[ v07 p434 ]
07:0434(66)RO
The decision of the Authority follows:
7 FLRA No. 66
LONG BEACH VETERANS ADMINISTRATION
MEDICAL CENTER, LONG BEACH, CALIFORNIA
Activity
and
PHYSICIANS NATIONAL HOUSESTAFF ASSOCIATION
Labor Organization/Petitioner
Case No. 8-RO-2
DECISION AND DIRECTION OF ELECTION
UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B)(1)(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING
OFFICER OF THE AUTHORITY. THE HEARING OFFICER'S RULINGS MADE AT THE
HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE POST-HEARING
BRIEFS FILED BY THE PARTIES AND THE AMICI CURIAE, /1/ THE AUTHORITY
FINDS:
THE PETITIONER, PHYSICIANS NATIONAL HOUSESTAFF ASSOCIATION, SEEKS AN
ELECTION IN A UNIT OF ALL MEDICAL INTERNS, RESIDENTS, AND FELLOWS WHO
ARE PHYSICALLY ASSIGNED TO THE LONG BEACH VETERANS ADMINISTRATION
MEDICAL CENTER (ACTIVITY), EXCLUDING ALL OTHER PROFESSIONAL EMPLOYEES IN
ADDITION TO THE STATUTORY EXCLUSIONS. THE ACTIVITY, JOINED BY THE AMICI
CURIAE, CONTENDS THAT THE PETITION SHOULD BE DISMISSED, IN ESSENCE,
BECAUSE: (1) THE MEDICAL INTERNS, RESIDENTS, AND FELLOWS ARE GRADUATE
MEDICAL STUDENTS USING THE ACTIVITY AS A CLINICAL CLASSROOM, RATHER THAN
"EMPLOYEES" OF THE ACTIVITY WITHIN THE MEANING OF SECTION 7103(A)(2) OF
THE STATUTE; AND (2) THE PETITIONED-FOR UNIT IS NOT APPROPRIATE FOR
EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 7112(A)(1) AND (B)
OF THE STATUTE. /2/
THE ACTIVITY IS A LARGE MEDICAL CENTER WITHIN THE DEPARTMENT OF
MEDICINE AND SURGERY, WHICH IS A MAJOR SUBDIVISION WITHIN THE VETERANS
ADMINISTRATION (AGENCY). /3/ THE ACTIVITY IS UNDER THE OVERALL
SUPERVISION OF A MEDICAL CENTER DIRECTOR, AND IS ORGANIZED INTO FOUR
MAJOR SERVICES: PROFESSIONAL, ADMINISTRATIVE, EDUCATIONAL, AND
RESEARCH. THE CHIEF OF STAFF OF THE ACTIVITY ACTS FOR THE MEDICAL
CENTER DIRECTOR IN THE DIRECTION AND COORDINATION OF THE PROFESSIONAL
SERVICES, WHEREIN THE MEDICAL INTERNS, RESIDENTS, AND FELLOWS ARE
ASSIGNED. THE PROFESSIONAL SERVICES ARE EACH HEADED BY A CHIEF OF
SERVICE AND INCLUDE, FOR EXAMPLE, ANESTHESIOLOGY, MEDICAL, PSYCHIATRY,
RADIOLOGY, SURGERY.
THE PETITIONED-FOR UNIT CONSISTS OF APPROXIMATELY 200 MEDICAL
INTERNS, RESIDENTS, AND FELLOWS. /4/ THESE INDIVIDUALS ARE PHYSICIANS
WHO HAVE COMPLETED THE FOUR-YEAR COURSE OF STUDY AT A MEDICAL SCHOOL
("UNDERGRADUATE MEDICAL EDUCATION"), HAVE BEEN AWARDED THE DOCTOR OF
MEDICINE DEGREE, AND HAVE CHOSEN TO PURSUE GRADUATE MEDICAL TRAINING IN
VARIOUS SPECIALTY FIELDS. ALMOST ALL PHYSICIANS RECEIVING THE DOCTOR OF
MEDICINE DEGREE ENGAGE THEMSELVES IN GRADUATE MEDICAL TRAINING PROGRAMS
IN TEACHING HOSPITALS (SUCH AS THE ACTIVITY) THAT ARE ASSOCIATED WITH A
MEDICAL SCHOOL, AND DO SO BECAUSE OF TWO MAJOR CONSIDERATIONS: FIRST,
CERTAIN STATES REQUIRE ONE YEAR OF GRADUATE TRAINING IN ORDER TO FULFILL
LICENSE REQUIREMENTS FOR THE PRACTICE OF MEDICINE. SECOND, BY PURSUING
A THREE TO SEVEN YEAR PROGRAM OF GRADUATE TRAINING, A PHYSICIAN CAN BE
ELIGIBLE FOR CERTIFICATION FROM AMONG 23 DIFFERENT SPECIALTY BOARDS OF
MEDICINE, FOR EXAMPLE, SURGERY, INTERNAL MEDICINE, PATHOLOGY. ALTHOUGH
BECOMING "BOARD ELIGIBLE" OR "BOARD CERTIFIED" IS NOT A LEGAL
REQUIREMENT OR QUALIFICATION FOR A PHYSICIAN, SUCH STATUS CONFERS
BENEFITS SUCH AS HOSPITAL PRIVILEGES AND PROFESSIONAL STANDING.
THE AGENCY'S TRAINING RESPONSIBILITY IN THE HEALTH CARE FIELD IS
MANDATED BY 38 U.S.C. 4101(A) AND (B)(1976), WHICH STATES THAT WHILE THE
PRIMARY FUNCTION OF THE AGENCY'S DEPARTMENT OF MEDICINE AND SURGERY IS
TO PROVIDE MEDICAL CARE AND TREATMENT TO VETERANS, A PROGRAM OF
EDUCATION AND TRAINING OF HEALTH MANPOWER IS TO BE CARRIED OUT TO THE
EXTENT FEASIBLE WITHOUT INTERFERING WITH THE PRIMARY FUNCTION. AS OF
THE END OF THE FISCAL YEAR ENDING SEPTEMBER 30, 1979 (FY 1979), SOME
23,393 HOUSE STAFF ROTATED THROUGH APPROXIMATELY 7,400 FULL-TIME HOUSE
STAFF POSITIONS SUPPORTED BY THE AGENCY. THE ACTIVITY IS ONE OF 140 OF
THE AGENCY'S 172 MEDICAL CENTERS WHICH OFFER GRADUATE MEDICAL TRAINING
PROGRAMS IN AFFILIATION OR INTEGRATION WITH 104 ACCREDITED MEDICAL
SCHOOLS.
