St. Joseph's Hospital

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 634 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St Joseph's Hospital and Barbara Sisson and Cali-
fornia Nurses' Association, Party to the Con-
tract. Case 32-CA-1966
January 14, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND ZIMMERMAN
On September 23, 1980, Administrative Law
Judge Harold A. Kennedy issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief and
Respondent filed cross-exceptions and a brief in
support thereof.
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 record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, St. Joseph's
Hospital, Stockton, California, its officers, agents,
successors, and assigns, shall take the action set
forth in said recommended Order.
DECISION
HAROLD A. KENNEDY, Administrative Law Judge:
The Respondent, St. Joseph's Hospital, a nonprofit Cali-
fornia corporation located in Stockton, California, is
charged in this proceeding with violating Section 8(a)(2)
and (I) of the National Labor Relations Act (hereinafter
called the Act). The case was heard in Stockton on May
6, 1980. The General Counsel maintains the Hospital vio-
lated the Act because:
1. Assistant Head Nurse Dolores Miniaci participated
in the negotiations with the Respondent Hospital in the
summer of 19791 as a member of the bargaining commit-
tee of the Union, California Nurses' Association.
2. A "substantial number" of supervisory nurses par-
ticipated in a "ratification/strike vote" taken by the
Union on or about July 17.
3. A "substantial number" of supervisory nurses par-
ticipated in a second "ratification/strike vote" taken by
the Union on or about July 27.
According to the General Counsel's complaint, issued
on January 31, 1980, and based on a charge filed on July
I All dates used herein are for the year 1979 unless otherwise indicat-
ed.
254 NLRB No. 77
25 by an individual named Barbara Sisson, the Respon-
dent "allowed" Miniaci to participate in the negotiations
and "permitted" a substantial number of supervisory
nurses to participate in the first and second ratification/
strike votes. The complaint also alleges that the "number
of supervisory nurses participating in the Ratification
Vote was sufficient to affect the results," and that the
agreement became effective on July 27.2
The Union, California Nurses' Association, is named in
the complaint as a party to the contract but not as a re-
spondent. The General Counsel requests that the con-
tract be set aside and declared to be of no force and
effect. I find that the Respondent Hospital engaged in
technical violation of the Act but decline to abrogate the
bargaining agreement as requested by the General Coun-
sel.
Jurisdiction is conceded, and a number of matters are
not in dispute, including the following:
1. The Respondent, St. Joseph's Hospital, is a Califor-
nia nonprofit corporation engaged in the operation of an
acute care hospital in Stockton, California; that it has
had an annual gross of over $250,000; it has purchased
and received goods or services from out of the State
valued in excess of $5,000; and it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. California Nurses' Association, referred to as CNA
and also as the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Persons holding the positions of assistant head nurse
and charge nurse, both referred to as "Supervisory
Nurses," are and have been, at least since the decision
issued in Case 32-UC-16 (issued by the Regional Direc-
tor on June 21, 1979, and affirmed on August 14, 1979),
supervisors within the meaning of Section 2(11) of the
Act. 3
4. That the following employees constitute an appro-
priate bargaining unit under Section 9(b) of the Act:
All nurses, full-time and part-time, with the excep-
tion of the assistant executive director for nursing,
division directors, shift directors, department heads
(i.e., head nurses), first-line supervisors (i.e., assistant
head nurses and charge nurses) and supervisors as
defined in Section 2(11) of the National Labor Rela-
tions Act. 4
2 he General Counsel's brief states that the participation of supervi-
sory nurses only affected the results of the July 7 vote. At the hearing,
the General Counsel's attorney maintained that the test of illegality is not
whether the votes of supervisory nurses affected the results of the vote
per s'e "Our theory," he said. "is based upon their participation, whether
it affected the results or not " Asked if the General Counsel's theory con-
templated responsibility of an employer for "participation" of supervisory
nurses whether it had any knowledge or not of that fact, the attorney for
the General Counsel responded in the affirmative.
