Lenox Hill Hospital

National Labor Relations Board - Administrative Judge Opinions

Oct 1, 2014

02-CA-103901 (N.L.R.B. Oct. 1, 2014)

JD(NY)–40–14
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
LENOX HILL HOSPITAL
and Case No. 02-CA-103901
THE NEW YORK PROFESSIONAL NURSES UNION
Gregory Davis, Esq., New York, New York
for the General Counsel
Peter D. Stergios and M. Christopher Moon, Esqs.,
(McCarter and English, LLP, New York, New York)
for the Respondent
Richard M. Betheil, Esq.,
(Pryor Cashman, LLP, New York, New York)
for the Charging Party
DECISION
Statement of the Case
Mindy E. Landow, Administrative Law Judge. A charge in Case No. 02-CA-103901 was
filed by The New York Professional Nurses Union ("the Union") against Lenox Hill Hospital
("Respondent") on April 29, 2013.1 On February 20, 2014, the Regional Director issued a
Complaint and Notice of Hearing("complaint") against alleging that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act ("the Act").
The complaint alleges that Respondent failed and refused to bargain collectively and in
good faith with the Union as the exclusive collective-bargaining representative of unit
employees, consisting primarily of registered nurses (RNs) by failing and refusing to provide
certain relevant information necessary to the Union’s statutory responsibility to represent such
employees. The particulars of the information requests and the Respondent’s responses thereto
will be described in further detail below.
Respondent filed an answer to the complaint denying the material allegations therein
and raising certain affirmative defenses, as will be addressed herein.
The case was heard before me on May 6, 2014. The parties thereafter filed post hearing
briefs. Based my observations of the witnesses, a review of the documentary evidence, my
resolutions of apparent conflicts in the record based upon the foregoing and the inherent
probabilities of the evidence proffered, the record as a whole and the arguments set forth in the
briefs filed by the parties I make the following:

1 All dates are in 2013 unless otherwise specified.
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FINDINGS OF FACT
JURISDICTION
Respondent is a New York corporation which operates a hospital providing patient care,
treatment, and related services at its facility in New York, New York. Annually, the Respondent
derives gross revenues in excess of $250,000 and purchases and receives at its New York
facility products, goods and materials valued in excess of $5,000 directly from points outside the
State of New York. Respondent 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 and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
UNFAIR LABOR PRACTICES
Background
Since 1985, the Union has represented a unit consisting primarily of all full-time and
regular part-time registered nurses (RNs) employed by the Respondent. The current collective-
bargaining agreement ("the Agreement or CBA") between the parties covers the period from
November 1, 2012, through October 31, 2015.
Eileen Toback is the Executive Director of the Union, Maureen McCarthy is the
President, and Kathy Flynn is the Vice-President. At relevant times, Nisha Bannerjee was an
Associate Director of the Union. She left the employ of the Union in December 2013.
Emily Weisenbach and Kiera Stajk are each employed as Directors of Talent and
Organizational Performance within Respondent's Human Resources Department. They are
responsible for, among other things, performing human resource functions, including labor
relations, for nursing and perioperative personnel. Phyllis Yezzo is the Vice-President of
Nursing.
Certain of the information sought by the Union concerns non-unit personnel, in particular
regarding the assignment of nurses’ aides. These employees are responsible for, among other
things, answering telephones, responding to patient call lights, assisting patients to and from
bathrooms, taking vital signs, changing bed linens, repositioning patients, and serving food
trays. At times, as Weisenbach and others testified, if nurses’ aides are not available such
functions may be assumed by registered nurses. The Employer also utilizes aides provided by
outside contractors for one-on-one patient assignments. Until sometime in 2010, such services
were provided by a contractor referred to in the record as Access. More recently such aides are
provided by a contractor called Regent Care.
The Relevant Provisions of the Collective-Bargaining Agreement
At issue here are a series of information requests made by the Union relating to a
grievance filed alleging violations of Article XXVI of the most recent Agreement.
Article XXVI of the Agreement provides, in pertinent part:
1. The Hospital shall continue to implement the currently agreed upon nurse-to-patient
ratios and effective July 1, 2013, the Hospital implement agreed upon nurse-to-patient
ratios (staffing standards) as modified in this agreement. The Hospital shall provide
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qualified RNs on duty to give patients the nursing care that requires the judgment and
specialized skills of a Registered Nurse. The Hospital shall also provide qualified support
personnel on duty in order to meet the nursing care needs of patients and shall also
supply the necessary tools, equipment and supplies necessary for RNs to provide proper
nursing care for their patients.
2. The Hospital will provide to the Union, and the Hospital and the Union will review on a
quarterly basis, actual staffing compared to required staffing (to meet nurse-to-patient
ratios) based on the average daily census.
3. The nurse-to-patient ratios are not and cannot be, sensitive to every change in patient
acuity and activity, and there will be times intermittently or occasionally where there are
variations in the ability to meet guidelines such as uncontrollable or unpredictable
occurrences. These intermittent or occasional times will not be construed as evidence of
the Hospital's failure to meet the staffing standards. Additionally, compliance with staffing
standards will be considered achieved if, in the measured quarter, the average number
of RN FTEs actually worked per pay period is equal to or greater than the sum of RNs
required to meet nurse-to-patient ratios based upon average daily census. The Hospital
continues to be committed to discussing in detail with the union unit level variances, and
discussing possible causes of and solutions to individual unit variances, including
reallocation of staff, and any issues remaining following such discussions shall be
subject to the grievance procedure. On units where the ratios at full census require one
(1) additional nurse being assigned to care for two (2) or fewer patients over the ratios,
the additional nurse may or may not be added based on patient acuity, except where the
nurse's assignment is two (2) critically ill patients.
