Sierra Vista Hospital, Inc.

INC. 1 Nurses* Asso- 8(a)(5) (1) ciation. -CA-5760 -RC-3 166' Summarv o n ~ i i l Or- 1 -RC- alia, influ- bona dated nonsupervisory' CNA's pr~cess.~ OrderJ In nonsupervi- discussed Board nqrm procadingo Case effectuate purporea unnecessary cosu CIsa 1 arc hereby consdidacad. Member Jenkinr. dissenting, h v e ' 1086. herein Vista ' 225 1088. filed crk-petition A p Inc6 Anmdel), Inc., d/b/a Arundel Arun- && mem- bers."We 2(4) petitioning."I0 Arundel ' 232. S k m If. Boud Decisions incorrectly Iuu fonner Member Walther, instud Decimon. ' 1 F.M ' 303 berein A d 1 11. the reported at (1975). Arvndrl B w d Anding cmployer'a Nursn' Ayociation wsa fib labor organi- bccauu the influence, supewion. ' F.2d 534-536. at '0 1' 361 F.2d Judge Hdl unpublished opimon late Judge diucnted. ar&pcd, inler alia, (e.g.. supeninmy) domirntion an practice beawe was unioru employem feared that attemptin# OI~MC excuw sugggccd praencz otha employed supervim "comehow flrwa represenlative" b a d intaat (MI F.2d employer failed ahow polential d i c t interat 63 SIERRA VISTA HOSPITAL. Sierra Vista Hospital, Inc. and California As- sociation, affiliated with the American Nurses' Cases 3 1 and 3 1 March 30, 1979 SUPPLEMENTAL DECISION AND ORDER On August 8, 1975, the Regional Director for Re- gion 3 1 of the National Labor Relations Board issued a Decision and Direction of Election in Case 3 3166 in which he found, inter that, contrary to the contentions of Sierra Vista Hospital, Inc. (herein the Respondent or the Hospital), California Nurses' Association (herein CNA), affiliated with the Ameri- can Nurses' Association, was not subject to the ence, domination, and control of supervisors and was a fide labor organization. Subsequently, the Em- ployer filed a timely request for review, which the Board denied by telegraphic order September 9, 1975, with the caveat that, if CNA were certified and did not delegate its bargaining authority to a lo- . cal autonomous chapter controlled by employees, a motion to revoke certification would be entertained. An election was held on September 4, 1975, in which a majority of the votes was cast for CNA. On September 12, 1975, CNA was certified as the exclusive bargaining representative for Respon- dent's registered nurses. CNA thereafter requested bargaining. On October 29, 1975, Respondent filed with the Board a motion to revoke certification, alleg- ing that CNA had failed to delegate its bargaining authority. On January 30, 1976, the Board remanded the case to the Regional Director to adduce further evidence on the issues raised by the motion, particu- larly with respect to negotiating procedure and the degree of participation of supervisory nurses in the bargaining After the hearing, the case was transferred to the Board for decision. On August 31, 1976, the Board issued a Decision and which it denied Respondent's motion to revoke certification, finding that CNA had "effec- tively delegated its collective-bargaining authority, which it acquired by virtue of the Board's certifica- tion here, to an autonomous local unit of sory registered nurses, and that said local is properly exercising this authority on its own behalf."' Respondent refused to bargain with CNA, and the latter consequently filed a charge in Case 31-CA- 5760, upon which the Regional Director issued a As fully in this Decision, the has decided to the in 31-RC-3166. Accordingly. in order to the of the Act and to avoid or delay. 3 -CA- 5760 and 3I-RC-3166 would denied the motion. 225 NLRB Sierra I . NLRB at complaint alleging that Respondent had violated Sec- tion and of the National Labor Relations Act, as amended, by its refusal to bargain. Thereafter, the General Counsel filed a Motion for Judgment, which was granted by the Board 22. 1977.5 Following issuance of the Board's Decision and der in Sierra Vista 11, Respondent filed a petition for review and the General Counsel a for enforcement in the United States Court of peals for the Ninth Circuit. While this action was pending, the United States Court of Appeals for the Fourth Circuit, on August 3 1, 1977, issued its deci- sion in N.L.R. B. v. Annapolis Emergency Hospital As- sociation, (herein Anne denying en- forcement of the Board's Order in Annapolis Emergency Hospital Association, Anne General Hospital,' on which the Board relied in its prior decision in the instant case. In Anne the court found that "delegation of the bargain- ing function to [the local chapter] was the sine qua non to certification of MNA," and speculated that by conditional certification the Board was seeking to avoid "the difficult problem of whether an employer can be forced to bargain with a labor organization which allows the employer's supervisors to be court read Section 9 and Section and (5) of the Act as requiring "that the certified labor organization be willing and able to bargain" and as prohibiting"the Board from certifying MNA to bar- gain on condition that it not bargain,'" and found that the Board effectively certified a "different labor organization than that Accordingly, the court concluded that the Board had exceeded its authority, inasmuch as "under the Act the Board may not certify a bargaining agent on condition that it not bargain."" The Board did not seek certiorari in Anne 229 NLRB herein Vista The bound volume of of Member Mur- phy. as participating in this 56 524. 221 NLRB (1975). Anne In underlying repre- sentation proceeding 217 NLRB 848 herein Anne I, the directed an election, no merit to the conten- tion that the Maryland not a born zation it was subject to domination, or control of 561 at I d 537. Ibid at 528. (adopting the panel of the Craven) He that Congress made employer of unions unfair labor it and not who such domination and the employer was "to turn the statutory of'employer domination' into an f a refusing to bargain." He further that a holding that the of the integrity of the bargaining could only be on some conflict of at 530) and that the to that a real a of existed. 