:' Both thie Respondent and the Union deny, however, that such super-
visory nurses acted as agents of the Hospital. The decision in Case 32-
UC 16 states that the parties stipulated that there are 18 assistant head
nurse positions and 30 charge nurse positions.
4 All parties agree hat the above description, taken from par 6 of the
complaint, is the same as the description given in the recognition clause
of the present agreement Sally Knahb, the labor representative of CNA,
said the unit consisted of about 250 nurses
634
ST. JOSEPH'S HOSPITAL
5. There has been a continuing bargaining relationship
between the Respondent and the CNA with respect to
registered nurses since 1966, although the bargaining unit
has varied somewhat during the succession of different
collective-bargaining agreements. (See Resp. Exhs. 5-
10.)
6. On June 21, 1979, the Regional Director in Case 32-
UC-16, acting on a petition filed by the Respondent on
February 14 to clarify the bargaining unit, ruled, after a
hearing, that assistant head nurses and charges nurses,
also designated as "first-line supervisors," are statutory
supervisors and are to be excluded from the unit.5 The
Union filed an appeal, but the Board on August 14 af-
firmed the Regional Director's decision by denying the
Union's request for review.
7. The Respondent Hospital and the Union engaged in
nine collective-bargaining sessions between May 24 and
July 7: on May 24 and 31, June 26 and 28, and July 3,
11, 19, 27, and 29. A collective-bargaining agreement
was reached on July 29 and thereafter put into effect. A
copy of the agreement, covering the period May 20,
1979 to May 17, 1981, was received in evidence as Gen-
eral Counsel's Exhibit 4.6
8. Received as General Counsel's Exhibit 3 is a list of
first-line supervisors employed at the Respondent be-
tween January I and July 27. The list is reproduced
below:
First-Line Supervisors 7 Employed Between January
1, 1979, and July 27, 1979
2 West
Pam Wix
Alice McMurry
Marsha Nishioka
Crisis Intervention
Barbara Matley
Garnetta St. Clair
Lulu Johnson-Stopped 4-20-79
4 North
Roxanna Silveira
Martha Bennett
Dianne McLaughlin-Started 3-5-79
Marilyn Prato-Stopped 4-16-79
4 East
Doris Susich
Pam O'Hern
Sue Rollins
2 Main Oncology
Sandy Woodward
Sue Solbach
CCD
Yvonne Tansley
Stella Atler
The Regional Director's decision incorrectly stated that the petition
was being dismissed. An errata sheet dated June 25 stated that the unit
was being clarified as explained in the decision
6 Resp. Exh I is a chronological outline of events relevant to the har-
gaining.
7 It is to be noted that some of the nurses ceased or began service as
first-line supervisors during the period indicated
Elaine Lancaster
2 East
Marge Patzer
Valerie Snyder-Started 6-17-79
Mary Savio-Started 5-6-79
Donna Burke-3-11-79 to 6-17-79
OB
Dorothy Morgan
Cora Gines
Neri Berbano
Fran Broderson
Pediatrics
Alice Finch
Fusae Tanaka-Started 6-3-79
Erlinda Albalos
PAD
Nancy Bennett-Started 6-24-79
Jeff Lynch-3-11-79 to 7-20-79
3 West Ortho
Barbara Whitney
Mary Kaehler
4 West
Helen Rice
Rice Rall (Pirie)-Started 5-27-79
Gerry Lounsbury
2 North
Karen Ryder-Started 4-24-79
Janet Marler-Started 5-20-79
Joan O'Hayer-Stopped 2-11-79
Judy Watland-Stopped 4-22-79
Emergency
Betty Rodway
Penny Linn
ICD
Fran Morgan
Carol Mazerall
Dolores Miniaci-Started 3-11-79
Kathy Konklin-Stopped 7-1-79
Sue Brockman-Stopped 2-11-79
9. All assistant head nurses and charge nurses were
covered, and thus included in the bargaining unit by
prior agreements negotiated between CNA and the Re-
spondent.
10. Dolores Miniaci, the charge nurse who participat-
ed in five negotiating sessions, voted in the union ratifi-
cation elections on July 17 and 27. Seven other supervi-
sory nurses also voted on July 17 and 27-Susich, Sil-
veira, Bennett, Rollins, Atler, Rodway, and Morgan.
