PRN Brief Opposing Lutheran General Request for Review
UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD
ADVOCATE-LUTHERAN GENERAL HOSPITAL Employer
And
PHYSICIANS FOR RESPONSIBLE NEGOTIATION Petitioner
CASE No. 13-RC-20426
PETITIONER'S OPPOSITION TO EMPLOYER'S REQUEST FOR REVIEW
Mark G. Flaherty Attorney-at-Law 9237 Ward Parkway Suite 240 Kansas City, Missouri 64114
December 13, 2001
TABLE OF CONTENTS
I. INTRODUCTION
II. THE REGIONAL DIRECTOR APPROPRIATELY CONCLUDED THAT LGH DOES NOT EMPLOY OR JOINTLY EMPLOY THE MGH RESIDENTS AND APPROPRIATELY CONCLUDED THAT, EVEN IF THEY WERE "EMPLOYED" BY LGH, THEY SHOULD NOT BE INCLUDED IN THE PETITIONED-FOR UNIT
A. THE RECORD SUPPORTED THE REGIONAL DIRECTOR'S CONCLUSION THAT LGH IS NOT AN EMPLOYER OR "JOINT EMPLOYER" OF THE MGH RESIDENTS B. THE RECORD SUPPORTED THE REGIONAL DIRECTORS FINDING CONCERNING WHO PROVIDES THE DAY-TO-DAY ASSIGNMENT AND DIRECTION OF THE MGH RESIDENTS C. C. THE RECORD AND THE LAW SUPPORT THE REGIONAL DIRECTOR'S CONSCLUSIONS CONCERNING THE BOARD'S FINAL RULE ON COLLECTIVE BARGAINING UNITS IN THE HEALTHCARE INDUSTRY D. THE RECORD AND THE LAW SUPPORT THE REGIONAL DIRECTORS CONCLUSIONS CONCERNING THE OTHER POTENTIAL "JOINT EMPLOYERS
III. THE REGIONAL DIRECTOR APPROPRIATELY CONCLUDED THAT THE CHIEF RESIDENTS ARE NOT SECTION 2(11) SUPERVISORS
A. SUMMARY OF THE LAW CONCERNING SECTION 2(11)"SUPERVISORS"
1. The NLRB and the "Supervisor" Exemption From Collective Bargaining 2. The Supreme Court and the "Supervisor" Exemption From Collective Bargaining
B. KENTUCKY RIVER'S EFFECT ON RESIDENT AND FELLOW COLLECTIVE BARGAINING C. ANALYSIS OF THE FACTS CONCERNING CHIEF RESIDENTS' "DIRECTION OF THE WORK OF OTHERS"
1. Supervisory Status of LGH Chief Residents 2. Supervisory Status of the MGH Chief Residents
IV. THE REGIONAL DIRECTOR'S CONCLUSIONS CONCERNING MGH SURGERY "ATTENDINGS" ROLE AS EDUCATORS DOES NOT RE-OPEN THE BOSTON MEDICAL CENTER STUDENT/EMPLOYEE ISSUE
V. CONCLUSION
TABLE OF AUTHORITIES CASES
Action Automotive, Inc., 496 U.S. 490, 494 (1985) Boston Medical Center Corp., 330 NLRB No. 30 (1999) Chevron Shipping Co., 317 NLRB No. 53 (1995) Chicago Metallic Corp., 273 NLRB 167 (1985) Dynamic Science, Inc., 334 NLRB No. 57 (June 27, 2001) Engineered Storage Products Co., 334 NLRB No. 138 General Dynamics Corp., 213 NLRB 851 (1974) Greenhoot, Inc. , 205 NLRB 250 (1973) Gulf Bottlers, Inc., 127 NLRB 850, fn. 3, 858-861 (1960), enfd. sub nom. United BreweryWorkers v. N.L.R.B., 298 F.2d 297 (D.C. Cir. 1961) John N. Hansen Co., 293 NLRB 63 (1989) Kalamazoo Paper, 136NLRB 134, 137(1962) Kentucky River Community Care v. N.L.R.B., 121S.Ct. 1861(2001) Koons Ford of Annapolis, 282 NLRB 506, 513-514 (1986), enfd. 833 Fl.2d 310 1987), cert denied 485 U.S. 1021 (1988) M.B. Sturgis, Inc. , 331 NLRB No. 173 (Aug. 25, 2000) National Broadcasting Company, Inc., 160 NLRB 1440 (1966) N.L.R.B. v. Health Care & Retirement Corp., 511 U.S. 571 (1994) N.L.R.B. v Yeshiva University, 444 U.S. 672 (1980)
Phelps Community Medical Center, 295 NLRB 486, 490 (1989) Quadres Environment al Co., 308 NLRB 101, 102 (1992) Sears Roebuck & Co., 304 NLRB 193 (1991) Skidmore, Owings & Merrill, 192 NLRB 920 (1971) Southern Bleachery & Print Works, 115 NLRB 787, 791 (1956), enfd. 257 F.2d 235 (4th Cir. 12958), cert denied 359 U.S. 911 The Door, 297 NLRB 601 (1990) Weyerhaeuser Timber Company, 85 N.LR.B. 1170 (1949) Wurster, Bernardi & Emmons, Inc., 192 NLRB 1049 (1971)
OTHER AUTHORITIES
Legislative History of the Coverage of Nonprofit Hospitals, S.Rept. 93-766, 93rd Cong., 2d Sess. (1974) NLRB MEMORANDUM OM-31 (Jan. 26, 2001) 29 U.S.C. Section 152(11)
UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD
ADVOCATE-LUTHERAN GENERAL HOSPITAL Employer
And
PHYSICIANS FOR RESPONSIBLE NEGOTIATION Petitioner
CASE No. 13-RC-20426
PETITIONER'S OPPOSITION TO EMPLOYER'S REQUEST FOR REVIEW
I. INTRODUCTION
Comes now Physicians for Responsible Negotiation (Petitioner or PRN), pursuant to NLRB Rule 102.67(c) and submits this Opposition to Advocate-Lutheran General Hospital (Employer or LGH)'s Request for Review of the Regional Director's Supplemental Decision and Order, which Employer apparently mailed to this Board on December 6, 2001. Employer's Request for Review is a broadside assault on the Regional Director's Supplemental Decision and Order (Supplemental Decision) and asserts nothing less than that each of the three major determinations made in the Supplemental Decision present one "or more" of the Section 102.67 extraordinary circumstances requiring Board review of a Regional Directors unit determination in an R-case. Upon close examination, however, it is clear that Employer is advocating for a new Section 102.67 circumstance requiring Review, i.e., when the Employer is unalterably opposed to the concept of physician collective bargaining and the Regional Director has refused to accept each and every one of the Employer's requested findings of fact and conclusions of law. Notwithstanding Employer's aggressive assault, it remains clear, however, that the Regional Director's Supplemental Decision does not contain a single departure from reported Board precedent or a single erroneous factual determination. Nor does Employer even argue that an important Board rule or policy should be reconsidered. Employer's Request for Review should be summarily denied.
II. THE REGIONAL DIRECTOR APPROPRIATELY CONCLUDED THAT LGH DOES NOT EMPLOY OR JOINTLY EMPLOY THE MGH RESIDENTS AND APPROPRIATELY CONCLUDED THAT, EVEN IF THEY WERE "EMPLOYED" BY LGH, THEY SHOULD NOT BE INCLUDED IN THE PETITIONED-FOR UNIT.
Although spun over many pages of its Brief and clothed in various attire, Employer's entire argument on the "employed/jointly employed" issue concerning the MGH residents is that, during the Remand hearing, Dr. White testified that each of the "Attending" physicians who agree to teach MGH Surgery residents while at LGH have a "contract" covering their teaching duties. LGH's lawyers then led Dr. White to say that these "Attendings" were, therefore, "employed" by LGH. Under LGH's view, this "admission" (by their own witness) requires, ipse dixit rexum flaxit , a conclusion that LGH is a "joint employer" of both the MGH Surgery residents as well as the MGH Pathology residents. Oh that things were so simple!
First, the Regional Director's well-reasoned conclusion that LGH does not employ or "jointly employ" the MGH Surgery and Pathology residents was based on multiple factors independent of whether the "Attendings" who work with the MGH Surgery residents are employees of LGH or not. Second, during the first phase of the hearing, LGH produced, under subpoena from Petitioner, two lists of Physicians "employed" by LGH, Employer's Exhibits 4 and 5, and not a single MGH Surgery "Attending" is on that list, only LGH administrators. (See also Transcript, pp 210-211, 328-329, 330, 374-375 ). Petitioner also subpoenaed all employment contracts of any physicians employed by LGH and no contracts for any physician working with the MGH Surgery residents was produced. When questioned about which non-resident physicians were directly employed by LGH and why, Dr. Rubino, LGH's Chief Medical Officer , explained that only those physicians who had a substantial administrative commitment to LGH and its various teaching programs were on LGH's payroll, which flatly contradicts the inference Employer attempts to argue from counsels leading of Dr. White's . (See Transcript cites immediately above.) Moreover, under cross examination from Petitioner's counsel during the Remand proceedings, Dr. White, acknowledged that, with certain limited exceptions, there had been no substantial changes in the operation of LGH's residency programs since the initial hearing in the Fall of 2000.
Thus, even if the entire question of who "employs" the MGH residents rose and fell on the determination of whether the "Attendings" who teach in the MGH Surgery program are themselves "employed" by LGH (which it does not), Employer's Exhibits 4and 5, plus Dr. Rubino's own testimony about which physicians are "employed" by LGH and why, coupled with Dr. White's testimony that there have been no significant changes in how the residency programs operate, is a more than adequate factual basis to support the Regional Director's finding on this point.
Employer's argument here is simply without merit.
The voluminous record developed during the three phases of hearings in this proceeding more than support the Regional Director's conclusions on the "joint employment" question. As discussed in detail below, Employer focused all of its efforts during the Remand hearing on the MGH programs, having clearly determined that a ruling including these MGH residents in the petitioned-for unit is its only hope of obtaining a re-run election. This Board's Remand Order, dated August 6, 2001, carefully delineated the Regional Director's unfinished tasks in connection with determining the status of the MGH "rotating residents": 1) "make a definitive finding on whether the Employer is the sole employer, a joint employer, or not an employer of the MGH program residents"; 2) in making such a finding gather evidence including the "day-to-day assignment and direction of the MGH program residents"; 3) if LGH is a "joint employer" of the MGH residents, "reconsider the unit determination in light of the Board's Final Rule on Collective Bargaining Units in the Health Care Industry" (Final Rule); and; 4) if LGH and MGH are "joint employers" of the MGH residents, it appears that each of the other hospitals that participate in the MGH programs must be "joint employers" of the MGH residents as well, so "consider this relationship in determining unit issues".
Both the law and the facts established during the 2000 hearings in this proceeding concerning these MGH residents are fully set forth in PETITIONER'S BRIEF IN OPPOSITION TO EMPLOYER'S FIRST REQUEST FOR REVIEW, filed November 28, 2000 and will not be repeated here. The additional evidence adduced during the Remand hearing held on September 7, 2001 related solely to the MGH Residency in Surgery and the parties stipulated that these MGH Surgery residents should be treated in the same manner, for purposes of inclusion or exclusion from the unit, as the MGH Pathology residents. (Transcript, pp1247:23-1248:10)(Hereafter, transcript cites will simply list the page and line references).
With respect to the MGH Surgery residents, Employer's witness, Dr. White acknowledged that, with the exception of the facts discussed immediately below, the MGH Surgery program continued to function as it did on November 7, 2000 at the time of the Regional Director' Decision and Direction of Election. (1168:6-1171:8) The new information presented during the remand hearing involved: 1) the supervisory role of the MGH Surgery "Chief Residents", as discussed below; 2) as contemplated and discussed during the 2000hearings, LGH's parent company, Advocate Health and Hospital Corporation, completed its acquisition of MGH's "Administrative" hospital, Illinois Masonic Hospital (IM); and 3) after the Advocate purchase of IM, the four participating hospitals made what was described by Dr. White as a minor decision that was not even brought to the attention of the MGH governing "Joint Committee" (1237:1-1238:1) to "standardize" the MGH residents' benefit program by adopting the same program provided to residents at all Advocate hospitals, including LGH. What didn't change was that the University of Illinois (UI) is still the sponsoring academic institution for the MGH Surgery and Pathology residency programs, UI still determines the salaries/stipends for the MGH Surgery and Residency programs and the two programs continue to be governed as described in E Ex 22 and E Ex 23 (Pathology and Surgery respectively).
A. THE RECORD SUPPORTED THE REGIONAL DIRECTOR'S CONCLUSION THAT LGH IS NOT AN EMPLOYER OR "JOINT EMPLOYER" OF THE MGH RESIDENTS.
The first task set by the Board in its Remand Order was for the Regional Director to make a determination whether the MGH residents are solely employed, jointly employed or not employed by LGH. Petitioner notes that the Region has already determined (and upheld by the Board's denial of Review) that Employer is not a "joint employer" of any of the "rotating" residents from the LGH "affiliated" residency programs with the University of Chicago Hospitals, the University of Illinois at Chicago Hospital or Loyola University Hospital.( DDE p 12). Thus, the question here relates solely to LGH's status vis-à-vis residents in the MGH "joint" program.
Petitioner also notes that the evidence adduced to date makes clear that the MGH residents are not "solely" employed by LGH. In fact, the evidence adduced in the 2000 hearings, plus E (Employer) Ex 60, makes quite clear that the MGH residents are employed by MGH and have their employment contracts with IM, MGH's "Administrative" hospital (E Ex 60, section 5), so there can be no contention that LGH is the "sole" employer of the MGH residents. Thus, these MGH residents are either solely employed by MGH, or jointly employed by MGH and the other hospitals that participate in the MGH program.
The simple way for this Board to conclude that no review of the Regional Director's Supplemental Decision is required is to focus on LGH's 2000 stipulation that the Region should make the same conclusion concerning inclusion/exclusion of the MGH Pathology residents in the petitioned-for unit as it does for the University of Chicago (UC) Emergency Medicine Residents. Since, as noted above, the Region determined in 2000 that the UC Emergency Medicine residents were not jointly employed by LGH, this stipulation alone determines the outcome of the MGH Pathology residents, and Employer made no effort to withdraw that stipulation during the 2001 hearing.
During the hearing on September 7, 2001, LGH further stipulated that the MGH Surgery and Pathology residents should either both be included or excluded from the petitioned-for unit as well. (1247:23-1248:13). Accordingly, since the UC Emergency Medicine Residents are not "jointly employed" by LGH, by Employer's stipulations, neither are the MGH Surgery or Pathology residents. Since it is Employer's burden to prove that the petitioned-for unit is "inappropriate" absent the inclusion of these "rotating" residents, this Board can conclude, based upon these Employer stipulations alone, that Employer failed to meet its burden of proof on this point.
Even absent Employer's stipulations, the appropriate determination on this point is that Employer has failed to meet its burden of proving that LGH is a "joint employer" of the MGH residents. The Board's recent decision, M.B. Sturgis, Inc. , 331 NLRB No. 173 (Aug. 25, 2000) (Sturgis) reconfirmed that, to find that employers "co-determine" matters governing essential terms and conditions of employment to the extent that they become "joint employers", "the employers must meaningfully affect matters relating to the employment relationship such as hiring, firing, discipline, supervision and direction." That test simply is not met here and the Regional Director's findings on this point are more than adequately supported by the record.
First and foremost, E Ex 22, 23 and E Ex 60 unambiguously describe the governance mechanism of these MGH programs. Each of the programs is "operated" by an "Executive Director" who is selected/"endorsed" by UI. (e.g. E Ex 22, section 4.4 (b)). Second, as discussed in detail below, MGH has created a group of front-line supervisors, called MGH "Chief Residents", who supervise and direct the day-to-day activities of the MGH residents at the participating hospitals. Thus, between the MGH Executive Directors and the MGH Chief Residents, all of the daily activities of these MGH residents (other than "hands-on" learning experiences with "Attending" physicians that may or may not have any employment relationship to LGH) is directed by MGH, not LGH, personnel who receive paychecks from IM and who receive their "academic" input from UI.
