Bowman v. Hackensack Hospital Ass'n

Citation282 A.2d 48,116 N.J.Super. 260
Parties, 78 L.R.R.M. (BNA) 3103, 66 Lab.Cas. P 52,647 Anne BOWMAN et al., Plaintiffs, v. HACKENSACK HOSPITAL ASSOCIATION, a nonprofit corporation of New Jersey, Defendant.
Decision Date17 September 1971
CourtSuperior Court of New Jersey

Lum, Biunno & Tompkins, Newark, attorneys for plaintiffs (Ronald H. DeMaria, Newark, appearing).

Winne & Banta, Hackensack, attorneys for defendant (Joseph A. Rizzi, Hackensack, appearing).

LORA, J.S.C.

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, 273 A.2d 44 (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 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 non-profit 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, 202 A.2d 874 (Ch.Div.1964), aff'd 45 N.J. 108, 110, 211 A.2d 376 (1965), Independent Dairy Workers, etc. v. Milk Drivers, etc., Local No. 680, 23 N.J. 82, 127 A.2d 869 (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 then 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, 202 A.2d 874; 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 of 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 professonal 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...

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