Highland Hospital

750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Highland Hospital and New York State Nurses As- sociation. Cases 3-CA-12794 and 3-RC-8199 April 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On February 2, 1987, Administrative Law Judge Howard Edelman issued the attached decision. The Respondent filed exceptions and a supporting brief,' the General Counsel filed limited exceptions and a brief in support of the judge's decision, and the Charging Party filed a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified 2 and to adopt the recom- mended Order. The judge found that New York State Nurses Association, the Charging Party (the Association), is a labor organization within the meaning of Sec- tion 2(5) of the Act and that the Respondent violat- ed Section 8(a)(5) and (1) of the Act by failing and refusing to execute a collective-bargaining agree- ment with it. The judge also found that the Re- spondent's motion to revoke the Association's cer- tification should be denied. In agreeing with the judge we stress the following factors. North Shore University Hospital, 259 NLRB 852 (1981) (North Shore I), concerned the same labor organization, New York State Nurses Association, that is at issue here. In its initial decision in that case, the Board, relying on Sierra Vista Hospital, 241 NLRB 631 (1979), certified the Association as the bargaining representative and concluded that the employer had failed to demonstrate that super- visory participation within the Association led to a "clear and present danger of a conflict of interest" interfering with the collective-bargaining process. The court in NLRB v. North Shore University Hos- 1 The Respondent has requested oral argument This request is denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January I, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) We also note that in the second paragraph of the notice, as noted in the General Counsel's limited exceptions, the phrase "WE WILL NOT refuse to bargain" should replace the phrase "WE WILL NOT bargam " We shall modify the recommended notice accordingly. pital, 724 F.2d 269 (2d Cir. 1983), agreed with the Board's view, as expressed in Sierra Vista, that the fact that supervisors are members of a labor organi- zation does not disqualify it as a bargaining repre- sentative and that, unless there is a "clear and present danger" of a conflict of interest interfering with the collective-bargaining process, disqualifica- tion is inappropriate. Nonetheless, the court de- clined to accept the Board's application of the Sierra Vista test in North Shore I inasmuch as it "limits the inquiry as to a conflict of interest to proof of explicit supervisory interference in the case of the particular bargaining unit before it" rather than extending the inquiry to "all relevant circumstances including the governing structure and actual practice of the organization seeking cer- tification . . . so far as participation by supervisors is concerned." Id. at 273. Specifically, with regard to the structure of the Association, the court noted that the membership privileges of supervisory nurses were identical to those of nonsupervisory nurses and that supervisors were "very active" in the Association's affairs. In this regard, supervisors served on the board of directors, the nominating committee for Association officers, and various other task forces, councils, and committees advis- ing the board of directors in the formulation of As- sociation policy and strategy. The court particular- ly noted that a North Shore supervisor served as president of "District 14" which encompassed the North Shore unit and that supervisors served on the council on the Economic and General Welfare Program (EGW) which included a collective-bar- gaining component for member nurses. The EGW program, the court found, was not insulated from governance by the Association hierarchy, com- posed of supervisors and nonsupervisors alike, and assisted and participated in collective bargaining for individual units. On remand, the Board in North Shore University Hospital, 274 NLRB 1289 (1985) (North Shore II), adopted the court's opinion as the law of the case and found that the "active partici- pation of supervisory personnel in the Association, the lack of insulation of the collective-bargaining process from governance of the organization, and the lack of a mechanism to assist the Respondent and other employers from violating Section 8(a)(2) of the Act through supervisory employees' partici- pation in the Association's affairs, combine to present a clear and present danger of a conflict of interest." Id. at 1291. The judge in the present case concluded that the Association operates in a manner that avoids con- flicts of interest under the test established in Sierra Vista and the Association's operation also now allays the concerns expressed by the Second Cir- 288 NLRB No. 87 HIGHLAND HOSPITAL 751 cuit in North Shore. In so doing, the judge summa- rized the facts relevant to the conflict-of-interest determination 3 and noted changes in the Associa- tion's structure that have occurred since North Shore IL Preliminarily, we note that the Board continues to adhere to its decision in Sierra Vista. In Sierra Vista the Board found that the collective-bargain- ing process of a nurses' association must be suffi- ciently insulated from supervisory involvement within the association to avoid a "clear and present danger of a conflict of interest." Id. at 635. The Board found that although the mere presence of su- pervisors in an association does not disqualify it from labor organization status, active participation by an employer's own supervisors may pose a con- flict of interest contravening the Act by giving rise to questions about the organization's ability to deal with the employer at arm's length. The Board ac- knowledged that, depending on a supervisor's role in the organization's internal affairs, the presence of even one supervisor on the organization's board of directors could pose a danger that unit employees' interests might not receive single-minded represen- tation. The Board further found that the presence of supervisors of third-party employers may im- pinge on the employees' right to the undivided in- terest of their bargaining representative. It stressed, however, that the participation of supervisors (of third-party employers), even if constituting a majority of a nurses' association's board of directors, would 3 As noted in the Respondent's exceptions, the judge inadvertently stated that in 1985 two members elected to the five-member board were self-nominated, when the record establishes only that two members elect- ed to the American Nurses Association convention as delegates in that year were self-nominated. The judge further noted that after the task foice on no-strike policy had been dissolved, no "similar" task force was reestablished It is unclear from the record, however, whether the task force on economic and general welfare or the task force on the delegates assembly, which were subsequently established, were "similar" in some fashion to the task force on no-stnke policy The judge also stated . "The evidence in this record establishes that the Executive Director does not report to the Board on matters relating to the Egw program or the CNP's." The record -shows, however, that after March 22, 1985, the ex- ecutive director submitted EGW program reports at board meetings but did not otherwise report to the board on matters relating to the EGW program or the CNPs (the individual bargaining units.) Finally, the judge stated: "The record in this case established that since 1979 the Associa- tion has actively assisted employers to avoid possible violations of Sec- tion 8(a)(2)." While it is true that the Association has, since North Shore, increased its cooperation with management by, inter alia, participating in unit clarification proceedings and writing two detailed letters m response to employer requests for assistance to avoid 8(a)(2) conflicts, the record falls somewhat short of establishing "active" assistance. As set forth below, these inadvertent errors are not sufficient to affect our decision 4 The Board was concerned with two 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 interest a union may have outside its