Section 6 of Article XXVI further provides:
If, at the quarterly review, the Union alleges that the staffing standards routinely are not
being adhered to, the dispute may be brought before a qualified individual to mediate
resolution of the issue. The mediator shall be a neutral individual with expertise in the
subject matter. Settlement agreements reached in the mediation process will be reduced
to writing and signed by both parties, and will be implemented within thirty (30) days
following the signing of the settlement agreement. If the dispute is not settled in
mediation, either party can take it to arbitration pursuant to Article XXXIV (Arbitration) of
this Agreement. The arbitrator's authority in such arbitration shall be limited to a review
as to whether the Hospital has failed, without justification, to adhere to the staffing
standards established hereunder. The sole remedy the arbitrator is empowered to award
is a direction to the Hospital to enter into substantial compliance with the staffing
standards established hereunder.
Another Section of the Agreement, Article XXVII, is entitled “Recruitment and Retention.”
It is a lengthy provision which provides for various work assignment rules, among other things.
Section 8 of this provision of the Agreement provides, in relevant part, as follows:
The Employer and the Union recognize that the performance of non-nursing functions by
registered nurses impedes their ability to deliver quality, cost-effective patient care and is
not intended to be part of their regular scope of responsibilities. The Employer will
continue to investigate and implement systems that support the delivery of patient care
by registered nurses that will minimize non-nursing functions, for example, the clinical
information system, the automated supply and medication distribution system, the
pneumatic tube system for pharmacy and laboratory, the standardization of nursing
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stations and chars and the upgrading and training and support personnel. The registered
nurses have been and will continue to be involved in the evaluation and selection
process of such systems.
The Union's Grievance
Union President McCarthy testified that she received numerous complaints from
registered nurses and union delegates that the contractual ratios were not being adhered to. For
example, on units which required a 1:6 ratio, nurses were caring for 8 or 9 patients and on those
requiring a 1:4 ratio, nurses were being asked to take 5 or 6 patients. There were also frequent
complaints that there was a lack of nurse’s aides on the units, so that the registered nurses
were required to assume those responsibilities as well. As a result the Union decided to file a
grievance over these matters.
Thus, on February 12, the Union filed a Step 3 class action grievance alleging that
Respondent violated Article XXVI of the Agreement, which was subsequently amended on
February 19 as follows:
In accordance with Article XXIII, and including but not limited to Article XXVI [Section] 1
and [Section] 7(a) of the collective bargaining agreement, NYPNU is filing a step 3 class
action grievance on behalf of NYPNU RN’s on 5 Uris, 9Uris, 7East, 8 Lachman, 5
Wollman, 7 Uris, 4 Lachman, 4 Uris and 7 Lachman
LHH is in violation of, but not limited to, the nurse/patient ratios on each of the
aforementioned units. On a regular basis, RNs are over ratio. Additionally, LHH has not
provided qualified support personnel on duty as well as the necessary tools, equipment
and supplies necessary to meet the nursing care needs for the patients on these units.
Remedy requested:
The employer will make grievants whole in every way including, but not limited to,
complying with the contractual nurse/patient ratios and provision of the necessary
qualified support personnel, tools, equipment and supplies necessary. In addition to
providing NYPNU with quarterly ratio compliance data.
The grievance was sent by email from Nisha Bannerjee to Emily Weisenbach
The Union’s February 22 and 27 Information Requests
In connection with the grievance, on February 22, the following information request was
sent by Bannerjee to Weisenbach:
NYPNU requests the following information relevant to the above-named grievance:
1. Statistics regarding the number of hours (and/or shifts) aides working one-on-one
assignments in the past six (6) months;
2. Number of hours (and/or shifts) that Access provided aides and/or observation
assistants for one-to-one assignments for the last twelve months they served a contract
with Lenox Hill Hospital;
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3. Current LHH protocol for a patient (or patent’s family) to hire a private duty nurse.2
On February 27, 2013, the Union submitted another information request, again from
Bannerjee to Weisenbach, asking for:
1. The patient census reports from September 1, through February 22, 2013 for the units
named in this grievance;
2. The FTE full complement standard (filled and unfilled positions) for each unit named in
the grievance, including ancillary staff;
3. Statistics detailing with the number of overtime hours and shifts nursing aides worked
between September 2012 and February 22, 2013, in the units named in this grievance;
4. LHH’s mean and mode hours between the time patients were given their discharge
orders and when they actually left the hospital premises;
5. The number of times nurse aides were pulled off units (including their own) to
cover one-on-one assignments.
By email the following day, Bannerjee asked Emily Weisenbach when the Union would
receive the information it had requested. Weisenbach replied, "I am working on this, I am unsure
at this point if we will release the data."
The March 5 and 14 meetings
An initial meeting concerning the grievance was held on March 5. Present for the
Employer were Directors Weisenbach and Stajk, and Vice-President Phyllis Yezzo. Present for
the Union were Toback, McCarthy, Vice-President Flynn and Bannerjee.
