Group Health Assn.

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 238 (N.L.R.B. 1995)

238
317 NLRB No. 37
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Medical Technologists Association intervened in this proceeding.
2 The Board’s Order granting review, dated September 13, 1993,
inadvertently omitted former Member Devaney’s dissent in which he
stated that he would deny review.
3 It is well established that decertification petitions are inappropri-
ate where, as here, the unit sought to be decertified is not coexten-
sive with the certified or recognized unit. Green-Wood Cemetery,
280 NLRB 1359 (1986); Campbell Soup Co., 111 NLRB 234
(1955). The one exception to this general proposition is a decertifica-
tion petition filed for a unit of professional employees who are in-
cluded in a mixed unit of professional and nonprofessional employ-
ees and who have never had the opportunity to vote in a self-deter-
mination election following the procedures of Sonotone Corp., 90
NLRB 1236 (1950), to determine whether they wish to be rep-
resented in the same unit with nonprofessionals. Utah Power &
Light Co., 258 NLRB 1059 (1981).
4 The Petitioner filed a brief in support of his request for review.
The Union filed an opposition brief to the Petitioner’s request for
review and filed a brief on review. The following organizations filed
amicus briefs: the American Association for Clinical Chemistry and
the Clinical Laboratory Management Association; Arkansas State
University, Medical Technology Program; the American Society of
Clinical Pathologists, Inc.; the College of American Pathologists; the
Arkansas Coalition of Laboratory Professionals; the Credentialing
Commission of the International Society for Clinical Laboratory
Technology; the American Association of Blood Banks; Service Em-
ployees International Union, AFL–CIO, CLC; and, the American So-
ciety for Clinical Laboratory Science (formerly the American Society
for Medical Technology). Neither the Employer, the Intervenor, the
American Medical Association, nor the American Hospital Associa-
tion have filed briefs or have taken a position on this issue before
the Board.
5 The unit was certified following Board elections in 1978 or 1979
in Case 5–RC–7219 and again in 1986 in Case 5–RD–929.
6 Although finding that six of the Employer’s medical tech-
nologists are professional employees, the Regional Director, never-
theless, dismissed the decertification petition because he found that
it seeks to decertify a unit that is not coextensive with the recog-
nized bargaining unit, finding that the Utah Power exception (see fn.
2) is distinguishable from the instant case.
Group Health Association, Inc. and Christopher X.
Fedor, Petitioner and Office and Professional
Employees International Union Local 2, AFL–
CIO.1 Case 5–RD–1102
April 28, 1995
DECISION ON REVIEW AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
BROWNING, COHEN, AND TRUESDALE
On September 13, 1993, the National Labor Rela-
tions Board granted the Petitioner’s request for review
of the Regional Director’s Decision and Order, dated
February 25, 1993, dismissing the instant decertifica-
tion petition.2 The issue on review is whether medical
technologists generally, and the medical technologists
employed by the Employer specifically, are profes-
sional employees as defined in Section 2(12) of the
Act. The Board granted review on this issue because
the question of whether the medical technologists em-
ployed by the Employer are entitled to a self-deter-
mination election in the first instance depends on the
professional status of those employees.3 Noting that
the professional status of medical technologists is a
frequently litigated issue which has resulted in con-
flicting and fact specific case law, the Board also so-
licited amicus briefs on this issue from all interested
parties.
The Board has considered the decision and the
record in light of the briefs, including the nine amicus
briefs,4 and has decided to affirm the Regional Direc-
tor’s rulings, findings, and conclusions only to the ex-
tent consistent with this Decision on Review and
Order.
Based on our review of the record and our adminis-
trative experience, we find that medical technologists
generally, and the medical technologists employed by
the Employer specifically, are professional employees
as defined in Section 2(12) of the Act, and, in the fu-
ture, we will apply a rebuttable presumption to this ef-
fect. We believe that the establishment of this pre-
sumption will result in greater consistency and stabil-
ity, and more efficient use of the Board’s resources,
without prejudicing the rights of the parties or these
employees under the Act. We, however, affirm the Re-
gional Director’s dismissal of the instant decertification
petition without prejudice to any party’s subsequently
filing a representation petition to represent these em-
ployees.
Background
The Employer is a health maintenance organization
(HMO) operating in the Washington, D.C. metropoli-
tan area. The Union is the exclusive bargaining rep-
resentative in a Board certified5 unit of approximately
200 employees consisting of all office and technical
employees, excluding, inter alia, professional employ-
ees. The Employer and the Union have been parties to
successive collective-bargaining agreements, the most
recent of which expired on October 31, 1992. The Pe-
titioner filed the instant petition seeking a decertifica-
tion election among approximately 42 unit employees
classified as medical technologists, on the grounds that
they are professional employees who have never had
the opportunity to vote in a Sonotone election. The In-
tervenor seeks to represent the medical technologists in
a separate bargaining unit. After the hearing in this
matter, the Regional Director issued a decision and
order finding that only the six medical technologists
working in the microbiology department at the Em-
ployer’s New York Avenue lab facility meet the statu-
tory definition of professional employees, and that the
other approximately 36 medical technologists are not
professional employees under the Act.6 Thereafter, the
Petitioner filed a request for review of the Regional
Director’s decision and the Board granted review.
239GROUP HEALTH ASSN.
7 This description of duties of medical technologists reflects both
the evidence of the duties of the medical technologists whose status
is at issue in this proceeding and the information supplied to us by
various amici concerning the duties of medical technologists in gen-
eral.
Facts
Medical technologists generally engage in a wide
array of laboratory testing on various media of patient
samples, including blood, urine, tissue, and the like,
employing principles of technology and science—
microbiology, hematology, chemistry, immunology,
and blood banking—to perform and evaluate the tests.
Some of these procedures, but not all, are automated.
The nonautomated tests include microscopic selection,
exclusion, and identification, chromatographic separa-
tion and quantification, electrophoretic separation, and
isotopic and nonisotopic immunoassays. When testing
is performed using automated laboratory equipment,
the functioning of that equipment constitutes only one
piece of the overall testing process. Medical tech-
nologists are required to engage in a substantial degree
of pre- and post-testing analysis including: analyzing
patient specimen acceptability; determining the proper
methodologies for testing the specimen; properly cali-
brating the equipment for testing; determining that the
equipment is functioning properly; maintaining the
equipment; troubleshooting equipment problems and
taking appropriate corrective action as necessary; eval-
uating the automated results to determine if the result
is an accurate reading or the result of an equipment
malfunction; determining whether a test needs to be
rerun; determining whether additional tests are appro-
priate based on the results; and, immediately reporting
‘‘panic values’’ to physicians.7
The Employer employs approximately 42 medical
technologists, approximately half of whom work at the
Employer’s main laboratory at New York Avenue,
N.W., Washington, D.C. The remaining medical tech-
nologists work in one of the Employer’s seven satellite
(stat) labs, located in Washington, D.C., Virginia, and
Maryland. Those labs are Marlow Heights, Prince
Georges, West End, Annandale, ‘‘RO,’’ Fair Oaks, and
Skyline. The Employer requires that the medical tech-
nologists possess a BS degree and American Society of
Clinical Pathologists (ASCP) certification. ASCP is a
nonprofit medical specialty organization which estab-
lishes and maintains a voluntary program to examine,
certify, and register nonphysician medical or clinical
lab personnel. ASCP certification requires that medical
technologists hold a baccalaureate degree and have
completed 3 to 5 years of clinical experience or be
trained in an accredited program.
Medical technologists employed by the Employer
perform approximately 2.5 million tests per year on
blood, urine, and tissue specimens. Medical tech-
nologists receive instruction on which tests to perform
on a given specimen pursuant to 12 forms used by the
Employer. No test is performed unless it is designated
on one of these forms. Test results are subsequently re-
ported on these forms.
Although all of the medical technologists working
for the Employer are responsible for performing all of
the various tests, as described above, the specific work
performed by each medical technologist differs some-
what depending on where the employee works. The
full-time medical technologists working at the New
York Avenue lab are each assigned to only one of
three departments at that facility: hematology, chem-
istry, or microbiology. Part-time and night-shift medi-
cal technologists, however, rotate throughout those de-
partments. Medical technologists working in one de-
partment rarely perform procedures outside of that de-
partment’s area of specialty.