As requested by Petitioner during the remand proceedings, the Regional director apparently reexamined its tentative conclusion in its DDE (Decision and Direction of Election), dated November 7, 2000, that it, "could be said" that there is "co-determination indicative of joint employer status". Petitioner submitted to the Regional Director that the evidence clearly established, and with an eye as to who bears the burden of proof on this point, it can also "be said" that the matters governing the essential terms and conditions of employment of the MGH residents are determined by a complex governance structure where: 1) all-important academic matters establishing the curriculum of the program, as well as the important mater of compensation/stipends, is set by UI; 2) where broad policies of the program are "approved" by an "Administrative Committee" over which no individual hospital predominates; 3) where on-going guidance, direction and management of the program, including policy recommendation to the Administrative committee, is provided by another committee, called the "Joint Committee" over which no individual hospital predominates (1238:1-25); 4) where an Executive Director, employed by MGH and paid by IM, acts on behalf of the "Joint Committee" in directing the day-to-day operations of the programs; 5) where day-to-day supervision and direction of the MGH residents in the respective hospitals is provided by front-line supervisors/"Chief Residents" who themselves "rotate" from hospital to hospital and who achieve this supervisory status not by appointment by any one participating hospital, but rather by length of service in the program (1191:3-8); and 6) where recruiting and hiring/match determinations are made by a third committee, called a "Search" Committee, again over which at no individual hospital predominates (See, e.g. Ex 60); such that NONE of the participating hospitals "co-determine" the matters governing essential terms and conditions of the MGH residents' employment.(1238:19-25)
In fact, it is apparent that the individual hospitals that formed MGH intentionally selected a complex governance process (which includes a requirement for "consensus" on any academic matter related to the programs from the "Academic" sponsor of the programs, UI) (E Ex 60, section 3.1) for these programs that obfuscates, if not obliterates, any actual, or apparent "control" by any one, two or even three hospitals. Further, E Ex 22 and 23 make clear that this governance system was formed, existed and functioned before LGH ever participated in either program and will continue to function if LGH withdraws from the programs. Dr. White's acknowledgement during the September 7, 2001 hearing that there is no "block" voting on the MGH governance committees by the designees of any one or more hospitals confirms that there is no "co-determination" by LGH or any one of the other participating hospitals.(1238:19-25).
Moreover, Petitioner noted to the Regional Director that she was confronted with essentially the same question being discussed here, i.e. "co-determination"/ "effective recommendation" of important employment decisions, in connection with Employer's argument that LGH's own "Chief Residents" were Section 2(11) "supervisors" by virtue of their service on one or more of virtually identical committees affiliated with LGH's stand-alone residency programs. (DDE p 10). In dismissing the notion that any one committee member had the ability to "effectively recommend" an outcome to the committee, the Region had already reached exactly the conclusion that it reached on this parallel issue; i.e., any committee member's input is simply "one factor in the overall consideration". (DDE, p 10).
As discussed in more detail below, Employer seems incapable of acknowledging the obvious conclusion that, if LGH is a "joint employer" of the MGH residents, so are IM, St. Francis and Mercy hospitals. Yet, the Board cases finding "joint employer" status have all (as far as the undersigned has been able to determine) involved two employers "co-determining" essential terms and conditions of employment and have not, for the complex reasons related to "involuntary" multi-employer bargaining, ever found three or more employers, as here, to be "joint employers". Since the record makes clear that none of the MGH participating hospitals, including LGH, "co-determine" any matter governing essential terms and conditions of the employment of these MGH residents, the Regional Director appropriately concluded that LGH is not a "joint employer" of the MGH residents.
B. THE RECORD SUPPORTED THE REGIONAL DIRECTORS FINDING CONCERNING WHO PROVIDES THE DAY-TO-DAY ASSIGNMENT AND DIRECTION OF THE MGH RESIDENTS.
The Regional Director also appropriately handled the second task set by this Board in its Remand Order, i.e., in determining whether LGH is a "joint employer" of the MGH residents, be sure and determine who directs and assigns the day-to-day activities of the MGH residents while they are on rotation at LGH. The facts relating to this issue are discussed in detail below concerning the supervisory status of the MGH Chief Residents. The answer is that MGH supplies its own roving front-line supervisors/"Chief Residents", who, as Dr. White described, direct and assign the day-to-day activities of the MGH residents at each of the participating hospitals. When the MGH Chiefs need help in performing their supervisory tasks, they get it from the MGH Executive Directors, none of whom work for LGH. The important point here is that LGH personnel do not direct and assign the day-to-day activities of the MGH residents while they are at LGH, since MGH has its own supervisory personnel to do that.
In Sturgis/Jeffboat, supra, this Board focused on this important question in determining whether Jeffboat was a "joint employer" of the TT&O supplied workers. In Sturgis, in contrast to the situation here, this Board concluded that " the alleged "joint employer")'s supervisors assign, direct and oversee the daily work of the (other employer)'s employees." Here, Employer's own testimony establishes that not LGH, but rather MGH, through its Chief Residents, directs and assigns the day-to-day activities of the MGH residents.
C. THE RECORD AND THE LAW SUPPORT THE REGIONAL DIRECTOR'S CONCLUSIONS CONCERNING THE BOARD'S FINAL RULE ON COLLECTIVE BARGAINING UNITS IN THE HEALTHCARE INDUSTRY.
The third task set by this Board's Remand Order was: If LGH is determined to be a "joint employer" of the MGH residents, consider the effect of the Board's 1989 Final Rule. The Regional Director appropriately concluded that LGH was not, for the reasons set forth above, a "joint employer" of the MGH residents and the Regional director also reached the appropriate conclusion in answering this difficult question. In answering this question, the Regional Director appropriately focused on whether the MGH and LGH residents share a sufficient "community of interest" to include them in the same bargaining unit.
COMMUNITY OF INTEREST
After the 2000 hearings, the Region properly concluded that the MGH residents do not share a sufficient "community of interest" with the permanent LGH residents to include them in the same unit. DDE, p 12. After weighing the additional evidence adduced during the Remand hearing on September 7, 2001, it is clear that the Regional Director's conclusion on that point was clearly correct. The MGH residents have different stipends than the LGH residents. The MGH residents have different supervision than the LGH residents. In fact, as discussed above, the MGH residents are compelled to become front-line "supervisors" during the final year of their residency, at least in the MGH Surgery residency, unlike the LGH residents who are not compelled to take on this additional role.
The MGH residents have distinct qualifications from the LGH residents as they are the only "Surgery" and "Pathology" residents who spend any time at LGH. For the same reason, the MGH Surgery and Pathology residents have different training, skills and job functions than any of the LGH residents. For these last two reasons, there can be no credible claim that the LGH and MGH residents work side-by-side. They certainly work in the same hospital, at the same time, and they may even care for the same patient, but that can be said for hospital food service employees and hospital laboratory technicians as well, and no one would argue that those two groups of employees share a community of interest. Additionally, the amount of working time spent by the MGH residents away from LGH is quite different for the MGH residents than the LGH residents, with the LGH residents spending essentially all of their time at LGH and the MGH residents spending at most ¼-1/3 of their time at LGH. Employer provided no evidence of the frequency of contact between the MGH residents and the LGH residents, nor provided any evidence of the integration of the work functions between the MGH and LGH residents or the amount of interchange between them. The most that could be said on this final point is that an MGH Surgery resident might assist in an operation on a patient admitted to the hospital by an LGH Medicine resident. In fact, the only one of the ten Kalamazoo Paper, 136NLRB 134, 137(1962) "community of interest" tests that appears to be present here is that, as of the past two months only, the MGH and LGH residents now have the same package of "benefit" plans available to them.
In several recent Board determinations concerning the presence or absence of a "community of interest" between jointly employed workers has turned on whether the "user" employer made a practice of hiring its permanent employees from the ranks of the "supplier" employer's employees. See, e.g., Engineered Storage Products Co., 334 NLRB No. 138, and Decision and Direction of Election reviewed therein. Here, it is clear that there is no practice of LGH hiring any current or former MGH residents. The Regional Director made the right determination concerning the absence of a "community of interest" between the MGH and LGH residents at the end of Round Two last year, and, particularly in light of the vastly different supervisory structures that are now evident, the Regional Director's conclusions on exclusion of the MGH residents from the unit was compelled in that there is not a sufficient "community of interest" between the MGH residents and the LGH residents that would permit effective collective bargaining in a single unit free of potential conflicts of interests between the two groups. See, Action Automotive, Inc., 496 U.S. 490, 494 (1985).
COMMUNITY OF INTEREST v. FINAL RULE
This absence of a compelling "community of interest" between the MGH and LGH residents is what made the Regional Director's third task, i.e., if LGH is a "joint employer" of the MGH residents, consider the effect of the Board's 1989 Final Rule on the unit determination here, so difficult. On the one hand we are confronted by the clear and consistent admonition that "collective bargaining should only take place with respect to a group of employees in which bargaining will be effective and protective of the employees' interests" i.e., those that share a "community of interests" Action Automotive, Inc., supra., and on the other, we are confronted by the Board's Final Rule, which carries out Congress' admonition concerning the "proliferation" of separate collective bargaining units in a single acute-care hospital. See, Legislative History of the coverage of Nonprofit Hospitals, S.Rept. 93-766, 93rd Cong., 2d Sess. (1974).
