Kaiser Foundation Health Plan

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kaiser Foundation Health Plan of Colorado and Permanente Services of Colorado, Inc.' and Oil, Chemical and Atomic Workers International Union, AFL-CIO, Petitioner. Case 27-RC-5360 June 24, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before a Hearing Officer of the National Labor Relations Board. Thereafter, on November 3, 1976, the Regional Director issued a Decision and Order dismissing the petition. In accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, Oil, Chemical and Atomic Workers International Union, AFL-CIO, herein called Peti- tioner, filed a timely request for review on November 30, 1976. On December 29, 1976, the Board, Member Walther dissenting, by telegraphic order, remanded this case to the Regional Director for reconsideration after . hich a second hearing was held before Hearing Officer Winchel W. Reed. Following the second hearing, pursuant to Section 102.67 of the Board's Rules and Regulations, and by direction of the Regional Director for Region 27, this case was transferred to the Board for decision. Thereafter, Employer filed a statement referring to its previously filed statement in opposition to Petitioner's request for review and incorporating by reference Employ- er's brief to the Regional Director filed prior to the latter's Decision and Order. 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 Officer's rulings made at the second hearing and finds that they are free from prejudicial error. They are hereby affirmed. On the entire record in this case, the Board finds: I Employer's name appears as amended at the hearing. 2 The parties have agreed, and we find, that Kaiser Foundation Health Plan of Colorado and Permanente Services of Colorado, Inc., constitute a single employer for purposes of this proceeding. 3 The record establishes that a bachelor's degree from an accredited institution with a major in foods, nutrition, or foods services management, and successful completion of either an internship program approved by the American Dietetic Association, or equivalent approved expenence are required for the nutritionist position. The nutritionist's primary function is to design specialized diets for patients who require them as part of their medical treatment and, therefore, patients are usually referred to the 230 NLRB No. 62 1. Kaiser Foundation Health Plan of Colorado, licensed as a health maintenance organization under Colorado law, is incorporated in Colorado and is a subsidiary of Kaiser Foundation Health Plan, Inc., a California corporation. Permanente Services of Colorado, Inc., is incorporated in California to do business in Colorado and is under exclusive contract with Kaiser Foundation Health Plan of Colorado to provide pharmacy and optical dispensing services to the latter and its members. We find, in agreement with the parties, that Kaiser Foundation Health Plan of Colorado and Permanente Services of Colorado, Inc., herein collectively 2 also called Employer or Kaiser, are engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of Employer. 3. No question affecting commerce exists con- cerning the representation of certain employees of Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act for the reasons set forth below. Petitioner seeks an election in a unit of professional employees, excluding all registered nurses, at Em- ployer's three outpatient clinic facilities in the Denver, Colorado, area. Petitioner has stated that it will not participate in an election in any unit of professional employees which includes nurses. Em- ployer contends that the only appropriate unit is one comprised of all professional employees, including all registered nurses. We conclude that the unit requested by Petitioner would exclude professional employees who show a community of interest with other unit employees and is therefore inappropriate for purposes of collective bargaining. At the 3 clinics involved in this proceeding, Kaiser employs 9 pharmacists, 3 optometrists, I nutritionist, I medical technologist, 7 physician's assistants, and 18 registered nurses. In accordance with the parties' stipulation, we find that the pharmacists and opto- metrists are professional employees within the meaning of Section 2(11) of the Act and properly belong in any appropriate unit of professional employees. The parties are in apparent agreement and the record establishes that the nutritionist, 3 nutritionist by physicians. In addition, the nutritionist conducts educational programs about diet and nutrition for patients. She works in the internal medicine department and has professional interactions with the physicians, physician's assistants, adult health care practitioners, and pediatric nurse practitioners. The nutritionist's salary is within the same range as that of other professionals. 438 KAISER FOUNDATION HEALTH PLAN OF COLORADO medical technologist,4 and physician's assistants5 are professional employees and are properly included in the unit. Accordingly, we so find. The only dispute in this proceeding concerns whether any registered nurses should also be includ- ed in the unit. As noted above, Employer contends that the only appropriate professional employee unit would include all registered nurses. Petitioner, however, contends that a unit excluding all registered nurses would be appropriate. Of the 18 registered nurses employed at the clinics, 13 are classified as adult health care practitioner, maternity/GYN nurse, pediatric nurse practitioner, or physical screening nurse. Along with the physi- cian's assistants discussed above, these specialized nurses are generically termed "physician extenders." They are all required to have degrees in nursing from accredited schools of nursing and to be licensed as registered nurses by the Colorado State Board of Nursing. 