French Hospital Medical Center

FRENCH HOSPITAL MEDICAL CENTER French Hospital Medical Center' and California Union of Health Care Professionals, Service Employees International Union, AFL-CIO, Local No. 723, Petitioner. Case 20-RC-14980 January 26, 1981 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND ZIMMERMAN Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Christo- pher J. Roberts on January 23, 28, and 31, Febru- ary 4, 5, 7, and 8, and April 9, 1980.2 Following the hearing and pursuant to Section 102.67(h) of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Di- rector for Region 20, the case was transferred to the Board for Decision. Thereafter, briefs were filed by the Petitioner and the Employer. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board, having duly considered the Hearing Officer's rulings and the Regional Director's rul- ings on interim appeals, finds they are free of prej- udicial error. They are hereby affirmed. 3 ' The names of the Employer and the Petitioner appear as amended at the hearing. 2 California Nurses' Association intervened on the basis of a current collective-bargaining relationship with the Employer. s During the hearing the Employer challenged the Regional Director's ability to make unbiased interim rulings regarding various objections and its request for a continuance. The Employer asserts that the Regional Di- rector as a member of the Senior Executive Service established by the Civil Service Reform Act of 1978, 5 U.S.C. 2301, er sreq., could receive a bonus. One of the elements used to determine whether or not she re- ceives a bonus, and its amount, is the speed with which representation cases are proc(essed within her Region. The Employer claims that he Re- gional Director made adverse interim rulings and denied its request for a continuance because of pecuniary interest, thereby violating its right to due process. In this regard the Employer requested, and the Board issued, ubpoenas ad testificandum and duces terum to the Regional Director instructing her to appear and bring certain documents pertaining to the Senior Executive Service wage system. The Employer withdrew its subpoena duce trecum after receiving the requested documents pursuant to Sec. 102 117(c) of the Board's Rules and Regulations. Thereafter, the Hearing Officer grant- ed the General Counsel's petition to revoke the subpoena ad estifican- dum. The Regional Director deemed it inappropriate to rule on the Em- ployer's interim appeal and transferred it to the Board at the close of the hearing. At the outset we note that we have affirmed both the Hearing Officer's and the Regional Director's rulings, supra. These affirmations were based on the objective evidence in the record. Indeed, all the Regional Direc- tor's rulings are subject to review by the Board, the members of which are not in the Senior Executive Service. Also, the rapidity with which representation cases are processed is but one of many factors considered under the Senior Executive Service compensation plan. Another factor is 254 NLRB No. 83 Upon the entire record in this case, the Board finds: 1. French Medical Center operates an acute health care institution in San Francisco, California. The parties stipulated that within the past 12- month period the Employer had gross revenues in excess of $500,000. During the same period, the Employer purchased goods valued in excess of $5,000 which originated outside the State of Cali- fornia. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Employer stipulated, and we find, that the Intervenor, California Nurses' Association, herein called CNA is a labor organization within the meaning of Section 2(5) of the Act. The Employer contends, however, that CNA and more specifically its regional office, Golden Gate Nurses' Association (GGNA), should be dis- qualified from representing the Employer's regis- tered nurses. The Employer submits that GGNA has supervisors of other health care related institu- tions on its board of directors and also that one of its members is employed as a supervisor by the Employer. The Employer cites Sierra Vista Hospi- tal, Inc., 241 NLRB 651 (1979), wherein the Board recognized that in some circumstances the partici- pation of supervisors in the internal operations of a state nurses' association may disqualify the associ- ation from representing certain employees. Howev- er, the Employer must meet the "heavy burden" of showing that the participation of supervisors pre- sents a "clear and present danger" of a conflict of interest which compromises the labor organiza- tion's bargaining integrity. The following four individuals are supervisors of other employers and members of the GGNA's board of directors: Janet Veatch, head nurse at the University of California pediatric clinic located in San Francisco; Maura Carroll, associate dean for continuing education at the University of Califor- nia's School of Nursing in San Francisco; and Sandra Weiss and Ruth Colavecchio, both of whom are employed by the San Francisco Consor- tium.4 The Employer contends that these individ- uals are employed by its competitors and/or insti- tutions that employ nurses and thus compete in the the quality of the Regional Director's decisions and the percentage of re- versals by the Board Bascd on the foregoing, and he position