The Permanente Medical Group

National Labor Relations Board - Board Decisions

Jan 22, 1971

187 N.L.R.B. 1033 (N.L.R.B. 1971)

THE PERMANENTS MEDICAL GROUP 1033
The Permanente Medical Group and California
Association of Medical Laboratory Technologists,
Petitioner . Cases 20-RC-8539, 20-RC-8540,
20-RC-8541, 20-RC-8542, 20-RC-8549, and 20-
RC-8552
January 22, 1971
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon petitions duly filed under Section 9 (c) of the
National Labor Relations Act, as amended , a consoli-
dated hearing was held before J. Mark Montobbio
and Walter L. Kintz ,t Hearing Officers of the
National Labor Relations Board . Following the
hearing and pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions and Statements of Procedure , Series 8, as
amended , the case was transferred to the Board for
decision . Thereafter , briefs were filed by Petitioner
and Intervenor , Hospital and Institutional Workers
Union Local 250, SEIU, AFL-CIO.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Board
has delegated its powers in connection with these
cases to a three -member panel.
The Board has reviewed the Hearing Officers'
rulings made at the hearing and finds that they are
free from prejudicial error . They are hereby affirmed.
Upon the entire record in these cases , the Board
finds:
1. Petitioner seeks to represent certain clinical
laboratory technologists employed by the Employer
at certain out-patient clinics located in various
communities in northern California. The Employer is
a California for-profit limited partnership of physi-
cians. It is associated with the Kaiser Foundation
Medical Care Program through its contract with the
Kaiser Foundation Health Plan , Inc., a California
nonprofit corporation (hereafter called "Plan"). The
purpose of the Program in northern California is to
provide in this service area prepaid hospital and
medical services to the public on a self-sustaining,
nonprofit basis. Plan carries out the objectives of the
Program by enrolling and providing to its members
medical insurance coverage through medical and
other health care service in hospitals and out -patient
clinics. With the exception of medical services, all
other services indigenous to hospitals are provided in
community hospitals which are built, equipped,
staffed, owned, and operated by Kaiser Foundation
Hospital (hereafter called "Hospital"), also a Califor-
nia nonprofit corporation, in accordance with its
contract with Plan. The hospitals' medical services,
i.e., the doctors, are provided by the Employer3 in
accordance with its contract with Plan.4 Pursuant to
this contract, the Employer, in consideration of
certain monetary and other benefits, furnishes the
hospitals' doctors and also operates with its own
doctors, paramedical, and other employees all of the
out-patient clinics in the service area . These clinics are
leased from Plan under terms which insure that the
Employer has exclusive control of the clinics and the
medical practices conducted therein. All of the above
corporations receive administrative, housekeeping,
purchasing, accounting, collective-bargaining, and
similar general supporting services from Permanente
Services, Inc., a California for-profit business corpo-
ration owned by Plan and Hospital.
The parties stipulated that during the year preced-
ing the hearing the Employer received revenues in
excess of $500,000, and that during this same period, it
purchased in excess of $50,000 worth of goods and
supplies from concerns located within the State
which, in turn, obtained those goods and supplies
directly from points outside the State.
Intervenor, while not disputing that the Employer is
not statutorily exempt from the Board's jurisdiction,
argues basically that the Board nevertheless should
decline to assert jurisdiction over the Employer
because its operation is so intimately related to the
operations of the foregoing nonprofit hospitals as to
be "almost undistinguishable" therefrom and, there-
fore, it should be afforded the nonprofit hospital
statutory exemption. We find no merit in this
contention.
We agree that the Employer is involved in a
coordinated effort designed to fulfill the Program's
objectives and that, in connection therewith, there is
some functional and operational overlap between the
Employer and Hospital. However, the record clearly
shows that the Employer is engaged in a business for
profit, and that its operation affects commerce just as
substantially and in precisely the same manner as any
other business endeavor.5 Moreover, the Employer is
not a hospital, it does not operate, control, or own a
hospital nor is it controlled or owned by a hospital,
and its overall function and operation is separate and
distinct from the nonprofit hospital involved herein.
1 Hearing Officer Kintz replaced Hearing Officer Montobbio as majority of the hospitals ' doctors are furnished by the Employer.
