Fhp, Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1985

274 N.L.R.B. 1141 (N.L.R.B. 1985)

FHP, INC 1141
FHP, Inc. and Union of American Physicians and
Dentists , Petitioner . Case 21-RC-17225
27 March 1985
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 September 1983 the Acting Regional Di-
rector for Region 21 of the National Labor Rela-
tions Board issued a Decision and Direction of
Election in which he directed that an election be
held in a unit of all full-time and regular part-time
physicians and dentists employed by the Employer
at its clinics in Los Angeles and Orange Counties,
California. The Acting Regional Director excluded
from the unit licensed clinical social workers, office
clerical employees, guards, and supervisors as de-
fined in the Act, and all other employees. Thereaf-
ter, in accordance with Section 102.67 of the
Board's Rules and Regulations, the Employer filed
a request for review of the Acting Regional Direc-
tor's decision.
In its request for review, the Employer contend-
ed that the Acting Regional Director erred in find-
ing the physicians and dentists to be employees
under the Act. Relying on NLRB v. Yeshiva Uni-
versity, 444 U.S. 672 (1980), the Employer argued
that, through their service on permanent and ad
hoc committees, the physicians and dentists func-
tion as managerial employees and are therefore not
subject to the Act.'
By order dated 4 November 1983, the Board
granted the Employer's request for review, but lim-
ited review to the managerial status of the physi-
cians and dentists. In all other respects the Board
denied the Employer's request for review.2
On review, the Employer submitted as its brief
the brief it had submitted in support of its request
for review. The Petitioner filed a brief in opposi-
tion to the arguments expressed in the Employer's
request for review.
The Board has considered the entire record in
the case with respect to the issue under review and
makes the following findings.
i The Acting Regional Director also concluded that licensed clinical
social workers, who the parties had stipulated are professional employees,
should be excluded from the unit The Employer specifically declined to
file a request for review of this determination
2 The Employer also requested review of the voter eligibility formula
utilized by the Acting Regional Director According to that formula,
month-to-month part-time physicians and dentists were eligible to vote in
the election if they worked a minimum of 4 hours a week over the 3-
month period immediately preceding the date of the Decision and Direc-
tion of Election In denying review of this determination, the Board in-
terpreted the work formula for eligibility of month-to-month employees
as requiring only an average of 4 hours of work per week over the 3-
month period preceding the Acting Regional Director's decision
The Employer operates a health maintenance or-
ganization (HMO) which provides health care in
seven clinics in Los Angeles and Orange Counties,
California. As a nonprofit corporation, the organi-
zation's board of directors is the single body con-
trolling the direction of the enterprise. The HMO's
chief of staff sits on the board of directors and pre-
sides over the organization's provider division
headed by a provider director. Each facility is di-
rected by an area chief, who is the senior physician
on staff; a center manager, who is in charge of the
Employer's operations department; and, in the case
of the three facilities providing dental service, a
separate area chief in charge of dental care. In ad-
dition, the provider division is organized into a de-
partmental structure consisting of seven depart-
ments of physicians-family practice, pediatrics, sur-
gery, ophthalmology, radiology, obstetrics-gyne-
cology, and optometry-and separate departments
of dentistry and licensed clinical social workers
Physicians report directly to the heads of the de-
partments in which they practice.
The parties stipulated that the Employer's area
chiefs, department chairpersons, and the head of
the health screen department are supervisors within
the meaning of Section 2(11) of the Act. The Em-
ployer maintains six standing and various ad hoc
committees consisting of physicians and dentists
employed at the HMO, including at least one offi-
cial of undisputed managerial status or one statuto-
ry supervisor on each committee Although the
committees vary as to length of service required
before a physician or dentist is eligible to partici-
pate, any full-time physician or dentist may be
called on to serve on one or more committees,
each of which has rotating memberships. During
the year before the representation hearing, 38 out
of approximately 70 full-time physicians and den-
tists served on committees, and more than half of
those currently employed so served over the past 5
years. The functions of these committees are as fol-
lows:
Peer Review Committee: This committee reviews
the quality of care provided by individual physi-
cians and health care providers using the following
procedure: (a) performing a chart audit of every
physician at least once a year; (b) auditing specific
protocols prescribed for a patient to test the extent
of physician/health care provider compliance; (c)
performing random chart pulls to verify the accu-
racy of chart data; and (d) auditing the medical
records department to review the general quality
of the organization's recordkeeping system. Every
FHP physician is reviewed by the committee
within 6 months of his employment and annually
each year thereafter. Any significant critical find-
274 NLRB No. 168
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing is the basis for further investigation by the
committee and, depending on the nature of the
finding, may be the basis for awarding an incentive
pay increase or taking disciplinary action, including
suspension and termination. The committee makes
recommendations concerning protocol changes to
department heads. Department heads have never
overruled the committee's protocol recommenda-
tions.