There were 18 supervisory nurses who voted on July 17
(but not on July 27)-Wix, McMurry, Nishioka, Matley,
O'Hern, Woodward, Solbach, Tansley, Lancaster,
Patzer, Gines, Broderson, Lynch, Whitney, Kaehler,
Rice, Pirie, and Lounsbury. Four of the nurses voted
635
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only on July 27-St. Clair (Garnetta), Morgan, Berbano,
and Linn. (See G.C. Exh. 5(a) and (b).) 8
Sally Knab, labor representative of the CNA, appeared
at all of the negotiating sessions and was the Union's
principal spokesman.9 She identified six negotiating team
members elected by the nurses as follows: Susan Brock-
man, Kirsten Reiner, David Rose, Rosemarie Westley,
Michelle Guthmiller, and Night Charge Nurse Dolores
Miniaci. (Brockman had been a first-line supervisor but
such status ended on February 11 before the negotiations
began.) Miniaci participated in five negotiation sessions,
according to Knab-on May 24 and 31, June 28, and
July 3 and 11. Knab said Miniaci did not attend the June
26 bargaining session because the Union removed her
from the team as a result of the Regional Director's deci-
sion in Case 32-UC-16 but was reinstated to the negoti-
ating committee for the June 28 meeting when it was de-
cided to appeal the Regional Director's ruling. Knab in-
dicated that Miniaci appeared again on July 3 and July
11 but attended no bargaining sessions thereafter. ° Knab
regarded Miniaci as a "passive" participant, although she
said the negotiations were "very serious." Knab could
not recall that Miniaci presented any proposal or said
anything during the bargaining sessions.
Knab identified a tally sheet which indicated that the
membership voted on and rejected a proposal of the
Hospital on July 17 by a vote of 82 to 93. (Four of the
ballots were considered invalid because no date was
placed on them.) She explained that before voting the
nurses in the unit met in two separate classrooms in
groups of 75 or 80 each and heard an explanation of the
offer by Knab. The nurses who attended, numbering
about 75 or 80 in each group, signed a signature sheet
and were then given ballots. They were instructed that a
"Yes" vote was for ratification and a "No" vote was to
be taken as a strike vote. Following the vote the Union
gave notice of a strike to the Respondent on July 19 and
informational picketing began in front of the hospital.
Knab stated that Miniaci as well as others participated in
the informational picketing. She said there was no work
stoppage.
" There is an indication in the record that Bennett voted only on July
27.
9 Knab said her position as labor representative is the equivalent of a
union business representative. She said she did 95 percent of the talking
for CNA and that Susan Brockman talked most after her.
'O Knab testified that a newspaper article dated July 26 correctly
quoted her as saying that the Union was appealing a decision made on
unit clarification petition. The article reads in part (Resp. Exh. 2):
Pending the outcome of this appeal, the 40 supervisors "are in
limbo" according to CNA negotiator Sally Knab. One of them, Do-
lores Miniaci, is a member of the CNA negotiating team. Ms. Knab
said the hospital has not protested her participation: "There has been
no comment across the bargaining table regarding composition of the
team."
After the nurses had rejected a hospital offer and authorized a
walkout Sunday if issues are not resolved, hospital administrators
told the supervising nurses they are a part of management and would
be expected to care for patients in the event of a strike.
The association has contended that until the NLRB rules on the
appeal, the supervisors are still a part of the bargaining unit.
" Knab said that the signs indicated that the nurses wanted more pay,
that St. Joseph should pray for them, that "we're tired of eating peanuts,
that sort of thing." The strike was to begin she said on July 2q.
