St. Barnabas Hospital

472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD St. Barnabas Hospital and Mark Fusco, Petitioner, and Local 1199, Hospital and Health Care Em- ployees Union, RWDSU, AFL-CIO. Case 2- RD-1147 - 31 March 1987 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer Leonard Grumbach of the National Labor Relations Board. On 12 June 1986 the Regional Director for Region 2 issued a Decision and Direction of Election in which he found, inter alia, that a group of laboratory tech- nologists were not professional employees and thus could' not vote with other professional employees in a decertification election. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Union filed a request for review of the Regional Director's Decision and Direction of Election. The Union contended, inter alia, that the Regional Director erred (1) in fording that the lab- oratory technologists were not professional em- ployees, thereby barring them from voting with the rest of the professional employees in the decertifi- cation election; (2) by finding that the technologists did not exercise discretion in their work; and (3) by placing too much significance on the Employer's assertion that a college degree is not required. By Order dated 24 July 1986, the Board granted the Union's request for review in Case 2-RD-1147 and stayed the election pending review. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the entire record in this case with respect to the issues under review and makes the following findings. The Employer, St. Barnabas, operates a 415-bed acute care hospital in New York, New York. It employees approximately 1150 full-time and regular part-time employees. Local 1199 currently repre- sents a unit consisting of approximately 561 profes- sional and nonprofessional employees. The Regional Director directed an election for all professional employees in the mixed unit.' The i The parties stipulated that the pharmacists, dieticians, social workers- MSW's, an occupational therapist, and an activity therapist are profes- sional employees within the meaning of Sec. 2(12) of the Act. parties' only disagreement and- the only issue before the Board is whether laboratory technologists I and II are professional employees. The Employer and the Petitioner argue that the 26 technologists are not professionals. The Union, however, con- tends that they are professionals within the mean- ing of Section 2(12) of the Act and should there- fore be permitted to vote in the decertification election. The Regional Director, relying on Middlesex General Hospital, 239 NLRB 837 (1978), found that the technologists were not professionals because their duties are not intellectual and varied and a college degree is not required. He determined that their analyses of test results are technical -rather than medical and that any discretion they have is circumscribed by established procedures. We dis- agree. Our review of the record reveals that the tech- nologists2 are assigned to four laboratory sections: hematology, chemistry, blood bank, and microbi- ology. Each technologist has a license in one of these specific areas and, unless the technologist has more than one license, there is very little inter- change between the sections. At the hearing the Employer presented a two- page job description for laboratory technologists. According to this document, a technologist must be licensed by the New York City Board of Health,3 have attended 3 years of college with courses relevant to medical technology, and have at least 3 years' medical laboratory experience. The Employer characterized these requirements as "op- timal" and that it actually only requires technolo- gists to have a New York City license. However, 20 of the 26 technologists do have college degrees, 6 have master of arts degrees, and one has a doc- torate. Technologists perform various tests on patient specimens such as blood, urine, stool, sputum, and other body fluids and tissues. Generally the tests are done on complex machinery, although some may be done by hand. If the tests are done on the machines, the technologist must first calibrate the machine. Calibration is done by testing a control specimen with known values. If the machine does not report the values correctly, the technologist 2 The designations "I" and "II" refer only to the technologist's tenure with St. Barnabas and do not reflect any difference in job duties or re- sponsibilities. 3 To obtain a technologist's license, New York City's Board of Health requires- (1) a B.S. or B.A. degree with a major in biology, chemistry, or physical science and I year of laboratory experience, or (2) registry with a national professional society, or (3) passing an exam, if one holds a high school diploma, and 4 years' experience or 2 years of college and 2 years' experience or a college degree and 6 months' experience, or (4) a waiver 283 NLRB No. 72 ST. BARNABAS HOSPITAL must determine why it did not and then make the proper corrections. The technologist must also prepare the specimen before testing. Among other things, the technolo- gists visually examine the specimen and determine if it is usable. If they determine it is inadequate, they will call the doctor or the floor nurse and re- quest another specimen. If the specimen is usable the technologists place it in the machine and