6 These specialized nurses are also required to complete successfully an approved training pro- gram in their specific area of specialization. In addition, an adult health care practitioner is required to have 3 years of experience as a registered nurse (including I year as a physical screening nurse), and a physical screening nurse is required to have 2 years of experience as a registered nurse. Regardless of the department in which they work, registered nurse physician extenders perform essentially the same job functions. They perform physical examinations on patients whom they see by appointment, can order and evaluate certain laboratory tests and record pertinent information on the patients' medical history charts, and are allowed to use their indepen- dent judgment in the treatment of uncomplicated cases,7 including recommending to the physicians 'The medical technologist is required to have a bachelor's degree from an accredited institution, to have successfully completed a medical technology program approved by the American Medical Association, and to be currently certified as a medical technologist by the American Society of Clinical Pathologists Board of Registry. The medical technologist performs and interprets the results of various medical tests on patients' specimens. He has contact with physicians, physician's assistants, pediatric nurse practi- tioners, and physical screening nurses, and his salary range is similar to that of other professional employees. I The requirements for physician's assistant are a bachelor's degree or its equivalent, successful completion of a training program for physician's assistants accredited by the American Medical Association (which includes 2 years of study at a medical school), and eligibility for certification or certification by the National Commission for Certification of Physician's Assistants. Experience as a medic in the Armed Forces is allowable as a substitute for the bachelor's degree. The physician's assistants perform routine and preliminary physical examinations, order laboratory and X-ray studies, and determine whether the patient's problem warrants referral to a physician. Physicians, physical screening nurses, and adult health care practitioners are the only other employees who are qualified to perform any that specific medication be prescribed. Physicians and physician's assistants are the only other employ- ees who can perform all of these job functions. The four categories of registered nurse physician exten- ders are all supervised directly by the clinic adminis- trator, who also supervises the physician's assistants. The salaries of these specialized nurses are within the same range as the salaries of the other professional employees. Thus, the record establishes that registered nurses who are physician extenders share a close working relationship and community of interest with the other professional employees. Indeed, the nurse physician extenders and the physician's assistants have the same job functions, in that they both perform physical examinations on patients, order and evaluate laboratory tests, and refer any unusual cases to a physician. Both the specialized registered nurses and the physician's assistants have received specialized training in the specific area in which they practice, and all physician extenders are supervised by the clinic administrator. Additionally, except for the physical screening nurses, the salary ranges of all physician extenders are almost identical. Accordingly, we conclude that an appropriate unit of professional employees must include the registered nurses who are physician extenders.8 As the Petition- er has stated that it has no desire to participate in an election in any unit which includes nurses, we shall dismiss the petition.9 ORDER It is hereby ordered that the petition herein be, and it hereby is, dismissed. of the job functions of physician's assistants. The physician's assistants work in the internal medicine department and the trauma, emergency room, and orthopedics departments. Except for emergency treatment, they see patients on an appointment basis, and their salary is within the range of other professionals. a No party is contesting the professional status of registered nurses. In any event, the record shows that they clearly qualify as professional employees within the meaning of Sec. 2(12) of the Act. Mercy Hospitals of Sacramento, Inc., 217 NLRB 765 (1975). 7 The nurse practitioners, like the physician's assistants, decide which cases require referral to a physician. a Cf. Family Doctor Medical Group, a Professional Corporation, 226 NLRB 118 (1976), wherein the Board concluded, inter alia, that an appropriate bargaining unit could include registered nurses along with other professional employees. 9 Inasmuch as we are dismissing the petition on these grounds, we find it unnecessary to determine whether an appropriate unit of Employer's professional employees must also include the five registered nurses who are not physician extenders but who perform typical registered nurses' functions. 439