of the General Counsel set fiorth in the petition to revoke, we find no merit to the Employer's con- tention and consequently we find that there is no need for the Regional Director to testify V'e hereby affirm the Hearing Officer's ruling revok- ing the subpoena ad terficandum 4The Consortium is funded by state and Federal grants to conduct various research projects inolving nurses in the health care field 711 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hiring of qualified nurses. Jan Gersonde is em- ployed as a supervisor by the Employer. The Em- ployer argues that by the very nature of her em- ployment a conflict of interest is created. Addition- ally, it is the Employer's position that because these individuals serve on the GGNA's board of directors they are in a position to control the selec- tion and functions of nurse advocates. Nurse advo- cates are employed by the GGNA and participate in a variety of ways in GGNA's organizational and representational activities. The Employer alleges that there is a disqualify- ing conflict of interest in the active participation on behalf of the Intervenor by supervisors of other hospitals. However, having carefully reviewed the record, we find no support for the Employer's con- tention that the supervisors employed by the other organizations could influence, to an impermissible degree, the collective-bargaining relationship be- tween the employer and the Intervenor, a factor necessary to establish a clear and present danger of a conflict of interest. 5 Nor has the Employer shown that its own supervisor would or could exert any influence on the Employer's collective- bargaining relationship. The Employer's contention that the position of nurse advocate is controlled by the GGNA's board of directors and consequently could be manipulated to the detriment of the Employer or its employees is also without merit. Lois Riboli testified that she was currently the only nurse advocate in the region and had held that position for approximately 3 years. She stated unequivocally that she had never received any directions from either the state or the regional board of directors. She also testified that her supervisor was the director of the pro- gram. Moreover, while she does attend collective- bargaining sessions, most of the negotiations are conducted by labor representatives, not by the nurse advocates. In sum, we find that the potential of GGNA's board of directors to influence the collective-bar- gaining activities of the Employer is nebulous at best and certainly not within the limits necessary to sustain a finding of "clear and present danger" as contemplated in Sierra Vista.6 The Employer contends that the Petitioner, Cali- fornia Union of Health Care Professionals, Service Employees International Union, AFL-CIO, Local No. 723, is not a labor organization and that the In- ternational Union is the Petitioner in this case. 5 Abington Memorial Iospital, 250 NLRB 682 (1980); and Lod Memorl- al Hospital Association, Inc., 249 NLRB 786 (1980). 6 We are also not unmindful of the fact that the Employer and the In- tervenor have had a collective-bargaining relationship for a period of at least 30 years The Petitioner was formed to represent health care professionals with respect to wages, hours, and other conditions of employment. It has its own staff and elected officers; it issues a newsletter. The Employer argues that Local 723 is a "sham" because it currently depends on the International Union for its financial existence. However, the Pe- titioner does not yet represent anyone and conse- quently receives no dues. The Employer next contends that even if the Pe- titioner is a labor organization it should be disquali- fied from representing the Employer's registered nurses because another Local of the same Interna- tional represents the nursing attendants and li- censed vocational nurses (LVNs). The Employer's argument is that under California law a registered nurse is responsible for insuring that nursing atten- dants and LVNs adequately perform their duties. The Employer asserts that, because instructions or counseling may be given, the Employer would be faced with the divided loyalty of its registered nurses, who would be torn between professional re- sponsibility and a reluctance to counsel a fellow employee who is a member of another local be- cause of union sympathy or fear of union retribu- tion. We find the Employer's contention is not sup- ported by the record. We cannot presume that a registered nurse's legal, professional, and moral re- sponsibility for insuring that the nursing attendants and LVNs administer adequate patient care would be outweighed by an appeal to union solidarity which is only conjecture. In its final argument regarding the Petitioner, the Employer states that at the "very least" the Board should amend the petition to reflect the Petitioner's association with the International Union. This amendment was requested by the Petitioner at the hearing and has been effectuated. See footnote I, supra. On the basis of the foregoing, we find that the Petitioner is a labor organization within the mean- ing of the Act and that it is not disqualified from representing the employees of the Employer. 