New York University

National Labor Relations Board - Board Decisions

Apr 24, 1975

217 N.L.R.B. 522 (N.L.R.B. 1975)

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York University Medical Center , a Division of
New York University and Association of Staff Psy-
chiatrists , Bellevue Psychiatric Hospital, Peti-
tioner . Case 2-RC-16607
April 24, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS KENNEDY AND
PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Robert A.
Reisinger.' Thereafter, the Regional Director for Re-
gion 2 transferred this proceeding to the National La-
bor Relations Board for decision, pursuant to Section
102.67 of the Board's Rules and Regulations, Series 8,
as amended. The Employer and the Petitioner filed
briefs in support of their respective positions: -In addi-
tion,'the League of Voluntary Hospitals and Homes of
New York filed an amicus curiae brief, and the Peti-
tioner filed a-response thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby af-
firmed.
Upon the entire record in this case, including the
briefs, the Board finds:
1. New York University Medical Center, herein
called Medical Center, is an administrative division of,
and operates under the procedures of, New York Uni-
versity, herein called NYU, a private, nonprofit institu-
tion of higher education located in New York, New
York, and elsewhere. The Medical Center is subject to
the supervision and control of the NYU board of trus-
tees, which selects the members of the Medical Center
board of trustees. The chief executive officer of the
Medical Center is the provost, who is in charge of the
Medical Center's programs in education, research, and
patient care and is vice president of health affairs at the
University.
I The Employer filed a petition for an election in the same unit involved
herein in 1973, based on the Petitioner 's demand for recognition . The Act-
ing Regional Director , after a hearing , dismissed this petition on November
5, 1973, on the ground that "the unit would be composed of employees who
perform substantial services in, and directly for, exempt hospitals , and who
function as an integral part thereof " The Employer 's request for review was
denied on December 4, 1973, and its motion for reconsideration was denied
on January 21, 1974. The transcript , including exhibits, of this prior hearing
was introduced into evidence in the instant proceeding
During the past fiscal year, NYU derived gross reve-
nues in excess of $1 million in tuition fees. During the
same period, NYU purchased goods, materials, and
services in excess of $50,000 directly from sources
located outside the State of New York. Based on the
foregoing stipulated facts, we find that the Employer is
engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to
assert jurisdiction herein.'
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Sections 9(c)(1) and 2(6)
and (7) of the Act.
4. The Petitioner seeks to represent a unit of "all
full-time and regular part-time attending psychiatrists
employed by New York University Medical Center
... at its Bellevue facilities." Alternatively, Petitioner
seeks a unit of all "Code 101 clinical psychiatric staff
and the Code 102 academic staff, exclusive of supervi-
sors and individuals primarily engaged in administra-
tion, who perform clinical or teaching services at Belle-
vue Hospital Center." In addition, Petitioner has a
tertiary unit, which consists of the "clinical, non-tenure
track psychiatric staff at the Psychiatric Division and
all other fully licensed in New York State clinical
physicians rendering patient care to patients of Belle-
vue General Hospital pursuant to affiliation agree-
ments with the Health and Hospital Corporation of the
City of New York, herein called HHCNY, excluding
regular faculty, supervisors and administrators, and
those physicians who receive an `honorarium' for nomi-
nal part-time service." The Employer initially contends
that no faculty bargaining unit can be appropriate as
full-time faculty members are not employees within the
meaning of the Act. In making this contention, the
Employer requests that the Board reconsider its previ-
ous decision on this issue concerning the same
Employer.' As in the earlier decision, we find that the
faculty members are professional employees under the
Act who are entitled to vote for or against collective-
bargaining representation. Alternatively, the Employer
asserts that, should the Board rule against is contention
that faculty members are not "employees" within the
Act's definition, the only appropriate unit is one com-
posed of all full-time compensated NYU School of
Medicine faculty members.
