Amerihealth Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 509 (N.L.R.B. 1998)

AMERIHEALTH INC./AMERIHEALTH HMO 509
AmeriHealth Inc./AmeriHealth HMO and United
Food & Commercial Workers Union, Local 56,
AFL–CIO, Petitioner. Case 4–RC–19260
August 27, 1998
DECISION ON REVIEW, DIRECTION, AND ORDER
REMANDING FOR A HEARING
BY CHAIRMAN GOULD AND MEMBERS FOX AND BRAME
On November 17, 1997, the Regional Director issued a
Notice to Show Cause as to “whether there is reasonable
cause to believe that the instant petition raises a question
concerning representation within the meaning of Section
9(c) of the Act on the basis that the petitioned-for pri-
mary care and specialty physicians are or are not em-
ployees within the meaning of the Act.” By decision
dated January 8, 1998, the Regional Director dismissed
the petition in this proceeding on the ground that the peti-
tioned-for physicians are independent contractors based
on the evidence submitted by the parties pursuant to the
Notice to Show Cause. The Petitioner filed a timely re-
quest for review of the Regional Director’s dismissal of
the petition in the absence of a hearing. Having consid-
ered the matter, including the parties’ briefs on review,
we have decided, for the reasons stated below, to grant
the Petitioner’s request for review and to remand the case
to the Regional Director to arrange a hearing for the de-
termination of whether or not the petitioned-for physi-
cians are employees within the meaning of Section 2(3)
of the Act.
The Petitioner argues that a hearing is necessary to de-
velop the full factual context for determining the extent
to which AmeriHealth monitors and controls the provi-
sion of medical care to AmeriHealth patients. It further
argues that a hearing would give a fuller picture of the
nature of the health care market in the era of managed
care and the dependency of the petitioned-for physicians
on the health maintenance organizations (HMOs) for
access to patients. We find merit in the Petitioner’s ar-
guments.
The Notice to Show Cause procedure used by the Re-
gional Director in this case is a valuable procedure de-
signed to expedite representation cases and reduce the
expenditure of resources on unnecessary hearings. While
we do not wish to discourage the use of this procedure,
we find that it is preferable to hold a hearing in this case,
which involves an important issue of first impression and
turns on a determination whether the physicians are em-
ployees or independent contractors.
The determination of whether an individual is an em-
ployee or independent contractor is not always clear-cut.
In NLRB v. United Insurance Co. of America, 390 U.S.
254, 258 (1968), the Supreme Court observed:

There are innumerable situations which arise in
the common law where it is difficult to say whether
a particular individual is an employee or an inde-
pendent contractor, and these cases present such a
situation. On the one hand these debit agents per-
form their work primarily away from the company’s
offices and fix their own hours of work and work
days; and clearly they are not as obviously employ-
ees as are production workers in a factory. On the
other hand, however, they do not have the independ-
ence, nor are they allowed the initiative and deci-
sion-making authority, normally associated with an
independent contractor.

The case at bar presents similar difficulties. The phy-
sicians working with HMOs maintain their own offices
and staffs and are not “as obviously employees as are
production workers in a factory.” At the same time, the
HMOs place certain conditions and restrictions on the
physicians which indicate that they do not have the inde-
pendence normally associated with an independent con-
tractor. The involvement of the HMOs in the physicians’
delivery of health care services and access to patients is a
feature of the changing nature of the health care industry
which is presented to the Board for the first time in this
case. It calls into question the historical understanding of
the status of physicians who maintain their own prac-
tices.
In such cases where it is difficult to determine em-
ployee or independent contractor status, the Supreme
Court has stressed the necessity to assess all aspects of
the relationship between alleged employee and alleged
employer. In United Insurance, the Court stated:

In such a situation as this there is no shorthand formula
or magic phrase that can be applied to find the answer,
but all of the incidents of the relationship must be as-
sessed and weighed with no one factor being decisive.
What is important is that the total factual context is as-
sessed in light of the pertinent common-law agency
principles. Id.

We find that the best way for us to assess the total fac-
tual context here is to provide for the full development of
the record through a hearing. In a hearing, the Board
will be presented not only with the documentary evi-
dence which was submitted in the Notice to Show Cause
stage of this proceeding, but also with evidence adduced
through the direct and cross-examination of witnesses.
Such evidence will provide a more complete picture of
the day-to-day interaction between the physicians and the
HMOs and the impact of the HMOs on the physicians’
access to and care of patients. It will also provide a more
complete picture of the nature of the overall practices of
the physicians who contract with the HMOs and the im-
pact of managed health care in Atlantic and Cape May
Counties, New Jersey, on such practices.
We stress that our decision today makes no determina-
tion on the status of the petitioned-for physicians and is
not to be construed as suggesting that we would find dif-
326 NLRB No. 55
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 510
ferently on that issue than the Regional Director.1 In-
stead, we find that a hearing is desirable here, where the
issue of the relationship between physicians and HMOs
is raised for the first time to the Board and where the
determination of status relies so heavily on the full fac-
tual context of the relationship.2
DIRECTION
IT IS DIRECTED that the Regional Director’s dismissal
of the petition is reversed, the petition is reinstated and
the case is remanded to the Regional Director for a hear-
ing for the purpose of receiving evidence to resolve the
question of whether the petitioned-for physicians are or
are not employees within the meaning of the Act and the
issuance of a decision.
ORDER
It is ordered that the proceeding be remanded to the
Regional Director for Region 4 who shall arrange and
issue the notice of hearing.

MEMBER BRAME, dissenting.
Contrary to my colleagues, I would affirm the Re-
gional Director’s attached administrative dismissal of the
petition in this case. The petition seeks a unit of primary
care and specialty physicians employed by the Employer
in Atlantic and Cape May County, New Jersey. Follow-
ing an extensive investigation and review of the volumi-
nous submissions by the parties, the Regional Director
determined that the physicians sought are independent
contractors and accordingly are not employees of the
Employer within the meaning of the Act.
The Regional Director found that the physicians make
the fundamental decisions that determine the profitability
of their practices, including whether to affiliate with one
or more health maintenance organizations (HMOs). She
further found that the physicians exercise total control
over the expenses and staffing of their offices, hold
themselves out and advertise to the public under their
own name, and are not subject to any restrictions by the

1 Chairman Gould notes that the Regional Director relied on Board
precedent holding that requirements imposed by governmental regula-
tions do not constitute control by an employer, but control by the gov-
erning body. Air Transit, 271 NLRB 1108 (1984). He would overrule
this precedent and return to the Board’s earlier position that the critical
consideration is the employer’s degree of control over the means and
manner in which work is accomplished, regardless of whether that
control is imposed because of governmental regulations or for other
business reasons. See e.g., Mitchell Bros. Truck Lines, 249 NLRB 476,
480–481 (1975), where the Board reasoned : “[W]hat is important is the
actual relationship between the carriers and the drivers, and not the
reason for it. . . . [I]t matters not whether the controls placed on the
driver emanate from Mitchell Bros. independently, or whether these
controls are imposed on Mitchell Bros., which in turn imposes them on
the drivers. Either way, these controls define the carrier’s employment
relationship with its drivers.”
2 By directing a hearing in these circumstances, we do not suggest
that a hearing must be directed in all future cases presenting this issue.
That determination should and will be made based on the facts and
circumstances of each case.
Employer on expanding, contracting, merging, or selling
their practice. Moreover, the Employer has only a 10-
percent share of the Atlantic and Cape May County
HMO market and the average petitioned-for physician
contracts with four HMOs in addition to the Employer.
Although the Regional Director noted that the Petitioner
has pointed to some factors which tend to support a find-
ing of employee status, she found that those were over-
whelmed by the factors supporting the finding that the
disputed physicians are independent contractors.
