St. Joseph's Hospital

1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Joseph's Hospital (Ow Lady of Providence Unit) and Rhode Island State Nurses' Association. Case I-CA-12581 December 12, 1977 DECISION A N D ORDER On August 16, 1977, Administrative Law Judge Bruce C. Nasdor issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions~ of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 1qc) of the National Labor Relations Act. as amended. the National Labor Relations ~ o a i d adopts as its'order the recornrnend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, St. Joseph's Hospital (Our Lady of Providence Unit), Providence, Rhode Island, its officers, agents, successors, and assigns, shall take the action- set forth in the said recommended Order. 1 We agree with the Administrative Law Judge's conclusion that deferral to arbitration is Improper in this case since Respondent has interfered with the grievance procedure by refusing to furnish information relevant to the arbitration of a grievance. Funher, Chairman Fanning and Member Jenkins would not defer in any event for the reasons set forth in their decision in General American Tramporrarion Copororion. 228 NLRB 808 (1977). DECISION BRUCE C. NASDOR, Administrative Law Judge: This proceeding under Section lo@) of the National Labor Relations Act, as amended, was heard pursuant to due notice on April 25, 1977, at Boston, Massachusetts. The charge in this proceeding was filed by Rhode Island State Nurses' Association fiereinafter referred to as RISNA or the Union), on December 27, 1976; the complaint in this matter was issued on February 2, 1977. TFle y e ~ t i o n pres-+4 -p,be!her the R q o n d e n t virJattj its statutory obligation to bargain with the Union by refusing the latter's request for certain data concerning the wages, fringe benefits, and costs to the Respondent of certain employees outside of the bargaining unit represent- ed by the Union, in violation of Section 8(a)(5) and (1) of the Act. Upon the entire record, including my observation and demeanor of the witness, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: I. JURISDICTION The Respondent is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Rhode Island. At all times herein, the Respondent has maintained its principal office and place of business at 21 Peace Street, in the city of Providence and the State of Rhode Island (herein called the Our Lady of Providence Unit), and is now and has been engaged at said plant in the operation of a medical care facility. The Respondent, in the course and conduct of its business, causes and continuously has caused, at all times herein, large quantities of food, medical equipment, and supplies used by it in providing medical care and services to be purchased and transported in interstate commerce from and through various States of the United States other than the State of Rhode Island. It operates a nonprofit hospital with a gross annual volume of business in excess of $250,000, and in the course and conduct of its business, annually causes goods valued in excess of $2,000 to be purchased and transported to its hospital in Rhode Island from points outside Rhode Island It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION It is admitted, and I find, that Rhode Island State Nurses' Association is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. THE BARGAINING UNIT Based on the pleadings and admissions therein, the following is found to be the bargaining unit: All registered nurses employed by the Respondent in the Our Lady of Providence Unit, as more fully set forth and certified by the Rhode Island State Labor Relations Board, in Case EE-2033 on May 14, 1973, exclusive of all other employees, guards, and supervi- sors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. IV. THE UNFAIR LABOR PRACTICES i ~ , ~ con .,,!~al , sc!:ing wsch gz-.~ dsc :; this p:,rzczr?irg i:, in the main, undisputed and many of the essential facts were stipulated. 233 NLRB No. 368 ST. JOSEPH'S HOSPITAL 1117 The Respondent and RlSNA are parties to a collective- bargaining agreement, effective from October 1, 1975. through September 30, 1977. Article ]XI subparagraph 9.04. of said agreement provides: Should the Employer during the term of this Agree- ment grant a greater across tne board increase to a majority of all Nonbargaining unit' employees then that provided Bargaining Unit employees covered by this Agreement, then the net additional ~ncrease will be granted effective the same date to members of the Association Bargaining unit. On September 16, 1976, the following notice signed by Robert A. Vitello. executive vice president of the Respon- dent. was posted at the hospital premises: Dear Fellow Employee: St. Joseph's 1s once again very pleased to announce what we feel to be outstanding improvements in your wage and benefit program for the coming fiscal year: Pa,v Scale increase - A five percent increase in hourly wage scale will become effective October 3, 1976. In addition, those employees at steps below the maximum will be eligible to move to the next higher step on their annual rewiew date. Additional Paid Holidqv - V.J. Day is being added to the list of holidays observed by St. Joseph Hospital, raising our total paid holidays to eleven days per year. improved Vacation Eligibility - Employees whc are currently eligible for t h e e weeks vacation after six years, will now be eligible for those three weeks after only three years of service, effective January 2. 1977. Expanded iife insurance Coverage - Starting October 1, 1976, the Hospital will provide life insurance coverage in an amount equal to I-1/2 times an employee's annual base salary (rounded upward to the nearest thousand dollars) provided the employee works at least 20 hours per week. Previously, this coverage has been equal to "one" times the base salary (rounded up to the nearest thousand dollars). Higher Pension Eenejts - In January 1973, the Hospital announced significant improvements in pension eligibility criteria (age. length of service: vesting, etc.) and is now in the process of finalizing increases in your actual retirement benefits through the Pension Plan. Details of these improvements will be announced in E special notice to you in the near future. It should be noted that except for the pay scale Increases, these benefits do not apply to the registered ' The nonunlt employees ~ncluae all employees other than reentered nurses 21 the Our Lady of Provlaence U n ~ t and all employees. lnclud~ng repstered nurses at the Our Lady of Fstlme faclllt\ nurses at the Our Lady of Providence Unit who are covered by a collective bargaining agreement. Very shortly these new benefits and all others which have been introduced over the past few years will be incorporated in a new edition of the Personnel Policy Manual which will be distributed to each employee. Personally. and on behalf of the Board of Trustees, I would like to take this opportunity to thank each of you for your loyalty and dedication during the past year and to say how proud we are to be associated with you in the services of St. Joseph's Hospital. On September 28, 1976, RISNA filed a grievance with the Respondent alleging a violation of article IX, subpara- graph 9.04, of the current collective-bargaining agreement. On October 13, 1976, Gerald H. Christman, personnel administrator of the hospital, sent a letter to the attention of James L. O'Brien, labor representative for RISNA, confirming the Respondent's denial of the Union's griev- ance. On October 22, 1976, O'Brien filed a demand for arbitration, stating that the nature of the dispute was that the Employer violated article IX, subparagraph 9.04, by failing to extend fringe benefits to bargaining unit mem- bers. The Union sought a remedy awarding fringe benefits to bargaining unit members which are extended to other employees. On November 16, 1976, a notice of hearing issued from the American Arbitration Association setting January 17, 1977, as the hearing date before an arbitrator. The arbitration hearing has since been postponed pending the outcome of these proceedings. On December 1, 1976, O'Brien, the Union's labor representative, transmitted a letter to the attention of Gerald H. Christman, personnel administrator for the hospital, as is revealed by the following: Dear Mr. Christman: Pursuant to Rhode Island State Nurses' Associa- tion's role as the collective bargaining agent for the repstered nurses at St. Joseph's Hospital, Our Lady of Providence Unit, we must request that the Administra- tion of St. Joseph's Hospital supply Rhode Island State Nurses' Association with the following information: (1) the wage scales and fringe benefits of all employees outside of the bargaining unit prior to the effective date of our current collective bargaining agreement. (An example(s) of an "applicable employee" would include Aides, LPN(S), housekeep&, etc., but not exclusive of other similarly situated classifications.) (2) The cost (to the Hospital) of the benefits afforded these employees prior to the effective date of our agreement. (3) The wage scales and benefits of all applicable employees outside of the bargaining unit at the - DECISIONS OF NATIONAL LABOR RELATIONS BOARD present date, December 1, 1976. l tem 3 relates to those classifications described in ltem 1. (4) The cost to the Hospital of the wages and benefits described in Item three (3). (5) The cost of proposed improvements in wages and benefits already announced yet not currently in existence. (i.e., extension of holidays.) ltem five (5) relates to those classifications of employees described in ltem one (I). We appreciate your cooperation in this matter. On December 10, 1976, Christman, by the following letter, refused to supply the information requested by RISNA: Dear Mr. O'Brien: This is to acknowledge the receipt of your letter of December 1, 1976. We do not feel that the requested information is germane to our Collective Bargaining Agreement. On December 16, 1976, O'Brien sent a letter to Christman as set forth below: 1 am writing to clarify our telephone conversation of December 9, 1976; concerning the Rhode Island State Nurses' Association's request for information on wage scales, benefits, and costs to the hospital. As 1 stated in our conversation of December 9, 1976, the information requested by the Rhode Island Nurses' Association on December 1, 1976, is necessary for the preparation of the upcoming Arbitration Case. As the main issue(s) to be adjudicated at arbitration relates directly to the information requested on December 1, 1976 (and clarified by telephone on December 9, 1976), it is absolutely essential that St. Joseph's Hospital furnish R.I.S.N.A. with this information. Enclosed is a copy of our original request. I would appreciate your prompt attention to this matter as the date for arbitration is rapidly approaching. Further- more, it is Rhode Island State Nurses' Association's position that three (3) requests for the same information is more than adequate notice. Thank you for your cooperation. On December 20, 1976, the Respondent, by Personnel Director Christman, sent O'Brien a copy of its December 10, 1976, letter, wherein the hospital refused to supply the information requested by RISNA. On March 8, 1977, the Respondent, by its counsel, John F. Flym, transmitted a letter to Gerard Cobleigh, counsel for the Union, to the following effect: I have spoken with the administration of St. Joseph's Hospital, Our Lady of Providence Unit, on Friday about the Arbitration and Unfair Labor Practice case. They have again stated that they would be glad to 2 The "item" refers to the informarion requested as enumerated in the letter from O'Brien to Christman, dared December 1, 1976. (Joint Exh. 7.) provide a certified statement from their independent Auditors stating that the Non-Bargaining Unit employ- ees received a 5% raise across the board as did the Bargaining Unit employees. Please let me know if this would help settle this matter. The Testimonq- James L. O'Brien testified on behalf of RISNA. His testimony relates directly to the necessity and relevancy of the information requested for the litigation of the arbitra- tion issue. His testimony reflects that the first itemZ is necessary to enable the Union to ascertain exactly what the benefits were prior to implementation of the collective-bargaining ageement. Absent this information, there would be no record of improved benefits other than the memorandum posted at the hospital on September 16, 1976. According to the testimony, to commence arbitrating without this data would be a breach of the duty to fairly represent unit employees. The second item requested the aggregate total, which the Union would utilize to check against item one. O'Brien further testified, that the third item would reflect the increase in benefits as of the date of the request, December 1, and illuminate with specificity which employ- ees have received improved benefits and what those benefits include. ltem four, according to the testimony, would provide an aggregate total of costs to the hospital of the improved benefits, thus enabling the Union to determine what bargaining posture to assume in its representation of unit employees. The fifth item relates to classifications of employees referred to in item one. It also relates to the cost of benefits panted as of December 1, and prospective benefits. According to the testimony, the Union needs this data in order to determine what the net increase relates to, and the amount of money involved, in costs to the Respondent. V. CONCLUSIONS At the heart of this dispute, and ultimately the issue to be resolved by arbitration, is whether the words "net addition- al increase" encompass more than wages. Both sides to this controversy raise cogent arguments in furtherance of their objectives. The only issue subject to determination in this forum is whether the Respondent is in violation of its statutory obligation by refusing the Union's request for data. The General Counsel and the Charging Party aver that the latter needs this mformation in order to properly process the arbitration case. The Respondent contends that the requested information is not germane to the collective-bargaining ageement and furthermore, the unit employees received a 5-percent, across-the-board increase, the same benefit inuring to nonunit employees. Respondent argues that CoIlyer3 is controlling and cites Roy Robinson lnc., d/b/a Roy Robinson Chevrolet, 228 3 Collyer Imuiated Wwe, A Gul/and Western System Co., 192 NLRB 837 (1971). ST. JOSEPH'S HOSPITAL 1 1 19 NLRB 828 (1977), for the proposition that Col!yer is still Board p o l q . Neither case. either factually or legally, supports the Respondent's position. Deferral of the instant case is inappropriate because the contract's terms do not autho- rize the action taken by the hospital. i.e.. the withholding of information relevant to an issue to be arbitrated. Thus the instant case does not fall within the area of contract interpretation. and should not be deferred under the Collyer precepts. This is not a matter for deferral to arbitration becaust the material is sought clearly as a statutory, rather than z contract, right. E.g.. The Timken Roller Bearing Companj; 138 NLRB 15 (1962). enfd. 325 F.2d 746 (C.A. 7, 1963). It has been firmly established that a union is charged with the statutory duty af representing employees in the bargain~ng unit, and in the performance of that duty it har the right to information which is reasonably relevant to the discharge of its bargaining obligation. N. L. R. B. v. Truitt Manufacturing Companv: 35 1 U.S. 149 (1956); Fafnir bearing Co. v. N.L.R.E., 362 F.2d 716, 721 (C.A. 2, 1968). The Respondent. neither at the hearing nor in its brief, has raised any rebuttal to the union's-explanation of the necessity for. and relevance of, the information requested. Curtiss- Wrighr Corporation, 145 NLRB 152 (1963), enfd. 347 F.2d 61 (C.A. 3, 3965). Nor does it argue that the information. even if relevant. is of such "picayune significance" that the withholding of same would not impede the Union in its proper function- ing. Cf. American Standard, Inc., 203 NLRB 1132 (1973). The Respondent does not defend on the basis that the Union seeks information relative to employees outside the bargaining unit, or that production of the information would be unduly burdensome. Rockwell-Standard Corpora- tion, 166 NLRB 124 (1967); Pennw, Inc., 212 NLRB 675 (1974). Although the contract dispute is presently within the arbitration machinery, in my view. the responsibility of the Board "in aid of the arbitral process" is not diminished. Acme Industrial Co., 150 NLRB 1463 (1965), 385 US. 432 (1967). Where the Respondent has acted in fundamental derogation of its duty to bargain, it is not necessary to show "antipathy towards the union" in establishing the violation. Guerdon Industries, Inc., 217 NLRB 1018 (1975). The Respondent herein has raised no factual or legal lssues in sipport of any argument in favor of depart;nE from well-established Board precedent. Accordingly, in m!. judgment? there has been shown sufficient relevance of the requested information to warrant a finding that the Union is entitled thereto. 