GRADUATE MEDICAL TRAINING PROGRAMS, OR "RESIDENCY PROGRAMS," MAY BE
CATEGORIZED AS: (1) INDEPENDENT (INTRAMURAL)-- A PROGRAM CONDUCTED
WITHIN A SINGLE INSTITUTION (THE ASSIGNMENT OF RESIDENTS IS LIMITED TO
THAT INSTITUTION); (2) AFFILIATED-- WHEN TWO OR MORE INSTITUTIONS
DEVELOP FORMAL AGREEMENTS AND CONJOINT RESPONSIBILITIES TO PROVIDE
COMPLEMENTARY FACILITIES, TEACHING STAFF, AND TEACHING SESSIONS (THE
ASSIGNMENT OF RESIDENTS IS ROTATED THROUGH TWO OR MORE PARTICIPATING
INSTITUTIONS); AND (3) INTEGRATED-- WHEN A SINGLE PROGRAM DIRECTOR
ASSUMES THE RESPONSIBILITY FOR A RESIDENCY PROGRAM INVOLVING MORE THAN
ONE INSTITUTION, AND IS RESPONSIBLE FOR ALL APPOINTMENTS OF THE
RESIDENTS AND OF THE TEACHING STAFF.
THE ACTIVITY OFFERS RESIDENCY PROGRAMS WHICH, WITH ONE EXCEPTION, ARE
EITHER INTEGRATED OR AFFILIATED WITH THE UNIVERSITY OF CALIFORNIA,
COLLEGE OF MEDICINE AT IRVINE, CALIFORNIA (UCI), A CHARTERED CORPORATION
WITHIN THE STATE OF CALIFORNIA. THE RECORD DISCLOSES THAT UCI SPONSORS
39 ACCREDITED RESIDENCY PROGRAMS, OF WHICH APPROXIMATELY 29 ARE
OPERATIVE AT THE ACTIVITY. A MAJORITY OF THESE PROGRAMS ARE INTEGRATED
PROGRAMS.
THE ACTIVITY AND UCI ARE PARTIES TO AN "AFFILIATION AGREEMENT," THE
TERMS OF WHICH PROVIDE THAT UCI, THROUGH THE ACTIVITY'S DIRECTOR AND THE
STAFF OF "CONSULTING AND ATTENDING SPECIALISTS" (PHYSICIANS HIRED BY THE
AGENCY ON A FEE BASIS WHO HOLD FACULTY APPOINTMENTS AT UCI), WILL
SUPERVISE THE TRAINING AND RESEARCH PROGRAMS OF THE ACTIVITY, AND SUCH
PROGRAMS AS ARE OPERATED JOINTLY. ALSO UNDER THE TERMS OF THE
AGREEMENT, THE ACTIVITY RETAINS FULL RESPONSIBILITY FOR ITS OWN
OPERATION AND ADMINISTRATION, WHICH MEANS FULL RESPONSIBILITY FOR THE
CARE OF PATIENTS, INCLUDING ALL ADMINISTRATIVE AND PROFESSIONAL
FUNCTIONS. THE RECORD DISCLOSES THAT THE CHIEFS OF EACH OF THE
ACTIVITY'S PROFESSIONAL SERVICES THAT ARE INVOLVED IN HOUSE STAFF
PROGRAMS CONDUCT THE DAY-TO-DAY OPERATIONS OF SUCH PROGRAMS.
THE AFFILIATION AGREEMENT ALSO PROVIDES FOR THE ESTABLISHMENT OF A
"DEANS COMMITTEE" UNDER THE STATUTORY AUTHORITY SET FORTH IN 38 U.S.C.
4112(B)(1976). THIS COMMITTEE INCLUDES THE DEAN OF UCI AS CHAIRMAN,
CERTAIN OF UCI'S DEPARTMENT CHAIRMEN, AND THE DIRECTOR AND THE CHIEF OF
STAFF OF THE ACTIVITY. AT THE CHAIRMAN'S DISCRETION, OTHER EMPLOYEES OF
THE AGENCY, INCLUDING REPRESENTATIVES OF "VA HOUSE STAFF," MAY FROM TIME
TO TIME PARTICIPATE IN DEANS COMMITTEE MEETINGS. THE COMMITTEE, IN
COOPERATION WITH AGENCY PERSONNEL, ESTABLISHES GRADUATE MEDICAL TRAINING
PROGRAMS, AND DETERMINES THEIR SCOPE, ORGANIZATION, STANDARDS OF
PERFORMANCE AND ADEQUACY OF FACILITIES. UNDER THE AFFILIATION
AGREEMENT, HOUSE STAFF CANDIDATES ARE NOMINATED BY THE DEANS COMMITTEE
AND APPROVED BY THE ACTIVITY. THE ACTIVITY APPOINTS HOUSE STAFF UNDER
THE AUTHORITY OF 38 U.S.C. 4114(B)(1)(1976), WHICH PROVIDES:
THE ADMINISTRATOR (OF VETERANS AFFAIRS) SHALL HAVE AUTHORITY TO
ESTABLISH RESIDENCIES AND
INTERNSHIPS; TO APPOINT QUALIFIED PERSONS TO SUCH POSITIONS WITHOUT
REGARD TO CIVIL-SERVICE OR
CLASSIFICATION LAWS, RULES, OR REGULATIONS; AND TO PRESCRIBE THE
CONDITIONS OF SUCH
EMPLOYMENT, INCLUDING NECESSARY TRAINING, AND THE CUSTOMARY AMOUNT
AND TERMS OF PAY (WHICH MAY
BE ESTABLISHED RETROACTIVELY BASED ON CHANGES IN SUCH CUSTOMARY
AMOUNT AND TERMS) DURING THE
PERIOD OF SUCH EMPLOYMENT AND TRAINING.
A RESIDENCY REVIEW BOARD (REFERRED TO AS A HOUSE STAFF REVIEW
COMMITTEE IN PUBLISHED AGENCY GUIDELINES) AT THE ACTIVITY PROVIDES A
MECHANISM THROUGH WHICH THE ACTIVITY, IN CONJUNCTION WITH THE DEANS
COMMITTEE, EVALUATES, REVIEWS, AND MAKES RECOMMENDATIONS TO THE ACTIVITY
DIRECTOR FOR ACTION WITH RESPECT TO THE APPOINTMENT AND ESTABLISHMENT OF
GRADE, PROFESSIONAL PERFORMANCE, EDUCATIONAL ACHIEVEMENT, DISCIPLINE,
CONTINUATION, ADVANCEMENT, AND TERMINATION OF HOUSE STAFF.