In the hematology department, medical technologists
perform most of the tests on a machine—the coulter
STKR—but approximately one-third of the tests in this
department are performed manually. These medical
technologists calibrate the coulter STKR by testing a
manufacturer-supplied control substance. Medical tech-
nologists also evaluate samples and results of the auto-
mated tests and decide if the automated results are ac-
curate and acceptable or whether they must be rejected
because of a machine malfunction or corruption of the
sample. The medical technologists evaluate sample
quality in relation to the test ordered, and must be
knowledgeable regarding what impurity levels are ac-
ceptable for different tests. In addition, the medical
technologists in hematology must also possess knowl-
edge of potential machine malfunctions to determine
whether a given test result is the product of such a
malfunction or the accurate result of a patient problem.
If an emergency result known as a ‘‘panic value’’ is
detected, medical technologists contact the physicians.
The chemistry department is the largest department
at the New York Avenue lab. Medical technologists in
this department perform blood and urine analysis, al-
most all of which is automated. Each machine requires
different specimen preparation and the bulk of the
medical technologists’ work consists of manual sample
preparations for these tests. Test results are printed out
with a numerical value on a form which is preprinted
to indicate the normal range of test results. The over-
whelming majority of the test results are determined by
the equipment. Medical technologists also run quality
control tests on the machines using commercially pre-
pared samples and perform routine maintenance on the
machines.
Medical technologists in the microbiology depart-
ment prepare specimens by inoculating selected cul-
tivation media. After the requisite period for growth,
the medical technologists ‘‘read’’ the specimen and
may perform reactivity tests to select the proper anti-
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 See St. Barnabas Hospital, 283 NLRB 472 (1987); Barnert Hos-
pital Center, 217 NLRB 775 (1975); Alexian Bros. Hospital, 219
NLRB 1122 (1975); Mason Clinic, 221 NLRB 374 (1975); Chil-
dren’s Hospital of Pittsburgh, 222 NLRB 588 (1976); Compton Hill
Medical Center, 251 NLRB 1547 (1980); Illinois Valley Community
Hospital, 261 NLRB 1048 (1982); Mercy Hospital of Sacramento,
217 NLRB 765 (1975); Methodist Hospital of Sacramento, 223
NLRB 1509 (1976).
9 Twin City Hospital Corp., 304 NLRB 173 (1991); Norton Com-
munity Hospital, 291 NLRB 1174 (1988).
10 The Board has defined ‘‘technical employees’’ as those ‘‘who
do not meet the strict requirements of the term ‘professional em-
ployee’ as defined in the Act but whose work is of a technical nature
involving the use of independent judgment and requiring the exercise
of specialized training.’’ Barnert Hospital Center, supra at 777. See
National Health Laboratories, 239 NLRB 213 (1978); Middlesex
General Hospital, 239 NLRB 837 (1978); St. Elizabeth’s Hospital
of Boston, 220 NLRB 325 (1975); Samaritan Health Services, 238
NLRB 629 (1978).
11 The Union filed a brief on review, generally arguing in support
of the Regional Director’s decision, but also arguing that he erred
in finding that medical technologists meet the requirements of sub-
part (iii) of Sec. 2(12).
biotics for the patient. All of the testing in the microbi-
ology department is performed manually—the medical
technologists rely on visual inspection of the samples
to determine test results and they select various media
to determine the organisms’ susceptibility to anti-
biotics. Medical technologists in this department must
be able to identify a diversity of parasites and fre-
quently consult one another or an outside reference
when they encounter an unfamiliar organism.
By contrast to the specialization of the medical tech-
nologists working at the New York Avenue lab, medi-
cal technologists working in the seven stat labs are
generalists, who perform a smaller variety of tests in
each of the three areas of specialty. This work consists
of fewer tests with a shorter target turnaround time of
1 hour. These medical technologists generally perform
12 to 15 procedures, but they are capable of perform-
ing up to 25 procedures. The stat labs medical tech-
nologists also prepare specimens to be forwarded to
the New York Avenue lab or other outside labs. Medi-
cal technologists in the stat labs usually perform only
the tests ordered by the physician, but, on occasion,
may suggest other procedures to the physician. Medi-
cal technologists also calibrate the testing machine and
equipment, troubleshoot and perform minor machine
repair, and perform quality control calculations. Medi-
cal technologists may reject the results of an automated
test because of machine errors or faults in the patient
sample.
