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Apr 21, 2016 - UNITED STATES OF AMERICA. BEFORE THE NATIONAL LABOR ... employees also provide clinical psychiatric servi
UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD REGION 01 TRUSTEES OF DARTMOUTH COLLEGE1 Employer and

Case 01-RC-172640

CONCERNED PSYCHIATRIC PROFESSIONALS OF NEW HAMPSHIRE HOSPITAL Petitioner DECISION AND ORDER

Petitioner Concerned Psychiatric Professionals of New Hampshire Hospital (the Union) seeks to represent a unit composed of 13 psychiatrists and 4 psychiatric nurse practitioners employed by the Trustees of Dartmouth College (Dartmouth College) at New Hampshire Hospital in Concord, New Hampshire. Dartmouth College contends that the petition should be dismissed on the ground that it will no longer employ any of the employees in the proposed bargaining unit after June 30, 2016. I find, in agreement with Dartmouth College, that the petition should be dismissed in light of the imminence and certainty of Dartmouth College's decision to permanently lay off its employees.

FACTS Dartmouth College is a private, non-profit university with a main campus in Hanover, New Hampshire. Dartmouth College operates a medical school, the Geisel School of Medicine, which has a Department of Psychiatry. For twenty years or more, Dartmouth College has had a contract with the State of New Hampshire Department of Health and Human Services to provide psychiatric services at the state's only public mental health hospital, New Hampshire Hospital, in Concord, New Hampshire. The most recent contract is a five-year agreement that is scheduled to terminate on June 30, 2016. Pursuant to that contract, Dartmouth College currently staffs New Hampshire Hospital with 13 psychiatrists and 4 psychiatric nurse practitioners. These psychiatrists and psychiatric

The name of the Employer appears as amended at the hearing.

TRUSTEES OF DARTMOUTH COLLEGE Case 01-RC-172640

nurse practitioners are employees of Dartmouth College.2 They receive compensation and benefits from Dartmouth College and are subject to Dartmouth College personnel rules. In addition to their patient care responsibilities, the psychiatrists teach medical students from the Geisel School of Medicine as well as medical residents who rotate through New Hampshire Hospital. In view of their teaching responsibilities, the New Hampshire Hospital psychiatrists have appointments as clinical faculty in the Department of Psychiatry at the Geisel School of Medicine. For a variety of reasons, including financial difficulties, Dartmouth College has determined that the provision of clinical services will no longer be part of the mission of the Geisel School of Medicine, which will focus on its core mission of educating medical students. Thus, in the fall of 2015, Dartmouth College officials announced to the School of Medicine community that, going forward, those employees of the Department of Psychiatry who provide patient care will do so as employees of a health care system called Dartmouth-Hitchcock. Dartmouth-Hitchcock operates an acute care hospital in Lebanon, New Hampshire, called Mary Hitchcock Memorial Hospital, as well as a group practice called Hitchcock Clinic, which employs the physicians who work at Mary Hitchcock Memorial Hospital. Mary Hitchcock Memorial Hospital and Hitchcock Clinic are commonly referred to together as "DartmouthHitchcock."3 The entire Department of Psychiatry is slated to be moved over to Dartmouth-Hitchcock. Dartmouth College's determination to cease providing clinical services will affect about 250 employees currently employed in the Department of Psychiatry, including the 17 petitioned-for employees who work at New Hampshire Hospita1.4 The goal of Dartmouth College is to effect the transition by June 30, 2016, after which time the Department of Psychiatry will have no employees.

The parties have stipulated, and I find, that should an election be directed in this case, the following unit is appropriate: All full-time and regular part-time psychiatric professional employees, including psychiatrists and psychiatric nurse practitioners employed by the Trustees of Dartmouth College at New Hampshire Hospital, with certain exclusions.

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Apart from its campus in Lebanon, Dartmouth-Hitchcock operates a network of health care providers and facilities throughout the State of New Hampshire.

