Kaiser Foundation Hospitals

KAISER FOUNDATION HOSPITALS 949 Kaiser Foundation Hospitals, The Permanente Medi- cal Group, Kaiser Foundation Health Plan, Perma- nente Services, Inc. and California Licensed Voca- tional Nurses Association, Inc., Petitioner. Case 20-RC- 10243 May 28, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a petition filed under Section 9(c) of the National Labor Relations Act, as amended, and pursuant to an order of this Board dated August 23, 1973, a hearing was held on October 10 and 12, November 8 and 9, December 5 and 6, 1973, and January 8, 1974, before Hearing Officers Paula J. Paley and Stephen H. Booth of the National Labor Relations Board. Following the hearing and pursuant to Section 102.67 of the Board's Rules and Regula- tions and Statements of Procedure, Series 8, as amended, the Regional Director for Region 20 transferred the case to the Board for decision. Thereafter, the Employer, the Petitioner, and the Intervenors each filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officers' rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: 1. The Employers named in the petition herein are a group of several employers, all having various locations in northern California but all sharing interrelationships with one another. The Employers are Kaiser Foundation Hospitals, The Permanente Medical Group, Permanente Services, Inc., and Kaiser Foundation Health Flan. Under contract with Kaiser Foundation Health Plan, a nonprofit corpora- tion, The Permanente Medical Group, a profit- making partnership of doctors, provides medical services to members and nonmembers of the Health Plan. The medical services are provided at 11 Kaiser Foundation Hospital locations in northern Califor- nia, where The Permanente Medical Group also uses office space, and at 3 clinic locations not attached to a hospital. Kaiser Foundation Hospitals, a nonprofit corporation, provides hospital services to both members and nonmembers of the Health Plan. Finally, Permanente Services, Inc., a profit-making corporation, provides various administrative and pharmacy services to the Health Plan, Kaiser Foundation Hospitals, and The Permanente Medical Group. The Petitioner contends that jurisdiction should be asserted over all four entities. It claims that by virtue of the close association with and benefits derived from The Permanente Medical Group, Kaiser Foundation Hospitals must lose the exemption provided by Section 2(2) of the Act to nonprofit hospitals. The Employer, on the other hand, asserts that because of the close association among the entities, and with members of the unit sought working for both a nonprofit entity (Kaiser Founda- tion Hospitals) and a profit-making entity (Perma- nente Medical Group), the Section 2(2) exemption should be extended to the profit-making entity. In the alternative, the Employer suggests that jurisdic- tion should be asserted over all the entities. The Intervenor did not take a position with regard to jurisdiction. We disagree with the various positions expressed regarding jurisdiction of the Board in this proceed- ing. We find that the nonprofit Kaiser Foundation Hospitals and the related nonprofit Kaiser Founda- tion Health Plan fall within the exemption granted by Section 2(2) of the Act. We also find that Permanente Services, Inc., which is not exempted by Section 2(2), does not employ any employees within the purview of the petition herein. We therefore dismiss the petition as to those latter three entities. With respect to The Permanente Medical Group, however, which employs licensed vocational nurses, sought herein, we find no merit in the contention that it is a joint-employer with Kaiser Foundation Hospitals.2 It is therefore not entitled to an exemp- tion from our jurisdiction under Section 2(2) of the Act. Accordingly, as the record indicates that The Permanente Medical Group (hereinafter the Employ- er or Permanente) satisfies our jurisdictional stand- ards, and, as noted, is not exempt from our jurisdiction, we find that it is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. 2. We find that the Petitioner and the Intervenor are labor organizations within the meaning of the Act who claim to represent certain employees of the Employer. 3. No question affecting commerce exists con- I Hospital and Institutional Workers Union, Local 250, Service Employ- petitioned for herein ces International Union, AFL-CIO, intervened based on its existing 2 See Southern California Permanente Medical Group, 209 NLRB No 26 collective-bargaining contract with the Employer covering the employees 210 NLRB No. 142 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerning the representation of the employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act, for the following reasons: The Petitioner seeks to sever Permanente's licensed vocational nurses (LVN's) from an existing unit consisting of nursing personnel (but not registered nurses), various technical personnel , clerical person- nel, and maintenance and service personnel.3 The existing unit has been represented by the Intervenor for 20 years and is currently represented under a master collective-bargaining agreement between the Intervenor and various entities , including Perma- nente. The Employer is also signatory to seven other collective-bargaining agreements. The Petitioner seeks severance on the basis that the LVN's are professional employees or, in the alterna- tive, a craft entitled to a separate unit . The Employer contends, however , as does the Intervenor, that the existing unit is the appropriate unit. The Intervenor additionally notes that to allow severance of the LVN's would unduly fragmentize a