People Care, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1990

299 N.L.R.B. 875 (N.L.R.B. 1990)

PEOPLE CARE 875
People Care, Incorporated and Local 32B-32J-144,
Service Employees International Union, AFL-
CIO. Case 2-CA-23291
September 27, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On April 25, 1990, Administrative Law Judge
Steven Davis issued the attached decision The Re-
spondent filed exceptions and a supporting brief
The Charging Party and the General Counsel filed
cross-exceptions and supporting briefs The Re-
spondent filed an answering brief to the cross-ex-
ceptions of the Charging Party and the General
Counsel
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs, and has decided to affirm the judge's
rulings, findings, and conclusions and to adopt the
recommended Order as modified
On September 15, 1988, the Regional Director
for Region 2 issued a Supplemental Decision and
Certification of Representative designating the
Union as the exclusive collective-bargaining repre-
sentative of the Respondent's home health care
workers On September 26, 1988, the Union re-
quested the scheduling of collective-bargaining
meetings, and additionally requested that the Re-
spondent provide it with a list of the names and ad-
dresses of bargaining unit employees The Re-
spondent replied that it would hold the Union's
bargaining request "in abeyance" pending the
Board's disposition of its request for review of the
Regional Director's certification of representative 1
The Respondent further replied that its employee
list was a confidential trade secret and would only
be provided pursuant to a Federal district court
protective order ensuring that the Union would not
reveal the list to the Respondent's competitors or
direct employees to those competitors for employ-
ment
Several letters ensued in which the parties' coun-
sel unsuccessfully sought to resolve the information
request The Respondent indicated that it was ame-
nable to the Union's proposal to employ a private
mailing service The Respondent continued to insist
on a Federal court protective order, however,
which the Union opposed
'We agree with the Judge, for the reasons set forth by him, that the
Respondent thereby refused to bargain with the Union in violation of
Sec 8(a)(5) and (1) of the Act
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to pro-
vide the Union with the list of names and addresses
of unit employees The judge found that the Re-
spondent did not meet its burden of proving the
confidentiality of the requested information Never-
theless, the judge found that some accommodation
of the Respondent's confidentiality concerns was
appropriate Accordingly, the judge, noting the
Union's settlement proposal, ordered the Respond-
ent to retain a private mailing service to mail to
unit employees all communications from the Union,
without any monitoring, censoring, or inspection of
that mail by the Respondent Under the terms of
the judge's remedy, the Union would not receive
the list of the names and addresses of unit employ-
ees, and the Respondent would not receive a Fed-
eral court protective order
We agree with the judge that the Respondent
violated Section 8(a)(5) and (1) of the Act by refus-
ing to provide the Union with a list of the names
and addresses of unit employees We do not adopt
the judge's recommended remedy, however
It is well settled that the names and addresses of
unit employees are presumptively relevant to a
union's role as bargaining agent Georgetown Hoh-
day Inn, 235 NLRB 485, 486 (1978) Consequently,
an employer bears the burden of proving confiden-
tiality as a defense to providing that information
Howard University, 290 NLRB 1006 (1988)
We agree with the judge that the Respondent
has not met its burden in this regard The record
indicates that the Respondent's confidentiality m-
terest in its employee list is far from absolute As
the judge noted, approximately 25 percent of the
Respondent's employees also work for its competi-
tors One-quarter of the Respondent's work force is
thus already known to the Respondent's competi-
tors Additionally, several of the Respondent's su-
pervisors are privy to the entire list, while other
supervisors have regular access to portions of the
list The Respondent's president testified that super-
visors are not required to guarantee the confiden-
tiality of the list when leavmg the Respondent's
employ and securing employment at similar firms,
as about 10 have done smce 1977
Further, the Respondent's president testified that
he had no evidence that the Umon would turn
over the list to the Respondent's competitors 2 In
the absence of any evidence that the Union would
disclose the list to the Respondent's competitors, or
any assertion by the Respondent that the Union has
a Indeed, the Union stated in Its letter to the Respondent dated March
29, 1989, that It had no intention of disclosing the names and addresses to
Respondent's competitors, and noted the Respondent's continued refusal
to accept the Union's assurances in this regard
299 NLRB No 127
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been in the past unreliable in abiding by its assur-
ance not to do so, we find the mailing service ac-