representative responsibilities . Sierra Vista, supra at 634. not in and of itself necessarily require disquali- fication, absent some other demonstrated con- flict of interest, for we do not assume an "in- herent" conflict between supervisors and em- ployees in the bargaining process. Id. at 633. The Board in Sierra Vista concluded that the burden on the employer of establishing such a con- flict of interest is a "heavy one." The Board found: There is a strong public policy favoring the free choice of a bargaining agent by employ- ees. The choice is not lightly to be frustrated. There is a considerable burden on a noncon- senting employer, in such a situation as this, to come forward with a showing that danger of a conflict of interest interfering with the collec- tive bargaining process is clear and present. Id. at 633. At the same time, imposition of such a burden protects the employees' right to a collec- tive-bargaining representative with undivided alle- giance and the employer's right to loyal supervi- sors. Although the Board has applied the Sierra Vista test in numerous cases, 5 there have been few challenges to the test in the courts. In this regard, apart from the Second Circuit, only the Eleventh Circuit has had occasion to squarely address the Sierra Vista test. Contrary to the Second Circuit, in NLRB v. Walker County Medical Center, 722 F.2d 1535 (11th Cir. 1984), the Eleventh Circuit en- dorsed Sierra Vista in finding that the employer there had presented evidence of merely a potential, rather than actual, conflict of interest and thus had not met its burden of establishing a "clear and present danger" of a conflict of interest as required in Sierra Vista. In the instant case, for the reasons stated by the judge, the Respondent has failed to establish an actual conflict of interest as required in Sierra Vista.6 Even were we to apply the test applied by 5 See, e.g., St. John's Hospital, 264 NLRB 990 (1982), Ojai Valley Com- munity Hospital, 254 NLRB 1354 (1981); French Hospital Medical Center, 254 NLRB 711 (1981); Eastern Maine Medical Center, 253 NLRB 224 (1980); Abington Memorial Hospital, 250 NLRB 682 (1980), N. 1: Enloe Memorial Hospital, 250 NLRB 583 (1980); Lodi Memorial Hospital, 249 NLRB 786 (1980); Oak Park Community Hospital, 249 NLRB 784 (1980); Exeter Hospital, 248 NLRB 377 (11980); Rockford Memorial Hospital, 247 NLRB 319 (1980); Healdsburg General Hospital, 247 NLRB 212 (1980); Sidney Furber Cancer Institute, 274 NLRB 1 (1980); Arlington Hospital, 246 NLRB 992 (1979); Lancaster Osteopathic Hospital, 246 NLRB 600 (1979); Western Baptist Hospital, 246 NLRB 1701 (1979). 6 The fact that Angela Wolhard, a member of the Association, served as nursing representative for the Respondent dunng its 1984 negotiations with the Association does not, without more, establish a "clear and present danger" of a conflict of interest. The Association has never repre- sented nurses at St. Francis Hospital where Wolliard served as vice presi- dent of patient care services at the time of the hearing. In addition, Wol- hard was only interim director of nursing at Highland Hospital and thus served in that capacity on a temporary basis. 752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Board as "law of the case" in North Shore II, however, we agree with the judge that the Re- spondent has failed to establish even a potential conflict of interest interfering with the collective- bargaining process. In this regard, the present record has clarified certain ambiguities in the North Shore record which, in that case, amplified the court's concern. Moreover, in our view, the changes, including those listed below, since North Shore I and // and prior to June 10, 1985, the date of the Respondent's petition to revoke the Associa- tion's certification, are sufficient to insulate the col- lective-bargaining process from supervisory partici- pation and to preclude development of an actual or potential conflict of interest. The internal structure of the Association at the time of North Shore I and // consisted of an execu- tive director, deputy director, program directors, and directors of departments—all of whom report- ed to the board of directors of the Association—as well as several councils, committees, and task forces that investigated matters of interest to the Association. The executive director of the Associa- tion was appointed to a salaried position by the board of directors, to serve at their pleasure, and was responsible for the overall administration of the Association. Some of the Association's programs, councils, and task forces were involved in collective bargain- ing, while others had no collective-bargaining re- sponsibilities. The EGW, staffed by the EGW pro- gram director and other staff, was responsible for organizing and representing nurses for purposes of collective bargaining and directly advised and par- ticipated in collective bargaining for Association- represented units. After the Association was certi- fied as the bargaining representative of the nurses in a particular unit, the unit was recognized as a Council of Nursing Practitioners (CNP), and adopted rules limited to that bargaining unit. Al- though it appeared from the record in North Shore that the functions of the EGW program and the Council on EGW, which advised the board of di- rectors, were directly related, it now appears that such was not the case. The Council, unlike the EGW program, did not advise the board of direc- tors concerning particular labor relations matters or collective bargaining but, instead, compiled gen- eral economic information relevant to the Associa- tion's functions. In addition, while at the time of North Shore a North Shore supervisor was presi- dent of District 14 of the District Nurses Associa- tion (DNA), it appears from this record that DNA was (and is) a separate organization from the "As- sociation" here, has its own board of directors, by laws, and governing structure, and does not in any way represent nurses for the purposes of collective bargaining.7 Several changes, as set forth more fully by the judge, which have occurred in the Association after the hearing in North Shore II enhance the in- sulation of the collective-bargaining process from the influence or participation of supervisory nurses. While it is still true that supervisor members may speak at general membership meetings, the evi- dence submitted shows that the supervisor mem- bers are excluded from participating in the CNPs (the bargaining units). Additionally, in North Shore, the court noted that members of the Association who were supervisors were able to vote on various matters and to voice their opinions at meetings at- tended by the general membership and could there- by influence the general membership. As noted by the judge, supervisor members may still vote in elections for the board of directors and otherwise on matters concerning the Association. The record establishes, however, that supervisor members do not vote on, or participate in, any matter relating to the EGW program or the CNPs other than the routine adopting of the EGW budget. Moreover, to the extent that CNPs are assisted by the EGW program, the CNPs retain control of the negotia- tions and the assistance comes from paid staff mem- bers of the EGW program which, as set forth below, acts independently of the board of directors and other committees which might contain supervi- sor members. Changes in the structure of the administrative staff of the Association and its nominating commit- tee since North Shore II increase the insulation of collective bargaining from supervisory influence. At the time of the hearing in North Shore II, the executive director and her staff reported to the board of directors, on which supervisors were able to serve. In the instant case, the record shows that the executive director, once appointed, acts inde- pendently of the board in all matters relating to collective bargaining. As noted earlier, the execu- tive director independently selects a deputy direc- tor and program directors. As noted earlier, since March 22, 1985, in an effort to further insulate the board of directors from the EGW program, the arm of the Association presently responsible for all collective bargaining, the executive director, rather than the EGW program director, began submitting EGW program reports at the board of directors' meetings, which are held quarterly. 