Visiting Nurses Association, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1981

254 N.L.R.B. 49 (N.L.R.B. 1981)

VISITING NURSES ASSOCIATION, INC.
Visiting Nurses Association, Inc. Serving Alameda
County and California Nurses Association affili-
ated with the American Nurses Association, Pe-
titioner. Case 32-RC-246
January 13, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS, PENELLO, AND ZIMMERMAN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before a Hearing Officer of the
National Labor Relations Board. Thereafter, on
April 13, 1978, the Acting Regional Director for
Region 32 issued a Decision and Direction of Elec-
tion in the present case. Subsequently, both the
Employer and the Petitioner filed requests for
review. The Board, by telegraphic order dated
May 10, 1978, granted the Employer's request for
review in light of the Board's then pending recon-
sideration of Sierra Vista Hospital, Inc., 225 NLRB
1086 (1976). The Board also granted the Petition-
er's request for review on the ground that it raised
substantial issues warranting review. On March 30,
1979, the Board issued its decision in Sierra Vista
Hospital, Inc., 241 NLRB 631. Thereafter, on May
14, 1979, the Board, in accordance with the princi-
ples set forth in Sierra Vista, supra, issued an order'
remanding the present case to the Regional Direc-
tor for Region 32 for receiving evidence as to
whether the presence of the supervisors of the Em-
ployer or of third parties in positions of authority
within the Petitioner disqualified the Petitioner
from acting as the collective-bargaining representa-
tive of the Employer's employees.
At the hearing, the parties stipulated that there
was no member of the Petitioner who had deci-
sionmaking authority within the Petitioner who
was either a supervisor for the Employer or for
third-party competitors of the Employer. The Em-
ployer contended, however, that there was a con-
flict of interest between the Petitioner and the Em-
ployer in that the Petitioner was engaged in com-
petition with the Employer through the Nurses
Professional Registry, Inc., of the Alameda County
Nurses Association (ACNA). At the close of the
hearing, the Hearing Officer quashed the Employ-
er's subpenas of, inter alia, records regarding the
dispatch by the Nurses Professional Registry, 2
hereafter referred to as the Registry, of nurses,
aides, and orderlies to patients' homes; the minutes
of the board meetings of the Registry from May 1,
I Not published in bound volumes of Board Decisions.
2 The Nurses Professional Registry is now officially named the Alame-
da County Nurses Registry, Inc.
254 NLRB No. 5
1977; records pertaining to the certification of the
Registry by the Petitioner; minutes of the board
meetings of the Alameda County Nurses Associ-
ation from May 1, 1977; the bylaws of the ACNA;
and the minutes of the board meetings of the Peti-
tioner from May 1, 1977. Thereafter, the case was
transferred to the Board, and the Employer ap-
pealed to the Board the Hearing Officer's quashing
of the subpenas. The Board in an "Order Revoking
the Hearing Officer's Quashing Subpoenas and Di-
rection of Hearing" issued May 12, 1980,3 reversed
the Hearing Officer's quashing of the Employer's
subpenas, except with respect to the records show-
ing the number of dispatches of nurses, aides, and
orderlies to patients' homes by the Registry. The
Board further ordered that a hearing be held for
the purposes of receiving into evidence the subpen-
aed evidence.
A hearing was held on June 4 and 30, 1980,
before Hearing Officer Ed Kaplan, at which the
Employer submitted into evidence the numerous
documents procured by the subpenas. Following
the hearing and pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Regional Director
for Region 32 transferred this case to the Board for
decision. Thereafter, the Employer and the Peti-
tioner filed briefs.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds them free
from prejudical error. They are hereby affirmed.
On the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. No question affecting commerce exists con-
cerning representation of certain employees of the
Employer within the meaning of Section 9(c)(1)
and Section 2(6) and (7) of the Act.
The Petitioner seeks to represent all professional
employees, including registered nurses, employed
by the Employer at its Oakland and Hayward,
California, offices. The Employer urges dismissal
of the petition on the basis that the Petitioner is in
competition with the Employer in providing home
nursing services.
The Employer is a licensed home health care
agency engaged, inter alia, in providing part-time
skilled nursing and personal care to homes in Ala-
meda County. It sends registered nurses and home
health aides to patients' homes to provide these ser-
3 Not published in volumes of Board Decisions.
49
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vices, usually on a 20-hour-per-week basis. It also
sends registered nurses to hospitals to engage in
discharge planning for the patients. For the reasons
set forth below, we find that the Petitioner,
through the Registry, competes with the Employer
in providing home care nursing services in Alame-
da County.
The ACNA is one of the 10 regional associations
comprising the Petitioner. The Petitioner exercises
considerable control over the regional associations.
It authorizes their formation and delineates their
geographic boundaries. It also reviews the regional
associations' bylaws to see that they conform with
its bylaws, and it also has the power to dissolve a
regional association. The Petitioner's members pay
dues to the Petitioner which then remits the money
to the regional associations on a per capita basis.
Finally, the regional associations are responsible for
implementing the Petitioner's policies on a regional
level.