RECOMMENDATIONS BY THE BOARD CONCERNING WHETHER A RESIDENT'S
PERFORMANCE
WAS SATISFACTORY AND WHETHER HE OR SHE SHOULD CONTINUE IN THE RESIDENCY
PROGRAM ARE BASED, IN PART, ON WRITTEN PERFORMANCE EVALUATIONS OF EACH
RESIDENT BY ALL SUPERVISORS OF THE RESIDENT DURING EACH SIX-MONTH
PERIOD, OR AT THE END OF EACH ROTATION, WHICHEVER COMES FIRST. THE
AGENCY'S PUBLISHED GUIDELINES PROVIDE THAT THE ACTIVITY'S RESIDENCY
REVIEW BOARD BE COMPOSED OF FIVE VOTING MEMBERS, INCLUDING TWO SENIOR
MEMBERS OF THE ACTIVITY'S HOUSE STAFF, AND THREE OF THE FOLLOWING
PHYSICIANS: THE ACTIVITY'S ASSOCIATE CHIEF OF STAFF FOR EDUCATION, ONE
MEMBER OF THE DEANS COMMITTEE, AND ONE OR MORE OF THE ACTIVITY'S CHIEFS
OF SERVICE.
IN CONTRAST TO MEDICAL STUDENTS WHO PAY A TUITION TO UCI AND MAY BE
ASSIGNED AS CLINICAL CLERKS TO THE ACTIVITY ONLY ON A WOC (WITHOUT
COMPENSATION) BASIS IN ORDER TO FURTHER THEIR UNDERGRADUATE MEDICAL
STUDIES, HOUSE STAFF RECEIVE A "STIPEND." HOUSE STAFF ASSIGNED TO THE
ACTIVITY RECEIVE STIPENDS FROM EITHER THE AGENCY OR NON-AGENCY SOURCES.
AGENCY STIPEND RATES FOR HOUSE STAFF VARY THROUGHOUT THE COUNTRY
DEPENDING ON THE HOUSE STAFF "RECRUITMENT AREA." THE AGENCY'S STIPEND
RATES FOR THE ACTIVITY RELATE TO THE STIPEND RATES PREVAILING AT LOCAL
HOSPITALS WHICH HAVE AN IMPACT ON THE ACTIVITY'S RECRUITMENT CAPABILITY.
THE AGENCY ALLOCATES THE BUDGETING SUPPORT FOR HOUSE STAFF STIPENDS ON
A YEARLY BASIS ACCORDING TO ITS OWN AGENDA OF PRIORITIES. THE AGENCY
WEIGHS A NUMBER OF CONSIDERATIONS IN DECIDING WHICH OF ITS MEDICAL
CENTERS AND WHICH SPECIALTIES OF MEDICINE ARE GOING TO RECEIVE HOW MANY
STIPEND HOUSE STAFF SLOTS. /5/
AFTER THE AGENCY PROVIDES THE ACTIVITY WITH AN ALLOCATION OF STIPEND
SLOTS FOR EACH RESIDENCY PROGRAM, EACH PROFESSIONAL SERVICE OF THE
ACTIVITY, IN CONJUNCTION WITH ITS COUNTERPART AT UCI, FILLS THE SLOTS
AND DEVELOPS A ROTATION SCHEDULE FOR THE YEAR. /6/ ROTATIONS THROUGH
THE ACTIVITY VARY IN LENGTH DEPENDING ON THE PARTICULAR INTEGRATED OR
AFFILIATED RESIDENCY PROGRAM. AS AN EXAMPLE, FOR INTEGRATED PROGRAMS
DURING A RECENT 12-MONTH PERIOD, THE AVERAGE LENGTH OF STAY AT THE
ACTIVITY RANGED FROM 4 MONTHS FOR HOUSE STAFF ROTATING THROUGH THE
ACTIVITY'S ANESTHESIOLOGY SERVICE AND REHABILITATION MEDICINE SERVICE,
TO 11 MONTHS FOR THE DERMATOLOGY RESIDENCY. BY COMPARISON, A FIRST-YEAR
HOUSE STAFF OFFICER IN THE ACTIVITY-BASED AFFILIATED INTERNAL MEDICINE
RESIDENCY PROGRAM WILL SPEND A MINIMUM OF 10 MONTHS IN THE MEDICAL
SERVICE OF THE ACTIVITY. A MAJORITY OF THE MORE THAN 200 HOUSE STAFF AT
THE ACTIVITY ARE IN THE INTERNAL MEDICINE RESIDENCY PROGRAM AND RELATED
SUBSPECIALTIES.
WHILE AT THE ACTIVITY, HOUSE STAFF RECEIVE A COMBINATION OF FORMAL
AND CLINICAL TRAINING. FORMAL TRAINING INCLUDES LECTURES, LABORATORY
WORK, TEACHING ROUNDS, AND CONFERENCES. MOST OF THE HOUSE STAFF'S TIME
IS SPENT IN CLINICAL TRAINING, WHICH INCLUDES DIRECT PATIENT
COMMUNICATION, OBSERVATION, AND EVALUATION, AS WELL AS ADMINISTRATION OF
PATIENT CARE UNDER THE OVERALL SUPERVISION OF "ATTENDING PHYSICIANS."
/7/ A PATIENT CARE TEAM MAY INCLUDE MEDICAL STUDENTS FROM UCI FROM TIME
TO TIME, BUT IT WILL NORMALLY INCLUDE FIRST-YEAR RESIDENTS, MORE SENIOR
RESIDENTS, FELLOWS, AND THE ATTENDING PHYSICIAN. THE MORE EXPERIENCED
MEMBERS OF THE TEAM PROVIDE GUIDANCE AND INSTRUCTION TO THE MORE JUNIOR
MEMBERS UNDER THE OVERALL GUIDANCE OF THE ATTENDING PHYSICIAN.
