Staten Island University Hospital

National Labor Relations Board - Board Decisions

Jun 13, 2001

334 N.L.R.B. 286 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 286
Staten Island University Hospital and New York State
Nurses Association. Case 29–CA–23193
June 13, 2001
ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
The administrative law judge’s decision in this matter
issued on June 22, 2000. On that same date an Order
was issued transferring the matter to the Board for con-
sideration and decision. In his decision the judge found
that the Respondent did not violate Section 8(a)(1) and
(5) of the Act when it refused to provide the Charging
Party with a copy of a contract that the Respondent nego-
tiated with another employer to provide certain rehabili-
tative services. Subsequent to the judge’s decision and
transfer Order, and in connection with an arbitration pro-
ceeding which involved the same set of facts as those
presented to the administrative law judge, the Respon-
dent provided the Charging Party with a copy of the re-
quested contract. In return, the Charging Party agreed to
request that the instant matter be withdrawn. That re-
quest was filed with the Board on March 20, 2001.
Based on the foregoing, the Charging Party’s request
to withdraw the subject case is approved. Accordingly,
the complaint that issued in this matter on February 17,
2000, is dismissed.1

Emily DeSa, Esq., for the General Counsel.
Kevin J. McGill, Esq., for the Respondent.
Douglas L. Goldman, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me in Brooklyn, New York, on April 6,
2000. The charge was filed by the Union on December 9,
1999, and the complaint was issued on February 17, 2000. In
substance, the complaint alleges that since on or about July 14
and September 9, 1999, the Respondent has refused to provide
to the Union a copy of the contract for services between the
Respondent and Island Rehabilitative Service Corporation.

1 Chairman Hurtgen also approves the withdrawal request. How-
ever, he wishes to note that “informational” disputes, such as the instant
one, are far better left to the processes of arbitration than to litigation
before the NLRB. In the instant case, it appears that the arbitrator was
presented with essentially the same set of facts as had been presented to
the Board’s administrative law judge. The Respondent then produced
the information to the arbitrator. Thus, the information was produced
in the normal course of arbitration, and there was no need for the
NLRB litigation. Chairman Hurtgen believes that leaving this matter to
arbitral processes in the first place would have saved public resources
and would have been consistent with the central role that arbitration
plays in labor relations in this country.
Members Liebman and Truesdale do not address the issue of the
proper forum for resolving “informational” disputes as that issue is not
specifically raised by this withdrawal request.
On the entire record in this case, including my observation of
the demeanor of the witnesses and after reviewing the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also is agreed and I find that the
Union is a labor organization as defined in the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The Respondent operates a hospital in Staten Island and has,
for many years, had a collective-bargaining relationship with
the New York State Nurses Association. The most recent con-
tract runs for a term from April 1, 1998, to March 31, 2001.
On June 30, 1999, the Respondent sent a letter to the Union
stating its intention to subcontract out hemodialysis services
that had previously been performed by about nine bargaining
unit nurses. The letter read:

This letter serves as the twenty (20) day notice of the
position elimination of 6.6 RN FTE’S in the Hemodialysis
Unit effective August 1, 1999. Staten Island University
Hospital will no longer be providing Hemodialysis ser-
vices.
This position elimination will be guided by the provi-
sions of Section 4.14 and 4.15 of the . . . collective bar-
gaining agreement.
Please contact me to set up a convenient time to dis-
cuss the process for this displacement.