The Registry was established by the ACNA and
directly employs health care practitioners who it
places as temporary employees in hospitals. The
Registry also acts as a placement agency for pri-
vate duty care practitioners who work in patients'
homes, and there are numerous ties between the
ACNA and the Registry. The Registry and the
ACNA shared office space and equipment until
March 1980, when they both moved to a different
office building where they are presently located on
adjacent floors. In 1977, the board of trustees of
the Registry established a policy of trying to get
the Petitioner to include in its collective-bargaining
agreements with employers a clause requiring the
employers to use the Petitioner's registries before
resorting to other registries; and in December 1979
the Petitioner considered including such a provi-
sion in said agreements. The ACNA's bylaws, until
early 1980, required that the ACNA's president
and treasurer be members of the Registry's board
of trustees, and gave the ACNA's board of direc-
tors the right to appoint four members to serve on
the Registry's board of trustees. On the advice of
counsel, the above provision was deleted from the
ACNA's bylaws in early 1980. However, the presi-
dent of the ACNA is presently a member of the
Registry board of trustees. Finally, the Registry
has consistently met the Petitioner's criteria for re-
ceiving the Petitioner's certificate of approval; one
of these criteria is that the Registry be under the
control and management of the ACNA's board of
directors.
As stated above, the Registry acts as both an em-
ployer of health care employees and as a placement
agency for private duty practitioners, who pay the
Registry a fee for being placed in patients' homes.
The Employer contends that in this latter capacity
the Registry operates as the Employer's business
competitor. The Registry and the Employer oper-
ate in the same geographic area. Although the Em-
ployer offers primarily private duty care on a 20-
hour-per-week basis while the Registry's registrants
offer 40-hour-per-week care, the services per-
formed in the patients' homes are the same. In fact,
on occasion nurses of the Registry and the Em-
ployer have treated the same patient. Further,
when Mediserve Home Health Agency, which like
the Employer is a licensed home health agency, at-
tempted to place an advertisement in the ACNA's
newsletter in 1977, it was told that its ad could not
be accepted because it was in competition with the
Registry. Finally, the record indicates that there is
a severe shortage of registered nurses and aides in
the Alameda County area and that the Registry
and the Employer compete in recruiting and retain-
ing such nurses and aides.
The Petitioner maintains that it is not in competi-
tion with the Employer because the private home
placement service comprises only a minute portion
of the Registry's business. However, an examina-
tion of the Registry's statement of income and ex-
penses for the first quarter of 1980 indicates other-
wise. The record shows that for the first 3 months
of 1980 the Registry received $13,000 from regis-
trants it placed in patients' homes and approximate-
ly $412,000 from health care facilities. But a com-
parison of these figures is misleading because they
represent different accountings. Thus, when the
Registry places a registrant in a patient's home, the
patient pays the registrant directly for any services
provided, and the registrant in turn remits either 7
or 10 percent of the payment to the Registry.4 If
the remainder of these payments are factored in,
the total revenue-as opposed to receipts-generat-
ed by the Registry's home placement service in the
first quarter of 1980 was approximately $130,000.
On the other hand, when the Registry places its
own health care employees in hospitals and other
health care institutions, such institutions pay the
Registry a gross fee for providing them with em-
ployees out of which the Registry must pay the
employees their salaries, payroll taxes, workers
compensation, and other expenses. Hence, after de-
duction of these payments and expenses, the Regis-
try's quarterly net revenue from what was left of
the fees paid it by the health care institutions
amounted to less than $50,000.
4 CNA members, who are placed in patients' homes by the Registry,
are required to remit to the Registry 7 percent of their total gross com-
pensation received from the patient, while non-CNA members are re-
quired to remit to the Registry 10 percent of the total gross revenue they
received from the patient
50
VISITING NURSES ASSOCIATION, INC.
We find that, based on a comparison of either
the net revenue generated by the private home
placement service with the net generated by the
employment of health care employees by health
care institutions, or of the total business, in dollar
terms, generated by the private placement service
versus the gross amount generated by the institu-
tional employment of health care employees, the
Registry's home placement service is not a minimal
part of the Registry's business.
The Board has held that a union which is also a
business rival of an employer is precluded from
acting as the collective-bargaining representative of
the employer's employees. 5 Here, as discussed
above, the Registry, in the operation of its place-
ment service, competes with the Employer in pro-
viding home nursing services. Since the Registry is
a creature of the ACNA which in turn is a regional
arm of the Petitioner, the Petitioner is thus in sub-
stantial competition with the Employer.
The Petitioner maintains that it is not in competi-
tion with the Employer because, despite the var-
ious ties in the past between the Registry and the
Petitioner, the Registry presently operates indepen-
dently of and has no discernible connections with
the ACNA (and therefore of the Petitioner). Al-
' Bausch & Lomb Optical Company. 108 NLRB 1555 (1954).
though the bylaws provision requiring that officers
and members of the board of directors of the
ACNA concurrently serve as members of the Reg-
istry board of trustees has been deleted, and the
Registry no longer shares office space with the
ACNA, strong ties remain between the Registry
and the ACNA (i.e., the Petitioner). Indeed, the
president of the ACNA is presently a member of
the board of trustees of the Registry, and the Reg-
istry recently received the Petitioner's certificate of
approval for, among other things, being under the
ACNA's control and management. Further, there
is nothing in the record to indicate that the Regis-
try has renounced its aim to cause the Petitioner to
include in its contracts a provision requiring em-
ployers to use its registries before resorting to
other registries. In these circumstances we con-
clude, and find, that the Registry competes with
the Employer, and that the Petitioner is therefore
precluded from representing the Employer's em-
ployees. Accordingly, we shall dismiss the petition
herein.
ORDER
It is hereby ordered that the petition filed in
Case 32-RC-246 be, and it hereby is, dismissed.
51