Jacksonville Area Association for Retarded Citizens

National Labor Relations Board - Board Decisions

Feb 16, 1995

316 N.L.R.B. 338 (N.L.R.B. 1995)

338
316 NLRB No. 66
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 This statement was amended on April 2, 1993, to add at the end,
‘‘Article VII Discipline and Discharge, Section 7.2 Just Cause.’’
Jacksonville Area Association for Retarded Citizens
and General Service Employee Union, Local
73, of the Service Employees International
Union, AFL–CIO. Case 33–CA–10140–2
DECISION AND ORDER
February 16, 1995
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
Upon a charge filed by the Union on April 8, 1993,
the General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on
June 2, 1993, alleging that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing and refus-
ing to furnish the Union with requested information.
On December 3, 1993, the General Counsel, the
Union, and the Respondent filed with the Board a stip-
ulation of facts and motion to transfer the case to the
Board. The parties stated that the original charge, com-
plaint, stipulation of facts, and attached exhibits con-
stitute the entire record in this case and that they waive
a hearing before an administrative law judge. On July
26, 1994, the Board approved the stipulation and trans-
ferred the proceeding to itself for issuance of a Deci-
sion and Order.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
On the entire record and briefs, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Illinois corporation, with an of-
fice and place of business in Jacksonville, Illinois, is
engaged in the business of providing services to per-
sons with developmental disabilities. During the fiscal
year ending June 30, 1992, the Respondent, in con-
ducting its business operations derived gross revenues
in excess of $1 million, provided services valued in
excess of $50,000 for the State of Illinois, and pur-
chased and received at its Jacksonville, Illinois facility,
goods valued in excess of $25,000 directly from points
outside the State of Illinois.
The Respondent admits, and we find, that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act,
and is a health care institution within the meaning of
Section 2(14) of the Act. The Respondent admits, and
we find, that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Since January 1992, the Union has been the exclu-
sive collective-bargaining representative of the employ-
ees in an appropriate unit of approximately 150 em-
ployees. The first collective-bargaining agreement be-
tween the Respondent and the Union was effective for
a 12-month period beginning November 23, 1992.
At all material times, Rebecca W. McGinnis was the
Respondent’s executive director. Tom Morelock was
the Respondent’s personal director and Pamela Chap-
man was a supervisor for the Respondent. All three
were supervisors within the meaning of Section 2(11)
of the Act and agents of the Respondent within the
meaning of Section 2(13) of the Act. Also, at all mate-
rial times, Lyndell Huff has served as a union steward,
with authority on behalf of the Union to (a) file griev-
ances under the article XI of the above-mentioned col-
lective-bargaining agreement and (b) request and re-
ceive information from the Respondent which is nec-
essary for and/or relevant to the Union’s performance
of its duties as the exclusive collective-bargaining rep-
resentative of the unit and specifically with respect to
its representation of employees in the processing of
grievances under article XI of that same collective-bar-
gaining agreement.
Article XVI, section 16.1 of the agreement states
that ‘‘[T]he Executive Director may grant an unpaid
leave of absence to non-probationary employees for the
purpose of educational study or other personal rea-
sons.’’ About April 1, 1993, the Union, by Huff, filed
a grievance on behalf of Ann Knous, an employee in
the unit. The ‘‘Statement of Grievance’’ stated:
Ann Knous on March 26, 1993 was denied discre-
tionary leave time. This violates Article XVI
Leaves of Absence, Section 16.1 Discretionary
Leave; Article IV Non-Discrimination Section 4.1
and all relevant sections of the Contract.1
About April 1, the Union, by Huff, submitted to
Morelock a written request for ‘‘a copy of each discre-
tionary leave request that has been filed from Novem-
ber 22, 1992, to April 1, 1993.’’ About April 1, the
Respondent, by Chapman, orally informed the Union
that it would not furnish the requested information.
About April 6, 1993, the Union, by Huff, made an-
other written request for the information. By memoran-
dum dated April 6, Morelock denied the request stating
that the information requested is
339JACKSONVILLE AREA ASSOCIATION FOR RETARDED CITIZENS
2 In the General Counsel’s brief to the Board, he states, ‘‘[W]hile
the request is not expressly limited to requests submitted by bargain-
ing unit members, the General Counsel is seeking the production of
the requested information only with respect to employees in the bar-
gaining unit.’’ Thus, there is no contention that the Respondent un-
lawfully refused to supply information with respect to employees
outside the bargaining unit.
