Altoona Hospital

National Labor Relations Board - Board Decisions

Jun 13, 1984

270 N.L.R.B. 1179 (N.L.R.B. 1984)

ALTOONA HOSPITAL
Altoona Hospital and American Federation of State,
County and Municipal Employees, Council 83
AFL-CIO. Case 6-CA-15820
13 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 14 December 1983 Administrative Law
Judge Michael O. Miller issued the attached deci-
sion. The Respondent and the General Counsel
filed exceptions and supporting briefs. The Hospital
Council of Western Pennsylvania filed an amicus
brief. 1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The essential facts in this case are not in dispute.
Marlene F. Focht, a secretary/receptionist in the
Respondent's emergency department, received a
warning for rude and discourteous behavior based
on three separate incidents. Focht grieved the dis-
cipline as permitted under the collective-bargaining
agreement. Prior to a third-step grievance meeting,
Focht hired a private investigator and released to
him the name of an individual, Mrs. Shirley Beam,
to whom a supervisor had attributed one of the
complaints about Focht's conduct. Beam was the
mother of a patient treated in the emergency de-
partment and was listed as the next of kin on a hos-
pital admission form. The Respondent discharged
Focht 23 September 1983 for giving Beam's name
to the private investigator. The Respondent main-
tained that by doing so Focht had disclosed confi-
dential information in contravention of the Re-
spondent's work rules.
Focht grieved the discharge. The grievance
went to arbitration and was denied. The arbitrator
found that Focht was aware of the Respondent's
rule against the disclosure of confidential informa-
tion, that Beam's identity was contained in a confi-
dential record, and that the Respondent's discharge
of Focht was for just cause. In the arbitrators
view, Focht had engaged in conduct that was "in-
excusable" and had "violated the cardinal rule of
confidentiality of hospital information."
I We deny the General Counsel's motion to strike the amicus brief
filed by the Hospital Council of Western Pennsylvania.
270 NLRB No. 179
The judge declined to defer to the arbitration
award for two reasons. He found that the arbitrator
had not addressed the unfair labor practice issue as
required by the Board in Suburban Motor Freight,
247 NLRB 146 (1980). He also found the award to
be "repugnant to the Act," thus failing to satisfy
one of three standards for deferral set forth in
Spielberg Mfg. Co., 112 NLRB 1080 (1955). On the
merits of the case, the judge found that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
because the discharge of Focht interfered with her
statutory right to pursue a grievance. The judge
reasoned that the Respondent's rule on confiden-
tiality was outweighed by Focht's right to defend
effectively against the complaint which had result-
ed in discipline.
In our recent decision in Olin Corp., 268 NLRB
573 (1984), we overruled the Suburban Motor
Freight requirement that the party urging Board
deferral to an arbitration award must prove that
the unfair labor practice issue was presented to and
considered by an arbitrator. Instead we adopted
the rule that an arbitrator has adequately consid-
ered an unfair labor practice issue if (1) the con-
tractual issue is factually parallel to the unfair labor
practice issue, and (2) the arbitrator was presented
generally with the facts relevant to resolving the
unfair labor practice. The burden is now on the
party opposing deferral to demonstrate the defects
in the arbitral process or award.2
The arbitration award in this case satisfies the
Olin standard. The contractual issue whether the
Respondent discharged Focht for just cause is fac-
tually parallel to the statutory issue whether the
Respondent could lawfully discipline Focht for dis-
closure of confidential information during her pro-
tected pursuit of a grievance. The arbitrator ad-
dressed the same facts that would be considered by
the Board in a consideration of the unfair labor
practice, namely, the complaint against Focht, the
progression of her grievance, Focht's disclosure to
the investigator, and the Respondent's rule on con-
fidential information.
In Olin, we also reiterated the appropriate
method of inquiry for determining when an arbitra-
tion award is "clearly repugnant" to the Act such
that deferral under Spielberg is unwarranted. We
stated that "with regard to the inquiry into the
'clearly repugnant' standard, we would not require
an arbitrator's award to be totally consistent with
Board precedent."3 We require only that the
award be susceptible to an interpretation consistent
with the Act. When that requirement is met we
2 Olin Corp., supra.
3 Id. at 574.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find the award not "palpably wrong," and we will
defer.4 We do not find the arbitration award in this
case to be "palpably wrong."
It is undisputed that employers have a legitimate
interest in keeping certain information confiden-
tial;6 that is unquestionably true with regard to a
health care employer whose patient records are es-
pecially sensitive. An employee's violation of an
employer's rule against the disclosure of confiden-
tial information may also be the subject of lawful
discipline even when the disclosure is made for rea-
sons arguably protected by the Act. The test of
such discipline is whether the employee's interests
in disclosing the information outweigh the employ-
er's legitimate interests in confidentiality. 6 If they
do not, then discipline is lawful.
In finding that the Respondent had just cause to
discharge Focht, the arbitrator here implicitly
found that confidentiality concerns outweighed
grievance needs. We will not decide whether we
might strike a different balance. The arbitrator's
award is susceptible to an interpretation consistent
with the Act and is therefore not clearly repug-
nant. We find then that the arbitral proceeding has
met the Spielberg standards for deferral and that the
General Counsel has failed to show that the arbi-
trator did not adequately consider the unfair labor
practice issue. Accordingly, we shall defer to the
arbitration award and dismiss the complaint in its
entirety.
ORDER
The complaint is dismissed.
4 International Harvester Co., 138 NLRB 923, 929 (1962), affd. sub nom.
Ramsey v. NLRB, 327 F.2d 784 (7th Cir. 1964), cert. denied 377 U.S.
1003 (1964), G d H Products, 261 NLRB 298 (1982).
' Detroit-Edison Co. v. NLRB, 440 U.S. 301 (1979).
International Business Machines, 265 NLRB 638 (1982).
DECISION
STATEMENT OF THE CASE
MICHAEL 0. MILLER, Administrative Law Judge. This
case was heard in Altoona, Pennsylvania, on October 14,
1983, based on a charge filed by the American Federa-
tion of State, County and Municipal Employees, Council
83, AFL-CIO (the Union) on September 29, 1982, and a
complaint issued by the Acting Regional Director for
Region 6 of the National Labor Relations Board (the
Board) on June 8, 1983. The complaint alleges that the
Altoona Hospital (Respondent) violated Section 8(a)(1)
and (3) of the Act by discharging Marlene F. Focht be-
cause of her union and protected concerted activities.
Respondent's timely filed answer denies the substantive
allegations of the complaint.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue
orally. Briefs, which have been carefully considered,
were filed on behalf of the General Counsel and Re-
spondent.
Based on the entire record,' including my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
Respondent is a nonprofit Pennsylvania corporation,
engaged in the operation of a hospital providing in-pa-
tient and out-patient medical and professional care serv-
ices. Jurisdiction is not in dispute. The complaint alleges,
Respondent admits, and I find and conclude that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and a
health care institution within the meaning of Section
2(14) of the Act.
The complaint alleges, Respondent admits, and I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Relevant Contractual Provisions and Rules
Respondent's employees have been represented by the
Union since 1981. The collective-bargaining agreement,
effective from April 1981 until June 1984, provides that
employees "shall not be discharged, suspended or disci-
plined without 'just cause."' It further provides a three-
step grievance procedure terminating in final and binding
arbitration.
The contract includes, within Respondent's reserved
management rights, the right "to establish and require
employees to observe reasonable rules and regulations."
To the extent relevant here, Respondent's rules provide
the following:
CONFIDENTIAL INFORMATION
Information concerning the condition and diag-
nosis of patients is strictly confidential. Such infor-
mation is never discussed with anyone not involved
in the care of the patient.
DISCIPLINE
Offense First Second Third
Offense Offense Offense
Rude, discourteous Written (5) Days off Discharge
or uncivil warning
behavior.
1 The General Counsel and Respondent's motions to correct the tran-
script are granted.
1180
ALTOONA HOSPITAL
DISCIPLINE mation, and the name and phone number of the next of
kin or a friend. Focht was in the Union's collective-bar-
Ofjense First Second Third gaining unit and was a member of the Union.
Offense Offense Offense On July 8, 1982, 4 Focht was called to the office of her
Rude, discourteous Discharge supervisor, Lisa Steward. 5 There, with her union stew-
or uncivil ard Margaret Vasal present, Focht was confronted withbehavior towards
patients and two complaints of rude behavior. The complaints, which
visitors. originated with hospital staff, involved incidents alleged-
Divulging confidential Discharge2 ly occurring on June 18 and July 6. These were the first
information such complaints made against Focht during her employ-
STANDARD OF PRACTICE 3 ment. While they were discussing the July 6 incident,
Steward received a call which reported that there was a
third incident which had allegedly occurred on July 7. A
Professionally, ethically, and legally, it is the re- copy of the charge nurse's shift report, prepared by the
sponsibility of the Nursing Service Department em- nursing shift supervisor Ruth Westerley was immediately
ployees to maintain confidentiality regarding the pa- delivered to Steward's office. According to that report, a
tient, his/her condition, or any personal information call had been received from the mother of an individual
learned about him/her during the course of his/her brought into the emergency department for treatment
hospitalization. "concerning the rude behavior and indifferent attitude of
the secretary." The shift report further related that the
INTER-OFFICE COMMUNICATION complainant had "stated that everyone in the [Emergen-
TO: All Secretaries cy Department] waiting area was complaining about the
SUBJECT: Information on Patient Treatment Secretary's attitude."
FROM: Frank E. Sangiorgio, M.D., Director, De- Steward either described the allegation to Focht, read
partment of Emergency Medicine the report aloud, or showed it to her. In the course of
As of this date, December 11, 1980, any person call- the discussion, Steward told Focht that Shirley Beam,
ing for information, such as family, friends, industri- the patient's mother, had made a complaint about the
al nurses . . . you are not under any circumstances secretary's attitude. Focht told Steward that the depart-
to release any information to these people as to con- ment had been very busy on that shift, that the waiting
dition of patient, what treatment is being done, etc. room was backed up with people, and that she had no
recollection of Beam or of any incident.6 As Focht re-
Any secretary not abiding by this will be looking members the July 8 meeting, when she indicated that she
for a new job. had no recollection of any incident, Steward told her
that the complaint was "just something about your atti-Respondent's counsel acknowledge that Respondent's
rules on confidential information went beyond disclosure tude" and said, "I don't think we're going to do much
to outside parties. An employee who properly possessed with it anyhow at this point . .
information concerning a patient or his family would be On July 12, Focht was called to the office of Respond-
deemed in violation of the rules even if he or she were ent's director of human resources, David Duncan.
to contact that patient or family member of his or her Duncan said that there were a number of complaints
own without permission of the hospital. about her. Focht protested her innocence and pointed
The names, addresses, and dates of admission of Re- out that in the period of 4 years this had never happened
spondent's in-patients are routinely published in the local before; suddenly three complaints were lodged in a 3-
press unless the patient, on admission, responds negative- 1/2-week period. She asked Duncan whether she could
ly when asked whether they want this information pub- present witnesses, not hospital employes, who would tes-
lished. A similar practice was followed in the emergency tify in her behalf. Duncan replied, "it appears to me that
department until about a year prior to the events in this there is a problem here ... I'm going to have to get
case and was then abandoned. There is no routine publi- into this . . . I'm not going to give you any type of
cation of emergency admissions. notice or anything . . . I'll get back with you." Focht
repeated her request for an opportunity to present a de-
B. The Operative Facts fense and was told, "Well, we'll see."7
Marlene Focht had been employed by Respondent for On the following day, July 13, Duncan told Focht, "I
nearly 4 years, and for 3 years was a secretary-reception- feel the least I can do for you at this point is give you a
ist in the emergency department. It was her job to re- written warning ... I've already taken a considerable
ceive incoming patients and type out the nonmedical amount of time . . . there appears to be a problem and I
portions of the patient chart, including the patient's
name, age, race, religion, marital status, insurance infor- ' All dates hereinafter are 1982 unless otherwise specified.
s Respondent admitted that Steward was a statutory supervisor.
8 While the recollections of Focht, as corroborated by Vasal, and
a All of the foregoing is contained in the employee handbook. Steward differ as to whether or not Focht was shown the shift report
3 Published March 17, 1980, reviewed October 26, 1981. Standards of and the patient's chart, it is undisputed that Steward informed Focht of
practice take precedence over the employee handbook to the extent that the name of the person who had made the complaint. Shirley Beam.
they are in conflict. 7 Focht's testimony with respect to this meeting is uncontradicted.
1181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
just don't have the time to get into it at this point. I've
already put much time into it . . . I'm telling you the
least that I can do for you is give you this written warn-
ing." Focht repeated her plea for the opportunity to
bring in witnesses to make a defense and mentioned that
she had spoken with an attorney. She asked whether she
would be reprimanded if she filed a grievance and assert-
ed her intention to defend herself. Duncan told her,
"Marlene, you can do anything you want . . . you can
take this matter to the Supreme Court if you want to."
She was given a written warning which stated:
WARNING NOTICE: You are hereby warned that
continuance or repetition of the behavior or inci-
dents outlined below [rude & discourteous behav-
ior] will subject you to: 5 Days Off Without Pay.
Focht filed a grievance contending that the written
warning was unjustified and requesting that it be with-
drawn. In Respondent's step-one reply, signed by Lisa
Steward, denying that grievance, Respondent stated:
The grievant, Marlene Focht, was disciplined and
counseled in accordance to documented incidents of
June 18, 1982; July 6, 1982; and July 7, 1982, of
being rude and discourteous to a fellow employee,
an Altoona City Police Officer and also to a pa-
tient's parent.
The grievance was taken to step two. In a reply dated
August 9, Respondent's administrative director for the
department of emergency medicine, Kim Eicher, stated
that he had "reviewed the documented incidents" and
agreed with the previously taken disciplinary action.
In about mid-August, Focht told Vasal that she was
thinking of hiring a private investigator to check into the
complaint concerning the alleged July 7 incident in order
to find out what it was she was supposed to have done
and whether or not the complaint was against her. She
stated her belief that no one from the hospital would in-
vestigate it. Vasal said that she did not see anything in
the union contract which would preclude such an action
but, because she felt unqualified to advise Focht in the
matter, indicated that she would talk with Herb Wil-
liams, the Union's president and an employee in Re-
spondent's maintenance department. Vasal called Wil-
liams and told him of Focht's inquiry concerning the re-
tention of a private investigator. She asked whether there
was anything in the collective-bargaining agreement to
prohibit Focht from doing so. Williams called Harold
Teague, the Union's Council representative, and was told
that no union policy would be violated by such an
action.9 Williams related back to Vasal that there was
nothing to prohibit Focht from hiring a private investiga-
' Focht's testimony was corroborated by Vasal and was uncontradict-
ed by Respondent's witnesses.
9 In fact, Teague testified that employees were told that the Union
gave them the right to engage in self-help and encouraged them to use
their own means and methods to help the stewards and local officers
present their grievances.
tor if she so desired. Vasal passed the information back
to Focht. ' 0
In late August, Focht contacted Gene Ellis, owner of
the IPS Detective Agency. She contacted IPS, she testi-
fied, because she had heard that this was a reputable and
confidential firm. She told Ellis of the complaint that had
been made against her by Shirley Beam and asked
whether he would call Beam to determine the name or
description of the person against whom Beam had
lodged her complaint and the nature of the conduct
about which she was complaining. Ellis secured Beam's
telephone number from the local phone book and called
her home. A man answering the phone told Ellis that
Beam was not home and, in response to Ellis' question
about whether she had been treated at the Altoona Hos-
pital, replied that she had not but that the man's daugh-
ter had gone in for treatment of a foot injury. Ellis fur-
ther introduced himself and was told that, if he wanted
to talk to Beam, she could be reached at her job at the
Tyrone Hospital. Ellis, whose staff services the Tyrone
Hospital, called Beam, reaching her directly. He intro-
duced himself and asked whether she had made a com-
plaint against an individual at the Altoona Hospital.
Beam replied that her complaint, dealing with the way
they were treated in a visit to the emergency room, was
not against any individual but was against the system
itself. The entire conversation between Ellis and Beam
lasted not more than 4 minutes.
On September 3, as Focht was on her way to the
third-step meeting on her grievance over the disciplinary
warning, Ellis reached her with what he referred to as
good news. He told her that the complaint was not
against her but was against the system at the Altoona
Hospital. Both he and Beam would be willing to come to
the third-step meeting to back her up if asked, he stated.
Focht went to the step-three meeting and, when
Duncan asked her whether she had anything to say con-
cerning the allegations of rude and discourteous behav-
ior, denied each of them. She produced letters corrobo-
rating her denials with respect to the June 18 and July 6
allegations and, with respect to the July 7 complaint,
told Duncan that she had contacted a private investiga-
tor who had talked to Beam. She related to Duncan
what Ellis had told her concerning Beam's complaint.
Io In a hearing before the Commonwealth of Pennsylvania Department
of Labor and Industry, Unemployment Compensation Board of Review,
Williams was asked a lengthy and complex question by the referee, con-
cerning whether the Union would condone the release of various kinds of
patient information or the hiring of private investigators. He replied that
the Union did not believe "that action should have been taken until after
the grievance procedures had been completed and [the arbitrator hasl
made a decision." Recourse to an investigator would have been appropri-
ate, according to Williams' testimony, at that stage. Williams also testified
in the compensation proceeding that he had not learned about Focht
having asked about the Union's position on the hiring of a private investi-
gator before she did so. His recollection was subsequently refreshed by
Vasal and he testified at the hearing before the arbitrator that Vasal had
asked him about the hiring of an investigator before Focht did hire the
investigator. Both Focth and Vasal testified in the compensation hearing
that Williams had been consulted prior to Focht's call to the private in-
vestigator. On the basis of this record, I find no reason to discredit Focht
and Vasal or to conclude that Focht did not ask the Union about the pro-
priety of contacting a private investigator before she took such action.
1182
ALTOONA HOSPITAL
The meeting broke up at this point with Duncan stating
that they would get back to her with an answer. '
On September 8, following this meeting, Respondent
had the coordinator of its patient advocacy program,
Barbara Titelman, contact Beam.'2 According to Tietl-
man's "Anecdotal Record," Beam " was quite willing to
discuss the matter." Beam told Titelman that she had
been called by Ellis and asked whether Focht had been
rude to her. Beam related that she had told Ellis, "No, I
heard other people in the waiting room complaining
about her. I wouldn't even know her if I saw her again."
She also told Titelman that she had given Ellis permis-
sion for Focht to call her. According to Titelman's
report, Beam also "thought that Ellis had been employed
by Respondent to investigate the matter and she resented
his calling her at her place of employment."
Respondent denied Focht's third-step grievance on
September 16. Duncan's letter indicated that he believed
the truth of the claims against Focht, notwithstanding
that the situation was confusing. However, according to
Duncan, because of the confusing situation and "mitigat-
ing circumstances," Focht was given a written warning
rather than the discharge penalty normally required by
such conduct.
Following issuance of the third-step answer, Lisa
Steward again called Focht and told her that they would
have to have a meeting "about . . . who gave the name
to the detective." Focht reminded Steward that Steward
had given Focht's Beam's name.
On September 21, Focht met with Eicher and Debbie
Simpson, head nurse in the emergency department. Also
present was Herb Williams. At this time, Eicher asked
Focht how she obtained Beam's name and who gave it
to the private investigator. Focht told him that she had
been given the name by Steward and that she gave the
name to the investigator, but not until after she had re-
ceived the written warning. Eicher replied that he was
very dismayed that an employee would give out confi-
dential information, that he would consider her actions
and would let her know what corrective action he
would be taking. Focht told Eicher that Duncan had
told her that she could take her case to the Supreme
Court if necessary; Eicher said that she had misunder-
stood Duncan's point.
On September 23, Eicher again called Focht to a
meeting. He told her that she was being discharged be-
cause of her conduct in hiring a private investigator. She
" Focht, Williams, and Teague all testified that Respondent gave no
indication, at this time, that it was disturbed by Focht's disclosure of
Beam's name to the private investigator. Eicher testified that Duncan ex-
pressed shock and asked her why she did it. To this, Focht allegedly re-
plied that Duncan had led her to believe she could use whatever mecha-
nism necessary to defend herself. In turn, Duncan replied that this was a
very serious matter which would require looking into. As there is no dis-
pute but that Respondent terminated Focht for what it deemed to be a
breach of its confidentiality policy, and no contention that this was a pre-
text to cover some other reason, it is not necessary to resolve this appar-
ent credibility dispute.
" The hospital's investigation of this complaint prior to Titelman's call
had consisted of a review of the shift report and of an expanded report
from the nursing supervisor who had received the complaint's call, to-
gether with an examination of the patient's chart and Steward's question-
ing of Focht. Respondent had no other contact with Beam prior to Sep-
tember 8.
asked whether Respondent was claiming that she had
breached patient confidentiality and was told that that
was the reason for dismissal. Focht argued that no pa-
tient had been involved in the disclosure; Beam was a
patient's mother, not the patient herself, and there never
had been a completed admission to the hospital. She fur-
ther argued that the information disclosed to the investi-
gator was not of a confidential nature since it did not
deal with a patient's treatment or condition. Once again
she asserted that Duncan had told her that she could do
what she wanted to do in her own defense, even to
taking the case to the Supreme Court. Once again,
Eicher told her that she had misunderstood. Focht subse-
quently received a discharge notice stating that she had
been discharged for "breaching patient confidentiality."
Respondent contended at hearing that Focht should
have came to management and sought permission to con-
tact Beam. However, Focht was never advised that the
hospital would attempt to arrange a meeting with Beam
if Focht wanted to question her. It was undisputed that
Focht never asked Respondent's permission to contact
Beam or to release Beam's name.
A grievance was filed over Focht's discharge and, in
meetings over that grievance, Respondent continued to
maintain that Focht had breached patient confidentiality
and had been discharged for doing so. The discharge
grievance went to arbitration on January 28, 1983. On
March 2, 1983, the arbitrator denied the grievance. In his
decision he found that Focht was aware of the contents
of the employee handbook and its prohibition against di-
vulging confidential information. Concerning the com-
plaint, the arbitrator found that Mrs. Beam (referred to
in his decision as Mrs. B) had complained about Focht's
discourteous behavior toward herself, her daughter, and
others and had declined an offer by the hospital to have
someone call her back as a followup to the complaint.
According to the arbitrator's decision, Beam "made it
clear she desired to keep the entire matter private, and to
avoid becoming involved [in] any sort of investigation."
He further found that Focht "had divulged to an outside
person, information contained in the hospital confidential
records," that the detective contacted Beam at her place
of employment, "and led her to believe he was employed
by the hospital," had "ignominiously invaded" her priva-
cy, causing Beam to regret complaining and to withdraw
her complaint." According to the arbitrator's decision,
the investigator's contact of Beam made her "under-
standably angry."
The arbitrator concluded that "a relatively simple
warning notice given to the grievant on July 13, 1982
has mushroomed into a catastrophic 'tempest in a
teapot."' He found that "what could have been resolved
harmoniously in the grievance procedure has now
reached a proportion that flagrantly breaches one of the
hospital's most significant rules, i.e., the breach of confi-
dentiality of the hospital's record of patients." Focht's
"self-help" decision, he held, "violated the cardinal rule
of confidentiality of hospital information . . . [and] seri-
ously impugned the integrity of the Union-Management
relations that was established by the parties . . ." He
concluded that she should have gone to the hospital or
1183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Union for help, that she had embarassed her
Union by her self-help and that her conduct was "inex-
cusable." According to the arbitrator, Focht "willfully,
and wrongfully violated the trust she acknowledged ...
and therefore, has frittered away her usefulness to the
hospital."' There was no discussion of, or reference to,
the statutory implications of Focht's actions in the arbi-
trator's decision.
DISCUSSION
The Merits
A long line of Board and court decisions establishes
that the filing of a grievance pursuant to the terms of a
collective-bargaining agreement is both concerted activi-
ty protected under Section 8(a)(1) and union activity
protected under Section 8(a)(3). Thus, in Boston Mutual
Life Insurance Co., 259 NLRB 1270, 1279 (1982), the
Board, adopting the administrative law judge's decision,
stated:
It is well established that grievance filing is within
the umbrella of the Act's protection. The underly-
ing rationale of this principle is designed to promote
the viability of collective-bargaining. It assures em-
ployees of maximum benefits of their collective-bar-
gaining agreement. E.g., Crown Wrecking Co., Inc.,
222 NLRB 958, 962-963 (1976). Indeed, the right to
file grievances, and have them adjusted, is explicitly
granted in Section 9(a) of the Act.
See also Postal Service, 261 NLRB 1131 (1982); Clara
Barton Terrace Convalescent Center, 225 NLRB 1028
(1976); Thor Power Tool Co., 148 NLRB 1379 (1964);
NLRB v. Ford Motor Co., 683 F.2d 156 (6th Cir. 1982);
and Crown Central Petroleum Corp., 430 F.2d 724, 729
(5th Cir. 1970).
In some cases, such as Bunney Bros. Construction Co.,
139 NLRB 1516 (1962), and Hawaiian Hauling Service,
219 NLRB 765 (1975), the Board, on finding that the em-
ployee was engaged in activity protected under Section
8(a)(l), expressly found it unnecessary to determine
whether the employer's conduct also violated Section
8(a)(3). In other cases, however, the Board has found the
filing and processing of a grievance to be activity shel-
tered by Section 8(a)(3) as well as by Section 8(a)(1).
Thus, in Dreis & Krump Mfg. Inc., 221 NLRB 309 (1975),
enfd. 544 F.2d 320 (7th Cir. 1976), the Board, with court
approval, found the discharge of an employee for distrib-
uting an intemperately phrased leaflet which sought the
aid of his fellow employees as witnesses in support of a
grievance to be violative of Section 8(a)(3). In Crown
Wrecking Co., 222 NLRB 958 (1976), the discharges of
employees for invoking their rights under a collective-
bargaining agreement were held violative of both Sec-
tion 8(a)(1) and (3). Similarly, in Royal Development Co.,
257 NLRB 1168 (1981), enfd. in pertinent part 703 F.2d
'" As there was no transcript made of the hearing before the arbitra-
tor, and no listing of witnesses who appeared before him, it is impossible
to determine on what evidence the arbitrator relied in reaching these
findings, many of which are contradicted by the undisputed facts ad-
duced before me.
363 (9th Cir. 1983), the Board found that the employer's
refusal to rehire an employee because that employee had
filed grievances concerning the manner in which em-
ployees were scheduled for work violated both Section
8(a)(l) and (3). The Ninth Circuit, on review, while re-
jecting the Board's conclusion that activities intended to
enforce a collective-bargaining agreement are concerted
activities protected under Section 8(a)(l),' 4 specifically
enforced that aspect of the Board's decision which found
that the refusal to rehire the employee because she had
filed grievances with the union pursuant to a contractual
grievance procedure to be violative of Section 8(a)(3).
Focht had filed and was pursuing a grievance with her
union pursuant to the terms of the collective-bargaining
agreement. Her effort to secure information concerning a
complaint allegedly made against her, which complaint
had been cited by her employer as a reason for disciplin-
ing her, was part and parcel of the grievance procedure
and she was discharged for making that effort. Her
grievance could not have been effectively pursued with-
out some evidence to support her denials; that was clear
from Duncan's assignment of discipline upon what he de-
scribed as the appearance of a problem, his unwillingness
to spend more time to determine if there was really any
merit to the complaints against her, and Respondent's
failure to further investigate the alleged complaint after
Focht's denial that she had done wrong. Focht had
checked with the Union concerning her intention to have
the complaint investigated by a private investigator and
the Union had found no reason to discourage her from
the course of action she planned to take. Indeed, employ-
ee assistance in the processing of grievances was encour-
aged by the Union. Focht was thus engaged in protected
concerted and union activity (see Dreis & Krump, supra)
and Respondent's contention that she was airing a "per-
sonal gripe" or otherwise engaged in a personal mission
must be rejected.' 1
Similarly requiring rejection is Respondent's conten-
tion that Focht's conduct amounted to "unauthorized
self-help inconsistent with the fundamental policy of the
Act to foster established dispute resolution procedures
agreed to by the parties in collective bargaining ...
[that she acted] . .. in derogation of the Union's statuto-
ry role as the exclusive representative of all employees
... " She did not bypass the Union; rather she was
working alongside it to help sustain her grievance. Her
goal, the successful prosecution of that grievance, was
not inconsistent with the Union's objectives or contrary
to any position the Union had taken. And, as previously
noted, the Union encouraged self-help and employee as-
sistance in grievance processing and had specifically
found nothing objectionable in the use of private investi-
14 (I.e., the Interboro doctrine, NLRB v. Interboro Contractors, 388 F.2d
495 (2d Cir. 1967)). Further discussion of the merits of the Interboro doc-
trine is not required at this time inasmuch as the activity involved herein
is clearly of a type protected by Sec. 8(a)(3). But see NLRB v. City Dis-
posal System, 256 NLRB 451 (1981), enf. denied 683 F.2d 1005 (6th Cir.
1982), pending before the United States Supreme Court on a writ of cr-
tiorari granted March 28, 1983.
6' The cases cited by Respondent in support of this contention are in-
apposite. None deal with the situation of an employee engaged in filing
and processing a grievance pursuant to a collective-bargaining agreement.
1184
ALTOONA HOSPITAL
gator to look into the complaint allegedly made against
her when she had posed the question to her steward.
Emporium Capwell Co. v. WACA, 420 U.S. 50 (1975),
cited by Respondent, which involved employee efforts to
bypass the contractual grievance procedure and force
direct bargaining between the employer and themselves,
has no applicability to the facts of the instant case. See
also Dreis & Krump, supra, and United Parcel Service, 205
NLRB 991 (1973).
The finding that Focht was engaged in activity gener-
ally protected by the Act, which activity was inhibited
by Respondent's application of its confidentiality rules,
however, does not necessarily render those rules unlaw-
ful and unenforceable. It cannot be seriously disputed
that an employer, particularly one engaged in the health
care industry, has substantial and legitimate business jus-
tifications for the establishment and maintenance of rules
governing the distribution of confidential information.
The issue, therefore, is whether the employees' interests
in processing grievances and in defending themselves
against what they deemed to be contractually prohibited
unjust discipline "outweigh the Respondent's legitimate
business interests in support of its policy so that, under
the circumstances," some breach of those rules, such as
Focht's release of the name of a patient's next of kin to a
private investigator, falls within the Act's protective
ambit. International Business Machines Corp., 265 NLRB
638 (1982); Jeanette Corp. v. NLRB, 532 F.2d 916 (3d
Cir. 1976).
Here, unlike the situation presented in IBM, supra, I
find that, in the circumstances presented, the required
balance tips strongly toward the statutory interests and
precludes application of Respondent's rules to Focht's
conduct. Thus, I note that Focht was engaged in proc-
essing a grievance under a contractually established
grievance procedure seeking to enforce her rights under
the "just cause" provision in her collective-bargaining
agreement. Effective and meaningful recourse to griev-
ance-arbitration machinery contractually agreed to is a
key element in the national labor policy. International
Harvester Co., 138 NLRB 923 (1962); NLRB v. Pincus
Bros. Inc., 260 F.2d 367 (3d Cir. 1980). That recourse be-
comes meaningless when, as here, application of an em-
ployer's rules precludes the employee and the Union
from determining the facts and preparing a case for pres-
entation in the grievance procedure.
While the reasonableness of, or the necessity for, an
employee's conduct is irrelevant to a determination of
the protected character of that conduct (see Dreis &
Krump, supra at 314, and cases cited therein), it is argu-
able that these factors may be deemed relevant to the
balancing required between a legitimate rule and statuto-
ry rights. Here, the Respondent assigned discipline to
Focht, based on a report of a telephone conversation
without any further investigation, notwithstanding that
Focht had told Respondent that she had no recollection
of Beam or of any incident. Moreover, Duncan had told
Focht that he was not inclined to spend any more time
on the complaints against her, i.e., that Respondent was
not going to investigate further. Focht thus reasonably
believed that there had been, and would be, no investiga-
tion into the complaint which Respondent believed had
been made against Focht. In fact, no one had talked to
Beam since she initially voiced her complaint. It was
therefore essential to any meaningful grievance presenta-
tion that Focht find out whether the complaint was
against her and what it was that she had allegedly done.
Respondent argues that the investigation initiated by
Focht was unnecessary because it, rather than she, bore
the "ultimate burden" of establishing the basis for the
discipline. Such an argument presupposes that the em-
ployee is trained as a lawyer in the nuances of whatever
rules of evidence might be applied by some arbitrator,
subsequently to be selected; it further presupposes that
such an arbitrator would rigidly apply evidentiary rules
and hold the shift supervisor's report of her conversation
with Beam inadmissible or of insufficient weight to sus-
tain the discipline. Neither supposition is necessarily war-
ranted. Even assuming that Focht and the Union were
aware of or could have relied on the application of such
a burden of proof, Respondent's rules would have pre-
vented the acquisition of evidence necessary for cross-ex-
amination of the complaint or of the shift supervisor who
took Beam's call, if either were to testify. Such a griev-
ance and arbitration proceeding, where only one side is
permitted access to the evidence, is not what the Board
and the courts envision. See NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967), and Transport of New Jersey,
233 NLRB 694 (1977). Moreover, Respondent's burden
of proof argument would, in effect, preclude any possi-
bility that the grievance might be resolved short of arbi-
tration; it would force the employee and the Union into
arbitration in the hope that they could, with no evidence
save the employee's denial, convince an arbitrator that
the employer's evidence of misconduct was insufficient.
Respondent contends that Focht could, and should,
have gone either to the Union or to her employer for
help in establishing her innocence. In fact, she went to
the Union and was given the green light to contact a pri-
vate investigator. Under Respondent's application of its
rule, the Union could have done no more. Inasmuch as
Respondent would have deemed a direct contact by
Focht with Beam to be a violation of its rules, it must be
assumed that it would have treated her disclosure of
Beam's name to Williams or Teague and the questioning
of Beam by one of them without the hospital's permis-
sion similarly to violate those rules. And an employer
cannot require employees or their representatives to
secure permission before invoking the grievance proce-
dure. See Pittsburgh Press Co., 234 NLRB 404, 412 fn. 8
(1978). Neither can it require an employee or the repre-
sentative to rely on its investigation of the facts underly-
ing discipline it has already assigned. One-sided fact find-
ing hinders, rather than enhances, the grievance-arbitra-
tion procedure. In this respect, the instant case is distin-
guishable from IBM, supra. There, the Board did not
find violative the discharge of an employee who had dis-
tributed pages from Respondent's confidential salary
guidelines. In so finding, however, the Board expressly
noted that "Respondent's policy does not itself bar em-
ployees from compiling or determining wage information
on their own." The employee in IBM could have dis-
cussed wages with the other employees or otherwise at-
S1185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tempted to determine what they were paid without con-
travening the employer's rule. Here, application of Re-
spondent's rule to grievance situations prevents employ-
ees from acquiring the facts necessary to defend them-
selves from employer-imposed discipline. Focht, unlike
the employee in IBM, had no reasonable alternative.
Thus, the instant case is more like Jeanette Corp., 217
NLRB 653 (1975), enfd. 532 F.2d 916 (3d Cir. 1976),
where an employer's rule holding wage information to
be confidential and prohibiting employees from discuss-
ing their wages among themselves was held to be an un-
lawful infringement on their statutory rights. In that
case, the discharge of an employee for violating the con-
fidentiality rule was held violative of the Act.
Additional circumstances further tip the balance to-
wards toleration of some incursions on the employer's
right to establish the rules involved here. Focht was
charged with rude and discourteous behavior, a serious
infraction of the hospital's code of conduct. Repetition,
she was warned, would lead to suspension. Ultimately
repetition would lead to discharge. It was therefore vital-
ly important that she establish her innocence."6 She did
not seek help in investigating the complaint until well
into the grievance procedure, when it had become clear
that she would not change Respondent's collective mind
without supporting evidence. She asked Duncan whether
she could present a defense to the accusation against her
and received, at best, a noncomittal answer. Subsequent-
ly, Duncan responded to her insistence that she would
defend herself by stating that she could do anything she
wanted to do, even to going to the Supreme Court. Per-
haps Duncan was speaking facetiously, but Focht, not
unreasonably, understood this to be authorization for
what she was subsequently to do."7 Moreover, Focht
had been given Beam's name by her supervisor, Lisa
Steward, and, in releasing that information, which was
lawfully in her possession, to a person outside the hospi-
tal, exercised considerable restraint and discretion. She
went to a licensed, professional investigator with a repu-
tation for maintaining confidentiality.' 8 Short of con-
ducting the investigation herself, which still would have
violated Respondent's rules according to its own inter-
pretation of them, there was no way for her to secure
the information she needed with less risk of more exten-
sive dissemination. Further, it was Beam who, by com-
plaining, had initiated the course of action which fol-
l6 In light of the penalty assigned to "rude, discourteous or uncivil be-
havior" by Respondent's rules-suspension or discharge, the penalty with
which Focht was threatened-5-day suspension, and Respondent's refusal
to modify its position through three steps of the grievance procedure, it
is difficult to understand how the arbitrator could have concluded that
this was a "relatively simple warning notice" which "could have been re-
solved harmoniously in the grievance procedure." (Arbitrator's decision,
G.C. Exhs. 2, 10).
1; This further distinguishes the instant case from IBM, where the
Board noted that the employee had not obtained the confidential informa-
tion under circumstances which would have led him to reasonably be-
lieve that he was authorized to possess and disseminate that information.
"s Contrary to the arbitrator, I find no basis for concluding that Ellis,
the private investigator, "embarrassed" or "castigated" Mrs. Beam, led
her to believe he had been retained by the hospital, or "ignominiously
invaded" her privacy. The nature of his profession does not warrant any
assumption that he went about this investigation in the manner of a fic-
tionalized television or pulp novel "private eye."
lowed. Having made a complaint which could affect an
employee's job, Beam's right, if any, to have her name,
as next of kin, kept confidential from everyone cannot be
deemed absolute. Like the innocent observer of a crime
or accident who may subsequently be questioned or sub-
poenaed notwithstanding personal inconvenience or em-
barrassment, a person who complains, however justifi-
ably, in such a way as to possibly jeopardize another per-
son's employment must expect the possibility of further
involvement, and that whatever confidentiality which
previously was attached might have to be waived.' 9
Additionally, it must be noted that the information
which Focht gave to the private investigator was the
least intrusive information she could have given and still
have had the complaint investigated. She did not give
Ellis a copy of the patient's chart or disclose either the
name of the patient or the reason for the hospital visit.
She gave out less information than Respondent routinely
gives to the local press concerning in-patient admissions.
In no way can it be said that Focht was indiscreet or
careless with respect to any confidential information en-
trusted to her.
On balance then, I must find that Focht's right to ef-
fectively process her grievance, in all of the circum-
stances here, outweighs Respondent's right to enforce its
rules on confidentiality. Respondent's discharge of Focht
interfered with, coerced, and restrained her with respect
to her rights under Section 7, and violated Section
8(a)(l) and (3) of the Act.
2. Deferral to arbitration
In Spielberg Mfg. Co., 112 NLRB 1080 (1955), the
Board set forth its criteria for deferral to arbitration: the
arbitration proceedings must appear to have been fair
and regular, all parties must have agreed to be bound,
and the decision of the arbitrator must not be clearly re-
pugnant to the purposes and policies of the Act. A
fourth requirement was subsequently added-the unfair
labor practice issue before the Board must have been
presented to and considered by the arbitrator. Profession-
al Window Cleaning Co., 263 NLRB 136 (1982); Suburban
Motor Freight, 247 NLRB 146 (1980); Raytheon Co., 140
NLRB 883 (1963).2o Here, inasmuch as the arbitrator's
'9 Respondent's contention that a disclosure, such as occurred here,
"has a chilling effect on the willingness of patients or their families to
voice complaints to a hospital" is irrelevant. Every employer has the
right to hear customer complaints about its employees and every employ-
ee (at least those covered by a "just cause" for discipline provision) has
the right to defend against such complaints. There is no reason why a
complaining patient or next of kin in a hospital situation should stand any
differently than a complaining customer in any other enterprise and there
is no reason why a hospital employee should have less right to defend
herself than any other employee. Moreover, in order to show the alleged
"chilling effect," Respondent, in brief, citing Titelman's "Anecdotal
Record," implied that, as a result of having been called by the investiga-
tor, Beam regretted having made that complaint. That record supports no
such argument. It quotes Beam as stating that she regretted making the
complaint the instant after she had made it; Ellis' inquiry, it appears, had
nothing to do with her "regret" and did not cause her to withdraw her
complaint.
20 See also Hfammermill Paper Ca v. NLRB, 658 F.2d 155 (3d Cir.
1981), enf. 252 NLRB 1236 (1980), and NLRB v. General Warehouse
Corp., 643 F.2d 965 (3d Cir. 1981), enfg. 247 NLRB 1073 (1980). In both
Continued
1186
ALTOONA HOSPITAL
award fails to satisfy the latter two requirements, deferral
is unwarranted.
An arbitrator's award is clearly repugnant under Spiel-
berg if it is "palpably wrong as a matter of law." G & H
Products, 261 NLRB 298 (1982). In the instant case, with-
out ever considering that the employee possessed certain
statutory rights to effectively process a grievance, the ar-
bitrator found that Focht had violated a known company
rule and had thus "frittered away" her job. The arbitra-
tor thus ignored "a long line of Board and Court prece-
dent construing the Act" (Clara Barton Terrace, supra;
Ryder Technical Institute, 199 NLRB 570; Dreis &
Krump, supra) which require a balancing of statutory
rights against the employer's legitimate business interests.
See, for example, IBM, supra, and Jeanette Corp., supra.
By doing so, a decision, palpably wrong and clearly re-
pugnant to the purposes and policies of the Act resulted.
The arbitrator reached a conclusion which, by prohibit-
ing employees from investigating the employer's basis for
discipline or by requiring employees to seek their em-
ployer's permission to conduct such an investigation, im-
pedes the effective and expeditious process of contrac-
tually filed grievances. As the Board stated in Hawaiian
Hauling Service, supra at 766:
The grievance and arbitration mechanism is a vital
cog in the machinery for the resolution of industrial
disputes. An arbitrator's award which tends to de-
stroy the effectiveness of that mechanism, as the ar-
bitrator's award here does, is clearly repugnant to
the policies of the Act.
See also Union Fork & floe Co., 241 NLRB 907 (1979).
The arbitrator further found, contrary to both the facts
and clear precedent, that Focht had ignored her collec-
tive-bargaining representative, had "greatly embarrassed"
it, and had "seriously impugned the integrity of the
Union-Management relations that was established by the
parties to resolve incidents of the nature the grievant al-
leged was unwarranted." A finding based on such a con-
clusion is in direct conflict with the import of Emporium
Capwell, supra, Dreis & Krump, supra, and United Parcel
Service, supra, and furnishes a further basis to conclude
that the award is repugnant to the Act's purposes and
policies.
Interrelated with the repugnancy question is the ques-
tion of whether the unfair labor practice issue before the
Board was presented to and considered by the arbitrator.
Here, a copy of the Union's charge among the docu-
ments presented to the arbitrator was the only reference
in the arbitral proceeding to the unfair labor practice
issues involved in Focht's discharge. As noted, the arbi-
trator did not mention or discuss that charge or give any
consideration to Focht's rights under the Act. He deter-
mined only that a rule existed, that rule was important,
Focht knew of the rule and had violated it. On that basis
he found just cause for her discharge. In no way can his
determination be deemed either an explict or implicit res-
olution of the unfair labor practice issues. Cf. Bay Ship-
of those cases, deferral was deemed unwarranted notwithstanding that
the statutory issues were presented to the arbitrators inasmuch as the ar-
bitrators in both cases declined to consider them.
building Corp., 251 NLRB 809 (1980), where resolution
of the factual question of whether the employer had vio-
lated the contract necessarily resolved the issue of
whether or not there had been a unilateral change. Also
cf. Atlantic Steel Co., 245 NLRB 814 (1979), where the
arbitrator's findings were complete and comprehensive
and were factually parallel to the alleged unfair labor
practice. In that case, the Board deferred to the determi-
nation of an arbitrator upholding the discharge of an em-
ployee who, after asking his supervisor a question con-
cerning overtime and receiving an answer, made an ob-
scene remark to another employee about that supervisor.
The Board noted that the arbitrator had found that the
employer had been free to grieve his complaint about
overtime, that the remark had been unjustified, that the
employee had been discharged on the basis of his entire
disciplinary record, and had not been discharged as part
of a pattern of harassment for having engaged in con-
certed activities. The instant case is thus distinguishable
from such cases as Atlantic Steel and Bay Shipbuilding
and is strikingly similar to Clara Barton Terrace, supra. In
that case, a Board majority, Members Penello and
Walter dissenting, refused to defer where the arbitrator
evaluated the employee's conduct (writing an intemper-
ate grievance letter to management) "in a strict contrac-
tual context, without once examining or discussing the
statutory protections accorded by our Act." See also
Professional & Window Cleaning Co., supra, Chairman
Van de Water and Member Hunter dissenting, where the
Board refused to defer to an arbitrator's award which re-
solved the contractual issue (just cause) but ignored the
statutory issue (whether the employee's conduct was
protected concerted activity or unjustified disparage-
ment). There the Board majority noted that, "[a]lthough
a single set of facts is involved," there was a substantial
difference in legal issues.
Accordingly, as I find that the arbitrator did not have
before him or consider the unfair labor practice issues
and, as I further find that the arbitrator reached a deci-
sion which was clearly repugnant to the purposes and
policies of the Act, I must conclude that deferral to that
arbitrator's decision is not warranted.
III. THE REMEDY
It having been found that Respondent has engaged in
an unfair labor practice in violation of Section 8(a)(1)
and (3) of the Act, it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Having
found that Respondent interfered with, restrained, and
coerced Marlene F. Focht in the exercise of her Section
7 rights, and discriminated against her because of her
union activities by discharging her on September 23,
1982, I shall recommend that Respondent be required to
offer said Marlene F. Focht immediate and full reinstate-
ment to her former position or, if that position no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or other rights and privileges pre-
viously enjoyed, and to make her whole for any loss of
earnings she may have suffered as a result of her unlaw-
ful discharge, with backpay to be computed in the
1187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), and with interest to be computed in the manner
set forth in Florida Steel Corp., 231 NLRB 651 (1977).21
I shall also recommend that Respondent be required to
expunge from its records any reference to the unlawful
discharge of Marlene F. Focht. Respondent, additionally,
shall be required to provide her with written notice of
such expunction and to inform her that Respondent's un-
lawful conduct will not be used as a basis of future per-
sonnel actions concerning her. See Sterling Sugars, 261
NLRB 472 (1982).
2l See generally Isis Plumbing Co., 138 NLRB 716 (1962).
ADDITIONAL CONCLUSIONS OF LAW
i. By discharging Marlene F. Focht because of her
union and protected concerted activities, Respondent has
engaged in an unfair labor practice within the meaning
of Section 8(a)(1) and (3) of the Act.
2. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
3. Deferral to the award of the arbitrator is not war-
ranted in the circumstances of this case.
[Recommended Order omitted from publication.]
1188