Medical Center.- The Medical Center includes the
NYU School of Medicine, herein called the Medical
School, which has 24 departments, the Postgraduate
School of Medicine, the University Hospital, the Rusk
Institute of Rehabilitative Medicine, herein called the
2 New York University, 205 NLRB 4 (1973).
3 Ibid
217 NLRB No. 116
NEW YORK UNIVERSITY MEDICAL CENTER
Rusk Institute, and various medical dispensaries, medi-
cal clinics , and medical institutes . The University Hos-
pital is a voluntary nonprofit private hospital , directly
owned and operated by the Medical Center , which has
626 beds . It occupies a separate building which is physi-
cally connected with the Medical School , has its own
staff, and permits physicians who have privileges to
admit and treat patients for compensation . The Rusk
Institute is a special medical institute which has a sepa-
rate wing or building and its own administrative struc-
ture within the overall context of the Medical Center.
The Medical School and Postgraduate School of Medi-
cine offer the "M.D." degree and advanced postgradu-
ate medical education . The basic Medical School pro-
gram consists of 4 years of didactic and clinical
instruction , with about 150 students in each class year.
In connection with its role of training undergraduate
and graduate medical students , the Medical Center has
arranged to have members of its medical faculty- per-
form professional services at a number of city , state,
and Federal hospital facilities , including Bellevue Hos-
pital Center , involved herein and called BHC, which is
owned by New York City and operated by HHCNY.
The Medical School has the sole responsibility for prov-
iding the attending staff, residents , and interns who
perform the medical services at BHC . At least 14 of the
24 Medical , School departments have responsibility for
patient care at BHC . BHC is a public hospital complex
which, with 1 ,572 beds, constitutes the fourth largest
hospital in the United States. It admits nearly 30,000
patients annually . BHC has an annual operating budget
of $71 million, and employs more than 6,000 nonmedi-
cal personnel.
Each chief of service at BHC also holds the position
of professor and chairman of a department on the
faculty of the Medical School and coordinates the clini-
cal care , teaching , and research functions . Thus, the
psychiatric, division of Bellevue, herein called Bell
Psych , a separate building but part of BHC with 488
beds, 1,200 patients a year, and 20 separate wards,
houses the department of psychiatry of the Medical
School . Bell Psych is within 2 or 3 blocks of University
Hospital, the Rusk Institute, the Medical School, and
the Postgraduate School of Medicine . Its house staff
and attending staff are directed by the chairman of the
psychiatry department, and the entire professional
medical staff has university faculty status . The attend-
ing psychiatrists , who compose the unit sought by the
Petitioner, which numbers about 60 individuals, per-
form their duties in this hospital, caring ,for patients,
advising and consulting with interns and residents, and
giving some instruction and guidance to students as
described hereafter . All staff appointments to BHC or'
to University Hospital are made through the Medical
Center by NYU, and no doctor practices or cares for
523
patients in the hospitals who does not have some type
of faculty status . NYU is reimbursed under a contrac-
tual arrangement with HHCNY for some of the work
performed by its medical faculty members at BHC,
including the entire work performed by the attending
psychiatric staff rendering clinical care to patients at
Bell Psych.'
Tenure: The approximately 60 psychiatrists sought
in the petition are members of the Medical School de-
partment of psychiatry and have nontenure-producing
appointments . For administrative purposes they are
designated "Code 101" as contrasted with the approxi-
mately 20-25 tenured or tenure-track faculty of the
psychiatry department of the Medical School who are
designated "Code 102." Some Code 102 faculty mem-
bers do not have tenure -producing appointments. Part-
time `faculty may be designated either Code 101 or
Code 102 and have nontenure-producing appoint-
ments . The Code 101 staff receives faculty titles which
are preceded by the word "clinical" which in turn
denotes "part-time faculty status.s5
Qualifications: As a condition to initial appointment
and maintenance of his or her position as a Code 102
faculty member, a psychiatrist must meet certain more
rigorous academic standards and criteria than those
required for Code 101 staff members , in particular,
scholarly contributions , teaching ability , participation
in university governance, and a willingness to limit
outside remunerative work.
Salaries: The salaries of Code 101 clinical psychia-
trists are paid for from the affiliation contracts with
New York City. Compared with Code 102 psychia-
trists, the average salary for Code 101 psychiatrists is
lower in the ranks of professor and instructor but
higher in the ranks of associate and assistant professor.
However, the majority of the Code 102 staff achieves
an average salary in excess of $43 ,000 per year, while
the majority of the Code 101 staff earns an average
salary of about $28,000 . Of course, these figures do not
include outside income which will be discussed later.