3 The General Counsel cites, inter alia, Remington Arms Co., 298
NLRB 266, 272–273 (1990); and New Jersey Bell Telephone Co.,
289 NLRB 318 (1988).
4 Pfizer, Inc., 268 NLRB 916, 918 (1984), enfd. sub nom. NLRB
v. Electrical Workers IBEW Local 309, 763 F.2d 887 (7th Cir.
1985), and cases cited therein.
5 Pfizer, Inc., supra at 918.
6 Id.
[P]ersonal and confidential. Even submitting you
a list of individuals who have requested such
leave would indicate a breach of confidentiality.
The only way that you could obtain this informa-
tion is to be submit a release from each individual
involved.
B. The Parties’ Contentions
The sole issue here is whether the Respondent’s re-
fusal to furnish the requested information violated Sec-
tion 8(a)(5) and (1) of the Act.
The Respondent argues that the information re-
quested is not relevant to the Union’s performance of
its grievance processing duties. It urges, in effect, that
the Respondent’s executive director has the
unreviewable discretion to grant the leave requests
made under the discretionary leave provision (art.
XVI—sec. 16.1) of the contract based on the imme-
diate needs of the organization at the time the request
is made. Consequently, it argues, the decision of the
executive director is limited to the time the request is
made and, because circumstances change, decisions on
discretionary leave requests made at other times are
not relevant.
The Respondent also argues that because the Union
is seeking a copy of the requests, not the Respondent’s
action on these requests, ‘‘one does not know how this
relates to the decision denying Knous’s request for a
discretionary leave.’’
Finally, the Respondent argues that the request is
overbroad because the discretionary leave provision,
which allows for this kind of leave for ‘‘educational or
other personal reasons,’’ encompasses a wide range of
possibilities. The Respondent contends that the Union’s
request must be more narrowly tailored to situations
similar to that of Knous in order to the meet the stand-
ard of relevancy.
In addition to contesting relevancy, the Respondent
defends its refusal to provide the information on the
grounds that the information requested is confidential.
It argues that the discretionary leave provision of the
contract, which ‘‘allow[s] leaves for personal rea-
sons,’’ involves personal and confidential matters of
the employee making the request. It further contends
that it has offered to provide the information if the in-
dividual employees sign releases waiving the confiden-
tiality of their requests but that the Union has rejected
this proposal. The Respondent points out that it is not
making a broad claim that all personnel materials are
confidential but instead its claim is narrowly limited to
the requests for discretionary leave at issue.
The General Counsel asserts that the Union ex-
plained to the Respondent that the purpose of the in-
formation it requested, i.e., copies of the discretionary
leave request filed over an approximately 4-month pe-
riod, was to investigate and process the grievance of
Ann Knous, and that this grievance alleged the viola-
tion of multiple contract provisions. The General
Counsel contends that, under the applicable precedent,
the requested information is clearly relevant to the
Union’s performance of its statutory duties to represent
the unit employees by, inter alia, investigating and
processing the grievance.2
As to the Respondent’s contention that there are
confidentiality interests, the General Counsel counters
that the Respondent has not met its burden of proving
that those interests outweigh the Union’s interest in
obtaining the requested information. The General
Counsel contends that the Respondent has not shown
that the information requested concerns intimate or
highly personal matters, i.e., anything more confiden-
tial than ‘‘garden variety of common aliments’’ which
the Board has ordered employers to provide.3 He fur-
ther argues that the Respondent has failed to show that
in the normal course of its operations it keeps this in-
formation confidential or that the employees have re-
quested or expected that the information be kept con-
fidential.
