Sierra Vista Hospital, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1979

241 N.L.R.B. 631 (N.L.R.B. 1979)

INC. 1
Nurses*
Asso- 8(a)(5) (1)
ciation. -CA-5760 -RC-3 166'
Summarv
o n ~ i i l
Or-
1 -RC-
alia,
influ-
bona
dated
nonsupervisory'
CNA's
pr~cess.~
OrderJ In
nonsupervi-
discussed Board nqrm
procadingo Case effectuate
purporea unnecessary cosu CIsa 1
arc hereby consdidacad.
Member Jenkinr. dissenting, h v e
' 1086. herein Vista
' 225 1088.
filed crk-petition
A p
Inc6 Anmdel),
Inc., d /b /a
Arundel
Arun-
&&
mem-
bers."We 2(4)
petitioning."I0
Arundel
' 232. S k m If. Boud
Decisions incorrectly Iuu fonner Member Walther, instud
Decimon.
' 1 F.M
' 303 berein A d 1 11. the
reported at (1975). Arvndrl
B w d Anding cmployer'a
Nursn' Ayociation wsa fib labor organi-
bccauu the influence,
supewion. ' F.2d 534-536.
at
'0
1' 361 F.2d Judge Hdl unpublished opimon
late Judge diucnted. ar&pcd, inler alia,
(e.g.. supeninmy) domirntion an practice
beawe was unioru employem feared
that attemptin# OI~MC
excuw sugggccd
praencz otha employed supervim "comehow
flrwa represenlative" b a d
intaat (MI F.2d employer failed
ahow polential d i c t interat
63 SIERRA VISTA HOSPITAL.
Sierra Vista Hospital, Inc. and California As-
sociation, affiliated with the American Nurses'
Cases 3 1 and 3 1
March 30, 1979
SUPPLEMENTAL DECISION AND ORDER
On August 8, 1975, the Regional Director for Re-
gion 3 1 of the National Labor Relations Board issued
a Decision and Direction of Election in Case 3
3166 in which he found, inter that, contrary to
the contentions of Sierra Vista Hospital, Inc. (herein
the Respondent or the Hospital), California Nurses'
Association (herein CNA), affiliated with the Ameri-
can Nurses' Association, was not subject to the
ence, domination, and control of supervisors and was
a fide labor organization. Subsequently, the Em-
ployer filed a timely request for review, which the
Board denied by telegraphic order September
9, 1975, with the caveat that, if CNA were certified
and did not delegate its bargaining authority to a lo- .
cal autonomous chapter controlled by
employees, a motion to revoke certification would be
entertained. An election was held on September 4,
1975, in which a majority of the votes was cast for
CNA. On September 12, 1975, CNA was certified as
the exclusive bargaining representative for Respon-
dent's registered nurses. CNA thereafter requested
bargaining. On October 29, 1975, Respondent filed
with the Board a motion to revoke certification, alleg-
ing that CNA had failed to delegate its bargaining
authority. On January 30, 1976, the Board remanded
the case to the Regional Director to adduce further
evidence on the issues raised by the motion, particu-
larly with respect to negotiating procedure
and the degree of participation of supervisory nurses
in the bargaining After the hearing, the case
was transferred to the Board for decision.
On August 31, 1976, the Board issued a Decision
and which it denied Respondent's motion to
revoke certification, finding that CNA had "effec-
tively delegated its collective-bargaining authority,
which it acquired by virtue of the Board's certifica-
tion here, to an autonomous local unit of
sory registered nurses, and that said local is properly
exercising this authority on its own behalf."'
Respondent refused to bargain with CNA, and the
latter consequently filed a charge in Case 31-CA-
5760, upon which the Regional Director issued a
As fully in this Decision, the has decided to the
in 31-RC-3166. Accordingly. in order to the
of the Act and to avoid or delay. 3 -CA-
5760 and 3I-RC-3166
would denied the motion.
225 NLRB Sierra I .
NLRB at
complaint alleging that Respondent had violated Sec-
tion and of the National Labor Relations
Act, as amended, by its refusal to bargain. Thereafter,
the General Counsel filed a Motion for
Judgment, which was granted by the Board
22. 1977.5
Following issuance of the Board's Decision and
der in Sierra Vista 11, Respondent filed a petition for
review and the General Counsel a
for enforcement in the United States Court of
peals for the Ninth Circuit. While this action was
pending, the United States Court of Appeals for the
Fourth Circuit, on August 3 1, 1977, issued its deci-
sion in N.L.R. B. v. Annapolis Emergency Hospital As-
sociation, (herein Anne denying en-
forcement of the Board's Order in Annapolis
Emergency Hospital Association, Anne
General Hospital,' on which the Board relied
in its prior decision in the instant case. In Anne
the court found that "delegation of the bargain-
ing function to [the local chapter] was the sine qua
non to certification of MNA," and speculated that by
conditional certification the Board was seeking to
avoid "the difficult problem of whether an employer
can be forced to bargain with a labor organization
which allows the employer's supervisors to be
court read Section 9 and Section and
(5) of the Act as requiring "that the certified labor
organization be willing and able to bargain" and as
prohibiting"the Board from certifying MNA to bar-
gain on condition that it not bargain,'" and found
that the Board effectively certified a "different labor
organization than that Accordingly,
the court concluded that the Board had exceeded its
authority, inasmuch as "under the Act the Board may
not certify a bargaining agent on condition that it not
bargain.""