Hearing Officer very early in the hearing . 4 Plan is the only entity within the Program with which the Employer is
2 Intervention at the hearing was permitted on the basis of Intervenor 's in contract.
collective-bargaining agreement with the Employer . 5 We note, parenthetically , that the Employer itself does not contend
3 Although some community doctors also practice in these hospitals, the that it falls within the statutory exclusion afforded nonprofit hospitals.
187 NLRB No. 143
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, therefore, that the Employer does not fall
within the provisions of Section 2(2) of the Act.6
Accordingly, in view of the Employer's substantial
effect on commerce, we also find that it is engaged in
commerce within the meaning of the Act and that it
will effectuate the policies of the Act to assert
jurisdiction in this proceeding.
2. The labor organizations involved claim to
represent certain of the employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. As indicated above, the Employer operates out-
patient clinics in 15 northern California
communities.7 Petitioner has filed six petitions, each
of which seeks to represent at the clinic designated
therein a separate unit of laboratory technologists
who, the parties stipulated, are professional employ-
ees under the meaning of Section 2(12) of the Act.
More specifically, Petitioner seeks to represent at each
of the six petitioned-for clinics8 a separate unit of all
clinical laboratory technologists employed therein by
the Employer who are classified as laboratory
technologists, senior laboratory technologists, and
supervising laboratory technologists9 and who either
have satisfied all of the educational requirements set
forth in Sections 1200 through 1304 of the California
Business and Professions Code, or fall within the
exemptions thereof and are performing the work of
clinical laboratory technologist at each of the peti-
tioned-for facilities, excluding, however, all cytology
technologists and all other employees and supervi-
sors. Alternatively, Petitioner would represent these
technologists in a unit consisting of any two or more
of the six petitioned-for clinics, or in an all inclusive
multiplant geographical unit consisting of all of the
clinics located in northern California presently
represented by Intervenor.10
Intervenor contends that its collective-bargaining
agreement with the Employer constitutes a bar to the
petitions pertaining to the clinics located at San
Francisco and Walnut Creek because those petitions
were filed subsequent to the time ti parties had
"substantially completed" a new agreement. Alterna-
tively, it contends that its history of bargaining
6 Cf Mayo Clinic, 168 NLRB 557; Quain and Ramstad Clinic, 173
NLRB No 182
7 Santa Clara, Redwood City, San Francisco, Hayward, Walnut Creek,
Sacramento , South San Francisco, Terra Linda, Oakland, Richmond,
Vallejo, Napa, Sunnyvale , San Rafael, and Antioch.
8 Clinics located at Santa Clara , Redwood City, San Francisco,
Hayward, Walnut Creek, and Sacramento
9 Supervising laboratory technologists exercise a functional and
technical type of supervision . They are not supervisors within the meaning
of Section 2(11) of the Act
iu In addition to the clinics represented by Intervenor , the Employer
also employs clinical laboratory technologists at Oakland and Vallejo.
renders inappropriate any unit other than the one
covered by its most recent contract, i.e., a geographi-
cal multiplant unit covering both professional and
nonprofessional employees, including the petitioned-
for technologists, employed in all of the northern
California clinics except the clinics located in Oak-
land, Vallejo, and Napa. Intervenor further contends
that, if the unit is to consist only of clinical laboratory
technicians, "the only appropriate unit would be one
which geographically covered all of the facilities
covered under the collective bargaining unit"
(northern California). Intervenor argues that, inas-
much as the two petitions which were filed subsequent
to its "substantially completed" agreement are barred
by that agreement, elections cannot be held on the
basis of the remaining four petitions which were
timely filed prior to that agreement because those
petitions seek elections in an inappropriate unit.
The Employer has taken no unit position.
We reject Intervenor's contention that the petitions
pertaining to the San Francisco and Walnut Creek
facilities are barred by its collective-bargaining
agreement with the Employer. The record shows that,
pursuant to negotiations, Intervenor and the Employ-
er had reached agreement on most issues several
hours prior to the time those petitions were filed. It
also shows, however, that, when those petitions were
filed, there was no single document embodying such
matters as had been agreed upon, and there is no
evidence that such documents as were in existence
had been either initialed or signed. The items agreed
upon, moreover, had not been consolidated and
reduced to writing or signed until 8 days after those
petitions had been filed, and that signed instrument
was drawn in the form of a summary memorandum.