1 .ABOR Bcard, I deci- 1 Arzmdel. Arun- organizat~ons alin, Arundel an- I i sta.tutory I 2(5) 2(5) status.I2 certifi~ation.~' 2(5) 2(5) admitted.14 bargainingi5 employeej 2(5) "[e]mployees e.g.. of 1gnatru.v d/b/a l4 lnternational Organization 01' Mares pilot^ C I O l, 144 1 172. 1 177 (1963). IJ e.g.. a r k Mospital ofthe ~WethOdiJt Chruch. Ltd.. I 632 DECISIONS OF NATIONAL RELATIONS BOARD and requested the Court of Appeals for the Ninth Circuit to remand the instant case to the in order that the Board might reconsider its decision in light of the issues raised by the Fourth Circuit's sion in Anne On March 7, 1978, the Ninth Circuit remanded the case to the Board. Respondent and CNA have submitted timely statements of posi- tion. The Board has reconsidered its earlier decisions in this case in light of the court's decision in Anne del, the parties' statements of position. and the entire record in these proceedings. For the reasons fully set forth below. we have concluded that we will not con- dition certification of nurses' associations on the dele- gation of their bargaining authority to autonomous chapters or locals. Prior to the enactment of the 1974 amendments to the Act, the Board has had occasion to address the issue of whether labor are disqualified from acting as bargaining representatives because of the active participation of supervisors in the labor or- ganizations' internal affairs. However, this issue has been raised in numerous state nurses' association cases since 1974, and our experience in the area has led us to the conclusion expressed in this case. that conditioning certification of a state nurses' associ- ation on its delegation of bargaining authority to a local autonomous chapter or unit is neither necessary nor useful in resolving this issue. The conditional certification approach is ineffective as a means for resolving the problems created by the participation of supervisors in labor organizations. Indeed, it raises more problems than it solves. Thus, in attempting to resolve issues concerning the qualifi- cation of nurses' associations via a requirement that bargaining authority be delegated, the Board has been confronted, inter with the question of whether it has the authority to certify a labor organi- zation conditionally, as well as with factual questions in each case as to whether the nurses' association has taken sufficient measures to insure local control of bargaining. Indeed, both of these issues were dis- cussed by the court in Anne Arundel. The court decision in Anne pinpoints other difficulty caused by conditioning certification of a nurses' association on delegation of bargaining au- thority: the conditional certification approach has ob- fuscated the distinction between nurses' associations as labor organizations and the issue of whether the participation of supervisors in the inter- nal affairs of the association disqualifies it as a bar- gaining representative. In cases in which state nurses' associations have sought bargaining rights, employers repeatedly have raised the issue whether the presence and active par- ticipation of supervisors in the hierarchy of the asso- ciations precludes the associations from serving as bargaining representatives. Although we have consis- tently found state nurses' associations, in such in- stances. to be labor organizations within the meaning of Section of the Act, it is apparent that several of our decisions with respect to that issue have gener- ated some confusion. Thus, some Board decisions have pointed to local control of bargaining as a factor in determining In others, the Board has found the associations to be statutory labor organiza- tions but has indicated, in making the determination, that a failure to establish local control of bargaining could be grounds for a revocation of The question of statutory labor organization status is, however, distinct from the question of a statutory labor organization's qualification to act as a bargain- ing representative in all instances and without regard to the circumstances under which bargaining takes place or will take place. And, to the extent that dis- tinction has not emerged from or been maintained by our treatment of the labor organization status of state nurses' associations, the point is to be emphasized: the mere presence of supervisors in a labor organiza- tion is virtually irrelevant to determining status under Section of the Act. Indeed, we have, with court approval, uniformly construed Section to reach all associations which exist for the purpose, in whole or in part, of collective bargaining and which admit employees to membership, despite the fact that super- visors, in addition to employees and even in substan- tial numbers. may likewise be At the outset, therefore, we stress that "labor or- ganization" status under the Act bears no relation to a delegation and/or local control of and we disavow any implication to the contrary in prior Board decisions involving nurses' associations. As long as nurse-employees participate in the association and one of its purposes is representing in collective bargaining, a nurses' association, like any other, meets the definition of "labor organization" in Section . , of the Act. But, while the presence of supervisors in an associ- ation does not bear upon its "labor organization"sta- tus, the identity and role of those supervisors in the labor organization may operate, nonetheless, to dis- qualify it from bargaining in certain instances. This potential for disqualification stems from an inherent statutory concern that have the right to See, Anne Arundel I. supra. "See. in addition to Sierra Vista I, supra. Sisters Charity of Providence. St. Province. St. Patrick Hospital. 225 NLRB 799 (1976). Masters. and of America, Inc., A FL- (Chicago Calumet Stevedoring Co., Inc. N LRB In that case. the union was held to be a labor organization where a minimum of 170 of the approximately 11,000 members were statutory em- ployees. See. Ridge United 220 NLRB 49 (1975): Valley Hospital, 220 NLRB 1339 (1975). SIERRA VISTA interests,"'6 Jl~us, n's 1ength;fintral collective- (i.e., third- issue,19 rsla- tion I* N w u Suffolk Contmetw:'A:soeiation, Im., et a/.. 