St. Joseph's Hospital

National Labor Relations Board - Board Decisions

Dec 12, 1977

233 N.L.R.B. 1116 (N.L.R.B. 1977)

1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Joseph's Hospital (Ow Lady of Providence
Unit) and Rhode Island State Nurses' Association.
Case I-CA-12581
December 12, 1977
DECISION A N D ORDER
On August 16, 1977, Administrative Law Judge
Bruce C. Nasdor issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions~ of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 1 q c ) of the National Labor
Relations Act. as amended. the National Labor
Relations ~ o a i d adopts as its 'order the recornrnend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, St. Joseph's
Hospital (Our Lady of Providence Unit), Providence,
Rhode Island, its officers, agents, successors, and
assigns, shall take the action- set forth in the said
recommended Order.
1 We agree with the Administrative Law Judge's conclusion that deferral
to arbitration is Improper in this case since Respondent has interfered with
the grievance procedure by refusing to furnish information relevant to the
arbitration of a grievance. Funher, Chairman Fanning and Member Jenkins
would not defer in any event for the reasons set forth in their decision in
General American Tramporrarion Copororion. 228 NLRB 808 (1977).
DECISION
BRUCE C. NASDOR, Administrative Law Judge: This
proceeding under Section lo@) of the National Labor
Relations Act, as amended, was heard pursuant to due
notice on April 25, 1977, at Boston, Massachusetts.
The charge in this proceeding was filed by Rhode Island
State Nurses' Association fiereinafter referred to as
RISNA or the Union), on December 27, 1976; the
complaint in this matter was issued on February 2, 1977.
TFle y e ~ t i o n pres-+4 -p,be!her the R q o n d e n t virJattj
its statutory obligation to bargain with the Union by
refusing the latter's request for certain data concerning the
wages, fringe benefits, and costs to the Respondent of
certain employees outside of the bargaining unit represent-
ed by the Union, in violation of Section 8(a)(5) and (1) of
the Act.
Upon the entire record, including my observation and
demeanor of the witness, and after due consideration of the
briefs filed by the General Counsel and the Respondent, I
make the following:
I. JURISDICTION
The Respondent is, and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the laws of the State of Rhode Island. At all times
herein, the Respondent has maintained its principal office
and place of business at 21 Peace Street, in the city of
Providence and the State of Rhode Island (herein called
the Our Lady of Providence Unit), and is now and has
been engaged at said plant in the operation of a medical
care facility. The Respondent, in the course and conduct of
its business, causes and continuously has caused, at all
times herein, large quantities of food, medical equipment,
and supplies used by it in providing medical care and
services to be purchased and transported in interstate
commerce from and through various States of the United
States other than the State of Rhode Island. It operates a
nonprofit hospital with a gross annual volume of business
in excess of $250,000, and in the course and conduct of its
business, annually causes goods valued in excess of $2,000
to be purchased and transported to its hospital in Rhode
Island from points outside Rhode Island It is admitted,
and I find, that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
It is admitted, and I find, that Rhode Island State
Nurses' Association is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
111. THE BARGAINING UNIT
Based on the pleadings and admissions therein, the
following is found to be the bargaining unit:
All registered nurses employed by the Respondent in
the Our Lady of Providence Unit, as more fully set
forth and certified by the Rhode Island State Labor
Relations Board, in Case EE-2033 on May 14, 1973,
exclusive of all other employees, guards, and supervi-
sors as defined in Section 2(11) of the Act, constitute a
unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
IV. THE UNFAIR LABOR PRACTICES
i ~ , ~ con .,,!~al , sc!:ing wsch gz- .~ dsc :; this p:,rzczr?irg i:,
in the main, undisputed and many of the essential facts
were stipulated.
233 NLRB No. 368
ST. JOSEPH'S HOSPITAL 1117
The Respondent and RlSNA are parties to a collective-
bargaining agreement, effective from October 1, 1975.
through September 30, 1977. Article ]XI subparagraph
9.04. of said agreement provides:
Should the Employer during the term of this Agree-
ment grant a greater across tne board increase to a
majority of all Nonbargaining unit' employees then
that provided Bargaining Unit employees covered by
this Agreement, then the net additional ~ncrease will be
granted effective the same date to members of the
Association Bargaining unit.