THE RECORD REVEALS THAT IN ALL THE ACTIVITY'S PROFESSIONAL SERVICES,
MOST OF THE HOUSE STAFF'S TIME IS SPENT IN DIRECT PATIENT CARE
ACTIVITIES. FOR EXAMPLE, THE FIRST-YEAR RESIDENT IN THE ACTIVITY'S
MEDICAL SERVICE FUNCTIONS AS THE PATIENT'S PRIMARY PHYSICIAN,
RESPONSIBLE FOR THE PATIENT'S WORK-UP AND DAILY CARE. FIRST-YEAR
RESIDENTS IN THE MEDICAL SERVICE ARE RESPONSIBLE FOR TAKING PATIENT
HISTORIES; PERFORMING PHYSICAL EXAMINATIONS; ORDERING TESTS,
MEDICATIONS, AND DIETS; MAKING INITIAL DIAGNOSES; ORGANIZING A PLAN OF
TREATMENT; AND TAKING DAILY CARE OF ASSIGNED PATIENTS. SENIOR
RESIDENTS AND FELLOWS ARE ORIENTED TO PROVIDING ADVICE, SUPPORT, AND
DIRECTION TO MORE JUNIOR HOUSE STAFF RATHER THAN PROVIDING DIRECT
PATIENT CARE.
HOUSE STAFF WORK AT THE ACTIVITY SEVEN DAYS PER WEEK, AND WORK LONG,
SOMETIMES IRREGULAR HOURS, FREQUENTLY AT NIGHT AND ON WEEKENDS. /8/
ATTENDING PHYSICIANS ARE ON DUTY ONLY BETWEEN 8:00 A.M. AND 4:30 P.M.,
MONDAY THROUGH FRIDAY. ALTHOUGH ATTENDING PHYSICIANS ARE SUBJECT TO
CALLS FOR ASSISTANCE OR ADVICE FROM HOUSE STAFF ON DUTY, GENERALLY
SENIOR RESIDENTS OR FELLOWS ARE CALLED FIRST. WHEN THE ATTENDING
PHYSICIANS ARE NOT ON DUTY, HOUSE STAFF EXERCISE INDEPENDENT JUDGMENT IN
DIAGNOSING PATIENTS, DETERMINING TREATMENT, AS WELL AS INITIATING AND
MONITORING TREATMENT. HOUSE STAFF MAY PRESCRIBE MEDICATION FOR PATIENTS
AND WRITE ORDERS ON PATIENTS WHICH NURSES AND OTHER STAFF ARE REQUIRED
TO FOLLOW. HOUSE STAFF ALSO PERFORM THESE FUNCTIONS WHEN ATTENDING
PHYSICIANS ARE ON DUTY; THE DIFFERENCE IS THE IMMEDIACY OF SUPERVISION.
EXAMPLES OF INDEPENDENT JUDGMENT INCLUDE DETERMINATIONS BY PSYCHIATRY
RESIDENTS WHETHER TO DISCHARGE OR ADMIT PATIENTS-- INCLUDING INVOLUNTARY
ADMISSIONS-- WHEN PERFORMING THE "ON DUTY" (OD) PSYCHIATRIST FUNCTION
(WHEN THE HOUSE STAFF OFFICER IS THE ONLY PSYCHIATRIST AT THE ACTIVITY).
FURTHER, WHILE ALL SURGICAL OPERATIONS ARE UNDER THE GENERAL
SUPERVISION OF ATTENDING PHYSICIANS, THE RECORD INDICATES THAT AT ANY
TIME, A NUMBER OF THE SURGICAL OPERATIONS AT THE ACTIVITY ARE PERFORMED
BY HOUSE STAFF WITH THE PHYSICAL PRESENCE OF ATTENDING PHYSICIANS.
BY CONTRAST, THE INVOLVEMENT OF UNDERGRADUATE MEDICAL STUDENTS IN THE
CLINICAL CARE OF PATIENTS IS STRICTLY AN ACADEMIC EXERCISE PURSUANT TO
EARNING THE DOCTOR OF MEDICINE DEGREE. WHILE PUBLISHED AGENCY POLICY
DESCRIBES HOUSE STAFF AS PHYSICIANS SERVING ON THE PROFESSIONAL STAFF OF
AGENCY FACILITIES IN THE CAPACITY OF RESIDENTS, MEDICAL STUDENTS AS
CLINICAL CLERKS ARE SPECIFICALLY PRECLUDED FROM ASSUMING ANY
RESPONSIBILITY OR AUTHORITY FOR PROVIDING INDEPENDENT PATIENT CARE.
MOREOVER, REFERRING SPECIFICALLY TO ITS HOUSE STAFF PROGRAM, PUBLISHED
AGENCY POLICY STATES THAT THE MEANS FOR ATTAINING TRAINING OBJECTIVES
ARE ESSENTIALLY THE SAME AS THOSE FOR ACCOMPLISHING THE PRIMARY MISSION,
PATIENT CARE AND TREATMENT. TO THIS END, THE AGENCY HAS REQUIRED THAT
THE BASIC CONDUCT OF ITS HOUSE STAFF PROGRAMS CONFORM TO THE "ESSENTIALS
OF ACCREDITED RESIDENCIES" (ESSENTIALS) APPROVED BY THE LIAISON
COMMITTEE ON GRADUATE MEDICAL EDUCATION (LCGME). THE ESSENTIALS REQUIRE
THAT HOUSE STAFF BE INTEGRATED INTO THE MEDICAL STAFF AS TRUE COLLEAGUES
IN ORDER TO PARTICIPATE IN COMMUNICATIONS WHICH CONTRIBUTE ULTIMATELY TO
POLICY-MAKING DECISIONS. /9/
THE RECORD DISCLOSES THAT HOUSE STAFF PAID BY THE ACTIVITY RECEIVE
THEIR STIPEND PAYMENTS EACH REGULAR BIWEEKLY PAY PERIOD, AND THAT THEIR
PAY IS SUBJECT TO FEDERAL AND STATE INCOME TAX, AND SOCIAL SECURITY
DEDUCTIONS. THE PERIOD OF SERVICE OF HOUSE STAFF AT THE ACTIVITY IS
CREDITABLE SERVICE FOR CIVIL SERVICE RETIREMENT. THEY ACCRUE ANNUAL AND
SICK LEAVE. UNUSED SICK LEAVE AT THE TIME OF TERMINATION MAY BE
RECREDITED UPON RETURN TO FEDERAL EMPLOYMENT WITHIN THREE YEARS. IN
CONTRAST TO HOUSE STAFF WHO MAY BE ROTATED TO THE ACTIVITY AND YET
CONTINUE TO BE PAID BY, AND EARN FRINGE BENEFITS AT, THEIR "HOME"
HOSPITAL, HOUSE STAFF ASSIGNED TO THE ACTIVITY AND PAID BY THE AGENCY
HAVE WORKER'S COMPENSATION TYPE BENEFITS FOR INJURY OR ILLNESS ON THE
JOB, INCLUDING MEDICAL CARE AND HOSPITALIZATION, COMPENSATION FOR LOSS
OF PAY, AND DEATH BENEFITS TO SURVIVORS. IN ADDITION, AGENCY STIPEND
HOUSE STAFF AT THE ACTIVITY ARE ELIGIBLE TO CHOOSE AMONG SEVERAL FEDERAL
EMPLOYEES' HEALTH BENEFITS PLANS, AS WELL AS TO TAKE FEDERAL EMPLOYEE
GROUP LIFE INSURANCE.
