The Mason Clinic

National Labor Relations Board - Board Decisions

Nov 6, 1975

221 N.L.R.B. 374 (N.L.R.B. 1975)

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Mason Clinic and Seattle Chapter, Chapter No.
4, National Economic Council of Associations of
Health Professions, Petitioner . Case 19-RC-7317
November 6, 1975
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer John N.
Zimmerman of the National Labor Relations Board.
On February 11, 1975, the Regional Director for
Region 19 issued a Decision and Direction of
Elections in which he found appropriate, inter alia, a
bargaining unit consisting of all medical technolo-
gists.'
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations , Series 8, as amended, the Employer
filed a request for review of the Regional Director's
Decision and Direction of Elections. The Employer
contended, inter alia, that the Regional Director
erred (1) in directing an election in a separate unit of
medical technologists, thereby failing to find a
community of interest between the proposed unit
employees and other professionals at the Clinic; (2)
in finding that the medical technologists are profes-
sionals within the meaning of the Act; (3) by
including four assistant supervisors in the unit of
medical technologists; and (4) by failing to find that
the minimum appropriate unit consists of all employ-
ees involved in the delivery of medical or health care
services to patients, with those found to be profes-
sionals being given a self-determination election.
By telegraphic order dated June 13, 1975, the
Board granted the Employer's request for review in
Case 19-RC-7317 and stayed the election pending
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
1 Shortly after the petition herein was filed, the Washington State Nurses
Association (hereafter WSNA) filed a petition in Case 19-RC-7377 for an
election in a unit consisting of all registered nurses employed by the
Employer. A consolidated hearing was therefore held on both petitions In
his Decision and Direction of Elections , the Regional Director also found
appropriate a unit of registered nurses petitioned for by the WSNA and
directed an election therem. Subsequently, the Employer filed a request for
221 NLRB No. 66
The Employer is a partnership in the State of
Washington, controlled by approximately 68 physi-
cian partners, engaged in providing out-patient
health care services, including both diagnosis and
treatment of diseases, to the general public. The
Clinic is associated with the Virginia Mason Hospi-
tal, and utilizes, in common with the hospital, a
support building which houses the laboratory, the
radiology department, the cafeteria, the pharmacy,
the dietary administrative offices, and hospital
administrative and personnel offices, as well as the
headquarters for general support services, such as
maintenance.2 The Clinic, which is connected to the
support building by a skyway, is located in an eight-
story building. Excluding the physicians, executive
staff personnel, and supervisors, there are approxi-
mately 510 employees, 20 of whom are currently
represented by the Federation of Radiological
Employees.
The Petitioner initially requested a unit of approxi-
mately 60 professional employees employed as
medical technologists, physical therapists, and occu-
pational therapists. It did not state a position as to
whether dieticians and medical artists should be
included in the unit. As noted above, the Regional
Director found a unit -limited to medical technolo-
gists to be appropriate. He further found that the
medical technologists employed by the Mason Clinic
are professionals within the meaning of Section 2(12)
of the Act on the basis of their exercise of subjective
judgment, the fact that their output is not standard-
ized in relation to a given period of time, their
advanced degree of knowledge represented by the
fact that they must either be registered with the
America Society of Clinical Pathologists or have a
college degree in medical technology, and the fact
that they perform their duties under minimal
supervision. The Regional Director also concluded
that the physical and occupational therapists are
professionals within the meaning of the Act, on the
basis of the specialized educational requirements for
their occupations and the fact that they exercise
subjective judgment. However, the Regional Director
did not include the physical and occupational
therapists in the unit of medical technologists
because he concluded that there was no community
of interest between them.
We agree with the Regional Director that the
employees petitioned for by Petitioner are profes-
review of the Regional Director's Direction of Election in Case 19-RC-7377
which was denied by the Board at the same time review was granted in the
instant case . The Board similarly rejected the Employer's ensuing motion
for reconsideration of the Board's denial of review in Case 19-RC-7377
2 Although associated with the Virginia Mason Hospital, the Clime and
Hospital are separate legal entities and only the employees of the Clinic are
involved herein
THE MASON CLINIC
sionals within the meaning of Section 2(12) of the
Act.
