Staten Island University Hospital

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 286 Staten Island University Hospital and New York State Nurses Association. Case 29–CA–23193 June 13, 2001 ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND TRUESDALE The administrative law judge’s decision in this matter issued on June 22, 2000. On that same date an Order was issued transferring the matter to the Board for con- sideration and decision. In his decision the judge found that the Respondent did not violate Section 8(a)(1) and (5) of the Act when it refused to provide the Charging Party with a copy of a contract that the Respondent nego- tiated with another employer to provide certain rehabili- tative services. Subsequent to the judge’s decision and transfer Order, and in connection with an arbitration pro- ceeding which involved the same set of facts as those presented to the administrative law judge, the Respon- dent provided the Charging Party with a copy of the re- quested contract. In return, the Charging Party agreed to request that the instant matter be withdrawn. That re- quest was filed with the Board on March 20, 2001. Based on the foregoing, the Charging Party’s request to withdraw the subject case is approved. Accordingly, the complaint that issued in this matter on February 17, 2000, is dismissed.1 Emily DeSa, Esq., for the General Counsel. Kevin J. McGill, Esq., for the Respondent. Douglas L. Goldman, Esq., for the Union. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was heard by me in Brooklyn, New York, on April 6, 2000. The charge was filed by the Union on December 9, 1999, and the complaint was issued on February 17, 2000. In substance, the complaint alleges that since on or about July 14 and September 9, 1999, the Respondent has refused to provide to the Union a copy of the contract for services between the Respondent and Island Rehabilitative Service Corporation. 1 Chairman Hurtgen also approves the withdrawal request. How- ever, he wishes to note that “informational” disputes, such as the instant one, are far better left to the processes of arbitration than to litigation before the NLRB. In the instant case, it appears that the arbitrator was presented with essentially the same set of facts as had been presented to the Board’s administrative law judge. The Respondent then produced the information to the arbitrator. Thus, the information was produced in the normal course of arbitration, and there was no need for the NLRB litigation. Chairman Hurtgen believes that leaving this matter to arbitral processes in the first place would have saved public resources and would have been consistent with the central role that arbitration plays in labor relations in this country. Members Liebman and Truesdale do not address the issue of the proper forum for resolving “informational” disputes as that issue is not specifically raised by this withdrawal request. On the entire record in this case, including my observation of the demeanor of the witnesses and after reviewing the briefs filed, I make the following FINDINGS OF FACT I. JURISDICTION The parties agree and I find that the Respondent is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also is agreed and I find that the Union is a labor organization as defined in the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE The Respondent operates a hospital in Staten Island and has, for many years, had a collective-bargaining relationship with the New York State Nurses Association. The most recent con- tract runs for a term from April 1, 1998, to March 31, 2001. On June 30, 1999, the Respondent sent a letter to the Union stating its intention to subcontract out hemodialysis services that had previously been performed by about nine bargaining unit nurses. The letter read: This letter serves as the twenty (20) day notice of the position elimination of 6.6 RN FTE’S in the Hemodialysis Unit effective August 1, 1999. Staten Island University Hospital will no longer be providing Hemodialysis ser- vices. This position elimination will be guided by the provi- sions of Section 4.14 and 4.15 of the . . . collective bar- gaining agreement. Please contact me to set up a convenient time to dis- cuss the process for this displacement. Section 4.14 of the contract (entitled job security), provides, in substance, that no RN with 4 or more years of service shall be laid off unless (a) the State mandates closure of beds, (b) the Hospital closes beds due to sustained decreased census, (c) the Hospital curtails services, (d) the hospital has a sustained pro- jected financial loss, or (e) there are future circumstances which threaten the hospital’s operation or acute care status. Section 4.15 of the contract provides for a system whereby seniority is used in the event of layoffs or permanent displace- ment. On July 8, 1999, the Union filed a set of grievances regard- ing the anticipated change. The grievances charged that the employer violated section 4.14, 4.15, 16.05, and abused section 14. Section 16.05 is a successor clause which purports to bind any corporate or operational successors or assigns of the hospi- tal. (This would hardly be applicable to the present situation). Section 14 of the collective-bargaining agreement is a man- agement-rights clause which reads as follows: Except as otherwise provided . . . the Employer retains the ex- clusive right to hire, direct, and schedule the working force; to plan, direct, and to control operations; to discontinue, subject to the provision of this article, or reorganize or combine any division or branch of operations; however employees affected by such reorganization or combination shall have the option 334 NLRB No. 40 STATEN ISLAND UNIVERSITY HOSPITAL 287 to take similar jobs at the Hospital or transfer to the new divi- sion or branch; to hire and layoff employees; to promulgate rules and regulations; to introduce new or improved methods or facilities regardless of whether or not the same causes a re- duction in the working force and in all respects to carry out, in addition, the ordinary and customary functions of manage- ment. None of these rights shall be exercised in a capricious or arbitrary manner. [Emphasis added.] Finally noted is section 16.06 which states, in substance, that the parties “acknowledge that they had full opportunity. . . prior to the execution of [the agreement]. . . to make any demands or proposals” and that neither party during the life of the agree- ment has an obligation to bargain with respect to “any matter, whether included or not included in this agreement, except as provided in this agreement.” On July 13, 1999, a meeting was held between the parties re- garding the hemodialysis unit where the Union took the posi- tion that elimination of the jobs was a violation of the contract. At this meeting, the Union’s representative, Jacqueline Car- taldo, requested certain information and this was confirmed by letter dated July 14, 1999. On July 14, 1999, the Union transmitted to the hospital, a re- quest for information as follows: 1. Rationale for change in the provider of hemodialysis services. 