1 The Respondent 1s an employer engaged in com- rrlercc w ~ l h ~ n the rneanlng of Sectlon 2(6) and (7) of the A ( I 2 l IN I lnlon I. 2 labor organization within the nlc.inlnp ol hccllon 2 ( 5 ) ol the Act. 111 rrli~\~np co ~urnrsh the Union with the data I L ~ I I L \ I C ( I I I I I I \ icllc~ dCJecember 1. 1976. the Respondent r t I I I \ ~ Y I 1 0 I L I I ~ A I I ~ w~th !he Umon and thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and Section 2(6) and (7) of the Act. 4. By the foregoing conduct, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. and is thereby engapng in unfair labor practices within the meaning of Section 8(a)(l) of the Act. Having found that the Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, including the furnishing of certain information to the Union, found relevant and necessary herein to administer its bargaining obligation^. In one of the early cases, Curtiss- Wright Corporation, supra, when the issues were still novel, the Administrative L ~ W Judge recommended a narrow order departing from customary procedure and expressly recommended that no notice be required. The rationale for that recommended Order was that months before the hearing in that case, the respondent furnished the union the requested data malung it a declaratory judgment matter, perhaps even a moot case. No exceptions were taken to that recommendation. The same Administrative Law Judge in Goodyear Aero- space Corporarion, 157 NLRB 496 (1966), enfd. 388 F.2d 673 (C.A. 6, 1968), for the reasons expressed in the Curriss- Wright case, did not require a notice, stating that the rationale was equally applicable in the ~oodyea; case and he adhered to that precedent. He determined that this is the type of case where the furnishing of the data is sufficient to remedy the unfair labor practice, and general notification to all employees serves no useful purpose. In Western Electric, Inc., 225 NLRB 1374 (1976), the Administrative Law Judge relied on Curtiss- Wright Cotpo- ration in not recommending that the respondent-cease and desist from any like or related conduct or post an appropriate notice to employees. The Board foind that case to be distinguishable from Curtiss-Wright, for the reason that the information sought had been furnished to the union therein prior to the hearing, whereas in Western Electric the respondent did not evidence its intention to comply with the Act by furnishing the information prior to the hearing. The instant case, in my judgment, is controlled by the Board's rationale in Western Electric, in view of the fact that there is no evidence that the information in question has been furnished to the union representatives. Thus, it is necessary and appropriate in order to fully remedy the violation herein that the Respondent be ordered to cease and desist from any like or related conduct and to post an appropriate notice to employees. Upon the foregoing findings of fact, conclusions of law, and the entire recoru, ana p&ant to Section 10(c) of tne Act, I issue the following recommended: 1 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent, St. Joseph's Hospital (Our Lady of Providence Unit), Providence, Rhode Island: its office% agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to furnish Rhode Island State Nurses' Association, the Union herein, with the information specifically set forth and contained in the Union's letter to the Respondent dated December 1, 1976. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Henceforth, and upon request of the above-named labor organization, furnish it with the information specifi- cally set forth and contained in the Union's letter to the Respondent dated December 1, 1976. (b) Post at its premises copies of the attached notice marked " ~ ~ ~ e n d ~ x . " 5 copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized representa- tives, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places. including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclus~ons, and Order herein shall. as provided in Sec. 102.48 of the Rules and Regulat~ons, be adopted by the Board and become its findmgs, conclusions, and Order, and aU objections thereto shall be deemed waived for all purposes. 5 In the event that the Board's Order is enforced by a Judgment of a U ~ t e d States Coun 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 Scata Coun of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONN LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and to carry out its provisions. WE WILL NOT refuse to furnish Rhode lsland State Nurses' Association with the information set forth and contained in the Union's letter to us dated December 1, 1976. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act. WE WILL furnish the above-named labor organiza- tion with the information it has requested in its letter to us dated December 1, 1976. ST. JOSEPH'S HOSPITAL (OUR LADY OF PROVIDENCE UNIT)