The Board did not seek certiorari in Anne
229 NLRB herein Vista The bound volume of
of Member Mur-
phy. as participating in this
56 524.

221 NLRB
(1975). Anne In underlying repre-
sentation proceeding 217 NLRB 848 herein Anne
I , the directed an election, no merit to the conten-
tion that the Maryland not a born
zation it was subject to domination, or control of
561 at
I d 537.
Ibid
at 528. (adopting the panel of

the Craven) He that Congress made
employer of unions unfair labor
it and not who such domination and
the employer was "to turn the statutory of 'employer
domination' into an f a refusing to bargain." He further
that a holding that the of
the integrity of the bargaining could only be on
some conflict of at 530) and that the to
that a real a of existed.
1 .ABOR
Bcard,
I deci-
1 Arzmdel.
Arun-
organizat~ons
alin,
Arundel an-
I
i
sta.tutory
I
2(5 )
2(5) status.I2
certifi~ation.~'
2(5)
2 ( 5 )
admitted.14
bargainingi5
employeej
2 ( 5 )
"[e]mployees
e.g..
of
1gnatru.v d/b/a
l4 lnternational Organization 01' Mares pilot^
C I O l, 144 1 172. 1 177
(1963).
IJ e.g.. a r k Mospital ofthe ~WethOdiJt Chruch.
Ltd..
I
632 DECISIONS OF NATIONAL RELATIONS BOARD
and requested the Court of Appeals for the Ninth
Circuit to remand the instant case to the in
order that the Board might reconsider its decision in
light of the issues raised by the Fourth Circuit's
sion in Anne On March 7, 1978, the Ninth
Circuit remanded the case to the Board. Respondent
and CNA have submitted timely statements of posi-
tion.
The Board has reconsidered its earlier decisions in
this case in light of the court's decision in Anne
del, the parties' statements of position. and the entire
record in these proceedings. For the reasons fully set
forth below. we have concluded that we will not con-
dition certification of nurses' associations on the dele-
gation of their bargaining authority to autonomous
chapters or locals.
Prior to the enactment of the 1974 amendments to
the Act, the Board has had occasion to address the
issue of whether labor are disqualified
from acting as bargaining representatives because of
the active participation of supervisors in the labor or-
ganizations' internal affairs. However, this issue has
been raised in numerous state nurses' association
cases since 1974, and our experience in the area has
led us to the conclusion expressed in this case. that
conditioning certification of a state nurses' associ-
ation on its delegation of bargaining authority to a
local autonomous chapter or unit is neither necessary
nor useful in resolving this issue.
The conditional certification approach is ineffective
as a means for resolving the problems created by the
participation of supervisors in labor organizations.
Indeed, it raises more problems than it solves. Thus,
in attempting to resolve issues concerning the qualifi-
cation of nurses' associations via a requirement that
bargaining authority be delegated, the Board has
been confronted, inter with the question of
whether it has the authority to certify a labor organi-
zation conditionally, as well as with factual questions
in each case as to whether the nurses' association has
taken sufficient measures to insure local control of
bargaining. Indeed, both of these issues were dis-
cussed by the court in Anne Arundel.
The court decision in Anne pinpoints
other difficulty caused by conditioning certification of
a nurses' association on delegation of bargaining au-
thority: the conditional certification approach has ob-
fuscated the distinction between nurses' associations
as labor organizations and the issue of
whether the participation of supervisors in the inter-
nal affairs of the association disqualifies it as a bar-
gaining representative.
In cases in which state nurses' associations have
sought bargaining rights, employers repeatedly have
raised the issue whether the presence and active par-
ticipation of supervisors in the hierarchy of the asso-
ciations precludes the associations from serving as
bargaining representatives. Although we have consis-
tently found state nurses' associations, in such in-
stances. to be labor organizations within the meaning
of Section of the Act, it is apparent that several
of our decisions with respect to that issue have gener-
ated some confusion. Thus, some Board decisions
have pointed to local control of bargaining as a factor
in determining In others, the Board has
found the associations to be statutory labor organiza-
tions but has indicated, in making the determination,
that a failure to establish local control of bargaining
could be grounds for a revocation of
The question of statutory labor organization status
is, however, distinct from the question of a statutory
labor organization's qualification to act as a bargain-
ing representative in all instances and without regard
to the circumstances under which bargaining takes
place or will take place. And, to the extent that dis-
tinction has not emerged from or been maintained by
our treatment of the labor organization status of state
nurses' associations, the point is to be emphasized:
the mere presence of supervisors in a labor organiza-
tion is virtually irrelevant to determining status under
Section of the Act. Indeed, we have, with court
approval, uniformly construed Section to reach
all associations which exist for the purpose, in whole
or in part, of collective bargaining and which admit
employees to membership, despite the fact that super-
visors, in addition to employees and even in substan-
tial numbers. may likewise be
At the outset, therefore, we stress that "labor or-
ganization" status under the Act bears no relation to
a delegation and/or local control of and
we disavow any implication to the contrary in prior
Board decisions involving nurses' associations. As
long as nurse-employees participate in the association
and one of its purposes is representing in
collective bargaining, a nurses' association, like any
other, meets the definition of "labor organization" in
Section . , of the Act.
But, while the presence of supervisors in an associ-
ation does not bear upon its "labor organization"sta-
tus, the identity and role of those supervisors in the
labor organization may operate, nonetheless, to dis-
qualify i t from bargaining in certain instances. This
potential for disqualification stems from an inherent
statutory concern that have the right to
See, Anne Arundel I. supra.