start the machine. The machine will test the specimen and print out the results. The technologists read and analyze the printout and decide if the results should be accepted. If the results are outside the test range, the technologists must determine the reason. In making such a decision the technologists may consider the patient's condition, including any drugs the patient may be taking. If they determine that the problem is specimen related, they must choose which option to take to get acceptable re- sults. The technologists may rerun the test with a diluted specimen, request a new specimen, or per- haps do the test manually. Although there are pub- lished guidelines, technologists generally rely on their own experience in making judgments when performing the various tests. Once the technolo- gists obtain the results, they will call the doctor or floor nurse and report their findings. They also prepare a written report of their findings. The technologists' duties are not limited to run- ning tests. Technologists maintain and repair the complex machines they operate. They also super- vise the work of less senior technologists, techni- cians, ' and trainees, while they themselves generally work with little or no supervision. The Board has previously found technologists with virtually identical duties to be professional employees. Thus, in Barnert Memorial Hospital Center, 217 NLRB 775 (1975), technologists ran various tests on patient specimens using sophisticat- ed machinery and prepared reports on the results. They also instructed students and repaired the lab- oratory equipment. Although there were, as here, procedural manuals, the Board found that the tech- nologists relied heavily on their, own judgment in analyzing the results. In finding professional status, the Board also relied on evidence that the tech- nologists alone were responsible for the outcome of their work, gave instruction to students in their specialization, and used and repaired complicated laboratory equipment. 'Similar results on similar facts have been reached in a number of other cases.4 4 See 4lexian Bros. Hospital, 219 NLRB 1122 (1975); Mason Clinic, 221 NLRB 374 (1975), Samaritan Health Services, 238 NLRB 629 (1978); and Illinois Valley Community Hospital, 261 NLRB 1048 (1982). 473 Despite the presence of all the above factors in the instant case, the Regional Director determined that the technologists were not professional em- ployees. In so doing, he relied on Middlesex Gener- al Hospital, supra, where the Board concluded that technologists with duties similar to those in the in- stant case were not professional employees. The Regional Director pointed to the Board's statement in Middlesex that that case was distinguishable from Barnert and others, finding professional status be- cause of the absence of the requirement for a col- lege degree as a prerequisite for continued employ- ment.5 Noting that a college degree was not re- quired here, he concluded that Middlesex con- trolled. We disagree with this analysis. As stated, the vast majority of factors relied on by the Board to find professional status in Barnert and similar cases are present here. The St. Barna- bas technologists in examining specimens, calibrat- ing and repairing the machinery, analyzing results, and performing tests manually, constantly exercise discretion and independent judgment. Their duties are predominately intellectual and varied and their output cannot be standardized in relation to a given period of time. In these circumstances, we do not find the absence of a requirement for a college degree is so significant to warrant a finding that the technologists are not professional. We note in Middlesex the Board stressed that less than half the technologists had degrees. The Board specifically concluded that Mason Clinic, supra at fn. 4, which found professional status, was in accord with the result in Middlesex becaue in Mason Clinic only 2 of 54 medical technologists did not possess de- grees.6 We find that the instant case is closer to Mason Clinic than to Middlesex. Here 20 of the 26 technologists have college degrees. Of these 20, 7 hold graduate degrees. It is, therefore, clear that the possession of a college degree is highly valued, if not absolutely required. Accordingly, consider- ing all factors in this case, we conclude that the technologists, are professional employees. Conclusion Accordingly, on the entire record and for the aforementioned reason, we shall direct an election among the following professional employees cur- rently represented by the, Union in the nixed unit to ascertain the desires of the professional employ- ees concerning their inclusion in a unit with non- professional employees: All full-time and regular part-time social work- ers (MSW's), pharmacists, dieticians, occupa- 5 Middlesex General Hospital, 239 NLRB at 838 fn. 10. 6 239 NLRB at 838 Si. 10. 474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tional therapists, activity therapists, and labora- tory technologists I and II employed by the Employer at its facility at 183rd Street and Third Avenue, Bronx, New York, but exclud- ing all other employees, laboratory technolo- gists, registered nurses, and office clerical em- ployees, and guards and supervisors as defined in the Act. [Direction of Election omitted from publication.]