8 Additionally, 7 In addition, this record indicates that as of April 26, 1985, only four nurses on the Respondent's staff, none of whom were supervisors, were members of DNA 8 Also, as of May 16, 1985, the director of the EGW program per- formed the ministerial task of signing collective-bargaining agreements Continued HIGHLAND HOSPITAL 753 here, as noted by the judge, EGW staff are hired exclusively by the executive director of the Asso- ciation and the EGW program director, serve at their pleasure, and have virtually no contact with the board of directors. In North Shore II the EGW staff served at the pleasure of the board. As found by the judge, the board of directors is not involved directly or indirectly with the organizational activi- ties of EGW or the collective-bargaining activities of the CNPs beyond receipt of periodic reports from the executive director and the routine adop- tion of the EGW budget formulated by the execu- tive director and program director. Further, unlike the situation in North Shore, the record contains no evidence of any supervisor serving on the nominat- ing committee. Although the potential still exists for supervisory participation in the nominating committee, the development, subsequent to North Shore II, of a procedure allowing any member to self-declare minimizes any potential conflict of in- terest. In addition, the ballot, which contains infor- mation about the candidates, does not indicate which individuals nominate themselves. The similarity in names between the Council on EGW and the EGW program may have caused some confusion, as indicated above, in North Shore Ii about their respective functions. In fact, this record demonstrates that the Council on EGW 9 has had no supervisory participation since 1981, a concern in North Shore II, and did not advise the EGW program concerning ongoing labor relations matters or collective bargaining. Moreover, in the instant case there is evidence that an amendment of the 1980 bylaws of the Association eliminated any direct relationship between the EGW program and the Council on EGW so that the Council on EGW no longer advised the board of directors. Addition- ally, the fact that supervisors served on the task force on no-strike policy is no longer a concern be- cause the task force was abolished in 1977. As noted, evidence submitted in this case, unlike in North Shore II, demonstrates that the Associa- tion has cooperated with employers concerning po- tential 8(a)(2) violations. Further, in contrast with 1Vorth Shore II, this record shows that no employ- ment protection or legal assistance was ever pro- vided by the Association to a director of nursing forced to resign from membership in the Associa- tion nor was legal counsel provided to anyone not in a bargaining unit. We conclude, therefore, based on all the evi- dence, that the Respondent has failed to establish Previously, the executive director of the Association signed these agree- ments. 9 The Council was dissolved in October 1985, subsequent to the peti- tion to revoke certification - under Sierra Vista or the concerns expressed by the court in North Shore that there is a clear and present danger of a conflict of interest barring the Association from representing its employees. Ac- cordingly, we find that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to execute an agreed-on collective-bargaining agree- ment. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Highland Hospital, Beacon, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with New York State Nurses Association by failing and refusing, on request, to reduce to writing and to sign a collec- tive-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request of the Association, reduce to writing, execute, and give retroactive effect to the collective-bargaining agreement reached Febru- ary 8, 1985, and WE WILL compensate any employ- ees covered by the contract for any monetary losses they may have sustained as a result of our refusal to reduce to writing and sign the contract. WE WILL, on request of the Association, bargain with the Association as the exclusive representative of the employees in the following unit: All full-time and regular part-time employees licensed or otherwise entitled to practice under a permit as a registered professional nurse em- ployed by the Employer to perform registered professional nursing, including staff nurses and assistant head nurses; excluding director of nursing, assistant director of nursing, nurse su- pervisors, assistant supervisors, head nurses, employee health care nurse, in-service nurse, 754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nurse purchasing agent, service and mainte- nance employees, technical employees, li- censed practical nurses, graduate practical nurses, business office clerical employees, other professional employees, guards and su- pervisors as defined in the Act. HIGHLAND HOSPITAL Alfred M Norek, Esq., for the General Counsel. Howard Estock, Esq. and Richard Lamm, Esq. (Clifton, Budd, Burke & DeMaria), for the Respondent. Richard Silber, Esq. (Harder, Silber & Gillen), for the Charging Party. DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on November 4, 5, and 6, 1985, and January 16 and 17, March 5, and April 22, 1986, in Albany, New York. On July 2, 1985, the New York State Nurses' Associa- tion (the Association) filed a charge against Highland Hospital alleging a violation of Section 8(a)(5) of the Act. On August 9, 1985, a complaint issued and on Septem- ber 10 the complaint was amended. The thrust of the complaint alleged that Respondent after negotiating a collective-bargaining agreement with the Association, failed and refused to execute the agreement, and thereaf- ter withdrew recognition from the Association. On October 25, 1985, Respondent filed a motion to revoke the certification of the Association as the collec- tive-bargaining representative of a unit (described below) of Respondent's employees. On October 29, 1985, an order issued directing the cases be consolidated. Briefs were filed by all parties to this proceeding. On my consideration of the entire record, the briefs, and my observation of the demeanor of the witnesses, I make the following findings of fact and conclusions of law. Respondent is engaged in the operation of a hospital organized under the corporate laws of New York. At all times material, Respondent has maintained its principal office and place of business in Beacon, New York. In the course of its operations, Respondent annually derives gross revenues in excess of $1 million and purchases and receives goods and materials valued in excess of $50,000 directly from points located outside New York State. Respondent admits and I find that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act.' 1 In May 1984 Respondent filed for bankruptcy. In October 1984 Re- spondent entered into an affiliation agreement with Saint Francis Hospital of Poughkeepsie, New York, which lead thereafter to Saint Francis as- suming control of Respondent. For purposes of the instant case the par- ties stipulated that from October 10, 1984, until July 1, 1985, Saint Fran- cis Hospital was a jomt employer under the Act with Respondent and that after July I, 1985, Saint Francis became a successor. Respondent contends that the Association is not a labor organization within the meaning of Section 2(5) of the Act. In North Shore University Hospital, 274 NLRB 1289 (1985) (North Shore II), the Board based on the facts in the record before it concluded the Association was not a labor organization within the meaning of the Act. In order to determine whether Respondent violated Section 8(a)(5) of the Act, as alleged, it is necessary to determine whether the Association is a labor organiza- tion within the meaning of the Act. The Association was incorporated in 1902. It is a pro- fessional association devoted to promoting many facets of the nursing profession in a similar manner to profes- sional associations of lawyers, physicians and surgeons, engineers, accountants, etc. The Association admits to membership any registered professional nurse including nurses possessing supervisory authority as defined in Sec- tion 2(11) of the Act. The Association, additionally, as