Service Employees Local 144 (Jamaica Hospital)

National Labor Relations Board - Board Decisions

Mar 21, 1990

297 N.L.R.B. 1001 (N.L.R.B. 1990)

SERVICE EMPLOYEES LOCAL 144 (JAMAICA HOSPITAL) 1001
Local 144, Hotel, Hospital, Nursing Home and
Allied Services Union, Service Employees'
International Union, AFL-CIO and The Jamai-
ca Hospital and The Jamaica Hospital Nursing
Home. Cases 29-CB-7158 and 29-CB-7191
March 21, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 25, 1989, Administrative Law
Judge Howard Edelman issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief and the General Counsel and the
Charging Parties filed answering briefs
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 and briefs and has
decided to affirm the judge's rulings,' findings, and
conclusions 2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Local 144,
Hotel, Hospital, Nursing Home and Allied Services
Union, Service Employees' International Union,
AFL-CIO, New York, New York, its officers,
agents, and representatives, shall take the action set
forth in the Order
1 We note that in his Analysis and Conclusion section of his decision
the judge inadvertently referred to the Employer, rather than the Re-
spondent, as seeking collective-bargaining agreements with employers
who are not members of the League
'As further support for the judge s conclusion that the Respondent
violated Sec 8(b)(3) by falling to provide information requested by the
Employers based on their invocation of the parties' contractual most-fa-
vored-nation clause, we rely on Chicago Typographical Union No 16, 296
NLRB No 24 (Aug 21, 1989) That case also reaffirmed the pnnople
that "[a] party is not relieved of its duty to provide relevant Information
simply because that information may be available from other sources"
Id slip op at 6 fn 8 (Citing Postal Service, 276 NLRB 1282, 1288
(1985) )
In affirming the judge's rejection of the Respondent's argument that
the Employer's request for information is unduly burdensome, we rely on
the failure of the Respondent to make any showing on the record that
supports its argument
Michael Cooperman, Esq , for the General Counsel
Larry Cary, Esq (Vladeck, Waldman, Elias & Engelhard),
for the Respondent
Michael .1 DiMattia, Esq (Summit, Roma & Feldesman),
for the Employer
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge This
case was tried before me on June 19, 1989, in Brooklyn,
New York On February 7, 1989, The Jamaica Hospital
(Jamaica Hospital) filed a charge against Local 144,
Hotel, Hospital, Nursing Home and Allied Services
Union, Service Employees' International Union, AFL-
CIO (Respondent) On March 23, 1989, The Jamaica
Hospital Nursing Home (Jamaica Home) filed a similar
charge against Respondent On March 24 and May 5,
1989, complaints issued on each charge alleging, respec-
tively, that Respondent had refused to supply informa-
tion to Jamaica Hospital and Jamaica Home (the Em-
ployer), in violation of Section 8(b)(3) On June 1, 1989,
these complaints were consolidated
Briefs weie filed by counsel for the General Counsel,
counsel for the Charging Party Employer and counsel
for Respondent Union On consideration of the entire
record, the bnefs, and upon my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
Jamaica Hospital is a New York corporation with its
office and place of business located in Jamaica, New
York It is engaged in providing health care services
During the past year it derived gross revenue in excess
of $500,000 and purchased and received at its Jamaica,
New York facility goods, products, and matenals valued
in excess of $50,000 directly from points located outside
the State of New York I find that Jamaica Hospital is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act
Jamaica Home is a New York corporation with its
office and place of business located at Jamaica, New
York, where it is engaged in the operation of a nursing
home facility providing medical and professional care
services During the past year it derived gross revenue in
excess of $100,000 and purchased goods, products, and
materials valued in excess of $50,000 directly from points
located outside the State of New York I find that Jamai-
ca Home is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act
Jamaica Hospital and Jamaica Home share the same
facilities and have an overlapping board of directors
Respondent is a labor organization within the meaning
of Section 2(5) of the Act
The Employer has been a member of the League of
Voluntary Hospitals and Homes of New York (the
League), an employer association, for at least since 1976
During the period of 1972 to the present, the League has
negotiated "major issues" in connection with collective-
bargaining agreements between the separate members of
the League and Respondent These "major issues" in-
clude wages and benefit fund payments The remaining
issues, or "Local issues," which include sick days and
holidays are then negotiated separately between the
League members and Respondent At the culmination of
successful bargaining negotiations, individual collective-
297 NLRB No 163
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining agreements are executed between the League
members and Respondent
During its membership in the League Jamaica Hospi
tal has had two separate collective bargaining agree
ments with Respondent covering the service and mamte
nance employees and clerical workers Jamaica Home
has a collective bargaining agreement with Respondent
covering the employees employed by the Home in the
nursing, physical therapy purchasing, housekeeping
communications, dietary maintenance, security clerical
and recreational departments
Each collective bargaining agreement between Re
spondent and the Employer has a most favored nations
clause which provides essentially that In the event
that Respondent enters into any collective bargaining
agreement which provides for more favorable terms
