Kaleida Health

National Labor Relations Board - Board Decisions

Jun 1, 2011

356 N.L.R.B. 1373 (N.L.R.B. 2011)

KALEIDA HEALTH, INC. 1373
Kaleida Health, Inc. and Communication Workers of
America, Local 1168. Case 3–CA–27507
June 1, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On October 18, 2010, Administrative Law Judge Mark
Carissimi issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and the record
in light of the exceptions and briefs2 and has decided to
affirm the judge's rulings, findings,3 and conclusions, and
to adopt the recommended Order as modified.4
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Kaleida
Health, Inc., Tonawanda, New York, its officers, agents,
successors, and assigns, shall take the action set forth in
the recommended Order as modified.
Substitute the following for paragraph 2(b).
“(b) Within 14 days after service by the Region, post at
its DeGraff Memorial Hospital in Tonawanda, New
York, copies of the attached notice marked “Appendix.”9
Copies of the notice, on forms provided by the Regional
Director for Region 3, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
1 Member Pearce is recused and did not participate in the considera-
tion of this case
2 We deny the Respondent’s request for oral argument, as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
3 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1), Member Hayes relies solely on the Respondent’s fail-
ure to offer a reasonable accommodation of the Union’s request for
incident and STARS (an electronic system for documenting incidents
regarding patient care) reports. Member Hayes also finds that the ap-
propriate affirmative remedy is to order the parties to bargain for a
mutually acceptable accommodation of their respective interests.
4 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at their own expense, a copy of the
notice to all current employees and former employees
employed by the Respondent at any time since January 4,
2010.”

Kevin Kitchen and Linda Leslie (on brief), Esqs., for the Gen-
eral Counsel.
Robert Weissflach, Esq. (Harter, Secrest & Emery LLP), of
Buffalo, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was
tried in Buffalo, New York, on June 21 and August 10, 2010.1
The charge was filed on January 19, 2010, and the complaint
was issued March 31, 2010.
The complaint alleges that since early January 2010, the Re-
spondent has refused to provide the Union, pursuant to its No-
vember 5, 2009 request, the following information: “Records
of all accidents reports, Star forms and nurses notes for all falls
regarding patients from the last 6 months” in violation of Sec-
tion 8(a)(5) and (1) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a not-for-profit corporation, with offices
and places of business in the Western New York area, has been
engaged in the operation of acute care hospitals and other
health care institutions, including DeGraff Memorial Hospital
in Tonawanda, New York. Annually, Respondent, in conduct-
ing its business operations, derives gross annual revenues in
excess of $250,000 and purchases and receives at its western
New York facilities, goods valued in excess of $50,000 directly
from points located outside the State of New York. The Re-
spondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. I further find that the Respondent is a health care insti-
tution within the meaning of Section 2(14) of the Act. The
1 On June 21, 2010, Administrative Law Judge John Clark opened
the hearing in this matter. Because of a death in the family of a witness
for the General Counsel, the case was postponed until August 10, 2010,
before any testimony was taken. Because of a conflict in the schedule
of Judge Clark the case was reassigned to me.
356 NLRB No. 171

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1374
Respondent admits, and I find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Request for Information
The parties have entered into a series of collective-
bargaining agreements covering a unit of registered nurses
(RNs) at the Respondent’s DeGraff Memorial Hospital facility,
the most recent of which is effective by its terms from June 1,
2008, through May 31, 2011. The agreement contains a griev-
ance-arbitration procedure. There are approximately 200 RNs
in the bargaining unit. The DeGraff Memorial Hospital con-
tains both an acute care facility and a skilled nursing facility, at
times referred to as the long-term-care facility. There are ap-
proximately 10 RNs in the skilled nursing facility, with the
remainder being employed in acute care.
On October 20, 2009, RN Kim Andrews, who worked in the
skilled nursing facility, was given a corrective action form by
Supervisor Kathleen Murphy indicating that Andrews was sus-
pended, pending review for termination (R. Exh. 1, attachment
A). The corrective action form indicates that Andrews was
suspended for:

Failing to report an accident incident, failure to document an
accident incident, failure to notify family or physician of acci-
dent incident. Failure to use sound nursing judgment. Risk-
ing a resident’s safety during transfer.

According to the corrective action form, on October 20,
2009, Andrews was notified that a resident at the skilled nurs-
ing facility had fallen. As the RN on duty, Andrews assessed
the resident for injuries and decided not to complete an incident
report because the resident informed her he was not injured.
The corrective action form further indicates that Andrews lifted
the resident from the floor with a gait belt, rather than follow-
ing the existing practice of using a mechanical lift. In addition,
the corrective action form noted that Andrews failed to notify
management, the resident’s physician, or the family, all of
which are standards in the facility. Finally, the corrective ac-
tion form indicates Andrews was called back to the facility to
complete an incident report, which she had failed to do at the
time of the occurrence.
On October 21, 2009, Union Steward Karen Howard, filed a
grievance regarding Andrews’ suspension. On October 23,
2009, Ron Hosinski, a union vice president, by letter, requested
that the Respondent provide all anecdotal notes pertaining to
the incident; any and all witness statements and any previous
discipline received by Andrews. The Respondent provided the
requested information.
On November 3, 2009, Andrews was terminated after the
conclusion of the Respondent’s investigation into the incident
that occurred on October 20, 2009 (R. Exh. 1). On November
5, 2009, the Union filed a grievance regarding Andrews’ termi-
nation. On the same date, Hosinski, by letter, requested infor-
mation from Kathy Murphy, the manager of the skilled nursing
facility, regarding the grievance. The request sought the fol-
lowing information:

1. Employee’s calendar for the past six (6) months;
2. All anecdotal notes pertaining to the incident;
3. Any and all witness statements;
4. Personnel file;
5. Previous disciplines;
6. Records of all accident reports, Stars forms, nurse
notes for all falls regarding patients from last 6 months;
and
7. Copies of all discipline resulting from failure to fol-
low hospital policy and procedure.