Physician and Therapeutics Committee: This com-
mittee develops and maintains a medication formu-
lary, hears testimony and reviews literature con-
cerning new medications, and monitors the pre-
scribing practices of new physicians. Excessive pre-
scribing by a physician of 10 specific drugs for
which there is a less expensive generic equivalent
leads to the filing of a report by the committee in
the physician's personnel records. This action, de-
pending on the severity of the offense, may lead to
discipline, including termination.
Advisory Committee on Provider Work Environ-
ment: This committee meets biweekly to examine
work environment issues with the objective of rec-
ommending changes in the organization's annual
compensation package. The committee also devel-
ops plans to improve the utilization of the organi-
zation's support staff and facilities, such as in-
creases in the nurse-to-doctor ratio. Its recommen-
dations are regularly implemented.
Emergency Services Committee: The organiza-
tion's capacity to respond to medical emergencies
is the subject of this committee's evaluations and
recommendations. These include setting prepared-
ness standards, such as deciding which employees
receive cardiopulmonary resuscitation training,
what medication and equipment are available for
emergency treatment, and what procedures are fol-
lowed for fire and other emergencies requiring
evacuation. The committee decides whether a phy-
sician has responded adequately to its monthly
drills and takes appropriate action against those
who do not, such as removal and replacement of
the physician on the drill team, a requirement of
further training, or a notice in his personnel file.
Patient Services Committee: This committee inves-
tigates all reports raising issues concerning the or-
ganization's legal liability. The committee meets bi-
weekly, and findings of medical malpractice are re-
ferred to both the provider director and the Peer
Review Committee for physician discipline.
Advisory Committee to the Board of Directors:
Chaired by the chief of staff and staffed by physi-
cians of 2 or more years of service, this committee
meets on a quarterly basis to chart the direction of
the HMO. Each member of the committee repre-
sents a department or group of health care provid-
ers at FHP and provides a report for the chief of
staff to present to the board of directors at their
quarterly meetings concerning issues of wages, ben-
efits, and working conditions. The organization's
provider director, who was the only witness to tes-
tify concerning the committee structure, stated that
he was aware of recommendations made by this
committee that had been followed by the board of
directors, but was unable to testify as to how often
its recommendations were followed.3
Committees are also organized on an ad hoc
basis to serve such specialized objectives as defin-
ing the role of the family practitioner and the
policy on which hospitals should handle high-risk
pregnancies. Ad hoc committees have in the past
been the source of such approved recommenda-
tions as the organization's policy to offer physicians
who work 24 hours straight additional compensa-
tion rather than compensatory leave. An ad hoc
committee has also recommended the hiring of two
additional nurse practitioners, instead of an extra
physician, to fill recent obstetrics department staff-
ing needs. Each of these recommendations was im-
plemented by the organization.
In NLRB v. Yeshiva University, supra, the Su-
preme Court defined managerial employees as
those who "formulate and effectuate management
policies by expressing and making operative the de-
cisions of their employer" through "taking or rec-
ommending discretionary actions that effectively
control or implement employer policy." 444 U.S. at
682-683. Based on its findings that the faculty of
Yeshiva University through their committee serv-
ice exercised authority beyond strictly academic
areas to matters such as faculty hire, tenure, sabba-
ticals, terminations, and promotions and that the
overwhelming majority of faculty committee rec-
ommendations were followed, the Court held that
the faculty members exercised managerial authority
and therefore did not constitute a unit appropriate
for collective bargaining. We find, contrary to the
Acting Regional Director's report, that the full-
time staff physicians and dentists of FHP, like the
faculty of Yeshiva University, possess and exercise
authority to formulate and effectuate management
policies.
