Washington Gas Light Co.

116 DECISIONS OF. NATIONAL -LABOR RELATIONS BOARD • Washington Gas Light Company and International Union of Gas Workers. Case 5---CA-1205,2. • 7 December 1984 -; s• _ 'DECISION AND'OILDERr BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS • „ On 17 December 1980 -Administrative Law Judge James L. Rose, issued the attached decision. The General Counsel _and the-Charging Party_ filed exceptiOns and supporting briefs. The Respondent filed dross-exceptions and the Charging . Party filed a\brief in response to the Respondent's cross-excep- tions.' • "... , The National Labor Relations Board has-delegat- ,ed .•its;_authority in this proceeding to ,a three- member panel. : , • • The Board has considered the decision and he record in light of the exceptions and briefs and has decided 'to affirm the judge's rulings; findings, and •conclusions only 'to" the extent consistent with this Decision and-Order.' - case concern whether the Respondent vio- lated Section-8(a)(5) and (1) of the Act by refusing -to furnish the Union with employees' disciplinary 'records which the ;Union requested in preparation -for an,arbitration hearing concerning the discharge of-employee Howard Smith. The judge found no violation-. We disagree. . 0n: 26 "September. , 1979 .Smith had two drinks prior-„'to ,reporting to work. He refused. his ' fore- man's order to take a blood test and a urinalysis, pursuant to:-the Respondent's policy. -Fle- was dis- charged, and he subsequently. filed a grievance., Approximately a week prior to the arbitration •hearing,1 the Union 'learned that four employees in the, past had been _disciplined, but _ not discharged, • for 'being -intoxicated. Consequently,. it requested that the Respondent furnish it with "All records of disciPlinary action, relating to the following 'em- plOyees or- former employees: Philip Gore; Clar- ence 1 Fullen G'eOrge -Tharnngton, and 'Satter- white." (Fullen 'and Gore were no longer emplciy- ees.) The .Respondent's attorney replied that em- ployee files were 'confidential and .thatits practice "-.was not to release information from the file with- .'out employee cOnserit. He -suggested that the-Union -contact the 'four people and ask thenn to review their files with the Union. Alternatively, the Union could have the individuals sign a written release or call 'the 'personnel department, identify 'themselves, and give an .oral 'release' authorizing the Union to The Union's request for oral argument is denied as the record and the briefs adequately present the Issues and positions of the parties 273 NLRB No. 20 ,look at,The file, The Union's attorney .,rejecte.d the Respond.ent's proposed alternatives.„ because, it „claimed an unqualified right, to _the information re- quested. The disciplinary records were never_ fur- -nished. Ultimately, the arbitrator ordered Smith re- instated. - • '• - • - The judge-found that the disciplinary .records re- -:quested-•.by the Union were' relevant to the', issue in 'arbitration of whether Smith had been- treated dis- parately from other employees whohad- been disci-, , plined,,for _being intoxicated. Relying, on ,,rationale of the Supreme Court in NER:13 'v. Deb-0 Edison .‘ Co 446-U.S..301 ,(l97,9), however, the judge fostind reasonable , the Respondent s..position. that the em files weie . confidential.,in,their .entirety. In particular, he noted ..that,-sorne of, the files contained :medical repOrts'cOnCerning,intoxica- tion or explaining lengthY 'ab-sences ,frorne Having ,accepted the, legitimacy .orthe ReSpond- ent's. confidentiality claim, the judge fönrid=that,the Respondent reasonably . refused to release' any pOr- tion of a-perSonnel.file to the Union withOut the "in- dividual's consent. Noting .' that 'the Unit* had not , - . •• stated why the RespOndefit's conditional offer . . -•' could not Meet its needs, the judge recommended • , .dismissing the complaint in its entii-ety.,, • , It, has. •long been held that ,,an enip- loyer 'liiis an obligation to ,. provide a union with ;.information ,which is reasonably necessaryfOr..the .urriOn!s., per- formance Of its :representative duties, inatrding'the •proCessing of grievances. 2 The? teSt for the' Union's .need for the information is whether the information ,_sought is probably. Cr potentially relevant- to...the execution of:those statutory cluties. 