Mercy Health Partners

National Labor Relations Board - Board Decisions

Jun 26, 2012

358 N.L.R.B. 566 (N.L.R.B. 2012)

566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

358 NLRB No. 69
Mercy Health Partners and SEIU Healthcare Michi-
gan. Case 07–CA–052693
June 26, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND BLOCK
On October 4, 2010, Administrative Law Judge
George Carson II issued the attached decision. The Act-
ing General Counsel filed exceptions and a supporting
brief,1 and Mercy Health Partners (the Respondent) filed
an answering brief. The Respondent also filed excep-
tions and a supporting brief, the Acting General Counsel
filed an answering brief, and the Respondent filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.2
I.
The Respondent, a regional healthcare provider, oper-
ated multiple hospitals in Michigan, including the two at
issue in this case—Hackley and Mercy. Each hospital
was responsible for performing preregistration work for
its own patients. The Union represented the Hackley-
based preregistration employees as part of a larger Hack-
ley unit; Mercy’s preregistration employees were unrep-
resented.
The Respondent was also 1 of 19 subsidiaries of Trini-
ty Health, a national healthcare provider. Until 2008,
Trinity was a passive holding company. That year, it
decided to transition to being an active parent company
by assuming direct responsibility for, among other
things, its subsidiaries’ preregistration work.
On November 23, 2009,3 the Respondent’s Director of
Labor Relations, Robin Belcourt, along with several oth-
er supervisors, met with five employees who performed

1 In his exceptions, the Acting General Counsel argues, apparently
for the first time, that the Respondent unlawfully changed the scope of
the bargaining unit. Because he did not pursue this theory before the
judge, we deem it to be untimely raised and thus waived. Cf. Smoke
House Restaurant, 347 NLRB 192, 195 (2006), enfd. 325 Fed.Appx.
577 (9th Cir. 2009).
2 We shall order the Respondent to post the notice in accord with J.
Picini Flooring, 356 NLRB 11 (2010). For the reasons stated in his
dissenting opinion in J. Picini Flooring, Member Hayes would not
require electronic distribution of the notice.
In his decision, the judge cited El Paso Electric Co., 355 NLRB 428
(2010). The Fifth Circuit subsequently enforced the Board’s decision
in that case. 681 F.3d 65 (5th Cir. 2012). The Board also supplement-
ed its earlier decision. 357 NLRB 2323 (2012).
3 Unless otherwise stated, all dates refer to 2009.
preregistration work at Hackley. She notified them that,
as part of Trinity’s transition, their positions would be
relocated to Mercy. Belcourt further informed the em-
ployees that, pursuant to the collective-bargaining
agreement between the Respondent and the Union, they
would have 72 hours to decide whether to accept layoff
or to “bump” a less senior unit employee. She also gave
them 72 hours to decide whether to accept one of the
newly created positions at Mercy.4 Belcourt informed
them that the positions at Mercy were nonunion, but
would have nearly the same wages and benefits as their
positions at Hackley.5 All five employees (four at that
time and one a few days later) accepted Belcourt’s offer
to transfer to Mercy.6 Belcourt also distributed letters to
the five employees in which she summarized the above
information. In that letter, Belcourt advised employees
that, if they had any questions, they could consult with
their labor relations manager or their union representa-
tive.
This relocation announcement likely did not come as a
surprise to the employees. A couple of weeks before the
November 23 meeting, a Hackley preregistration em-
ployee learned from her colleague at Mercy that the Re-
spondent was preparing an office for them at Mercy.
Later, when confronted, her supervisor confirmed the
rumor, but asked that she not tell a lot of people, particu-
larly the union steward, because the Respondent had not
yet formally announced the relocation. Despite her su-
pervisor’s request, the employee alerted the union stew-
ard.
Immediately following the November 23 announce-
ment to employees, Belcourt formally notified the Union
that the Respondent had decided to relocate unit work
from Hackley to Mercy and that it had given employees
notice of their rights under the collective-bargaining
agreement. The Respondent informed the Union that the
relocation of work would be completed by December 7.
Later that day, the Union demanded effects bargaining.7

4 The judge found, and the parties agree, that the first two options of-
fered to employees—i.e., accept layoff or bump a less senior unit em-
ployee—are contained in art. X of the parties’ collective-bargaining
agreement. Art. XI governs transfers of unit employees; no party ar-
gues that art. XI is applicable to the transfers at issue in this case.
5 A preregistration employee testified that Belcourt said, “that we
would not lose any of our benefits. Everything would stay the same,
other than our vacation would accrue a little bit differently.”
6 A sixth Hackley preregistration employee was unable to attend the
November 23 meeting because she was on medical leave. She was
later notified of the relocation and of her options. She accepted layoff.
Another person was hired to fill the relocated position.
7 A representative of the Union testified that the Union did not re-
quest decisional bargaining because “the decision had already been
made.”
MERCY HEALTH PARTNERS 567
The parties engaged in effects bargaining on December
7.8
II.
The Acting General Counsel alleges that the Respond-
ent engaged in unlawful direct dealing at the November
23 meeting.9 The judge disagreed. Relying on Capital
Ford, 343 NLRB 1058 (2004), the judge found that the
Respondent merely presented the Hackley employees
with a predetermined course of action. The judge there-
fore recommended that the complaint be dismissed. For
the reasons explained below, we find, contrary to the
judge, that the Respondent unlawfully dealt directly with
unit employees.
A.
Direct dealing “involves dealing with employees (by-
passing the Union) about a mandatory subject of bargain-
ing.” Champion International Corp., 339 NLRB 672,
673 (2003). The Board will therefore find a direct deal-
ing violation when (1) the employer communicated di-
rectly with union-represented employees; (2) the discus-
sion was for the purpose of establishing or changing
wages, hours, and terms and conditions of employment
or undercutting the union’s role in bargaining; and (3)
such communication was made to the exclusion of the
union. Permanente Medical Group, 332 NLRB 1143,
1144 (2000).
Even when an employer does not have a duty to bar-
gain about a decision to relocate, it still has a duty to

