Ochsner Clinic

National Labor Relations Board - Board Decisions

Aug 26, 1971

192 N.L.R.B. 1059 (N.L.R.B. 1971)

OCHSNER CLINIC 1059
Ochsner Clinic and Social Economic Organization of
Staff Radiologic Technologists , Petitioner. Case
15-RC-4595 -
August 26, 1971
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Upon a petition duly filed under Section 9(c)-of the
National Labor Relations Act, as amended, -a
hearing was held before Hearing Officer Patrick M.
Bardwell. Following the hearing and pursuant to
Section 102.67- of the National Labor Relations
Board Rules and Regulations ' and Statements of
Procedure, Series 8, as amended, and by direction of
the Regional Director for Region 15, the case was
transferred to the Board for decision. Thereafter,
briefs were filed by the Petitioner and the Employer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection:, with this case to, a three-
member panel.
The Board has - reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby, affirmed.
Upon the entire record in this case, -the Board
finds:
1. The Employer is engaged in commerce within
the, meaning of the Act, ,and it will effectuate the
purposes of the Act to assert jurisdiction herein)
2. The labor organization involtved claims to
represent certain of the employees, of the Employer.2
3. A question affecting commerce exists concern-
ing the representation of,certain employees of the
Employer within the meaning of Sections 9(c) (I) and
2(6) and (7) of the Act.
4. The Petitioner seeks a unit of all "non-supervi-
1 It was stipulated that Ochsner Clinic was a partnership operating in
Jefferson Parish, Louisiana, engaged in the practice of medicine; that it
had a- gross volume in excess of $250,000 during the past 12 months and
purchased materials and supplies during that same period in excess of
$50,000 ; the latter figure corrects an apparent error in the transcript. The
Employer did not admit that it is engaged in interstate commerce within
the meaning of the Act, but admits that under the Board's presently
existing standard, the Board would conclude that Ochsner Clinic is
engaged in interstate commerce . See Quain and Ranistad Clinic, 173
NLRB 1185; Mayo Clinic, 168 NLRB 557.
2 The Employer was unwilling, to stipulate as to the,status of the
Petitioner as a labor organization . The record shows that the Petitioner is an
organization in which employees participate,-and that it exists for the
purpose of dealing with employers concerning wages, hours, and working
conditions of the employees. Accordingly, we find that the Petitioner is a
labor organization within the meaning of Section 2(5), of .the Act-
$
The job classifications characterized by the Employer as technical are
the following:
Audiologist, Cardiovascular Technician , Claims Analyst, Clinic
sory radiological technologists" (also referred to as
X-ray technicians) at Ochsner Clinic. The Employer
contends that -the above unit is inappropriate, and,
the only appropriate unit should include, in addition
to the 22 radiological technologists, - approximately
127 other employees in 33 other classifications
characterized by the Employer, as technical3 The
total employee complement is, approximately 700,,
including approximately 200 licensed physicians.
All the employees at the clinic have substantially
the same work schedule and are- subject to -the
Employer's general employee relations policies.
The petitioned-for employees are employed -in the
radiology, also known as- the X-ray, department,
which is located in a separate area on the second,
floor- of the clinic. Approximately, half of the
radiological technologists work-on.the "Clinic side,"
the others working on the "hospital,side."-Most other
employees listed by the Employer as "technicals do
not work or have cause to enter these areas:, 'The
precise distinction of functions_ is not clear, but it
appears that the radiological technologists who, work
on the "hospital side". are - responsible -for patients
sent to the clinic for X-rays from Ochsner Founda-
tion Hospital, a separate, employer.
