Mercy-Memorial Hospital Corp., 1108 (1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Mercy-Memorial Hospital Corporation and Local 79,

Service Employees International Union, AFL-CIO and Mercy-Memorial Hospital Employees' Grievance Committee, Party in Interest. Cases 7-CA12174. 7 CA 12015(1), 7-CA-12015(2), and 7CA-12599

August 31, 1977 DECISION AND ORDER

On November 18, 1976, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief and Respondent filed a brief in opposition to General Counsel's exceptions, and in support of the Administrative Law Judge's Decision, and also filed cross-exceptions to the Administrative Law Judge's Decision and a brief in support thereof.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, to modify his Remedy,' and to adopt his recommended Order.

We fully agree with the Administrative Law Judge's finding that the instant Employees' Grievance Committee is not a labor organization within the meaning of Section 2(5) of the Act. The facts surrounding the establishment and operations of the Committee are thoroughly described in the Administrative Law Judge's Decision and need not be repeated here. Suffice that these findings are amply supported by the record. Based on the facts, we are satisfied, as the Administrative Law Judge was, that the Employees' Grievance Committee does not qualify as a labor organization under the language of Section 2(5) even given its broad application under N. L.R. B. v. Cabot CarbonCompany and Cabot Shops,

Inc., 360 U.S. 203 (1959). The Administrative Law Judge's Decision clearly articulates our reasons for so finding. Our dissenting colleagues' arguments to the contrary are not persuasive.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and ' In accordance with our decision in Florida Steel Corporation, 231

NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior to August 25. 1977. in which the 'adjusted prime interest rate' as used by the Internal Resenue Service in calculating interest on tax payments was at least 7 percent.

2 In a recent decision, a panel majority (Members Penello and Murphy) held that an employee council that 'performs a purely adjudicatory function 231 NLRB No. 182 hereby orders that the Respondent, Mercy-Memorial Hospital Corporation, Monroe, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

CHAIRMAN FANNING and MEMBER JENKINS, dissenting in part:

Contrary to our majority colleagues, we find that the Mercy-Memorial Hospital Employees' Grievance Committee (the committee) is a labor organization within the meaning of the Act and that Respondent violated Section 8(a)(2) and (1) by assisting and interfering with the administration of the committee.

There is no dispute that Respondent assisted and interfered with the administration of the Committee.

The majority agrees with us that Respondent did.

Our disagreement with the majority, rather, is over whether the Committee is a labor organization within the meaning of Section 2(5) which defines 'labor organization' as:

[A]ny organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

In N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203 (1959), the U.S. Supreme Court held that the term 'dealing with' is not synonymous with the more limited term 'bargaining with.' It is thus settled that the absence of any 'bargaining' in the usual sense of that word is immaterial. It is also well settled that the phrasing of the statutory definition is in the disjunctive. Hence, 'dealing with' an employer concerning one (or more) of the matters enumerated in Section 2(5) suffices.

The declared purposes and the actual functions of the Committee demonstrate that it existed for the purpose, at least in part, of dealing with Respondent concerning one or more of the matters enumerated in Section 2(5). Even assuming, as our colleagues find, that the Committee was created to give employees a voice in resolving grievances at stage III of the grievance procedure, it is clear that the Committee has not been limited to 'rendering a final decision on a grievance.' 2

Rather, the committee function and does not interact with management for any purpose or in any manner other than to render a final decision on the grievance' is not a labor organization within the meaning of the Act. Sparks Nugget, Inc., d b/a John Ascuaga's Nugget, 230 NLRB 275 (1977) (Chairman Fanning dissenting).

We find no support for Sparks Nugget in Board precedent. Cabot Carbon, or the Act. However, even were we' inclined to accept the majority's view in Sparks Nugget, we find factual differences which clearly distinguish the 1108

MERCY-MEMORIAL HOSPITAL embraces action by management or recommendations by elected employee representatives.

The declared purposes of the Committee were set forth in two policy statements issued by Respondent which reflected the consensus at the employee meetings concerning the functions of the Committee.

The expanded version of the policy statement issued in August 1975, immediately following the election of the permanent Committee, provides that the Committee has 'the right and the obligation to recommend . . . any change in the rules, regulations, and standards. These recommendations will then be discussed and acted upon by the administrative head and the committee members and committee will be informed of that decision.' It is thur as plain as words can express that the Committee existed, at least in part, for the purpose of dealing with Respondent by recommending changes in rules, regulations, and standards which patently include 'conditions of employment' and other matters enumerated in Section 2(5).

Moreover, the Committee has recommended management consideration of changes in terms and conditions of employment. Within the first month after the permanent Committee's members were elected, an employee filed a grievance complaining about the different methods used to determine eligibility for longevity service pins. In marked contrast to stage III of the grievance procedure,: the service pin 'grievance' was handled in the manner described in the policy statement quoted above.

Thus, Respondent's personnel director and his designated successor met with the Committee to discuss the issue after which Respondent's representatives solicited from the Committee a recommendation for a single uniform policy. The Committee made such a recommendation which was adopted by Respondent sometime later without further discussion or negotiation.

In sum, we find that, whatever role the Committee was originally conceived to play, the declared purposes and the actual functions of the Committee leave no doubt that it was an organization which existed, in part, for the purpose of dealing with grievances and conditions of work and, therefore, that the Committee was a labor organization within instant case. Moreover, these differences demonstrate, convincingly. that the (ommnittee has interactled] with management for [a I]purpose land I in la] manner iotherthan to render a final decision on the grievance.' : As fulls set forth in the Administrative Law Judge's Decision. stage III of the grievance procedure provides that the Committee is to investigate all aspects of the grievance. meet with the grievant if necessary. and render its decision within 5 days bh informing the personnel director, who in turn informs the grievant. It the grievant is not satisfied with the Committee's decision, he mas proceed to stage IV. a review by the hospital's directors.

4 North American Rockwell Corporation. 191 NLRB 833 (1971): FTS Corp. (Division of Hilco), 184 NLRB 787 (1970): Pinesof .4merica, Inc.. 178

NLRB 376 (1969); Monet Oldsmobile Companl. 201 NLRB 155(1973).

Section 2(5) of the Act.4

It follows that assisting and interfering with it violated Section 8(a)(2) and (1).

DECISION

STATEMENT OF THE CASE

PAUL BISGYER, Administrative Law Judge: This proceeding, with all parties except the Grievance Committee represented, was heard on June 1, 2, 14, and 15, 1976, in Detroit, Michigan, on the consolidated complaint of the General Counsel issued on January 30, 1976,1 and the answer of Mercy-Memorial Hospital Corporation, herein called the Respondent or the Hospital. The litigated questions to be resolved are whether the Respondent unreasonably delayed the reinstatement of striking employees at its Mercy Hospital on their unconditional application to return to work, thereby violating Section 8(a)(3) and (I) of the National Labor Relations Act, as amended;2 whether the Respondent, in violation of the same provisions, discriminatorily required certain returning strikers to work two weekends out of three, while nonstrikers, strikers who had abandoned the strike earlier, and strike replacements hired before March 1, 1974, were only required to work every other weekend; whether the Respondent dominated and interfered with the formation and administration of a so-called Grievance Committee for the employees at its Mercy and Memorial Hospitals in violation of Section 8(a)2) and (I) of the Act; and whether it engaged in preelection misconduct in connection with the scheduled election at Memorial Hospital (Case 7-RC12947) and otherwise interfered with, restrained, and coerced its employees at Mercy Hospital in the exercise of their statutory rights, in violation of Section...