At the meeting, Respondent provided the Union with two reports in response to its
information requests. The first report showed the average number of RN's required and
assigned on day and night shifts by unit for the period from January 1 to February 19. The
second report contained the patient / RN daily staffing data by unit; again, for the period from
January 1 through February 19, 2013. As Respondent acknowledges, Weisenbach did not
realize at the time that the information provided was not fully responsive to the time frame
sought by the Union’s request. As she testified, Weisenbach only realized that the response had
not been fully responded to in December, 2014, as a result of communications with Hospital in-
house counsel.
After reviewing the data that was provided to them, the Union representatives at the
meeting lodged certain objections. With respect to the latter report, it reflected only a "snap
shot" of the census and staffing at 8 a.m. and 8 p.m. – at the beginning and end of each shift --
and therefore did not reflect the changes in staffing and patients throughout the day. The Union
representatives further questioned why fractions appeared on the reports. The Union was told
that this reflected people coming on and off the unit. According to Toback, the Union
complained that the information did not establish whether the ratios were being met and the
Hospital maintained that they were. The Union asked for additional information to illustrate what
was occurring throughout the day and asked for information for periods from 2 to 4 hours
throughout the shift. According to Toback, Weisenbach said she would provide such
information, and Weisenbach did not deny that she provided such assurances.

2 This last item is not a subject of the instant complaint.
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With regard to those aspects of the Union’s request which concerned itself with the
nurses’ aides and other non-unit personnel, Toback offered the following testimony:
Q: (by Counsel for the General Counsel) Okay. With respect to the second information
request in the letter dated February 27th, do you recall discussion of that information
request?
A: Discussion with the Hospital
Q: Yes
A: Only that we weren’t going to receive the – we were told we weren’t going to receive
the information
Q: Who said that?
A: Emily Weisenbach
Q: Did Ms. Weisenbach explain why you wouldn’t receive that information?
A: Not in too many details, only that they didn’t believe it was our information to ask for.
Q: Do you recall any discussion by any of the union representatives as to why they
needed that information?
A: We asked for the information because we said this impacted the ratios and it
impacted the work of the nurses on, on the units.
Toback further testified that the Union sought the information regarding overtime
assignments for nurses’ aides because, “we were trying to get at finding out what aides were on
the units and that would include overtime, looking at overtime hours to calculate where they
were, if they were there.”
With regard to the information sought regarding the time differential between discharge
and when a patient actually leaves the Hospital, Toback testified, “[w]e had indicated that there
were patients who were discharged, but could not be leaving the hospital for hours and they still
required a level of care. Some of these people are discharged and are still really quite critical
and need attention. And they might be there for hours, but weren’t factored into the ratios and
weren’t factored into the information that the hospital had given us, and impacted the ratios.”
On cross examination, Toback acknowledged that in addition to claiming this information
was not relevant, the Hospital asserted something “along the lines” that such information was
impossible to calculate or useless to know because of the changes that inevitably occur on a
unit that are unpredictable.
Weisenbach testified that she initially informed Bannerjee that the Union would not be
receiving information about the nurses’ aides in an email. In a subsequent telephone
conversation she asked why the Union wanted this information, and “[Bannerjee] couldn’t
articulate that information for me.” The Hospital maintained the position that such information
was not relevant; nor did the Union have the right to review another union’s data.
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Weisenbach further testified that, at the March 5 meeting, Yezzo and McCarthy spoke at
length about tools, equipment and ancillary staff, especially regarding the uptake in constant
observations,3 and how that pulled aides away from performing other functions. With regard to
the information sought regarding Access, a vendor service used for constant observations,
Weisenbach testified that their contract terminated in 2010 and she did not have the data to
provide to the Union as such information was not contained in electronic medical records
maintained by the Hospital. Weisenbach testified that she this conveyed this information to
Bannerjee in a telephone conversation sometime in late-February when the information was
initially requested. She also acknowledged that she did not inform the Union that another
agency presently had a similar contract but it does not appear that the Union inquired further
regarding this matter.
With regard to the Union’s request about the differential between the time a discharge
order is written and the actual discharge, Weisenbach stated that she thought the Union
understood that such information was not maintained in electronic medical records. While a
program she referred to as “Sunrise” would indicate when the discharge order was written, it
would not necessarily relate to the time a patient leaves the building.4 Weisenbach testified that
she explained that to the Union during the March 5 meeting and was under the impression that
the Union was satisfied with the Hospital’s explanation at the time. On cross-examination,
Weisenbach acknowledged that information regarding when a patient actually leaves the
hospital was contained in patient charts, which obviously also contain confidential patient
information. The record does not establish to what extent human resources personnel are
authorized to review such confidential material Weisenbach also testified that compiling this
information would be burdensome, as it would require reviewing “hundreds and hundreds” of
charts. Acknowledging that confidentiality concerns could be addressed through redaction,
Weisenbach maintained that when there was discussion over this issue the Union was satisfied
with the Hospital’s explanation of why the data could not be provided. Her testimony in this
regard was not specifically rebutted by either Union witness who attended the meeting and
testified herein; however, there is no evidence that the Union has withdrawn its request for such
information.
