Kaiser Foundation Hospitals

National Labor Relations Board - Board Decisions

May 28, 1974

210 N.L.R.B. 949 (N.L.R.B. 1974)

KAISER FOUNDATION HOSPITALS 949
Kaiser Foundation Hospitals , The Permanente Medi-
cal Group , Kaiser Foundation Health Plan, Perma-
nente Services , Inc. and California Licensed Voca-
tional Nurses Association , Inc., Petitioner. Case
20-RC- 10243
May 28, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a petition filed under Section 9(c) of the
National Labor Relations Act, as amended, and
pursuant to an order of this Board dated August 23,
1973, a hearing was held on October 10 and 12,
November 8 and 9, December 5 and 6, 1973, and
January 8, 1974, before Hearing Officers Paula J.
Paley and Stephen H. Booth of the National Labor
Relations Board. Following the hearing and pursuant
to Section 102.67 of the Board's Rules and Regula-
tions and Statements of Procedure, Series 8, as
amended, the Regional Director for Region 20
transferred the case to the Board for decision.
Thereafter, the Employer, the Petitioner, and the
Intervenors each filed briefs.
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 Officers'
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employers named in the petition herein
are a group of several employers, all having various
locations in northern California but all sharing
interrelationships with one another. The Employers
are Kaiser Foundation Hospitals, The Permanente
Medical Group, Permanente Services, Inc., and
Kaiser Foundation Health Flan. Under contract with
Kaiser Foundation Health Plan, a nonprofit corpora-
tion, The Permanente Medical Group, a profit-
making partnership of doctors, provides medical
services to members and nonmembers of the Health
Plan. The medical services are provided at 11 Kaiser
Foundation Hospital locations in northern Califor-
nia, where The Permanente Medical Group also uses
office space, and at 3 clinic locations not attached to
a hospital. Kaiser Foundation Hospitals, a nonprofit
corporation, provides hospital services to both
members and nonmembers of the Health Plan.
Finally, Permanente Services, Inc., a profit-making
corporation, provides various administrative and
pharmacy services to the Health Plan, Kaiser
Foundation Hospitals, and The Permanente Medical
Group.
The Petitioner contends that jurisdiction should be
asserted over all four entities. It claims that by virtue
of the close association with and benefits derived
from The Permanente Medical Group, Kaiser
Foundation Hospitals must lose the exemption
provided by Section 2(2) of the Act to nonprofit
hospitals. The Employer, on the other hand, asserts
that because of the close association among the
entities, and with members of the unit sought
working for both a nonprofit entity (Kaiser Founda-
tion Hospitals) and a profit-making entity (Perma-
nente Medical Group), the Section 2(2) exemption
should be extended to the profit-making entity. In
the alternative, the Employer suggests that jurisdic-
tion should be asserted over all the entities. The
Intervenor did not take a position with regard to
jurisdiction.
We disagree with the various positions expressed
regarding jurisdiction of the Board in this proceed-
ing.
We find that the nonprofit Kaiser Foundation
Hospitals and the related nonprofit Kaiser Founda-
tion Health Plan fall within the exemption granted
by Section 2(2) of the Act. We also find that
Permanente Services, Inc., which is not exempted by
Section 2(2), does not employ any employees within
the purview of the petition herein. We therefore
dismiss the petition as to those latter three entities.
With respect to The Permanente Medical Group,
however, which employs licensed vocational nurses,
sought herein, we find no merit in the contention that
it is a joint-employer with Kaiser Foundation
Hospitals.2 It is therefore not entitled to an exemp-
tion from our jurisdiction under Section 2(2) of the
Act.
Accordingly, as the record indicates that The
Permanente Medical Group (hereinafter the Employ-
er or Permanente) satisfies our jurisdictional stand-
ards, and, as noted, is not exempt from our
jurisdiction, we 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. We find that the Petitioner and the Intervenor
are labor organizations within the meaning of the
Act who claim to represent certain employees of the
Employer.
3. No question affecting commerce exists con-
I Hospital and Institutional Workers Union, Local 250, Service Employ- petitioned for herein
ces International Union, AFL-CIO, intervened based on its existing 2 See Southern California Permanente Medical Group, 209 NLRB No 26
collective-bargaining contract with the Employer covering the employees
210 NLRB No. 142
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerning the representation of the employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act, for the following reasons:
The Petitioner seeks to sever Permanente 's licensed
vocational nurses (LVN's) from an existing unit
consisting of nursing personnel (but not registered
nurses), various technical personnel , clerical person-
nel, and maintenance and service personnel.3 The
existing unit has been represented by the Intervenor
for 20 years and is currently represented under a
master collective -bargaining agreement between the
Intervenor and various entities , including Perma-
nente . The Employer is also signatory to seven other
collective -bargaining agreements.
The Petitioner seeks severance on the basis that the
LVN's are professional employees or, in the alterna-
tive, a craft entitled to a separate unit . The Employer
contends, however , as does the Intervenor , that the
existing unit is the appropriate unit. The Intervenor
additionally notes that to allow severance of the
