Riverside Community Memorial Hospital

National Labor Relations Board - Board Decisions

Aug 4, 1980

250 N.L.R.B. 1355 (N.L.R.B. 1980)

RIVERSIDE COMMUNITY MEMORIAL HOSPITAL
Riverside Community Memorial Hospital, Inc. and
Waupaca Federation of Professional Nurses,
American Federation of Teachers, AFL-CIO,
Petitioner. Case 30-RC-3709
August 4, 1980
DECISION AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered determinative chal-
lenges in an election held on March 17, 1980,' and
the Hearing Officer's report recommending disposi-
tion of same, relevant portions of which are at-
tached as an appendix. The Board has reviewed the
record in light of the exceptions and briefs, and
hereby adopts the Hearing Officer's findings and
recommendations. 2
DIRECTION
It is hereby directed that the Regional Director
for Region 30 shall, pursuant to the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, within 10 days from the date of this De-
cision and Direction, open and count the ballots of
Dorothy Hansen and Linda Perry, and thereafter
prepare and cause to be served on the parties a re-
vised tally of ballots, including therein the count of
said ballots. Thereafter, the Regional Director shall
issue the appropriate certification.
MEMBER JENKINS, dissenting in part:
The Petitioner has challenged the ballot of Linda
Perry on the grounds, inter alia, that she is the wife
of Charles Perry, the Employer's administrator. I
agree with the Petitioner's contentions in this
regard, and would find her ineligible to vote in the
present election.
The Employer, a nonprofit corporation, has con-
tracted with Hospital Affiliates International for
the services of an administrator to oversee the Em-
ployer's operation. Charles Perry is the Employer's
administrator under this arrangement. As the ad-
ministrator, Perry is actively engaged in formulat-
ing and implementing the Employer's labor rela-
tions policies, including those covering the terms
and conditions of employment of Linda Perry.
I The election was conducted pursuant to a Stipulation of Certification
Upon Consent Election The tally was II for, and 9 against. the Petition-
er, there were 3 determinative challenged ballots
a In the absence of exceptions thereto. we adopt, pro forma, the Hear-
ing Officer's recommendation that the challenge to the hallot of Lola
Hansen be sustained.
250 NLRB No. 166
As stated in my dissent in Pargas of Crescent
City, Inc., 194 NLRB 616 (1971), the marital rela-
tionship shared by the two Perrys suffices to pre-
clude Linda Perry from being an "employee"
under Section 2(3) of the Act, where her husband,
Charles Perry, is engaged as the Employer's man-
ager. I would further exclude Linda Perry from
the unit of employees on "community of interest"
grounds. As the spouse of the administrator, she
enjoys a unique access to management. While such
access has not yet resulted in the enjoyment of
"special status" regarding her terms of employ-
ment, it obviously has an impact on her perceived
need for a statutory representative to deal with
management. Further, there exists the potential that
her inclusion in the unit would hinder unit employ-
ees from engaging in collective bargaining, because
of perceptions that her interests are more aligned
with those of management and that information
made known to her during her participation in
union matters would be passed on to the Employ-
er. In these circumstances, I would sustain the
challenge to the ballot cast by Linda Perry, and
direct that it remain unopened and uncounted. 3
3 See also my dissenting opinions in Weyerhauwr Companv. Sofi Dispos-
ubh, Division, 211 NL.RB 1012 (1974) royo .a idion. In. In, 233 NlRB
797 (1977). and lops Club In(-, 238 NLRB 928 (19781
APPENDIX
Linda Perry:
Linda Perry's ballot was challenged by the Petitioner
on the dual grounds that she is an "on-call," casual em-
ployee and the wife of administrator Charles Perry. The
Employer contends that Linda Perry is a regular part-
time employee who does not enjoy special status because
of her spouse.
Linda Perry began her employment with te Employer
in June 1979. She worked as a registered nurse on a part-
time basis until January 1980. Since January, she has
worked on a strictly "on-call" basis as a registered nurse
in maternity on the II p.m. to 7 a.m. shift. She assumed
her present duties and work schedule at the behest of the
Employer because there was a need for additional nurs-
ing coverage on that shift. She is the only registered
nurse regularly scheduled on the monthly work schedule
who is only on an "on-call" basis. Other registered
nurses forming a "float pool" do, in addition to their reg-
ular work schedule, on occasion and short notice (8 to
16 hours), work on an "on-call" basis. Her compensation,
privileges, and other benefits of employment, including
insurance options and leave without pay, are the same as
those available to other registered nurses. She is super-
vised in a customary way by the customary supervisors
of other registered nurses.
Linda Perry worked 8 hours during the 2-week pay
period ending January 12; 8 hours during the 2-week pay
period ending January 26; and 19-1/2 hours during the 2-
week pay period ending February 9, the eligibility date.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This factorizes to approximately 6 hours of actual work
per week from the time she began to work on a strictly
"on-call" basis to the eligibility date. During the same
period, she was scheduled to be "on-call" a total of 60
additional hours for which she was compensated at the
usual "on-call" rate. During the 14 weeks preceding the
eligibility date, she worked a total of 85.25 hours, an
average of approximately 6 hours per week.
Linda Perry's husband is the administrator. He is em-
ployed by Hospital Affiliates International which has a
contract with the Employer to supply an administrator
to oversee the Employer's operation. Neither Linda
Perry nor her husband have any ownership interest in
the Employer, a nonprofit corporation. Linda Perry's
husband has never directly supervised her work. To the
date of hearing in this case, there was one on-the-job
contact between Linda Perry and her husband.
The Board holds that "on-call" employees who aver-
age 4 hours or more of work per week during the quar-
ter prior to the eligibility date, enjoy a sufficient commu-
nity of interest to be eligible to vote. The May Depart-
ment Stores Company, 175 NLRB 514, 517 (1969); Davi-
son-Paxon Company, 185 NLRB 21, 23 (1970). Linda
Perry meets this test. Linda Perry also more than meets
the eligibility requirement of "on-call" registered nurses
the Board included in a unit of registered nurses based
on working 30 or more hours in an 11-week period.
Newton-Wellesley Hospital, 219 NLRB 699, 703 (1975).
The Board has held that the employee-wife of a nonown-
ing manager is eligible to vote if she does not enjoy spe-
cial status. Pargas of Crescent City, Inc., 194 NLRB 616
(1971). In the Linda Perry matter, the only indication of
special status is her strictly "on-call" work schedule,
which appears not at all special in view of the number of
hours she works on a prearranged and regular basis. I
will, therefore, recommend that the challenge to the
ballot of Linda Perry be overruled.
CONCLUSION AND RECOMMENDATION
Having found that Lola Hansen is not an eligible
voter, I recommend that the challenge to her ballot be
sustained. Having found that Dorothy Hansen and Linda
Perry are eligible voters, I recommend that the chal-
lenges to their ballots be overruled and that their ballots
be opened and counted and that a revised tally of ballots
be issued.
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