Southern California Permanente Medical Group

National Labor Relations Board - Board Decisions

Feb 19, 1974

209 N.L.R.B. 106 (N.L.R.B. 1974)

106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern California Permanente Medical Group and jurisdiction over it. We find no merit in these
Kaiser Bellflower Registered Nurses ' Association , contentions.
UNAC, Petitioner . Case 21-RC-13303 The record establishes that the Employer contracts
February 19, 1974
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
with the Kaiser Foundation Health Plan (hereafter
called Plan) to provide its members with the
professional services covered by the Plan. Pursuant
to this contract the Employer, in consideration of
certain monetary and other benefits, furnishes
doctors for the hospitals and medical office facilities
which are built, equipped, staffed, owned, and
operated by Hospital, and operates, with its own
Upon a petition duly filed under Section 9(c) of the doctors and employees, all of the outpatient clinics in
National Labor Relations Act, as amended, a the service area as well. These clinics are leased from
hearing in this case was held before Hearing Officer the Plan under terms which insure that the Employer
Stuart M. Levine and a further hearing was held has exclusive control of the operation of the clinics.
before Hearing Officer Gerald M. Cole. The Hearing All of the above corporations receive administrative,
Officers' rulings made at the hearings are free from housekeeping, purchasing, accounting, collective-
prejudicial error and are hereby affirmed. bargaining, and other supporting services from
Pursuant to the provisions of Section 3(b) of the Southern Permanente Services, Inc. (hereafter called
National Labor Relations Act, as amended, the Permanente Services), a California for-profit corpo-
National Labor Relations Board has delegated its ration owned by the Plan and the Hospital.
authority in this proceeding to a three-member panel. The facts in the instant case are similar to the facts
Upon the entire record in this case, including the in The Permanente Medical Group, 187 NLRB 1033.
briefs filed by the Employer and the Petitioner, the We find, for the reasons stated therein, that the
Board finds: Employer does not fall within the provisions of
1. Petitioner seeks to represent registered nurses Section 2(2) of the Act.I Accordingly, in view of the
employed by the Employer at its five clinics located Employer's substantial effect on commerce, we
at Bellflower, Huntington Park, Garden Grove, further find that it is engaged in commerce within the
Orange, and Norwalk, California, which we herein- meaning of the Act and that it will effectuate the
after call the Bellflower clinic complex. The parties policies of the Act to assert jurisdiction in this
stipulated that the Employer is a California for-profit proceeding.
partnership of physicians engaged in the practice of 2. The labor organization involved claims to
medicine. During the year preceding the hearing the represent certain of the employees of the Employer.
Employer received revenues in excess of $500,000 3. A question affecting commerce exists concern-
and during the same period it purchased in excess of ing the representation of certain employees of the
$50,000 worth of goods and supplies from concerns Employer within the meaning of Section 9(c)(1) and
located outside the State of California. Section 2(6) and (7) of the Act.
Although the Employer does not dispute that its 4. As indicated above, the Petitioner seeks to
operations satisfy the Board's monetary standards represent the approximately 73 registered nurses
for jurisdiction, it contends that the Board should not employed at the Employer's Bellflower clinic com-
assert jurisdiction over it because the Employer is a plex, which is part of the Bellflower medical service
joint employer with the Kaiser Foundation Hospitals facility that includes two hospitals in addition to the
(hereafter called Hospital), a nonprofit corporation clinics designated above. The parties stipulated that
engaged in the business of building, equipping, and registered nurses are professional employees and
staffing hospitals. The Employer thus argues that as would constitute an appropriate unit. The Employer
a joint employer with Hospital, which falls within the contends, however, that the appropriate unit should
nonprofit hospital exemption of Section 2(2) of the include the 1,139 registered nurses employed by the
Act, there is no basis for the Board to take Employer and the Hospital at five of the seven
I We find no merit in the Employer 's contention that the instant case is
distinguishable from the prior proceeding in that the employees in the unit
sought in that proceeding were employed only in the clinics and related
facilities operated by the Permanence Medical Group , and there were no
comparable employees employed by Kaiser Foundation Hospitals. The
Petitioner in the instant case does not seek to represent any hospital
employees . The fact that comparable classifications of employees are
employed by the Hospital does not warrant a finding that the two
organizations function as joint employers for jurisdictional purposes. The
Cleveland Clinic Foundation, 205 NLRB No. 162, cited by the Employer in
its posthearing brief, is distinguishable on its facts . In that case , unlike the
instant case , there was a high degree of functional integration and
interrelationship among all the activities of the employer, and even the
nonhospital services of the proprietary corporations owned by the nonprofit
hospital corporation (engaged in furnishing parking facilities and hotel
accommodations to hospital employees , patients, and visitors ) were closely
related to and virtually inseparable from the hospital services . Member
Fanning finds it unnecessary to distinguish or discuss the Cleveland Clinic
Foundation decision.
