Blue Cross And Blue Shield Of New Jersey, Inc.

434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Blue Cross and Blue Shield of New Jersey, Inc. and Office and Professional Employees Internation- al Union, Local 32. Case 22—CA-14917 April 11, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On September 23, 1987, Administrative Law Judge Howard Edelman issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed excep- tions and a supporting brief, to which the Respond- ent filed an answering brief. 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 the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Blue Cross and Blue Shield of New Jersey, Inc., Newark, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order. We agree with the judge that the Union waived its right to bargain over the Respondent's implementation of its home overtime work by agreeing to a contractual provision that gave management the right to offer overtime "without limitation." The Union did not, however, waive its right to verify the circumstances of this implementation or to monitor the program on an ongoing basis. Because in these circumstances the names of unit employees doing home overtime work are presumptively relevant to the Union's function m admimstermg and policing the collec- tive-bargaining agreement, and because the Respondent has not rebutted this presumption, the Union is entitled, as found by the judge, to the names of employees doing home overtime work which it requested from the Respondent by letter dated February 9, 1987. We note also that, even assuming that this basis for the Union's request was not conveyed to the Respondent until the unfair labor practice hear- ing, the Respondent's continuing refusal to furnish the information after notice of that reason for the Union's obtaining It warrants a finding that the Respondent has violated Sec. 8(aX5) and (1) and that an appropriate remedial order should be issued. See Hawkins Construction Co., 285 NLRB 1313, 1314 (1987), and cases there cited. 2 The General Counsel excepts to the judge's failure to grant a visita- torial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Proce- dure under the supervision of the United States court of appeals enforc- ing this Order. Under the circumstances of this case we find that such a clause is unwarranted. Thus, we shall deny the General Counsel's re- newed request that a visnatonal clause be included in the Order. See Cherokee Marine Terminal, 287 NLRB 1080 (1988) Marta Figueroa, Esq., for the General Counsel, Edaward P. Lynch, Esq. (Pitney, Hardin, Kipp & Szuch), for the Respondent. DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This ease was tried before me on May 26 and 27, 1987, in Newark, New Jersey. On March 16, 1987, a charge was filed by Office and Professional Employees International Union, Local 32 (the Union) against Blue Cross and Blue Shield of New Jersey, Inc. (Respondent). On April 29, 1987, a complaint issued against Re- spondent alleging violations of Section 8(a)(1) and (5) of the Act. Briefs were filed by all parties to this proceeding. On my consideration of the entire record, the briefs, and my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Respondent is a nationwide corporation engaged in the sale and issuance of health, accident, and medical insur- ance coverage. Respondent annually receives insurance preminums from policyholders throughout States of the United States valued far in excess of $500,000. Respond- ent admits and I fmd it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent and the Union have been parties to a series of collective-bargaining agreements and admittedly represent the employees employed by Respondent at its Newark, New Jersey facility who handle insurance claims in the major medical and medical surgical depart- ments.' This case involves the above employees em- ployed at Respondent's Newark facility. The parties' agreement also contains a broad binding grievance and arbitration provision that provides that "all disputes relating to the interpretation, enforcement or application arising from the terms contained within, this Agreement should be subject to arbitration. . . ." The parties' agreement additionally contains an over- time provision that provides that "Overtime should be voluntary" and that "There shall be no limitation on Management's right to offer overtime. . ." There has always been such an abundance of overtime available that any employee in the major medical and medical surgical departments can work all the overtime he or she can handle. Overtime had been worked in the There is no dispute concerning the appropriate unit, which covers Respondent's facilities throughout the State of New Jersey and encom- passes a very broad and detailed range of job titles. 