Our review of the record indicates that medical
technologists, at the request of the treating physi-
cians , primarily conduct various tests on patients'
specimens in order to assist the physicians in the
diagnosis and treatment of their patients' diseases.
The technologists usually specialize in the work of
the laboratory section to which they are assigned.
Each technologist is responsible for properly operat-
ing the laboratory equipment and accurately per-
forming the test. Although procedural guidelines or
standard results may be published with some tests for
control purposes, technologists have a great deal of
discretion in performing the tests and exercise
considerable subjective judgment in analyzing and
interpreting the test data. The technologists report
the test results to the treating physician, and
occasionally recommend effective drugs for use in
treatment.
Presently, the Clinic employs both registered and
nonregistered technologists. A registered medical
technologist has a baccalaureate degree in medical
technology or a related science, has completed a 1-
year internship in a clinic, has passed a national
,examination administered by the American Society
of Clinical Pathologists (ASCP), and is registered
with ASCP. However, registration is not required by
the State of Washington, nor does the State of
Washington require technologists to be licensed.
Nonregistered medical technologists must have a
baccalaureate degree in a biological science such as
microbiology, chemistry, or physical science, and are
required to complete a year of on-the-job training at
the Clinic before they are considered to be medical
technologists. Presently the Clinic employs 46 regis-
tered and 8 nonregistered medical technologists .3
The facts in the present case are quite similar to
those in Barnert Memorial Hospital Center,4 in which
we found medical technologists to be professional
employees. Likewise, we find that the medical
technologists employed at the Clinic are professional
employees within the meaning of the Act on the basis
of their advanced degree of knowledge acquired by a
prolonged course of specialized intellectual instruc-
tion, and their predominantly intellectual and varied
work which cannot be standardized in relation to a
given period of time and which involves the exercise
of discretion and independent judgment.
The physical therapists are involved with restoring
patients to their predisease functional physical levels.
Considerable subjective evaluation is exercised in
3 Two nonregistered medical technologists, hired on the basis of their
extensive clinical training as technologists during their military careers, do
not have degrees, but they were hired at a time when the Clinic did not
require a degree for employment as a medical technologist
375
determining the methods and extent of a patient's
treatment. Physical therapists routinely enter prog-
ress evaluations and treatment recommendations in
the, patient's-medical records. The physical therapists
have complete authority to determine when a patient
no longer requires therapy. The physical therapists
keep current with developments in their field through
their professional associations and professional
journals. Some are involved with training university
students while they undergo their internships at the
Clinic.
The physical therapists must be licensed by the
State of Washington. They have a bachelor of
science degree in physical therapy, have completed
an internship in clinical medicine and clinical
technique, have passed a written comprehensive
examination, and have been certified by the examin-
ing board as qualified physical therapists. Presently,
all five physical therapists employed at the Clinic are
licensed by the State of Washington.
In view of their advanced degree of knowledge,
and their intellectual and varied work which requires
the consistent exercise of discretion and judgment,
we find the physical therapists to be professional
employees with the meaning of the Act .5
The Clinic employs one occupational therapist who
is responsible for the practical rehabilitation of a
patient who has been physically incapacitated by
illness. The occupational therapist works at the
request of the treating physician, and, like the
physical therapists, exercises total discretion in
determining the method and extent of treatment. The
occupational therapist also enters progress reports in
the patient's medical records and determines when
treatment should be discontinued.
The occupational therapist has a bachelor of
science degree in occupational therapy, which
requires 4 years of academic work and an 8-month
clinical internship, and has passed a national
registration examination administered by the Ameri-
can Occupational Therapy Association which also
issues the registration certificate. The occupational
therapist is a member of the Washington Occupa-
tional Therapy Association.