C. Discussion
1. Relevancy
The law in this area is clear. An employer has a
duty to provide upon request information relevant to
the union carrying out its statutory duties and respon-
sibilities. Where, as here, the requested information
concerns information pertaining to employees within
the bargaining unit it is presumptively relevant.4 The
standard for relevancy is a liberal discovery-type stand-
ard,5 i.e., the information requested need not nec-
essarily be dispositive of the issue between the parties,
it must only have some bearing on it.6
As the Supreme Court stated in NLRB v. Acme In-
dustrial Co., 385 U.S. 432, 437 (1967), ‘‘This discov-
ery-type standard decided nothing about the merits of
the union’s contractual claims.’’ The Board has stated
similarly: ‘‘An employer must furnish information that
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Pfizer, Inc., 268 NLRB at 918, quoting Conrock Co., 263 NLRB
1293, 1294 (1982).
8 Id.
9 Acme Industrial, supra at 438.
10 E.g., Conrock Co., 263 NLRB 1293, 1294 (1982), enfd. 742
F.2d 1371 (9th Cir. 1984).
11 See, e.g., Remington Arms Co., 298 NLRB at 273.
12 As for the Respondent’s contention that the Union did not co-
operate with its offer of accommodation—i.e., its offer to give the
Union the requests for discretionary leave for which the employees
had signed releases—we note that for an employer to have a defense
of accommodation, it must first prove its claim of confidentiality.
See Resorts International Hotel, 307 NLRB 1437, 1483 (1992),
enfd. 996 F.2d 1553 (3d Cir. 1993).
13 Washington Gas Light Co., 273 NLRB 116 (1974).
is of even probable or potential relevance to the
union’s duties.’7
More particular to the instant facts, the Board and
the courts have held that information which aids in the
arbitral process is relevant and should be provided re-
gardless of whether the request for information is at
the grievance stage or made after the parties have
agreed to proceed to arbitration.8 Such an approach to-
ward the process of exchanging information encour-
ages the resolution of disputes short of full-fledged ar-
bitration so that the arbitration system is not ‘‘woefully
overburdened.’’9
We find no merit in the Respondent’s contentions
that the Union’s request is overbroad. With respect to
the Respondent’s contention that the request is
overbroad because it asks for information with respect
to decisions made at a different time, we note that the
Union has limited its request to slightly more than 4
months. The Respondent has presented no evidence to
show that within this timeframe the circumstances are
so disparate from those existing at the exact time of
Ann Knous’s request for discretionary leave that the
other requests for discretionary leave would be irrele-
vant.
With respect to the Respondent’s contention that the
request is overbroad because it is not limited to situa-
tions similar to the request by Knous, a union has the
right and the responsibility to frame the issue and ad-
vance whatever contentions it believes may advance
the successful resolution of a grievance.10 Here, the
Union wants to examine other requests—of whatever
nature—made under the discretionary leave provision
of the contract and limited to an approximately 4-
month period. This information may be of use to the
Union with regard to the alleged violations of the con-
tract which it claims in the grievance, i.e., in deciding
whether to proceed with Knous’s grievance and in
processing the grievance.
With respect to Respondent’s contention that the in-
formation the Union seeks is irrelevant because the
Union does not also seek the Respondent’s disposition
of these requests, the Union is entitled to know what
types of discretionary leave have been requested. The
Respondent is not entitled to refuse to supply relevant
information on the basis of its belief that the Union
should have asked for more. Accordingly, we find that
the Respondent has not presented evidence which is
sufficient to overcome the presumption that the infor-
mation sought is relevant.
2. Confidentiality
The Supreme Court in NLRB v. Detroit Edison Co.,
440 U.S. 301 (1979), found that, in certain situations,
confidentiality claims may justify a refusal to provide
relevant information. In making these determinations,
the trier of fact must balance the union’s need for the
information sought against the legitimate and substan-
tial confidentiality interests of the employer.11 How-
ever, it is also well settled that as a part of this bal-
ancing process, the party making a claim of confiden-
tiality has the burden of proving that such interests are
in fact present and of such significance as to outweigh
the union’s need for the information.
The Respondent has not met its burden of showing
that it has legitimate and substantial confidentiality in-
terests which justify its refusal to supply the requested
information. The Respondent never informed the em-
ployees that the information requested would be kept
confidential, and there is no evidence that the employ-
ees requested that it keep these records confidential.
The Respondent urges that leaves can be granted for
‘‘personal reasons’’ and asserts that by definition
‘‘personal reasons’’ involve personal and confidential
matters of the employee who requested the leave.