The balancing required between these competing considerations, the integrity and efficacy of collective bargaining, on the one hand, and the Congressional prohibition on non-proliferation of collective bargaining units in acute-care hospitals, on the other, is obviously a difficult challenge, made all the more difficult by the fact that the appropriateness of including residents/fellows, or groups of residents/fellows in a hospital-based physician bargaining unit was not considered by the Board during its rulemaking proceeding, due to the "student" status of residents/fellows at that time. Boston Medical Center Corp., 330 NLRB No. 30 (1999) (BMC), slip op. at 11-12. The Regional Director's Supplemental Decision adeptly handled this complex issue.
Since the purpose of the 1974 Healthcare Amendments to the NLRA was to bring the stabilizing effect of collective bargaining to the acute-care hospital industry, BMC at 11, the Regional Director appropriately avoided forcing these two employee groups, MGH residents and LGH residents, who clearly lack the sine qua non for effective collective bargaining, i.e. a "community of interest" into a compelled collective bargaining unit, where their respective interests were certain to conflict and make collective bargaining impossible.
The Board's rejection of a combined faculty and resident/fellow unit at Boston Medical Center, BMC at 16, and the Board's denial of Review of the identical determination in this case in Round Three, confirms that, Final Rule notwithstanding, employee groups that lack a "community of interest" simply cannot be thrown into the same unit. The Regional Director also appropriately recognized that if LGH was found to be a "joint employer" of the MGH residents, compelling Petitioner to bargain with MGH here would violate the requirement of section 9(b) of the Act that multi-employer bargaining be "voluntary".
Further, the Regional Director appropriately concluded that the circumstances concerning the physician bargaining unit at LGH is "extraordinary", as that term is defined in the Final Rule, (See related discussion BMC at 16, n.35), and could easily have found that MGH does not, since it is a "joint program" (E Ex 22, 23) that exists separate and apart from the hospitals that participate in the program, meet the definition of "acute care hospital" as defined in the Final Rule. See Employer's implicit admission on this point (MGH is only a supplier employer) at p. 21 of its Brief. This reason alone confirms the Regional Director's outcome, which avoids combining in a single unit residents who clearly are covered by the Final Rule with the MGH residents who are not.
In closing on this point, Petitioner again notes that the Regional Director appropriately placed the burden on Employer of proving that the petitioned-for unit is inappropriate absent inclusion of the MGH residents and, likewise here, it is Employer's burden, not Petitioner's, to persuade this Board that the Final Rule somehow outweighs the Supreme Court's Action Automotive, Inc. , emphasis on the primacy of "community of interest" for effective collective bargaining under the Act.
D. THE RECORD AND THE LAW SUPPORT THE REGIONAL DIRECTORS CONCLUSIONS CONCERNING THE OTHER POTENTIAL "JOINT EMPLOYERS.
The Regional Director's Supplemental Decision also appropriately handled the final task set by this Board, if LGH is a "joint employer" of the MGH residents, it appears that each of the other hospitals that participate in the MGH programs must be "joint employers" of the MGH residents as well, so consider the existence of those other "joint employers" in making the unit determination here. Unavoidably, this task leads us into the murky waters of the Act's prohibition, derived from Section 9(b), on "involuntary" multi-employer bargaining.
First, no one can argue with this Board's observation that, if LGH is a "joint employer" of the MGH residents, then the other three hospitals that participate in the MGH programs, IM, Mercy Hospital and Medical Center (Mercy) and St. Francis Hospital of Evanston (St. Francis), must also be "joint employers' of these same residents. Remand Order, p 1. Accordingly, no one (other than this Employer) can argue that, if the MGH residents are included in the petitioned-for LGH unit, the effect will be to compel not only MGH to bargain with Petitioner, but also the other three hospitals, IM, Mercy and St. Francis. Employer can not deny this result as it's description of the voter eligibility criteria (and thus the unit) set forth in its opening Brief, filed October 4, 2000, p 88, and repeated in its Request for Review here, p.33, leaves no doubt that Employer is arguing that the only appropriate physician unit at LGH includes the multi-employer unit of all MGH residents and fellows employed in MGH's Surgery and Pathology residency programs on the voter eligibility date. Note that Employer emphatically argues that not only those MGH residents in a rotation at LGH, but also those at IM, Mercy and St. Francis, should be included in the unit and determined eligible to vote.
Since neither Mercy nor St. Francis, let alone Petitioner, "consented" to multi-employer bargaining here, this result appears to be beyond the Board's powers delineated in Section 9(b). As set forth in Petitioner's Supplemental Brief, filed October 31, 2000, p.10-11, in the unlikely event that the petitioned-for unit is expanded to include any of the MHG residents, it should only be expanded to include "all regular full-time and part-time residents jointly employed by LGH and MGH at LGH's facility", since those MGH residents could readily be provided a separate supplemental polling opportunity. (See also, Memorandum OM 01-31, dated January 26, 2001).
Not only does Employer's proposed unit description fly in the face of the Board's guidance in Memorandum OM 01-31, it squarely presents the question whether the LGH circumstance should be analyzed, as argued by Employer, under the new Sturgis rules for "contingent " workers, or whether, as argued by Petitioner, under the traditional multi-employer bargaining unit rules. Without repeating its entire argument on these points, suffice to say that the Regional Director did not ignore Sturgis, rather, Sturgis is inapplicable since the MGH residents are clearly not the kind of temporary/"supplier" employees that Sturgis was intended to protect, as they are fully capable of seeking collective bargaining with their permanent employer, MGH, in an appropriate unit of all MGH residents, should they choose to do so. This Board's Remand Order is clearly correct that, if LGH is a "joint employer" then so are IM, Mercy and St. Francis and, since Sturgis does not apply here, then Employer is clearly asking for certification of a multi-employer unit in violation of Section 9(b) and, potentially, Section 8(b)(4) of the Act.
Even if Sturgis reaches beyond the "contingent" worker setting in which it spawned and applies here, it does not compel inclusion of the MGH residents in the petitioned-for unit. First, Sturgis is clear that a "supplier's " employees who are "jointly employed" by the "user" employer are required to be included in a collective bargaining unit with the "user" employer's solely-employed employees only if the two groups share a "community of interest". Sturgis, supra at 8. As discussed above, and as appropriately determined by the Regional Director, that circumstance does not exist here.
Second, even after Sturgis, the Greenhoot, Inc. , 205 NLRB 250 (1973) (Greenhoot) employer "consent' rule still applies to circumstances like this, where the "supplier" employer (here MGH) just like Greenhoot, Inc. is the "common" employer. See, Sturgis , slip op. at 8. Since, as discussed above, "consent" of all of those other three employers to a single unit has not been obtained, Greenhoot, even as limited by Sturgis, does not permit inclusion of the MGH residents in the petitioned-for unit.
Thus, since the corollary to concluding that LGH is a "joint employer" of the MGH residents is a conclusion that IM, St Francis and Mercy hospitals are also "joint employers" of the MGH residents, and since the effect of determining that there are four "joint employers" of the MGH residents is to effectively compel involuntary multi-employer bargaining, whether or not a "community of interest" exists between the employee groups, the Regional Director appropriately concluded, for this reason alone, that Employer has failed to establish that the petitioned-for unit is inappropriate without the inclusion of the MGH residents.
III. THE REGIONAL DIRECTOR APPROPRIATELY CONCLUDED THAT THE CHIEF RESIDENTS ARE NOT SECTION 2(11) SUPERVISORS.
Employer's Request for Review comes amazingly close to conceding that the LGH Chief residents are not Section 2(11) "supervisors. LGH presented essentially no evidence during the 2000 hearings on the issue of the Chief Residents responsible direction of the work of other residents, and, instead, focused entirely on "other" Section 2(11) indicia of supervisory status. At the end of those hearings, the Regional Director appropriately rejected LGH's argument that the Chief Residents were "supervisors", LGH sought review of that determination and this Board denied the requested review of that determination.
During the 2001 proceedings, as discussed in more detail below, LGH spent virtually all of its time trying to prove that the MGH Surgery Chief Residents were Section 2(11) supervisors and adduced virtually no new evidence concerning any Section 2(11) indicia related to the LGH Chief Residents. Thus, the arguments that LGH makes in its pending Request for Review concerning the LGH Chief Residents are nothing short of re-hash of its arguments advanced last year concerning Section 2(11) indicia other than responsible direction of work.