My colleagues do not dispute that the Regional Direc-
tor’s determination is consistent with established prece-
dent based on the facts found by the Regional Director.
Nor do they find that the Petitioner has established that
any of the Regional Director’s factual findings are erro-
neous. Rather, they have granted the request for review
on the grounds that a hearing will provide “a more com-
plete picture” of the relationship between the physicians
and the Employer. Accordingly, it would appear that the
only purpose of the remand is to provide the Petitioner
with another opportunity to present evidence favorable to
its position. However, the Petitioner, as my colleagues
concede, has not shown that such additional evidence
exists. In these circumstances, the remand is little more
than a fishing expedition for the benefit of counsel and a
limited postponement of a sure and certain dismissal. In
my view, a remand under these circumstances is inap-
propriate. Furthermore, it sends a highly misleading
message to the public and our understaffed Regional Of-
fices (the Philadelphia Regional Office, and many others,
is below authorized and optimum staffing levels) that the
issue is uncertain and constitutes a gross waste of our
Agency’s limited resources. Accordingly, I dissent.

APPENDIX
The above-captioned case petitioning for an investigation
and certification of representative under Section 9(c) of the
National Labor Relations Act has been carefully investigated
and considered.
As a result of the investigation, I find that further proceed-
ings are unwarranted. On October 27, 1997, the Petitioner filed
a petition seeking to represent “all primary care and specialty
physicians employed by AmeriHealth Corporation in Atlantic
and Cape May County, New Jersey.” The Petitioner contends
that there are approximately 200 such individuals, while
AmeriHealth states that there are nearly 600. On November 17,
1997, I issued a Notice to Show Cause as to “whether there is
reasonable cause to believe that the instant petition raises a
question concerning representation within the meaning of Sec-
tion 9(c) of the Act on the basis that the petitioned-for primary
care and specialty physicians are or are not employees within
the meaning of the Act.” Each party filed a response to the
Notice to Show Cause with accompanying exhibits and subse-
quently filed a reply to the other party’s response. After re-
viewing these submissions, I have concluded that the peti-
tioned-for physicians are not employees of AmeriHealth within
the meaning of Section 2(3) of the Act.
AMERIHEALTH INC./AMERIHEALTH HMO 511
AmeriHealth operates six health maintenance organizations
(HMOs) in the State of New Jersey which provide health care
to the HMO members through a network of primary care and
specialty physicians. Virtually all of these physicians are sole
practitioners or members of group practices of varying sizes,
and most of their practices are professional corporations. The
physicians do not exclusively treat patients who are covered by
AmeriHealth insurance. They also treat patients who are mem-
bers of other HMOs, are covered by Medicare, are covered by
non-HMO insurance, or pay directly for the physicians’ ser-
vices. AmeriHealth has a 10-percent share of the HMO market
in Atlantic and Cape May counties, and the petitioned-for phy-
sicians are each affiliated with an average of 4.66 HMOs other
than AmeriHealth. The Petitioner presented evidence from a
primary care physician who stated that about 30 percent of his
patients are insured through AmeriHealth, and that he sees 5 to
10 such patients each day. Physicians in the AmeriHealth net-
work continue to maintain the identity of their practices, and
they do business and advertise in their own names and/or the
names of the group practices with which they are associated.
The physicians’ practices each hire and compensate their own
staffs of nurses, medical assistants, and office clerical employ-
ees. Their staffs perform functions including patient billing and
other paperwork, as well as the administration of certain medi-
cal procedures. Physicians also secure and maintain their own
offices and obtain their own medical equipment and insurance.
In order to affiliate with AmeriHealth a physician must be-
come “credentialed.” During the credentialing process Ameri-
Health interviews the physician and requires him or her to
complete a detailed application packet. Among other things,
the physician must demonstrate that he or she is properly li-
censed and maintains sufficient malpractice insurance, relevant
medical board certifications, and hospital privileges. Ameri-
Health also inspects the physicians’ offices to ensure that they
have adequate facilities, staff, and medical equipment to pro-
vide proper patient care for AmeriHealth’s members. Thereaf-
ter, physicians must be recredentialed every 2 years.