commodation recommended by the judge not to be
warranted Pertec Computer Corp, 284 NLRB 810,
811 (1987) We shall therefore order the Respond-
ent to furnish the Union with the names and ad-
dresses of unit employees
Although the Respondent's confidentiality con-
cerns are far from absolute, the Respondent has
demonstrated an interest in ensuring that the list is
not divulged to its competitors We recognize that
the Respondent does take certain measures to pro-
tect the list locking it in a safe at night, and termi-
nating several employees caught attempting to
copy the list Thus, we shall direct that on receipt
of the list of names and addresses from the Re-
spondent, the Union refrain from disclosing any of
that information to Respondent's competitors or
any other unnecessary persons Howard University,
supra
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, People Care, Incorporated, New York,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified
1 Substitute the following for paragragh 2(a)
"(a) Recognize and, on request, bargain with the
Union as the exclusive collective-bargaining repre-
sentative of the employees in the above-described
unit and, if an understanding is reached, embody
the understanding in a signed agreement"
2 Substitute the following for paragraph 2(b)
"(b) Bargain m good faith with the Union by fur-
nishing it with the names and addresses of all bar-
gaining unit employees, provided that on receipt of
this information the Union, its officers, agents,
members, and attorneys shall not divulge the infor-
mation to the Respondent's competitors or any
other unnecessary persons"
3 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To EMPLOYEES
POSTED AND MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and mail and abide by
this notice
WE WILL NOT refuse to recognize and bargain in
good faith with the Union concerning the rates of
pay, wages, hours, and other terms and conditions
of employment of our employees in the following
appropriate unit
All full-time and regular part-time home
health care workers, including home health
aides, junior home health aides, nurses aides,
homemakers, personal care workers, and
housekeepers employed by us out of our facili-
ty at 300 Park Avenue South, New York,
New York, excluding all other employees, in-
cluding registered nurses, licensed practical
nurses, office clerical and professional employ-
ees, guards and supervisors as defined in the
Act
WE WILL NOT refuse to bargain in good faith
with the Union by refusing to meet and bargain
with the Union until the Board ruled on our Re-
quest for Review of the Certification of Represent-
ative
WE WILL NOT refuse to bargain in good faith
with the Union by refusing to furnish the Union
with the information it requested in its letter of
September 26, 1988
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL recognize and, on request, bargain in
good faith with the Union as the exclusive collec-
tive-bargaining representative of the employees in
the above-descnbed unit and, if an understanding is
reached, embody the understandmg m a signed
agreement
WE WILL bargain in good faith with the Union
by furnishing it with the names and addresses of all
bargaining unit employees, provided that upon re-
ceipt of this information the Union, its officers,
agents, members, and attorneys shall not divulge
the information to the Respondent's competitors or
any other unnecessary persons
PEOPLE CARE, INCORPORATED
Polly Chill, Esq , for the General Counsel
David Lew, Esq (Goetz Fitzpatrick & Flynn, Esqs ), of
New York, New York, for the Respondent
Ira A Sturm, Esq (Manning, Raab, Dealy & Sturm,
Esqs ), of New York, New York, for the Charging
Party
PEOPLE CARE 877
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge Pursuant
to a charge filed by Local 32B-32J-144, Service Employ-
ees International Umon, AFL-CIO (Union) on January
26, 1989, a complaint was issued by the Regional Direc-
tor for Region 2 on February 8, 1989, alleging that
People Care, Incorporated (Respondent) violated Section
8(a)(1) and (5) of the Act The complaint alleged that
following certification by the Board the Union requested
that the Respondent (a) bargain with it and (b) furnish it
with the names and addresses of all its unit employees,
and that the Respondent failed and refused such requests
Respondent filed an answer to the complaint in which
it denied the material allegations thereof, and a hearing
was held before me in New York City on May 10, 1989
On the entire record, including my observation of the
sole witness, and after considering the briefs filed by all
parties, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent, a New York corporation, having its prin-
cipal place of business at 300 Park Avenue South, New
York, New York, is engaged in the busmess of providing
housekeeping services to yanous disabled and elderly in-
dividuals Annually, m its business operations, Respond-
ent derives gross revenues in excess of $500,000, and pur-
chases and receives at its facility products, goods, and
materials valued in excess of $25,000 directly from points
outside New York State 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 Re-
