Kaiser Foundation Hospitals

KAISER FOUNDATION HOSPITALS Kaiser Foundation Hospitals and Local 5-A, Hospital and Institutional Employees, Division of Hotel, Restaurant Employees and Bartenders Union, Local Union 5, Petitioner. Case 37-RC-2047 July 21, 1975 DECISION ON REVIEW AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY On March 7, 1975, the Acting Regional Director for Region 20 issued a Decision and Direction of Election in the above-entitled proceeding in which he found appropriate a unit of all regular full-time and part-time professional employees employed by the Employer at its facilities on the islands of Oahu and Maui. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a request for review of the Acting Regional Director's decision on the ground that a substantial question of law and policy is raised because of the absence of officially reported Board precedent. On April 3, 1975, by telegraphic order, the request for review was granted and the election was stayed pending a Decision on Review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review and makes the following findings: The Employer is a nonprofit corporation which provides comprehensive medical care to all Kaiser Foundation Health Plan members. It is one of the four entities which comprise the Kaiser Foundation Medical Care Program which operates in six autono- mous geographic regions, including Hawaii. The Em- ployer operates a medical center in Honolulu, which is both an inpatient and outpatient facility, five other outpatient clinics on the island of Oahu, and two out- patient clinics on the island of Maui. In its petition, the Petitioner requested a unit of pharmacists on the island of Oahu. However, at the hearing it stated that, in the event that the Board did not find appropriate the unit specifically sought, Pe- titioner was willing to accept any other groups in- cluded in the appropriate unit. The Acting Regional Director found appropriate a unit of pharmacists on the islands of Oahu and Maui. The Employer con- tends that a unit of pharmacists is too narrow and that the appropriate unit must include all remaining 325 unrepresented professionals,' specifically, pharma- cists, medical technologists, physical therapists, and medical and psychiatric social workers. The Employer employs approximately 800 em- ployees, of whom slightly more than 600 are repre- sented by collective-bargaining organizations. In ad- dition to the Hawaiian Nurses Association, which represents approximately 160 RN's, the International Longshoremen's and Warehousemen's Union, Local 142, represents approximately 20 x-ray technicians and radioisotope technicians and Petitioner currently represents over 400 employees covered by a wide range of classifications, including LPN's, hospital aides, clinic assistants, orderlies, and housekeeping, dietary, and clerical employees. Of the 11 pharmacists in the unit sought, 6 are employed at the medical center on Oahu and a total of 4 pharmacists are employed at the 3 other outpa- tient clinics on the island of Oahu. There is one phar- macist employed on the island of Maui. Since over half of the members of the Foundation have some type of prepaid drug benefits, they can go to the Employer's pharmacy and get a prescription filled less expensively than if they went to a pharmacy not affiliated with the Employer. The pharmacists are su- pervised by a head pharmacist who reports to the hospital administrator. If a patient is an inpatient, the prescription will be part of the doctor' s general orders, in which case the nurses will order from the pharmacy and the pharmacy will supply the medica- tion to the nurses working on the floor. The Health Plan contract provides that drugs will be supplied to inpatients at no cost. The Regional Director found that the pharmacists constitute a functionally distinct, identifiable, homo- geneous group sharing a community of interest sepa- rate from other hospital personnel and therefore comprise an appropriate unit since the pharmacists are physically isolated from other employees, have virtually no contact or interchange with other em- ployees, have separate immediate supervision, and cannot interchange or substitute for other employees since they have very specific training. However, based upon the foregoing facts, we con- clude that an appropriate unit including pharmacists must additionally include all other nonrepresented professional employees of the Employer in Hawaii. In considering the composition of appropriate bar- gaining units in the health care industry, we must take into account the expressed desire of Congress 1 With respect to nurse anesthetists, the Employer stated at the hearing that it would not take a "firm position" because the nurse anesthetists are basically registered nurses who take additional training. Nurse anesthetists are not represented by the Hawaiian Nurses Association which presently represents the registered nurses. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Board avoid undue proliferation of the num- ber of bargaining units. In finding that this unit limit- ed to pharmacists is not appropriate, we are not un- mindful of the differences noted by the Acting Re- gional Director. However, as we stated in Mercy Hos- pitals of Sacramento, Inc., 217 NLRB No. 131 (1975), "Thus, although there is a diversity of skills between each of these professional groups, their skills, inter- ests, and working conditions are, in many respects, no more diverse than those of employees in a pro- duction and maintenance unit in the industrial sphere or in the overall service and maintenance unit in the health care industry. Despite these differences, we note that all of the employees here under consid- eration possess a commonality of professionalism which sets them apart from other employees in the Employer's operations." Clearly, such "commonality of professionalism" exists herein. In particular, the job descriptions and job analysis questionnaires re- veal that each of the alleged professionals is required to have a college education, and an internship and certification are frequently required. Although it is obvious that each of the professional employees, herein, has a different job function and limited con- tact with the other professionals, we find that the professional employees basically share a community of interest because they are basically the same type of employee, viz, professionals who have undergone the same type of academic training, receive compara- ble wages (particularly in comparison to the other employees), and usually work a 40-hour week, most often during the day. These professional employees constitute a readily identifiable unit. Although the pharmacists obviously share a greater community of interest with each other than they do with the other professional employees, we do not consider that they possess interests evidencing community of interest with each other separate from that shared with the other employees in the health care industry. These 11 pharmacists are employed at 5 different locations and have no reason to deal with each other except on occasional circumstances. Moreover, the record does not indicate that pharmacists possess the history of separate representation in collective bargaining that we found in Mercy Hospitals, supra, to be of the "greatest significance" in establishing the separate interests of registered nurses. Accordingly, for the aforementioned reasons and based on the record in the instant case, we conclude that a unit consisting of all professional employees,2 including physical thera- 2 Although the record indicates that the nurse anesthetists are profession- pists, dietitians, nutritionists, social workers-psychi- atric and medical, and medical technologists, is ap- propriate for the purposes of collective bargaining. Since Petitioner stated at the hearing that it desired to represent employees and any other groups that the Board finds must be included in the appropriate unit, we shall direct an election in the aforementioned unit. [Direction of Election omitted from publication.]3 MEMBER KENNEDY, concurring in part and dissenting in part: I concur in my colleagues' finding that a unit limit- ed to the pharmacists is inappropriate. I would find that a unit of all unrepresented professional employ- ees constitutes the appropriate unit. I disagree with my colleagues' exclusion of the unrepresented nurse anesthetists from the unit. If a certification issues in the unit found appropriate by my colleagues, the nurse anesthetists would be the only unrepresented professional employees. As such, under Board deci- sions they would then constitute an appropriate "re- sidual" unit.4 I find unacceptable a decision which denies separate representation to the unrepresented pharmacists but which may result in separate repre- sentation of unrepresented nurse anesthetists. The unit in which the election is directed is four times the size of the unit in which Petitioner made a sufficient showing of interest. For the reasons stated in my dissent in Mercy Hospitals of Sacramento, 217 NLRB No. 131 (1975), I would dismiss the petition rather than direct an election in a unit which is sub- stantially different in size and composition from that sought. Such dismissal should be without prejudice to the filing of a new petition when supported by an adequate showing of interest. Such dismissal would permit the filing of a petition or orderly intervention by any other labor organization having an interest in representing those employees not previously sought by the Petitioner but now included in the unit found appropriate. al employees, we shall not include them in this unit . They must possess a license as an RN as well as certification as a nurse anesthetist . They are required to possess I year of practical experience as an RN or RNA. As the Employer stated at the hearing, the nurse anesthetists are basically regis- tered nurses who take additional training. The Employer took no position as to the nurse anesthetists, but admitted that this classification was in doubt. We consider the nurse anesthetists to have a sufficient community of inter- est with the other RN's that we will not include them in the professional unit herein . They share a community of interest not only with the professional employees, but with the other RN's who are currently represented by the Hawaiian Nurses Association [Excelsior footnote omitted from publication.] See Weber Aircraft, Division of Walter Kidde & Company, 191 NLRB 10 (1971); Roston Corporation, 196 NLRB 467 (1972).