The School of Medicine's Department of Psychiatry maintains its offices within the clinic buildings on the Dartmouth-Hitchcock campus in Lebanon. 4 The Psychiatry Department is currently the only School of Medicine department that provides clinical services. In addition to providing clinical services at New Hampshire Hospital, Department of Psychiatry employees also provide clinical psychiatric services at Dartmouth-Hitchcock and at other facilities.

The restructuring of the School of Medicine will impact a total of about 400 of School of Medicine employees, including not only, the 250 in the Department of Psychiatry, but employees of other School of Medicine departments.

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Dartmouth-Hitchcock is a separate corporate entity from Dartmouth College. It has its own Board of Trustees, its own administrators, its own Human Resources Department, and its own personnel policies and benefits, distinct from those of Dartmouth College. Christine Fitts is the Associate Chair for Administration in the School of Medicine's Department of Psychiatry. Fitts is responsible for managing the various contracts held by the Department of Psychiatry to provide clinical services, including its contract with the State of New Hampshire that covers New Hampshire Hospital. She is also responsible for managing the Department of Psychiatry budget, for recruiting faculty, and for explaining Dartmouth College's benefits to Department of Psychiatry faculty and staff. On February 25, 2016, the State of New Hampshire Department of Health and Human Services issued a Request for Proposals, (RFP), to provide physician clinical and administrative services for various "service areas," including New Hampshire Hospital. The period covered by the new contract will be July 1, 2016 through June 30, 2019. Fitts testified that Dartmouth College has decided not to submit a bid for the contract, but that Dartmouth-Hitchcock will be submitting a bid. By letter to the State of New Hampshire dated March 3, 2016, the "Dartmouth Department of Psychiatry, through Mary Hitchcock Memorial Hospital, a component of Dartmouth-Hitchcock," announced its intention to respond to the Request for Proposals. The letter was written on letterhead with both the DartmouthHitchcock and Dartmouth Geisel School of Medicine logos. The letter described DartmouthHitchcock as an academic affiliate of the Geisel School of Medicine and stated that the Department of Psychiatry spans both Dartmouth-Hitchcock and Geisel. The letter listed Dr. Alan Green, Chair of the Department Psychiatry at the School of Medicine as the "principal investigator," Dr. Robert Greene, Chief Population Health Management Officer from Dartmouth-Hitchcock, as the person authorized to contractually obligate the bidding organization, Robin Kilfeather-Mackey, Chief Financial Officer for Dartmouth-Hitchcock, as the fiscal agent of the bidding organization, and Christine Fitts from the School of Medicine's Department of Psychiatry as the bidder's representative for all matters relating to the RFP. Fitts, who as noted above is a Dartmouth College employee, testified that she is listed as the bidder's representative for all matters relating to the RFP, because she is managing the process of submitting the proposa1.5 Fitts attended a bidder's conference a few weeks ago that was attended by one other potential bidder, but she did not know if that other organization intends to submit a bid. Fitts testified that the proposal was due on April 15, 2016, and that she expected the State of New Hampshire to act on the bid within a week or two, so that DartmouthHitchcock should know by the end of April if it has been awarded the contract.

5 Fitts testified that it is her hope that she will be offered a job by Dartmouth-Hitchcock and that she would accept the job, if offered. If the state contract is awarded to Dartmouth-Hitchcock, Fitts will manage the contract budget.

