Mercy General Health Partners

National Labor Relations Board - Board Decisions

Jul 17, 2000

331 N.L.R.B. 783 (N.L.R.B. 2000)

MERCY GENERAL HEALTH PARTNERS 783
Mercy General Health Partners Amicare Homecare
and Mercy Healthcare at Home and Local 586,
Service Employees International Union, AFL–
CIO, Petitioner. Case 7–RC–21647
July 17, 2000
DECISION ON REVIEW AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On October 4, 1999, the Regional Director issued a
Decision and Direction of Election finding, among other
things, that Mercy General Health Partners Amicare
Homecare (Amicare) and Mercy Healthcare at Home
(MHH) are a single employer. The Regional Director
ordered a self-determination election to determine
whether the 60 home health care aides in the extended
care group (the petitioned-for employees) wished to be
represented by the Petitioner, which already represents
12 licensed practical nurses and home health care aides
employed by Amicare. On October 28, 1999, the Board
ruled on Amicare’s request for review. The Board found
that the issue of single-employer status was neither raised
nor litigated at the hearing, and remanded the case to the
Regional Director to reopen the record to secure addi-
tional evidence regarding the single-employer issue and
to issue a supplemental decision.1
On January 11, 2000, the Acting Regional Director is-
sued a supplemental decision finding that Amicare and
MHH constitute a single employer. The Acting Regional
Director also found that, even if these two entities did not
constitute a single employer, the Petitioner indicated a
desire to represent the petitioned-for employees in a
separate unit and that a separate unit of home health care
aides employed by MHH was appropriate. Accordingly,
the Acting Regional Director found that the impounded
ballots should, in any event, be opened and counted.
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, Amicare filed a timely
request for review of the Acting Regional Director’s
supplemental decision.2
In its request for review, Amicare contends that the
Acting Regional Director erred in his finding that MHH
and Amicare are a single employer, and that the record
does not support the Acting Regional Director’s finding
that the two entities have common ownership or man-
agement, common control over labor relations, or interre-
lation of operations. The request for review also takes
issue with the Acting Regional Director’s finding that the
impounded ballots should be opened and counted. In this
regard, Amicare contends that the Notices of Election
and the ballots distributed at the election incorrectly in-
formed employees of their employing entity, and that
employees were unable to express their desire to be rep-
resented in a separate unit as employees of MHH.