2. Expected benefits for Staten Island University Hos- pital. 3. Name of company providing service. 4. Corporate structure of new entity. 5. Contact persons including, names, addresses, and phone numbers. 6. Details regarding transaction. (a) Type of transaction. (b) Financial arrangements. (c) Relationship of new entity to hospital. (d) Status of hemodialysis unit in the hospital. 7. Entity paying employees’ salaries. 8. Are current bargaining unit RN’s being offered posi- tions by new entity? 9. Will bargaining/non-bargaining unit RN’s be of- fered positions by the new entity? In response to the Union’s request for information, the hospi- tal, on August 11, 1999, replied as follows: 1. The rationale for the change in provider for hemodi- alysis is that the service can be provided in a more cost ef- fective manner. 2. The expected benefits for SIUH is cost savings. . . . 3. The services will be provided by Island Rehabilita- tive Services Corporation. 4. Island Rehabilitative Service Corporation is a sepa- rate entity, totally independent from the hospital. We are not aware of the details of their corporate structure. 5. The contact person is. . . . 6. Details regarding the transaction: (a) Island . . . has been contracted to provide hemo- dialysis services to inpatients who are acutely ill and in renal failure. Staff equipment and supplies will be provided by Island. . . . (b) The financial arrangements are set forth in a contract for service agreement. (c) Island . . . is an independent contractor and not a partner or joint venture with the Hospital. (d) The Hemodialysis unit in the Hospital has been eliminated and replaced with an outside vendor. 7. Island . . . pays the salaries of their employees. 8. The current bargaining unit RN’s were offered other comparable positions with the Hospital. As of today, all but one, has accepted another position that maintains their status and salary. One RN voluntarily chose not to take a vacancy or exercise bumping rights. She instead requested the layoff and recall rights. This was agreed to by the Hospital. 9. Employment opportunities would at the discretion of Island. . . . On August 20, 1999, a meeting was held between the parties where, among other things, the Union requested a copy of the contract between the Hospital and Island. This request was memorialized by a faxed letter dated August 25, 1999. On August 25, 1999, the hospital responded and stated that “in order to evaluate your request, we would need to understand the relevance of this information to the hospital’s responsibility to bargain in good faith . . . regarding the Hemodialysis unit.” By letter dated September 9, 1999, Cataldo, on behalf of the Union, faxed a letter to the hospital reading in part: In your letter, you questioned the relevancy and neces- sity of my request for information. As I indicated to you at the meeting on August 20, 1999, this is important be- cause the company taking over is employing registered nurses who will be taking over work done by bargaining unit members on hospital premises. Those members have had their positions eliminated. We are also concerned about the employment condi- tions for bargaining unit members on other units on the hospital. You stated at the August 20th meeting that the Island registered nurses would be dialyzing patients di- rectly on the critical care units. You also indicated that bargaining unit members would be required, if necessary, to respond to emergency situations such as a code. These employment conditions and the aforementioned interac- tions between NYSNA union employees and Island Rehab non-union employees affect our bargaining unit. The Respondent has refused to furnish a copy of its contract with Island and that is the only issue in the present case. There is no contention being made by the General Counsel that the Respondent has failed to bargain in good faith regarding the subcontracting of the hemodialysis work or that the Company has failed and refused to provide any other relevant information regarding this transaction. In the meantime, the grievance progressed up the grievance ladder and an arbitration hearing was scheduled for some time in May 1999. The grievance, to the extent it contends that the successorship clause has been breached is, in my opinion, with- out any merit at all. The grievance also asserts, however, that DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 288 even if the hospital may have the right to terminate the hemodi- alysis unit under the management-rights clause, the exercise of that right cannot be arbitrary or capricious. III. ANALYSIS With respect to information requests (either by unions or companies), the Board uses a broad discovery type of standard to determine the relevance of the request. Potential or probable relevance to the filing of a grievance is deemed sufficient to require the requested party to provide the information. Bell Telephone Laboratories, 317 NLRB 802, 803 (1995). More- over, it need not be shown that the information, if given, would aid the requesting party in advocating its grievance. It may be relevant for the purpose of giving that party information which would dissuade it from wasting its time and money in going forward with a grievance that would not be successful. NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967). Where, however, the information sought concerns matters outside the bargaining unit, the burden is on the requesting party to show the relevance of