Southern California Permanente Medical Group

106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southern California Permanente Medical Group and jurisdiction over it. We find no merit in these Kaiser Bellflower Registered Nurses' Association, contentions. UNAC, Petitioner. Case 21-RC-13303 The record establishes that the Employer contracts February 19, 1974 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO with the Kaiser Foundation Health Plan (hereafter called Plan) to provide its members with the professional services covered by the Plan. Pursuant to this contract the Employer, in consideration of certain monetary and other benefits, furnishes doctors for the hospitals and medical office facilities which are built, equipped, staffed, owned, and operated by Hospital, and operates, with its own Upon a petition duly filed under Section 9(c) of the doctors and employees, all of the outpatient clinics in National Labor Relations Act, as amended, a the service area as well. These clinics are leased from hearing in this case was held before Hearing Officer the Plan under terms which insure that the Employer Stuart M. Levine and a further hearing was held has exclusive control of the operation of the clinics. before Hearing Officer Gerald M. Cole. The Hearing All of the above corporations receive administrative, Officers' rulings made at the hearings are free from housekeeping, purchasing, accounting, collective- prejudicial error and are hereby affirmed. bargaining, and other supporting services from Pursuant to the provisions of Section 3(b) of the Southern Permanente Services, Inc. (hereafter called National Labor Relations Act, as amended, the Permanente Services), a California for-profit corpo- National Labor Relations Board has delegated its ration owned by the Plan and the Hospital. authority in this proceeding to a three-member panel. The facts in the instant case are similar to the facts Upon the entire record in this case, including the in The Permanente Medical Group, 187 NLRB 1033. briefs filed by the Employer and the Petitioner, the We find, for the reasons stated therein, that the Board finds: Employer does not fall within the provisions of 1. Petitioner seeks to represent registered nurses Section 2(2) of the Act.I Accordingly, in view of the employed by the Employer at its five clinics located Employer's substantial effect on commerce, we at Bellflower, Huntington Park, Garden Grove, further find that it is engaged in commerce within the Orange, and Norwalk, California, which we herein- meaning of the Act and that it will effectuate the after call the Bellflower clinic complex. The parties policies of the Act to assert jurisdiction in this stipulated that the Employer is a California for-profit proceeding. partnership of physicians engaged in the practice of 2. The labor organization involved claims to medicine. During the year preceding the hearing the represent certain of the employees of the Employer. Employer received revenues in excess of $500,000 3. A question affecting commerce exists concern- and during the same period it purchased in excess of ing the representation of certain employees of the $50,000 worth of goods and supplies from concerns Employer within the meaning of Section 9(c)(1) and located outside the State of California. Section 2(6) and (7) of the Act. Although the Employer does not dispute that its 4. As indicated above, the Petitioner seeks to operations satisfy the Board's monetary standards represent the approximately 73 registered nurses for jurisdiction, it contends that the Board should not employed at the Employer's Bellflower clinic com- assert jurisdiction over it because the Employer is a plex, which is part of the Bellflower medical service joint employer with the Kaiser Foundation Hospitals facility that includes two hospitals in addition to the (hereafter called Hospital), a nonprofit corporation clinics designated above. The parties stipulated that engaged in the business of building, equipping, and registered nurses are professional employees and staffing hospitals. The Employer thus argues that as would constitute an appropriate unit. The Employer a joint employer with Hospital, which falls within the contends, however, that the appropriate unit should nonprofit hospital exemption of Section 2(2) of the include the 1,139 registered nurses employed by the Act, there is no basis for the Board to take Employer and the Hospital at five of the seven I We find no merit in the Employer's contention that the instant case is distinguishable from the prior proceeding in that the employees in the unit sought in that proceeding were employed only in the clinics and related facilities operated by the Permanence Medical Group , and there were no comparable employees employed by Kaiser Foundation Hospitals. The Petitioner in the instant case does not seek to represent any hospital employees . The fact that comparable classifications of employees are employed by the Hospital does not warrant a finding that the two organizations function as joint employers for jurisdictional purposes. The Cleveland Clinic Foundation, 205 NLRB No. 162, cited by the Employer in its posthearing brief, is distinguishable on its facts . In that case, unlike the instant case, there was a high degree of functional integration and interrelationship among all the activities of the employer, and even the nonhospital services of the proprietary corporations owned by the nonprofit hospital corporation (engaged in furnishing parking facilities and hotel accommodations to hospital employees , patients, and visitors) were closely related to and virtually inseparable from the hospital services . Member Fanning finds it unnecessary to distinguish or discuss the Cleveland Clinic Foundation decision. 