The radiological technologists all work in the
approximately,20 X-ray examining rooms, taking X-
rays, as prescribed by the medical, staff, and malting
diagnostic examinations of patients ,using various
types of radiation equipment, pursuant to a medical
doctor's order. With some exceptions , all of the
petitioned-for, employees, work exclusively in the
separately located X-ray department 4 The radiologi-
cal technologists -do no other type of work, and other
employees do not do the- same work as,the radiologi-
cal technologists .5 At no time do any ..of the
radiological technologists, interchange with employ-
ees in any other department of the clinic, and any
work or personal contact the radiological technolo-
gists may have with other "technical" employees is
minimal. All of the radiological technologists are
Coding Desk, Contact Lens Technician, Dietitian, Dispensing Opti-
cian, EEG Technician , EKG Technician , ENG Technician, Floating
R.N. or L.P.N., Hospital Coding Desk,-Inteerpreter, IVP Nurse, Kine,
Technician, Licensed Practical Nurse, Life Insurance Analyst, Medical
Photographer, Medical Secretarial Production and Work Flow Analyst,
Nurse Technician, Ophthalmology Technician, Ophthalmology Tech-
nician and Secretary, Oral Surgery Technician , Q.R. Technician,
Orthopaedic Assistant, Orthopaedic Technician , Photographic Quality
Control Clerk, Registered Nurse, Training Director AOMF School of
Radiological Technologists, X-Ray Dark Room Attendant, ' X-Ray
Technician-Clinic Side, X-Ray Technician-Hospital Side, and
Urology Technician.
4 The record reveals that six or seven radiologic technologists rotate on
the "portable assignment" for I week at a time, each, receiving the
assignment in;turn, once every 6 or 7 weeks.
5 The two oral surgery technicians take oral X-rays They work under
separate supervision and in separate locations and receive different training
from the; radiologicaltechnologists.
192 NLRB No. 156
1060 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
required to be registered-by-the American-Registry of
Radiologic Technologists before, they may begin
employment at^ the clinic. In order to: become eligible
to take -the -written examination for registration, a
person must have successfully completed 'training in
a r radiological technologist school approved by the
American .'Medical Association Council on Educa-
tion. The, -length of, the course of study is generally 2
years.
The radiological technologists are supervised inde-
pendently' of the other clinic' department and- their
immediate supervisors are responsible to the chief
radiological technologist who reports to the adminis-
trative director of the clinic and the radiologist. The
radiological technologists are hired- by the chief
technologist and receive their orientation from other
radiological 'technologists. Their salaries are deter-
mined independently of the other job' classifications
at the clinic.- - 11
From x the foregoing, it is clear that although the
radiology department is integrated with overall
patient- care, the department has -a separate -unique
function related' and ^ limited to the skills and
equipment used therein. The Board has attached
great significance for unit deteimination'purposes to
the functional uniqueness of the work of a given
group, of employees, especially where' department
lines have been drawn.-
On the basis of- the entire record, it is clear that
although' the radiological technologists receive ad-
vanced technical training and do largely specialized'
work in common with some of the Employer's other
employees whom 'the-Employer contends are also,
technical employees, they Share overriding interests
in common with one another which are separate and
apart from ^"such other employees: Therefore, al-
though the radiological technologists may' share a
common classification as technical employee, they
possess a unique community of interest based on
their own- specialized background and training, their
registration ,- as 'a `result of a specialized written
examination, the,distinct nature of their functions,
their separate supervision and work areas, the
complete absence of interchange with other employ-
ees, their common-,working conditions„their, separate
salary scale, and the fact that they alone are hired by
the °chief radiological technologist.' We also note the
absence, of-,bargaining history and the fact that no
6 See Douglas Aircraft Company, Inc., 157 NLRB 791.
r Emanuel Birnbaum and John W. Jones d/b/a Silver Lake Nursing Home,
178 NLRB No. 71; Ladish Co., 178 NLRB N6. ' 5; WTAR` Radio-TV
Corporation, 168NLRB 976:
s In order t assurethat all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the'-el 'ection' should- have access too a list of voters and their
addresses which may be used to - communicate with them . Excelsior
Underwear Inc., 156 NLRB 1236 ; N.L.R.B. v:'Wyman-Gordon to., 394 U.S.
labor organization seeks to represent employees in a
broader unit.'In our opinion, these factorsnegate the
Employer's contention that the petitioner-for em-
ployees cannot comprise a separate technical unit.