The Applicable Law
Section 2(12)(a) of the Act defines professional em-
ployees as those who meet four conjunctive criteria:
employees must be engaged in work that is:
(i) predominantly intellectual and varied in char-
acter as opposed to routine mental, manual, me-
chanical, or physical work; (ii) involving the con-
sistent exercise of discretion and judgment in its
performance; (iii) of such a character that the out-
put produced or the result accomplished cannot be
standardized 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
general academic education or from an appren-
ticeship or from training in the performance of
routine mental, manual, or physical processes.
Applying this conjunctive test to medical technologists,
the Board has reached differing results, generally find-
ing them to be professional employees,8 but occasion-
ally finding that they do not meet the statutory defini-
tion of professional employees9 or finding that they are
instead, technical employees.10 In those cases in which
the Board has found that medical technologists are not
professional employees it has heavily stressed the med-
ical technologists’ failure to meet the requirements of
subparts (i) and (ii) of Section 2(12), and, indeed,
those two requirements have been the predominant
focus of the Board’s analysis in this area.
The Regional Director’s Decision and the Briefs
on Review
The Regional Director found that all of the medical
technologists employed by the Employer meet the re-
quirements of subparts (iii) and (iv) of Section
2(12)(a), but that only the medical technologists em-
ployed in the microbiology department at the New
York Avenue lab meet all four requirements. In this
regard, the Regional Director found that the medical
technologists in the microbiology lab perform tests
which require the consistent exercise of discretion be-
cause results are almost exclusively the product of vis-
ual inspection for determining the presence or absence
of abnormalities and for identifying the specific nature
of any pathology or parasite. Moreover, these medical
technologists independently determine which tests to
perform to ascertain drug resistance or susceptibility.
In contrast, however, the Regional Director found
that the medical technologists working in the other de-
partments at the New York Avenue lab and those
working in the stat labs perform tests which are highly
mechanized, automated, and more routine and that they
do not decide which tests to run nor do they determine
what constitutes a normal or abnormal result. There-
fore, he concluded, citing Twin City Hospital, supra,
that the work performed by these medical technologists
does not require the consistent exercise of discretion
and independent judgment, and is not predominantly
intellectual in nature.11
241GROUP HEALTH ASSN.
12 Only the Credentialing Commission of the International Society
for Clinical Laboratory Technology (Credentialing Commission) ar-
gued in support of the Regional Director’s decision. It urges the
Board to adopt a standard which incorporates the Department of
Health and Human Services’ (HHS) guidelines, promulgated pursu-
ant to the Clinical Laboratory Improvement Act of 1988, 42 U.S.C.
§ 263a (enacted to improve the accuracy of clinical laboratory testing
through appropriate licensing and regulation by HHS). Under those
guidelines, duties and procedures performed by medical technologists
are organized by level of complexity. Lab tests are divided into three
categories ranked according to level of difficulty (i.e., exempt, mod-
erately complex, and highly complex). The HHS guidelines rely on
seven criteria to distinguish between moderately complex and highly
complex tests. The Credentialing Commission argues that only medi-
cal technologists performing the tests classified as highly complex
would qualify as professional employees under Sec. 2(12) because
these procedures require the use of independent judgment and discre-
tion and are of a predominantly intellectual nature. Finally, the
Credentialing Commission notes that utilization of this standard
would produce the same result reached by the Regional Director, be-
cause only the tests performed by the medical technologists in the
microbiology department are classified as highly complex.
13 Mercy Hospital of Sacramento, supra; Memorial Clinic, 220
NLRB No. 217 (Oct. 1, 1975) (inadvertently omitted from Board
bound volumes); Centralia Convalescent Center, 295 NLRB 42
(1989). See also the Board’s Notice of Proposed Rulemaking and
Notice of Hearing and Second Notice of Proposed Rulemaking on
Collective-Bargaining Units in the Health Care Industry (the Board’s
Health Care Rules), 29 CFR § 103, 284 NLRB 1521, 1543–1552
(1987).
