Kaiser Foundation Health Plan of Oregon

KAISER FOUNDATION HEALTH PLAN 409 Kaiser Foundation Health Plan of Oregon ' and Su- percargoes and Checkers Union Local 40, Interna- tional Longshoremen's and Warehousemen's Union, Petitioner. Case 36-RC-3455 June 30, 1976 DECISION ON REVIEW AND ORDER On May 2, 1975, the Regional Director for Region 19 issued a Decision and Direction of Election in the above-entitled proceeding, in which he found appro- priate the Petitioner's requested unit of pyschothera- pists employed at the Employer's mental health clinic in Portland, Oregon, rejecting the Employer's con- tention that the appropriate unit must encompass all professional employees employed at the Employer's other clinics and hospital in the metropolitan Port- land area. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision on the grounds, inter alia, that in making his unit determination he departed from pre- cedent and from the congressional mandate against proliferation of bargaining units in the health care industry. The Board, Member Fanning dissenting, by tele- graphic order dated June 2, 1975, granted the request for review with respect to the Regional Director's unit finding and stayed the election pending decision on review. Thereafter, the Employer and the Peti- tioner filed briefs on review. The Board has considered the entire record in this proceeding, including the briefs on review filed by both parties with respect to the issues under review, and makes the following findings:2 The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purpos- es of the Act to assert jurisdiction herein. The parties stipulated that the Employer is a nonprofit corpora- tion and health care service contractor operating health care facilities in the States of Oregon and Washington. The parties further stipulated that the Employer annually has a gross volume of business in excess of $100,000 and purchases and receives goods in excess of $50,000, directly from outside the State of Oregon. The Employer sells Kaiser Foundation health plans in the metropolitan Portland, Oregon, area; employs in excess of 1,700 employees; and contracts with Kaiser Foundation Hospital and Permanente Clinic, respectively, for the provision of hospital serv- ices and doctors' services. The hospital and medical services are performed at a 252-bed hospital known as Bess Kaiser Hospital and at 7 outpatient clinics, of which the mental health clinic is one. Outpatient psy- chotherapy is available only at the mental health clinic and inpatient mental treatment is available only at Woodland Park Hospital, a hospital with which the Employer contracts for inpatient mental confinement and treatment. The Petitioner seeks to represent a unit of all psy- chotherapists at the Employer's mental health clinic.' At the mental health clinic, the Employer employs five people who possess Ph.D.'s in either psychology or social work, two psychiatric social workers who possess masters' degrees in social work or a related area, and four mental health assistants who possess varying educational backgrounds but who must have at least a bachelor's degree .4 Also employed at the clinic are three psychiatrists (M.D.'s) who are actual- ly employed by Permanente Clinic. One of the psy- chiatrists is the director of the clinic and the parties stipulated that he was a supervisor and, of course, excluded from the unit. Likewise, the parties stipulat- ed that one of the Ph.D.'s who is the assistant direc- tor be excluded. The parties further stipulated that the two nonsupervisory psychiatrists also be exclud- ed from the unit. The only other employees at the clinic are the office manager and five or six clerical personnel. The mental health clinic occupies the top floor and part of the lower floor of an 8,000-square-foot build- ing. The remainder of the building is occupied by the Employer's Home Health Care Agency which con- sists of RN's, public health nurses, and physical ther- apists, all of whom visit the homes of health plan members who are ill. The duties of the psychotherapists (the Ph.D.'s, psychiatric social workers, and mental health assis- tants) begin with an analysis of the patient's psycho- logical situation after the first interview with him or her. This involves exploring the patient's problem and history, making a mental status evaluation, giv- ing tests, setting up a plan for therapy, and thereafter treating the patient. The therapy may include admin- istration of drugs which are prescribed by the M.D.'s, who also countersign patients' charts and discuss 3 The record does not disclose how far the mental health clinic is from Bess Kaiser Hospital , Woodland Park Hospital , or any of the other clinics Nor is it known how far any of the clinics are from each other or from the hospitals They are all, however, located in the metropolitan Portland area. The Employer did not always re uire a de ree for this osition and at q g p The Employer's name appears as amended at the hearing the time of the hearing one of the mental