Crouse-Irving Memorial Hospital

National Labor Relations Board - Board Decisions

Aug 16, 1984

271 N.L.R.B. 1044 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crouse-Irving Memorial Hospital, Inc. and General
Service Employees Union, Service Employees
International Union, Local 200, AFL-CIO.
Case 3-CA- 11748
16 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 30 March 1984 Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,I and
conclusions and to adopt the recommended Order
as modified. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Crouse-Irving Memorial Hospital, Inc.,
Syracuse, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph l(a).
"(a) Refusing to bargain with General Service
Employees Union, Service Employees International
Union, Local 200, AFL-CIO, as the exclusive bar-
gaining representative of all the Respondent's serv-
ice and maintenance employees, excluding supervi-
sors, foremen, office clerical employees and full-
time students, by failing to provide the Union the
information it requested 25 July 1983, except the
pay rates and hire dates of supervisors and volun-
teers."
2. Substitute the following for paragraph 2(a).
"(a) Furnish the Union the information it re-
quested 25 July 1983, including an itemization of
i In sec. I,D, par. 6 of his decision, the judge erroneously stated that
the Respondent acknowledged that the Union's conduct during the strike
was "exemplary." The record reflects that the Respondent characterized
the Union's strike conduct as "peaceful." We correct this error.
2 The judge's recommended Order required the Respondent to furnish
the Union the name, type of work performed, classification, hire date,
pay rate, work hours, overtime, if any, and shift work of all individuals
who performed bargaining unit work from 14 through 22 July 1983. At
the hearing, the Union acknowledged that information concerning the
hire dates and pay rates of supervisors and volunteers is not relevant to
the processing of the grievance. Accordingly, we shall modify pars. l(a)
and 2(a) of the recommended Order to delete the requirement that the
Respondent provide the Union with the hire dates and pay rates of super-
visors and volunteers who worked in the unit during the relevant period.
271 NLRB No. 167
those individuals performing bargaining unit work
from 14 through 22 July 1983, specifically indicat-
ing the individual's name, type of work performed,
classification, hire date, pay rate, work hours, over-
time, if any, and shift work, except for the hire
dates and pay rates of supervisors and volunteers."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with General
Service Employees Union, Service Employees
International Union, Local 200, AFL-CIO, as the
exclusive representative of all of our service and
maintenance employees, excluding supervisors,
foremen, office clerical employees, and full-time
students, by failing to provide the Union the infor-
mation it requested 25 July 1983, except for the
pay rates and hire dates of supervisors and volun-
teers.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL furnish the Union with the information
it requested 25 July 1983, including an itemization
of those individuals performing bargaining unit
work from 14 through 22 July 1983, specifically in-
dicating the individual's name, type of work per-
formed, classification, hire date, pay rate, work
hours, overtime, if any, and shift work, except for
the hire dates and pay rates of supervisors and vol-
unteers.
CROUSE-IRVING MEMORIAL HOSPITAL, INC.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
complaint alleges that Crouse-Irving Memorial Hospital,
Inc. (Respondent), in violation of Section 8(a)(1) and (5)
of the National Labor Relations Act (the Act), refused to
furnish information sought General Service Employees'
Union, Service Employees' International Union, Local
200, AFL-CIO (the Union) alleged to be needed by the
Union to process a grievance filed under the provisions
of the collective-bargaining agreement the Union had
with Respondent. Respondent denies that the information
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CROUSE-IRVING MEMORIAL HOSPITAL
sought has any relevance to that grievance and asserts in
the alternative that other and weightier considerations,
discussed below, justify Respondent's refusal to furnish
the requested data.
The hearing was held before me in Syracuse, New
York, on January 5 and 6, 1984.
On the entire record, including my observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by the General Counsel, the Respondent,
and the Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
As the pleadings establish, Respondent is a nonprofit
New York corporation which operates a hospital and
provides related services in Syracuse, New York. Its
annual operations meet the Board's applicable jurisdic-
tional standard.
The pleadings further establish that the Union is a
labor organization as defined in the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union is the exclusive bargaining representative of
all of the approximately 450 service and maintenance em-
ployees employed by Respondent.
In early 1983 (all dates hereafter are for 1983 unless
noted otherwise), Respondent had laid off a number of
service and maintenance employees. By July 15 about 22
of those employees were still on layoff status.
The collective-bargaining agreement between Re-
spondent and the Union contained a wage reopener and
also provided that in all other respects the contract will
be in effect until 1985. The Union and Respondent nego-
tiated to an impasse on the wage reopener matter and,
after requisite notice, the Union struck on July 15.
Before that date, the service and maintenance employees
had voted to assess any member who crossed their picket
lines "75% of all money [made] while 'scabbing' during
[the] strike."
The Union put up its picket lines on July 16. An un-
specified number of unit employees refused to strike and
they crossed the picket lines. Respondent continued op-
erating by using service and maintenance employees who
crossed those lines, volunteers, nonunit employees, and
newly hired replacements. The strike ended on July 20.
All of the striking employees, except 36 whom Re-
spondent asserts had been permanently replaced, were
reinstated at the end of the strike. Most of the 36 were
later called.
Respecting the Union's resolution to assess those of its
members who refused to honor their picket lines 75 per-
cent of monies earned, the parties stipulated that the
Union is presently pursuing internal union charges
against members who worked during the strike.
B. The July 25 Grievance-the Union's Request and
Replies thereto
On July 25, the Union filed a written grievance,
Grievance No. 16081, under its contract with Respond-
ent, in which it asserted that the Respondent violated
that contract by (a) not having reinstated the 36 striking
employees for whom Respondent stated it had hired per-
manent replacements and (b) by having failed "to pro-
vide seniority, recall, and transfer and promotion rights
to approximately thirty-nine (39) employees .... on
layoff .... (who) had priority for employment in rela-
tion to the aforementioned thirty-six (36) alleged new
hirees."
Also on July 25, the Union wrote to Respondent
asking it to provide, among other items, the following
data in order to enable the Union "to properly pursue,
investigate, and evaluate the above grievance":
An itemization of those individuals performing bar-
gaining unit work from July 14 through July 22,
specifically indicating the name of the individual,
the type of work performed, the classification, the
date of hire, the rate of pay, the hours of work,
overtime if any and shift work.
On August 5, Respondent furnished certain items as
requested but declined to honor those aspects of the
union request set out above. Respondent based that re-
fusal on its assertion that "during the .... strike ...
the primary interest of (Respondent) was to cope with
the situation at hand by continuing to provide optimum
care to its patients. [Respondent] believes its commitment
to those people who assisted in this endeavor precludes
providing the information requested."
On August 18, George Kennedy, the Union's repre-
sentative, met with Maureen VanDuser, assistant vice
president of Respondent. They dealt with a number of
matters, not involved herein and also discussed the griev-
ance referred to above. Kennedy repeated the Union's
requests for data. In doing so he noted, as an example as
to why the Union asked for the information, that the
Union might be able to determine whether employees on
layoff were qualified to perform jobs being done during
the strike. VanDuser wrote a letter to Kennedy. The
part of that letter that relates to this case refers to their
August 18 meeting and then states that:
With regard to your request for additional informa-
tion on those individuals who may have performed
bargaining unit work during the strike, [Respond-
ent] stands by its response of August 5.
During the August 18 meeting you alluded to the
possibility of bargaining unit members who may
have been asked to perform out of title work during
the strike. If you provide me with specifics I will
review these situations and insure correct payment
of wages as set forth in Article XXXIII, Section 5.
The Union thereupon elected to file the unfair labor
practice charge which gave rise to the proceeding before
me.
C. Contentions of the Parties
The General Counsel and the Union state that because
the Union was not privy as to how Respondent conduct-
ed its operations during the strike, the Union needs the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested data to determine the extent to which Re-
spondent may have violated those aspects of the contract
that remained in effect during the strike, and to evaluate
not only the rights of strikers not reinstated when the
strike ended, but also those of its members on layoff par-
ticularly in relation to the contractual rights, if any, of
employees reportedly hired by Respondent as permanent
replacements.
At the opening of the hearing, Respondent asserted
that the Union's real purpose in asking for the date as
specified above was to enable it to prosecute internal
union charges against those of its members who worked
during the strike. Respondent pursued that contention
during its cross-examination of the Union's representa-
tive, George Kennedy. He was asked directly if that was
not the Union's purpose. He responded that the Union
does not seek the requested data for use in pressing its
internal union charges. The General Counsel's brief notes
that Respondent had not previously raised that issue and
that Respondent had never indicated to the Union that it
wanted assurances that the data sought would not be
used in furtherance of internal union charges.
Respondent also had asserted in its opening statement
that its refusal to furnish the requested data was founded
in its good-faith concern for the welfare of its employees.
Relevant thereto, its assistant vice president, VanDuser,
testified that she had heard reports that employees who
performed unit work during the strike were subject to
name-calling and to anonymous warnings. She conceded
however that the Union's strike was peaceful and that
she had acknowledged to the Union's representative that
the Union had conducted its strike in an orderly manner.
Her account was not clear on one point as she related
that Respondent kept a file on all strike-related activities,
but then she stated that Respondent had no written
record of any reports of strike violence or the like.
D. Analysis
The General Counsel's and Respondent's brief both
recognize the applicability of the holding in NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967), to the issues in
this case. Thus, the Court there held that the Board is
empowered to order an employer to furnish requested
data which is in aid of the arbitral process.
Respondent contends that the Union is entitled to no
data concerning the service and maintenance work done
by employees on duty during the strike as the Union is
not pressing any grievance on their behalf. That argu-
ment seems to be an afterthought as Respondent's
August 5 letter, as confirmed by its August 31 letter,
stated that the Union's request could not be honored as
Respondent has commitments to those who cross the
picket line.
The General Counsel, in her brief, has set out various
areas in which the data requested relates to the July 25
grievance. One point seems crystal clear to me. The data
sought by the Union would tend to show whether or not
the individuals whom Respondent asserts were hired as
permanent replacements for 36 striking employees actual-
ly performed unit work as permanent replacements. I
find no merit in Respondent's assertion that the requested
data has no relationship to that aspect of the Union's
grievance which is concerned with the reinstatement
rights of 36 strikers as of the end of the strike.
Respondent separately contends that the union's re-
quests, insofar as they pertain to the union's claims on
behalf of about 22 employees still on layoff when the
strike began, is essentially frivolous. Respondent asserts,
in its brief, that "it is conceivable that the Union is seri-
ously suggesting that Union members on laid off status
should be allowed to cross picket lines and perform bar-
gaining unit work while their fellow Union brethren are
out of work exercising their legal right to strike ....
[and that this] is especially more so in the light of the
fact that the Union has threatened to fine bargaining unit
members .... 75 percent of their wages if they cross
the picket lines .... " That argument focuses deliberate-
ly on one portion of Kennedy's testimony in which he
gave VanDuser an example as to how the Union might
use the information it sought. The union's grievance on
its face is not limited to a claim for backpay for the term
of the strike for employees on layoff, as Respondent
would have it. I will not, however, attempt now to an-
ticipate that such a contention will be the only matter
presented to the arbitrator or even to offer my views as
to the merits of any contentions which may be raised
there. It is sufficient for me to note that, in the union's
grievance, the claim is made that the laid-off employees
may have rights superior to any of the employees whom
Respondent contends had been hired as permanent re-
placements. I find that the information requested by the
Union is directly related to that aspect of the grievance
and that there is no basis on which I could find that the
grievance is so clearly lacking in merit that any related
request for information would have to be summarily dis-
missed.
I turn now to Respondent's other contention, that its
concerns for its employees outweigh the Union's need
for the information. The General Counsel and the Union
do not assert that, once relevance is shown, the duty to
furnish requested data is absolute. There may be interests
to be balanced.' Respondent contends that, as the Union
will use the requested data in furtherance of the internal
union charges filed against its members who worked
during the strike, the Union has effectively forfeited any
right to that data. That contention is based on pure spec-
ulation and flies in the face of the testimonial assurances
Respondent sought and obtained from the Union's repre-
sentative at the hearing that the data will not be so used.
Respondent has also suggested that its concern for the
safety of its employees more than offsets the union's need
for any of the data. The difficulty I have with that asser-
tion is that the evidence offered by Respondent was
equivocal, contradictory, and unsubstantial. Respondent
cannot fairly imply that the Union would place employ-
ees in jeopardy, especially as Respondent has openly ac-
knowledged that the Union's conduct during the strike
was exemplary. Neither can Respondent be permitted to
rely on rumors and reports it states it receive when Re-
spondent's own evidence is unclear as to whether or not
it has documentary material thereon in its own files. In
I Cf. Detroit Edison Co. v, NLRB, 440 U.S. 301 (1979)
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CROUSE-IRVING MEMORIAL HOSPITAL
sum, there is little balancing of interests to be done here.
The needs, as articulated in Acme Industrial Co., supra,
are paramount; the objections offered by Respondent are
too speculative to negate them. In such circumstances,
the Board has made it clear that an employer is not justi-
fied in refusing to supply relevant data as requested.2
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. Respondent has committed an unfair labor practice
within the meaning of Section 8(a)(1) and (5) of the Act
by having failed and refused to honor the Union's re-
quest for data as made on July 25, 1983, and as related to
the matters it grieved that same date.
4. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, Crouse-Irving Memorial Hospital,
Inc., Syracuse, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with General Serv-
ice Employees' Union, Service Employees' International
I AGC of California, 242 NLRB 891 (1979).
s If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
Union, Local 200, AFL-CIO as the exclusive representa-
tive of all of Respondent's service and maintenance em-
ployees employed at its hospital in Syracuse, New York,
by not honoring the Union's request of July 25, 1983, for
data with respect to the grievance it filed on July 25,
1983.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Furnish the Union with the information it sought
on July 25, 1983, i.e,-an itemization of those individuals
performing bargaining unit work from July 14, 1983,
through July 22, 1983, specifically indicating the name of
the individuall, the type of work performed, the classifi-
cation, the date of hire, the rate of pay, the hours of
work, overtime, if any, and shift work.
(b) Post at its hospital in Syracuse, New York, copies
of the attached notice marked "Appendix." 4 Copies of
the notice, on forms provided by the Regional Director
for Region 3, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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