the material sought. Connecticut Yankee Atomic Power Co., 317 NLRB 1266 (1995). Typically, requests by a union for contracts that an employer has with another employer fall within this category and the union has the burden of establishing relevance. For example, in Southwest- ern Bell Telephone Co., 173 NLRB 172, (1968), the Board rejected a union’s right to information about the cost of subcon- tracting because the employer never contended that cost was a factor in its decision to subcontract. Similarly, in Detroit Edi- son Co., 314 NLRB 1273 (1994), the Board found that a re- quest for subcontracting information was legitimately refused where the collective-bargaining agreement gave the company the right to subcontract and there was no showing that the in- formation was sought for any purpose relating to contract ad- ministration or negotiation. In F. A. Bartlett Tree Expert Co., 316 NLRB 1312 (1995), the union, during the course of the contract negotiations, re- quested copies of the employer’s contracts with its customers. Its request was based on the theory that the contracts were nec- essary in order for it to make its own proposals regarding wages because the employer asserted that it could not grant a uniform wage rate because its own contracts had different prices which would therefore not allow it to pay equal wages to all employ- ees irrespective of what contract to which they were assigned. In rejecting this theory, the Board noted that the union was seeking information that was not presumptively relevant for collective bargaining and that given the nature of the contract bidding procedures, the General Counsel could not “claim that the Union would need to examine the contracts in order to as- sure itself that the customers were not all paying the Respon- dent exactly the same amount on each contract.” In the present case, the Union filed a grievance alleging that the hospital’s elimination of the hemodialysis unit constituted a breach of contract in that although the collective-bargaining agreement may permit the hospital to eliminate this unit, the hospital, under the contract, could not exercise that right in an arbitrary or capricious manner. That is, the Union did not con- tend that the collective-bargaining agreement was breached simply because bargaining unit jobs were taken over by and performed by the employees of a subcontractor. Therefore, the only grievable issue is whether the hospital’s decision was arbi- trary or capricious; a substantially different and more difficult hurdle for the Union to surmount. Any information request therefore has to be relevant to the issue of whether the elimina- tion was arbitrary or capricious. In response to the Union’s requests for information, the hos- pital furnished substantial information and met with the Union to discuss the matter. What the hospital refused to furnish was the actual contract between it and its subcontractor. The reason stated by the Union’s representatives for wanting copies of the contract was that bargaining unit members would be required, if necessary, to respond to emergency situations such as a code and that such interactions between hospital nurses and the subcontractors nonunion nurses would affect the bargaining unit. This, to me, is essentially a conclusory state- ment. There is nothing in the asserted rationale which explains to me in what way the interactions between the employee of Staten Island Hospital and employees of its subcontractor would have on the wages, hours, or other terms and conditions of employment of the represented unit.1 In my opinion, Hospital Episcopal San Lucas, 319 NLRB 54 (1995), is distinguishable. In that case, the union sought the contract that the employer made with a subcontractor which operated the respiratory therapy unit within the hospital. A copy of the contract was not sought in order to determine if the employer had breached any provision of its existing collective- bargaining agreement. Rather, it was sought to enable the un- ion to respond to the employer’s last offer for a contract and the union wanted to see if similar unrepresented employees were being offered comparable wages. Unlike the present case, the union in Hospital Episcopal San Lucas was seeking copies of the contract for the purpose of contract negotiations and not, as here, for contract administration purposes.2 Nor controlling, in my opinion, is Bell Telephone Laborato- ries, supra. In that case the Board held that a copy of a subcon- tract was relevant to a union’s grievance inasmuch as the ma- jority concluded that there was a particular contract provision which could be relied on by the union and to which the infor- mation was arguably relevant. This is not the case here as the asserted reason for the Union’s request for the contract would not, in my opinion, be either helpful or harmful to the Union’s grievance and to its assertion that the elimination of the hemo- dialysis unit was arbitrary or capricious. Thus, in my opinion, a copy of the contract between the hospital and the contractor would add nothing of substance to the information that the hospital has already furnished to the Union in response to its request.3 1 There are many situations where bargaining unit employees of one company work in close contact with employees of a subcontractor. Does that mean, that such a relationship, by itself, would give any union the right to obtain the commercial contracts between separate employers. 2 In Lakeland Bus Lines, JD–06–99(NY), I discussed the difference between information requests made in the context of collective bargain- ing and those made for contract administration purposes. 3 The present situation is also distinguishable from cases where a un- ion requests contract information between two ostensibly separate STATEN ISLAND UNIVERSITY HOSPITAL 289 CONCLUSION OF LAW The Respondent has not violated the Act in any manner al- leged in the complaint. On these findings of fact and conclusion of law and on the entire record, I issue the following recommended 4 companies where the Union has objective and good-faith reasons to believe that the two entities constitute a single employer. Anchor Motor Freight, 296 NLRB 944, 948 (1989). 4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. ORDER The complaint is dismissed.