Physicians who participate in the AmeriHealth network must
sign a contract called a “Provider Service Agreement.” The
Agreement, inter alia, sets forth the physician’s remuneration,
requires that the physician provide medical records to Ameri-
Health on request, and mandates that the physician treat
AmeriHealth patients in the same manner that the physician
treats other patients. The Agreement has a 1-year term, but
states that it “shall continue in effect from year to year unless
terminated on its anniversary date by either party by a written
notice thereof.” The Agreement further indicates that “each
party . . . is at all times acting as an independent contractor, and
that neither party has any express or implied authority to as-
sume or create any obligation or responsibility on behalf of or
in the name of the other party.” The Provider Service Agree-
ment is a standard form document, and the Petitioner has pro-
vided evidence that the terms of the Agreement, including re-
muneration, are generally presented to physicians as non-
negotiable. AmeriHealth has demonstrated, however, that in
limited circumstances it has agreed to provide more favorable
contracts and remuneration rates to physicians whose special-
ties are in short supply in particular geographic areas.
AmeriHealth remunerates physicians for covered services
for their patients on either a “capitation” or “fee for service”
basis. Under the capitation system, physicians are paid a flat
monthly rate for each patient that designates them as their pri-
mary care physician. The rate per patient varies with the pa-
tient’s age, but does not depend on how many times the patient
actually uses the physician’s services. Under the fee for service
system, AmeriHealth remunerates physicians in accordance
with a fee schedule that sets forth fixed amounts for each pro-
cedure or treatment performed by the physician. AmeriHealth
requires primary care physicians to be paid on a capitation fee
basis if they serve more than 100 AmeriHealth members; oth-
erwise, they can choose either system. All specialty physicians
are paid pursuant to the fee for service system.
AmeriHealth members are covered for specific medical ser-
vices as set forth in their employers’ contracts with Ameri-
Health. In general, members are covered for office visits to
physicians and for specified medical services “to the extent that
they are medically necessary for the proper treatment of the
Member’s Condition.” Numerous medical services are ex-
cluded from coverage, such as in vitro fertilization, comfort and
convenience items at hospitals, and hearing aids. Ameri-
Health’s Provider Manuals set forth various rules and proce-
dural requirements for participating primary care and specialty
physicians. Among other things, these manuals list numerous
medical services that require “precertification” by Ameri-
Health, and AmeriHealth will not pay physicians for these ser-
vices absent precertification. In order to secure precertification
of services as medically necessary, the physicians and their
staffs often must provide considerable information to Ameri-
Health, and the process may require repeated telephone calls.
In determining whether services are medically necessary,
AmeriHealth representatives rely in part on the Optimed Medi-
cal Appropriateness Screening Criteria, a computer software
program based on national standards. AmeriHealth also re-
quires that its members receive medical tests only at specified
approved laboratories. Physicians also must obtain preapproval
for all surgery and referrals to specialty physicians who are not
part of the AmeriHealth network, as well as for hospital inpa-
tient care. AmeriHealth must approve the hospital to which the
member is referred and the length of the stay. Additionally,
AmeriHealth requires physicians to complete and forward vari-
ous forms within specified time limits in order to receive pay-
ment for their services. Petitioner submitted evidence indicating
that some physicians and their office staffs have found the
process of securing preapproval to be time-consuming and
frustrating.
