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Bowman v. Hackensack Hospital Association

Decided: September 17, 1971.

ANNE BOWMAN, ET AL., NEW JERSEY STATE NURSES' ASSOCIATION AND JERSEY NURSES' ECONOMIC SECURITY ORGANIZATION, PLAINTIFFS,
v.
HACKENSACK HOSPITAL ASSOCIATION, A NONPROFIT CORPORATION OF NEW JERSEY, DEFENDANT



Lora, J.s.c.

Lora

This is an action to compel defendant Hackensack Hospital Association to recognize New Jersey State Nurses' Association (NJSNA) or, in the alternative, Jersey Nurses' Economic Security Organization (JNESO) as collective bargaining representative for the nursing faculty of the School of Nursing of defendant hospital and to order defendant to bargain collectively with NJSNA or JNESO on behalf of the individual plaintiffs; or, to compel a representation election among the nursing faculty of the School of Nursing of defendant hospital to establish the authorized bargaining representative of the individual plaintiffs.

Plaintiffs contend a majority of the nurses employed as faculty in the School of Nursing of the said hospital has expressed a choice of having NJSNA or JNESO represent them for purposes of collective bargaining; that said faculty nurses constitute an appropriate unit for purposes of collective bargaining; that NJSNA and JNESO are organizations entitled to recognition and to the rights and privileges of Art. I, par. 19 of the New Jersey Constitution (1947), but the hospital has refused to recognize either of said organizations as the collective bargaining representative of these employees, and that this court should order defendant to bargain with NJSNA or its component JNESO, or, in any event, to order an election.

Additionally, plaintiffs state that certain bargaining activities that took place in 1968 between defendant and NJSNA and resulted in individual employment contracts with the members of the nursing faculty, constitute "Established practice, prior agreement or special circumstances" which estop defendant from utilizing the defenses it has raised. Board of Education, West Orange v. Wilton , 57 N.J. 404 (1971); N.J.S.A. 34:13A-5.3. However, after consideration of all the testimony adduced at the trial and the circumstances surrounding said negotiations, the court is led to conclude that the proofs fall short of establishing such

history and type bargaining contemplated by our Supreme Court in Wilton.

It is defendant's contention that neither NJSNA nor JNESO is an organization entitled to recognition or to the rights and privileges of Art. I, par. 19 of the New Jersey State Constitution since NJSNA consists of supervisory and nonsupervisory personnel and is dominated and controlled by nurses in supervisory positions in their respective employments, and JNESO was created as a component organization merely to avoid the defense that NJSNA is not a proper bargaining representative -- that JNESO is completely dependent upon NJSNA, having been created merely by an amendment to the by-laws of its parent organization NJSNA.

Defendant further contends that even if NJSNA or JNESO are organizations entitled to recognition or to the rights and privileges of Art. I, par. 19 of the State Constitution, defendant is still under no obligation to bargain collectively with either of them since the proposed bargaining unit itself (the nursing faculty) consists of supervisory and nonsupervisory personnel and is thus inappropriate for collective bargaining purposes and, additionally, that only a broader bargaining unit, that is, one consisting of all professional service nonsupervisory personnel, or at least one composed of all nonsupervisory registered nurses (faculty and nonfaculty) is appropriate on the basis of the existing mutuality of interests, wages, hours and working conditions.

It is clear that employees of a nonprofit hospital have the constitutional right to organize and bargain collectively for representatives of their own choosing. N.J. Const. (1947), Art. I, par. 19; Johnson v. Christ Hospital , 84 N.J. Super. 541 (Ch. Div. 1964), aff'd 45 N.J. 108, 110 (1965), Independent Dairy Workers, etc. v. Milk Drivers, etc., Local No. 680 , 23 N.J. 85 (1956).

The primary purposes of NJSNA are (1) to help nurses maintain high nursing standards, (2) to insure the passage of "good health and welfare laws" and (3) to promote the

economic and general welfare of nurses. The Economic Security Program of NJSNA has been in existence for more than ten years. A registered nurse may also become a member of JNESO if she is a member of NJSNA and is not a "supervisor," that is, has no power to hire, fire, discipline, or effectively recommend the same. Johnson, supra , at 84 N.J. Super. 568; N.J.S.A. 34:13A-5.3.

JNESO was formed as of January 1, 1970, is a component part of NJSNA and is "an organizational unit within the State association," its primary purpose being to assist its members in improving their economic and general welfare. Its by-laws provide that the Jersey Nurses' Economic Security Organization" may consist of all members of the New Jersey State Nurses' Association, except nurses deemed to hold administrative positions."

Parenthetically, the court notes that despite the fact that public employment is not involved, the criteria which should be followed in determining whether a person is a supervisor are those set forth in chapter 303 of the Laws of 1968 rather than the more detailed criteria found in the definition of "supervisor" contained in 29 U.S.C.A. § 152(11).