THE RECORD ALSO DISCLOSES THAT THE FEDERAL TORT CLAIMS ACT APPLIES TO
AGENCY HOUSE STAFF; THAT IS, THE FEDERAL GOVERNMENT IS RESPONSIBLE FOR
THE NEGLIGENCE AND MALPRACTICE OF HOUSE STAFF ACTING WITHIN THE SCOPE OF
THEIR EMPLOYMENT. IN ADDITION, ALL AGENCY MEDICAL CENTERS ARE CAUTIONED
TO ADVISE HOUSE STAFF AND NON-FEDERAL INSTITUTIONS TO WHICH THEY MAY BE
ASSIGNED THAT THE FEDERAL GOVERNMENT WILL NOT BE RESPONSIBLE FOR ANY
CLAIMS AGAINST THEM ARISING OUT OF THEIR ACTIVITIES AT THE NON-FEDERAL
INSTITUTION.
DISCUSSION AND CONCLUSIONS
JURISDICTION
THE FIRST ISSUE BEFORE THE AUTHORITY IS WHETHER HOUSE STAFF ARE
EMPLOYEES WITHIN THE MEANING OF SECTION 7103(A)(2) OF THE STATUTE.
SECTION 7103(A)(2)(A) OF THE STATUE PROVIDES, IN PERTINENT PART, THAT AN
"'EMPLOYEE' MEANS AN INDIVIDUAL . . . EMPLOYED IN AN AGENCY." THE
AUTHORITY FINDS THAT THE HOUSE STAFF WHO ARE ASSIGNED TO THE ACTIVITY
AND WHO ARE PAID STIPENDS BY THE AGENCY ARE EMPLOYEES OF THE ACTIVITY
WITHIN THE MEANING OF THE STATUTE. THE EVIDENCE ESTABLISHES THAT AN
EMPLOYER-EMPLOYEE RELATIONSHIP EXISTS BETWEEN THE ACTIVITY AND THE HOUSE
STAFF WHO ARE ASSIGNED TO THE ACTIVITY AND WHO ARE PAID STIPENDS BY THE
AGENCY. IN THIS REGARD, THE ACTIVITY RETAINS FINAL AUTHORITY TO APPOINT
THE HOUSE STAFF FOUND TO BE EMPLOYEES. THE AGENCY COMPENSATES THESE
EMPLOYEES WITH SALARY AND FRINGE BENEFITS OF THE SORT PAID TO OTHER
FEDERAL EMPLOYEES FOR THE DIRECT PATIENT CARE SERVICES WHICH EMPLOY MOST
OF THEIR TIME AND CONSTITUTE THE NORMAL AND PRIMARY FUNCTION OF THE
ACTIVITY. THE PATIENT CARE SERVICE PROVIDED BY THESE EMPLOYEES IS
CONTROLLED BY THE ACTIVITY'S PROFESSIONAL SERVICES ON A DAY-TO-DAY
BASIS. /10/ FINALLY, THE ACTIVITY RETAINS FINAL AUTHORITY TO EVALUATE
PROFESSIONAL PERFORMANCE AND EDUCATIONAL ACHIEVEMENT, AND TO DISCIPLINE,
ADVANCE, AND RETAIN THESE EMPLOYEES.
HOWEVER, THE AUTHORITY FINDS THAT THE HOUSE STAFF WHO ARE ASSIGNED TO
THE ACTIVITY AND WHO ARE PAID STIPENDS FROM NON-AGENCY SOURCES ARE NOT
EMPLOYEES OF THE ACTIVITY WITHIN THE MEANING OF THE STATUTE. ALONG WITH
THE FACT THAT THIS GROUP OF HOUSE STAFF IS NOT PAID BY THE AGENCY, /11/
THE AUTHORITY FINDS SIGNIFICANT THE FACT THAT THIS GROUP OF HOUSE STAFF
IS NOT ELIGIBLE TO SHARE IN THE VARIOUS EMPLOYEE BENEFITS AND
PROTECTIONS PROVIDED BY THE AGENCY TO THE HOUSE STAFF THAT IT PAYS.
IN LIGHT OF THESE FINDINGS, THE AUTHORITY IS MINDFUL OF THE
LEGISLATIVE HISTORY OF THE STATUTE PERTAINING TO SECTION 7103(A)(4).
/12/ IN DISCUSSING THE DEFINITION OF "LABOR ORGANIZATION" CONTAINED IN
H.R. 11280, WHICH APPEARS UNCHANGED IN SECTION 7103(A)(4) OF THE
STATUTE, THE HOUSE COMMITTEE ON POST OFFICE AND CIVIL SERVICE NOTED
THAT: /13/
SUBSECTION (A)(4) OF SECTION 7103 DEFINES "LABOR ORGANIZATION" AS AN
ORGANIZATION COMPOSED
IN WHOLE OR IN PART OF EMPLOYEES, IN WHICH EMPLOYEES PARTICIPATE AND
PAY DUES, AND WHICH HAS
AS A PURPOSE THE DEALING WITH AN AGENCY CONCERNING GRIEVANCES AND
CONDITIONS OF
EMPLOYMENT. THE COMMITTEE INTENDS THAT THE LATTER CRITERION BE
DEEMED AS MET BY AN
ORGANIZATION WHICH HAS ONE . . . OF ITS BASIC PURPOSES, THOUGH NOT
ITS ONLY PURPOSE OR ITS
PRIMARY PURPOSE, THE REPRESENTATION OF EMPLOYEES IN A COLLECTIVE
BARGAINING RELATIONSHIP. THE
TERM "LABOR ORGANIZATION" IS THUS INTENDED TO ENCOMPASS PROFESSIONAL
ASSOCIATIONS (SUCH AS THE
AMERICAN NURSES ASSOCIATION, THE NATIONAL EDUCATION ASSOCIATION, THE
NATIONAL ASSOCIATION OF
SOCIAL WORKERS, THE PHYSICIANS NATIONAL HOUSESTAFF ASSOCIATION, AND
THE NATIONAL ECONOMIC
COUNCIL OF SCIENTISTS) WHICH SEEK TO AVAIL THEMSELVES OF
REPRESENTATIONAL RIGHTS UNDER CHAPTER
71.