"See. in addition to Sierra Vista I, supra. Sisters
Charity of Providence.
St. Province. St. Patrick Hospital. 225 NLRB 799 (1976).
Masters. and of America, Inc.,
A F L - (Chicago Calumet Stevedoring Co., Inc. N LRB
In that case. the union was held to be a labor organization where a
minimum of 170 of the approximately 11,000 members were statutory em-
ployees.
See. Ridge United 220 NLRB
49 (1975): Valley Hospital, 220 NLRB 1339 (1975).
SIERRA VISTA
interests,"'6
Jl~us,
n's
1ength;fintral
collective-
(i.e.,
third-
issue,19
rsla-
tion
I* N w u Suffolk Contmetw:'A:soeiation, Im., et a/.. 118 174.
emphasize concerned supervim
m e mpcet Ihe atTain
Cf. I n l e r ~ I i o ~ l ojMmrerr. Pi-
IOIJ, r ~ r a ; Dumont krbomrorle, IM.,
I' NP(:OY Sqfdk Contmefwr' Assmiation. s ~ m :
Copwafion, Welrbach Electrlc Capomtion.
SO3 (1978).
'' Anne ArnndrI, asserted intern1
fact supcrvimn gmenlly, whomsaver share
perspective favon wapa
bcneAu." F2d ih
disqulified M Ihe reprcy~utive iu ral-and-flle
nurses beuusc mi&t mceive wag- bcncfitl M
repmmtcd or$anization composed excludvely nonsupar-
v i m employees. Largeme believe vim ofthe
down.
bargaining.='
CNA's
CNA's
employees
,we supervisors
require
as
free
does
Bansch & Lomb Qu~ical Cmpoqy,
1' CBS Im..
N.LR.B. Dovid Buttrick Conpay, F.2d 505, (1st
There can k quation w i h r e p d IO conflictof-interest defense
agrea Coun o f A p p h Fimt
mapondent's preunt that
Bard when its
633 HOSPITAL INC.
be represented in collective-bargaining negotiations
by individuals who have a single-minded loyalty to
their and the identity and role of supervi-
sors admitted to membership in a labor organization
can, in certain circumstances, compromise that statu-
tory interest. active participation in the affairs
of a labor organization by supervisors employed by
the employer with whom that labor organization
seeks to bargain can give rise to question about the
labor organizati P ability to deal with the employer at arm's factors involved in consider-
ing this issue are the employees' right to a
bargaining representative whose undivided concern is
for their interests and the employer's right to expect
loyalty from its own supervisors. Active participa-
tion" by the employer's own supervisors may, in a
given case, contravene either or both of these legiti-
mate interests. Indeed, we have held that an employer
has a duty to refuse to bargain where the presence of
that employer's supervisors on the opposite side of
the bargaining table poses a conflict between those
interests."
The active, internal union participation of supervi-
sors of a third-party employer an employer other
than the one with whom the labor organization seeks
to bargain) does not present the danger that an em-
ployer may be "bargaining with itself." But it may
operate, nonetheless, to disqualify a labor organiza-
tion from acting as a bargaining representative for
particular employees. Although, in such cases, the le-
gitimate interest of an employer in the loyalty of its
supervisors is not in issue (the active supervisors are
not its own), the presence of supervisors of
party employers may impinge upon the employees'
right to a bargaining representative whose undivided
concern is for their interests. Not because, as has been
argued during the course of the debate on this
there is an inherent conflict between all supervisors
and all employees, but because of the possible
between the employer with whom bargaining is
sought and the employer or employers of the supervi-
sor participating in the bargaining process. Thus, we
and NLRB
187 (1957).
"We that we are here with who have an
active role in and authority with to directing of a
labor organization. Organization Mares and
Allen B. 88 NLRB 12% (1950).
and Banner Yarn Dyeing
139 NLRB 1018 (1962); 236
NLRB
In the employer "a potential conflict of
in the that by employed, a
proprietary which the moderation of and fringe
561 at 531. That the employer contended MNA should k
from acting bargaining for
they not and great as if they
were by a labor of
aside, we that matter turns the
statutory scheme of thing upside
have held that an employer may lawfully refuse to
bargain with a bargaining representative which itself
was in a competing business."We have also held that
an employer may refuse to bargain where the union's
bargaining team included an agent of a union repre-
senting employees of a principal competitor; since
trade secrets might be revealed, that agent's presence
as a negotiator raised a clear and present danger to
meaningful
Under the foregoing analysis, it is conceivable that
the presence of even one supevisor on board
of directors, if employed by Respondent, could pre-
sent a danger that unit employees' interests might not
be single-mindedly represented. That would depend
on the role, if any, of that supervisor in inter-
nal affairs. It is also conceivable that the active in-
volvement in CNA of supervisory nurses employed
by other employers may, in some circumstances, pre-
sent a conflict of interest requiring that CNA be dis-
qualified from representing a particular unit for
which it was certified. That would depend on a dem-
onstrated connection between the employer of those
unit and the employer or employers of
those supervisors, and, with respect to this possibility,
stress that the participation of (of
third-party employers), even if constituting a majority
of a nurses' association's board of directors, would
not in and of itself necessarily disqualifica-
tion, absent some other demonstrated conflict of in-
terest, for we do not assume an "inherent" conflict
between supervisors and employees in the bargaining
process.