one of its functions, represents nurses employed by hos- pitals located in New York State for purposes of collec- tive bargaining. All functions, or "programs" of the Association are generally responsible to the board of directors, which is an elected body responsible for carrying out the general management and fiduciary affairs of the Association. Any member of the Association, including supervisory nurses, is eligible to become a member of the board. There are five board members on the board and eight members at large. These members are elected annually. The election process for board members starts at the beginning of each year by communication to the mem- bership, through various organizational components, of notice of offices that are up for election in the coming year. In addition, notice is printed in the Association's publications informing membership of the positions and inviting submission of nominations to the committee of nominations. The committee of nominations, a separate committee, is elected by the membership and prepares a published slate containing at least two names for each office up for election. Since October 1984, the Associa- tion has also maintained a procedure, apart from the committee of nominations, under which any member can self-nominate. In 1985 two members elected to the five- member board were self-nominated. Elections are con- ducted by written ballots. All members of the Associa- tion are eligible to vote. The board selects an executive director who is the As- sociation's chief officer and who is directly responsible for the day-to-day operations of the Association, much in the same manner as board of directors of professional sport teams select a general manager to run the overall operation of the team. The executive director is em- ployed by the board pursuant to a 2-year agreement ne- gotiated between the executive director and the board. The executive director independently selects a deputy director to assist him and program directors, each in charge of their separate programs. The terms and condi- tions of the deputy director and the program directors are negotiated independently between the executive di- rector and the above subordinate directors. HIGHLAND HOSPITAL 755 The Association as set forth above carries out its func- tions through the administration of the various programs. Its collective-bargaining function is carried out through its economic and general welfare program (EGW).2 The EGW program director reports exclusively to the executive director. The program director has overall re- sponsibility for the EGW program. The program direc- tor is assisted by an associate and an assistant director, labor relations representatives, and nursing representa- tives which comprise the EGW staff. The associate di- rector, assistant director and labor relations representa- tives are interviewed by the program director who rec- o minends their hire. The executive director has the ex- clusive authority to hire these individuals. Their terms of employment are established by the executive director and program director. The same line of authority applies if it becomes necessary to terminate one of these employ- ees. The board has no involvement in the hiring, the terms and conditions of employment, or termination of the pro- gram director, assistant program director, associate pro- gram director, or labor relations representatives. The nursing representatives are registered nurses who assist the above EGW staff classifications described above. The budget for EGW is developed exclusively by the prograin director and executive director. The agreed on budget is thereafter routinely adopted by the board. The EGW engages in traditional organizational efforts with respect to unrepresented nurses throughout the State. In some cases the EGW staff goes out in the field, searches for unrepresented nursing employees, and at- tempts to organize them. In other cases unrepresented groups of nursing employees contact them and request their assistance in organization. If the organization pro- ceeds in a positive manner, appropriate staff personnel will file a petition with the National Labor Relations Board for an election or seek voluntary recognition. Following a certification or recognition the bargaining unit certified or recognized is designated by the Associa- tion as a Council of Nursing Practitioners or CNP. Thereafter the relationship between the CNP and the EGW is generally similar to that of a local union and its International. 3 The CNP with advise of the EGW staff establishes its own bylaws. The EGW cannot impose bylaws on the CNP. The CNP elects a slate of officers that come entirely from within the bargaining unit and are elected solely by members of the unit. Supervisory employees as defined by the Act are excluded from the bargaining unit. The CNP thereafter selects a bargaining committee through an election of bargaining unit employees. This bargaining committee then commences negotiations with the hospital employing them. The EGW staff, generally a labor relations representative and or nursing represent- 2 A complete discussion of the Association's internal structure includ- ing all programs, councils, committees and other related matters is set forth and described in detail m North Shore University Hospital, 259 NLRB 852 (1981) (North Shore I) It is, therefore, unnecessary to repeat this discussion when it is consistent with the facts of the instant case. 3 It is recognized that the relationships between local unions and their Internationals vary to some extent ative assists in these negotiations in much the same manner as a labor attorney would assist a local industrial union in bargaining with an employer. The bargaining committee contacts unit members and solicits proposals that are drafted into a proposed agreement that is submit- ted to the hospital employer. When a tentative agree- ' ment is ultimately reached, the labor relations representa- tive drafts a memorandum of agreement for ratification by the unit employees comprising the CNP. If the unit employees fail to ratify, bargaining with the employer continues. On ratification the labor relations representa- tive prepares a draft agreement that is submitted to the hospital employer for signature. The program director executes the agreement on behalf of the Association. Such execution is pro forma. Following execution of a collective-bargaining agree- ment, the CNP functions in a manner similar to an inde- pendent local union. The day-to-day operations are han- dled by the local CNP officers and their appointed repre- sentatives. However, grievances are handled through nursing representatives who are part of the EGW staff and the determination whether to take a grievance to ar- bitration is made by the EGW program director or asso- ciate director on review with the nursing representative. The CNP, however, makes its own independent deci- sion on whether to engage in a strike action or various picketing activities. The board of directors has absolutely no involvement, directly, indirectly, or remotely, with the above-de- scribed organizational activities of EGW or the collec- tive-bargaining activities between the CNP and the hos- pital employer. The Association's constitution and bylaws prescribed for the creation of various committees, councils, and task forces to help the Association perform its functions. Some committees and councils operate on a continuing basis, like the nominating committee, while others are formed for a specific purpose and thereafter dissolved when such purpose has been carried out. In the mid- 1970s a task force was established to study the issue of the Association engaging in strikes. It made its report to the Association in 1977 at its annual convention and was thereafter dissolved. No similar task force has since exist- ed. In 1982 a task force was established to study methods of strengthening the EGW program. This task force made its report to the 1983 annual convention and was dissolved. From at least 1979 until 1985 there was a Council on Economic and General Welfare. The name would appear to suggest that it was related in some way to the EGW program. It was not. This council dealt with issues of general economic interest to the nursing profession such as comparative worth, taxation