As professional employees, staff physicians may
also be managerial if their activities on behalf of
s Although the jurisdiction of this committee appears to be broader
than that of the Advisory Committee on Provider Work Environment,
listing as its objectives matters such as "cost containment ," "productivi-
ty," and "major financial commitments involving the provision of health
care providers," it also appears that there is overlap in these two commit-
tees' involvement in issues concerning wages , benefits , and working con-
ditions The FHP provider director stated that, in areas where these com-
mittees' jurisdiction overlaps, he could not judge which committee's rec-
ommendation is accorded greater weight
FHP, INC
their employer fall outside the scope of decision-
making routinely performed by similarly situated
health care professionals and that is primarily inci-
dent to their treatment of patients.4 Here, the func-
tions of staff committees are by no means all-en-
compassing in terms of discharging the organiza-
tion's total managerial agenda. To be sure, the
committees are not involved, for example, in set-
ting base salaries or formulating premiums to be
charged FHP subscribers. These decisions are
made at the corporate level. Similarly, hiring deci-
sions are made not on the basis of any of the stand-
ing or ad hoc committee recommendations, but by
the provider director on the basis of departmental
need and the recommendations of the recruiting di-
vision, the department chairmen, and area chiefs.
Nonetheless, the record convincingly demonstrates
that many of the decisions made at the committee
level, which include managing the organization's
protocol system, overseeing its medical records
system, setting its medicinal prescription policy, re-
viewing and modifying the benefits and working
conditions of its staff, establishing procedures and
staff training for medical emergencies, and minimiz-
ing the institution's risk of medical malpractice li-
ability, lie at the core of the health maintainence
organization's operations. Accordingly, we con-
clude that the committees perform managerial
functions within the meaning of the Yeshiva deci-
sion.
In his Decision and Direction of Election, the
Acting Regional Director concluded that, because
stipulated managers and supervisors who serve on
the Employer's committees are representatives of
management, the participation of staff physicians
and dentists is "primarily advisory or related to the
quality of patient care in the clinics based on their
professional experience." We find that the Acting
Regional Director erred in this determination. The
record does not support a finding that there is any
differentiation in the roles played by staff physi-
cians and their supervisors in their service on the
committees other than, in the case of committee
chairmen, their manner of appointment and dis-
charge of ministerial duties, such as the reporting
of minutes and receipt of correspondence. Further-
more, although the record is less than clear on the
4 See Montefrore Hospital, 261 NLRB 569 (1982), Sutter Community
Hospitals, 227 NLRB 181, 193 (1976)
1143
effectiveness of recommendations of the Advisory
Committee to the board of directors, the operation
of other committees within the organization is
clearly more than advisory. In instances where per-
sonnel action such as retraining, more intense mon-
itoring, or discipline of physicians is at issue, the
committees may either take action directly or in-
struct the provider director to do so. In other in-
stances, where the committees' action takes the
form of recommendations to department heads or
management, such as concerning protocol changes
or employee compensation, the recommendations
are regularly if not always followed.5 The commit-
tee unit itself establishes the Employer's practice in
developing a formulary, evaluating both patient
care and cost-related concerns. On the basis of
these facts, we conclude that the full-time staff
physicians and dentists, in their capacity as com-
mittee members, effectively formulate and effectu-
ate the policies of the Employer. We therefore find
that they are excluded from coverage under the
Act as managerial employees.
We disagree, however, with the Employer's con-
tention that the same principles apply to exclude
part-time physicians and dentists from the Act's
coverage. The record demonstrates that none of
the Employer's 26 part-time physicians and dentists
sit on any of the Employer's standing or ad hoc
committees, and it appears from the testimony of
the provider director that a part-time physician or
dentist would be eligible for membership only on
his conversion to full-time status. Accordingly, we
find that regular part-time physicians and dentists,
whose voting eligibility formula was established by
the Acting Regional Director in his decision and
clarified by the Board's telegraphic order denying
review with respect to that formula, are employees
within the meaning of Section 2(3) of the Act. Be-
cause the unit found appropriate is drastically dif-
ferent from that found appropriate by the Acting
Regional Director and because the Petitioner has
not expressed an interest in proceeding to an elec-
tion in a unit of regular part-time physicians and
dentists, we shall dismiss the petition.
ORDER
The petition is dismissed.
5 Cf Montefiore Hospital, supra at 571