Sierra Vista Hospital, Inc.

National Labor Relations Board - Board DecisionsAug 31, 1976

225 N.L.R.B. 1086 (N.L.R.B. 1976)

1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sierra Vista Hospital, Inc. and California Nurses' As- sociation, affiliated with the American Nurses' As- sociation , Petitioner . Case 31-RC-3166 August 31, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on June 5, 6, and 7, 1975. Following the close of the hearing, the Regional Director for Region 31 issued a Decision and Direction of Elec- tion finding, inter alia, that the Petitioner is a labor organization within the meaning of the Act and di- recting an election in a unit consisting of registered nurses. Thereafter, the Employer filed a request for review of the Regional Director's decision on the grounds that the Regional Director departed from officially reported Board precedent and made erro- neous factual conclusions, and that there were com- pelling reasons for reconsideration of the Board rules or policies concerning the status of organizations such as this one. On September 9, 1975, the National Labor Relations Board denied the Employer's re- quest for review as it raised no substantial issues war- ranting review. However, the Board noted that "in the event the Petitioner is certified and does not dele- gate its bargaining authority to a local autonomous chapter controlled by nonsupervisory employees, a motion to revoke the certification will be enter- tained." An election was held on September 4, 1975, in which a majority of the votes were cast for the Peti- tioner. On September 12, 1975, the Petitioner was certified as the exclusive collective-bargaining repre- sentative of the Employer's registered nurses.' Fol- lowing a request for bargaining by the Petitioner, the Employer, on October 29, 1975, filed with the Board a motion to revoke certification alleging that the Pe- titioner had failed to delegate its bargaining authori- ty to a local autonomous chapter controlled by non- supervisory employees. On January 30, 1976, the Board, having concluded that the Employer's motion raised substantial issues which could best be resolved at a hearing, remanded the case to the Regional Di- rector for the purpose of adducing further record evi- dence with respect to the issues raised in the motion.2 Specifically, the Board noted its interest in evidence 1 The certified bargaining unit consists of "All Registered Nurses, exclud- ing all other employees , office clerical employees , guards and supervisors as defined in the Act " concerning "(1) a definition, with specificity, of the bargaining process, including what powers, if any, the state Nurses' Association has in determining the composition of the negotiating committee and the authority, if any, of the state Nurses' Association with respect to approval or disapproval of a final agreement, if one be reached; (2) the degree of parti- cipation, either direct or indirect, of supervisory nurses in the bargaining process; and (3) such other evidence as may be deemed relevant." Thereafter, a hearing was held on March 29 and 30, 1976, before Hearing Officer John Prough of the National Labor Relations Board. Following the close of the hearing, and pursuant to the direction of the Board, the in- stant proceeding was transferred to the Board for de- cision. 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 reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: The Employer contends that Petitioner has not delegated its bargaining authority to a local autono- mous chapter and that supervisory employees partic- ipate in the bargaining process within the meaning of Annapolis Emergency Hospital Association, Inc., d/b/a Anne Arundel General Hospital.3 The record indicates that the Petitioner (hereinaf- ter referred to as CNA), a statewide constituent of the American Nurses' Association, is a professional association of registered nurses, including registered nurses in supervisory positions. CNA exists, in part, to provide assistance to local groups of registered nurses who are seeking to become recognized or have been recognized for collective-bargaining purposes. The CNA's board of directors consists of 4 officers and 11 other directors. While the record is conflicting as to the exact number of directors who hold supervi- sory positions in various hospitals or health care in- stitutions-the Employer contends it is five, the Peti- tioner one or two-it is undisputed that none of them is employed in any capacity by the Employer. Fur- thermore, the Employer concedes that the directors, either individually or collectively, do not participate in actual negotiations, do not determine the composi- tion of local negotiating teams, and do not pass upon' the terms of contracts.4 2 Member Jenkins , dissenting, would have denied the motion '217 NLRB 848 (1975) a The Employer adduced testimony from the executive director of the CNA, a member of the board of directors, that she participated in strike negotiations during 1974 , prior to the Petitioner 's certification in the instant 225 NLRB No. 155 SIERRA VISTA HOSPITAL 1087 CNA's collective-bargaining arm is its Economic and General Welfare Program (hereinafter referred to as the EGW). Through its staff of professional negotiators, the EGW provides assistance to local bargaining units in connection with collective-bar- gaining negotiations. Diana Fivey, acting director of the EGW Program since December 1975, testified that the EGW's role in the collective-bargaining pro- cess is limited to an advisory function only.5 Thus, after the Petitioner is certified as the collective-bar- gaining representative for a local unit of registered nurses, as here, an EGW staff negotiator meets with the membership of the local unit to discuss contract proposals. The staff negotiator may show the nurses language from other contracts and/or offer sugges- tions as to contract language. Although the staff neg- otiator may attempt to convince the nurses to agree to include a particular proposal among their bargain- ing demands, the record indicates that the EGW does not have any established bargaining priorities and that the final determination of the contents of the unit's bargaining proposal is made solely by the nurses in the local unit. Thereafter, the EGW staff negotiator reduces the authorized contract proposals to writing and sends a copy to the employer request- ing bargaining. Prior to the commencement of nego- tiations, the membership of the