UPMC Western Psychiatric Hospital

373 NLRB No. 98 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. UPMC Western Psychiatric Hospital and SEIU Healthcare Pennsylvania and JNESO—District Council 1, IUOE. Case 06–CA–316473 September 6, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On February 5, 2024, Administrative Law Judge Mi- chael A. Rosas issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The General Counsel filed an answering brief, and the Re- spondent filed a reply brief. The National Labor Relations Board has delegated 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,1 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recom- mended Order of the administrative law judge and orders that the Respondent, UPMC Western Psychiatric Hospital, Pittsburgh, PA, its officers, agents, successors, and assigns shall take the action set forth in the Order. 1 In his decision, the judge stated that his findings of fact were based in part on his observation of the demeanor of the witnesses. However, as the judge noted elsewhere in his decision, the parties agreed to have the case decided on a stipulated record. The judge’s inadvertent error does not affect the finding of a violation in this case. The General Counsel has requested that the Board disregard the Re- spondent’s exceptions on the ground that they do not comply with Sec. 102.46 of the Board’s Rules and Regulations. We deny the request be- cause the Respondent’s exceptions and brief together sufficiently desig- nate the Respondent’s points of disagreement with the judge’s decision. See Williams Services, 302 NLRB 492, 492 fn. 1 (1991). In rejecting the Respondent’s claim that JNESO, the certified representative, transferred its Sec. 9(a) representational responsibilities to SEIU (and in effect substituted SEIU for itself as the representative of the Respondent’s unit employees) by entering into the 2004 servicing agreement with SEIU, we note that the Respondent concedes elsewhere in its exceptions brief that “JNESO and the Hospital are parties to an on- going collective bargaining agreement and have a long and productive bargaining history of nearly 30 years.” Given that JNESO was certified on January 31, 1995, and entered into the servicing agreement in April 2004, it is clear that the 30-year “long and productive bargaining history” the Respondent admittedly has enjoyed with JNESO includes the 20-year period since JNESO entered into the servicing agreement with SEIU. Emphasizing that the servicing agreement here provides that it “shall remain in effect unless and until it is amended or terminated by mutual consent of the parties,” the Respondent contends that the language of that Dated, Washington, D.C. September 6, 2024 ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Payton Guitierrez, for the General Counsel. Brazitte A. Poole, Esq. (UPMC Legal Dept.), of Pittsburgh, Pennsylvania, for the Respondent. Ryan Hancock, Esq. (Willig, Williams & Davidson), of Philadel- phia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. This case was tried based on a stipulated record pursuant to Section 102.35(a)(9) of the National Labor Relations Board’s (the Board) Rules and Regulations. The complaint alleges that UPMC Western Psychiatric Hospital (the Respondent) breached its duty to bargain in good faith in violation of Section 8(a)(5) provision demonstrates that JNESO lacks the power to unilaterally terminate the servicing agreement, which belies the existence of a bona fide agency relationship. In making this argument, the Respondent relies on an Advice Memorandum, finding a different servicing agreement in- valid in part because of such a clause. See Arlen Beach Condominium Association, Inc., Case 12–CA–024507, available at 2005 WL 6715493 (Nov. 8, 2005). However, as the Respondent concedes in its reply brief, the General Counsel’s Advice Memoranda reflect the General Counsel’s position on a case and are not precedential or binding on the Board. In any event, we reject the Respondent’s argument on the merits. As the Third Restatement of Agency makes clear, “[n]otwithstanding any agreement between principal and agent, an agent’s actual authority terminates if . . . the principal revokes the agent’s actual authority by a manifestation to the agent.” Restatement (Third) of Agency § 3.10(1) (2006). See also id. § 3.06 cmt. a (“[N]otwithstanding any agreement between principal and agent, either may terminate the agent’s actual authority by a manifestation to the other.”). Thus, a principal’s power to revoke an agent’s authority “is not extinguished because an agreement between principal and agent states that the agent’s actual authority shall be irrevocable or shall not be revoked except under specified circumstances,” and, although the principal’s “[e]xercising the power to revoke . . . may constitute a breach of contract,” the agent’s remedies against the principal “do not include specific performance.” Id. § 3.10 cmt. b. Accordingly, we reject the Respondent’s argument that that provision deprived JNESO of the power to terminate its servicing agreement with SEIU absent SEIU’s consent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 and (1) of the National Labor Relations Act (the Act)1 by failing and refusing to provide SEIU Healthcare Pennsylvania (SEIU) with certain information that SEIU requested on February 24, 2023,2 as described in paragraphs 7(a), 7(b), and 7(c) of the Sec- ond Amended Complaint (the amended complaint) for the pur- pose of performing its duties as an agent of JNESO—District Council 1, IUOE (JNESO), the exclusive collective-bargaining representative of the bargaining unit. The Respondent denied the material allegations of the amended complaint and asserted three principle defenses: (1) it had no obligation to deal with SEIU as JNESO’s agent because JNESO impermissibly delegated its Section 9(a) representational responsibility, duties and functions;3 (2) this is a dispute over contract interpretation which must be deferred to arbitration; and (3) the information request at issue seeks starting wage rate in- formation for non-bargaining unit employees and is neither pre- sumptively relevant to JNESO’s performance as bargaining rep- resentative nor necessary for the performance of its duties. On the entire record,4 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a nonprofit corporation, with an office and place of business in Pittsburgh, Pennsylvania (the Respondent’s facility), is engaged in the operation of an acute care hospital providing inpatient and outpatient medical care. In conducting its operations annually, the Respondent derives gross revenues in excess of $250,000 and purchases and receives at the Re- spondent’s facility goods valued in excess of $5000 directly from points outside the Commonwealth of Pennsylvania. The Re- spondent 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 SEIU and JNESO are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The JNESO-1199P/SEIU Servicing Agreement On January 31, 1995, the Board certified JNESO as the exclu- sive bargaining representative for the following employees (the Unit): All full time and regular part-time psychiatric nurses and staff nurses employed by the employer at its Western Psychiatric In- stitute and clinic building located at 3811 O’Hara Street, Pittsburgh, Pennsylvania 15213, excluding out-patient nurses, all other registered nurses, office clerical employees and guards, other professional employ es and supervisors as de- fined in the Act, and all other employees. 1 29 U.S.C. §§ 151-169. 2 All dates are in 2023 unless stated otherwise. 3 While it did not raise an agency-related affirmative defense prior to its filing of its answer to the second amended complaint, the Respondent did reserve its right to amend its answer(s) to state “other affirmative and/or additional defenses or otherwise supplement [its Answer(s)] upon Upon expiration of a prior agreement, the Respondent and JNESO entered into a collective bargaining agreement (the CBA), effective October 1, 2021, through September 30, 2024. On December 1, 2022, Matthew Yarnell, SEIU president, signed the CBA as an agent of JNESO although the agreement had been executed on behalf of JNESO by its executive director, Doug Placa. Neither Yarnell nor any other SEIU representative is a party to the CBA between the Respondent and JNESO except in their capacity as an agent of JNESO. Since April 1, 2004, SEIU and JNESO have been parties to a Servicing Agreement (the Servicing Agreement) wherein JNESO delegated certain duties, including the duty of contract administration at the Respondent’s facility to SEIU.5 WHEREAS, JNESO has determined that in order to provide its members with the best possible collective bargaining repre- sentation available, it is appropriate to designate 1199P/SEIU as its Agent for collective bargaining purposes for its members in the WPIC Unit and the Kittanning Unit; and WHEREAS, 1199P/SEIU has the staff and resources in west- ern Pennsylvania and a commitment to effectively represent the members of JNESO for collective bargaining purposes in the WPIC Unit and the Kittanning Unit; and WHEREAS, JNESO and 1199P/SEIU agree that 1199P/SEIU shall serve as Agent for JNESO with respect to its collective bargaining duties under the Agreements for the WPIC Unit and Kittanning Unit. WHEREAS, JNESO and 1199P/SEIU agree that, by entering into this Servicing Agreement and having 1199P/SEIU act as its agent for JNESO, JNESO is not delegating its responsibili- ties under the National Labor Relations Act to 1199P/SEIU; and WHEREAS, it is the intention of JNESO and 1199P/SEIU that the terms of this Servicing Agreement should not be construed as or interpreted as a disclaimer of interest on the part of JNESO in acting as collective bargaining representative for the employees in the WPIC Unit and the Kittanning Unit. NOW, THEREFORE, in consideration of the foregoing prem- ises, which are made a part of this Servicing Agreement, and the agreements contained herein and other good and valuable consideration, the parties, intending to be legally bound, agree as follows: 1. 1199P/SEIU and its designated staff shall serve as the agent of JNESO for the performance of all collective bargaining rep- resentation duties on behalf of the members of JNESO the discovery of facts or evidence that render[ed] such action appropri- ate.” (Exh. 4 at 6; Exh. 6 at 10.) 4 The exhibits submitted jointly by the parties were denominated as Exhibits. 5 Exh. 15. UPMC WESTERN PSYCHIATRIC HOSPITAL 3 employed in the WPIC and Kittanning Units. 1199P/SEIU shall perform such duties as collective bargaining negotiations (including the upcoming wage reopener negotiations as WPIC), administration of the contract, adjustment of griev- ances, and the representation of bargaining unit members, con- sistent with JNESO DFR.6 2. All provisions of the WPIC Agreement and Kittanning Agreement, copes of which are attached as Attachments #1 and #2, shall remain in full force and effect, except as may be mod- ified through collective bargaining, as long as changes are ap- proved and ratified by the membership of the WPIC Unit and Kittanning Unit. 1199P/SEIU will not engage in any strike in- volving the WPIC Unit or Kittanning Unit without consultation with and the approval of JNESO. 3. Bargaining unit members at WPIC and Kittanning will re- main members of JNESO and all benefits of said membership will be retained. 4. All provisions of the JNESO By-laws, a copy of which is attached as Attachment #3, will remain in full force and effect. 5. JNESO and 1199P/SEIU shall fully cooperate with each other to insure that 1199P/SEIU has all the materials and infor- mation necessary to carry out the performance of its duties as JNESO’s agent, and the parties agree to take whatever actions are necessary to address any issues that may arise in the course of implementing this Agreement. Staff designated by 1199P/SEIU to represent the WPIC and Kittanning Units shall sign correspondence to these employers as “Agents for JNESO,” and shall provide JNESO with a copy of such corre- spondence. 6. 1199/SEIU shall regularly report to JNESO on its activities with respect to the collective bargaining and other duties that it is performing on behalf of JNESO. In providing collective bar- gaining and other services to the employees covered by this Servicing Agreement, 1199P/SEIU will act as the agent for JNESO, which shall retain ultimate control of the representa- tion of the employees. JNESO shall at all times retain its posi- tion as the certified or recognized representative of the employ- ees in WPIC and Kittanning Units. 1199P/SEIU agrees not to attempt to undermine JNESO’s representation of the WPIC and Kittanning Units. 7. JNESO shall pay 1199P/SEIU an amount equal to seventy- five percent (75%) of the gross receipts on a monthly basis re- ceived from the bargaining unit employees in the WPIC and Kittanning Units, payable by the fifteenth (15th) day of each month, in consideration of the collective bargaining and other duties that 1199P/SEIU is performing on JNESO’s behalf. Ini- tiation fees shall be retained by JNESO. JNESO shall be re- sponsible for making all per capita payments on behalf of members in the WPIC and Kittanning Units. 6 “DFR” is not defined but the term appears to refer to the duty of fair representation. 8. Any disputes between the parties arising under this Servic- ing Agreement shall be resolved through good faith discussions after full disclosure of the facts supporting the parties’ respec- tive claims. In the event that any disputes cannot be resolved through this means, such disputes shall be submitted to the Fed- eral Mediation and Conciliation Service (FMCS) office in Pittsburgh for mediation. If no resolution results, the parties agree to submit such disputes to binding arbitration within thirty (30) days after the FMCS meeting. The Arbitrator shall be selected from a panel of nine (9) provided by the FMCS, which shall be members of the National Academy of Arbitra- tors from the western Pennsylvania area. 9. This Servicing Agreement shall remain in effect unless and until it is amended or terminated by mutual consent of the parties. B. SEIU’s History Of Dealing With the Respondent Since at least 2014, JNESO has neither held any formal meet- ings nor had any direct, formal communications with members of the Unit. At the instruction of JNESO, the Respondent has met with SEIU employees as JNESO’s agent for grievances, col- lective bargaining negotiations, labor management meetings, and other purposes since approximately 2004. To that end, the Respondent has, in the past, furnished relevant and necessary in- formation to SEIU upon request by SEIU, but has never recog- nized SEIU as a party to the CBA. C. The Relevant CBA Sections 1. Article 10, Sections 5: Effective October 1, 2021 the entry rate will be twenty seven dollars and fourteen cents ($27.14) per hour for nurse without a BSN and twenty eight dollars and fourteen cents ($28.14 ) per hour for nurses with a BSN. During the term of the Agreement, the start rate will be adjusted as the start rate for non-union, hourly paid nurses employed by UPMC Presbyterian Shadyside is adjusted with notice to the Union and the Chapter President. Nurses who are earning less than the start rate at any time when the start rate is increased will have their base hourly rate increased to the new start rate. All Registered Nurses newly hired during the term of this Agreement shall be credited with each previous active year of employment as a registered nurse engaged in direct patient care to determine the initial hourly rate of pay as described herein. For each year that the new employee has worked in active employment as a regis- tered nurse engaged in patient care, he or she will be paid two percent (2) over the start rate up to a maximum of fifteen (15) years. Provided however, no newly hired registered nurse shall receive an hourly rate of pay greater than any incumbent regis- tered nurse with equivalent experience.7 2. Article 10, Section 1: Effective at the beginning of the first pay period after the 7 Exh. 14 at 21. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 ratification of this Agreement, each bargaining unit member’s base hourly rate, will be increased by two and three quarters percent (2.75%). If the start rate is not increased between the date of ratification of this agreement and September 30, 2022, then each bargaining unit member’s hourly rate, will be in- creased: by two and three quarters percent (2.75%) on October, 1, 2022. If the start rate is not increased between October 1, 2022 and September 30, 2023, then each bargaining unit member’s hourly rate, will be increased by two and three quarters percent (2.75%) on October 1, 2023. These increases will be called the annual increases, this Agreement is ratified on or before Octo- ber 5, 2021, each bargaining unit member will be eligible to be paid a ratification bonus in the gross amount of five hundred dollars ($500.00). Any ratification bonus due will be paid within thirty days of the date of ratification. If the start rate is increased at the Hospital’s discretion after the ratification of this Agreement, each bargaining unit member’s base hourly rate will be increased by one half of one percent (1/2%) on the effective date of each such increase to the start rate. Then the next annual increase described in the preceding paragraph will be reduced by one half of one percent (1/2%) for each of the start rate increases so that the total annual in- crease will equal two and three quarters percent (2.75%) . . .8 3. Article 24, Section 3: A grievance is defined as a difference or dispute between an affected employee and the Hospital as to the interpretation, ap- plication, or alleged violation of the terms or provisions of this Agreement. Should an affected employee have a grievance, an earnest effort should be made to adjust such grievance in the following manner:. . . 4. Article 24, Section 6: A grievance which affects a substantial number of employ- ees, in which the question of fact and the provisions of this Agreement alleged to be violated are the same for each and every employee, may be filed as a grievance by the Union. The Union will make known to the Hospital the employees involved. 5. Article 25, Section 3: The decision of the Arbitrator shall be final and binding upon both parties and the aggrieved employee. The Arbitrator shall have no power to add to, subtract from, or modify any of the provisions of this Agreement. The decision of the Arbitrator must be based only on the express terms ofthis Agreement andthe evidence presented to him. 8 Id. at 20. 9 As of May 11, 2023, Hilk was no longer employed by the Respond- ent. D. The January 19 Information Request On January 19, Adam Stokes, an SEIU organizer, emailed Ar- ianna Hilk, a human resources consultant for the Respondent:9 What is the current start rate for non-union UPMC Shadyside Presbyterian RNs? Per Article 10, Section 5, “During the term of the Agreement, the start rate will be adjusted as the start rate for non-union, hourly paid nurses employed by UMPC Shadyside is adjusted with notice to the Union and the Chapter President” and I want to make sure I have the current rate. On January 20, Hilk replied that the Respondent was “cur- rently looking at our JNESO start rates on the language in the contract on page 20 Article 10, Section 1 . . . As soon as we have more information, we will share it with you.” On January 26, Stokes emailed Hilk and asked if she had been able to “confirm what the start rate is supposed to be?” On Feb- ruary 9, Stokes emailed Hilk again and asked if there was “[a]ny word on this?” On February 10, Hilk replied, “I apologize for my delay! No word yet. As soon as I know more, I will let you know.” Stokes acknowledged Hilk’s reply a short while later but elaborated on the basis for his inquiry: Specifically, we’ve seen several postings where the start rate at Western Psych is lower than what’s posted for WPIC. Presby posting: $29.77 to $44.13/hour WPIC posting: $28.09 (BSN $29.09) Given that there have been some recent hirings who have been told they can’t be hired at the extrapolated rate for experienced nurses because incumbent bargaining unit members are lower than that rate - - potentially due to the fact that the start rate has not been appropriately increased. I’m in a staff meeting until noon but I can give you a call after to talk through more.10 On February 16, Marianne Malloy, the Respondent’s senior as- sociate counsel and vice president for labor and employment, notified Stokes that the start rate for Unit members would be increasing: This is to let you know that effective on February 26th, the start rates for the JNESO nurses will be increasing. The basic start rate of $28.09 will increase to $28.93 and the BSN Start Rate will increase from $29.09 to $29.93. In accordance with Arti- cle 10, Section 1 of the collective bargaining agreement, these increases will trigger an acceleration of a portion of the annual increase due to employees on October 1st. All members of the bargaining unit will receive an increase of one half of one per- cent ( ½ %) which will also be effective on February 26th and the increase that will be issued effective on October 1, 2023 10 Exh. 16. UPMC WESTERN PSYCHIATRIC HOSPITAL 5 will be reduced to 2.25%. Let me know if you have any ques- tions. Stokes replied a few minutes later questioning Malloy’s basis for using February 26 as the effective date for start rates based on his interpretation of Article 10, Sections 1 and 5: [I]t appears that the UPMC Presbyterian Shadyside rate has been increased for some months already based on the job list- ings. Wouldn’t this have to be retroactive to when the rate was increased? Happy to set up a meeting to talk about this so I have a better understanding. Malloy replied to Stokes a few minutes later explaining that the contract language provided for start rate increases to be im- plemented at the Respondent’s discretion, the increase had just been authorized, and she was unaware of a decision by the Re- spondent to issue the increase retroactively.11 E. The February 24 Information Request Letter On February 24, Stokes replied to Malloy’s February 16 email with a written request for information. Stokes explained that the Union had become “aware of a potential discrepancy in pay rates for the Registered Nurse bargaining unit” at the Respondent’s facility and requested the following information within 30 days:. The October1, 2021 start rate for non-union, hourly nurses em- ployed by UPMC Presbyterian Shadyside. From October 1, 2021, through the present, both the date and the amount of all adjustments to the start rate for non-union, hourly nurses employed by UPMC Presbyterian Shadyside. An Excel spreadsheet with all members of the WPIC RN bar- gaining unit, their years of experience, their rate at the time of hire, and all pay adjustments since October 1st, 2021. Stokes also acknowledged the Respondent’s intention to im- plement the raises to the start rates of unit nurses members on February 26, but noted that the Union reserved the right to take future action “if it is found that the CBA has not been correctly applied.”12 On March 20, Stokes reminded Malloy that the Respondent had not yet responded to the February 24 information request. He asked that the information be provided by April 3 and noted that the Respondent’s refusal to comply would violate the Act.13 On March 31, Malloy emailed Stokes a spreadsheet contain- ing the information requested for bargaining unit employees. She explained, however, that the Respondent would not provide the wage information of nonunit employees on the basis of con- fidentiality and the lack of releases for such information by those employees. Stokes replied a short while later, clarifying that the Union 11 Exh. 17. 12 Exh. 18. 13 Exh. 19. 14 Exh. 20. was not asking for the wage information for “any specific indi- vidual.” However, citing the language at Article 10, Section 5 providing for wage rate adjustments based for unit nurses based on those issued to nonunit nurses, Stokes asserted that the infor- mation was “germane to the administration of the contract.” He also stated that the Union would review the information provided but maintained its position that the Respondent was obligated to provide the information relating to adjustments to the start rates. Stokes concluded with the following request: Please provide any start rate changes at UPMC Presbyterian Shadyside that have occurred since October 1st, 2021 by May 14th, 2023. This should provide reasonable time given that this request is narrower and not tied to any non-bargaining unit em- ployees in particular. As always, happy to hop on a call to dis- cuss our positions anytime. A few minutes later, Stokes emailed Malloy again, changing the May 14 deadline for providing the information to April 14 because “[i]t’s our position that an additional two weeks are rea- sonable here.”14 On April 20, Malloy responded to Stokes. She confirmed that the start rate for nonunit nurses at UPMC Presbyterian Shadyside increased twice since October 1, 2021-“effective in the first pay periods after January 16, 2022 and January 1, 2023. Let me know if require any additional information in connection with this.”15 On April 27, Stokes responded to Malloy’s April 20 email by requesting more specific information regarding the increases: What were the pay rates in each of those cases? In order to make sure we are correctly administering Article 10 Section 5, we need to make sure that new nurses starting at Western Psych weren’t being paid less than the new start rates.”16 On November 27, JNESO’s counsel made a final request for the Respondent to provide JNESO with the information sought by SEIU’s February 24 information request.17 To date, the Re- spondent has not furnished that information. Legal Analysis I. THE INFORMATION REQUEST A. The Information Requested Was Relevant An employer’s obligation to bargain in good faith under Sec- tion 8(a)(5) of the Act includes the obligation to provide the em- ployees’ bargaining representative, upon request, with infor- mation relevant to and necessary for the performance of the rep- resentative’s statutory duties. NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967); FCA US LLC, 371 NLRB No. 32, slip op. at 3 (2021); E.I. Du Pont de Nemours & Co., 366 NLRB No. 178, slip op. at 4 (2019); Postal Service, 332 NLRB 635, 635 (2000)). In evaluating relevance, the Board uses a “liberal, 15 Exh. 21. 16 Exh. 22. 17 Exh. 23. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 discovery-type standard” requiring only that the information have “some bearing upon” the issue between the parties and be “of probable use to the labor organization in carrying out its stat- utory responsibilities.” E.I. Du Pont, supra (quoting Public Ser- vice Co. of New Mexico, 360 NLRB 573, 574 (2014), and Postal Service, 332 NLRB at 636). Information pertaining to bargain- ing unit employees is presumptively relevant. Where it seeks in- formation pertaining to nonunit employees, “it is the union’s bur- den to demonstrate relevance.” Id. SEIU’s requests sought information about the wages paid to unit employees at WPIC and nonunit nurses at another facility, UPMC Presbyterian Shadyside. Unlike the wage information requested about unit employees, the wage information regarding nonunit employees at UPMC Presbyterian Shadyside is not pre- sumptively relevant. See FCA US LLC, slip op. at 3 (information that does not directly concern terms and conditions of employ- ment of unit employees is not presumptively relevant, even when sought for the purpose of processing grievances). The burden then shifted to SEIU to demonstrate to the Respondent a reason- able belief supported by objective evidence that the information was relevant. Id; see also Associated Ready Mixed Concrete, Inc., 318 NLRB 318 (1995), enforced, 108 F.3d 1182 (9th Cir. 1997) (employer not required to produce subcontracting infor- mation “absent a showing of its relevance”). SEIU’s burden required it to demonstrate “a reasonable belief supported by objective evidence that the requested information is relevant, unless the relevance of the information should have been apparent to the Respondent under the circumstances.” Postal Service, supra at 636; see also Postal Service, 310 NLRB 391, 391 (1993) (requiring “a logical foundation and a factual basis” for nonunit information requests), citing Acme, supra at 437 (1967); cf. Disneyland Park, 350 NLRB 1256, 1257–1258 (2007) (a generalized, conclusory explanation is insufficient to justify the information request). In assessing the propriety of the request, the Board “does not pass on the merits of the underlying grievance or determine beforehand whether a breach of the col- lective bargaining agreement occurred.” Teachers College, Co- lumbia University, 365 NLRB 824, 827 (2017). SEIU explained that it was seeking the information as JNESO’s servicing agent in order to administer and enforce Ar- ticle 10, Section 5 of the CBA, which specifically referenced the start rates and wage adjustments of nonunit nurses at UMPC Presbyterian Hospital as benchmarks for those to be paid to unit employees: “[d]uring the term of the agreement, the start rate will be adjusted as the start rate for non-union, hourly paid nurses employed by UPMC Presbyterian Shadyside is adjusted with no- tice to the Union and the Chapter President.” It is also undisputed that SEIU explained to the Respondent’s representatives in detail why it needed the wage information of nonunit employees: (1) January 19—SEIU representative Stokes emailed Hilk for “the current start rate for non-union UPMC Shadyside Presby- terian RNs? Per Article 10, Section 5.” Referring to Article 10, Section 5 of the CBA, Stokes cited the provision requiring that unit employees’ be paid the same rates for nonunit nurses employed at UMPC Shadyside, and explained that “I want to make sure I have the current rate.” (2) February 10—Stokes informed Hilk that “we’ve seen sev- eral postings where the start rate at Western Psych is lower than what’s posted for WPIC” and listed the rates for each—the start rate for UMPC-Presbyterian Hospital ranged from $29.77 to $44.13/hour, while the WPIC posting was $28.09/hour and $29.09/hour for “BSN.” He added “that there have been some recent hirings who have been told they can’t be hired at the ex- trapolated rate for experienced nurses because incumbent bar- gaining unit members are lower than that rate - - potentially due to the fact that the start rate has not been appropriately in- creased.” (3) February 24—Stokessubmitted a written request to Malloy for the following information within 30 days: the start rate for nonunit nurses at UPMC Presbyterian Shadyside as of October 1, 2021; the date and the number of adjustments to their start rates since then to the present; and a spreadsheet listing all unit employees at WPIC, their years of experience, their start rates, and all pay adjustments since October 1, 2021. Stokes ex- plained that SEIU had become “aware of a potential discrep- ancy in pay rates for unit nurses at WPIC” and added that re- cently hired unit nurses were “told they can’t be hired at the extrapolated rate for experienced nurses because incumbent bargaining unit members are lower than that rate - - potentially due to the fact that the start rate has not been appropriately in- creased. Specifically, we’ve seen several postings where the start rate at Western Psych is lower than what’s posted for WPIC.” In concluding, Stokes noted that SEIU "reserves the right to take action in the future if it is found that the CBA has not been correctly applied.” On March 31, Malloy provided Stokes with the wage infor- mation requested for unit employees but noted that the Respond- ent would not provide wage information relating to nonunit em- ployees on the basis of confidentiality and the lack of releases by those employees. Stokes replied that SEIU was entitled to the nonunit wage information pursuant to Article 10, Section 5 and requested the information by May 14. On April 20, Malloy provided Stokes with a limited response, confirming only that the start rate for nonunit nurses at UPMC Presbyterian Shadyside increased twice since October 1, 2021— on January 16, 2022, and January 1, 2023—"Let me know if re- quire any additional information in connection with this.” On April 27, Stokes followed up by requesting information regard- ing the pay rate increases “in each of those cases,” explaining that “[i]n order to make sure we are correctly administering Ar- ticle 10 Section 5, we need to make sure that new nurses starting at Western Psych weren’t being paid less than the new start rates.” On November 27, JNESO’s counsel made a final request for the information requested on February 24. Therefore, the relevance of SEIU’s February 24, 2023 infor- mation request was demonstrated, apparent, and necessary to en- able it to determine whether to file a grievance over the newly established wage rates pursuant to Article 24. See Postal Ser- vice, 310 NLRB at 391-392 (‘in applying this standard, the Board need find only a probability that the requested information is relevant and would be of use to the union in carrying out its statutory responsibilities.”); cf. FCA US LLC, supra at 3 (request UPMC WESTERN PSYCHIATRIC HOSPITAL 7 not justified where the only explanation given was that the in- formation might be needed to process future, unspecified griev- ances).18 B. Nonunit Employees’ Confidentiality Interests Were Out- weighed By SEIU’s Need For The Requested Information Notwithstanding the relevance of and need for the requested information—the dates and amounts of hourly wage rate in- creases of nonunit nurses at UPMC Presbyterian Hospital since October 1, 2021—the Respondent contends that its refusal to provide such information is justified on the grounds of confiden- tiality and the lack of releases from the nonunit employees. In determining whether a union is entitled to confidential in- formation, the Board balances a union’s need for relevant infor- mation against an employer’s established “legitimate and sub- stantial” confidentiality interests. Detroit Edison v. NLRB, 440 U.S. 301, 318–319 (1979). Assuming that an employer estab- lishes a substantial confidentiality interest that outweighs a un- ion’s need for the information, the employer “cannot simply ig- nore the Union’s request for information. It must still seek an accommodation of its concerns and the Union’s need for the re- quested information.” Borgess Medical Center, 342 NLRB 1105, 1106 (2004)); A-1 Door & Building Solutions, 356 NLRB 499, 501 (2011) (employer with legitimate confidentiality con- cerns has affirmative duty to seek accommodation); see also Na- tional Steel Corp., 335 NLRB 747, 748 (2001), enfd. 324 F.3d 928 (7th Cir. 2003) (employer must respond to request for rele- vant, confidential information with offer to accommodate the needs of both parties; U.S. Testing Co. v. NLRB, 160 F.3d 14, 20 (D.C. Cir. 1998), enfg. 324 NLRB 854 (1997) (accommodation may include an offer to release information conditionally); FCA US LLC, supra at 4). It is not the union’s responsibility to “pro- pose a precise alternative to providing the requested information unedited.” U.S. Testing Co., supra at 21, citing Tritac Corp., 286 NLRB 522, 522 (1987). On March 31, the Respondent provided SEIU with the wage information requested for unit employees but withheld the same information for nonunit employees based on confidentiality and the lack of releases. SEIU referred the Respondent to Article 10, Section 5 of the CBA and requested the information by May 14. SEIU further narrowed its information request by “not [tying it] to any non-bargaining unit employees in particular.” On April 20, however the Respondent only confirmed that the start rate for nonunit nurses increased on January 16, 2022 and January 1, 2023, and instructed SEIU to advise if it required “any additional information in connection with this.” On April 27, SEIU followed up by requesting information re- garding the pay rate increases “in each of those cases,” explain- ing that “[i]n order to make sure we are correctly administering Article 10 Section 5, we need to make sure that new nurses start- ing at Western Psych weren’t being paid less than the new start rates.” On November 27, JNESO’s counsel made a final request for information requested on February 24. 18 But see Member Wilcox’s comment in John Manville Corporation, noting that FCA US LLC does not apply where “the Union established that the requested information was relevant to its investigation of an outstanding grievance and its consideration of whether the Respondent The Respondent did not respond to SEIU’s April 27 or No- vember 27 requests, much less offer any accommodation. Ap- plying the Detroit Edison balancing test I find that SEIU’s inter- est in the wage rates of each nonunit member outweighed the Respondent’s interest in keeping that information confidential. The information was relevant and necessary to enable SEIU to determine whether it needed to grieve over the Respondent’s new start rate and wage adjustments for unit employees. SEIU also clarified that it was not seeking to have nonunit employees specifically identified. The Respondent, however, did not pro- vide a legitimate explanation for withholding the information or propose an alternative such as the redaction of identifying infor- mation. II. SEIU’S ROLE SEIU Acted As JNESO’s Statutory Agent Notwithstanding 20 years of direct dealing between the Re- spondent and SEIU as JNESO’s agent, the Respondent denies the obligation to provide SEIU with the disputed information be- cause JNESO unlawfully delegated its representational respon- sibilities to SEIU. The General Counsel asserts that the servicing agreement did not attempt to circumvent the Board processes or transfer its responsibilities as the certified union for unit employ- ees. It is “well settled that it is the duty of an employer to bargain solely with a statutory representative and no other person or group. However, a bargaining representative “may . . . confer upon an agent . . . authority to act on its behalf.” Goad Company, 333 NLRB 677, 679 (2001), citing Rath Packing Co., 275 NLRB 255, 256 (1985). Employers and unions have the right “to choose whomever they wish to represent them in formal labor negotia- tions.” General Electric Co. v. NLRB, 412 F.2d 512, 516 (2d Cir. 1969). However, whether a certified union’s designation of an agent is lawful depends on the nuanced distinction between a un- ion’s mere transfer of duties and the abdication of its representa- tional responsibilities. In Goad Co., supra at 1, fn. 1, the Board affirmed the judge’s decision dismissing the refusal to bargain allegation because Lo- cal 420, the certified representative, “did not simply enlist the aid of an agent, but transferred its representational responsibilities to Local 562.” The judge’s analysis, adopted by the Board, relied on the following provisions in their agreement in determining that Local 420 transferred its representational responsibilities to Local 562: (1) Local 420 designated Local 562 “to serve as Local 420’s agent(s) for the purpose of negotiating and servicing a new con- tract with the Goad Company which will be entered into the name of Local 420. This responsibility will extend to pro- cessing grievances during the term of the new contract and to other actions comprising the duty of representation.” (2) Local 562 agreed to “hold Local 420 harmless, including had violated the collective-bargaining agreement.” 372 NLRB No. 45, slip op. at 1, fn. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 defense costs, in that event of any claim arising during the term of the new contract between the Goad Company and Local 420 which claim arises from Local 420’s duty of fair representation of the employees of the Goad Company or otherwise from Lo- cal 562’s Business Agent(s) acting as Local 420’s agent(s) in this manner.” (3) Local 420 agreed to “pay over to Local 562 any and all membership initiation fees and dues received directly or indi- rectly from the Goad Company’s employees.” In Sherwood Ford, Inc., 188 NLRB 131, 133-134 (1971), the Board adopted the judge’s findings and conclusions that the em- ployer did not unlawfully refuse to bargain with Local 604 as the bargaining agent for Local 1, the certified union. In that case, there was a history of unsuccessful efforts by Local 1 members to affiliate with Local 604. Before the employer was asked to bargain by Local 604, Local 1 members met at Local 604’s office to sign cards containing membership applications in and for- mally designating Local 604 as their collective-bargaining rep- resentative. Two weeks later, Local 1 convened a meeting of its members where they resolved that Local 604 would serve as “the duly constituted representative of Local 1 to appear on behalf of it and the bargaining unit . . . in all matters relating to collective bargaining.” All dues were to be paid to Local 604 and Local 1’s officers were directed “to follow and carry out all instructions received from said Local 604 as it relates to matters of collective bargaining.” Id. at 132. The judge characterized those actions as “a patent attempt to substitute Local 604 as the bargaining agent in place of Local 1 and it was a device, subterfuge, or stratagem by which the two locals sought to circumvent the earlier rulings of the Regional Director. Id. at 133-134. In Sisters of Mercy Health Corp., 277 NLRB 1353 (1985), Local 417’s membership voted to designate Local 7 as their “of- ficial representative.” Local 417 then instructed the employer to “direct all future communications concerning wages, hours, and working conditions, including current or pending grievances and arbitrations” to Local 7. Under those circumstances, the Board found that the employer’s refusal to bargain was lawful because Local 417 “unequivocally disclaimed any interest in further rep- resenting unit employees when it transferred jurisdiction over the bargaining unit to Local 7.” Id. at 1354. The JNESO-SEIU servicing agreement designates SEIU as the agent for the performance of all collective bargaining repre- sentation duties on behalf of nurses in the WPIC and Kittanning Units. It is distinguishable from the ineffective relationships in Goad Company, Sherwood Ford, and Sisters of Mercy Health Corp. in numerous respects: (1) SEIU and JNESO are required to fully cooperate with each other in carrying out the objectives of the servicing agreement consistent with JNESO’s duty of fair representation. (2) JNESO retained ultimate control of the representation of the WPIC and Kittanning nurses and they remain members of JNESO. (3) Any negotiated modifications to the CBA must be approved and ratified by JNESO membership. (4) JNESO By-laws remained in full force and effect. (5) JNESO shall pay SEIU 75% of JNESO members’ dues, thus retaining 25% of dues, as well as initiation fees, and re- main responsible for making all per capita payments on behalf of members. (6) SEIU may not engage in a strike without consulting with and the approval of JNESO. (7) SEIU staff are required to sign correspondence to the Re- spondent as “Agents for JNESO” and provide JNESO with copies of such correspondence. (8) JNESO has access to all records concerning the unit. (11) Either party is free to terminate the agreement at will. (12) JNESO approved and signed the CBA. JNESO has not formally met or had direct, formal communi- cations with bargaining unit members for at least the past 10 years. Nevertheless, the aforementioned functions support the existence of a legitimate 20-year agency relationship between JNESO and SEIU—an arrangement that was okay with the Re- spondent, until now—and reveal no evidence that JNESO trans- ferred its representational responsibilities or disclaimed interest in the bargaining unit. See Nevada Security Innovations, 341 NLRB No. 126, slip op at 1, fn. 1 (2004) (the Respondent’s ob- ligation to bargain with the union “was not extinguished” be- cause the evidence “[failed] to show an unequivocal disclaimer of interest by the Union”); Wellington Industries, Inc., 358 NLRB 783, 783 fn. 2 (the Board rejected the employer’s argu- ment that the certified union, whose president “participated in negotiating, and continues to participate in administering, the current collective-bargaining agreement” transferred its bar- gaining rights to another local”). III. THIS CASE IS NOT RIPE FOR ARBITRATION The Respondent’s November 3 motion to dismiss the amended complaint or, in the alternative, defer the allegations to the CBA’s grievance and arbitration process, is denied. The Re- spondent contends that this is a pure contract interpretation dis- pute based on the parties’ interpretations of Article 10, Section 5 of the CBA. Specifically, the Respondent disagrees with SEIU’s assertion that the starting wage rates of unit nurses must be iden- tical to those of nonunit nurses. That argument misses the point. The issue is not whether SEIU’s interpretation of the contract was correct, but rather, whether it sought information that was relevant and necessary in order to file a grievance over wages. As the Board noted in Daimler Chrysler, “allegations involv- ing an employer’s refusal to furnish information requested by an exclusive collective-bargaining representative are not deferra- ble.” 331 NLRB 1324–1325, enfd. 288 F.3d 434 (D.C. Cir. 2002), citing Clarkson Industries, 312 NLRB 349, 353 fn. 21 (1993) (citations omitted); Acme, supra, at 438 (information UPMC WESTERN PSYCHIATRIC HOSPITAL 9 needed by union to determine whether to avail itself of the griev- ance-arbitration process is considered relevant, including that needed to decide whether to proceed with a grievance to arbitra- tion); Postal Service, 337 NLRB at 822 (the Board will not pass on the merits of the grievance underlying the information re- quest). Based on the foregoing, the Respondent’s failure and refusal to provide SEIU, as JNESO’s servicing agent, with all of the in- formation requested by SEIU on February 24, 2023 violated Sec- tion 8(a)(5) and (1) of the Act. CONCLUSIONS 1. The Respondent, UPMC Western Psychiatric Hospital, is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. JNESO—District Council 1, IUOE (JNESO) and SEIU Healthcare Pennsylvania (SEIU) are labor organizations within the meaning of Section 2(5) of the Act. 3. The Respondent’s failure and refusal to provide SEIU, as JNESO’s servicing agent, with the following information re- quested by SEIU on February 24, 2023, violated Section 8(a)(5) and (1) of the Act: (a) the October 1, 2021 start rate for non- union, hourly nurses employed by UPMC Presbyterian Shadyside, and (b) from October 1, 2021, through the present date, both the date and the amount of all adjustments to the start rate for non-union, hourly nurses employed by UPMC Presby- terian Shadyside. 4. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 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. The Respondent will be ordered to produce the requested and relevant information. Furthermore, the Re- spondent will also be ordered to post the standard Board notice at the Respondent’s facility and distribute the notice electroni- cally if the Respondent customarily communicates with its em- ployees by such means. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended ORDER The Respondent, UPMC Western Psychiatric Hospital, Pitts- burgh, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Union by failing 19 If the facility involved in these proceedings is open and staffed by a substantial compliment of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pan- demic, the Respondent is communicating with its employees by elec- tronic means, the notice must also be posted by such electronic means and refusing to provide the Union with requested information that is necessary and relevant to its role as the exclusive repre- sentative of the employees in following unit: All full time and regular part-time psychiatric nurses and staff nurses employed by the employer at its Western Psychiatric In- stitute and clinic building located at 3811 O’Hara Street, Pitts- burgh, Pennsylvania 15213, excluding out-patient nurses, all other registered nurses, office clerical employees and guards, other professional employ es and supervisors as defined in the Act, and all other employees. (b) In any like or related manner, interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate policies of the Act. (a) Within 14 days from the date of the Board’s Order, furnish SEIU with all the information it requested on February 24, 2023. (b) Within 14 days after service by the Region, post at its fa- cility in Pittsburgh, Pennsylvania copies of the attached noticed marked “Appendix.”19 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspic- uous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. In addition to physical posting of paper notices, the 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 nurses by such means. Reasonable steps shall be taken by the Respondent to ensure that notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current nurses and former nurses employed by Respondent at any time since February 24, 2023. (c) Within 21 days after service by the Region, file with the Regional Director for Region 6 a sworn certification of a respon- sible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. February 5, 2024 within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical post- ing of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Rela- tions Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 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 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 be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. JNESO—District Council 1 (JNESO) is your representative in dealing with us regarding your wages, hours, and other work- ing conditions in the following unit: All full time and regular part-time psychiatric nurses and staff nurses employed by the employer at its Western Psychiatric In- stitute and clinic building located at 3811 O’Hara Street, Pitts- burgh, Pennsylvania 15213, excluding out-patient nurses, all other registered nurses, office clerical employees and guards, other professional employees and supervisors as defined in the Act, and all other employees WE WILL NOT refuse to bargain collectively with JNESO by failing and refusing to furnish its agents with requested infor- mation that is relevant and necessary to JNESO’s performance of its functions as the collective-bargaining representative of our unit employees. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights listed above. WE WILL provide SEIU Healthcare Pennsylvania (SEIU), an agent of JNESO, with (1) the October 1, 2021 start rate for non- union, hourly nurses employed by UPMC Presbyterian Shadyside, and (2) from October 1, 2021, through the present date, both the date and the amount of all adjustments to the start rate for non-union, hourly nurses employed by UPMC Presby- terian Shadyside, that SEIU requested on February 24, 2023. UPMC WESTERN PSYCHIATRIC HOSPITAL The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case06-CA-316473 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.