THERE IS NO FURTHER RELEVANT LEGISLATIVE HISTORY ON THIS MATTER.
CLEARLY THEN, IF CONGRESS INTENDED THAT THE PETITIONER HEREIN, WHO
REPRESENTS ONLY HOUSE STAFF, BE A LABOR ORGANIZATION WITHIN THE MEANING
OF SECTION 7103(A)(4) OF THE STATUTE, IT WOULD BE INCONSISTENT TO
CONCLUDE THAT CONGRESS INTENDED THOSE INDIVIDUALS REPRESENTED BY THE
PETITIONER NOT TO BE EMPLOYEES WITHIN THE MEANING OF THE STATUTE.
THE AUTHORITY NOTES THAT THE STATUS OF HOUSE STAFF AS GRADUATE
MEDICAL STUDENTS OR TRAINEES IS UNCONTROVERTED; THEIR PURPOSE IN
ENTERING INTO THE AGENCY'S HOUSE STAFF PROGRAM AT THE ACTIVITY IS EITHER
TO FULFILL STATE LICENSE REQUIREMENTS OR TO BECOME ELIGIBLE FOR
CERTIFICATION IN A SPECIALTY OF MEDICINE, OR BOTH. HOWEVER, AN
EMPLOYER-EMPLOYEE RELATIONSHIP EXISTS IN THESE CIRCUMSTANCES,
NOTWITHSTANDING THE FACT THAT THE PURPOSE OF THE EMPLOYMENT MAY BE
EDUCATIONAL. IN THIS REGARD, AN APPRENTICE IS NO LESS AN EMPLOYEE IN
RELATION TO AN EMPLOYER SIMPLY BECAUSE THE PRIMARY PURPOSE OF HIS
EMPLOYMENT IS TO LEARN A CRAFT, TRADE, OR PROFESSION FROM THE EMPLOYER
WITHIN A SPECIFIED TIME. IF AN EMPLOYEE IS AN APPRENTICE, SUCH STATUS
MAY AFFECT HOW, AND HOW MUCH, HE OR SHE IS COMPENSATED, BUT IT DOES NOT
ALTER THE FACT THAT HE OR SHE IS BEING COMPENSATED FOR SERVICES RENDERED
TO THE EMPLOYER.
IN THE INSTANT CASE, THE AUTHORITY NOTES PARTICULARLY THAT THE AGENCY
HAS DECLARED WITH RESPECT TO ITS HOUSE STAFF PROGRAM THAT THE METHODS
FOR ACCOMPLISHING EDUCATIONAL OBJECTIVES ARE ESSENTIALLY THE SAME AS
THOSE FOR ACCOMPLISHING PATIENT CARE OBJECTIVES, AND THAT THE ESSENTIALS
REQUIRE THAT HOUSE STAFF BE INTEGRATED INTO THE MEDICAL STAFF AS TRUE
COLLEAGUES. THUS, IN THE AUTHORITY'S VIEW, THERE IS NOTHING INHERENT IN
THE STATUS OF HOUSE STAFF AS GRADUATE MEDICAL STUDENTS OR TRAINEES WHICH
PRECLUDES A FINDING THAT THEY ARE ALSO EMPLOYEES OF THE ACTIVITY. /14/
APPROPRIATE UNIT
AS NOTED ABOVE, THE ACTIVITY FURTHER CONTENDS THAT THE PETITIONED-FOR
UNIT OR ANY VARIATION THEREOF WOULD NOT BE APPROPRIATE. THE AUTHORITY
FINDS THAT A UNIT COMPOSED OF HOUSE STAFF ASSIGNED TO THE ACTIVITY AND
PAID BY THE AGENCY WOULD CONSTITUTE AN APPROPRIATE UNIT IN THAT SUCH
EMPLOYEES ENJOY A COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER
PROFESSIONAL EMPLOYEES OF THE ACTIVITY, AND SUCH UNIT WOULD PROMOTE
EFFECTIVE DEALINGS, AND EFFICIENCY OF THE ACTIVITY'S OPERATIONS.
CONCERNING COMMUNITY OF INTEREST, THE RECORD ESTABLISHES THAT THE
SUBJECT EMPLOYEES ARE APPOINTED UNDER STATUTORY AUTHORITY APPLICABLE
ONLY TO THEM; ARE ENGAGED IN THE SAME MISSION, UNDER COMMON OVERALL
SUPERVISION; ARE SUBJECT TO WORK SCHEDULES AND ROTATIONS APPLICABLE
ONLY TO THEM; ENJOY COMMON JOB CLASSIFICATIONS, JOB DUTIES AND
RESPONSIBILITIES; RECEIVE COMPENSATION UNDER A SCHEDULE APPLICABLE ONLY
TO THEM; AND ARE SUBJECT TO THE SAME PERSONNEL POLICIES AND PRACTICES,
PORTIONS OF WHICH ARE APPLICABLE ONLY TO THEM.
CONTRARY TO THE ACTIVITY'S CONTENTION, THE AUTHORITY FINDS THAT AN
APPROPRIATE UNIT COMPOSED OF HOUSE STAFF ASSIGNED TO THE ACTIVITY AND
PAID BY THE AGENCY WOULD BE SUFFICIENTLY STABLE TO PROMOTE EFFECTIVE
DEALINGS WITH THE ACTIVITY. ALTHOUGH HOUSE STAFF ARE SUBJECT TO
ROTATIONS IN AND OUT OF THE ACTIVITY, THE FACTS SHOW THAT MOST HOUSE
STAFF CAN EXPECT TO BE IN A RESIDENCY PROGRAM FOR A MINIMUM OF THREE
YEARS AND THAT FOR ANY GIVEN 12-MONTH PERIOD, MOST HOUSE STAFF ASSIGNED
TO THE ACTIVITY AND PAID BY THE AGENCY REMAIN AT THE ACTIVITY FOR MOST
OF THE 12-MONTH PERIOD. /15/ ACCORDINGLY, THE AUTHORITY FINDS THAT THE
SUBJECT EMPLOYEES HAVE A REASONABLE EXPECTANCY OF REGULAR AND
CONTINUOUS
EMPLOYMENT FOR A SUBSTANTIAL PERIOD OF TIME WITH THE CONCOMITANT
SUBSTANTIAL AND CONTINUING COMMUNITY OF INTEREST IN THE TERMS AND
CONDITIONS OF THEIR EMPLOYMENT. FURTHER, THE ACTIVITY'S PRIOR
EXPERIENCE WITH OTHER ACTIVITY-WIDE UNITS IS INDICATIVE OF ITS CAPACITY
TO EFFECTIVELY CONDUCT LABOR RELATIONS DEALINGS WITH AN APPROPRIATE UNIT
OF HOUSE STAFF. MOREOVER, AS TO PERSONNEL MATTERS, THE ACTIVITY'S
"HOUSE OFFICER'S MANUAL" IS PERSUASIVE EVIDENCE OF ITS ACCOMMODATION TO
THE PERSONNEL NEEDS AND REQUIREMENTS OF HOUSE STAFF.