local unit elects a negotiating team, comprised solely of unit members, which meets with the staff negotiator to discuss bar- gaining strategies suggested by the latter. The record establishes that the negotiating team members need not necessarily agree to the strategies suggested by the staff negotiator, and that no posi- tions may be taken or concessions made during ne- gotiations without the approval of the negotiating team. The negotiating team is present at all bargain- ing meetings including some, but not all, "side bar" meetings where bargaining issues are informally ex- plored by the EGW's representative with the employer's bargaining representative. Once the con- tract terms are settled upon at the bargaining table, proceeding However , there was no testimony that, since the Petitioner's certification , any members of the board of directors have participated, in their capacity as board members, in any collective-bargaining or strike ne- gotiations Two directors , who are nonsupervisory staff nurses at their re- spective places of employment, participated, as members of their local bar- gaining teams , in negotiations for their respective local units 5 The Employer adduced testimony from Kenneth E Leever, a former staff member of EGW, regarding his role in EGW organizing and negotiat- ing activities However, inasmuch as Leever's testimony relates solely to his tenure as an EGW staffer, which terminated in July 1975, prior to the Petitioner's certification in September 1975, we do not regard Leever's ac- count of the EGW's role in the bargaining process as an accurate reflection of that role since the Petitioner 's certification As indicated in the Board's telegram directing the hearing in the instant case, the Board is concerned with the Petitioner ' s present role in the bargaining process Generally, Leever's testimony was contradicted by that of Fivey whose testimony, as related above, deals specifically with the postcertification process the EGW's staff negotiator draws up the contract, ironing out any language differences directly with the employer's representative. After the written contract is approved by the EGW's director, the provisions of the contract are presented to the membership of the local unit for ratification. Once ratified by the local membership, the contract is executed by the employ- er and the director of EGW and/or the staff negotia- tor who took part in the negotiations. With respect to the unit herein, there is no direct evidence that the membership has formulated con- tract proposals or has elected a negotiating team to participate directly in contract negotiations . Howev- er, Fivey testified that her above description of the bargaining process applies to this unit as well as all others, and there is nothing in the record to dispute her testimony. Thus, we find that this unit has par- ticipated or will participate in the bargaining process at least to the same extent as the pattern and practice of bargaining described by Fivey indicates. Based on the record before us we are also satisfied that the approval of the unit's membership will be obtained before any contract that may be negotiated becomes final and binding on the parties. Notwithstanding the above facts showing delega- tion, the Employer contends that the collective-bar- gaining process outlined therein is not sufficiently in- dependent from the influence, domination, and/or control of individuals in the CNA hierarchy, includ- ing the EGW staff and the board of directors, to war- rant our finding that the CNA has delegated the exercise of its bargaining authority to a local auton- omous chapter; namely, the unit involved in this case. We disagree. Our assessment of the present situation leads us to conclude and find that the local units of the CNA are not, with respect to the bargaining process, under the control, domination, or influence of the CNA hierar- chy, supervisory or otherwise. Local units, such as this one, formulate their own bargaining demands and select negotiating teams from their ranks to par- ticipate in negotiations. They also ratify any tentative agreements reached without interference or veto by the CNA. Once a contract is ratified, CNA's execu- tion of it constitutes nothing more than a formality. As for the assistance provided by the EGW staff, the evidence establishes, and we find, that it is advisory and technical in nature and does not infringe upon or diminish a unit's control over local bargaining matters or its responsibility therefor.' Indeed, the EGW operates as a separate arm of the CNA free of any real or potential control by the latter's board of directors. True, those directors promulgate general 6 Sisters of Charity of Providence, St Ignatius Province, d/b/a St Patrick Hospital, 225 NLRB 799 (1976) 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EGW and collective-bargaining policies, hire the di- rector of EGW and require that individual to make periodic reports to them, and allocate moneys to the EGW and its programs. But such general policymak- ing functions, inherent in any board of directors, is far removed from the specific type of supervisory in- fluence or control with which the Board was con- cerned in Anne Arundel, supra. Furthermore, despite the reporting requirement and the directors' control of the purse strings through the allocation of funds, the record establishes that the staff of EGW acts in- dependently in its implementation of those policies and in the conduct of actual negotiations. Lastly, none of the staff negotiators of EGW is employed in any capacity by any hospital or health care institu- tion. Accordingly, we find that the CNA has effectively delegated its collective-bargaining authority, which it acquired by virtue of the Board 's certification here, to an autonomous local unit of nonsupervisory regis- tered nurses , and that said local is properly exercising this authority on its own behalf .' Therefore, we find no merit to the Employer's contention that Petitioner (CNA) is disqualified to act as the representative of the unit herein , and we shall deny the Employer's motion to revoke certification. ORDER It is hereby ordered that the Employer's motion to revoke certification be, and it hereby is, denied. 7 Annapolis Emergency Hospital Association, Inc, d/b/a Anne A rundel Gen- eral Hospital, 217 NLRB 848 (1975), Oak Ridge Hospital of the United Meth- odist Church, 220 NLRB 49 (1975), St Rose de Lima Hospital, Inc, 223 NLRB 1511 (1976)