3. The petitioned-for unit is "all graduate regis- tered nurses employed by the Employer perform- ing nursing services." The Petitioner and the Inter- venor take the position that this is an appropriate unit. We note that the petitioned-for unit is the same unit for which the Employer and the Inter- venor have negotiated collective-bargaining agree- ments for over 30 years. The Employer has not 712 FRENCH HOSPITAL MEDICAL CENTER taken a position regarding the appropriateness of the unit.7 The Employer does, however, contend that per- manent charge nurses are supervisors and should be excluded from the unit.8 Charge nurses work in various sections within the hospital and report to head nurses whom the parties agree are supervisors within the meaning of the Act. The charge nurse assigns staff registered nurses, LVNs, and attendants to teams. The teams are as- signed to various patients. After making the initial assignments the charge nurse may render patient care, but generally she insures that the teams are performing their assignments, and the various re- ports and records are completed. One report is the "acuity level." The acuity level is determined by multiplying the seriousness of the illnesses of the patients by the number of patients. The numbers in- dicating the severity of the illness are accompanied by specific definitions. The charge nurse need only determine within which definition the patient best fits and choose the corresponding number. This data is sent to the nursing office and is used to de- termine the staffing requirement for the following shift. If overtime is required, the charge nurse re- quests the authorization from the head nurse. Charge nurses do not have the authority to hire, transfer, suspend, lay off, recall, or discharge em- ployees. Nor do they possess authority effectively to recommend these actions. They do counsel em- ployees, and notations of the counseling may be placed in the employee's personnel folder. If an in- cident occurs which the charge nurse believes might require discipline, she is expected to write an incident report and send it to the head nurse. If the head nurse believes discipline may be warranted she will conduct an investigation and complete the disciplinary action form, if necessary. Charge nurses do evaluate nonunit attendants. They do not evaluate other staff nurses, but they have been consulted if the head nurse believes that I The Employer did, however, introduce evidence concerning other employees. In Newton-Wellesley Hospital, 250 NLRB 409 (1980). we held that the presumption of the appropriateness of a unit of registered nurses is rebuttable. However, there is nothing in the evidence adduced by the Employer which on its face demonstrates that this unit is inappropriate, and the Employer does not urge that the unit he found inappropriate. Indeed the Employer advances no argument with respect to the rel- evance of its evidence. " The position of charge nurse had been rotated among all the staff registered nurses. At the time of the hearing the Employer indicated that it had permanently filled eight charge nurse positions and it was its inten- tion to have only permanent charge nurses. she is not adequately familiar with the staff nurse to complete the evaluation. However, the responsi- bility for the evaluation rests with the head nurse. To the extent that charge nurses assign specific employees to teams and the teams to specific pa- tients, this is a routine function; the charge nurse merely matches the employee's qualifications with the immediate needs of the patients. The Board has frequently held that this type of authority to assign work is more akin to the exercise of professional rather than supervisory responsibility. 9 Similarly, the preparation of the acuity report under estab- lished guidelines does not reflect the exercise of su- pervisory discretion or judgment. It is also clear that the counseling performed by the charge nurse consists of observing inadequacies in an employee's professional competence and suggesting improve- ments. The fact that charge nurses may counsel or evaluate other employees, particularly when those employees are nonunit employees, is clearly not dispositive of their statutory status.1 0 Based on the foregoing, we conclude that charge nurses perform their duties and functions predomi- nantly in the exercise of professional judgment inci- dental to the treatment of patients. Their duties and authority are all directed toward quality patient care and this, without more, does not constitute su- pervisory status. 1 Accordingly, we find that the permanent charge nurses are statutory employees; that a question af- fecting commerce exists concerning the representa- tion of certain employees of the Employer, and that, considering the evidence before us, the unit, as described below, is appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All graduate registered nurses employed by the Employer performing nursing services; ex- cluding head nurses, administrative nurses, all other employees, guards and supervisors as de- fined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] (allr Hospital. Ld., 220 NLRB 1339 1975): The Tlrusrees of Nobl Hospital. 218 NLRB 1441 (1975). o l7exas Institute for Rehabilitation and Research, 228 NLRH 578 (1977). '' Evenide South. A Division of Gerialrics. Inc., 239 NLRB 287 (1978). Miehurr, Medical College. 219 NLRB 488 (1975) 713