Family Doctor Medical Group,

118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Family Doctor Medical Group, a Professional Corpo- ration ' and Retail Store Employees Union, Local 373, Retail Clerks International Association, AFL- CIO, Petitioner. Case 20-RC-13010 September 23, 1976 DECISION AND DIRECTION OF ELECTIONS- BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Edward S. Kaplan. Following the hearing and pursuant to Sec- tion 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Acting Regional Director for Region 20 issued an order transferring this case to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs in support of their re- spective positions, and briefs amtci curiae were filed by the American Medical Association and the Amer- ican Group Practice Association. 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 reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case,' the Board finds: 1. The Employer is a California corporation which, through the services of 14 affiliated physi- cians, engages in the practice of medicine on an out- patient basis at facilities located in Vallejo and Crockett, California. The affiliated physicians, six of whom constitute the Employer corporation's board of directors, are paid salaries for their services. Over the course of some 70,000 medical visits made to the Employer's facilities per annum, treatment is dis- pensed to approximately 14,000 patients, all but 300 of whom are California residents. During the 12-month period ending June 30, 1975, the Employer's gross revenues were in excess of $2 million, of which $214,616 was derived from Medi- care, $328,580 from Medi-Cal, $225,768 from Medi- care-Medi-Cal crossover payments (approximately 70 percent of which comes from Federal Medicare i The name of the Employer appears as amended at the hearing 2 The Employer requested oral argument This request is hereby denied as the record and the briefs adequately present the issues and positions of the parties funds), $5,184 from Federal payments for treatment of injured employees at a government-operated facil- ity, and $4,000 from CHAMPUS, a Federal agency which makes payments on behalf of military depen- dents.' During the same period, the Employer pur- chased supplies and services valued at approximately $16,000 from out-of-state companies. Purchases from California-based suppliers and the California branches of national corporations approximated $377,000, but there was no record evidence regarding the source of the goods and materials involved in such transactions. Payments of about $61,000 were made to 11 insurance companies as premiums for various policies covering the Employer and its em- ployees, 45 percent of which were for malpractice coverage. The Employer claims that the Board should not assert jurisdiction herein because it is engaged in the private practice of medicine on a largely local basis. However, as set forth in Bio-Medical Applications of San Diego, Inc., 216 NLRB 631 (1975), we view Sec- tion 2(14) of the Act 4 as extending the jurisdiction of the Board to all health care institutions even though they may be local in character. Here, the Employer's $2 million gross annual revenues (which far exceed the $250,000 jurisdictional standard established for health care facilities other than nursing homes and visiting nurse services),' its annual receipt of approxi- mately $380,000 derived from Federal funds, and its $16,000 direct inflow of goods and supplies ade- quately demonstrate to us a substantial impact on interstate commerce. Based upon the above evidence, we find that the Employer is a health care institution within the meaning of Section 2(14) of the Act, that the impact of its operations on commerce is sufficient to warrant assertion of jurisdiction, and that it will effectuate the policies of the Act to do so. The Private Medical Group of New Rochelle, 218 NLRB 1315 (1975).6 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employe: within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. In its petition, as amended at the hearing, the Petitioner seeks a single unit encompassing all em- ployees of the Employer' at both its Vallejo and Crockett locations, including service and mainte- 3In addition, the Employer also received substantial sums from Blue Cross, Blue Shield, and other health insurance companies Figures for the identical period were not furnished, but during the year ending December 1974, a total of $277,155 was derived from such sources 4 Public Law 93-360, July 26, 1974 5 East Oakland Community Health Alliance, Inc, 218 NLRB 1270 (1975) 6 See also Jack L Williams, DDS, 219 NLRB 1045 (1975) 7 Hereinafter, also referred to as the Group 226 NLRB No. 22 FAMILY DOCTOR MEDICAL GROUP nance, technical, professional, and business office clerical employees. The parties stipulated that the Group's registered nurses, laboratory technologists, and dietician are professional employees within the meaning of Section 2(12) of the Act. Accordingly, Petitioner requests that such professionals, taken to- gether-as a single separate voting group, bepermitted to vote on the question of their inclusion within. a unit of the nonprofessional employees, as well as on the question of whether they-desire to be represented by the Union. The Petitioner also expressed a will- ingness to participate in an election in any unit or units the Board finds appropriate. The Employer contends that the Petitioner's unit request is too broad and that, at minimum, the Board should find appropriate five separate bargaining units, namely: _(1) a service and maintenance unit, including technical employees and licensed vocation- al nurses, but confined to its Vallejo facility, (2) a unit confined to its-two Crockett employees-a med- ical assistant and a doctor's receptionist, (3) a busi- ness office clerical unit, (4) a registered