288 NLRB No. 50 BLUE CROSS & BLUE SHIELD OF NEW JERSEY 435 past at the Respondent's premises. Once, in 1985, Re- spondent unilaterally implemented a system whereby em- ployees could take home overtime work. The Union op- posed this practice and Respondent voluntarily discontin- ued the practice. The issue of Respondent's right to assign overtime to be worked at home was never the subject of a grievance or arbitration. Sometime on or about the last week in December 1986, Respondent resumed the practice of permitting em- ployees to take home overtime work. Respondent's offer of overtime work to its employees was completely vol- untarily. Employees were free to request as much over- time as they could handle or not request any overtime. Overtime could be worked at home or in Respondent's facility. It was, of course, expected that with the institu- tion of home overtime work more overtime would be re- quested because it would be more convenient for the em- ployees. The take-home overtime procedure was institut- ed because of Respondent's tremendous backlog of At the time Respondent commenced the home over- time procedure, Joseph Pelizzoni, Respondent's labor re- lations manager, advised Patrick Tully, the union busi- ness agent, of Respondent's decision, and Tully requested a meeting to discuss the decision. The Union and Respondent met early January 1987. Present for the Union at this initial meeting was Tully and Brian Armstrong, a union steward. Present for Re- spondent was Barry Miragliotta, corporate accounts de- partment head, and Chester Moskel, a supervisor. At this meeting Respondent's representatives explained to the union representatives the process of offering overtime, as set forth above, and the method of compensation. It was explained to the union representatives that the employees would be paid the contractual overtime rate of pay and the hours worked would be based on the employee's word as to the actual hours worked Tully testified that the Union was initially concerned that home overtime work might be compensated on a piecework basis. I con- clude, however, that following Respondent's explanation about the method of determining the overtime hours worked, and their assurance that the contract overtime rate was being applied, there was no real dispute about the method of compensation. The grievance eventually filed by the Union, described below, did not allege this' issue. At this meeting Tully objected strongly to Re- spondent's practice of offering home overtime work. He requested permission to meet with the affected unit em- ployees and such permission was granted. Tully thereafter conducted two meetings with the unit employees. At both meetings he informed the employees that the Union strongly objected to employees perform- ing overtime work at home. Etc explained to them that the Union believed that performance of such work vio- lated their collective-bargaining agreement. He also ex- plained that the Union's constitution provided that em- ployees who violate the agreement can be brought up on charges and fined or expelled from the Union.2 2 The parties' collective-bargaining agreement contains a standard union-security clause requirmg membership in the Union as condition of employment. Followmg these employee meetings, a number of em- ployees expressed concern to Miragliotta that they might be fined or suspended from the Union if they accepted home overtime work. On January 14, 1987, the Union again met with Re- spondent. Present for the Union was Tully, Armstrong, and Jonice Allen, chief steward. Present for Respondent was Pelizzoni, Miragliotti, and MoskeI. At this meeting, based on the credible testimony of Pellizzoni and Mirag- liotta, Tully objected to Respondent offering overtime home work at home and demanded the names of the em- ployees performing such work. He stated there would be a union meeting that week and it was his intention to recommend fmes and suspensions for the employees per- forming such work. Tully and Allen testified that they requested the names of the employees to determine whether Respondent was distributing the offsite work evenly. I do not credit such testimony. It is admitted that there was such an abun- dance of overtime work that any employee who wanted to work overtime could work as much overtime as he or she wanted. On January 16 the parties met again. Respondent's representatives advised Tully they would not provide him with the names of the employees doing the home overtime work because employees had expressed con- cerns to them about the Union's intention to bring them up on charges, which could result in fines or suspensions. Respondent, however, agreed to provide the Union with any other information relating to any other aspect of the performance of home overtime work. The issue of Re- spondent's huge backlog of claims, which was responsi- ble for the overtime work, was then discussed, and the union representatives stated they wanted to help Re- spondent reduce this backlog. Tully testified he again re- quested the names of the employees doing the home overtime in connection with the Union's attempts to help Respondent to reduce its backlog. I discredit this testi- mony because on January 16, following this meeting, Allen wrote a memo to Miragliotta in which she request- ed certain enumerated information concerning the home overtime work "In order that we might assist you" in re- ducing the backlog. Nowhere in this memorandum were the names of employees sought and nowhere in the memorandum was there any suggestion that the informa- tion was requested for any purpose other than to assist the Company in reducing its work backlog. B. The Union Files a Grievance On February 3, 1987, the Union submitted a grievance to Respondent under the grievance provisions of the agreement. The grievance states in its entirety: This is to protest the Company's practice of en- couraging bargaining unit employees to take home work. The Union demands that this practice cease and desist immediately; in this area and all others throughout the corporation where it is implement- ed. 436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Also, since Mgmt. did not choose to subcontract, the Union protests that work is being performed at locations other than those cited in Article I. Shortly after receiving this grievance, Miragliotta con- tacted Union Steward Armstrong to set up a first-step grievance meeting. At that time, Armstrong indicated that he did not wish to meet on the grievance, but pre- ferred to wait until Respondent responded to an informa- tion request in relation to the grievances by Allen. Short- ly thereafter, Miragliotta received the February 9, 1987 written request for information, which was related to the above grievance. That request began: "In order to pro- ceed, the Union needs the following information:." There followed nine separate numbered requests for informa- tion, number 3 of which sought the names of those per- sons participating in the overtime project. Subsequent to the February 9 request, Blue Cross sent the Union a series of documents in which Respondent complied with all the information requests made by the Union in its February 9 request, with the sole exception of the names of the employees actually performing the overtime work. Sometime in early March 1987 the Union made an oral request for additional information, related to the Febru- ary 9 requests, in a telephone discussion between Allen and Miragliotta. This oral request was reduced to writ- ing on March 30. This information was also provided by Respondent. It is undisputed that the Union has received all information that it requested in the February 9, 1987 request and the March 30 followup request, except for the names of the employees performing the home over- time work. Analysis and Conclusion It seems perfectly clear to me that the sole reason the Union wanted the names of the unit employees perform- ing home overtime work was for the purpose of taking potential action against them pursuant to the provisions of their constitution. The issue is whether the Union is entitled to such information for such purpose. An employer has a duty to provide, on request, infor- mation relevant to bargainable issues. The law in this area is clear and well settled. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967). When the requested infor- mation concerns Wage rates, working hours, job descrip- tions, overtime work, and other information relating to employees in the bargaining unit, the information is pre- sumptively relevant to bargainable issues. Fawcett Print- ing Corp., 201 NLRB 964 (1973); Curtiss-Wright Corp., 145 NLRB 152 (1963), enfd. 347 F.2d 61, 69 (3d Cir. 1965); Timken Roller Bearing Co., 138 NLRB 1515 (1962), enfd. 325 F.2d 746, 750 (6th Cit. 1963), cert. denied 376 U.S. 971 (1964). When the request is for in- formation concerning employees outside the bargaining unit, the union must show the requested information is relevant to bargainable issues. Brooklyn Union Gas Co., 220 NLRB 189 (1975); Rockwell-Standard Corp., 166 NLRB 124 (1969), enfd. 410 F.2d 953 (6th Cir. 1969); Curtiss-Wright Corp., supra. In determining whether the information requested by the Union is relevant, the gen- eral approach has been to apply a liberal discovery-type standard to the issue of relevancy in evaluating each case on its facts. Brazos Electric Power Cooperative, 241 NLRB 1016 (1979); Acme Industrial Co., supra. The Board has held in establishing relevancy that the information is rel- evant if the information sought is reasonably necessary in order to administer a collective-bargaining agreement, detect infractions of its terms, and intelligently counsel the employees whom it represents. Brooklyn Union Gas Co., supra; Boeing Corp., 182 NLRB 421 (1970). It is clear to me that the Union's request for the names of those employees performing home overtime work was potentially relevant to its function of administering and policing the collective-bargaining agreement. The ques- tion whether Respondent violated the terms and condi- tions of the collective-bargaining agreement by offering home overtime work is presently the subject of a pend- ing grievance. If I were to conclude, as alleged in the complaint, that by offering such overtime work to its employees, Respondent unilaterally changed the terms and conditions of the collective-bargaining agreement, it seems clear to me that the Union would be entitled to pursue those procedures provided in its constitution against those employees participating in such overtime work. Such procedures would constitute part of its func- tions relating to the administering and policing of the collective-bargaining agreement. In order to proceed in this manner, the names of the employees performing such overtime work would be essential. Respondent contends that in view of concerns raised by some of its employees concerning the Union's ex- pressed intention to apply the provisions of its constitu- tion to employees performing home overtime work that might result in fines or expulsions, Respondent had a bona fide interest that the employees names remain confi- dential. Respondent further contends that under these circumstances it had no obligation to furnish the names requested to the Union under the rationale of Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). I find no merit to these contentions. The union in Detroit Edison Co. requested that the em- ployer turn over to it the test battery, answer sheets, and test scores of certain employees relating to a psychologi- cal aptitude test given employees to determine whether they were qualified for a particular position. Ten em- ployees sought the position and took the test, but were rejected on the ground that none received an "accepta- ble" score on the test. The union filed a grievance on behalf of the rejected employees, claiming that the test- ing procedure was unfair and that the Company by- passed senior employees in violation of the collective- bargaining agreement. The company refused to supply the information the union sought on the grounds that complete confidentiality of the materials was necessary to ensure the future integrity of the tests and to protect the privacy interests of the examinees. In this connection the employer's psychologists who administered the tests gave the test applicants express commitments that the scores would be confidential. The tests and scores were kept in the office of the psychologists who deemed them- selves ethically bound not to disclose the numerical test scores, even to management representatives. In the BLUE CROSS & BLUE SHIELD OF NEW JERSEY 437 course of an arbitration proceeding, after the filing of an unfair labor practice charge, the company offered to turn over the test scores of employees who would sign a waiver of confidentiality; however, the union declined to seek such releases. The Board, upholding the administra- tive law judge, ordered the employer to turn over the in- formation to the union. The Court of Appeals for the Sixth Circuit upheld the Board's order. The Supreme Court reversed the Board and the circuit court. The Court took judicial notice of the sensitivity of any human being to the disclosure of such psychological in- formation that may be taken to bear on his or her basic confidence, the Court held that: In light of the sensitive nature of testing informa- tion, the minimal burden that compliance with the Company's offer would have placed on the Union, and the total absence of evidence that the Company had fabricated concern for employee confidentiality only to frustrate the Union in the discharge of its responsibilities, we are unable to sustain the Board in its conclusion that the Company, in resisting an unconsented-to disclosure of individual test results, violated the statutory obligation to bargain in good faith. The Court also pointed out that the company had a le- gitimate concern that the secrecy of the questions com- prising the test would be comprised by turning over the test and scores to the union and that the test, which was of considerable importance to the company, would be rendered valueless. It is clear that Detroit Edison Co. represents an excep- tion to the long-established liberal policy of the Board, the circuit courts, and the Supreme Court in requiring an employer to furnish a labor organization information re- quested that is necessary in order to administer its collec- tive-bargaining agreement. Truitt Mfg. Co.; Acme Indus- trial Co.; Curtiss-Wright Corp.; Timken Roller Bearing Co.; Brooklyn Union Gas Co., supra. The facts of Detroit Edison Co. are unique and clearly distinguishable from the facts of the instant case. In the instant, Respondent is attempting to assist employees who might be arguably violating the provisions of the collective-bargaining agreement and impede the Union in its right to police this agreement. Respondent additionally contends that it has an affirm- ative duty to prevent the Union from violating Section 8(,)(1)(A) by applying the rule set forth in its constitu- tion to employees performing home overtime work. I reject this contention. I am unaware of such affirmative duty. Moreover, the Union's position concerning these employees might very well be lawful. That