New Island Hospital

National Labor Relations Board - Board Decisions

Jan 21, 2005

344 N.L.R.B. 198 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 3
198
WSNCHS North, Inc., d/b/a New Island Hospital and
New York State Nurses Association. Case 29–
CA–26162
January 21, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 20, 2004, Administrative Law Judge D.
Barry Morris issued the attached decision. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, WSNCHS North, Inc., d/b/a
New Island Hospital, Hempstead, New York, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.
Marcia Adams, Esq., for the General Counsel.
Michael McGrath, Esq., for the Respondent.
Elizabeth Orfan, Esq., for the Charging Party.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We agree that deferral to arbitration is not appropriate in this case.
The arbitrator did not resolve the parties’ information-request dispute in
a reasonably timely manner. The Union filed grievances over the staff-
ing-guideline dispute in January 2003 and demanded arbitration in
September 2003. On February 11, 2004, the Union served a subpoena
duces tecum on the Respondent seeking the information at issue in this
case. The Respondent moved the arbitrator to quash the subpoena. The
arbitrator first considered the Respondent’s motion to quash on March
9, 2004. As of the date of the instant Board decision, more than 10
months have elapsed, and the Union still has not received a ruling on
whether it is entitled to the requested information. Because the arbitra-
tor has not promptly resolved the parties’ information-request dispute,
we find that deferral is inappropriate. We find it unnecessary to pass on
whether, absent such a delay, the Board properly should defer an in-
formation-request allegation to arbitration where a charging party has
invoked the grievance-arbitration process and has also filed a charge
with the Board.
Member Liebman agrees that the Board should not defer the infor-
mation-request allegation to arbitration, but would rely on the Board’s
longstanding policy of not deferring such matters. See Postal Service,
302 NLRB 918 (1991).
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case was
heard before me in Brooklyn, New York, on June 23, 2004.1
Upon a charge filed on March 11, a complaint was issued on
May 13, alleging that WSNCHS2 North, Inc., d/b/a New Island
Hospital (Respondent or the Hospital) violated Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act) by not
complying with a request for information. Respondent filed an
answer denying the commission of the alleged unfair labor
practice.
The parties were given full opportunity to participate, pro-
duce evidence, examine and cross-examine, argue orally, and
file briefs. Briefs were filed by the parties on July 30, 2004.
Upon the entire record of the case, including my observation of
the demeanor of the witness,3 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, with its principal of-
fice in Hempstead, New York, has been engaged in the opera-
tion of an acute care hospital. It has been admitted, and I find,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. In addition, it has been
admitted, and I find, that New York State Nurses Association
(the Union) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
1. Background
The parties executed a collective-bargaining agreement in ef-
fect from April 1, 2002 until March 31, 2005. Article 3.07 con-
tains a provision for staffing guidelines which was to have gone
into effect on December 14, 2002. The Hospital did not imple-
ment the guidelines at that time.
2. Grievances
On January 2, 2003, the Union filed four grievances for
“failure to meet the staffing guidelines” in the telemetry, ICU,
CCU, and “B” units. It did not file a grievance covering the
surgery unit. In July 2003 the four grievances were combined
into a single grievance. The remedy requested was “immediate
adherence to the guidelines. Make RNs whole.” On September
9, 2003 the Union filed a demand for arbitration in connection
with the consolidated grievance.
3. Request for information
By letter dated February 6, 2004, the Union requested infor-
mation from the Hospital concerning the four units specified in