If an AmeriHealth representative denies approval for a
member to receive a requested service, the physician and the
mermber may appeal the denial through several levels pursuant
to a written appeals procedure. From January 1, 1996, through
December 5, 1997, only two denials were formally appealed
through this process, and one of these appeals was upheld. The
Petitioner provided considerable evidence that physicians have
submitted claims for payment to AmeriHealth for services that
AmeriHealth declined to reimburse. One specialty care physi-
cian, for example, had reimbursement claims denied because of
failure to obtain precertification for the service or to receive a
referral from a primary care physician. He also was not paid by
AmeriHealth for services he provided that AmeriHealth
deemed ineligible for reimbursement. The physician did not
collect payments from AmeriHealth or the involved patients for
those services, which resulted in his “writing off” $77,665 of
the $102,295 that he billed AmeriHealth during an unspecified
time period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 512
AmeriHealth does not permit physicians to charge its mem-
bers directly for services covered by AmeriHealth (a practice
called balance-billing), but they may charge such patients for
services that are not covered. AmeriHealth requires primary
care physicians, under the capitation arrangement, to provide
physical examinations and medical services such as inocula-
tions to covered members in certain circumstances pursuant to a
specified schedule. According to Petitioner, AmeriHealth has
at times increased these requirements without providing addi-
tional payments to the physicians.
Under the Provider Service Agreement, physicians are re-
quired to participate in AmeriHealth’s Quality Management
Program. Pursuant to this program, AmeriHealth is permitted
to inspect physicians’ offices “upon reasonable notice and at
reasonable hours.” Among other things, AmeriHealth repre-
sentatives appraise the condition of the waiting room and medi-
cal equipment and evaluate the attitude of the staff. They also
review physicians’ records to determine how many patients
they see each day, as well as the average waiting time for pa-
tients. AmeriHealth has issued Standards of Service to physi-
cians, which, inter alia, require them to limit waiting time for
covered patients to 30 minutes and to set appointments with
covered patients during specified time frames. For example,
primary care physicians should provide AmeriHealth members
with “emergent” care immediately, “urgent” care within 24
hours, and routine appointments within 2 weeks. The Stan-
dards of Service also state that the physicians’ practices should
schedule at least one evening or weekend session per week, and
that physicians must provide members with access to care 24
hours per day, 7 days a week by an AmeriHealth network pro-
vider. AmeriHealth also regularly inspects its members’ re-
cords, and physicians must provide these records to Ameri-
Health representatives on request. AmeriHealth reviews the
members’ records for legibility and completeness. After in-
specting the physicians’ records and offices, AmeriHealth
provides them with verbal and written evaluations and apprais-
als which include comparisons with other physicians.
The New Jersey HMO Act and related administrative regula-
tions mandate many of the procedural and credentialing re-
quirements that AmeriHealth imposes on its participating phy-
sicians. Thus, the State requires that HMO physicians assure
24-hour-a-day, 7-day-a-week coverage for patients, treat pa-
tients with courtesy and consideration and respect for dignity
and privacy, and maintain proper licenses, hospital staffing
privileges, and adequate malpractice coverage. New Jersey
further requires that HMOs have a right of access to the physi-
cians’ medical records and maintain continuous quality im-
provement programs that specify standards of care and proce-
dures for assessing the quality of medical services. HMOs also
must be audited every 3 years by an “external quality review
organization” approved by the State. Pursuant to this regula-
tion, AmeriHealth has been audited by the National Committee
for Quality Assurance (the NCQA), an independent organiza-
tion that is partially funded by HMOs. The NCQA requires
that the HMO maintain guidelines concerning matters such as
patient waiting time and appointment availability, but it does
not specify what these guidelines should be. The NCQA also
mandates that as part of the credentialing process an HMO
representative visit each primary care physician, obstetri-
cian/gynecologist, and high-volume specialist and review the
physical appearance and accessibility of the office, availability
of appointments, and maintenance of patient confidentiality.
Additionally, the NCQA requires that physicians be recreden-
tialed by the HMO every 2 years, and that the recredentialing
process include an office visit.