118 174. emphasize concerned supervim m e mpcet Ihe atTain Cf. I n l e r ~ I i o ~ l ojMmrerr. Pi- IOIJ, r ~ r a ; Dumont krbomrorle, IM., I' NP(:OY Sqfdk Contmefwr' Assmiation. s ~ m : Copwafion, Welrbach Electrlc Capomtion. SO3 (1978). ' Anne ArnndrI, asserted intern1 fact supcrvimn gmenlly, whomsaver share perspective favon wapa bcneAu." F2d ih disqulified M Ihe reprcy~utive iu ral-and-flle nurses beuusc mi&t mceive wag- bcncfitl M repmmtcd or$anization composed excludvely nonsupar- v i m employees. Largeme believe vim ofthe down. bargaining.=' CNA's CNA's employees ,we supervisors require as free does Bansch & Lomb Qu~ical Cmpoqy, 1' CBS Im.. N.LR.B. Dovid Buttrick Conpay, F.2d 505, (1st There can k quation w i h r e p d IO conflictof-interest defense agrea Coun o f A p p h Fimt mapondent's preunt that Bard when its 633 HOSPITAL INC. be represented in collective-bargaining negotiations by individuals who have a single-minded loyalty to their and the identity and role of supervi- sors admitted to membership in a labor organization can, in certain circumstances, compromise that statu- tory interest. active participation in the affairs of a labor organization by supervisors employed by the employer with whom that labor organization seeks to bargain can give rise to question about the labor organizati P ability to deal with the employer at arm's factors involved in consider- ing this issue are the employees' right to a bargaining representative whose undivided concern is for their interests and the employer's right to expect loyalty from its own supervisors. Active participa- tion" by the employer's own supervisors may, in a given case, contravene either or both of these legiti- mate interests. Indeed, we have held that an employer has a duty to refuse to bargain where the presence of that employer's supervisors on the opposite side of the bargaining table poses a conflict between those interests." The active, internal union participation of supervi- sors of a third-party employer an employer other than the one with whom the labor organization seeks to bargain) does not present the danger that an em- ployer may be "bargaining with itself." But it may operate, nonetheless, to disqualify a labor organiza- tion from acting as a bargaining representative for particular employees. Although, in such cases, the le- gitimate interest of an employer in the loyalty of its supervisors is not in issue (the active supervisors are not its own), the presence of supervisors of party employers may impinge upon the employees' right to a bargaining representative whose undivided concern is for their interests. Not because, as has been argued during the course of the debate on this there is an inherent conflict between all supervisors and all employees, but because of the possible between the employer with whom bargaining is sought and the employer or employers of the supervi- sor participating in the bargaining process. Thus, we and NLRB 187 (1957). "We that we are here with who have an active role in and authority with to directing of a labor organization. Organization Mares and Allen B. 88 NLRB 12% (1950). and Banner Yarn Dyeing 139 NLRB 1018 (1962); 236 NLRB In the employer "a potential conflict of in the that by employed, a proprietary which the moderation of and fringe 561 at 531. That the employer contended MNA should k from acting bargaining for they not and great as if they were by a labor of aside, we that matter turns the statutory scheme of thing upside have held that an employer may lawfully refuse to bargain with a bargaining representative which itself was in a competing business." We have also held that an employer may refuse to bargain where the union's bargaining team included an agent of a union repre- senting employees of a principal competitor; since trade secrets might be revealed, that agent's presence as a negotiator raised a clear and present danger to meaningful Under the foregoing analysis, it is conceivable that the presence of even one supevisor on board of directors, if employed by Respondent, could pre- sent a danger that unit employees' interests might not be single-mindedly represented. That would depend on the role, if any, of that supervisor in inter- nal affairs. It is also conceivable that the active in- volvement in CNA of supervisory nurses employed by other employers may, in some circumstances, pre- sent a conflict of interest requiring that CNA be dis- qualified from representing a particular unit for which it was certified. That would depend on a dem- onstrated connection between the employer of those unit and the employer or employers of those supervisors, and, with respect to this possibility, stress that the participation of (of third-party employers), even if constituting a majority of a nurses' association's board of directors, would not in and of itself necessarily disqualifica- tion, absent some other demonstrated conflict of in- terest, for we do not assume an "inherent" conflict between supervisors and employees in the bargaining process. An employer who establishes a disqualifying con- flict of interest may, we have indicated lawfully refuse to bargain. But it is clear that the burden on the employer to show such conflict is a heavy one: There is a strong public policy favoring the choice of a bargaining agent by employees. The choice is not lightly to be frustrated. There is a considerable burden on a nonconsenting em- ployer, in such a situation as this, to come for- ward with a showing that danger of a conflict of interest interfering with the collective bargaining process is clear and present." With respect to the procedural aspects pertaining to the consideration of these issues, CNA contends in its statement of position that the Board generally not permit litigation in representation cases of unfair labor practice issues such as employer domination of 108 NLRB 1555 (1954). 