There was a subsequent meeting on March 14, which Weisenbach referred to as an
informal regularly scheduled follow-up session, attended by only Weisenbach and Stajk on
behalf of the Employer. The subject of the Union’s information requests came up again, and
Weisenbach suggested that the Union file a grievance regarding the Hospital’s unwillingness to
provide the data sought. McCarthy testified that the there was discussion of “issues” regarding
the data, specifically that the Union could not understand the employee percentages reflected
therein. She stated that the Hospital was informed that the 8:00 a.m. and 8:00 p.m. snapshots
did not accurately reflect either the number of patients on the unit during the shift, nor the
number of nurses on the shift because they did not show changes in the staffing which occurred
throughout the day or changes in the patient census during any particular shift. Weisenbach
acknowledged that the Hospital agreed to provide this information. On cross-examination,
McCarthy reiterated that at this meeting the Union raised its concerns about not receiving
information regarding shift times and nurses’ aides. The Hospital informed the Union that it was
not prepared to provide the information regarding nurses’ aides.

3 Constant observations are also referred to here as one-on-one observations. When ordered by a
psychiatrist, a nurse’s aide must be within arm’s length of the patient at all times, and cannot attend to
others.
4 Weisenbach additionally testified that that Sunrise would reflect “one-on-one” assignment of nurse’s
aides.
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The “Snapshot” Information
After the discussion on March 14, Weisenbach emailed a colleague, Linda DeCarlo, and
inquired if there was a way to obtain the snapshot information sought by the Union. DeCarlo
provided Weisenbach with the data she requested, using 10:00 a.m. and midnight as markers
for measuring staffing levels on each shift. The data was compiled in the form of an Excel file
with multiple tabs, the initial tab consisting of a summary sheet. Additional tabs reflected data for
each unit at issue.
On April 9, Weisenbach commenced a 4-month maternity leave. She emailed the Excel
file to Stajk, stating that this would be relevant to a follow-up meeting scheduled for April 10.
Rather than forwarding the entire file, Stajk printed the initial summary page and sent it to
Bannerjee. The Union did not lodge a complaint that the information provided was incomplete
and Weisenbach did not learn that the Union had not received the entire file until shortly prior to
the hearing in this matter. At that time, she sent it to the Union. This was more than one year
after the information was initially requested.
The April Information Request
On April 12, the Union, by Bannerjee, requested that Respondent furnish the Union by
April 19 with the following information:
The maximum patient census on each unit for each shift during September 1, 2012,
through April 12, 2013 (present date).
Stajk replied, “[s]ure, I can send that over to your shortly. If it is not what you are looking
for, please give me a call to discuss.”
However, the information forwarded to the Union was not specifically what it had sought
and Bannerjee wrote, “Kiera, we appreciate you getting back to us so quickly but just to clarify –
“maximum” doesn’t mean “average” (which is what we’re seeking as per our info request). Stajk
replied she would review the data and get back to the Union.
Respondent asserts in its post hearing brief that the summary report and Excel file later
forwarded to the Union is responsive to this information request. Counsel for the General
Counsel maintains that there was no response to the Union’s request for maximum patient
census data. The manner in which these exhibits were introduced into the record are, in
themselves and without more, insufficient for me to draw any definitive conclusions in this
regard. In any event, whether or not the information eventually provided was or was not
responsive to the April 12, information request, the record is undisputed that Respondent has
acknowledged that it sought relevant information and, further, that it was not provided to the
Union until sometime shortly prior to the hearing in this matter, which is over one year after it
was initially requested.
Analysis and Conclusions
General Legal Principles
An employer has the statutory obligation to provide on request, relevant information that
a union needs for the proper performance of its duties as collective-bargaining representative
NLRB V. Acme Industrial Co., 385 U.S. 432, 435-436 (1967); Detroit Edison Co. v. NLRB, 440
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U.S. 301,303 (1979). These responsibilities include: (1) monitoring compliance and effectively
policing the collective-bargaining agreement; (2) enforcing provisions of a collective-bargaining
agreement; and (3) processing grievances. See Amersig Graphics, Inc., 334 NLRB 880, 885
(2001) (union requests for updated information and information about temporary employees
upheld). Information that aids the grievance-arbitration process is considered relevant, including
information needed to decide whether file or to proceed with a grievance to arbitration. Beth
Abraham Health Services, 332 NLRB 1234 (2000). The Board has also held that an employer's
unreasonable delay in furnishing information “is as much of a violation of Section 8(a)(5) of the
Act as a refusal to furnish the information at all.” Woodland Clinic, 331 NLRB 735, 736 (2000)
citing Valley Inventory Service, 295 NLRB 1163, 1166 (1989). Delays which are unaccompanied
by legitimate excuse are generally unlawful. See, e.g., Pan American Grain, 343 NLRB 318
(2004), enfd. in relevant part, 432 F. 3d 69 (1st Cir. 2005) (3-month delay); Bundy Corp., 292
NLRB 671, 672 (1989) (2-month delay); Woodland Clinic, supra at 737 (7-week delay).
Where a union’s request is for information pertaining to employees in the bargaining unit,
that information is presumptively relevant and a respondent must provide the information. In
such instances, the employer has the burden of rebutting that presumption and establishing lack
of relevance. Certco Distribution Centers, 346 NLRB 1214, 1215 (2006); AK Steel Corp., 324
NLRB 173, 183 (1997). With respect to such information, the union is not required to show the
precise relevance of the requested information to particular bargaining unit issues. AK Steel,
supra; A-Plus Roofing, 295 NLRB 467, 470 (1989).
Where the requested information pertains to employees or matters outside the
bargaining unit, a union has the burden of demonstrating the relevance of such information.