Knab also identified the tally sheet that indicated the
nurses voted and accepted the Hospital's final proposal
on July 27 by a vote of 94 to 67. The nurses in the unit
came on that date to a private home and, after hearing
an explanation of the offer by Knab in groups of two or
three, signed a signature sheet and received a ballot. 2
Arthur Mendelson, the Respondent's counsel, who was
the Hospital's spokesman during the negotiations, offered
copies of collective-bargaining agreements negotiated be-
tween the parties since 1967, a number of other docu-
ments pertaining to the unit clarification proceeding and
the negotiations leading up to the latest contract execut-
ed in 1979. These documents, along with certain explana-
tory statements made by the Respondent's counsel, were
received by stipulation.
Carol Lee Cox, currently the vice president for nurs-
ing at the Hospital, testified that she has held the top
nursing position there for 10 years. She described the
nursing structure in the hospital as follows:
There are five division directors that are my imme-
diate assistants, plus shift directors, one on 3:00 to
11:00 and one on 11:00 to 7:00, that are kind of the
overall house supervisors when I'm not there. Each
division director has approximately five to seven
department heads. Department heads are responsi-
ble for their nursing units. They are individualized
as listed below: coronary care, crisis intervention,
emergency. There are some twenty-I believe
twenty-six of these, and they have anywhere from
ten to seventy or eighty employees in each one of
these departments.
Each one of the shift supervisors-and that is the
first line supervisor group is the next group-they
are responsible for the group of nurses within that
department for each shift, days, evenings, and
nights. They supervise anywhere from two to three
to thirty people.
Cox explained that the first-line supervisors, the assis-
tant head and charge nurses, are responsible only for
their own shift: "They are the shift supervisor for their
department."
Cox said she had set about to decentralize and give
nurses more authority from the time she arrived in 1970.
Asked when the charge nurses and assistant head nurses
became supervisory personnel, Cox replied that they
were all probably functioning as first-line supervisors "as
we had defined it in their job description" by 1979.
Probably some were functioning in that capacity as early
as 1977 or "maybe a little earlier" she said. According to
Cox, the Hospital decided in 1979 that the charge and as-
sistant head nurses should not be in the unit and there-
fore filed the petition for clarification before beginning
negotiations with the Union.
Cox also testified that she did not ask or encourage
any first-line supervisors to vote on either July 17 or
July 27 and knew no one in the hospital administration
who did. Also, she said that neither she nor any other
1z Copies of the sign-up sheets for the July 17 and July 27 meetings
were received i evidence as G.C. Exhs 5(a) and 5(b).
636
ST. JOSEPH'S HOSPITAL
hospital official asked or encouraged Miniaci to attend
any of the negotiating sessions. No attempt was made to
remove Miniaci from the negotiating committee because,
she said, "we didn't know for sure what was going on,
really, with the first line supervisors."
According to Cox, the 1979 negotiations were "very
traumatic" and "very difficult" for both sides. "It was
the worst one I've ever gone through" she said. On re-
ceiving the 10-day strike notice on July 19 Cox stated
that the hospital administration met with its first-line su-
pervisors and told them to prepare for the strike. Her
notes indicate that they were told:
1. NLRB - states that you are supervisors.
2. You as supervisors are to take care of pts
during the strike if we have one. This is especially
important in a hospital where pts lives are at stake.
3. We are instructing you to come to work &
take care of pts. We cannot conceive of a situation
when you would not want to work.
4. We are stopping dues deductions in payroll to
CNA and we are placing you on hospital benefits &
on FLS salary schedule. We will hold a special
meeting a year, Mrs. C. & Cee.
5. As far as negotiations are concerned, we had
hoped not to be in our present position of giving a
final offer but we were forced to do so. We did not
desire a confrontation. Now that this has occurred,
we must tell you once more that you are FLS, &
we expect you to perform your duties as supervi-
sors.
Dolores Miniaci is presently employed at another
medical facility in San Francisco and appeared under
subpena. She became a first-line supervisor as a night
charge nurse on the 11 to 7 shift in intensive care on
March 11. Shortly thereafter she was elected, as she had
been in 1977, as a member of the Union's negotiating
committee. 13 Miniaci's name was suggested as a member
of the Union's negotiating committee by other nurses,
and she never told the Hospital she was a candidate for
the job. She stated that she participated in the negotia-
tions only on behalf of the nurses. She confirmed that
she engaged in informational picketing (on roller skates)
after July 19. She asserted that the Hospital did not tell
her, or anyone else as far as she knew, to vote.