3' .agree With, the jUdge's finding that the information requested by the Union here was relevant to the handling:Of Smithls, grievance- The Supreme Court .held in Detroit Edison, how- .. ever,_that-a,union's ,interest inprguably releyant, in- ,. formation does not always predominate? Over ., all • .other,interes,ts. Rather, the court indicated that termining the employer's dutytO supply such infor- mation when it is assertedly cOnfidential . reqUireS a balancing of the uniOWS .-. need ,for, the information against the legitimate and„suhstantial:Fonfidentiality interests..of,the employer.' The party asserting- the claim, of. confidentiality has the bUrclen Of,procifg; We find that the Respondent„basjailecl,to,prove that its general corifidentiality, ,clatin ,Nrith-,respeci to , all _matenal„in . employee personnel files Outeighs the Union's need for the inform-anon' -requested 2. NLRB v 'Truitt Mfg Co ,: 351 U S'149 (1956).-poubarni,Sheet Metal, • 243 NLRB 821 (1979) C • n- = NLRB v Acme Industrzal.Co ,385 U S •;432 (1967) , -e '1 4. E g , Pfizer, Inc , 268 NLRB 916 (1984) — , r 5 McDonnell Douglas Corp , 224 NLRB 881,' 890 (1976) WASHINGTON GAS LIGHT CO r- here. There is no evidence of a clear past practice or policy of confidentiality to support-that-claim. The Respondent has neiler informed the employees that their files were confidential; the emplbyees have not requested 'a confidentiality' policy. The Respondent's own officials had free aCcess;th the files, and they freely disclosed to the Union certain disciplinary information subsequently. -recorded in the files. Finally,- the Board has recognized that the normal practice in -private arbitration is to compare employee work 'records in deciding whether con- tested discipline 'wasdiscriminatory. 6 Consequent- ly, this case is fundamentally different from Detroit Edison, where- the einployer had promised the em- ployees that the information - 'requested - would remain private. 7 Further, even assuming that the Respondent had a confidentiality plan, the Board has repeatedly rejected the blanket confidentiality claims as an inadequate defense for an employer's per se refusal to furnish any information, from an employee's file. 8 There must be , a7 more specific ' demonstration of a confidential intere'st in the par- ticular inforination requested. The Respondent 'raised a more limitedconliden- tialilty :defense foi the first time at the Board hear- ing. It maintained that it could not unconditionally turn over,, the disciplinary records to' the Union be- cause they contained references -to medical prob- lems such as 'alcoholismit as well as a recommenda- tion for an employee to 'S'eek Counselitig for alco- holism. In response, the Union has disclaimed, any interest in securing medical information: It sired records relating -to "the level of discipline im- posed on the four . individuals." ..." The Board has found the identity of individuals who suffer from medical disorders to be cOnfiden- tia1. 6. From examining the disciplinary records in- ` trOduced at the hearing with the individual names deleted,- however, it is evident that' not all of the requested disciplinary records contained references to medical problems. The possibility that the -fur- nishing- of the disciplinary records may include some references 'to ' a ' medical problem, does not excuse the Respondent' from complying : with the request to the extent that it includes infOrmation:as to Which an .adequate defense has not been - I Plizer,,Inc, supra at 918-919 , . This case-is likewise distinguishable from New Jersey Bell Telephone Co '1, NLRB, 720 F 2d 78-9 (3d Cir 1983) There, the court found that an irriployer had lawfully refused, on the basis of an established employee confidentiality plan and the lack of written consent of the, employee In- rived, to hand over highly personal and sensitive absence and ,tardiness .records 8 E g, Sour&estern Bell' Telephorie'Co: 251 NLRB 612 (140), -Fawcett "Printing Corp ,'201 NLRB 964 (1973)' ' -, 9 Johns-Manwlle Sales Cor`p , 252 NLRB 368 (1980) , ;raised. °. The- Respondent. breached_ its collective- - bargaining - obligatiOn,. when, ,it,.refirsed to ,- provide the Union with the disciplinary, records requested, at least to the extent that theyclid not contain- ref- - erences to medical -probleins,-A'Ccordingly, we. find that the Respondent violated .Section. 