In his request for review, the Petitioner contends
that the Regional Director erred in not finding that all
of the medical technologists employed by the Em-
ployer meet all of the 2(12) requirements for profes-
sional employees. Additionally, with one exception, the
amicus briefs similarly argue that all of the medical
technologists should be found to be professional em-
ployees.12 In the briefs urging the Board to find that
medical technologists generally, and the Employer’s
medical technologists specifically, are professional em-
ployees, several common themes emerge.
First, the briefs maintain that the Board incorrectly
has focused on and has overemphasized the role of au-
tomation in evaluating the nature of the work per-
formed by the medical technologists, that the appro-
priate focus should be on the pre- and post-test proce-
dures performed by the medical technologists and the
degree of detail required of these nonautomated func-
tions; and that by focusing on these procedures, which
are essential components of the medical technologists’
work, it is clear that the technologists are not mere
machine operators. Much of their work cannot be auto-
mated but is predominantly intellectual in character
and requires the consistent exercise of discretion and
independent judgment. Further, it is argued that the
pieces of automated testing equipment are merely tools
which perform automated analysis of a sample speci-
men; they do not eradicate the need for judgment and
discretion in the performance of that testing. The in-
creased use of more complicated equipment to perform
more sophisticated and complex tests should not have
the illogical result of diminishing the professional sta-
tus of the work at the very time that the subject matter
of the job is becoming more sophisticated and special-
ized. Rather, increased automation of testing merely al-
lows medical technologists to be more efficient, accu-
rate, and productive in the tasks that they perform.
The briefs also highlight the stringent education and
training requirements of medical technologists, noting
that these requirements exist because they are essential
to the performance of the work of the medical tech-
nologists and are illustrative of the predominantly in-
tellectual nature of that work. It is argued that the edu-
cational and training background cannot be divorced
from the assessment of the nature of professional tasks
and that all medical technologists must be able to per-
form all of the tests which are required by the profes-
sion’s scope of practice, irrespective of where a par-
ticular medical technologist is employed or the require-
ments of a specific job. Additionally, by way of com-
parison, the briefs point out that the Board finds reg-
istered nurses (RNs) to be professional employees13
and that the educational requirements and certification
procedures for medical technologists are equal to or
greater than those for RNs.
Finally, the briefs set forth additional factors indic-
ative of the professional status of medical tech-
nologists. It is argued that the existing certification
procedures (i.e., ASCP) provide the ‘‘empirical bench-
mark’’ of professionalism, because they establish na-
tionally recognized minimum standards for the per-
formance of medical technologists’ duties. Addition-
ally, the briefs note that Congress has recognized the
importance of medical technologists’ work by passage
of the Clinical Laboratory Improvement Act of 1988
(CLIA), 42 U.S.C. § 263a, which is designed to im-
prove the accuracy of clinical laboratory testing by ap-
propriate licensing and regulations. Specifically, the
CLIA requires medical technologists to participate in
regular, ongoing proficiency testing to ensure that they
have the intellectual capacity, experience, and skills
necessary to perform the tasks entrusted to them. This
Congressional concern regarding the skills required of
medical technologists underscores the professional na-
ture of their work.
Analysis and Conclusions
a. Medical technologists are professional
employees
Having given due consideration to the record, briefs,
case law, and our administrative experience in this
area, we find that a presumption is warranted that
medical technologists are professional employees as
defined in Section 2(12) of the Act and we will pre-
sume them to be so in all future cases, subject to re-
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 We find it unnecessary to remand this case to the Regional Di-
rector for the purpose of providing the Union an opportunity to sub-
mit additional evidence to rebut the presumption. Although we have
now framed this issue in terms of a rebuttable presumption, the par-
ties would have no reason now to present additional evidence dif-
ferent from that which was relevant in proceedings under our prior
precedent. Even under our prior precedent, it was incumbent on par-
ties seeking to prove that medical technologists did not meet the
2(12)(a) definition to establish precisely what duties the tech-
nologists performed and then to show that those duties failed to meet
any one of the four requirements of the definition. The exhaustive
record in this case clearly establishes what duties the various medi-
cal technologists at issue here perform, i.e., duties customarily as-
signed to employees in this classification; and any evidence that the
Union might use to rebut the presumption of professional status is
essentially the same as that evidence (had it existed), which the
Union would have introduced to make its case under preexisting law.
