Beecher Ancillary Services, Inc.

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beecher Ancillary Services, Inc.' and Beecher Clinical Laboratory Employees Association, Petitioner. Case 7-RC-12813 July 7, 1976 DECISION ON REVIEW On January 30, 1975, the Regional Director for Region 7 issued a Decision and Direction of Election in the above-entitled proceeding, in which he found appropriate a unit of employees at the Employer's laboratory including medical technologists, technolo- gist student-trainees, registered technicians, and technical aides. Thereafter, in accordance with Sec- tion 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Re- gional Director's decision on the grounds, inter aka, that in finding the technologists and student-trainees not to be professional employees, he departed from precedent and made findings of fact which are clear- ly erroneous. The National Labor Relations Board by telegraph- ic order dated June 24, 1975, granted the request for review solely with regard to the professional status of medical technologists and technologist student-train- ees and stayed the election pending the Decision on Review. The Board has considered the entire record in this case with respect to the issues under review and makes the following findings: The Petitioner requests a broad unit of employees at the Employer's Laboratory in Mt. Morris, Michi- gan, including medical technologists, technologist student-trainees, registered technicians, and techni- cal aides. The Regional Director found that none of the above-named employees were professional em- ployees and therefore approved the stipulated unit as being appropriate and ordered an election. The Em- ployer contends that the evidence does not support these findings. For the reasons advanced by the Re- gional Director, we disagree. Our concurring colleague argues that in finding the technologist student-trainees to be employees within the meaning of the Act, we are departing from precedent established in Cedars-Sinai Medical Cen- ter, 223 NLRB 251 (1976). We disagree. While it is true that the student-trainees must complete a year of clinical internship as a prerequisite to becoming tech- nologists, it is at this point that the similarities be- tween the student-trainees here and the interns in Cedars-Sinai, supra, end. In our judgment, the student-trainees in this case are more akin to appren- tices than they are to students. The student-trainees work in several different de- partments of the laboratory: bacteriology, hematolo- gy, automated blood testing, chemistry, serology, and electrophoresis. Under the guidance of a technolo- gist, their primary responsibility is to perform routine tests on samples of human blood, waste, and tissues sent to the laboratory by physicians to determine the presence or absence of disease. In this task, they work with special solutions and equipment, analyze the results of tests, and compare the results with a standardized control before sending the results to the physicians. The student-trainees do not work with patients, have no direct contact with physicians, and do not diagnose or prescribe treatment. In essence, the student-trainees are receiving on-the-job training under the watchful eye of skilled workers. While the record shows that some of the student- trainees have left the laboratory following their first year of employment, it cannot be said that they have left by virtue of their "graduation." The record does not reflect any instance in which a student-trainee left the laboratory in order to accept a medical tech- nologist position elsewhere. Rather, their departures were occasioned by such factors as a decision to en- ter professional school or because a spouse was relo- cating. The laboratory administrator testified that it is hoped that the better student-trainees will continue their employment after the first year. In view of the above, while it is true that the indi- viduals in dispute are being trained to perform cer- tain routine tasks, they are not "students" acquiring an "education" as those terms are commonly under- stood, or as they were intended in Cedars-Sinai, su- pra. Accordingly, we do not accept our concurring colleague's accusation that our findings here are in- consistent with those made in Cedars-Sinai, supra. The parties stipulated that should the medical technologists be deemed to be technical employees, they should be included in an overall unit with the student-trainees. Since the record supports a finding that both the medical technologists and the student- trainees are technical employees, we shall accept and apply the stipulation. Accordingly, It is hereby ordered that this proceeding be, and it hereby is, remanded to the Regional Director for the purpose of conducting an election pursuant to his Decision and Direction of Election, provided that the payroll period for determining eligibility in this case shall be that ending immediately before the date of this Decision on Review.' 1 The Employer's name appears as corrected at the hearing 2 [Excelsior footnote omitted from publication ] 225 NLRB No. 83 BEECHER ANCILLARY SERVICES, INC. MEMBER FANNING, concurring: I agree with the conclusion reached by my col- leagues in this case, but take the occasion to point out what I consider to be an inconsistency between the majority's inclusion of certain student-trainees performing an internship to fulfill state requirements for licensing as technologists and the Cedars-Sinai Medical Center 3 majority holding that medical in- terns and resident doctors are not employees within the meaning of the Act. According to the majority opinion in the instant case there are differences between the interns in- volved here and those found in Cedars-Sinai of such a nature as to warrant finding the former employees and the latter "students and, therefore, not employ- ees." To examine those differences, however, is to find similarities: "Student-trainees work in several different departments;" they are "receiving on-the- job training under the watchful eye of skilled work- ers." "While . . . some of the student trainees have left the laboratory following their first year of em- ployment, it cannot be said that they have left by virtue of their `graduation.' " ° 3 Cedars-Sinai, supra 643 In point of fact , the only true differences between the student-trainees of this case and the medical in- terns read out of the Act by my colleagues is, as today's decision unwittingly emphasizes, that the ex- cluded interns and resident doctors do not perform "routine" tasks but profound ones, do not work with inanimate objects but with people , do not "have no direct contact with physicians" but are the physicians themselves. There is, simply, no significant difference between the two groups , in terms of the Act's definition of "employee" and Congress' understanding of the term . All the majority in this case has done is discuss particular differences in the type of work done by both groups and, in the process, reveal that both groups do "work" for an employer by whom they are compensated. Since this statement is, presumably, made by the majority to underscore "differences" between intern technologists and intern doctors, it should be read as indicating a majority contention that the latter group "graduates" upon completing the internship That is , however, simply not true As I indicated in my dissent in Cedars-Sinai, medical interns do not graduate, do not receive examinations , do not receive diplomas, and take no tests while in their internship as, to use the majority's phrase, "those terms are com- monly understood "