Hofstra University

National Labor Relations Board - Board Decisions

Sep 30, 1997

324 N.L.R.B. 557 (N.L.R.B. 1997)

557
324 NLRB No. 95
HOFSTRA UNIVERSITY
1 All dates hereafter refer to 1995, unless otherwise indicated.
2 Although the Respondent initially contended that the report was
confidential, the judge rejected that defense, and, as noted above, the
Respondent did not file any exceptions to the judge’s decision. Ac-
cordingly, we adopt the judge’s finding that the Respondent has not
met its burden of proving that the information sought is confidential.
3 Our dissenting colleague assumes arguendo that the draft report
was presumptively relevant, but concludes that the Respondent rebut-
ted the presumption by showing that that the project was abandoned
and that no bargaining proposals were based on the draft report. We
disagree. In our view, the fact that the Respondent did not use the
draft report establishes only that the Respondent decided the report
was not relevant to its purposes. Under Sec. 8(a)(5) of the Act, how-
ever, ‘‘the key inquiry is whether the information sought by the
Continued
Hofstra University and Office and Professional Em-
ployees International Union, Local 153, AFL–
CIO. Case 29–CA–19409
September 30, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On February 4, 1997, Administrative Law Judge D.
Barry Morris issued the attached decision. The Charg-
ing Party filed exceptions and a supporting brief, and
the Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs, and has decided to affirm the judge’s rul-
ings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
The judge found that the Respondent did not violate
the Act by refusing to furnish information the Union
requested. We disagree.
The Union represents the Respondent’s clerical and
technical employees, and was party to a collective-bar-
gaining agreement effective from September 1, 1992,
to August 31, 1995. In March 19951 the Respondent
hired the Pappas Consulting Group to undertake an
evaluation of the clerical staff. The consultant distrib-
uted questionnaires to employees, reviewed the com-
pleted questionnaires, and made some proposals in a
draft report submitted to the Respondent’s president in
May.
The Union made numerous requests for the draft re-
port to prepare for negotiations for a successor collec-
tive-bargaining agreement, including requests in mid-
June before negotiations commenced, on June 27 at the
first bargaining session, and on August 1 at the second
session. The Respondent replied that it was not obli-
gated to furnish the information to the Union.
The judge credited testimony that no final report
was prepared because the Respondent terminated the
project, the Respondent did not adopt any proposal in
the draft report, and the Respondent did not use the
draft report to formulate any position taken in collec-
tive bargaining. The judge concluded that the draft re-
port was not relevant to the Union’s bargaining duties
because the project for which it was compiled was ter-
minated and the Respondent did not use the report to
prepare for bargaining.2
It is well settled that an employer has an obligation
to furnish a union, on request, information necessary to
enable the union to peform its duties as collective-bar-
gaining representative of unit employees. NLRB v.
Acme Industrial Co., 385 U.S. 432, 435–436 (1967).
This obligation is a continuing one, extending beyond
contract negotiations and ‘‘applies to labor-manage-
ment relations during the term of an agreement.’’ Id.
at 436. Information pertaining to the wages, hours, and
working conditions of unit employees is ‘‘so intrinsic
to the core of the employer-employee relationship that
such information is considered presumptively rel-
evant.’’ San Diego Newspaper Guild v. NLRB, 548
F.2d 863, 867 (9th Cir. 1977). Where the information
is presumptively relevant, the employer has the burden
of proving lack of relevance. Prudential Insurance Co.
v. NLRB, 412 F.2d 77, 84 (2d Cir. 1969), cert. denied
396 U.S. 928 (1969).
In explaining the purpose of the consultant’s study
to the university community, the Respondent’s presi-
dent stated:
We want to understand better how we can make
the most effective use of available technology and
what can reasonably be anticipated for the future.
We need to know how to maximize our resources
when we need them. We want to better under-
stand the flow of work as we shift from peak pe-
riods such as the fall and spring semesters to the
somewhat lower pressure parts of the academic
year.