Miniaci indicated that she exercised limited supervising
authority as a charge nurse over six employees, including
one LVN, as she was "still new to some of the policies."
She hired no one and fired no one but did counsel em-
ployees concerning the care of patients, she said. She
also approved overtime, assigned patients to nurses, han-
dled timecards, made up schedules, and made an evalua-
tion of one employee.
Miniaci said she attended both ratification meetings but
told no one how to vote. 4 Miniaci said she attended a
first-line supervisors' meeting held at the home of Sue
i3 According to Miniaci, the nurses voted on approximately 25 names.
She said of the six elected to the committee three were "nurse representa-
tives," and three were "sort of members at large"
14 Miniaci said she spent 9 hours at the July 27 ratification meeting
and notified employees of the vote to be taken that day.
Rollins after informational picketing had begun. "[W]e
were being called up as managers now to help out in the
event of a strike," and "we just wanted to sit down and
discuss what was going on," she said.
Section 8(a)(1) and (2) of the Act makes it an unfair
labor practice for an employer:
(1) to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in sec-
tion 7; [or]
(2) to dominate or interfere with the formation or
administration of any labor organization or contrib-
ute financial or other support to it: Provided, That
subject to rules and regulations made and published
by the Board pursuant to section 6, an employer
shall not be prohibited from permitting employees
to confer with him during working hours without
loss of time or pay.
Nassau and Suffolk Contractors' Association, Inc., 118
NLRB 174 (1957), set forth certain guidelines applicable
to employer supervisors voting in union elections and
serving on union negotiating committees. In that case an
association of contractors had negotiated on behalf of a
number of construction firms with the International
Union of Operating Engineers. Smith and Dean were
members of the Union's negotiating committee and Hen-
drickson, president of one of the employer construction
firms, was a member of the association's negotiating
committee. Smith and Dean were master mechanics and
as such supervised at least five engineers and effectively
recommended hiring and firing of employees. Smith
worked for Hendrickson, was responsible for mainte-
nance of equipment worth "at least a million dollars"
and maintained a desk with two assistants in the general
office of the firm. The master mechanics and other su-
pervisors, including executives not included in the bar-
gaining unit, participated in union elections. The Board
held in the case that "company executives and ranking
supervisors" outside of the bargaining unit could not
vote in union elections or serve on union negotiating
committees. Low-level supervisors who are members of
the bargaining unit may vote in union elections, said the
Board, but not serve as members of a union's negotiating
committee. These passages from the Board's Nassau and
Suffolk Contractors' Association decision (118 NLRB at
184) are of interest here:
3. As stated, the Trial Examiner found that the
participation of Master Mechanics Smith and Dean
in bargaining negotiations on behalf of the Union
proves that their employers unlawfully dominated
and interfered with the administration of the
Union's affairs. We agree that this conduct consti-
tutes unlawful interference, but not domination.
The Board went on to explain that there was no evi-
dence that the employers had anything to do with the
appointment of Dean or Smith to the union's negotiating
committee and that the employee members had no basis
for believing "they were employer instruments for the
control of the negotiating committee"; they were senior
637
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the union, union stewards, members of the
bargaining unit and held master mechanic positions with
approval of the union. "[T]o require the employer to ex-
ercise some sort of veto power over the appointment of
foremen to official positions within the union to avoid
the charge of dominations would seem to involve inter-
ference in the affairs of the union, which is precisely
what Section 8(a)(1) of the Act is designed to prevent."
The Board explained as follows why service of the
two master mechanics on the union's negotiating com-
mittee constituted unlawful interference with the union's
affairs ( 118 NLRB at 187):
Although we have rejected the Trial Examiner's
finding that Respondent Association dominated Re-
spondent Union because 2 master mechanics em-
ployed by members of the Association were on the
12-member union negotiating committee, we do be-
lieve that it is improper for supervisors, even those
with predominantly union loyalty, to serve as nego-
tiating representatives of employees; and to the
extent that the employer acquiesces in such partici-
pation the employer is guilty of unlawful interfer-
ence with the administration of the Union. It is true
that we have held that the employers of master me-
chanics are not responsible for the roles played by
the latter in the internal affairs of the Union and
that their participation in bargaining negotiations in
behalf of the employees does not, under the circum-
stances of this case, justify a finding of union domi-
nation by the employers of such master mechanics.