nurses' unit, excluding other professional employees, and (5) a professional employee unit (two laboratory technolo- gists--and= a dietician), excluding registered nurses. There is no history of collective bargaining involving the Group's employees and no union seeks to repre- sent them in units less broad in scope than that re- quested by the Petitioner. The Group's principal facility is at Vallejo where all 14 physicians and all but"2, of approximately 70, employees work. Each-physician is assigned his own office and examination rooms, and is assisted therein by a nurse and a doctor's receptionist. In most cases, two physicians occupy a single suite, with common reception area, and share the services of one recep- tionist. A separate nurse (either registered nurse or licensed vocational nurse) is assigned,to each physi- cian and, in some cases, additional help is provided by a nurse's aide. Also employed at Vallejo are labo- ratory, central supply, maintenance, medical records, and various types of business office clerical employ- ees. Overall day-to-day responsibility for all aspects of the Employer's operations, including labor rela- tions, rests with the Group's administrator who, in turn, is ultimately responsible to the physicians who constitute the corporation's board of directors. The Crockett Facility In addition to its main facility, the Employer also maintains a small office in Crockett-some 5 to 10 miles distant from Vallejo-for the convenience of Crockett patients who wish to avoid paying,the toll required for use of the bridge connecting the two ar- 119 eas. Dr. Brown, a physician who otherwise practices medicine at Vallejo, sees patients at Crockett four afternoons each week.-He is assisted there by a full- time doctor's receptionist and by a part-time medical assistant 8 who appears to keep roughly the same working hours at Crockett as does Dr. Brown. The two Crockett employees are supervised only by Dr. Brown who also has supervisory authority over a receptionist and nurse at Vallejo.' Dr. Brown's respective receptionists at Vallejo and Crockett re- place one another in event of absences caused by vacations or illness. Under similar circumstances, his Vallejo nurse substitutes for the Crockett medical as- sistant. While the medical- assistant has little or no contact with the Vallejo facility, the Crockett recep- tionist visits there on an almost daily basis for the purpose, of ordering or receiving supplies, forms, lab- oratory reports, and salary checks. The receptionist was initially employed at the Vallejo facility and later transferred to her_ present position. The medical as- sistant has never worked at Vallejo, but was initially hired for her Crockett job by the Vallejo-based -Em- ployer official who served as Group administrator at that time. All Crockett and Vallejo employees are subject to common personnel policies, including employee rules and regulations, labor relations, - grievance proce- dures, insurance -and other fringe benefit programs, merit review, and vacations. All have the same pay- day and are paid by checks prepared by the Vallejo office which also keeps custody of all personnel rec- ords regardless of. the workplace of the employees involved. In view of the above factors, we find that the record evidence of functional and operational integration between the, Group's Vallejo and Crock- ett facilities is sufficient to establish that a bargaining unit encompassing employees at both locations is ap- propriate for purposes of collective bargaining. Service and Maintenance Employees - In previous cases dealing with the health care in- dustry we have found bargaining units consisting of service and maintenance employees to be appropri- ate.10 Here, the parties agree that licensed vocational nurses and technical employees 11 should be included 8 The medical assistant aids Dr Brown by performing such duties as taking the blood pressure, temperature, weight, and medical histories of patients; administering inoculations; assisting with catheters; and making patient house calls She'i is not licensed or certified, but was trained for 3 years in her work by a physician 9 Dr Brown, an officer and stockholder of the Employer corporation, also serves as director of the Group's laboratory operations. 10 Nathan and Miriam Barnett Memorial Hospital Association d/b/a Bar- nert Memorial Hospital Center, 217 NLRB 775 (1975); Newington Children's Hospital, 217 NLRB 793 (1975) As neither party advocates either a separate unit for technical employ- Continued 120 DECISIONS •OF NATIONAL LABOR RELATIONS BOARD in the same unit along with the service and mainte- nance employees. We shall not disturb this grouping and, accordingly, find that it-constitutes an appropri- ate- bargaining unit herein.12 Business Office Clerical Employees As to the business office clerical employees, the Petitioner would include them in the same unit with the service and maintenance employees, while the Employer contends that they should be found to constitute a separate unit. For the reasons stated in Mercy Hospitals of Sacramento, Inc., 217 NLRB 765 (1975), and Sisters of St. Joseph of Peace, 217 NLRB 797 (1975), we find that the business office clericals share a community of interest separate and apart from other clerical employees in health care institu- tions whose work is more closely related to the func- tions performed by employees in the service and maintenance,unit, and that such business office cleri- cal employees are entitled to be represented in a sep- arate bargaining unit.13 Accordingly, we find that a unit consisting of, all business office clerical employ- ees, excluding all other employees, is appropriate for the purposes of collective bargaining and shall direct an election therein. 