Rockridge Medical Care Center

National Labor Relations Board - Board Decisions

Nov 20, 1975

221 N.L.R.B. 560 (N.L.R.B. 1975)

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rockridge Medical Care Center and Hospital and
Institutional Workers Union, Local 250, SEIU,
AFL-CIO, Petitioner . Case 20-RC-12797
November 20, 1975
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Joseph R.
Wirts. Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure, Series
8, as amended, by direction of the Regional Director
for Region 20, the case was transferred to the Board
for decision. Thereafter, the Petitioner and the
Employer 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 Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in the case, the Board
makes the following findings:
1. The Employer is 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 the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The Petitioner seeks a unit composed of all
registered nurses and nurse practitioners employed
by Employer at its Oakland, California, health care
clinic. It contends that a unit of registered nurses is
appropriate, citing Mercy Hospitals of Sacramento,
Inc., 217 NLRB No. 131 (1975), and that the nurse
practitioners should be included in that unit because
their community of interest is closely aligned with the
registered nurses.
The Employer contends that the only appropriate
unit in a small medical clinic, as here, is a unit which
includes all professional employees. The Employer
further contends that, even if the registered nurses
are found to comprise an appropriate unit, the nurse
practitioners should not be included in that unit
because they have virtually no community of interest
with the registered nurses and have extremely close
ties with the other professionals on the staff.
Employer is an out-patient medical facility which
began operation in 1972. It has a professional
nonsupervisory staff of I I physicians, most of whom
are regularly scheduled part-time employees, 6 nurse
practitioners,' 4 dentists, 2 optometrists, 1 dietician,
1 psychiatric social worker, and 2 registered nurses.
The RN's assist physicians and nurse practitioners.
Their duties include taking the patients' temperature
and blood pressure, and performing necessary
patient preparatory work.
The Board has previously held that a unit of
registered nurses is appropriate, Mercy Hospitals of
Sacramento, Inc., supra. The factors relied on therein
are largely present here as well. The fact that the
clinic here is relatively small is not in our view a
sufficient basis for reching a different result. There-
fore, we find that a unit of registered nurses is
appropriate herein.
Next we turn to the question of whether nurse
practitioners are appropriately included in such a
unit. Essentially, these are RN's with an additional 2
years of education. Under California law, they are
authorized to examine patients, make diagnoses, and
prescribe medications and therapy. The evidence
shows that the nurse practitioners employed by the
Employer perform all of these duties and functions.
However, the evidence also establishes that they hold
no state license apart from that of registered nurses,
entries made by them on a patient's medical records
as to evaluation and treatment must be reviewed and
signed by a physician, and any prescriptions written
by them must be countersigned by physicians.
Hence, notwithstanding that they perform certain
tasks similar to that performed by physicians, it
would appear that the ultimate responsibility for the
treatment, drug prescription, and patient diagnosis
and care still resides with the licensed physician.
Nevertheless, the Employer contends that the
duties, function, and elevated professional standing
of nurse practitioners clearly distinguish and set
them apart from RN's. Thus, in addition to the
duties described above, nurse practitioners are paid a
salary which is approximately 20 percent higher than
that received by RN's; they are not required to wear
uniforms; they participate in medical staff meetings
with the physicians; they are supervised by the
Employer's executive director, Dr. John Austin, who
also supervises the physicians; they can and do refer
patients to other professionals; and their time, like
the physicians', is billed directly to the patients.
RN's, on the other hand, are required to wear
221 NLRB No. 119
I Two of whom work full time The other four regularly rotate Saturday
shifts
ROCKRIDGE MEDICAL CARE CENTER
uniforms , do not attend medical staff meetings, have
no patients to refer, and are supervise& by the
coordinator of nursing services- who is a nurse
practitioner. Also, their services are not a direct
source of revenue.
Notwithstanding the, differences, that here exist
between nurse practitioners and RN's, on balance we
are persuaded that the ,former are basically registered
nurses who have received 2 years additional educa-
tion and are given some additional responsibilities.
These additional responsibilities;"--however, are, as
'already noted, severely circumscribed by the fact
that nurse practitioners mush report to a physician
for approval of'any decision regarding patients which
goes beyond the normal duties and responsibilities of
an RN.- If only for..this,keason, we do not agree with
the Chairman that the- physicians, in effe>a%merely
rubberstamp the duties and functions of the nurse
practitioners by giving them ,perfunctory approval.
We also deem it significant that nurse practitioners
'are not separately licensed as such by the State of
California.
In our consideration of this issue, the above factors
clearly outweigh those showing higher, pay for nurse
practitioners and other surface distinctions between
them and the RN's employed by the Employer. The
pay differential merely recognizes that they have
additional duties to perform. Indeed, the evidence
shows that in terms of salary they are paid only 40
percent of the clinic physicians' assigned worth,
despite the Employer's contention that they perform
essentially the same tasks and provide like services.
As for their not being required to wear uniforms, that
