MEMORIAL HOSPITAL OF SALEM COUNTY

SALEM HOSPITAL CORP. 695 359 NLRB No. 82 Salem Hospital Corporation a/k/a The Memorial Hospital of Salem County and Health Profes- sionals and Allied Employees (HPAE). Case 04– CA–073474 March 22, 2013 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK On September 14, 2012, Administrative Law Judge Arthur J. Amchan issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The Acting General Counsel filed an answering brief, and the Respondent filed a reply brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,1 and conclusions,2 and to adopt the recommended Order as modified and set forth in full below.3 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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. In adopting the judge’s finding that the Respondent violated Sec. 8(a)(5) by failing to provide the Union with the information requested in its October 20, 2011 letter, we find that much of the requested in- formation, including the name, department, and hire date of disciplined employees, as well as the related personnel files, disciplinary forms, and policies assertedly underlying the discipline, is presumptively relevant. See Booth Newspapers, Inc., 331 NLRB 296, 296 fn. 2, 299– 300 (2000), and cases cited therein. With respect to the requested witness lists and summaries of witness statements, even assuming (as the Respondent argues) that this information is not presumptively rele- vant, we find that the Union demonstrated the relevance of the infor- mation. See Pennsylvania Power Co., 301 NLRB 1104, 1107–1108 (1991) (summaries of witness statements); and Anheuser-Busch, Inc., 237 NLRB 982, 984 fn. 5 (1978) (witness names). Further, the Re- spondent waited approximately 9 months, until the day before the hear- ing, to assert its confidentiality and overbreadth concerns and suggest an accommodation. See Detroit Newspaper Agency, 317 NLRB 1071, 1072 (1995) (rejecting confidentiality claim first asserted during or shortly before the hearing); and Superior Protection, Inc., 341 NLRB 267, 269 (2004), enfd. 401 F.3d 282 (5th Cir. 2005), cert. denied 546 U.S. 874 (2005) (if employer believes request is ambiguous or over- broad, it must seek clarification or comply with request to extent it encompasses relevant information). In those circumstances, we have little trouble affirming the judge’s finding that the Respondent’s refusal to provide the requested information violated Sec. 8(a)(5). We also agree with the judge’s finding that the Respondent violated Sec. 8(a)(5) by rejecting the Union’s request, in its October 20 letter, to bargain over all discipline, including discharges. See Ryder Distribu- tion Resources, 302 NLRB 76, 90 (1991); and Crestfield Convalescent Home, 287 NLRB 328, 328 (1987). We therefore find it unnecessary to pass on the Acting General Counsel’s contention that the Respondent has not sufficiently excepted to the judge’s finding of the violation. CONCLUSION OF LAW By failing and refusing to provide the Union with rele- vant information as requested in the Union’s October 20, 2011 letter and by failing to bargain regarding the disci- pline, including terminations, of unit employees as re- quested in the same letter, the Respondent, Salem Hospi- tal Corporation a/k/a the Memorial Hospital of Salem County, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. ORDER The Respondent, Salem Hospital Corporation a/k/a the Memorial Hospital of Salem County, Salem, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested infor- mation that is relevant and necessary to the Union’s per- formance of its functions as the collective-bargaining representative of the Respondent’s unit employees. (b) Failing and refusing to bargain with the Union as the exclusive collective-bargaining representative of the employees in the bargaining unit concerning disciplinary actions, including discharges, taken against bargaining unit employees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish the Union with the information requested in its letter dated October 20, 2011, to the fullest extent allowed by law. (b) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the bargaining unit concerning discipline, including dis- charges. (c) Within 14 days after service by the Region, post at its Salem, New Jersey facility copies of the attached no- 2 The judge failed to include in his decision a “Conclusions of Law” section setting out the specific violations of Sec. 8(a)(5) he found in this case. We shall provide formal “Conclusions of Law” in order to correct this inadvertent omission. 3 We shall modify the judge’s recommended Order to require the Respondent to furnish to the Union the information requested in its October 20, 2011 letter to the fullest extent allowed by law. In doing so, we do not preclude the Respondent from raising medical and patient confidentiality arguments during the compliance stage of this proceed- ing. We shall also modify the judge’s recommended Order to conform to the Board’s standard remedial language, and we shall substitute a new notice to conform to the Order as modified. 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceed- ings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 20, 2011. (d) Within 21 days after service by the Region, file with the Regional Director for Region 4 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain collectively with the Union by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” performance of its functions as the collective-bargaining representative of our unit employees. WE WILL NOT fail and refuse to bargain with the Union as the collective-bargaining representative of our em- ployees in the bargaining unit concerning disciplinary actions, including discharges, taken against bargaining unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL furnish the Union with the information re- quested in its letter dated October 20, 2011, to the fullest extent allowed by law. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of our em- ployees in the bargaining unit concerning discipline, in- cluding discharges. SALEM HOSPITAL CORPORATION A/K/A THE MEMORIAL HOSPITAL OF SALEM COUNTY Noelle Reese, Esq., for the General Counsel. John Jay Matchulat, Esq., of Brentwood, Tennessee, for the Respondent. Lisa Leshinski, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Philadelphia, Pennsylvania, on August 1, 2012. The Union, Health Professionals and Allied Employees (HPAE), filed the charges1 in this matter on January 31, 2012. The General Counsel issued the complaint on April 26, 2012. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the brief filed by the General Counsel,2 I make the following FINDINGS OF FACT I. JURISDICTION Respondent Salem Hospital Corporation operates an acute care hospital in Salem, New Jersey, where it annually receives 1 Only the issues raised in Case 04–CA–073474 were litigated. The other charges were settled and o/or withdrawn. 2 The Union has informed me that it is not filing a brief. The briefs were due on September 12. Rule 102.42 of the Board’s Rules allows for posttrial briefs no more than 35 days after the close of hearing. However, extensions of time are often granted beyond 35 days. On August 16, 2012, the General Counsel requested a 1-week extension of time to file briefs from September 5 to 12. This request was granted on August 16. On September 5, Respondent requested an additional exten- sion to September 24. This request was denied. The 42 days allowed for the filing of posttrial briefs in this case, a 1-day hearing with 107 pages of transcript, and relatively few exhibits, was more than ade- quate. This is particularly true given the nature of the issues. Nonethe- less, I informed Respondent that I would accept its brief if filed on September 13. As of 9:25 a.m. September 14, I had not received Re- spondent’s brief. SALEM HOSPITAL CORP. 697 gross revenues in excess of $250,000 and purchases and re- ceives goods valued in excess of $50,000 directly from loca- tions outside of New Jersey. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Background The Union won a representation election conducted at the Salem Hospital on September 1 and 2, 2010. Respondent then filed objections to the conduct of the election. The Board re- jected these objections and on August 3, 2011, certified the Union as the exclusive bargaining representative of Respond- ent’s employees in a unit consisting of all full-time and regular part-time and per diem registered nurses, including staff nurses, case managers, and charge nurses at that facility. The Union requested bargaining soon after it was certified. On August 17, 2011, Respondent’s president informed the Un- ion that it would continue to contest the certification and would not meet and bargain with it. The Union filed an unfair labor practice charge with regard to this refusal. The General Coun- sel issued a complaint and on November 28, 2011, the Board found that Respondent was violating the Act in refusing to meet and bargain with the Union, 357 NLRB No. 119 (2011) (not reported in bound volume). On August 15, the Union requested that Respondent provide it with information regarding unit members’ wages, benefits, and re- lated matters. Respondent ignored this request. The Board also found that Respondent violated the Act in failing to provide this information, 358 NLRB 836 (2012). The Instant Case This case involves allegations that Respondent violated Sec- tion 8(a)(5) and (1) by refusing and failing to bargain over all disciplinary actions taken against unit employees and ignoring a second Union information request. The Union sent Respond- ent a letter on October 20, 2011, which demanded bargaining over any and all disciplinary measures taken against unit em- ployees, including terminations. The Union also requested: 1. The name, department, and hire date of all employ- ees who were disciplined since the Union was certified on August 3, 2011 to date. 2. For each employee disciplined or terminated: a. A copy of the disciplinary form given to each employee; b. Personnel files of [disciplined] employees, in- cluding evaluations for the previous three years; c. A. summary of any witnesses statements consid- ered in imposing discipline. d. Copies of all documents, policies and procedures used in order to base the discipline. e. List of witnesses. Finally, the letter stated that this was an ongoing request for such documents for discipline imposed in the future, and an ongoing demand to bargain. Salem Hospital did not respond to the October 20, 2011 re- quest. The record establishes that Respondent has a great deal of information responsive to the Union’s request. For example, it took 50 disciplinary actions against unit nurses in the period January—July 31, 2012. This represents a marked increase in the number of disciplinary measures taken against unit mem- bers compared with 2010 and 2011 (Er. Exh. 10). Analysis Section 8(a)(5) provides that it is an unfair labor practice for an employer to refuse to bargain with the representative of its employees. Unit employee discipline is a mandatory subject of bargaining. An employer which refuses to meet and bargain with a certified collective-bargaining representative concerning the discipline of unit employees violates Section 8(a)(5) and (1) of the Act, Ryder Distribution Resources, 302 NLRB 76, 90 (1991). An employer’s duty to bargain includes a general duty to provide information needed by the bargaining representative for contract negotiations or administration, NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152–153 (1956). Information pertaining to employees in the bargaining unit is presumptively relevant, Southern California Gas Co., 344 NLRB 231, 235 (2005). More