Meriter Hospital

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 598 (N.L.R.B. 1992)

598
306 NLRB No. 114
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Review was requested by the Employer only with respect to the
Regional Director’s exclusion of the utilization review specialists,
the medical imaging quality control technician, and the pharmacy
technicians II; and the inclusion of the operating room technicians.
2 Pursuant to Sec. 102.67(d) of its Rules and Regulations, the
Board may examine the record in evaluating a request for review.
3 Member Oviatt would vote the medical imagining quality control
technician subject to challenge.
Meriter Hospital, Inc. and 1199W/United Profes-
sionals for Quality Health Care, affiliated with
the National Union of Hospital and Health
Care Employees/Service Employees Inter-
national Union, AFL–CIO, CLC, Petitioner.
Case 30–RC–5279
February 28, 1992
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On October 16, 1991, the Regional Director for Re-
gion 30 issued a Decision and Direction of Election in
the above-entitled proceeding, pertinent portions of
which are appended hereto, in which he found, that op-
erating room technicians are technical employees who
should be included in the petitioned-for technical unit.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regulations,
the Employer filed a timely request for review of the
Regional Director’s decision disputing four of the Re-
gional Director’s unit placement findings,1 including
his finding with respect to operating room technicians.
The Board has carefully considered the matter at
issue and has decided to grant the Employer’s request
for review as raising substantial issues warranting re-
view solely with respect to the issue of whether oper-
ating room technicians should be included in the tech-
nical unit.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Having carefully reviewed the record with respect to
the issues under review,2 we affirm the finding of the
Regional Director that operating room technicians,
under the facts as set forth in the Regional Director’s
decision, are technical employees. William W. Backus
Hospital, 220 NLRB 414 (1976); Children’s Hospital
of Pittsburgh, 222 NLRB 588 (1976); Medical Arts
Hospital of Houston, 221 NLRB 1017 (1975). In all
other respects the request for review is denied.3
APPENDIX
The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All Technical Employees of the Employer at its Madi-
son, Wisconsin facilities including Radiologic Tech-
nologists I, II, III and IV, certified Occupational Thera-
pist Assistants, Licensed Practical Nurses, Cardio-
vascular Technologist II, Dental Hygienist, Special
Project Coordinator, Medical Records Dietitian Techni-
cian, Coder Analysts, Cancer Registrars, Quality Sup-
port Specialists, Operating Room Technicians, Dental
Assistants, EEG Technician II and Lead EEG Techni-
cian, Respiratory Therapists; but excluding Medical Im-
aging Quality Control Technicians, Monitor Techni-
cians, Anesthesia Technicians, Pharmacy Technicians I
and II, ECG Technicians I and II, Professional employ-
ees including Utilization Review Specialists,
Perfusionists guards and supervisors as defined in the
Act.
Background and Issue:
The Employer is an acute care non-profit hospital of more
than one hundred beds, located in Madison, Wisconsin. Cur-
rently, the Employer is under contract with Local 150 of the
Service Employees International Union, AFL–CIO for a serv-
ice and maintenance unit of employees (Employer Exh. 13).
This contract is effective from March 19, 1990 to March 15,
1992. Also, the Petitioner in the instant case represents a unit
of registered nurses in certain departments of the Employer.
That unit’s collective bargaining agreement expires March
14, 1993.
On April 21, 1989, the Board issued the rule in which it
determined that with respect to acute care hospitals, eight
units, including a unit of all technical employees, shall be ap-
propriate units for collective bargaining purposes. 284 NLRB
1561–1562, 53 Federal Register No. 170 pp. 33923–33924.
On April 23, 1991, the United States Supreme Court in
American Hospital Association v. NLRB, 111 U.S. 1539, 137
LRRM 2001 (1991) upheld the validity of the rule.
The Petitioner herein seeks to represent a unit of all tech-
nical employees of the Employer. Apparently, none of these
employees have previously been represented by any labor or-
ganization.
The Parties stipulated that the technical unit should consist
of the following classification ‘‘Radiologic Technologists I,
II, II and IV (Medical Imaging Technicians), certified occu-
pational Therapist Assistants, Licensed Practical Nurses, Car-
diovascular Technologists II, Dental Hygienist, Special
Project Coordinator, Medical Records and Dietician Techni-
cian.’’