can be explained by the fact that they are expected to
assume a role similar to that of a physician in the eye
of the public seeking the services provided by the
clinic ; and their attendance at medical staff meetings
and supervision by a physician would seem to result
from the need of the clinic to coordinate the
responsibilities and functions of nurse practitioners
and physicians, particularly where, as here, the latter
are held responsible for the former's diagnostic
treatment and prescriptions of medicine and therapy.
Finally, the billing of patients for services performed
for nurse practitioners would seem to represent
nothing more than a method of determining the
payment owed the clinic for such services.
In sum, therefore, because of the similar education-
al background, training , and not too dissimilar
functions of nurse practitioners and regular nurses-
in other words the substantial community of interest
they both share-we find that the nurse practitioners
should be included in the unit of 'registered nurses
heretofore found appropriate.
561
In view of the foregoing , we find that the following
employees of the Employer constitute a, separate
appropriate unit for . the purposes of collective
bargaining within the meaning of Section 9(c) of the
Act:
All registered. nurses and nurse practitioners
employed by the Employer's facilities at 420 40th
Street, Oakland, California, excluding all other
employees, guards, and supervisors as defined by
the Act.
[Direction of Election omitted from publication.]2
CHAIRMAN MURPHY, dissenting in part:
I agree with my colleagues that a separate unit of
registered nurses would be appropriate for the
reasons stated in Mercy Hospitals of Sacramento, Inc.,
217 NLRB No. 131 (1975), especially where, as here,
no labor organization seeks to represent a unit of all
professional employees. However, I disagree with
their additional conclusion that nurse practitioners
properly belong in that unit.
The distinctively different duties and functions of
the nurse practitioners from those of the RN's; their
special training; and their authorization by the State
to perform, and their performance of, tasks tradition-
ally associated with physicians, in my opinion,
establish anew and separate class of health care
specialists, whose status and interest would appear to
be more akin to that of a physician than of a
registered nurse. This conclusion is further borne out
by that fact that registered nurses are not permitted
either by the Employer or California state law to
examine patients, diagnose their ailments, or pre-
scribe treatment for them of any kind, all of which
comprise the duties performed by nurse practitioners
and represent the raison d'etre for the establishment
of their profession. Indeed, the only obvious similari-
ty between nurse practitioners and registered nurses
is that both attended nursing school and received the
same license before the nurse practitioners went on
to advance study and a new, promising, and more
responsible career.
My colleagues, however, gloss over the fact that
nurse practitioners are assigned their own patients
for whom they prescribe treatment and medication,
and attempt to minimize these facts by noting that
the medical evaluations and prescriptions prepared
by the nurse practitioners are subject to "approval"
and "countersignature," respectively, by physicians.
They thus erroneously reach the conclusion that
nurse practitioners are in essence nothing more than
nurses with additional training and some relatively
minor additional responsibilities and duties.
2 [Excelsior fn. omitted from publica tion.]
562 DECISIONS OF NATIONAL LABOR RELATIONS HOARD
What my colleagues ignore, however, is that the
nurse practitioners basically perform their duties
independently of the physicians employed at the
clinic. They deal directly with the patients assigned
to them; and based on their knowledge, experience,
and judgment they reach whatever diagnostic con-
clusions they deem to be applicable to the condition
of their individual patients and prescribe the neces-
sary treatment therefor. Further, the subsequent
"approval" and "countersignature" by physicians of
their medical evaluations and prescriptions are more
often than not routinely given and of a ministerial
nature. How in the face of these facts the perfunctory
approval and countersignature of physicians can be
relied on-ay-ii y colleagues to blithely dismiss the fact
that nurse practitioners have their own patients, and
perform duties and functions which are usually
3 My conclusion that the duties and functions of nurse practitioners are
sufficient to create special interests for them which would serve to remove
them from mclusion ` in a unit restricted to registered nurses should not be_
construed to mean either that I believe that only a separate unit for them^
would be appropriate or that their interests are so separate and remote from
those of registered nurses that their inclusion with that group and other
associated with and reserved exclusively for physi-
cians, passes my understanding. Furthermore, while
'the higher pay enjoyed by- nurse practitioners, the
absence of a uniform requirement for them, their
attendance at medical staff meetings and common
supervision with physicians, their engagement in
patient referral, and the clinic's direct billing for their
services may not in and of themselves be'dispositive
of the issue,'it seems clear to me that these further
distinguishing features support the conclusion that
nurse practitioners enjoy a separate identity, and
status from that of registered nurses warranting their
exclusio^i from a unit restricted to-the latter classifi-
cation.3
Accordingly, L would -exclude nurse practitioners
from the unit found appropriate herein.
professionals in an overall professional unit would be mappropriate.,To the
contrary, in Mercy Hospitals of Sacramento, Inc., supra, the Board found that
a unit of all professional employees would be appropriate in view of the
community of interest shared by the employees because of their professional
status and similar employee concerns No such unit, however, has been
sought herein.