H.
1 Prior to the issuance of the Board’s October 28, 1999 Order, the
Region conducted the self-determination election and impounded the
ballots.
2 MHH did not file a request for review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Amicare’s request for review is granted. Having care-
fully considered the entire record in this case, we find
that MHH and Amicare are not a single employer, but
are separate unintegrated entities. We also reverse the
Acting Regional Director’s finding that the ballots
should be counted.
1. With respect to the single-employer issue, it is un-
disputed that Mercy Health Systems is the parent com-
pany of two subsidiary corporations, Mercy Continuing
Care and Mercy General Health Partners (Mercy Gen-
eral). Until October 1, 1999, Amicare, owned and oper-
ated by Mercy General, provided two kinds of care:
short-term acute care based on a physician’s prescribed
order, and long-term home healthcare services to chroni-
cally ill patients. The duration of short-term acute care is
limited to the time designated by the physician and is
authorized pursuant to Medicare and Medicaid standards.
When the physician’s prescribed order expired, Amicare
continued to provide long-term noncertified home health-
care to chronically ill patients, such as respite care,
personal care, senior housing and homemaking duties,
which are arranged directly with the patient.
On October 1, 1999, Amicare ceased providing long-
term home healthcare to patients. At all material times
since that date, this service has been provided by MHH,
an entity owned and operated by Mercy Continuing Care.
MHH was created for the sole purpose of providing non-
certified long-term home healthcare aid. Thus, Mercy
Continuing Care owns and operates MHH, while Mercy
General owns and operates Amicare. Each entity has its
own tax identification number. Amicare continues to
employ a unit of about 12 licensed practical nurses and
home health care aides represented by the Petitioner. It
is undisputed, however, that on creation of MHH on or
about October 1, 1999, the petitioned-for employees who
previously worked for Amicare were hired by MHH.
They completed new W-4 forms, employment applica-
tions, and I-9 forms, but were not interviewed by MHH.
All those who desired work were hired by MHH. Sixty
Amicare employees were hired by MHH. Upon hire by
MHH, employees received wages and benefits that
essentially remained unchanged, except for a minor
difference in their pension plan. It also appears that the
job duties and responsibilities of the petitioned-for
employees remained the same after their hire by MH
With respect to the structure of each entity, the director
for Mercy Continuing Care (MHH’s owner and operator)
is Bruce Alkema. He reports directly to the chief operat-
ing officer of Mercy Continuing Care, Jeffrey Lemon.
Together with Mercy Continuing Care’s human resource
manage,r Lisa Minni, Alkema is responsible for all labor
relations for MHH. Alkema hired a clinical manager,
331 NLRB No. 93
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 784
Barb Koski, who maintains clinical care for MHH.
Koski has never worked for any other Mercy Health Sys-
tems institution. Alkema also hired a customer service
coordinator, Tracy Bultema. Bultema previously worked
for Amicare in its human resource department, but was
hired by Alkema to be MHH’s customer service coordi-
nator. She maintains the communication between pa-
tients and healthcare providers and ensures that all shifts
for MHH patients are covered. Mercy Continuing Care’s
human resource manager, Minni, hired two former Ami-
care managers, Langlois and Martin. Langlois is MHH’s
office coordinator and she schedules the work for the
petitioned-for employees at MHH. It appears from the
record that Martin, also previously employed by Ami-
care, was hired by Minni to schedule work for MHH
employees. Since their hire by MHH, Langlois, Martin,
and Bultema have not scheduled or assigned work to any
of Amicare’s employees.
Amicare’s director is Alan Adyniec, who reports to
Mercy General’s vice president for patient care services,
Gay Landstrom. Amicare has its own clinical director,
Mary Ann Rankin, who reports to Adyniec. Amicare
also has its own financing director, Pat Jakovitz, and a
human resource manager, Joanne Peterson. It is Adyniec,
along with Peterson, who has responsibility for Ami-
care’s labor relations.
As noted above, it is undisputed that after MHH’s hire
of the former Amicare employees, their job duties and
responsibilities reflected little or no change, and their
wages and hours remained unchanged. However, the
petitioned-for employees of MHH are now subject to a
recently created personnel policy of Mercy Continuing
Care, whereas Amicare’s employees, including those
already represented by the Petitioner, are subject to the
personnel policies of Mercy General. Mercy Continuing
Care’s personnel policy manual was completed sometime
in early October 1999 and was made available to unit
employees during six meetings held by Area Services
Director Alkema. Approximately 15 to 20 unit employ-
ees attended those meetings. Although some employees
may not have received or were never informed of the
new personnel policies, this can be primarily attributed to
the fact that employees were working during the sched-
uled meetings at which the policies were made available.
Although the Acting Regional Director found that
Amicare is the primary source of referrals for MHH, the
record does not support that finding. Amicare is, indeed,
a referral source for MHH, but it is by no means the pri-
mary referral source. The record undisputedly shows
that 60 to 70 percent of MHH’s work is referred by a
local institution known as the Area Agency on Aging.
There are also referrals from the United States Depart-
ment of Health and Human Services.
Although MHH and Amicare share office space and
the same telephone number, MHH leases office space
and equipment from Amicare. In this regard, Alkema’s
unrefuted testimony established that MHH entered into a
lease agreement with Amicare and compensates Amicare
for MHH’s use of space and equipment. Although the
lease is of indefinite duration, Alkema has solicited bids
for space elsewhere. Inasmuch as MHH’s and Amicare’s
employees work in patients’ homes, these two groups
have little work-related contact with each other.
All Amicare and MHH employees receive a 1-month
advance work schedule. One MHH employee testified
that while she was employed by Amicare, her work as-
signments were distributed primarily by Langlois and
Martin, and that the same individuals continue to distrib-
ute her work assignments since her employment by
MHH. However, Langlois and Martin are currently em-
ployed by MHH and have not been employed by Ami-
care since at least October 1, 1999.3
MHH and Amicare share the services of an afterhours
coordinator, who receives emergency afterhours calls for
both Amicare and MHH. When a call comes from an
Amicare patient, it is referred to an Amicare representa-
tive. When a call comes from an MHH patient, it is re-
ferred to an MHH representative. The afterhours coordi-
nator was formerly employed by Amicare but is currently
employed by MHH. The record reflects that the after-
hours coordinator maintains records of the time he/she
spends responding to Amicare’s clients, and MHH bills
Amicare for that work on an hourly basis.
In determining whether two nominally separate em-
ploying entities constitute a single employer, the Board
looks to four factors—common ownership, common
management, interrelations of operations, and common
control of labor relations. Radio Technicians Local 1264
v. Broadcast Service of Mobile, 380 U.S. 255, 256
(1965); Denart Coal Co., 315 NLRB 850, 851 (1994).
No single factor is controlling, and not all need be pre-
sent. Rather, single-employer status depends on all the
circumstances and is characterized by the absence of the
arm’s-length relationship found between unintegrated
companies. Dow Chemical Co., 326 NLRB 288 (1998);
Alexander Bistritzky, 323 NLRB 524 (1997). The Board
has generally held that the most critical factor is central-
ized control over labor relations. Common ownership,
while necessary, is not determinative in the absence of
centralized control over labor relations. Western Union,
224 NLRB 274, 276 (1976). The Board has addressed
the common ownership issue in the context of parent-
subsidiary relationships. In Dow Chemical, the Board
held that such common ownership, by virtue of a parent-
subsidiary relationship, by itself, indicates only potential
control over the subsidiary by the parent entity. The
Board concluded that a “single employer relationship
will be found only if one of the companies exercises ac-