226 NLRB 537 (1976). v. 399 507 Cir. 1968). no a that the Board with the for the Circuit's formulation of a burden of shoving a "clear and danger" and the will strike that defense a respondent fails to carry burden. 8(a)(2) proceeding.*' e.g.. 8(a)(2) issues.25 "conve- a'given "To Prducrs CNA's conflict (whlch reprexntation union- testimony proceeding where 134 issues ev~dence cau mum, entirely direrent. e.g.. Brumwick & 152 City Omnibuc I04 lures Corpurotion. et 466 (1951). Carle Assorialion, 192 In~ernar~onal XraB the supewlsors lnc.. 151 1 e.g.. Hurlem Inc.. 191 unable bargaining .26 alia, it.27 Baucch Lomb Con'pany, q m z7Thus, Scc. 1qa) d provides: prohib~t becoming supervisoni 634 DECISIONS O F NATIONAL LABOR RELATIONS BOARD or interference with a labor organization in violation of Section of the Act and that as a matter of policy the Board should not permit litigation of issues concerning supervisory involvement in CNA in a rep- resentation Our dissenting colleague ap- parently agrees with this view. lssues concerning the qualification of a labor or- ganization to bargain on behalf of particular employ- ees have traditionally been considered in representa- tion proceedings, wherein they are viewed from a conflict-of-interest perspective rather than as the liti- gation of unfair labor practice issues in a representa- tion proceeding." While "conflict of interest" does embrace a variety of matters, some of which may be considered in unfair labor practice proceedings, whether an organization is "dominated" by supervi- sors within the meaning of Section of the Act, it likewise encompasses matters outside the ambit of unfair labor practice Characterizing the issue as a "conflict-of-interest" one is more than nient." As indicated earlier, cases involving the active participation of supervisors of third-party employers. by definition, do not concern themselves with an em- ployer's interest in the loyalty of its supervisory corps and primarily involve employees' rights to a bargain-., ing representative whose undivided concern is for their interests. But that does not mean an employer is necessarily a neutral party to the union-employee conflict which may be present in such cases. As a general rule, an employer has a right to engage in collective bargaining which is not influenced by inter- ests the bargaining representative may have outside its employee representative capacity. However, the extent of an employer's interest in such cases cannot be determined in a vacuum, can only be considered on the facts of case, and is a question on which we need not now pass. Once "conflict of interest" is viewed as concerned support this wntenrion, CNA and our dissenting colleague cite Para- gon Corporation, 134 NLRB 662. 665 (1961). In our view. reliance on Paragon Products is misplaced. That case did not involve super- visory participation or other possible of interest. Rather, in Paragon was itself a representation proceeding), the Board decided to consider as bars to elections in proceedings contracts wntaining security clauses. absent a prior determination that a clause was unlawful. And, in that context, the Board stated: "No and no evidence will be admissible in a representation the testimony or evi- dence is only relevant to the question of the practice under a contract urged as a bar [emphasis supplied]. . . ," NLRB at 667. The and reasons for admitting in the instant are, of See, Pulp Paper Company, NLRB 973 (1965): New York Corporation. NLRB 579. 584 (1953); Columbia Pic- a/., 94 NLRB and cares cited therein at fn. 7. Indeed. in various cases involving nurses' associations. the Board has consid- ered. in reprexntation proceedings. supervisory involvement in the associ- ations. For example. in Clinic NLRB 512 (1971). and Paper Company. Southern Division, 172 NLRB 933 (1968). the Board found the associations qualified where in positions of authority in the associations were not employed by the employer at issue: and see St. Rose de Limo Hospital, 223 NLRB (1976). "See. River Consumers Cooperative. NLRB 314 (1971). with two different forms of conflict-one involving the conflict between an employer's interest in the loy- alty of its own supervisors and that of employees in a single-minded representative, the other involving a conflict between that employee interest and an inter- est a union may have outside its representative re- sponsibilities-it becomes evident, we think, that "conflict of interest"is broader in scope than Member Truesdale suggests. With respect to the dissent's contention that con- sideration of supervisory participatian in nurses' asso- ciations will unduly delay the Board's representation proceeding, we have already emphasized the heavy burden imposed on an employer who seeks to estab- lish a disqualifying conflict of interest. In these cir- cumstances, we cannot agree with the dissent that our decision herein will have the effect of delaying the speedy resolution of representation cases or that we are permitting Respondent "to embark on a fishing expedition in a pond which [we] virtually concede is dry." For it should be clear that we are not by this decision countenancing any fishing expeditions in representation hearings, and if Respondent (or any other employer who raises a similar issue) is unable to adduce probative evidence substantiating a claim that supervisory participation in the affairs of the union presents a clear and present danger of interference with the bargaining process, its contention will be summarily found lacking in merit. If, on the other hand, an employer is able to establish that because of a conflict of interest the union is to approach the bargaining table . . . with the single-minded purpose of protecting and advancing the interests of the employees who have selected it as their agent, and there must be no ulterior purpose. . . then it cannot be argued that the "pond is dry." Our dissenting colleague further argues, inter