Prior to the Union submitting its November 5, 2009 infor-
mation request, it had been investigating the circumstances of
the incident surrounding Andrews’ discharge. During the Un-
ion’s investigation of the grievance, other nurses reported that it
was not reported every time a patient fell and, at times, not
every step of the reporting policy was followed.
The record establishes that the acute care department at
DeGraff Memorial Hospital uses the STARS electronic system
for documenting incidents regarding patient care. The skilled
nursing facility at the hospital does not use the STARS system,
but rather keeps records of incidents involving patient care on
paper documents. (Tr. 36, 46, 87–88.)
In mid-November 2009, Howard called Maria Cindrich, the
senior human resources generalist at DeGraff Memorial Hospi-
tal, to inquire about the status of the Union’s November 5 in-
formation request.2 According to Howard, Cindrich replied
that she was working on the request and would get back to
Howard.
Cindrich testified that when she received the Union’s No-
vember 5 information request, she was initially not aware that
the hospital did not use STARS reports in skilled nursing, but
was informed of that by someone in hospital administration.
She testified that she “may have” told Howard that the hospital
did not use STARS reports in skilled nursing (Tr. 115–116).
Importantly, however, Cindrich indicated that Howard never
said that she was only seeking documents confined to skilled
nursing (Tr. 112).
Corie Gambini, the union’s executive vice president, testified
that she had a conversation with Howard in November 2009 in
which Howard indicated she had received much of the infor-
mation requested on November 5, but she had not received the
incident reports, STARS reports, or nurses notes.
On November 25, 2009, Cindrich sent an email to Howard
requesting clarification as to what the Union was seeking in
paragraph 5 of its November 5 request. (Copies of all disci-
pline resulting from failure to follow hospital policy and proce-
dure.) Howard replied that the Union was seeking information
regarding discipline given to employees for not following hos-
pital policy regarding patient care. (GC Exh. 7.)
On December 7, 2009, a meeting was held between Howard,
Gambini, Christina Khushalani, the administrator of the skilled
nursing facility, and Kathy Murphy, the director of nursing for
the skilled nursing facility, in which the Union’s November 5
information request was discussed. Howard testified that at this
2 Cindrich manages the day-to-day operations of the human re-
sources department at DeGraff Memorial Hospital. She is involved in
the grievance process and is responsible for gathering information
sought pursuant to requests made by the Union.

KALEIDA HEALTH, INC. 1375
meeting the Union agreed that it would reduce the time period
for the information requested in paragraph 6 of its request (rec-
ords of all accident reports, STARS forms, and nurses notes for
all falls regarding patients from last 6 months) from 6 months
to 3.
Gambini testified that at the December 7 meeting she indi-
cated that an employee had been terminated and was unem-
ployed and that it was taking months to get the information the
Union had requested. Gambini indicated that the Union needed
an answer on what the Respondent was going to do, or the Un-
ion would have to file a NLRB charge. When Murphy and
Khushalani indicated that a substantial amount of information
was sought and it would be very time consuming to compile,
Gambini offered to reduce the time period to 3 months, as she
was sensitive to the amount of time to take to compile the in-
formation. She indicated that if the Union did not obtain suffi-
cient information within a 3-month period to evaluate the
grievance, she would request another 3 months of the same
information.
Cindrich also testified regarding the December 7 meeting.
She testified that Howard asked if anyone had been disciplined
for the same reason as Andrews. Both Murphy and Khushalani
indicated that no one in the skilled nursing department had ever
been disciplined or terminated for failure to follow procedure
and failure to report an incident. Cindrich testified that Howard
and Gambini did not specifically ask whether such discipline
has been imposed in the remainder of the facility. She further
testified that Howard and Gambini, when discussing incident
reports, did not specifically ask for information regarding the
rest of the DeGraff Memorial facility. (Tr. 116.) She also testi-
fied, however, that there was no discussion of STARS forms at
the December 7 meeting (Tr. 118). After the meeting, Howard
had a conversation with Murphy, who requested that she be
able to provide information in increments. Howard agreed to
that approach.
On December 17, 2009, Howard sent an email to Cindrich
regarding the information request. In her email, Howard
acknowledged that the Union was seeking a lot of information
about “Quality.” Howard explained the basis for the request by
indicating:

. . . the employee was terminated based on the fact that she did
not follow policy. I want to see the report so I can be assured
that the patient was gotten off the floor using the hoyer, each
and every time, I also need to see that the family was contact-
ed each and every time and that a doctor was contacted to as-
sess the patient. I hope this helps. [GC Exh. 8.]3

By late December 2009, the Respondent had not yet provid-
ed the information requested in paragraph 6 of the Union’s
November 5 request. There was some discussion between
Howard and Cindrich regarding Howard coming to Cindrich’s
office to review that information.
On December 30, 2009, Gambini sent an email to Cindrich
that was copied to Michael Connors, the Respondent’s associ-
3 The record establishes that a Hoyer lift is a mechanical lift that
hospital policy dictates should be used to assist in picking up a patient
who has fallen.
ate general counsel for labor and employment law. Gambini
indicated that the Union was now being told the information in
paragraph 6 of the Union’s request was confidential and could
not be sent to the Union. Gambini referred to the fact that Cin-
drich had offered to let Howard come to her office and review
the information requested in paragraph 6. (R. Exh. 2.)
On the same date, Connors sent Gambini the following e-
mail in response:

I am trying to get into the middle of this. I believe the infor-
mation requested is the same that would be found on the
STARS reports etc. To that end, it is quality assurance mate-
rial and normally not disclosable. However, I would be more
than willing to treat it the same as the information on the
STARS report and to review it or have someone review it to
determine whether there is exculpatory information contained
therein. [R. Exh. 2.]4