The Parties are in disagreement as to the Unit Placement
of certain other classification in the technical unit. The Em-
ployer would include in the technical unit and Petitioner
would exclude the following classifications:
1. EKG (ECG) Technicians I & II
2. EEG Technicians
3. Dental Assistants
4. Utilization Review Specialist
5. Quality Support Specialist
6. Coder Analysts
7. Cancer Registrar
8. Perfusionists
9. Pharmacy Technicians I & II
10. Monitor Technicians
11. Medical Imaging Quality Assurance Technicians
599MERITER HOSPITAL
Finally, the Petitioner would include in the technical unit and
the Employer would exclude:
12. Operating Room Technicians (Surgical Technicians)
13. Respiratory Therapist
14. Anesthesia Technicians
The Board’s Definition of Technical Employees:
The Board in Barnett Memorial Hospital Center, 217
NLRB 775 (1975) stated the following test for determining
the definition of a technical employee:
. . . we apply the Board’s standard criteria that tech-
nical employees are those who do not meet the strict
requirements of the term professional employee as de-
fined in the Act but whose work is of a technical nature
involving the use of independent judgment and requir-
ing the exercise of specialized training usually acquired
in colleges or technical schools or through special
courses.
The Board in determining under its rule making procedures
that a technical unit is a separate unit appropriate for collec-
tive bargaining purposes in the acute hospital industry stated
at 284 NLRB 1516 at 1553 (1987):
The evidence presented at the hearings demonstrate that
technical employees perform jobs involving the use of
independent judgment and specialized training as op-
posed to service and maintenance employees who gen-
erally perform unskilled tasks and need only a high
school education . . . technical employees occupy a
high prestige status distinct from other categories of
non-professional employees because of the training re-
quirements for their jobs.
Technical employees further are distinguished by the
support role they play within the hospital and by the
fact that they worked in patient care. Examples of their
work include: routine clinical tests performed by med-
ical laboratory technicians, general respiratory care ad-
ministered by respiratory therapists; and x-rays,
ultrasound procedures and CAT scans performed by
various technicians.
. . . At the hearings the evidence shows that all health
care technical employees have significant additional
education and/or training beyond high school including:
community college associate degree programs which
provide math and science background beyond that
which high schools offer; vocational training programs
run by hospitals; programs at accredited schools of
technology and in some fields, a full 4-year college de-
gree.
Further, the evidence indicates that most hospital tech-
nical employees are either certified (usually by passing
a national examination), licensed, or required to register
with the appropriate state authority, although laws re-
garding such licensure, registration, training and quali-
fications vary throughout the country.
Although, in general hospitals apply similar benefit and
labor relations policies to technical and other non-pro-
fessional employees, the evidence shows that the wages
and hours of technical employees differ significantly
from those of the other non-professionals. On the aver-
age, technicians earn $2,000 per year more than service
workers in this industry. Technicians’ wages are tied to
the earnings of the more highly skilled technologists
with whom they work, and they generally earn approxi-
mately 75% of what technologists earn.
. . . There is no temporary interchange, and little per-
manent interchange between technical employees and
other non-professionals because of the difference in
skills, the specialized functions of the technicals, and
the differences in their education.
. . . Contrary to statements of industry witnesses, who
maintain that a service worker could take a six week
training program and be able to read EKG equipment
we are persuaded that technical training requires full or
nearly full-time education and high school education
does not provide the mathematics and science back-
ground necessary.
The Board’s guidelines as set forth under its Rule making
decision 284 NLRB 1516 (1987); 284 NLRB 1580 (1989),
along with the prior Board decisions in this area will be uti-
lized as precedent in my arriving at the unit placement con-
clusions of the various categories in dispute in this case.
Also, to the extent that the pay received by the employees
in the disputed classification is a relevant factor in consid-
ering the unit placement I note that the current collective bar-
gaining agreement between the Employer and Local 150 of
the Service & Hospital Employees Union provides a current
wage scale of $7.29 an hour for the lowest paid newest hired
Service & Maintenance employee to $16.08 an hour for the
highest paid most senior employee. The $16.08 an hour ap-
pears to be the pay received for highly skilled maintenance
employees with 20 years seniority or more (Employer Exh.