of employee benefits, pay equity, and preretirement counseling. This council was dissolved in 1985. During its existence the council had absolutely no involvement with any facet of the EGW program. In the North Shore I and // cases the relationship be- tween the Association and District 14 was an issue. The facts of this record established that District 14 is an inde- pendent nonprofit membership organization with its own 756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD constitution and bylaws, its own staff and programs, and its own dues requirements. It is not part of the Associa- tion, but rather a separate organization with "constitu- ent" status. That is, its constitution and bylaws are in harmony with those of the Association. On January 4, 1982, the Association was certified by the National Labor Relations Board as the collective-bar- gaining representative for all full-time and regular part- time nurses at Respondent hospital. Thereafter a collec- tive-bargaining agreement was entered into that expired on April 15, 1984. The record established that the orga- nization, the collective bargaining, and the day-to-day operation of the CNP took place in the manner described above. There is no evidence to establish any supervisory participation or influence relating to the EGW staff or the CNP as it related to Respondent. The Board has consistently held that the membership of supervisors in a nurses' association does not, in and of itself, disqualify the Association from acting as a collec- tive-bargaining representative. The Board's criteria and controlling authority in this connection is Sierra Vista Hospital, 241 NLRB 631 (1979), which set forth a con- flict-of-interest test succinctly summarized in Sidney Farber Cancer Institute, 247 NLRB 13 (1980), which set forth: In Sierra Vista Hospital, Inc., supra, we rejected the contention that there is an inherent conflict between all supervisors and all employees which automati- cally disqualifies a labor organization in which su- pervisors participate from properly representing em- ployees. Instead, as we stated in that case, a conflict of interest justifying a labor organization's disquali- fication from representing a particular unit because of supervisory involvement in the internal affairs of the bargaining agent would depend (1) upon wheth- er a supervisor or supervisors employed by the em- ployer were in a position of authority within the labor organization and, if so, upon the role of that individual or individuals in the affairs of the labor organization, or (2) in the instance of supervisory nurses employed by third-party employers and holding positions of authority, upon some demon- strated connection between the employer of the unit employees concerned and the employer or employ- ers of those supervisors which might affect the bar- gaining agent's ability to single-mindedly represent the unit employees. The burden of establishing the existence of a conflict interfering with the collec- tive-bargaining process is upon the employer assert- ing the disqualifying conflict, and is a heavy one. The essential question in this and similar cases is whether the collective-bargaining program of the Asso- ciation is sufficiently insulated from supervisory involve- ment within the Association so as to avoid a "clear and present danger of a conflict of interest" with the collec- tive-bargaining process. Sierra Vista, supra at 633. The burden of establishing such conflict of interest is on Re- spondent hospital, and it is a heavy burden. Sierra Vista; Sidney Farber, supra. The issue of the Association's labor organization status was raised in North Shore I, where the Board, applying the Sierra Vista test concluded that the supervisory par- ticipation by members of the Association did not present a clear and present danger of such conflict of interest. North Shore I, was reviewed by the court of appeals on an application for enforcement by the Board. NLRB v. North Shore University Hospital, 724 F.2d 269 (2d Cir. 1983). The court, agreeing with the Board that the fact su- pervisors are members of the Association does not auto- matically disqualify it as a statutory bargaining represent- ative, and agreeing that unless there is a clear and stand- ard danger of a conflict of interest interfering with the collective-bargaining process resort to disqualification is inappropriate, nevertheless disagreed with the Board's application of Sierra Vista on the rationale that it limited inquiry as to a conflict of interest to proof of explicit su- pervisory interference in the particular bargaining unit. The court noted that such a narrow inquiry was inad- equate to effectuate the policies of the Act in the case of a multiple purpose professional organization representing thousands of employees in numerous bargaining units. In remanding, the court directed the Board to extend the inquiry "to all relevant circumstances, including govern- ing structure and actual practice of organization seeking certification as bargaining representative so far as partici- pation by supervisors is concerned." Id. The aspects of the Association's structure that troubled the court based on the record before it were set forth as follows: Quite apart from the formal structure in which su- pervisors vote on various matters, status as a senior member of SNA and supervisory authority within a health care facility often go together and it is well nigh inevitable that some of SNA's most active members will also be supervisors. SNA's board of directors, its ultimate governing authority to which the executive director and other staff employees must report, has supervisors as members. The nomi- nating committee, which has great influence in de- termining who will become an officer or director, was chaired by a supervisor from North Shore Hos- pital at the time of the election. Little, if anything, has been done to insulate collective bargaining ac- tivities from the governance of the organization generally. The staff members who advise organized nurses and negotiate on their behalf serve at the pleasure of SNA's board. Even the EGW advisory council has supervisors as members, as did a task force on SNA's no-strike policy. District 14, which collects information on wages, hours, etc., of nurses, key information in developing bargaining demands, was chaired by a supervisor from North Shore Hos- pital. Supervisors have used a district meeting to voice opposition to the representation of rank and file nurses by a competing union. Finally, SNA seems quite prepared to refuse to cooperate with employers in seeing that Section 8(a)(2) is not sys- tematically violated by the activities of supervisory nurses in SNA. To the contrary, it may be prepared to resist any attempts by employer hospitals to HIGHLAND HOSPITAL 757 comply with the law, even by providing legal assist- ance to any supervisor whose continued employ- ment is made contingent on resignation from SNA. That was in fact the recommendation of an SNA committee which studied the conflict of interest problem. The Board in North Shore II applying the courts con- cerns and without taking further evidence, as forth in the court's remand, adopted the court's decision as the law of the case, and revoked the Association's certification. Applying the Sierra Vista test and considering the spe- cific concerns described by the circuit court and the Board in North Shore II to the facts of this record. It is clear Respondent has failed to show a clear and present danger of a conflict of interest. Rather the evidence af- firmatively establishes that the collective-bargaining process of the Association is for all practical purposes to- tally insulated from actual or potential supervisory in- volvement contemplated by Sierra Vista and North Shore JL The evidence in this record conclusively establishes that all matters relating to the organization and collec- tive-bargaining practices of the Association are entirely confined to the EGW program and totally insulated from supervisory participation. Although the Association accepts members who are nursing supervisors and although such supervisors are el- igible to become members of the board of directors (there are presently two nursing supervisors on the board) the evidence establishes that once the board se- lects the executive