Arlington Hospital

National Labor Relations Board - Board DecisionsDec 14, 1979

246 N.L.R.B. 992 (N.L.R.B. 1979)

I)E'CISIONS OF NATIONAI I.ABOR RI.A'IO()NS BOARD The Arlington Hospital Association, Inc., t/a Arling- ton Hospital and District of Columbia Nurses Asso- ciation a/w American Nurses Association, Peti- tioner. Case 5-RC 10158 December 14, 1979 DECISION ON REVIEW AND ORDER BY CHAIRMAN FANNING ANDI) MEMBERS JENKINS AND) PNEI.I.() On December 16, 1977, the Regional Director for Region 5 issued a Decision and Direction of Election in which he found, inter alia, that the Petitioner (herein also called DCNA) is qualified to represent the petitioned-for unit of the Employer's registered nurses, and could be properly certified as the repre- sentative of these employees. Thereafter, in accord- ance with Section 102.67 of the National Labor Rela- tions Board Rules and Regulations. Series 8. as amended, a request for review of the Regional Direc- tor's decision was timely filed by the Employer, alleg- ing, inter alia, that the Petitioner is impermissibly controlled by supervisors, and has delegated its col- lective-bargaining authority to another entity to such a degree as to deprive it of the legal capacity to act as a collective-bargaining representative. The Employer thus contends the Regional Director erred in failing to dismiss the petition. The Petitioner filed a state- ment in opposition to the request for review. By telegraphic oder dated January 11, 1978. the Board granted the request for review, insofar as it raised substantial issues regarding the status of the Petitioner. Thereafter, on March 30, 1979, the Board issued its Supplemental Decision and Order in Sierra 'ista Hospital. Inc., 241 NLRB 631, in which it set forth its policy regarding conflict-of-interest issues raised by the active participation of supervisors of the employer with whom a labor organization seeks to bargain, or of third parties, in the internal affairs of state nurses associations. Inasmuch as issues of this nature are raised in the instant proceeding, the Board, by order dated June 25, 1979, afforded the parties the opportu- nity to submit statements of position on these issues in light of Sierra Vista. The Board also advised the parties that, upon a proper showing, it would enter- tain a request fr further hearing. The Employer and the Petitioner submitted timely statements of posi- tion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case, including the parties' briefs on review and state- ments of position, and makes the fllowing findings: DCNA. a state affiliate of the American Nurses Association, is a professional association of registered nurses. including registered nurses in supervisory po- sitions.' The organization includes a hoard of direc- tors, which is comprised of nine directors elected by vote of the total membership, the immediate past president of the Association, and the five current offi- cers. The board of directors transacts all the busines of' the Association. The president, inter alia, serves as chairman of the board, appoints various committees and councils, and is an ex officio member of those committees and councils. Although nurses holding supervisory positions with employers are members of the Petitioner and are eligible to hold office and serve on the board of directors, no officers or board mem- bers are supervisors employed by the Employer. Moreover, the record fails to reveal that any members of the board of directors occupy supervisory positions with any employer in the health field.2 According to its bylaws. DCNA exists, in part, to promote the economic and general welfare of nurses. The bylaws establish a Council on Economic and General Welfare (hereafter EGWC), which is in- tended to "define, develop, budget. implement, and evaluate DCNA activities and policies relating to the economic and general welfare of nurses .... The EGWC is responsible, inter alia. for DCNA's collec- tive-bargaining activities, and is empowered to recog- nize and charter local units and to prepare rules and guidelines for these units to assure conformity with DCNA policies. It is comprised of five at-large mem- bers elected by the nonsupervisory members of DCNA and the chairperson of each established local unit, who is elected by local unit members. Member- ship in, and election to, the EGWC is limited to non- supervisory nurses. Under the bylaws, the EGWC is the only council or committee which is not accountable to DCNA's board of directors. It is responsible for developing its own budget, which is then submitted to DCNA's fi- nance committee. The finance committee, which ad- mits supervisors to membership, reviews the budget request and, if acceptable, it is incorporated into the total DCNA budget. Unresolved budget conflicts are presented to the non.supervisorv membership at a spe- cially called meeting for their review and determina- Apprioximatelk one-fourth of he Petitioner's approximatlly 1,60(1 nlem- hers hold superv isr positions wih emplosers. 