8 During that bargaining session, the parties apparently did not dis-
cuss the three options presented to the employees at the November 23
meeting. Rather, the Union made three alternative requests of the Re-
spondent: (1) that it return the employees to Hackley, (2) that it apply
the Hackley collective-bargaining agreement to the transferred employ-
ees, or (3) that it agree to card check recognition at Mercy. The Re-
spondent rejected all three requests.
The Acting General Counsel does not argue that the Respondent
failed to engage in effects bargaining in violation of Sec. 8(a)(5) and
(1).
9 The Acting General Counsel also alleges that the Respondent un-
lawfully failed to bargain about the decision to move unit work from
Hackley to Mercy. We agree with the judge that the relocation decision
is properly analyzed under Dubuque Packing Co., 303 NLRB 386
(1991), enfd. in pertinent part sub nom. Food & Commercial Workers
Local 150-A v. NLRB, 1 F.3d 24 (D.C. Cir. 1993), cert. granted 511
U.S. 1016 (1994), cert. dismissed 511 U.S. 1138 (1994). We further
agree with the judge, for the reasons he stated, that the Respondent
failed to rebut the Acting General Counsel’s prima facie showing that
the decision involved a relocation of unit work unaccompanied by a
basic change in the nature of the Respondent’s operations. But we also
agree with the judge, for the reasons he stated, that the Respondent
proved that labor costs were not a factor in its decision. Accordingly,
we agree with the judge that the decision to relocate unit work was not
a mandatory subject of bargaining. We therefore find it unnecessary to
pass on the judge’s further finding that the Respondent proved that the
Union could not have offered labor cost concessions that could have
changed its decision.
bargain with the union over the effects of that decision
on unit employees. See First National Maintenance
Corp. v. NLRB, 452 U.S. 666, 681 (1981). An employer
therefore cannot bypass the union and deal directly with
represented employees concerning such matters. See
Coated Products, 237 NLRB 159, 165–166 (1978), enfd.
620 F.2d 289 (3d Cir. 1980).
B.
Bypassing the Union and dealing directly with the em-
ployees is precisely what the Respondent did here. With-
out seeking the approval of the Union,10 Belcourt met
directly with unit employees to inform them of the deci-
sion to relocate unit work. She then presented them with
three offers—they could stay at Hackley by bumping a
less senior unit employee, transfer to Mercy, or accept
layoff. One of those offers, the option to transfer (which
is a mandatory subject of bargaining in its own right),
and the condition attached to that offer, acceptance with-
in 72 hours, had not previously been presented to the
Union. By that point, Belcourt had plainly crossed the
line from discussing the relocation decision to discussing
the effects of that decision on unit employees.11 Thus,
while excluding the Union, the Respondent discussed a
mandatory subject of bargaining directly with unit em-
ployees at the November 23 meeting. See Coated Prod-
ucts, Inc., supra (finding unlawful direct dealing when
employer discussed transfer rights after a relocation of
unit work with represented employees); see also Naper-
ville Jeep/Dodge, 357 NLRB 2252, 2253–2254 (2012)
(“The obligation to bargain over the effects of the closing
of the [employer’s] facility entailed an obligation to bar-
gain over the transfer of employees” to another facili-
ty).12

10 One of the preregistration employees present at the November 23
meeting also served as a union steward. She clearly attended in her
personal capacity, rather than in her official capacity however. Cf.
Coated Products, Inc., supra at 162 fn. 8, 165–166 (finding that the
employer dealt directly with employee in his personal capacity, rather
than in his official capacity as union president).
11 See, e.g., Miami Rivet of Puerto Rico, 318 NLRB 769, 771–772
(1995) (finding layoffs to be a subject of effects bargaining); National
Car Rental System, Inc., 252 NLRB 159, 163 (1980), enfd. in pertinent
part 672 F.2d 1182 (3d Cir. 1982) (finding transfers to be a subject of
effects bargaining).
12 As discussed above and as noted by our dissenting colleague, the
parties engaged in effects bargaining on December 7. But there is no
evidence that the Union acquiesced in the Respondent’s initial contact
with unit employees. Thus, the subsequent effects bargaining did not
cure the Respondent’s earlier direct dealing violation. Cf. Kansas
Education Assn., 275 NLRB 638, 640 fn. 13 (1985) (finding that,
although the union waived by inaction its right to bargain about the
employer’s change in terms and conditions for one employee, there was
no evidence that union acquiesced to the employer directly discussing
that change with the employee).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 568
Moreover, the Respondent’s conduct suggests that it
intended to undercut the Union’s role as bargaining
agent. After a unit employee heard rumors of the up-
coming relocation, she confronted her supervisor, who,
after confirming the rumor, asked her not to tell the un-
ion steward. As our dissenting colleague observes, the
Respondent suggested in its letter to the employees that
they could ask questions of the Union. But that option
was of little practical benefit because, as a result of the
Respondent’s own actions, the Union had no more in-
formation than did the employees themselves.
Finally, we find the judge’s (and our dissenting col-
league’s) reliance on Capital Ford, supra, to be mis-
placed, as that case is factually distinguishable.13 In
Capital Ford, the General Counsel alleged, among other
things, that the employer unlawfully implemented unilat-
eral changes—namely, authorizing two paid holidays and
a productivity bonus—and unlawfully dealt directly with
unit employees by announcing those changes directly to
them. The Board majority found that the paid holidays
and bonus were not, in fact, unilateral changes. In dicta,
the Board majority further observed that, even assuming
unilateral action, the employer’s announcements did not
constitute direct dealing because they merely notified
employees of predetermined courses of action. 343
NLRB at 1059, 1066–1067. Here, conversely, the Re-
spondent offered employees three options, one of which
it had not previously presented to the Union, and re-
ceived responses to the options from all but two of the
employees, and all before informing the Union. It then
allowed the employees to choose the option they pre-
ferred. Cf. Baltimore News American, 230 NLRB 216,
217–218 (1977) (finding unlawful direct dealing when
employer distributed voluntary retirement options direct-
ly to its represented employees), remanded on other
grounds by 590 F.2d 554 (4th Cir. 1979), supplemented
by 243 NLRB 170 (1979). The Respondent also request-
ed that its employee not inform the union steward of the
decision to relocate. As discussed, that evidence indi-
cates that the Respondent was primarily interested in