13 at Pages 50-51). These classifications include Biomedical
Tech II, Chief Mechanic, Head Electrician, Maintenance
Electrician, Mechanic II & Maintenance Specialist. Set forth
below are the facts, and my legal conclusions for the dis-
puted job classifications.
. . . .
Utilization Review Specialist
There are two Utilization Review Specialists (URS) em-
ployed by the Employer. Their pay range is $10.37 an hour
to $14.42 an hour. The requirement to become an URS is to
be an RN, or Registered Records Administrator, or Accred-
ited Records Technician, and have at least two years experi-
ence in a health care or reviewing organization setting. An
RN must complete a three or four year degree program, an
RRA must complete a four year degree program and an ART
must complete a two year degree program. Both of the Em-
ployers URS are RNs. The URS reviews the medical records
and charts of the hospital’s patients to determine that the pa-
tients are ‘‘sick enough to be in the hospital.’’ The URS con-
ducts concurrent admission and continued stay review. Fifty
percent of the URS time is spent on private insurance pa-
tients and the other 50% on Medicare and Medicaid patients.
In performing these duties the URS will go to the nursing
units where the patient charts are left and review the charts.
They then will summarize the type of treatment the patient
is receiving and the diagnoses, and report their findings to
the insurance company. Based upon this information the in-
surance company will certify the number of days the patient
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
may be hospitalized. After the certified days are passed and
if the patient has not been released, the URS must determine
from the charts and records why further hospitalization is
necessary, and provide this information to the insurance car-
rier. The URS must therefore make an independent judgment
as to whether or not further hospitalization is required, and
articulate the reasons to the insurance company. Concurrent
review also involves work with Medicare and the Wisconsin
Peer Review Organization (WIPRO) which is composed
mainly of physicians which evaluates physicians care to de-
termine that certain severity and intensity requirements are
met justifying an inpatient hospital stay under Medicare.
The Employer and Petitioner both recognized that the po-
sition of URS involves the use of independent judgment in
the review and interpretation of patients medical records.
However, the Petitioner contrary to the Employer contends
that the position is professional and should be excluded from
the technical unit. Under current Board law I shall exclude
this classification from the unit as being professional. Both
incumbents are RNs although the hospital guidelines do not
require RNs for this position. See St. James Hospital’s of
Newark, 248 NLRB 1045 (1980) where the Board found RN-
Utilization Review Specialists as being in a professional unit
even though the hospitals guidelines did not require RNs for
the position.
Medical Imaging Quality Control Technician:
The Employer employs one Medical Imaging Quality Con-
trol Technician (herein referred to as MIQCT). The pay
range is $7.08 an hour to $9.81 an hour, with the incumbent
earning $9.80 an hour. No certification or license is nec-
essary for this position. The only requirement is an associate
degree in science. On the job training, includes a one semes-
ter physics course at the University level and two weeks of
training regarding film processors. Also, the person must
have two years prior experience in a medical imaging or ra-
diology department. The MIQCT works from 7:30 a.m. to
4:00 p.m., Monday through Friday.
He performs quality control procedures on all radiographic
equipment in the medical imaging department. He monitors
the X-ray processors to check the chemistry replenishment
rates, temperature and humidity. In measuring the equipment
he utilizes monitoring tools, including filters, sensitometers
and decimeters. Also, the MIQCT assists a physicist in test-
ing new equipment received by the hospital. The MIQCT
keeps the darkroom clean and checks for light leaks. Con-
trary to the Employer’s assertion, I do not believe the
MIQCT classification is technical in nature. No license or
certification is required and very little on the job training is
necessary. Finally, I do not deem the job requires the req-
uisite judgment necessary to be a technical employee. The
Board in assessing this job classification in previous cases
have found it not technical, but rather belonging in a service
and maintenance unit. Southern Maryland Hospital Center,
Inc., 274 NLRB 1470 at 1475 (1985); Nathan and Miriam
Barnett Memorial Association d/b/a Barnert Memorial Hos-
pital Center, 217 NLRB 775, at 778 (1975).