Section 4.14 of the contract (entitled job security), provides,
in substance, that no RN with 4 or more years of service shall
be laid off unless (a) the State mandates closure of beds, (b) the
Hospital closes beds due to sustained decreased census, (c) the
Hospital curtails services, (d) the hospital has a sustained pro-
jected financial loss, or (e) there are future circumstances which
threaten the hospital’s operation or acute care status.
Section 4.15 of the contract provides for a system whereby
seniority is used in the event of layoffs or permanent displace-
ment.
On July 8, 1999, the Union filed a set of grievances regard-
ing the anticipated change. The grievances charged that the
employer violated section 4.14, 4.15, 16.05, and abused section
14.
Section 16.05 is a successor clause which purports to bind
any corporate or operational successors or assigns of the hospi-
tal. (This would hardly be applicable to the present situation).
Section 14 of the collective-bargaining agreement is a man-
agement-rights clause which reads as follows:

Except as otherwise provided . . . the Employer retains the ex-
clusive right to hire, direct, and schedule the working force; to
plan, direct, and to control operations; to discontinue, subject
to the provision of this article, or reorganize or combine any
division or branch of operations; however employees affected
by such reorganization or combination shall have the option
334 NLRB No. 40
STATEN ISLAND UNIVERSITY HOSPITAL 287
to take similar jobs at the Hospital or transfer to the new divi-
sion or branch; to hire and layoff employees; to promulgate
rules and regulations; to introduce new or improved methods
or facilities regardless of whether or not the same causes a re-
duction in the working force and in all respects to carry out, in
addition, the ordinary and customary functions of manage-
ment. None of these rights shall be exercised in a capricious
or arbitrary manner. [Emphasis added.]

Finally noted is section 16.06 which states, in substance, that
the parties “acknowledge that they had full opportunity. . . prior
to the execution of [the agreement]. . . to make any demands or
proposals” and that neither party during the life of the agree-
ment has an obligation to bargain with respect to “any matter,
whether included or not included in this agreement, except as
provided in this agreement.”
On July 13, 1999, a meeting was held between the parties re-
garding the hemodialysis unit where the Union took the posi-
tion that elimination of the jobs was a violation of the contract.
At this meeting, the Union’s representative, Jacqueline Car-
taldo, requested certain information and this was confirmed by
letter dated July 14, 1999.
On July 14, 1999, the Union transmitted to the hospital, a re-
quest for information as follows:

1. Rationale for change in the provider of hemodialysis
services.
2. Expected benefits for Staten Island University Hos-
pital.
3. Name of company providing service.
4. Corporate structure of new entity.
5. Contact persons including, names, addresses, and
phone numbers.
6. Details regarding transaction.
(a) Type of transaction.
(b) Financial arrangements.
(c) Relationship of new entity to hospital.
(d) Status of hemodialysis unit in the hospital.
7. Entity paying employees’ salaries.
8. Are current bargaining unit RN’s being offered posi-
tions by new entity?
9. Will bargaining/non-bargaining unit RN’s be of-
fered positions by the new entity?

In response to the Union’s request for information, the hospi-
tal, on August 11, 1999, replied as follows:

1. The rationale for the change in provider for hemodi-
alysis is that the service can be provided in a more cost ef-
fective manner.
2. The expected benefits for SIUH is cost savings. . . .
3. The services will be provided by Island Rehabilita-
tive Services Corporation.
4. Island Rehabilitative Service Corporation is a sepa-
rate entity, totally independent from the hospital. We are
not aware of the details of their corporate structure.
5. The contact person is. . . .
6. Details regarding the transaction:
(a) Island . . . has been contracted to provide hemo-
dialysis services to inpatients who are acutely ill
and in renal failure. Staff equipment and supplies
will be provided by Island. . . .
(b) The financial arrangements are set forth in a
contract for service agreement.
(c) Island . . . is an independent contractor and not a
partner or joint venture with the Hospital.
(d) The Hemodialysis unit in the Hospital has been
eliminated and replaced with an outside vendor.
7. Island . . . pays the salaries of their employees.
8. The current bargaining unit RN’s were offered other
comparable positions with the Hospital. As of today, all
but one, has accepted another position that maintains their
status and salary. One RN voluntarily chose not to take a
vacancy or exercise bumping rights. She instead requested
the layoff and recall rights. This was agreed to by the
Hospital.
9. Employment opportunities would at the discretion
of Island. . . .