Under the terms of the collective-bargaining agreement
employees can make requests for ‘‘educational study
or other personal reasons.’’ The Respondent has not
presented any evidence as to whether employees, in
fact, have requested leave for ‘‘personal reasons’’
other than educational study. Assuming that some of
the requests were for reasons other than educational
study, we disagree with Respondent that all such re-
quests by definition must involve confidential matters.
They might involve a wide range of reasons including
many which do not involve significant confidentiality
concerns. It is the Respondent’s burden to show that
the reason cited in fact involved such confidentiality
interests.12 However, even if it were able to meet that
burden with respect to certain requests, the defense
would only be relevant to those requests and would not
constitute a defense to Respondent’s blanket refusal to
supply information.13 We conclude that there is no
basis here for finding that any of the requested infor-
mation involves significant confidentiality concerns.
Therefore, we find that the Respondent was obligated
341JACKSONVILLE AREA ASSOCIATION FOR RETARDED CITIZENS
14 As noted above, there is nothing before us to indicate that any
of the requested information involves significant confidentiality in-
terests. We will, however, permit the Respondent at the compliance
stage to make a particularized showing that specific records sought
by the Union involve legitimate significant confidentiality concerns
requiring a balancing of the Union’s need for the information against
those confidentiality interests.
15 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.’’
to supply the information requested and that by refus-
ing to do so it has violated Section 8(a)(5) and (1).14
CONCLUSIONS OF LAW
1. Jacksonville Area Association for Retarded Citi-
zens is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and
is a health care institution within the meaning of Sec-
tion 2(14) of the Act.
2. General Service Employee Union, Local 73, of
the Service Employees International Union, AFL–CIO
is a labor organization within the meaning of Section
2(5) of the Act.
3. The Union is the exclusive collective-bargaining
representative within the meaning of Section 9(a) of
the Act of certain employees in the following appro-
priate unit:
All full-time and regular part-time non-profes-
sional employees including assistant teachers,
home managers, developmental trainers, secretar-
ies, residential aides, assistant coordinators resi-
dential services, cooks, head cooks, drivers, head
drivers, P.T. services workers, child development
services workers, relief home manager, residential
aides, head custodian, licensed practical nurses,
client services workers, CILA assistant coordina-
tors, respite care workers, office manager, senior
accounting clerks, dental assistants, language de-
velopment services worker and on-call substi-
tutes/respite care workers employed by the Em-
ployer at its Jacksonville, Jerseyville and White-
hall, Illinois facilities; but excluding all profes-
sional employees, managerial employees, con-
fidential employees, guards and supervisors as de-
fined in the Act.
4. By failing and refusing to furnish to the Union
copies of each discretionary leave request that has been
filed by unit employees from November 22, 1992, to
April 1, 1993, as requested in relation to the grievance
of Ann Knous, the Respondent has violated Section
8(a)(5) and (1) of the Act.
5. The unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in an
unfair labor practice within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it cease
and desist and take certain affirmative action that we
find necessary to effectuate the policies of the Act.
ORDER
The Respondent, Jacksonville Area Association for
Retarded Citizens, Jacksonville, Illinois, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing or failing to bargain in good faith with
the Union by failing to furnish to the Union informa-
tion relevant to the processing of grievances or the ad-
ministration of the collective-bargaining agreement.
(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.
2. Take the following affirmative action necessary to
effectuate the policies of the act.
(a) On request, furnish the Union a copy of each
discretionary leave request that by unit employees has
been filed from November 22, 1992, to April 1, 1993.
(b) Post at its facility in Jacksonville, Illinois, copies
of the attached notice marked ‘‘Appendix.’’15 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 33, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 notices are not al-
tered, 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.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through any representa-
tive of their own choice
To act together for mutual aid or protection
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain in good faith with
General Service Employee Union, Local 73, of the
Service Employees International Union, AFL–CIO by
refusing to furnish information relevant to the process-
ing of grievances or the administration of the collec-
tive-bargaining agreement.
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, on request, furnish the Union with a copy
of each discretionary leave request that has been filed
by unit employees from November 22, 1992, to April
1, 1993.
JACKSONVILLE AREA ASSOCIATION FOR
RETARDED CITIZENS