3 It is undisputed that, for reasons that are unexplained in the record,
MHH’s employees continue to wear Amicare badges while on the job.
MERCY GENERAL HEALTH PARTNERS 785
tual or active control over the day-to-day operations or
labor relations of the other.” Id., supra at 288.
Applying this standard to the facts before us, we find,
contrary to the Acting Regional Director, that Amicare
and MHH do not constitute a single employer. Because
MHH and Amicare are corporate subsidiaries of the lar-
ger corporate parent, Mercy Health Systems, common
ownership is present. However, more evidence is re-
quired to establish that one entity exercises actual or ac-
tive control over the other. The record is clear that the
corporate parent, Mercy Health Systems, exercises virtu-
ally no control over either MHH or Amicare. Moreover,
there is a second level of separate ownership. MHH is
owned and operated by Mercy Continuing Care, while
Amicare is owned and operated by Mercy General.
There is no evidence that either Mercy General or Mercy
Continuing Care exercises any control over the other.
Similarly, it has not been shown that Amicare exerts any
actual or active control over MHH, or vice versa. The
record clearly establishes that MHH has its own manag-
ers and supervisors, while Amicare in turn has its own
managers and supervisors. There also is no evidence that
MHH’s employees are supervised by managers or super-
visors of Amicare, or vice versa. Rather, the evidence
shows that some of MHH’s managers (Bultema, Lan-
glois, and Martin) were formerly employed as managers
by Amicare, but, since October 1, 1999, they have been
employed solely by MHH. None of these MHH manag-
ers supervise Amicare’s employees who are currently
represented by the Petitioner, and Amicare’s managers
do not supervise MHH’s employees. At best, there is
evidence that Amicare and MHH share an afterhours
coordinator, who receives afterhours calls for both enti-
ties. Although the Acting Regional Director relied on
this factor as evidence of common management and su-
pervision, the record reflects an arm’s-length relationship
between MHH and Amicare regarding the work of this
afterhours coordinator, with MHH billing Amicare for
the work performed by the afterhours coordinator.
With respect to interrelation of operations, the Acting
Regional Director relied on the following factors: Ami-
care and MHH share offices and the function of the af-
terhours coordinator; MHH receives referrals from Ami-
care; assignments are distributed by the same managers;
employees wear badges bearing Amicare’s logo; and
terms and conditions of employment remained the same
after employees were hired by MHH. With respect to
sharing office space and equipment, the record estab-
lishes, contrary to the finding of the Acting Regional
Director, that MHH leases office space and equipment
from Amicare. With respect to the use of the afterhours
coordinator, as noted above, MHH bills Amicare for any
time that the coordinator spends on Amicare’s work.
These factors are evidence of an arm’s-length relation-
ship between the two entities. As for the Acting Re-
gional Director’s finding that Amicare refers work to
MHH, the evidence shows that the primary referral
source is another local institution, which refers 60 or 70
percent of MHH’s work. Regarding the assignment of
work, while there was some evidence that the same indi-
viduals assign work for MHH’s and Amicare’s employ-
ees, this evidence fails to account for the fact that some
of MHH’s managers were hired from Amicare, which
may explain employees’ perception that their assign-
ments are distributed in the same fashion as when they
were employed by Amicare. While it is true that the pe-
titioned-for employees suffered no changes in their
wages or other terms and conditions of employment upon
their transfer from Amicare to MHH, and that they con-
tinue to wear Amicare badges while on the job, these two
factors alone are insufficient to support the conclusion
that Amicare and MHH’s operations are interrelated.4
With respect to the most critical element, centralized
control over labor relations, the record shows that
MHH’s employees are subject to Mercy Continuing
Care’s personnel policies, while Amicare’s employees
are subject to Mercy General’s personnel policies. In
addition, the labor relations functions are handled by
different individuals for each of the two entities. Alkema
and Minni are responsible for labor relations at MHH,
and Adyniac and Peterson are responsible for that func-
tion at Amicare. As stated by the Board in Dow Chemi-
cal, no single-employer relationship exists where the
actual day-to-day management and labor relations func-
tions are carried out by each entity’s own managers and
officers. In the instant case, each entity has its own man-
agers who supervise their distinct group of employees;
there is no “cross supervision”; employees are subjected
to different personnel policies; and labor relations func-
tions are handled by separate individuals.
Based on all of the above, we conclude that Amicare
and MHH do not constitute a single employer. Accord-
ingly, we reverse the Acting Regional Director in this
regard.
2. The Acting Regional Director also found that even
if Amicare and MHH did not constitute a single em-
ployer, the petitioned-for employees could constitute a
separate appropriate unit, with MHH as the employing
entity, and that the impounded ballots should be opened
and counted. Amicare contends that if there is no single-
employer relationship, then the Notices of Election and
ballots incorrectly informed employees of their employ-
ing entity, and employees expressed their choice in a
self-determination election rather than as a separate unit
of employees. Thus, Amicare argues that the election
should be nullified and the petition dismissed. For the
reasons set forth below, we agree that the impounded
ballots should not be counted, but find it unnecessary to