well-defined collective-bargaining unit which actually functions as a unit and would ignore a long history of collective bargaining by Intervenor in behalf of the existing unit. The record discloses that Permanente employs 235 LVN's, 500 registered nurses, and 85 nurse attend- ants among its total of 4,620 employees. The record also discloses, and the parties agree , that the position of LVN has evolved from a simple to a more complex position in terms of what is expected of an LVN. At present an LVN may lawfully administer medications by hypodermic injection, may withdraw blood for the purpose of testing if competence in this procedure has been displayed, and test a motorist allegedly under the influence of alcohol . Authoriza- tion to perform these procedures represent liberal- ized changes in the California law governing LVN's. At the same time, educational requirements for LVN's have been increased. An applicant for an LVN license ( 1) must have completed a course of study through the 10th grade, (2) must have completed the prescribed course of study in an accredited vocational nursing school, which takes from 12 to 18 months , and (3) must pass an examination . Two exceptions are granted by the governing statute for the educational requirements. The first allows a person possessing either the education or the experience, or a combination thereof, equivalent to that acquired in a vocational nursing school , to be licensed upon successful completion of the examination . The second excep- tion allows a person who has served as a medic in the armed forces with no less than 12 months of rendering patient care to be licensed upon passing the examination. The Petitioner cites the increased requirements for licensing and the general evolution of the LVN in support of its assertion that they are professional employees within the meaning of the Act or, in the alternative, practitioners of a craft, but in any event entitled to a severance election. The Petitioner also cites in support of its position several cases in which licensed practical nurses were found to have a community of interest separate and apart from that shared by other employees.4 We note, however, that those cases did not involve a severance from an existing unit. In that respect, they are distinguishable from the facts herein. The Petitioner further relies on a shifting nursing care concept from team nursing to total patient care to demonstrate a need for separate LVN representa- tion. Under the team nursing concept, the registered nurse gives orders to the LVN, who in turn directs an aide in the execution of tasks. Under total patient care an LVN is more involved in treatment than under team nursing. The extent to which Permanente employs the two nursing care concepts is unclear. It is clear, however, that both concepts require coordi- nation and teamwork in the nursing department. Without an integrated process in that department, a patient could not receive adequate care. The Peti- tioner maintains, however, that under total patient care an LVN functions very much like an RN, with the caveat that LVN's may not start intravenous feedings. The Petitioner contends that the LVN's deserve separate representation from the other employees in the unit. We disagree with the Petitioner's contentions. First, we are not persuaded that the LVN's herein are professional employees within the meaning of the Act. A portion of Section 2(12) of the Act requires that a professional employee be engaged in work which involves the consistent exercise of discretion and judgment in its performance. While it is clear that LVN's perform nursing functions such as administering treatments, charting patients, and monitoring their condition, it is also clear that they perform tasks such as transporting patients, light housekeeping, and other tasks similar to those performed by nurses aides. Secondly, with respect to the craft status of the LVN's, we note that the LVN's have been represent- ed by the Intervenor in the existing unit for more than 20 years. There is no substantial evidence to 3 This represents Petitioner's alternatively requested unit. Petitioner's Hospitals, and Permanente Services. Inc. first request was for severance of a unit of LVN's employed not only by + Madeira Nursing Center, Inc, 203 NLRB No. 42 , and Exiendicare of Permanente but also by Kaiser Foundation Health Plan, Kaiser Foundation West Virginia, Inc, d/b/a St. Luke's Hospital, 203 NLRB No. 170. KAISER FOUNDATION HOSPITALS 951 indicate that their bargaining interests have been neglected during this period of representation in the broader unit. In Mallinckrodt Chemical Works,5 we indicated that craft severance petitions would be weighted on a case-by-case basis in terms of all relevant factors. These included, among others, the bargaining history of the employees sought, and the degree of integra- tion, including the extent to which the continued operation of an employer's processes is dependent upon the performance of the assigned functions of the employees in the proposed unit. We have already noted the lengthy bargaining history of 20 years' duration between the Intervenor and Permanente in the broader unit. We have also noted the degree of teamwork required in the nursing department. Upon reviewing all the facts, we conclude that it would not effectuate the purposes of the Act to allow a fragmentation of the existing unit as sought herein. We, therefore, find that it would not be appropriate to sever the LVN's from the existing unit, and, accordingly, we shall dismiss the petition as to The Permanente Medical Group on that basis. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. 5 162 NLRB 387