An employer who establishes a disqualifying con-
flict of interest may, we have indicated lawfully
refuse to bargain. But it is clear that the burden on
the employer to show such conflict is a heavy one:
There is a strong public policy favoring the
choice of a bargaining agent by employees. The
choice is not lightly to be frustrated. There is a
considerable burden on a nonconsenting em-
ployer, in such a situation as this, to come for-
ward with a showing that danger of a conflict of
interest interfering with the collective bargaining
process is clear and present."
With respect to the procedural aspects pertaining
to the consideration of these issues, CNA contends in
its statement of position that the Board generally
not permit litigation in representation cases of unfair
labor practice issues such as employer domination of
108 NLRB 1555 (1954).
226 NLRB 537 (1976).
v. 399 507 Cir. 1968).
no a that the
Board with the for the Circuit's formulation of
a burden of shoving a "clear and danger" and the
will strike that defense a respondent fails to carry burden.
8(a)(2)
proceeding.*'
e.g..
8(a)(2)
issues.25
"conve-
a'given
"To
Prducrs CNA's
conflict
(whlch
reprexntation union-
testimony
proceeding where
134 issues
ev~dence c a u m u m , entirely direrent.
e.g.. Brumwick & 152
City Omnibuc I04
lures Corpurotion. et 466 (1951).
Carle Assorialion, 192
In~ernar~onal XraB
the supewlsors
lnc.. 151 1
e.g.. Hurlem Inc.. 191
unable
bargaining
.26
alia,
it.27
Baucch Lomb Con'pany, q m
z7Thus, Scc. 1qa) d provides:
prohib~t
becoming
supervisoni
634 DECISIONS O F NATIONAL LABOR RELATIONS BOARD
or interference with a labor organization in violation
of Section of the Act and that as a matter of
policy the Board should not permit litigation of issues
concerning supervisory involvement in CNA in a rep-
resentation Our dissenting colleague ap-
parently agrees with this view.
lssues concerning the qualification of a labor or-
ganization to bargain on behalf of particular employ-
ees have traditionally been considered in representa-
tion proceedings, wherein they are viewed from a
conflict-of-interest perspective rather than as the liti-
gation of unfair labor practice issues in a representa-
tion proceeding." While "conflict of interest" does
embrace a variety of matters, some of which may be
considered in unfair labor practice proceedings,
whether an organization is "dominated" by supervi-
sors within the meaning of Section of the Act,
it likewise encompasses matters outside the ambit of
unfair labor practice Characterizing the issue
as a "conflict-of-interest" one is more than
nient." As indicated earlier, cases involving the active
participation of supervisors of third-party employers.
by definition, do not concern themselves with an em-
ployer's interest in the loyalty of its supervisory corps
and primarily involve employees' rights to a bargain-.,
ing representative whose undivided concern is for
their interests. But that does not mean an employer is
necessarily a neutral party to the union-employee
conflict which may be present in such cases. As a
general rule, an employer has a right to engage in
collective bargaining which is not influenced by inter-
ests the bargaining representative may have outside
its employee representative capacity. However, the
extent of an employer's interest in such cases cannot
be determined in a vacuum, can only be considered
on the facts of case, and is a question on
which we need not now pass.
Once "conflict of interest" is viewed as concerned
support this wntenrion, CNA and our dissenting colleague cite Para-
gon Corporation, 134 NLRB 662. 665 (1961). In our view.
reliance on Paragon Products is misplaced. That case did not involve super-
visory participation or other possible of interest. Rather, in Paragon
was itself a representation proceeding), the Board decided to consider
as bars to elections in proceedings contracts wntaining
security clauses. absent a prior determination that a clause was unlawful.
And, in that context, the Board stated: "No and no evidence will
be admissible in a representation the testimony or evi-
dence is only relevant to the question of the practice under a contract urged
as a bar [emphasis supplied]. . . ," NLRB at 667. The and reasons
for admitting in the instant are, of
See, Pulp Paper Company, NLRB 973 (1965): New
York Corporation. NLRB 579. 584 (1953); Columbia Pic-
a/., 94 NLRB and cares cited therein at fn. 7.
Indeed. in various cases involving nurses' associations. the Board has consid-
ered. in reprexntation proceedings. supervisory involvement in the associ-
ations. For example. in Clinic NLRB 512 (1971). and
Paper Company. Southern Division, 172 NLRB 933
(1968). the Board found the associations qualified where in
positions of authority in the associations were not employed by the employer
at issue: and see St. Rose de Limo Hospital, 223 NLRB (1976).
"See. River Consumers Cooperative. NLRB 314
(1971).
with two different 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 inter-
est a union may have outside its representative re-
sponsibilities-it becomes evident, we think, that
"conflict of interest"is broader in scope than Member
Truesdale suggests.
With respect to the dissent's contention that con-
sideration of supervisory participatian in nurses' asso-
ciations will unduly delay the Board's representation
proceeding, we have already emphasized the heavy
burden imposed on an employer who seeks to estab-
lish a disqualifying conflict of interest. In these cir-
cumstances, we cannot agree with the dissent that our
decision herein will have the effect of delaying the
speedy resolution of representation cases or that we
are permitting Respondent "to embark on a fishing
expedition in a pond which [we] virtually concede is
dry." For it should be clear that we are not by this
decision countenancing any fishing expeditions in
representation hearings, and if Respondent (or any
other employer who raises a similar issue) is unable to
adduce probative evidence substantiating a claim that
supervisory participation in the affairs of the union
presents a clear and present danger of interference
with the bargaining process, its contention will be
summarily found lacking in merit. If, on the other
hand, an employer is able to establish that because of
a conflict of interest the union is to approach
the bargaining table
. . . with the single-minded purpose of protecting
and advancing the interests of the employees
who have selected it as their agent,
and there must be no ulterior purpose. . .
then it cannot be argued that the "pond is dry."