On the basis of these,facts, which indicate that the
occupational therapist has met specialized education-
al requirements and performs varied work which
requires the consistent exercise of subjective judg-
ment, we find the occupational therapist to be a
4 Nathan and Miriam Barnert Memorial Hospital Association d/b/a
Barnert Memorial Hospital Center, 217 NLRB No. 132 (1975).
5 Mercy Hospitals of Sacramento, Inc, 217 NLRB No. 131 (1975).
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
professional employee within the meaning of the
Act 6
While we have found, as the Regional Director
concluded, that the medical technologists and physi-
cal and occupational therapists are professional
employees, we also find merit in the Employer's
contention that the Regional Director erred in
limiting the appropriate unit to medical technolo-
gists.
We were faced with a similar question in determin-
ing the appropriateness of a unit of professional
employees in Mercy Hospitals of Sacramento, Inc.,
supra. There, we recognized that each professional
group could well constitute a separate appropriate
unit in view of the substantial community of interest
within each group engendered by the very nature of a
common profession. At the same time, we were well
aware of the legislative history to the hospital
amendment which admonishes against undue prolif-
eration of bargaining units in the health care field.
The remarks of Senator Taft are especially pertinent:
The issue of proliferation of bargaining units in
health care institutions has also greatly concerned
me during consideration of legislation in this area.
Hospitals and other types of health care institu-
tions are particularly vulnerable to a multiplicity
of bargaining units due to the diversified nature
of the medical services provided patients. If each
professional interest and job classification is permit-
ted to form a separate bargaining unit, numerous
administrative and labor relations problems become
involved in the delivery of health care. [Emphasis
supplied.j7
Thus, we found that "although there is a diversity
of skills between each of these professional groups,
their skills, interests, and working conditions are, in
many respects, no more diverse than those of
employees in a production and maintenance unit in
the industrial sphere or in the overall service and
maintenance unit in the health care industry." s We
determined in Mercy Hospitals of Sacramento that a
unit of all professional employees was appropriate in
view of the community of interest shared by the
employees because of their professional status and
similar employee concerns, and the fact that no
group of professional employees had a history of
separate collective bargaining.
Our review of the present record indicates that the
medical technologists do not have a history of
separate collective bargaining with the Employer,
and that in spite of their separate working areas they
6 Mount Airy Foundation, d/b/a Mount Airy Psychiatric Center, 217
NLRB No. 137 (1975).
4 120 Cong . Rec. S6940 (1974).
8 Mercy Hospitals of Sacramento, Inc., supra at sec. 1(b).
share a community of interest with other professional
employees, in addition to their "commonality' of
professionalism." Thus, the Employer requires that
medical technologists, as well' as the physical and
occupational therapists, have a baccalaureate degree
in their fields, supplemented by additional training or
a license to practice issued by a state or professional
association. The medical technologists and physical
and occupational therapists also share common
benefit programs, wage scales, and working condi-
tions.
We therefore conclude that the appropriate unit
should not be limited to medical technologists, as the
Regional Director found, but that it should include
all professional employees encompassed by the
petition. However, our review of the record indicates
that two additional groups of professional employ-
ees, the dieticians and medical artists, should be
included in the unit of professional employees found
appropriate herein.
