Abington Memorial Hospital

National Labor Relations Board - Board Decisions

Jul 17, 1980

250 N.L.R.B. 682 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abington Memorial Hospital and Pennsylvania
Nurses Association, Petitioner. Case 4-RC-
12954
July 17, 1980
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on December 21, 1977, before
Hearing Officer J. Victor Waye. Following the
hearing, and pursuant to Section 102.67 of the Na-
tional Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Regional Director
for Region 4 transferred this case to the Board for
decision. Thereafter, the Employer and the Peti-
tioner, Pennsylvania Nurses Association (PNA),
filed briefs.
On March 30, 1979, the National Labor Rela-
tions Board issued its Supplemental Decision and
Order in Sierra Vista Hospital, Inc.,' in which the
Board set forth its policy regarding conflict-of-in-
terest issues raised by the active participation of su-
pervisors of the employer with which a labor orga-
nization seeks to bargain, or by supervisors of third
parties, in the internal affairs of state nurses associ-
ations. By notice dated June 1, 1979, the Board af-
forded the parties the opportunity to submit state-
ments of position in light of the Board's decision in
Sierra Vista. 2 Both parties submitted such state-
ments. Petitioner filed a reply to the Employer's
statement of position, and the Employer filed a
brief in opposition to Petitioner's reply.
On July 25, 1979, the Board issued its Order re-
manding the proceeding to the Regional Director
"for the sole purpose of adducing evidence as to
whether or not the Petitioner is disqualified be-
cause the presence of the Employer's supervisors
or the supervisors of third parties may give rise to
a conflict of interest in the respresentation of the
Employees." Pursuant to said order, a hearing was
held on February 11, 1980, before Hearing Officer
Wendella P. Fox. Thereafter, PNA filed a post
hearing brief.3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
241 NLRB 631 (1979).
2 In its June I. 1979, notice, the Board also advised the parties that,
upon a proper showing. it would entertain a request for further hearing
3 In its brief dated January 23, 1978, and in its statement of position,
the Employer requested oral argument That request was not renewed
after the hearing held on remand and it is unclear whether the Employer
still desires oral argument In any event, the request is hereby denied, as
the record and the briefs adequately present the issues and the positions
of the parties.
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
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board finds:
1. The parties stipulated that the Employer is a
nonprofit Pennsylvania corporation engaged in the
operation of a health care facility at Abington,
Pennsylvania. The parties further stipulated that
during the 1976-77 fiscal year, the Employer's
gross volume of business exceeded $500,000, and
the Employer's purchases of goods directly from
outside the Commonwealth of Pennsylvania ex-
ceeded $50,000. Accordingly, we find that the Em-
ployer is engaged in commerce within the meaning
of the Act and that it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The record shows that PNA is an organization
in which employees participate and which exists, at
least in part, for the purpose of representing its
members in collective bargaining. We find, there-
fore, that PNA is a labor organization within the
meaning of Section 2(5) of the Act.4
The Employer asserts, however, that PNA
should be disqualified from representing the Em-
ployer's nurses because supervisors and manage-
ment level employees serve as officers in, and on
the board of, directors of PNA. In Sierra Vista,
supra, we recognized that under some circum-
stances the participation of supervisors in the inter-
nal operations of a state nurses' association such as
PNA may serve to disqualify that association from
representing certain employees. Such disqualifica-
tion will result when an employer meets its burden
of showing that participation of its own supervi-
sors, or supervisors of third parties, presents a
"clear and present danager" of a conflict of interest
interfering with the collective-bargaining process.
The Employer herein has not met that burden.
The record reveals that two of the Employer's
supervisors now hold leadership positions within
PNA. 5 One is a member of PNA's board of direc-
tors and the other is a member of PNA's Commis-
sion on Nursing Education. The record does not
indicate the nature of their duties or responsibilities
within PNA. The Employer merely claims that
4 Lancaster Osteoparhic Hospital Assoeiation, Inc., 246 NL RB No. 96
(1979)
' Ai the hearing, the Employer presented evidence that a third super-
visor wsas chairperson of the District 7 Commission (on Economic and
General Welfare in 1978 and 1979 Hsowever, this commission was abol-
ished in 1979 and, in any event, the district or county association plays
no role in collective bargaining L.ancastr Oireopathic Hlspital .
4
ssX'-
ation. Inc.. supru. fn 5
250 NLRB No. 98
682
ABINGTON MEMORIAL HOSPITAl
they "are in a position to influence and dominate
and control collective bargaining activities."
Contrary to the Employer's contention, the mere
assertion that the Employer's supervisors hold lead-