Our dissenting colleague further argues, inter
that it is unnecessary to consider alleged supervisory
domination at the preelection stage because any em-
ployer confronted with such a problem also has self-
help remedies readily available to However, as
the dissent at least implicitly concedes, such remedies
are available only where the employer's own supervi-
sors are alleged to dominate or interfere with the as-
sociation, and not all conflicts of interest involving
supervisory participation which would disqualify a la-
bor organization from representing an employer's em-
" & Optical at 1559.

the Act

Nothing herein shall any individual employed as a supervisor
from or remaining a member of a labor organization, but no
employer subject to this Act shall be compelled to deem individuals
defined herein as as employees for the purpose of any law.
either national or local, relating to collective bargaining.
exists.28
heaviest,29
conflict
2(5)
[A]s has supervisor act
representative employcea supervisor
represent purposes
purpose clurr
bctwcm
possible conflicts allegiana supervisom
permitted employees. [ h w c h d
Lomb Cowany, 108
quation bc
possible
CNA's
1
motion.30
CNA's
31-CA.-5760
1 -RC-3
lto
Respon- - -
nonsupervi~ory
"As
raiscd
s ina the instant been see
rather
evidence
635 SIERRA VISTA HOSPITAL, INC.
ployees necessarily involve conduct by that employ-
er's supervisors. Additionally, utilization of a self-help
remedy may well promote more litigation than it
avoids, including disputes over alleged employee or
supervisory status. A proliferation of litigation is
hardly in the best interest of any of the parties.
The dissent also makes much of the fact that no
employee has complained of supervisory domination
of CNA. While this may be the case, the failure of
employees to complain to the Board about a conflict
of interest between them and their bargaining repre-
sentative is not dispositive of the issue of whether
such a conflict
Finally, if there were evidence indicating that the
litigation of such questions measurably "protracted"
our representation proceedings, our dissenting col-
league's departure from our traditional approach
would be more attractive. But, given the burden an
employer has to establish the clear and present dan-
ger of conflict, there is little to suggest that our repre-
sentation proceedings, particularly our preelection
proceedings, where the need for speedy resolution is
greatest at the same time that the employer's burden
is are an improper forum in which to ad-
duce evidence of of interest.
From all of the foregoing, it is clear that we find
state nurses' associations which meet the criteria set
forth in Section of the Act to be labor organiza-
tions and that we will treat claims that the associ-
ations are dominated or controlled by supervisors, or
have some other conflict of interest which disqualifies
them from representing employees, in the same man-
ner that we will treat such allegations against other
labor organizations. Thus, we will not require nurses'
associations to delegate bargaining authority to any
other entity as a condition of certification, and we will
consider contentions of disqualifying conflicts of in-
terest in representation proceedings where the associ-
ation seeks certification as bargaining representative.
Applying these principles to the instant case, it is
clear that CNA is a labor organization within the
meaning of the Act.
Respondent has not explicitly urged a "conflict-of-
The Board has previously stated:
a matter of policy, the Board held that a cannot
as of to decertify a union, nor can a
employees of an employer for of collective bargain-
ing regardless of whether the employees desire such a bargaining agent
and despite the employees' right in Section 7 to bargain collectively
through representatives of their own choosing. In so holding the Board
indicated that one of the Act was to draw a line of demar-
cation supervisory representatives of management and employ-
ees because of the in if were
to participate in union activities with
Optical NLRB at 1557.1
Givm the strong public policy favoring free selection of a bargaining
agent, it is obvious that the qualification can only resolved with-
out resorting to speculation about a labor organization's subsequent
course of conduct.
interest" defense and has, therefore, offered no evi-
dence or explanation of how the presence of supervi-
sors on the CNA board of directors who are em-
ployed by other employers raises a conflict of interest.
However, as neither the underlying representation
proceeding nor the instant unfair labor practice case
was litigated on the basis of whether the presence of
supervisory nurses employed by other employers on
board of directors or in other positions of au-
thority conflicted with the interest of unit employees
employed by Respondent, we will rescind our previ-
ous Decisions and Orders granting the General Coun-
sel's Motion for Summary Judgment and denying Re-
spondent's motion to revoke certification. Thus, in
order that the parties may have the opportunity to
litigate these issues, we shall remand Case 31-RC-
3 166 to the Regional Director for Region 3 to sched-
ule a hearing on Respondent's As set forth
above, we do not view active participation in CNA by
supervisors employed by other employers as present-
ing any inherent conflict of interest that would war-
rant granting Respondent's motion. Accordingly, un-
less Respondent can sustain its burden of
demonstrating that there is a clear and present danger
o f a conflict of interest which compromises
bargaining integrity, we shall deny Respondent's mo-
tion to revoke certification.
ORDER
It is hereby ordered that the Board's Decision and
Order in Case (229 NLRB 232) and
prior Decision and Order in Case 3 166 (225
NLRB 1086) be, and they hereby are, rescinded.