209 NLRB No. 26 SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP medical service facilities including the Bellflower facility which comprise the Plan's southern Califor- nia service region. These five medical service facilities are located throughout Los Angeles County except for one of the Bellflower clinics which is located in Orange County. The remaining two medical service facilities are located in the Fontana area and the San Diego area, respectively. Each of the seven medical service facilities is composed of a main medical center which houses a hospital and outpatient clinic, and additional outpa- tient clinics which are clustered in outlying areas.2 As noted previously, the Bellflower medical service facility has a hospital and clinic at Bellflower and a hospital at Norwalk, and outlying clinics at Norwalk, Huntington Park, Garden Grove, and Orange. These outlying clinics are located 3, 11, 16, and 21 miles, respectively, from the Bellflower clinic. The record shows that the supervisory hierarchy at each of the seven medical service facilities is separate from the others and that, further, within each medical service facility, the hospitals and clinics are supervised separately by different groups of supervi- sors. For each hospital there is an administrator and an assistant administrator. The hospital administra- tor reports to the regional hospital administrator. For each clinic complex there is an administrator who reports to the area medical director of the Employer. Similarly, in each medical service facility there is a hospital director of nursing who reports to the hospital administrator and a clinic director of nursing who reports to the clinic complex adminis- trator. While there is a common overall labor relations policy applicable to all of the seven medical service facilities, the clinic administrator at each complex is responsible for the clinic complex operations on a day-to-day basis and is ultimately responsible for the operations of the outlying clinics. The clinic director of nursing has supervisory authority over all nurses in the medical center clinic and outlying clinics in each clinic complex. New nurses are recruited by Permanente Services but the ultimate decision to hire and discharge is made by the Employer's supervisors at the clinic complex level. At each clinic complex. nursing supervisors schedule the working hours of the nurses in their charge and have authority to grant leaves of absence and to requisition additional nurses from Permanente Services when required. The general rule is that promotions are made from within each clinic complex and layoffs are by seniority at the particular complex. While the record is unclear, there appears to be little or no temporary interchange of employees 107 among the various clinic complexes. Additionally, the Employer's nurses at the Bellflower clinic have almost no daily contact with the Hospital's Bellflow- er hospital nurses, and outlying clinic nurses in the Bellflower clinic complex have none. There are, however, some permanent transfers of nurses be- tween the hospitals and clinics. Marie English, who is Permanente Services' representative at the Bellflower clinic complex, testified that permanent transfers within the Bellflower clinic complex occur twice as frequently as transfers to other facilities. While the skills and duties of registered nurses in all of the medical service facilities appear to be similar, the duties of clinic nurses differ in some respects from those of hospital nurses. Thus the record shows that hospital nurses perform direct patient care duties. They oversee ancillary help and give medication, but they do not normally assist the physician in administering treatment to the patient. Clinic nurses receive telephone calls, advise patients who come to the clinic for care, direct them to the proper area, and screen walk-in patients as to their complaints and direct them to a particular physician for care. A clinic nurse may be assigned to work directly with a physician in the clinic setup and in such situations assists him in the examination and treatment of the patients throughout the day. It also appears that the hospital and clinic nurses work different hours. The hospitals operate on a 24-hour basis, with 3 shifts. Generally, the