Consequently, we find that the requested employees
constitute a clear identifiable group with a separate
community of interests, - and, therefore, may consti-
tute a separate appropriate unit.?
Finally,- there remains for determination an issue
which arose at the hearing concerning the' superviso-
ry status of Miss Sue Taylor, a radiological technolo-
gist who sporadically relieves her supervisor during
vacation periods or illness . Miss- Taylor, ,whose
testimony was uncontroverted,, stated that, she--does
not handle -grievances, approve leave, nor schedule
workweeks and time, off. She has no authority to hire
and transfer, suspend, lay off,, recall, --demote,
discharge, assign, remand, or discipline employees,
and the, overwhelming, part of her time has the same
duties as other radiological, technologists. Conse-
quently, we find that she is not a-supervisor within
the meaning of the Act and, include her in the
proposed unit:
Accordingly, we find that the following employees
of the Employer, at its New Orleans; Louisiana, clinic
constitute a unit appropriate for the purpose, -of
collective bargaining, within the meaning of Section
9(b) of the Act:'
All non-supervisory radiological technologists,
excluding office and clerical employees, 'profes-
sional employees, guards, and supervisors , as
defined in the, Act, and all other employees.
[Direction of Election8 omitted from publication.]
CHAIRMAN'-MILLER, dissenting:
My problem with the majority here is twofold: (1) I
am concerned that this decision may encourage
severe unit fragmentation of units in the health care
industry; and (2) the' decision does not appear to me
to comport with our customary unit findings ' as to
technical employees. The two _ problems' are, of
course, interrelated. '
The record here shows that there is a substantial
number of other technical employees who -work -at
the clinic-such as cardiovascular technicians, EEG
technicians, EKG technicians, ENG technicians, oral
surgery technicians, and the like-=all of whom are, of
course, excluded from the unit found -by the majority
to be appropriate. Thus, a,majority of my colleagues
759. Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters ,`must be'filed
by the Employer with the Regional Director for Region 15 within'7 days'df
the date of, this Decision and Direction of Election. The Regional Director
shall make the list available to"all parties to' the -election . No extension' of
time to file this list shall be granted, by the Regional Director''except'in
extraordinary circumstances. Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed. I I -
OCHSNER CLINIC 1061
would seem to me to be inviting separate representa-
tion for each of these categories. I fear that this could
develop a potentially chaotic bargaining situation for
this industry, and therefore doubt that we have given
sufficient - attention to our statutory command to
determine whether this narrow a grouping truly
constitutes an appropriate unit for collective bargain-
ing.
As I read our past decisions as to other industries,
we have not thus fragmented units of technical
employees. For example, in The Bendix Corporation,
150 NLRB 718 (1964), we dismissed a petition
limited in scope to electronic technicians when the
record showed that : the employer also employed a
substantial number of other technicians, admittedly
involved in work not electronic in nature. There we
said (720-721):
The Petitioner does not contend that they are
craftsmen or that they constitute a single depart-
mental group entitled to separate representation.
It does not deny that the electronic technicians
are a segment of all the technical employees at the
plant or that the technicians who are not included
in the unit request will remain unrepresented. The
thrust of the evidence :Petitioner , presented and
the argument in its brief is that _ the electronic
technicians are technical employees who are
required to show training and skill in their
specialty, to exercise independent judgment and
to work with professional engineers . The same
considerations are equally applicable, however, to
the 80 or so experimental technicians who are
engaged in other work of a technical nature not
involving electronics. The Board has held that a
unit of technical -employees is inappropriate where it
does not include all in that category . [Emphasis
supplied.]
This well-established principle of not approving a
unit of technical , employees which "does not include
all in that category" would seem to me to have
general applicability, and the majority has- not
indicated why the health care industry, should be
treated differently from other industries in this
regard.
For these reasons, I would dismiss the-petition
herein.