209 NLRB No. 26
SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP
medical service facilities including the Bellflower
facility which comprise the Plan's southern Califor-
nia service region. These five medical service
facilities are located throughout Los Angeles County
except for one of the Bellflower clinics which is
located in Orange County. The remaining two
medical service facilities are located in the Fontana
area and the San Diego area, respectively.
Each of the seven medical service facilities is
composed of a main medical center which houses a
hospital and outpatient clinic, and additional outpa-
tient clinics which are clustered in outlying areas.2 As
noted previously, the Bellflower medical service
facility has a hospital and clinic at Bellflower and a
hospital at Norwalk, and outlying clinics at Norwalk,
Huntington Park, Garden Grove, and Orange. These
outlying clinics are located 3, 11, 16, and 21 miles,
respectively, from the Bellflower clinic.
The record shows that the supervisory hierarchy at
each of the seven medical service facilities is separate
from the others and that, further, within each
medical service facility, the hospitals and clinics are
supervised separately by different groups of supervi-
sors. For each hospital there is an administrator and
an assistant administrator. The hospital administra-
tor reports to the regional hospital administrator. For
each clinic complex there is an administrator who
reports to the area medical director of the Employer.
Similarly, in each medical service facility there is a
hospital director of nursing who reports to the
hospital administrator and a clinic director of
nursing who reports to the clinic complex adminis-
trator. While there is a common overall labor
relations policy applicable to all of the seven medical
service facilities, the clinic administrator at each
complex is responsible for the clinic complex
operations on a day-to-day basis and is ultimately
responsible for the operations of the outlying clinics.
The clinic director of nursing has supervisory
authority over all nurses in the medical center clinic
and outlying clinics in each clinic complex.
New nurses are recruited by Permanente Services
but the ultimate decision to hire and discharge is
made by the Employer's supervisors at the clinic
complex level. At each clinic complex. nursing
supervisors schedule the working hours of the nurses
in their charge and have authority to grant leaves of
absence and to requisition additional nurses from
Permanente Services when required. The general rule
is that promotions are made from within each clinic
complex and layoffs are by seniority at the particular
complex.
While the record is unclear, there appears to be
little or no temporary interchange of employees
107
among the various clinic complexes. Additionally,
the Employer's nurses at the Bellflower clinic have
almost no daily contact with the Hospital's Bellflow-
er hospital nurses, and outlying clinic nurses in the
Bellflower clinic complex have none. There are,
however, some permanent transfers of nurses be-
tween the hospitals and clinics. Marie English, who is
Permanente Services' representative at the Bellflower
clinic complex, testified that permanent transfers
within the Bellflower clinic complex occur twice as
frequently as transfers to other facilities.
While the skills and duties of registered nurses in
all of the medical service facilities appear to be
similar, the duties of clinic nurses differ in some
respects from those of hospital nurses. Thus the
record shows that hospital nurses perform direct
patient care duties. They oversee ancillary help and
give medication, but they do not normally assist the
physician in administering treatment to the patient.
Clinic nurses receive telephone calls, advise patients
who come to the clinic for care, direct them to the
proper area, and screen walk-in patients as to their
complaints and direct them to a particular physician
for care. A clinic nurse may be assigned to work
directly with a physician in the clinic setup and in
such situations assists him in the examination and
treatment of the patients throughout the day. It also
appears that the hospital and clinic nurses work
different hours. The hospitals operate on a 24-hour
basis, with 3 shifts. Generally, the clinics are open
only during the day and most of the clinic nurses
work from 8:45 a.m. to 5:15 p.m. Special walk-in
clinics are open at night. The record does show,
however, that both clinic and hospital nurses receive
comparable salaries and enjoy the same fringe
benefits, and that all are subject to the same
personnel policies.