LVN's would unduly fragmentize a well-defined
collective -bargaining unit which actually functions as
a unit and would ignore a long history of collective
bargaining by Intervenor in behalf of the existing
unit.
The record discloses that Permanente employs 235
LVN's, 500 registered nurses, and 85 nurse attend-
ants among its total of 4,620 employees . The record
also discloses , and the parties agree , that the position
of LVN has evolved from a simple to a more
complex position in terms of what is expected of an
LVN.
At present an LVN may lawfully administer
medications by hypodermic injection , may withdraw
blood for the purpose of testing if competence in this
procedure has been displayed , and test a motorist
allegedly under the influence of alcohol . Authoriza-
tion to perform these procedures represent liberal-
ized changes in the California law governing LVN's.
At the same time, educational requirements for
LVN's have been increased . An applicant for an
LVN license ( 1) must have completed a course of
study through the 10th grade , (2) must have
completed the prescribed course of study in an
accredited vocational nursing school , which takes
from 12 to 18 months , and (3) must pass an
examination . Two exceptions are granted by the
governing statute for the educational requirements.
The first allows a person possessing either the
education or the experience , or a combination
thereof , equivalent to that acquired in a vocational
nursing school , to be licensed upon successful
completion of the examination . The second excep-
tion allows a person who has served as a medic in the
armed forces with no less than 12 months of
rendering patient care to be licensed upon passing
the examination.
The Petitioner cites the increased requirements for
licensing and the general evolution of the LVN in
support of its assertion that they are professional
employees within the meaning of the Act or, in the
alternative, practitioners of a craft, but in any event
entitled to a severance election. The Petitioner also
cites in support of its position several cases in which
licensed practical nurses were found to have a
community of interest separate and apart from that
shared by other employees.4 We note, however, that
those cases did not involve a severance from an
existing unit. In that respect, they are distinguishable
from the facts herein.
The Petitioner further relies on a shifting nursing
care concept from team nursing to total patient care
to demonstrate a need for separate LVN representa-
tion. Under the team nursing concept, the registered
nurse gives orders to the LVN, who in turn directs an
aide in the execution of tasks. Under total patient
care an LVN is more involved in treatment than
under team nursing. The extent to which Permanente
employs the two nursing care concepts is unclear. It
is clear, however, that both concepts require coordi-
nation and teamwork in the nursing department.
Without an integrated process in that department, a
patient could not receive adequate care. The Peti-
tioner maintains, however, that under total patient
care an LVN functions very much like an RN, with
the caveat that LVN's may not start intravenous
feedings. The Petitioner contends that the LVN's
deserve separate representation from the other
employees in the unit.
We disagree with the Petitioner's contentions.
First, we are not persuaded that the LVN's herein are
professional employees within the meaning of the
Act. A portion of Section 2(12) of the Act requires
that a professional employee be engaged in work
which involves the consistent exercise of discretion
and judgment in its performance. While it is clear
that LVN's perform nursing functions such as
administering treatments, charting patients, and
monitoring their condition, it is also clear that they
perform tasks such as transporting patients, light
housekeeping, and other tasks similar to those
performed by nurses aides.
Secondly, with respect to the craft status of the
LVN's, we note that the LVN's have been represent-
ed by the Intervenor in the existing unit for more
than 20 years. There is no substantial evidence to
3 This represents Petitioner's alternatively requested unit . Petitioner 's Hospitals , and Permanente Services. Inc.
first request was for severance of a unit of LVN's employed not only by + Madeira Nursing Center, Inc, 203 NLRB No. 42 , and Exiendicare of
Permanente but also by Kaiser Foundation Health Plan, Kaiser Foundation West Virginia, Inc, d/b/a St. Luke's Hospital, 203 NLRB No. 170.
KAISER FOUNDATION HOSPITALS 951
indicate that their bargaining interests have been
neglected during this period of representation in the
broader unit.
In Mallinckrodt Chemical Works,5 we indicated
that craft severance petitions would be weighted on a
case-by-case basis in terms of all relevant factors.
These included, among others, the bargaining history
of the employees sought, and the degree of integra-
tion, including the extent to which the continued
operation of an employer's processes is dependent
upon the performance of the assigned functions of
the employees in the proposed unit.
We have already noted the lengthy bargaining
history of 20 years' duration between the Intervenor
and Permanente in the broader unit. We have also
noted the degree of teamwork required in the nursing
department. Upon reviewing all the facts, we
conclude that it would not effectuate the purposes of
the Act to allow a fragmentation of the existing unit
as sought herein. We, therefore, find that it would
not be appropriate to sever the LVN's from the
existing unit, and, accordingly, we shall dismiss the
petition as to The Permanente Medical Group on
that basis.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
5 162 NLRB 387