director all control or influence from the board or the general membership of the Association passes to the executive director who is in total overall charge of all programs including the EGW program. The executive director then appoints an EGW director who is in total charge of the EGW program, responsible only to the executive director. A staff consisting of labor relations professionals and nonsupervisory nurses is then selected by the EGW program director to run the EGW program. Neither the executive director, the EGW pro- gram director, or the EGW staff report to the Board or to any other functional group within the Association. Board members receive no information concerning EGW activities that is not available to the public. They are not informed about organizations, collective-bargaining nego- tiations, the activities of local CNPs, which include pending grievances, arbitrations, and strikes. They do not in any way advise or direct the EGW program or the CNP units in any way. The evidence establishes that the "Councils of Nursing Practitioners," the bargaining units of nurses at the vari- ous hospitals, and other health care facilities control their bargaining process. The bargaining unit adopts its own rules for conducting bargaining unit business and elects a negotiating committee from among unit members. It should be particularly noted that these bargaining units are composed of licensed professional staff nurses exclud- ing all statutory nurse supervisors and managers. The Association does not advise the unit concerning the com- position of the negotiating committee, and does not have a vote in establishing the committee. Proposals for bar- gaining are generated by the unit itself and are not sub- mitted to the Association, board, or the EGW staff for approval. The EGW's labor relations representatives, who generally act as chief negotiators on behalf of the individual bargaining units, are paid staff employees of the Association and are not supervisors or managerial employees of any hospital, including the Respondent's. Members of the bargaining unit retain authority to au- thorize the negotiation of all proposals and to accept or reject proposed modifications. When negotiations are completed, acceptance or rejection of the proposed agreement lies solely with the bargaining unit. Additionally, the evidence clearly shows the EGW's role. This bargaining process is purely advisory and, to the extent that the EGW's staff is involved in bargaining, no supervisory or managerial personnel affect the proc- ess. The EGW's staff who advise the unit regarding or- ganizational aspects and bargaining are full-time employ- ees of the Association and are not employed elsewhere. The executive director of the Association, who generally executes the collective-bargaining agreements on behalf of the Association, is also a full-time Association employ- ee and is not a supervisor or manager of any hospital or health-care-related institution. Moreover, her authority with respect to collective bargaining is purely ministerial, as she does not have the authority to reject a collective- bargaining agreement submitted for execution. The evi- dence further establishes that the organization and col- lective-bargaining process relating to the CNP unit at Respondent's hospital followed the same procedures as described above and was totally devoid of any superviso- ry participation. I will consider now those concerns raised by the court and adopted by the Board in North Shore IL The Board was concerned that supervisor members voted on various matters. This is true. They vote on membership in the board of directors and indeed can be and are members of the board. They also vote on matters relating to the professional concerns of the Association. The evidence establishes, however, that they do not vote on, or participate in, any matter relating to the activities of the EGW program or the CNPs, or any part of the Association's organization or collective-bargaining func- tions. The Board was concerned that supervisors may serve on the board of directors to which the executive director and her staff must report. In view of Sierra Vista, I assume the Board's concern was not with the fact that supervisors serve on the board, but rather that the execu- tive director and her staff report to the board. The evi- dence in this record establishes that the executive direc- tor does not report to the board on matters relating to the EGW program or the CNPs. Once appointed, the ex- ecutive director acts independently of the board in all matters relating to the collective-bargaining arm of the Association. Moreover, this record establishes that only the EGW program director reports to the executive di- rector and the EGW staff report to the program direc- tor. The Board was concerned that the nominating com- mittee was chaired by an officer who was a supervisor at 758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD North Shore. In the instant case there is no evidence that any supervisor was on the nominating committee. Fur- ther, the concern for potential supervisory involvement has been ameliorated by the establishment of the Asso- ciation's self-nominating procedures. Moreover, in view of the insulation that exists between the board and the EGW program and the CNPs, it is difficult to see what potential or actual conflict this concern would raise. The Board was concerned -that EGW staff members serve at the pleasure of the board. The record in this case establishes that staff members serve at the pleasure of the program director and the executive director. Staff members have no contact with the board. Their hiring, their terms and conditions of employment, and tenure are determined exclusively by the program and executive di- rector. The Board was concerned that the EGW advisory council had supervisors as members as did a task force on no-strike policy. The record in this case established that the EGW council performed functions totally unre- lated to the EGW program. The EGW council compiled general economic information relating to comparative worth, taxation of employee benefits, etc. Moreover, this council was dissolved in 1985. The record in this case also establishes that the task force on no-strike policy was created in the mid-1970s, it made its report to the Association in 1977 and was thereafter dissolved. No similar task force has been reestablished. The Board was concerned that a chairman in District 14 was a supervisor at North Shore Hospital. The record in this case established that District 14 is a separate entity from the Association, with its own constitution and bylaws and collecting its own membership dues. It is in no way connected to, or has any influence on the col- lective-bargaining process of the Association. The Board was concerned that supervisors at district meetings (meetings attended by the general membership) have raised opposition to representation of rank-and-file by a competing union. The evidence in this record estab- lishes that all members attend general meetings of the Association and may freely raise their opinions. It may well be that from time to time a supervisor may express such opposition. However, this possibility is inherent in any professional association that functions in part as a labor organization. The record in this case establishes that supervisors have no vote or mechanism for partici- pation in the collective-bargaining process of the Asso- ciation, and I conclude that there is no realistic basis for such concern based on the record in this case. The Board was concerned that the Association was not cooperative with employers concerning possible 8(a)(2) violations. The record in this case established that since 1979 the Association has actively assisted employers to avoid pos- sible violations of Section 8(a)(2). The Association has 'voluntarily modified units to exclude supervisors who were unwittingly included in units and has participated in unit clarification proceedings. Moreover, the Associa- tion has responded affirmatively to employer requests to provide names of supervisor members at a particular in- stitution and other information to allay fears of possible 8(a)(2) violations. The creation of the internal grievance guidelines available to anyone provides another mecha- nism for