4 The Acting Regional Director also relied on a memo issued by
Amicare informing MHH’s employees that the two entities will “rou-
tinely interact.” However, that statement is not probative evidence that
employees actually have work-related contact.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 786
dismiss the petition. Instead, we shall instruct the Re-
gional Director to direct a second election.
In the initial Decision and Direction of Election, the
Regional Director found that MHH’s employees share a
sufficient community of interest with the employees em-
ployed by Amicare who are already represented by the
Petitioner. As a result, the Regional Director held a self-
determination election. The Notices of Election and the
ballot identified the employing entity as MHH and Ami-
care, a single employer. The Notices of Election in-
formed voters of the following: “If a majority of valid
ballots is cast for the Petitioner, the employees will be
deemed to have indicated the desire to be included in the
existing unit of LPNs and certified home health aides
currently represented by the Petitioner, and it may bar-
gain for those employees as part of that unit.”
Based on our finding that MHH is the sole employing
entity of the petitioned-for employees, we find that a new
election is required. First, the ballot indicated that em-
ployees were employed by MHH and Amicare, as a sin-
gle employer, which is inaccurate and misidentifies the
employing entity. In addition, employees were also er-
roneously informed that if they voted for the Petitioner,
they indicated their desire to be represented by the Peti-
tioner in the unit of employees of Amicare which the
Petitioner currently represents. Given out finding that
the petitioned-for employees are solely employed by
MHH, and that a self-determination election is not war-
ranted, the election cannot stand. If the unit employees
vote to be represented by the Petitioner, the unit descrip-
tion would be limited to the employees of MHH; they
would not be included in Amicare’s unit. As a result, the
unit as certified would differ substantially in character
and scope from the unit in which the election was con-
ducted, and the question on that ballot would have been
different from the one that should have been presented to
the employees. Based on the foregoing, we find that the
impounded ballots should not be counted and, if the Peti-
tioner desires to represent employees solely as employ-
ees of MHH, a second election should be directed.
ORDER
The Acting Regional Director’s supplemental decision
is reversed with respect to the issues on review. This
proceeding is remanded to the Regional Director for fur-
ther appropriate action consistent with this Decision on
Review.