On September 16, 1976, the following notice signed by
Robert A. Vitello. executive vice president of the Respon-
dent. was posted at the hospital premises:
Dear Fellow Employee:
St. Joseph's 1s once again very pleased to announce
what we feel to be outstanding improvements in your
wage and benefit program for the coming fiscal year:
Pa,v Scale increase - A five percent increase in
hourly wage scale will become effective October
3, 1976. In addition, those employees at steps
below the maximum will be eligible to move to
the next higher step on their annual rewiew date.
Additional Paid Holidqv - V.J. Day is being
added to the list of holidays observed by St.
Joseph Hospital, raising our total paid holidays to
eleven days per year.
improved Vacation Eligibility - Employees whc
are currently eligible for t h e e weeks vacation
after six years, will now be eligible for those three
weeks after only three years of service, effective
January 2. 1977.
Expanded i i f e insurance Coverage - Starting
October 1, 1976, the Hospital will provide life
insurance coverage in an amount equal to I-1/2
times an employee's annual base salary (rounded
upward to the nearest thousand dollars) provided
the employee works at least 20 hours per week.
Previously, this coverage has been equal to "one"
times the base salary (rounded up to the nearest
thousand dollars).
Higher Pension Eenejts - In January 1973, the
Hospital announced significant improvements in
pension eligibility criteria (age. length of service:
vesting, etc.) and is now in the process of
finalizing increases in your actual retirement
benefits through the Pension Plan. Details of
these improvements will be announced in E
special notice to you in the near future.
It should be noted that except for the pay scale
Increases, these benefits do not apply to the registered
' The nonunlt employees ~nc luae all employees other than reentered
nurses 21 the Our Lady of Provlaence U n ~ t and all employees. lnclud~ng
repstered nurses at the Our Lady of Fstlme faclllt\
nurses at the Our Lady of Providence Unit who are
covered by a collective bargaining agreement.
Very shortly these new benefits and all others which
have been introduced over the past few years will be
incorporated in a new edition of the Personnel Policy
Manual which will be distributed to each employee.
Personally. and on behalf of the Board of Trustees, I
would like to take this opportunity to thank each of you
for your loyalty and dedication during the past year
and to say how proud we are to be associated with you
in the services of St. Joseph's Hospital.
On September 28, 1976, RISNA filed a grievance with
the Respondent alleging a violation of article IX, subpara-
graph 9.04, of the current collective-bargaining agreement.
On October 13, 1976, Gerald H. Christman, personnel
administrator of the hospital, sent a letter to the attention
of James L. O'Brien, labor representative for RISNA,
confirming the Respondent's denial of the Union's griev-
ance. On October 22, 1976, O'Brien filed a demand for
arbitration, stating that the nature of the dispute was that
the Employer violated article IX, subparagraph 9.04, by
failing to extend fringe benefits to bargaining unit mem-
bers. The Union sought a remedy awarding fringe benefits
to bargaining unit members which are extended to other
employees.
On November 16, 1976, a notice of hearing issued from
the American Arbitration Association setting January 17,
1977, as the hearing date before an arbitrator. The
arbitration hearing has since been postponed pending the
outcome of these proceedings. On December 1, 1976,
O'Brien, the Union's labor representative, transmitted a
letter to the attention of Gerald H. Christman, personnel
administrator for the hospital, as is revealed by the
following:
Dear Mr. Christman:
Pursuant to Rhode Island State Nurses' Associa-
tion's role as the collective bargaining agent for the
repstered nurses at St. Joseph's Hospital, Our Lady of
Providence Unit, we must request that the Administra-
tion of St. Joseph's Hospital supply Rhode Island State
Nurses' Association with the following information:
(1) the wage scales and fringe benefits of all
employees outside of the bargaining unit prior to
the effective date of our current collective
bargaining agreement. (An example(s) of an
"applicable employee" would include Aides,
LPN(S), housekeep&, etc., but not exclusive of
other similarly situated classifications.)
(2) The cost (to the Hospital) of the benefits
afforded these employees prior to the effective
date of our agreement.
(3) The wage scales and benefits of all applicable
employees outside of the bargaining unit at the
-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present date, December 1, 1976. l tem 3 relates to
those classifications described in ltem 1.
(4) The cost to the Hospital of the wages and
benefits described in Item three (3).
(5) The cost of proposed improvements in wages
and benefits already announced yet not currently
in existence. (i.e., extension of holidays.) ltem five
(5) relates to those classifications of employees
described in ltem one (I).
We appreciate your cooperation in this matter.
On December 10, 1976, Christman, by the following
letter, refused to supply the information requested by
RISNA:
Dear Mr. O'Brien:
This is to acknowledge the receipt of your letter of
December 1, 1976. We do not feel that the requested
information is germane to our Collective Bargaining
Agreement.
On December 16, 1976, O'Brien sent a letter to
Christman as set forth below:
1 am writing to clarify our telephone conversation of
December 9, 1976; concerning the Rhode Island State
Nurses' Association's request for information on wage
scales, benefits, and costs to the hospital.
As 1 stated in our conversation of December 9, 1976,
the information requested by the Rhode Island Nurses'
Association on December 1, 1976, is necessary for the
preparation of the upcoming Arbitration Case. As the
main issue(s) to be adjudicated at arbitration relates
directly to the information requested on December 1,
1976 (and clarified by telephone on December 9, 1976),
it is absolutely essential that St. Joseph's Hospital
furnish R.I.S.N.A. with this information.
Enclosed is a copy of our original request. I would
appreciate your prompt attention to this matter as the
date for arbitration is rapidly approaching. Further-
more, it is Rhode Island State Nurses' Association's
position that three (3) requests for the same information
is more than adequate notice.
Thank you for your cooperation.
On December 20, 1976, the Respondent, by Personnel
Director Christman, sent O'Brien a copy of its December
10, 1976, letter, wherein the hospital refused to supply the
information requested by RISNA. On March 8, 1977, the
Respondent, by its counsel, John F. Flym, transmitted a
letter to Gerard Cobleigh, counsel for the Union, to the
following effect:
I have spoken with the administration of St. Joseph's
Hospital, Our Lady of Providence Unit, on Friday
about the Arbitration and Unfair Labor Practice case.
They have again stated that they would be glad to
2 The "item" refers to the informarion requested as enumerated in the
letter from O'Brien to Christman, dared December 1, 1976. (Joint Exh. 7.)
provide a certified statement from their independent
Auditors stating that the Non-Bargaining Unit employ-
ees received a 5% raise across the board as did the
Bargaining Unit employees.
Please let me know if this would help settle this
matter.
The Testimonq-
James L. O'Brien testified on behalf of RISNA. His
testimony relates directly to the necessity and relevancy of
the information requested for the litigation of the arbitra-
tion issue.
His testimony reflects that the first itemZ is necessary to
enable the Union to ascertain exactly what the benefits
were prior to implementation of the collective-bargaining
ageement. Absent this information, there would be no
record of improved benefits other than the memorandum
posted at the hospital on September 16, 1976. According to
the testimony, to commence arbitrating without this data
would be a breach of the duty to fairly represent unit
employees. The second item requested the aggregate
total, which the Union would utilize to check against item
one. O'Brien further testified, that the third item would
reflect the increase in benefits as of the date of the request,
December 1, and illuminate with specificity which employ-
ees have received improved benefits and what those
benefits include. ltem four, according to the testimony,
would provide an aggregate total of costs to the hospital of
the improved benefits, thus enabling the Union to
determine what bargaining posture to assume in its
representation of unit employees. The fifth item relates to
classifications of employees referred to in item one. It also
relates to the cost of benefits panted as of December 1,
and prospective benefits. According to the testimony, the
Union needs this data in order to determine what the net
increase relates to, and the amount of money involved, in
costs to the Respondent.
V. CONCLUSIONS
At the heart of this dispute, and ultimately the issue to be
resolved by arbitration, is whether the words "net addition-
al increase" encompass more than wages. Both sides to this
controversy raise cogent arguments in furtherance of their
objectives.
The only issue subject to determination in this forum is
whether the Respondent is in violation of its statutory
obligation by refusing the Union's request for data.
The General Counsel and the Charging Party aver that
the latter needs this mformation in order to properly
process the arbitration case.
The Respondent contends that the requested information
is not germane to the collective-bargaining ageement and
furthermore, the unit employees received a 5-percent,
across-the-board increase, the same benefit inuring to
nonunit employees.
Respondent argues that CoIlyer3 is controlling and cites
Roy Robinson lnc., d /b /a Roy Robinson Chevrolet, 228
3 Collyer Imuiated Wwe, A Gul/and Western System Co., 192 NLRB 837
(1971).
ST. JOSEPH'S HOSPITAL 1 1 19
NLRB 828 (1977), for the proposition that Col!yer is still
Board p o l q .
Neither case. either factually or legally, supports the
Respondent's position. Deferral of the instant case is
inappropriate because the contract's terms d o not autho-
rize the action taken by the hospital. i.e.. the withholding of
information relevant to an issue to be arbitrated. Thus the
instant case does not fall within the area of contract
interpretation. and should not be deferred under the
Collyer precepts.
This is not a matter for deferral to arbitration becaust
the material is sought clearly as a statutory, rather than z
contract, right. E.g.. The Timken Roller Bearing Companj;
138 NLRB 15 (1962). enfd. 325 F.2d 746 (C.A. 7, 1963).
It has been firmly established that a union is charged
with the statutory duty af representing employees in the
bargain~ng unit, and in the performance of that duty it har
the right to information which is reasonably relevant to the
discharge of its bargaining obligation. N. L. R. B. v. Truitt
Manufacturing Companv: 35 1 U.S. 149 (1956); Fafnir
bearing Co. v. N.L.R.E., 362 F.2d 716, 721 (C.A. 2, 1968).
The Respondent. neither at the hearing nor in its brief, has
raised any rebuttal to the union's-explanation of the
necessity for. and relevance of, the information requested.
Curtiss- Wrighr Corporation, 145 NLRB 152 (1963), enfd.
347 F.2d 61 (C.A. 3, 3965).
Nor does it argue that the information. even if relevant.
is of such "picayune significance" that the withholding of
same would not impede the Union in its proper function-
ing. Cf. American Standard, Inc., 203 NLRB 1132 (1973).
The Respondent does not defend on the basis that the
Union seeks information relative to employees outside the
bargaining unit, or that production of the information
would be unduly burdensome. Rockwell-Standard Corpora-
tion, 166 NLRB 124 (1967); Pennw, Inc., 212 NLRB 675
(1974).
Although the contract dispute is presently within the
arbitration machinery, in my view. the responsibility of the
Board "in aid of the arbitral process" is not diminished.
Acme Industrial Co., 150 NLRB 1463 (1965), 385 U S . 432
(1967).
Where the Respondent has acted in fundamental
derogation of its duty to bargain, it is not necessary to
show "antipathy towards the union" in establishing the
violation. Guerdon Industries, Inc., 217 NLRB 1018 (1975).
The Respondent herein has raised no factual or legal
lssues in sipport of any argument in favor of depart;nE
from well-established Board precedent. Accordingly, in m!.
judgment? there has been shown sufficient relevance of the
requested information to warrant a finding that the Union
is entitled thereto.
1 The Respondent 1s an employer engaged in com-
rrlercc w ~ l h ~ n the rneanlng of Sectlon 2(6) and (7) of the
A ( I
2 l IN I lnlon I. 2 labor organization within the
nlc.inlnp ol hccllon 2 ( 5 ) ol the Act.