8(a)(5) and -(1) of the Act. 44 • i+. THE- REMEDY Having found that the Respondent , engaged in -, unfair labor practices, we shall recommend that it be ordered to 'cease and desist-therefrom and 'that it take certain affirmative action .neceSsary to- effectu- ate the policies of the Act._ , We shall, inter alia(rrequiiie the Respondent to furnish the Union, on . request, . the disciplinary records of emplOyees Orfortner employees, Philip - Gore, Clarence, Fulien, :GeOrge Tharrington, arid - Satterwhite to , sthe _extent , the ,records .do _not in- 'medical medical information. • - 'ORDER 'The National- Labor, Relations Board , order that the Respondent, Washington Gas Light Company, Washington, its Officers, 'agents, successors, and assigns:- shall 1: Cease' anci desist - (a) Refusing to bargain collectively with Interna- tional Union of qg Worker§-bY refusing to furnish the-requefted disbiplinarY iec-Ords 'of employees or former-emploYee§' Philip . bore, 'Clarence 'Fullen, :George Tharriiiifon,, and Satterwhite'fo the' extent 'thaf records do -n, OthiClude'indlyidual medical information. ` „ (b) In any like or „related mariner interfering with; restraining; 'Or coei-CiiieemPlOyee in the ex- ercise of the rights, guaranteed them by Section 7 of the Act. 2. Take the ,following. affirmative action which is , necessary to ,effectuate.thepolicies_of the Act., (a) , On_ request ,fiirnfsh. ,the,,LJnion the requested disciplinary records- ,of. employees; or former.,em- . ,ployees-. -Philip :;GOre„ -..Clarence -Fullen,. George Tharringtort, anth.Satterwhite to the extent' that - such 'records dO ;'nOt inClude 'individual medical in- forinaticin. ' — ',- ` (b) Nist. at ifeoffiCe` COpies-of the'attached`nlitice marked .."Appendix," 1. ,Copies of the notice; on ' 9 Minnesota Mining -tt Mfg Lo, 261 NLRB 27 (1982),"enfd 711 F2d 348 (DC Cir 198,3), Fawcett Printing. Corp , 201 Ni_lq 964, (1973)' " IbaSmuch as the Union" 'ffas ,neNier 'sOught 'the 'confidential medical Information, we shall order, the ResPondent to furnish the Union the dm- ' ciplinary records with ,the 'Medical inforbiation deleted 12 If this Order is enforced by,a Judgment of,,a. United States Court of Appeal tbe ord in 'the-notice'rebdirig "Poited bY`Orde'r orthe Na- ',tional'LU'bor RelationS' -"Posted' PiirsuaVto -a-Judgment :of the United States Court of Appeals-EnfoiCing,an,Order orthelslation- al Labor. Relations Board. " ,.1 .„1.• • 118 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD foims provided by 'the' kRegional Director for Region 5, 'after being signed by-the Respondent's authorized' representa&e, shall be posted by the - Respondent' immediately upon receipt and- main- tained fig' '60. consecutive .days in conspicuous places including all -places where notices to em- ployees are customarily posted Reasonable' 'steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material . • . 't (c) Notify the . Regional .'Director in writing within 20 days from' the date of this Order what steps the Respondent has taken 'to comply APPENDIX , ' NOTICE'TO EMPLOYEES POSTED BY ORDER OF THE ,, NATIONAL LABOR RELATIONS BOARD An Agency of die Uinted States' Government , , The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to pcist ãhd abide by this notice WE WILL NOT in, aily like or 'related manner interfere with, restrain, or coerce ,employées in the exercise of the rights guaranteed 'them by Section 7 . of the Act , f • I WE.WILL on request furnish, International Union of .Gas Workers the :requested disciplmarSi records Of employees oi former ,einifloyees Philip Gore, Clarence Fullen, GeorgeeTharnngton, and Satter- white to the extent that such records, do not in- clude individual medical information WASHINGTON GAS LIGHT COMPANY STATEMENT OF THE .CASE . JAME; L ROSE, Adinnustrativi"Law - Judge This matter 'was tried before me on October 21, 1980, at Washington, D C, upon' the General Counsel's complaint -which alleges that the Respondent.. vidlated Section 8(a)(5) of the National Labor Relations Act by refusing to' turn over, to the„Charging Party certain personnel records of employees and former employees Re- spondent denied, that it has committed any unfair labor practices- - ft - On the record' as a whole, including briefs and argu- ments of the General Counsel, I make the following • FINDINGS OF FACT.AND:CONCLUSIOHS ()FLAW - f ! JURISDICTION., ,„ The Respondent; WAshinitbn, gai Light Company, is a corporation organized under the laws Of, the Diitnct of Columbia, and is, engaged,-in the operation of a public utility, supplying natural gas to customers in the -Wash- ington, D C area The Respondent• annually receives in excess of $250,000 in gross revenues and annually pur- chases and receives goods and services valued in excess of $50,000 directly from points outside the District of Columbia The Respondent admits, and I find, that it is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The International Union of Gas Workers (the Union or the Charging Party) for many years has represented the Respondent's production employees and has negotiat- ed successive collective-bargaining agreements The one in effect when the events here occurred was from June 1, 1979, to May 31, 1980 It is admitted and I find that the Union is a labor organization within the meaning of Section '2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background Facts On September 26, 1979, employee Howard L Smith was discharged for being under the influence of alcohol Briefly, Smith had two drinks of vodka prior to report- ing to work on the morning of September 26, and ap- peared to his foreman to be under the influence Thus, pursuant to the established procedure in such matters, the foreman ordered Smith to a medical laboratory to take a blood test and urinalysis Smith refused to do so which,% according to the Company, was tantamount to an admission of being intoxicated Following an extended altercation he was dismissed An arbitrator concluded that the discharge was unreasonable, that company offi- cials had led Smith to believe his refusal to take the lab tests would result only in a 10-day suspension Further, when 'Smith was advised that he was being terminated, he agreed to take the tests, but the Company then re- fused to let him Accordingly, the arbitrator sustained the grievance, ordering the discharge reduced to a 10- day suspension About a week prior to the date set for the arbitration hearing, the Union's attorney requested four items from the Respondent, including "An records of disciplinary aCtion relating to the following employees or former em- ployees Philip Gore, Clarence Fullen, George Tharrmg- ton,-and Satterwhite" The Respondent refused to furnish this-material, taking the position that the personnel files of employees are confidential„ and their contents will not be released to a third party However, Paul Ford, an attorney with the Respondent, did advise the Union that the individuals in question were at liberty to review their own files and could bring along anyone they wished Ford suggested two other alternatives that the individual sign a written release authorizing Whoever to look at his file, or the in- dividual could just call the personnel department, identi- fy himself appropriately, and give an oral release Gary Lieber, counsel for the Union, rejected these proposals by Ford, contending that the Union had an ab- solute right to this information inasmuch as the discipli- nary actions against these four were relevant to the WASHINGTON GAS LIGHT CO 119 Union's defense of the Smith discharge. The Union had been advised that each had been disciplined, but not dis- charged, for intoxication. Lieber testified: That. is the way he [Ford] did offer to make them [the disciplinary records] available; through the Union's obtaining a waiver from the employees which I indicated was unacceptable. Particularly, at that late date, .but at any event unacceptable. B. Analysis and Concluding Findings Citing NLRB v. Acme Industrial Co., 385 U.S 432 (1967), the General Counsel contends that the Respond- ent's refusal to give the Union this material was a. breach of its bargaining obligations inasmuch as it was "poten- tially relevant and useful to the representative in process- ing grievances under the contractually established griev- ance procedure." The Respondent argues that the Union does riot have an absolute right to look at the personnel files of employ- ees; that the contents of employees' personnel files are confidential; and that its offer to release the information conditioned on the individual's consent was not unlaw- ful The Respondent relies on Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). I agree with the Respond- ent. It should first be noted that the material requested by the Union was clearly relevant to one of the material issues in the Smith grievance—whether he had been treated disparately from others disciplined for intoxica- tion. Indeed, excerpts from the personnel files of the four individuals named (offered in evidence with the names excised) show that one or more. of them had in fact been disciplined but not discharged for intoxication, and one had declined to take the lab tests In preparing for arbitration, counsel for the Union learned that the four individuals named in his demand had been disciplined for intoxication. Thus it was impor- tant to have records which show how the Company , per- ceived these instances (as distinguished from the individ- ual's recollection of what happened) in order to establish that Smith had been treated disparately. While the Union may have had no firm idea concerning the nature of the disciplines for intoxication, there is nothing in the record to indicate that the request of this particular material was not made in good faith Again, as the material itself shows, such was clearly relevant to issues in the arbitra- tion proceeding. Accordingly, ,the Union would be enti- tled to have access to this information in order to per- form its duty as the representative of employees, includ- ing Smith. However, the Union and the General Counsel argue, in effect, that having established the relevancy of the ma- terial, the Union has an unfettered right to it—that other considerations, such as the confidentiality of one's per- sonnel file, must yield. It is on this point, I conclude, the Supreme Court's decision in Detroit Edison is controlling Specifically, Ford stated that the Respondent would release the information with consent of the employee in question 1 Indeed, mindful that the arbitration hearing was imminent when the demand was made, Ford told Lieber that the consents need not be , in writing—that an oral communication to the personnel office with some kind of identification would suffice. The Company's position that personnel files are confi- dential is, I believe, reasonable Personnel files contain information of a sensitive nature. For instance, some of the material demanded by the Union relating to disci- pline include medical reports establishing why the indi- vidual in question had been absent for a prolonged period, as well as medical reports concerning intoxica- tion In short, that the Respondent treated employees' personnel files, including those portions relating to disci- pline, as confidential is certainly not unreasonable Hence, it was not unreasonable for the Respondent not to release any portion of a personnel file to the Union without the employee's consent. This was "unaccept- able" although no reason was given why the Union could not or would not seek the consent of the individ- uals named in the demand letter There is no evidence that the Union sought to obtain consents. In any event, as the Supreme Court said in Detroit Edison, 440 U.S. 301, 317-318 (1979), with regard to test scores which the company there claimed to be confiden- tial: Nevertheless we agree with the Company that its willingness to disclose these scores only on receipt of consents from the examinees satisfied its statutory obligations under Section 8(a)(5). The Board's position appears to rest on the prOp- °salon that union •interests in arguably relevant in- formation must always predominate over all other interests, however legitimate. But such an absolute rule has never been established, and we decline to adopt such a rule here There are situations in which an employer's conditional offer to disclose may be warranted. This we believe is one Here no reason was advanced why the Company's conditional offer to furnish the requested material would not have met the needs of the Union Thus, on the facts here, I conclude that the Respondent did not violate its obligations under Section 8(a)(5) [Recommended Order for dismissal omitted from pub- lication.]- ' Two of the named individuals were no longer employees at the time the request was made, however, there was no showing that the Union could not find them in order to obtain their consent or that the Union even tried