2 ('rlclo)H . llettioner's issociate executive director ior economic and gen- eral elare. testified Ih;it he "beheved" there ere n nurse superlso,)r on the board of directors "in terms of orking tor a hospital." and that he did nit knov ift lin board members wre superisiors of anvy mplroer in the "health field." I he Il llpliyer has itTered no specific proolf , the contrary. 246 NLRB No. 159 992 ARI.INGTON HOSPITA. tion. 'hus. should the finance comnmittee refuse to allocate requested funding. the E(W(' is required to submit the conflict to DCNA's nonsupervisory memn- hership. which is empowered to allocate the flunds. Moreover. the EGW(' receives funds from sources other than DCNA membership dues, such as in- dependent fund-raising activities and a grant from the American Nurses Association, and is authorized to levv an assessment fee on local units.4 lIocal units, which are designated by the name of the institution where bargaining is sought. must he composed of at least 20 percent DCNA members in order to receive organizing and staff' assistance fromn the (GWCW('. The record estahlishes that a local unit develops its o n hbylaws and committees and selects its o,\kin officcrs. \lembership in each local unit is re- stricted to nonsupervisor, emplo.ees. Wilth respect to the cllectiv-ha rgiaining process. each local unit pro- poses its oxA n contractual goals. appoints or elects a negotiating committee consisting of at least five unit members. and processes grievances. The assistant ex- ecutive director for the E(iW('" ser es itas the chief negotiator for each local unit, and thus directly assists local units in the development of bargaining objec- tives and during negotiations. inal contract ratifica- tion is the responsibility of the local unit. which is free to accept or reject the assistant executive director's suggestions. Hlovwever, local units are required. pursu- ant to D[CNA's laws and the EGWC's policy state- ment. to conform to DCNA policies and LEGWC rules. ailure to conf)orm to such policies and rules can result in revocation of a unit's charter by the EGWC. The board of directors of DCNA plays no role whatsoever in the collective-bargaining process. In its brief on review, the Employer contends the petition herein must be dismissed because the DCNA has delegated its collective-bargaining function to such a degree as to deprive it of the legal capacity to act as the collective-bargaining representative of the employees sought by the petition. In support of this position, the Employer cites N.L.R.B. v. Annapolis Emergenc, Hospital Association, Inc. d/ha Anne Arundel General Hospital, 561 F.2d 524 (4th Cir. 1977) (hereinafter Anne Arundel ). Alternatively, the I The previous bylaw provision. In effect at the time of the hearing in this case, provided for submission of budgetary disputes to the total membesrship. including supervisors According to the Petitioner. the current provision was adopted by the total membership at an annual meeting subsequent to this hearing I In addition to its collective-bargaining functions. the EC'( acts for the total membership of DCNA in defining and developing other economic and general welfare matters. Thus, the EGWC has established a credit union. has made recommendations for malpractice insurance, and has adopied various other resolutions Bylaw amendments proposed by the EGWC are submitted directly to the total D)CNA membership. The Board of directors has no authority to review or reject such proposals This Individual ,i applinted b the (iWC, which defines his dutie. aind fixes his compensation Employer contends the presence of supervisors in the Petitioner creates the potential for employer domina- tion, and incapacitates DCNA from acting as a col- lective-bargaining representative. In its statement of position. the Employer further contends that. "inas- much as the underlying proceedings in this case did not deal with the issues of supervisory participation which are now designated by the Board in Sierra lis/a as determinative." the Board should remand the case for a further hearing. Contrary to the Employer. the Petitioner contends there is no possibility of su- pervisory