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One of the requirements of the Request for Proposal is for bidders to provide "letters of intent" from the employees who will staff New Hampshire Hospital, acknowledging their intention to accept the assignment to provide services should the bidder be awarded the contract. To meet this requirement, Fitts drafted a letter of intent, on letterhead bearing the logo of both Dartmouth-Hitchcock and the Dartmouth Geisel School of Medicine, to be signed by the 17 petitioned-for psychiatrists and APRNs.6 Dr. Green, the chair of the Department of Psychiatry for the School of Medicine, provided the letters of intent to four psychiatrists at a meeting on March 11, 2016, but the four declined to sign the letters of intent on the ground that they do not know the terms and conditions of employment that they are being offered. Fitts testified that, as of the date of the hearing, she had not received signed letters of intent from any of the petitionedfor employees.' Fitts testified that, should Dartmouth-Hitchcock be awarded the contract, the Geisel School of Medicine will continue to send medical students for rotations at New Hampshire Hospital, and the New Hampshire Hospital psychiatrists will retain their faculty appointments at the School of Medicine. A joint Steering Committee composed of administrators from both the School of Medicine and Dartmouth-Hitchcock is overseeing the transition of the Department of Psychiatry over to Dartmouth-Hitchcock. Fitts is a member of the Committee. She testified that it is her understanding that, during the week of April 18, Dartmouth College will issue layoff notices, effective June 30, 2016, to School of Medicine employees in the Department of Psychiatry, including the petitioned-for employees. By the end of April, Dartmouth-Hitchcock intends to send offers of employment, effective July 1, 2016, to those same employees.8 The offer letters to the petitioned-for employees will state that their job offers are contingent both on DartmouthHitchcock being awarded the contract to staff New Hampshire Hospital and on a background check and drug screening. The offer letters will likely state the employee's job title and current salary. Actual salaries, which will be established by the state contract, will not be determined until the contract is awarded. 6 The letter drafted by Fitts refers to an intent to accept assignment to provide services under the contract should "Dartmouth" be awarded the contract. Fitts testified that by "Dartmouth," she was referring to Dartmouth-Hitchcock. 7

Dr. David Folk, the Chief Medical Officer at New Hampshire Hospital, who is the supervisor of the petitioned-for employees and an employee of Dartmouth College, has signed a letter of intent to continue at New Hampshire Hospital, should Dartmouth-Hitchcock be awarded the contract. Dr. Matthew Davis, one of the psychiatrists who works at New Hampshire Hospital, testified that it would be very difficult to replace the 17 current psychiatric professionals, as a very small percentage of psychiatrists want to work at a state hospital, where the pay is low and the work is harder and more dangerous than in other settings. During his four years at the hospital, there have been multiple vacancies.

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Fitts acknowledged that recruiting psychiatrists to work at New Hampshire Hospital is difficult, although she testified that other factors, such as the budget, have also contributed to the vacancies.

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Dr. Davis testified that, since the fall of 2015, the petitioned-for employees have been told repeatedly by various administrators from both Dartmouth College and DartmouthHitchcock that they will be hired by Dartmouth-Hitchcock, that they will retain their faculty appointments at the School of Medicine, and that there will be a "seamless transition," but they have been told nothing else.9 He testified that the 17 employees wish to unionize now rather than wait until they become Dartmouth-Hitchcock employees, because they wish to bargain with Dartmouth College over certain matters before they are laid off For example, the employees were very upset to learn that the Dartmouth College Trustees have determined that the pensions of those who have not worked at New Hampshire Hospital for at least three years have not vested, so those employees will lose all of their employer contributions upon layoff. About half the staff will be affected by the loss of unvested pension money. ANALYSIS Positions of the parties