health assistants who had been 2 The Employer has requested oral argument This request is hereby de- employed prior to the institution of the bachelor's degree requirement was need as the record and the briefs adequately present the issues and the just completing his course of study for the degree The others all possess at positions of the parties least a bachelor's degree 225 NLRB No. 50 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cases with the therapists for 1 hour each week. Some- times the course of treatment includes group therapy, usually presided over by a Ph.D. and a mental health assistant, or an M.D. and a mental health assistant. The record also disclosed that the psychotherapists make their own decision as to when to discontinue a patient's treatment. The Ph.D's have more responsibilities than the psychiatric social workers or mental health assis- tants. In addition to psychotherapy duty as described above, the Ph.D.'s, along with the M.D.'s, perform hospital consultations at Bess Kaiser Hospital and Woodland Park Hospital and, in addition, respond to mental health emergencies at the hospital on a rotational basis. At the hospital, the Ph.D. checks the patient's chart, checks with the nursing staff about the patient's status, interviews the patient, determines what should be done, and thereafter makes a recom- mendation to the doctor. There have also been in- stances in which mental health assistants have done hospital consultations and on those occasions the mental health assistants have made independent de- terminations as to whether or not they should get a backup consultation from the clinic before making a recommendation to the doctor. The hours, pay, vacation, benefits, and other work- ing conditions are all centrally determined by the Employer's personnel department in Portland. The director of the mental health clinic reports to the di- rector of internal medicine at the hospital. The extent of control over the clinic by the director of internal medicine is unclear, but hiring of the psychothera- pists is locally consummated, with the clinic director making the hiring decision after an applicant has been screened by one of the psychotherapists and then interviewed and voted upon by the entire staff. While the psychotherapists at the mental health clinic are hired locally, their personnel records are centrally maintained and, as with all other employees of the Employer, they receive an employee hand- book. Supplies used by the mental health clinic are also centrally located. There is no history of collective bargaining among the employees sought herein. The Employer does not employ any psychothera- pists at its other clinics or the hospital. At several other clinic locations, however, the Employer em- ploys a category of employees termed "medical so- cial worker." The medical social workers counsel people concerning marital problems and child behav- ior, although they do not test people or recommend drugs. The record did disclose, however, that there is a "fine line between what is done by the medical social workers and the psychotherapy performed at the mental health clinic." While the educational re- quirements for the medical social worker position were not elicited, it was disclosed that one of the medical social workers had a Ph.D. in psychology. Finally, the record also disclosed that the Employ- er employs numerous other categories of professional personnel at its various clinics and at the hospital.' After consideration of the above facts, we con- clude that a bargaining unit limited to the profession- als at a single clinic of the Employer's seven clinics and hospital in the metropolitan Portland area would be inappropriate. Employee records are centrally maintained and the operation of the mental health clinic is highly integrated with the operation of the Employer's overall health facilities in the metropoli- tan area. The clinic represents the only location where psychotherapy treatment may be obtained, and, therefore, patients from all clinics are referred to the mental health clinic for such treatment. Addi- tionally, at least some of the psychotherapists per- form work at locations other than the mental health clinic. Further, there are other employees performing similar work at several other clinic locations. Most importantly, however, the creation of a unit of psy- chotherapists would leave most of the Employer's re- maining professional employees unrepresented. Our dissenting colleagues would find the unit of psychotherapists sought herein to be appropriate. They would do so on the basis that the psychothera- pists possess a separate and distinct community of interest from other employees at other locations of the Employer, or on the basis that the psychothera- pists constitute all of the professional employees at the single clinic involved herein. In either case, our dissenting colleagues' position would constitute a de- parture from Kaiser Foundation Hospitals, Inc., 219 NLRB 325 (1975). In that case, the employer