IT IS FURTHER ORDERED that a hearing be held be-
fore a duly designated Hearing Officer for the pur-
pose of receiving evidence resolve issues raised by
Respondent's motion to revoke certification in Case
31-RC-3166, namely, whether or not the presence of
supervisors as officers in, on the board of directors of,
or in other positions of authority to speak for or bar-
gain on behalf of CNA disqualifies that association as
the collective-bargaining representative of
dent's nurses.
IT IS FURTHER ORDERED that the Hearing Officer
designated for the purpose of conducting such hear-
ing shall prepare and cause to be served on the parties
a report containing resolutions of the credibility of
witnesses, findings of fact, and recommendations to
the Board as to the disposition of said motion. Within
is indicated by the discussion above, we shall henceforth consider in
a representation proceeding issues by supervisory participation. How-
ever, CNA has in case certified, we no point in
setting aside the election at this time but shall simply consider Re-
spondent's contention and in light of its motion to revoke certifica-
tion.
NATlOllAL L .ABOR
Wash~ngton,
of
11 FURTHER
Reg~on 1
M E M B E R TRUESDALE,
1
Anne A r ~ u ~ d r l , supra.
court
bargain."31 I
particular sequ;rur
view.
a
Paragon products Corpor$ion,
[Sluch
safeguard^.^^
bet-
ler
"company-domi-
litigable proceed-
ingW3"et. by
here~n ~nvolving
3' F.2d
' 2
33 c..g.. .?mnlgr?ma/rd Clorhrng of F L - C I O
mrvr C'ompam.. d!b/a Plne Manujocluring N.
F.Zd (D.C. Clr. 1965). also
Hun& 4n&. Inc.. ULRB 454-456 (l977), recmphas~zing necer-
fdr delaj repreqentation that
invidious discnminarlon by or-
gan~z:ition, wh~ch of'constitutional
!he
& Hou,cII CO. F.2d 136
'" Scrbtnc Towrng C,,mpuny. Inc Y hl (1960).
iiny
represelltation
& Puper
the 'Yew
City
cases.35
agents.36
JJ
Infernafional .supra,
de Hospi~al,
efforts
' 6 e.g.. Merry Hospifals Inc.,
636 DECISIONS OF
10 days from the date of issuance of such report, ei-
ther party may file with the Board in
D.C.. eight copies of exceptions thereto. Immediately
upon the filing such exceptions, the party filing the
same shall serve a copy thereof on the other party and
shall file a copy with the Regional Director. If no
exceptions are filed thereto. the Board will adopt the
recommendations of the Hearing Officer.
IS ORDERED that the above-entitled
matter be, and it hereby is, referred to the Regional
Director for 3 for the purpose of conducting
such hearing and that the Regional Director be. and
he hereby is. authorized to issue notice thereof.
dissenting in part:
agree with that portion of my colleagues' decision
which abandons the "conditional certification" test of
I t would seem evident. as the
stated. that "under the Act the Board may not
certify a bargaining agent on condition that i t not
readily join the majority in laying that
non to rest.
However, I fear that my colleagues are heading
down another wrong path in their present decision. In
my the Petitioner should be certified on the ba-
sis of the present record.
It should be noted at the outset that the Board, as
matter of policy, generally precludes "litigation of al-
legations of unfair labor practices in preelection
phases of representation proceedings." As stated in
proceedings are investigatory in character
and do not afford a satisfactory means for deter-
mining matters which are more properly the sub-
ject of adversary proceedings with their accom-
panying
Since it is also well recognized that all parties have an
interest in speedy resolution of representation mat-
t e r ~ , ~ 'we ill serve the parties by allowing. unless abso-
lutely necessary, protracted litigation of matters
left for another forum. In fact, the Board has held
that the issue of whether a union is
nated" is "not in a representation
conveniently characterizing the issue
as a potential "conflict of interest,"
561 at 528.
134 NLRB 662. 665.
See. Workers America, A [Saga-
Shirr Spruce Co.) v. L.R.B. . 365
898 See the opinion of the Board majority in
228 447. the

sity
the avoidance of in proceedings. In case.
the Board decided that questions of a labor
some hold are dimension, should best be
left for adversary proceedings under unfair labor practice provisions of
the Act. See also Bell v . N.L.R.B., 598 (D.C.Cir.
1979).
. 126 LRB
RELATIONS BOARD
the majority sees fit to ignore these basic Board poli-
cies. rejecting the Union's argument that the issue of
supervisory participation may not be litigated except
in an unfair labor praciice proceeding. Regrettably, it
has done so on the basis of precedent which is not
only outmoded but also inapposite and, in this case,
despite the absence of evidence of conflict, either
real or potential.
I t is true, as the majority notes. that in several early
cases the Board, in a proceeding. held
a purported labor organization disqualified from rep-
resenting employees on the basis of obvious evidence
of employer or supervisory domination. Thus, in
Brunswick Pulp Co., supra, one of the cases
cited. the petitioning organization accepted as jour-
neymen members only "producers,"and only produc-
ers were eligible to become members of the board of
governors; yet a number of the producers were
named as joint employers in the petition, and the
Board found these producer-member-employers were
either independent contractors or supervisors. To al-
low an organization of named employers a place on
the ballot as a labor organization seemed, on its face,
contrary to the spirit of Act. In the York City
Omnibus Corp. and Columbia Pictures Corp. cases, su-
pra, the petitioners were predominantly composed of,
and controlled by, the respective employer's own su-
pervisors. In New York Omnibus, for example, 93
of the 113 individuals sought by the petitioner, in-
cluding its president, were the employer's own super-
visors. Similarly, in Columbia Pictures, individuals
found to be the employer's supervisors comprised and
materially participated in the organization of the peti-
tioner.