Dartmouth College contends that the petition should be dismissed on the ground that it has made an irrevocable decision not to bid on a new contract with the State of New Hampshire Department of Health and Human Services. Thus, after June 30, 2016, all of the petitioned-for employees will be laid off', and Dartmouth College will no longer employ any individuals performing psychiatric services at New Hampshire Hospital. Dartmouth College relies on a line of cases in which the Board has dismissed petitions or issued a show cause order when the evidence demonstrated the imminent cessation of the employer's operations. See, e.g., MB. Kahn Construction Co., 210 NLRB 1050 (1974) (construction project to be completed within six months); Larson Plywood Co., 223 NLRB 1161 (1976) (employer to liquidate the entire business within 90 days); Davey McKee Corp., 308 NLRB 839 (1992) (construction project to be completed within 29 days); Correcionales De Puerto Rico, 338 NRLB 452 (2002) (contract to provide guard services had been cancelled). Dartmouth College asserts further that, while the hope and expectation is that DartmouthHitchcock will be the succeeding contractor, that hope has not yet ripened into a successor employer relationship. Whether Dartmouth-Hitchcock will be the successful bidder and, if so, whether it will choose to offer employment to the 17 petitioned-for employees, is unknown. Dartmouth College acknowledges that, in order to ensure a seamless transition, it has been assisting Dartmouth-Hitchcock in submitting a bid and in ascertaining whether unit employees would be interested in working for Dartmouth-Hitchcock if it becomes the successful bidder. It contends, however, that this collaboration does not alter the conclusion that the employment relationship of the bargaining unit employees with Dartmouth College will end on June 30. In meetings with the School of Medicine community and the Department of Psychiatry staff and in emails to Department of Psychiatry staff, the Dean of the School of Medicine, Duane Compton, the chair of the Department of Psychiatry, Dr. Alan Green, and Dartmouth-Hitchcock's representative, Dr. Robert Greene, have at various times referred to the reorganization of the Department of Psychiatry as a "transition" and have not characterized it as a layoff. 9

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The Union contends that Dartmouth College's reliance on Board cases involving a cessation of operations is misplaced, as the 17 petitioned-for psychiatric professionals will continue to provide services at New Hampshire Hospital after June 30. The petitioned-for employees are merely undergoing a transition on paper due to a financial restructuring between two affiliated organizations acting as close business partners. Thus, the "layoff' is a layoff in name only, as Dartmouth College has represented to the public and to the affected employees that what will take place is a restructuring and transition rather than a shut-down of operations. Further, Dartmouth College's participation in the submission of a bid to the State of New Hampshire demonstrates that it is not getting out of the business of providing clinical services at New Hampshire Hospital and is bidding in partnership with Dartmouth-Hitchcock. Thus, a Dartmouth College employee, Fitts, is managing the bidding process for the new contract. Dartmouth College presented the 17 employees a job offer in the form of a letter of intent to accept employment that was provided by Dr. Green, a Dartmouth College representative, included the Geisel School of Medicine logo, and was drafted by Fitts, a Dartmouth College employee. Finally, the Union argues that, as the 17 petitioned-for employees are the only psychiatric professionals available to work at the state hospital and cannot be replaced, the organization that is the successful bidder for the New Hampshire Hospital contract will necessarily have to hire those same employees to continue performing the same tasks and will become a successor employer that will be obligated to bargain with the proposed union. In support of its contention that an election should be directed notwithstanding the transition to a new employer, the Union relies principally on Texas Eastman Co., 175 NRLB 625, 628 (1968). In that case, after the Board had issued a Decision on Review and Direction of Election, the employer, Hudson Hychem, filed a motion to dismiss on the ground that its contract to perform construction work for Texas Eastman had been cancelled. A new company, Caddo Construction, a subsidiary of Texas Eastman, had been created the very day that the contract was cancelled. The new company hired all of the Hudson-Hychem employees and no one else. The Caddo work force performed the same work on the identical project at the precise location for the same customer as they had previously done under Hychem. The Board found that Texas Eastman and Caddo were successors to Hudson-Hychem and issued an amended Decision and Direction of Election, substituting the names of the successors for the original employers. Conclusion

The Board has consistently held that it will not conduct an election at a time when a permanent layoff is imminent and certain, finding no useful purpose in holding such elections. Thus, the Board has dismissed petitions in cases involving cessation of operations within periods of time ranging up to six months. Davey McKee Corp., 308 NLRB 839 (1992) (construction project to be completed within 29 days); Larson Plywood Co., 223 NLRB 1161(1976) (employer to liquidate the entire business within 90 days); Hughes Aircraft, 308 NLRB 82 (1992) (imminent cessation of employer's guard operations through subcontracting within less than two months from the date of the hearing); Martin Marietta, 214 NLRB 646, 646-647 (1974) (closure of the plant in four months is definite and imminent); MB. Kahn Construction Co., 210 NLRB 1050 (1974) (imminent completion of the construction project involved wiAin six months).

