Faribault Clinic

National Labor Relations Board - Board Decisions

Jul 31, 1992

308 N.L.R.B. 131 (N.L.R.B. 1992)

131
308 NLRB No. 31
FARIBAULT CLINIC
1 In denying review, we note, in addition to the factors cited by
the Regional Director in support of his unit finding, that the Employ-
er’s technical work force is substantial in size, both in numbers and
relative to the Employer’s other nonprofessionals and its total staff.
1 The Employer’s name appears as stipulated to by the parties in
the record.
2 The Employer, Faribault Clinic, Ltd., is a Minnesota corporation
engaged in the operation of a full service medical clinic at its
Faribault, Minnesota facility. During the last 12 months, a represent-
ative period, the Employer’s gross revenues were in excess of
$250,000, and the Employer purchased and received at its Faribault,
Minnesota facility goods and services valued in excess of $50,000
from points located outside the State of Minnesota.
Faribault Clinic, Ltd. and Minnesota Licensed
Practical Nurses Association–Technical Em-
ployees Association of Minnesota (MLPNA-
TEAM), Petitioner. Case 18–RC–15239
July 31, 1992
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The Board has delegated authority in this proceeding
to a three-member panel, which has considered the
Employer’s request for review of the Regional Direc-
tor’s Decision and Direction of Election (pertinent por-
tions of which are attached). The request for review is
denied as it raises no substantial issues warranting re-
view.1
APPENDIX1
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the Na-
tional Labor Relations Act, as amended, a hearing was held
before a hearing officer of the National Labor Relations
Board.
Pursuant to the provisions of Section 3(b) of the Act, the
Board has delegated its authority in connection with this pro-
ceeding to the undersigned.
Upon the entire record in this proceeding, the undersigned
finds:
1. The hearing officer’s rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
2. 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
3. The labor organization involved claims to represent cer-
tain employees of the Employer.
4. A question affecting commerce exists concerning the
representation of certain employees of the Employer within
the meaning of Section 9(c)(1) and Section 2(6) and (7) of
the Act.
The Petitioner seeks to represent a unit of all licensed
practical nurses, medical secretaries, x-ray technologists, and
laboratory technicians employed by the Employer at its clinic
located in Faribault, Minnesota. The Employer, contrary to
the Petitioner, contends that only a wall-to-wall unit of all
nonprofessional employees is appropriate, and thus requests
the addition of number of primarily clerical and maintenance
employees to Petitioner’s proposed unit.
The Employer operates a full service medical clinic in
Faribault, Minnesota. It has 19 physicians on staff, including
specialists in pediatrics, urology, surgery, obstetrics, and oph-
thalmology. The physicians share ownership in the clinic in
a partnership. New physicians work a one-year trial period,
after which they either become partners or leave the staff.
The Employer employs one certified registered nurse, des-
ignated the nurse educator. The nurse educator frequently
works outside the clinic; for example, at patients’ homes. In
consultation with the physicians, the nurse educator develops
diet, exercise, and medication plans for patients whose condi-
tion requires such follow-up care and instructs those patients
in the program. For example, she instructs patients found di-
abetic in how to monitor their blood sugar and inject them-
selves with insulin. Both parties agree that the nurse educator
is a professional within the meaning of the Act and that this
classification should be excluded from the unit. Based on
that agreement, the variable and independent nature of the
nurse educator’s duties, and the nurse educator’s education
and certification requirements, I find the nurse educator is a
professional employee and appropriately excluded from the
unit.
The rest of the Employer’s employees are classified ad-
ministratively into four departments - nursing, laboratory
(also known as ancillary services), medical records, and the
business office. The nursing, laboratory, and medical records
departments are separately and intermediately supervised and
ultiately responsible to the Employer’s assistant adminis-
trator; the business office employees are directly supervised
by the assistant administrator.
The nursing department includes classifications of LPNs
(of which there are currently about 21), ophthalmic techni-
cian (currently unoccupied), ophthalmic assistants (2), coding
coordinator (1), and coding assistant (1). The LPNs are each
assigned to work with a particular physician. They greet pa-
tients in the waiting rooms, prepare them for examinations,
and assist the physicians as required. The ophthalmic techni-
cian and assistant perform similar services for the ophthal-
mologist. The coding coordinator and assistant compile and
file patient records and work on bills and insurance claims.