15 We do not agree with the Union that the Employer’s establish-
ment of target deadlines for testing in the stat labs is, alone, suffi-
cient to find that the overall work of the medical technologists can
be standardized in relation to a given period of time.
16 Compare Middlesex General Hospital, supra, in which the
Board appears to have found that medical technologists’ work did
not require knowledge of an advanced type (and, therefore, presum-
ably, did not meet the fourth requirement of 2(12)) because many
of the medical technologists did not possess a college degree. Subse-
quently, the Board has stated that the possession or lack of a bacca-
laureate degree is not determinative of the professional status of em-
ployees. Illinois Valley Community Hospital, supra.
17 Compton Hill Medical Center, supra; Children’s Hospital of
Pittsburgh, supra; Barnert Memorial Hospital, supra; St. Barnabas
Hospital, supra.
18 St. Barnabas, supra (medical technologists required to be li-
censed by the New York City Board of Health); Methodist Hospital
of Sacramento, supra (medical technologists required to be licensed
by the State of California).
buttal by the party or parties contending they do not
meet the definition. Applying that presumption here,
and in the absence of sufficient evidence to rebut it,
we further find that all of the medical technologists at
issue are professional employees.14
Turning first to subparts (iii) and (iv), we note that
it is generally settled that medical technologists meet
the requirements of these subparts. With regard to sub-
part (iii), we note that the Board has not previously
found that the results of work performed by the medi-
cal technologists can be standardized in relation to a
given period of time and we decline to do so here.
Laboratory testing procedures, whether manual or auto-
mated, are not readily standardized because of the
unique characteristics of each individual sample speci-
men, laboratory testing equipment, and medical tech-
nology. Thus, testing of the same media of sample
specimen on the same piece of equipment often will
differ from situation to situation. This variability of
testing, then, cannot readily be measured as a function
of time.15
Regarding subpart (iv) of Section 2(12), the Board
similarly has found that the work of medical tech-
nologists requires knowledge and education of a spe-
cialized and advanced nature, which is customarily ac-
quired by a program of study in a field of science and
by regimented training in a hospital.16 The Employer,
here, requires a BS degree and ASCP certification. Ini-
tially, we note that the educational requirements of
medical technologists are becoming increasingly strin-
gent. Most medical technologists possess a bachelor’s
degree in some field of science (e.g., biology, chem-
istry, or physical science) and have completed a clini-
cal internship.17 Many medical technologists also pos-
sess advanced graduate degrees, some holding both
M.S. and Ph. D. degrees. Those medical technologists
who do not hold a bachelor’s degree generally have re-
ceived extensive education and training over a period
of years and have passed a certification test.
Moreover, medical technologists employed by hos-
pitals also must meet education and training standards
set by the hospitals, because the hospitals are required
to ensure the educational backgrounds of their medical
technologists in order to maintain accreditation from
the Joint Commission on Accreditation of Healthcare
Organizations and/or state and local licensing agen-
cies.18 Medical technologists employed in clinical lab-
oratories also must meet the requirements of the CLIA.
Additionally, the majority of medical technologists are
affiliated with certain nationally recognized profes-
sional organizations, including the ASCP, which main-
tain their own requirements for certification (e.g.,
ASCP certification requires that a medical technologist
must hold a baccalaureate degree with either a major
in one of the physical sciences or the completion of a
specific number of science courses and have completed
3 to 5 years of clinical experience or be trained in an
accredited program). These requirements for special-
ized education, training, licensing, and certification
meet the requirements of subpart (iv) of Section 2(12).
As noted above, the Board’s analysis in this area
primarily has focused on subparts (i) and (ii) of Sec-
tion 2(12)—the intellectual nature of the work and the
need for discretion and independent judgment. After
careful review of the duties and responsibilities of
medical technologists, we are persuaded that they meet
the requirements of subparts (i) and (ii). While auto-
mation has increased in the medical technology field,
the essential intellectual nature of the work and the ne-
cessity for discretion and independent judgment in its
performance has not been substantially eroded.