Later on December 30, 2009, Howard sent an email to Cin-
drich asking if it was possible for her to come to the office to
start to review the information. Cindrich replied that she was
waiting to hear from Connors. (GC Exh. 9.)
On January 5, 2010, Howard, by email, asked Cindrich if
there was any update regarding the information request. On
January 6, 2010, Cindrich replied that she was waiting to hear
from Connors. Later on January 6, in an email to Cindrich,
Howard and Connors, Gambini indicated that if the Respondent
was unable to provide the information to the Union, the Union
believed that it may have to have the NLRB make a decision on
the matter. On January 7, 2010, Connors responded to Gambini
in an email asking again if this information request could be
handled “. . . the same as we handle this in any STARS reports.
I don’t want to get into long legal fight when we can certainly
utilize a method that would serve both our needs.” Gambini
responded in an email indicating that the Union believed it had
a legal right to the incident reports and STARS reports and that
4 On June 24, 2009, Connors sent an email to the Union in which he
proposed that the parties enter into a memorandum of understanding
(MOU) regarding the release of STARS reports to the Union (R. Exh.
3). The record establishes, however, that the parties never executed the
proposed MOU regarding the release of STARS reports.
The parties did execute a MOU regarding the release of information
to the Union pursuant to the Respondent’s “Root Cause Analysis”
procedure. (R. Exh 3.) The “Root Cause Analysis” is a process used
by the Respondent to determine if changes are necessary to rectify a
systemic problem. In sum, the MOU indicates that the Root Cause
Analysis process will not be utilized as an investigatory tool for pur-
poses of administering discipline. Therefore, employees are not per-
mitted to have union representation at Root Cause Analysis confer-
ences. The agreement provides that incident investigations and the
imposition of discipline must occur prior to an employee being asked to
attend a Root Cause Analysis conference. The MOU also specifically
indicates that “no discipline can be imposed nor will any discipline be
advanced as a result of information gained during a Root Cause Analy-
sis conference.” Finally, the agreement provides that, pursuant to a
request by the Union, if the Root Cause Analysis conference developed
information “clearing an employee who was disciplined” the infor-
mation will be forwarded to the Union.
Connors testified that when he sent his December 30, 2009 email he
mistakenly believed that the Union had agreed to his proposal with
regard to the release of STARS reports.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1376
the information was needed to evaluate the Andrews grievance.
(GC Exh. 10.)
Gambini credibly testified, without contradiction, that in
January 2010 she and Connors discussed the offers he had
made in his December 30, 2009, and January 7, 2010, emails to
review the information requested in incident reports and
STARS reports to determine if there was exculpatory infor-
mation contained in them. Gambini suggested to Connors that,
as with other information requests involving patient infor-
mation, identifying information about the patient could be re-
dacted, except for the medical record number. Gambini ex-
plained to Connors that the Union wanted to see the accidents
that were reported and what was documented on the form. She
indicated the medical record was necessary in order to review
the nurses’ notes regarding the reported incident. (Tr. 57.)
Connors stated that the information would not be disclosed
directly to the Union because it was quality assurance infor-
mation (Tr. 67). Connors did not explain further why the Re-
spondent considered the requested information to be confiden-
tial (Tr. 89). Connors proposed that either he or someone else
review the requested records and provide to the Union a list of
employees who did not make the appropriate notifications re-
garding a patient’s fall or use the appropriate lift to pick up the
patient. Gambini informed Connors that this proposal was not
acceptable to the Union because her understanding was that a
large amount of documentation would have to be reviewed and
that she did not believe the Respondent would review the in-
formation with the same diligence as the Union, since the Un-
ion has the duty to represent the grievant. In addition, she indi-
cated that if the case went to arbitration, the Union would need
the actual documents to present to the arbitrator. (Tr. 59–60.)
At the hearing, Gambini explained that the Union sought the
disputed information in order to determine whether there was
any evidence of disparate treatment with respect to the manner
in which the Respondent handled the Andrews termination (Tr.
60). She indicated that the information sought would have
substantial bearing on whether she recommended that the An-
drews grievance be arbitrated (Tr. 61).
The record establishes that by January 2010 the Union had
obtained all of the other information contained in its November
5, 2009 request, except for the information sought in paragraph
6. On January 19, 2010, the Union filed the charge in the in-
stant matter.
Since 1993 the Respondent has maintained a “Long Term
Care Incident Reporting Policy” requiring that “Any happening
that is not consistent with the operation of the Skilled Nursing
Facility or the routine care of a patient must be reported to the
Administration, Risk Management and the department con-
cerned.” (R. Exh. 5.) Since 1999 a similar policy has existed at
Respondent’s acute care facilities requiring that such reports be
entered into the STARS reporting system (R. Exh. 6). At the
trial, Connors credibly testified, without contradiction, that
incident reports, whether paper or electronic, are generated for
quality assurance purposes and are not used to impose disci-
pline. He further explained, however, that an incident report
could raise a question as to whether or not there should be an
investigation of an employee for possible discipline. (Tr. 125.)
Connors also testified that the Union’s request for “accident
reports” in its November 5, 2009 request was, in his view, syn-
onymous with a request for what the Respondent referred to as
incident reports (Tr. 126).
The incident report form introduced into evidence at the
hearing (R. Exh. 8) has a heading indicating “Confidential
Quality Assurance Document.” The form reflects entries for
the patient’s name and medical record number and seeks a sub-
stantial amount of information regarding an incident in check-
list form. For example, there is an area where information re-
garding all those notified of the incident is set forth. The men-
tal status of the patient prior to the incident is also noted on the
form. The form seeks information in the following eight cate-
gories: surgical procedures; employee incident; falls; intrave-
nous/blood; medication; miscellaneous safety; and treat-
ment/procedure. There are also sections regarding the type and
location of an injury. Finally, the form provides an area where
additional comments may be made.
Connors testified that it was his decision not to provide the
requested information to the Union based on prior conversa-
tions he had with individuals in risk management (Tr. 131).
Connors further testified that the Respondent treated incident
reports and STARS reports as confidential because “we have to
pursuant to several New York State statutes.” (Tr. 125.) When
asked by counsel for the General Counsel which State statutes
require the Respondent to treat these reports as confidential,
Connors indicated that he believed there were provisions in
both the education law and the public health law, but admitted
he not did know the specific statutes (Tr. 130).
B. The Confidentiality Defense
In its brief, the Respondent argues that its incident reports,
which are quality assurance documents, are to be considered
confidential and prohibited from disclosure by New York Pub-
lic Law, Sections 2805-j; 2805-k; 2805-j; and 2805-m (2); and
New York Education Law, Section 6527.5
The relevant provisions of the applicable New York statutes
are as follows:

2005-j Medical, dental and podiatric malpractice prevention
program

1. Every hospital shall maintain a coordinated pro-
gram for the identification and prevention of medical, den-
tal and podiatric malpractice. Such program shall include
at least the following:
(a) The establishment of a quality assurance committee
with responsibility to review the services rendered in the
hospital in order to improve the quality of medical, dental
and podiatric care of patients and to prevent medical, den-
tal and podiatric malpractice. Such committee shall over-
see and coordinate the medical, dental and podiatric mal-
practice prevention program and shall ensure that infor-
mation gathered pursuant to the program issue is utilized
to review and revise hospital policies and procedures. At
least one member of the committee shall be a member of
the governing board of the hospital who is not otherwise
5 The Respondent does not contend that the requested nurses notes
are confidential pursuant to the provisions of New York State law.

