New Jersey Bell Telephone Co.

318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD New Jersey Bell Telephone Co. and Local 1022, Communications Workers of America, AFL- CIO and Local 1024, Communications Workers of America, AFL-CIO and Local 1023, Commu- nications Workers of America, AFL-CIO. Cases 22-CA-12078, 22-CA-12316, 22-CA- 12450, 22-CA-12362, and 22-CA-12439 June 24, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 23, 1984, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed exceptions and a supporting brief, and the Charging Party filed an answering brief to the Respondent's exceptions. 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,2 and conclusions as modified, but not to adopt the recommended Order.3 I The Respondent filed a motion to receive into evidence a letter from counsel for the Charging Party to the judge The motion is denied Its purpose was to support the Respondent 's contention that the judge erred in considering arguments contained in certain articles published in medi- cal journals Although the judge did not err in considering the articles sent to him by the Charging Party's counsel, we find it unnecessary to rely on those articles in reaching our decision 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent also argues that the charges in this proceeding are barred by Sec 10(b) of the Act because the Respondent's employee pri- vacy plan was published more than 6 months prior to the filing of a charge The plan specifically states, however, that information may be disclosed to the bargaining representative when it is relevant to collec- tive-bargaining matters The plan itself did not put the Union on notice that the Respondent intended to withhold relevant and necessary infor- mation Accordingly, Sec 10(b) did not begin to run until the Respond- ent refused to provide the information, and the charges in this proceeding are timely. 3 For reasons discussed in the text, employee records need not be fur- nished with employee identification where (1) the Union has agreed al- ready to receive such records without employee identification, or (2) the Respondent proves (t) that an employee's medical records contain highly intimate medical information, e g., a mental disorder, a miscarriage, or in- fection with a venereal disease, (u) and that the Union does not need the employee identity information to perform its representation functions For the reason set forth in fn 5, infra, Member Cracraft does not agree with the second qualification In the judge's remedy section, par 7, L 4, we correct an inadvertent error by substituting "Mosco" for "McAllister" We also note that the judge inadvertently omitted mention of employee Dobish in the remedy, recommended Order, and notice, despite his finding that the Respond- ent's failure to provide information pertaining to the Dobish grievance violated the Act. To remedy this violation the Respondent shall be or- 1. This case involves numerous allegations that the Respondent violated Section 8(a)(5) of the Act by refusing to provide the Union with information necessary for, and relevant to, the Union's perform- ance of its function as collective-bargaining repre- sentative of the employees in the involved units. The Respondent claims that its refusals were justi- fied by its 1980-instituted Employee Privacy Pro- tection Plan, which states that the Respondent will not release personal information regarding employ- ees to outsiders without employee authorization. The plan specifically provides: If you are a union-represented employee, per- sonal information about you will not generally be available to a collective bargaining repre- sentative without your written permission. However, it may occasionally be necessary to disclose certain relevant information, when such information is requested by the bargain- ing representative and, in the opinion of the Company's Legal Department, is relevant to a matter in collective bargaining. In such in- stances, notification of the disclosure to the bargaining representative will be given to you. In arguing that the information sought need not be released to the Union absent employee authori- zation, the Respondent relies on New Jersey Bell Telephone Co. v. NLRB, 720 F.2d 789 (3d Cir. 1983), which involved the Respondent, one of the Charging Parties, and records of the same general nature as in this matter. The court reversed the Board and found that the privacy plan was not in- stituted to frustrate the Union in its role as employ- ee representative. The court also found that the employee absence records contained highly person- al information. The court concluded that the Union must obtain employee consent for the release of the records; and that the Company's refusal to provide the information absent consent did not violate the Act. The judge in the instant case distinguished New Jersey Bell Telephone Co. v. NLRB. We agree that the cases are distinguishable. In New Jersey Bell Telephone Co. v. NLRB, supra, the Union directed the employees not to sign the release forms, that the Respondent required. The court quoted with approval the following finding from the underlying judge's decision: [By directing the involved employees not to sign releases, the Union] intentionally placed itself in the way of attaining its own legitimate objective for there is no evidence in the record that the employees had any real objections to dered to turn over the requested documents concerning Dobish's gnev- ance 289 NLRB No. 55 NEW JERSEY BELL TELEPHONE CO. the Union representative gaining access to the material in question and it would have been a simple matter for the Union to obtain releases, to gain access to the materials it needed and to pursue the grievance procedure to a proper conclusion. Instead, it preferred to play games, to challenge the employer's Employee Privacy Protection Plan, a policy which, on its face, ap- pears to be legitimately concerned with employ- ees' right to privacy and not in any way discri- minatorily motivated. (Emphasis added.) Id. at 792, quoting New Jersey Bell Telephone Co., 265 NLRB 1382, 1387 (1982). In this case the Union did not direct employees to refuse to sign the release forms. In fact, several grievants signed release forms when requested to do so by the Respondent. Contrary to the assump- tions of the administrative law judge and the court in the prior case (which, of course, were not tested there), it was not a simple matter for the Union to obtain the information it needed, at least with re- spect to those employees whose records were needed for comparison with those of the grievants. Furthermore, unlike the proof offered in the prior New Jersey Bell case, there was no showing here that absentee records contained information of an "intimate and highly personal nature." Rather, the judge found here that the absentee records proffered for his inspection contained merely infor- mation concerning a "garden variety of common ailments." Most significantly, however, in the present case the Respondent actually obtained employee re- leases in some instances, and in others the Union offered to accommodate privacy interests by agree- ing to accept records with employee identifications omitted. Yet the Respondent still either refused to provide any of the requested information or pro- vided records that omitted information needed by the Union for the performance of its representa- tional duties. Thus, in the case of the Mosco griev- ance, even after Mosco signed a release, the Re- spondent refused to allow the Union to make copies of any records and did not even allow the Union to inspect certain portions of the records that were relevant to the grievance. In three in- stances, offers by union representatives to accept records with employee identifications omitted were met with footdragging and continuing refusals to provide all the requested relevant information. Thus, in the case of information requested for the Mananian and Marotta grievances, the Respondent produced only its own summaries of its records, omitting some of the relevant information request- ed by the Union; in the case of the request related to the Dobish grievance, the Respondent shifted to 319 the excuse that the parent International had not yet appealed the pending grievance; and in the case of the request related to the Tiernan grievance, the Respondent simply relied on the lack of employee consent. 4 In short, the record in this case reveals that the Respondent was using its privacy plan as a pretext for denying the Union information to which it was clearly entitled and shifting to other grounds when the privacy claim was stripped of even colorable validity. For these reasons, among others, we do not regard the decision in New Jersey Bell Tele- phone Co. v. NLRB, supra, as controlling. Regarding to the Respondent's position generally that it should be entitled to deny requests for rele- vant information from personnel records simply be- cause its privacy plan requires an employee con- sent, we find no support in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979), on which the Re- spondent also relies, for any such blanket claim of confidentiality. See Pfizer, Inc., 268 NLRB 916, 919 (1984), enfd. sub nom. NLRB v. Electrical Workers IBEW Local 309, 763 F.2d 887 (7th Cir. 1985); Oil Workers Local 6-418 v. NLRB, 711 F.2d 348, 362 and fn. 36 (D.C. Cir. 1983). Certainly an employer should not be able to "bootstrap" a confidentiality claim as a barrier to disclosure of information to the bargaining representative simply by relying on a plan through which employees, including bar- gaining unit employees, are promised that a broad range of personal information will remain confiden- tial. Moreover, the mere fact that an employee does not give formal consent-or might even object-to the disclosure of information does not in itself constitute grounds for refusing to provide such information when it is relevant to the bargain- ing representative's performance of its representa- tional duties. As the Eighth Circuit, in WCCO Radio, Inc. v. NLRB, 844 F.2d 511 (1988), recently observed with respect to information concerning the terms of certain unit employees' personal con- tracts with the employer (844 F.2d at 515; citations omitted): One of the consequences of collective bargain- ing is that it subordinates the particular inter- ests of individual employees to the collective interest of the unit. Hence, a preference for confidentiality on the part of some WCCO em- 4 In addition , on one occasion the Respondent advised the Union that no records would be released until a grievance actually was filed More- over, the Respondent consistently refused, citing the cost factor, to allow union representatives to photocopy voluminous records that need exami- nation Yet in one instance in which the Union responded by requesting a cost estimate, the Respondent then offered a different reason for refusing access to the information and provided no cost estimate 320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees does not nullify [the Union's] right to the information. We do, however, make one minor modification to the judge's order with respect to information for which the Respondent makes a particularized showing that the specific records requested contain highly intimate information, medical or otherwise. We note that the Union has indicated in several in- stances, through its offer to accept records with employee identifications deleted, that the Union can sometimes accomplish its representational task without knowing the identities of employees for whom requested records are furnished for purposes of showing, for example, the pattern of discipline for particular kinds of conduct. Thus, with respect to records for which the Union has already agreed to such conditions, our Order will not require that the records be furnished with employee names in- cluded. Furthermore, as to any other records at issue in the compliance stage, similar conditions may be imposed if it is shown (1) that personal pri- vacy interests would be invaded by disclosure and (2) that the Union could carry out its representa- tional functions without knowledge of the identities of the employees to whom the information per- tains. This is in keeping with the accommodative approach that properly governs such requests. WCCO Radio, Inc. v. NLRB, supra, 844 F.2d at 515. See generally Oil Workers Local 6-114 v. NLRB, supra, 711 F.2d at 363.5 As our discussion above reveals, however, the Respondent thus far has, by either refusing requests entirely or by refus- ing to accept reasonable offers of accommodation by the Union, failed to satisfy its basic obligation under Section 8(a)(5) of the Act. 2. The judge concluded that the Respondent's failure to disclose the requested information per- taining to employee Therese Brill's grievance vio- lated the Act. The judge based this conclusion on his finding that the Respondent's policy of not re- leasing medical records directly to an employee re- gardless of the employee's medical condition was paternalistic. The Respondent has excepted to the judge's finding that its policy is violative, and the General Counsel has excepted to the judge's failure to find further that the Respondent violated the Act by not abiding by its existing policy in a timely manner. We find the Respondent violated Section 8(a)(5) of the Act regarding the Brill grievance for the reasons that follow. 