LPNs and the ophthalmic employees require state certifi-
cation and CPR training; coding employees must have medi-
cal knowledge or experience, but have no specific education
or training requirements.
The laboratory department includes classifications of MLT
instructor (1), x-ray technologists (3), lab technicians (8), and
laboratory secretary and assistant (2). The MLT instructor
has a four-year degree in lab technology. The x-ray and lab
technicians require lesser but substantial advanced education
and certification. Functionally, the MLT technician performs
the same tasks as other lab technicians; in addition, she is
responsible for monitoring the other technicians’ results and
for periodic tests of the equipment. In the absence of the lab-
oratory supervisor, the MLT instructor ‘‘take[s] over for
her.’’ The lab secretary and assistant are responsible for all
lab paper work. They perform some of the simpler tests, but
require no particular education or lab experience and are
trained on the job.
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The medical records department includes classifications of
medical records transcriptionists (3–4), medical records
clerks (4), medical secretary/receptionist appointments (2),
and medical secretary/receptionists (4). The medical records
transcriptionists are primarily responsible for transcribing
dictation by the clinic’s physicians. The medical records
clerks are primarily responsible for filing and retrieving pa-
tient files, charts, and x-rays. The receptionists greet patients
at the separate waiting areas. As for required experience and
training, the Employer requires training for the
transcriptionist, (‘‘preferably’’ graduation from a medical
secretary/transcriptionist program and medical secretary or
LPN training for the receptionists. The Employer explained
the requirement for the receptionists’ training as a need for
familiarity with medical terminology.
The business office includes classification of bookkeeper
(1), insurance clerk (1), workers’ compensation clerk (1),
switchboard operator (1), billing clerks (cashiers) (2), reg-
istration clerks (2), appointments clerks (2), and computer
operators (2). The registration clerk is the first to greet in-
coming patients, from there they are sent to separate waiting
areas near the physicians’ offices. The other positions in the
business office are primarily engaged in paper work con-
nected to scheduling patient appointments, billing, and proc-
essing of insurance claims and other third party reimburse-
ments.
In addition to the above classifications, the Employer em-
ploys three maintenance employees. One functions frequently
as a ‘‘concierge,’’ opening the front door for incoming pa-
tients. All three perform custodial services and grounds
maintenance.
All of the employees share similar benefits, break rooms,
and bulletin boards and are subject to the same personnel
policies. All are paid an hourly wage, except for the nurse
educator, who is paid a salary. The clinic is open 8 a.m. to
5:30 p.m. weekdays and 9 a.m to noon on Saturdays. Busi-
ness office employees regularly work within those hours.
LPNs, lab employees, and medical records employees work
as long as physicians and patients remain in the building,
sometimes after regular hours. One maintenance employee at
a time works an afternoon shift extending several hours be-
yond closing.
Based on the foregoing and the record as a whole, I find
a unit of technical employees substantially as proposed by
the Petitioner to be appropriate. First, I find that the technical
unit includes LPNs, x-ray technologists, laboratory techni-
cians, MLT instructors and ophthalmic technicians and assist-
ants, and excludes business office clericals, coding coordina-
tors and assistants, laboratory secretaries and assistants,
medical records transcriptionists, medical records clerks,
medical secretaries/receptionists appointments and medical
secretaries/receptionists.
LPNs are required to be state licensed as LPNs, and they
are also certified in CPR. LPNs schedule and assist testing
procedures and prepare patients for physicians’ examinations
with minimal supervision. X-ray technologists must complete
radiologist technology training at an AMA approved school,
be certified in mammography, and be qualified for registry
with ARRT. They are expected to operate and maintain their
equipment, including selection of technical factors on an in-
dividual patient basis with a minimum of supervision. Lab
technicians must complete a two-year educational program
and achieve certification. They engage in the gamut of lab-
oratory testing and invasive procedures such as drawing
blood. Accordingly, I find these employees’ work is of a
technical nature involving the use of independent judgment
and requiring the exercise of specialized training and they
qualify as ‘‘technicals.’’ See Lancaster Osteopathic Hospital
Association, 246 NLRB 600 (1979); Middlesex General Hos-
pital, 239 NLRB 837 (1978).