CONCERNING EFFICIENCY OF THE OPERATIONS OF THE ACTIVITY, THE
AUTHORITY FINDS THAT THE ACTIVITY'S ORGANIZATIONAL AND OPERATIONAL
STRUCTURE SHOWS THAT THE AGENCY RECOGNIZES, AND HAS MADE ACCOMMODATION
FOR, THE UNIQUE STATUS OF HOUSE STAFF IN TERMS OF THEIR DUAL ROLE
RELATIVE TO THE PROVISION OF PATIENT CARE AND THE AVAILABILITY OF
TRAINING OPPORTUNITY. THUS, THE ACTIVITY'S PROFESSIONAL SERVICES
SUPERVISE THE CONDUCT OF THE DAY-TO-DAY OPERATIONS OF THE RESIDENCY
PROGRAMS AND THE ACTIVITY RETAINS THE FINAL AUTHORITY TO SUPERVISE,
EVALUATE, DISCIPLINE, PROMOTE AND RETAIN HOUSE STAFF APPOINTED BY THE
ACTIVITY. FURTHER, THE ACTIVITY'S AFFILIATION/INTEGRATION ARRANGEMENTS
WITH OTHER INSTITUTIONS DO NOT INCLUDE OTHER FACILITIES OF THE AGENCY.
THIS SHOWS THAT THE ACTIVITY'S RESPONSIBILITY FOR ITS HOUSE STAFF IS
FOCUSED, AND NOT DILUTED AMONG OTHER COMPONENTS OF THE AGENCY.
CONSIDERING THE ABOVE, THE ACTIVITY'S CONTENTION THAT THE
PETITIONED-FOR UNIT CANNOT BE APPROPRIATE BECAUSE IT IS BASED SOLELY ON
THE EXTENT OF ORGANIZATION IS CLEARLY WITHOUT MERIT. THUS, UNDER ALL
THE FOREGOING CIRCUMSTANCES, THE AUTHORITY FINDS THAT THE MEDICAL
INTERNS, RESIDENTS, AND FELLOWS IN THE PETITIONED-FOR UNIT WHO ARE
ASSIGNED TO THE ACTIVITY AND WHO ARE PAID BY THE AGENCY CONSTITUTE A
UNIT WHICH IS APPROPRIATE FOR EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 7112(A)(1) OF THE STATUTE IN THAT THE EMPLOYEES IN SUCH A
UNIT WILL HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND SUCH
UNIT WILL PROMOTE EFFECTIVE DEALINGS WITH, AND EFFICIENCY OF THE
OPERATIONS OF, THE ACTIVITY.
ACCORDINGLY, THE AUTHORITY FINDS THAT THE FOLLOWING UNIT OF EMPLOYEES
IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE
STATUTE: /16/
ALL MEDICAL INTERNS, RESIDENTS, AND FELLOWS ASSIGNED TO THE LONG
BEACH VETERANS
ADMINISTRATION MEDICAL CENTER, LONG BEACH, CALIFORNIA, AND PAID BY
THE VETERANS
ADMINISTRATION; EXCLUDING ALL OTHER PROFESSIONAL EMPLOYEES,
NONPROFESSIONAL EMPLOYEES, AND
EMPLOYEES DESCRIBED IN 5 U.S.C. 7112(B)(2), (3), (4), (6), AND (7).
DIRECTION OF ELECTION
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS SOON AS FEASIBLE. THE APPROPRIATE
REGIONAL DIRECTOR SHALL SUPERVISE OR CONDUCT, AS APPROPRIATE, THE
ELECTION, SUBJECT TO THE AUTHORITY'S RULES AND REGULATIONS. ELIGIBLE TO
VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE PAYROLL PERIOD
IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT
WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON VACATION, OR ON
FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO APPEAR IN PERSON
AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR WERE
DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD AND HAVE NOT
BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE. THOSE ELIGIBLE
SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY THE PHYSICIANS NATIONAL HOUSESTAFF
ASSOCIATION.
ISSUED, WASHINGTON, D.C., DECEMBER 29, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B.FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ THE AMERICAN HOSPITAL ASSOCIATION AND THE ASSOCIATION OF AMERICAN
MEDICAL COLLEGES WERE GRANTED PERMISSION TO PARTICIPATE IN THIS
PROCEEDING AS AMICI CURIAE.
/2/ SECTION 7112 PROVIDES IN PERTINENT PART:
(A)(1) THE AUTHORITY SHALL DETERMINE . . . ANY UNIT TO BE AN
APPROPRIATE UNIT ONLY IF THE
DETERMINATION WILL ENSURE A CLEAR AND INDENTIFIABLE COMMUNITY OF
INTEREST AMONG THE EMPLOYEES
IN THE UNIT AND WILL PROMOTE EFFECTIVE DEALINGS WITH, AND EFFICIENCY
OF THE OPERATIONS OF, THE
AGENCY INVOLVED.
(B) A UNIT SHALL NOT BE DETERMINED TO BE APPROPRIATE UNDER THIS
SECTION SOLELY ON THE BASIS
OF THE EXTENT TO WHICH EMPLOYEES IN THE PROPOSED UNIT HAVE ORGANIZED
. . . .
/3/ PURSUANT TO SECTION 2429.5 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2429.5(1981)), OFFICIAL NOTICE IS TAKEN BY THE
AUTHORITY OF THE FACT THAT THERE ARE THREE UNITS OF EXCLUSIVE
RECOGNITION AT THE ACTIVITY. THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 541, REPRESENTS AN ACTIVITY-WIDE UNIT OF ALL GENERAL
SCHEDULE EMPLOYEES EXCEPT PROFESSIONAL EMPLOYEES. THE AMERICAN NURSES
ASSOCIATION REPRESENTS A PROFESSIONAL UNIT OF NURSES. THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1965, (AFGE) REPRESENTS AN
ACTIVITY-WIDE UNIT OF ALL WAGE GRADE EMPLOYEES. THE UNIT REPRESENTED BY
AFGE WAS ONE OF 236 UNITS REPRESENTED BY AFGE WHICH WERE CONSOLIDATED
INTO AN APPROPRIATE AGENCY-WIDE UNIT IN 1979. VETERANS ADMINISTRATION,
WASHINGTON, D.C., 1 FLRA 457(1979).