A. SUMMARY OF THE LAW CONCERNING SECTION 2(11 "SUPERVISORS"
When the Act was first signed into law in 1935, all employees, including supervisors, were eligible for collective bargaining and the protections of the Act. In 1947, after the Supreme Court refused to carve out a "supervisor" exemption from the Act's coverage, Congress amended the statute to provide that the term "employee" did not include "any individual employed as a supervisor", which it defined as:
"Any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 29 U.S.C. 152(11).
Since this supervisor exemption was added more than fifty years ago, the NLRB has made many unit determinations where the supervisor/non-supervisor status of professional or technical employees who "guide" the work of less skilled employees as a natural component of their superior skill and experience, was at issue. Similarly, the Board has decided many unit inclusion issues in representation cases involving employees who, although they direct the work of other employees, were not required to use "independent judgment" in connection with that direction and were deemed, therefore, not "true" supervisors.
1. The NLRB and the "Supervisor" Exemption From Collective Bargaining
In a case decided in 1949 interpreting this then new exemption (and cited by the Supreme Court with approval in Kentucky River Community Care v. N.L.R.B. (Kentucky River)), Weyerhaeuser Timber Company, 85 N.LR.B. 1170 (1949) (Weyerhaeuser), this Board addressed the situation of Mr. J. C. Johnson, a "strawboss" in the company's machine shop working on the night shift. While he was paid the same premium pay as other "strawbosses", he spent about half of his time checking tools in and out of the tool room and filling orders for supplies. The rest of his shift was spent in working as a machinist, helping others as needed, running a hoist truck and then making sure things were put away and the shop locked at the end of the shift. Johnson's immediate supervisor was the day shift "strawboss", who reported to the machine shop foreman. Both of those gentlemen remained at work for the first hour of the night shift, and the machine shop foreman was "responsible" for the work of the night shift employees. Johnson and his group mostly worked on orders left by the day shift strawboss, but on some occasions, work orders would be brought into the shop during the night. On those occasions, millwrights would bring the material to the machine shop and Johnson would distribute work orders. Since there were only two machinists on the night shift, Johnson had little discretion in determining who would do the work. Sometimes he would take men away from their regular duties to work on the special job. If a major problem developed, the plant supervisor would be notified and he would go to the machine shop, line up the work, and, if necessary, call in additional help. Johnson had no authority to discipline, hire or discharge, or effectively recommends a change in status of the night shift employees.
Based upon these facts, this Board decided that Johnson was not a supervisor. It held: "We do not believe that Johnson exercises such a degree of independent judgment or discretion in the performance of his duties as would warrant a finding that he is a supervisor within the meaning of Section 2(11) of the Act. Such authority as he possesses appears to be routine in nature, and is usually carried out under the guidance of a supervisor. Under all the circumstances, we find that Johnson is not a supervisor within the meaning of the Act."
In National Broadcasting Company, Inc., 160 NLRB 1440 (1966), this Board reviewed the status of "deskmen" employed by a radio station. Deskmen were newsmen who, while working as deskmen, had final responsibility for all material broadcast over the air. They edited material submitted by others and, in case of a dispute, their judgment controlled. Virtually all the newsmen regularly served as deskmen. All reported to the manager of news. The employer argued that deskmen were supervisors.
This Board found the following facts controlling:
1. The deskmen had authority to reassign newsmen from previously assigned stories to a later breaking story and could, in emergencies, call in newsmen from off duty. Generally, however, they were required to conform assignments to the newsmen's regularly scheduled working hours, and they had no voice in scheduling those hours.
2. Deskmen did not hire or fire employees or recommend personnel action, except that the news manager in evaluating employees or determining salary increases considered their opinions of other employees.
3. The news manager testified that he had never hired someone solely on the recommendation of the deskmen. He further testified that he was in charge of the newsroom and had responsibility for his operation, and that deskmen were in charge during their shifts only by virtue of his authority and under his direction.
The Board held that the deskmen were not supervisors. In so doing, it stated: "Although Burchard has delegated to the newsman while he is on the news desk some degree of responsibility for the efficient functioning of the newsroom, we believe such responsibility calls for the exercise of only such judgment and the execution of only such tasks as appropriately fall within the scope of the news writing craft or profession rather than within the area of supervisory responsibility relating to the work of others." 160 NLRB at 1442.
In Wurster, Bernardi & Emmons, Inc., 192 NLRB 1049 (1971), this Board addressed the status of architects who, on a project basis, served as project architect, job captain or designer. The Board stated, "Although they responsibly direct other employees, it is in a professional sense and related only to a particular project. We conclude that they are not supervisors…" 192 NLRB at 1051. Similarly, in Skidmore, Owings & Merrill, 192 NLRB 920 (1971), addressing the same issue, this Board held: "Neither project managers nor job captains, as such, have authority to hire, fire, discipline, or grant benefits to any employee, nor do they effectively recommend such action. While they may influence the assignments of overtime, they do not have final authority in this area. Both have some discretion in assigning work and are professionally responsible for the quality of work performed on a project to which they are assigned. The Employer would include them in the unit and the Petitioners would exclude them, apparently on the ground that they are supervisors. We conclude that neither project managers nor job captains are supervisors within the meaning of the Act, but merely provide professional direction and coordination for other professional employees and shall include them in the unit." 192 NLRB at 921.
In General Dynamics Corp., 213 NLRB 851 (1974), this Board was faced with a situation in which professional and technical employees regularly served as program managers, on a project-by-project basis. During this time, they would also serve as members of teams headed by other project managers, their peers, who might also be serving as a project member of several other teams. These projects involved evaluating and preparing proposals, and could result in the adoption of projects that would generate millions of dollars in costs and revenues. The project leader (project manager) could remove people from his project group who, for one reason or another, were not performing adequately. He could not discipline those people; the person's "functional" supervisor handled that. The employer argued that, by virtue of their service as project leaders, hundreds of its professional employees were actually "managers", exempt from the bargaining unit, because of their ability to formulate or alter the company's business policy. This Board found that, at least as to many of the people at issue, they were neither managers nor 2(11) supervisors. It held:
"We cannot find, in these circumstances, that the employees sought, who perform as proposal managers, … proposal team members, or project leaders, formulate or effectuate management policies, or that they have the type of discretion indicative of managerial status, or, indeed, that they have discretion in their job performance independent of their Employer's established policy, since their job discretions in fact are exercised in conformity with the Employer's established policy…we find that the aforesaid job responsibilities do not embrace the type of supervisorial authority essential for unit exclusion. Supervisors are management people. Their job functions are aligned with managerial authority rather than with work performance of a routine, technical, or consultative nature. While it is true that the authorities contained in Section 2(11) of the Act are indicative of supervisorial authority, it does not necessarily follow that the exercise of one or more of those authorities ipso facto confers supervisorial authority unless it is exercised in the genuine managerial sense. This also is clear from the legislative history of the Taft-Hartley Act of 1947 wherein the Conference Committee adopted the Senate version of the bill, S. 1126, which excluded supervisors, but with a narrower definition thereof than the House version, H.R. 3020, by distinguishing between 'leadmen, setup men, and other minor supervisory employees … and the supervisor vested with genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with regard to such action.'
Here, while proposal managers, proposal team members, and project leaders exercise a certain amount of discretion in assigning work, that discretion primarily is made by the only people technically competent to make it, and within the parameters set by the utilization of systems engineering. Such discretions as the professional engineers may have in work assignment and direction, moreover, are exercised in a professional sense and are directly related to a professional responsibility for the quality of work performed on the projects to which they are assigned." 213 NLRB at 858-859.
In Chevron Shipping Co., 317 NLRB No. 53 (1995) (Chevron Shipping), (another case approved by the Kentucky River majority) this Board was faced with a work situation where certain second and third "mates", as well as "assistant engineers", regularly served as "watch officers" aboard ship and, while serving in that capacity, were in charge of the crew, cargo and safety of the ship. This Board concluded that these "junior officers" were not Section 2(11) "supervisors", however, stating: "although the contested licensed officers are imbued with a great deal of responsibility, their use of independent judgment and discretion is circumscribed by the master's standing orders, and the Operating Regulations . . .Further, the duties of the crew members . . . are delineated in great detail in the Regulations; thus, the officers and crew generally know what functions they are responsible for performing and how to accomplish such tasks. . .We are not unmindful that the licensed junior officers exercise substantial responsibility for ensuring that the ship's functions are carried out properly, and that the crew and cargo remain safe. We believe, however, that their authority to direct the work of the crew is based on their greater technical expertise and experience , rather than being an indication of supervisory authority." Chevron Shipping at 381-82.