5 Where, as here, the Board has found the Respondent was using the privacy claim as a pretext for denying the Union information to which it was entitled, Member Cracraft finds it inappropriate to allow the Re- spondent to make further privacy claims in the compliance stage of this proceeding Before taking medical leave beginning in Decem- ber 1981, Brill was referred by the Respondent to a pyschiatric consultant, Dr. Schwed, who diagnosed depression. Brill consulted her own psychologist while on leave. When Brill decided to return to work, the Respondent sent her to Dr. Schwed, who in June 1982 recommended part-time work. After 1 month of part-time employment, the Re- spondent informed Brill that she must work full time and that her disability pay was being discon- tinued retroactive to her part-time return. Brill filed a grievance, which was denied at step 1 of the grievance procedure. The Union requested the Company's medical records on Brill, particular- ly Dr. Schwed's reports, at the step 2 meeting. The Respondent advised the Union that Brill must sign a release; the Union agreed to obtain one. On No- vember 8, 1982, Brill wrote a letter requesting her medical records including the Schwed reports, and on November 10, 1982, she signed the Respond- ent's form to examine her personnel records. At the step 3 meeting" on December 1, 1982, the Union asked why Brill had not received her records. The Respondent advised the Union that a meeting would be arranged at its medical department. Brill arrived at the subsequently arranged meeting on December 6, 1982, with a union representative. The company doctor with whom Brill met refused to allow the union agent to accompany Brill to the meeting in the doctor's office and refused to show Brill copies of Dr. Schwed's reports. The Respond- ent advised Brill that she could get the reports only by authorizing the transmittal of the reports to her own doctor. Brill agreed and signed the form. On January 6, 1983, a copy of Dr. Schwed's June 1982 report was sent to Brill's own doctor. Brill's doctor gave her the report, and she gave it to the Union. The Respondent knew that both the Union and Brill were seeking her medical records in connec- tion with a pending grievance. Despite this fact and the Respondent's own policy of promptly re- leasing validly requested information, the Respond- ent took no action in the first 3 weeks following Brill's initial authorization, forcing Brill and the Union to face the step 3 meeting without the neces- sary documents. Almost 2 months elapsed from Brill's first request until some of the records finally were released to her doctor. Given the Respond- ent's policy of prompt release, its knowledge of the reason for Brill's and the Union's requests, and its delay in transmitting even part of the records, we 6 Under the parties' contract this particular grievance could not be taken past stage 3 NEW JERSEY BELL TELEPHONE CO. find the Respondent has violated Section 8(a)(5) of the Act.7 ORDER The National Labor Relations Board orders that the Respondent, New Jersey Bell Telephone Co., Newark, New Jersey, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain in good faith with Locals 1022, 1023, and 1024 of the Communications Work- ers of America by refusing to furnish to the Union information and records relevant to the processing of grievances or the administration of the collec- tive-bargaining agreement. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request forthwith furnish to the Union copies of Laura McAllister's absentee records in- cluding an unexpurgated copy of her G-661 record. (b) On request forthwith furnish to the Union copies of Patricia Zipf s absentee records. (c) On request forthwith furnish to Therese Brill's doctor copies of her medical records to the extent it has not already done so. (d) On request forthwith furnish to the Union copies of the cumulative sales records of the em- ployees in the Respondent's Pascack Valley office. 8 (e) On request forthwith furnish to the Union copies of the job performance records of employ- ees in Helen Dobish's office.' (f) On request forthwith furnish to the Union copies of Hartent Dunston's absentee and job per- formance records. (g) In circumstances where the Union requests photocopies of records relevant to the administra- tion of the collective-bargaining agreement or to process grievances, the Respondent and the Union shall negotiate as to the circumstances in which the Union should bear the costs of photocopying and the costs thereof. 7 In finding the Respondent violated the Act for failing to comply with its own policy, we find it unnecessary to pass on whether the Re- spondent's medical record release policy itself violates the Act Thus, we are not prepared to say that prompt release of the records through the employee's physician would have left the Respondent in default of its bargaining obligation Accordingly, we find it unnecessary to rely on the judge's discussion of patient rights, and we modify the remedy , and sub- stitute a new Order and notice to eliminate any requirement that the Re- spondent change its policy on medical records 8 See fn 3, supra 9 Ibid 321 (h) Post at its New Jersey facilities copies of the attached notice marked "Appendix."10 Copies of the notice, on forms provided by the Regional Di- rector for Region 22, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 10 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 " 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain in good faith with Locals 1022, 1023, and 1024 of the Communi- cation Workers of America by refusing to furnish to the Union information and records relevant to the processing of grievances or the administration of the collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, furnish to the Union copies of Laura McAllister's absentee records, in- cluding an unexpurgated copy of her G-661 record. WE WILL, on request, furnish to the Union copies of Patricia Zipf's absentee records. WE WILL, on request, furnish to Therese Brill's doctor copies of her medical records to the extent we have not already done so. WE WILL, on request, furnish to the Union copies of the cumulative sales records of the em- ployees in our Pascack Valley office. WE WILL, on request, furnish to the Union copies of the job performance records of employ- ees in Helen Dobish's office. 322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL, on request, furnish to the Union copies of Hartent Dunston's absentee and job per- formance records. WE WILL, on request, make photocopies of rele- vant information and records requested by the Union for use in administering the collective-bar- gaining agreement. In this respect, we will negoti- ate with the Union as to the circumstances in which the Union should bear the costs of such photocopying and the costs thereof. NEW JERSEY BELL TELEPHONE CO. Hope Singer, Esq., for the General Counsel. James F. Brady, Esq., for the Respondent. Amy Gladstein, Esq. (Gladstein, Reif & Meginniss), of Brooklyn, New York, for Locals 1022 and 1024, Com- munication Workers of America. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. These consolidated cases were heard by me in Newark, New Jersey, on July 7, 8, 18, and 19 and August 5, 1983. The charge in Case 22-CA-12078 was filed by Local 1022 on December 10, 1982 . The charges in Cases 22- CA-12316 and 22-CA- 12450 were filed by Local 1024 respectively on March 31 and May 5 , 1983. The charges in Cases 22-CA- 12362 and 22-CA-12439 were filed by Local 1023 , respectively , on April 19 and May 19, 1983. Thereafter, on June 20, 1983 , the Regional Director for Region 22 of the National Labor Relations Board issued a consolidated complaint . In substance, the complaint al- leged that Respondent on various occasions failed and refused to furnish to the local unions certain records and information that they had requested in connection with the processing of contractual grievances. Based on the entire record in this proceeding, includ- ing my observation of the demeanor of the witnesses and on consideration of the briefs filed , I make the following FINDINGS OF FACT 1. JURISDICTION The parties agree, and I find, that the Company is en- gaged in interstate commerce within the meaning of Sec- tion 2(6) and (7) of the Act. There is also no dispute, and I conclude, that the Charging Parties are labor organiza- tions within the meaning of Section 2(5) of the Act. A. The Prior Case On December 16, 1982, the Board issued a decision in- volving New Jersey Bell Telephone Co. and Local 1023, 265 NLRB 1382 In that case, three employees who had been marked tardy filed a grievance with their local union, which then requested to see the employees' ab- sence and tardiness records. The Employer, relying on its "Employee Privacy Protection Plan" (described below), refused the Union's request, unless the three grievants authorized their release. The Union instructed the employees not to authorize release of the records be- lieving that it had an absolute right to this information without being required to obtain employee consent. The Board, in disagreement with the administrative law judge, held that the records involved were not confiden- tial in nature as they merely reflected the reasons the grievants themselves had given to the Company at the time of their absences and therefore did not constitute medical records. The Third Circuit Court of Appeals, 720 F.2d 789 (3d Cir. 1983), disagreed with the Board because in its view the records did contain highly per- sonal and sensitive information regarding the employees' health. It therefore concluded that the information sought was confidential in nature and that it was the Union's instructions to its members to not authorize re- lease, which prevented the Union from obtaining the data. B. The Collective-Bargaining Relationship For many years the Company has recognized and bar- gained with the Communication Workers of America (CWA). The collective-bargaining agreements have been between the Respondent and the CWA, and the most recent agreement prior to the hearing ran from August 10, 1980, to August 6, 1983. The CWA in turn, is com- prised of a number of constituent local unions. The agreement covers the nonsupervisory employees of the Company's commercial and marketing departments in which the employees are members of five different local unions. The local unions involved in this case (Locals 1022, 1023, and 1024) represent specific segments of the overall bargaining unit and it is clear from the record that by custom and practice they have been delegated the responsibility of administering the collective-bargain- ing agreement at the local level at the first two steps of the contractual grievance machinery.' Thereafter, repre- sentatives of the CWA are responsible for handling grievances at the third step and at arbitration. Although the labor agreement is between the Company and the CWA, it is apparent that local union representatives, through their presidents or agents, execute the agreement on behalf of the CWA. (See p. 24 of the contract.) In light of the above, I reject as without merit Re- spondent's assertion that the local unions involved were not the majority representatives of their respective con- stituencies and that they did not have the authority to re- quest the information sought. It has been shown that in- sofar as grievance handling under the contract, the Com- pany and the CWA have historically recognized and ac- ceded to the function of the local unions in carrying out the administration of the contract at the local level through the first two steps of the grievance procedure. Therefore, it seems to me that the parties to the contract (the Company and the CWA) have agreed, at least im- plicitly, that it is to be the local unions that carry out I The grievance procedure is set forth at art 12 of the collective-bar- gaining agreement It provides for a step 4 procedure, the last step being arbitration The record shows that after a grievance is processed through the first two steps, it is only then that a representative of the CWA will ordinarily become involved at the third step NEW JERSEY BELL TELEPHONE CO this important function where, in all probability, the vast majority of grievances are disposed of. In this respect, it seems obvious that over a substantial period of time and by virtue of custom and practice, the Company has rec- ognized and acceded to the delegation of authority by the CWA to its local unions, of the function of process- ing grievances at the first steps of the grievance proce- dure. C. The Company's Employee Privacy Protection Plan It appears that in 1980, the Company instituted its Em- ployee Privacy Protection Plan, which provides that the Company will not release certain personal information regarding its employees to noncompany people without employee authorization.2 It also appears that this plan was not instituted as a result of any negotiations with the Union and therefore was not implemented as a conse- quence of any agreement with the Union. Although the plan is designed to preclude disclosure of certain infor- mation concerning employees, without their consent, it is noted that the plan also states: If you are a union-represented employee, personal information about you will not generally be avail- able to a collective bargaining representative with- out your written permission. However, it may occa- sionally be necessary to disclose certain relevant in- formation, when such information is requested by the bargaining representative and, in the opinion of the Company's Legal Department, is relevant to a matter in collective bargaining. In such instances, notification of the disclosure to the bargaining rep- resentative will be given to you. 1. The Laura McAllister grievance Laura McAllister, a member of Local 1024, is a serv- ice representative employed at the Company's Harmon Cove office Initially, in January 1982 she was dis- charged because of excessive tardiness, but was reinstat- ed in March 1982 as a result of the settlement of a griev- ance processed by Local 1024. As part of the settlement, she was placed on final warning.3 On March 1, 1983, McAllister received a letter in lieu of suspension based on her absenteeism since her rein- statement. She then contacted her shop steward, Tom O'Rorden, who filed a grievance on her behalf. During the first-step meeting, O'Rorden asked for McAllister's absence records and the Company's representative, Mark Drew, stated that they would only be released if McAl- lister gave her consent. O'Rorden responded by stating, in effect, that under the National Labor Relations Act 2 There are, however, a number of exceptions For example, certain information will be divulged for law enforcement purposes or in connec- tion with "any proceeding or action affecting the Company 's interest in- cluding its defense to any employment related matter " 3 Respondent has a system of progressive discipline for absenteeism and lateness The steps include (1) a "welcome back" by the employee's supervisor, (2) a notification to improve, (3) a notification that good at- tendance is a condition of continued employment, (4) a notification that the employee's job is in jeopardy, (5) the issuance of a warning in lieu of suspension, (6) dismissal The warning in lieu of suspension has the same weight as a suspension and is, in effect, a step short of discharge 323 the Union was entitled to the information without the employee's consent. (Indeed, as the employee filed the grievance, it could be argued that she gave her implied consent to the release of her own records.) At the same time, O'Rorden handed over a letter from Local 1024's president, dated March 24, which read In our capacity as Collective Bargaining Agents for the members of CWA Local 1024, we are re- questing, on behalf of Laura McAllister, that the Company provide records which are relevant and material to the representation of Miss McAllister. Specifically, we are requesting the absence record G-520 and associated C 4014, for Miss McAllister, and any other documentation relevant to her history of absence, to date. In your refusal to provide this information to Tom O'Riordan, Union Steward, you sited (sic] the Company's Privacy Protection Plan. I would like to point out that there is a provision in the Plan regarding information rel- evant and material to the Union's performance of its Collective Bargaining and Grievance Handling functions. In response, Drew, by letter dated March 22 stated: It is our understanding that the Employee Privacy Protection Plan still governs the release of Employ- ee Records and we are so guided by this plan. In connection with the information request, the union witnesses testified that they believed that in assessing ab- sences, the supervisors are given certain discretion in ex- cusing absences and therefore not counting them for dis- ciplinary purposes. They also testified that they asked for the specific forms listed (forms G-520 and C-4014) be- cause to their knowledge these were the forms used by the Company. On March 29, Respondent's representative, Regina Von Aln, tendered to the Union a handwritten list, which set forht the dates, reasons, and number of days that McAllister had been absent after her reinstatement in March 1982. This list did not, however, set forth the various "discussions" that McAllister had with her super- visor These "discussions" are generally set forth by the supervisor on a separate form (G-661) and in addition to recording his or her conversation with the employee, also sets forth the supervisor's evaluation of the employ- ee's excuses for being absent. The record of discussions are referred to in the form C-4014 and are sometimes physically attached to that form. A second-step meeting was held on April 12. At this time Union Agent Massa indicated that the Union wanted to look at the official records on which the ten- dered summary was based. Von Ahn refused, citing the Employee Privacy Protection Plan. On April 22, the Union wrote to Sabo, the Company's director of labor relations, as follows: Regarding our grievance on behalf of Laura McAllister, Service Representative in the Harmon Cove AIC, we have requested information that is 324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD relevant and material to the representation of Miss McAllister. This request was presented to Mr. Mark Drew, manager of the Harmon Cove AIC. Specifically we asked for copies of the G520 and C4014 from Miss McAllister's personal file. These records were denied to us by Mr. Drew. We appealed our grievance to second level in order to state our request to Miss Regina Von Alin, District Manager of the Harmon Cove AIC. At this level we were provided with a hand written list of dates and reasons for absence, not the records re- quested. In accordance with our duty to represent, we have appealed this grievance to third level in order to protect the time limits specified in the Contract. However, we are unable to present a proper griev- ance without the information we have repeatedly requested. By denying the Union copies of Miss McAllis- ter's G520 and C4014, the Company has not al- lowed the Union the opportunity to determine whether or not the Company acted properly in giving Miss McAllister a letter equivalent to a three day suspension. The Union cannot perform its duty as collective bargaining agent without the material requested. In response to the Union's letter of April 22, Respond- ent's representative, William Wilson, called Union Agent Dellavia and asked if the Union would agree to having McAllister give her consent before releasing the informa- tion. Dellavia said that she did not agree and argued in effect that employee consent was not a proper condition for releasing these types of records. (Dellavia reiterated her position in this regard by letter dated May 4, 1983.) There is no evidence, however, to suggest that the Union either directed or requested McAllister to refuse to give her consent to the release of the documents. On May 10, Drew asked McAllister if she would agree to the release of her records to the Union and she said she would have to ask her shop steward. As a con- sequence of this conversation, Respondent apparently construed McAllister's failure to object as a consent, and it thereupon released some, but not all of McAllister's absentee records to the Union. Thus, on May 18 the Re- spondent tendered to the Union copies of McAllister's records designated by forms G-520 and C-4014.4 Also tendered was an expurgated copy of form G-661, which contained the record of discussions by her supervisor. What in fact was deleted from the form G-661 were sev- eral of the discussions concerning McAllister's absences. Respondent asserts that it had no duty to furnish the form G-661 because the Union did not specifically re- quest it. However, it appears that the Union's agents 4 The G-520 form is a calendar on which latenesses and absences are recorded The C-4014 form lists the dates, lengths, and reasons for an em- ployee's absences It also shows if any disciplinary action was taken and what, if any, discussions were held between the supervisor and the em- ployee regarding a particular incident . As noted above, the supervisors may make extended notes of their discussions, including an evaluation of an employee's excuse on form G-661 or on any other piece of paper and these notes are, in effect, incorporated by reference into the form G-4014 were not aware that such a form designation existed (also unknown to some of Respondent's managers), and in any event, the record shows that this form was incor- porated, as a matter of practice, with the form C-4014. Clearly, as the Union expressed the desire to review all documents relevant to McAllister's absence record (by letter dated March 24) the Respondent was on sufficient notice to furnish not only forms G-520 and C-4014, but also the form G-661. It also is evident that by heavily ed- iting the form G-661, Respondent did not furnish the in- formation requested. Indeed, it is my opinion that given the nature of the grievance, the form G-661, in its entire- ty, would have been the record most relevant to her grievance. That is, it is only by viewing this particular form that the Union would have been able to determine if some or all of McAllister's absences had been excused by her supervisor. 2. The grievance of Therese Brill Therese Brill is a longstanding employee who works in Respondent's Asbury Park office. In December 1981 she went on a medical leave of absence. Before leaving, she was examined by Dr. Margaret Fitzpatrick who is em- ployed in Respondent's medical department. She also was referred to an outside psychiatric consultant, Dr. Schwed (now deceased) who diagnosed her condition as a form of depression. (This diagnosis is contained in a report to the Company dated December 29, 1981.) While on medical leave, Brill was seen by her own private psy- chologist, a Dr. Hanson. In the spring of 1982 Brill expressed to Dr. Fitzpatrick a desire to return to work on a part-time basis. In order to determine if she was fit to return, Brill was again re- ferred to Dr. Schwed. By report dated June 10, 1982, Dr. Schwed informed the Company that Brill's condition had abated and he recommended that she go back to work on a part-time basis. Accordingly, on June 23, Brill returned to work and informed her supervisor, Cooper, that she wanted to work 2 to 3 days a week. After working for about a month on a part-time sched- ule, Brill was told on July 15 that she was to return to work on a full-time basis. She also was notified that her disability payments had been terminated retroactive to the time she returned to work. Thereafter, Brill filed a grievance relating to the termination of her disability pay. In relation to the grievance, it is noted that the Com- pany has a plan for providing disability pay for employ- ees who cannot work for medical reasons.5 Although parties agree that disputes involving eligibility to receive disability pay are not arbitrable under the collective-bar- gaining agreement , they do agree that such disputes are subject to the grievance procedure, short of arbitration. In essence, Brill's grievance rested on ,the contention that, notwithstanding her return to work on June 23, she still was eligible for disability pay for those days that she did not work. 5 Respondent maintains a benefit committee that decides whether a particular employee is eligible for disability pay. The physicians of the medical department make recommendations to the benefit committee in borderline cases NEW JERSEY BELL TELEPHONE CO. On September 3, Respondent denied Brill's grievance and it was appealed by the Union to the second step. On November 4, 1982, a second-step meeting was held and the credible evidence shows that Union Representative Lynn Buckley asked Respondent to produce Brill's medi- cal records, particularly Dr. Schwed's reports. Company Representative Moulineaux responded that these records were confidential and could only be released if Brill signed a release. Buckley then turned to Union Agent Huber and asked him to have Brill sign a release. As a result, Brill was asked by Huber to make a written re- quest for her records from the medical department. On November 9, Brill wrote to Dr. Bisgeir, the head of the medical department, as follows: Kindly send me copies of all the medical reports pertaining to my recent illness including the report of the consulting psychologist, Dr. Schwed. I would appreciate you doing this as expeditious- ly as possible. Also on November 10, Brill executed a company form, at Respondent's request, entitled, "Request to Examine Personnel Records." On December 1, a third-step meeting was held in which Pat Niven, a CWA District staff representative, asked why Brill's medical records had not been forth- coming . Moulineaux and Company Representative Wilson responded that it was company policy to set up a meeting at the medical department (located in Newark) where the employee could review her records. Subse- quently, Brill was informed that a meeting had been set up for her for December 6. On that date, Brill, accompa- nied by Union Representative Huber, visited the Newark office where Brill spoke to Dr. Fitzpatrick, who at that point, was aware that Brill had filed a grievance. Brill credibly testified that she asked if she and Huber could obtain her medical records and that Dr. Fitzpatrick re- fused. In essence, Dr. Fitzpatrick refused to allow Huber to accompany Brill into her office and she refused to turn over or read the medical reports to Brill. What she did do was to read a small portion of Dr. Schwed's June 10 report and indicated to Brill that the Company would only send the reports to Brill's private physician if so de- sired by Brill. Brill thereupon signed a release for the Company to transmit the records to her private physi- cian At the conclusion of the meeting, Dr. Fitzpatrick asked Brill to sign a form indicating that she had been given an adequate opportunity to review her medical records Brill refused to sign the form as written, as she concluded that she had not been afforded an opportunity to adequately review her records On December 7, Brill wrote another letter to Dr. Bisgeir complaining of Dr. Fitzpatrick's refusal to turn over her medical records. On January 6, 1983, a copy of Dr. Schwed's June 10, 1982 report was sent to Brill's private physician. He promptly turned it over to Brill who, in turn, gave it to the Union. The Company asserts preliminarily that Brill never au- thorized or consented to the release of her records to the Union. Although this is technically correct, it seems clear that as these records were being sought by Brill 325 and the Union to justify her grievance, Respondent was fully aware that she intended to turn them over to the Union. Moreover, on December 6, she arrived at the medical office, accompanied by Union Agent Huber, and requested that Huber assist her in reviewing her records. In any event, the Company not only refused to turn over the records to the Union, but also refused to turn them over to Brill. The Company also asserts that it should not be com- pelled to turn over medical records directly to employ- ees (except for hard data such as blood tests) because such action might be harmful to the employee's health or mental condition. Indeed, this appears to be the current policy of the medical department, which will only re- lease such records to an employee's private physician if so requested by the employee. As to Dr. Schwed's re- ports relative to Brill, Respondent additionally notes that these reports are stamped: Confidential This report is for employment suitability. It may adversely affect the mental health of the subject if indiscriminatorily shown to him. However, the record shows that all reports received from Dr. Schwed have been stamped in the above fash- ion as a routine matter . There was no adequate showing by Respondent that Dr. Schwed's reports, if shown to Brill, would have adversely affected her mental health and, although I am not a physician, I simply cannot imagine how they could have done so. On the contrary, it would seem to me that disclosure of Dr. Schwed's re- ports to Brill, and particularly his second report, could only have been beneficial to her mental condition as it expresses the opinion that her depression had largely abated. I also note in this regard that when Brill's private physician received the report he apparently had no diffi- culty about releasing it to her. Based on the record as a whole, it is evident that Dr. Fitzpatrick simply applied a blanket company policy, which is to refuse to disclose to any employee his or her medical diagnostic records (apart from hard data), irre- spective of the illness involved, and to make such records available only to the employee's private physi- cian . It also is clear to me that in carrying out this policy, the Company's physicians do not, in fact, make any independent medical judgment whether the disclo- sure of the records would adversely affect an employee's health. In short, it seems to me that this policy essential- ly is a manifestation of an outdated paternalism, which seemingly assumes that patients are ill equipped to deal with medical information concerning themselves. To my mind it is a policy which, except perhaps in extreme cir- cumstances not present here (e.g., terminal illness or sui- cidal depression), has little or no justification.6 It is my 6 See The Right to Know - Giving the Patient His Medical Records, 57 Arch . Phys Rehabilitation 78 (1976), Giving The Patient His Medical Records. A Proposal To Improve The System, The New England Journal of Medicine, Sept 27, 1973 326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD opinion that it is axiomatic that any patient, except per- haps in extreme circumstances noted above, should have the right to know information concerning his own body and to have that right honored by any physician with whom he consults. Indeed, it may be argued that the re- fusal by Dr. Fitzpatrick to turn over the medical reports to Brill was also contrary to the laws of New Jersey, which require physicians, including company-employed physicians, to release on request employees' medical records or a summary report thereof. In a letter to the Company from Charles A. Janousek, executive secretary of the New Jersey Board of Medical Examiners, he stated: The New Jersey State Board of Medical Examin- ers, in 1978, promulgated the enclosed Patient Records Rule. That rule requires that a physician, upon written request and within 30 days, submit a copy of his physician's record or a summary report of such record, and/or copies of all pertinent, ob- jective data and papers to the patient, designated physician or a duly authorized representative. This Board, when promulgating the rule, deter- mined that it was the physician's prerogative whether to copy the entire record for release or make a summary report of such record. The Board has determined, since the rule has been promulgat- ed, that the submission of a summary report com- plies with the intent of the rule, although the patient or another designated individual may have wanted a copy of the full record. With regard to the release of the complete record or summary report, the patient has the right to re- ceive the material directly, request that it be sent to a specific physician, or the request can be made on behalf of the patient by an attorney, who the Board has determined is the duly authorized representa- tive. The rule also allows the physician the discre- tion, while in his professional judgment, to withhold certain records that the physician considers would be deleterious to the patient's best interests. I know of no instance where the Board has been asked to determine whether a physician has withheld infor- mation that is not deleterious. I know of no previ- ous case where the Board has made inquiry into a complaint, that a physician has edited a summary report for any reason.' 3. The grievance of Cheryl Sistrunk Cheryl Sistrunk is employed as a service representative in Respondent's New Brunswick, New Jersey office. In April 1982 Local 1023 filed a grievance on her behalf al- leging that she had been passed over for a promotion to a drafting position. In this regard, another employee, Serone, who had less seniority than Sistrunk, had been given the position. ' I do not construe the allowance of a summary report as permitting the deletion of pertinent medical information Rather, it seems to me that what is intended is to allow a physician to reduce lengthy medical re- ports to shorter reports containing language understandable to a layman On April 20 a first-step grievance meeting was held in which the Company was asked why Serone rather than Sistrunk had received the promotion. On April 22 the Company responded that Serone had had 6 months' ex- perience in drafting and that she had a physical handi- cap, which gave her priority pursuant to the Company's affirmative action program. The Union then requested a copy of Serone's upgrade and transfer application, indi- cating that it wanted to see her drafting experience and to see if, in fact, Serone had a handicap. On April 28, Company Representative Kesselmeyer denied the Union's request, relying on the employee privacy protec- tion plan. The record shows that the Union did not attempt to seek Serone's consent for the release of her application and that it was never furnished to the Union. The record also shows that the grievance ultimately was settled at the third step. I do not know what information was con- tained on Serone's application, as I was not shown this document and I am unaware of the nature of the settle- ment. 4. The grievance of Kim Mosco Kim Mosco is also employed at Respondent's New Brunswick office as a service representative. There are about 39 employees at this office who are represented by Local 1023. In April, Mosco received a letter in lieu of suspension because of excessive absenteeism. Thereafter, she informed Union Agent Hutchins that she wished to file a grievance. About April 5, 1983, Hutchins told Company Repre- sentatives Kesselmeyer and John Bradway that she wanted to see the attendance records of all the employ- ees in the office before filing a formal grievance on Mosco's behalf. Bradway responded that the Company would only release such records if the employees signed releases. On April 8 Hutchins told Bradway that it was the Union's position that it had a right to the records with- out employee releases and that if the request was refused, Local 1023 would take the matter to the NLRB. There- after, on April 12, Kesselmeyer offered to show the Union the records of the three worst offenders, without employee identification, if the Union paid for the cost of duplication. Hutchins refused, stating that she wanted to see all the records. On April 25, Mosco at the request of the Company signed a release authorizing the Union to review her ab- sence records. That afternoon, Hutchins was taken to Kesselmeyer's office and shown certain records in Mosco's binder. She, however, was denied her request to make photocopies and had to make notes by hand. She also was not shown the record of discussions relative to Mosco, which, as noted above, would contain, inter alia, the supervisor's evaluation of Mosco's excuses for being absent. On May 2 a first-step grievance meeting was held. At one point, Hutchins asserted that in her opinion Mosco was being treated differently from other employees who had absences excused in similar circumstances. When the company representative challenged Hutchins to substan- NEW JERSEY BELL TELEPHONE CO. tiate the claim, she replied in effect that she had no proof because the Company was denying her access to the em- ployees' records. On May 11, Respondent denied the Mosco grievance and thereafter the grievance terminated because the Union did not meet the contract's time limitations for ap- pealing to the third step. 5. The grievance of Patricia Zipf Patricia Zipf, a member of Local 1023, is employed as a service representative in the South River, New Jersey office. On May 11, 1983, her shop steward, Bruce Heyer, was told by Joan Kelley (manager of the office) that Zipf was about to receive a letter in lieu of suspension because of her absences. Heyer told Kelley that a griev- ance would be filed and asked for Zipf's absentee records. Kelley replied that Sipf's consent was required for release of her records, and also told Heyer that the records would only be made available, assuming Zipf signed a release, if a grievance was filed. On May 16 Heyer filed a grievance on Zipfs behalf and again requested that Kelley photocopy Zipfs absen- tee records at the Union's expense. Kelley refused. Sometime later, but before the first-step grievance meet- ing, Zipf signed a release and Heyer, on May 20, was taken to the manager's office in the late afternoon where he was allowed to review Zipf's records and make hand- written notes in Kelley's presence. His request to use the Xerox machine in the office was denied and he testified that he spent about 2 hours reviewing and copying the records by hand. 6. The grievances of Diane Mananian and Michael Marotta Diane Mananian and Michael Marotta are sales repre- sentatives at the Pascack Valley office and both are shop stewards for Local 1024. In February 1983 each received performance ratings and although each was rated satis- factory overall, they both received unsatisfactory sales ratings. Thereafter, the Union filed grievances on behalf of both employees with respect to their sales ratings. In connection with the grievances, it is noted that the sales rating is only one portion of an employees' overall rating and it is the overall rating that effects his or her job. Regarding the sales rating, the employees involved in sales are generally given a $300-per-month quota al- though some employees such as "off-line" or "backline" employees, who have less contact with the public, are given lower quotas. There are about 20 employees in this office. It was the Union's contention in these grievances that (1) as shop stewards spend part of their time on union business, their quotas should be lower, and (2) some of the other employees who met the quota did so by selling items to their friends and families. It is noted that previously the Company had published the sales re- sults of its employees, a practice that was discontinued because the Union had objected. On March 1 at the first-step meeting, the Union re- quested the cumulative sales records for all the employ- ees in the office. The Company responded that it would only tender the information if the employees consented 327 to its release. The cumulative sales records consist of a one-page document for each employee that list his or her quota and the number of items sold. On March 10, the Union wrote a letter to the Compa- ny in connection with the grievance of Mananian. This letter stated: Specifically, we are requesting the sales perform- ance records of all other Service Representatives of the Pascack Valley Residence Service Center. We have been advised that you are concerned about violating the Company's Privacy Protection Plan by providing this information. Although we do not agree with your position on this, for the purposes of this case only, the records requested may be provid- ed with the names of the individuals deleted. I would however, like to point out that there is an exception to the plan with regard to information relevant and material to the Union's performance of its Collective Bargaining and Grievance handling functions. On March 22, the Union again requested the informa- tion and the Company refused, citing the employee pri- vacy protection plan. Respondent did offer, however, to show the Union the sales figure of the three lowest pro- ducers who were rated satisfactory, without identifying the employees by name. About April 3, Company Representative Lutz called Local 1024 Vice President Dellavia and asked her to clarify her request for information. She stated that the Union was interested in knowing what the quotas were, how they were determined, how sales were broken down, and if the quotas were the same for all employees. She told Lutz that she wanted the information for all the employees so that the Union could compare, "and see if all employees were treated the same." She also told Lutz that the Union was willing to receive the information with the employees' names replaced by alphabetical list- ing. On April 8, the Company sent a summary to the Union, in lieu of the actual records. This summary set forth each service representative designated by letter, his or her average monthly sales revenues, and whether the particular employee was full time, part time, backline, or on disability leave. The summary also indicated which employees had unsatisfactory sales ratings, although their names were not revealed. By letter dated May 4, Della- via wrote to Director of Labor Relations Frank Sabo, as follows: I am writing in reference to requests for records on behalf of Diana Mananian and Michael Marotta. In my letter to Mr. Lutz, (see Enclosed) I requested the sales performance records of all Service Repre- sentatives of the Pascack Valley RSC. In a conversation with Mr. Lutz on April 8, 1983 he agreed to provide the sales objectives and actual sales results of each Service Representative, the reason why one individual objective would be lower than another and what formula was used to determine each objective. 328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Enclosed is the response I received. As you can see all of my requests were not met. Mr. Lutz subsequently explained in a telephone conversation on April 22, 1983 that the office objec- tive was $300 and that anyone who's [sic] objective was less than $300 was explained on the list. With- out a detailed explanation of how each objective below $300 was arrived at and on what it was based, we can not make an informed decision as to the fair and equal treatment of Michael Marotta and Diana Mananian. Therefore we are again requesting copies of the actual sales records of all the Service Reps. in the Pascack Valley RSC. Thereafter, on May 11, Sabo responded by letter, which read: This is in response to your letter of May 4, 1983 concerning your grievances on behalf of Helen Dobish, Diana Mananian and Michael Marotta. Inasmuch as these grievances are still in the grievance procedure and have not been appealed to me by your International Union Representative in accordance with the Agreement, I cannot comply with your request and suggest that you continue to negotiate the grievance at the present step where I hope a satisfactory resolution can be reached. 7. The grievance of Helen Dobish Helen Dobish is employed at Respondent's Bergen Mall office. In November 1982, she was given a satisfac- tory rating but this was changed to an unsatisfactory rating in 1983 by her district manager. Local 1024 filed a grievance. The evaluation is a one-page document with blocks for ratings and a space for explanation. The first-step meetings were held on March 2 and 8. In connection with the grievance, Dobish specifically au- thorized the Union to receive a copy of her evaluation. The Union was allowed to inspect it, but not to photo- copy it. On the basis of the evaluation shown to the Union, it decided to proceed further with Dobish's grievance in the belief that her evaluation did not warrant an unsatis- factory rating. Accordingly, on April 13 the Union wrote a letter to Von Ahn, requesting the job perform- ance records of all similar employees in the office "from May 1982 to the present." On April 25, Von Ahn told Dellavia that the Company would not furnish these records without the consent of the employee involved. Dellavia then contacted Frank Sabo and reiterated her request for the records. Sabo told her that the Union would have to pay for the cost of copying the records and she asked how much this would be. On May 9, Dellavia wrote to Sabo, as follows: In response to our telephone conversation of April 27, 1983, with regard to the grievance on behalf of Helen Dobish, I wish to again make a re- quest for the following: Job performance records of all SSA's in the typing unit of the Bergen Mall SOEC, for the period from May 1982 to the present. These records may, if necessary, be provided exclusive of the individual employees names , for the pur- poses of this grievance only. We wish to stress that we require photocopies of the actual records not a prepared synopsis of the material contained within the records. We require this information in order to make an informed deci- sion as to the fair and equal treatment accorded Ms. Dobish in the preparation of her job performance appraisal. During our conversation you mentioned the ex- pense involved in preparing this material for the Union. If you will provide us with a cost estimate for the supervisors time spent in xeroxing the records and the cost of the copies , the Union will advise you as to our decision to bear these costs. As I'm sure you must realize, if the Company fords these costs burdensome, we will also have to review our Budget to determine if the Local can cover the expense. This consideration will apply in this case only and is not to establish a precedent. On May 11, Sabo denied the Union's request stating that the grievance had not yet been appealed to him by the CWA. He did not state that the records would be made available if the Union paid the cost of copying and he did not indicate what the cost might be. 8. The grievance of Cathy Tiernan Cathy Tiernan is employed as a service representative at the Palisades, New Jersey office where there are about 20 to 25 other employees. In April 1983, she received a final warning for poor job performance and a grievance was filed on her behalf by Local 1024. In connection with her grievance, the Union was given Tiernan's records after she signed a release . However, as the Union asserted that Tiernan was being treated in a dis- parate manner from other employees, it also requested the job performance records of the other service repre- sentatives employed in the Palisades office. In this regard, the Union stated that it did not need the records identified by employees' names. This request was denied by the Company. On May 4, 1983, Local 1024 President Gilbert Snow- den sent a letter to Respondent District Manager Norman LeGeaux, which stated: In our capacity as collective bargaining agents for Cathy Tiernan, Service Representative in the Palisades RSC, we have requested records that are relevant and material to our grievance on Ms. Tier- nan's behalf. (see our letter of April 13th 1983) The records requested have been denied to us by Mrs M. Hiboki, Manager of the Palisades RSC. Without these records it is impossible for the Union to deter- mine if Ms. Tiernan was given fair and equal treat- ment when she was advised by her supervisor Luann Mallock, that her job was in jeopardy due to poor performance. We are unable to provide proper representation at a grievance meeting on this subject and therefore NEW JERSEY BELL TELEPHONE CO. Chief Steward Noreen Scanlon has requested that the time limits on this grievance be protected at first level until the matter of the records can be re- solved. This request was also refused by Mrs. Hliboki on April 22, 1983. We are now being forced to ad- vance a grievance to second step without having had a proper first step grievance hearing. We cannot see how the tenets of collective bargaining can be served by this method of action. We again request that this grievance be held at first level until such time as the Union is able to obtain all the information necessary to determine if we in fact have a grievance worthy of a second level hearing. On May 22, a second-step meeting was held at which Union Representative Noreen Scanlon requested the job performance records of the office service representatives without name identification . Respondent refused , stating that employee releases would be necessary before these records could be turned over. It appears that subsequent- ly the grievance was settled when the warning to Tier- nan was withdrawn by the Company. 9. The grievance of Hartent Dunston Hartent Dunston is employed as a service representa- tive at Respondent's East Orange, New Jersey facility. On April 4, 1983, she was given a letter in lieu of suspen- sion for walking off the job. On April 20 she received a 5-day suspension for poor work performance, the Com- pany asserting that she was intoxicated while at work. Dunston then filed a grievance with Local 1023, which was heard at the first step on April 22, 1983. At this meeting the Company's representative told the Union the reasons for Dunston's disciplinary actions. The Union did not at this time request any records. About 3 weeks after the first-step meeting, Local 1023 requested Dunston's absence and job performance records. The Company advised that Dunston's release was required before it would turn these records over to the Union. Dunston did not sign a release and the records were not sent to the Union As a consequence, Dunston's grievance was left pending at the first step of the grievance procedure, which is its current status. II. ANALYSIS A. General Principles Pursuant to Section 8(a)(5) of the Act, an employer has an obligation to comply with a union's request for in- formation that is relevant to the processing of grievances unless there is a showing that the information is unduly burdensome, legitimately confidential, privileged in nature, or has been waived. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979); LaGuardia Hospital, 260 NLRB 1455 (1982) In determining the parameters of relevance, the criteria used is a broad discovery type of standard;8 8 See NLRB v Acme Industrial Co, 385 U S at 437 See also Proctor & Gamble Mfg Co v NLRB, 603 F 2d 1310, 1315 (8th Or 1979) 329 namely, whether the information requested is probably or potentially relevant. Therefore, it need not be shown that the information will result in the union winning an arbitration, so long as it is relevant to the disputed sub- ject matter. Indeed, the fact that the information may even tend to show that a grievance or potential griev- ance is without merit , equally serves a legitimate purpose of collective bargaining because such disclosure would enable a union to determine which grievances it will pursue to arbitration and which it will not. In this latter connection, the Court in NLRB v. Acme Industrial Co. stated at 438: Arbitration can function properly only if the griev- ance procedures leading to it can sift out unmeritor- ious claims . For if all claims originally initiated as grievances had to be processed through to arbitra- tion, the system would be woefully overburdened. The Board has consistently held, as a general rule, that an employer's refusal to turn over relevant information may not be excused because the information requested may be available from the employees represented by the union or from other sources. New York Times Co., 265 NLRB 353 ( 1982). See also Chesapeake & Potomac Tele- phone Co. v. NLRB, 687 F.2d 633, 638 (2d Cir. 1982). Indeed, such a rule makes eminent practical sense. For example, a union may seek, in relation to an employee's grievance, information about many other employees in an effort to discover whether the grievant has been treat- ed in a disparate manner. The simplest, most expeditious, and error free source of such information would normal- ly be the employer's records. To allow a company to refuse the information request and thereby compel a union to seek the identical information from the employ- ees would likely take a good deal longer and be more prone to error even assuming that all the employees re- sponded affirmatively and accurately to the union's re- quest. Indeed, the potential for error and delay could be extremely prejudicial to a grievant where, as here, the contractual grievance procedure has time limitations for moving a grievance from one step to the next. Moreover, it is conceivable that in certain grievances an employee or employees might not want to furnish information to the union, whem the outcome might be adverse to them. This situation could anse, for example, in a circumstance similar to the Sistrunk grievance , in which the issue is which of two competing employees is entitled to a pro- motion. In short, it is clear from the case law that an em- ployer may not refuse to furnish information relevant to a grievance on the grounds that the union has alternative means of obtaining the information. Thus, as stated by the Board in Kroger Co., 226 NLRB 512, 513 (1976): Absent special circumstances, a union's right to information is not defeated merely because the union may acquire the needed information through an independent course of investigation. The union is under no obligation to utilize a burdensome proce- dure of obtaining desired information where the em- ployer may have such information available in a more convenient form. The union is entitled to an 330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD accurate and authoritative statement of facts which only the employer is in a position to make. It is of course possible for a union to waive its right to relevant information. Where this contention is raised, however, the burden is on the employer to establish a "clear and unmistakable" waiver on the part of the union. NLRB v. Perkins Machine Co., 326 F.2d 488 (1st Cir. 1964); Timken Roller Bearing Co. v. NLRB, 325 F.2d 746 (6th Cir. 1963). In the present case, I certainly do not consider the Employer's unilateral promulgation of its employee privacy protection plan as amounting to a waiver by the Union as there is no evidence to suggest that this plan was the result of any agreement or negotia- tions with the Union. Moreover, I note that pursuant to the provisions of the plan, it explicitly exempts from non- disclosure, information requested by the bargaining rep- resentative that is relevant to a matter in collective bar- gaining. Since the processing of grievances under the contract is part and parcel of the collective-bargaining process, it seems to me that the authors of that privacy plan were aware and recognized the legal requirements for disclosing employee information, without the em- ployees' consent, when such information is relevant to grievance handling. Notwithstanding a union's request for relevant infor- mation, there can also exist rare circumstances whem a company may lawfully refuse to furnish information be- cause of its confidential nature. Thus, in Detroit Edison v. NLRB, 440 U.S. 301 (1979), the company refused to comply with a union's request for copies of aptitude tests, the answers to the tests, and employee scores that were used by the company for purposes of promotion. The Supreme Court (440 U.S. at 317-320), in refusing to enforce the Board's Order, stated: [W]e agree with the Company that its willingness to disclose these scores only upon receipt of con- sents from the examinees satisfied its statutory obli- gations under § 8(a)(5). The Board's position appears to rest on the prop- osition 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. That we believe is one. The sensitivity of any human being to disclosure of information that may be taken to bear on his or her basic competence is sufficiently well known to be an appropriate subject of judicial notice. There is nothing in this record to suggest that the Company promised the examinees that their scores would remain confidential in order to further parochial concerns or to frustrate subsequent Union attempts to process employee grievances And it has not been suggested at any point in this proceeding that the Company's unilateral promise of confidentiality was in itself violative of the terms of the collective- bargaining agreement. Indeed, the Company pre- sented evidence that disclosure of individual scores had in the past resulted in the harassment of some lower scoring examinees who had, as a result, left the Company. Under these circumstances, any possible impair- ment of the function of the Union in processing the grievances of employees is more than justified by the interests served in conditioning the disclosure of the test scores upon the consent of the very em- ployees whose grievance is being processed. The burden on the Union in this instance is minimal. The Company's interest in preserving employee confidence in the testing program is well founded. 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. B. Additional Grievances 1. The grievances of McAllister, Mosco, and Zipf Each of these employees had filed grievances relating to disciplinary actions taken against them because of ex- cessive absenteeism. In each instance, the local union representing them made requests for certain company records relating to the absences of the grievants or to other similarly situated employees. The Company's re- sponses varied in each case. In the case of McAllister, Local 1024 requested her absence records during the first step of the grievance procedure. It did so orally and by letter. The letter asked the Company to produce certain of McAllister's records by form G-520 and C-4014 and "any other documenta- tion relevant to [McAllister's] history of absence to date." Respondent rejected this request, citing its em- ployee privacy protection plan. It asserted that McAllis- ter would have to consent to the release of her records. Subsequently, the Company did tender to the Union, notwithstanding the fact that McAllister had not given her consent, a handwritten summary setting forth the dates and durations of her absences since March 1982. The summary also set forth the reasons that McAllister had given for her absences. (I.e., flu, weak and nauseous, upset stomach, sunburn, and virus.) When the Union in- dicated that it still wanted to see the official records on which the summary was based, the Company refused, again citing the privacy plan.9 Thereafter, the Union re- iterated its request in writing and the Company took the position that McAllister's consent was a necessary pre- condition for release of her records. 9 The processing of a grievance under a collective-bargaining agree- ment is, to some degree, analogous to a trial In the latter instance, while summaries may be offered by one party into evidence, it must make avail- able to the other side the records on which the summary is based Fed R Evid 1006 NEW JERSEY BELL TELEPHONE CO. On May 10, the Company asked McAllister if she would consent to the release of her records and she said she wold have to discuss this with her shop steward. Ap- parently, the Company construed her answer as a con- sent and gave the Union some, but not all, of McAllis- ter's absence records. Thus, although it tendered copies of her forms G-520 and C-4014, it furnished her G-661 record in an expurgated fashion. although Company argues that it had no obligation to furnish the G-661 record because the Union did not explicitly request that form, the evidence shows that the Union's representa- tives, and indeed some of the Company's representatives, were not aware that the form G-661 was a separate form. In any event, it also is evident that as a matter of practice, the form G-661, on which the supervisor may record his evaluation of an employee's absence excuses, is incorporated by reference into the form C-4014 and is part of an employee's absence records. Also, the Union while designating the forms G-520 and C-4014 in its ini- tial request for information additionally requested any other documentation relevant to McAllister's history of absences. As the grievance involved McAllister's receipt of dis- cipline for her absences, it is axiomatic that all of her ab- sence records, during the relevant period of time, would be relevant to her grievance and therefore discoverable by the Union. Moreover, the form G-661 was probably more relevant to her grievance than the other informa- tion furnished by the Company because it contained the supervisor's evaluation of McAllister's excuses, and a record of the discussions and/or warnings that preceded the particular disciplinary action. As the evidence shows that the Company did not turn over all of McAllister's absence records, but rather turned them over with sub- stantial deletions, I conclude that it violated Section 8(a)(1) and (5) of the Act. In reaching this conclusion, I am mindful of the Third Circuit's earlier opinion in New Jersey Bell Telephone Co. v. NLRB, 720 F.2d 789 (3d Cir. 1983). In this respect, I believe the facts are distinguishable. i 0 Unlike the facts of the earlier case, the facts here do not disclose that the Union directed McAllister to withhold her consent to the release of her records or that she at any time ex- pressed any concern that their release would infringe on her privacy. Also, unlike the earlier case in which the absence records showed medical reasons for being absent that were highly intimate and personal, the excuses given 10 Even assuming that the facts were indistinguishable from the earlier case, I would nevertheless be constrained to follow the Board's prece- dent Thus, in Insurance Agents, 119 NLRB 768, 773, the Board stated It has been the Board's consistent policy for itself to determine whether to acquiesce in the contrary views of a circuit court of ap- peals or whether, with due deference to the court's opinion, to adhere to its previous holding until the Supreme Court of the United States has ruled otherwise But it is not for a Trial Examiner to spec- ulate as to what course the Board should follow where a circuit court has expressed disagreement with its views On the contrary, it remains the Trial Examiner's duty to apply established Board prece- dent which the Board or the Supreme Court has not reversed Only by such recognition of the legal authority of Board precedent, will a uniform and orderly administration of a national act, such as the Na- tional Labor Relations Act, be achieved See also Typographic Service Co, 238 NLRB 1568, 1573 fn 13 (1978), Charles D Bonanno Linen, 229 NLRB 624 (1977) 331 by McAllister, which were in fact turned over to the Union before she gave her "consent," were of the garden variety of common ailments. With respect to the Mosco grievance, the Union ini- tially asked to see the attendance records of all the em- ployees in the New Brunswick office, of which there are about 39. The Company refused, asserting that employee releases would have to be secured. On April 12, after the grievance was filed, the Company offered to show the Union the records of the three worst offenders if the Union paid for the cost of duplication. The Union re- fused this offer, asserting that it wanted to see all the records. On April 15, Mosco signed a release for her own records, but when Union Representative Hutchins asked to make photocopies of Mosco's records this was refused and Hutchins was forced to copy the records by hand. Also, Hutchins was not shown that portion of Mosco's records containing the record of discussions (i.e., the G- 661 form). On May 2, at the first-step grievance meeting, Hutch- ins asserted her opinion that Mosco was being treated differently from other employees who had similar types of absences excused. When the Company challenged her to prove this allegation, she said that she could not be- cause of her inability to obtain the requested records. Subsequently, Mosco's grievances terminated because the Union did not meet the contractual time limits for ap- pealing to the next step. In relation to the Mosco grievance, it seems to me that her own absence records were clearly relevant to her grievance, which involved discipline for her excessive absenteeism . As in the case of McAllister, there was no showing that the Union directed Mosco to withhold her consent for release of her records and, in fact, she did sign a release. Accordingly, I can only conclude that when Respondent failed to tender the entirety of her ab- sence records, it violated Section 8(a)(1) and (5) of the Act. Also, it is my conclusion that when Respondent re- fused to allow Hutchins to make photocopies of the records, that it further violated Section 8(a)(1) and (5) of the Act. Thus, in Communications Workers Local 1051 v. NLRB, 644 F.2d 923, 926-927 (1st Cir. 1981), the court stated: The evidence establishes that the "no photocopy" rule made it expensive and time-consuming, if not impossible, for the union to obtain the reliable copies it required to discharge its duties as bargain- ing representative. The rule plainly disadvantaged the union in evaluating and prosecuting grievances and was likely to discourage resort to the grievance process at all in some cases. In view of the company's vigorous defense of its ban on photocopies, we find it perplexing, to say the least, that it has neglected even to assert a legiti- mate business justification for its policy. Despite re- peated inquiries by the ALJ, the company declined during the hearing to disclose the reason for its rule, and has continued on appeal to rely on its bare legal right to determine as it chooses, how information will be disclosed to the union As we said in NLRB 332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD v. Borden, Inc., Borden Chemical Division, 600 F.2d 313, 318 (1st Cir. 1979), management's prerogative to determine the form of information disclosure is not a license to put the union "through the hoops": "The union is under no obligation to utilize a bur- densome procedure of obtaining desired information where the employer may have such information available in a more convenient form" (quoting The Kroger Company, 226 NLRB 512, 513 (1976)). We held in Borden that management could not refuse to supply the union with insurance cost data because the same information could be had by polling the employees. We see no reason to accord greater def- erence to management prerogative, if any exists, when, as here, the employer supplies information in the requested form (original documents) but seeks to limit the means by which the union may make copies. We affirm the Board's decision that applica- tion of the "no photocopy" rule in these cases un- necessarily impeded the grievance process. Finally, regarding the Mosco grievance, it is my opin- ion that the Union's request for the attendance records of the other employees in her office was a valid one. The Union asserted its belief that Mosco was being treated in a disparate manner from other employees. Whether this belief was correct is not really the point, as an examina- tion of the records, even if establishing that the claim was without merit, would have aided the grievance proc- ess. This is so because such disclosure might have con- vinced the Union to withdraw the grievance and thereby cause itself and the Company to cease spending time and effort on an invalid claim. As noted by the Court in NLRB v. Acme Industrial Co., supra, a union's need for information is not dependent on a showing that the infor- mation will aid the union in winning the grievance. Of equal importance, is the need of a union to sift out non- meritorious claims that would bog down the grievance- arbitration process. With respect to the Company's defense that it legiti- mately required employee releases before releasing these records, I conclude that this defense is without merit for the same reasons stated above. That is, there was no showing that the Union directed any of the employees to refuse to sign releases, there was no evidence that any employees objected to the release of such information, and there was no showing that these particular records contained information of a medical nature that was highly intimate or personal. However, in light of the Third Circuit's opinion in the prior case, the Board may want to consider whether to allow the Company in the future to furnish these types of absence records without employee identification. To the extent that the Company asked the Union to pay for the cost of copying the records, this may be a reasonable request where, as here, numerous documents need to be photocopied. Therefore, it seems appropriate for the parties to bargain about the circumstances in which the Union will pay for the cost of copying compa- ny records and the costs involved. Communications Workers Local 1051 v. NLRB, supra at fn. 3. With respect to the grievance involving Zipf, the record shows that when Shop Steward Heyer asked for Zipf's absentee records, he was told that Zipfs consent was needed and that her records would only be released after a formal grievance was filed. When the Union did file a formal grievance, it again requested Zipf's records and offered to pay for the costs of photocopying. After Zipf signed a release, the shop steward was allowed to review Zipfs records but was required to make notes by hand in the presence of a supervisor. It is my opinion, for the reasons expressed above, that the Company violated the Act by conditioning release of the records on Zipf's consent. Also, I conclude that Re- spondent violated the Act by additionally conditioning release of Zipf's records on the filing of a formal griev- ance. See Tom's Ford, Inc., 253 NLRB 888, 894 (1980). Finally, I conclude that the Company violated the Act by refusing to allow the Union to make photocopies of Zipf's records after Zipf had signed a release and after the Union offered to pay for the cost of copying. 2. The Brill grievance In this instance, the Union requested from the Compa- ny Brill's medical records including the reports made by consulting psychologist, Dr. Schwed. The records were clearly relevant to Brill's grievance as the issue was whether her present medical condition warranted her continued eligibility for disability pay after her return to work following a medical leave of absence. Recognizing that disclosure of Brill's medical records required her consent, the Union asked her to send a letter to the medical department, requesting her records. She did this on November 9, 1982. On December 6 when Brill, accompanied by Union Agent Huber, went to the medical department, he was not allowed to review her records and Brill was told that the psychologist's reports would not be turned over to her. Rather, she was told that the Company would send these reports to her pri- vate physician. Brill objected to no avail and it was not until a month later that these records were transmitted to Brill's physician. When he got them, he turned them over to Brill and she turned them over to the Union. In the meantime, her grievance was pending. Under Board law, medical records are accorded a high, if not absolute degree of confidentiality even if rel- evant to the bargaining process. Minnesota Mining & Mfg. Co., 261 NLRB 27 (1982), enfd. 694 F.2d 1289 (D.C. Cir. 1982); LaGuardia Hospital, 260 NLRB 1455 (1982); Johns-Manville Sales Corp., 252 NLRB 368 (1980); Colgate Palmolive Co., 261 NLRB 90 (1982). Neverthe- less, even assuming in a particular case that the need for confidentiality outweighs the need for medical records, the Board has noted that the "privilege in question, of course, belongs to the employees and not to the Re- spondent." Johns-Manville Sales Corp., supra. Therefore, it is plain that the assertion of a confidentiality privilege may not be asserted as a defense, if the employee whose records are sought has consented to their release. It is true, in the present case, that Brill did not explicit- ly, in writing, authorize the release of her medical records to the Union. Nevertheless, considering all the NEW JERSEY BELL TELEPHONE CO. circumstances, it seems to me that the Company was aware that Brill wanted these records furnished to her and that she intended to give them to the Union in sup- port of her grievance. Indeed, when she went to the medical department on December 6 to pick up her records, she asked that the shop steward be allowed to accompany her into the interview with Dr. Fitzpatrick. Nevertheless, the Company not only refused this request, but refused to turn over the records to Brill. Also it re- fused to allow her to look at her records or even to be read the full contents. It appears that the Company's policy is to refuse to honor any employee's request for direct release of medi- cal records (apart from hard test data), irrespective of the employee's medical condition. The Company makes a blanket assertion that such direct release would be harmful to an employee's health. I do not accept this generalized assertion, which assumes that under any cir- cumstance the release of medical records directly to em- ployees would be detrimental to them. As stated above, it is my belief that such a position is outdated at best, and appears to be contrary to the laws of the State of New Jersey. It is my opinion that a person, if he or she so de- sires, is entitled to have information concerning his/her own body and mind. It is recognized that there may be extreme circumstances (such as terminal illness or suici- dal depression) that might justify a physician in refusing to furnish medical records if it is demonstrated, on an ob- jective basis, that such disclosure would be harmful to the health or mental condition of a patient. However, I am satisfied that no such showing has been made in the present case as I do not believe that either of Dr. Schwed's reports, if disclosed to Brill, could conceivably have been detrimental to her health or mental condition. Based on the above, it is concluded that Respondent violated Section 8(a)(1) and (5) of the Act when it re- fused the requests of the Union and Brill to turn over her medical records to be used in connection with her griev- ance. 3. The grievance of Mananian and Marotta When Mananian and Marotta received unsatisfactory sales performance ratings, Local 1024 filed grievances on their behalf even though they had received satisfactory ratings regarding their overall performance. Both of these indididuals were shop stewards, and as such spent part of their time doing union work. As the rating for sales performance is based on a quota, the Union argued, in part, that the Company should have taken into ac- count the fact that both individuals spent part of their time in union business. In this regard, it was shown that other employees who work on other functions have lower sales quotas In support of its grievance, the Union requested from the Company the cumulative sales records of all the em- ployees in the office and the Company responded that this information could not be turned over absent employ- ee consent Previously, these records, which consist of a single page for each employee listing their sales and quotas, had been published by the Company. However, when employees complained that their publication was divisive, the Company ceased that practice. 333 On March 10, the Union repeated its request for the records although it indicated that the records could be provided with the names of the individuals deleted. The Company, while refusing this request, did offer to furnish the sales figures of the three lowest sales producers, without identification, who received satisfactory ratings. This offer was rejected by the Union. On April 8, the Company, instead of sending copies of the actual records to the Union, sent a summary that set forth each employee by letter designation, and set forth his or her average monthly sales revenues. The summary also set forth whether the employee was engaged in sales on a full-time or part-time basis, and whether the em- ployee had an unsatisfactory sales rating. The Union re- sponded that the summary tendered was not sufficient for its needs and again requested copies of the actual sales records. It is my opinion that the information sought was rele- vant to the grievances involved. In this regard, it seems to me that the Union had a colorable claim that whem sales quotas are lowered for other employees who do not work full time in sales, the shop stewards who are re- quired to spend some of their time in union business should be treated in a similar fashion. (This does not mean, however, that I conclude that the Union's griev- ance ultimately would have been successful.) The Company's claim that the sales records were con- fidential and required employee consent for their release is rejected. I do not see any rational basis for asserting that such sales figures, if released to the Union (and not generally published) would have invaded a legitimate privacy interest of the employees. Any concern employ- ees might have regarding the release of such records is, in my opinion, outweighed by the Union's need for infor- mation relevant to grievances handling. Moreover, the Union indicated that it was willing to receive the infor- mation without employee identification. Where, as here, the records involved were readily available and not particularly voluminous, I also do not understand why the Company simply did not turn them over as requested. Thus, in the absence of any evidence showing a justification for a refusal to tender copies of the actual records, it is my opinion that tender of a sum- mary is not sufficient to meet the Company's obligation to furnish relevant information. 