Four therapeutic dieticians are employed by the
Clinic for the purposes of determining and monitor-
ing a patient's nutritional needs pursuant to a
physician's diagnosis. The dieticians are responsible
for formulating and planning a patient's diet,
educating and training a patient about the prescribed
diet, and determining the patient's progress in
complying with the diet. The dieticians' exercise
considerable independent judgment and discretion in
assessing a patient's nutritional needs and the
patient's response to the diet. All dieticians are
required to have a baccalaureate degree and to be
certified by the American Dietetic Association, the
professional organization for dieticians. The dieti-
cians are compensated on the same basis as are the
medical technologists and share similar fringe bene-
fits and working conditions. Because dieticians
possess advanced knowledge acquired by a pro-
longed course of specialized intellectual instruction;
engage in predominantly intellectual and varied
work, the results of which cannot be standardized
over a given period of time; and exercise consider-
able judgment and discretion, we find' the dieticians
to be professional employees within the meaning of
the Act. We shall include them in the 'unit of
professional employees found appropriate herein
because of their community of interest with the
employment concerns of the Clinic's professional
employees .9
Medical artists are employed in the medical
illustration department, staffed by the director of the
department and two full-time and one part-time
9 Mercy Hospitals of Sacramento, supra; also note that dieticians have
been specifically excluded from a unit of technical employees in Barnert
Memorial Hospital Center, supra
THE MASON CLINIC
medical artists. Among their various duties, the
medical artists depict medical, procedures performed
by physicians, illustrate parts of anatomy for use in
educational or. graphic demonstrations, and prepare
charts and graphs illustrating the effects of treat-
ment . All medical artists possess an actual working
knowledge of anatomy and an artistic ability to
depict anatomy. The director of the department has a
Ph.D. in medical illustration; the other artists have
baccalaureate degrees in art and one artist is
presently working towards a master's degree in art.
On the basis of their advanced degree of knowledge,
their intellectual and varied work, and their use of
considerable subjective judgment and discretion, we
find the medical artists to be professional employees
within the meaning of the Act. We shall also include
them in the unit of professional employees found
appropriate herein in view of the fact that the
medical artists have the same wage scale, benefits
program, and working conditions common to all
other professional employees in the Clinic and share
similar employment concerns.'°
We therefore shall direct an election in a unit of all
professional employees, including medical technolo-
gists , physical therapists, occupational therapists,
dieticians , and medical artists; in so doing, we also
note that the Petitioner has expressed a willingness to
represent such employees in the event they are
appropriately included in the unit ii
The Employer's 'request for review also disputed
the inclusion, of certain employees in the unit found
appropriate by the Regional Director. We granted
review of the Regional Director's finding that the
four medical technologists in 'question, Rebecca
Themmig, Caroline Moline, Dorothy Mason, and
Sam Lambert, are not supervisors within the mean-
ing of the Act, and therefore should be included in
the unit as medical technologists. The Employer
contends that these four employees are assistant
supervisors and therefore were improperly included
in the unit . Our review of the record indicates the
following:
The Mason Clinic is divided into two primary
divisions, the department of medicine and the
department of surgery. There is also the department
of anesthesia , the department of radiology, and the
department of pathology and laboratory, which is
subdivided into the clinical and anatomical labora-
tories . Most of the medical technologists are em-
ployed in the clinical laboratory which is supervised
by Dr. Edward J. Barron. The clinical laboratory is
10 We shall exclude the graphic aide employed in the medical illustration
department and the medical photographers from the unit of professional
employees found appropriate herein as the record does not support a
finding that they meet the requirements of professional employees under the
Act.
377
comprised of the hematology, chemistry, microbiolo-
gy, serology, and immunology divisions.
Rebecca Themmig, included in the unit by the
Regional Director, is referred to-by Dr. Barron as an
"assistant supervisor" in the blood gases section, of
the chemistry division, although the Petitioner argues
that Themmig is merely a "lead" medical technolo-
gist. Themmig is one of two full-time medical
technologists in the blood gases section, although
other medical technologists assist with the work on a
rotating basis. Because at any given time there is only
one technologist in the section, the assignment of
work, as Dr. Barron conceded, is relatively simple. In
fact, the record discloses that the work actually
"schedules itself." There is no evidence that Them-
mig directs the work of the other employees.
Although the Employer asserts that T,'hemmig- has
authority to adjust grievances, the record indicates
that Dr. Barron had the final authority to resolve the
one salary grievance which Themmig merely brought
to his attention. Themmig has never recommended
that any employee be discharged, and 90 percent of
her time is spent in actual laboratory work. We
conclude that the above facts do not indicate that
Themmig is a supervisor within the meaning of the
Act, and therefore she shall be included in the unit.
Caroline Moline works in the radioimmunoassay
subsection within the chemistry division of the
laboratory. There are three other technologists who
share the work. Moline reports to Dr. Gordon
Kaufman, head of the chemistry division, to Dr.
Hoffman, the senior administrator in radioimmu-
noassay, and to Dr. Barron. The record indicates that
the work of this laboratory is primarily scheduled by
Dr. Hoffman, although once, during her absence,
Moline assisted in scheduling a week's 'workload.
However, as the record demonstrates, most of the
clinical laboratory work is self-evident and once a
technologist is assigned a task only routine schedul-
ing is necessary thereafter. Similarly, Dr. Barron
testified that each technologist should monitor the
quality of the work produced by the laboratory and,
therefore, each technologist may be involved with
personnel problems insofar as work production is
concerned. There is no evidence that Moline present-
ly is responsible for recommendations concerning
personnel matters. The record indicates that approxi-
mately 5 years ago, when the laboratory was
organized differently, she recommended to Dr.
Barron that an employee be fired, but Dr. Barron
independently investigated the matter, and based his
11 As the unit found appropriate is broader than that originally
petitioned for by the Petitioner, the Regional Director shall determine
whether there is a sufficient showing of interest before proceeding with the
election.
378 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
decision on that investigation. Moline spends '85 to
90 percent of her time' -in the routine work-of the
laboratory. We find that, while Moline may be
responsible at infrequent times for some personnel
matters, she does not exercise any supervisory
authority on a regular=basis and spends the predomi-
nant amount of her time in the customary, routine
work of the laboratory. Therefore, we shall include
her in the unit.
Dorothy Mason works in the serology division with
one other employee. Her time is actually divided
between purchasing functions and actual laboratory
work. A part-time employee assists in the purchasing
work. Mason's'-purchasing duties involve placing
purchasing orders and receiving them, but section
supervisors and senior administrative staff determine
the items and the quantity to be purchased. Although
claiming that Mason possesses supervisory authority,
Dr. Barron testified that Mason has never participat-
ed in personnel decisions such as hiring, firing, or
promoting other employees, nor has she made
recommendations to that effect. Dr. Barron also
conceded that the medical technologists and part-
time employee working with Mason' know their
duties fairly well and that their work assignments
would not have to be changed too frequently. On the
basis of these facts, which indicate that Mason does
not possess the requisite indicia of supervisory status,
we shall include her in the unit.
Sam Lambert works on the night shift in the
chemistry division of the clinical laboratory with four
other medical technologists and one laboratory
assistant, and-,spends 80 to 90 percent of his time
doing actual laboratory work. Lambert customarily
checks with Dr. Gordon Kaufman, head of the
chemistry'division, regarding any routine scheduling
of work which needs to be done. However, the work
apparently schedules itself and the medical technolo-
gists on this shift, as the technologists working in the
other laboratories, generally understand what needs
to be done. Dr. Kaufman authorizes vacation and
sick leave for the employees. Lambert does , not
interview new hirees and' he has never disciplined
another employee. Because of the nature of the
laboratory work, we find that Lambert is not
responsible for directing the work of the other
employees, nor is he responsible for personnel
matters since they are primarily handled by Dr.
Kaufman. On the basis of the above facts, we find
that Lambert is not a supervisor within the meaning
of the Act and therefore he shall be included in the
unit.
Conclusion
Accordingly, upon the entire record and for the
aforementioned reasons, we shall direct an election
in the following unit which we have found to be
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All professional employees employed by the
Employer, including medical technologists, physi-
cal therapists, occupational therapists, dieticians,
and medical artists, but excluding physicians,12
registered nurses, all other employees, guards and
supervisors as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
12 Neither party sought the inclusion of physicians employed by the
clinic.