In a case very recently decided by this Board, which specifically considered Kentucky River, Dynamic Science, Inc., 334 NLRB No. 57 (June 27, 2001) (Dynamic Science), this Board found that certain employees classified as "test leaders" were not supervisors because their use of independent judgment in directing others fell below the threshold required to establish "real" supervisory authority. In that case, the evidence indicated that the test leaders were given detailed assignment sheets, received additional instructions from an on-site test director, and were required to follow standard operating procedures at each test site. These restrictions on the test leaders' independence were, in the Board's judgment, enough to reduce the test leaders' authority to direct others below the level required to make them Section 2(11) "supervisors".
In that case, the Regional Director making the original determination relied on several prior Board cases to establish certain guiding principles, including two especially relevant in this case: 1) the exercise of a Section 2(11) authority in a merely routine, clerical, perfunctory, or sporadic manner does not confer supervisory status. (Chicago Metallic Corp., 273 NLRB 167 (1985)); and 2) there are highly skilled employees whose primary function is physical participation in the production or operating process of their employer's plants and who incidentally direct the movements and operations of less skilled subordinate employees, who nonetheless are not supervisors within the meaning of the Act since their authority is based on their working skills and experience. (Southern Bleachery & Print Works, 115 NLRB 787, 791 (1956), enfd. 257 F.;2dc 235 (4th Cir. 12958), cert denied 359 U.S. 911; Gulf Bottlers, Inc., 127 NLRB 850, fn. 3, 858-861 (1960), enfd. sub nom. United BreweryWorkers v. NLRB, 298 F.2d 297 (D.C. Cirl 1961); Koons Ford of Annapolis, 282 NLRB 506, 513-514 (1986), enfd. 833 Fl.2d 310 1987), cert denied 485 U.S. 1021 (1988).
2. The Supreme Court and the "Supervisor" Exemption From Collective Bargaining
The Supreme Court has issued three important decisions addressing the collective bargaining rights of "professional" employees; one involving university professors and the other two involving health care professionals: N.L.R.B. v Yeshiva University, 444 U.S. 672 (1980) (Yeshiva); N.L.R.B. v. Health Care & Retirement Corp., 511 U.S. 571 (1994) (HCRC); and Kentucky River.
KENTUCKY RIVER
In the Kentucky River proceedings below, this Board had applied its post-HCRC Section 2(11) test for "professional" employees in determining that certain of Kentucky Rivers'registered nurses did not exercise "independent judgment" in directing the work of others and were not, therefore, "supervisors". This Board's post-HCRC Section 2(11) test essentially ignored any "professional" employees' exercise of independent judgment in directing the work of others, if that judgment was a component of the "professional" employee's regular job duties and if the professional employee's only Section 2(11) activity was directing the work of less skilled workers.
The Supreme Court's Kentucky River opinion issued on May 29, 2001 and a five-member majority, consisting of Justices Scalia, Rehnquist, O'Connor, Kennedy and Thomas, disagreed with this Board's position that the mere exercise of "ordinary professional or technical judgment" in directing others was never "independent". In its decision, the Court stated: "What supervisory judgment worth exercising, one must wonder, does not rest on 'professional or technical skill or experience'? If the Board applied this aspect of its test to every exercise of a supervisory function, it would virtually eliminate 'supervisors' from the Act." (Kentucky River, p. 4). The Court went on to reject this Board's position that only professional judgment applied "in directing less-skilled employees to deliver services" would be excluded from the statutory category of "independent judgment", stating that every true supervisory function is subject to the requirement that its exercise "require the use of independent judgment".
After rejecting this Board's position and arguments, the Court went on to state: "Perhaps the Board could offer a limiting interpretation of the supervisory function of responsible direction by distinguishing employees who direct the manner of others' performance of discrete tasks from employees who direct other employees as Section 152(11) requires. Certain of the Board's decisions appear to have drawn that distinction in the past, see, e.g., Providence Hospital, 320 NLRB 717, 729 (1996). We have no occasion to consider it here, however, because the Board has carefully insisted that the proper interpretation of 'responsibly to direct' is not at issue in this case. …" (emphasis added) (Kentucky River, at 6-7).
The Kentucky River majority also agreed, however, that:
1. The Section 2(11) term "independent judgment" is ambiguous with respect to the degree of discretion required for supervisory status; and 2. It is undoubtedly true that the degree of judgment that might ordinarily be required to conduct a particular task may be reduced below the statutory threshold by detailed orders and regulations issued by the employer (citing Chevron Shipping Co., 317 NLRB 379, 381 (1995).
In so finding, the Court specifically stated that many nominally supervisory functions may be performed without the exercise of such a degree of judgment or discretion as would warrant a finding of supervisory status under the Act (citing Weyerhaeuser discussed above).
The Court concluded, "What is at issue is the Board's contention that the policy of covering professional employees under the Act justifies the categorical exclusion of professional judgments from a term, 'independent judgment' that naturally includes them. And, further, that it justifies limiting this categorical exclusion to the supervisory function of responsibly directing other employees. These contentions contradict both the text and structure of the statute, and they contradict as well the rule of Health Care (HCRC) that the test for supervisory status applies no differently to professionals than to other employees. … We therefore find the Board's interpretation unlawful." (emphasis added) (Kentucky River, at 7).
Clearly, this Board and the Supreme Court both recognize that one employee routinely asking or directing another to do something, or directing another employee how to perform a task, does not convert a co-worker into a supervisor. If it did, then every carpenter who asked a laborer to position a board for a cut, every production worker who advised a worker adjacent to him or her on the production line how to position the product for his or her task, and virtually every employee who works interdependently with someone else would be a Section 2(11) "supervisor" devoid of the Act's collective bargaining protections.
YESHIVA
In Yeshiva, the Court addressed this Board's ruling that the "managerial" exclusion from the Act cannot be applied in a straightforward fashion to professional employees because their use of "independent judgment" may appear to be managerial but, in the Board's view, not necessarily "aligned with management". This Board's holding was premised on its position that faculty exercises authority in its own interests, not in the interests of management. This Board reasoned that the faculty's decisions were not managerial because they required the exercise of independent professional judgment.
The Court disagreed on all counts. It found that the faculty's participation in college administration clearly was managerial in nature and that the Board's tests were lacking in logic and a basis in the law. However, the Court was quick to point out that it was NOT holding that all professionals are supervisors or managers. It stated: "We certainly are not suggesting an application of the managerial exclusion that would sweep all professionals outside the Act in derogation of Congress' expressed intent to protect them. This Board has recognized that employees whose decision making is limited to the routine discharge of professional duties in projects to which they have been assigned cannot be excluded from coverage even if union membership arguably may involve some divided loyalty. Only if an employee's activities fall outside the scope of the duties routinely performed by similarly situated professionals will he be found aligned with management." 444 U.S. at 691.
HEALTH CARE RETIREMENT CORP.
In NLRB v Health Care & Retirement Corp., (HCRC) the Court stated that the Act requires the resolution of three questions, each of which must be answered in the affirmative, if an employee is to be excluded from collective bargaining as a supervisor:
1. Does the employee have authority to engage in one of the twelve listed activities? 2. Does the exercise of that authority require the use of independent judgment? 3. Does the employee hold the authority "in the interest of the employer?"
The HCRC issue was this Board's interpretation of the third element of the test as applied to registered nurses. This Board argued that a nurse's direction of less-skilled employees, in the exercise of professional judgment incidental to the treatment of patients, was not authority exercised "in the interest of the employer" but was, rather, exercised in the interest of the patient. The Court stated: "As in Yeshiva, the Board has created a false dichotomy - in this case, a dichotomy between acts taken in connection with patient care and acts taken in the interest of the employer. The dichotomy makes no sense. Patient care is the business of a nursing home, and it follows that attending to the needs of the nursing home patients, who are the employer's customers, is in the interest of the employer." HCRC, at 6.
Comparing this Board's supervisor standards for nurses with its other supervisor standard in other industries, the Court stated: "To be sure, in other industries, the Board on occasion reaches results reflecting a distinction between authority arising from professional knowledge and authority encompassing front line management prerogatives. It is important to emphasize, however, that in almost all of those cases (unlike in cases involving nurses), the Board's decision did not result from manipulation of the statutory phrase 'in the interest of the employer,' but instead from a finding that the employee in question had not met the other requirements for supervisory status under the Act, such as the requirement that the employee exercise one of the listed activities in a non-routine manner." HCRC at 13.