Bargaining History
There is no bargaining history with respect to
registered nurses at five of the medical service
facilities. At the Fontana and San Diego facilities,
registered nurses are represented . The Fontana
hospital and clinic nurses are covered by a collective-
bargaining agreement between Kaiser Fontana
Registered Nurses' Association , UNAC, and the
Hospital and the Employer . The San Diego nurses
are included under the Local 443, Office and
Professional Employees International Union agree-
ment which covers clerical , technical , service, and
maintenance classifications of employees at the San
Diego facility.
The record shows that clerical , technical , service,
2 As in the case of the Bellflower medical service facility, these clinics in
each facility are hereinafter referred to as a clinic complex.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and maintenance employees employed at all but the
Fontana and San Diego facilities are covered by a
multiemployer agreement between the four entities
comprising the Plan's southern California region and
Service Employees International Union, AFL-CIO,
Local 399. At the Fontana facility, these classifica-
tions of employees are represented by the Steelwork-
ers Union. Pharmacists and pharmacy cashiers at all
seven medical service facilities are represented by the
Retail Clerks Union, while engineers at all but the
San Diego and Fontana facilities are represented by
Operating Engineers Local 501.
All of the units covered by the above agreements
were established through mutual agreement of the
Employer and union involved.
The Employer bases its unit position in part on its
contention that the Hospital and the Employer are
joint employers of registered nurses. For reasons
stated above, we have found no merit in that
contention. The Employer's further contention that a
five-area medical service-facilities unit is the smallest
appropriate unit for bargaining is based on the
alleged mutuality of interests in wages, hours, and
conditions of employment among the registered
nurses in the five facilities.
The Petitioner bases its position that the clinic
complex unit at Bellflower is appropriate in part on
the contention that the clinics are separately owned
and controlled by different people; that the Bellflow-
er clinic complex comprises one administrative unit
of the Employer; and that there are seven separate
clinic complex administrative units in the southern
California region. The Petitioner argues that there is
neither contact nor common interests in working
conditions between the registered nurses employed in
the Bellflower clinics and those employed at other
clinic complexes.
The facts demonstrate, and we find, that the
registered nurses employed by the Employer in the
Bellflower facility have a community of interest with
each other and that such community of interest is
separate and distinct from that of registered nurses
employed by the Hospital and at the remaining
medical service facilities, including their respective
clinic complexes. In so finding, we rely on (1) the
completely separate supervisory personnel of hospi-
tal and clinic complex nurses at the Bellflower
medical service facility, (2) the responsibility of the
clinic administrator for day-to-day operations of the
Bellflower clinic complex, (3) the authority of
Bellflower clinic complex supervisors to hire and
discharge nurses, schedule their working hours, grant
leaves of absence, and requisition additional nurses,
(4) the little or no interchange or contact between the
hospital and clinic nurses at the Bellflower medical
service facility and among the nurses in the other
facilities, (5) the general rule that promotions are
made from within the Bellflower clinic complex, and
layoffs similarly are by seniority, (6) the differences
in skills and duties of clinic and hospital nurses, and
(7) the absence of any controlling bargaining history.
We also note that, while common labor relations and
personnel policies are established by Permanente
Services, they are separately implemented by the
Bellflower clinic complex supervisory personnel.
Furthermore, Employer's mileage chart submitted in
evidence shows that, while the five medical service
facilities other than San Diego and Fontana are
located in geographic proximity, the five clinics of
the Bellflower clinic complex are clustered within a
small part of a much larger geographic area. On the
above facts, we find that the Bellflower clinic
complex constitutes a separate administrative area of
the Employer's operations.