spondent also admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Facts
On September 15, 1988, the Union was certified by the
Board as the bargaining representative of Respondent's
employees The Union requested from Respondent the
names and addresses of its employees
Respondent concedes that the Union is entitled, for the
purposes of collective bargaining, to a list of the names
and addresses of its employees Nevertheless, Respondent
admits that it has not supplied it with such a list It as-
serts that it is willing to turn over the list, but requires
certain protection against disclosure of the list to its
competitors, and assurances that the workers will not be
encouraged to work for such competing firms
Respondent is a firm which provides certified home
health care workers, home health aides, personal care
workers, and housekeepers to sick persons in the five
boroughs of New York City It employs some 800 to 900
workers, who regularly work for it It also maintains a
roster of 1000 other people who are either awaiting as-
signment or are working for other similar employers
The people served by these workers have just been
discharged from hospitals or other institutions to recu-
perate at home Requests for the services of a health care
worker are made to Respondent by hospitals, medical
centers, and nursing associations Those organizations
have contracts with Respondent for it to furnish such
workers as needed Those institutions also have contracts
with other, similar home health care agencies Jerry
Lewkowitz, Respondent's president, stated that there are
a couple of hundred other health care agencies in the
New York City area, and the institutions he has con-
tracts with may have agreements with 4 to 6 or up to 16
other agencies to provide home health care workers
They use several agencies because generally one is not
sufficient to fill the need for such workers
When an order is received for a health care worker,
Respondent attempts to locate an aide who has the skills
necessary for such a patient, is geographically close to
the patient, and available The worker is phoned and the
assignment made
The great majority of Respondent's employees come
to its Manhattan offices only twice per year, at which
time they receive mandatory m-service training They
may come more frequently, for example, to receive their
checks, or to attend additional in-service training, but
such additional training is voluntary 1 When Respondent
wishes to communicate with its employees on a mass
basis, it does so by mail
On June 29, 1987, the Union filed a petition in Case 2-
RC-20393, in which it sought to represent certain em-
ployees of the Respondent Following a hearing, a Deci-
sion and Direction of Election was issued on April 27,
1988
On May 31, 1988, the Respondent filed a request for
review with the Board, which raised the same confiden-
tiality issue, with respect to the Excelsior list, as made
here The General Counsel asserts that the Board denied
the request for review on July 1, 1988 However, the
record does not contain such a document
The Respondent provided an Excelsior list of employee
names and addresses to the Regional Director on the
condition that the list not be provided to the Union The
Union agreed to proceed to an election without the eligi-
bility list, but reserved its right to file election objections
based on its nonreceipt of the list The Regional Director
proceeded with the election, but noted that m approving
those arrangements, he did not imply that the Respond-
ent's conduct was legitimate, nonobjectionable, or of pre-
cedennal value
Following the election, the Regional Director issued a
Supplemental Decision and Certification of Representa-
tive on September 15, 1988, in which he held that the
Umon was the certified, exclusive collective-bargaining
representative of the employees of the Respondent in the
following unit
All full-time and regular part-time home health care
workers, including home health aides, junior home
health aides, nurses aides, homemakers, personal
'About 100 to 150 employees come weekly to Respondent's New
York City office to receive their paychecks
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
care workers and housekeepers employed by the
Employer out of its facility at 300 Park Avenue
South, New York, New York, excluding all other
employees, including registered nurses, licensed
practical nurses, office clerical and professional em-
ployees, guards and supervisors as defined in the
Act
Respondent's answer denied that the above unit was
appropriate I find no merit to this denial
Following the issuance of the Certification of Repre-
sentative, Ira Sturm, the Union's attorney, wrote to Re-
spondent on September 26, 1988, requesting that it con-
tact him to "arrange for the scheduling of meetings for
the purpose of collective bargaining" The letter further
stated that "in order that the Union may service the unit
employees, it is requested that the Union be provided
with a current list containing all names and addresses of
employees currently employed in the unit as certified"
On September 29, 1988, David Lew, the Respondent's
attorney, wrote to Sturm, advising that Respondent in-