The Code 101 clinical staff is paid biweekly while the
Code 102 staff is paid on a monthly basis.
Fringe Benefits: Code 101 faculty members are eligi-
ble for a Blue Cross medical insurance program of 120
days' coverage, while Code 102 staff members receive
a program of 21 days' full coverage and 180 days' half
coverage . Members of the Code 102 staff are eligible for
an extended group life insurance program , while Code
4 The parties stipulated that the Medical Center controls all phases of the
professional, medical , and psychiatric staff of those services at BHC operat-
ing under the contract with HHCNY in regard to the supervision, assign-
ment, wages, hours , conditions of employment , and labor relations policies
affecting the professional, medical , and psychiatric staffs in those services,
and further that HHCNY does not exercise control in any of the aforemen-
tioned areas.
' The distinction between full -time and part-time faculty in this context
is unrelated to the number of hours worked.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
101 staff members are not eligible. Code 101 faculty
members are entitled to various types of leave for
health or personal reasons which do not apply to Code
102 faculty. But members of the Code 102 staff get
sabbatical leave which Code 101 members cannot ob-
tain.
Hours: Code 101 faculty members are scheduled to
work from 8:45 a.m. to 4:15 p.m., Monday through
Friday, and are assigned to a particular ward or clinical
service unit. The time that Code 102 faculty members
are present depends on their actual assignment within
the department and they are not assigned to ward or
unit duty. The Code 102 faculty members have profes-
sional discretion to discharge their duties within a gen-
eral time frame while the Code 101 staff members have
a very specific assignment of time in which they are
expected to fulfill their responsibilities. In practice, it
appears that the schedules of both groups are quite
flexible. Code 101 faculty can have outside patients
after hours on an unlimited basis and have scheduled
outside patients during their regular hours, putting in
an additional 20 or 30 private patient hours per week
sometime. Full-time Code 102 faculty members are
supposed to limit their outside patient work to 1 day a
week.
University Citizenship: In terms of academic gover-
nance, Code 101 and 102 staff members are eligible to
serve and have equal voting rights on BHC committees
for attending physicians. In addition, both staff are
members of a number of Medical School committees.
Both groups have members on departmental commit-
tees, although the Code 101 participation is more lim-
ited. There is only one Code 101 member on the depart-
mental policy committee and-none on the grievance
committee or the appointments and promotion com-
mittees. There are Code 101 faculty members on the
joint faculty-resident committee, the undergraduate
curriculum committee, the resident admissions com-
mittee, and the peer review committee. In addition, the
space committee is chaired by a member of the Code
101 staff.
Supervision: The chairman of the department of psy-
chiatry of the Medical School makes all recommenda-
tions about appointments and promotions of both Code
101 and Code 102 faculty members, which in turn must
be approved by the dean and the board of trustees. The
chairman's recommendations are usually followed. The
hiring process for Code 101 and Code 102 faculty is the
same . The director for psychiatric services , Dr. Alex-
ander Thomas, is one of several directors who are
subordinate to the chairman. Dr. Thomas has been
delegated the responsibility for the professional care
services provided by the department. However, he
coordinates his responsibilities with the supervisors re-
sponsible for undergraduate and resident teaching in
the Medical School if his decisions involve the re-
scheduling or shifting of the teaching schedule for ei-
ther the medical students or residents or both. Dr.
Thomas interviews applicants for positions as Code 101
psychiatrists and makes recommendations to the chair-
man. The chairman also interviews applicants for Code
101 positions.
Teaching and Research: Both Code 101 and Code
102 faculty members participate in-the instruction of
first-, second-, third-, and fourth-year medical school
students and first-, second-, and third-year residents.
Third-year medical students are divided into groups
and rotated through various departments in 4- to 5-
week cycles. There are 170 students in the third-year
program. The class is divided into sixths for the rota-
tional process described above. The instruction in psy-
chiatry consists primarily of clinical supervision of the
students' workup and care of psychiatric patients, and
formal conference time. Both Code 101 and Code 102
faculty members participate in this instruction. In addi-
tion to Medical Center residents, Code 101 and Code
102 faculty members instruct Veterans Administration
residents while they are rotating through Bell Psych
and the Veterans Administration Hospital, and Dunlop
Hospital residents rotating through Bell Psych. They
also participate in the instruction of psychology interns
and social workers, and teach some miscellaneous
courses.
There are as many as 200 medical students assigned
to the department of psychiatry at any one time. There
are only 3 weeks during the year, Christmas week and
the last 2 weeks of August, when it is likely that no
students would be present. Because of gaps between the
various cycles, there are a total of 4 weeks between late
November and early March when only a few elective
students are assigned to the department. There are no
weeks when residents are not present.
The Code 101 psychiatrists as a group are primarily
engaged in patient care, However, the functions of
teaching and patient care often overlap and become
integrated. Thus, the Code 101 faculty members- give
both clinical and theoretical seminars to medical stu-
dents and residents. They also provide the teaching and
consulting supervision for the trainees of the patients'
clinical care. The trainee will examine the patient and
present findings to the attending physician who is a
faculty member. The faculty member will then review
the findings with the trainee, criticizing or supporting
him or her, directing the trainee to the appropriate
literature, or taking other appropriate action.
However, some Code 101 faculty members spend in
excess of 70 percent of their time in traditional teach-
ing. During the 26 weeks that third-year students are
assigned to wards, Code 101 clinical psychiatrists on
those wards spend 50 percent of their time teaching.
NEW YORK UNIVERSITY MEDICAL CENTER 525
Some Code 101 psychiatrists are not currently teach-
ing, but this is sometimes the case with Code 102
faculty members. Some courses are taught by both
Code 102 and 101 faculty members. Some Code 102
faculty members spend a majority of their time per-
forming patient care and others perform patient care
for only a small portion of their time. However, on the
whole, Code 101 faculty members spend more time
with patients than do Code 102 faculty and Code 102
faculty spend more time in formal teaching. Out of a
staff of about 60 Code 101 clinical psychiatrists, only
23 participated at all in formal instruction, and all but
7 of them taught only 1 class of 1 seminar section over
the entire year. On the other hand, out of a staff of
about 25 Code 102 faculty members, some 21 taught
courses or led seminars during the year. Some Code 101
faculty members are engaged in research projects and
some of this research is done in collaboration with
Code 102 faculty members.
interchange: There is some permanent interchange
between Code 101 and 102 psychiatrists and between
members of the department of psychiatry and members
of other departments. Some courses in the department
of psychiatry are taught by both Code 101 and 102
faculty members on an interchangeable basis. There
have been instances when a Code 101 psychiatrist has
been appointed to a Code 102 position. There are like-
wise instances where a position in the psychiatry de-
partment has been held, at different times, by a Code
101 or 102 faculty member. If a Code 102 faculty mem-
ber does not attain tenure it is possible to continue his
or her association with the Medical Center by giving
the faculty member a Code 101 appointment. If this
option were not available, it would be necessary to
terminate the faculty member.
Members of other Medical School departments have
become members of the department of psychiatry.
Similarly, psychiatry department members have as-
signments in other medical departments. Dr. Farr, a
Codle 101 and president of the Petitioner, testified that
Code 101 faculty members had either minimal or, in
the majority of cases, no direct contact with those doc-
tors located anywhere other than Bell Psych.
History of Collective Bargaining: There is no prior
history of representation concerning the psychiatrists.
While the Medical Center has a number of bargaining
units, none were established under the provisions of the
Act„ The Medical Center and the Committee of Interns
and Residents of New York City agreed to include all
interns, residents, and certain fellows who are on the
payroll of the Medical Center. No distinction is made
as to where the interns, residents, or fellows are work-
ing.
The Medical School has three separate collective-
bargaining agreements with Local 1199, Drug and
Hospital Employees Union, one for certain service em-
ployees at University Hospital, another for BHC, and
a third for Goldwater Memorial. The contract covering
University Hospital includes the Rusk Institute but not
the Medical School. The contract covering BHC no
longer includes the social workers at Bell Psych be-
cause that portion of the affiliation contract ter-
minated, and the social workers were transferred to the
New York City payroll at Bell Psych.
Pharmacists employed at Bell Psych are not covered
by any contract with the Medical Center but pharma-
cists employed at University Hospital, and until re-
cently the special pediatric project at BHC, have been
covered. X-ray technicians and other technical em-
ployees are covered at University Hospital, the Rusk
Institute, and BHC, if they are on the NYU payroll.
Occupational therapists paid under affiliation contracts
are covered except those at the Rusk Institute. Fifty-
five physical therapists employed by the Medical Cen-
ter at various locations have been represented by
APTA for the last 4 or 5 years-
Local 810 of the Teamsters represents maintenance
employees such as carpenters, plumbers, painters, elec-
tricians, stationary engineers, and various helper
groups at the Medical Center, excluding places under
affiliation contract, such as BHC, where the mainte-
nance work is performed by craftsmen on the city pay-
roll.
Relation of Code 101 Psychiatrists to Other Code 101
Faculty Physicians at BHC.• The Medical Center pro-
vides under affiliation contracts with New York City
the professional staffs for the following services in addi-
tion to psychiatry: anesthesiology, chest service, home
care, intermediate care, pathology, pediatrics, radi-
ology, and rehabilitative medicine. The affiliated clini-
cal staff at Bell Psych is about 10 times the size of the
next largest clinical staff at Bellevue, the chest service.
About half of the aforementioned medical services,
anesthesiology, home care, pathology, and pediatrics,
have no Code 101 clinical staff and the remainder are
composed of physicians whose terms and conditions
are entirely distinct from those of Bell Psych physi-
cians.
Conclusion
The intent of Congress to prevent the proliferation of
bargaining units in the health care industry is clear.
Both the Senate and House Reports contain the follow-
ing language:6
Due consideration should be given by the Board to
preventing proliferation of bargaining units in the
6 S Rept 93-766, 93d Cong, 2d sess 4 (1974), p 5, H. Rept.
93-1051, 93d Cong., 2d sess 5 (1974), pp. 6, 7
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
health care- industry. In this connection, the Com-
mittee notes with approval the recent Board deci-
sions in Four Seasons Nursing Center, 208 NLRB
No. 50, 85 LRRM 1093 (1974), and Woodland
Park Hospital, 205 NLRB No. 144, 84 LRRM
1075 (1973), as well as the trend toward broader
units enunciated in Extendicare of West Virginia,
203 NLRB No. 170, 83 LRRM 1242 (1973).1
1 By our reference to Extendicare, we do not necessarily approve all
of the holdings of that decision
In deciding this case, we-have duly considered the con-
gressional intent to avoid an undue proliferation of
units in the health care industry in determining appro-
priate bargaining units through the application of our
standards and experience which Congress expected us
to continue to apply.
Based on the entire record, we find that any separate
community of interest that the Code 101 psychiatrists
employed by the Medical Center at Bell Psych might
enjoy has been largely submerged in the broader com-
munity of interest which they share. with other physi-
cians and also may share with closely allied profession-
als. In so finding, we rely on (1) the proliferation of
bargaining units which could occur if clinical physi-
cians at BHC in the 13 departments other than the
psychiatry department rendering patient care, or clini-
cal physicians at BHC under affiliation contracts, were
found to be entitled to separate representation; (2) the
basic-similarity of functions between Code 101- and
Code 102 psychiatrists and, to a lesser degree, among
all the physicians at BHC; (3) the community of inter-
est which ^ physicians might share with allied profes-
sionals which was not fully explored herein; (4) the
average salaries ofCode 101 and Code 102 psychiatrists
are in the same range; (5) Code 101 and Code 102
psychiatrists and all other faculty engage in faculty
government,' permanently interchange with each
other to some degree, and have relatively flexible
schedules; (6) the Medical Center, BHC, and Bell
Psych are in close geographic proximity; (7) the prece-
dent concerning the insignificance the Board has at-
tached to whether individuals have tenure or the source
of their salary;' (8) similar overall supervision; and (9)
lack of any prior history of representation under the
Act.
Accordingly, we shall, in view of the foregoing, dis-
miss the petition.
ORDER
It is hereby ordered that the petition filed herein be,
and it hereby is, dismissed.
7 University of Miami, 213 NLRB No. 64 (1974).
8 Ibid.