In addition, the parties continued to bargain with
respect to several minor items for several months
thereafter, and a unified and complete collective-
bargaining agreement was not executed until approxi-
mately April 1969-4 months subsequent to the filing
of those petitions. We find, therefore, that the
aforesaid partial collective-bargaining agreement
does not constitute a bar to the processing of the San
Francisco and Walnut Creek petitions.ii
As to the appropriate unit, the record contains little
information concerning the duties of clinical labora-
Petitioner currently represents clinical laboratory technologists at the
Oakland clinic . The record does not indicate whether Petitioner also
represents other classifications of employees at that clinic
The Vallejo facility, originally known as the Kaiser Cabot Institute, was
established as a rehabilitation center primarily for members of the United
Mine Workers union, and "operated relatively independently from the
General Health Plan complex of the Kaiser Foundation " While the record
does not indicate whether this facility has changed in either name or
purpose, it does show that the eight clinical laboratory technologists
employed at this facility are unrepresented and that they are not sought by
any party
ii Appalachian Shale Products Co., 121 NLRB 1160.
THE PERMANENTE MEDICAL GROUP 1035
tory technologists. It does show that these profession-
al employees are employed at each of the Employer's
northern California clinics, involved herein, where,
the record indicates, they perform the same type of
work. It further shows that Intervenor's representa-
tion of the laboratory technologists dates back to
1952, at which time it entered into several bargaining
agreements with the Employer, each of which covered
a unit consisting of certain classifications of nonpro-
fessional employees and the laboratory technologists
at each of the clinics then in existence. In 1954, the
individual agreements were consolidated into a
master agreement covering, basically, all clinics in
California north of Tehachapi and all classifications
of employees then covered by the consolidated
agreement plus any classifications not represented by
other unions who wished to be represented by
Intervenor. As new clinics came into being, the
covered employee classifications therein were accret-
ed to the multiplant unit upon a showing of interest,
and the collective-bargaining agreements were
amended accordingly. The agreements executed in
and since 1963 eliminated the showing of interest
requirement by providing, in substance, that those
agreements would automatically cover all classifica-
tions of employees then represented by Intervenor in
any newly established clinic in northern California.12
As of the time of the hearing, the mixed bargaining
unit encompassed clinics at 12 different northern
California locations.
All of the foregoing units were voluntarily estab-
lished without the benefit of Board-conducted elec-
tions and, with the possible exception of the laborato-
ry technologists at the Richmond clinic,13 the technol-
ogists never were afforded self-determination elec-
tions to which, as professional employees, they were,
and are, entitled under the provisions of Section
9(b)(1) of the Act. While not disputing the foregoing,
Intervenor argues, in effect, that self-determination
elections cannot be conducted unless all of the
technologists in all of the clinics represented by
Intervenor participate therein.
For the last 16 years, the Employer and Intervenor
have reached their collective-bargaining agreements
through centralized negotiations and have applied
those agreements through single contracts covering all
classifications of employees, including the technolo-
gists sought, at all of the clinics. Thus, almost from the
very beginning of their bargaining relationship, the
parties clearly indicated that they intended to, and
ultimately did, effect a consolidation of all clinics
involved herein into a single multiplant unit. By filing
its petitions, Petitioner, in effect, seeks to represent an
arbitrary segment of the existing unit, specifically the
technologists employed at six clinics , despite the fact
that the technologists in all of the clinics appear to
have identical classifications, duties, and interests.
As professionals, the employees sought are entitled
to a self-determination election. We find, however,
that this election should be conducted on a basis
coextensive with the existing bargaining unit.14 As
Petitioner's alternative unit request seeks a profes-
sional unit of the same scope as the existing mixed
professional and nonprofessional unit represented by
Intervenor, we shall direct an election on that basis.