The questionnaire used by the consultant to prepare the
draft report contained questions designed to determine,
‘‘What you do, How and When you do it.’’ The Re-
spondent’s director of human resources explained to
the Union that the purpose of the questionnaire was to
‘‘find out what the responsibilities of the individuals
are . . . and, also, what the job content was.’’ The
consultant analyzed the answers in the returned ques-
tionnaires and made proposals in the draft report sub-
mitted to the University. Given the above, we find that
the draft report relates to job responsibilities and con-
tent, and therefore encompasses mandatory subjects of
bargaining and thus is presumptively relevant. Wash-
ington Hospital Center, 270 NLRB 396, 400–401
(1984). That the Respondent made no use of the draft
report is irrelevant since the information contained in
the report is presumptively relevant to the Union in
fulfilling its obligations as statutory bargaining rep-
resentative.3
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558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union is relevant to its duties.’’ NLRB v. Leonard B. Herbert, Jr.
& Co., 696 F.2d 1120, 1124 (5th Cir. 1983) (emphasis added). Be-
cause employers and unions often have divergent interests, informa-
tion that is not considered relevant by one party may be highly rel-
evant to the other. Furthermore, the Supreme Court has adopted a
discovery-type standard of what constitutes relevant information.
Acme Industrial, supra, 385 U.S. at 437. Under that liberal standard,
where, as here, the information requested pertains to employees’
working conditions, ‘‘the information must be disclosed unless it
plainly appears irrelevant.’’ Teleprompter Corp. v. NLRB, 570 F.2d
4, 8 (1st Cir. 1977). In sum, the Respondent’s failure to take some
action based on the draft report is not conclusive and does not
‘‘plainly’’ establish that the report would be of no use to the Union
in carrying out its statutory duties and responsibilities.
4 The president, in explaining why the consultant was interviewing
the staff, emphasized effective use of technology, maximizing re-
sources, and understanding the distribution of work between peak
and low periods of the year. The questionnaire sought information
about how automation would change a job, the annual work cycles
of a job, and a breakdown of time spent on individual job tasks.
5 The dissent faults the Union for failing to show that the draft re-
port was relevant to a proposal it wished to make in bargaining.
However, because the draft report contained information pertaining
to unit employees’ working conditions, ‘‘it is not required that the
union show the precise relevancy of the requested information to
particular current bargaining issues.’’ Teleprompter Corp., supra, 570
F.2d at 8. Further, we fail to see how the Union’s request could be
more specific when it did not know what the draft report contained
beyond the obvious fact that it dealt with unit employees’ working
conditions.
Further, the Respondent’s hiring of the consultant
occurred shortly before bargaining for a successor
agreement began between the Respondent and the
Union. The Union made clear to the Respondent that
it was requesting the information to prepare for bar-
gaining. In testimony elaborating on its need for the
information, the Union explained that it feared the
University was displacing a certain unit employee clas-
sification with nonbargaining unit employees and that
it was concerned about the possibility of subcontract-
ing unit work—both concerns related to mandatory
bargaining subjects. The president’s statement about
the purpose of the consultant’s study and the informa-
tion sought in the questionnaire the consultant used
strongly suggest that the draft report might relate in
some way to these bargaining subjects.4 Thus, rather
than simply requesting information about which it was
curious, the above shows that the Union’s request was
bottomed on specific concerns about mandatory bar-
gaining subjects.5
In concluding that the draft report was not relevant
because the Respondent did not use the report to pre-
pare for bargaining, the judge appears to have treated
the draft report as information pertaining to matters
outside the bargaining unit. When a union seeks infor-
mation pertaining to matters outside the bargaining
unit, the union must make a showing that the requested
information is relevant to bargainable issues. San
Diego Newspaper Guild, supra at 867. In other words,
the principle of presumptive relevance does not apply.
In such cases, the Board has focussed on whether the
employer relied on the information sought in deciding
whether the requested information was relevant to the
union. See, e. g., General Electric Co., 192 NLRB 68
(1971), enfd. 466 F.2d 1177 (6th Cir. 1972).
It is true, as the Respondent argues, that in Washing-
ton Hospital Center, supra—a case involving presump-
tively relevant information—the employer used the in-
formation the union sought. We do not agree, however,
that Washington Hospital Center or any other case the
Respondent cites holds that information pertaining to
bargaining unit matters must be relied on by the pos-
sessor for bargaining or other purposes for the infor-
mation to be presumptively relevant. Such a rule
would put in one party’s hands the ability to decide
unilaterally whether information pertaining to wages,
hours, and working conditions was relevant. The Re-
spondent may not have utilized any of the information
contained in the draft report and may have decided it
was not relevant to bargaining, but because the re-
quested information was presumptively relevant, the
Union was entitled to examine the information and de-
termine for itself whether it was relevant to bargaining.
We find that the Respondent, by refusing to furnish
the draft report to the Union, violated Section 8(a)(5)
and (1) of the Act.
CONCLUSION OF LAW
By refusing to furnish information that is relevant
and necessary to the Union’s role as the exclusive bar-
gaining representative of unit employees, the Respond-
ent violated Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Respondent has refused to
furnish information that is relevant and necessary to
the Union’s role as the exclusive bargaining represent-
ative of unit employees, we shall order the Respondent
to furnish the information the Union requested in a
timely fashion.
ORDER
The National Labor Relations Board orders that the
Respondent, Hofstra University, Hempstead, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Office and Professional
Employees International Union, Local 153, AFL–CIO
as the exclusive bargaining representative of the em-
ployees in the appropriate unit by refusing to furnish
information that is relevant and necessary to the
Union’s role as the exclusive bargaining representative
of unit employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
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559HOFSTRA UNIVERSITY
6 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 Relations Board.’’
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Union in a timely manner the
draft report prepared by the Pappas Consulting Group.
(b) Within 14 days after service by the Region, post
at its Hempstead, New York facility copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the no-
tice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices 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 pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since August 8, 1995.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
MEMBER HIGGINS, dissenting.
I agree with the administrative law judge that Re-
spondent did not violate Section 8(a)(5) of the Act by
refusing to supply the consultant’s draft report con-
cerning the clerical operation. The judge concluded,
and I agree, that the draft report was not relevant to
the Union’s bargaining duties. Even assuming
arguendo that the draft report was presumptively rel-
evant, Respondent rebutted that presumption when it
established, without contradiction, that the project was
abandoned prior to negotiations, and that no bargaining
proposals were based thereon.
My colleagues suggest that the draft report may
nonetheless have been relevant to upcoming contract
negotiations. Although it is conceivable that the draft
report may have been relevant to a proposal that the
Union itself might wish to make, there is no showing
to this effect. Indeed, the Union did not even make this
contention until the hearing in this case, i.e., long after
Union’s request for the information and the Respond-
ent’s response thereto.
I agree with my colleagues that the issue is whether
the information is relevant to the Union’s duties as
representative. However, the information would be rel-
evant to the Union’s duties only if it pertained to a
present or potential proposal of Respondent or to a
present or potential proposal of the Union. As dis-
cussed above, Respondent’s proposal was withdrawn,
and the Union did not timely assert that the informa-
tion was relevant to a present or potential proposal of
its own.
Further, I agree with my colleagues that the infor-
mation deals with working conditions. However, this
fact would simply make the information presumptively
relevant, a legal proposition that I have conceded
arguendo. Finally, the cases cited by my colleagues are
inapposite. In NLRB v. Leonard B. Herbert, Jr. & Co.,
696 F.2d 1120 (5th Cir. 1983), the union requested in-
formation concerning the relationship between signa-
tory employers and other companies. The court found
that the requested information was relevant because the
union could use it to determine whether ‘‘to pursue
legal means by which it could hold the nonunion com-
panies to the terms of the collective bargaining agree-
ment involved here.’’ In finding the information rel-
evant, the court found that the union’s information re-
quest on its face was sufficient to put the employers
on notice of the basis of the union’s suspicions that the
employers were violating the contract. Here, there is
no such showing nor is there such a contention.
Likewise, in Teleprompter Corp. v. NLRB, 570 F.2d
48 (1st Cir. 1977), the court adopted the Board’s find-
ing that information concerning the financial condition
of subsidiaries of the parent company was relevant
where the parent had pleaded inability to pay higher
wages during collective-bargaining negotiations and
the subsidiaries were the actual employers of the unit
employees. Again, unlike in this case, the union ad-
vanced its specific reasons for seeking the information
at the time the request was made. As the court ob-
served, ‘‘the subsidiary’s financial data became rel-
evant here solely because of its relationship, in a bar-
gaining context, to the parent’s claim of financial in-
ability.’’
For all of the above reasons, I agree with the judge
that Respondent did not violate Section 8(a)(5) by fail-
ing to supply the information.
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Office and Pro-
fessional Employees International Union, Local 153,
AFL–CIO as the exclusive bargaining representative of
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560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates refer to 1995 unless otherwise specified.
the employees in the appropriate unit by refusing to
furnish information that is relevant and necessary to
the Union’s role as the exclusive bargaining represent-
ative of unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL furnish to the Union in a timely manner
the draft report prepared by the Pappas Consulting
Group.
HOFSTRA UNIVERSITY
Diane H. Lee, Esq., for the General Counsel.
John D. Giansello, Esq. (Orrick, Herrington & Sutcliffe), of
New York, New York, for the Respondent.
Anne L. Brown, Esq. (Lilly & Bienstock), of Garden City,
New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Brooklyn, New York, on May 8,
1996. On a charge filed on August 8, 1995,1 a complaint was
issued on October 31, alleging that Hofstra University (Re-
spondent or the University) violated Section 8(a)(1) and (5)
of the National Labor Relations Act (the Act), by refusing
to furnish certain requested information. Respondent filed an
answer denying the commission of the alleged unfair labor
practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the General
Counsel and by Respondent.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York not-for-profit corporation, with
its principal office and place of business in Hempstead, New
York, has been engaged in the operation of an educational
institution. Respondent has admitted, and I find, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. In addition, it has been ad-
mitted and I find, that Office and Professional Employees
International Union, Local 153, AFL–CIO is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Since 1976 the Union has been the exclusive collective-
bargaining representative of Respondent’s office, clerical,
and technical employees. The parties have entered into suc-
cessive collective-bargaining agreements, the most recent of
which was effective by its terms for the period from Septem-
ber 1, 1992, to August 31, 1995. By memorandum of agree-
ment dated October 19, 1995, the parties entered into a suc-
cessor collective-bargaining agreement, effective from Sep-
tember 1, 1995, to August 31, 1998.
Janet A. Lenaghan, Respondent’s director of human re-
sources, appeared to me to be a credible witness. She testi-
fied that in March 1995 the University hired an outside con-
sultant firm, the Pappas Consulting Group, to undertake an
evaluation of the clerical staff. The Pappas Group adminis-
tered a questionnaire which they asked each of the unit em-
ployees to complete. Lenaghan credibly testified that the
Pappas Group reviewed the completed questionnaires and
made some proposals in a draft report. She further credibly
testified that the draft report was submitted in May to the
president and one or two vice presidents and then was
‘‘abandoned and terminated.’’ Based on Lenaghan’s credible
and uncontroverted testimony, I find that no final report was
ever prepared, that the proposals or recommendations in the
draft were not adopted by the University, that nothing in the
draft was implemented, and that the draft report was not used
by Respondent to formulate any position taken by the Uni-
versity in the collective-bargaining negotiations.
John Dunn, the Union’s business representative, testified
that in March he discussed the questionnaires with Lenaghan
and was told by her that the questionnaires were ‘‘to assist
the University in determining the job responsibilities’’ of the
bargaining unit employees. Pursuant to Dunn’s request, on
April 4 Lenaghan furnished him with a copy of the question-
naire. Dunn credibly testified that on April 28, during a
meeting with James McCue, a vice president of the Univer-
sity, he told McCue that he would like a copy of the Pappas
Report when it was ‘‘completed.’’ On May 12 Dunn wrote
a letter to Lenaghan in which he stated ‘‘the Union requests
copies of the completed Position Analysis Questionnaire
filled out by the bargaining unit employees represented by
Local 153.’’ On June 15 Dunn again asked McCue for the
Pappas Report. McCue replied that based on his discussions
with counsel for the University, the Union was not entitled
to the report. At a meeting held on August 1 Dunn made
clear to counsel for Respondent that he was requesting the
Pappas Report, and not the completed questionnaires. Re-
spondent’s counsel advised him that it was Respondent’s po-
sition that the Union was not entitled to the report since ‘‘it
was an internal document and was not adopted by the Uni-
versity.’’ On August 3 counsel for Respondent wrote to
Dunn as follows:
With respect to your request to review a copy of the
Pappas Report, it is initially noted that the report is
confidential and has not been adopted by the Univer-
sity. Therefore, we do not believe that the report is at
all relevant to these negotiations or to your duties as a
collective-bargaining agent for certain employees at the
University.
