Twin City Hospital Corp.

173 304 NLRB No. 31 TWIN CITY HOSPITAL CORP. 1 292 NLRB 114 (1988). 2 889 F.2d 1557 (6th Cir. 1989). 3 Id. at 1564. The court found that substantial evidence supported the Board’s determination that the laboratory employees were professionals under the other two of the four statutory criteria for determining professional status (that the work require advanced educational training and that it cannot be standardized in relation to a given period of time). See Sec. 2(12) of the Act, set forth infra. 4 All service, maintenance, technical and clerical employees, excluding day care employees, professional employees, confidential employees, managerial employees and guards and supervisors as defined in the Act. 5 All professional employees including registered nurses, medical technicians and medical laboratory technicians, excluding all guards and supervisors as de- fined in the Act and all other employees. The Twin City Hospital Corporation and Alu- minum, Brick and Glass Workers, Inter- national Union, AFL–CIO. Case 8–CA–20975 August 21, 1991 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On December 30, 1988, the National Labor Rela- tions Board issued a Decision and Order1 in which the Board found that the Respondent had violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to bargain with the Union. Sub- sequently, the Respondent filed with the United States Court of Appeals for the Sixth Circuit a petition for re- view of the Board’s Order, and the General Counsel filed a cross-application for enforcement. Thereafter, on November 22, 1989, the court granted the Respondent’s petition for review, denied the Board’s cross-petition for enforcement, and remanded the case to the Board.2 Although the court affirmed the Board’s placement of the registered nurses in the pro- fessional unit, the court found that the evidence was insufficient to establish that the medical technologists and the medical laboratory technologists are profes- sional employees. More specifically, the court found that the record was insufficient to establish that the technologists’ work was ‘‘intellectual in nature and that the work involves the consistent exercise of dis- cretion and judgment.’’3 On July 11, 1990, the Board advised the parties that it had accepted the court’s remand and issued an Order reopening the record and remanding the proceeding to the Regional Director for a hearing before an adminis- trative law judge. On July 26, the Regional Director issued a notice of hearing scheduling a hearing for November 6. On No- vember 2, the Respondent filed a Request for Special Permission to Appeal the Denial of the Employer’s Request for a Continuance and Motion for an Order Vacating the Board’s July 11, 1990 Order Remanding this Proceeding to the Regional Director and an Order to Institute Representation Proceedings in this Matter. On November 7, the Board (Member Oviatt dissent- ing) issued an Order in which it denied the Respond- ent’s appeal to the extent that it was based on the con- tention that it is inappropriate to remand this matter in the posture of an unfair labor practice proceeding rath- er than a representation proceeding. The Board noted, however, that in the circumstances of this case, the in- troduction of evidence on which to determine the sta- tus of the technologists rests on the Respondent and the Union and the role of the General Counsel is non- adversarial ‘‘as would be the case if the proceedings had not proceeded beyond the representation stage . . . .’’ See Salem Village I, 263 NLRB 704 (1982). Accordingly, the Board’s July 11 Order was modified to provide that after the parties had been afforded an opportunity to adduce additional evidence, the adminis- trative law judge would transfer this matter directly to the Board, without making any credibility resolutions, findings of fact, or recommendations, and without issuing a decision under Section 102.45 of the Rules and Regulations. Pursuant to the Board’s amended remand Order, a hearing was held on January 11, 1991. On February 1, 1991, Administrative Law Judge Joel A. Harmatz transferred this proceeding to the Board. Both the Re- spondent and the Charging Party Union filed posthearing briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this case, including the hearing transcript and posthearing briefs and the circuit court’s remand and has decided, on reconsideration and for the reasons set forth below, to reinstate the bargaining order as to unit A,4 to set aside the election in Case 8–RC–13687, to vacate the previously issued bargaining order as to unit B,5 to re- voke the certification in Case 8–RC–13687, and to re- mand Case 8– RC–13687 for the purpose of conduct- ing a second election. Section 2(12) of the Act defines ‘‘professional em- ployee’’ as (a) any employee engaged in work (i) predomi- nantly intellectual and varied in character as op- posed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exer- cise of discretion and judgment in its perform- ance; (iii) of such a character that the output pro- duced or the result accomplished cannot be stand- ardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a 174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Barnert Hospital Center, 217 NLRB 775, 777 (1975), quoting from Litton Industries, 125 NLRB 722, 724–725 (1959). 7 Urinalysis is done in the chemistry department. 