Family Doctor Medical Group,

National Labor Relations Board - Board Decisions

Sep 23, 1976

226 N.L.R.B. 118 (N.L.R.B. 1976)

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.]