Kaiser Foundation Health Plan

National Labor Relations Board - Board Decisions

Jun 24, 1977

230 N.L.R.B. 438 (N.L.R.B. 1977)

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.
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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