operat- ed a medical center in Honolulu, five outpatient clin- ics on the island of Oahu, and two outpatient clinics on the island of Maui. The petitioning union, howev- er, requested a unit limited to the pharmacists on the island of Oahu. The Acting Regional Director reject- ed this request and determined that a unit consisting of the pharmacists on the islands of Oahu and Maui was appropriate. The Board thereafter found that even the unit recommended by the Acting Regional Director was too narrow because it failed to encom- pass all of the employees who performed similar job functions and who therefore shared a mutual interest in working conditions. The appropriate unit was found to consist of all professional employees of the employer, including physical therapists, dieticians, 5 We agree with the conclusion of the Regional Director that the psy- chotherapists at the mental health clinic are professional employees within the meaning of the Act KAISER FOUNDATION HEALTH PLAN 411 nutritionists, social workers psychiatric and medical (emphasis supplied), and medical technologists. On the basis of the evidence outlined above, the very considerations which prompted us to reject the limited unit in Kaiser Foundation Hospitals, Inc., su- pra, prompt us to reject the limited unit sought here. The psychotherapists do not possess a community of interest separate from that shared by other profes- sionals such as the medical social workers.' We find inapposite the cases cited by the dissent. In the prior case involving this Employer,' we found appropriate a unit of RN's at all the clinics in which RN's were employed. Unlike the psychotherapists, however, the RN's possess a special history of sepa- rate representation warranting a separate unit where sought. Mercy Hospitals of Sacramento, Inc., 217 NLRB 765 (1975). With the exception of Saint Anthony Center, 220 NLRB 1009 (1975), the other cases cited by the dis- sent were issued prior to our lead cases under the health care amendments to the Act, wherein we rec- ognized the congressional mandate to avoid undue proliferation of bargaining units in the health care industry. In Saint Anthony Center, supra, a unit of nonprofessional employees was found appropriate at one of two facilities in the Houston, Texas, area.' The Employer had urged that a unit encompassing at least the two Houston facilities be found appropriate. In granting the single-location unit, the Board noted the high degree of autonomy at that location, includ- ing, for example, its own personnel manual and its own policies regarding wages and benefits. None of these conditions exist here. We have considered the fact which our dissenting colleagues rely upon, i.e., that the psychotherapists comprise the entire complement of professionals at the mental health clinic.' However, we see no reason why this dictates a single-location unit finding, in view of the centralized control of labor relations, the psychotherapists' relationships with other profession- als at the hospital, and particularly the fact that the requested "psychotherapists" include "social work- ers" and "mental health assistants" whose duties are 6 We note that our dissenting colleagues seek to differentiate between the duties of the psychotherapists and the medical social workers The record clearly indicates that there is a "fine line" between their duties, as we have set forth 7 Kaiser Foundation Health Plan of Oregon, Case 36-RC-3487 (Member Penello dissenting) (not reported in Board volumes) ' It is precisely because of this history of separate representation for RN's that we reject our dissenting colleagues' contention that the prior Kaiser case is authority for finding a single-location unit approprate In our view, the absence of such a bargaining history here, when combined with the congressional admonition against unit proliferation, convinces us that the sin le-location unit requested is inappropriate The facility found appropriate was a nursing home and geriatric care center, one of 14 health care facilities owned by the Order of Sisters of Charity of the Incarnate Word in the States of Texas, Arkansas, California, Louisiana, and Utah close to those of the "medical social workers" em- ployed at other clinics. As we have found the requested unit herein inap- propriate, and as the Petitioner has not indicated its desire to proceed to an election in a broader unit, we shall dismiss its petition. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. MEMBERS FANNING and JENKINS, dissenting: We disagree with the finding of our colleagues that the Regional Director erred in finding appropriate the unit of psychotherapists employed at the mental health clinic. The record demonstrates that these psy- chotherapists possess a sufficient community of in- terest in and amongst themselves, apart from the other professional employees at the Employer's other facilities, to warrant the establishment of a separate unit. Accordingly, in agreement with the Regional Director, we would direct an election in the unit sought. Of paramount importance is a fact to which our colleagues accord little, if any, weight: viz, the psy- chotherapists comprise the entire complement of professionals at the mental health clinic.10 Since there are absolutely no other employees at the mental health clinic who could possibly be included in the unit sought," the only issue, in reality, separating our position from that of our colleagues concerns the scope of the unit, i.e., whether all other professional employees at all other clinics (at an undetermined distance from the mental health clinic) must be com- bined with the unit sought for it to constitute an ap- propriate unit.12 Since our colleagues do not agree with the Regional Director that the unit of psycho- 10 Thus , unlike the petitioners in, e g, Kaiser Foundation Hospitals, Inc, 219 NLRB 325 (1975), Beth Israel Hospital and Geriatrics Center, 219 NLRB 520 (1975), or Mercy Hospitals of Sacremento, Inc, 217 NLRB 765 (1975), Petitioner is not seeking to "carve out" one type of professional from a large multiprofessional unit, but is actually seeking to combine all eligible profes- sionals (the Ph D's, psychiatric social workers, and mental health assistants) under their penumbra of "psychotherapists" 11 All other personnel employed at the mental health clinic who could possibly be termed professionals have been stipulated by the parties not to be employees Accordingly, in addition to the psychotherapists, the only other employees at the mental health clinic are the office manager and five or six clerical personnel Clearly, the Board could not require their inclusion in a unit with the psychotherapists since Sec 9(b) provides in part "that the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit " 12 Of course, there is nothing in the statute which requires that the unit for bargaining be the only appropriate unit, or the ultimate unit, or the most appropriate unit, the Act requires only that unit be "appropriate," that is, appropriate to insure to employees in each case "the fullest freedom in exercising the rights guaranteed by this Act " Morand Brothers Beverage Co, et al , 91 NLRB 409 (1950), enfd 190 F 2d 576 (C A 7, 1951) 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therapists at the mental health clinic is appropriate, and since there are no other professionals who could be added to the unit at the mental health clinic, per- force their rejection of the unit must be based not upon its composition but upon its scope. According- ly, it is necessary for us to apply our traditional stan- dards in determining whether a single unit limited to the mental health clinic is inappropriate unless it is combined with other clinics, the hospital, or all of the Employer's facilities.13 We believe that such an appli- cation readily demonstrates the appropriateness of the unit sought. The mental health clinic is geographically isolated and functionally distinct from the Employer's other facilities. Located at the mental health clinic are the partners in the Permanente Clinic, Dr. Wesche and Dr. Gregory. Dr. Wesche is the director of the clinic and responsible for day-to-day supervision. Dr. Abrams is assistant director and operates as director in the absence of Dr. Wesche. Psychotherapy is per- formed only at the mental health clinic and, as stated by the majority, the clinic alone hires the psychother- apists. The clinic director makes the hiring decision after an applicant has been screened by one of the psychotherapists and then interviewed and voted upon by the entire staff. Moreover, Dr. Wesche maintains files regarding the various personnel who work at the mental health clinic. As more fully expli- cated in the majority opinion, psychotherapists close- ly interact with each other to the extent that they even coparticipate in teams whenever group counsel- ing is involved. There is absolutely no interchange of duties or per- sonnel between the psychotherapists at the mental health clinic and any other professional at any facili- ty of the Employer." There is absolutely no contact between the psychotherapists at the mental health clinic and any other professional at the other clinics, and any contact with the hospital is extremely limit- ed. 15 In rejecting the finding of the Regional Director that a unit of psychotherapists at the mental health clinic is appropriate, our colleagues assert that our position constitutes a departure from Kaiser Founda- tion Hospitals, Inc. (supra, fn. 1 of the dissent), where the Board held that a unit limited to pharmacists was 13 Since our colleagues have failed to suggest an alternative unit which they deem appropriate, I can assume only that it would be broader than the unit sought 14 Although our colleagues find a "fine line" between psychotherapy and the functions of the medical social worker, the medical social workers are involved with counseling on marital, child care , and other problems and have no contact, whatsoever, with the psychotherapists and, unlike the psy- chotherapists, do