The present case, and others involving nurses' asso-
ciations, are a far cry from these early Nurses'
associations have existed for many years, as both pro-
fessional associations and collective-bargaining
I t is natural that the more senior nurses hold
official positions in many of the associations. There is
not even a suggestion or a hint that these associations
are employer-formed or supervisor-dominated in the
sense of the organizations involved in the cited cases.
Moreover, the precedential value of New York City
Omnibus and Columbia Pictures is diminished by the
fact that they were decided only shortly after supervi-
sory personnel were divested of full rights under the
The "various cases involving nurses' associations."cited by the majority,
arc distinguishable. In Carle Clinic, supra, the Board did not consider the
issue of supervisory involvement, since only the union filed a request for
review, and the issue presented was whether Carle Clinic was a single em-
ployer with what was then an exempt hospital. In Paper,
the Board merely held that the petitioner was a "labor organization." Fi-
nally. St. Rose Lima supra, is not precedent but rather one of the
recent by the Board to engage in the type of analysis now embraced
wholeheartedly by the majority, an analysis with which I disagree.
See, the discussion in oj' Sacramento,
NLRB 765. 767 (1975).
217
8(b)(l)(B):
%8(b)(l)(B),
"conflict-of-interest"
8(a)(2)-type
3'Floriab & In~crnational
Local 812-813
fr&
8(a)(2)-to i.e.,
8(a)(2) Act.38
8(a)(2)
doing.I9
turns 8(aX1)
~roceeding.~'
14(a),
Bricklq~ers' Association Vlciniry.
(1961).
F d , Im. d /b /a Jij-E-Mart,
a Whatever promtion need is, ofTered
employas'
interart, as m e a d becn
supervisory defect
interut.
4
CNA i(s
employen resent
637 SIERRA VISTA HOSPITAL. INC.
Act. Both cases relied on cases decided prior to the
Taft-Hartley Act of 1947, at a time where supervisors
were accorded the status of "employees." Thus, the
question of supervisory domination was deemed sus-
ceptible to resolution at any stage, since the employer
had no means of controlling its supervisors' union ac-
tivities.
Today, however, "self-help" is clearly available. All
the employer need do, if it is concerned that its super-
visors are not, in the majority's words, "loyal," is to
tell them to stop: to resign as officers, to remove
themselves as members of the negotiating committee,
etc. Indeed, the Supreme Court has recently sug-
gested that very course of action in the context of
union fines and Section
Congress' solution was essentially one of provid-
ing the employer with an option. On the one
hand, he is at liberty to demand absolute loyalty
from his supervisory personnel by insisting, on
pain of discharge, that they neither participate
in, nor retain membership in, a labor union. . . .
Alternatively, an employer who wishes to do so
can permit his supervisors to join or retain their
membership in labor unions, resolving such con-
flicts as arise through the traditional procedures
of collective bargaining. But it is quite apparent,
given the statutory language and the particular
concerns that the legislative history shows were
what motivated Congress to enact
that it did not intend to make that provision any
part of the solution to the generalized problem of
supervisory-member conflict of loyalties?'
The Court made it plain that the Act envisaged the
employer's achieving "loyalty" by exercising disci-
pline over its supervisors; the Court forbade this
Board's imposing that loyalty by distorting the stat-
ute. Here, I fear, the majority is impeding and delay-
ing the normally prompt representation case process
by permitting litigation of this issue.
What is the special danger
about which the majority is concerned? There are two
concerns to which they refer; neither, I believe, con-
stitutes a persuasive argument for delaying our nor-
mally prompt representation proceedings while this
issue is litigated.
One concern raised by the majority, mentioned
above, involves the supervisors of the employer whose
employees are sought in the particular representation
proceeding. None of this Employer's supervisors
holds high office in CNA. The majority is apparently
concerned that the presence of the involved employ-
er's supervisors on the association's board of directors
or their presence on negotiating committees could
Power Light Co. v. Brotherhood of Electrical
Workers. MI, 417 U.S. 790, (1974).
constitute a "conflict of interest," apparently depriv-
ing the employer of supervisors of unquestioned loy-
alty, or employees of bargaining representatives
of conflicting loyalties.
Stated baldly, my colleagues are permitting an em-
ployer in this situation to utilize its own possible mis-
conduct-what in the proper forum constitutes a vio-
lation of Section its own advantage;
to delay or even defeat certification. When an em-
ployer permits its supervisors to dominate a labor or-
ganization, it commits a clear and classic violation of
Section of the How ironic it is that an
employer may do this and benefit even further by
disqualifying a longstanding association of profes-
sional nurses from achieving bargaining status. The
fact that any employer may not bring an
charge against itself is evidence of the peculiarly i n a p
propriate nature of what the majority is A
party in an unfair labor practice proceeding cannot
be heard to complain of its own misconduct; so, here
too, an employer should not be able to thwart the
desires of the employees because of the acts of those
who are by law his agents and under his control."
Any hurt that might be suffered would be by the em-
ployees themselves, who, as the majority would have
it, might find their bargaining representative not to-
tally responsive because it was wearing two hats; if
that out to be so, an or (2) charge could
be filed by any of the aggrieved employees. However,
no employees are complaining in this
Relegating the issue of this Employer's supervisors'
bargaining and union activities to a subsequent unfair
labor practice proceeding has the further advantage
that the issue will be addressed at a time when the
critical facts have developed and are more likely to be
ascertainable. The statute itself, at Section
makes it clear that supervisors may belong to labor
organizations. Similarly, the holding of union office
would, by itself, be unlikely to provide sufficient evi-
dence of conflict, and the majority so recognizes. In
the normal situation, it would seem premature for a
labor organization to settle on its bargaining commit-
tee and tactics until it has achieved recognition or
certification. Thus, the majority here suggests delay-
ing representation proceedings for a determination of
Employing of Delaware Valley and
NLRB 1535
Shop-Rite 205 NLRB 1076 (1973).
employers may in fact, through the
"taint" theory relating to the showing of interest. If, in fact, the
by the showing of interest, has procured through
involvement, that is readily curable during the ancillary
investigation of the showing of
The employees hardly need the employer to make this complaint on
their behalf: as points out in brief on review, there are, in reality,
few who would bargaining with an employer-oriented labor
organization.
134
sl~pervisors olher
a s s ~ c i a t i o n . ~ ~
AFL-
C10, er Calumet lnc.),
1 (1963).
1 F.2d 1 1965),
1-1/2 /2
1
alleged.43 pre-
4'The
supervisors
petilioning
inleresls wh~ch w~th
In
litigable un~on
acting
& Op~ical
the~r cho~ce.
ac-
tuallv ex~ense."
lndcases as
8(a)(5)
8(a)(2)
& type
delay
this
whch
&mplaining
Amndel,
In secs. I1 Ill
F.2d 529-532.)
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facts not only within the employer's control. but
which have in all likelihood not become sufficiently
well formulated to lend themselves to judicial scru-
tiny or determination.
The other concern of the majority in this type of
case-and the only one conceivably present here-is
that a number of of employers may
be active participants in the The major-
ity opinion rejects the argument that, even if over half
of the directors of the association were other employ-
ers' supervisors, this fact would present an inherent
conflict of interest. That conclusion may stem in part
from the rationale of lnrernarional Organizarion of
Masrers, Mares and Pilots of America, Inc.,
al. (Chicago Stevedoring Co.,
144 NLRB 172 146 NLRB 116 (1964). enfd.
35 77 (D.C. Cir. in which an organiza-
tion having as members only to 2-1 percent
"employees" (170-29 out of 1 1.000) was found to be
a labor organization. So, too. here. the majority con-
cedes that the Union is a labor organization. Thus,
they would require a showing that the presence of
any such supervisor conflicted with the interest of the
unit employees. conceding that the burden on the em-
ployer to make such a showing is "heavy." However,
the Employer has not alleged any economic conflict;
indeed, the Employer has alleged no particularized
conflict of any sort.
What. then, does the majority expect to be adduced
at the further hearing it has ordered? My colleagues
are remanding this proceeding for more evidence
even though (a) no supervisors of the Employer are
officers of the petitioning labor organization; (b) they
concede that there is not an inherent conflict for other
employers' supervisors to so serve, and in any event
less than 50 percent d o so serve: and (c) no economic
or other type of conflict is One would
Board has found at an earlier stage of this proceeding that this
Employer has no presently sewing as officers or board members
of the labor organization. See 225 N L R B at 1086.
Where it is alleged that the union or its agents have financial or other
business compete those of the employer whose employ-
ees the union represents. presenting a "clear and present danger" to mean-
ingful bargaining. I would readily join any decision holding such issue
and. if the allegations were proved. find the disqualified from
as collective-bargaming representative. This is the classic economic
conflict of interest as expressed in Bausch Lomb Company, supra.
cited in the majority opinion. However. i t appears that any allegations of
such conflict in this case could be no more than pure speculation and insuf-
ficient to override the statutory right of employees to select the representative
of
sume that employees would be better able to judge
than their employer whether a particular labor or-
ganization can serve them with sufficient loyalty to be
an adequate bargaining representative. The majority
is permitting the Employer to embark on a fishing
expedition in a pond which it virtually concedes is
dry-purportedly for the employees' benefit, but
a t their
such this, in which it is alleged that an
entity found to be a labor organization is dominated
by supervisors, I would apply the normal rule of not
permitting litigation of unfair labor practice issues in
a representation proceeding. Nor would I allow this
matter to be litigated in any case testing the
certification, since I view that as merely an outgrowth
of the representation proceeding. I do not feel the
least bit uncomfortable relegating the Employer to
self-help, if it is truly concerned about its own super-
visors' participation in the union. I would similarly
direct the employees to the forum if they are
concerned about the loyalty of their bargaining repre-
sentative (which, of course, they have not been in this
case to date). In truth. the employees have a more
direct remedy: they may select a more "loyal" repre-
sentative initially, if that is their concern. Lastly, if it
is the supervisors of other employers who pose the
concern, the employees, the aggrieved parties, have
the remedies set forth above, and the employer may,
as indicated, interpose a Bausch Lomb defense
under existing precedent, if it is truly an economic
conflict of interest about which it is complaining.
I believe the majority's decision further to
resolution of representation case, upon the Em-
ployer's urging, to ascertain facts probably
have not been developed sufficiently to be ascertain-
able, which are within the control of the
party, and. lastly, the significance of which the major-
ity has discounted in advance is, to say the least, in-
congruous.
I would affirm the certification of the Union forth-
with.
I am in basic agreement with the views expressed in Anne
supra. by the late Judge Craven, whose original panel opinion was adopted
by Judge Hall dissent. (See and of Judge Craven's opinion. 561
at