The Union requested inclusion of the ophthalmic assistants
and exclusion of the vacant ophthalmic technician classifica-
tion. I find both must be included. The job descriptions for
the two positions are substantially identical. While the job
descriptions do not explicitly list prerequisites for the jobs,
the testimony indicates that the qualifications for ophthalmic
assistant are the same as for an LPN, and ophthalmic techni-
cian is a certified position requiring significant training and
experience. The only difference between the technician and
assistant appears to be that the technicians will have greater
independent responsibility in conducting and recording eye
tests. Both positions are expected to work with patients for
the ophthalmologist in the same manner that the LPNs assist
the other physicians. Both are also expected to attend nursing
meetings and in-service training session and to substitute for
LPNs when scheduling needs require. Accordingly I consider
both ophthalmic and ophthalmic assistants to be technicals.
On the first day of hearing in this case, the Union re-
quested inclusion of the MLT instructor. On the second day
of hearing, the Union claimed the MLT instructor should be
excluded as a professional or a supervisor. The Employer de-
clined to take a position on either issue. I find the record
fails to support the exclusion of the MLT instructor as either
a professional or a supervisor.
The record demonstrates that the current MLT instructor
has a four-year degree in laboratory technology, but that the
degree was not a job requirement when she was hired. That
degree prompted the Employer to delegate to the quality con-
trol functions formerly performed by her supervisor after
about a year on the job. Quality control responsibility is the
only thing that distinguishes the MLT instructor from the
other laboratory technicians.
The current MLT instructor testified she is paid $11.14 an
hour. The Employer’s published pay scale submitted in evi-
dence shows the MLT instructor paid $7.43 an hour to start,
rising to $9.07 an hour after five years. Lab technologists are
scheduled to earn from $6.01 an hour to start to $8.70 an
hour after five years. X-ray technologists are scheduled to
earn $11.41 an hour regardless of tenure.
The MLT instructor’s quality control responsibilities ap-
parently require somewhat greater exercise of independent
judgment than the other lab technicians. I do not find the
quality control function sufficient, however, to make the
MLT instructor’s job ‘‘predominantly intellectual and varied
in character’’ or ‘‘of such character that the output produced
or the result accomplished cannot be standardized in relation
to a given period of time’’ within the meaning of Section
2(12) of the Act. Accordingly, I find the MLT instructor to
be a technical employee like the other lab technicians.
133FARIBAULT CLINIC
The only evidence of supervisory authority consists of a
cryptic answer to a single question of whether the current
MLT instructor’s job changes when her supervisor is absent.
She answered, ‘‘I’m supposed to kind of just make sure that
the lab is functioning properly if any problems come up - to
kind of take over for her.’’ There is no evidence of how fre-
quently this occurs. There is also no evidence that the MLT
instructor has authority to make decisions in the supervisory
areas listed in Section 2(11) of the Act independently of
higher authority, such as the assistant administrator, even in
the absence of the lab supervisor. Accordingly, I cannot find
the MLT instructor to be a supervisor and will include her
in the technical unit.
I do not find that the medical records department cler-
icals, coding clericals, or lab secretary or assistant qualify as
technical employees. Petitioner required inclusion of the
medical secretary/receptionist appointments and medical
secretary/receptionist classifications on the grounds that their
job descriptions require ‘‘medical secretary or licensed prac-
tical nurse training’’ and that some of the current reception-
ists are certified LPNs. The Employer’s evidence, however,
indicates that those requirements are intended to ensure fa-
miliarity with medical terminology, not any particular tech-
nical skills. The coding clericals’ and medical records
transcriptionist’s descriptions require similar ‘‘medical
knowledge,’’ ‘‘formal training in CPT coding,’’ and/or
‘‘medical transcriptionist training.’’ The other positions re-
quire only clerical and personal skills. The testimony indi-
cates that these employees perform exclusively clerical work,
except for the lab secretary, who collects and processes
specimens for drug testing and performs some simple tests
such as EKGs. The lab secretary, however, has no technical
training and learned her laboratory work on the job. I, there-
fore, conclude that the foregoing clerical employees do not
have technical training and do not perform technical work.