not give "batteries" of psychological tests recommend medications, or ever handle emergencies 15 The Ph D's are "on call" every eighth week to handle emergencies at the hospital not appropriate. This argument, however, ignores our threshold statement that "[o]f paramount importance is a fact to which our colleagues accord little, if any, weight: viz, the psychotherapists comprise the entire complement of professionals at the mental health clinic." In that case, the pharmacists were not all concentrated at one location," nor was there evi- dence that the pharmacists (working in five different locations) enjoyed different conditions of employ- ment from those of other professional employees at each location 11 or that the pharmacists enjoyed a community of interest sufficiently distinct from that of the other professional employees to justify a sepa- rate unit. In that case, unlike the instant case, the Board was not concerned with a unit scope issue where all of the professional employees of one cate- gory, but no other professional employees, were em- ployed at one location. In our opinion that case in- volved an attempt by the Petitioner to "carve out" a segment of professionals from a larger professional unit. As more fully explicated above, such is not the case herein. Most worthy of careful consideration is the denial by the Board of a request for review filed in Kaiser Foundation Health Plan of Oregon, Case 36- RC-3487 (Member Penello dissenting). Therein, the Board rejected the contentions of the same employer as involved herein, that a unit of registered nurses was appropriate only if it included nurses at all the clinics and the hospital.18 In finding that a unit ex- cluding the hospital nurses was appropriate and re- jecting the Employer's assertion that only an employ- erwide unit could be appropriate, the Assistant Regional Director based his decision, in part, upon separate supervision, geographic separation, outpa- tient vs. inpatient functions, and minimal employee contact.19 The same factors are involved herein and the appropriateness of a single location unit is en- hanced since the unit sought consists of the entire professional employee complement at the clinic and since psychotherapists are not employed at any other facility. The Board also found a less-than-employer- wide unit in Southern California Permanente Medical Group, 209 NLRB 106 (1974), noting inter alia, sepa- rate supervision, little or no interchange or contact, 16 The I I pharmacists were employed at 5 different locations and dealt with each other only on an occasional basis 17 Indeed, it is probable that other professional employees were employed at these locations since, e g, a total of four pharmacists were employed at the three outpatient clinics on the island of Oahu and only one pharmacist was employed on the island of Maui IR Of course , this case did not directly involve the mental health clinics since there were , and are, no RN's employed at this clinic 19 In distinguishing this previous case concerning this Employer , the ma- jority confuses the issue of unit scope with the issue of unit composition We do not cite this case as evidence that psychotherapists merit a separate unit due to their special history, but as evidence that a less -than-employerwide unit is appropriate at the Kaiser Foundation Health Plan of Oregon In our opinion, this case is significant precedent for a finding that the single-loca- tion unit sought here is appropriate KAISER FOUNDATION HEALTH PLAN no collective-bargaining history, the clinic adminis- trator was responsibile for day-to-day operations of the clinic complex, and clinic complex supervisors could hire, fire, grant leaves of absence, etc. In Clover Fork Medical Services, Inc., 200 NLRB 291 (1972), the Board found appropriate a unit limited to one of the employer's three clinics, despite the central ad- ministration. Therein, the clinics were geographically separated, had separate supervision, and had no in- terchange or history of collective bargaining. In Saint Anthony Center, 220 NLRB 1009 (1975), the Board found appropriate a unit limited to one of the employer's 14 health care facilities, stating, "It has been the Board's position that a single-facility unit is presumed to be appropriate where, as here, there is 413 no bargaining history in a more comprehensive unit and the degree of functional integration with the other facilities is insufficient to negate the separate identity of the facility which the union seeks to repre- sent." Therein, the Board found that the centralized control over certain administrative and financial matters affecting all the health care centers was in- sufficient to obliterate the separate identity of the unit sought. In view of the above, and particularly in light of the circumstance that psychotherapists comprise the entire professional employee complement at the mental health clinic and no psychotherapist is em- ployed at any other facility, we would direct an elec- tion in the unit sought.