B. KENTUCKY RIVER'S EFFECT ON RESIDENT AND FELLOW COLLECTIVE BARGAINING
The Regional Director's job in this case was to determine, with respect to the LGH Chief Residents, what Yeshiva, HCRC and Kentucky River mean for physician collective bargaining. In Yeshiva, the Court told this Board that "professional" (as well as "technical") employees don't get an automatic pass on the question whether they are so aligned with management that they are ineligible for collective bargaining. In HCRC, this Court told this Board that "professional" employees don't get an automatic pass on the question whether they are acting "in the interest of the employer" when they direct the work of others. In Kentucky River, the Court told this Board that "professional" employees don't get an automatic pass on the question whether they are exercising "independent judgment" when they "responsibly" direct the work of other employees. In Dynamic Science, this Board demonstrated that collective bargaining for professional and technical employees, including these Chief Residents survives these holdings.
Taken together, Yeshiva, HCRC, Kentucky River, Weyerhaeuser , Chevron Shipping, and this Board's recent decision in Dynamic Science, stand for the following principles:
The burden of proving supervisory status is on the party asserting it; In determining whether a professional employee is a Section 2(11) supervisor, the Board must apply the same test to a "professional" or "technical" employee as it would apply to a non-professional/non-technical employee; Some professional employees are Section 2(11) "supervisors", ie., those who would meet the Section 2(11) test even if they weren't "professional" employees; All professional employees are not Section 2(11) "supervisors"; All employees who direct the work of others are not Section 2(11) "supervisors"; An employee will not be found to be a Section 2(11) "supervisor" if his/her direction of the work of others is Weyerhaeuser-like routine in nature and often carried out in the presence of those employee's true supervisor; An employee will not be found to be a Section 2(11) "supervisor' if his/her employer has reduced the degree of independent judgment that might ordinarily be required to direct a particular task below the Section 2(11) threshold by issuing detailed Chevron Shipping-type orders and regulations; An employee will not be found to be a Section 2(11) "supervisor" if his/her direction of other employees is limited to the Justice Scalia threshold of "directing the manner of the performance of discrete tasks".
That's the law after Kentucky River and it is clear that, when applied to the LGH Chief Residents at issue in this case, the Regional Director appropriately concluded that these physicians do not, within the meaning of Section 2(11), use "independent judgment " to "responsibly" direct the work of other "employees" and they are not, therefore, Section 2(11) "supervisors".
What's also clear is that, if the LGH Chief Residents were to be denied their collective bargaining rights under the Act, it was Employer's burden to prove each of the statutory elements:
1) that the LGH Chief Residents responsibly direct the work of other residents, not merely direct the manner of the performance of discrete tasks; 2) that, if the LGH Chief Residents responsibly direct the work of other residents, the exercise of that authority is not of a "routine" or "clerical" nature;and 3) that, if the LGH Chief Residents responsibly direct the work of other residents, the exercise of that authority also requires the use of "independent judgment.
C. ANALYSIS OF THE FACTS CONCERNING CHIEF RESIDENTS' "DIRECTION OF THE WORK OF OTHERS"
In the 2000 proceedings in this case, the Employer's entire focus in attempting to prove that all of the "Chief Residents" in the petitioned-for unit (as well as in the expanded unit sought by Employer, which would have included "rotating residents" plus faculty) were Section 2(11) "supervisors" was on Section 2(11) criteria other than "responsibly directing the work of others". The "facts" concerning the LGH Chief Residents and Section 2(11) criteria other than "responsibly directing the work of others", are discussed in detail in the Regional Director's DECISION AND DIRECTION OF ELECTION, dated November 7, 2000, and will not be repeated here.
The primary Section 2(11) question addressed during the remand proceedings were whether, within the Kentucky River-clarified standard of Section 2(11), the "Chief Residents" in the petitioned-for unit exercise "independent judgment" in "responsibly" directing the work of other residents. There was no evidence and no contention that the LGH Chief Residents directed the work of any employees other than other residents. Employer's contentions concerning the Section 2(11) status of the Chief Residents in the "rotating" MGH residency programs will also be discussed below. Since Employer presented virtually no evidence during the initial hearings on this now-important question, the evidence was as established during the Round Four hearing that ended on September 7, 2001.
1. Supervisory Status of LGH Chief Residents
The Board's remand was specific - the only Section 2(11) issue is the possible supervisory status of "Chief Residents" in light of Kentucky River - that is, whether the Chief Residents exercise "independent judgment" in "responsibly directing the work of other" residents.The Chief Residents that Petitioner seeks to represent are those in the five LGH "stand alone" residency programs: internal medicine, family practice, obstetrics and gynecology (OB/GYN), pediatrics, and psychiatry. Virtually no live testimony was adduced by Employer at any of the hearings concerning these Chief Residents' "direction of the work of others". Employer introduced exhibits setting forth the job duties for these Chief Residents. (E Ex 55, 65, 67, 68, 69). The parties stipulated that these exhibits are the "official" job descriptions and that they accurately describe certain specific duties of the LGH Chief Residents in the stand alone programs but, importantly, the parties also agreed that the conclusory terms in the job descriptions such as "supervisory" or "manager" are not, in any way, evidence of such Section 2(11) status. (1266:7-1267:17).
The only live testimony concerning the LGH Chief Residents "supervisory" status during the Round Four hearing came from Dr. Rubino, who testified, in conclusory fashion, that the LGH Internal Medicine Chief Residents utilize "independent judgment" in recruiting and scheduling (1270-1272), but his words were simply a re-hash of his prior testimony concerning those activities. With respect to the important issue here, direction of work, Dr. Rubino testified that those Chief Resident's role is that of mentor and educator for other residents. (1274:1-1275:1; 1276:16-24). He also candidly admitted that the Internal Medicine Chief Residents never direct or assign work to any non-resident LGH personnel. (1275:2-6). Without providing any detail, Dr. Rubino also testified on cross-examination that Internal Medicine Chief Residents "might" watch the tasks being performed by other residents, but only in the presence of an an attending physician. (1282:14-1283:8). When asked what a Chief Resident would do if another resident refused to perform a needed procedure, Dr. Rubino acknowledged that he would expect the Chief to mentor, educate, counsel or coach the resident and, if further action were needed, turn the situation over to the Program Director and Chair. (1287:22-1289:7). Dr. Rubino refused, even after Employer's counsel made a valiant attempt to coach him, to state that the Chief Resident would actually take any disciplinary action against another resident. (1289:21-1292:13).
The job description for the Chief Resident of Internal Medicine, which the Employer stipulated fully described his/her duties (E Ex 55) makes only a single, vague reference to the Chief Resident's possible direction of others in paragraph 10, which states: "chief residents supervise and facilitate work rounds on a daily basis, alternating with different resident floor teams." (E Ex 55, p. 2) The Department of Medicine Chief Resident job description (E Ex 65) offers no evidence whatsoever that this Chief is expected to assign or responsibly direct the work of other residents, let alone exercise "independent judgment in responsibly directing the work of others." In fact, tellingly, under a heading "Problems/Situations", the Chief Resident's role is limited to the following: "Incidents that occur should be investigated thoroughly (each side of the story should be noted) and this should be reported back to the Program Director immediately". The OB/GYN Chief Resident job description offers nothing more than the Internal Medicine Chief Resident job description. That OB/GYN job description (E Ex 69), indicates that this Chief Resident's role is more that of union steward representing other residents ("This individual should be viewed as representative for all members of the residency. He/she is expected to solicit suggestions/problems from the resident staff and confer them to the program director.") than that of a supervisor assigning and directing the work of others. While the document makes conclusory mention of "supervisory and managerial duties", it is only in the context of the routine coordination of call schedules, facilitation of educational activities, and liaison between other residents and the program director and department chairman. (E Ex 69, heading "Administrative Chief Resident").
The job description for the Psychiatry Chief Resident (E Ex 68), makes no reference whatsoever to supervising other residents, nor to directing their work. Neither does the job description for the Chief Resident in Pediatrics (E Ex 66). Finally, the description for the position of Chief Resident in Family Practice (E Ex 67), also describes the role predominantly as liaison, and the single reference to "assigning" or directing anything is only the task of assigning residents each year to appropriate committees. (E Ex 67, paragraph 12, p.2).
The LGH Chief Residents are outstanding young physicians in training who have accepted increasing patient care responsibility and assist in educating those physicians who are coming through the residency program behind them. They handle some minor administrative matters for the residency program, most of which, like scheduling on-call and scheduling rotations, are handled in routine fashion and have been handled in the same way for so long that all residents apparently "know the ropes" and handle much of the day-to-day administration by themselves. (See, for example, Dr. Rubino's testimony about arranging the on-call schedule at 1283:18-24 and how residents find their own replacements at 1283:25-1284:12). It is clear that, unlike the Chief Residents in the MGH Surgery program (discussed below), the Chief Residents in the LGH stand alone residency programs do not, even under the most broad reading of Kentucky River, utilize independent judgment to responsibly direct the work of other employees. They are not supervisors and the Regional director had ample support in the record for reaching that conclusion.