111 r r l i ~ \ ~ n p co ~urnrsh the Union with the data
I L ~ I I L \ I C ( I I I I I I \ icllc~ dCJecember 1 . 1976. the Respondent
r t I I I \ ~ Y I 1 0 I L I I ~ A I I ~ w ~ t h !he Umon and thereby engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and Section 2(6) and (7) of the
Act.
4. By the foregoing conduct, the Respondent has
interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
and is thereby engapng in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
Having found that the Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act, including the
furnishing of certain information to the Union, found
relevant and necessary herein to administer its bargaining
obligation^.
In one of the early cases, Curtiss- Wright Corporation,
supra, when the issues were still novel, the Administrative
L ~ W Judge recommended a narrow order departing from
customary procedure and expressly recommended that no
notice be required. The rationale for that recommended
Order was that months before the hearing in that case, the
respondent furnished the union the requested data malung
it a declaratory judgment matter, perhaps even a moot
case. No exceptions were taken to that recommendation.
The same Administrative Law Judge in Goodyear Aero-
space Corporarion, 157 NLRB 496 (1966), enfd. 388 F.2d
673 (C.A. 6, 1968), for the reasons expressed in the Curriss-
Wright case, did not require a notice, stating that the
rationale was equally applicable in the ~oodyea; case and
he adhered to that precedent. He determined that this is the
type of case where the furnishing of the data is sufficient to
remedy the unfair labor practice, and general notification
to all employees serves n o useful purpose.
In Western Electric, Inc., 225 NLRB 1374 (1976), the
Administrative Law Judge relied on Curtiss- Wright Cotpo-
ration in not recommending that the respondent-cease and
desist from any like or related conduct or post an
appropriate notice to employees. The Board foind that
case to be distinguishable from Curtiss-Wright, for the
reason that the information sought had been furnished to
the union therein prior to the hearing, whereas in Western
Electric the respondent did not evidence its intention to
comply with the Act by furnishing the information prior to
the hearing. The instant case, in my judgment, is controlled
by the Board's rationale in Western Electric, in view of the
fact that there is no evidence that the information in
question has been furnished to the union representatives.
Thus, it is necessary and appropriate in order to fully
remedy the violation herein that the Respondent be
ordered to cease and desist from any like or related
conduct and to post an appropriate notice to employees.
Upon the foregoing findings of fact, conclusions of law,
and the entire recoru, ana p&ant to Section 10(c) of tne
Act, I issue the following recommended:
1 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent, St. Joseph's Hospital (Our Lady of
Providence Unit), Providence, Rhode Island: its office%
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to furnish Rhode Island State Nurses'
Association, the Union herein, with the information
specifically set forth and contained in the Union's letter to
the Respondent dated December 1, 1976.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Henceforth, and upon request of the above-named
labor organization, furnish it with the information specifi-
cally set forth and contained in the Union's letter to the
Respondent dated December 1, 1976.
(b) Post at its premises copies of the attached notice
marked " ~ ~ ~ e n d ~ x . " 5 copies of said notice, on forms
provided by the Regional Director for Region 1, after
being duly signed by Respondent's authorized representa-
tives, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places. including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps it has
taken to comply herewith.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclus~ons, and Order herein shall. a s provided in Sec. 102.48 of the Rules
and Regulat~ons, be adopted by the Board and become its findmgs,
conclusions, and Order, and aU objections thereto shall be deemed waived
for all purposes.
5 In the event that the Board's Order is enforced by a Judgment of a
U ~ t e d States Coun 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 Scata Coun of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONN LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act and has ordered us to post this notice and to carry out
its provisions.
WE WILL NOT refuse to furnish Rhode lsland State
Nurses' Association with the information set forth and
contained in the Union's letter to us dated December 1,
1976.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed under Section 7 of the National
Labor Relations Act.
WE WILL furnish the above-named labor organiza-
tion with the information it has requested in its letter to
us dated December 1, 1976.
ST. JOSEPH'S HOSPITAL
(OUR LADY OF PROVIDENCE
UNIT)