clinics are open only during the day and most of the clinic nurses work from 8:45 a.m. to 5:15 p.m. Special walk-in clinics are open at night. The record does show, however, that both clinic and hospital nurses receive comparable salaries and enjoy the same fringe benefits, and that all are subject to the same personnel policies. Bargaining History There is no bargaining history with respect to registered nurses at five of the medical service facilities. At the Fontana and San Diego facilities, registered nurses are represented . The Fontana hospital and clinic nurses are covered by a collective- bargaining agreement between Kaiser Fontana Registered Nurses' Association , UNAC, and the Hospital and the Employer . The San Diego nurses are included under the Local 443, Office and Professional Employees International Union agree- ment which covers clerical , technical, service, and maintenance classifications of employees at the San Diego facility. The record shows that clerical, technical, service, 2 As in the case of the Bellflower medical service facility, these clinics in each facility are hereinafter referred to as a clinic complex. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and maintenance employees employed at all but the Fontana and San Diego facilities are covered by a multiemployer agreement between the four entities comprising the Plan's southern California region and Service Employees International Union, AFL-CIO, Local 399. At the Fontana facility, these classifica- tions of employees are represented by the Steelwork- ers Union. Pharmacists and pharmacy cashiers at all seven medical service facilities are represented by the Retail Clerks Union, while engineers at all but the San Diego and Fontana facilities are represented by Operating Engineers Local 501. All of the units covered by the above agreements were established through mutual agreement of the Employer and union involved. The Employer bases its unit position in part on its contention that the Hospital and the Employer are joint employers of registered nurses. For reasons stated above, we have found no merit in that contention. The Employer's further contention that a five-area medical service-facilities unit is the smallest appropriate unit for bargaining is based on the alleged mutuality of interests in wages, hours, and conditions of employment among the registered nurses in the five facilities. The Petitioner bases its position that the clinic complex unit at Bellflower is appropriate in part on the contention that the clinics are separately owned and controlled by different people; that the Bellflow- er clinic complex comprises one administrative unit of the Employer; and that there are seven separate clinic complex administrative units in the southern California region. The Petitioner argues that there is neither contact nor common interests in working conditions between the registered nurses employed in the Bellflower clinics and those employed at other clinic complexes. The facts demonstrate, and we find, that the registered nurses employed by the Employer in the Bellflower facility have a community of interest with each other and that such community of interest is separate and distinct from that of registered nurses employed by the Hospital and at the remaining medical service facilities, including their respective clinic complexes. In so finding, we rely on (1) the completely separate supervisory personnel of hospi- tal and clinic complex nurses at the Bellflower medical service facility, (2) the responsibility of the clinic administrator for day-to-day operations of the Bellflower clinic complex, (3) the authority of Bellflower clinic complex supervisors to hire and discharge nurses, schedule their working hours, grant leaves of absence, and requisition additional nurses, (4) the little or no interchange or contact between the hospital and clinic nurses at the Bellflower medical service facility and among the nurses in the other facilities, (5) the general rule that promotions are made from within the Bellflower clinic complex, and layoffs similarly are by seniority, (6) the differences in skills and duties of clinic and hospital nurses, and (7) the absence of any controlling bargaining history. We also note that, while common labor relations and personnel policies are established by Permanente Services, they are separately implemented by the Bellflower clinic complex supervisory personnel. Furthermore, Employer's mileage chart submitted in evidence shows that, while the five medical service facilities other than San Diego and Fontana are located in geographic proximity, the five clinics of the Bellflower clinic complex are clustered within a small part of a much larger geographic area. On the above facts, we find that the Bellflower clinic complex constitutes a separate administrative area of the Employer's operations. Accordingly, for the reasons enumerated above, we find that registered nurses employed by the Employ- er at the Bellflower clinic complex constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Emergency Room Nurses The parties are in disagreement as to whether registered nurses employed by the Employer in the Bellflower medical center's emergency room should be included in the unit. At the hearing, the parties stipulated that there are 22 full-time and 4 part-time registered nurses who spend 100 percent of their time in the Bellflower emergency room. They are em- ployed on a 3-shift, 24-hour, 7-day schedule from 7:30 a.m. to 4 p.m., 3:30 p.m. to midnight, and 11:45 p.m. until 7:45 a.m. Their wage rates are the same as the rates for the clinic complex nurses. Doctor Chester Haug, medical director for the Bellflower medical service facility, testified that this emergency room functions as an adjacent clinic to some of the other clinics of the Bellflower clinic complex. Patients may be referred from the emergen- cy room to one of the outpatient clinics of the complex or admitted to the Bellflower hospital. They also may be referred from Bellflower outpatient clinics to the emergency room. Virginia Wagner, director of clinic nursing at the Bellflower clinic complex, testified that she had ultimate responsibility for the emergency room and that under her supervision is an emergency room supervisor who is responsible for its operations on a 24-hour basis, 7 days a week. Wagner further testified that she works on the day shift, a charge nurse supervises the evening shift, and a senior nurse supervises the night shift. If any staff problems arise, SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP the emergency room supervisor is contacted at home. Disturbances that might be caused by patients are handled by the security force and the assistant director of nursing for the hospital is contacted. The record shows that, while patients may be admitted to the Bellflower hospital from the Bell- flower emergency room, the emergency room nurses perform no duties in the hospital and hospital nurses perform no duties in the emergency room. When a patient at one of the clinics of the Bellflower clinic complex has hospital surgery, he is prepared for surgery in the emergency room by emergency room personnel and then taken to the hospital. The registered nurses in the operating room are hospital nurses no matter whether the patient comes from the emergency room or from the hospital. Emergency room personnel, including nursing personnel, may accompany a patient from the emergency room to the hospital and then return to the emergency room, however, there is no showing that there is any interchange of registered nurses between the emer- gency room and the hospital at the Bellflower medical service facility. Wagner testified that registered nurses in the hospital, clinics, and the emergency room all make assessments and judgments, but that the emergency room nurse is in a more demanding position as her decision-making must he done in many cases under pressure of time. She further testified that the duties of clinic nurses lend to be more specialized than the duties of emergency room nurses, and that emergen- cy room nurses have skills more comparable to those of hospital nurses who work in specialized training units such as intensive care or coronary care units. e In view of the above, we find no merit in the Lmployer's contention that Case 31 -RC-2563, 209 NLRB 27, issued simultaneously herewith. should be transferred to Region 21 and consolidated with the present proceeding. Accordingly, we hereby deny the Employer's motion to transfer 109 On the above facts, we find that, while the Bellflower emergency room must, in certain respects, coordinate its operations with those of the hospital, it must also coordinate its operations with those of the Bellflower clinics. As Doctor Haug testified, the emergency room functions as an adjacent clinic to other Bellflower clinics. Like the clinics, the emer- gency room is under separate supervision, and there is no interchange of registered nurses between the hospital and the emergency room. We find that the differences in skills and duties of emergency room and clinic nurses are too insubstantial to affect their unit placement. We find, therefore, that the Bellflow- er emergency room registered nurses have sufficient community of interest with the nurses employed in the Bellflower clinic complex to be included in the same bargaining unit.; Accordingly, for the reasons enumerated above, we find that the following employees of the Employer constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All registered nurses employed by the Employer at the Bellflower clinic complex at Bellflower, Huntington Park, Garden Grove, Orange, Nor- walk, and Cerritos, California, including emer- gency room registered nurses employed at the Bellflower medical center, and excluding all other employees, guards, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] and consolidate proceeding We further deny the Petitioner's request that the Employer's second supplemental brief and accompaning papers be returned to the Fmployer