Dodger Theatrical Holdings, 347 NLRB 953, 967 (2006).
The standard for relevancy in either situation is the same: “a liberal discovery type
standard.” Acme Industrial, supra at 437. The information sought need not be dispositive of the
issues between the parties but must have some bearing on it. Pennsylvania Power & Light Co.,
301 NLRB 1104, 1105 (1991), or it must be shown that it would be of use to the union in
carrying out its statutory duties and responsibilities. Wisconsin Bell Co., 346 NLRB 62, 64
(2005).
Thus, where a union is obligated to establish relevance, it need only demonstrate a
reasonable belief, based upon objective facts, that the requested information is relevant.
Disneyland Park, 350 NLRB 1256, 1258 (2007); Dodger Theatrical, supra, 347 NLRB at 367.
Further, the Board does not pass on the merits of a union’s grievance, or assertion that the
employer may have violated its contract in assessing whether information relating to the
processing of a grievance is relevant. Certco Distribution Center, supra at 1215; Shoppers Food
Warehouse, 315 NLRB 258, 259 (1994).
Even absent a showing of probable relevance, an employer is obligated to furnish the
requested information "where the circumstances put the employer on notice of a relevant
purpose which the union has not spelled out." National Extrusion & Mfg. Co., 357 NLRB No. 8,
slip op. at 48 (2011)(quoting Allison Co., 330 NLRB 1363, 1367 fn. 23 (2000), enfd. sub nom.
KLB Industries, Inc. v. NLRB, 700 F.3d 551 (D.C. Cir. 2012).
An employer who raises valid confidentiality concerns is required to seek an
accommodation of its interests through bargaining with the union. National Steel Corporation,
335 NLRB 747 (2001); GTE California, Inc., 324 LRB 424 (1997). Any claim that documents
cannot be produced or are too burdensome to be produced must be asserted and proven.
Respondent must provide the information in its possession, make a reasonable effort to secure
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any unavailable information, and, if any information remains unavailable, explain and document
the reasons for its continued unavailability. See Garcia Trucking Service, 342 NLRB 764 (2004).
If necessary, an employer is required to contact a third party believed to possess the
information. Earthgrains Co., 349 NLRB 389, 399 (2007).
Before assessing the above principles in light of the information sought by the Union, it is
necessary to consider two preliminary contentions raised by Respondent: that this matter should
be deferred to the parties’ grievance-arbitration process and that the Union, through its conduct
in bargaining and the express terms of the Agreement, waived its right to seek much of the
information which is the subject of the instant complaint.
Deferral
With regard to the issue of deferral, Respondent argues that if the complaint is not
dismissed, it should be deferred. In this regard, the Board has long held that deferral is in
appropriate in Section 8(a)(5) information request cases. See e.g. United Technologies Corp.,
274 NLRB 504, 505 (1985); Daimler Chrysler Corp. , 331 NLRB 1234, 1234 fn. 2 (2000) enfd.
288 F.3d 434 (D.C. Cir 2002); Chapin Hill at Red Bank, 360 NLRB No. 27, fn. 2 (2014).
Waiver
Regarding the Respondent’s claim of waiver, it is well-established that employer which
asserts a union has waived a statutory right has the burden of establishing that the alleged
waiver was "clear and unmistakable." Metropolitan Edison v. NLRB, 460 U.S. 693, 103 S.Ct.
1467, 1476 (1983); Endo Painting Service, Inc., 360 NLRB No. 61 (2014). Under Board law, a
waiver can occur in one of three ways: (1) by express provision in a collective-bargaining
agreement, (2) by the conduct of the parties (including past practices, bargaining history), or (3)
by a combination of the two. United Technologies Corp., supra (citing Chesapeake & Potomac
Tel Co., v. NLRB 687 F.2d 633, 636 (2d Cir. 1982). In order to satisfy the “clear and
unmistakable” standard, the contract language must be specific, or it must be shown that “the
matter claimed to have been waived was fully discussed by the parties and that the party
alleged to have waived its rights consciously yielded its interest in the matter." Allison Corp., 330
NLRB 1363, 1365 (2000).
Here, Respondent argues that both the contract language and the parties’ bargaining
history evince such a “clear and unmistakable” waiver. In particular, Respondent cites to the
contractual procedure for monitoring compliance with Article XXVI which provides that the
parties review on a quarterly basis, “actual staffing compared to required staffing . . . based on
the average daily census.” Respondent argues that the type of information that may be
requested in connection with an Article XXVI dispute has been deliberately limited strictly by the
parties to the staffing data set forth therein, which concerns itself with nurse to patient ratios.
In support of these contentions, Respondent relies upon New York Post, 353 NLRB 625
(2008). Apart from the fact that New York Post was decided by a two-member Board and is not
given controlling weight,5 I find it readily distinguishable on the facts presented therein. In
contrast to the situation presented in that matter, where the express language of the
memoranda of understanding (MOUs) entered into by the parties demonstrated the parties’
intent that a committee of representatives, including a union monitor, would be the exclusive
forum for investigating complaints regarding the MOUs and enforcing their terms, the

5 See New Process Steel v. NLRB, 130 S.Ct. 2635 (2010).
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Agreement here contains no such limiting language. To the contrary, the Agreement contains
language asserting otherwise, in particular an undertaking that Respondent discuss “in detail
with the union unit level variances, and discussing possible causes of and solutions to individual
unit variances, including reallocation of staff.” In addition, there is a contractual recognition that
the parties, “recognize that the performance of non-nursing functions by registered nurses
impedes their ability to deliver quality, cost-effective patient care and is not intended to be part
of their regular scope of responsibilities.” Such language cannot be said to constitute clear and
unequivocal evidence of the Union’s waiver of its statutory right to seek information so as to
enter into informed discussions with Respondent regarding such matters and to otherwise seek
to enforce the Agreement.