the Union will violate Section 8(b)(1)(A) if it proceeds against the employees in accordance with its constitution is highly speculative. Further, if the Union takes what the employ- ees perceive to be unlawful aetions against them, they can file charges with the Board or other appropriate agency. Accordingly, I conclude that the Union is entitled to the names of all employees who performed home over- time work as requested by the Union in its February 9 letter, and that by failing to comply with such request to supply this information, Respondent has violated Section 8(a)(1) and (5) of the Act. The General Counsel contends that Respondent addi- tionally violated Section 8(a)(5) by unilaterally instituting a system of overtime work performed off its premises. Respondent contends that because there is a grievance pending on exactly this issue, which alleges a breach of the collective-bargaining agreement's provisions concern- ing overtime, the matter should be deferred to arbitration citing Collyer Insulated Wire, 192 NLRB 837 (1971); Dubo Mfg. Corp., 142 NLRB 431(1963); United Technol- ogies Corp., 268 NLRB 557 (1984). I conclude that because the issue of the alleged refusal to provide information is a statutory issue and not defer- rable, and that because the facts surrounding this issue encompass the same facts concerning the alleged unilat- eral change, they are so intimately related that both issues should be decided by the Board. S.Q.I. Roofing, 271 NLRB 1 fn. 3 (1984); Diversified Industries, 208 NLRB 233 (2974); Freezer Queen Foods, 215 NLRB 638, 640 (1974); Kevin Steel Products, 209 NLRB 493, 494 (1974). I therefore reject Respondent's contention. Whether there are unilateral changes, the collective- bargaining agreement provides, regarding overtime; that "Overtime shall be voluntary" and that "There shall be no limitation on Management's right to offer overtime," (Emphasis added.) This is, in my opinion, on its face, an extremely broad overtime provision without placing any limitation on the place where such overtime may be per- formed. That the Respondent in 1985 instituted a home overtime procedure and then voluntarily suspended it in response to the Union's request does not, in my opinion, overcome the very broad language in the agreement. Therefore, I conclude Respondent did not violate the Act by offering home overtime work. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. At all times material the Union has been the exclu- sive representative of those employees described in arti- cle I of the parties' collective-bargaining agreement ef- fective for the period of May 1, 1985, to April 30, 1988. 4. By refusing to furnish the Union with the names, job titles, and grades of the employees performing home overtime work as described in the Union's February 9, 1987 written request, Respondent has refused to bargain with the Union and is thereby engaging in unfair labor practices affecting commerce within the meaning if Sec- tion 8(a)(5) and Section 2(6) and (7) of the Act. 5. By the foregoing conduct, Respondent has inter- fered with, restrained, and coerced it employees in the exercise of the rights guaranteed in Section 7 of the Act, and is thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has committed an unfair labor practice within the meaning of Section 8(a)(1) and (5) of the Act, I will recommend it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purpose and policies of the Act. Specifically, I will recommend that Respondent be ordered to provide to the Union the in- formation requested by it in its letter dated February 9, 1987, as set forth and described above. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The Respondent, Blue Cross and Blue Shield of New Jersey, Inc., Newark, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to furnish Office and Professional Em- ployees International Union, Local 32 (Union) with the information specifically set forth and contained in the Union's letter to Respondent dated February 9, 1987, as set forth and described above. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish the Union in writing that information re- quested by the Union in its letter to Respondent dated Febraury 9, 1987. (b) Post at its Newark, New Jersey facility copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's au- 3 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. 4 If this Order is enforced by a judgment of a United States court of ,appeals, the words in the notice reading "Posted by Order of the Nation- -al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to furnish Office and Professional Employees International Union, Local 32, with the infor- mation specifically set forth and contained in the Union's letter dated February 9, 1987, as set forth and described in the decision. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL furnish the Union in writing that information requested by the Union in its letter to us dated February 9, 1987. BLUE CROSS AND BLUE SHIELD OF NEW JERSEY, INC.