A close evaluation of the totality of the duties per-
formed by the medical technologists, here, including
the pre- and post-testing duties, illustrates the predomi-
nantly intellectual nature of the work and the consist-
ent exercise of discretion and independent judgment.
The record establishes that a significant percentage of
testing in some specialty areas (notably microbiology)
is completely manually performed. It is undisputed that
these manual tests meet the requirements of subparts
(i) and (ii).
243GROUP HEALTH ASSN.
19 See cases discussed, supra at fn. 10.
With regard to automated testing, every automated
test performed by the medical technologists requires
some level of pre- and post-testing analysis, as well as
the monitoring of the equipment during testing. In this
regard, medical technologists evaluate the sample spec-
imen (blood, urine, tissue, etc.) prior to testing to de-
termine its viability and purity. For example, in the
Employer’s hematology department, medical tech-
nologists will examine the blood specimen for the
presence of a clot and, if one is detected, will reject
the sample as unacceptable, because the clot can affect
the test results. Medical technologists also calibrate the
diverse and sophisticated equipment (e.g., the coulter
STKR in the hematology department; the Kodak
Ektachem 700, the Abbott TDX and the Abbott IMX
in the chemistry department; the coulter T540, Kodak
DT, Kodak 500, etc., in the stat labs) in order to en-
sure proper methodology and the functioning of the
equipment. Proper calibration requires that the medical
technologists be able to make any necessary corrective
adjustments to the equipment and/or to determine
whether commercial repair is required. During testing,
the medical technologists monitor the performance of
the equipment to detect potential malfunctions. Finally,
once an automated result is produced, the medical
technologists analyze and screen that result to deter-
mine if it is within an acceptable range and, if not, the
medical technologists use their experience and judg-
ment to determine possible causes of adverse test re-
sults and whether such results should be reported to
the physician or whether the tests must be repeated.
For example, if a specimen is taken from an individual
who has taken a certain medication, a normal result for
that specimen may deviate from the standard normal
ranges. In such circumstances, accurate equipment cali-
bration may produce a valid result, but that alone does
not indicate a normal or abnormal result for that speci-
men. Thus, a valid, normal, and reportable result is
based on the composite of the factors surrounding the
test, the equipment, and the specimen. This requires
that the medical technologists possess the ability to as-
sess all of these discrete factors.
These nonautomated tasks are performed consist-
ently before, during, and after every test. Each step of
the testing process requires a variety of judgments
based on the unique characteristics of the sample and
the testing procedure to be performed. These judg-
ments necessarily involve intellectual analysis based on
the medical technologists’ education, experience, and
expertise. Notwithstanding that certain tests are com-
pleted quickly and may be less complex, the degree of
intellectual analysis and the consistent exercise of
independent judgment and discretion applies to all
tests. These duties are performed completely independ-
ently of the requesting physician.
Medical technologists here also have daily respon-
sibilities beyond testing which are illustrative of their
professional status. Medical technologists are respon-
sible for the overall operation, quality control, and
maintenance of the laboratory facility, its equipment,
its testing methodology, and its processes.
We note that a fundamental underpinning of those
cases in which we have found that medical tech-
nologists fall short of meeting the requirements of sub-
parts (i) and (ii) has been the view that automation has
reduced the discretion of these employees and, accord-
ingly, the need for independent judgment. This, in
turn, has given rise to the further conclusion that the
nature of the work has become less intellectual and
more routine and mechanical.19 These assumptions,
however, are valid only if previously nonautomated,
intellectual duties, which required the use of independ-
ent judgment and discretion, were taken over by the
automated equipment. That proposition is not sup-
ported by most of the prior cases (see fn. 8), or the
briefs and the record before us now. Indeed, a reason-
able inference may be drawn that the automatable tasks
were those that were nonintellectual and nondiscretion-
ary.