. . . .
Operating Room Technicians
The Employer contrary to Petitioner, would exclude this
classification. There are approximately 27 operating room
technicians (ORTs) employed by the Employer. ORTs are
paid $9.11 to $12.55 an hour. They work a normal 8 hour
shift Monday through Friday and are supervised by the head
nurse of the operating room. In order to be hired as an ORT,
the person must have completed an OR Technical course
lasting 9 to 12 months at a local technical college. During
the past 9 years no ORT has been hired without completing
the technical college requirement. Likewise, the ORTs are
subjected to a 6 month on the job training at the hospital.
The ORTs are not required to be certified, registered or have
prior work experience. Of the present twenty-seven ORTs,
only six lack the formal training as provided by the Tech-
nical college course and five of the ORTs are certified. Also,
the ORTs are required to attend monthly-inservice training
attended by RNs and at times physicians. These sessions are
to keep current in surgical procedures.
The ORTs assist in assembling the required sterile devices,
and the placing of gowns onto a cart. They will add items
to the surgical cart based on a preference list which a par-
ticular surgeon utilizes. These lists are apparently compiled
by the ORT and not the physician. Once the cart is assem-
bled, the ORTs will wheel the cart to the surgery room.
There they will sterilize the room by wiping the furniture
with a disinfectant. Likewise, the ORT makes sure that the
surgical supplies are disinfected. The ORTs role during sur-
gery is to assist the surgeon by handing to the surgeon the
instruments needed at the time needed. A trained ORT will
be able to anticipate when a certain instrument is needed.
Any tissue removed may be given to the ORT by the physi-
cian for future tests. The ORT makes sure the tissue is prop-
erly contained and the container is marked for the additional
tests. The circulating nurse (an RN) is responsible for taking
the container to the appropriate lab for testing. After the sur-
gery is completed, the ORT will transport the contaminated
supplies to a re-processing area, and will re-clean the surgery
room. Finally, on occasion the ORTs will perform minor su-
turing when asked by the physician.
Although conceding that the training necessary to become
an ORT is sufficient to normally consider the job technical,
the Employer argues that the ORTs are not sufficiently
skilled to be classified as technical employees. The Employer
cites St. Elizabeth’s Hospital of Boston, 220 NLRB 325 at
329 (1975) for support of its position. However, while this
position presents a close issue, I am satisfied that the current
record adequately demonstrates that the ORTs herein are
technical employees. All of the ORTs hired for the past nine
years have completed a 9 to 12 month course in this field
at the area technical college. Likewise, while many of the
duties performed by the ORTs are routine such as dis-
infecting the supplies and room, others are considerably more
skilled and technical in nature. Thus, the ORTs are respon-
sible for anticipating the surgeons needs and handing the sur-
geon at the appropriate time the appropriate instruments.
Likewise, the ORTs do in fact perform minor suturing when
requested by the physician. In St. Elizabeth’s Hospital of
Boston, supra, relied upon by the Employer, the Board did
in fact find the ORTs as being non-technical employees.
However, the Board did not explicate in any detail the nature
of the skills and duties performed by the ORTs. I am per-
suaded that the Board’s decision in William W. Backus Hos-
pital, 220 NLRB 414 at page 418 (1976) is a more detailed
and reasoned decision by the Board. In that decision none of
the ORTs were certified. However, the Board found the em-
601MERITER HOSPITAL
ployees to be technical based on the duties they performed.
Further, unlike Backus, in the instant case, for the past nine
years, the hospital has required the ORTs to have completed
a 9 to 12 month technical college program for ORTs in order
to be qualified for hire. This program consists of courses in
medical surgical procedures, operating room techniques,
anatomy aseptic techniques, surgical instrumentation and
microbiology. Likewise, 20 of the current 27 ORTs have
taken this program and five are certified. See also Children’s
Hospital of Pittsburgh, 222 NLRB 588 at 594 (1976) for a
further decision including ORTs in a technical unit. The
ORTs herein shall be included in the Technical Unit.
. . . .