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Here, Dartmouth College has made an irrevocable decision to get out of the business of providing clinical services. As of June 30, it will no longer employ any Department of Psychiatry employees who provide clinical services. Dartmouth College has announced its decision to the School of Medicine and Department of Psychiatry communities in numerous meetings since the fall of 2015. In particular, the evidence is uncontroverted that Dartmouth College's contract to provide services at New Hampshire Hospital will terminate on June 30, and Dartmouth College has decided not to submit a bid for the next contract. It intends to issue layoff notices to all of the unit employees this month, effective June 30. As the petitioned-for employees will no longer be employees of Dartmouth College as of a date that is less than three months from the date of the hearing, I find that this case falls squarely within the line of cases in which the Board has declined to hold an election.1° The Union argues that the above-cited cases are distinguishable, in that they involved a true cessation of operations, whereas, here, the unit employees are likely to continue to provide the same services at New Hampshire Hospital even after June 30. The Union contends that Dartmouth-Hitchcock is likely to be the successful bidder and that Dartmouth College's participation in the bidding process demonstrates that it is not really getting out of the clinical services business after June 30. This argument has no merit. The assumption that DartmouthHitchcock will be the successful bidder is speculative at this point, and Dartmouth College's assistance to Dartmouth-Hitchcock in preparing its bid does not negate the fact that it will no longer employ psychiatric professionals after June 30. Further, the fact that the work at issue might be continued by another employer is irrelevant. Thus, in Hughes Aircraft Co., supra, the Board dismissed a petition both because of the imminent cessation of the employer's guard operations through subcontracting and because of the speculativeness of the petitioner's contention that the two subcontractors would become joint employers with the employer. Here, as in Hughes Aircraft Co., it would be premature to make a determination as to the status of Dartmouth-Hitchcock. The Union's assertion, in reliance on Texas Eastman Co., supra, that DartmouthHitchcock is a successor employer is similarly misplaced. In Texas Eastman, the new company that the Board found to be a successor employer had already hired all of the employees of the predecessor. Here, Dartmouth-Hitchcock has not yet hired the unit employees, nor has it even learned yet whether or not it will be the successful bidder for the New Hampshire Hospital work. The possibility that there might be a successor to Dartmouth College does not mean that it would effectuate the Act to conduct an election while the unit employees are still employees of the predecessor. It is hereby ordered that the petition in this matter is dismissed.

10 It appears that the Board has not yet had occasion to reconsider its policy of dismissing petitions in cases of imminent closure, in light of the new Representation Case Rules issued in 2014, which have shortened the timeframe in which elections are conducted. I am constrained to follow existing Board law. -7-

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RIGHT TO REQUEST REVIEW

Pursuant to Section 102.67(c) of the Board's Rules and Regulations, you may obtain a review of this action by filing a request with the Executive Secretary of the National Labor Relations Board. The request for review must conform to the requirements of Section 102.67(d) and (e) of the Board's Rules and Regulations and must be filed by May 5, 2016. A request for review may be E-Filed through the Agency's website but may not be filed by facsimile. To E-File the request for review, go to www.nlrb.gov, select E-File Documents, enter the NLRB Case Number, and follow the detailed instructions. If not E-Filed, the request for review should be addressed to the Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001. A party filing a request for review must serve a copy of the request on the other parties and file a copy with the Regional Director. A certificate of service must be filed with the Board together with the request for review. Dated: April 21, 2016

JOHN J. WALSH, JR. REGIONAL DIRECTOR NATIONAL LABOR RELATIONS BOARD REGION 01 10 CAUSEWAY ST FL 6 BOSTON, MA 02222-1001

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