But participation in bargaining negotiations vis-a-vis
the employer is not merely a matter of a union's in-
ternal affairs, and, although conduct may fall short
of proving control, it may nevertheless constitute
unlawful interference with a union's administration.
Despite the large measure of control exercised
over master mechanics by the Union, the mechanics
remain in part agents of their employers with a re-
sulting divided loyalty and interests. That conflict
of interest may be accentuated, as in the case of
Clifford Smith, by the payment of special bonuses
at the discretion of the employer. Employees have
the right to be represented in collective-bargaining ne-
gotiations by individuals who have a single-minded loy-
alty to their interests. Conversely, an employer is
under a duty to refrain from any action which will
interfere with that employee right and place him
even in slight degree on both sides of the bargaining
table. There is no evidence that employers were re-
sponsible for the naming of any master mechanics
to the Union's negotiating committee. But they
were under a duty, we think, when confronted with
a union negotiating committee which included their
own agents, to protest the composition of the com-
mittee and to refuse to deal with it because it was
tainted with an apparent employer interest. By fail-
ing to register such protest and by actually dealing
with the committee as constituted, Respondents
Hendrickson and Radory acquiesced in such ap-
pointments and to that extent, we find, interfered
with the administration of the Union in violation of
Section 8(a)(2) and (I) of the Act.
CNA states in its post-hearing statement that "we do
not believe that the respondent has been shown to have
improperly interfered in the affairs of CNA" and asserts
further that "even if it were to be assumed that a Section
8(a)(1) and (2) violation has occurred, the facts of this
case would not support an order calling for the nonen-
forcement of the agreement between the parties." Says
the Union: "If there is an unfair labor practice in this
case, it is at best a technical kind of violation for which
neither Employer nor CNA bears any direct responsibil-
ity."
Respondent argues in its brief that there is "not one
whit of evidence that interference with or domination of
CNA by the Hospital did in fact occur." Respondent's
brief goes on:
On the contrary, the evidence establishes that the
Hospital's relationship with the Union throughout
the negotiations was adversary, hostile, and that
CNA was prepared to exercise its economic weap-
ons against the Hospital. All of the facts in the
record suggest that the outcome of the negotiations
would have been exactly the same even if Miniaci
had been barred from the CNA negotiating team
after June 21 and even if the first-line supervisors
had not voted on ratification or a strike.
Respondent further contends that abrogation of the con-
tract between the Hospital and CNA, "now past mid-
term," as sought by the General Counsel, for "at most
. . an extremely technical violation, given the universal
confusion over the status of the first line supervisors
prior to the Board's denial of review in the unit clarifica-
tion case, would destabilize labor relations between the
Hospital and CNA and punish the Hospital for its good
faith effort not to interfere with the administration of
CNA."
These arguments are persuasive ones, but I believe that
under Board law that Miniaci's participation in the nego-
tiations after June 21 and the voting by her and other
first-line supervisors on July 21 and 27 "interfered" with
employees' Section 7 rights and the Union's administra-
tion of its affairs. The facts of the case are rather unique,
however, and I regard the violations as technical in
nature. 16 The General Counsel's case in Nassau and Suf-
folk Contractors' Association was stronger than in the in-
' The Board has continued to follow the principles enunciated in
Nassau and Suffolk Contractors' Association. See, for example, Geilich Tan-
ning Co., 128 NLRB 501 (1960), on remand; A L. Mechling Barge Lines,
197 NLRB 592 (1972): Schwenk, Incorporated, 229 NLRB 640 (1977); Ma-
sonry Contractors Associates of Houston. Texas, 245 NLRB 893 (1979).