that it is unnecessary to consider alleged supervisory domination at the preelection stage because any em- ployer confronted with such a problem also has self- help remedies readily available to However, as the dissent at least implicitly concedes, such remedies are available only where the employer's own supervi- sors are alleged to dominate or interfere with the as- sociation, and not all conflicts of interest involving supervisory participation which would disqualify a la- bor organization from representing an employer's em- " & Optical at 1559. the Act Nothing herein shall any individual employed as a supervisor from or remaining a member of a labor organization, but no employer subject to this Act shall be compelled to deem individuals defined herein as as employees for the purpose of any law. either national or local, relating to collective bargaining. exists.28 heaviest,29 conflict 2(5) [A]s has supervisor act representative employcea supervisor represent purposes purpose clurr bctwcm possible conflicts allegiana supervisom permitted employees. [ h w c h d Lomb Cowany, 108 quation bc possible CNA's 1 motion.30 CNA's 31-CA.-5760 1 -RC-3 lto Respon- - - nonsupervi~ory "As raiscd sina the instant been see rather evidence 635 SIERRA VISTA HOSPITAL, INC. ployees necessarily involve conduct by that employ- er's supervisors. Additionally, utilization of a self-help remedy may well promote more litigation than it avoids, including disputes over alleged employee or supervisory status. A proliferation of litigation is hardly in the best interest of any of the parties. The dissent also makes much of the fact that no employee has complained of supervisory domination of CNA. While this may be the case, the failure of employees to complain to the Board about a conflict of interest between them and their bargaining repre- sentative is not dispositive of the issue of whether such a conflict Finally, if there were evidence indicating that the litigation of such questions measurably "protracted" our representation proceedings, our dissenting col- league's departure from our traditional approach would be more attractive. But, given the burden an employer has to establish the clear and present dan- ger of conflict, there is little to suggest that our repre- sentation proceedings, particularly our preelection proceedings, where the need for speedy resolution is greatest at the same time that the employer's burden is are an improper forum in which to ad- duce evidence of of interest. From all of the foregoing, it is clear that we find state nurses' associations which meet the criteria set forth in Section of the Act to be labor organiza- tions and that we will treat claims that the associ- ations are dominated or controlled by supervisors, or have some other conflict of interest which disqualifies them from representing employees, in the same man- ner that we will treat such allegations against other labor organizations. Thus, we will not require nurses' associations to delegate bargaining authority to any other entity as a condition of certification, and we will consider contentions of disqualifying conflicts of in- terest in representation proceedings where the associ- ation seeks certification as bargaining representative. Applying these principles to the instant case, it is clear that CNA is a labor organization within the meaning of the Act. Respondent has not explicitly urged a "conflict-of- The Board has previously stated: a matter of policy, the Board held that a cannot as of to decertify a union, nor can a employees of an employer for of collective bargain- ing regardless of whether the employees desire such a bargaining agent and despite the employees' right in Section 7 to bargain collectively through representatives of their own choosing. In so holding the Board indicated that one of the Act was to draw a line of demar- cation supervisory representatives of management and employ- ees because of the in if were to participate in union activities with Optical NLRB at 1557.1 Givm the strong public policy favoring free selection of a bargaining agent, it is obvious that the qualification can only resolved with- out resorting to speculation about a labor organization's subsequent course of conduct. interest" defense and has, therefore, offered no evi- dence or explanation of how the presence of supervi- sors on the CNA board of directors who are em- ployed by other employers raises a conflict of interest. However, as neither the underlying representation proceeding nor the instant unfair labor practice case was litigated on the basis of whether the presence of supervisory nurses employed by other employers on board of directors or in other positions of au- thority conflicted with the interest of unit employees employed by Respondent, we will rescind our previ- ous Decisions and Orders granting the General Coun- sel's Motion for Summary Judgment and denying Re- spondent's motion to revoke certification. Thus, in order that the parties may have the opportunity to litigate these issues, we shall remand Case 31-RC- 3 166 to the Regional Director for Region 3 to sched- ule a hearing on Respondent's As set forth above, we do not view active participation in CNA by supervisors employed by other employers as present- ing any inherent conflict of interest that would war- rant granting Respondent's motion. Accordingly, un- less Respondent can sustain its burden of demonstrating that there is a clear and present danger of a conflict of interest which compromises bargaining integrity, we shall deny Respondent's mo- tion to revoke certification. ORDER It is hereby ordered that the Board's Decision and Order in Case (229 NLRB 232) and prior Decision and Order in Case 3 166 (225 NLRB 1086) be, and they hereby are, rescinded. IT IS FURTHER ORDERED that a hearing be held be- fore a duly designated Hearing Officer for the pur- pose of receiving evidence resolve issues raised by Respondent's motion to revoke certification in Case 31-RC-3166, namely, whether