Mercy Hospital of Buffalo

National Labor Relations Board - Board Decisions

Dec 18, 2001

336 N.L.R.B. 1282 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
Mercy Hospital of Buffalo and Communications
Workers of America, Local No. 1133, AFL–CIO.
Case 3–CA–21600
December 18, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On June 27, 2000, Administrative Law Judge Karl H.
Buschmann issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel filed cross-exceptions, a supporting brief,1
and a brief in answer to the Respondent’s exceptions.
The Respondent filed a brief in answer to the cross-
exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions, as modified below, and to adopt
the recommended Order as modified.
The issues presented in this case arise from the forma-
tion of Southtowns Catholic MRI, Inc. as a joint venture
by Respondent Mercy Hospital (the Respondent), and
Our Lady of Victory Hospital. Southtowns Catholic
MRI was created for the purpose of providing magnetic
resonance imaging (MRI) diagnostic health care services.
Following the formation of Southtowns Catholic MRI,
the Respondent ceased providing MRI services at its
Western New York Medical Park satellite facility (the
Medical Park) and began referring patients to South-
towns Catholic MRI. The transfer of MRI services from
the Medical Park to Southtowns Catholic MRI resulted in
the elimination of two MRI technologist positions from
the unit of Respondent’s service, technical, and clerical
employees represented by the Union.
The complaint alleges that the Respondent and South-
towns Catholic MRI, Inc., are a single employer and that
the Respondent violated Section 8(a)(5) and (1) by fail-
ing to apply the terms of its collective-bargaining agree-
ment with the Union to employees performing MRI ser-
vices at the Southtowns Catholic MRI facility. The
complaint further alleges that the Respondent violated
Section 8(a)(5) and (1) by failing to bargain over the de-
cision to relocate MRI services to the Southtowns Catho-
lic MRI, or the effects of the decision, and by failing to
provide the Union with requested information about the
formation and operation of Southtowns Catholic MRI.

1 We reject the Respondent’s motion to strike the General Counsel’s
cross-exceptions as untimely. Administrative records show that the
brief in support of exceptions was filed on a timely basis and that the
cross-exceptions were inadvertently omitted. The General Counsel
corrected this inadvertence by faxing the cross-exceptions to the Board
the next day.
The judge found that the Respondent and Southtowns
Catholic MRI are a single employer and that the Respon-
dent therefore violated Section 8(a)(5) and (1) by refus-
ing to apply its collective-bargaining agreement with the
Union to employees performing MRI services at the new
facility. He further found that the Respondent unlaw-
fully failed to provide the Union with requested informa-
tion about Southtowns Catholic MRI. He dismissed the
allegation that the Respondent violated Section 8(a)(5)
and (1) by failing to bargain over the decision to relocate
MRI services.2 We adopt the judge’s finding that the
Respondent unlawfully refused to provide the requested
information. However, for the reasons explained below,
we reverse the judge’s finding that the Respondent and
Southtowns Catholic MRI are a single employer, and we
dismiss the remaining complaint allegations.
FINDINGS OF FACT
The Respondent operates an acute care hospital and
various satellite facilities. It is one of five hospitals in
Western New York owned by the Catholic Health Sys-
tem. The other hospitals in the Catholic Health System
are Our Lady of Victory Hospital, Sisters of Charity
Hospital, St. Joseph’s Hospital, and Kenmore Mercy
Hospital.3
Since September 26, 1991, the Union has represented a
unit of the Respondent’s service, technical, and clerical
employees (STC unit) at Mercy Hospital and numerous
satellite facilities. The Respondent’s recognition of the
Union has been embodied in successive collective-
bargaining agreements.
In January 1995, the Respondent acquired a radiologi-
cal services practice in West Seneca, New York, in a
complex known as the Medical Park. Since that time, it
has provided radiological, physical therapy, occupational
therapy, and some laboratory services at the Medical
Park. Prior to the formation of Southtowns Catholic
MRI, all MRIs ordered by doctors at the Respondent
took place at the Medical Park, unless otherwise speci-
fied by the doctor. The Union represents the service,
technical, and clerical employees of the Respondent at
the Medical Park, including MRI technologists.
2 As noted above, the complaint also alleged that the Respondent
violated Sec. 8(a)(5) by failing to bargain over the effects of its deci-
sion to relocate the MRI services. However, the judge inadvertently
failed to make a finding on this issue. We address this allegation in
part 3 of our decision below.
3 The Catholic Health System also includes two home health care
agencies and 13 long-term care facilities.
336 NLRB No. 134
MERCY HOSPITAL OF BUFFALO 1283
In 1997, the Respondent, Our Lady of Victory Hospi-
tal, and Abbott Radiology4 began discussing the forma-
tion of a joint venture to purchase and operate a new,
state-of-the-art MRI machine, capable of performing
magnetic resonance angiograms (MRAs). At that time,
the three entities were operating separate MRIs, none of
which were capable of performing MRAs.
As a result of the discussions between the Respondent,
Abbott Radiology, and Our Lady of Victory, two new
companies were formed: Southtowns MRI Associates,
L.L.C., and Southtowns Catholic MRI. Southtowns MRI
Associates is owned 25 percent by the Respondent, 25
percent by Our Lady of Victory, and 50 percent by Ab-
bott. Southtowns Catholic MRI is owned 50 percent by
the Respondent and 50 percent by Our Lady of Victory.
Southtowns MRI Associates constructed a new build-
ing on property leased from the Respondent at the Mercy
Ambulatory Care Center (the MACC) in Orchard Park,
New York. Southtowns MRI Associates then purchased
and installed a new MRI machine in the building. South-
towns Catholic MRI leases the building and the MRI
from Southtowns MRI Associates.
The intent of the Respondent was for Southtowns
Catholic MRI to manage and operate the new MRI after
obtaining the necessary New York licenses. However,
since the MRI began operating in May 1998, it has been
managed and operated by Abbott Radiology, through its
wholly owned subsidiary, Orchard Park MRI, P.C. All
employees providing MRI services at the Southtowns
Catholic MRI are employed by Orchard Park.5
By memorandum dated July 22, 1998, the Respondent
instructed the staff at Mercy Hospital to schedule all
MRIs and MRAs at Southtowns Catholic MRI, unless
otherwise specified by the patient’s doctor. Subse-
quently, the Respondent stopped referring patients to the
Medical Park for MRI procedures.
By letter dated October 13, 1998, the Respondent in-
formed the Union that it was discontinuing MRI services
at the Medical Park effective December 1, 1998. The
discontinuation of MRI services at the Medical Park re-
sulted in the elimination of two full-time MRI technolo-
gist positions within the STC unit.
By letters to the Respondent, dated August 3, 1998,
and January 25, 1999, the Union requested detailed in-
formation about the formation and operation of South-

4 Abbott Radiology is an independent group of radiologists, which is
not owned by or affiliated with the Catholic Health System.
5 Prior to the formation of Southtowns Catholic MRI, Abbott Radi-
ology owned and operated an MRI machine at the MACC site in a
building owned by a group of independent orthopedic physicians.
Orchard Park supplied the employees who operated the MRI. Some-
time after the Southtowns Catholic MRI facility opened in May 1998,
Abbott Radiology closed its own MRI facility at the MACC.
towns Catholic MRI. The Union sought information
about the employees at the facilities, the type of equip-
ment used, and the relationships among the various enti-
ties that formed Southtowns Catholic Associates and
Southtowns Catholic MRI. The Union also requested the
identity of the officers and directors of Southtowns
Catholic MRI, all payroll records and other documents
relating to labor costs, and a copy of its articles of incor-
poration. By letters dated August 3, 1998, and February
5, 1999, the Respondent refused to provide most of the
requested information, asserting that Southtowns Catho-
lic MRI is a legal corporate entity, separate and distinct
from Mercy Hospital, for which the Respondent does not
maintain any information.
On October 26, 1998, the Union filed a grievance over
the elimination of the MRI technologist positions and the
Respondent’s failure to apply the terms of its collective-
bargaining agreement with the Union to the employees
providing MRI services at the Southtowns Catholic MRI
facility. On October 27, 1998, the Union filed the charge
in this matter.
I. ANALYSIS
A. Single-Employer Relationship and Failure
to Apply Agreement
The judge found that the Respondent and Southtowns
Catholic MRI, along with the other three entities in-
volved—Southtowns Associates MRI, Abbott Radiology,
and Orchard Park MRI—are so interrelated as to consti-
tute what he characterized as “one ball of wax,” with no
separate corporate identity. He therefore found that the
Respondent and Southtowns Catholic MRI are a single
employer and that the Respondent violated Section
8(a)(5) and (1) by failing to apply its collective-
bargaining agreement with the Union to the employees
performing MRI services at Southtowns Catholic MRI
facility. For the reasons explained below, we disagree.
Preliminarily, we point out that the complaint alleged a
single employer relationship between the Respondent
and Southtowns Catholic MRI, but not between the Re-
spondent and any of the other entities. Further, we find
that the evidence fails to show a single-employer rela-
tionship between the Respondent and Southtowns Catho-
lic MRI. We, therefore, do not find that the Respondent
was obligated, or indeed was even in a position, to apply
its collective-bargaining agreement with the Union to the
employees performing MRI services at the new location.
A single-employer relationship exists when two or
more employing entities are in reality a single-integrated
enterprise. Four criteria determine whether a single-
employer relationship exists: (1) common ownership; (2)
common management; (3) functional interrelation of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
operations; and (4) centralized control of labor relations.6
It is well established that not all of these criteria need to
be present to establish single-employer status.7 Single-
employer status ultimately depends on “all the circum-
stances of a case” and is characterized by the absence of
an “arm’s-length relationship found among unintegrated
companies.”8 The Board has generally held that the most
critical factor is centralized control over labor relations.
Common ownership, while significant, is not determina-
tive in the absence of centralized control over labor rela-
tions.9 Applying this standard to the facts before us, we
find, contrary to the judge, that the Respondent and
Southtowns Catholic MRI do not constitute a single em-
ployer.
B. Common Ownership
Because Southtowns Catholic MRI is owned 50 per-
cent by the Respondent and 50 percent by Our Lady of
Victory Hospital, and the Respondent and Our Lady of
Victory Hospital are in turn wholly owned by the Catho-
lic Health System, some degree of common ownership is
present. Common ownership alone, however, does not
establish a single-employer relationship. A single-
employer relationship will be found only if one of the
entities exercises actual or active control over the day-to-
day operations or labor relations of the other.10 The re-
cord is clear that each of the entities involved in this case
retains operational independence.
C. Common Management
Catholic Health System exercises virtually no control
over the Respondent, Our Lady of Victory Hospital, or
Southtowns Catholic MRI. There is no evidence that the
Respondent exercises any actual or active control over
Our Lady of Victory or vice versa. More importantly, it
has not been shown that the Respondent exercises any
control over Southtowns Catholic MRI.
The judge found common management based on the
following: James Connolly was president and chief oper-
ating officer of both the Respondent and Southtowns
Catholic MRI until February 1999. In February 1999,
Connolly was succeeded by John Davanzo at the Re-

6 Broadcast Employees NABET Local 1264 v. Broadcast Service of
Mobile, 380 U.S. 255 (1965); American Stores Packing Co., 277 NLRB
1656 (1986); and Shellmaker, Inc., 265 NLRB 749, 754 (1982).
7 Denart Coal Co., 315 NLRB 850, 851 (1995), enfd. 71 F.3d 486
(4th Cir. 1995).
8 Dow Chemical Co., 326 NLRB 288 (1998); Alexander Bistritzky,
323 NLRB 524 (1997); and Blumenfeld Theatres Circuit, 240 NLRB
206, 215 (1979), enfd. 626 F.2d 865 (9th Cir. 1980).
9 Western Union, 224 NLRB 274, 276 (1976), affd. sub nom. Tele-
graph Workers v. NLRB, 571 F.2d 665 (D.C. Cir. 1978), cert. denied
439 U.S. 827 (1978).
10 Dow Chemical Co., supra.
spondent, but Connolly remained as president of South-
towns Catholic MRI. Both Connolly and Davanzo were
on the board of directors for Southtowns Catholic MRI.
Further, the board of directors for the Respondent and
Our Lady of Victory, who jointly own Southtowns
Catholic MRI, are identical.
We find that the factors relied on by the judge are in-
sufficient to establish common management. During the
time that Connolly was President of both Southtowns
Catholic MRI and the Respondent, Southtowns Catholic
MRI was not legally able to operate the MRI at the
MACC, because it had not obtained the necessary li-
censes from the State of New York. Therefore, it was
impossible for the Respondent to exercise control over
the day-to-day operations of Southtowns Catholic MRI
through Connolly, because Southtowns Catholic MRI
had no relevant employee operations to control during
that period. By the time Southtowns Catholic MRI re-
ceived its license to operate an MRI in September 1999,
the Respondent and Southtowns Catholic MRI had sepa-
rate presidents. Further, although there is some overlap
of directors—i.e., Connolly is a member of the board of
directors of both entities—the fact that each entity has its
own president with responsibility for the day-to-day op-
erations of the companies precludes a finding of common
management based on the existence of common direc-
tors.11
Similarly, we find that the fact the board of directors of
the Respondent and Our Lady of Victory are identical
does not evince the necessary overlap of shared opera-
tions necessary to find single employer status between
those two entities, in the absence of evidence that they
also have common officers in control of their day-to-day
operating decisions.
D. Centralized Control Over Labor Relations
The judge found evidence of common control over la-
bor relations in the role played by Martin Oscadal at the
Respondent and Southtowns Catholic MRI. From 1993
to March 1999, Oscadal was vice president for human
resources for both the Catholic Health System and the
Respondent. According to Oscadal, as the human re-
sources official for the Respondent, he was “responsible
for all the human resource functions, which would have
been: recruitment, employee labor relations, compensa-
tion benefits; . . . employee health and workmens com-
pensation.”
At the time of the hearing in October 1999, Oscadal
was no longer the Respondent’s vice president. Instead,
since March 1999, he was the human resource official for
11 Western Union Corp., supra; Dow Chemical Co., supra at 288–
290.
MERCY HOSPITAL OF BUFFALO 1285
the Catholic Health System, with responsibility for the
facilities under the umbrella of that system, including
Southtowns Catholic MRI. As the human resources offi-
cial for the Catholic Health System, Oscadal was primar-
ily responsible for recruitment and training. Signifi-
cantly, he testified that he had no responsibility for labor
relations, compensation, or benefits. Moreover, although
the Catholic Health System includes Southtowns Catho-
lic MRI, the undisputed evidence is that Southtowns
Catholic MRI does not have any employees. The em-
ployees who staff the new MRI at the MACC site are
employed by Orchard Park, a wholly owned subsidiary
of Abbott Radiology. Neither Abbott Radiology nor
Orchard Park are part of the Catholic Health System, and
thus neither operates under the authority of Oscadal as
human resources official for the Catholic Health System.
Indeed, the undisputed testimony of Oscadal establishes
the Respondent does not have any employees at the new
MRI facility; the Respondent does not have any supervi-
sory authority or other relationship with the employees of
Orchard Park at the new MRI facility; no personnel poli-
cies of the Respondent, or of the Catholic Health System,
are applied to the employees at the new MRI facility; and
neither the Respondent nor the Catholic Health System
controls or is involved in the labor relations or the terms
and conditions of employment of those employees.
Ordinarily, Oscadal’s testimony would be sufficient to
defeat a single-employer finding. However, the judge
discredited Oscadal’s testimony because he found it to be
partial and inconsistent with documentary evidence. For
instance, the judge found Oscadal’s testimony inconsis-
tent with his February 5, 1999 letter to the Union, which
stated that the employees providing the MRI services at
the new MRI site are employed by Abbott Radiology,
that the Respondent had no legal ownership or interest in
Abbott Radiology, and that eventually the employees
providing the MRI services at the MACC site would be
employed by Southtowns Catholic MRI. (Emphasis
added.)
The judge also cited several additional documents
which he described as establishing, contrary to Oscadal’s
testimony, that Abbott Radiology, Orchard Park, South-
towns Catholic MRI, Mercy Hospital, and the Catholic
Heath System are so interrelated as to be functionally
dependent on each other. First, he cited the newsletter
“Bridge” published by the Catholic Health Systems,
which stated, “Two Catholic Health Systems hospitals
have partnered with Abbott Radiology” on the MRI pro-
ject.12 Second, the judge cited an internal memorandum

12 The judge erroneously describes the newsletter as stating “Mercy
Hospital and the Catholic Health Care Systems ‘partnered with Abbott
Radiology’ on the MRI project.”
stating that the MRI at the MACC is owned by “Our
Lady of Victory, Mercy, and Southtowns Radiology.”
Third, the judge cited an equipment lease between South-
towns MRI Associates and Orchard Park, signed by Noel
Chiantella on behalf of Orchard Park, which shows that
Orchard Park was the “lessee”13 of the MRI equipment
owned by Southtowns MRI Associates. Fourth, he cited
a lease agreement, dated March 20, 1998, between
Southtowns MRI Associates and Orchard Park, signed by
Connolly on behalf of the former and Chiantella on be-
half of the latter. Fifth, the judge cited two documents
titled, “Continuing Guaranty,” in which Chiantella signs
the first on behalf of Orchard Park, and the second for
himself, each as guarantor for a loan by Southtowns MRI
Associates as the borrower. Finally, the judge cited a
certificate of Southtowns MRI Associate, L.L.C., which
states that it is in good standing in the State of New
York. The certificate is signed by Dr. Noel Chiantella,
Dr. Mary L. Turkiewicz, and Dr. James Connolly, as
members of the limited liability corporation. Chiantella
and Turkiewicz are physicians of Abbott Radiology.
Connolly is the president of Mercy Hospital.
While the Board attaches great weight to an adminis-
trative law judge’s credibility findings based on de-
meanor,14 it may proceed to an independent evaluation of
a witnesses’ credibility when the administrative law
judge, such as here, has based his credibility findings on
factors other than demeanor.15 We have carefully exam-
ined the documentary evidence on which the judge based
his credibility findings. Contrary to the judge, we find
nothing in the documentary evidence which is inconsis-
tent with Oscadal’s testimony.16 We therefore conclude
13 The judge inadvertently named Orchard Park as the “lessor.”
14 Standard Drywall Products, 91 NLRB 544 (1951).
15 Canteen Corp., 202 NLRB 767 (1973); Valley Steel Products Co.,
111 NLRB 1338 (1955).
16 The judge found, for example, that Oscadal’s February 5, 1999 let-
ter to the Union stating that “eventually the employees providing the
MRI services at the MACC site would be employed by Southtowns
Catholic MRI,” was inconsistent with his testimony that the employees
at the Southtowns Catholic MRI facility were employed by Orchard
Park. It is undisputed, however, that at the time of the hearing, the
employees at the new facility were employed by Orchard Park, consis-
tent with Oscadal’s testimony. Thus, we do not agree with the judge
that the letter contradicts Oscadal’s testimony. Our review of the other
documents cited by the judge reveals that they simply do not have any
bearing on the subjects about which Oscadal testified. They also do not
shed light on the relationship between the Respondent and Southtowns
Catholic MRI, the only two entities for which the complaint alleges
single employer status. Rather, the documents concern the interrela-
tionships between the Respondent, Southtowns MRI Associates, Abbott
Radiology, and Orchard Park.
Member Walsh finds it unnecessary to disturb the judge’s credibility
finding with regard to Oscadal. The burden to establish single-
employer status is on the General Counsel, however, and the discredit-
ing of Oscadal’s testimony does not provide affirmative evidence sup-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
that the judge’s refusal to credit Oscadal’s testimony was
in error. Accordingly, we reverse the judge’s credibility
findings in this regard.
The General Counsel argues that there is common su-
pervision of the Respondent’s employees and the em-
ployees who operate the new MRI at the MACC facility
via the physicians who form Abbott Radiology. The
judge did not address this issue in his decision. The re-
cord reveals that Abbott Radiology provides radiological
services on a contract basis to the Respondent at several
of its satellite facilities, including the Medical Park.
Thus, the physicians who form Abbott Radiology regu-
larly directed MRI procedures at the Medical Park. Fur-
ther, until May 1998, Dr. Noel Chiantella was the direc-
tor of radiology at the Medical Park. In May 1998, Chi-
antella was replaced by Dr. Mary Turkiewicz. Both Chi-
antella and Turkiewicz are members of Abbott Radiol-
ogy. John Farrell, formerly an MRI technologist for the
Respondent at its Medical Park facility, testified that
Abbott radiologists at the Respondent’s Medical Park
directed his work as it related to patient care, and could ini-
tiate overtime if emergency MRI’s were required (less than
one half of one percent of the MRI’s). He testified further
that Chiantella, and later Turkiewicz, as director of radiol-
ogy, had the authority to discipline MRI technologists.
The record further reveals that at the time of the hear-
ing, Abbott Radiology, through its subsidiary Orchard
Park, was managing and operating the Southtowns
Catholic MRI facility at the MACC. Thus, Abbott Radi-
ology physicians direct the work of MRI technicians at
the new facility. Further, Chiantella manages the facility
on behalf of Abbott Radiology.
We find it unnecessary to determine whether there is
common supervision via the physicians who form Abbott
Radiology. Even assuming that Abbott Radiology physi-
cians exercised 2(11) supervisory authority over the MRI
technologists working at both the Medical Park and the
Southtowns Catholic MRI facility, we would not find
this fact to be indicative of single-employer status as to
the Respondent and Southtowns Catholic MRI. As noted
above, the physicians who form Abbott Radiology are
not affiliated with the Respondent. Further, they perform
duties at the Medical Park and at the Southtowns Catho-
lic MRI facility pursuant to separate contracts with the
respective entities that own those facilities. Finally, there
has been no showing that the Respondent has, or could,

porting the General Counsel’s case. See, e.g., Herick & Smith v. NLRB,
802 F.2d 565, 568 (1st Cir. 1986) (the disbelief of testimony does not
warrant an affirmative finding to the contrary). In addition, for the
reasons stated by his colleagues, Member Walsh agrees that the docu-
mentation the judge relied on to discredit Oscadal is insufficient to
establish that a single-employer relationship existed.
exercise control over the day-to-day operations and labor
relations of Southtowns Catholic MRI through the inde-
pendent physicians who form Abbott Radiology. Ac-
cordingly, we find that any common supervision of the
Respondent’s employees at the Medical Park and Or-
chard Park’s employees at the Southtowns Catholic MRI
facility by Abbott Radiology is not probative of the criti-
cal issue of whether the Respondent exercises actual or
active control over the day-to-day operations and labor
relations of Southtowns Catholic MRI.
Based on the above, we find that the General Counsel
has failed to demonstrate common control over labor
relations between the Respondent and Southtowns
Catholic MRI.
E. Functional Interrelation of Operations
We also find that the General Counsel has failed to
demonstrate that the Respondent and Southtowns Catho-
lic have interrelated operations. The judge found evi-
dence of interrelated operations in Southtowns MRI As-
sociates’ lease of property from the Respondent, and in
Southtowns Catholic MRI’s lease from Southtowns MRI
Associate of the building housing the MRI. The judge
found additional evidence of interrelation of operations
in the fact that the Respondent was able to close its own
MRI facility at the Medical Park as a result of the open-
ing of the Southtowns Catholic MRI facility. The judge
found further evidence of an interrelationship in the Re-
spondent’s furnishing, through unit employees, linen and
garbage service at the Southtowns Catholic MRI site; in
the Respondent’s loan of an oxygen valve to the new
MRI; and in the employment of Virginia Buranich, one
of the Respondent’s former MRI technologists, at the
new site.
Contrary to the judge, we do not find significant the
Respondent’s lease of land to Southtowns MRI Associ-
ates or Southtowns MRI Associates’ lease of the building
to Southtowns Catholic MRI. Those arrangements are
pursuant to written agreements which provide for full
reimbursement. In the absence of any indication that the
agreements are not arm’s length, we do not find that
these mutually convenient arrangements detract from the
corporate independence of the entities. Similarly, regard-
ing the Respondent’s decision to close its own MRI facil-
ity and use the Southtowns Catholic MRI facility in its
stead, we find that the Respondent and Southtowns
Catholic MRI have an arm’s-length customer-supplier
relationship that does not detract from their separate cor-
porate identities.17
The other evidence of interrelation which the judge
cited—combined linen and garbage services, the loan of
17 See, e.g., Dow Chemical Co., supra,
MERCY HOSPITAL OF BUFFALO 1287
an oxygen valve, and the employment by Southtowns
Catholic MRI of a former employee of the Respondent—
is not sufficient to show the degree of interrelatedness
necessary to find single employer status. The only evi-
dence of shared linen and garbage collection was the
testimony of Judith Bondanza, a radiologic technologist
with the Respondent. Bondanza testified that the laundry
was commingled “(a)s far as I know.” She testified fur-
ther that Orchard Park employees would place their gar-
bage in an area of the MACC owned by the Respondent
and an employee of the Respondent would then take the
garbage to a dumpster. However, in view of the fact that
the Respondent owns the land on which the new MRI
facility stands, we are not persuaded that the combined
linen or garbage collection is anything other than part of
an arm’s length relationship between landlord and tenant.
Further, we do not find that the Respondent’s loan to
the new MRI of its oxygen valve for 3 weeks shows
more than a minimal interrelatedness between the Re-
spondent and Southtowns Catholic MRI. As we have
discussed above, we find that the Respondent and South-
towns Catholic MRI had basically a customer-supplier
relationship. The Respondent had decided it was more
economical to use the Southtowns Catholic MRI than the
MRI it had previously used at the Medical Park. If an
oxygen valve was temporarily needed at the new MRI
facility, the Respondent’s loan of it to that facility was in
its financial interest.
Finally, the record shows that Virginia Buranich vol-
untarily resigned her position with the Respondent, con-
tinuing on a per diem basis, and was hired by Orchard
Park. This does not indicate any interchange of employ-
ees between the Respondent and Southtowns Catholic
MRI.18

18 This is emphasized by the negative reaction of Chiantella, as the
director of the new MRI facility, when Buranich was called over by
Timothy Hogan, a vice president of the Respondent, to the Medical
Park to perform an MRI.
Similarly, we do not find any significant interchange between em-
ployees, as the General Counsel asserts, in either the operation of the
teleradiology unit or in the fluoroscopy procedures for shoulder arthro-
grams at the new MRI facility. The Respondent’s radiology depart-
ment at the MACC is housed next door to the new MRI facility. In its
radiology department, the Respondent frequently uses a teleradiology
unit to transmit film images over telephone lines to a receiving machine
at Mercy Hospital. The Respondent’s employees use this unit to trans-
mit film images as part of their regular work. When radiologic tech-
nologist Judith Bondanza protested to the Respondent’s clinical super-
visor, Mike Bailey, that unit employees were being diverted from car-
ing for their own patients by having to transmit MRI images for South-
towns Catholic MRI, Bailey agreed that this was inappropriate. Bailey
requested the radiologic technologists to train the Orchard Park em-
ployees to use the teleradiology unit to transmit the MRI images, but
this had not occurred as of the hearing.
In summary, based on our examination of the four cri-
teria of single-employer status, we find that the record
does not substantiate the judge’s characterization of the
two entities at issue here. Although there is some degree
of common ownership, in that the Respondent is one of
two 50-percent owners of Southtowns Catholic MRI, the
other three factors, including the “critical” factor of cen-
tralized control of labor relations, are absent. Based on
this record, we find that the Respondent and Southtowns
Catholic MRI are not a single employer. We therefore
dismiss the allegation that the Respondent violated Sec-
tion 8(a)(5) and (1) by failing to apply its collective-
bargaining agreement with the Union to the employees of
Orchard Park performing MRI services at the South-
towns Catholic MRI facility.
F. Failure to Bargain Over Relocation Decision
The judge dismissed the complaint allegation that the
Respondent violated Section 8(a)(5) and (1) by failing to
bargain with the Union over its decision to relocate the
MRI services from the Medical Park facility to the
Southtowns Catholic MRI facility.
By its October 13, 1998 letter, the Respondent notified
the Union that it was discontinuing the MRI services at
the Medical Park location. The Union’s president, how-
ever, admitted that at no time did the Union request bar-
gaining over the decision to relocate the MRI work. Ac-
cordingly, since the Respondent provided the Union with
notice of its decision, and the Union never requested bar-
gaining, the Respondent did not violate Section 8(a)(5)
and (1) by refusing to bargain over the decision to relo-
cate the work.19
G. Failure to Bargain Over Effects
of Relocation Decision
The complaint alleged that the Respondent violated
Section 8(a)(5) and (1) by failing to bargain over the ef-
fects of its decision to relocate the MRI services. How-
ever, the judge inadvertently failed to make a finding on
this issue.
As set forth above, the Respondent provided the Union
with advance notice of its decision to relocate the MRI

As for the fluoroscopy procedures, the record shows that Orchard
Park radiologists and MRI technologists perform these procedures for
one-half hour every day, with the assistance of an employee from the
Respondent’s radiology department at the MACC.
In neither of these instances do we find sufficient interchange be-
tween the employees of the Respondent and the employees of Orchard
Park to substantiate a finding of single-employer status between either
the Respondent and Southtowns Catholic MRI or between the Respon-
dent and any other of the entities involved here.
19 We, therefore, do not reach the issue of whether the decision was a
mandatory subject of bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1288
work. The Union, however, never requested bargaining
over the effects of that decision.
Based on the Union’s failure to request effects bar-
gaining after receiving adequate notice from the Respon-
dent, we dismiss the allegation that the Respondent’s
failure to bargain was in violation of Section 8(a)(5) and
(1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, Mercy
Hospital of Buffalo, Buffalo, New York, its agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
1. Delete paragraph 1(a) and reletter the respective
subsequent paragraphs accordingly.
2. Delete paragraphs 2(a) and (c) and reletter the sub-
sequent paragraphs.
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through any representa-
tive of their own choice
To act together for mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail and refuse to bargain in good faith
with the Union by withholding requested information
relevant to the processing of grievances or the admini-
stration of its collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL furnish the Union with the information re-
quested by it in its letters of August 3, 1998, and January
25, 1999.

MERCY HOSPITAL OF BUFFALO

Doren G. Goldstone, Esq., for the General Counsel.
Gerald L. Paley, Esq. (Phillips, Lytle, Hitchcock, Blaine &
Huber), of Rochester, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case was tried in Buffalo, New York, on October 25–27, 1999,
on a complaint dated July 27, 1999, alleging that the Respon-
dent, Mercy Hospital of Buffalo, violated Section 8(a)(1) and
(5) of the National Labor Relations Act (the Act). The underly-
ing charge was filed by the Union, Communications Workers
of America, Local No. 1133, AFL–CIO. The Respondent’s
answer denied the allegations of the complaint.
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
FINDINGS OF FACT
I. JURISDICTION
Mercy Hospital of Buffalo, a not-for-profit corporation lo-
cated in Buffalo, New York, with other facilities in the western
New York area, is a health care institution. With gross reve-
nues in excess of $250,000 and goods and materials valued in
excess of $5000 from points outside the State of New York, the
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, as well as a
health care institution within the meaning of Section 2(14) of
the Act.
Southtowns Catholic MRI, Inc., located at Mercy Ambula-
tory Care Center in Orchard Park, New York, has been engaged
in providing magnetic resonance imaging (MRI) diagnostic
health care services on an outpatient basis. It is alleged to be a
single-integrated business enterprise with the Respondent and a
single employer within the meaning of the Act.
The Union, Communications Workers of America, Local
No. 1133, AFL–CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE ISSUES
The Respondent’s actions in relocating MRI work from unit
employees at its Medical Park facility in West Seneca to an-
other facility (Southtowns Catholic MRI), presents several
issues:
1. Whether the Respondent violated Section 8(a)(1) and (5)
of the Act by unilaterally transferring its MRI work to another
facility without bargaining with the Union.
2. Whether the Respondent violated Section 8(a)(1) and (5)
of the Act by closing its MRI facility at the Medical Park facil-
ity without bargaining with the Union.
3. Whether the Respondent and the new facility, Southtowns
Catholic MRI, Inc., constitute a single-integrated business en-
terprise and a single employer with regard to the Mercy Ambu-
latory Care Center (MACC), requiring the application of the
collective-bargaining agreement to the employees.
4. Whether the Respondent violated Section 8(a)(1) and (5)
by refusing to comply with the Union’s information requests of
MERCY HOSPITAL OF BUFFALO 1289
August 3, 1998, and January 25, 1999. The allegation with
respect to the Union’s information request of July 29, 1998,
was withdrawn by the General Counsel (GC Br. 2).
III. THE FACTS
Mercy Hospital is located on Abbott Road in Buffalo, New
York. Mercy owns and operates several satellite facilities.
Among them are the Mercy Diagnostic and Treatment Center,
West Seneca, known as the Western New York Medical Park
and the Mercy Ambulatory Care Center, known as MACC
which provided “immediate treatment,” such as emergency,
outpatient and laboratory services. Southtowns Catholic MRI
is a related entity, which is also located at the MACC site.
The Union, CWW, represents two units at Mercy Hospital
and its satellite facilities. Since September 26, 1991, the Union
has represented the service technical and clerical employees
referred to as the STC unit. Since February 28, 1991, the Un-
ion has represented the registered nurses or RNs. The parties,
namely Mercy Hospital on Abbott Road and its facility, West-
ern New York Medical Park, and the facility, Mercy Ambula-
tory Care Center (MACC), as well as other facilities, had en-
tered into successive collective-bargaining agreements effective
December 21, 1997, to June 3, 1999, and from June 4, 1999, to
June 3, 2002, for the STC unit (GC Exh. 20). The parties have
also operated under a collective-bargaining agreement for RNs
effective June 4, 1998, to June 3, 2001.
The STC unit, which is relevant here, included approxi-
mately 1100 employees, including John Farrell, an MRI tech-
nologist, Virginia Buranich also an MRI technologist, and a
part-time MRI technologist, Lisa Sciumeca all of whom were
assigned to the Medical Park facility. MRI technologists per-
form functions which Farrell explained as follows:

It involves, you know, greeting the patient, screening
the patient and putting the patient into the MRI machine,
whereby diagnostic images are taken of the internal anat-
omy

. . . .

Those images then are hard-copied. That is to say,
they’re put on film and given to the radiologist for inter-
pretation . . . . There are x-rays, of course, as well as CAT
scanning, ultrasound . . . a CAT scan is a x-ray procedure
whereby a patient is put into a machine and it uses radia-
tion, that being the difference between CAT scan and
MRI. Again, diagnostic images are acquired, put on hard
film and given to the radiologist for interpretation of the
internal anatomy.

The three technologists were assigned to the MRI depart-
ment under the supervision of Michael Bailey, director of am-
bulatory services. Bailey had offices at the Medical Park facil-
ity and the MACC facility.
Mercy Hospital informed the Union by letter of November 4,
1998, that MRI technologist Virginia Buranich would be laid
off effective November 30, 1998, resulting in the elimination of
a position with the STC unit (GC Exh. 14).
The Respondent informed the Union by letter dated October
13, 1998 as follows (GC Exh. 13).

Re: Notification of Layoff

This letter is to advise you that a formal decision has
been made to discontinue the MRI service at the Mercy
Diagnostic and Treatment Center-West Seneca (MDTC-
WS) effective December 1, 1998. The decision to discon-
tinue this service is in accordance with Article 41, Man-
agement Rights of our current Collective Bargaining
Agreement for the Service Technical and Clerical Bargain-
ing Unit.
The Hospital since it is discontinuing this service, con-
siders this a change in the hours of operation and there-
fore, in accordance with Article 19, Hours of Work, Sec-
tion 3, the Hospital is providing you with more then [sic]
the required 30 calendar days notice of its action.
The elimination of the MRI service at MDTC-WS will
result in the elimination of two (2) positions. These posi-
tions are identified below.

Radiology MRI Technologist John Farrell
Radiology MRI Technologist Lisa Sciumeca

On October 26, 1998, the Union filed a grievance about the
elimination of the two MRI technologists’ positions and the
violation of the collectible-bargaining agreement (GC Exh. 15).
The Union also filed a charge on October 27, 1998 (GC Exh.
1). MRI technologist John Farrell resigned after he was noti-
fied about the job action and accepted a position with another
MRI. The other technologist, Lisa Sciumeca was offered an-
other position with Mercy Hospital as a “CT” technologist at
less pay.
The Union made several requests for information from the
Respondent, seeking information about the interrelationship
between the MRI facilities at the MACC and the Medical Park
locations. The Respondent provided certain information but
failed, according to the complaint, to comply with the requests
dated August 3, 1998, and January 25, 1999.
IV. ANALYSIS
A. The Information Request
The complaint alleges that the Union made several informa-
tion requests, which the Respondent failed to honor (GC Exhs.
10, 11, 25). More specifically, by letters of July 29, and August
3, 1998, and January 25, 1999, the Union requested detailed
information about Southtowns Magnetic Imaging at the
MACC, and Southtowns Catholic MRI, and Mercy Hospital.
The Union sought information about the employees at the fa-
cilities, the type of equipment used, and the interrelationship
between the various entities. As indicated, the General Counsel
has stated in the brief that the Respondent had fully complied
with the Union’s request of July 29, 1998. The record also
shows that the Respondent replied by letter, dated August 14,
1998, relating to the Union’s information request of August 3,
1998 (GC Exh. 12). However, the Respondent refused to an-
swer any questions concerning the MRI operation at the new
MACC facility, and stated that the facility at the MACC is a
separate corporation for which the Respondent does not main-
tain any information (GC Exh. 12).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1290
The Union made another information request on January 25,
1999, stating that it had reason to believe that Southtowns
Catholic MRI is an alter ego of Mercy Hospital or a joint em-
ployer with the Respondent (GC Exh. 25). The letter requested
numerous documents relating to Southtowns Catholic MRI,
such as its articles of incorporation, the number of directors, the
identity of officers, all payroll records, as well as documents
relating to labor costs. The Respondent replied to the Union’s
expansive information request in a letter dated February 5,
1999 (GC Exh. 26). The Respondent stated in substance that
Southtowns Catholic MRI, Inc., is a legal corporate entity,
separate and distinct from Mercy Hospital and that previous
information provided should have been sufficient for the Union
to arrive at the same conclusion. The letter states as follows:

RE: Grievance M–119–98/John Farrell & Lisa Sciumeca

I am in receipt of your request for information regard-
ing the above-referenced dated January 25, 1999. All of
the information that you have requested relates to South-
towns Catholic MRI, Inc. and its operations. As has been
previously expressed to you on numerous occasions,
Southtowns Catholic MRI, Inc. is a separate and distinct
legal corporate entity from Mercy Hospital of Buffalo.
The documents that you request are the property of South-
towns Catholic MRI, Inc. and are not the property of
Mercy Hospital of Buffalo Mercy Hospital. Mercy Hospi-
tal has no authority to provide any of the requested infor-
mation. Therefore, the information that you requested will
not be provided by Mercy Hospital to you.
We have attempted to provide reasonable amounts of
information regarding the relationship between Mercy
Hospital and Southtowns Catholic MRI, Inc. is [sic] an ef-
fort to resolve this issue. It is our belief that the informa-
tion provided to you should be sufficient to determine that
Southtowns Catholic MRI, Inc. is not an alter ego of
Mercy Hospital and/or a joint employer with Mercy Hos-
pital.

The General Counsel supports the Union’s position, arguing
that on the basis of numerous documents from prior informa-
tion requests, the Union was able to form a reasonable basis to
conclude that a single-employer relationship existed. Among
the numerous indicia of such a relationship known by the Un-
ion were the Respondent’s exercise of control over employees
performing duties as Southtowns Catholic MRI facility, the
shared use of certain equipment, certain statements published in
Respondent’s literature which strongly suggests a partnership
between the two entities. For example, a memorandum of July
22, 1998, from Respondent’s director of operations instructed
all nurses and administrative supervisors that MRI/MRA pro-
cedures were to use Southtowns Magnetic Imaging at the
MACC (GC Exh. 3). Moreover, the Respondent permitted the
MACC MRI facility to use its oxygen valve and permitted its
unit employees to provide linen service and garbage service to
the MACC MRI facility; Respondent’s employee Buranich who
had been at the Medical Park facility was seen working at the
new MACC facility; Buranich was subsequently ordered to
perform an MRI procedure at the Medical Park facility; Re-
spondent’s unit employees shared work areas and a break area
with employees of the MACC facility. These and other situa-
tions provided the Union with a reasonable and objective basis
for believing that Mercy Hospital and the MRI facility at
MACC constituted a single-integrated legal entity.
The record supports the position of the General Counsel. An
interrelationship between Mercy Hospital and Southtowns
Catholic MRI was clearly evident. The record shows that
Mercy owns 50 percent of Southtowns Catholic. Both entities
are members of the Catholic Health System. The Union knew
that the Respondent had reassigned MRI technologists to the
MACC MRI facility, that equipment was loaned by Mercy to
the MACC MRI, that several of Respondent’s employees per-
formed essential functions at the MACC MRI.
The issue of a single-employer status or an alter ego relation-
ship is relevant to the Union to determine whether an employer
had complied with the terms of a collective-bargaining agree-
ment and whether the employer had transferred unit employees.
This information is especially relevant because it concerns
bargaining unit employees.
The Union must show that it had a reasonable belief that the
two companies were in legal contemplation a single employer.
Walter N. Yoder & Sons v. NLRB, 754 F.2d 531 (4th Cir. 1985).
The Union has carried the burden of establishing the relevancy
of the requested information particularly considering that the
standard of relevancy is a liberal discovery type standard.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). The Union
had a reasonable basis for believing that the transfer of unit
employees in the Respondent’s MRI Park facility were trans-
ferred to another facility owned or operated by the same Re-
spondent. The Respondent’s position was that the Southtowns
MRI facility at MACC was an independent facility. The Union
needed the information to determine for itself whether the Re-
spondent is correct. Here, as in Pence Construction Corp., 281
NLRB 322 (1986),1 the Union is entitled to the information
requested. I find that the Respondent’s refusal to furnish the
information violated Section 8(a)(1) and (5) of the Act.
B. Other Violations and the Single-Employer Issue
Any considerations of further violations of the Act require a
finding whether or not Mercy and Southtowns Catholic MRI,
Inc., constitute a single employer, as alleged in the complaint.
Its determination depends upon the basic four factors, common
management, interrelationship of operations, centralized control
of labor relations, and common ownership. In Walter N. Yoder
& Sons v. NLRB, 754 F.2d at 535, the court stated that a single
employer or alter ego relationship may be established as fol-
lows:

Relevant facts considered by the courts on the single em-
ployer issue is (a) interrelation of operations, (2) common
management, (3) centralized control of labor relations, and (4)
common ownership. Radio & Television Broadcast Techni-
cians Local Union 1264 v. Broadcast Service of Mobile, Inc.,
380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965);
Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc.,
690 F.2d at 504. The same facts are relevant to the alter ego
question; the court’s inquiry focuses on “whether the two en-

1 Halle Enterprises, 330 NLRB 1157 (2000).
MERCY HOSPITAL OF BUFFALO 1291
terprises have substantially identical Management, business
purpose, operation, equipment, customers, supervision and
ownership.” Carpenters Local Union No. 1846 v. Pratt-
Farnsworth, Inc., 690 F.2d at 507. To establish that the in-
formation was relevant, the union must show that it had a rea-
sonable belief that enough facts existed to give rise to a rea-
sonable belief that the two companies were in legal contem-
plation a single employer.

The parties in this case also cite to the Board’s decision in
Dow Chemical Co., 326 NLRB 23 (1998), where the Board
observed that a single-employer status is often characterized by
an absence of an arm’s-length relationship.
With respect to ownership, the record shows that the Re-
spondent owns 50 percent of Southtowns Catholic. In addition,
Mercy and Southtowns Catholic are members of the Catholic
Health System. Martin Oscadal, vice president for human re-
sources since March 1999 with the Catholic Health System, had
previously held the same position with Mercy Hospital. He
testified that he was responsible for 5 acute hospitals, 2 home
health care agencies, and 13 long-term care facilities, all of
which are entities in the Catholic Health System. Among the
five hospitals are the Respondent, Mercy Hospital, as well as
Our Lady of Victory Hospital, Sisters of Charity Hospital, St.
Joseph’s Hospital, and Kenmore Mercy Hospital. Southtowns
Catholic is owned equally by Mercy Hospital and Our Lady of
Victory Hospital, two of the facilities owned and operated by
the Catholic Health Systems (GC Exh. 43). The record accord-
ingly shows an interrelationship not only between the Respon-
dent and Southtowns Catholic as a result of Respondent’s own-
ership of 50 percent of Southtowns Catholic but also by the 50
percent ownership of Southtowns Catholic by Our Lady of
Victory which, like Mercy Hospital, is part of the Catholic
Health System. Pathology Institute, 320 NLRB 1050, 1058
(1996).
As to common management, the record shows that James
Connolly was president and chief operating officer of both
entities, Mercy and Southtowns Catholic. In early 1999, Con-
nolly was succeeded by John Davanzo at Mercy, but Connolly
remained as president at Southtowns Catholic. John Davanzo
and James Connolly together served on the same board of di-
rectors for Southtowns Catholic (GC Exh. 43). It is clear that
Connolly was the president and chief executive officer of both
entities at the same time. The board of directors for Mercy and
the Our Lady of Mercy Hospital both members of the Catholic
Health System were identical. Mercy and Our Lady of Victory
jointly owned Southtowns Catholic.
With respect to common control of labor relations the record
states that Martin Oscadal, vice president for human resources
with the Catholic Health System, held the same title and posi-
tion at Mercy prior to March 1999. His office was and pres-
ently still is located at Mercy Hospital. Oscadal testified at
length and explained that while he was in charge of the human
resource department at Mercy Hospital from 1993 to March
1999 his responsibilities were as follows (Tr. 328):

When I was Vice-president at Mercy Hospital, I was respon-
sible for all the human resource functions, which would have
been: recruitment, employee labor relations, compensation
benefits. I had employee health and workmen’s compensa-
tion. I had risk management for a period of time. But, in
general, I was responsible for the full human resource func-
tion at Mercy Hospital.

When asked whether his responsibilities included the satel-
lite facilities, Oscadal admitted that he was responsible for the
employees at the Park as well as those at the MACC facilities.
And when he became the human resource official for the
Catholic Health System, he was responsible for all facilities
under the umbrella of the Catholic Health System, including
Mercy Hospital and Southtowns Catholic MRI.
The record also shows an interrelationship between the Re-
spondent and Southtowns Catholic. The Respondent argued
that Southtowns Catholic leased the building at the MACC site
from Southtowns MRI Associates. Under a lease agreement
between Mercy Hospital and Southtowns MRI Associates, the
latter agreed to build a building on Mercy’s property for the
purpose of housing a magnetic resonance imaging center (GC
Exh. 33). This shows a direct relationship between Mercy and
Southtowns Catholic by way of Southtowns MRI Associates.
As a result of the new MRI facility at the MACC, the Respon-
dent was able to close its MRI facility at the Park. By memo-
randum of July 22, 1998, the staff at Mercy Hospital were in-
structed to utilize Southtowns Magnetic Imaging located at the
MACC (GC Exh. 3). And the nurses at a nurse’s meeting were
similarly instructed because “it is within our own system” (GC
Exh. 5). Thereafter, the Respondent discontinued using its Park
facility.
The General Counsel also demonstrated several indicia of in-
terrelated activities between the two companies. For example,
Judith Bondanza, employed by Mercy as a radiologic technolo-
gist, testified that the unit employees of Mercy routinely pro-
vide linen service and garbage service for the MACC MRI
facility.
Counsel for the Respondent argues that Bondanza’s testi-
mony was not reliable, and that Mercy may not have been
aware of the garbage pickup by Mercy’s employees. However,
Bondanza’s testimony was unequivocal and credible. She
clearly stated that part of her daily activities were to stock the
shelves with clean linens and to pick up the dirty linen in blue
linen bags to be taken to the receiving area. In this process
MACC’s blue bag becomes part of Mercy’s linen service. She
also explained that the garbage gathered at the MACC is dis-
posed by the Respondent’s environmental services people in a
big garbage dumpster at the side of MACC’s area. Respon-
dent’s unit employees clearly took responsibility for the gar-
bage at the MACC facility.
John Ferrell, the MRI technologist and former employee at
Mercy testified that as of July 1998, all in-patients from Mercy
were referred to the MACC Center for the MRI procedures,
rather than Mercy’s Park facility. This directive came from Dr.
Turkiewicz. He also requested that the MACC center be fur-
nished with an oxygen valve, a piece of equipment necessary
for the MRI procedure by Mercy from its Park facility. Ferrell
cleared the request from Turkiewicz with his supervisor, Mike
Bailey. The oxygen valve belonging to Mercy was subse-
quently used by the MACC facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1292
The General Counsel also showed that Virginia Buranich
who had been an employee at Respondent’s Medical Park MRI
facility was employed at the MACC MRI facility. According
to Farrell’s testimony she was directed to perform an MRI at
the Medical Park even after she was already assigned to the
MACC location. This was clear evidence of an interchange of
work and employees between the two entities.
Ordinarily, this scenario would clearly show a single-
employer relationship between Southtowns Catholic and Mercy
Hospital. However, the record includes the testimony of Martin
Oscadal. Martin Oscadal currently the vice president of human
resources with the Catholic Health System, and former vice
president of human resources at the Mercy Hospital testified as
follows (Tr. 352):

Q. At that time that that new MRI opened in May of
1998, did Mercy transfer any of its employees to staff that
new MRI at the MACC?
A. No.
Q. Did OLV transfer any of its employees to staff the
new MRI at the MACC?
A. Not to my knowledge, no.
Q. Did Southtowns MRI Associates hire employees to
staff the new MRI at the MACC?
A. No. Southtowns Associates does not have any em-
ployees. It’s primarily a holding company.
Q. Well, who then, provided the staffing to operate the
new MRI at the MACC when it opened in May of “98?
A. As it turns out, the individuals who staffed that
function or that facility are employed by Orchard Park
Medical MRI.
Q. What is Orchard Park Medical MRI?
A. It’s a legal entity that is owned by Abbott Radiol-
ogy, to my knowledge.
Q. And was this the same organization that staffed
Abbott’s old MRI at the MACC?
A. That’s my understanding, yes.
Q. Does Mercy have any ownership interest in Orchard
Park Medical MRI?
A. No.
Q. Does Mercy have any ownership interest in Abbott
Radiology?
A. No.
Q. What kind of staffing did Orchard Park MRI pro-
vide at the new MRI at the MACC?
A. Technical, clerical and some managerial.

Oscadal further testified that Mercy does not have any con-
trol over the employees at the MACC MRI facility. Oscadal
explained the relationship as follows (Tr. 354):

Q. Let me ask this question. Who manages the facility
at the new MRI at the MACC?
A. Dr. Chiantella, who is part of Abbott Radiology.
Q. Does Mercy have any supervisory authority, direc-
tion or control over the employees of Orchard Park Medi-
cal MRI?
A. No.
Southtowns Catholic MRI?
Q. Southtowns Catholic MRI is a separate legal entity,
which is an Article 28 not-for-profit corporation, in which
the MRI actually operates under.
Q. And what was the purpose behind Southtowns
Catholic MRI being formed?
A. Well, it was the Article 28 corporation that would
actually lease the building from Southtowns Associates
and the equipment, and would actually be the billing cor-
poration for MRIs.

When asked whether the creation of Southtowns Catholic af-
fect the management or staffing of the new MRI at the MACC,
Oscadal answered that it did not. Indeed, it was Oscadal’s con-
clusion that Southtowns Catholic had no employees at the
MACC site and that the Respondent continued to operate its
Medical Park facility, albeit at a reduced level (Tr. 356):

Q. And so, at this point, does Abbott Radiology con-
tinue to manage that facility?
A. Yes.
Q. And does Orchard Park MRI provide the staff em-
ployees that staff that facility?
A. Yes.
Q. Are any Southtowns Associates or Southtowns
Catholic employees employed at the new MRI at the
MACC?
A. No. Neither of the entities actually employs any-
one.
Q. After May of “98, did Mercy continue to operate its
MRI at the Medical Park?
A. Yes
Q. And who managed the Medical Park MRI for
Mercy?
A. That would be Mike Bailey, who is responsible for,
who is the supervisor of the satellite imaging functions.

Oscadal’s testimony was not only partial, but inconsistent
with documentary evidence. He was Respondent’s official
whose dealings with the Union involved this controversy.
For example, in his letter of February 5, 1999, to the Union,
Ocadal stated, inter alia (GC Exh. 18): At the present time the
individuals that provide the services [at the MACC] are em-
ployed by Abbott Imaging, LLC. Mercy Hospital has no legal
ownership or interest in Abbott Imaging, LLC. Eventually the
individuals providing that service will be employed by South-
towns Catholic MRI, Inc. (Emphasis added.)
Another document, a newsletter “Bridges” published by the
Catholic Health Systems, states that Mercy Hospital and the
Catholic Health Care Systems “partnered with Abbott Radiol-
ogy” on the MRI project (GC Exh. 9).
An internal memorandum, called “Idea Detail” which rec-
ommended the referral of all MRI’s to the MACC, states: “The
MRI unit at MACC is owned by OLV, Mercy, and Southtown’s
Radiology” (GC Exh. 49).
The equipment lease agreement between Southtowns MRI
Associates, L.L.C. and Orchard Park Medical MRI, P.C. shows
that Orchard Park was the lessor of the MRI equipment owned
by Southtowns MRI Associates, the entity which is affiliated
with Southtowns Catholic (GC Exh. 37). This document is
signed by Dr. Chiantella, who, according to the testimony of
MERCY HOSPITAL OF BUFFALO 1293
Oscadal, administers or manages Abbott Radiology, the owner
of Orchard Park Medical MRI.
A lease agreement, dated March 20, 1998, between South-
towns MRI Associates, L.L.C., and Orchard Park Medical
MRI, P.C. was signed by James W. Connolly on behalf of
Southtowns and Noel M. Chiantella on behalf of Orchard Park
(GC Exh. 38).
Dr. Chiantella also signed a notarized “Continuing Guar-
anty” on behalf of Orchard Park as guarantor for a loan by
Southtowns MRI Associates as the borrower (GC Exh. 42A).
He also signed a similar document in his own name as guaran-
tor for Southtowns’s loan (GC Exh. 42B).
Significantly, in a certificate of Southtowns MRI Associates,
L.L.C., stating that it is in good standing in the State of New
York, Noel M. Chiantella appears as a member of the L.L.C.
Another member and signatory of the document is Mary L.
Turkiewicz who as physician has ordered the MRI’s to be per-
formed at the MACC. James Connolly as president of Mercy
Hospital appears among the signatories.
Medical Management Services, Inc., a billing agent for the
Respondent, billed the Respondent on a monthly basis for MRI
services performed at Southtowns Magnetic Imaging (GC Exh.
36).
These and additional documents in the record show that
Mercy and Southtowns Catholic are closely interrelated and
that Southtowns MRI Associates, Abbott Radiology, and Or-
chard Park Medical MRI are so intertwined with the Respon-
dent by common management, officers, leases, and contractual
arrangements to be virtually indistinguishable from the Re-
spondent. To suggest that Abbott or Orchard Park are distinct
and totally separate from Southtowns Catholic or Mercy Hospi-
tal, as Oscadal’s testimony would suggest, ignores the total
impact of numerous documentary evidence which show just the
opposite, namely that these entities constitute “one ball of wax”
and that Abbott or Orchard Park did not function without the
existence of Southtowns Catholic or Mercy Hospital. Even
though the various entities have distinct names and may have
been incorporated, the names of their officials, such as James
Connolly, past president, and CEO of Mercy, and currently the
chief executive of Southtowns Catholic and Southtowns MRI
Associates, or Noel Chiantella, vice president and officer of
Southtowns MRI Associates and officer of Orchard Park Medi-
cal MRI, shows that these entities are all interrelated so as to be
functionally dependent on each other. Indeed, the entire record
shows that employees and supervisors performed functions
interchangeably from one entity to another as if there were no
separate corporate identity.
Under these circumstances, I find in agreement with the
General Counsel, that the relocation of unit work was unac-
companied by a basic change in the nature of the employer’s
operation. Dubuque Packing Co., 303 NLRB 386 (1991), enfd.
1 F.3d 24 (D.C. Cir. 1993).
In Dubuque, supra at 391, the Board compared the decision
to relocate work to a decision to subcontract discussed in Fi-
breboard Corp. v. NLRB, 379 U.S. 203 (1964), and decided
that any employer’s decision to relocate work becomes a man-
datory subject of bargaining under the following circumstances:

Based on the foregoing considerations, we announce the fol-
lowing test for determining whether the employer’s decision
is a mandatory subject of bargaining. Initially, the burden is
on the General Counsel to establish that the employer’s deci-
sion involved a relocation of unit work unaccompanied by a
basic change in the nature of the employer’s operation. If the
General Counsel successfully carries his burden in this regard,
he will have established prima facie that the employer’s relo-
cation decision is a mandatory subject of bargaining. At this
juncture, the employer may produce evidence rebutting the
prima facie case by establishing that the work performed at
the new location varies significantly from the work performed
at the former plant, establishing that the work performed at
the former plant is to be discontinued entirely and not moved
to the new location, or establishing that the employer’s deci-
sion involves a change in the scope and direction of the enter-
prise. Alternatively, the employer may proffer a defense to
show by a preponderance of the evidence: (1) that labor costs
(direct and/or indirect) were not a factor in the decision or (2)
that even if labor costs were a factor in the decision, the union
could not have offered labor cost concessions that could have
changed the employer’s decision to relocate.

Here, the General Counsel correctly points out that labor
costs were a factor in Respondent’s decision (GC Br. 24):
“Thus, Respondent’s ‘Idea Detail’ analyzes the impact of refer-
ring all MRI’s to the MACC. In that regard, Respondent esti-
mated that there would be personnel savings of $44,634.50 (GC
Exh. 49).” The General Counsel’s reliance on the document
entitled, Idea Detail, raises the question, whether the Union
could have offered labor cost concessions which would have
changed the employer’s decision; for the same document shows
the following analysis on cost savings (GC Exh. 49):

Personnel Cost Savings: 1.00 FTEs
Personnel Cost Savings 44,634.5 $ Thousands
Non-Personnel Cost Savings: 224,600.0 $ Thousands
Additional Savings: 0.0 $ Thousands
269,234.5 $ Thousands
Other Unit Savings: 0.0 $ Thousands
269,234.5 $ Thousands
Net Cost Savings: 269,234.5 $ Thousands

The Board observed in Dubuque, supra at 391:

Under the second prong, an employer would have no bargain-
ing obligation if it showed that, although labor costs were a
consideration in the decision to relocate unit work, it would
not remain at the present plant because, for example, the costs
for modernization of equipment or environmental controls
were greater than any labor cost concessions the union could
offer.

As pointed out by the Respondent, the labor cost savings of
$44,634 compared to non-labor cost savings of $224,600 are
relatively small and insignificant, so that even if the Union had
offered zero labor costs, the other cost factor far outweighed
any labor considerations. Moreover, the record shows that
labor costs were not the motivating factor in Mercy’s decision
to close its MRI at the Park and refer all patients to the MRI at
the MACC. Farrell, testifying for the General Counsel, stated
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1294
that the MRI machine at the Park had a limited capacity and
was unable to perform Magnetic Resonance Angiograms. He
testified as follows (Tr. 30–31):

Q. Did that power level mean there were certain MRI
procedures that could not be done on that particular ma-
chine?
A. Yes.
Q. What type of procedures?
A. The machine was not able to do MRAs, which are
Magnetic Resonance Angiograms.
Q. Is that a—is that the basic procedure that could not
be performed on the machine?
A. There were other exams that as—you know—the
technology developed that the MRI machine at the Park
was not capable of doing.
Q. All right. Were there occasions when—so far as
you know, were there occasions when patients were in
need of MRA. services that could not be performed at the
Park?
A. Oh, yes.

By comparison, the MRI and the MACC was a more ad-
vanced and “state of the art” machine capable of doing MRI as
well as MRA procedures (GC Exh. 10). I accordingly agree
with the Respondent that the record shows that the Union
would not have been able to negotiate labor cost savings to
affect Respondent’s decision to relocate all MRI services to the
new MACC facility. The Respondent was, therefore not obli-
gated to bargain over its decision to close one MRI facility and
relocate unit work to Southtowns MACC facility. I therefore
dismiss this allegation in the complaint. However, the Respon-
dent was not at liberty to ignore its contractual obligations un-
der the collective-bargaining agreement for Southtowns MRI
employees at the MACC location. They are part of the STC
unit of Mercy Hospital and Southtowns Catholic MRI, Inc., as a
single employer.
CONCLUSIONS OF LAW
1. The Respondent, Mercy Hospital of Buffalo is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and a health care institution within
the meaning of Section 2(14) of the Act.
2. Southtowns Catholic MRI, Inc., at the Mercy Ambulatory
Care Center (MACC), and Respondent constitute a single-
integrated business enterprise and a single employer within the
meaning of the Act.
3. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
4. The Union has been the exclusive collective-bargaining
representative of the unit of all technical and business office
clerical employees employed by Respondent at various loca-
tions, as fully described in the complaint.
5. By failing and refusing to apply the collective-bargaining
agreement in effect between the Respondent and the Union to
the unit employees employed at Southtowns Catholic MRI as
MRI technologists and employees performing related MRI
work, the Respondent violated Section 8(a)(1) and (5) of the
Act.
6. By refusing to furnish the Union the information requested
in its letters of August 3, 1998, and January 25, 1999, the Re-
spondent violated Section 8(a)(1) and (5) of the Act.
7. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated the Act, it
must be ordered to cease and desist therefrom and to take af-
firmative action necessary to effectuate the policies of the Act.
Having concluded that the MRI employees assigned to South-
towns Catholic MRA are part of a single integrated enterprise
and a single employer with the Respondent, I recommend that
the Respondent be ordered to apply the collective-bargaining
agreement to the unit employees at Southtowns Catholic MRI
at the MACC and make whole all employees who suffered
financial loss as a result of Respondent’s failure to apply the
bargaining agreement in accordance with Ogle Protective Ser-
vice, 444 F.2d 502 (6th Cir. 1967), with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1978). In
addition, the Respondent must be ordered to make the employ-
ees whole for benefits and contributions under the collective-
bargaining agreement as prescribed in Merryweather Optical
Co., 240 NLRB 1213 (1979); and Kraft Plumbing & Heating,
252 NLRB 891 (1980).
Having further found that the Respondent failed and refused
to furnish information necessary and relevant to the Union’s
performance of its duties as the exclusive collective-bargaining
representative of the unit, the Respondent must be ordered to
furnish the information requested.
On these findings of fact and conclusions of law and upon
the entire record, I issue the following recommended2
ORDER
The Respondent Mercy Hospital of Buffalo, Buffalo, New
York, including Southtowns Catholic MRI, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to apply the existing collective-
bargaining agreement to unit employees employed by the Re-
spondent at Southtowns Catholic MRI as MRI technologists
and to employees performing related MRI work.
(b) Failing and refusing to bargain in good faith with the Un-
ion by withholding requested information relevant to the proc-
essing of grievances or the administration of their collective-
bargaining agreement.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following action necessary to effectuate the poli-
cies of the Act.
(a) Within 14 days of this Order, apply the collective-
bargaining agreement to unit employees employed at South-

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
MERCY HOSPITAL OF BUFFALO 1295
towns Catholic MRI at the MACC as MRI technologists and
employees performing related MRI work and make the em-
ployees whole by paying them backpay and other benefits with
interest as discussed in the Remedy section.
(b) Within 14 days of this Order furnish the Union with the
information requested by its letters of August 3, 1998, and
January 25, 1999.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records, and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its fa-
cilities in Buffalo, New York, copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms provided

3 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since August 3, 1998.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”