8 ‘‘Panic’’ values are test results that are so far outside normal range that the technologist must inform the physician immediately. general academic education or from an appren- ticeship or from training in the performance of routine mental, manual, or physical processes . . . . Following the Board’s established criteria: Technical employees are those ‘‘who do not meet the strict requirements of the term ‘professional employee’ as defined in the Act but whose work is of a technical nature involving the use of inde- pendent judgment and requiring the exercise of specialized training . . . .’’6 We find that the record does not establish that the work of the medical technologists and medical labora- tory technologists at the Twin City Hospital involves the ‘‘consistent exercise of discretion and judgment in its performance.’’ (Emphasis added.) Similarly, the record does not show that the work is predominantly intellectual in character (emphasis added). We, there- fore, now find that those employees are not profes- sionals. The technologists mainly perform various laboratory tests on patient samples pursuant to requests by a phy- sician. The technologists collect the samples, perform quality control work, maintain the testing machines, distribute the lab reports, and prepare various labora- tory paperwork. The laboratory is divided into the fol- lowing departments: hematology, chemistry, microbi- ology, urinalysis, and blood banking. The laboratory receives orders from physicians, or their agents, to ob- tain blood or other specimens from patients. Once the samples are obtained, they are logged in at the labora- tory and the technologists perform the tests as re- quested. The work in the chemistry7 and hematology depart- ments constitutes 70 to 85 percent of the laboratory’s total. This testing is highly mechanized and completely automated. The machines perform the calculations to show which test results are above or below the normal range. The technologists do not decide what tests to run. In fact, the Respondent’s procedures prohibit tests that are not ordered by a physician. The technologists are limited to obtaining and preparing the specimen and reading the results produced by the instrument. The technologist must review the results against ex- pected outcomes of the tests in light of the diagnosis of the patient. The technologists do not have to deter- mine what constitutes a normal or abnormal result. The instrument itself flags abnormal or panic value8 test re- sults. When such a result is reported by the instrument, the technologist, alone, must determine whether it was caused by human error in performing the test or cali- brating the machine or whether there was a problem with the specimen. If the specimen is the problem, the technologist determines if the specimen can be reproc- essed or altered or whether to rerun the test. The procedures to be followed when an employee gets abnormal or panic value results are set forth in de- tail in the laboratory’s procedure manuals. Gilham, a medical laboratory technologist at Twin City Hospital in 1987 (the relevant timeframe) who testified on be- half of the Union, stated that the detailed and manda- tory standardized procedures for each test performed in the laboratory must be followed according to both hos- pital and Joint Accreditation Commission rules. The technologist must then inform the appropriate parties of the test results. Microbiology tests, constituting 5 to 10 percent of the laboratory work, are not automated, however, and require visual inspection and human identification of pathogens. According to Gilham, when testing drug interaction with the pathogens, the technologists follow a specified checklist, based on the type of organism. The remaining duties performed by these employees consist of routine maintenance and cleaning of instru- ments and troubleshooting minor repairs, and checking quality control for the equipment in the laboratory. In performing quality control, employees use commer- cially prepared control tests that have known values, which are run pursuant to normal protocols and proce- dures associated with testing in the laboratory gen- erally. When asked whether any judgment is required in determining whether the quality control test results are accurate, Gilham conceded that no judgment was required to look at the criteria and compare it against what was measured on the machine. If the result falls outside the normal range, the technologist routinely would check the vial, check the chemicals inside the machine, look at the machine itself, and check for a technical error on the technologist’s part. Gilham testi- fied that ‘‘it is almost wrote [sic] that you go through a series like that.’’ If the problem is a mechanical mal- function, Gilham testified that he would consult the manufacturer’s troubleshooting checklist to perform minor repairs and, if necessary, consult a service tech- nician. For the most part, however, the machinery ran well, according to Gilham. We find that the record does not establish that the Respondent’s medical technologists and medical lab- oratory technologists are professional employees. The evidence shows that they exercise no discretion in de- termining what tests to run. Nor do they exercise dis- cretion in determining what constitutes an abnormal or panic value test result. These values are posted throughout the lab and in the procedures manuals. To the extent that the technologists do exercise discretion in checking for the source of abnormal test results, the record indicates that this is routine work rather than 175 TWIN CITY HOSPITAL CORP. 9 We recognize that in numerous cases the Board has found laboratory tech- nologists to be professionals. See, e.g., St. Barnabas Hospital, 283 NLRB 472 (1987), and Barnert Hospital Center, 217 NLRB 775 (1975). We do not dis- avow those decisions here, nor do we indicate that we shall henceforth require any more convincing showing of professional status where technologists are concerned. We simply find that the record in this case does not support a find- ing of professional status on the part of the Employer’s technologists. 10 The tally of votes in the nonprofessional unit election resulted in 48 votes for and 40 votes against representation, with no challenged ballots. Even if all six technologists’ votes were included in that tally, they could not alter the results. We are mindful of the fact that the Respondent is being required to bargain with a unit which now includes medical technologists and medical laboratory technologists, classifications that were not previously part of the unit when the election was conducted to determine whether the nonprofessionals wanted union representation. The scope of the unit, however, has not changed because the overall classification of technicals was originally included. Cf. NLRB v. Lorimar Productions, 771 F.2d 1294 (9th Cir. 1985) (where election was con- ducted in a unit of estimators and production coordinators—a unit which the Board subsequently found was inappropriate. Because the election was con- ducted on the assumption that the unit would include both groups, the court denied enforcement of the Board’s bargaining order and remanded the case for the purpose of conducting a second election because the scope of the unit was changed). predominantly intellectual work and is mandated by the policies and procedures manual for each depart- ment. There is no evidence that the technologist pre- pares a report containing a recitation of the test and its results and the opinion and recommendation of the technologist. The work requiring the most discretion and judg- ment—the microbiology work—constitutes only a minor portion of the technologists’ workload. It is, therefore, an insufficient basis on which to conclude that the totality of the employees’ duties is predomi- nantly intellectual in nature and requires the consistent exercise of judgment and discretion. After considering all the relevant evidence, we find that the medical technologists and medical laboratory technologists in question do not consistently exercise independent judgment and discretion in the perform- ance of their duties and that the work is not predomi- nantly intellectual in character. Thus, we reverse our original finding that these technologists are profes- sional employees.9 Accordingly, we also reverse our earlier finding that the Respondent violated Section 8(a)(5) and (1) of the Act when it refused to bargain with unit B, the unit of professional employees which included technologists, and vacate the bargaining order with respect to that unit. We affirm our decision order- ing bargaining in the nonprofessional unit.10 ORDER The National Labor Relations Board modifies the Order previously entered in this proceeding on Decem- ber 30, 1988 (292 NLRB 114), by: 1. Substituting the following for paragraphs 2(a) and (b). ‘‘(a) On request, bargain with the Union as the ex- clusive representative of the employees in the follow- ing appropriate unit on terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement: ‘‘All service, maintenance, technical and clerical employees, excluding day care employees, profes- sional employees, confidential employees, mana- gerial employees and guards and supervisors as defined in the Act. ‘‘(b) Post at its facility in Dennison, Ohio, copies of the attached notice marked ‘Appendix.’6 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent’s au- thorized representative, shall be posted immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material.’’ 2. Substituting the attached notice for that in 292 NLRB 114. IT IS FURTHER ORDERED that Case 8–RC–13687 is reopened; that the Certification of Representative issued in Case 8–RC–13687 is revoked; that the elec- tion held on December 11, 1987, is set aside, and that the case is remanded to the Regional Director for Re- gion 8 for the purpose of scheduling and conducting a second election in the following appropriate unit: All professional employees, including registered nurses, excluding all guards and supervisors as defined in the Act and all other employees. [Direction of Second Election omitted from publica- tion.] APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with the Aluminum, Brick and Glass Workers, International Union, AFL– CIO, as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the following bargaining unit: 176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All service, maintenance, technical and clerical employees, excluding day care employees, profes- sional employees, confidential employees, mana- gerial employees and guards and supervisors as defined in the Act. THE TWIN CITY HOSPITAL CORPORATION