Moreover, we do not believe that the existence of
rigid routines and protocols that medical technologists
must follow for testing diminishes the intellectual na-
ture of their work or obviates the need for independent
judgment and discretion. Proper and accurate testing
requires standard prescribed methodologies. The estab-
lishment of and adherence to these standard meth-
odologies, however, should not lead to the conclusion
that such testing is routine or mechanical. Similarly, al-
though physicians may direct that a specific test or se-
ries of tests be performed on a sample specimen, the
parameters of that request do not dictate the methodol-
ogy and procedures used by the medical technologists
in the preparation, performance, and evaluation of the
test result. The physician’s request merely sets in mo-
tion the complex testing process, separate and inde-
pendent of that request. Indeed, the medical tech-
nologists’ exercise of independent judgment and dis-
cretion regarding how the testing is to be done takes
place after, and independent of, the physician’s initial
request.
Additionally, we note that although the work of
medical technologists in certain settings may involve a
greater or lesser degree of supervisory oversight or
even approval, this alone does not alter the fundamen-
tal nature of the work performed by these employees.
An employer’s establishment of a supervisory hier-
archy for the medical technologists properly serves the
function of workflow direction, quality control, and ul-
timate accountability for the work. This type of a su-
pervisory hierarchy, however, does not have the effect
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Barnert Memorial Hospital, supra, 217 NLRB at 782.
21 This is unlike Utah Power, supra, 258 NLRB 1059, where the
professional employees in question were the only professional em-
ployees employed by the employer and, presumably, would con-
stitute an appropriate unit by themselves. We note that, here, al-
though the Employer is not an acute care hospital (and, hence, the
Board’s Health Care Rules do not apply), in that context a unit of
all professional employees (excluding physicians and registered
nurses) would be appropriate. 29 CFR § 103, 284 NLRB 1580, 1596
(1989).
of transforming the nature of the work. In this regard,
by way of comparison, we note that the work of many
settled professional employee classifications (e.g., phy-
sicians, RNs, or attorneys) is commonly supervised
and directed by a more experienced or senior profes-
sional, without any diminution in the professional na-
ture of the work performed by the supervised profes-
sional employee.
Further, although we recognize that medical tech-
nologists frequently perform some routine or obviously
nonprofessional tasks, which are attendant to their
overall functions, we find that such tasks do not de-
tract from their status as professional employees, be-
cause many, if not most, of their duties are intellectual
and require the exercise of discretion and independent
judgment.20
In sum, we conclude that the preponderant nature of
medical technologists’ duties is intellectual and that it
requires the consistent exercise of independent judg-
ment and discretion.
Based on all of the foregoing, we conclude that the
Employer’s medical technologists specifically, and
medical technologists in general, meet the four con-
junctive requirements of Section 2(12) and, therefore,
that they are professional employees. Moreover, we
will apply a rebuttable presumption in all future cases
that medical technologists are professional employees
as defined in Section 2(12) of the Act. Any party seek-
ing to rebut this presumption will carry the burden of
establishing that the medical technologists in question
do not engage in the duties customarily assigned to
this classification of employees.
b. The instant decertification petition is dismissed
Notwithstanding our finding that the medical tech-
nologists are professional employees as defined in Sec-
tion 2(12) of the Act, we have decided to dismiss the
instant decertification petition and we will not direct
an election among these employees for the following
reasons. The certified unit covering the medical tech-
nologists specifically excludes professional employees.
Thus, a decertification election is not necessary to re-
move these professional employees from the unit—the
unit description automatically excludes them by its lan-
guage. Moreover, although the Intervenor seeks to rep-
resent those employees in a separate unit, we conclude
that an election is not warranted because we are unable
to determine on this record whether a unit consisting
solely of medical technologists is an appropriate unit.
Mindful of Congress’ admonition against the prolifera-
tion of bargaining units in the health care industry, we
note that the record does not establish that the medical
technologists are the only professional employees em-
ployed by the Employer. Rather, the record indicates
that there may be other professsional classifications
which perhaps also should be included in a unit with
the medical technologists.21 To the extent that a ques-
tion concerning representation continues to be raised
regarding these employees, by either the Union or the
Intervenor, we will entertain any such subsequently
filed petition at which time issues related to unit ap-
propriateness can be litigated and resolved. Therefore,
the instant petition is dismissed without prejudice to
the right of any party, subsequent to this decision, to
file a representation petition.
ORDER
It is ordered that the instant decertification petition
is dismissed without prejudice.