As Kentucky River specifically held, the burden of proof as to whether an employee is a Section 2(11) supervisor is on the party asserting supervisory status. Moreover, absent detailed , specific evidence of independent judgment, mere inference or conclusionary statements (such as these job descriptions) without supporting evidence are insufficient to establish supervisory status. Quadres Environment al Co., 308 NLRB 101, 102 (1992) (citing Sears Roebuck & Co., 304 NLRB 193 (1991). Further, whenever evidence is in conflict or otherwise inconclusive on particular indicia of supervisory authority, the Board will find that supervisory authority has not been established on the basis of those indicia. The Door, 297 NLRB 601 (1990) (quoting Phelps Community Medical Center, 295 NLRB 486, 490 (1989). It is well established that an employee's title/job description, standing alone, is not indicative of supervisory status for purposes of the Act. John N. Hansen Co., 293 NLRB 63 (1989).
Employer clearly did not, by simply introducing the job descriptions of the LGH Chief Residents, meet its burden of proving that these Chief Residents exercise independent judgment in responsibly directing the work of other residents in the LGH stand alone programs. Moreover, it is ludicrous for Employer to argue that these Chief Residents, who are still in training for their careers in medicine, are Section 2(11) "supervisors" while at the same time arguing that full-fledged directors of other hospital functions, and long-time physicians, are non-supervisory employees. See Employer's Post-Hearing Brief, p 106-108. (See also 1277:3-1280:15). Dr. Hruskocy is Medical Director of the operating room, where, according to the Employer, he directs the nursing staff in conjunction with the Nursing Director, but Employer argues that he's not a supervisor. Dr. Binder is Medical Director in geriatrics, where he directs the in-patient unit, but Employer argues that he's not a supervisor. Dr Greenspahn is Associate Medical Director of the cardiac "cath" lab, where he assists in developing policies for its administration, but Employer argues that he's not a supervisor. Dr. Klein is Associate Medical Director of ABMT, the bone marrow transplant program and "may" give input into development of policy for medical matters and Employer argues that he's not a supervisor. Similarly, Drs. Rosenbaum, Miller, Shafter, Caldwell and Soden, long-term physicians all, hold responsible administrative positions, but Employer argues that none of them are supervisors. The Employer's Brief filed October 4, 2000, lays out the responsibilities of these physicians and concludes, at pp. 106-108, that none of them are Section 2(11) supervisors. If the LGH "directors" and administrators are not Section 2(11) supervisors, the LGH Chief Residents most certainly are not Section 2(11) supervisors and the Regional Director appropriately so concluded.
2. Supervisory Status of the MGH Chief Residents
During the Remand hearing, Employer chose to spend much all of its time and evidence proving that the MGH Surgery Chief Residents, who Petitioner does not even seek to represent, were Section 2(11) "supervisors" and, as discussed above, presented almost no evidence concerning the LGH Chiefs, who Petitioner does seek to represent. The substantial evidence at the September 7, 2001 Remand hearing concerning the Chief Residents in the MGH Surgery program came from Dr. White, Chairman of LGH's Department of Surgery, who testified that there are six Chief Residents in this program, one of whom is designated as "overall" Chief Resident (Chief of Chiefs). (1189:17-22). The MGH Surgery program involves four hospitals, so the MGH residents, including the Chiefs, spend only approximately one-fourth of each year, or three months, at LGH. (1169:25-1170:7). In this MGH Surgery program, unlike the LGH programs, all residents in their final (fifth) year of the program are considered "Chief Residents", with the "Chief of Chiefs" selected by the other Chiefs to represent them on the Surgical Joint Conference Committee (Joint Committee), the key administrative body of MGH Surgery program. (1168:20-1169:2; 1191:9-15). The Joint Committee has 12 regular members, attending physicians from the four hospitals participating in the Surgery program, and the Chief (of Chiefs), who serves as the 13th member.
Dr. White described in detail the functioning of the MGH Surgery program for those MGH residents at LGH. After patients are admitted to LGH and are determined to require a surgical procedure, that patient undergoes certain pre-operative procedures, the surgery is performed, and then the patients typically remain in the hospital for some post-operative care. LGH does not have a stand-alone surgery residency program, and, thus, these MGH Surgery residents are involved in all three of these phases of surgical care, under the overall supervision of the Joint Committee and the LGH teaching faculty, some of whom are employed by AMG and some of whom are not. (1170:13-16; 1178:13-1179:23). In the LGH operating room, while surgery is in progress, the attending surgeon is in control of both the surgery and the learning experience for the resident who is assisting him/her in the surgery. (1201:10-14).
Dr. White testified that the MGH Surgery Chief Residents determine, on a day-to-day basis and based upon their own best assessment in attempting to match resident skill levels to available learning opportunities, the surgeries in which each resident (including themselves) in their general service will participate. The MGH Surgery Chiefs also determine which "junior" resident will perform certain post-operative tasks such as removing a catheter. (1200:23-1202:2).
During cross-examination, Dr. White testified that the assignments in these post-operative procedures generally involved showing a less senior resident the manner in which a discrete task should be performed. (1205:5-14; 1206:7-13; 1207:5-14). Dr. White further testified that the MGH Surgery Chief Residents do not assign other residents to particular rotations; that is done through the Joint Committee in compliance with "required" rotations established by the American Board of Surgery. (1211:24-1212:18).
Thus, based upon the record developed at the hearing from Employer's witnesses, based upon Petitioner's non-existent opportunity to gather contrary evidence from a group of nameless employees it does not seek to represent and based upon Petitioner's desire to remove any "close question" from these proceedings that might give Employer additional reasons to further delay appearance at the bargaining table, Petitioner reluctantly conceded that Employer produced some evidence that, in the day-to-day direction and assignment of tasks to the other MGH residents, the MGH Surgery Chief Resident exercise independent judgment (1213:10-23; 1214:12-1215:11; 1216:2-18; 1234:7-1235:2), and reluctantly conceded that, under the post-Kentucky River Section 2(11) burden of proof discussed above, Employer had, accordingly, established that the MGH Surgery Chief Residents are "supervisors" of the other MGH surgery residents.
Dr. White was quite clear, however, that his description of the MGH Surgery Chief Residents' direction and assignment of work related only to the MGH Surgery program and not to any other residency program. (1216:19-23). No evidence was presented concerning the MGH Pathology Chief Residents other than their job descriptions, but, for the reasons set forth above and, since, as discussed in detail below, none of the residents from either of the MGH residency programs should be included in the petitioned-for unit, Petitioner does not contest Employer's position that the MGH Pathology Chief Residents should be treated, in this respect, as are the Chief Residents in the MGH Surgery program.
IV. THE REGIONAL DIRECTOR'S CONCLUSIONS CONCERNING MGH SURGERY "ATTENDINGS" ROLE AS EDUCATORS DOES NOT RE-OPEN THE BOSTON MEDICAL CENTER STUDENT/EMPLOYEE ISSUE.
Employer's final argument, i.e., that the Regional Director's conclusion that MGH Surgery "Attendings" direction of residents is merely incidental to their role as educators means that the residents must all be students, is the proverbial final grasp at a straw. This Board's denial of Employer's Request for Review on this point a year ago should have stopped the flogging of this dead horse, but it did not. To avoid dignifying a ridiculous argument with lengthy response, Petitioner notes only that LGH's argument here ignores the clear Boston Medical Center holding that medical residents and fellows are both students and employees. Thus, the fact that the "Attendings" spend some of their time "educating" the MGH Surgery residents has no bearing on whether the residents and fellow are also employees of the Hospital where they work.
IV. CONCLUSION. For all of the reasons set forth above, Petitioner requests this Board's Order denying Employer's Request for Review and directing the counting of the ballots cast on December 7 and 8, 2000.
Respectfully submitted,
Physicians for Responsible Negotiation By Mark G. Flaherty and Jill Poznick
The undersigned does, hereby, certify that a copy of this Objection was served upon Employer's counsel of record, Seyfarth Shaw, this 13th day of December, 2001, by hand delivery to their offices at 55 East Monroe Street-Suite 4200, Chicago, Illinois 60603 and upon the Regional Director by hand delivery to the Region 13 Offices at 200 W. Adams Street-Suite 800, Chicago, Illinois 60606.
Mark G. Flaherty