or not the presence of supervisors as officers in, on the board of directors of, or in other positions of authority to speak for or bar- gain on behalf of CNA disqualifies that association as the collective-bargaining representative of dent's nurses. IT IS FURTHER ORDERED that the Hearing Officer designated for the purpose of conducting such hear- ing shall prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said motion. Within is indicated by the discussion above, we shall henceforth consider in a representation proceeding issues by supervisory participation. How- ever, CNA has in case certified, we no point in setting aside the election at this time but shall simply consider Re- spondent's contention and in light of its motion to revoke certifica- tion. NATlOllAL L .ABOR Wash~ngton, of 11 FURTHER Reg~on 1 M E M B E R TRUESDALE, 1 Anne Ar~u~drl, supra. court bargain."31 I particular sequ;rur view. a Paragon products Corpor$ion, [Sluch safeguard^.^^ bet- ler "company-domi- litigable proceed- ingW3"et. by here~n ~nvolving 3' F.2d ' 2 33 c..g.. .?mnlgr?ma/rd Clorhrng of F L - C I O mrvr C'ompam.. d!b/a Plne Manujocluring N. F.Zd (D.C. Clr. 1965). also Hun& 4n&. Inc.. ULRB 454-456 (l977), recmphas~zing necer- fdr delaj repreqentation that invidious discnminarlon by or- gan~z:ition, wh~ch of'constitutional !he & Hou,cII CO. F.2d 136 '" Scrbtnc Towrng C,,mpuny. Inc Y hl (1960). iiny represelltation & Puper the 'Yew City cases.35 agents.36 JJ Infernafional .supra, de Hospi~al, efforts ' 6 e.g.. Merry Hospifals Inc., 636 DECISIONS OF 10 days from the date of issuance of such report, ei- ther party may file with the Board in D.C.. eight copies of exceptions thereto. Immediately upon the filing such exceptions, the party filing the same shall serve a copy thereof on the other party and shall file a copy with the Regional Director. If no exceptions are filed thereto. the Board will adopt the recommendations of the Hearing Officer. IS ORDERED that the above-entitled matter be, and it hereby is, referred to the Regional Director for 3 for the purpose of conducting such hearing and that the Regional Director be. and he hereby is. authorized to issue notice thereof. dissenting in part: agree with that portion of my colleagues' decision which abandons the "conditional certification" test of I t would seem evident. as the stated. that "under the Act the Board may not certify a bargaining agent on condition that it not readily join the majority in laying that non to rest. However, I fear that my colleagues are heading down another wrong path in their present decision. In my the Petitioner should be certified on the ba- sis of the present record. It should be noted at the outset that the Board, as matter of policy, generally precludes "litigation of al- legations of unfair labor practices in preelection phases of representation proceedings." As stated in proceedings are investigatory in character and do not afford a satisfactory means for deter- mining matters which are more properly the sub- ject of adversary proceedings with their accom- panying Since it is also well recognized that all parties have an interest in speedy resolution of representation mat- ter~,~' we ill serve the parties by allowing. unless abso- lutely necessary, protracted litigation of matters left for another forum. In fact, the Board has held that the issue of whether a union is nated" is "not in a representation conveniently characterizing the issue as a potential "conflict of interest," 561 at 528. 134 NLRB 662. 665. See. Workers America, A [Saga- Shirr Spruce Co.) v. L.R.B..365 898 See the opinion of the Board majority in 228 447. the sity the avoidance of in proceedings. In case. the Board decided that questions of a labor some hold are dimension, should best be left for adversary proceedings under unfair labor practice provisions of the Act. See also Bell v. N.L.R.B., 598 (D.C.Cir. 1979). . 126 LRB RELATIONS BOARD the majority sees fit to ignore these basic Board poli- cies. rejecting the Union's argument that the issue of supervisory participation may not be litigated except in an unfair labor praciice proceeding. Regrettably, it has done so on the basis of precedent which is not only outmoded but also inapposite and, in this case, despite the absence of evidence of conflict, either real or potential. It is true, as the majority notes. that in several early cases the Board, in a proceeding. held a purported labor organization disqualified from rep- resenting employees on the basis of obvious evidence of employer or supervisory domination. Thus, in Brunswick Pulp Co., supra, one of the cases cited. the petitioning organization accepted as jour- neymen members only "producers,"and only produc- ers were eligible to become members of the board of governors; yet a number of the producers were named as joint employers in the petition, and the Board found these producer-member-employers were either independent contractors or supervisors. To al- low an organization of named employers a place on the ballot as a labor organization seemed, on its face, contrary to the spirit of Act. In the York City Omnibus Corp. and Columbia Pictures Corp. cases, su- pra, the petitioners were predominantly composed of, and controlled by, the respective employer's own su- pervisors. In New York Omnibus, for example, 93 of the 113 individuals sought by the petitioner, in- cluding its president, were the employer's own super- visors. Similarly, in Columbia Pictures, individuals found to be the employer's supervisors comprised and materially participated in the organization of the peti- tioner. The present case, and others involving nurses' asso- ciations, are a far cry from these early Nurses' associations have existed for many years, as both pro- fessional associations and collective-bargaining I t is natural that the more senior nurses hold official positions in many of the associations. There is not even a suggestion or a hint that these associations are employer-formed or supervisor-dominated