tended to file a request for review of the supplemental
decision, and "m view of the outstanding Request for
Review, we must hold your letter of September 26, 1988
in abeyance until such time as the National Labor Rela-
tions Board will have issued its decision"
Respondent filed a request for review, which was not
included in the record in the instant case, and on January
18, 1989, the Board denied the request for review
On January 23, 1989, Strum wrote to Respondent, re-
newing his request of September 26, 1988
Subsequent to the issuance of the complaint in this
matter, Respondent's attorney, by letter of March 24,
1989, stated that the list of the names and addresses of
Respondent's employees constituted a "confidential trade
secret" in that it represents its sole asset, which if re-
vealed to its competitors, would mean that Respondent
would be forced out of business Lew stated that Re-
spondent would be willing to provide the Union with
such a list "for the sole purpose of the Union's utilizing
that information during collective bargaining negotia-
tions" However, Lew wrote that "this can only be done
if [Respondent] is provided with a protective order
from the Federal District Court insuring that the Union
would not reveal the contents of that list to any of our
competitors and/or utilize that list for the purpose of di-
recting our employees to such competitors to seek em-
ployment with them"
In its reply, Union Attorney Sturn stated that it was
not the Union's intent to disclose the names and address-
es of the employees to competitors, adding, however,
that advising employees of better paying jobs elsewhere
was the Union's right Sturm stated that the Union
would not agree to the issuance of a protective order
Sturm proposed that the Union prepare mailings, which
would be sent to all unit employees by a private mailing
service retained by Respondent The contents of the
mailings would not be monitored by Respondent
Lew's letter of April 4 stated that the Union's sugges-
tion of a private mailing service was acceptable to Re-
spondent, but added that a protective order in conjunc-
tion with that offer was still necessary
A bargaining session was held on April 17, 1989, and
another meeting was scheduled for May
Respondent's president, Jerry Lewkowitz, testified that
the thrust of its business is its ability to provide aides to
its customers If its employees were directed to its com-
petitors and leave Respondent's employ, Respondent
would be out of business
Lewkowitz also testified that Respondent constantly
recruits employees—by newspaper advertisements, job
fairs, and by "pirating" employees from other employ-
ment agencies He stated that such stealing of workers is
common in this industry
Lewkowitz stated that Respondent maintains two
copies of a roster of all its employees The entire list is
available to the three or four coordinators or supervisors
employed by Respondent However, other supervisors
are provided with only that part of the list which per-
tains to the geographical area they are working on For
example, if a supervisor seeks an aide to work in Brook-
lyn, he will use the Brooklyn list He further stated that
he did not believe that Respondent requires its supervi-
sors or office workers to sign a statement that they will
not release the names of the workers on the list Since
1977, about 10 supervisors have transferred to other
companies None of the supervisors or coordinators are
permitted to take the list, which is kept m a safe at night,
out of the office, or copy it Lewkowitz stated that on
three or four occasions, employees were caught attempt-
ing to steal the list, and they were discharged
Lewkowitz stated that he had no evidence that the
Union would turn over the list to Respondent's competi-
tors
B Analysts and Conclusions
1 The refusal to meet and bargain
The complaint alleges that by letter dated September
29, 1988, Respondent failed and refused to meet and bar-
gain with the Union
As set forth above, following an election, the Union
was certified, on September 15, 1988, as the exclusive
collective-bargaining representative of the employee in
an appropriate unit
Thereafter, the Union requested, on September 26, that
Respondent contact it to arrange collective-bargaining
sessions Respondent's attorney wrote on September 29
advising that he intended to seek review of the Certifica-
tion of Representative and stated that he would hold the
Union's request for bargaining "in abeyance" until the
Board issued its decision
The General Counsel argues that Respondent's re-
sponse constitutes a refusal to bargain
Respondent argues that inasmuch as collective-bar-
gaining sessions have commenced, any violation which
has occurred is only "technical" in nature, and need not
be remedied
As the Board has stated in Beloit Corp, 285 NLRB
No 12 fn 4 (July 30, 1987) (not reported in Board vol-
umes)
An employer is obligated to bargain with a umon
upon request once a Regional Director has issued a
PEOPLE CARE 879
certification of representative, even though there
has been no final action by the Board on review
Madison Detective Bureau, 250 NLRB 398 (1980),
Allstate Insurance Co, 234 NLRB 193 (1978)