1 All dates refer to 2004 unless otherwise specified.
2 The caption in the complaint originally stated “WSNBH.” I granted
Respondent’s motion to amend the caption to read “WSNCHS.”
3 Only one witness testified in this proceeding. Credibilty resolutions
have been made based upon her demeanor, the weight of respective
evidence, established or admitted facts, inherent probabilities, and
inferences drawn from the record as a whole.
NEW ISLAND HOSPITAL 199
the grievances plus the surgery unit. The request was for the
period from December 14, 2002 through January 15, 2004, and
requested daily census, assignment and scheduling sheets, float
book pages and daily time graphs. The Hospital did not comply
with the request. The arbitration hearing was scheduled to
commence on March 9. In connection therewith on February 11
the Union submitted a subpoena duces tecum to Respondent.
The subpoena requested the same information asked for in the
request for information, except that it did not request informa-
tion for the surgery unit. Counsel for the Hospital moved to
quash the subpoena. The arbitrator did not rule on the motion to
quash and the arbitration is scheduled to resume on October 28.
4. Testimony of Dedowitz
Denise Dedowitz, the Union’s nursing representative, was
the only witness to testify in this proceeding. She appeared to
me to be a credible witness and I credit her testimony. She testi-
fied that the daily census sheets reveal the number of patients
on a particular day in a specific unit. The assignment books
reveal the number of nurses, ward clerks, and nursing assistants
assigned to a unit on a particular day. The scheduling sheets
show how many nurses were scheduled to cover a unit on a
particular day and the float books reveal the number of nurses
“floated” into a unit in order to comply with the staffing guide-
lines. The daily time graphs, which are kept in the office of the
director of nursing, show how many nurses actually worked
and also show the number of per diem nurses who worked in a
unit on a particular day.
B. Discussion and Conclusions
1. Deferral to arbitration
The grievances were filed on January 2, 2003, and on Sep-
tember 9, 2003, the Union filed a demand for arbitration. The
arbitration hearing was scheduled to commence on March 9,
2004. On February 6, the Union submitted a request for infor-
mation and on March 11 it filed the charge in this proceeding.
Respondent contends that this matter should be deferred to
arbitration pursuant to Dubo Mfg. Corp., 142 NLRB 431
(1963). Respondent also cites General Counsel’s Advice
memorandum, Case 14–CA–25299, 1984 NLRB Lexis 118
(June 13, 1984).
The grievances concern the staffing guidelines, which are
specifically provided for in the collective-bargaining agreement
and covered the time period from December 14, 2002 through
January 2, 2003. While General Counsel and the Union take the
position that the grievances were intended to be “continuing,” it
is Respondent’s contention that the duration of the grievances
was only until January 2, 2003. The complaint, on the other
hand, alleges that Respondent committed an unfair labor prac-
tice by failing to comply with a request for information. The
information requested covers the period of December 14, 2002
through January 15, 2004, and relates to the surgery unit in
addition to the four units specified in the grievances.
The Board has consistently held that refusals to furnish in-
formation will not be deferred to arbitration. This policy is
justified in part because the obligation to provide such informa-
tion is derived from statutory duties independent of the labor
contract. NLRB v. Acme Industrial, Co. 385 U.S. 432, 437
(1967); Daimler Chrysler Corp. v. NLRB, 288 F.3d 434 (D.C.
Cir. 2002). Respondent contends, however, that since the de-
mand for arbitration was filed prior to the filing of the charge
and the issuance of the complaint in the instant proceeding, the
matter should be deferred to arbitration pursuant to Dubo Mfg.
Corp., supra. For the following reasons I believe that this case
should not be deferred.
Counsel has not pointed to, nor do I find, any provision in
the collective-bargaining agreement which deals with requests
for information. In American Standard, 203 NLRB 1132
(1973), the Board held that it would not defer where “there is
no contract clause dealing specifically with the furnishing of
information.” While in United Aircraft Corp., 204 NLRB 879,
880 (1972), affd. sub nom. Machinists Lodge 700, 525 F.2d 237
(2d Cir. 1975), the Board did defer to arbitration, the collective-
bargaining agreement specifically provided that Respondent
furnish the Union with certain information. In addition, were
the instant proceeding to be deferred, the entire matter would
not necessarily be resolved. The request for information covers
five units, whereas the grievances cover only four units. Fur-
thermore, the information request covers the period from De-
cember 14, 2002 through January 15, 2004. It is Respondent’s
contention, however, that the grievances cover the period only
through January 2, 2003.
Finally, Respondent has cited Dubo and the June 1984 Ad-
vice memorandum. In Dubo, the grievances requested a deter-
mination that certain employees had been wrongfully dis-
charged and were entitled to reinstatement. The charges filed
with the Board alleged the very same matters as the grievances,
namely, unlawful discharges and the refusal to reinstate. Simi-
larly, in the 1984 Advice Memorandum, the collective-
bargaining agreement contained a “broad information clause
and a grievance procedure.” The Union filed a grievance over
the employer’s refusal to provide information which had been
requested by the Union. The charge filed with the Board al-
leged that the employer unlawfully “refused to provide relevant
and necessary collective bargaining information upon the re-
quest of the union.” Thus, in both Dubo and in the 1984 Advice
memorandum, upon which Respondent relies, the grievance
was the same as the alleged unfair labor practice. Such is not
the case in the instant proceeding. Here, the grievances relate to
the alleged failure to adhere to staffing guidelines. The alleged
unfair labor practice charge, however, deals with Respondent’s
failure to comply with a request for information.
For the above reasons, pursuant to Collyer Industrial Wire,
192 NLRB 837 (1971) and Dubo Mfg. Corp., supra, I conclude
that this matter should not be deferred to arbitration.
2. Request for information
In Conrock Co., 263 NLRB 1293, 1294 (1982), enfd. 118
LRRM 2955 (9th Cir. 1984), the Board stated:
It is well settled that an employer has an obligation, as part of
its duty to bargain in good faith, to provide information
needed by a union to enforce and administer a collective-
bargaining agreement. An employer must furnish information
that is of even probable or potential relevance to the union’s
duties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD200
See also Leland Stanford Junior University, 262 NLRB 136,
139 (1982), enfd. 715 F.2d 473 (9th Cir. 1983).
As detailed above, I have found Dedowitz to be a credible
witness and have credited her testimony. As stated above, the
reasons she gave for requiring the information requested in the
Union’s request for information dated February 6, all seem of
“probable or potential relevance” to the Union’s duties. See
Conrock, supra, 263 NLRB at 1294. Accordingly, I find that
Respondent’s refusal to comply with the information request
dated February 6 constitutes a violation of Section 8(a)(1) and
(5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The employees listed in Section 1 of the collective-
bargaining agreement dated April 1, 2002, constitute a unit
appropriate for collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all material times the Union has been the exclusive col-
lective-bargaining representative of the employees in the ap-
propriate unit.
5. By refusing to furnish the information requested in the
February 6, 2004 letter, Respondent has violated Section
8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practice constitutes an unfair
labor practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. This matter shall not be deferred to arbitration.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
Respondent, WSNCHS North, Inc., d/b/a New Island Hospi-
tal, Hempstead, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with New York State
Nurses Association by refusing to furnish the information re-
quested in the Union’s request for information dated February
6, 2004.
(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) Upon request, furnish to the Union the information it re-
quested in the letter dated February 6, 2004.
(b) Within 14 days after service by the Region, post at its fa-
cility copies of the attached notice marked “Appendix.”5 Cop-

4 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.
ies of the notice, on forms provided by the Regional Director
for Region 29, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent immedi-
ately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees 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 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 6, 2004.
(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 no-
tice.
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 pro-
tection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain collectively with New York
State Nurses Association by refusing to furnish the information
requested in the Union’s letter dated February 6, 2004.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, upon request, furnish to the Union the information
it requested in its letter dated February 6, 2004.
WSNCHS NORTH, INC., D/B/A NEW ISLAND
HOSPITAL

5 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.”