in the sense of the organizations involved in the cited cases. Moreover, the precedential value of New York City Omnibus and Columbia Pictures is diminished by the fact that they were decided only shortly after supervi- sory personnel were divested of full rights under the The "various cases involving nurses' associations."cited by the majority, arc distinguishable. In Carle Clinic, supra, the Board did not consider the issue of supervisory involvement, since only the union filed a request for review, and the issue presented was whether Carle Clinic was a single em- ployer with what was then an exempt hospital. In Paper, the Board merely held that the petitioner was a "labor organization." Fi- nally. St. Rose Lima supra, is not precedent but rather one of the recent by the Board to engage in the type of analysis now embraced wholeheartedly by the majority, an analysis with which I disagree. See, the discussion in oj' Sacramento, NLRB 765. 767 (1975). 217 8(b)(l)(B): %8(b)(l)(B), "conflict-of-interest" 8(a)(2)-type 3'Floriab & In~crnational Local 812-813 fr& 8(a)(2)-to i.e., 8(a)(2) Act.38 8(a)(2) doing.I9 turns 8(aX1) ~roceeding.~' 14(a), Bricklq~ers' Association Vlciniry. (1961). F d , Im. d/b/a Jij-E-Mart, a Whatever promtion need is, ofTered employas' interart, as m e a d becn supervisory defect interut. 4 CNA i(s employen resent 637 SIERRA VISTA HOSPITAL. INC. Act. Both cases relied on cases decided prior to the Taft-Hartley Act of 1947, at a time where supervisors were accorded the status of "employees." Thus, the question of supervisory domination was deemed sus- ceptible to resolution at any stage, since the employer had no means of controlling its supervisors' union ac- tivities. Today, however, "self-help" is clearly available. All the employer need do, if it is concerned that its super- visors are not, in the majority's words, "loyal," is to tell them to stop: to resign as officers, to remove themselves as members of the negotiating committee, etc. Indeed, the Supreme Court has recently sug- gested that very course of action in the context of union fines and Section Congress' solution was essentially one of provid- ing the employer with an option. On the one hand, he is at liberty to demand absolute loyalty from his supervisory personnel by insisting, on pain of discharge, that they neither participate in, nor retain membership in, a labor union. . . . Alternatively, an employer who wishes to do so can permit his supervisors to join or retain their membership in labor unions, resolving such con- flicts as arise through the traditional procedures of collective bargaining. But it is quite apparent, given the statutory language and the particular concerns that the legislative history shows were what motivated Congress to enact that it did not intend to make that provision any part of the solution to the generalized problem of supervisory-member conflict of loyalties?' The Court made it plain that the Act envisaged the employer's achieving "loyalty" by exercising disci- pline over its supervisors; the Court forbade this Board's imposing that loyalty by distorting the stat- ute. Here, I fear, the majority is impeding and delay- ing the normally prompt representation case process by permitting litigation of this issue. What is the special danger about which the majority is concerned? There are two concerns to which they refer; neither, I believe, con- stitutes a persuasive argument for delaying our nor- mally prompt representation proceedings while this issue is litigated. One concern raised by the majority, mentioned above, involves the supervisors of the employer whose employees are sought in the particular representation proceeding. None of this Employer's supervisors holds high office in CNA. The majority is apparently concerned that the presence of the involved employ- er's supervisors on the association's board of directors or their presence on negotiating committees could Power Light Co. v. Brotherhood of Electrical Workers. MI, 417 U.S. 790, (1974). constitute a "conflict of interest," apparently depriv- ing the employer of supervisors of unquestioned loy- alty, or employees of bargaining representatives of conflicting loyalties. Stated baldly, my colleagues are permitting an em- ployer in this situation to utilize its own possible mis- conduct-what in the proper forum constitutes a vio- lation of Section its own advantage; to delay or even defeat certification. When an em- ployer permits its supervisors to dominate a labor or- ganization, it commits a clear and classic violation of Section of the How ironic it is that an employer may do this and benefit even further by disqualifying a longstanding association of profes- sional nurses from achieving bargaining status. The fact that any employer may not bring an charge against itself is evidence of the peculiarly inap propriate nature of what the majority is A party in an unfair labor practice proceeding cannot be heard to complain of its own misconduct; so, here too, an employer should not be able to thwart the desires of the employees because of the acts of those who are by law his agents and under his control." Any hurt that might be suffered would be by the em- ployees themselves, who, as the majority would have it, might find their bargaining representative not to- tally responsive because it was wearing two hats; if that out to be so, an or (2) charge could be filed by any of the aggrieved employees. However, no employees are complaining in this Relegating the issue of this Employer's supervisors' bargaining and union activities to a subsequent unfair labor practice proceeding has the further advantage that the issue will be addressed at a time when the critical facts have developed and are more likely to be ascertainable. The statute itself, at Section makes it clear that supervisors may belong to labor organizations. Similarly, the holding of union office would, by itself, be unlikely to provide sufficient evi- dence of conflict, and the majority so recognizes. In the normal situation, it would seem premature for a labor organization to settle on its bargaining commit- tee and tactics until it has achieved recognition or certification. Thus, the majority here suggests delay- ing representation proceedings for a determination of Employing of Delaware Valley and NLRB 1535 Shop-Rite 205 NLRB 1076 (1973). employers may in fact, through the "taint" theory relating to the showing of interest. If, in fact, the by the showing of interest, has procured through involvement, that is readily curable during the ancillary investigation of the showing of The employees hardly need the employer to make this complaint on their behalf: as points out in brief on review, there are, in reality, few who would bargaining with an employer-oriented labor organization. 