Because of our conclusion above, we need not pass on the judge’s
finding that the Respondent lawfully presented the options of layoff and
bumping to its employees at the November 23 meeting.
13 The judge also mistakenly relied on Spurlino Materials, LLC, 355
NLRB 409 (2010) (adopting two-member decision at 353 NLRB 1198
(2009)), enfd. 645 F.3d 870 (7th Cir. 2011), Windstream Corp., 355
NLRB 406 (2010) (adopting two-member decision at 352 NLRB 44
(2009)), and Johnson Industrial Caterers, Inc., 197 NLRB 352 (1972),
to support his finding that the Respondent simply announced a prede-
termined course of action. Those cases are not precedential because no
party excepted to the relevant portions of the administrative law judges’
findings. Spurlino Materials, supra at 1198 fn. 4; Windstream Corp.,
supra at 44; Johnson Industrial, 197 NLRB at 352 fn. 1.
resolving effects issues with its employees rather than
with their Union.14
Accordingly, we find that the Respondent dealt direct-
ly with union-represented employees in violation of Sec-
tion 8(a)(5) and (1) of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s conclusions of
law.
“1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
“2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
“3. The Union is the representative for purposes of
collective bargaining of a unit of employees in various
departments and classifications at the Respondent’s
Hackley Campus.
“4. By bypassing the Union and dealing directly with
its bargaining unit employees, the Respondent violated
Section 8(a)(5) and (1) of the Act.
“5. The Respondent has not otherwise violated the Act
as alleged in the complaint.”
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we will order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Mercy Health Partners, Muskegon, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with SEIU
Healthcare Michigan, the exclusive representative of an
appropriate unit of the Respondent’s employees, by by-

14 The proposition for which the judge cited Capital Ford is arguably
in tension with other Board precedent. See, e.g., Crittenton Hospital,
343 NLRB 717, 717 fn. 3, 733, 740–741 (2004); Owen Lee Floor Ser-
vice, Inc., 260 NLRB 651, 654–655 (1980), enfd. 659 F.2d 1082 (6th
Cir. 1981). Because we believe Capital Ford is distinguishable on its
facts, we need not resolve that tension here.
The Board’s decision in Huttig Sash & Door Co., 154 NLRB 811
(1965), enfd. 377 F.2d 964 (8th Cir. 1967), also cited by our dissenting
colleague, is likewise distinguishable. There, the employer first in-
formed the union of its intended change in wages, and the union per-
mitted the employer to notify employees individually because, as ex-
plained by the union, the company was going to make the change in
any event. Although the company asked the employees if they would
accept the change, the Board observed that they had little choice be-
cause the change was predetermined. The Board concluded that “those
conferences [with employees] amounted in reality to nothing more than
notification to the employees of a predetermined course of action to
which [the r]espondent was committed.” Id. at 817.
MERCY HEALTH PARTNERS 569
passing it and dealing directly with bargaining unit em-
ployees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its Hackley and Mercy facilities located in Muskegon,
Michigan, copies of the attached notice marked “Appen-
dix.”15 Copies of the notice, on forms provided by the
Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places, including all places where
notices to employees are customarily posted. In addition
to physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since November
23, 2009.
(b) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

MEMBER HAYES, concurring in part and dissenting in part.
I concur in my colleagues’ decision to affirm the
judge’s recommended dismissal of the allegation that the
Respondent violated Section 8(a)(5) and (1) of the Act
by failing to bargain with the Union about the decision to
relocate bargaining unit work from the Hackley campus
to the Mercy campus. However, I would do so for dif-
ferent reasons. Further, I dissent from my colleagues’
decision to reverse the judge and find that the Respond-
ent violated Section 8(a)(5) by dealing directly with
Hackley unit employees about the option of transferring
to non-unit positions at Mercy.

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
As to the decisional bargaining issue, I agree with the
Respondent’s argument in exceptions that it had no bar-
gaining obligation because the work relocation decision
was part of a major companywide consolidation of op-
erations involving a massive infusion of capital. Accord-
ingly, the relocation decision entailed a “change in the
scope and direction” of the Respondent’s enterprise and
was exempt from the statutory duty to bargain under the
principles set forth in First National Maintenance, 452
U.S. 666 (1981). In the alternative, I agree with the
judge and my colleagues that the decision was lawful
even under the test set forth in Dubuque Packing.1
As to the direct dealing issue, I agree with the judge
that the Respondent lawfully offered the Hackley unit
employees a predetermined transfer option, in addition to
the contractual bumping and layoff options previously
negotiated with the Union. The judge correctly relied on
precedent holding that the mere presentation of a prede-
termined employment term does not constitute pro-
scribed dealing with unit employees about the establish-
ment of, or changes in, their terms and conditions of em-
ployment.2 My colleagues’ attempts to distinguish such
precedent are unavailing. Further, there is negligible
support for their claim that the Respondent intended to
undermine the Union’s representative status,3 much less
that it had this effect. On the contrary, I find it signifi-
cant that there is no allegation that the Respondent failed
to fulfill its statutory obligation to engage in bargaining
about the effects of its relocation decision. In fact, the
parties did engage in effects bargaining subsequent to the
presentation of the transfer option, and the Union did not
seek to discuss this option. Particularly in these circum-
stances, I would find that the judge correctly applied
Board law in finding no unlawful direct dealing.

1 Dubuque Packing Co., 303 NLRB 386 (1991), enfd. in pertinent
part sub nom. Food & Commercial Workers Local 150-A v. NLRB, 1
F.3d 24 (D.C. Cir. 1993), cert. granted 511 U.S. 1016 (1994), cert.
dismissed 511 U.S. 1138 (1994).
2 E.g., Permanente Medical Group, 332 NLRB 1143, 1144 (2000),
and Capital Ford, 343 NLRB 1058 (2004). See also Huttig Sash &
Door Co., 154 NLRB 811 (1965), enfd. 377 F.2d 964 (8th Cir. 1967).
3 At most, one low-level supervisor on one occasion told an employ-
ee not to prematurely “tell a lot of people,” including the union steward,
of the planned relocation of the preadmission patient registration work
because the Respondent had not yet formally announced the move.
There is no evidence that the Respondent affirmatively concealed from
the Union that it planned to present employees with the option of fol-
lowing their work from Hackley to Mercy. Upon presenting its em-
ployees with their postrelocation options, the Respondent distributed
letters advising the employees that, if they had any questions, they
could consult with their labor relations manager or their union repre-
sentative. It also notified the Union of its action. This conduct hardly
demonstrates an intent to undercut the Union’s role as bargaining agent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities

WE WILL NOT refuse to bargain collectively with SEIU
Healthcare Michigan, the exclusive representative of an
appropriate unit of our employees located at our Hackley
facility, by bypassing it and dealing directly with those
employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.

MERCY HEALTH PARTNERS

Joseph P. Canfield, Esq., for the General Counsel.
Michael A. Snapper and Keith J. Brodie, Esqs., for the Re-
spondent.
Brenda D. Robinson, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Grand Rapids, Michigan, on August 3, 2010, pur-
suant to a second amended complaint that issued on July 20,
2010.1 The complaint, as amended at hearing, alleges that the
Respondent violated Section 8(a)(5) of the National Labor Re-
lations Act by eliminating the work of certain unit employees
and by direct dealing.2 The Respondent’s answer denies any
violation of the Act. I find that the Respondent did not violate
the Act and shall recommend that the complaint be dismissed.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent I make the follow-
ing

1 All dates are in 2009, unless otherwise indicated. The charge in
Case 07–CA–052693 was filed on January 27, 2010, and was amended
on May 26, 2010, and July 14, 2010.
2 The General Counsel withdrew par. 12 of the second amended
complaint.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Mercy Health Partners (Mercy), is a Mich-
igan not-for-profit corporation with facilities in Muskegon,
Michigan, that include acute care hospitals. The Respondent
annually derives gross revenues in excess of $250,000 and
purchases and receives goods and materials valued in excess of
$50,000 directly from points outside the State of Michigan.
The Respondent admits, and I find and conclude, that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and is a health care institution
within the meaning of Section 2(14) of the Act.
The Respondent admits, and I find and conclude, that SEIU
Healthcare Michigan, the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Mercy is a subsidiary of Trinity Health, a national healthcare
provider created by the merger of Mercy and Holy Cross
Healthcare in 2000. Various hospitals that operate under the
Trinity umbrella have retained their historic names such as St.
Joseph. Mercy operates multiple hospitals named Mercy, many
of which are in Iowa and Michigan, including a hospital in
Muskegon, Michigan. In 2008, Mercy, in Muskegon, merged
with Hackley Hospital, which continues to operate under that
name. The hospitals and related buildings are referred to re-
spectively as the Mercy Campus and the Hackley Campus.
The vice president of patient financial services for Trinity is
Linda Schaeffer, whose office is in Farmington Hills, Michi-
gan. She explained that, over the past several years, Trinity
began a transition from being a passive parent company “to an
operating company for specific functions.” In that regard, Trin-
ity looked at business models, including Tenent Healthcare and
HCA, Inc., in an effort “to standardize and make our processes
more efficient.” Schaeffer pointed out that, previously, Trini-
ty’s “hospitals were autonomous, decisions were made locally.”
In 2008, Trinity adopted an organizational model called the
Unified Revenue Organization, referred to throughout the hear-
ing as the URO “that spans across the revenue cycle from pa-
tient access all the way through managed care contracting.”
Implementation of the model is ongoing. It includes use of a
standardized computer system platform, Genesis, which Trinity
began implementing in 2003. The platform utilizes different
applications specific to various functions such as clinical mat-
ters and financial information. Once fully implemented, Gene-
sis, with its specific applications, will be systemwide for all
Trinity facilities.
One aspect of implementation of the URO is the centraliza-
tion of what Schaeffer called “shared services” pursuant to
which employees performing the same function are brought
from different locations and placed at one consolidated loca-
tion.
MERCY HEALTH PARTNERS 571
The Union herein represents clerical employees, including
registration/admit assistants at the Hackley Hospital.3 It also
represents employees in six other units, some at Hackley and
others at Mercy Hospital. Registered nurses at Mercy, repre-
sented by the Michigan Nurses Association, constitute an
eighth unit. Registration clerks at Mercy are not unionized.
The issues in this proceeding are whether the Respondent vi-
olated the Act by failing to bargain with the Union before elim-
inating the jobs of four registration/admit assistants and two
insurance verification clerks at the Hackley Campus and en-
gaged in direct dealing by explaining to those employees their
options, which included accepting a nonunion position per-
forming the same job at a location on the Mercy Campus.
B. Facts
Employees classified as registration/admit assistants perform
different functions. Some meet face-to-face with patients who
come directly to the hospital such as those who present them-
selves at the emergency room. Others, including the employees
involved in this proceeding, perform preregistration for patients
who are scheduled for testing, such as CT and MRI scans. As
explained by shop steward, Anna Winters, “[w]e call the pa-
tient, get insurance information, demographics, their name, date
of birth, that type of thing,” and verify it prior to the patient
coming to the hospital. Similarly, some insurance verification
clerks do not deal directly with patients. They confirm insur-
ance information prior to the patient coming to the hospital.
Vice President Schaeffer pointed out that the employees per-
forming the preregistration and insurance verification functions
prior to patients coming to the hospital do not see the patient
and do “not need to be located at the hospital.” She noted that
“[h]ospital real estate is prime real estate, and we need to re-
serve that space for our physicians and our patients.” She ex-
plained that Trinity considered preregistration to be a “shared
service,” and, consistent with implementation of the URO,
Trinity was centralizing that service so that it was provided “in
a very uniform, standardized manner.” The work of the regis-
tration/admit assistants and insurance verification clerks who
meet face-to-face with patients at the time they come into the
hospital were unaffected by the centralization of the preregis-
tration function.
Employees at the Mercy Campus who perform the preregis-
tration function do so for patients who are to be treated at the
Mercy hospital. They use an application on the Genesis com-
puter system. The preregistration employees at the Hackley
Campus use a computer system referred to as “Star,” and for
that reason only preregistered patients who were to be treated at
the Hackley hospital. The employees who performed the pre-
registration function at the Hackley Campus heard rumors that

3 The collective-bargaining agreement recognizes the Union as the
exclusive collective-bargaining representative of employees in various
departments and classifications at the Hackley Campus including, inso-
far as relevant to this proceeding, the following:
Patient Access: courtesy representative, insurance verification clerk,
registration/admit assistant, denial specialist, central scheduling clerk
I, central scheduling clerk II, bed assigner, financial counselor, ER
admitting clerk, material handling, par management attendant, materi-
als specialist, mailroom assistant.
their jobs might be moved throughout 2009. Shortly after Mer-
cy and Hackley merged in 2008, scheduling was centralized
and the employees at Hackley involved in scheduling moved to
the Mercy Campus. In March 2009, Michael Grant, Trinity’s
regional director for West Michigan, came to Hackley and
made a powerpoint presentation explaining the URO. The
powerpoint presentation twice notes that “[s]ome preregistra-
tion and financial clearance functions will also migrate to
shared services center over three to four years.” Shop steward
Winters did not deny having seen that presentation and recalled
that Grant, consistent with the presentation, mentioned moving
preregistration “that they were looking at different buildings,
they were looking at different places.”
Following the merger of Mercy and Hackley, employees per-
forming the preregistration function at both Hackley and Mercy
were supervised by Linda Churchill. Employee Mary Erickson
recalled that, a couple of weeks before the preregistration em-
ployees were formally told of the elimination of their jobs at
Hackley, a preregistration employee at Mercy asked her when
they would be moving, that “they were preparing a place for
us.” Erickson reported the conversation to fellow employee
Amber Grainer, and they informed Supervisor Churchill of the
conversation. Churchill confirmed the report and asked that
they “not tell a lot of people because it hasn’t been announced
yet and . . . not to say anything to Anna [Winters] [b]ecause she
was a union steward.” Notwithstanding that instruction, Erick-
son and Grainer informed Winters that “there was going to be a
move and that Linda Churchill validated that.” Winters did not
deny being told of the move by Erickson and Grainer. I credit
Erickson. Having received the foregoing hearsay report from
her coworkers, I do not credit the denial of Winters that she was
unaware of the upcoming move until November 23. I note,
however, that the Union did not receive clear and unequivocal
notice until the formal announcement on November 23 that the
jobs at Hackley were to be eliminated. See Dedicated Services,
352 NLRB 753, 759 (2008).
On November 23, the four Hackley registration/admit assis-
tants performing the preregistration function, Winters, Erick-
son, Grainer, and Jodi Pallas, and one of the two clerks per-
forming preregistration insurance verification, Barbara Hoff-
man, were called to a meeting. Insurance verification clerk
Tanna Lock was absent on medical leave. Supervisor Church-
ill, Manager Connie Hasenbank, URO Regional Manager Julie
Champayne, Muskegon Site Director Deana Richter, and Direc-
tor of Labor Relations Robin Belcourt were present for man-
agement. Belcourt conducted the meeting. She informed the
employees their jobs at Hackley had been eliminated and the
jobs “were going to be placed over at the Mercy Campus.”
Belcourt told the employees that they would be given 72 hours
to decide whether, pursuant to the collective-bargaining agree-
ment, they wanted to bump at Hackley or take a layoff, or
whether they wanted take one of the preregistration jobs being
moved to Mercy. She explained that the position at Mercy was
nonunion, but the employees’ pay and benefits would remain
the same and, as Winters recalled, “we would not lose any of
our benefits.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572
All employees present except Winters elected, at that time, to
move. Winters did so a few days later. The absent employee,
Tanna Lock ultimately decided to accept a layoff.
Immediately following the meeting, Winters informed Loret-
ta Briggs, member representative for the Union, of what had
occurred. Belcourt sent Briggs the following email:

MHP [Mercy Health Partners] is consolidating the pre-
registration component of the patient registration process. Ef-
fective December 7, 2009, the first phase of consolidation will
take place and work of the pre-registration process will be
completed at the Mercy Campus. As SEIU does not represent
the employees conducting the registration process at the Mer-
cy Campus any open positions will be considered non-union.
The move involves a total of 6 union employees at the Hack-
ley Campus. Today we met with the pre-registration clerks
affected and these employees were issued position elimination
notices giving them the rights afforded under the SEIU Ser-
vice and Maintenance Collective Bargaining Agreement.

Later on the afternoon of November 23, Attorney Brenda
Robinson, on behalf of the Union, replied to Belcourt by email
as follows:

As exclusive bargaining representative for the Registration
Clerks at the Hackley campus of Mercy Health Partners,
please consider this SEIU HealthCare Michigan’s formal de-
mand to bargain the effects of the employer’s anticipated De-
cember 7, 2009, move of these members to the Sherman
[Mercy] Campus. Please notify myself and Loretta Briggs of
your available dates for bargaining these effects as soon as
possible.

The affected employees moved their computers, office
chairs, and other office materials to the Mercy Campus on De-
cember 4 and began working at that location on December 7.
Also on December 7, Attorney Robinson and member repre-
sentative Briggs met with Robin Belcourt. Supervisor Church-
ill, Manager Connie Hasenbank, and Site Manager Deana Rich-
ter were also present. The Union asked whether the Employer
would “move the clerks back from Mercy to Hackley.”
Belcourt answered, “No.” The Union asked whether the em-
ployer would apply the Hackley collective-bargaining agree-
ment to the employees who had been moved. Belcourt ex-
plained that would not be possible because the “employees that
do this function over at the Mercy Campus were non-union.”
The Union asked whether the Employer would agree to a card
check if a sufficient number of employees signed authorization
cards. Belcourt effectively denied that request by responding
that the Employer would follow whatever directive it received
from the National Labor Relations Board.
Attorney Robinson represented the Charging Party Union in
this proceeding but did not testify. Member representative
Briggs, when asked why the Union did not request to bargain
regarding the decision, answered, “Because the decision had
already been made.” The formal notification of the move was
given 2 weeks prior to its actual occurrence. The Union did not
assert that the Company had violated the collective-bargaining
agreement, and the complaint alleges no contractual violation.
The Union did not file a grievance.
Although Belcourt’s email does not mention the URO, the
consolidation was part of the implementation of the “shared
services” concept in the URO. Initially the Hackley Campus
was to be converted to the Genesis system in October 2010
pursuant to implementation of the Genesis system at all Trinity
facilities, but implementation of Genesis has been delayed until
February 2011, because of a delay in implementation at another
Trinity location. The employees who worked at Hackley must
be trained to use Genesis prior to the actual implementation.
Shop steward Winters acknowledged that Supervisor Churchill
had informed the employees that, if they were moved, they
would have to be trained on the Genesis computer system.
Because Hackley uses the Star system and the employees who
were moved use only the Star system, they have continued to
preregister patients only for Hackley.
C. Analysis and Concluding Findings
1. The transfer of work
The complaint alleges that the Respondent eliminated the
unit work of registration/admit assistants and insurance verifi-
cation clerks engaged in preregistration duties at Hackley by
assigning that work to nonunion positions at the Mercy Campus
without notice to or bargaining with the Union.
The threshold issue herein is whether this case should be an-
alyzed under the multistep burden-shifting test set out in Dubu-
que Packing Co., 303 NLRB 386 (1991), enfd. 1 F.3d 24 (D.C.
Cir. 1993), cert. denied 511 U.S. 1138 (1994), or as a subcon-
tracting case under Fiberboard Paper Products Corp. v. NLRB,
379 U.S. 203 (1964).
The General Counsel contends that the relocation of the
work of the affected employees constituted substitution of “the
union workers at Hackley with the non-union workers at Mer-
cy.” Citing Torrington Industries, 307 NLRB 809 (1992), and
Geiger Ready-Mix Co. of Kansas City, 315 NLRB 1021 (1994),
the General Counsel argues that “virtually the only . . . circum-
stance the employer has changed is the identity of the employ-
ees doing the work” and that the Respondent’s decision is
“closer to the subcontracting of the work found in Fiberboard
rather than to a movement of the work found in Dubuque” and
that, therefore, the Respondent was obligated to bargain “re-
gardless of whether the decision was based on labor costs.”
The Respondent argues that the decision to relocate the work
of the registration/admit assistants and insurance verification
clerks engaged in preregistration duties is properly analyzed
under the multistep burden-shifting test set out in Dubuque
Packing Co. Citing First National Maintenance Corp. v.
NLRB, 452 U.S. 666, 677 (1981), the Respondent argues that
the URO was a business decision that represented a change in
“the scope and direction of the enterprise” and, even if that
argument be rejected, that labor costs played no part in its deci-
sion and the Union could offer no concessions that would alter
its decision.
I agree with the Respondent that this case is properly ana-
lyzed as a relocation decision under the multistep burden-
shifting test set out in Dubuque Packing Co. There was no
subcontracting. Unlike Fiberboard, there was no “replacement
of employees in the existing bargaining unit with those of an
independent contractor.” 379 U.S. at 215. There was consoli-
MERCY HEALTH PARTNERS 573
dation of the preregistration function pursuant to implementa-
tion of the URO “shared services” concept. Implementation of
the URO resulted in the transfer of the Hackley unit work.
The Board, in El Paso Electric, 355 NLRB 428 (2010), re-
cently reiterated the Dubuque Packing test:

Under this test, the General Counsel must initially
show that the decision involved a relocation of unit work
unaccompanied by a basic change in the nature of the em-
ployer’s operation. Satisfaction of that burden establishes
a prima facie case that the relocation decision is a manda-
tory subject of bargaining. The employer may rebut the
prima facie case by establishing that the work performed
at the new location varies significantly from that per-
formed at the old facility, that the work performed at the
old facility is to be discontinued entirely rather than
moved, or that the employer’s decision involves a change
in the scope and direction of the enterprise. Alternatively,
the employer may proffer an affirmative defense and
“show by a preponderance of the evidence: (1) that labor
costs (direct and/or indirect) were not a factor in the deci-
sion or (2) that even if labor costs were a factor in the de-
cision, the union could not have offered labor cost conces-
sions that could have changed the employer’s decision to
relocate.” Dubuque Packing, 303 NLRB at 391.

The Respondent remains in the business of providing health
care at its Hackley and Mercy facilities in Muskegon. The
preregistration work performed at the consolidated location on
the Mercy Campus pursuant to the “shared services” concept of
the URO does not differ significantly from the work formerly
performed at Hackley. The preregistration work formerly per-
formed at Hackley that does not involve face-to-face dealing
with patients has not been discontinued; it has been moved.
The employees performing the preregistration function contin-
ue to do so. The basic nature of the Respondent’s operations
remains the same.
I am mindful that the employees from Hackley who use the
Star system have continued to preregister patients only for
Hackley because implementation of the Genesis system was
delayed. The record does not establish whether the move of the
work would have been premature if the original schedule,
which contemplated training and actual implementation of the
Genesis system in October, had been successfully followed.
Pursuant to the centralization of this “shared service” and intro-
duction of the Genesis computer system, both the former Hack-
ley employees and the Mercy employees will preregister pa-
tients for both Hackley and Mercy. The only reason they were
not doing so at the time of the hearing was the delay in imple-
mentation of the Genesis system.
I reject the argument of the Respondent that implementation
of the URO constituted a business decision relating to the
“scope and direction of the enterprise.” The URO changed the
manner in which the Respondent sought to carry out the same
mission that it has always had, providing health care. I find
that the basic nature of the Respondent’s operations remains the
same as does the work that was moved to the Mercy Campus.
Therefore, I must address the issue of labor costs or whether the
Union could have offered concessions that would have affected
the Respondent’s decision.
Vice President Linda Schaeffer credibly denied that labor
costs were a factor in the Respondent’s decision, and there is
not a scintilla of evidence to the contrary. The employees who
accepted the positions at Mercy continued to receive their for-
mer wages and benefits. The number of employees remained
the same. Tanna Lock was replaced by a new hire and another
employee was hired when Amber Grainer left. Labor costs
were not a factor in the Respondent’s decision.
The relocation decision was part and parcel of the URO
adopted by Trinity in 2008 pursuant to which “shared services”
were to be consolidated. No concession by the Union could
alter the business model the Respondent had adopted. The
powerpoint presentation made to the Hackley employees in
March 2009 twice notes that “[s]ome preregistration and finan-
cial clearance functions will also migrate to shared services
center over three to four years.” Vice President Schaeffer con-
firmed that there was “no way to reverse” the changes called
for by the URO. The transfer of work occurred pursuant to the
“shared services” concept of the URO and standardization re-
sulting in the elimination of local autonomy. In short, the deci-
sion herein was not an issue “amenable to resolution through
the bargaining process.” First National Maintenance Corp.,
supra at 678. The Union could offer no concession “that could
have changed the employer’s decision to relocate” the preregis-
tration work that did not involve face-to-fact contact with pa-
tients insofar as that decision was mandated by the URO.
In view of the foregoing, I need not address the argument of
the Respondent that the failure of the Union to request bargain-
ing over the decision that was not to be implemented until 2
weeks after the formal announcement to the employees on No-
vember 23 constituted a waiver, or the argument of the Union
that it was presented with a fait accompli.
Consistent with the analysis prescribed in Dubuque, I find
that the General Counsel presented a prima facie case that the
relocation of the preregistration work was a mandatory subject
of bargaining but that the Respondent has established that labor
costs were not a factor and that no concession by the Union
would or could have affected its decision. Thus, I shall rec-
ommend that the allegation that the Respondent violated the
Act by eliminating the unit work of registration/admit assistants
and insurance verification clerks engaged in preregistration
duties at Hackley by assigning that work to nonunion positions
at the Mercy Campus without notice to and bargaining with the
Union be dismissed.
2. Direct dealing
The complaint alleges that the Respondent unlawfully by-
passed the Union and dealt directly with the employees whose
work was transferred by offering the options of applying for
another unit position, accepting a layoff, or taking a nonunit
position at the Mercy Campus.
The General Counsel, citing cases, argues that “[p]resenting
employees with options and asking employees to make a choice
between the options amounts to direct dealing.” I am unaware
of any case stating that proposition, and the cases the General
Counsel cites do not stand for that proposition. Paul Mueller
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574
Co., 332 NLRB 332, 334 (2000), and Harris-Teeter Super
Markets, 293 NLRB 743, 744–745 (1989), enfd. 905 F.2d 1530
(4th Cir. 1990), involved polling employees regarding their
preferences. JRR Realty Co., 273 NLRB 1523, 1528 (1985),
related to negotiating individual settlements. In this case there
was no polling or negotiation. The Respondent informed the
employees of its decision, advised them of their rights under the
contract, and informed them of the availability of the nonunit
positions. There was no polling and there was no negotiation.
The Respondent contends that announcement of a predeter-
mined decision without seeking employee input negates any
basis for finding an unlawful instance of direct dealing. I agree.
When addressing direct dealing allegations, the Board con-
siders whether “(1) . . . the [employer] was communicating
directly with union-represented employees; (2) the discussion
was for the purpose of establishing or changing wages, hours,
and terms and conditions of employment or undercutting the
Union’s role in bargaining; and (3) such communication was
made to the exclusion of the Union.” Permanente Medical
Group, 332 NLRB 1143, 1144 (2000), citing Southern Califor-
nia Gas Co., 316 NLRB 979 (1995).
Although the Respondent communicated directly with the
employees when it announced the elimination of unit work at
Hackley, there was no discussion or negotiation. Announce-
ment to affected employees of an employer’s predetermined
course of action, even if that action constitutes a unilateral
change, does not constitute direct dealing. Capitol Ford, 343
NLRB 1058, 1067 (2004), citing Johnson’s Industrial Caterers,
197 NLRB 352, 356 (1972). The Respondent “did not invite
any feedback from employees.” It announced a predetermined
decision. Windstream Corp., 355 NLRB 74 (2010), adopting
the decision of the two-member Board panel in 352 NLRB 44,
51 (2008).
The first two options given to the employees related to their
rights under the collective-bargaining agreement with regard to
a layoff. Article X of the contract sets out those rights: exercise
bumping rights or take the layoff. Shop Steward Winters did
not contradict Belcourt’s correct statement of the employees’
contractual rights. The Respondent is a party to the contract. I
am aware of no case holding that an employer engages in direct
dealing by stating the rights of employees as set out in a con-
tract that binds both the employer and Union.
In Spurlino Materials, LLC, 355 NLRB 409 (2010), adopting
the decision of the two-member Board panel in 353 NLRB
1198 (2009), the Respondent offered a position, a newly creat-
ed unit position, to certain employees. Notwithstanding the
unilateral change, the administrative law judge dismissed a
related direct dealing allegation because the Respondent “did
not solicit . . . [employees’] input on the terms and conditions
of employment . . . or otherwise engage in any kind of ‘bargain-
ing’ with them. Instead, . . . [the Respondent] conveyed to
them as a fait accompli a predetermined company decision that
there would be such a position and what it would entail. This
did not amount to unlawful ‘bypassing’ of the Union and direct
dealing with employees.” 353 NLRB at 1218.
The Mercy Campus position was not a unit position. The
Respondent advised the affected Hackley employees that there
would be the nonunit positions at the Mercy Campus and re-
quested that anyone who wished to take those positions elect to
do so within 72 hours. As the brief of the Respondent points
out, that is the same time period that the collective-bargaining
agreement, article X, section 10.2 F, provides for employees to
elect whether they desire to bump or take a layoff. The Re-
spondent did not engage in any bargaining. It simply an-
nounced its predetermined decision that the nonunit position
was available.
The Board, in Preterm, Inc., 240 NLRB 654, 656 (1979),
recognized that healthcare institutions need to know what their
staffing demands will be in the event of a strike and held that a
healthcare institution could noncoercively inquire regarding
which unit employees intended to strike. The same rationale
applies herein. The Respondent needed to know what staffing
actions it needed to take to assure that patients were preregis-
tered. The Union had no representational rights regarding the
nonunit positions. The affected Hackley employees were asked
to state whether they intended to accept the offered nonunit
positions within the same time period that, under the collective-
bargaining agreement, they were required to state whether they
desired to bump or take a layoff. There is no allegation or evi-
dence of coercion. The request that the affected employees
advise whether they wanted to accept the nonunit positions did
not undercut the Union and did not constitute direct dealing. I
shall recommend that the allegation of direct dealing be dis-
missed.
CONCLUSION OF LAW
The Respondent has not violated Section 8(a)(5) of the Act
as alleged in the complaint.
[Recommended Order omitted from publication.]