Accordingly, for the reasons enumerated above, we
find that registered nurses employed by the Employ-
er at the Bellflower clinic complex constitute an
appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
Emergency Room Nurses
The parties are in disagreement as to whether
registered nurses employed by the Employer in the
Bellflower medical center's emergency room should
be included in the unit. At the hearing, the parties
stipulated that there are 22 full-time and 4 part-time
registered nurses who spend 100 percent of their time
in the Bellflower emergency room. They are em-
ployed on a 3-shift, 24-hour, 7-day schedule from
7:30 a.m. to 4 p.m., 3:30 p.m. to midnight, and 11:45
p.m. until 7:45 a.m. Their wage rates are the same as
the rates for the clinic complex nurses.
Doctor Chester Haug, medical director for the
Bellflower medical service facility, testified that this
emergency room functions as an adjacent clinic to
some of the other clinics of the Bellflower clinic
complex. Patients may be referred from the emergen-
cy room to one of the outpatient clinics of the
complex or admitted to the Bellflower hospital. They
also may be referred from Bellflower outpatient
clinics to the emergency room.
Virginia Wagner, director of clinic nursing at the
Bellflower clinic complex, testified that she had
ultimate responsibility for the emergency room and
that under her supervision is an emergency room
supervisor who is responsible for its operations on a
24-hour basis, 7 days a week. Wagner further
testified that she works on the day shift, a charge
nurse supervises the evening shift, and a senior nurse
supervises the night shift. If any staff problems arise,
SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP
the emergency room supervisor is contacted at home.
Disturbances that might be caused by patients are
handled by the security force and the assistant
director of nursing for the hospital is contacted.
The record shows that, while patients may be
admitted to the Bellflower hospital from the Bell-
flower emergency room, the emergency room nurses
perform no duties in the hospital and hospital nurses
perform no duties in the emergency room. When a
patient at one of the clinics of the Bellflower clinic
complex has hospital surgery, he is prepared for
surgery in the emergency room by emergency room
personnel and then taken to the hospital. The
registered nurses in the operating room are hospital
nurses no matter whether the patient comes from the
emergency room or from the hospital. Emergency
room personnel, including nursing personnel, may
accompany a patient from the emergency room to
the hospital and then return to the emergency room,
however, there is no showing that there is any
interchange of registered nurses between the emer-
gency room and the hospital at the Bellflower
medical service facility.
Wagner testified that registered nurses in the
hospital, clinics, and the emergency room all make
assessments and judgments, but that the emergency
room nurse is in a more demanding position as her
decision-making must he done in many cases under
pressure of time. She further testified that the duties
of clinic nurses lend to be more specialized than the
duties of emergency room nurses, and that emergen-
cy room nurses have skills more comparable to those
of hospital nurses who work in specialized training
units such as intensive care or coronary care units.
e In view of the above , we find no merit in the Lmployer's contention
that Case 31 -RC-2563, 209 NLRB 27, issued simultaneously herewith.
should be transferred to Region 21 and consolidated with the present
proceeding . Accordingly, we hereby deny the Employer's motion to transfer
109
On the above facts, we find that, while the
Bellflower emergency room must, in certain respects,
coordinate its operations with those of the hospital, it
must also coordinate its operations with those of the
Bellflower clinics. As Doctor Haug testified, the
emergency room functions as an adjacent clinic to
other Bellflower clinics. Like the clinics, the emer-
gency room is under separate supervision, and there
is no interchange of registered nurses between the
hospital and the emergency room. We find that the
differences in skills and duties of emergency room
and clinic nurses are too insubstantial to affect their
unit placement. We find, therefore, that the Bellflow-
er emergency room registered nurses have sufficient
community of interest with the nurses employed in
the Bellflower clinic complex to be included in the
same bargaining unit.;
Accordingly, for the reasons enumerated above, we
find that the following employees of the Employer
constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All registered nurses employed by the Employer
at the Bellflower clinic complex at Bellflower,
Huntington Park, Garden Grove, Orange, Nor-
walk, and Cerritos, California, including emer-
gency room registered nurses employed at the
Bellflower medical center, and excluding all other
employees, guards, and supervisors as defined in
the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
and consolidate proceeding
We further deny the Petitioner's request that the Employer's second
supplemental brief and accompaning papers be returned to the Fmployer