B. Discussion and Conclusions
1. Confidentiality
Respondent contends that the survey results contained in
the Pappas Report are confidential. Lenaghan testified that
she told the employees that the completed questionnaires
would be kept confidential. However, nowhere on the ques-
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561HOFSTRA UNIVERSITY
tionnaire does it state that the answers would be confidential.
In addition, Lenaghan was not able to affirmatively state that
her assistant who handed out some of the questionnaires told
the employees that their answers would be kept confidential.
In Detroit Newspaper Agency, 317 NLRB 1071, 1073
(1995), the Board stated:
Confidential information is limited to a few general
categories: that which would reveal, contrary to prom-
ises or reasonable expectations, highly personal infor-
mation, such as individual medical records or psycho-
logical test results; that which would reveal substantial
proprietary information, such as trade secrets; that
which could reasonably be expected to lead to harass-
ment or retaliation, such as the identity of witnesses;
and that which is traditionally privileged, such as
memoranda prepared for pending lawsuits.
The information in question does not fall into the above
general categories of confidential information. Respondent
has merely asserted that the information sought was con-
fidential. I believe that Respondent has not met its burden of
proving that the information is confidential.
2. Relevancy
There is no dispute that the Pappas Consulting Group is
an outside independent consultant. Respondent maintains that
since the report was never finalized but instead only a draft
was submitted to the University’s president and one or two
vice presidents; since the project was ‘‘abandoned’’ and
‘‘terminated’’; and since nothing in the draft was imple-
mented, the report was not relevant to the Union’s collective-
bargaining duties and, therefore, Respondent was not re-
quired to furnish the draft report. The General Counsel has
cited no case involving job evaluation data to support its po-
sition that in the circumstances of this case Respondent was
required to furnish the report. Respondent, on the other hand,
has cited several cases dealing with job evaluation data, in-
cluding Washington Hospital Center, 270 NLRB 396 (1984).
While in that case the Board held that the hospital was re-
quired to furnish certain requested information, Respondent
in this proceeding argues that the case is distinguishable.
In Washington Hospital Center, the hospital commissioned
Hayes/Hill, Inc. to undertake a study in order to establish a
comprehensive job classification and compensation plan. In
conjunction therewith, the hospital employees were provided
Hayes/Hill questionnaires designed to gather information
about their jobs. The administrative law judge found that the
Hayes/Hill study was ‘‘virtually completed’’ around March
1981. The judge also found that Hayes/Hill material, at least
in part, was utilized by the personnel department in arriving
at recommendations for the upgrading and increases in pay
for unit clerks (270 NLRB at 399). In January 1982 the hos-
pital notified the union president that it ‘‘intends to imple-
ment as of March 7, 1982, a comprehensive program devel-
oped by Hayes/Hill.’’ Similarly, in February 1982 the hos-
pital’s director of personnel advised the Union’s business
agent that ‘‘Hayes/Hill would probably go into effect in the
near future.’’
I find that the facts in the Washington Hospital Center
case are clearly distinguishable from the facts in the instant
proceeding. In this proceeding there was never a final report,
instead a draft report by an outside independent firm was
submitted to the University’s president and one or two vice
presidents. The project was promptly abandoned and termi-
nated. I have credited Lenaghan’s uncontroverted testimony
that nothing in the draft was implemented. On the other
hand, in Washington Hospital Center, supra, the Hayes/Hill
study was ‘‘virtually completed’’ around March 1981, the
hospital advised the Union president that it ‘‘intends to im-
plement’’ a comprehensive program developed by
Hayes/Hill; and the judge found that the Hayes/Hill material
was at least in part utilized by the personnel department in
arriving at recommendations for the upgrading in increases in
pay for unit clerks. Accordingly, I find that the draft Pappas
Report is not relevant to the Union’s bargaining duties and
Respondent did not violate the Act in failing to furnish the
report.
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 within the meaning
of Section 2(5) of the Act.
3. At all relevant times the Union has been the exclusive
collective-bargaining representative of the employees in the
following appropriate unit:
All office, clerical and technical employees, including
secretaries and assistants employed by the University,
excluding all other employees, professional employees,
confidential employees, supervisors and guards as de-
fined in the Act.
4. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
[Recommended Order omitted from publication.]
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