Respondent further relies upon the Board’s decision in American Broadcasting Co., 290
NLRB 86 (1988). There, the Board found that the collective-bargaining agreement at issue set
forth the minimum information that the respondent was required to supply, and that the union
had assigned to a committee whatever right it had to other information under the contractual
provision at issue. As it happened, the contractually mandated procedure for resolving such
disputes was not successfully implemented.
Here, the Agreement may arguably set forth the minimum information which the
Respondent is required to provide to enable the Union to enforce Article XXVI; however, there is
no evidence that the Union in negotiations or through agreement agreed to waive any statutory
right to further relevant information to enable it to monitor compliance with the Agreement.
Rather, the language of the Agreement contemplates to the contrary, setting forth Respondent’s
agreement to: “continue[] to be committed to discussing in detail with the union unit level
variances and discussing possible causes of and solutions to individual unit variances, including
reallocation of staff. . .” Such language cannot be said to support a reasonable contention of
“clear and unmistakable” waiver of the Union’s right to seek information not specifically set forth
in Article XXVI, and rather supports a conclusion that the Hospital was obliged to provide such
information to the Union to enable it to engage in meaningful discussions regarding unit
variances, reallocation of staff and similar matters. In short, I find that Respondent’s position in
this regard requires inferences which are wholly unsupported by the record. Accordingly, I reject
Respondent’s contention that the Union has waived its right to seek information other than
“actual staffing compared to required staffing . . . based on the average daily census” with
regard to its investigation of grievances under Article XXVI of the Agreement.
The Relevancy of the Information Sought
Generally, the evidence adduced here shows that Respondent has failed and refused to
provide any information pertaining to nurses’ aides or other non-Unit staff. The record also
establishes that Respondent delayed in providing certain information acknowledged to be
relevant, and which it had committed to provide to the Union: in particular, information relating to
nurse-patient ratios at times other than that at the beginning of each shift. The record further
shows that Respondent delayed, without any reasonable explanation, but possibly through
error, the provision of information regarding maximum patient census for at least one year.
I find that, as a general matter, the Union has demonstrated the relevance of the
information sought regarding non-unit personnel. The testimony of both Union and Employer
witnesses regarding the two meetings held in March 2013, as outlined above, show this to be
the case. In this regard, I do not credit Weisenbach’s vague and non-specific testimony to the
effect that Bannerjee “couldn’t articulate that information for [her].” In any event, given the
nature of the Union’s grievance, and the contractual provisions at issue, I find that the relevancy
of the information sought would have been apparent to the Respondent, in any event.
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By its express terms, Article XXVI, Section 1, requires the Employer to provide nursing
units with "qualified support personnel on duty in order to meet the nursing care needs of
patients and ... the necessary tools, equipment and supplies necessary for RNs to provide
proper nursing care for their patients." Section 3 of that article further provides that "... any
issues remaining following such discussions [regarding unit level variances and possible causes
and solutions to individual unit variances, including reallocation of staff] shall be subject to the
grievance procedure." Thus, it is apparent that Article XXVI is designed to insure that unit
registered nurses are able to adequately perform their jobs by requiring the Employer to staff an
adequate number of nurses per patient and to provide them with the necessary support
personnel and tools to engage in meaningful patient care.6
The record demonstrates, and it is not disputed, that nurses’ aides may be moved from
their assigned units to other assignments within the Hospital As the Union witnesses testified,
nurses complained that the provision of nursing services were hindered because of several
factors, such as one-on-one assignments of nurses’ aides, the fluctuating numbers of patients
and aides throughout the working day, and patients remaining on the wards after the issuance
of discharge orders Thus, any information designed to determine whether nurse's aides were in
fact on duty on the unit they were assigned to or were otherwise engaged is directly relevant to
the investigation and consideration of the grievance filed by the Union alleging that Respondent
violated Article XXVI.
Respondent has argued that Article XXVI effectively limits the Union's queries
concerning nurses’ aides to whether or not they were "qualified" rather than “sufficient.” This
contention is more properly a matter to be brought before the arbitrator, who is authorized to
decide whether there has been, in fact, a violation of the Agreement. Such a distinction,
however, does not obviate the Respondent’s obligation to provide the Union with relevant
information regarding whether mode and manner of assignment of non-unit personnel impacts
upon the ability of unit employees to perform their job responsibilities.
Thus, turning to the specific requests by the Union, the relevance of the information
sought and the Respondent’s failure to respond or to do so in a timely fashion, has been largely
demonstrated, with some limited exceptions, as set forth below.
On February 22, the Union requested: (1) statistics regarding the number of hours
(and/or shifts) aides working one on one assignments in the past six months and (2) number of
hours (and/or shifts) that Access provided aides and/or observation assistants for one-to-one
assignments for the last twelve months they served a contract with Lenox Hill Hospital.
I find that the Union has demonstrated the relevance of the information sought with
regard to the number of hours and/or shifts worked by nurses’ aides for the six months
preceding the information request. The testimony of the witnesses clearly establishes that when
nurse’s aides are not on duty or are otherwise assigned, their responsibilities are assumed by
registered nurses and this clearly can have the practical effect of eroding the level of patient

6 The General Counsel, relying on McCarthy’s testimony, has maintained that the RN / patient ratio
reports that were provided by Respondent show that it was not in compliance with the staffing
requirements set forth in Article XXVI on several units during the relevant period of time. However this is
beside the point: it is not for me or for the Board to pass on the merits of the grievance here; the only
issue is whether the Union is entitled to the information to allow it to meaningfully investigate and then
process the grievance, if warranted.
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care that the contractually-prescribed ratios are designed to ensure. Accordingly, I conclude that
by failing and refusing to provide such information to the Union, Respondent has violated the
Act.
With regard to the information sought regarding those employees provided by the
contractor Access, I cannot conclude that Respondent has violated the Act. It is the case that
the testimony of Toback and McCarthy, as corroborated by Weisenbach, establishes that
nurses’ aides who are given one-on-one patient assignments are otherwise unavailable to
perform other duties. General Counsel has argued that the assignment of outside aides to one-
on-one assignments allows the hospital aides to perform their regular patient care duties, which
lessens the need for registered nurses to step in and perform the tasks normally performed by
nurse’s aides. I have concluded from Weisenbach’s testimony, however, which I find to be
credible and not specifically rebutted by any other witness, that she informed Bannerjee that
Access had not been supplying employees to the Hospital since 2010. In addition, I conclude
that information regarding such contracting would not be relevant to an assessment or
prosecution of a grievance filed in 2013. Accordingly, I conclude that Respondent did not violate
the Act in this regard, as has been alleged in the complaint.
On February 27, the Union requested: (1) the patient census reports from September 1
through February 22, 3013; (2) the FTE complement standard (filled and unfilled positions) for
each unit named in the grievance, including ancillary staff; (3) statistics detailing the number of
hours and shifts nurses’ aides worked between September 2012 and February 22, 2013, for the
units named in the grievance; (4) the men and mode hours between the time patients were
given their discharge orders and when they actually left the hospital and (5) the number of times
nurses’ aides were pulled off units (including their own) to cover one-on-one assignments.7
The relevance of the patient census reports, which show the number of patients and
registered nurses by unit per quarter, is undisputed. The record demonstrates that Respondent,
without explanation, failed to produce such reports for the period from September through
December 31, 2012. In agreement with the General Counsel, I further find that the FTE
information for the unit registered nurses is presumptively relevant. Respondent has failed to
rebut this presumption or to otherwise show why such information cannot or should not be
produced.
With regard to the FTE request for nurses’ aides, I find that the Union has demonstrated
that it is pertinent to its investigation of the assignment of these employees, and is directly
related to the Article XXVI grievance. Thus, to the extent such information sought concerns itself
with the nurses’ aides I find it to be of relevance. I additionally conclude, however, that the
Union has failed to demonstrate the relevance of such information with regard to other vaguely-
described “ancillary” staff, as the nature of their job duties is undeveloped in this record. The
request for information regarding the overtime hours worked by nurses’ aides is related to and
an extension of the Union’s request for information regarding hours worked by nurses’ aides,
the relevance of which has been shown, as set forth above.

7 The Union failed to specify a time frame for this last request. I have concluded, however, that given
the context and the time periods otherwise set forth in the information request that the same time frame
should apply: i.e. September 2012 to February 2013. In this regard, I note that the Hospital did not object
to the open ended nature of the Union’s request but more generally opposed providing the information as
it pertained to non-Unit personnel.
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With regard to the reported discharge and actual discharge times of patients, I find that
such information is arguably relevant as it directly relates to the calculation of nurse to patient
ratios as set forth in the Agreement. The record is without rebuttal that such patients may
require ongoing care prior to leave the Hospital, further eroding the nurse-to-patient ratio on any
particular unit. While this information may be difficult to gather and compile, the record shows
that it is maintained in patient files. Under all the circumstances, I find that Respondent was
under an obligation to address its concerns about the burdensome nature of the request and
any other potential impediment, such as patient confidentiality, with the Union. Thus, I find that it
is appropriate to order Respondent to bargain with the Union over the manner for the provision
of such information, as well as the appropriate time frame involved, and make such information
available to the Union once an agreement has been reached.
I additionally conclude that the information regarding the number of times nurses’ aides
were reassigned is relevant as it is apparent that such reassignments makes these employees
unavailable to perform their regularly scheduled duties, which then may require the registered
nurses to assume such tasks. Again, this arguably affects the ratios set forth in the Agreement.
To the extent the Hospital maintains such records, they should be made available to the Union
for the period of time as described above.
The information requested on April 12 regarding the maximum patient census on each
unit named in the grievance for the period through September 1, 2012 through April 12, 2013 is
obviously of some relevance in policing the Agreement insofar as it impacts the ratios and is
relevant to the Union’s apparent contention that patient numbers may fluctuate. To the extent
that Respondent delayed in providing such information, regardless of whether such failure was
inadvertent or the result of error, such delay has been in violation of its obligations under the
Act.
In short, for the reasons set forth above, I find that, under the circumstances of this case,
Respondent has a general statutory obligation to respond to the Union’s requests for
information regarding work assignments and transfers of nurses’ aides on the units named in its
Article XXVI grievance. I further find that Respondent, inadvertently or otherwise, failed and
refused to provide admittedly relevant information concerning bargaining unit personnel to the
Union as requested.