The Board's "policy regarding conflict of interest issues raised by the
active participation of supervisors of the employer with which a labor
organization seeks to bargain . in the internal affairs of state nurses
associations" (quoting from Abington Memorial Hospital, 250 NLRB 682
(1980)), is set forth in Sicrra Visla Hospital Inc., 241 NLRB 631 (1979) (on
remand)
6 The complaint does not allege that the Hospital dominated the
CNA Union
638
ST. JOSEPH'S HOSPITAL
stant matter," but the Board indicated that it would pre-
sume unlawful interference whenever an employer nego-
tiates with a union committee that includes a supervisor
agent of the employer. 18
The Board spoke of an employer being "guilty of in-
terference" if it "acquieces" in the participation of a su-
pervisor as a member of a union negotiating committee. I
interpret the Nassau and Suffolk Contractors' Association
case to apply to the case at bar and to require, after the
Regional Director's decision in Case 32-UC-16 on June
21, the Respondent to protest the composition of the
Union's negotiating committee and to refuse to deal with
it as long as Miniaci continued to serve on it.19 Also,
under the "Nassau doctrine" the assistant head and
charge nurses could not properly vote either on July 17
or 27 because, although they were only low-level super-
visors, 2 0 the Regional Director had determined on June
21 that they were no longer members of the bargaining
unit.
The Board in Nassau and Suffolk Contractors' Associ-
ation articulated a clear basis for invoking a duty on an
employer not to bargain with a union negotiating com-
mittee having one of its own supervisors as a member. It
is less clear how an employer in a case such as this, with
a change of status being made by the Board with respect
to certain employees during "hard bargaining" negotia-
tions between the parties, could prevent newly designat-
ed low-level supervisors from attending and voting in
union ratification meetings-without later being subject
to a charge of interference with the Union's affairs or the
rights of the employees in the unit. It would have been
sufficient perhaps had the Hospital announced, on being
advised of the Regional Director's decision, that all
charge and assistant head nurses were not to thereafter
vote in CNA elections or otherwise participate in CNA's
internal affairs. In the case at bar none of the Respon-
dent's officials knew who attended the ratification meet-
ings and voted on July 17 and 27, but its negotiating
committee was able to see Miniaci at the bargaining ses-
sions and no doubt knew that the Regional Director had
determined that she was to be considered a first-line su-
" Smith and Dean had more authority than Miniaci, and there is no
indication in the record that Miniaci would have consciously compro-
mised her loyalty to or interest in representing the employees in the bar-
gaining unit. The evidence of record persuades me to believe Miniaci's
loyalty continued to he with the employees in the unit after she became a
first-line supervisor in 1979. Unlike some other first-line supervisors, Min-
iaci refused to testify for the Hospital in the unit clarification proceeding
18 While agreeing that the Respondent's first-line supervisors are statu-
tory supervisors, the Union and the Hospital did not concede that they,
were the Respondent's agents. I( is difficult to consider Miniaci to be a
statutory supervisor, however, without also considering her to be an
agent See Sec 2(11) of the Act Of course an employee can be an agent
without being a supervisor (see, for example. IHelena Laboratories Corpo-
ration, 225 NLRB 257 (1976), modified 557 F2d 1183 (Sth Cir 1977))
9 That the Regional Director's determination with respect to the su-
pervisory status of the charge and assistant head nurses became immedi-
ately operative without affirmance b the Board, see General Cormmruni-
cations Service. 201 NI.RB 1003 (1973). citing Sec 102.67 of the Board's
Rules and Regulations t is to be noted that the General Counsel's atllor-
ney, and the complaint impliedly. concedes that there was no illegality
for Miniaci to participate as a member of the Union's negotialing leam
prior to June 21
20 The Regional Director found in Case 32 UC 16 that "most 'first
line supervisors' also engage in direct patient care tip to X80; of their
time."
pervisor. There are, as the Respondent Hospital and
CNA Union point out, a number of factors which make
this case unusual and eliminate the need for an order ab-
rogating the collective-bargaining agreement.
