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Brooklyn, New York, The Complaint Alleges That Respondent, In Violation Of Section 8 Of The Malpractice Insurance
This case was tried in Brooklyn, New York, on April 13, 2004. The Complaint alleges that Respondent, in violation of Section 8 (a) (5) of the Act, changed the malpractice insurance covering unit members without notice to and bargaining with the Union concerning the change and its effects and refused to furnish information about the change to the Union. The Respondent denies that it has engaged in any violations of the Act and it asserts that the Complaint is barred by Section 10(b) of the Act. The initial charge was filed by The New York State Nurses Association on December 31, 2003 and it was served on January 4, 2004. An amended charge was filed on January 16, 2004. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the parties in July 2004, I make the following1 Findings of Fact I. Jurisdiction The Respondent, a domestic corporation, with an office and place of business at 121 DeKalb Avenue, Brooklyn, New York, is engaged in the operation of an acute care hospital.
1 The record is hereby corrected so that at page 19, line 19, the word “bribing” should read “bargaining”; at page 85 line 20, the word “qualm” should read “calm”; at page 91, line 4 the words “General Counsel wanted” should be replaced by “General Counsel 1 is”; at page 99, line 13, the name of the case is Bannon Mills.
Respondent annually derives gross revenues in excess of $250,000 and purchases goods and materials valued in excess of $5,000 directly from suppliers located outside the State of New York. The parties agree, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act and that The New York State Nurses Association is a labor organization within the meaning of Section 2(5) of the Act. II. Alleged Unfair Labor Practices The New York State Nurses Association and Respondent are parties to a collective- bargaining agreement with a term of July 1, 2002 to June 30, 2005. The unit defined in the collective bargaining agreement is Each full-time and part-time employee licensed or otherwise lawfully entitled to practice as a registered professional nurse employed by the Employer at its facilities to perform registered professional nursing as a staff nurse, senior staff nurse, assistant patient care coordinator, clinician and clinical nurse specialist, excluding patient care coordinators, assistant supervisors, supervisors, associate patient care coordinators, instructors, IV team supervisors, quality assurance research analysts, assistant and associate directors of nursing, senior vice president of nursing, ambulatory care administrator and supervisors as defined in the Act. The collective-bargaining agreement contains the following management rights clause: Except as in this agreement otherwise provided, Employer retains the sole and exclusive right to promulgate rules and regulations; direct, designate, schedule and assign duties to the work force; plan, direct and control the entire operation of the Hospital; discontinue, consolidate or reorganize any department or branch; transfer any or all operations to any other location or discontinue the same in whole or in part; merge with any other institution; make technological improvements; install or remove equipment regardless of whether or not any such action causes a reduction of any kind in the number of employees, or transfers in the work force, requires the assignment of additional or different duties or causes the elimination or addition of nursing titles or jobs; and carry out the ordinary and customary functions of management whether or not possessed or exercised by the Hospital prior to the execution of this agreement, except as limited herein.
All the rights, powers, discretion, authority and prerogatives possessed by Employer prior to the execution of this agreement, whether exercised or not, are retained by and are to remain exclusively with the Employer, except as limited herein. A. Background The New York State Nurses Association, (NYSNA), has represented the unit at Brooklyn Hospital for 15 years. The unit consists of about 600 employees of which the majority are registered nurses and the rest are nurse practitioners and nurse anesthetists. Respondent’s view of this case is that it actually results from collective bargaining between the Committee of Interns and Residents (CIR) and Brooklyn Hospital. At the hearing, I ruled that I would permit litigation of the question when NYSNA first learned of the change in medical malpractice insurance affecting its unit members, but I would not permit litigation of the facts relating to Respondent’s negotiations with CIR on behalf of residents employed at Brooklyn Hospital. Respondent made an offer of proof on the record which dealt with negotiations between Respondent and CIR beginning in 2001, the facts surrounding the filing of two charges by CIR and the withdrawal of the CIR cases. The offer of proof also included Respondent’s belief that NYSNA was not interested in the issue of malpractice insurance and had no legitimate purpose in filing its charge on behalf of the nurses. As will be seen below, NYSNA’s witness testified with respect to the issue of NYSNA’s interest in malpractice insurance for nurses generally and the motivation for requesting information about Respondent’s maintenance of such insurance for its unit members. Counsel for Respondent cross-examined NYSNA’s witness concerning his discussions with agents of CIR about the CIR charges, his interest in malpractice insurance for nurses, his motivation in asking Respondent for information about such insurance and many other related topics.
According to Respondent, an impasse in the bargaining with CIR resulted when CIR adhered to its position that the residents should be covered by the CIR health insurance program and the Hospital adhered to its position that residents should remain in the Hospital health program. Counsel for Respondent stated that CIR filed various charges against Respondent to further its tactical position relating to medical coverage for residents. On February 25, 2003, CIR filed unfair labor practice charges in case 29-CA-25448 relating to a request for information about medical malpractice insurance coverage maintained by the Hospital for the residents and relating to unilateral changes in medical and disability benefits for CIR unit members. That case was apparently settled. On July 8, 2003 CIR filed a charge in Case 29-CA-25707-1 concerning a unilateral change in malpractice insurance policies for CIR unit members. Counsel for Respondent explained that for a number of years Brooklyn Hospital had participated in a consortium of hospitals called CCC which was established to purchase commercial malpractice insurance. According to Counsel for Respondent, the Hospital believed that fraud had been committed in running the CCC program and served notice on CCC that it would bring suit. As a result, CCC canceled the Hospital’s malpractice insurance. In May 2003 the Hospital set up a self-funded malpractice insurance program. I note that Respondent presented a witness on the dealings between CCC and Brooklyn Hospital.
The testimony of this witness is set forth below. According to Counsel for Respondent, CIR eventually withdrew its charges for institutional reasons. Respondent urges that The New York State Nurses Association is acting as the agent for CIR and that the NYSNA charge in the instant case is time barred because the CIR knowledge of the malpractice insurance change should be imputed to NYSNA. Counsel for Respondent argued on the record that the evidence would show that the Nurses Association has “no interest in medical malpractice, this is not their issue.”
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