary remedies sought by the As- unfair labor practices within the meaning of Section sociation herein and therefore deny the Association's mo- 8 5 of e Act .. , ,. ,. , . ' , - . ,~~~~~8(a1)(5) of the Act. tions and applications for such relief. I also deny as un- . B t a i r t b t Respnden necessary the Association's request to reopen the record has t e wit resal ao b orced, and ispinter- "to receive evidence of Hospital unfair labor practices h as m t er f e r ed w f t h . restrained, and coercedi andel e i ter- and election interference which were excluded at the ""8 ^h- restraining, and coercing, employees in the hearing but directly revealed the hospital's improper exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in U These include reasonable counsel fees, witness fees, transcript and unfair labor practices within the meaning of Section record costs, travel expenses, and other costs and expenses. 8(a)(1) of the Act. " International Union of Electrical, Radio and Machine Workers AFL- 7. The unfair labor practices found above are unfair CIO [Tidee Products. Inc.] v. N.L.R.B., 426 F.2d 1243, 1251 (D.C. Cir. 1970). labor practices affecting commerce within the meaning " Food Store Employes Union Local No. 347, Amalgamated Meat Cut- of Section 2(6) and (7) of the Act. ten and Butcher Workmen ofNort A merica AFL-CIO v. N .L R.B., 476 Upon the basis of the foregoing findings of fact, con- F.2d W4, 551 (D.C. Cit. 1973). " Tiidee Products Inc., supra.elusions of law, and upon the entire record, and pursuant Heck's Inc., 215 NLRB 765 (1974); Metco, Incorporated, 205 NLRB to Section 10(c) of the Act, I hereby issue the following 875 (1973), enfd. 496 F.2d 1342 (5th Cir. 1974); Long Towing, Inc., 201 recommended: NLRB 629 (1973). Betra Manufacturing Company, 233 NLRB 1126 (1977); Schuck Com- ponent Systems, Inc., 230 NLRB 838 (1977); The Hart Mountain Corpora- tion, 228 NLRB 492 (1977); Winn-Dixie Stores Inc., supra; Royal Typewrit- er Company, etc. v. N.LR.B, 533 F.2d 1030 (8th Cir. 1976). In Sabine Towing 4 Transpooration Ca, Inc., 224 NLRB 941 (1976), this rule was followed even though the employer had committed similar unfair labor While such evidence was excluded by me at the hearing, I did allow practices in the past. the Association to make an offer of proof thereof 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER71 (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the The Respondent, North Shore University Hospital, rights guaranteed them in Section 7 of the Act. Manhasset, New York, its officers, agents, successors, 2. Take the following affirmative action necessary to and assigns, shall: effectuate the policies of the Act: 1. Cease and desist from: (a) Upon request, bargain with the above-named labor (a) Refusing to bargain collectively concerning rates of organization as the exclusive representative of all em- pay, wages, hours, and other terms and conditions of em- ployees in the aforesaid appropriate unit with respect to ployment with New York State Nurses Association, as rates of pay, wages, hours of employment, and other the exclusive bargaining representative of its employees terms and conditions of employment, and, if an under- in the following appropriate unit: standing is reached, embody such understanding in a signed agreement. All full-time and regular part-time registered profes- (b) Post at its Manhasset, New York, hospital copies of sional nurses regularly scheduled to work 22-1/2 the attached notice marked "Appendix." 72 Copies of said hours or more per week, including all those author- notice, on forms provided by the Regional Director for ized by permit to practice as registered nurses, em- Region 29, after being duly signed by the Respondent's ployed by the employer at 300 Community Drive, representative, shall be posted by the Respondent imme- Manhasset, New York; excluding all department diately upon receipt thereof, and be maintained by it for heads, administrative directors, directors, associate 60 consecutive days thereafter, in conspicuous places, in- directors, assistant directors, all supervisors, clinical luding all places where notices to employees are cus- supervisors, all clinicians, all instructors, all special- tomarily posted. Reasonable steps shall be taken by the ists, operating rooms nurse specialists, all coordina- Respondent to insure that said notices are not altered, defaced, or covered by any other material. tors, head nurses, assistant head nurses, all casual efae or oere y ay r material Notify the Regional Director for Region 29, in writ- employees, temporary employees, confidential em- ing, within 20 days from the date of this Order, what ployees, managerial employees, all other employees, steps have been taken to comply herewith. guards and supervisors as defined in the Act. IT IS FURTHER ORDERED that the motion to revoke certification in Case 29-RC-3989 be, and it hereby is, denied. " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the " In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections hereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 7 1 (b) In any like or related manner interfering with, re- The Respondent , North Shore University Hospital, straining, or coercing employees in the exercise of the The Respondent, North Shore University Hospital, rights guaranteed them in Section 7 of the Act. Manhasset, New York, its officers, agents, successors, 2. Take the following affirmative action necessary to and assigns, shall: effectuate the policies of the Act: 1. Cease and desist from: (a) Upon request, bargain with the above-named labor (a) Refusing to bargain collectively concerning rates of organization as the exclusive representative of all em- pay, wages, hours, and other terms and conditions of em- ployees in the aforesaid appropriate unit with respect to ployment with New York State Nurses Association, as rates of pay, wages, hours of employment, and other the exclusive bargaining representative of its employees terms and conditions of employment, and, if an under- in the following appropriate unit: standing is reached, embody such understanding in a signed agreement. All full-time and regular part-time registered profes- (b) Post at its Manhasset, New York, hospital copies of sional nurses regularly scheduled to work 22-1/2 the attached notice marked "Appendix." 