avoiding 8(a)(2) conflicts. Internally, the Asso- ciation through EGW has always self-policed itself to ensure that supervisors have no participation, role, or membership in the formation or operation of the CNP's. The Board was concerned that the Association "may be prepared to resist any attempts by employer hospitals to comply with the law, even by providing legal assist- ance to any supervisor whose continued employment is made contingent on resignation from SNA." Id. This concern appears to be based on the fact that in 1975 a task force investigated how to provide employment pro- tection to directors of nursing. The record in this case establishes that this task force was never implemented, and that it was subsequently disbanded. The Association has never prepared a model employment contract for di- rectors of nursing or provided legal counsel to anyone not in a bargaining unit. Thus, after applying the rationale of Sierra Vista and considering the concerns expressed by the court and Board in North Shore II to the record in this case, I con- clude that the collective bargaining arm of the Associa- tion is totally insulated from supervisory participation and that Respondent has failed to establish a conflict of interest within the meaning of Sierra Vista. Accordingly, I conclude that the Association is a labor organization within the meaning of Section 2(5) of the Act. The Collective-Bargaining Negotiations The parties began negotiations for a new collective- bargaining agreement on April 9, 1984. The Association was represented by EGW staff members Bernard McCann, a labor representative, and May Ann Woodard, nursing representative, and CNP unit members Mary Ann Nusbickel, Sue Joy, Geraldine O'Hara, and Janet Lewis. The Respondent was initially represented by Thomas Budd, Esq., its labor counsel, Margie Finnigan, director of nursing, and Matilda Schwartz, personnel of- ficer. Initial meetings were held on April 9, and 16, May 2, June 6, and October 9, 1984. During the October 9 meet- ing, Budd advised the Association that because of Re- spondent's bankruptcy status and the pending affiliation with Saint Francis Hospital discussed above, he would no longer be handling the negotiations. Thereafter Howard Estock, Esq., Richard Perkins, vice president at Saint Francis, Angela Wolliard, director of nursing at Saint Francis, and Matilda Schwartz were Respondent's negotiators. McCann and Estock were the principal spokesmen for their respective parties. These parties held negotiations on October 25, No- vember 15, and December 13 and 19, 1984, and on Janu- ary 15 and 22, and February 8, 1985. The February 8 meeting was held under the auspices of a Federal media- tor. At this meeting the parties agreed on all issues. McCann asked Estock if he would sign a handwritten memorandum embodying the terms agreed on. Estock replied he would rather have the memorandum typed. McCann told Estock he would prepare a typed draft. Just prior to the end of the session, Association repre- sentatives asked Perkins if the unit employees could hold - HIGHLAND HOSPITAL 759 a ratification vote at Respondent's facility. Perkins agreed and a date for such vote was arranged. It does not appear that ratification was made a condition prece- dent to execution of a collective-bargaining agreement. On February 15 McCann sent Estock a typed copy of the agreed-on contract modifications. On February 19 the unit employees ratified the pro- posed contract.4 On March 26 Estock replied to McCann's February 15 memorandum of agieement by a letter in which he set forth the items in McCann's draft that needed some minor change or clarification. As to these items, Estock set forth his proposed changes that would clear up the above 10 items. One of these 10 items related to addition- al language concerning "on call pay." Which language Estock admitted was not discussed in the negotiations. His letter concluded: Except as noted above, I believe the Memoran- dum accurately reflects the parties' agreement If you have no objections to my changes, please incorporate them into a Memorandum and I will have the Hospital sign it. On April 10 McCann responded to Estock's March 26 letter as follows: In response to your letterL of March 25, 1985, I am in agreement on all items with exception of 10.08 On Call. Since we never discussed this item I would rather leave it alone. If the policy is as you stated and that is the way it was always handled, we should have no problem. I have taken the liberty of incorporating all other items in the proposed memo, plus your suggested changes, into a contract. As soon as it is completed I will forward it to you for the Hospital to sign. On May 8 McCann sent Estock copies of a collective- bargaining agreement that reflected the parties' agree- ment of February 8 coupled with Estock's proposed changes described in his March 26 letter for signature. On May 13 Estock by telephone informed McCann that based on the issuance of North Shore H Respondent was submitting a motion to revoke the Association's cer- tification. However, Estock told McCann that all con- tract modifications agreed on during the negotiations would continue. On May 22 McCann, by letter to Estock, again de- manded Respondent sign the agreement. On May 30 Respondent received a petition signed by a majority of the bargaining unit rejecting the Association as the collective-bargaining representative. On June 10 Respondent withdrew recognition. At no time prior to the trial of this case did Respond- ent contend that the prepared agreement submitted by McCann on May 8 did not accurately reflect the parties' 4 McCann had supplied unit members with copies of his February 15 letter to Estock prior to such ratification vote. final agreement reached on February 8. 5 Similarly, at no time prior to the trial did Respondent contend that the agreement had not been ratified or that Respondent had no notice of such ratification. As set forth above it does not appear that such ratification was a condition prece- dent to execution of the agreement by Respondent. It is established that an employer violates Section 8(a)(5) of the Act by refusing to execute a written con- tract incorporating the terms agreed on with a union, H. J. Heinz Co. v. NLRB, 311 U.S. 541 (1941), the diffi- culty sometimes is establishing whether the terms are in fact agreed on. I have no difficulty in concluding that an agreement was reached by February 15 at which time the oral agreement reached on February 8 was reduced to writ- ing by the Association and mailed to Estock, Respond- ent's attorney. This is established by Estock's letter dated March 26, in which he indicated that the Association's draft accurately reflected the parties' agreement reached on February 8, except for nine minor language changes suggested. The letter concluded that if the Association had no objection to these changes, Respondent would sign the agreement. Respondent's March 26 letter, in my opinion, was in compliance with Respondent's obligation to assist the Association in reducing the agreement reached on February 8 to writing and to thereafter exe- cute such agreement. Kenneber Beverage Co., 248 NLRB 1298 (1980), and cases.cited therein. Respondent cannot contend that the nine suggested language changes pro- posed to clear up minor ambiguities or inadvertent lan- guage imissions established that there was an absence of agreement as to such terms. The Board has held that such ambiguities or language omissions in a draft propos- al is not indicative of a lack of agreement, but rather matters that would presumably be worked out at the time the contract was reduced to a fmal writing for sig- nature. John Morrell ci Co., 268 NLRB 304, 307 (1983); Georgia Kraft Co., 258 NLRB 908, 912 (1981). In fact the facts establish that McCann agreed to all nine requested changes in his April 10 letter to Estock and that such changes were incorporated in his draft contract proposal submitted to Respondent on May 8. Respondent contends that there was no agreement on the 10th item of Respondent's March 26 letter concern- ing a proposal for "on-call" pay. However, Estock can- didly admitted that this subject had not been discussed during negotiations. Under these circumstances Respond- ent cannot insist on acceptance of such proposal by the Association as a condition precedent to its duty to exe- cute the otherwise agreed-on written agreement submit- ted by the Association, Cutter Laboratories, 265 NLRB 577, 579 (1982). Moreover, McCann in responding to Es- 5 During the trial of this case Respondent counsel raised for the first time during his cross-examination of McCann an Inadvertent deletion of a paragraph relating to the discipline of provisional employees and the in- advertent deletion of six words relating to court appearances. It is clear from the record that these deletions were inadvertent, discussed during trial preparation, and would have been routinely corrected if the agree- ment had been signed. It is obvious that Respondent's refusal to sign the agreement was in no way predicated on such inadvertent errors and I do not consider them in my discussion of Respondent's obligation to sign this agreement. 760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tock's proposal concerning the "On-Call" provision by his April 10 letter stated, "If the policy is as you stated and that is the way it was always handled, we should have no problem." Thus, the Association expressed a clear intention to accept Respondent's proposal but not to include it in the contract because it was not discussed during negotiations. Respondent contends that the employees' petition signed by a majority of unit employees indicating that they no longer wished to be represented by the Associa- tion was sufficient evidence of the Association's lack of majority status to allow Respondent to withdraw recog- nition. The evidence is clear that an agreement was reached between the Association and Respondent on February 8, and such agreement was effectively reduced to writing by the McCann's April 10 letter to Estock accepting his nine proposed language changes. At the very latest an agreement was submitted to Respondent together with a demand that such agreement be executed on May 8. It was not until May 30 that the employees' petition was submitted to Respondent. The Board has consistently held that when a decertification petition has been filed after final agreement on the substantive terms of a collec- tive-bargaining agreement, regardless of the status of any written instrument incorporating such agreement, an em- ployer may not lawfully refuse to bargain based on what otherwise might be a lawful belief that the Union has lost its majority status, North Bros. Ford, 220 NLRB 1021, 1022 (1975). Respondent contends that ratification by the Associa- tion was a condition precedent to execution. The facts do not appear to support this contention. In this connec- tion Estock's March 26 letter stated the Respondent would sign the agreement if the Association agreed to the language changes proposed in the letter. There was no mention of ratification being a condition for signature in this letter or any evidence prior to or subsequent to the March 26 letter that ratification was such a condition precedent. In any event the contract was ratified by the unit members on February 19 prior to the Association's demand that Respondent sign the agreement. Where the agreement is binding on ratification by unit employees, the agreement becomes effective on ratification and "it is immaterial that the [employer] may not have been noti- fied of the ratification prior to its attempt to revoke its contract offer." Felbro, Inc., 274 NLRB 1268 fn. 2 (1985). Accordingly, I find no merit to Respondent's contention. I conclude that the parties reached an agreement to all terms of a collective-bargaining agreement on February 8 and that such agreement was reduced to a writing on April 10 and that Respondent was obligated to sign such agreement on May 8. I further conclude that by refusing to execute such agreement, Respondent violated Section 8(a)(1) and (5) of the Act. I also conclude that Respondent's motion to revoke the Association's certification should be denied. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Association is a labor organization within the meaning of Section 2(5) of the Act. 3. The appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act is: All full-time and regular part-time employees li- censed or otherwise entitled to practice under a permit as a registered professional nurse employed by the employer to perform registered professional nursing including staff nurses and assistant head nurses; excluding director of nursing, assistant direc- tor of nursing, nurse supervisors, assistant supervi- sors, head nurses, employee health care nurse, in- service nurse, nurse purchasing agent, service and maintenance employees, technical employees, li- censed practical nurses, graduate practical nurses, business office clerical employees, other professional employees, guards and supervisors as defined in the Act. 4. At all times material the Association is and has been the exclusive representative of all the employees in the above unit for the purposes of collective bargaining within the meaning of Section 9(a) and Section 8(a)(5) of the Act. s 5. By failing and refusing to execute the collective-bar- gaining agreement between the Association and Re- spondent on April 10 as agreed on by the parties on Feb- ruary 8, 1985, Respondent has engaged in and is engag- ing in an unfair labor practice within the meaning of Sec- tion 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend Respond- ent to cease and desist therefrom and to take appropriate remedial action to effectuate the policies of the Act. Re- spondent will be directed to reduce to writing and exe- cute the April 10 collective-bargaining agreement, on the Association's request, and to bargain with the Associa- tion as the exclusive representative of the employees in the unit described above. While I am cognizant of the fact that the complaint does not allege that any employ- ees have suffered financial losses as a result of Respond- ent's unlawful refusal to reduce to writing and sign the collective-bargaining agreement reached February 8, 1985, in order to assure that the policies of the Act are effectuated I shall recommend Respondent to give retro- active effect to the contract to the extent it has failed to do so, and to make whole any employees who may have sustained monetary losses, with backpay to be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), with interest thereon as set forth in Florida Steel Corp., 231 NLRB 651 (1977).6 6 See generally Isis Plumbing Co., 138 NLRB 716 (1962) HIGHLAND HOSPITAL 761 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7 ORDER The Respondent, Highland Hospital, Beacon, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the Association and refus- ing to reduce to writing and sign a collective-bargaining agreement reached by the parties on February 8, 1985. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request of the Association, sign, and give retro- active effect to the collective-bargaining agreement reached by the parties on February 8, 1985, and submit- ted on April 10, and make whole any employees covered by the contract for any monetary losses they may have suffered as a result of Respondent's refusal to reduce to writing and sign the contract in the manner set forth in the remedy section of this decision. (b) On request, bargain with the Association as the ex- clusive representative of all employees in the unit de- scribed below: All full-time and regular part-time employees li- censed or otherwise entitled to practice under a permit as a registered professional nurse employed by the employer to perform registered professional 7 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided m Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. nursing including staff nurses and assistant head nurses; excluding director of nursing, assistant direc- tor of nursing, nurse supervisors, assistant supervi- sors, head nurses, employee health care nurse, in- service nurse, nurse purchasing agent, service and maintenance employees, technical employees, li- censed practical nurses, graduate practical nurses, business office clerical employees, other professional employees, guards and supervisors as defined in the Act. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Beacon, New York place of business copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcmg an Order of the National Labor Relations Board."