134 sl~pervisors olher ass~ciation.~~ AFL- C10, er Calumet lnc.), 1 (1963). 1 F.2d 1 1965), 1-1/2 /2 1 alleged.43 pre- 4'The supervisors petilioning inleresls wh~ch w~th In litigable un~on acting & Op~ical the~r cho~ce. ac- tuallv ex~ense." lndcases as 8(a)(5) 8(a)(2) & type delay this whch &mplaining Amndel, In secs. I1 Ill F.2d 529-532.) 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facts not only within the employer's control. but which have in all likelihood not become sufficiently well formulated to lend themselves to judicial scru- tiny or determination. The other concern of the majority in this type of case-and the only one conceivably present here-is that a number of of employers may be active participants in the The major- ity opinion rejects the argument that, even if over half of the directors of the association were other employ- ers' supervisors, this fact would present an inherent conflict of interest. That conclusion may stem in part from the rationale of lnrernarional Organizarion of Masrers, Mares and Pilots of America, Inc., al. (Chicago Stevedoring Co., 144 NLRB 172 146 NLRB 116 (1964). enfd. 35 77 (D.C. Cir. in which an organiza- tion having as members only to 2-1 percent "employees" (170-29 out of 1 1.000) was found to be a labor organization. So, too. here. the majority con- cedes that the Union is a labor organization. Thus, they would require a showing that the presence of any such supervisor conflicted with the interest of the unit employees. conceding that the burden on the em- ployer to make such a showing is "heavy." However, the Employer has not alleged any economic conflict; indeed, the Employer has alleged no particularized conflict of any sort. What. then, does the majority expect to be adduced at the further hearing it has ordered? My colleagues are remanding this proceeding for more evidence even though (a) no supervisors of the Employer are officers of the petitioning labor organization; (b) they concede that there is not an inherent conflict for other employers' supervisors to so serve, and in any event less than 50 percent do so serve: and (c) no economic or other type of conflict is One would Board has found at an earlier stage of this proceeding that this Employer has no presently sewing as officers or board members of the labor organization. See 225 NLRB at 1086. Where it is alleged that the union or its agents have financial or other business compete those of the employer whose employ- ees the union represents. presenting a "clear and present danger" to mean- ingful bargaining. I would readily join any decision holding such issue and. if the allegations were proved. find the disqualified from as collective-bargaming representative. This is the classic economic conflict of interest as expressed in Bausch Lomb Company, supra. cited in the majority opinion. However. i t appears that any allegations of such conflict in this case could be no more than pure speculation and insuf- ficient to override the statutory right of employees to select the representative of sume that employees would be better able to judge than their employer whether a particular labor or- ganization can serve them with sufficient loyalty to be an adequate bargaining representative. The majority is permitting the Employer to embark on a fishing expedition in a pond which it virtually concedes is dry-purportedly for the employees' benefit, but at their such this, in which it is alleged that an entity found to be a labor organization is dominated by supervisors, I would apply the normal rule of not permitting litigation of unfair labor practice issues in a representation proceeding. Nor would I allow this matter to be litigated in any case testing the certification, since I view that as merely an outgrowth of the representation proceeding. I do not feel the least bit uncomfortable relegating the Employer to self-help, if it is truly concerned about its own super- visors' participation in the union. I would similarly direct the employees to the forum if they are concerned about the loyalty of their bargaining repre- sentative (which, of course, they have not been in this case to date). In truth. the employees have a more direct remedy: they may select a more "loyal" repre- sentative initially, if that is their concern. Lastly, if it is the supervisors of other employers who pose the concern, the employees, the aggrieved parties, have the remedies set forth above, and the employer may, as indicated, interpose a Bausch Lomb defense under existing precedent, if it is truly an economic conflict of interest about which it is complaining. I believe the majority's decision further to resolution of representation case, upon the Em- ployer's urging, to ascertain facts probably have not been developed sufficiently to be ascertain- able, which are within the control of the party, and. lastly, the significance of which the major- ity has discounted in advance is, to say the least, in- congruous. I would affirm the certification of the Union forth- with. I am in basic agreement with the views expressed in Anne supra. by the late Judge Craven, whose original panel opinion was adopted by Judge Hall dissent. (See and of Judge Craven's opinion. 561 at