KALEIDA HEALTH, INC. 1377
affiliated with a hospital in an employment or contractual
capacity;
(b) A medical, dental and podiatric staff privileges
sanction procedure through which credentials, physical
and mental capacity and competence in delivering health
care services are periodically reviewed, and reviewed as
otherwise warranted in specific instances and circum-
stances, as part of an evaluation of staff privileges;
(c) The periodic review and the review as otherwise
warranted in specific instances and circumstances of the
credentials, physical and mental capacity and competence
in delivering health care services of all persons who are
employed or associated with the hospital;
(d) A procedure for the prompt resolution of grievanc-
es by patients or their representatives related to accidents,
injuries, treatment and other events that may result in
claims of medical, dental or podiatric malpractice;
(e) The maintenance and continuous collection of in-
formation concerning the hospital’s experience with nega-
tive health care outcomes and incidents injurious to pa-
tients, patient grievances, professional liability premiums,
settlements, awards costs incurred by the hospital for pa-
tient injury prevention and safety improvement activities;
(f) The maintenance of relevant and appropriate infor-
mation added pursuant to paragraphs (a) through (e) of this
subdivision concerning individual physicians, dentists and
podiatrists within the physician’s dentist’s or podiatrist’s
personnel are credentials file maintained by the hospital;
(g) Educational programs dealing with patient safety,
injury prevention, staff responsibility to report profession-
al misconduct, legal aspects of patient care, improved rev-
ocation with patients and causes of malpractice claims for
staff personnel engaged in patient care activities;
(h) Continuing education programs for medical and
dental and podiatric staff in areas of specialty;

Section 2805-k deals with the granting of medical privileges
to physicians, dentists or podiatrists; Section 2805-l deals with
mandatory reporting requirements for deaths, impairments of
bodily functions, fires, equipment malfunction, poisoning,
strikes, disasters or other emergency situations, or termination
of any service vital to the continued safe operation of the hospi-
tal.
Section 2805-m (2) provides as follows in relevant part:

Notwithstanding any other provisions of law, none of the rec-
ords, documentation or committee actions or records required
pursuant to sections twenty-eight hundred five-j and twenty-
eight hundred five-k of this article nor any incident reporting
requirements imposed upon diagnostic and treatment centers
pursuant to the provisions of this chapter shall be subject to
disclosure under article six of the public officers law or article
thirty-one of the civil practice law and rules, except as herein-
after provided or as provided by any other provision of law.

New York Education Law, Section 6527 (3) provides in rel-
evant part:

Neither the proceedings of the records relating to performance
of a medical or quality assurance review function for partici-
pation in the medical and dental malpractice prevention pro-
gram for any report required by the department of health pur-
suant to section twenty-eight hundred five of the public health
law . . . shall be subject to disclosure under article thirty-one
of the civil practice law and rules except as herein provided or
as provided by any other provision of law.

The Respondent attached to its brief what it contends is rele-
vant legislative history regarding Section 6527 (3) of the New
York Education Law.6 The attached document is entitled
“Memorandum of the Office of Mental health” and provides, in
relevant part:

Section 6527 (3) of the Education Law, in part, excludes from
discovery certain records and materials compiled by a general
hospital during an internal review by an individual or commit-
tee performing a medical quality of care review function. The
purpose of this exclusion is to assure that the review is thor-
ough in its examination of the hospital’s practices and proce-
dures. The discovery exclusion enhances the objectivity of
the review process and assures that medical review commit-
tees may frankly and objectively analyze the quality of health
services rendered in the hospital (Chapter 990 of the Laws of
1971, Committee on Rules-memorandum in support). As a
result, hospitals may investigate incidents, learn from past
mistakes, rectify faulty practices and improve future patient
care.
III. ANALYSIS AND CONCLUSIONS
A. The Relevancy of the Requested Information
An employer has a statutory obligation to provide requested
information that is potentially relevant in fulfilling its responsi-
bility as the employees’ exclusive bargaining representative,
including its responsibilities regarding the processing of griev-
ances. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
The standard for relevancy is a broad, discovery type standard.
Id. at 437. Therefore, the information must have some bearing
on the issue between the parties but does not need to be disposi-
tive. The Board and the courts have found that information that
aids the arbitral process is relevant and generally should be
provided. In this regard, the furnishing of information encour-
ages the resolution of disputes, short of arbitration, and assists
the arbitration system in not becoming overburdened. Acme
Industrial, supra at 437 fn. 6; Pennsylvania Power & Light Co.,
301 NLRB 1104 (1991). See also Beth Abraham Health Ser-
vices, 332 NLRB 1234 (2000); Ohio Power Co., 216 NLRB
987, 991 (1975).
In the instant case, a portion of the disputed information
sought by the Union (the incident reports and STARS reports)
is information regarding the conduct of bargaining unit em-
ployees. The Board has long held that information concerning
6 The Respondent also attached a document entitled “Governor’s
Program Memorandum” from the New York State Legislature Annual-
1986 which it contends is the relevant legislative history of New York
Public Health Law, Section 2805. Because the attached provision of the
Governor’s program memorandum does not specifically refer to Sec-
tion 2805, I find it to be of no probative value in determining the intent
of the Legislature regarding that section.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1378
unit employees’ terms and conditions of employment is consid-
ered to be presumptively relevant to the union’s duty to repre-
sent the employees. Pavilion at Forrestal Nursing & Rehabili-
tation, 346 NLRB 458, 463 (2006); Atlanta Hilton & Tower,
271 NLRB 1600, 1602 (1984), and Curtis-Wright Corp.,
Wright Aeronautical Division, 145 NLRB 152 (1963), enfd.
347 F.2d 61 (3d Cir. 1965).
In Borgess Medical Center, 342 NLRB 1105 (2004), the
Board found information strikingly similar to the disputed in-
formation here to be relevant and necessary to a union in prepa-
ration for the arbitration of a grievance regarding the discharge
of an employee. In Borgess, a RN was discharged after com-
mitting a medication error and attempting to cover up the error
by failing to file an incident report. The incident report was
ultimately filed by the nurse’s supervisor. A grievance was
filed regarding the discharge and the union requested incident
reports concerning other medication errors. The employer re-
fused to provide the requested information claiming it was con-
fidential and protected from disclosure by State law. The
Board found that the requested information was relevant, but
that the employer had established a legitimate confidentiality
interest in the incident reports. The Board further found that
the employer failed to satisfy its duty to accommodate its inter-
ests with the union’s need for the information. While the Board
found that the employer violated Section 8(a)(5) and (1) of the
Act by failing to offer the union a reasonable accommodation,
it did not order the employer to produce the documents, or en-
gage in further bargaining over their provision, because it found
that the union did not have a present need for the requested
information since the underlying grievance had already been
arbitrated and decision had been issued by the arbitrator.
The Board also found requested patient care information to
be relevant and necessary with regard to the processing of a
grievance regarding employee discipline in Howard University,
290 NLRB 1006 (1988). In that case a medical technologist
certified that blood to be used in a transfusion was compatible
with the patient. During a transfusion, the patient died and the
employer’s investigation revealed that two of the five units of
blood were, in fact, incompatible with the patient. The em-
ployee was discharged. The union filed a grievance and re-
quested, in preparation for arbitration, the physicians’ and nurs-
es’ progress notes and the autopsy protocol report. The em-
ployer refused to provide the information claiming it was con-
fidential. The Board found the requested information to be
clearly relevant as it “would be of use to the union” in deter-
mining whether the employee’s error was the direct cause of
the death of the patient. Id. at 1007. The Board found that the
employer failed to carry its burden of proof with respect to the
confidentiality of the information and ordered its production.
In LaGuardia Hospital, 216 NLRB 1455 (1982), the Board
found that the union’s need for relevant information contained
in patient charts for use in evaluating grievances that had been
filed regarding employee discipline, outweighed the employer’s
legitimate concerns regarding patient privacy.
When viewed under the standards set forth above, it is clear
that all of the information requested in paragraph 6 of the Un-
ion’s November 5, 2009 letter is relevant and necessary to as-
sess the merits of the grievance involving Andrews’ discharge.
I note the portion of the request involving incident reports and
STARS reports is presumptively relevant as it seeks infor-
mation regarding the conduct of bargaining unit employees.
Beyond that, however, the Union made it clear to the Respond-
ent in Howard’s December 17, 2009, email that it was seeking
the disputed information in order to determine if there was any
evidence of disparate treatment regarding the discharge of An-
drews. At the hearing, Gambini reiterated that the Union was
seeking the information as it believed it to be relevant to the
issue of disparate treatment.
As the cases cited above make clear, the Board applies a
broad discovery type standard in assessing the relevancy of
information requested to evaluate a grievance. As noted in
Howard University, supra at 1007, “The Board’s only function
in such situation is in ‘acting upon the probability that the de-
sired information was relevant and that it would be of use to the
union in carrying out its statutory duties and responsibilities’”
(citations omitted). Accordingly, I find that the evidence in this
case meets this standard and that the information requested by
the Union is necessary and relevant to its evaluation of the
grievance involving Andrews’ termination.
B. Confidentiality
The finding that the requested information is relevant and
necessary to the Union in evaluating the grievance requires an
analysis of the Respondent’s claim that the incident reports are
confidential and privileged from disclosure under New York
State law. A claim of confidentiality must be balanced against
the Union’s need for the information. Detroit Edison. v. NLRB,
440 U.S. 301 (1979).
In the instant case, the Respondent contends that the New
York statutes referred to above have deemed the requested
incident reports to be confidential. The General Counsel con-
tends that the Respondent has failed to establish that the inci-
dent reports are confidential under New York law because it
did not provide any evidence that the information was collected
and maintained pursuant to the state statutes referred to above.
In this regard, the General Counsel argues that Connors did not
indicate to the Union the precise statutes the Respondent relied,
or explain how the incident reports are collected and main-
tained pursuant to the applicable New York statutes.
New York Health Public Law, Sections 2805-j; 2805-k;
2805-l; and 2805-m (2) and New York Education Law, Section
6527 (3) and the legislative history of the latter section estab-
lish that New York State law generally protects from disclosure
quality assurance documents such as the incident reports and
STARS reports at issue. The reason for this policy appears to
be the view that excluding such documents from discovery
enhances the review process by encouraging a frank and objec-
tive analysis of the quality of health services. The goal of this
policy is to investigate incidents, learn from past mistakes, and
improve future patient care. The evidence establishes that the
Respondent maintains its incident reports in accord with this
policy. In this connection, the policy and procedure memoran-
dum issued by the Respondent with respect to filing incident
reports in the STARS system at (R. Exh. 6, p. 4) specifically
indicates:

KALEIDA HEALTH, INC. 1379
It is understood that some events may have to be reported to
certain governmental agencies in accordance with applicable
laws, rules and regulations. It shall be the responsibility of
Risk Management and/or Administration to make any re-
quired reports and to coordinate any investigation by these
agencies. Managers will be required to assist investigations
and corrective actions as appropriate.

Event reports will be reviewed and discussed on a regular ba-
sis to improve patient safety and quality of care.