and conditions of employment [to the employer] than
those contained [in the Employer s contracts], such more
favorable terms and conditions shall automatically be ap
plicable to the [Employer]
In 1987, the League and Respondent reached agree
ment on the major issues The term of such agreement
was from December 1, 1986 through November 30
1989 Following the execution of such agreement the
Employer and Respondent began negotiations on the
Local issues Following a period of negotiations Re
spondent and the Employer were unable to reach agree
ment on holidays, sick leave pay and work hours for
new hires, and the Employer unilaterally implemented its
proposals
As a result of the Employer s action, Respondent
sometime in 1988 filed for an arbitration alleging that the
Employer violated the collective bargaining agreements
by making such unilateral changes During the arbitra
tion the Employer contended such changes were imple
mented based upon the most favored nations clause
and information it had received from the League that
several other employers had received more favorable
terms than Respondent was proposing to the Employer
On December 29 1988, Michael DiMattia counsel for
the Employer wrote a letter to Respondent requesting
Respondent provide the Employer with collective bar
gaining agreements and or other materials between Re
spondent and other employers so that the Employer
could see whether Respondent was violating the most
favored nations clause DiMattia s letter set forth that
such information was necessary so that the Employer
could effectively administer the existing collective bar
gaining agreements and to formulate bargaining propos
als for new agreements As set forth above the present
agreements expired on November 20 1989'
' The exact information requested was
Copies of all books and records including but not limited to all
current collective bargaining agreements memoranda letters side
letters correspondence documents all appendices letters of under
standing letter agreements and/or supplements or modifications
( Agreements ) which describe the terms and conditions of employ
ment of employees who are represented by Local 144 Hotel Hospi
tal Nursing Home and Allied Services Union SEIU AFL-CIO
( Local 144 ) at individual hospitals or health care institutions or
group of health care institutions and/or hospitals including but not
limited to the following Agreements between Local 144 and the
League of Voluntary Hospitals and Homes of New York the Great
Sheldon Englehard Respondent s attorney responded
by letter to DiMattia s letter stating that We believe
that any request for the information sought should
emanate from the League
As a result of both letters a meeting was scheduled for
January 27 1989, at Englehard s office Representatives
for both parties including DiMattia and Englehard were
present During the course of the meeting DiMattia re
peated his request for the information described above
and pointed out that in addition to the reasons set forth
in his December 29 letter such information was neces
sary to defend the present arbitration proceeding Engle
hard refused to provide the information requested but
suggested that the Employer could file charges with the
National Labor Relations Board
Following this meeting the Employer filed the instant
charges To date Respondent has not supplied any of the
requested information 2
Analysis and Conclusion
It is well settled that an employer has a duty to pro
vide upon request information relevant to bargamable
issues NLRB v Truitt Mfg Co 351 U S 149 153
(1956), NLRB v Acme Industrial Co, 385 U S 432, 435-
436 (1967) Where the requested information concerns
wage rates job descriptions and other information relat
mg to employees in the bargaining unit the information
is presumptively relevant Fawcett Printing Corp 210
NLRB 964 (1973) Curtiss Wright Corp 145 NLRB 152
(1963) enfd 347 F 2d 61 69 (3d Cir 1965) Timkin
Roller Bearing Co 138 NLRB 1 (1962) enfd 325 F 2d
746 750 (6th Cir 1963), cert denied 376 U S 971 (1964)
Where the request is for information concerning employ
ees outside the bargaining unit the Union must show the
requested information is relevant to bargamable issues
Brooklyn Union Gas Co, 220 NLRB 189 (1975) Rock
well Standard Corp 166 NLRB 124 (1967) enfd 410
F 2d 953 (6th Or 1969) Curtiss Wright Corp supra In
determining whether the information requested by the
Union is relevant the general approach has been to
apply a liberal discovery type standard to the issue of
relevancy in evaluating each case on its facts Brazos
Electric Power Cooperative 241 NLRB 1016 (1979) Acme
Industrial Co supra The Board has held in establishing
relevancy that the information is relevant if the informa
lion sought is reasonably necessary in order to administer
a collective bargaining agreement detect infractions of
its terms and intelligently counsel the employees whom it
represents In this connection the Board has held that a
er New York Health Care Facilities Association the Association of
Private Hospitals Metropolitan Hotels and Motels Inc a multiem
ployer association whose exact name is unknown which is commonly
referred to as the Southern Association and the individual employ
er members of these adult employer groups Wycoff Hospital Catho
lic Medical Center Franklin General Hospital and Franklin General
Nursing Home Village Nursing Home Prospect Park Nursing
Home Cobble Hill Nursing Home Prospect Park Nursing Home
Hificrest General Hospital and LaGuardia Hospital
2 The facts of this case are not in dispute and are based upon the credi
ble testimony of Max Schur employer vice president of human resources
and Joseph Matza employer assistant director of human resources and
on documentary evidence submitted by counsel for General Counsel and
counsel for Respondent Respondent called no witnesses
SERVICE EMPLOYEES LOCAL 144 (JAMAICA HOSPITAL) 1003
union is entitled to information requested which bears
upon the union's determination to file a grievance or is
