Illinois Valley Community Hospital

National Labor Relations Board - Board Decisions

May 24, 1982

261 N.L.R.B. 1048 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Illinois Valley Community Hospital and Hospital
Workers Joint Council, AFL-CIO (American
Federation of Teachers; Firemen and Oilers
Local No. 8; and the Hotel and Restaurant Em-
ployees, Local 327), Petitioner. Case 33-RC-
24601
May 24, 1982
SECOND SUPPLEMENTAL DECISION
AND ORDER AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTIER
On February 12, 1981, the National Labor Rela-
tions Board issued a Supplemental Decision and
Order2 herein in which it remanded for further
hearing before a hearing officer the issues of
whether the Employer's medical technologists are
professional employees. On July 31, 1981, Hearing
Officer Gerald V. Selvo issued his Report and
Recommendations on Challenged Ballots in which
he found that the medical technologists were not
professional employees. Thereafter, the Employer
filed exceptions and a supporting brief, and the Pe-
titioner filed cross-exceptions and an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the record in light of
the exceptions and briefs, and has decided to find,
for the reasons set forth below, that the medical
technologists are professional employees, and to set
aside the election and direct a second election.
The medical technologists whose status is at
issue here are required to have obtained a bache-
lor's degree in medical technology or a related sci-
ence and to have passed a qualifying examination
given by the American Society of Clinical Patholo-
gists (ASCP). The Employer must insure the edu-
cational background of its medical technologists in
order to retain its accreditation from the Joint
Commission of Hospital Accreditation. Medical
laboratory technicians, on the other hand, need
only an associate college degree and may, but are
not required to, take and pass a simpler ASCP ex-
amination than that given to the medical technolo-
gists.
I This case was formerly consolidated with Case 33 RC 2459; howev-
er, in its Supplemental Decision and Order, the Board amended the cap-
lion to delete Case 33--RC-2459 since that case is no longer before the
Board.
2 Not published in bound volumes of Board Decisions. A previous De-
cision and Order in this proceeding is reported at 249 NLRB 410 (1980).
261 NLRB No. 155
The medical technologists perform and evaluate
a broad spectrum of clinical laboratory tests in-
volving the disciplines of histology, bacteriology,
chemistry, serology, hematology, urinalysis, and
blood banking. Most, but not the most difficult, of
these tests also are performed by medical labora-
tory technicians (MLTs). Finding that the func-
tions performed by the MLTs are essentially the
same as those performed by the medical technolo-
gists, and noting that the MLTs concededly are not
professionals, the Hearing Officer concluded that
the medical technologists likewise are not profes-
sionals. We find that, by focusing on the work
functions of the MLTs and the similarities of func-
tions performed rather than on the criteria estab-
lishing professional status and the totality of the
background, experience, and work responsibilities
of the medical technologists, the Hearing Officer
used the wrong test for determining their profes-
sional status and consequently, reached an errone-
ous conclusion.3
Section 2(12) of the Act, in pertinent part, de-
fines a "professional employee" as:
(a) any employee enaged in work (i) pre-
dominantly intellectual and varied in character
as opposed to routine mental, manual, me-
chanical, or physical work; (ii) involving the
consistent exercise of discretion and judgment
in its performance; (iii) of such a character that
the output produced or the result accom-
plished cannot be standardized in relation to a
given period of time; (iv) requiring knowlege
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 apprenticeship
or from training in the performance of routine
mental, manual, or physical processes....
As the Board observed in its Supplemental Deci-
sion and Order remanding this case for further
hearing, the Board, in other cases, has found medi-
cal technologists with similar educational back-
grounds and who performed comparable work
functions as those described in the record then
before it to be professional employees.4 The sup-
' Inasmuch as we have reviewed the record and drawn from it all the
inferences necessary to reach the result sought by the Employer, we find
it unnecessary to entertain the Employer's exceptions to the Regional Di-
rector's appointment of the same Hearing Officer who had previously
heard the case and decided it adversely to the Employer and to the Hear-
ing Officer's alleged predisposition regarding the case.
4 E.g., Nathan and Miriam Barnerr Memorial Hospital Association d/b/a
Barnert Memorial Hospital Center, 217 NLRB 775, 782 (1975); Children's
Hospital of Pittsburgh, 222 NLRB 588, 590 (1976).
1048
ILLINOIS VALLEY COMMUNITY HOSPITAL
plemental record contains nothing to dispute that
observation. The Hearing Officer, however, appar-
ently concluded from the supplemental record that,
unlike the cases cited by the Board, here the work
engaged in did not meet the criterion of "predomi-
nantly intellectual and varied . . . as opposed to
routine." We do not agree. The Hearing Officer
correctly concluded that the professional status of
an employee is not determined simply by the pos-
session or lack of a baccalaureate degree, and cer-
tainly is not determined by a job title that corre-
sponds to one which the Board has had before it in
other cases. However, we are not persuaded that
the distinctions the Hearing Officer has attempted
to draw between this and the earlier cases are
sound. The Hearing Officer rests his conclusion on
the fact that the Employer's MLTs are capable of
performing most of the laboratory tests which the
medical technologists perform, albeit with less pro-
ficiency.
This line of analysis may or may not distinguish
the MLTs here from those in earlier cases. It does
not, however, show that the medical technologists
are deficient in the essential qualifications that gave
their counterparts professional status in those cases.
For example, that union representatives who are
not statutory professionals act as counsel for their
unions in Board proceedings does not put into
question the professional status of attorneys who
perform the same function. Here, the Employer's
medical technologists are, and are expected to be,
more proficient, and perform tests which the
MLTs are not assigned. 5 These differences, as the
5 The Employer employs only three MLTs That one or more of them
may have, with experience. achieved the skill to perform as competently
as a medical technologist is to his or her credit. It may even mean that he
or she is performing at a professional level and should be recognized as
record establishes, are attributable at least in part to
the medical technologists' specialized educational
background. This is precisely the kind of difference
that bridges the sometimes fine line between non-
professional and professional status. See The Ex-
press-News Corporation, 223 NLRB 627, 629-631
(1976).
We also regard as indicative of professional
status the medical technologists' responsibility to
keep abreast of developments in their field. Cf.
Barnert Memorial Hospital Center, supra at 782.
On balance, although the medical technologists
spend some of their time in nonprofessional activi-
ties, we conclude that their work is predominantly
intellectual and is sufficiently varied to meet the
appropriate part of the statutory test, and that they
meet all of the other statutory criteria. According-
ly, we find that they were professional employees
at the time of the election and were improperly in-
cluded in the bargaining unit: and, as their votes
may have been determinative, we shall set aside the
election and direct a second election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the election con-
ducted herein on August 17, 1979, be, and it
hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication].
such a proposition that neither party is here urging. But see M'larcus
Lawrence Memorial fIospital, 249 NI.RB 608. 616 (1980) (James Randall)
However, nothing in the record establishes that the Fmployer requires of
the MIA.s that they perform at such a level, even after years of experi-
cnce. Cf. The 'he. speake & Potomac Telephone Company of Moarland,
192 Nl RB 483, 484 (1971)
1049