Conclusions of Law
1. The Respondent, Lenox Hill Hospital, is an employer engaged in commerce within
the meaning of Section 2(2), (60 and (7) of the Act.
2. The Union, New York Professional Nurses Association, is a labor organization within
the meaning of Section 2(5) of the Act and represents a bargaining unit comprised primarily of
registered nurses employed by the Respondent.
3. By refusing to bargain collectively with Union by failing and refusing to furnish it with
requested information as set forth in letters dated February 22, 27 and April 12, 2013 that is
relevant and necessary to the Union’s performance of its functions as the collective-bargaining
representative of Respondent’s unit employees, Respondent has committed unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act.
4. The Respondent’s above-described unfair labor practices affect commerce within the
meaning of section 2(6) and (7) of the Act.
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Remedy
Having found that the Respondent has engaged in conduct in violation of Section 8(a)(1)
and (5) of the Act, I shall recommend that it cease and desist from engaging in such conduct
and take certain affirmative action designed to effectuate the policies of the Act.
In particular, I shall recommend that, to the extent it has not already done so,
Respondent shall timely furnish the following information to the Union: statistics regarding the
number of hours (and/or shifts) for nurses’ aides working one-on-one shifts for the six month
period preceding February 22, 2013; patient census reports from September 1, 2012 through
February 22, 2013 for the units named in the Union’s February 19 grievance alleging violations
of Article XXVI of the parties collective-bargaining agreement (the Grievance); the FTE full
complement standard (filled and unfilled positions) for registered nurses and nurses’ aides for
each unit named in the Grievance; the number of times nurses’ aides were pulled off units
(including their own) to cover one-on-one assignments from September 1, 2012 through
February 22, 2013 and the maximum patient census on each unit for each shift during the
period from September 1, 2012 through April 12, 2013. In addition I recommend that
Respondent be ordered to bargain with the Union over the provision of information regarding the
mean and mode hours between the time patients were given their discharge orders and when
they actually left Hospital premises and provide such information once an agreement has been
reached.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended8
ORDER
1. The Respondent, Lenox Hill Hospital, its officers, agents, successors, and assigns,
shall
(a) Cease and desist from refusing to bargain collectively with the Union by refusing to
furnish it with information that is relevant and necessary to the Union’s role as the exclusive
representative of Respondent’s 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.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Furnish to the Union, in a timely manner, the following information requested by it on
February 22, 27 and April 12, 2013: statistics regarding the number of hours (and/or shifts) for
nurses’ aides working one-on-one shifts for the six month period preceding February 22, 2013;
patient census reports from September 1, 2012 through February 22, 2013 for the units named
in the Union’s February 19 grievance alleging violations of Article XXVI of the parties collective-
bargaining agreement (the Grievance); the FTE full complement standard (filled and unfilled
positions) for registered nurses and nurses’ aides for each unit named in the Grievance; the
number of times nurses’ aides were pulled off units (including their own) to cover one-on-one

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 purposes.
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assignments from September 1, 2012 through February 22, 2013 and the maximum patient
census on each unit for each shift during the period from September 1, 2012 through April 12,
2013.
(b) Bargain with the Union over the provision of information regarding the mean and
mode hours between the time patients were given their discharge orders and when they actually
left Hospital premises and provide such information after an agreement has been reached.
(c) Within 14 days after service by the Region, post at its facility in New York, New York
copies of the attached notice marked “Appendix.”9 Copies of the notice, on forms provided by
the Regional Director for Region 2, after being signed by the Respondent’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.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In addition to the physical posting of paper notices,
the notices shall be distributed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means,if the Respondent customarily communicates with its
employees by such means. In the event that, during the pendency of these proceedings, 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 any time since February 22,
2013.
(d) 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.
Dated, Washington, D.C. October 1, 2014
____________________
Mindy E. Landow
Administrative Law Judge

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 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.”
JD(NY)–40–14
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail and refuse to bargain collectively with The New York Professional Nurses
Union (the Union) by failing and refusing to furnish it with information that is relevant and
necessary to the Union’s performance of its functions as the collective-bargaining representative
of our registered nurses and other unit employees;
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in
the rights guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL furnish to the Union in a timely manner the information it requested on February 22,
27 and April 12, 2013 specifically to include the following: statistics regarding the number of
hours (and/or shifts) for nurse’s aides working one-on-one shifts for the six month period
preceding February 22, 2013; patient census reports from September 1, 2012 through February
22, 2013 for the units named in the Union’s February 19 grievance alleging violations of Article
XXVI of the parties collective-bargaining agreement (the Grievance); the FTE full complement
standard (filled and unfilled positions) for registered nurses and nurses’ aides for each unit
named in the Grievance; the number of times nurses’ aides were pulled off units (including their
own) to cover one-on-one assignments from September 1, 2012 through February 22, 2013 and
the maximum patient census on each unit for each shift during the period from September 1,
2012 through April 12, 2013.
WE WILL bargain with the Union over the provision of information regarding the mean and
mode hours between the time patients were given their discharge orders and when they actually
left hospital premises and provide such information once an agreement has been reached.
LENOX HILL HOSPITAL
(Employer)
Dated By
(Representative) (Title)
JD(NY)–40–14
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov
.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02-CA-103901 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.