It is true, as the General Counsel argues, that Connors did
not indicate to the Union the precise statutes that the Respond-
ent relied on in claiming that the requested incident reports
were confidential in nature. However, there is, in fact, New
York State statutes which indicate that generally such docu-
ments are to be considered confidential. The record establishes
that the Respondent uses incident reports and STARS reports as
part of its quality assurance program to improve patient care.
Accordingly, I find that the Respondent has a legitimate con-
cern with regard to the confidentiality of the incident reports
and STARS forms. In making this finding, I am guided by the
Board’s decision in Borgess Medical Center. There, the Board
found that the incident reports sought by the union were pro-
tected from disclosure by a Michigan State statute which indi-
cated that documents that were collected for a professional
review function in a health care facility were to be considered
confidential.7 I can see no meaningful distinction between the
Michigan State statute that deemed as confidential incident
reports made as part of a professional review function and the
New York statutes I have considered herein.
In the instant case, however, the protection from disclosure
to such documents granted by the New York State statutes not-
ed above is not absolute. Public Health Law, Section 2805-m
(2) provides that no records required pursuant to Sections 2805-
j and 2805-k nor any incidents reports that are required shall be
subject to disclosure “except as hereinafter provided or as pro-
vided by any other provision of law.” New York Education
Law, Section 6527 (3) has an identical provision regarding the
exception to the general rule of nondisclosure. Thus, the appli-
cable state statutes recognize that there are situations where
documents such as the incident reports and STARS reports at
issue may have to be disclosed pursuant to other provisions of
law. I find that the instant case presents such a circumstance.
The incident reports and STARS reports requested deal with
records regarding falls by patients. The underlying grievance
in this case involves the discharge of a nurse for the manner in
which she handled the fall of a patient. The Union made clear
to the Respondent that it sought the incident reports and
STARS reports to determine whether there was any evidence of
disparate treatment regarding the manner in which the Re-
spondent has handled such incidents in the past. The infor-
7 Michigan’s Peer Review Statute states: “The records, data, and
knowledge collected for or by individuals or committees assigned a
professional review function in a health facility or agency, or institution
of higher education in this state that has colleges of osteopathic and
human medicine, are confidential, shall be used only for the purposes
provided in this article, are not public records, and are not subject to
court subpoena” MCLA 333.20175 (8); see also MCLA 333.21515.
mation sought is clearly relevant to the Union’s determination
as to whether to arbitrate the Andrews grievance. In this in-
stance, I find that the Union’s need for the information out-
weighs the general policy of confidentiality regarding incident
reports. As noted above, such documents are considered to be
confidential so that there can be a frank and objective assess-
ment of an accident with the aim of furthering patient care.
Under the circumstances of this case, I find that the specific
need of the Union for the information supersedes the general
policy against disclosure. Accordingly, I find the provisions of
the National Labor Relations Act require the requested infor-
mation be provided to the Union. I further find that this result
is in accordance with the exception to confidentiality contem-
plated by New York law under certain circumstances.
The Board’s decision in LaGuardia Hospital supports this
finding. In that case the employer refused to provide patient
charts to a union seeking such information in order to represent
an employee disciplined for alleged error in patient care. The
employer claimed that patient charts were confidential under
New York law. The statute at issue provided that patient charts
were confidential “except as otherwise provided by law or 3rd
party contract.” The Board relied on such language to find that
the confidentiality of the patient’s charts was not absolute. In
that case, as here, the Board found that the union’s need for the
information outweighed the general policy regarding confiden-
tiality. LaGuardia Hospital, supra at 1463.
The Board has found in other cases that a union’s need for
requested documents in order to represent an employee in dis-
cipline cases has outweighed the general claims of confidential-
ity made by an employer. In Howard University the employer
claimed that the records sought by a union to evaluate the
grievance of an employee discharged for an allegedly serious
error in patient care were confidential. The employer’s rules
recognized the confidential nature of the patient’s medical rec-
ords but contained an exception to permit disclosure when re-
quired by “statute.” In this case, the Board again determined
that the Union’s need for the information pursuant to the provi-
sions of the National Labor Relations Act outweighed the gen-
eral policy regarding the confidentiality of patient medical rec-
ords. In Borgess Medical Center, supra, the Board adopted the
administrative law judge’s decision that, although the incident
reports sought by the union were confidential, the union’s need
for the reports in representing a discharged employee out-
weighed the employers interest in withholding them. I note that
the Board made its finding even though the Michigan statute at
issue did not contain a provision permitting the disclosure of
such documents under other provisions of law. On the basis of
all the foregoing, I find that in the instant case the Union’s need
for the requested incident reports and STARS reports out-
weighs the employer’s interest in maintaining their confidenti-
ality.
C. Accommodation
The Board has held that when an employer establishes a le-
gitimate confidentiality interest regarding a request for relevant
and necessary information, it must seek an accommodation of
its concerns with the union’s need for the information. Penn-
sylvania Power Co., 301 NLRB 1104, 1105–1106 (1991); Bor-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1380
gess Medical Center, supra at 1106. In Borgess Medical Cen-
ter, supra at 1106, the Board also held “The burden of formulat-
ing a reasonable accommodation is on the employer; the union
need not propose a precise alternative to providing the request-
ed information unedited.” (Citations omitted.)
The Respondent contends that if it is obligated to provide the
Union the disputed information, it offered a reasonable accom-
modation to the Union order to balance it’s confidentially inter-
est with the Union’s interest in obtaining the information. The
General Counsel contends that the Respondent’s offer of ac-
commodation did not adequately address the Union’s needs as
it did not provide sufficient information to assess the circum-
stances of each incident.
As set forth above, Connors’ offer of accommodation in-
volved either himself or another agent of the Respondent re-
viewing the requested information and providing to the Union a
list of employees who had not made the appropriate notifica-
tions regarding a patient’s fall or use the appropriate lift to pick
up a fallen patient. Gambini did not agree to this proposal. She
indicated to Connors that, because she had been informed that
there was a large amount of records involved, she believed that
the Union would more diligently review the information be-
cause of its duty of representation toward the grievant. She
also indicated that the Union would need the actual documents