Section 2(3) of the Act excludes from the definition of “em-
ployee,” any individual having the status of an “independent
contractor.” In NLRB v. United Insurance Co. of America, 390
U.S. 254 (1968), the Supreme Court held that the proper stan-
dard in distinguishing employees from independent contractors
under the Act is the common law of agency. This standard
looks to whether the person for whom the services are per-
formed reserves the “right to control” not only the ends to be
achieved, but also the means to be used in achieving those ends.
Operating Engineers Local 487 Health & Welfare Trust Fund,
308 NLRB 805 (1992), and News Service Syndicate Co., 164
NLRB 422, 423–424 (1967). In Standard Oil Co., 230 NLRB
967, 968 (1977), the Board set forth the following factors in
connection with the common law right to control test as signifi-
cant in determining whether an employment relationship exists:
(1) whether individuals perform functions that are an essential
part of the company’s normal operation or operate an inde-
pendent business; (2) whether they have a permanent working
relationship with the company which will ordinarily continue as
long as performance is satisfactory; (3) whether they do busi-
ness in the company’s name with assistance and guidance from
company personnel and ordinarily sell only the company’s
products; (4) whether the agreement which contains the terms
and conditions under which they operate is promulgated and
changed unilaterally by the company; (5) whether they account
to the company for the funds they collect under a regular re-
porting procedure prescribed by the company; (6) whether par-
ticular skills are required for the operations subject to the con-
tract; (7) whether they have a proprietary interest in the work in
which they are engaged; and (8) whether they have the oppor-
tunity to make decisions which involve risks taken by the inde-
pendent business person which may result in a profit or loss.
No single factor is determinative; each case must be analyzed
as to all of its circumstances. Air Transit, Inc., 271 NLRB
1108, 1110 (1984), and Seafarers Local 777 (Yellow Cab) v.
NLRB, 603 F.2d 862, 872–873 (D.C. Cir. 1978). A written
agreement defining the relationship as one of “independent
contractor” may be given weight but is not dispositive. See,
e.g., Big East Conference, 282 NLRB 335, 345 (1986), affd.
sub nom. Collegiate Basketball Officials Assn. v. NLRB, 836
F.3d 143 (3d Cir. 1987). Finally, the Board has consistently
held that requirements imposed by governmental regulations do
not constitute control by an employer, but control by the gov-
erning body. Elite Limousine Plus, 324 NLRB 992, 993–995
(1997), and Air Transit, supra at 1110.

Application of these factors convincingly demonstrates that
the petitioned-for physicians are independent contractors rather
than employees. Most significantly, the physicians themselves
make the fundamental decisions that determine the profitability
of their practices. Thus, they retain the unfettered right to de-
cide matters as basic as whether they will be sole practitioners
or enter into a group practice and whether to become affiliated
with one or more HMOs. In fact, AmeriHealth physicians gen-
erally contract with several HMOs that directly compete with
AmeriHealth and each other. Physicians spend only a minority
of their work time and derive a minority of their income from
service to AmeriHealth members. See Young & Rubicam In-
ternational, 226 NLRB 1271, 1276 (1976). The physicians
AMERIHEALTH INC./AMERIHEALTH HMO 513
have virtually total control over their expenses. Thus, aside
from the minimum equipment and waiting room size prescribed
by AmeriHealth, the physicians determine the locations, con-
tents and cost of their offices, and they make significant capital
investments in their medical and office equipment. See, Young
& Rubicam International, Inc., supra; City Cab Co. of Orlando,
285 NLRB 1191, 1194 (1987). They also determine the num-
ber of staff members to employ and their compensation, and
they retain full supervisory authority over their employees. The
physicians also can substantially affect their incomes. In this
regard, AmeriHealth pays physicians a flat rate under both the
capitation and fee for service systems. Therefore, the physi-
cians’ professional judgment and efficiency will strongly influ-
ence their practices’ profitability. See Young & Rubicam, su-
pra; Boston After Dark, Inc., 210 NLRB 38 (1974). Moreover,
AmeriHealth plays no role in setting physicians’ work hours
other than requiring the practices to operate one night or week-
end day per week, and AmeriHealth does not limit the number
of patients that physicians can see. Considering that the physi-
cians determine their expenses and can vary their incomes, it is
clear that the physicians retain considerable control over their
earnings. See, e.g., Big East Conference, supra at 345.