On August 20, 1999, a meeting was held between the parties
where, among other things, the Union requested a copy of the
contract between the Hospital and Island. This request was
memorialized by a faxed letter dated August 25, 1999.
On August 25, 1999, the hospital responded and stated that
“in order to evaluate your request, we would need to understand
the relevance of this information to the hospital’s responsibility
to bargain in good faith . . . regarding the Hemodialysis unit.”
By letter dated September 9, 1999, Cataldo, on behalf of the
Union, faxed a letter to the hospital reading in part:

In your letter, you questioned the relevancy and neces-
sity of my request for information. As I indicated to you
at the meeting on August 20, 1999, this is important be-
cause the company taking over is employing registered
nurses who will be taking over work done by bargaining
unit members on hospital premises. Those members have
had their positions eliminated.
We are also concerned about the employment condi-
tions for bargaining unit members on other units on the
hospital. You stated at the August 20th meeting that the
Island registered nurses would be dialyzing patients di-
rectly on the critical care units. You also indicated that
bargaining unit members would be required, if necessary,
to respond to emergency situations such as a code. These
employment conditions and the aforementioned interac-
tions between NYSNA union employees and Island Rehab
non-union employees affect our bargaining unit.

The Respondent has refused to furnish a copy of its contract
with Island and that is the only issue in the present case. There
is no contention being made by the General Counsel that the
Respondent has failed to bargain in good faith regarding the
subcontracting of the hemodialysis work or that the Company
has failed and refused to provide any other relevant information
regarding this transaction.
In the meantime, the grievance progressed up the grievance
ladder and an arbitration hearing was scheduled for some time
in May 1999. The grievance, to the extent it contends that the
successorship clause has been breached is, in my opinion, with-
out any merit at all. The grievance also asserts, however, that