helpful in evaluating the propriety of going to arbitra-
tion Brooklyn Union Gas Co, supra, Boeing Corp, 182
NLRB 421 (1970)
It is equally well settled that a labor organization's
duty to furnish information is parallel to that of an em-
ployer's duty to furnish information Northern Air Freight,
283 NLRB 922 (1987), Plasterers Local 346 (Brawner
Plastering), 273 NLRB 1143 (1984)
In the instant case, it is obvious that the information
requested by the Employer directly relates to the em-
ployees in the bargaining unit The information sought
was collective-bargaining agreements between Respond-
ent and other employers because under the terms of the
parties "most favored nations clause," terms relating to
wages, hours, and other conditions of employment in
such agreements which are more favorable than those in
the collective-bargaining agreement between Respondent
and the Employer would then apply to the bargaining
unit employees in the agreement between the Employer
and Respondent The Board has required a labor organi-
zation to provide similar information under a most fa-
vored nations clause and found such information pre-
sumptively relevant Hotel & Restaurant Employees Local
355 (Dora! Beach Hotel), 245 NLRB 774 (1979) Accord-
ingly, I find the information the Employer requested was
presumptively relevant See also Electrical Workers
IBEW Local 1186, 264 NLRB 712 (1982), Northern Air
Freight, supra
Respondent contends that the Employer has outside
means to obtain the information it seeks because it is a
member of the League However, the Employer seeks
collective-bargaining agreements with all employers,
many of whom are not members of the League More-
over, and controlling, the Employer is not obligated to
use outside sources, although readily available, to obtain
such information It is entitled as a matter of well-settled
law to receive such information directly from Respond-
ent New York Times Co, 270 NLRB 1267 (1984), Johe
Belts Co, 265 NLRB 1130 (1982)
Respondent also contends the request is too broad
Since any employer with whom Respondent has a collec-
tive bargaining might have more favorable terms than
the Employer, I find such contention without ment
Respondent further contends that the Employer's re-
quest is unduly burdensome since it has over 100 sepa-
rate contracts I am certain such agreements are conven-
iently filed and readily accessible In any event since the
information requested is necessary and relevant, I reject
this contention
It is my conclusion that the Employer is entitled to the
information requested in its December 29, 1988 letter and
that- Respondent's failure to supply such information is
violative of Section 8(b)(3) of the Act
CONCLUSIONS OF LAW
1 The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act
3 At all times material herein Respondent and the
Employer have been parties to collective-bargaining
agreements covering certain classifications of employees
described in said agreements which agreements expire on
November 30, 1989
4 By refusing to furnish the Employer with the infor-
mation requested in the Employer's letter dated Decem-
ber 29, 1988, Respondent has violated Section 8(b)(3) of
the Act
THE REMEDY
Having found that Respondent has committed an
unfair labor practice within the meaning of Section
8(b)(3) of the Act, I will recommend it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the purpose and policies of
the Act Specifically, I will recommend that Respondent
be ordered to provide to the Employer the information
requested by it in its letter dated December 29, 1988, as
set forth and described above
On these findings of fact and conclusions of law and
on the entire record considered as a whole, I make the
followmg3
ORDER
Respondent, Local 144, Hotel, Hospital, Nursing
Home and Allied Services Union, Service Employees'
International Union, AFL-CIO, New York, New York,
its officers, agents, and representatives, shall
1 Cease and desist from
(a) Refusing to furnish the Jamaica Hospital and the
Jamaica Hospital Nursing Home (the Employer) with the
information specifically set forth and contained in the
Employer's December 29, 1988 letter to Respondent, de-
scribed above
(b) In any like or related manner restraining or coerc-
ing 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 the Employer in writing with the informa-
tion requested by the Employer in its December 19, 1988
letter to Respondent
(b) Post in its business office and meeting places copies
of the attached notice marked "Appendix "3 Copies of
said notice, on forms provided by the Regional Director
for Region 29, after being signed by Respondent's repre-
sentatives, shall be posted by Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
members are customarily posted Reasonable steps shall
3 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
4 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'
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be taken by Respondent to ensure that said notices are
not altered defaced or covered by any other material
(c) Sign and mail sufficient copies of said notice to the
Regional Director for Region 29 for posting by the Em
ployer, at all locations, where notices to employees are
customarily posted
(d) Notify the Regional Director in writing within 20
days from the date of this Order, what steps Respondent
has taken to comply
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT refuse to furnish the Jamaica Hospital
and the Jamaica Hospital Nursing Home (the Employer)
with the information requested by the Employer in its
December 29, 1988 letter to us as set forth and described
in this Decision
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act
WE WILL furnish to the Employer in writing that in
formation requested by the Employer in its December
19 1988 letter
LOCAL 144, HOTEL HOSPITAL, NURSING
HOME AND ALLIED SERVICES UNION
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO