Mercy Catholic Medical Center, Mercy Philadelphia Hospital Division

National Labor Relations Board - Board Decisions

Dec 16, 2017

365 NLRB No. 165 (N.L.R.B. 2017)

365 NLRB No. 165
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Mercy Catholic Medical Center, Mercy Philadelphia
Hospital Division and District 1199C, National
Union of Hospital and Health Care Employees,
AFSCME, AFL–CIO, Petitioner. Case 04–RC–
191143
December 16, 2017
ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND KAPLAN
The National Labor Relations Board1 has carefully
considered the Employer’s Request for Review of the
Regional Director’s Decision on Exceptions to the Hear-
ing Officer’s Report on Challenged Ballots, as well as
the Petitioner’s Opposition to the Employer’s Request
for Review. The request for review is denied as it raises
no substantial issues warranting review.2

1 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 Contrary to our colleague, who would grant review of the Regional
Director’s finding that the Employer’s Operating Room Technicians
(“OR Technicians”) are technical employees who should be excluded
from the petitioned-for nonprofessional bargaining unit, we note that
the Board has categorized OR Technicians as technical employees
when their work is of a technical nature involving the use of independ-
ent judgment, and they possess specialized training acquired through
special courses or schooling. See Rhode Island Hospital, 313 NLRB
343, 353–354 (1993); William W. Backus Hospital, 220 NLRB 414,
418 (1975); Medical Arts Hospital of Houston, Inc., 221 NLRB 1017,
1019 (1975). In that regard, the Board has found that OR Technicians
are technical employees even where, as here, some training—but not
certification—is required. E.g., Rhode Island Hospital, above (3-month
to 1-year training); William Backus Hospital, above (6-month training).
Further, the Board in Rhode Island Hospital noted that even though the
OR Technicians there engaged in routine duties, like cleaning, and
followed a standardized procedure for organizing the tool tray, they
were nonetheless technical employees. The Board found sufficient
evidence of acquired skills and independent judgment where OR Tech-
nicians use their specialized training and experience to select from
among thousands of instruments for each surgery, even when guided by
surgeon preference cards, and anticipate the surgeon’s needs by supply-
ing the appropriate instruments at the appropriate times. See e.g. Mer-
iter Hospital, 306 NLRB 598, 600 (1992). The cases cited by our
colleague are distinguishable. In those cases, the OR Technicians had
no training or certification requirements; nor did they perform the
skilled duties, using independent judgment, described above. Contrary
to our colleagues’ assertion, we recognize the interplay between the OR
Technicians’ specialized training and experience and their use of inde-
pendent judgment to select and anticipate the appropriate instruments
during surgery. Here, the evidence is before us that while the OR
Technicians may rely on surgeon preference cards to prepare tools in
the pre-surgery stage, during the surgery the OR Technicians rely on
their independent judgment to select and supply the correct tool as
needed by the surgeon. Accordingly, we find that the Regional Direc-
Dated, Washington, D.C. December 16, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

tor properly excluded the OR Technicians from the nonprofessional
bargaining unit as technical employees.
Member Kaplan joins his colleagues in denying review, except as to
the Regional Director’s finding that the OR Technicians are technical
employees who should be excluded from the nonprofessional bargain-
ing unit. Initially, Member Kaplan observes that the Board has not
categorized OR Technicians as technical employees where, among
other things, they fail to exercise a sufficient degree of independent
judgment in assisting physicians. See, e.g., Heights Hospital, 221
NLRB 563, 564 (1975); St. Elizabeth Hospital of Boston, 220 NLRB
325, 329 (1975). For example, in Barnert Memorial Hospital Center,
217 NLRB 775, 780 (1975), the Board found that noncertified OR
Technicians who performed nontechnical functions including handing
the surgeon instruments were not technical employees. By contrast, the
Board found that a certified OR Technician who received additional
training and undertook extra functions, including performing duties
related to “very major surgery” and working alone in the minor surgery
room, was a technical employee. Here, Member Kaplan would grant
review for the limited purpose of reviewing the record (the Board re-
viewed the record in cases like Rhode Island Hospital, cited by his
colleagues) to determine whether it supports finding that the OR Tech-
nicians exercise independent judgment in the performance of their job
functions. Without prejudging the issue, he finds it at best unclear at
this point whether the record establishes that factor. Compare Heights
Hospital, id. (finding that OR Technicians were not technical employ-
ees, in part because their principal job functions—handing surgical
instruments to physicians in surgery and scrubbing the operating
rooms—”are for the most part routine and do not require the use of any
substantial degree of independent judgment”), with Meriter Hospital,
above at 600 (finding that OR Technicians were technical employees,
in part because they performed technical duties like minor suturing).
Member Kaplan believes that his colleagues give undue weight to the
other factors the Board assesses to determine whether an individual is a
technical employee—such as training—while discounting the apparent
lack of technical duties exercised by the OR Technicians. In fact, it
appears that his colleagues conflate training with the exercise of inde-
pendent judgment. In Member Kaplan’s view, simply because the OR
Technicians were trained to recognize the instruments they hand to the
surgeon does not mean they exercise independent judgment in doing so.