Accordingly, we find that an overall multiplant unit
of clinical laboratory technologists employed by the
Employer at its clinics located in northern California
at Santa Clara, Redwood City, San Francisco, South
San Francisco, Hayward, Walnut Creek, Sacramento,
Terra Linda, Richmond, Sunnyvale, San Rafael, and
Antioch may constitute an appropriate unit for the
purposes of collective bargaining. We shall, therefore,
direct that an election be conducted among the
following employees in the aforesaid unit:
All clinical laboratory technologists employed by
the Employer who are classified as laboratory
technologists, senior laboratory technologists, and
supervising laboratory technologists and who
either have satisfied all of the educational require-
ments set forth in Sections 1200 through 1304 of
the California Business and Professions Code, or
fall within the exemptions thereof and are per-
forming the work of clinical laboratory technolo-
gists, excluding all cytology technologists and all
other employees and supervisors as defined in the
Act.
The clinical laboratory technologists in issue will be
asked two questions on their ballots:
(1) Do you desire to be included in the same unit as
other employees represented by Hospital and Institu-
tional Workers Union Local 250, SEIU, AFL-CIO,
for the purposes of collective bargaining?
(2) Do you desire to be represented for the purposes
of collective bargaining by Hospital and Institutional
Workers Union Local 250, SEIU, AFL-CIO; or by
California Association of Medical Laboratory Tech-
nologists; or by neither.
If a majority of the professional employees vote
"yes" to the first question, indicating that they wish to
be included in a unit with the nonprofessional
employees, they will be so included. If, on the other
hand, a majority of the professional employees do not
vote for inclusion, they will not be included with the
12 Since 1963, clinics have been established at Santa Clara (1964), Richmond clinic in 1964 or 1965, but the record does not clearly indicate
Richmond ( 1964 or 1965 ), Hayward ( 1966), Sacramento ( 1966), Terra the nature of that preference.
Linda (1967), and Redwood City (1967). 14 See Genera l Motors Corporation, 120 NLRB 1215, 1221.
13 Some sort of preference was afforded the technologists at the
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonprofessional employees, and their votes on the
second question will then be separately counted to
decide whether they want any of the Unions on the
ballot to represent them in a separate professional
unit. The record does not indicate that either of the
labor organizations would not be willing to represent
the professional employees separately, if those em-
ployees vote for separate representation. However, if
any Union does not desire to represent these
professional employees in a separate unit even if those
employees vote for such representation, that Union
may notify the Regional Director to that effect within
20 days of the date of this Decision and Direction of
Election.15
Our unit determination is based in part, then, upon
the results of the election. However, we now make the
following findings:
(1) If a majority of the professional employees in the
unit found appropriate herein vote for inclusion in a
unit with nonprofessional employees, we find those
employees may remain in the existing multiplant unit
which covers both professional and nonprofessional
employees in the Employer's clinics in northern
California except those located at Oakland, Vallejo,
and Napa.
15 The Firestone Tire & Rubber Company, 181 NLRB No 132, New
England Telephone and Telegraph Company, 179 NLRB No 93
16 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S
759. Accordingly, it is hereby directed that an election eligibility list,
(2) If a majority of the professional employees in the
unit found appropriate herein do not vote for
inclusion with nonprofessional employees, we find
that the following employees will constitute a separate
unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act:
All clinical laboratory technologists employed by
the Employer at its clinics located in Northern
California at Santa Clara, Redwood City, San
Francisco, South San Francisco, Hayward, Wal-
nut Creek, Sacramento, Terra Linda, Richmond,
Sunnyvale, San Rafael, and Antioch who are
classified as laboratory technologists, senior labo-
ratory technologists, and supervising laboratory
technologists and who either have satisfied all of
the educational requirements set forth in Sections
1200 through 1304 of the California Business and
Professions Code, or who fall within the exemp-
tions thereof and who perform the work of clinical
laboratory technologists at the aforesaid clinics,
excluding all cytology technologists and all other
employees and supervisors as defined in the Act.
[Direction of Election 16 omitted from publication.]
containing the names and addresses of all eligible voters, must be filed by
the Employer with the Regional Director for Region 20 within 7 days of
the date of this Decision and Direction of Election The Regional Director
shall make the list available to all parties to the elections . No extension of
time to file these lists shall be granted by the Regional Director except in
extraordinary circumstances Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed