Pathology Institute

National Labor Relations Board - Board Decisions

Mar 27, 1996

320 N.L.R.B. 1050 (N.L.R.B. 1996)

1050
320 NLRB No. 128
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In agreement with the judge’s findings, we reject the Respond-
ents’ contention that there is insufficient evidence of centralized con-
trol of labor relations.
2 In their exceptions, the General Counsel and Charging Party con-
tend that, prior to the closing, Respondent PI’s medical laboratory
technologists worked at only one location in addition to the two hos-
pital laboratories. The Respondents contend that Respondent PI em-
ployed medical laboratory technologists at multiple locations other
than the two hospitals. Although the record and the judge’s decision
are not clear on this factual issue, we find it unnecessary to resolve
the dispute because our finding, infra, that the postclosure unit is an
existing nonconforming unit within the meaning of Sec. 103.30 of
the Board’s Rules does not depend on the number of nonacute care
facilities included in the historic unit.
Pathology Institute, Inc.; Alta Bates Medical Cen-
ter; and Alta Bates Corporation and Office &
Professional Employees International Union,
Local 29, AFL–CIO. Cases 32–CA–12599–1 and
32–CA–12927
March 27, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 31, 1994, Administrative Law Judge
William J. Pannier III issued the attached decision. The
Respondents filed exceptions, a supporting brief, and
an answering brief to the General Counsel and the
Charging Party’s exceptions; the General Counsel filed
exceptions and a supporting brief; and the Charging
Party filed exceptions, a supporting brief, and a reply
brief to the Respondents’ answering 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 the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
1. The judge found, inter alia, that the Respondents,
Pathology Institute, Inc. (PI), Alta Bates Medical Cen-
ter (ABMC), and Alta Bates Corporation (ABC), are a
single employer. We agree.1
2. The judge also found that although the Respond-
ents were obligated to honor the terms of the 1991–
1993 collective-bargaining agreement until its expira-
tion date, they did not violate Section 8(a)(5) and (1)
by thereafter refusing to recognize the Union. The
General Counsel and the Charging Party have excepted
to the judge’s failure to find that the Respondents’ ob-
ligation to recognize the Union continued after the ex-
piration of the collective-bargaining agreement. For the
reasons set forth below, we find merit in these excep-
tions.
The facts can be summarized as follows. Since
1986, the Union has represented an employerwide unit
of all medical laboratory technologists employed by
Respondent PI. Successive collective-bargaining agree-
ments were negotiated and executed. The most recent
collective-bargaining agreement between the Union
and Respondent PI was effective from February 1,
1991, through October 31, 1993.
In June 1992, Respondent PI closed. Respondent
ABMC took over Respondent PI’s laboratory oper-
ations but reduced the number of facilities at which
medical laboratory technologists were located to the
two Respondent ABMC hospitals.2 Although the lab-
oratories were staffed with medical laboratory tech-
nologists previously employed by Respondent PI, Re-
spondent ABMC refused to recognize the Union as the
collective-bargaining representative of these employees
and unilaterally implemented terms and conditions of
employment different from those set forth in the con-
tract between the Union and Respondent PI.
The main issue before us is whether the historic bar-
gaining unit continued to be appropriate after the clos-
ing of Respondent PI. The judge found, and we agree,
that under traditional representation principles ‘‘an em-
ployment transfer of represented employees from one
to another of [the] entities [constituting a single em-
ployer] will not, of itself, obliterate a historic unit and
whatever obligations have arisen as a result of its ex-
istence.’’ The judge also found, and again we agree,
that ‘‘[t]his is so even if, as a result of that transfer,
the unit is diminished in scope or composition.’’
The judge reasoned, however, that a deviation from
these principles was warranted here because, after the
closing of Respondent PI, the scope of the bargaining
unit was reduced to only acute care hospital locations.
Thus, the judge found applicable the Board’s Rule on
collective-bargaining units in the health care industry
and pointed out that a unit confined to medical labora-
tory technologists is not one of the eight appropriate
units enumerated in Section 103.30(a) of the Rule. The
judge recognized that the Rule specifically excepts
‘‘existing non-conforming units,’’ but he found that
after June 1992 the unit was ‘‘substantially different’’
from the historic unit and thus was not an ‘‘existing’’
nonconforming unit within the meaning of the Rule.
Consequently, the judge concluded that the post-June
1992 unit was not an appropriate one and could not be
the subject of a bargaining order. We disagree.
We initially note that Section 103.30(a) sets forth
the specific units appropriate ‘‘for petitions filed pur-
suant to Section 9(c)(1)(A)(i) or 9(c)(1)(B) of the . . .
Act.’’ The instant case does not involve such a peti-
tion. Assuming, however, that the Rule is applicable in
unfair labor practice cases, we find, contrary to the
judge, that the unit in issue here is an ‘‘existing non-
conforming unit’’ within the meaning of Section
103.30(a).
1051PATHOLOGY INSTITUTE
3 Kaiser Foundation Hospitals, 312 NLRB 933, 935 (1993).
4 In view of our finding that the Respondents, as a single em-
ployer, violated Sec. 8(a)(5) of the Act by refusing to recognize the
Union after Respondent PI’s closure, we find it unnecessary to pass
on the judge’s finding that no alter ego relationship existed among
the Respondents.
5 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the employer’s
delinquent contributions during the period of the delinquency, the
Respondents will reimburse the employee, but the amount of such
reimbursement will constitute a setoff to the amount the Respondents
otherwise owe the fund.
Specifically, we find that after June 1992, the unit,
although smaller, is essentially the same unit of medi-
cal laboratory technologists that existed prior to clos-
ing the nonacute care facilities. Thus, the medical lab-
oratory technologists continued to be employed by the
remaining entities constituting a single employer, and
the unit remained employerwide in scope. In addition,
all of the medical laboratory technologists employed
after Respondent PI’s closure were employees of Re-
spondent PI prior to its closure. Therefore, we con-
clude that the unit ‘‘existing’’ after the closing of Re-
spondent PI was substantially the same as the unit
‘‘existing’’ prior to the closing.
Moreover, nothing in Section 103.30 suggests that
an employer in the health care industry may cease rec-
ognizing a union as the representative of its employees
in an existing unit merely because of a reduction in the
number of unit employees or because of a closure of
the nonacute care portion of an employer’s facilities.
On the contrary, permitting an employer to withdraw
recognition under such circumstances would be incon-
sistent ‘‘with the design and purpose of our decision
to engage in rulemaking—to further the long-standing
policy of promoting industrial and labor stability.’’3
For these reasons, we find that even if the Rule ap-
plies to unfair labor practice cases, the instant case
falls under the ‘‘existing non-conforming units’’ ex-
ception. Therefore, the appropriate unit issue must be
decided not under the Rule, but under traditional rep-
resentation principles. We agree with the judge’s im-
plicit finding that the post-June 1992 unit is appro-
priate under such principles. Thus, as the judge found,
the unit that remained after the closure of Respondent
PI ‘‘contravenes no statutory policy and works no in-
justice to Respondents.’’ Nor was it a unit ‘‘which to-
tally lacked viability. It was what was left of a historic
unit. It was employer-wide in scope, consisting of all
medical laboratory technologists who remained em-
ployed by Respondents.’’ In sum, the change in the
size of the unit resulting from the Respondents’ reduc-
tion of its laboratory operations did not ‘‘destroy the
continued appropriateness of [the] historic unit.’’ Ac-
cordingly, the Respondents’ refusal to recognize the
Union as the collective-bargaining representative of its
medical laboratory technologists, and their failure to
apply to unit employees the collective-bargaining
agreement between Respondent PI and the Union, vio-
lated Section 8(a)(5) and (1) of the Act.4
CONCLUSIONS OF LAW
By failing and refusing to recognize the Union as
the collective-bargaining representative of the medical
laboratory technologists at Alta Bates Medical Center,
and by failing and refusing to apply to unit employees
their collective-bargaining agreement with the Union,
Respondents Pathology Institute, Inc., Alta Bates Cor-
poration, and Alta Bates Medical Center, a single em-
ployer, violated Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondents are a single em-
ployer which engaged in certain unfair labor practices,
we shall order them to cease and desist and to take
certain affirmative action designed to effectuate the
policies of the Act. The Respondents shall be required
to recognize and, on request, bargain with the Union
as the collective-bargaining representative of all medi-
cal laboratory technologists employed at the Alta Bates
Medical Center campuses. The Respondents shall also
be required to make whole the medical laboratory tech-
nologists for any loss of earnings and other benefits
suffered as a result of the Respondents’ failure to
apply to its unit employees the collective-bargaining
agreement between the Union and Respondent PI, as
prescribed in Ogle Protection Service, 183 NLRB 682
(1970), with interest computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). In addition, the Respondents shall make
whole all benefit funds for all contributions that should
have been made under the collective-bargaining agree-
ment, including any additional amounts due the funds
computed in the manner prescribed in Merryweather
Optical Co., 240 NLRB 1213 (1979), and reimburse
employees for any losses or expenses they may have
incurred because of the Respondents’ failure to make
payments to those funds, in the manner prescribed in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), with
interest prescribed in New Horizons for the Retarded,
supra.5
ORDER
The National Labor Relations Board orders that the
Respondents, Pathology Institute, Inc.; Alta Bates
Medical Center; and Alta Bates Corporation, Berkeley,
California, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Failing and refusing to recognize Office & Pro-
fessional Employees International Union, Local 29,
AFL–CIO as the collective-bargaining representative of
its medical laboratory technologists employed by Alta
Bates Medical Center at its Ashby and Herrick Cam-
puses.
(b) Failing and refusing to apply to unit employees
the collective-bargaining agreement between Pathology
Institute and the Union.
(c) 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) Recognize and, on request, bargain with the
Union as the exclusive representative of the medical
laboratory technologists employed by Alta Bates Medi-
cal Center at its Ashby and Herrick Campuses on
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement.
(b) Make whole all medical laboratory technologists,
and all benefit funds, for any loss of income, contribu-
tions, or benefits, and for any expenses incurred in
connection with those benefit fund losses by those em-
ployees, in the manner set forth in the remedy section
of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination or copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at the Ashby and Herrick Campuses in
Berkeley, California, copies of the attached notice
marked ‘‘Appendix.’’6 Copies of the notice, on forms
provided by the Regional Director for Region 32, after
being signed by the Respondents’ authorized represent-
ative, shall be posted by the Respondents immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
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
violated the National Labor Relations Act and has or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail or refuse to recognize Office &
Professional Employees International Union, Local 29,
AFL–CIO as the exclusive bargaining representative of
all medical laboratory technologists employed by Alta
Bates Medical Center at its Ashby and Herrick Cam-
puses.
WE WILL NOT fail or refuse to apply to unit employ-
ees the collective-bargaining agreement between Pa-
thology Institute, Inc. and the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of our medical
laboratory technologists employed by Alta Bates Medi-
cal Center at its Ashby and Herrick Campuses on
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement.
WE WILL make whole our medical laboratory tech-
nologists, and all benefit funds, for any loss of income,
contributions, or benefits suffered as a result of the
failure to apply to those employees the collective-bar-
gaining agreement between Pathology Institute, Inc.
and the Union, and for any expenses incurred in con-
nection with those benefit fund losses, with interest.
PATHOLOGY INSTITUTE, INC.; ALTA
BATES MEDICAL CENTER; AND ALTA
BATES CORPORATION
Barbara D. Davison, Esq., for the General Counsel.
Bradley W. Kampas, Esq. (Jackson, Lewis, Schnitzler &
Krupman), of San Francisco, California, for Respondent
Pathology Institute, Inc.
1053PATHOLOGY INSTITUTE
1 Unless stated otherwise, all dates occurred in 1992.
2 The motion to correct the official record of the proceedings is
granted.
3 At all material times the Union has been a labor organization
within the meaning of Sec. 2(5) of the Act.
John V. Nordlund and D. Gregory Valenza, Esqs. (Jackson,
Lewis, Schnitzler & Krupman), of San Francisco, Califor-
nia, for Respondents Alta Bates Corporation and Alta
Bates Medical Center.
James E. Eggleston, Esq. (Eggleston, Siegel & LeWitter), of
Oakland, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case on May 10 and 12 through 14, and on No-
vember 8 through 10, 1993, in Oakland, California. On June
22, 1992,1 the original charge in Case 32–CA–12599–1 was
filed and on September 9 a first amended charge was filed
in that case. On January 8, 1993, the charge was filed in
Case 32–CA–12927. On February 26, 1993, the Regional Di-
rector for Region 32 of the National Labor Relations Board
(the Board) issued an order consolidating cases, amended
consolidated complaint and notice of hearing, consolidating
issues arising from those two charges for hearing and deci-
sion, and alleging violations of Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act). All parties have been
afforded full opportunity to appear, to introduce evidence, to
examine and cross-examine witnesses, and to file briefs.
Based on the entire record,2 on the briefs that were filed, and
on my observation of the demeanor of the witnesses, I make
the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The alternative allegations in this case arise from a mid-
June closure of one entity and initiation of only a portion of
its operations by a second entity which is an acute care hos-
pital. The closure occurred during the term of a collective-
bargaining contract between the closed entity and the bar-
gaining agent—Office & Professional Employees Inter-
national Union, Local 29, AFL–CIO (the Union)3—of em-
ployees in the single job classification of medical laboratory
technologist. Because it commenced operating only a portion
of the closed entity’s operations, the hospital hired a reduced
number of medical laboratory technologists. However, all of
them were individuals whom the closed entity had employed
before closing. Nonetheless, the hospital refused to recognize
the Union as the bargaining agent of those employees. That
refusal forms the basis of the General Counsel’s first alter-
native allegation.
As pointed out above, the second entity is an acute care
hospital. For acute care hospitals the Board has listed the
only bargaining units which it regards as appropriate in the
Board’s Rules and Regulations, Series 8, Section 103.30(a)
and (f). A unit confined to medical laboratory technologists
is not one of them. In light of that fact, the General Counsel
disavows specifically any theory of violation predicated upon
successorship principles. Instead, the General Counsel and
the Union focus on the relationship between the closed entity
and the hospital, as well as upon their relationship with a
third entity: a holding company which possesses interests in
each of them. On the basis of that relationship, the General
Counsel and the Union contend that the three of them are so
interrelated that, in fact, they are a single-integrated enter-
prise which constitutes a single employer and, possibly also,
an alter ego. If so, proceeds the General Counsel and
Union’s argument, there had been no actual change in em-
ployer of the technologists who continued working for the
hospital after mid-June. Accordingly, their argument con-
cludes, there had been an obligation to continue recognizing
the Union, as the bargaining agent of those employees, and
to honor the then-existing contract covering those employees.
Failure to do so violated Section 8(a)(5) and (1) of the Act.
The three affected entities take issue with the factual por-
tion of that argument. That is, they do not challenge the prin-
ciple that a bargaining relationship is not extinguished by a
mere nominal employment change of represented employees
from one component to another of a single employer. Nor do
they dispute the proposition that such related entities are
obliged to continue honoring a collective-bargaining contract
to which one was bound before employees begin working for
another. However, they do dispute that the interrelation
among them had been so great that they all constituted mere
separate arms or components of a single-integrated enter-
prise, much less alter egos.
Only if the three entities’ position, that there is no inter-
relation, is concluded to be correct does the second alter-
native allegation come into play. It focuses exclusively on
the closed entity and its bargaining with the Union for a
closing agreement—one that would wind up its obligations
to the Union and the medical laboratory technologists whom
it represented when working for the closed entity. There is
no dispute about the fact that such bargaining commenced
prior to the closure. Nor is it disputed that the bargaining
continued after the closure. In fact, impasse was not reached
until over a month after the closure and resultant termination
of all employees whom the Union had been representing.
During those closing negotiations the closed entity made
certain proposals that, in effect, would relieve other entities
of liability arising from its relationship with the Union. The
General Counsel and the Union argue that such proposals
pertain to a subject not encompassed by Section 8(d) of the
Act and, consequently, are not ones concerning which a party
may bargain lawfully to impasse. Since the closed entity did
so, it is alleged alternatively, bargaining to impasse about
such proposals violated Section 8(a)(5) and (1) of the Act.
That entity argues, however, that the subject of those propos-
als is one that is encompassed by Section 8(d) of the Act
and, even if that is not so, that those proposals did not cause
an impasse, but merely had been part of a proposal rejected
by the Union on the basis of other unrelated subjects that are
indisputably encompassed by Section 8(d) of the Act. Inas-
much as I conclude that there is merit to the General Coun-
sel’s first alternative allegation, I make no finding regarding
this second alternative allegation and will dismiss it.
Under the Act there is a single-employer relationship
whenever ‘‘nominally separate entities are actually part of a
single-integrated enterprise so that, for all purposes . . .
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
there is in fact only a ‘single employer.’’’ (Citation omitted.)
Geo V. Hamilton, Inc., 289 NLRB 1335 fn. 2 (1988). That
is, whenever there is an absence of the ‘‘arm’s length rela-
tionship found among unintegrated companies.’’ Operating
Engineers Local 627 v. NLRB, 518 F.2d 1040, 1045–1046
(D.C. Cir. 1975), affd. on this issue sub nom. South Prairie
Construction Co. v. Operating Engineers Local 627, 425
U.S. 800 (1976). To assess whether or not a single-employer
relationship exists, analysis focuses on four aspects of osten-
sibly separate entities, seeking to ascertain whether there is
interrelationship of their operations, whether there is common
management of them, whether there is centralized control of
their labor relations, and whether there is common ownership
or financial control of them. See Radio & Television Union
Local 1264 v. Broadcast Service of Mobile, 380 U.S. 255,
256–257 (1965); Sakrete, Inc. v. NLRB, 332 F.2d 902, 905
(9th Cir. 1964), cert. denied 379 U.S. 961 (1965).
For the reasons set forth in section II, infra, I reach the
following three conclusions. First, a preponderance of the
evidence, viewed in its entirety, establishes existence of a
sufficient interrelationship among the three entities, in the to-
tality of those four aspects, to conclude that they constituted
a single employing entity and, concomitantly, a single em-
ployer. Second, in view of the unit’s reduced scope follow-
ing the hospital’s employment of medical laboratory tech-
nologists—and employment of them only at its campuses
where, by themselves, they do not constitute one of the bar-
gaining units specified as appropriate by the Board’s Rules—
I conclude that in light of a changed circumstance of that
magnitude, no affirmative bargaining order can issue for a
unit confined to them. Third, inasmuch as the technologists’
employment change occurred during a collective-bargaining
contract’s term, and in light of the fact that continued rep-
resentative status may not be challenged during the term of
a contract, I conclude that failure of the single employer to
continue honoring the contract until its expiration did violate
Section 8(a)(5) and (1) of the Act.
Those conclusions dictate resolution of the two remaining
allegations of the complaint. There is no evidence of a dis-
guised continuance by the hospital of the closed entity’s op-
erations after mid-June. Nor is there evidence that the closure
and limited resumption of laboratory operations by the hos-
pital had been intended to eliminate the Union as the bar-
gaining agent of medical laboratory technologists. Still, even
if there were a basis for concluding that an alter ego relation-
ship were to exist, the postclosure change in the unit’s scope
represents so dramatic a change that the factor of bargaining
history cannot overcome the unit’s lack of continued appro-
priateness, in light of the public policy underlying enumera-
tion of acute care hospital units in the Board’s Rules. There-
fore, I dismiss the alter ego allegation.
The alternative allegation, limited to the closed entity, is
contingent on a conclusion that no single-employer relation-
ship existed. I conclude that it did. Accordingly, the predi-
cate for addressing and resolving the alternative allegation
does not exist and I dismiss it, as well.
B. The Three Entities Respondent and Laboratory
Testing
In the preceding subsection reference is made to a closed
entity, an acute care hospital which took over a portion of
the closed entity’s operations, and a third entity, a holding
company, with interests in the other two entities. To fill in
those blanks, what has been referred to as the closed entity
is Pathology Institute, Inc. (Respondent PI). The acute care
hospital which took over some operations is Alta Bates Med-
ical Center (Respondent ABMC). The third entity is Alta
Bates Corporation (Respondent ABC). If this case’s first al-
ternative allegation could be evaluated solely on the basis of
mid-June events, it would be a simple matter to move on
after briefly describing each of the three entities, as well as
the particular operations involved in this proceeding. How-
ever, some background must be covered to shed light on
their relationship and to put in context certain events that oc-
curred.
Existing at all material times in its current organizational
form has been Respondent ABC. It is, and has been, a Cali-
fornia nonprofit public benefit corporation since 1980 when
its Articles of Incorporation (R.ABC Exhs. 10(i)–(m)) were
filed. To the extent pertinent here, its purposes have been to
further advancement of health care, to coordinate through,
inter alia, ‘‘long-range planning and fund raising’’ the oper-
ations of nonprofit hospital and other related health care or-
ganizations, and to assist community health care organiza-
tions in providing their services. Since at least January, ac-
cording to its amended and restated Articles of Incorporation
(R.ABC Exhs. 10(a)–(c)) filed during that month with the
California secretary of state, its sole member—the term par-
allel in the not-for-profit world to shareholder in the for-prof-
it world—has been ‘‘California Healthcare System, a Califor-
nia nonprofit public benefit corporation.’’
Since 1980 Respondent ABC has held shareholder inter-
ests in a few for-profit entities and membership interests in
a much greater number of not-for-profit entities. In addition
to those essentially holding company activities, Respondent
ABC also sells various support services to the entities in
which it holds, or has held, shareholder or membership inter-
ests.
Like Respondent ABC, Respondent ABMC is a California
nonprofit public benefit corporation. It is not altogether clear
when it had been originally formed and incorporated. How-
ever, what is significant to this proceeding is that during
1992 it had two classes of members: Respondent ABC and,
second, the Alta Bates Community Member. The latter, ac-
cording to article III of Respondent ABMC’s amended and
restated bylaws (R.ABC Exhs. 8(d)–(e)), ‘‘shall have 200 as-
sociates’’ which are ‘‘divided into two (2) groups.’’ One of
those groups—designated ‘‘Professional Associates’’—con-
sists of ‘‘one hundred twenty (120) associates selected by
and from the Active Medical Staff of [Resp[ondent
ABMC].’’ The other—designated ‘‘Trustee Associates’’—is
composed of
eighty (80) associates selected by the Board of Trustees
of [Respondent ABMC] from among the members of
said Board of Trustees and the members of the Boards
of Trustees, Boards of Directors, or any honorary, advi-
sory or consulting boards of this corporation, any Oper-
ating Corporation, or from among the community
served by [Respondent ABMC].
Each of the two members can exercise one vote in member-
ship meetings.
1055PATHOLOGY INSTITUTE
Since the beginning of 1992 Respondent AMBC has oper-
ated two hospitals—the Ashby Campus and the Herrick
Campus—in Berkeley, California. However, it did not always
do so. For almost the entire 20th century prior to 1984 each
campus had been owned and operated separately by competi-
tors: one as Alta Bates Hospital; the other as Herrick Hos-
pital and Health Center. In July 1984 the two hospitals were
affiliated under the holding company Acute Care Affiliates.
It, according to an overview prepared by Respondent PI in
1988 (R.PI Exh. 69), had been ‘‘[e]stablished in 1984 as the
parent of the acute care hospitals in the Alta Bates health
system.’’ Management of the two hospitals continued to be
conducted separately. But, to achieve economies, they began
combining some services previously conducted separately. As
described below, one of those services was clinical labora-
tory testing.
Acute Care Affiliates went out of existence when the two
affiliated hospitals merged effective March 14, 1998.
(R.ABC Exh. 9(a).) That merged entity was known as Alta
Bates-Herrick Hospital (AB-H). Article VI of its Articles of
Incorporation provided that if AB-H were to ‘‘be dissolved
or wound up at any time, then all of the properties, monies
and assets of this corporation shall be transferred exclusively
to and become the property of [Respondent] ABC.’’ That
never happened. But in 1992 AB-H was succeeded as opera-
tor of the two hospital campuses by Respondent ABMC. No
evidence was presented regarding the reason(s) for that
change. The significant point about it, however, is that only
a name change occurred. No modification or alteration of op-
erations of those two campuses resulted from it.
Before focusing on Respondent PI it must be understood
that medical laboratory technologists perform laboratory test-
ing. That is the work involved in this proceeding. To the ex-
tent significant here, it consists of essentially two types. One
is clinical testing. It involves relatively routine work that can
be performed in the ordinary course, and had been performed
prior to 1986, by personnel in acute care hospitals. Clinical
testing encompasses work that must be performed imme-
diately—STAT—in rapid response fashion and, as well,
other types of clinical testing that do not require such imme-
diacy of results. A second type of testing is called reference
testing. It is more complex. Given that complexity and the
infrequency of specific tests, hospitals and physicians’ offices
do not ordinarily spend the money to acquire equipment
needed for the many types of complex testing that can be
conducted. Rather, they usually dispatch—‘‘refer’’—speci-
mens for testing to laboratories which can justify purchasing
the necessary equipment because they receive specimens
from a multiplicity of sources.
Prior to their above-described July 1984 affiliation, Alta
Bates Hospital and, as well, Herrick Hospital and Health
Center each operated its own clinical laboratory. In addition,
there was a reference laboratory maintained in Berkeley by
Pathology Institute. It was an entity distinct from Respondent
PI and was controlled and operated by the entity Alta Bates
Ambulatory Health Service (ABAHS). ABAHS was a cor-
poration established as a separate division of Respondent
ABC to provide ambulatory services. One of those services
was the laboratory testing offered through Pathology Insti-
tute.
As described above, after the two hospitals affiliated in
July 1984, they had commenced combining services to
achieve economics. One area to which they looked had been
their then-separately operated clinical laboratories. By the
end of 1985 a decision had been reached to consolidate not
only their own two laboratories, but also the reference lab-
oratory then being operated through ABAHS by Pathology
Institute. Ultimately that occurred during the spring of 1986
when Respondent PI was formed by amending articles of in-
corporation of Lazaroni Laboratories (R.PI Exh. 2), an entity
acquired by ABAHS in 1982 which operated laboratories
that were merged into Pathology Institute in May or June
1985. (G.C. Exh. 157.) Thereafter, until mid-June, Respond-
ent PI performed all clinical and much of the reference lab-
oratory testing for the two hospital campuses.
From inception Respondent PI had been a for-profit entity.
Initially, its shares were held by Respondent ABC (50 per-
cent), Alta Bates Hospital (35 percent) and Herrick Hospital
and Health Center (15 percent). Over time that changed, with
the result that by mid-June Respondent ABC and Respondent
ABMC each held 48 percent of Respondent PI’s shares. The
remaining four percent had been acquired by Heals Individ-
ual Practice Association, an entity unrelated to the Respond-
ents. When Respondent PI closed in mid-June Heals was
cashed out, leaving Respondents ABC and ABMC each hold-
ing half of Respondent PI’s total shares.
As set forth in the minutes of a special joint meeting of
the executive committees of Respondent ABC and Respond-
ent ABMC on April 16 (G.C. Exh. 49, p. 2), Respondent
ABC’s ‘‘reason for being in the laboratory business [was] to
reduce the cost of laboratory services for [Respondent]
ABMC [and the preceding hospital operators] and increase
the service to physicians.’’ Toward that end, Respondent PI
conducted rapid response clinical testing at the STAT or
rapid response laboratories in what had become known as the
Ashby and Herrick hospital campuses of AB-H. All other
clinical testing, as well as reference testing, was performed
for the two campuses at Respondent PI’s main laboratory in
Berkeley at 2920 Telegraph Avenue.
In addition, it was intended that Respondent PI would at-
tempt to generate revenues by selling testing services to
other health care institutions, health maintenance organiza-
tions, and physicians. By April 1992 it had acquired approxi-
mately 800 physician clients and was providing reference
testing to over 40 hospitals. Furthermore, it had opened draw
stations or satellite laboratories in a number of locations out-
side of Berkeley. But it was a financial failure and it closed
in mid-June.
Two final subjects are most logically covered in this sub-
section. First, the answers in this proceeding disputed the
complaint’s jurisdictional allegations. But Respondents’
briefs disclose that there is no dispute that each of the Re-
spondents are employers engaged in commerce and in busi-
nesses affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. The problem arose from the fact
that the complaint pled the jurisdictional conclusion on the
basis of all Respondents as a single employer, rather than
separately. Inasmuch as they denied single-employer status,
each Respondent denied that conclusion.
They admitted, however, that during the 12-month period
preceding issuance of the complaint, Respondent ABMC de-
rived gross revenues in excess of $250,000 and, further, pur-
chased and received goods valued in excess of $5000 which
originated outside the State of California. They also admitted
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that during calendar year 1992 Respondent PI provided serv-
ices valued in excess of $50,000 directly to Respondent
ABMC. No description was afforded in the complaint of Re-
spondent ABC’s dollar amounts that would serve to show ei-
ther legal or discretionary jurisdiction over it. But since I
conclude that the evidence is sufficient to establish that Re-
spondents had been a single employer during the period pre-
ceding issuance of the complaint, I conclude that, based on
the jurisdiction pled and admitted with regard to Respondents
ABMC and PI, there is a basis for concluding that at all ma-
terial times Respondents had been a single-integrated enter-
prise engaged in commerce and in businesses affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
Second, throughout the period encompassed by the above-
described evolution of entities, the Union had been the bar-
gaining agent of medical laboratory technologists employed
in each of the two hospitals and, in a separate unit, by Pa-
thology Institute. After the 1986 laboratory consolidation the
Union continued as their bargaining agent in a single,
employerwide unit of all medical laboratory technologists
employed by Respondent PI. Successive collective-bargaining
contracts were negotiated and executed. The most recent
one—and the one in effect at the time of Respondent PI’s
closure—had a stated effective term of February 1, 1991, to
October 31, 1993. Article I described the bargaining unit as
‘‘all Medical Laboratory Technologists employed by the Em-
ployer.’’ It specifically excluded from the unit the classifica-
tions of ‘‘phlebotomists, laboratory aides, laboratory assist-
ants, blood gas technicians, histology technicians,
histologists, cytology technologists, dieners, office clerical
employees, managerial employees, other professional em-
ployees, confidential employees, guards and supervisors as
defined by the [Act].’’
C. Closure of Respondent PI
Unrealized went Respondent ABC’s 1986 expectations that
Respondent PI would become a profitable entity. It never
earned a profit. It went into debt. Furthermore, it never was
able to provide clinical testing to AB-H and, then, to Re-
spondent ABMC at rates lower than the hospitals could per-
form by employing their own personnel to conduct that test-
ing. As a result, Respondent PI was abandoned by Respond-
ents ABC and ABMC.
Paul Sohmer had served as Respondent PI’s chief execu-
tive officer and president from May 1986 until February
1991, when he resigned from those two positions. Inability
to locate a satisfactory person to replace Sohmer led Robert
L. Montgomery, Respondent ABC’s chief executive officer
and president, to ask Robert Reed, Respondent ABC’s chief
financial officer, to serve as acting chief executive officer
and interim president of Respondent PI. As Respondent
ABC’s chief financial officer Reed is responsible ‘‘for the
strategic, financial and capital planning of the Alta Bates sys-
tem,’’ he testified.
Reed began serving as Respondent PI’s acting chief execu-
tive officer and interim president in April 1991. His service
in those capacities had been intended to be merely a tem-
porary arrangement until a permanent chief executive officer
and president could be located. There is evidence of an on-
going effort to do so. Nonetheless, apparently Respondent
PI’s precarious financial situation dissuaded anyone who
might be considered qualified from applying. As a result,
Reed continued to serve as Respondent PI’s acting chief ex-
ecutive officer and interim president until its closure and,
also, he has continued to serve as Respondent ABC’s chief
financial officer, as well.
Prices for testing provided by Respondent PI to AB-H
were negotiated annually. AB-H never refused to continue
having its laboratory testing performed by Respondent PI.
However, there were ongoing expressions by AB-H’s offi-
cials that they believed it was paying more than it should for
that service; that it could perform at a lower cost at least
clinical testing with its own employees. As Reed explained,
‘‘There were considerable disputes,’’ and ‘‘the basis of the
price was renegotiated on several occasions trying to accom-
modate the difference in opinion, if you will, of what was
a fair price for the services being rendered.’’
During May 1990 Albert Greene succeeded Paul Hofmann
as chief executive officer and president of AB-H. In the
course of reviewing that entity’s cost structure he discovered
that AB-H was being charged by Respondent PI more than
the price that Greene regarded as appropriate for acute care
hospitals. He discussed his opinion with Sohmer and, ulti-
mately, retained an independent agency—World-Wide Health
Care Consulting—to evaluate the cost to AB-H of Respond-
ent PI’s laboratory testing services.
Its survey concluded, to the extent pertinent, that AB-H
was incurring a higher testing cost than it would incur if it
conducted its own clinical testing. (R.ABC Exhs. 38(c), (e)–
(o).) By the time World-Wide’s written survey had been sub-
mitted, Sohmer had been replaced by Reed. The latter dis-
puted the survey’s conclusions, challenging aspects of the
premises underlying them. Nevertheless, in the course of pro-
posing a price negotiation during July of 1991, Reed pointed
out in a memo to AB-H that, ‘‘In the next several weeks,
we will present a proposal to transfer ownership of AB-H’s
lab to AB-H and have [Respondent] PI provide management
and reference services.’’ (G.C. Exhs. 24(g) and (h).)
The consequences of that summer negotiation did not
solve Respondent PI’s financial difficulties. During 1991 it
lost $1,425,000. By the end of that year it was seeking an
additional testing charge of $800,000 in 1992 from what
would become Respondent ABMC. Upon learning of that
proposed increase Greene objected strenuously. During a
meeting with him in December 1991, Reed agreed to another
survey—this time conducted by Arthur Anderson & Co.,
which also served as auditor for all three Respondents—in
return for Green’s agreement to an interim increase amount-
ing to $100,000.
That interim agreement did not resolve Respondent PI’s fi-
nancial difficulties. As Reed explained, ‘‘based on the fact
that the major customer being [Respondent ABMC] wouldn’t
agree to the pricing structure put forth a revised budget. But
unfortunately the revised budget called for a loss,’’ taking
into account the $100,000 increase, in the amount of
$447,000 for 1992. As it turned out, an amount of even that
magnitude proved optimistic. For Respondent PI incurred a
loss in excess of that amount during just the first calendar
quarter of that year. Nor was Respondent PI helped by the
costing study of Arthur Anderson & Co. (G.C. Exh. 13.) It
concluded that Respondent ABMC ‘‘could operate the lab-
oratory at a lower cost than that charged by [Respondent
PI].’’ Yet, it also was observed in the study that Respondent
1057PATHOLOGY INSTITUTE
‘‘ABMC’s laboratory costs at [Respondent] PI’s current
charge are not unreasonable when compared to other hos-
pitals’ laboratory costs.’’
Respondent PI’s demise was sealed by the costing study’s
results and by the magnitude of its 1992 first quarter loss.
Not only was Greene unwilling to agree to any further price
increases, but he demanded that Respondent PI either lower
its price or Respondent ABMC would have ‘‘no choice but
to either perform the laboratory services itself or to find an-
other third party to conduct and manage laboratory oper-
ations for [it].’’ This left Respondent PI in the position of,
as Reed characterized it, ‘‘total meltdown.’’ For, explained
Reed, other hospitals might question why they should con-
tinue purchasing testing from Respondent PI when a major
shareholder was no longer willing to do so. Respondent ABC
and Respondent ABMC did not view the situation dif-
ferently.
At a special joint meeting conducted on April 16 their ex-
ecutive committees reviewed the reason for Respondent
ABC’s involvement in laboratory business. During a discus-
sion of that subject, according to that meeting’s minutes
(G.C. Exh. 49), it was pointed out that Respondent ‘‘PI and
its drawing stations were founded to provide the level of
services expected by the Alta Bates medical staff.’’ A rep-
resentative of Arthur Anderson & Co. observed during that
meeting that if Respondent ABMC were to begin operating
the clinical laboratory, Respondent ‘‘ABMC and [Respond-
ent] ABC would not be required to further subsidize [Re-
spondent] PI operations at the current rate of $1.5 million to
$2.0 million per year.’’ In consequence, voting separately,
each executive committee resolved to
request that the Board of Directors of [Respondent PI]
take all action necessary to protect the interests and
rights of the shareholders of [Respondent PI], to maxi-
mize the value of all shareholders’ investments, and to
that end to consider all options for [Respondent PI] that
are inherently fair to the shareholders of [Respondent
PI] and will serve the best interests of [Respondent PI]
and its shareholders.
Yet, the seemingly broad latitude accorded Respondent PI by
the general wording of those identical resolutions was, in re-
ality, not an accurate reflection of the actual decision made
that day by the two executive committees.
Greene testified at two points during the hearing concern-
ing the April 16 special joint meeting. On the second occa-
sion, when appearing as a witness for Respondents ABC and
ABMC, he testified that sale of Respondent PI had been only
one of the options discussed at the special joint meeting.
Still, testifying earlier about that meeting, when called as a
witness by the General Counsel, Greene was asked the fol-
lowing questions and responded as follows:
Q. Mr. Eggleston: Now, was there a discussion of
the sale of [Respondent PI] at this meeting:
A. Dr. Greene: Yes.
Q. Mr. Eggleston: And what was the conclusion with
respect to the sale?
A. Dr. Greene: That [Respondent PI] should be sold.
That a firm sale decision, in fact, had been reached at the
special joint meeting tends to be further confirmed by the
speed with which Respondent PI made its decision to sell out
and close. That decision was made at a meeting of its board
of directors on April 22, a mere 6 days after the special joint
meeting. The minutes of that meeting (G.C. Exh. 14) disclose
that Respondent PI’s board concluded that ‘‘it must expedi-
tiously pursue a sale of assets and/or sale of stock and poten-
tial, liquidation and dissolution of [Respondent] PI,’’ and that
it resolved to, inter alia, ‘‘Expeditiously commence the proc-
ess of sale of [Respondent] PI on terms and conditions that
are inherently fair to the shareholders of [Respondent] PI and
will serve the best interests of [Respondent] PI and its
shareholders[.]’’ Respondent PI’s management was directed
to select a broker to prepare a Request for Proposal (RFP)
to analyze the responses received to it from prospective buy-
ers, and to appoint a special committee to select a buyer and
to negotiate favorable terms with it for sale.
An RFP (G.C. Exh. 20) was prepared and disseminated. It
specified that submissions should be made ‘‘by no later than
2 p.m., PDT, May 13, 1992.’’ It excluded from sale, ‘‘The
management contract with [Respondent] ABMC and two pa-
tient service centers located within [its] two hospital cam-
puses.’’ As to them, by letter to Reed from Greene dated
April 28 (G.C. Exh. 122), Respondent ABMJC gave notice
‘‘of its intent to terminate the management contract between
[Respondent] ABMC and [Respondent] PI effective on or
about June 26,’’ and, further, that Respondent ABMC was
evaluating ‘‘independently provid[ing] clinical laboratory
services for its inpatients and outpatients.’’ In light of that
evaluation, the letter continues, Respondent PI was requested
to ‘‘immediately enter negotiations . . . for [Respondent]
ABMC’s purchase of the fixed assets presently owned by
[Respondent] PI that are present and in use at both of [Re-
spondent] ABMC’s hospital locations and in-house drawing
stations,’’ and, moreover, that Respondent ‘‘ABMC would be
taking back its leased space within [Respondent] ABMC
where [Respondent] PI presently conducts management serv-
ices for the hospital, and would expect [Respondent] PI to
vacate same on or about June 26, 1992.’’
Meris Laboratories, Inc. was the bidder selected for pur-
chase of the non-Respondent ABMC-related assets of Re-
spondent PI. There is no contention that Meris engaged in
any unfair labor practice, nor that it had been involved in
any supposed single-employer relationship with any of Re-
spondents. It is interesting, however, that notwithstanding the
May 13 deadline specified in the RFP for submissions, the
asset purchase agreement (G.C. Exh. 150) between Meris and
Respondent PI is ‘‘dated as of May 11, 1992[.]’’
As to the portion of Respondent PI’s business excluded
from the RFP, Reed and Greene entered into an Asset Pur-
chase Agreement (G.C. Exh. 151), ‘‘made on June 20,
1992,’’ which conveyed those assets to Respondent ABMC.
The agreement provided for closing on June 22. There is no
contention that Respondent PI had not been paid fair market
value for the assets sold under that agreement. In fact, their
value had been appraised and set by an independent third
source.
As it turned out the closing dates for the asset purchase
agreements were advanced and Respondent PI closed a few
days earlier than anticipated originally. But the evidence is
not consistent as to the precise date on which Respondent PI
actually ceased operating. Respondent ABMC notified the
Alta Bates Medical Staff by memorandum (G.C. Exh. 135)
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dated June 19 that ‘‘the process by which [Respondent]
ABMC assumes responsibility for the hospital lab and Meris
assumes responsibility for outpatient testing is being acceler-
ated and will begin on June 22nd.’’ Still, by facsimile (G.C.
Exh. 137) dated June 19 Respondent ABMC notified the
Union ‘‘that, as of this date, [Respondent PI] no longer has
a presence on [Respondent ABMC]’s premises. Effective
today, [Respondent ABMC] has taken over operations of the
laboratory.’’
Whatever the exact closing date of Respondent PI, how-
ever, it did cease all operations and, thereafter, continued in
existence only as a shell for winding down all consequences
from its closure. Heals Individual Practice Association’s 4-
percent ownership interest was cashed out, leaving Respond-
ents ABC and ABMC each 50-percent shareholders in Re-
spondent PI. Respondent ABMC commenced conducting
clinical laboratory operations at its two hospital campuses. It
did so by hiring some of the medical laboratory technologists
employed previously by Respondent PI. In fact, there is no
evidence that any of those initially hired technologists had
been employed previously by anyone or by any entity other
than by Respondent PI.
D. Negotiations Arising From the Closure
As set forth in subsection A, supra, the alternative allega-
tion pertaining exclusively to Respondent PI’s closure nego-
tiations will be dismissed. Accordingly, it is unnecessary to
describe those negotiations which resulted in impasse at the
end of July, over a month after Respondent PI closed. How-
ever, in connection with my third primary conclusion set
forth in that same subsection, it is necessary to briefly de-
scribe the negotiations that occurred between the Union and
Respondent ABMC.
After the Union learned of the closure it set out to nego-
tiate an agreement for medical laboratory technologists who
would be employed at the hospital campuses. Although it
took the position that so confined a unit is not appropriate,
Respondent ABMC was willing to enter negotiations con-
cerning those employees to ascertain if acceptable terms for
a contract could be reached. In fact, prior to the closure, ten-
tative agreement was reached. But the employees declined to
ratify it, leaving the parties with no agreement. Thereafter,
Respondent ABMC instituted its own employment terms for
those employees and refused to recognize the Union as their
bargaining agent.
The General Counsel raises no objection to the mechanics
and procedures of those negotiations. Instead, relying on the
16-1/2 months then still remaining on the 1991–1993 collec-
tive-bargaining contract, the General Counsel alleges that
there had been a failure and refusal ‘‘to apply [that contract]
to [medical laboratory technologists] working at the [Re-
spondent] ABMC Laboratory.’’
There is no evidence that the postclosure status of the
then-existing contract had been discussed during the May and
June negotiations concerning those employees. Obviously,
the parties merely assumed that any successfully negotiated
contract would supplant the existing one. Nevertheless, there
is no evidence that the Union ever stated that it was aban-
doning that contract and its terms. To the contrary, among
the allegations of the amended charge in Case 32–CA–
12599–1—filed on September 9, slightly less than 3 months
after the closure—was one asserting that Respondents ABC
and ABMC ‘‘have refused to honor and comply with the
terms of the existing Collective Bargaining Agreement be-
tween Local 29 and the employer.’’
II. DISCUSSION
The issue of single-employer relationship is a mixed one
of mostly fact and some law. There is no dispute concerning
most of the facts underlying that issue in this case. Accord-
ingly, rather than bifurcate consideration of it—reciting the
facts in one section and, then, summarily repeating them
elsewhere as part of analysis—the better approach would ap-
pear to be simply to recite how particular undisputed facts
support conclusions that I reach in each of the four aspects
of single-employer analysis enumerated in subsection I,A,
supra.
A. Common Ownership or Financial Control
It is argued that this aspect of single-employer analysis is
inapplicable to nonprofit entities because they have no literal
owners. But that is not a convincing argument. It is accurate
that there are no owners of Respondents ABC and ABMC.
Instead, they are operated by ‘‘members.’’ Still, that term is
the parallel one in the nonprofit area for the term ‘‘share-
holder’’ in the for-profit area. Single employer analysis de-
veloped in an era before the Board’s jurisdiction expanded
to embrace health care institutions and, in all instances, non-
profit enterprises. Consequently, use of the term ‘‘owner’’
was never intended in that analysis to preclude comparisons
involving persons or entities operating nonprofit entities.
Rather, it appropriately is applied to whomever controls the
operational and financial destiny of an entity or entities being
scrutinized.
There are two members of Respondent ABMC, as de-
scribed in subsection I,B, supra. Respondent ABC is one of
them. Since each member can exercise but one vote, at first
blush it might appear that it cannot truly be said that Re-
spondent ABC is able to exercise control over Respondent
ABMC. To some extent, as a literal matter, that is true of
any less than 51-percent member or shareholder. Yet, the fact
is that one need not own a 51-percent interest in an entity
to control it in reality. So, too, here. Because each of Re-
spondent ABMC’s members has a single vote, both must
agree for it to proceed with any action requiring a decision
by its members. That is, like a vehicle drawn by a team of
two horses, both must pull in the same direction and at the
same pace for the vehicle to proceed. In consequence, each
horse does control the vehicle’s direction and pace. If one re-
fuses to cooperate with its mate, it can effectively prevent
the vehicle from proceeding. That is the fact with Respond-
ent ABMC, as well. So long as Respondent ABC declines
to vote as does the Alta Bates Community Member it can
preclude action by Respondent ABMC. In that manner, Re-
spondent ABC exercises control in a negative fashion. Fur-
ther, in the circumstances presented here, Respondent ABC
alone can, in fact, exercise significant, though limited, af-
firmative control over Respondent ABMC.
As described in subsection C, infra, Respondent ABC pos-
sesses a number of reserved powers over Respondent ABMC
that can be exercised solely at the former’s discretion—with-
out regard to the position of the community member. Fur-
ther, among other powers reserved to Respondent ABC by
1059PATHOLOGY INSTITUTE
the amended and restated bylaws of Respondent ABMC is
sole ‘‘authority to initiate policy for [Respondent ABMC]
where such policy involves coordination of the activities of
[Respondent ABMC] with . . . (a) any other corporation of
which [Respondent] ABC is also the corporate member.’’
(R.ABC Exhs. 8(mm)–(nn).) Moreover, under article VI of
the Articles of Incorporation of AB-H—the entity supplanted
by Respondent ABMC through no more than a name change
which, according to Respondents’ witnesses, caused no sub-
stantive change in the underlying entity—‘‘In the event [Re-
spondent ABMC] shall be dissolved or wound up at any
time, then all of the properties, monies and assets of [Re-
spondent ABMC] shall be transferred exclusively to and be-
come the property of’’ Respondent ABC. (R.ABC Exhs.
9(d)–(e).) Given the foregoing facts, while Respondent ABC
could possess greater financial interest in and control over
Respondent ABMC, it does possess substantial control over
it and its operations.
Of course, Respondents ABC and ABMC have been vir-
tually the sole shareholders of Respondent PI throughout its
existence. The 4 percent of its shares held by Heals until
mid-June is a relatively insignificant amount. Moreover,
there is no evidence that Heals ever participated in, or was
even consulted concerning, operations of Respondent PI. As
described in subsection I,B, supra, one purpose for Respond-
ent PI’s formation had been to facilitate hospital operations
of AB-H. Further, the closure decision made at the April 16
special joint meeting took place without, so far as the record
discloses, any participation of Heals or input from it. There-
fore, in reality, Respondents ABC and ABMC possess own-
ership of Respondent PI to the same degree as does any par-
ent over its wholly owned subsidiary.
B. Interrelationship of Operations
A number of factors demonstrate existence of interrelation-
ship of operations among Respondents. First, as to their over-
all purpose, one of the ‘‘specific and primary purpose[s]’’ of
Respondent ABMC—and of AB-H before it—is ‘‘[t]o estab-
lish, equip and maintain one or more nonprofit hospitals.’’
(R.ABC Exh. 9(b).) That purpose was, and is, accomplished
at the Ashby and Herrick campuses. Among Respondent
ABC’s ‘‘specific and primary purposes’’ are coordination of
‘‘activities of an operating nonprofit hospital or hospitals and
other related organizations engaged in health care activities’’
and, also, ‘‘to otherwise assist such organizations in the per-
formance of their activities.’’ (R.ABC Exh. 10(a).) Those
purposes are accomplished to a significant degree through
Respondent ABC’s relationship with Respondent ABMC and
the hospital campuses operated by it.
Clinical and reference laboratory testing is necessary to
conduct hospital operations. After its formation, Respondent
PI had begun operating rapid response laboratories in Alta
Bates Hospital and in Herrick Hospital and Health Center.
Those were operations previously conducted by personnel of
those two hospitals. Although Respondent PI had acquired an
extensive clientele by 1992, Respondent ABMC remained its
primary client—as Reed characterized it, ‘‘the principal cus-
tomer’’—generating approximately 40 percent of Respondent
PI’s revenue. By comparison, it was estimated that the next
largest customer had been generating only approximately 12
percent of Respondent PI’s revenues. Indeed, so crucial was
Respondent ABMC’s business to Respondent PI that the lat-
ter was left with no alternative but to close after Respondents
ABC and ABMC decided to discontinue the latter’s labora-
tory testing business with Respondent PI.
Second, Respondent ABC provided two classes of services
to Respondents ABMC and PI. As Robert Montgomery, Re-
spondent ABC’s chief executive officer and president, ex-
plained, ‘‘[W]e have core services and, then, we have pur-
chase services.’’ Since 1988 the latter category embraced li-
ability insurance, purchasing, auditor selection and fee nego-
tiation, some employee benefit purchasing, and ‘‘cash fore-
casting and cash management.’’ (R.ABC Exh. 11(e).) Re-
spondent ABC’s affiliates are free to purchase them or not
to do so. In fact, Respondents ABMC and PI chose to do
so. That they availed themselves of those services from Re-
spondent ABC is some evidence of interrelationship of oper-
ations.
That both purchasing Respondents could have opted not to
buy Respondent ABC’s purchase services is not a significant
consideration. For, it is the existence of interrelated oper-
ations, not a compulsion to be interrelated, that is the mate-
rial consideration. Consequently, the fact that Respondents
ABMC and PI obtained those services from Respondent
ABC, rather than to obtain them elsewhere or to employ
their own personnel to provide them, is the significant con-
sideration.
Beyond that, there was no element of discretion concern-
ing the ‘‘core services.’’ Montgomery described them as ‘‘a
basic service, just, generally, for all kinds of support serv-
ices.’’ Reed, Respondent ABC’s chief financial officer—and,
as well, the acting chief executive officer and interim presi-
dent for Respondent PI for over a year before its closure—
described core services as ‘‘generally, strategic planning
that’s provided by’’ Respondent ABC, for a fee based upon
‘‘the sum total of all salaries for officers of [Respondent
ABC] . . . passed, as what we called overhead before, to
each of the affiliates through a calculation which becomes
the core fee.’’ Affiliates, such as Respondents ABMC and
PI, have no choice about paying the fees assessed by Re-
spondent ABC for core services provided by the latter. As
Reed acknowledged, that fee, which is based on each affili-
ate’s size and capital, is ‘‘not a fee-for-service type arrange-
ment.’’
Third, the perhaps most significant purchase service in-
volves the sale of financial services. Respondent ABC has
established a cash pool fund which witnesses analogized to
a mutual fund. For one aspect of the cash pool that analogy
is apt. Excess revenues of participating affiliates are pooled
and, then, invested in financial instruments of governmental
and nonprofit entities, thereby achieving from pooling better
investments at a lower cost. Both Respondent ABMC and
Respondent PI participated and, to that extent, engaged in a
common endeavor with Respondent ABC, as well as with
each other.
The pool also provides an added advantage to those two
affiliates of Respondent ABC. In a file memorandum (G.C.
Exh. 80) prepared by Respondent ABC’s assistant treasurer,
Keith Ian Dickinson, who manages the cash pool, the pool’s
operation is described. While dated December 18 there is no
evidence that it did not accurately portray how the pool had
been operating at all times during its existence. In fact, Dick-
inson agreed that the memorandum correctly summarizes or
explains how the cash pool works. It recites that there are
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
three ‘‘Components and Uses of the Pooled Funds’’: (1) set-
ting aside a ‘‘balance equal to one payroll, including taxes
. . . for working capital needs’’; (2) ‘‘[p]ooled funds are
available for short-term intercompany loans’’; and, (3) ‘‘[t]he
remaining balance is set aside for capital projects as ap-
proved through the budgeting process by the Board of Trust-
ees.’’
As to that third item, Dickinson testified ‘‘the Board of
Trustees’’ mentioned in it ‘‘refers to the funded depreciation
account that is established by the Board of Trustees of [Re-
spondent ABMC] for purchases of capital equipment.’’ Thus,
while the cash pool was established and is operated by Re-
spondent ABC, Respondent ABMC plays a primary role in
operation of a significant aspect of it: disposition of some of
its funds. Further, Dickinson agreed that ‘‘this restricted de-
preciation account is limited to’’ Respondent ABMC. Other
cash pool participants, who can only be affiliates of Re-
spondent ABC, do not enjoy access to the restricted depre-
ciation account for use on their own capital projects. Accord-
ingly, although Respondent ABMC’s participation in the pool
may be literally discretionary, given its exclusive access to
those funds, as well as complete discretion which its board
of trustees possesses to determine their use, Respondent
ABMC would have every reason to participate, and to con-
tinue participating, in the arrangement established and main-
tained by Respondent ABC.
That is no less true of Respondent PI, though for a dif-
ferent reason. As described in subsection I,C, supra, it had
never been a financial success. The cash pool had provided
a mechanism through which it could secure loans from the
pool, as described in item two of Dickinson’s memorandum.
In practice, originally affiliates were allowed to overdraw
their pool accounts, thereby obtaining, in effect, short-term
loans from other affiliate pool members. Respondent ABC
eventually put an end to that practice by disallowing it.
Thereafter, however, pool officials aided pool members in
obtaining loans from banks and other affiliates whenever
cash shortages arose. As a result, pool participation contin-
ued to aid affiliates in financial straits.
As it turned out, that assistance benefited only Respondent
PI. Dickinson testified that it had been the only affiliate en-
countering cash difficulties. Indeed, by at least 1990 Re-
spondent PI’s financial situation was so precarious that it
could no longer attract bank loans. Its ability to secure bor-
rowed funds had become dependent solely upon the willing-
ness of Respondent ABC and its other affiliates to extend
loans to Respondent PI through the cash pool’s auspices. Ac-
cordingly, although it was not obliged to remain a pool
member, as a practical matter Respondent PI’s ongoing need
for borrowed funds bound it to continued participation in the
cash pool.
In fact, during 1989 AB-H extended to Respondent PI a
revolving line of credit in the amount of $1.1 million, due
and payable on December 21, 1990. Not only was that loan
not repaid by that date—and, in consequence, extended—but
in 1990 AB-H extended an additional line of credit to Re-
spondent PI in the amount of $500,000. Respondents ABC
and ABMC assert that Respondent PI’s accounts receivable
had been the collateral for both loans. Yet that assertion is
not supported by the testimony of Dickinson. After examin-
ing each of the promissory notes for the two loans, he testi-
fied that neither note imposed a collateral requirement, al-
though he agreed that a collateral requirement would typi-
cally be recited in the body of such notes. It should be point-
ed out that these loans were not ultimately repaid until Re-
spondent PI’s closure. Thus, Respondent ABMC ultimately
had succeeded AB-H as the creditor.
Fourth, Respondent PI was not the sole beneficiary of
inter-entity loans from AB-H. By 1991, as a result of a series
of transactions over time, Respondent ABC had received a
total of $2.1 million in loans from AB-H. Reed testified that
Respondent ABC had used its affiliates’ funds, obtained
through loans for which interest is paid, to start up busi-
nesses. He further testified that, historically, AB-H’s funds,
had been used by other affiliates to acquire assets and fund
working capital. Respondents point out that it is not unusual
for gifts—including ones made in the form of forgiveness of
loan repayments—to be made among nonprofit entities. But,
there is no evidence that Respondent ABC or any of its af-
filiates, including AB-H and Respondent ABMC, had made
either loans or gifts to entities other than Respondent ABC
and its affiliates. So far as the evidence shows, their loans
and gifts were confined to the community of Respondent
ABC and its affiliated entities.
Fifth, Respondent ABC had not been the sole entity to
provide financial services to Respondent PI. According to
Dickinson, from June 1988 AB-H and Respondent ABMC
had been paying Respondent PI’s accounts payable from AB-
H’s and, then, Respondent ABMC’s checking accounts. Ac-
cording to Dickinson, ‘‘the hospital was reimbursed for any
expenditures made on behalf of [Respondent] PI through the
cash pool.’’ He characterized those payments as a ‘‘pur-
chased service’’—one which Respondent PI paid AB-H and
Respondent ABMC to perform. However, the latter entities
were health care providers which operated hospitals. So far
as the record shows, neither one provided financial services
to other entities in the ordinary course of their hospital oper-
ations. Providing financial services is the purpose for Re-
spondent ABC’s existence.
At no point did Respondents provide any evidence to ex-
plain the reason(s) for, or circumstances under which, AB-
H and, then, Respondent ABMC came to provide financial
services to Respondent PI. Dickinson claimed that Respond-
ent ABMC eventually ceased providing the accounts payable
service to Respondent PI. But he was unable to recall when
that had occurred. It obviously was a practice that had con-
tinued into February. For, in a memorandum (G.C. Exh. 33)
to the chief financial officers of Respondent ABC and
ABMC, Respondent PI’s chief financial officer stated, ‘‘In
addition, [Respondent] PI’s disbursements are processed
through the [Respondent] ABMC checking account and reim-
bursed through the case pool, creating a payable to [Re-
spondent] ABMC.’’
Sixth, either in conjunction with or independent of the
cash pool, Respondent PI maintained four accounts with
Bank of America: general receipts, payroll, refund, and flexi-
ble benefits. Authorized to draw checks on those accounts
are Respondent PI’s chief executive officer and president
and, as well, its chief financial officer. Yet, in addition, ac-
cording to an account history for those accounts (G.C. Exh.
9), officials of both Respondent ABC and Respondent
ABMC possess authority to sign checks on those accounts.
For example, as of the time of Respondent PI’s closure, Re-
spondent ABC officials Montgomery Dickinson and Paul
1061PATHOLOGY INSTITUTE
Lowe possessed that authority. So, too, did Reed. Though he
had been Respondent PI’s acting chief executive officer and
interim president since April 1991, he had acquired the
power to draw checks on those accounts over a year before
occupying those positions, in January 1990.
Also eligible to sign Respondent PI’s checks for those ac-
counts as of mid-June were Respondent ABMC officials
Alan Fox and Dai Pham. Dickinson explained that authority
to sign Respondent PI’s checks had been given to officials
of Respondents ABC and ABMC only to ensure that there
would be someone able to sign checks should the designated
Respondent PI officials be unavailable. Indeed, that expla-
nation derives some support from a revised check-signing
policy (G.C. Exh. 78) issued in March 1987. Nonetheless, of
itself, the fact that officials of one entity possess authority
to sign checks of another entity, even on a contingency basis,
evidences something less than a detached relationship be-
tween them.
Seventh, ongoing transactions occur between affiliated en-
tities of Respondent ABC, as illustrated by the laboratory
services provided to Respondent ABMC by Respondent PI.
The cost of those services are negotiated between the entities
involved. But the results of those negotiations do not escape
approval by Respondent ABC, even in instances when it is
not furnishing or receiving any part of the service provided.
In conjunction with annual budgets submitted by affiliated
entities to Respondent ABC—a subject discussed further in
subsection C, infra—each inter-entity transaction must be
memorialized separately on a form bearing the title ‘‘BUDG-
ET INTER-ENTITY TRANSACTION CONFIRMATION.’’
(G.C. Exh. 62.) On those forms must be recited the details
and prices of transactions which are memorialized by them.
The forms must also be signed by the chief financial officers
of both affiliates and, in addition, a space is provided for sig-
nature by Respondent ABC’s ‘‘CFO/Controller[.]’’
Eighth, as chief financial officer of Respondent ABC,
Reed testified that he becomes involved in negotiations be-
tween affiliates whenever they cannot agree on a price for
an inter-entity transaction. He further testified that his partici-
pation in such situations is, ‘‘Based on the ownership [by
Respondent ABC]. Based on [his] personal persuasion,’’ and
that he possesses no authority to dictate a final price. Never-
theless, his involvement in pricing disagreements between af-
filiates, such as Respondents ABMC and PI, further evi-
dences an interrelationship of operations between Respondent
ABC and, on the other hand, affiliates such as Respondents
ABMC and PI.
So, too, does the fact that Respondent ABC’s chief execu-
tive officer and president, Montgomery, periodically inter-
vened on behalf of Respondent PI ‘‘to help them sell their
commercial laboratory business to other hospitals, and I
might periodically, call a chief executive officer of another
hospital, encourage them to take a look at . . . and receive
a proposal from [Respondent PI],’’ he testified. Montgomery
characterized that activity as merely an aspect of the core
service provided by Respondent ABC. Nonetheless, it also
constitutes involvement by Respondent ABC in the business
of Respondent PI and, as such, further illustrated an inter-
relationship of the two entities’ operations.
Of course the most graphic display of such interrelation-
ship was the assignment of Respondent ABC’s chief finan-
cial officer, Reed, to serve as Respondent PI’s acting chief
executive officer and interim president for over a year. To
be sure, that occurred because no adequate permanent re-
placement for Sohmer could be located. Still, ongoing oper-
ation of Respondent PI in those acting and interim capacities
benefited not only Respondent PI, but also its shareholders,
who were mostly Respondents ABC and ABMC.
A series of other assertedly interrelationship indicia are
pointed to by the General Counsel and the Union: retention
of the same auditor, retention of the same law firms for var-
ious matters including labor relations, absence of a written
lease for space occupied at AB-H and Respondent ABMC’s
premises by Respondent PI, despite the existence of written
leases for spaces elsewhere that it utilized. No one of these
factors is conclusive. Nor is any one of the preceding enu-
merated factors. Taken in their totality, however, they suffice
to establish by a preponderance of the evidence that there
was an interrelationship of Respondents’ operations at all
material times.
It is perhaps a logical argument that many of the foregoing
factors are characteristic of relations between truly independ-
ent entities—that to readily conclude interrelated operations
exist is to risk too readily concluding that separate employ-
ers’ relations are interrelated and that they constitute a single
employer when, in fact, they do not. Yet, a threshold re-
sponse to such an argument is that there was, as set forth
above, a high degree of operational integration present here
and that it extended through a broad array of contexts, col-
lectively exceeding what might be expected of truly separate
enterprises. Secondly, as set forth in subsection I,A, supra,
the factor of interrelationship of operations is but one of four
aspects scrutinized to ascertain if a single-employer relation-
ship exists. Even where so extensive an operations inter-
relationship as here exists, it will not alone confer single-em-
ployer status absent overlap in at least some of the other as-
pects analyzed.
C. Common Management
Review of the cases shows that a multiplicity of factors
can serve to demonstrate existence of common management.
In this case, a number are present. First, at the shareholder
and member level, in the cases of Respondent PI and Re-
spondent ABMC respectively, Respondent ABC exercises
significant owner and membership control. As set forth
above, it is one of the two voting members of Respondent
ABMC. As discussed in subsection II,A, supra, that enables
it to exercise control at least negatively over Respondent
ABMC. Added powers which are reserved to Respondent
ABC alone confer even greater management control by it
over Respondent ABMC.
Under article IX of Respondent ABMC’s amended and re-
stated bylaws (R.ABC Exh. 8), both members must approve
before Respondent ABMC’s articles of incorporation can be
amended or restated, before all or substantially all of its as-
sets can be sold or transferred, and before it can be merged,
consolidated or dissolved. However, Respondent ABC, alone,
possesses power of prior approval over bylaw amendment or
restatement, appointment of an independent auditor, and ap-
proval of transactions by Respondent ABMC in which a
trustee or officer of Respondent ABC has a material financial
interest. (R.ABC Exhs. 8(jj)–(kk).)
Furthermore, so long as Respondent ABC retains Federal
and state tax exempt status, Respondent ABMC, its officers
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and employees, ‘‘may [not] take any of the following actions
without the prior approval of [Respondent] ABC’’: ‘‘Ap-
proval of operating and capital budgets, both in the aggregate
and by line item’’; undertake aggregate borrowing ‘‘in ex-
cess of a dollar amount to be established by [Respondent]
ABC from time to time,’’ with separate categories for bor-
rowing of 1 year or less and for that which exceeds 1 year
in length; ‘‘Purchase, sale, lease, disposition, hypothecation,
exchange, gift, pledge and encumbrance of any asset, real or
personal, with a value in excess of a dollar amount to be es-
tablished by [Respondent] ABC from time to time, not pre-
viously included in the capital budget’’; and, ‘‘approval of
unbudgeted expenditures in excess of dollar amounts to be
established by [Respondent] ABC from time to time’’ and,
also, ‘‘of major transactions or major policies of’’ Respond-
ent ABMC. (R.ABC Exh. 8(mm).) In sum, despite the pres-
ence of the Alta Bates Community Member, Respondent
ABC enjoys considerable independent power to manage sig-
nificant aspects of Respondent AMBC.
As to Respondent PI, of course, Respondent ABC has
been a 48-percent shareholder for most of its existence. So,
also, has been Respondent ABMC. Collectively, they have
been able to dictate its course and, indeed, its very existence.
The latter was shown most graphically by the decision at the
April 16 special joint meeting of their executive committees
to, as admitted initially by Greene, sell Respondent PI. So
far as the record shows, the Alta Bates Community Member
was never even consulted about that decision.
Second, the next level below ownership or membership is
that of the boards of directors or trustees. Respondent
ABMC’s board of trustees consists of 16–18 members, at
least half of whom must be members of the active medical
staff of Respondent ABMC. Those members and, also, the
trustees-at-large are nominated by the Alta Bates Community
Member. Still, the trustees-at-large are ‘‘elected by a vote of
[Respondent] ABC at the annual meeting of [Respondent]
ABC.’’ (R.ABC Exh. 8(m).) Respondent ABC also possesses
power to remove trustees ‘‘from office with or without
cause’’ and, when that occurs, Respondent ABC elects the
replacement trustee or trustees from persons nominated by
the Alta Bates Community Member. (R.ABC Exhs. 8(o)–
(p).)
In at least years most proximate to Respondent PI’s clo-
sure there has been a considerable overlap of members be-
tween the board of directors of Respondent ABC and the
board of trustees of Respondent ABMC. (G.C. Exhs. 160 and
161.) For example, during 1992 there were 18 members on
each one’s board. Eight individuals—Howard L. Blanchette,
M.D.; Jan L. Booth; David L. Cutter; Robert K. Dolgoff,
M.D.; Ronald A. Dritz, M.D.; Lawrence D. Fox; Robert L.
Harris; and, Norman P. Moscow, M.D.—served on both
boards during that year. Two other members of Respondent
ABMC’s board of trustees during 1992 had served on both
boards during the preceding 2 years, 1991 and 1990: Thomas
Schwartzburg and Robert J. Swanson, M.D. Significantly, the
chairman of Respondent ABMC’s board during 1992—David
L. Cutter—also had been a member of Respondent ABC’s
board of directors during that same year.
Overlap of the two boards’ members was a characteristic
of immediately preceding years when the hospital campuses
were being operated under the name AB-H. Thus, throughout
1991 nine individuals—Blanchette, Booth, Cutter, Dritz, Har-
ris, Alan Lifshay, M.D., Richard L. Oken, M.D.,
Schwartzburg, and Swanson—served both on AB-H’s 18-
member board of trustees and on Respondent ABC’s 20-
member board of directors. As would be the fact with Cutter
in 1992, one of them—Oken—served also as chairman of
AB-H’s board. Furthermore, by the end of 1991 a majority
of the latter consisted of members of Respondent ABC’s
board of directors. For, Norman P. Moscow, M.D. was se-
lected as a mid-year replacement for Peter Murphy, M.D.
During both 1990 and 1989 nine of AB-H’s then-16 mem-
ber board were also serving as members of Respondent
ABC’s board of directors: Blanchette, Booth, Cutter, O’Neil
S. Dillon, M.D., Lifshay, Moscow, Oken, Swanson, and
Schwartzburg in 1990, and, during 1989, Blanchette, Cutter,
Dillon, Lifshay, John H. Norton III, M.D., Oken, Swanson,
Schwartzburg, and Bernardt N. Thal, O.D. Moreover, during
both of those years, as in 1991 and 1992, the chairman of
AB-H’s board of trustees had been a member of Respondent
ABC’s board of directors. As to the latter, AB-H’s and, then,
Respondent ABMC’s chief executive officer, Greene, sat on
it as an ex officio member. Though he had no vote, he testi-
fied that he had participated in the deliberations and discus-
sions conducted by Respondent ABC’s board members.
With regard to Respondent PI’s board of directors there is
less evidence. The minutes (G.C. Exh. 14) of its April 22
meeting, when the decision had been made to sell out and
close, identify 12 directors as present and do not list any di-
rectors as absent. One—Respondent ABMC’s chief financial
officer, Lawrence D. Fox—was serving also on the boards of
both Respondent ABC and ABMC at that time. Another,
Robert Aronno, was also serving as a member of Respondent
ABC’s board of directors during 1992.
Eight of the others had ties to either Respondent ABC or,
more particularly, Respondent ABMC. Thus, the former’s
chief executive officer and president, Montgomery, was a
member, as was Respondent ABMC’s chief executive officer
and president, Greene. Four members—Doctors David Mil-
ler, William Salyer, Oscar Scherer, and E. Gale Whiting—
practiced at Respondent ABMC’s campuses while serving on
Respondent PI’s board during 1992. In fact, through inde-
pendent contractor arrangements, Scherer was medical direc-
tor of Respondent ABMC’s ventilator dependent unit and
Salyer served as its director of anatomical pathology. An-
other board member was Paul E. Smith, an attorney who
subsequently executed an asset purchase agreement as ‘‘At-
torney-in-fact’’ for Respondent ABMC. (G.C. Exh. 150, sec-
ond p. numbered 42.)
Of course, those relationships to Respondents ABC and
ABMC during 1992 may not be as crucial as the overriding
fact that those individuals had been selected as directors by
shareholders Respondent ABC and ABMC. For, those selec-
tions carry with them an inherent obligation to function in
the best interests of Respondent PI’s shareholders. Indeed,
that obligation was voiced explicitly to Respondent PI’s di-
rectors by Respondent ABC’s and Respondent ABMC’s ex-
ecutive committees during the April 16 special joint meeting,
described in subsection I,C, supra. Further, Montgomery ac-
knowledged that he had attended Respondent PI’s board
meetings ‘‘representing [Respondent ABC]’s interests and
pathology interests in [Respondent PI] and [to] provide any
. . . information that was appropriate as it related to other
related organizations.’’
1063PATHOLOGY INSTITUTE
That is a point which is reinforced by the dual status of
the eighth director with ties to Respondent ABC or Respond-
ent ABMC. That is Reed. That he would be a member of
Respondent PI’s board in 1992 is not surprising inasmuch as
he was serving as its acting chief executive officer and in-
terim president. Nonetheless, for the entire period that he has
done so, he has continued serving as Respondent ABC’s
chief financial officer. Consequently, his presence on Re-
spondent PI’s board of directors during 1992—the year most
pertinent to evaluation of the relationship among Respond-
ents, given the fact that the alleged unfair labor practices oc-
curred in June of that year—is a further indicia of common
management.
So, too, are the identities of the four directors selected by
Respondent PI’s board to serve on the special committee to
monitor preparation of the RFP and selection of a purchaser
of Respondent PI’s nonhospital assets. One was Chairman
Oscar Scherer. The other three were Respondent ABC Direc-
tor Aronno; Respondent ABMC Chief Financial Officer Fox,
also a member of the boards of both Respondents ABC and
ABMC; and E. Gale Whiting, who practiced at Respondent
ABMC’s campuses. If nothing else, the presence on that
committee of particularly Aronno and Fox provided a means
for ongoing management by Respondents ABC and ABMC
of the process for selling those assets of Respondent PI.
Third, the next lower level of management pertains to the
officers of Respondents. For the most part separate individ-
uals occupied those positions: Montgomery as chief execu-
tive officer and president of Respondent ABC since January
1990; Greene occupying those same offices for Respondent
ABMC since May 1990, and Alan Fox had been its chief fi-
nancial officer; and, Diane Dennis serving as chief financial
officer for Respondent PI. None occupied an officer’s posi-
tion with either of the other two Respondents.
That also appears to have been the fact until April 1991
with respect to the chief executive officer and president of
Respondent PI. Those offices had been occupied until then
by Sohmer. But from April 1991 onward—during the period
most proximate to Respondent PI’s closure—they were occu-
pied by Reed, Respondent ABC’s chief financial officer.
That is not an insignificant managerial overlap. As described
in subsection I,C, supra, the chief financial officer of Re-
spondent ABC is responsible, testified Reed, ‘‘for the strate-
gic, financial and capital planning of the Alta Bates system.’’
And as the titles imply, Respondent PI’s chief executive offi-
cer and president is the highest policy-making official of Re-
spondent PI.
No doubt that Reed’s service in those offices had been in-
tended as temporary. Yet, motivation is not an element of
single-employer analysis; existence of that relation is not
contingent upon entities’ intent to become single employers
nor, even, to establish common management. The crucial fact
is that, for over a year before the mid-June closure, Reed oc-
cupied significant managerial authority for both Respondent
PI and Respondent ABC. And he was not the only individual
to do so. Karen Hern had been Respondent ABC’s general
counsel. By at least April 1 she also was serving in that
same capacity for Respondent PI.
Fourth, existence of common management has not been
confined by the cases to simple comparisons of tables of di-
rectors and officers. Also scrutinized are institutional and
operational control which may or may not exist. Here, as de-
scribed above, Respondent ABC has reserved powers over
Respondent ABMC, one of which applies to review of its an-
nual budget ‘‘both in the aggregate and by line item[.]’’ Re-
spondents’ witnesses acknowledged that Respondent ABC
possessed that same power over all of its affiliates, including
Respondent PI. Greene testified that no revision of Respond-
ent ABMC’s budgets had been made by Respondent ABC
during his tenure as chief executive officer and president. Of
course, single-employer determinations focus more upon the
existence ‘‘of overall control of critical matters at the policy
level,’’ Sakrete of Northern California, Inc. v. NLRB, 332
F.2d 902, 907 (9th Cir. 1964), than upon ongoing actual ex-
ercise of such control. Even so, as to budgets annually sub-
mitted for Respondent ABC’s review, its chief financial offi-
cer, Reed, acknowledged that there had been instances—
though he characterized them as ‘‘rare’’—when Respondent
ABC had approved Respondent PI’s budget subject to ap-
proval by the latter’s board of revisions made by Respondent
ABC. In such instances, agreed Reed, Respondent ABC had
been exercising authority over Respondent PI’s budget.
Fifth, Greene denied that he was obliged to report to any-
one at Respondent ABC, including Montgomery, regarding
operations of Respondent ABMC. But that denial was contra-
dicted by Montgomery. He testified that Greene ‘‘has a dual
reporting relationship.’’ One of its aspects, conceded Mont-
gomery, was ‘‘to me as it relates to the relationships between
[Respondent ABMC] and the other entities of [Respondent
ABC] and, essentially, to meet the financial targets and the
whatever financial obligations that [Respondent ABC] has
with any of the other operating companies.’’ Of course,
Reed’s dual status since April 1991 effectively accomplished
that same purpose for Respondent ABC as regards Respond-
ent PI.
Finally, Greene’s initial admission, set forth in subsection
I,C, supra, about the sale decision at the special joint meeting
of executive committees cannot be disregarded. Power to
continue or to terminate existence is power that strikes to the
core of managerial control over an entity. In view of the to-
tality of the foregoing factors, I conclude that a preponder-
ance of the evidence shows that common management of Re-
spondents existed at all material times.
D. Centralized Control of Labor Relations
Although this factor is regarded as ‘‘the most important’’
one, Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055,
1075 (1st Cir. 1981), it must be remembered that ‘‘no one
of the [four] factors is controlling . . . nor need all [of them]
be present.’’ (Citation omitted.) NLRB v. Don Burgess Con-
struction Corp., 596 F.2d 378, 384 (9th Cir. 1979), cert. de-
nied 444 U.S. 940 (1979). With specific regard to labor rela-
tions, it is not crucial that one of Respondent’s officials did
not directly oversee the work forces of the other two—did
not review which employees were hired, fired, promoted, dis-
ciplined, etc. ‘‘In assessing the appropriateness of single-em-
ployer treatment, the fact that day-to-day labor matters are
handled at the local level is not controlling,’’ because the
‘‘more critical test is whether the controlling company pos-
sessed the present and apparent means to exercise its clout
in matters of labor negotiations by its divisions or subsidi-
aries.’’ Royal Typewriter Co. v. NLRB, 533 F.2d 1030, 1043
(8th Cir. 1976).
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
From 1988 through its closure Respondent PI’s labor rela-
tions were handled directly by Director of Human Relations
Beverly Chilton. She reported concerning those matters di-
rectly to Respondent PI’s chief executive officer and presi-
dent. Since April 1991 that had been Reed. He acknowledged
that he ‘‘would have made the decisions’’ concerning Re-
spondent PI’s labor relations during the last 14 months be-
fore it closed. Indeed, he admitted having been the official
responsible for Respondent PI’s negotiations with the Union
for a closing agreement. While he did not actually participate
in the negotiations, as they proceeded, he testified, Respond-
ent PI’s negotiators ‘‘would come back to me with progress
[reports] or requesting latitude’’ changes in parameters that
he had set for them. Inasmuch as Reed was concurrently
serving as Respondent ABC’s chief financial officer, his
oversight role in those negotiations afforded Respondent
ABC a ‘‘means [for] exercis[ing] its clout in matters of labor
negotiations by [Respondent PI].’’ Id.
Reed contended that he did not report directly on those
closing negotiations, nor on labor matters generally, to Re-
spondent ABC. He testified that he, instead, reported directly
to Respondent PI’s board of directors. But of course, those
directors are selected by and report to Respondent PI’s share-
holders, almost all of whom prior to the closure were Re-
spondents ABC and ABMC. In fact, as set forth in sub-
section II,C, supra, almost all of those directors in 1992 had
ties to one or the other of those two Respondents, and in one
instance to both of them.
Reed also testified that in formulating positions on labor
matters, ‘‘the parameters that are set for me are set through
a budget, the global budget process.’’ Of course, as also de-
scribed in subsection II,C, supra, that budget process is sub-
ject to review by Respondent ABC which has the power, ad-
mittedly exercised occasionally, to make byline changes in it.
Accordingly, in addition to Reed’s dual role with Respond-
ents ABC and PI, Respondent ABC possessed ability ‘‘to ex-
ercise its clout’’ over Respondent PI’s labor relations through
review of its budget and, in conjunction with Respondent
ABMC, through the directors selected to serve on Respond-
ent PI’s board of directors.
As to labor relations of Respondent ABMC, since Septem-
ber 1991 they have been directly supervised by its vice presi-
dent of human resources, Ruth Robinson. She reports to
Greene. Although the evidence concerning the subject is
quite sparse, it appears that he occupies the same role with
respect to Respondent ABMC’s labor relations as did Reed
and, before him, Sohmer concerning those of Respondent PI.
That is, Greene establishes the parameters for them and seeks
approval and authority for his actions from Respondent
ABMC’s governing board. Yet, as set forth in subsection
III,C, supra, the majority of Respondent AMBC’s board of
trustee members have been members and, in 1992, former
members of Respondent ABC’s board of directors. Through
these common directors Respondent ABC possesses ‘‘the
present and apparent means to exercise its clout’’ in setting
labor relations parameters for Greene, Robinson and other of-
ficials of Respondent ABMC. Nor is that its only vehicle for
doing so.
As Montgomery conceded, reports must be made directly
to him by Greene about subjects ‘‘relat[ing] to the relation-
ships between [Respondent ABMC] and the other entities
of’’ Respondent ABC and its affiliates. Obviously, that re-
porting requirement would naturally encompass any labor re-
lations matter that might have an effect upon Respondent
ABMC’s relationship with other entities. Beyond that, as had
Respondent PI, Respondent ABMC’s budget must annually
be submitted to Respondent ABC for approval and the latter
possesses authority to make line-item changes in it.
One other aspect of this situation should not escape notice.
Based on Greene’s and Reed’s descriptions, it appears that
the chief executive officer and president of Respondents
ABMC and, until it ceased dealing with the Union, PI had
been the primary ongoing source of decisions concerning
labor relations parameters for each one. Reed ended up doing
that for Respondent PI because Montgomery had asked him
to serve as its acting chief executive officer and interim
president. In turn, according to Respondents, Montgomery
had been able to make that request—and, in effect, appoint-
ment—of Reed incident to the core service provided to Re-
spondent PI by Respondent ABC.
Respondent ABC provides that same core service to Re-
spondent ABMC. Consequently, should Greene resign or be
removed, it appears that Respondent ABC would possess
parallel authority to appoint Respondent ABMC’s acting
chief executive officer and interim president until a replace-
ment for Greene was located. Of course, it might be assumed
that any such appointment would merely be temporary, until
a satisfactory permanent replacement could be located. Still,
that had been the same assumption made when Sohmer had
resigned those positions at Respondent PI. Consequently, it
cannot be said with certainty that any acting and interim ap-
pointment at Respondent ABMC would, in fact, be of short
duration. In any event, during whatever period it lasted, such
an interim and acting appointment would be made by Re-
spondent ABC and, given the number of Respondent ABC-
related members on Respondent ABMC’s board of trustees,
would last until, in effect, Respondent ABC was willing to
agree to the person selected as a permanent replacement.
Obviously, there has not been an actual exercise of labor
relations control here that is so extensive and intrusive as oc-
curs, for example, when a single proprietor operates two
interrelated small companies each of which employs but a
handful of employs. Nevertheless, as pointed out above, sat-
isfaction of this factor does not require micromanagement of
each entity’s labor relations by the same individual. That
could not be expected to occur whenever entities of any size
are involved. In such situations, as here, it is only necessary
to conclude that there had been an ability by one entity to
exercise ‘‘clout’’ over labor relations of others. A preponder-
ance of the evidence shows that existed here.
Before departing from this subject, it should be noted that
there has been no showing that Respondents ABMC and PI
control Respondent ABC’s management or labor relations,
nor that either or both of the former owned or financially
controlled Respondent ABC. Similarly, there is no evidence
in those areas of Respondent PI’s control over Respondent
ABMC. However, single-employer analysis is not an exercise
in symmetry. ‘‘An entity can belong to the single employer
by giving as well as by receiving directions about labor pol-
icy,’’ NLRB v. International Measurement & Control, 978
F.2d 334, 340–341 (7th Cir. 1992), and that applies also in
the other areas scrutinized in making single-employer deter-
minations. A contrary conclusion would leave virtually im-
1065PATHOLOGY INSTITUTE
possible a single-employer relationship between any parent
and its subsidiaries or divisions.
Therefore, I conclude that a preponderance of the evidence
establishes that a single-employer relationship did exist
among Respondents at all times material to this proceeding.
Obviously in reaching that result, I have relied in part on
some events and incidents occurring more than 6 months
prior to the filing of the charges. Yet, contrary to the argu-
ment made in Respondent ABC and ABMC’s brief, such re-
liance does not constitute disregard of Section 10(b) of the
Act. For, those events and incidents have been relied on sole-
ly as illustrations of existing, so far as the record discloses,
ongoing relationships during the 6-month period prior to fil-
ing of the charges. That is not barred by Section 10(b) of
the Act. By analogy, it would be absurd to conclude that an
individual cannot be found to be a statutory supervisor mere-
ly because he/she exercised concededly ongoing supervisory
authority only before commencement of the 6-month statute
of limitations.