domination in the DI(NA. and that, there- fore, the conflict-of-interest issues do not exist herein. Additionally. the Petitioner contends that the E'm- plover has failed, as required hb Sierra I'ista,. to sus- tain its heavy burden of establishing a disqualilfing conflict of interest, and that a further hearing is un- necessary since "the Board has beft)re it now a full record from which it can determine" the conflict-of- interest issues raised. Finalls. the Petitioner contends its present structure is designed to, and does avoid. the legal deficiencies found b the Fourth Circuit Court of' Appeals in nnc .4rllundel. In Bapi.st otpilat[, Inc., d/bi/a ' 1'e.s/cr Blixi IoAvill 246 NILRB 170 (1979). the Board held. in circumstances quite similar to those herein. that the Kentucky Nurses Association was not disqualified because of' an alleged conflict of' interest from repre- senting the emplojer's employees in collective bar- gaining. The Board founld the employer had fauiled to sustain the burden required by Sierra l'i.vlt of show- ing that "there is a clear and present danger of a conflict of interest which compromises [Petitioner's] bargaining integrity." ' I.argely for the reasons set forth in WIe.crn Bapltih. supra, we find that a further hearing is unwarranted., and that the D('NA is not disqualified because of an alleged conflict of interest from representing the Employer's employees. As in Western Baptist, the EGWC here is insulated from both supervisory influence and participation. More- over, ultimately the supervisory members of DCNA cannot exercise fiscal control over the Petitioner's col- lective-bargaining activities, and have no authority to control the EGWC assistant executive director's role in negotiations. With respect to the Employer's "delegation" argu- ment, we note that in Sierra 'i.ista, supra, the Board decided to abandon the "conditional certification" approach which the court in Anne Arundel found was "illogical and illegal." The Board's focus is on W6 1estern Baptist, upra, quotling from Sierra I ra lopirtal. upra at 635 7The Employer has failed to adduce probalive eidence to uhbstantiate its claim that a further hearing s warranted R The Employer contends that supers lor Ins olvement exists n that the total menmberhip of L)( NA retains the per to revise the hlas:s and thus could vote to dsestahihh the C -( ( W re ind this conten ll.n Ito he wllho ul merit a such ,ccurrence is speculatlve 993 I[)l('ISI()NS 01' NA IONAL I.ABO()R RI.A II()NS BO()ARI) whether or not supervisory participation in a labor organization's internal affairs "presents a clear and present danger of' intererence with the bargaining process."' We have concluded that DCNA is not dis- qualified because of a conflict of interest from repre- senting the [!mployer's employees. This conclusion is based on the record evidence, which indicates that there is nothing in I)('NA's organizational structure which allows interferences by supervisors in the col- lective-bargaini ng process. The fact that I)('NA has chosen Io allocate its collective-bargaining responsi- bilities to the GiW(' and the local unit does not. in our iest. disqualit' it tr'onl receinilng Board certitica- tion a the representative ofl' the I'mplocr's emplo_- cts. Rather. we view the present stiructure of [)(C'N as a reasonable response t ithe I)prblcmll of' supel'ri- sory intluence addressed h the Board in the Im1r' ,A4ril/ case. siqla, hut withoutt the pititils created by the "conditional certification" approach pr\ei- ouslk endorsed bh the Board. Thus. while the (iW(' is, as the mrnployer contends, in manl respects an .S'.rr, | I, .2. q- r,i Lit 614 "autonomous" enti t., and while the local unit "in- dependently" determines its bargaining goals and processes its own grieances, both of these entities operate within the framework oi' [)DCNA and pursu- ant to its guidelines and rules. At the same time, the collective-bargaining function is insulated from su- pervisor_ influence. We find, therehore no merit to the mnploer's "''lelegation''" agrument. Based on the ki'regoing. and the record as a whole, we find that the Petitioner is qualified to represent the lmployer's employees, and can he legalls certified as their collective-bargaining representati\ e. it selected b' the unit employees. Accordingkl, the Regional Director's I)ecision and D)irection of Election is hereb\ afllirmed, ias modified Icl''ll. OKRI)ER It is hereb\ ordered that this case be remanded to the Regional I)irector 'for the purpose of'opening and counting the impounded ballots and for further ap- propria te action. 994