In addition to its collective bargaining activity, NJSNA functions primarily as a professional association. JNESO's primary function is collective bargaining, although it, too, is a professional association and, on occasion, involves itself in matters of professional practice. The NJSNA board of directors has been, throughout the years, comprised predominantly of nurses who in their respective employments are supervisory personnel, not only as that term has been defined in 29 U.S.C.A. § 152(11) but also as defined by N.J.S.A. 34:13A-5.3. While nonsupervisory or nonadministrative registered nurses, that is, staff nurses who do not have the power to hire, fire, discipline, or effectively recommend the same, are occasionally nominated to become officers and members of the board of directors of NJSNA, there has never been any such staff nurse on the board of NJSNA.

The by-laws of JNESO do not prohibit a director of JNESO, who, of course, may not be a supervisor, from being a director of NJSNA, but a director of NJSNA who is a supervisor may not be a director of JNESO. Then, too, the by-laws of JNESO do not prohibit an officer thereof from being an officer of NJSNA or vice versa, so long as the qualifications for membership in JNESO are met.

Funds for the operation of JNESO are derived entirely from NJSNA, and JNESO has no independent source of income. All salaried personnel working for JNESO are and have been on the paid staff of NJSNA.

However, even though JNESO's by-laws exclude from membership nurses holding administrative or supervisory positions, there are presently two of eight directors of JNESO who appear to have some attributes of supervision.

In 1957 NJSNA was certified by the N.L.R.B. as bargaining representative for nurses employed at one of Humble Oil Company's plants here in New Jersey; collective bargaining was undertaken and a collective bargaining contract was entered into, which contract however is no longer in effect. In 1969 Essex County consented to a unit, which NJSNA sought to represent, consisting of all registered nurses employed by Essex County except supervisors as defined in the Employer-Employee Relations Act of 1968, but would not consent to a recognition of NJSNA. The New Jersey Public Employment Relations Commission conducted an election, and after the election, which was won by NJSNA, certified the Association as the majority's selection as collective bargaining agent by a certification of representation dated November 12, 1969. Thereafter NJSNA and Essex County entered into a collective bargaining agreement dated June 10, 1970 under which NJSNA was recognized as the exclusive collective bargaining representative of the registered professional nurses employed by Essex County, excluding supervisors, as that term is defined in the Employer-Employee Relations Act of 1968.

On June 1, 1970 a local unit of NJSNA and the Board of Chosen Freeholders of Union County entered into a collective bargaining agreement under which the employer recognized the local unit of NJSNA as the exclusive collective bargaining representative of the registered professional nurses employed by the county in supervisory positions, as that term is defined in the Employer-Employee Relations Act of 1968. At or about the same time JNESO and the freeholders of Union County entered into a collective bargaining agreement which recognized the Union County local unit of JNESO as the exclusive collective bargaining representative of the registered professional nurses employed by the county in nonsupervisory positions.

The Newark Public School Nurses Association, a local unit of NJSNA, and the Newark Board of Education entered into a collective bargaining agreement dated August 25, 1970 under which Newark recognized the local unit of NJSNA as the exclusive representative of the registered professional nurses employed by the Board as nonsupervisory nurses, as that term is defined in the Public Employees Relations Act of 1968. Similarly, the Lakewood Board of Education has recognized the Association as collective bargaining agent for the Lakewood School nurses.

JNESO lost an election in 1970 in Trenton's Helene Fuld Hospital when it sought to be selected as collective bargaining representative for the general duty staff nurses and head nurses at that hospital. Although there is a nursing school at the Helene Fuld Hospital, no attempt was made to separately organize its faculty.

At Elizabeth General Hospital NJSNA sought to represent two separate units, the general duty staff nurses and head nurses on the one hand, and the faculty of the School of Nursing on the other hand. Litigation ensued in 1969, and in 1970 NJSNA took a voluntary dismissal inasmuch as there had been material employee turnovers affecting majority status in both the faculty and nonfaculty units.

It would appear that at the present time there are no collective bargaining contracts in force between NJSNA or JNESO and either a private nonprofit or profit-making employer, nor is there any indication that either NJSNA or JNESO ever, as collective bargaining agent, represented a bargaining unit comprised only of the members of the faculty of a hospital's school of nursing. The bargaining contracts that are in force and were entered into either by the Association or JNESO are all contracts entered on behalf of public employees under the Employer-Employees Relations Act of 1968 which implements the public employment provision of Art. I, par. 19 of the New Jersey Constitution.

Said agreements were negotiated by one John Harper, Director of the Economic Security Program of NJSNA and Director of JNESO; and while, as such, he was directly responsible to the officers and board of directors of NJSNA or JNESO, the officers and the board of directors of the respective organizations involved never acted upon nor were they required to act upon said agreements. It is clear that at no time was Harper ever given bargaining mandates by the board of either the Association or JNESO. On the contrary, all such mandates and bargaining objectives came from the employees within the local unit he was representing at the time of a particular negotiation.

As pointed out above, it is defendant's contention that neither the Association nor JNESO is such an organization as is entitled to recognition or to the rights and privileges of Art. I, par. 19 of the New Jersey Constitution, since they consist of supervisory and nonsupervisory personnel and are dominated and controlled by nurses in supervisory positions in their respective employments. However, the court has already noted that JNESO, with perhaps one or two exceptions, does not contain any supervisory personnel, as the term "supervisor" is defined by the New Jersey Public Relations Act and Johnson v. Christ Hospital, supra.

In the absence of implementing legislation and controlling case law, this court must look to the body of labor law which has developed in other jurisdictions for standards and rules to apply in interpreting Art. I, par. 19 of the New Jersey Constitution.

The Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq. , provides in section 2 (29 U.S.C.A. § 152(5)):

The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exist 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 Independent Circulation Union v. Item Company , 163 F. Supp. 399 (E.D. La 1958), the court said:

It is also clear that the definition of labor organization under the Act is very broad and has been construed even more broadly by the Courts. So that now, almost any group which negotiates with the management concerning wages and working conditions of employees is a labor organization.

See also, N.L.R.B. v. Cabot Carbon Co. , 360 U.S. 203, 79 S. Ct. 1015, 3 L. Ed. 2d 1175 (1959).

While under the federal act and the acts of some states, supervisors do not have the right to organize and engage in collective bargaining negotiations, nevertheless the inclusion of supervisors within a labor organization does not thereby render such an organization ineligible to function as a "labor organization." International Organization of Masters, Mates and Pilots of America, Inc. , 144 N.L.R.B. 1172, 54 LRRM 1209 (1963), aff'd 122 U.S. App. D.C. 74, 351 F.2d 771 (D.C. Cir. 1965); International Paper Co. , 172 N.L.R.B. 100, 68 LRRM 1360 (1968). In International the National Labor Relations Board held that the Alabama Nurses' Association, whose constitution, by-laws

and operating procedures are similar to those of NJSNA, was in fact a labor organization and that the presence of supervisors therein did not disqualify it as such organization. See also Pacific Far East Line, Inc. , 174 N.L.R.B. No. 172, 70 LRRM 1405 (1969); Buckeye Village Market, Inc. , 175 N.L.R.B. No. 46, 70 LRRM 1529 (1969); Great Lakes Towing Co. , 168 N.L.R.B. No. 87, 67 LRRM 1115 (1967); Graham Transportation Co. , 124 N.L.R.B. No. 131, 44 LRRM 1568 (1959); National Labor Relations Board v. Edward G. Budd Mfg. Co. , 169 F.2d 571 (6 Cir. 1948), cert. den. Foreman's Ass'n of America v. Edward G. Budd Mfg. Co. , 335 U.S. 908, 69 S. Ct. 411, 93 L. Ed. 441 (1949).

The Board in the International Paper Co. case involving the Alabama Nurses' Association stated:

Although Petitioner does have supervisors as members and supervisors serve on the Board of Directors the record indicates substantial participation by the employee members in the affairs of Petitioner, and that no Employer supervisors or employees are presently serving on the Board of Directors. Further, we note that Petitioner stated, in uncontroverted testimony, that should it be certified, goals and negotiations involving the unit herein would be determined and pursued solely by members of the unit.

The court notes that in the case at bar the evidence clearly establishes that "goals and negotiations involving the unit" have been and will be determined solely by members of the unit. As a matter of fact, the uncontradicted testimony, to which the court gives credence, establishes that this has been the situation with respect to the other units in New Jersey that negotiated the contracts referred to above and which negotiations also tend to establish labor organization status. Incidentally, the court notes that NJSNA has been filing as a union pursuant to the requirements of the Labor-Management Reporting and Disclosure Act of 1959 (Landrum-Griffin), 29 U.S.C.A. § 401 et seq. , for more than ten years.

Of course, as defendant points out, there are some states which by legislation have made it unlawful for any executive, administrative or supervisory employee to be a member in, or to be accepted for membership by, any labor organization the constitution and by-laws of which permit membership to employees in capacities other than executive, administrative or professional or supervisory, or which is affiliated with any labor organizations which permit membership to such employees. However, although the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. , is not specifically applicable to the case at bar, it nevertheless is useful in assisting the court in determining whether an organization which has supervisors within its membership can, under New Jersey law, qualify as a labor organization. N.J.S.A. 34:13A-5.3 provides, in pertinent part:

[N]or * * * shall any supervisor having the power to hire, discharge, discipline, or to effectively recommend the same, have the right to be represented in collective negotiations by an employee organization that admits nonsupervisory personnel to membership, and the fact that any organization has such supervisory employees as members shall not deny the right of that organization to represent the appropriate unit in collective negotiations; * * * (Emphasis supplied)

It would appear that our policy, as set forth by the New Jersey Legislature, is not to disqualify an organization from functioning as the collective bargaining representative of nonsupervisory employees because of the fact that there might be supervisors included within its membership. Rather, it would appear that the only prohibition under the New Jersey act is that supervisors not be included within the same unit as ...


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