14 However, we find no merit in the Employer's con- tention that its medical records employees should be placed in the businesss office clerical unit, as opposed to placement with the service and maintenance em- ployees. Although they are engaged in clerical func- tions, they deal almost entirely with patients' medical records rather than with. the types of records kept by business office personnel. Further, the evidence shows that virtually all their work contacts, outside their own department, are with physicians, nurses, ees or their exclusion from the service and maintenance unit, we need not, and shall not, make any determination as to the technical-employee status of the Employer's laboratory, EKG, and cardiac technicians The parties agree that they are not professional employees. 12 Mount Airy Foundation, d/b/a Mount Airy Psychiatric Center, 217 NLRB 802 (1975). The parties agree that Maureen Baron, relief technician and relief recep- tionist in the laboratory, performs work sufficient in amount and frequency to be considered a regular part-time employee. Accordingly, she shall be included in the unit. 13 Meharry Medical College, 219 NLRB 488 (1975) The parties stipulated that the following business office clericals are su- pervisors within the meaning of Sec. 2(11) of the Act and they are, hereby, excluded from the unit. John Biedma, Dorothy Evans, Grace Hurbrace, and Frances Dugan It was further stipulated that Jeannine Coley, secretary to the Group administrator (who administers labor relations policies) is a confidential employee and, accordingly, she shall be excluded as well. 14 In the health care sphere, Member Walther would not compel the sepa- rate representation of business office clerical employees . Where, as here, no union seeks their exclusion, he would include them-as well as nonbusiness office clericals-in a service and maintenance unit For, he does not view their interests as being so divergent from those of the nonbusiness office clerical employees as to render inappropriate a bargaining unit which en- compasses both classifications together with other service and maintenance employees doctor's receptionists, and laboratory personnel. They do not appear to share any work relationships with business office clerical employees. Moreover, we note that there is one employee who is employed part time in medical records and part time as a nurse's aide in a physician's suite where she ^ works -with a licensed vocational nurse and a doctor's receptionist. In view of these facts, we conclude that- the func- tions, purposes, and community of interest of these employees are more closely related to those of em- ployees in the broader service and maintenance unit than to those of employees primarily performing business-oriented tasks.15 Accordingly, we shall in- clude the medical records employees in the service and maintenance unit. Professional Employees The parties stipulated that the Group's registered nurses, laboratory technologists, and dietician are professional employees -within - the meaning of Sec- tion 2(12) of the Act. However, there was dis- agreement as to their unit placement. The Petitioner requests a single separate voting group encompassing all professionals, including registered , nurses, which-depending upon its vote in a Sonotone-type 16 election-would either constitute a separate appro- priate bargaining unit or be included in the unit of nonprofessional service and maintenance employees. On the other hand, the Employer contends that two separate units should be created-one for the regis- tered nurses; and another for all professional em- ployees, excluding registered nurses. In previous cases we have held that units of the type advocated by the Employer are appropriate when they are so sought.17 Such units are not, howev- er, "so sought" in this case, and Dominican and Mer- cy did not establish that the units found therein were the only appropriate units for professional employ- ees. To the contrary, we find that while it may be appropriate 'to place registered nurses and other pro- fessionals ^ in units separate from one another, an overall unit of health care professionals-including registered nurses-also constitutes an appropriate bargaining unit.18 15 The Jewish Hospital Association of Cincinnati d/b/a Jewish Hospital of Cincinnati, 223 NLRB 614 (1976); William W Backus Hospital, 220 NLRB 414 (1975). 16 Sonotone Corporation, 90 NLRB 1236 (1950) 17 Dominican Santa Cruz Hospital, 218 NLRB 1211 (1975), Mercy Hospi- tals of Sacramento, Inc, supra Member Walther did not participate in these cases and does not, at this time, either adopt or reject the policy expressed therein vis-a-vis the scope of professional-employee bargaining units 18 The Act does not require that the unit for bargaining be the only appro- priate unit, or the most appropriate unit Rather, the Act requires only that the unit be "appropriate," that is, appropriate to insure employees "the fullest freedom in exercising their rights, guaranteed by the Act." See, e.g. Morand Brothers Beverage Co, 91 NLRB 409 (1950), enfd. 190 F 2d 576 (C A. 7, 1951) FAMILY DOCTOR MEDICAL GROUP As previously indicated, the Petitioner requests that the professional employees be permitted to vote separately on the question of their inclusion within the unit of nonprofessional service and maintenance employees, as well as on the question of their desire to be represented by it. The record testimony-shows that the professional employees maintain close work- ing relationships with employees in the service and maintenance unit. Registered nurses work in the same suites with licensed vocational nurses and doctor's receptionists, perform the same nursing functions as the licensed vocational nurses, and even have a partial overlap of duties with the doctor's re- ceptionists. Similarly, the laboratory technologists work, and overlap duties, with the laboratory techni- cians and receptionist on a daily basis. Accordingly, we find that the Employer's profes- sional employees, including registered nurses, consti- tute a separate voting group which, depending on the outcome of the election, may constitute either a sepa- rate appropriate bargaining unit or be included in the unit of nonprofessional service and maintenance em- ployees.19 Conclusion In accordance with the above findings and the rec- ord as a whole, we shall direct an election in the following unit of employees which we find to be ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Unit 1: All full-time and regular part-time busi- ness office clerical employees, including ac- counting, billing, cashier, credit, data pro- cessing, registration, and switchboard employees employed at the Employer's facility in Vallejo, California; excluding all other employees, confi- dential employees, guards, and supervisors as defined in the Act. We further find that a unit of all full-time and regular part-time registered nurses, laboratory tech- nologists, dieticians, and service and maintenance employees may constitute a unit appropriate for pur- poses of collective bargaining within the meaning of 19 The parties stipulated that Anne Biedma, a registered nurse, is a profes- sional employee even though she is assigned to work in the Group's recep- tion area where the other employees are all business office clericals Her principal function is that of "triage"-a person who determines from a patient's symptoms what the time priorities are for medical treatment and, more particularly, which cases are bona fide emergencies . She is equipped to administer emergency care and wears a uniform Upon the above facts and the agreement of the parties , we find that she performs professional work and shall include her in the professional employee voting group Further, the parties stipulated, and we find , that Nursing Supervisor Dolores Walsh and Laboratory Supervisor William McGrew are supervisors within the meaning of the Act and, accordingly, they shall be excluded. 121 Section 9(b) of the Act. However, as this unit in- cludes professional and nonprofessional employees, whom the Board cannot join in a single unit without the desires of the professional employees being de- termined in a separate vote,211 we shall direct separate elections in voting groups 2A and 2B. The employees in group -2A will be asked two questions on their bal- lot: 1. Do you desire to be included in the same unit as other, nonprofessional service and main- tenance, employees employed by the Employer at its Vallejo and Crockett, California, facilities for the purposes of collective bargaining? 2. Do you desire to be represented for the purposes of collective bargaining by Retail Store Employees Union, Local 373, Retail Clerks In- ternational Association, AFL-CIO? If a majority of the professional employees in vot- ing group 2A vote yes to the first question, indicating their desire to be included in a unit with the nonpro- fessional employees, they will be so included. Their votes on the second question will then be counted with the votes of the nonprofessional employees vot- ing in group 2B to decide the representative for the entire combined bargaining unit (professionals and nonprofessionals). If, on the other hand, a majority of the professional employees in voting group 2A do not vote for inclusion, they will not be included with the nonprofessional employees and their votes on the second question will then be separately counted to decide whether or not they wish to be represented by the Petitioner in a separate professional unit. Our ultimate determination is based in part on the results of the elections. However, we make the fol- lowing findings in regard to the appropriate unit: 1. If a majority of the professional employees vote for inclusion in a unit with the nonprofessional em- ployees, we find that the following employees will constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: Unit 2: All full-time and regular part-time regis- tered nurses, laboratory technologists, dieti- cians, and service and maintenance employees, including licensed vocational nurses, doctor's and laboratory receptionists, the Crockett recep- tionist, medical assistants, nurse's aides, medical records employees, central supply employees, laboratory technicians, EKG and cardiac tech- nicians, and maintenance employees employed at the Employer's Vallejo and Crockett, Califor- nia, facilities; but excluding all other employees, 20 Sonotone Corporation, supra. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business office clerical employees, guards, and supervisors as defined in the -Act. 2. If a majority of the professional employees do not vote for inclusion in the unit with nonprofession- al employees, we find the following two units to be appropriate for,the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Unit 2A: All full-time and regular part-time reg- istered nurses, laboratory technologists, and di- eticians employed at the Employer's Vallejo and Crockett, California, facilities; but excluding all other employees, service and maintenance em- ployees, business office clerical employees, guards, and supervisors as defined in the Act. Unit 2B: All full-time and regular part-time -ser- vice and maintenance -employees, including li- censed vocational nurses, doctor's and laborato- ry receptionists, the Crockett receptionist, medical assistants, nurse's, aides, medical rec- ords employees, central supply, employees; labo- ratory technicians, EKG and cardiac techni- cians, and maintenance employees employed at the Employer's Vallejo and Crockett, California, facilities; but, excluding all other employees, professional employees, business office clerical employ _-es, guards, and supervisors as defined in the Act. [Direction of Elections and Excelsior footnote om- itted from publication.]