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 288
even if the hospital may have the right to terminate the hemodi-
alysis unit under the management-rights clause, the exercise of
that right cannot be arbitrary or capricious.
III. ANALYSIS
With respect to information requests (either by unions or
companies), the Board uses a broad discovery type of standard
to determine the relevance of the request. Potential or probable
relevance to the filing of a grievance is deemed sufficient to
require the requested party to provide the information. Bell
Telephone Laboratories, 317 NLRB 802, 803 (1995). More-
over, it need not be shown that the information, if given, would
aid the requesting party in advocating its grievance. It may be
relevant for the purpose of giving that party information which
would dissuade it from wasting its time and money in going
forward with a grievance that would not be successful. NLRB
v. Acme Industrial Co., 385 U.S. 432, 437 (1967).
Where, however, the information sought concerns matters
outside the bargaining unit, the burden is on the requesting
party to show the relevance of the material sought. Connecticut
Yankee Atomic Power Co., 317 NLRB 1266 (1995). Typically,
requests by a union for contracts that an employer has with
another employer fall within this category and the union has the
burden of establishing relevance. For example, in Southwest-
ern Bell Telephone Co., 173 NLRB 172, (1968), the Board
rejected a union’s right to information about the cost of subcon-
tracting because the employer never contended that cost was a
factor in its decision to subcontract. Similarly, in Detroit Edi-
son Co., 314 NLRB 1273 (1994), the Board found that a re-
quest for subcontracting information was legitimately refused
where the collective-bargaining agreement gave the company
the right to subcontract and there was no showing that the in-
formation was sought for any purpose relating to contract ad-
ministration or negotiation.
In F. A. Bartlett Tree Expert Co., 316 NLRB 1312 (1995),
the union, during the course of the contract negotiations, re-
quested copies of the employer’s contracts with its customers.
Its request was based on the theory that the contracts were nec-
essary in order for it to make its own proposals regarding wages
because the employer asserted that it could not grant a uniform
wage rate because its own contracts had different prices which
would therefore not allow it to pay equal wages to all employ-
ees irrespective of what contract to which they were assigned.
In rejecting this theory, the Board noted that the union was
seeking information that was not presumptively relevant for
collective bargaining and that given the nature of the contract
bidding procedures, the General Counsel could not “claim that
the Union would need to examine the contracts in order to as-
sure itself that the customers were not all paying the Respon-
dent exactly the same amount on each contract.”
In the present case, the Union filed a grievance alleging that
the hospital’s elimination of the hemodialysis unit constituted a
breach of contract in that although the collective-bargaining
agreement may permit the hospital to eliminate this unit, the
hospital, under the contract, could not exercise that right in an
arbitrary or capricious manner. That is, the Union did not con-
tend that the collective-bargaining agreement was breached
simply because bargaining unit jobs were taken over by and
performed by the employees of a subcontractor. Therefore, the
only grievable issue is whether the hospital’s decision was arbi-
trary or capricious; a substantially different and more difficult
hurdle for the Union to surmount. Any information request
therefore has to be relevant to the issue of whether the elimina-
tion was arbitrary or capricious.
In response to the Union’s requests for information, the hos-
pital furnished substantial information and met with the Union
to discuss the matter. What the hospital refused to furnish was
the actual contract between it and its subcontractor.
The reason stated by the Union’s representatives for wanting
copies of the contract was that bargaining unit members would
be required, if necessary, to respond to emergency situations
such as a code and that such interactions between hospital
nurses and the subcontractors nonunion nurses would affect the
bargaining unit. This, to me, is essentially a conclusory state-
ment. There is nothing in the asserted rationale which explains
to me in what way the interactions between the employee of
Staten Island Hospital and employees of its subcontractor
would have on the wages, hours, or other terms and conditions
of employment of the represented unit.1
In my opinion, Hospital Episcopal San Lucas, 319 NLRB 54
(1995), is distinguishable. In that case, the union sought the
contract that the employer made with a subcontractor which
operated the respiratory therapy unit within the hospital. A
copy of the contract was not sought in order to determine if the
employer had breached any provision of its existing collective-
bargaining agreement. Rather, it was sought to enable the un-
ion to respond to the employer’s last offer for a contract and the
union wanted to see if similar unrepresented employees were
being offered comparable wages. Unlike the present case, the
union in Hospital Episcopal San Lucas was seeking copies of
the contract for the purpose of contract negotiations and not, as
here, for contract administration purposes.2
Nor controlling, in my opinion, is Bell Telephone Laborato-
ries, supra. In that case the Board held that a copy of a subcon-
tract was relevant to a union’s grievance inasmuch as the ma-
jority concluded that there was a particular contract provision
which could be relied on by the union and to which the infor-
mation was arguably relevant. This is not the case here as the
asserted reason for the Union’s request for the contract would
not, in my opinion, be either helpful or harmful to the Union’s
grievance and to its assertion that the elimination of the hemo-
dialysis unit was arbitrary or capricious. Thus, in my opinion, a
copy of the contract between the hospital and the contractor
would add nothing of substance to the information that the
hospital has already furnished to the Union in response to its
request.3

1 There are many situations where bargaining unit employees of one
company work in close contact with employees of a subcontractor.
Does that mean, that such a relationship, by itself, would give any
union the right to obtain the commercial contracts between separate
employers.
2 In Lakeland Bus Lines, JD–06–99(NY), I discussed the difference
between information requests made in the context of collective bargain-
ing and those made for contract administration purposes.
3 The present situation is also distinguishable from cases where a un-
ion requests contract information between two ostensibly separate

STATEN ISLAND UNIVERSITY HOSPITAL 289
CONCLUSION OF LAW
The Respondent has not violated the Act in any manner al-
leged in the complaint.
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended 4

companies where the Union has objective and good-faith reasons to
believe that the two entities constitute a single employer. Anchor Motor
Freight, 296 NLRB 944, 948 (1989).
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.
ORDER
The complaint is dismissed.