72 Copies of said hours or more per week, including all those author- notice, on forms provided by the Regional Director for ized by permit to practice as registered nurses, em- Region 29, after being duly signed by the Respondent's ployed by the employer at 300 Community Drive, representative, shall be posted by the Respondent imme- Manhasset, New York; excluding all department diately upon receipt thereof, and be maintained by it for heads, administrative directors, directors, associate 6 0 consecutive days thereafter, in conspicuous places, in- directors, assistant directors, all supervisors, clinical cluding all places where notices to employees are cus- supervisors, all clinicians, all instructors, all special- t o m a ri ly posted. Reasonable steps shall be taken by the ists, operating rooms nurse specialists, all coordina- Respondent to insure that said notices are not altered, defaced, or covered by any other material. tors, head nurses, assistant head nurses, all casual N y t Rgn D c f R 2 i wi employees, temporary employees, confidential em- ing, within 20 days from the date of this Order, what ployees, managerial employees, all other employees, steps have been taken to comply herewith. guards and supervisors as defined in the Act. IT IS FURTHER ORDERED that the motion to revoke certification in Case 29-RC-3989 be, and it hereby is, denied. " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the " In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections hereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER '7(b) In any like or related manner interfering with, re- The Respondent , North Shore University Hospital, straining, or coercing employees in the exercise of the The Respondent, North Shore University Hospital, rights guaranteed them in Section 7 of the Act. Manhasset, New York, its officers, agents, successors, 2. Take the following affirmative action necessary to and assigns, shall: effectuate the policies of the Act: 1. Cease and desist from: (a) Upon request, bargain with the above-named labor (a) Refusing to bargain collectively concerning rates of organization as the exclusive representative of all em- pay, wages, hours, and other terms and conditions of em- ployees in the aforesaid appropriate unit with respect to ployment with New York State Nurses Association, as rates of pay, wages, hours of employment, and other the exclusive bargaining representative of its employees terms and conditions of employment, and, if an under- in the following appropriate unit: standing is reached, embody such understanding in a signed agreement. All full-time and regular part-time registered profes- (b) Post at its Manhasset, New York, hospital copies of sional nurses regularly scheduled to work 22-1/2 the attached notice marked "Appendix." 72 Copies of said hours or more per week, including all those author- notice, on forms provided by the Regional Director for ized by permit to practice as registered nurses, em- Region 29, after being duly signed by the Respondent's ployed by the employer at 300 Community Drive, representative, shall be posted by the Respondent imme- Manhasset, New York; excluding all department diately upon receipt thereof, and be maintained by it for heads, administrative directors, directors, associate 6 0 consecutive days thereafter, in conspicuous places, in- directors, assistant directors, all supervisors, clinical cluding all places where notices to employees are cus- supervisors, all clinicians, all instructors, all special- tomarily posted. Reasonable steps shall be taken by the ists, operating rooms nurse specialists, all coordina- Respondent to insure that said notices are not altered, defaced, or covered by any other material. tors, head nurses, assistant head nurses, all casual N y t Rgn D c f R 2 i wi employees, temporary employees, confidential em- ing, within 20 days from the date of this Order, what ployees, managerial employees, all other employees, steps have been taken to comply herewith. guards and supervisors as defined in the Act. IT IS FURTHER ORDERED that the motion to revoke certification in Case 29-RC-3989 be, and it hereby is, denied. " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the " In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections hereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 7 1 (b) In any like or related manner interfering with, re- The Respondent , North Shore University Hospital, straining, or coercing employees in the exercise of the The Respondent, North Shore University Hospital, rights guaranteed them in Section 7 of the Act. Manhasset, New York, its officers, agents, successors, 2. Take the following affirmative action necessary to and assigns, shall: effectuate the policies of the Act: 1. Cease and desist from: (a) Upon request, bargain with the above-named labor (a) Refusing to bargain collectively concerning rates of organization as the exclusive representative of all em- pay, wages, hours, and other terms and conditions of em- ployees in the aforesaid appropriate unit with respect to ployment with New York State Nurses Association, as rates of pay, wages, hours of employment, and other the exclusive bargaining representative of its employees terms and conditions of employment, and, if an under- in the following appropriate unit: standing is reached, embody such understanding in a signed agreement. All full-time and regular part-time registered profes- (b) Post at its Manhasset, New York, hospital copies of sional nurses regularly scheduled to work 22-1/2 the attached notice marked "Appendix." 72 Copies of said hours or more per week, including all those author- notice, on forms provided by the Regional Director for ized by permit to practice as registered nurses, em- Region 29, after being duly signed by the Respondent's ployed by the employer at 300 Community Drive, representative, shall be posted by the Respondent imme- Manhasset, New York; excluding all department diately upon receipt thereof, and be maintained by it for heads, administrative directors, directors, associate 6 0 consecutive days thereafter, in conspicuous places, in- directors, assistant directors, all supervisors, clinical cluding all places where notices to employees are cus- supervisors, all clinicians, all instructors, all special- tomarily posted. Reasonable steps shall be taken by the ists, operating rooms nurse specialists, all coordina- Respondent to insure that said notices are not altered, defaced, or covered by any other material. tors, head nurses, assistant head nurses, all casual N y t Rgn D c f R 2 i wi employees, temporary employees, confidential em- ing, within 20 days from the date of this Order, what ployees, managerial employees, all other employees, steps have been taken to comply herewith. guards and supervisors as defined in the Act. IT IS FURTHER ORDERED that the motion to revoke certification in Case 29-RC-3989 be, and it hereby is, denied. " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the " In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections hereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board."