AmeriHealth also does not provide fringe benefits, vacation, or
sick leave to physicians, nor make any deductions from the
physicians’ remuneration. See Cardinal McCloskey Children’s
& Family Services, 298 NLRB 434, 435 (1990). Significantly,
physicians have a full proprietary interest in their practices;
there is no evidence that AmeriHealth can restrict them from
expanding, contracting, or selling their practices or that it con-
trols the organization and management of the work performed
in the physicians’ practices. Moreover, physicians’ medical
practices hold themselves out to the public and advertise them-
selves under their own names rather than doing business in
AmeriHealth’s name. All of these factors convincingly demon-
strate that the physicians are independent contractors.
I recognize that there are some factors which would tend to
support a finding of employee status. For one, AmeriHealth’s
contracts with physicians are not generally subject to negotia-
tion. Additionally, the physician’s affiliation with AmeriHealth
by the terms of the contract continues indefinitely absent a
decision by either party to terminate the relationship. Moreover,
the physicians’ contracts with AmeriHealth unquestionably
subject them to a variety of restrictions and procedures that
they would not face absent affiliation with an HMO. Thus, in
order to be paid for performing various medical services that
they deem necessary, or to refer AmeriHealth patients for hos-
pitalization, the physicians’ offices must first obtain precertifi-
cation from AmeriHealth. They are also subject to credential-
ing and Quality Management Program requirements which
include inspections of their offices and records. The physi-
cians’ offices must maintain frequent contact with AmeriHealth
concerning medical as well as procedural matters, and they
regularly complete forms and submit them to AmeriHealth in
order to receive payment. Some of AmeriHealth’s procedural
requirements are mandated or inspired by State law, however.
Others are an attempt to comply with the NCQA standards and
NCQA’s auditing process is required by State law. As noted
above, to the extent that restrictions are required by State law,
the Board does not treat them as mandated by the purported
employer.
On balance, I find that the factors favoring a finding of em-
ployee status for the particular physicians at issue here are sub-
stantially outweighed by those favoring a finding of independ-
ent contractor status. In my view, the physicians who partici-
pate in AmeriHealth’s HMOs are skilled professionals who
retain the characteristics of independent business persons.
Based on the above, I find that the petitioned-for physicians are
not employees of AmeriHealth but are independent contractors.
Big East Conference, supra; and Young & Rubicam, supra.
Accordingly, I am withdrawing the notice of hearing previously
issued, and I am dismissing the petition in this matter.
Pursuant to the National Labor Relations Board’s Rules and
Regulations, you may obtain a review of this action by filing a
request therefor with the National Labor Relations Board, ad-
dressed to the Executive Secretary, National Labor Relations
Board, Washington, D.C. 20570. A copy of such request for
review must be served on the Regional Director and each of the
other parties to the proceeding. This request for review must
contain a complete statement setting forth the facts and reasons
on which it is based. The request for review (eight copies)
must be received by the Executive Secretary of the Board in
Washington, D.C. by the close of business on January 22,
1998. Upon good cause shown, however, the Board may grant
special permission for a longer period within which to file. The
request for extension of time should be submitted to the Execu-
tive Secretary of the Board in Washington, D.C., and a copy of
any such request for extension of time should be submitted to
the Regional Director, and to each of the other parties to this
proceeding.
The request for review and any request for extension of time
for filing must include a statement that a copy has been served
on the Regional Director and on each of the other parties to this
proceeding, and the copy must be served in the same or faster
manner as that utilized in filing the request with the Board.
When filing with the Board is accomplished by personal ser-
vice, however, the other parties shall be promptly notified of
such action by telephone, followed by service of a copy by mail
or facsimile transmission.