to introduce into evidence if the case went to arbitration.
I find that the Respondent’s offer did not fulfill its duty to
accommodate the Union’s need for the information. Connors
offer did not include an offer to provide any evidence regarding
the specific circumstances of any previous incidents involving
fallen patients. The incident report form itself seeks a detailed
description of what each incident involved. In addition, Con-
nors offer did not include any information as to what, if any,
discipline employees named in any incident reports had re-
ceived. In making this finding, I once again rely on the Board’s
decision in Borgess Medical Center. There, in finding that the
employer did not offer a reasonable accommodation to the pro-
vision of unedited incident reports, the Board noted that the
employer did not offer to provide any evidence regarding the
specific circumstances of previous incidents, which would be
necessary to determine if the grievant in that case had been
treated unfairly. In finding the offer to be deficient, the Board
further relied on the detailed information contained in the inci-
dent reports regarding the specifics of what had occurred.
Finally, I do not agree with the Respondent’s contention that
the Union’s entering into a MOU regarding the provision of
certain information obtained in Root Cause Analysis meetings,
supports a finding that the Respondent offered a reasonable
accommodation in the present case. I note that before a Root
Cause Analysis meeting is held, any discipline against an em-
ployee has already been imposed. No discipline can be im-
posed based upon information gained at a Root Cause Analysis
meeting. The MOU between the parties provides that, upon
request by the Union, the Respondent will provide exculpatory
information regarding an employee that arises out of the meet-
ing. In addition, I note that any unit employees present at a
Root Cause Analysis meeting could be asked by the Union to
verify any information given to the Union by the Respondent
regarding previously disciplined employees. The record does
not indicate whether any information given to the Union after a
Root Cause Analysis meeting was in testimonial or documen-
tary form. Thus, it is not clear that the information that may be
disclosed is similar to the detailed information that may be
contained in an incident report or a STARS report.
The fact that the Union agreed to the procedure used by the
parties regarding Root Cause Analysis meetings does not man-
date that the Union accept the offer made by Connors in the
instant case. It is clearly established that a waiver of statutory
rights must be clear and unequivocal. Metropolitan Edison Co.
v. NLRB, 460 U.S. 693, 708 (1983); E. R. Stuebner, Inc., 313
NLRB 459 (1998). The Board has specifically applied this
standard in determining whether a union has waived its right to
information. American Broadcasting Co., 290 NLRB 86
(1988); PPG Industries, 255 NLRB 296 (1981), enf. denied
692 F.2d 753 (4th Cir. 1983). It is clear that the MOU between
the parties regarding Root Cause Analysis does not constitute a
clear and unmistakable waiver of the Union’s right to obtain the
incident reports and STARS reports at issue in the instant case.
D. The Scope of the Request
The Respondent contends that if it is ordered to provide the
information requested in paragraph 6 of the Union’s November
5, 2009 request, it should only be required to provide infor-
mation limited to the skilled nursing facility. The General
Counsel contends that since the request seeks STARS reports,
the Respondent should be ordered to provide information con-
cerning the entire RN unit, encompassing both the skilled nurs-
ing and acute care facilities at Respondent’s DeGraff Memorial
Hospital.
As set forth above, the Union represents a unit of RNs at the
Respondent’s DeGraff Memorial Hospital which includes ap-
proximately 10 nurses in the skilled nursing facility and 190 in
the acute care facility. The Union’s November 5, 2009 request
seeks “records of all accident reports, Stars forms, nurse notes
for all falls regarding patients from last 6 months.” It is clear
that STARS forms are used only in the acute care facility; the
skilled nursing department still uses paper incident report
forms. As noted above, the information request was addressed
to Kathy Murphy, the manager of the skilled nursing facility.
Cindrich credibly testified, without contradiction, that at the
labor-management meeting held on October 7, 2009, Howard
asked if there were any other RNs in the skilled nursing unit
that were disciplined for the same reason as Andrews.
Khushalani and Murphy both indicated that no RNs in skilled
nursing had been disciplined or terminated for failure to follow
the procedure and failure to report an accident. (Tr. 109–110.)
However, Cindrich indicated that during the discussions that
she had with Howard regarding the scope of paragraph 6 of the
Union’s information request, Howard never indicated that she
was only seeking documents confined to the skilled nursing
facility (Tr. 112).
Gambini, who was involved in drafting the Union’s infor-
mation request, testified that by requesting the STARS forms,
the Union was seeking information from the acute facility as
well as skilled nursing. At the hearing, Gambini testified that
patients fall in both parts of the hospital (Tr. 91).
KALEIDA HEALTH, INC. 1381
I find that paragraph 6 of the Union’s November 5, 2009 re-
quest seeks information regarding patient falls for both the
skilled nursing and acute care facilities at the Respondent’s
DeGraff Memorial Hospital. The request specifically refers to
STARS forms, which are used only in the acute care facility.
As explained by Gambini, in addition to the skilled nursing
facility, the Union also sought information regarding the acute
care facility, because patients also fall in that area. Since the
request is limited to seeking information contained in incident
reports and STARS reports regarding the conduct of employees
in the unit of RNs at the Respondent’s DeGraff Memorial Hos-
pital represented by the Union, it seeks presumptively relevant
information.
I do not agree with the Respondent that I should construe the
request to only refer to the skilled nursing facility. To read the
request in that manner would negate the specific reference to it
seeking STARS reports. The fact that the Union directed its
request to the manager of skilled nursing does not require that I
limit the scope of the request to that portion of the unit. In
addition, the fact that the Respondent provided information for
only the skilled nursing facility in responding to the Union’s
request for similar discipline given to employees, does not limit
the scope of the request in paragraph 6. As noted above, a un-
ion must clearly and unequivocally waive its right to relevant
information before a finding limiting its production may be
made. Applying that standard in this case, I find that the evi-
dence on this issue does not establish that the Union waived its
right to seek information regarding any patient falls that oc-
curred within the relevant time period at the acute care facility.
I do find, however, that at the December 7, 2009 meeting
Gambini reduced the time period covered by the Union’s re-
quest to 3 months, with the caveat that the Union would request
an additional 3 months of information, if it was needed to
properly evaluate the grievance. On the basis of all the forego-
ing, I find that the Respondent has failed to provide the Union
with the information requested in paragraph 6 of its November
5, 2009 request, as modified on December 7, 2009, in violation
of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Union is the exclusive collective-bargaining repre-
sentative within the meaning of Section 9(a) of the Act of the
employees in the following appropriate unit:

Except as excluded below, all Registered Nurses in all catego-
ries of employment, employed by Kaleida Health at its
DeGraff Memorial Hospital, 445 Tremont Street will be in-
cluded in the bargaining unit: Cardiac Service Nurse; Clinical
Nurse Educator; Critical Care Nurse; Infection Control Practi-
tioner; Interventional Nurse; Medical-Surgical Nurse; Nurse
Practitioners; Patient Care Coordinator; Residence Care Co-
ordinator; RNFA; Special Procedure Nurse; Staff Nurse SNF;
Surgical Service Nurse. All other employees including, but
not limited to, Registered Nurses who worked in Employee
Health, Human Resources or Risk Management; RCC/Relief
Charge Nurses; Nurse Managers, Associate nurse managers,
Administrative nurse manager, non-nurse professional em-
ployees, office clerical employees, guards and supervisors are
excluded.

2. By failing and refusing to furnish the Union with incident
reports, STARS reports and nurses notes for all falls regarding
patients in relation to the grievance of discharged employee
Kim Andrews, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
With respect to the affirmative portion of the remedy, the
Respondent contends that if a violation of Section 8(a)(5) and
(1) of the Act is found, the appropriate remedy would be an
order requiring it to bargain over an accommodation with the
Union over the provision of the disputed information, rather
than an affirmative order to provide the requested incident re-
ports and STARS reports. The Respondent relies on Metropoli-
tan Edison Co., 330 NLRB 107, 109 (1999), in support of its
position.
The General Counsel contends that the Respondent should
be ordered to furnish the Union all accident reports, STARS
forms and nurses notes for all patient falls for 3 months, and an
additional 3 months of such records, if requested by the Union,
which are relevant to the grievance of Kim Andrews.
In Metropolitan Edison Co. supra, the employer refused the
union’s request for the names of two informants who provided
information to the employer leading to the discharge of an em-
ployee for theft of food from the cafeteria. The employer
claimed that providing the information would result in retalia-
tion against the informants. The Board found that the confiden-
tiality interest was not so substantial as to justify the refusal to
provide any information in response to the union’s request for
the names of the informants. The Board found that the em-
ployer had an obligation to offer an accommodation of its con-
cerns and the union’s need for the information. Accordingly,
the Board ordered the employer to bargain with the union re-
garding providing the names of the informants.
In considering the Respondent’s argument, I note that in
Borgess Medical Center, the Board reiterated its policy that the
burden of formulating a reasonable accommodation is on the
employer and that the union does not have to present any con-
cise alternative to receiving the information unedited.
In the instant case, the Respondent’s proposed alternative did
not meet its burden of establishing a reasonable accommoda-
tion of its interests and the Union’s need for the requested in-
formation. In my view, to order further bargaining in the cir-
cumstances of this case would not be an appropriate remedy.
The record establishes that the Union will not make a determi-
nation as to whether to arbitrate the grievance of discharged
employee Andrews until it has had an opportunity to review the
requested information. There can be an extensive amount of
information contained in an incident report form and such de-
tailed information is necessary to determine issues involving
disparate treatment. With respect to the Union’s request for
nurses notes regarding fallen patients, Respondent has not
raised any objection to their production in this proceeding. To
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1382
give the Respondent another opportunity to bargain over the
provision of the incident report forms and STARS reports,
which I have found were unlawfully withheld, seems unwar-
ranted under the circumstances of this case. This is especially
so when one considers that the underlying grievance in this
case will not be resolved until this collateral dispute regarding
the provision of information is resolved. The Union has indi-
cated its willingness, consistent with the past practice of the
parties, to have the Respondent redact patients’ names from the
information it seeks. The inclusion of the medical record of a
patient in the documents will permit the union to crosscheck
incident reports with the nurse’s notes regarding the incident,
while protecting the anonymity of a patient. In order to assure
the confidential nature of the identities of the patients involved
I will provide for the redaction of patients names and other
safeguards in my Order. In ordering the Respondent to provide
the requested information under the conditions as set forth here-
in, I note that the Board has, in the past, ordered that confiden-
tial information be provided under conditions it specified, ra-
ther than order bargaining over the provision of such infor-
mation, where the circumstances indicate that such a remedy
was appropriate. Pennsylvania Power, 301 NLRB 1104, 1108
fn. 18 (1991).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, Kaleida Health, Inc., Tonawanda, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with the Union by refus-
ing to furnish the Union information relevant to the processing
of a grievance.
(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 effec-
tuate the policies of the Act.
(a) Furnish to the Union, in a timely manner, the information
it requested on November 5, 2009, as modified on December 7,
2009, specifically, records of all incident reports, STARS re-
ports and nurses notes for all patient falls for 3 months, and an
additional 3 months of such records if requested by the Union,
which are relevant to the grievance of discharged employee
Kim Andrews; provided, however that the names of patients
shall be redacted from such records and that upon receipt of
these records the Union, its officers, agents, members, and at-
torneys shall not divulge the information to any other persons
who are not involved in or necessary to the resolution of the
grievance in question.
(b) Within 14 days after service by the Region, post at its
DeGraff Memorial Hospital in Tonawanda, New York, copies
8 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.
of the attached notice marked “Appendix.”9 Copies of the no-
tice, on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at the DeGraff Memorial Hospital any time since
January 4, 2010.
(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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT refuse to bargain in good faith with Commu-
nication Workers of America, Local 1168 by refusing to furnish
information relevant to the processing of grievances. The ap-
propriate unit is:

Except as excluded below, all Registered Nurses in all catego-
ries of employment, employed by Kaleida Health at its
DeGraff Memorial Hospital, 445 Tremont St. will be included
in the bargaining unit: Cardiac Service Nurse; Clinical Nurse
Educator; Critical Care Nurse; Infection Control Practitioner;
Interventional Nurse; Medical-Surgical Nurse; Nurse Practi-
tioners; Patient Care Coordinator; RNFA; Special Procedure
Nurse; Staff Nurse SNF; Surgical Service Nurse. All other
employees including, but not limited to, Registered Nurses
who work in Employee Health, Human Resources or Risk
Management; RCC/Relief Charge Nurses; Nurse Managers,
Associate Nurse Manager, non-nurse professional employees,
9 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

KALEIDA HEALTH, INC. 1383
technical employees, office clerical employees guards and su-
pervisors are excluded.

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, in a timely manner, furnish the Union with the in-
formation it requested on November 5, 2009, as modified on
December 7, 2009, specifically, records of all incident reports,
STARS reports and nurses notes for all patient falls for 3
months, and an additional 3 months of such records if requested
by the Union, which are relevant to a grievance regarding an
employee’s discharge; provided, however, that the names of
patients will be redacted from such records and that, upon re-
ceipt of these records, the Union, its officers, agents, members,
and attorneys, shall not divulge information to any other per-
sons who are not involved in or necessary to the resolution of
the grievance in question.

KALEIDA HEALTH, INC.