Accordingly, I find and conclude that Respondent's
statement following the certification of the Union, that it
would hold the Union's request for bargaining in abey-
ance pending the Board's decision on its request for
review, constituted a refusal to bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act
2 The refusal to supply information
Respondent argues that the names and addresses of its
employees are confidential information, constituting a
"trade secret" which can only be disclosed to the Union
with a protective order
The General Counsel and the Union contend that Re-
spondent may not raise the issue of the confidentiality of
the names and addresses of its employees by virtue of its
argument to the Board, in its request for review, that the
Excelsior rule be modified in order to preserve its "trade
secret" The Board denied the request for review, and it
is argued that that denial precludes Respondent from
raising in this unfair labor practices case the defense that
the list is confidential
The General Counsel and the Union argue that Re-
spondent, having raised the issue of confidentiality in the
representation case, may not now rehtigate this issue
here They rely upon Section 102 67(0 of the Board's
Rules and Regulations, which states in relevant part
Denial of a request for review shall constitute an af-
firmance of the Regional Director's action which
shall also preclude rehtigatmg any such issues in
any related subsequent unfair labor practice pro-
ceeding
Here, the Regional Director, in effect, took no action
on Respondent's confidentiality argument Rather, the
Union agreed to proceed to an election without an Ex-
celsior list The list was provided to the Regional Office
only, which mailed ballots to the voters In fact, in his
Decision and Direction of Election, the Regional Direc-
tor noted that his approval of such an arrangement did
not imply that Respondent's conduct was legitimate,
nonobjectionable, or of precedential value It also cannot
be said that the issue of the alleged confidentiality of the
requested information was fully litigated in the represen-
tation proceeding Accordingly, I find that Respondent is
not precluded from raising this issue here
The complaint alleges that the information requested,
the names and addresses of Respondent's employees, is
necessary for, and relevant to, the Union's performance
of its function as the exclusive collective-bargaining rep-
resentative of the unit employees The Board has consist-
ently held that information such as the names and ad-
dresses of unit employees "is presumptively necessary
and relevant to the Union in its role as a collective-bar-
gaining representative" American Commercial Lines, 291
NLRB 1066 (1988), such information is necessary either
during contract negotiations or during the term of an
agreement, and no showing of particularized need is nec-
essary Laminates Unlimited, 292 NLRB 595 (1989)
Accordingly, I find that the information requested is
clearly relevant and necessary to the Union's function as
the collective-bargaining representative of the unit em-
ployees
Although the requested information may be rele-
vant, an employer may not be required to produce
it if such production violates confidentiality and
pnvilege The Respondent's claim of confidentiality
must be balanced against the Union's need for rele-
vant information in pursuit of its role as a represent-
ative of the employees [Howard University, 290
NLRB 1006, 1007 (1988) ]
The party asserting confidentiality has the burden of
proving the confidential nature of the information re-
quested Howard University, supra, Island Creek Coal Co,
289 NLRB 851 (1988)
Respondent asserts that the names and addresses of its
employees are confidential because they constitute the
heart of its business Its ability to provide its employees
to the health care agencies is the essence of its enterprise
It argues that if this list was disseminated to its competi-
tors it would be out of business It thus reasons that by
providing the list to its competitors its employees would
thereby cease employment with it and become employed
by its competitors There is no evidence that this would,
in fact, occur assuming that the list was disseminated Al-
though Respondent keeps the list in a safe at night, sev-
eral supervisors and coordinators have access to it during
the day Through the years, people as those positions
have left Respondent's employ and have become em-
ployed with its competitors There was no evidence that
they were required to maintain the confidentiality of the
list upon their leaving Respondent's employ, and indeed
they could have taken parts of it at vanous times In ad-
dition, the evidence established that about 25 percent of
its employees work for other agencies, Respondent's
competitors, at the same tune, or at varying intervals
This appears logical since a health care worker might be
ending her employ with one agency, and not having an-
other job with that agency might seek employment with
a different agency Accordingly, Respondent's competi-
tors already have a list of the names and addresses of 25
percent of Respondent's employees In addition, the insti-