Having determined the scope of the technical unit, I now
turn to consideration of whether a unit limited to technical
employees at this clinic constitutes an appropriate unit. In
making this determination, I am guided by Board precedent
in similar situations, the information gleaned by the Board in
its rule-making proceedings concerning bargaining units in
the health care industry, and the community of interest fac-
tors exposed in this record. Park Manor Care Center, 305
NLRB 872 (1991).
First, I find Board precedent on bargaining units outpatient
clinics such as this one sparse. The Employer cited two in
its brief, Georgetown Dental Clinic, 262 NLRB 698 (1982),
and Appalachian Regional Hosps. Inc., 233 NLRB 542
(1977). Both cases found appropriate broad units including
technical employees and other non-professionals, and
clericals. In each case, however, the petitioners sought the
broad units found appropriate. Those cases are thus of mini-
mal guidance when, as in this case, the petitioner seeks a
more limited unit. In the health care industry as any other,
unions are not required to organize in the most comprehen-
sive unit available or even the most appropriate unit - they
need only select an appropriate unit. Newington Children’s
Hospital, 217 NLRB 793 (1975).
In the health care industry generally, the Board has histori-
cally recognized that units limited to technical employees are
an appropriate unit. E.g., Barnert Memorial Hospital Center,
217 NLRB 775 (1975). In the Board’s rulemaking on bar-
gaining units in the health care industry, it continued to rec-
ognize the unique interests of technical employees that gen-
erally make their separation appropriate. See Collective Bar-
gaining Units in the Health Care Industry, 29 CFR 33900,
33918–33920 (Sept. 1, 1988).
A number of factors considered in the rule-making lend
analogous support for finding the technical unit appropriate
here. First, the higher education, training and licensing re-
quirements and special skills, the hallmark of technical sta-
tus, distinguish the technical init in this case. With the excep-
tion of the lab secretary discussed above, the technical em-
ployees are the only employees who have significant contact
with patients related to patient care. While some other em-
ployees have substantial patient contact, it is limited to com-
pilation of clerical data.
Second, there is little cross training or interchange that oc-
curs between the technical employees and other classifica-
tions. The majority of interchange and transfers in this clinic
occurs between medical records clericals and business office
clericals. The testimony indicates that one LPN currently
works part time in medical records, but that is a temporary
situation. The physician to which she is assigned is new and
works only part time; the Employer has temporarily assigned
her to work on records during slack times until the doctor’s
practice builds up enough to provide full-time employment.
The testimony also indicates that one business office clerk
works one day a week as an x-ray technician. That position,
too, appears temporary as the incumbent has given notice;
and the Employer expects to fill only the clerk position. Fi-
nally, while LPNs and other technicals routinely do some
paper work such as entry of data in patients’ files, there is
no evidence that non-technicals reciprocally perform tech-
nical tasks, except as noted above.
Third, because of the training and skills factors noted
above, the technical employees share a unique and limited
career path and labor market. Both the medical records and
business office clerical, with their more generally applicable
clerical skills and training, likely have greater mobility out-
side the health care industry.
Concededly, certain factors suggest the appropriateness of
a broader unit. For example, the wages of all employees are
statistically similar (although the highest-paid classifications
are technical employees). In addition, the technical unit does
not conform to the Employer’s departmental or supervisory
lines. In its rule-making, the Board acknowledged that this
was expected to differ from facility to facility. Finally, the
testimony indicates that all the employees have frequent con-
tact, both on breaks and while working. In the rule-making,
the Board found technical employees generally have little
contact with most employees in patient care areas or with
service and maintenance employees. In this case, however,
the technical employees are the patient care employees. They
have contact in this case with their supporting clerical, a cir-
cumstance I suspect is common throughout the industry.
In light of these technicals’ distinctive training, skills and
licensing, and the fact that non-technicals do not share in the
performance of the technicals’ tasks, I conclude that requir-
ing a broader unit would not ‘‘assure to employees the fullest
freedom in exercising the rights guaranteed’’ by the Act. 29
U.S.C. 159(b).
Accordingly, I shall direct an election among employees in
the following unit found appropriate:
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All technical employees, including LPNs, laboratory
technicians, MLT instructor, X-ray technologists, oph-
thalmic technicians, and ophthalmic assistants employed
by the Employer at its Faribault, Minnesota facility; ex-
cluding office clerical employees, professional employ-
ees, guards and supervisors as defined in the Act, and
all other employees.