/4/ THE TERMS "RESIDENTS," "HOUSE STAFF," "HOUSE OFFICERS," AND
"HOUSE STAFF OFFICERS" REFER TO INTERNS, RESIDENTS, AND FELLOWS
COLLECTIVELY. FELLOWS ARE ALSO REFERRED TO AS "SUB-SPECIALTY
RESIDENTS." IN THE COMMON PARLANCE OF GRADUATE MEDICAL TRAINING
PROGRAMS, THE TERM "INTERN" HAS BEEN REPLACED BY THE TERMS "FIRST-YEAR
RESIDENT," OR "PG-1" (POSTGRADUATE ONE), OR "PGY-1" (POSTGRADUATE YEAR
ONE) TO REFER TO A PHYSICIAN IN THE FIRST YEAR OF GRADUATE MEDICAL
TRAINING. FOR PURPOSES OF THIS DECISION, THE TERMS "HOUSE STAFF"
(PLURAL) AND "HOUSE STAFF OFFICER" (SINGULAR) INCLUDE ALL SUCH
CLASSIFICATIONS OR TITLES.
/5/ SUCH CONSIDERATIONS INCLUDE REQUESTS FOR SLOTS MADE BY THE
PARTICULAR AGENCY MEDICAL CENTER AND ITS AFFILIATED/INTEGRATED MEDICAL
SCHOOL, AND THE CAPACITY OF THE PARTICULAR AGENCY MEDICAL CENTER TO
CARRY OUT ITS BASIC PATIENT CARE FUNCTIONS.
/6/ THE RECORD REVEALS THAT ALL THE PROFESSIONAL SERVICES AT THE
ACTIVITY INVOLVED WITH RESIDENCY PROGRAMS USE THE "EXCHANGE METHOD";
THAT IS, WHEN A HOUSE STAFF OFFICER STIPEND BY THE AGENCY ROTATES TO ONE
OF THE AFFILIATED/INTEGRATED HOSPITALS, THAT HOSPITAL, IN RETURN,
ROTATES TO THE ACTIVITY A HOUSE STAFF OFFICER THAT IT PAYS.
/7/ THE TERM "ATTENDING PHYSICIAN" MEANS A PHYSICIAN AT THE ACTIVITY
WHO HAS A FACULTY APPOINTMENT AT UCI, AND WHO IS RESPONSIBLE FOR A
PATIENT CARE TEAM FOR A SPECIFIED TIME.
/8/ HOUSE STAFF ARE NORMALLY APPOINTED ON A FULL-TIME DUTY STATUS AND
ARE CONSIDERED AVAILABLE AND RESPONSIBLE FOR THE CARE, TREATMENT, AND
WELFARE OF THEIR PATIENTS 24 HOURS A DAY, 7 DAYS A WEEK.
/9/ SEE THE ESSENTIALS IN PERTINENT PART UNDER "I. GENERAL
REQUIREMENTS," "11. EMPLOYMENT RELATIONS OF HOUSE OFFICERS," AT PAGE 16
OF THE '78'79 DIRECTORY OF RESIDENCY TRAINING PROGRAMS.
/10/ ALTHOUGH "CONTROL" IS AN IMPORTANT ELEMENT IN DETERMINING
WHETHER AN EMPLOYER-EMPLOYEE RELATIONSHIP EXISTS, THE FACTOR OF
"CONTROL" ALONE IS NOT CONCLUSIVE EVIDENCE AS TO AN EMPLOYER-EMPLOYEE
RELATIONSHIP. COMPARE DEPARTMENT OF THE ARMY, FORT BRAGG SCHOOLS, 3
FLRA NO. 57(1980).
/11/ COMPARE FORT KNOX DEPENDENT SCHOOLS, 5 FLRA NO. 5(1981).
/12/ SECTION 7103(A)(4) PROVIDES IN PERTINENT PART:
(4) "LABOR ORGANIZATION" MEANS AN ORGANIZATION COMPOSED IN WHOLE OR
IN PART OF EMPLOYEES
. . . .
/13/ REPORT OF THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE ON H.R.
11280, H.R. REP. NO. 1403, 95TH CONG., 2D SESS. 39-40 (1978).
/14/ BUT SEE CEDARS-SINAI MEDICAL CENTER, 223 NLRB 251(1976), AND ST.
CLARE'S HOSPITAL AND HEALTH CENTER, 229 NLRB 1000(1977), WHEREIN THE
NATIONAL LABOR RELATIONS BOARD HELD IN THE PRIVATE SECTOR THAT RESIDENTS
AND INTERNS IN PRIVATE, NONPROFIT HOSPITALS ARE "PRIMARILY STUDENTS" NOT
ENTITLED TO COVERAGE UNDER THE NATIONAL LABOR RELATIONS ACT (ACT). SUCH
RULINGS IN THE PRIVATE SECTOR UNDER THE ACT ARE NOT CONSIDERED
DISPOSITIVE UNDER THE STATUTE.
/15/ THE AUTHORITY NOTES THAT THE UNIT FOUND TO BE APPROPRIATE HEREIN
IS COMPOSED OF HOUSE STAFF ASSIGNED TO THE ACTIVITY AND PAID BY THE
AGENCY. THUS, HOUSE STAFF WHO ARE ASSIGNED ON A ROTATIONAL BASIS TO
OTHER, PRIVATE HOSPITALS ARE NOT WITHIN THE UNIT. IN THIS REGARD, THE
AUTHORITY HAS JURISDICTION ONLY OVER FEDERAL AGENCIES. SEE SECTION
7103(A)(3) OF THE STATUTE.
/16/ INASMUCH AS THE UNIT FOUND APPROPRIATE HEREIN IS DIFFERENT FROM
THAT SOUGHT BY THE PETITIONER IN THAT HOUSE STAFF PAID FROM NON-AGENCY
SOURCES CANNOT BE INCLUDED, IF THE PETITIONER DOES NOT DESIRE TO PROCEED
TO AN ELECTION IN THE UNIT FOUND APPROPRIATE, IT MAY WITHDRAW ITS
PETITION. THE WITHDRAWAL MUST BE IN WRITING AND MUST BE RECEIVED BY THE
APPROPRIATE REGIONAL DIRECTOR NOT LATER THAN 10 DAYS AFTER THE ISSUANCE
OF THIS DECISION.