ership positions within PNA is insufficient to dem-
onstrate a "clear and present danger of interference
with the bargaining process."6 As we stated in
Sierra Vista, such participation will result in dis-
qualification of a labor organization only where the
activities of its supervisors will affect an employer's
interest in the loyalty of its own supervisors or the
employees' interest in a bargaining representative
uncompromised by loyalty to their employer. The
Employer here has failed to demonstrate a conflict
of interest, as it has not adduced any evidence that
the activities of its supervisors within PNA have
any connection with PNA's collective-bargaining
activities.
Nor is a conflict of interest shown by the partici-
pation in PNA of supervisors employed by other
employees. The testimony of Katherine Grove,
PNA's executive director, indicates that at least
five of PNA's officers or directors were, as of the
February 11, 1980, hearing, supervisors employed
by other hospitals. However, this fact, standing
alone, does not create a disqualifying conflict of in-
terest. As stated in Sierra Vista, we do not assume
an inherent conflict in the bargaining process be-
tween supervisors and employees. The active in-
volvement in PNA of a third-party supervisor may
result in a conflict of interest only when a demon-
strated connection is shown between the employer
of the employees who seek to be represented by
PNA and the third-party employers.7 In this case,
the Employer has merely asserted that some of
PNA's leaders hold supervisory positions in hospi-
tals which compete with the Employer for the
services of nurses, without demonstrating that these
supervisors exert any control or influence over col-
lective-bargaining matters. Absent such showing,
the Employer's assertion clearly is insufficient to
demonstrate a clear and present danger of a con-
flict of interest which compromises PNA's bargain-
ing integrity.
Moreover, we note again, as we did in Lancas-
ter,8 that PNA has insulated its collective-bargain-
ing activities at the local level from supervisory
participation or influence. PNA conducts its bar-
gaining through local units, chartered by PNA's
Commission on Economic and General Welfare
(CEGW), solely for the purpose of bargaining with
an employer. These local units operate indepen-
dently of PNA, with their own bylaws, officers,
O Sierra Viwa. vupra
? Sierra Viao, vupra
' Supra, fn 3
and dues structure. The local units make all deci-
sions with regard to collective bargaining, includ-
ing determining the demands to present to manage-
ment and deciding whether to call a strike. PNA
assists local units in organizing and collective-bar-
gaining activities through its CEGW. This commis-
sion, consisting of six nonsupervisory nurses select-
ed by local units and three nonsupervisory nurses
selected by the PNA's board of directors, provides
guidance and staff support to local units. However,
CEGW does not initiate, review, or control bar-
gaining demands, tactics, or strategy taken by a
local unit. Although PNA provides CEGW with
operating funds, CEGW controls the expenditure
of its own funds, and is not accountable to PNA
for such expenditures. If PNA's allocation to
CEGW is insufficient to support its activities,
CEGW may raise additional funds by means of a
special assessment from those nurses who are cov-
ered by PNA's collective-bargaining agreements.
Based on the foregoing, we find that PNA is not
disqualified from representing the Employer's em-
ployees for the purpose of collective bargaining.
The possibility of supervisory control, of bargain-
ing, either directly or through PNA's allocation of
funds to CEGW, is too remote and speculative to
support a finding that "there is a clear and present
danger of a conflict of interest which compromises
[Petitioner's] bargaining integrity."9
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit consisting
of certain nurses employed by the Employer at its
Abington, Pennsylvania, location. As the parties
have stipulated to this unit, we find that the follow-
ing employees constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act and we shall direct
that an election be conducted therein:
All full-time and regular part-time graduate
and registered nurses employed by the Em-
ployer, including faculty nurses (including re-
cruitment director and receptionist), staff relief
nurses who work an average of one shift per
week during tenure of employment, team lead-
ers, IV nurses, employee health nurse, nursing
service instructors and relief coordinators; ex-
cluding all other employees including nurse
epidemiologist, utilization reviewers, utilization
analyst, nurse coordinators, nurse managers,
nurse anesthetists, medical audit analyst, regis-
tered nurses employed in the business office
! Sicrra I'cita, uvpra
6hR3
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and casual PRM relief nurses, guards and su- For the reasons set forth in my concurring opin-
pervisors as defined in the Act. ion in Baptist Hospitals, Inc., d/b/a Western Baptist
[Direction of Election and Excelsior footnote Hospital, 246 NLRB No. 25 (1979), and my dissent
omitted from publication.] in Sierra Vista Hospital, Inc., 241 NLRB 631 (1979),
I agree with my colleagues' decision to direct an
MEMBER TRUESDALE, concurring: election in the unit found appropriate.