tution which requests the home health care aide has the
name of the employee and the address of the patient at
which the aide is working
Given the above facts, it does not appear that Re-
spondent's list of names and addresses has been treated as
confidential, because of the access to the list of its super-
visors and coordinators who are not required to sign any
statement of confidentiality with respect to it, the fre-
quent movement of its employees between its employ
and the employ of its competitors, and the access of its
customers to the names of the aides, and the address at
which they are working
I accordingly find that Respondent has not proven
that its list of the names and addresses of its employees is
confidential and a trade secret Even assuming that the
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
information requested was confidential, it is still "viola-
tive of the Act for an employer to refuse to make the
information available where there is no evidence which
would show that its confidentiality would, in some
way, be abused" Island Creek Coal Go, 289 NLRB 851
(1988) Indeed, Respondent's president testified that he
had no evidence that the Union would turn over such a
list to Respondent's competitors Here, any assurance
given by the Union that the information would be kept
confidential would be insufficient to satisfy Respondent,
which at all times has insisted that the Union submit to a
protective order issued by a U S distnct court
Although I do not find that Respondent's claim of
confidentiality of its employee list has merit, I believe
that some accommodation is necessary, as suggested by
the Union
In dealing with union requests for relevant but as-
sertedly confidential information, we are required to
balance a union's need for such information against
any "legitimate and substantial" confidentiality in-
terests established by the employer, accommodating
the parties' respective interests insofar as feasible in
determining the employer's duty to supply the in-
formation The accommodation appropriate in each
individual case would necessarily depend upon its
particular circumstances [Minnesota Mining di Mfg
Co , 261 NLRB 27, 30 (1982)]
In engaging in such a balancing effort, the Respond-
ent's interests in keeping its list of names and addresses
confidential must be weighed against the Union's need to
communicate with the employees it represents This need
is especially important here where the Union was recent-
ly certified by the Board after lengthy proceedings, and
collective-bargaining negotiations have begun It is im-
perative for the Union, in such circumstances, to be able
to communicate with its constituency in order to learn
the employees' desires concerning demands to be made
to Respondent, their responses to counteroffers, and their
views on the collective-bargaining process generally
Notwithstanding that the Union has been certified as the
exclusive collective-bargaining representative of the em-
ployees, and negotiations have begun, it has not yet been
able to be in contact with the employees it represents
Alternative means of direct communication with the
employees do not exist The evidence establishes that
employees are given their assignments by phone by Re-
spondent, and then travel directly from their homes to
the patient's home Only about 15 percent of the employ-
ees visit Respondent's New York City office weekly for
their paychecks, and the employees are required to
report to that office only twice per year for in-service
education Accordingly, it is not feasible for the Union
to contact the employees at Respondent's office The
only available means to contact the approximately 800 to
900 employees is by mail
The union, as the statutory exclusive bargaining
agent for all the employees in the unit, was obliged
by the Act to fairly represent the interests of all the
employees in the unit and to perform this statutory
duty adequately, it was necessary that the Union be
able to communicate with those whom it represent-
ed It seems manifest beyond dispute that the
Union cannot discharge its obligation unless it is
able to communicate with those in whose behalf it
acts Thus, a union must be able to inform the em-
ployees of its negotiations with the employer and
obtain their views as to bargaining priorities in
order that its position may reflect their wishes
[Pearl Bookbinding, 213 NLRB 532, 534 (1974)1
Accordingly, under a balancing test, the Union's need
to communicate with the employee it represents must
outweigh the allegedly confidential nature of the infor-
mation requested
The Union, during bargaining, has offered to prepare
mailings, which would be mailed by a private mailing
service retained by Respondent, to the unit employees
Such mailings would be made without any monitoring or
censuring by Respondent Respondent has accepted such
an offer, however, with the condition that a protective
order be agreed to by the Union The Union has refused
to agree to the issuance of a prtective order
I believe that the Union's offer constitutes a reasonable
accommodation under the circumstances The Union has
made this suggestion during bargaining, and the Re-
spondent has accepted the concept This solution will
preserve the confidentiality of the list of names and ad-
dresses, while at the same time permit the Union unlimit-
ed communication the employees it represents
I will issue and appropriate order
CONCLUSIONS OF LAW
1 The Respondent, People Care, Incorporated, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act
2 Local 32B-32J-144, Service Employees International
Union, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act
3 The following employees of the Respondent consti-
tute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act
All full-time and regular part-time home health care
workers, including home health aides, junior home
health aides, nurses housekeepers employed by Re-
spondent out of its 300 Park Ave, South, New
York, New York facility, excluding all other em-
ployees, practical nurses, office clerical and profes-
sional employees, guards and supervisors as defined
in the Act
4 Respondent violated Section 8(a)(5) and (1) of the
Act on September 29, 1989, by failing and refusing to
meet and bargain with the Union as the exclusive collec-
tive-bargaining representative of its employees in the unit
described above, by asserting that it would not meet and
bargain until the Board ruled on its request for review
5 Respondent violated Section 8(a)(5) and (1) of the
Act, on and after September 29, 1989, by refusing, on re-
quest, to provide the Union with information relevant
and necessary to the performance of its obligation as the
exclusive collective-bargaining representative in the ap-
PEOPLE CARE 881
propnate unit, by refusing to provide a list of names and
addresses of its unit employees to the Union
6 The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of the Act, it
shall be recommended that it be ordered to cease and
desist therefrom, and take certain affirmative action de-
signed to effectuate the policies of the Act
It shall be recommended that Respondent be ordered
to bargain on request with the Union and, if and under-
standing is reached, to embody the understanding in a
signed agreement I shall also recommend that the Re-
spondent be ordered to retain a private mailing service
and direct that service to mail to all the employees in the
above appropriate bargaining unit, all pieces of mail
given to the mailing service by the Union, without any
monitoring or censuring or inspection of such mail by
Respondent
Inasmuch as employees generally do not visit Re-
spondent's office, I shall recommend that a copy of the
notice be mailed to each of the unit employees, as well
as posted at Respondent's premises
On these findings of fact and conclusions of law and
on the entire record, I make the following recommend-
ed2
ORDER
The Respondent, People Care, Incorporated, New
York, New York, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Refusing to recognize and bargain with the Union
concerning the rates of pay, wages, hours, and other
terms and conditions of employment of employees in the
following appropriate unit
All full-time and regular part-time home health care
workers, including home health aides, junior home
health aides, nurses aides, homemakers, personal
care workers, and housekeepers employed by Re-
spondent out of its 300 Park Ave South, New
York, New York facility, excluding all other em-
2 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
ployees, including registered nurses, licensed practi-
cal nurses, office clerical and professional employ-
ees, guards and supervisors as defined in the Act
(b) Refusing to bargain in good faith with the Union
by refusmg to meet and bargain with the Union until the
Board ruled on its request for review of the certification
of representative
(c) Refusing to bargain in good faith with the Union
by refusing to furnish the Union with the information it
requested in its letter of September 26, 1988, in the
manner described below
(d) In any like or related manner interfering with, co-
ercing, or restraining 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) Recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the appropriate unit described above
(b) Bargain in good faith with the Union, by retaining
a private mailing service, and mstructmg it to mail to all
employees in the appropnate unit described above, all
pieces of mail given to the mailing service by the Union
None of the contents of the mailings provided by the
Union to the mailing service shall be inspected, moni-
tored, or censured by Respondent
(c) Post at its New York, New York premises copies
of the attached notice marked "Appendix " 3 Copies of
the notice, on forms provided by the Regional Director
for Region 2, after being signed by the Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other matenal In addition, copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent's authorized repre-
sentative, shall be sent by Respondent to all employees
who are or have been employed by Respondent in the
appropriate bargaining unit set forth above during the
period September 29, 1988, to the present
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
3 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 Nation-
al 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"