4. The Sistrunk grievance Local 1023 filed a grievance on Sistrunk's behalf when she did receive a promotion to a drafting position. It did so because another employee, Serone, received the pro- motion notwithstanding her lower seniority. i i The Com- pany, in response to the grievance, asserted that Serone was given the promotion over Sistrunk because she had previous drafting experience and because she had a hand- icap, which gave her a priority under the Company's af- firmative action program. When the Company gave " The contract at art 9 states, in substance, that in promotion to non- management positions within the bargaining unit seniority shall be con- trolling, where "all other qualifications including ability, knowledge of the job to be filled, attendance record, dependability and availability for the assignment are substantially equal " 334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD these reasons, the Union asked to see Serone's upgrade application to verify the Company's assertions regarding Serone. The Company refused citing its privacy plan and asserted that Serone would have to authorize release. Clearly, the information requested was relevant to the grievance because of the Company's asserted reasons for promoting Serone over Sistrunk. Simply stated, the Union should be entitled to verify, through appropriate records, the facts asserted by the Company instead of being compelled to accept the Company's word. In this case it is my opinion that the Union's need for the infor- mation outweighed any claimed right of privacy. I also think the facts are distinguishable from the facts in the Third Circuit's earlier opinion . First, the Union did not direct Serone to refuse to sign a release. Secondly, the Union made no request for any information disclosing the precise nature or extent of Serone's handicap. Final- ly, the Company did not demonstrate that Serone's appli- cation contained information of a medical nature that was highly intimate or personal . I also note that although the Union did not seek to obtain Serone 's consent for re- lease of her application, there is no assurance that she would have given her consent in view of the fact that the Union's position regarding the grievance was adverse to her. If Serone had refused to give her consent, would the Union then be compelled to process the grievance without the necessary documentation? 5. The grievances of Dobish, Tiernan, and Dunston Each of these employees received unsatisfactory per- formance ratings and in the case of Tiernan , she received a final warning . A grievance was filed in each instance and the Union requested certain information in relation to the grievances. With respect to Dobish, the Union requested receipt of her performance evaluation. After Dobish signed a re- lease, a union representative was allowed to review this document, but the request for a photocopy was refused. After reviewing the evaluation, the Union decided to process Dobish's grievance further and requested the job performance records of the other employees in the office. On April 25, the Company notified the Union that it would not furnish these records without employee consent. When the Union contacted Frank Sabo, the Company's director of labor relations, he stated the Union would have to pay for the cost of duplicating the records. On May 4, the Union wrote to Sabo reiterating its request for the records and asking for a cost estimate for copying. On May 11, Sabo replied, asserting that he could not comply with the Union's request because the grievance had not yet been appealed to the third step of the grievance procedure. Obviously the records of Dobish were relevant to her grievance and I conclude that Respondent violated Sec- tion 8(a)(1) and (5) of the Act by refusing the Union's request to have photocopies made of her records. Com- munications Workers Local 1051 v. NLRB, supra. I am also of the opinion that the request for the performance records of the other employees was relevant to the grievance because the Union was entitled to discover whether Dobish was treated in a disparate manner. As the information involved was not of a medical nature or, in my opinion , otherwise confidential in nature, I reject the Company's claim that it could legitimately condition their release on the employees' consent. Based on the above, I therefore conclude that the Company violated Section 8(a)(1) and (5) of the Act. As in the case of the Mosco grievance, it seems appropriate for the parties to bargain about the circumstances in which the Union will bear the cost of copying and the costs involved. Regarding the Tiernan grievance, Local 1024 was given Tiernan's records after she signed a release. When the Union asserted that it believed that Tiernan was being treated in a disparate manner from other employ- ees, it requested the job performance records of the other service representatives in the same office. In making this request, the Union indicated to the Company that it did not need these records identified by employee names. Nevertheless, the request was denied. On May 4, the Union wrote to Respondent reiterating its request and setting forth its reasons . When the Union again re- peated its request for the records (without employee identification) on May 22, the Company refused, stating that employee releases were necessary. Thereafter, it ap- pears that Tiernan's grievance was settled when the warning was retracted. For essentially the same reasons set forth above, I con- clude that the information requested was relevant to the grievance under the broad discovery standard applicable to these cases . I do not conclude that the information sought was confidential or otherwise privileged from dis- closure by virtue of a claimed right of privacy. There- fore, I conclude that the Employer violated Section 8(a)(1) and (5) of the Act by conditioning release of these records on employee consent. Concerning the grievance of Hartent Dunston, who was disciplined for poor work performance, I conclude that the records requested by the Union (Dunston's ab- sence and job performance records) were relevant to the grievance. As there is no showing that the Union re- quested Dunston to refuse to sign a release, and because there is no evidence that Dunston objected to their re- lease, I conclude that Respondent, by refusing to turn them over unless she signed a release, violated Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. New Jersey Bell Telephone Co. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Communications Workers of America and its Locals 1022, 1023, and 1024 are labor organizations within the meaning of Section 2(5) of the Act. 3. All nonsupervisory employees of Respondent's com- mercial and marketing departments constitute a unit ap- propnate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material the Communications Workers of America has been the exclusive collective-bargaining representative of the employees in the aforesaid appro- priate unit within the meaning of Section 9(a) of the Act. NEW JERSEY BELL TELEPHONE CO. 5. At all times material, the Communications Workers of America, with the assent of Respondent, has delegated to its Locals 1022, 1023, and 1024 the administration of the collective-bargaining agreement at the local level and the processing of grievances at the first two steps of the contractual grievance procedure. 6. By failing to provide certain information and records to the Union and by failing to provide photocop- ies of certain records to the Union, when such records were requested for the purposes of administering the col- lective-bargaining agreement, Respondent has violated Section 8(a)(1) and (5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain violations of the Act, I shall recommend that it be or- dered to cease and desist therefrom and that it take cer- tain affirmative action to effectuate the policies of the Act. Insofar as the denial of information relating to the McAllister grievance, I recommend that Respondent fur- nish to the Union copies of all of her absentee records including an unexpurgated copy of the record designated form G-661. Regarding the Mosco grievance, as this grievance ter- minated, the information requested has no current utility. I, therefore, shall not recommend that the information requested be turned over to the Union. This does not mean, however, that I conclude that the entire issue is moot so as to warrant dismissal of the charge in question. To the contrary, it is apparent that the Company's refus- al to furnish relevant information in these cases was part of an overall pattern of nondisclosure that, unless or- dered to cease, will continue in the future. C-B Buick Inc. v. NLRB, 506 F.2d 1086, 1092-1093 (3d Cir. 1974); Boyer Ford Trucks, 254 NLRB 1389, 1394 (1981). Ac- cordingly, I recommend that Respondent be ordered to cease and desist in the future from violating the Act in similar respects. 12 With respect to the Zipf grievance, I recommend that Respondent be ordered to turn over copies of Zipfs ab- sentee records because I have concluded in the circum- 12 In light of the Third Circuit's opinion in the prior case, New Jersey Bell Telephone Co v NLRB, supra, the Board may wish to consider modifying this order to provide that in grievances whem absence records are sought, such records of employees other than the grievant, may be furnished without employee identification unless such employees give their consent 335 stances that Respondent unlawfully conditioned release of her records on her consent and on the filing of a formal grievance. I also recommend that the question of who will bear the cost of copying records is properly a subject for negotiations between the parties. In connection with the Brill grievance, I will recom- mend that an order be issued directing the Company to turn over to Brill a copy of her medical records to the extent that they are not already in her possession. (It is not clear from this record whether she had obtained both of Dr. Schwed's reports.) Further, in future cases whem an employee's medical records are relevant to the em- ployee's grievance, I recommend that such records be turned over to the Union on that employee's consent, or directly to the employee if such employee requests them from the Company's medical department . When such employee medical records are furnished to the Union, however it should be understood that the Union, its offi- cers, agents, members, and attorneys shall not divulge such information, absent the employee's consent, to any other persons who are not involved in or necessary to the resolution of the grievance in question. Further in such rare and extreme circumstances (such as terminal illness or severe mental disorder), where, in the exercise of medical judgment, the disclosure of an employee's medical records is objectively judged to be harmful to an employee's health or mental condition, Respondent may fulfill its obligation by promptly transmitting such records to any physician designated by the employee. Regarding the grievances of Mananian and Marotta, I recommend that Respondent furnish to the Union the cu- mulative sales records of the employees in the Pascade Valley office as requested by the Union without condi- tioning their release on the employees' consent. As noted above, the question of the cost of copying is a matter that the parties should negotiate. Regarding the Sistrunk and Tiernan grievances, as those matters ultimately were settled in the grievance procedure, the information requested has no current utili- ty. Accordingly, as in the case of the McAllister griev- ance, I shall not recommend that Respondent furnish this information. Since I have concluded that Respondent has violated the Act in these incidents, however, I do not consider these cases moot and I shall recommend that Respondent be ordered to cease and desist from similar violations in the future. In connection with the Dunston grievance, I shall rec- ommend that the Respondent furnish to the Union her absence and job performance records without condition- ing their release on Dunston's consent. [Recommended Order omitted from publication.]