Only one member of the Union's negotiating team was
a supervisor and the facts concerning her election to that
position and performance in that position thereafter show
that there was no apparent conflict of interest. She had
previously served as an employee representative in prior
negotiations and, although promoted to charge nurse in
March, it is apparent that she did not seek to serve any
interest of management during the 1979 negotiations. She
was a low-level supervisor, an inexperienced one who
became a statutory supervisor only after the Regional
Director issued his decision on June 21 in the middle of
the bargaining. There was no communication between
her and the Hospital's management about the bargaining.
There was disagreement between the Hospital and CNA
and, thus, confusion as to who should be considered stat-
utory supervisors among the charge and assistant head
nurses. Miniaci left the bargaining committee after the
Regional Director issued his decision in Case 32-UC-16
and returned to the committee after the Union decided
to appeal the Regional Director's determination. Further,
Miniaci was not an active participant in the bargaining,
but there was never any doubt about where her loyalty
lay, as indicated by her informational picketing.
As for the participation of the first-line supervisors in
the ratification votes, the first vote resulted in the rejec-
tion of a hospital proposal, and on June 27 the contract
would have been ratified whether the charge and assis-
tant head nurses voted or not. There is no evidence that
these supervising nurses (or any other supervisors)
sought to influence any of the nurses how they should
vote. Nor is there any evidence that the Respondent
knew they would vote. In any event, as the Respondent
points out, ratification is really an internal matter for a
union and not subject to challenge by an employer. See
Branch 6000, National Association of Letter Carriers, 232
NLRB 263 (1977), affd. 595 F.2d 808 (D.C. Cir. 1979).
Notwithstanding these unusual factors in the case, it is
of course the potential for interference that is the test, as
the General Counsel points out, and on this basis I do
find the Respondent violated the Act-albeit on a techni-
cal basis. Quoting from Employing Bricklayers' Association
of Delaware Valley, 134 NLRB 1535, 1537 (1961):
To the extent that management officials are permit-
ted to participate in the formulation of a union's
policies, relating directly or indirectly to negotiating
and administering bargaining agreements, such offi-
cials are forced to choose between competing loyal-
ties. Management officials may even make these
choices based on their personal rather than their
employers' interests, and in some degree their
choices may even be of greater benefit to the union
than they are to the employer. But despite the pos-
sibility that a management official, who is also a
member of a union, may act from what he con-
ceives the true interest of the union to be, this is
nevertheless an area in which, in our opinion, only
639
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union members who have no divided loyalties
should be admitted.
These factors are relevant in the matter of remedy in
the case of course. Abrogation of the contract, which
was reached after "hard bargaining in an arms-length re-
lationship" and in effect for more than a year, is not an
appropriate remedy, in my view. It is sufficient, I be-
lieve, that the Respondent be ordered to cease engaging
in the violations found. See The Crossett Company, 140
NLRB 667 (1963).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER2 1
The Respondent, St. Joseph's Hospital, Stockton, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Negotiating with any union committee which in-
cludes any supervisor of the Respondent.
(b) Permitting a supervisor to participate in a union
election conducted by, for, or on behalf of the union
membership unless such person is in the bargaining unit
and is a low-level supervisor.
(c) In any like or related manner interfering with the
administration of a union or employee union members in
the exercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which will ef-
fectuate the purpose of the Act:
(a) Post at its hospital in Stockton, California, copies
of the attached notice marked "Appendix. " 2 2 Copies of
21 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
such notice, to be furnished by the Regional Director for
Region 32, shall be duly signed by the Respondent and
posted immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Decision,
what steps the Respondent has taken to comply here-
with.
22 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
ORDER OF HE
NATIONAL LABOR RELArIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with the internal affairs
of any union, including the California Nurses' Asso-
ciation, or the rights of employee members of CNA
either by permitting a supervisor to participate in
union elections (unless such person is in the bargain-
ing unit and has only low-level supervisory authori-
ty) or by negotiating with a union committee that
includes any supervisor.
WIE Wil L NOT in any like or related manner in-
terfere with the administration of a union's affairs or
the rights of employee union members.
S'I. JOSEPH'S HOSPITAl.
640