specifically, information regarding the discipline of unit employees is presumptively relevant, Leland Stanford Junior University, 307 NLRB 75 (1992). An employer must respond to an information request in a timely manner. An unreasonable delay in furnishing such information is as much of a violation of Section 8(a)(5) of the Act as a refusal to furnish the infor- mation at all, American Signature, Inc., 334 NLRB 880, 885 (2001).3 If an employer has a claim that some of the information re- quested is confidential or unduly burdensome to produce, such claims must be made in a timely fashion, Detroit Newspaper Agency, 317 NLRB 1071, 1072 (1995). The reason a confiden- tiality claim must be timely raised is so that the parties can attempt to seek an accommodation of the employer’s confiden- tiality concerns, Tritac Corp., 286 NLRB 522 (1987).4 The same is true with respect to a claim that satisfying the request would be unduly burdensome, Honda of Hollywood, 314 NLRB 443, 450–451 (1994); Pet Dairy, 345 NLRB 1222, 1223 (2005).5 The fact that a union may ask an employer for a large vol- ume of information does not, by itself, render that request “overbroad” so as to relieve the employer from the duty to pro- vide that information where, as here, the information is relevant and necessary to the union's performance of its bargaining du- ties. If an employer declines to supply relevant information on the grounds that it would be unduly burdensome to do so, the 3 This case has also been cited under the name of Amersig Graphics, Inc. 4 When responding to a request for the identity of witnesses to an in- cident resulting in discipline or a summary of their statements, an em- ployer must, as in the case of medical information, raise its defenses regarding confidentiality in a timely fashion and must seek an accom- modation with the Union regarding these concerns, Pennsylvania Pow- er Co., 301 NLRB 1104 (1991). 5 Also cited as Land-O-Sun Dairies. 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employer must not only timely raise this objection with the union, but also must substantiate its defense. Respondent has done neither. Respondent never advised the union that its re- quest was unduly burdensome, and never sought clarification from the union in order to narrow the request, Pulaski Con- struction Co., 345 NLRB 931, 937 (2005). There is no doubt that production of the information may impose strains on an employer, but that consideration does not outweigh the union's right to the information requested. H. J. Scheirich Co., 300 NLRB 687, 689 (1990). Respondent contends that it was prohibited from disclosing some of the information requested by the Union due to the pri- vacy provisions of HIPAA (the Health Insurance Portability and Accountability Act). However, the Department of Health and Human Services has interpreted these requirements to al- low disclosure, without prior authorization, of information which is required to be disclosed bylaw, such as pursuant to the National Labor Relations Act, 65 Fed.Reg. 82485 (December 28, 2000) [preamble to the final rule to protect the privacy of individually identifiable health information]. More specifical- ly, the Department, in responding to public comments stated: The final rule does not prohibit disclosures that covered enti- ties must make pursuant to other laws. To the extent a cov- ered entity is required by law to disclose protected infor- mation to collective bargaining representatives under the NLRA, it may do so without an authorization. Also, the defi- nition of “health care operations” at Section 164.501 permits disclosures to employee representatives for purposes of griev- ance resolution. [Id., at page 82598.]6 The record herein demonstrates why an employer is required to seek an accommodation with the Union. Respondent intro- duced an exhibit with some, but possibly not all, individually identifiable patient information redacted (Er. Exh. 9). Thus, it demonstrated at trial that much of the information for which it 6 Also see 45 CFR §§164.506(c)(1) and 164.501(6). claims confidentiality could have been produced pursuant to an accommodation with the Union. In many cases, one would expect the Union to agree to the redaction of Social Security Numbers and to some information which would tend to identify patients. However, there are certainly cases in which some individually identifiable health information, including in some cases the patient’s identity, may have to be disclosed when the Union’s need for that information outweighs the patient’s pri- vacy concerns. One example might be a situation in which a nurse is disciplined for his or her treatment of a particular pa- tient and/or a situation in which the discipline is predicated in part on the patient’s account of the nurse’s care. The record also demonstrates this principle with regard to those documents Respondent claims would have been unduly burdensome to produce. Had Respondent offered the Union selected portions of the discriminatees’ personnel files, possibly with redactions, the Union may have agreed to at least some of Respondent’s proposals. The testimony of Respondent’s human resources director, Linda Tuting at (Tr. p. 74), indicates that there is a lot of information in the personnel files that would be of no interest to the Union. If an employer refuses to bargain, while contesting the valid- ity of a Board determination that a Union is the certified bar- gaining representative, it does so at its peril. Should the certifi- cation be upheld, an employer’s refusal to bargain, implementa- tion of unilateral changes and refusal to provide the Union with relevant information violate Section 8(a)(5), Quaker Tool & Die, Inc., 169 NLRB 1148 (1968); Alta Vista Regional Hospi- tal, 357 NLRB 326, 327 (2011). REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. [Recommended omitted from publication.]