E. The Bargaining Obligation
The conclusion that two or more entities constitute a sin-
gle employer does not implicitly resolve the issue of contin-
ued appropriateness of a historic bargaining unit. Neverthe-
less, an employment transfer of represented employees from
one to another of those entities will not, of itself, obliterate
a historic unit and whatever obligations have arisen as a re-
sult of its existence. This is so even if, as a result of that
transfer, the unit is diminished in scope or composition. For
such reductions, of themselves, do not destroy the continued
appropriateness of a historic unit. That will occur only if the
unit which remains is no longer viable or if its continued ex-
istence in diminished form is contrary to public policy.
Here, as a result of Respondent PI’s closure and of Re-
spondent ABMC’s commencement of but some of its labora-
tory operations, the historic bargaining unit of medical lab-
oratory technologists changed in scope. From a multilocation
unit which included two acute care hospital locations, it was
reduced to a unit confined to only acute care hospital loca-
tions. Of course, even in that reduced form, the unit re-
mained one that is employerwide in scope. But the employ-
ment of unit members only at acute care hospital campuses
brings into play another consideration.
As set forth in subsection I,A, supra, the Board has estab-
lished rules enumerating the units which it will regard as ap-
propriate at acute care hospitals. In contrast to other situa-
tions where units are treated as more akin to guidelines—
solely as analytical predicates which are relatively freely sub-
ject to exception or revision whenever some evidence of dif-
fering circumstances is presented in particular situations—the
units enumerated in Section 103.30 of the Board’s Rules are
the product of extensive litigation and proceedings which ex-
tended over more than a decade and which consumed consid-
erable effort and resources at the Board, circuit court, and
Supreme Court levels. See generally American Hospital
Assn. v. NLRB, 449 U.S. 606 (1980). An indication of the
importance attached to Section 103.30’s acute care hospital
units is provided by the very fact that the Board has chosen
to embody them in its Rules and Regulations. The Board has
not chosen to follow such a course even with regard to units
which it regards as presumptively appropriate because they
are specified in Section 9(b) of the Act: ‘‘employer unit,
craft unit, plant unit.’’
Furthermore, units have not been specified in Section
103.30 merely as a result of administrative considerations
which the Board has chosen to exercise. Those units’ enu-
meration has been one result of a direction by Congress,
made in conjunction with enactment of the 1974 health care
amendments to the Act, that the Board exercise care to mini-
mize labor-management strife in the health care industry.
Given the considerations in this and the immediately preced-
ing paragraphs, there is ample basis for concluding that pub-
lic policy favors the units set forth in Section 103.30(a) and
(f) and, further, does not favor representation elections and
bargaining orders in units at acute care hospitals which do
not conform to one of them.
A unit confined to medical laboratory technologists is not
one of the units listed in Section 103.30(a). To be sure, those
employees, now working at the Ashby and Herrick Cam-
puses, had been represented by the Union for over a decade.
Section 103.30 does make allowance for ‘‘existing non-con-
forming units[.]’’ That allowance might justify a conclusion
that a ‘‘non-conforming unit’’ confined to that single classi-
fication is appropriate had it actually been the historic ‘‘ex-
isting’’ unit during the period preceding mid-June. But, as
pointed out in the second paragraph of this subsection, since
mid-June it has differed from the previously ‘‘existing’’ unit.
From being two of a number of locations, the acute care hos-
pital laboratories are now the only locations at which medical
laboratory technologists employed by Respondents are work-
ing. Consequently, since mid-June what is left of the historic
unit can not be characterized as the unit ‘‘existing’’ prior to
then.
The General Counsel conceded that a unit confined to
medical laboratory technologists at acute care hospitals
would not be regarded as appropriate in light of Section
103.30. That concession, of course, was the reason for not
including a successorship allegation in the amended consoli-
dated complaint. Yet, that same unit is all that remains of the
historic unit as it existed prior to mid-June. It can only be
concluded that the portion of that unit now left is substan-
tially different from the historic one.
Of course, it is accurate that prior to 1986 there had been
units confined to medical laboratory technologists for a num-
ber of years, as described in subsection I,B, supra. Still, the
6 years that intervened between 1986 and mid-June is sig-
nificant in duration. During that time those employees had
been included in a broader overall unit. As a result, the pre-
1986 unit situation is too remote to be relied on, especially
in light of emergence of the Board’s Rules enumerating units
regarded as appropriate in acute care hospitals.
Nor is that result altered by Respondent ABMC’s willing-
ness during May and June to conclude an agreement with the
Union for medical laboratory technologists. The fact that, as
a matter of convenience, private parties are willing to create
units not consistent with Board unit principles does not oper-
ate to deprive the Board of ability to follow its own unit
guidelines, particularly ones embodied in its Rules and Regu-
lations and ones formulated as a means of implementing an
overall Congressional direction. In short, through their own
arrangements, private parties cannot compel the Board to set
aside its own rules and policies, and to blindly place its im-
primatur on inconsistent private desires. Therefore, inasmuch
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as a unit of medical laboratory technologists is not one of
the units specified as appropriate at acute care hospitals, I
conclude that it is not a unit for which Respondent should
be directed to bargain with the Union as the agent of em-
ployees in it.
That does not conclude analysis, however. Left for consid-
eration is the effect after mid-June of the remaining term of
the 1991–1993 collective-bargaining contract. The proviso to
Section 8(d) of the Act requires parties, inter alia, not to
‘‘terminate or modify’’ a contract during its term. That spe-
cific provision is one means of promoting Section 1 of the
Act’s policy of ‘‘encouraging the practice and procedure of
collective bargaining.’’ To implement those statutory policies
the Board has formulated the contract bar rule which, to the
extent pertinent here, ‘‘bars employers from repudiating [a]
contract or withdrawing recognition of a union for the con-
tract term.’’ (Citation omitted.) NLRB v. Dominick’s Finer
Foods, 28 F.3d 678, 679 (7th Cir. 1994).
Of course, that is precisely what Respondents have done
here. To be sure, as concluded above, the unit remaining
after mid-June is not one in which the Board would direct
an election or impose an affirmative bargaining order. Yet,
to implement the above-stated statutory provisions and, fur-
ther, to preserve industrial stability and employee freedom of
choice, it is not unprecedented to oblige parties to continue
honoring collective-bargaining contracts and to withhold until
their expiration challenges to the continued representative
status of bargaining agents. See, e.g., John Deklewa & Sons,
282 NLRB 1375, 1386–1388 (1987); NLRB v. Dominick’s
Finer Foods, supra; Fender Musical Instruments, 175 NLRB
873, 874 (1969).
I regard that to be the appropriate course to follow here.
Not only does it promote the policies set forth above, but it
contravenes no statutory policy and works no injustice to Re-
spondents. Although what remained of the unit after mid-
June had not been one countenanced by the Board, it was
not a unit which totally lacked viability. It was what was left
of a historic unit. It was employerwide in scope, consisting
of all medical laboratory technologists who remained em-
ployed by Respondents. Indeed, it was a unit in which Re-
spondent ABMC had been willing to recognize the Union
had the parties been able to negotiate satisfactory terms for
a contract that would cover those employees.
It might be argued that to oblige Respondents to continue
honoring the contract for its remaining term would compel
them to run the risk of establishing a new history of bargain-
ing in a unit which, under Section 103.30 of the Board’s
Rules, would not otherwise be regarded as appropriate. Yet,
Respondents would have been continuing to honor that con-
tract merely to satisfy a statutory obligation. From the outset,
Respondent ABMC had made plain that it regarded the unit
as not appropriate for recognition and bargaining. Against
that background, a statutorily compelled period of contract
observance could hardly be later characterized as establishing
a new ‘‘existing’’ bargaining history sufficient to compel
perpetuation thereafter on a ‘‘non-conforming unit’’ basis.
A conclusion that Respondents had been obliged to honor
the contract for its remaining term is not nullified by the
Union’s initial willingness to bargain, if possible, for a re-
placement contract with Respondent ABMC. Even where
parties have been willing to discuss modifying particular
contractual provisions during a contract’s term, that has not
constituted a contract reopener, Mack Trucks, 294 NLRB
864, 865 (1989), and has not allowed one party to modify
contractually established terms without consent of the other
party. United Rigging & Hauling, 310 NLRB 828 (1993),
and cases cited therein. Obviously, if parties cannot make
midterm modifications of some contractual terms without
agreement to those changes by the other party, then parties
are not free under the Act to modify or change all contract
terms by repudiating a contract altogether.
Certainly it cannot be concluded that complete abandon-
ment of an existing contract occurs merely because of nego-
tiations for a replacement contract. Something more is re-
quired to establish what in effect would be a waiver of the
obligation to continue honoring existing contractual terms.
As pointed out in subsection I,D, supra, there is no evidence
that the Union ever expressly stated that, in bargaining with
Respondent ABMC, it was abandoning the 1991–1993 con-
tract or its terms.
Nor is there evidence sufficient to establish that the Union
somehow otherwise did anything that satisfies the standard
for waiver of continued contract observance. So far as the
evidence shows, during the separate negotiations with Re-
spondent ABMC and with Respondent PI, the Union never
demanded specifically that Respondents continue honoring
the 1991–1993 contract with respect to medical laboratory
technologists working at the two hospital campuses after
mid-June. On the other hand, the obligation to honor a con-
tract’s terms is an ongoing one imposed by the Act. Unlike
an obligation to extend initial recognition, for example, the
statutory obligation to continue honoring a contract’s terms
exists without need for a specific demand to continue doing
so. Demand is not a separate analytical element of the statu-
tory obligation to continue honoring a contract. If Respond-
ents had wanted to ascertain whether the Union was aban-
doning the 1991–1993 contract, through its negotiations in
May and June, they, or one of them, had only to put that
question to the Union and its negotiators. Respondents did
not do so and, accordingly, they ran the risk of liability for
not continuing to honor the contract’s provisions following
employment of medical laboratory technologists by Respond-
ent ABMC. In any event, by September Respondents were
given specific notice that the Union did not consider the
1991–1993 contract as an abandoned one. For, as described
in subsection I,D, supra, an allegation of refusal to honor that
contract had been included in the amended charge in Case
32–CA–12599–1.
Therefore, I conclude that Respondent did violate Section
8(a)(5) and (1) of the Act by failing to continue honoring the
1991–1993 contract’s terms after mid-June until its expira-
tion date, but further conclude that they did not violate the
Act by refusing to thereafter recognize the Union as the bar-
gaining agent of medical laboratory technologists whom they
employed, once that contract expired.
CONCLUSION OF LAW
By failing to continue honoring the terms of the 1991–
1993 collective-bargaining contract for medical laboratory
technologists employed at their Ashby and Herrick Campuses
from mid-June until that contract’s expiration, Pathology In-
stitute, Inc., Alta Bates Corporation, and Alta Bates Medical
Center, a single employer, committed unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
1067PATHOLOGY INSTITUTE
and (5) of the Act. However, the Act has not been violated
in any other manner alleged in the amended consolidated
complaint.
REMEDY
Having concluded that Pathology Institute, Inc., Alta Bates
Corporation, and Alta Bates Medical Center are a single em-
ployer which engaged in certain unfair labor practices, I shall
recommend that they be ordered to cease and desist there-
from and, further, that they be ordered to take certain affirm-
ative action intended to effectuate the policies of the Act.
With respect to the latter, they shall be ordered to make
whole all medical laboratory technologists who worked at the
Ashby and Herrick Campuses of Alta Bates Medical Center
from June 1992 until October 31, 1993, for lost wages and
benefits, calculated in accordance with Ogle Protection Serv-
ice, 183 NLRB 682, 683 (1970), and, further, to remit any
payments that should have been made under that contract to
the appropriate trust and pension funds as determined in the
manner prescribed in Merryweather Optical Co., 240 NLRB
1213 (1979), reimbursing those employees for any losses or
expenses they may have incurred because of the failure to
make payments to those funds, in the manner prescribed in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981). Interest shall be
paid on any amounts owing and shall be computed in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]