Pharmacy Technicians I & II
There are twelve employees in Pharmacy Technician Level
I (PT I) and fourteen in PT II. PT I pay ranges from $7.08
an hour to $9.81 an hour. PT IIs are paid $8.25 to $11.43
an hour. PT Is are hired without any experience. They re-
ceive 8 weeks on on-the-job training. They are trained by an
experienced PT I or PT II. In order to progress to a PT II,
a PT I must have finished 18 months service in a tech I posi-
tion and must be trained and competent in 2 of the 5 Tech
II duties. No degree or certification is necessary to be a
Pharmacy Technician, nor is any prior work experience nec-
essary. The duties of a PT II include sterile product prepara-
tion, outpatient prescription processing, controlled substance
distribution, record keeping inventory maintenance, distribu-
tion of drug product and coding or charging of pharma-
ceuticals.
In the sterile products preparation the Tech II is respon-
sible for the compounding of IV solutions. They do this by
taking a base solution such as dextrose and adding a drug
to it. The pharmacist will place in the computer the amount
of solutions to he mixed and the Tech II will utilize this in
mixing the solutions. The Tech II must have the Pharmacist
verify his/her work. The Tech II will display the product, the
base solution, the syringe and the label so that the pharmacist
can view what product has been mixed. However, the phar-
macist cannot determine whether the proper mixture has been
performed. The failure of the Tech II to properly compound
the IV solution could lead to adverse reaction by the patient.
In the past all IV solutions had been performed by phar-
macists.
In performing outpatient prescription processing, the Tech
II will receive the prescription from the patient. The Tech II
will ask the patient what other drugs he/she is taking, and
will enter the information into a computer which will gen-
erate the product label. The Tech II will take the prescription
gather the product and fill the prescription. After completion,
the product is set aside for a final check by the Pharmacist.
Again, as stated above while the Pharmacist does do a final
product check, the Pharmacist cannot verify with certainty
that any solution mixture has been properly compounded.
In performing his/her duties regarding controlled sub-
stances, the PT II is responsible for receiving on a daily
basis the controlled substance sheets which originate from
the nursing units. The Tech II will fill out the proper paper
work as required by law, and resupply the nursing units.
Likewise, the Tech II will distribute other non-narcotic drugs
to the nursing units, and will see that the drug supply is re-
stocked by ordering drugs from the various whole-sale sup-
pliers. Finally, the Tech II performs coding and billing func-
tions for drugs dispensed to patients.
The PT I and IIs do not receive any in-service training
programs, or attend outside programs. They are not required
to have any knowledge of the effects of drugs on patients.
The Tech I is responsible to fulfill any of the jobs of the
Tech II but, the majority of the Tech Is job consists deliv-
ering medications to nursing units, picking up physician
order forms, filling medication cassettes with supply medica-
tions for a 24 hour period, as well as prepackaging and pack-
aging drugs in a unit dose fashion.
The Employer contrary to Petitioner, contends that the PT
I and IIs are technical employees and should be included in
the unit. I have no question but that Tech Is are not technical
employees. They work generally as an inventory clerk, and
exercise no independent judgment. I shall therefore, exclude
the Tech Is from the bargaining unit.
The determination of Tech IIs presents a much closer
issue. They have a minimum of 16 months on-the-job train-
ing before they can become a Tech II. However, while they
do perform a more technical function than the Tech Is, I do
not find under current Board law that they constitute a tech-
nical classification. The only Board case which found Phar-
macy Techs to be a Technical classification was Duke Uni-
versity, 226 NLRB 470, 472 (1976). In Duke the PTs were
found technical based on their completion of a 6 month
course of study and their certification. None of the PTs in
the instant case are required to engage in any post high
school studies, and none are certified. The Board has consist-
ently refused to place such employees in a technical unit.
Southern Maryland Hospital Center, Inc., 274 NLRB 1470,
1474 (1985); Medical Arts Hospital of Houston, Inc., 221
NLRB 1017, 1018 (1975). In Southern Maryland, supra, as
in the instant case the PTs did fill prescriptions. However,
said prescriptions, as in the instant case, were filled under the
close scrutiny of licensed pharmacists. Under Wisconsin law
only a license pharmacist can in fact dispense drugs. Accord-
ingly, I shall exclude the PTs I and II from the technical
unit.