The New York Presbyterian Hospital

National Labor Relations Board - Administrative Judge Opinions

Dec 8, 2008

02-CA-038512 (N.L.R.B. Dec. 8, 2008)

JD(NY)–43–08
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
THE NEW YORK PRESBYTERIAN HOSPITAL
and Case No. 2-CA-38512
NEW YORK STATE NURSES ASSOCIATION
Simon-Jon H. Koike, Esq.,
Counsel for the General Counsel
Elizabeth Orfan, Esq., Counsel for
the Charging Party
James Frank, Esq., Steven M.
Swirsky, Esq., and Terence McGuire, Esq.,
Counsel for the Respondent
DECISION
Statement of the Case
RAYMOND P. GREEN, Administrative Law Judge. I heard this case in New York on
September 3, 4, 9 and 10, 2008. The charge and the first amended charge were filed on
October 31, 2007 and January 24, 2008. The Complaint was issued on May 30, 2008 and as
amended at the hearing, alleged as follows:
1. That since on or about October 25, 2007, the Respondent has violated Section
8(a)(5) by refusing the Union’s request for the following information requested on October 11,
2007.
(a) All documents between Respondent and Columbia University Medical Center
and/or all documents between the Respondent and Trustees of Columbia
University concerning the employment of nurse practitioners for the period
January 1, 2004 to date.
(b) All documents which show the shifts worked of all nurse practitioners
designated as union represented employees.
(c) All documents which show the names, titles, unit worked, shifts worked,
status as full or part time, and date of hire and date of termination of all nurse
practitioners who are not designated as union represented employees working
on the premises of the Respondent for the period January 1, 2004 to date.
(d) Job descriptions for union and non-union nurse practitioners.
Among other things, the principle contention of the Respondent is that the nurse
practitioners, about whom information is being sought, are employed by Columbia University
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and not by the Respondent. As such, it contends (a) that these particular nurse practitioners
are not in the bargaining unit; (b) that Columbia University has refused to divulge this
information to the Respondent; (c) that the Respondent does not have any obligation to provide
information regarding these non-unit employees; and (d) that the Respondent does not have the
information.
On the entire record, 1 including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
I. Jurisdiction
The parties agree 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. It also is agreed 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 Practice
The New York Presbyterian Hospital is a huge metropolitan hospital encompassing six
main buildings plus about 10 satellite clinics. These are located mainly in the Washington
Heights section of Manhattan. The Hospital employs about 2600 bargaining unit nurses.
The Respondent is also a teaching hospital. Accordingly, it has an affiliation with the
Columbia University School of Medicine. The School of Medicine in turn is one of many schools
operated by the University. (Columbia University has an undergraduate college plus numerous
graduate schools such as the School of Medicine, the School of Nursing, the School of Social
Work and the School of Law).
In terms of the relationship between the Respondent Hospital and the Columbia School
of Medicine, all or almost all of the physicians who perform medical services for patients at the
Hospital are on the faculty of Columbia University and are directly employed by that institution.
(Columbia University is a not-for-profit entity and is one of the major private universities in the
country). Also, although not involved in the present case, nurse faculty of the School of Nursing
also work at the Hospital as this is a venue for teaching nurses.
The Columbia University School of Medicine is not alleged as a Respondent in this case
and therefore I take it that for purposes of this proceeding, the General Counsel is not alleging
that Columbia University and the Respondent constitutes a single employer, a joint employer,
an alter ego, or a joint venture.
The parties agree that since 1973, the New York State Nurses Association and the
Respondent have had a collective bargaining relationship covering various classifications of
nurses, including nurse practitioners. The Union was first certified by the New York State Labor
Board and later by the NLRB.
The parties further agree that for many years, the Union has represented a category of
people now called nurse practitioners who have been direct employees of the Respondent

1 With one exception, the Respondent’s unopposed Motion to Correct the Transcript is granted.
However, on page 105 line 22, (not line 23), the transcript should read: MR. FRANK: We don’t have job
titles.”
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hospital. Thus, although this term has not been used in the collective bargaining agreement, the
parties concur that they are encompassed by the category of Clinical Nurse VI.
Introduced into evidence were several successive collective bargaining agreements, the
last of which was effective for the period from January 1, 2007 through December 31, 2010.
In all of these contracts, Article 1, entitled Agreement Scope, states inter alia that the
agreement covers all full-time and regularly employed part-time professional nurses, per diem
nurses and individuals authorized to practice as registered professional nurses employed by
New York Presbyterian Hospital, Columbia Presbyterian Medical Center in a variety of titles
including Clinical Nurse VI, (which encompasses nurse practitioners), but excluding various
supervisory and managerial people who hold nursing degrees as well as all office clerical,
managerial and supervisory employees as well as confidential employees and security
employees.
These contracts also contain a standard union security clause requiring membership
after 30 days of employment.
In addition, all of these contracts have a side letter which contains the following
provision:
4. Except for certification, training or experimentation and emergencies,
registered nurses who are outside of the bargaining unit will not routinely or
consistently perform those clinical duties normally performed by members of this
bargaining unit.
Nurse practitioners are people who are licensed nurses who have gone further in their
education to obtain an advanced degree and certification that allows them to perform, some, but
not all of the functions normally done by a physician in a particular field of practice. (For
example, in emergency rooms or in intensive care units).
New York State statutes define the permissible functions of registered professional
nurses, licensed practical nurses and nurse practitioners. Under the law, a certified nurse
practitioner may diagnose illness and physical conditions and perform “therapeutic and
corrective measures within a specialty or practice, in collaboration with a licensed physician
qualified to collaborate in the specialty involved; provided such services are performed in
accordance with a written practice agreement and written practice protocols. The written
practice agreement shall include explicit provisions for the resolution of any disagreement
between the collaborating physician and the nurse practitioner regarding a matter of diagnosis
or treatment that is within the scope of the practice of both. To the extent the collaborating
practice agreement does not so provide, then the collaborating physician’s diagnosis or
treatment shall prevail. “
For many years, the Hospital has employed a group of nurse practitioners who have
performed their services for patients located in the hospital. It is not clear exactly when, but it
seems that in or about 2004, a small group of nurse practitioners began to be seen in the
Hospital performing medical services for patients located in the Hospital but who were not
directly employed by the Respondent. Rather, this group of nurse practitioners, which seems to
have grown over time, was put on the payroll of Columbia University School of Medicine.
Union representative, Roberta Murphy testified that in the spring of 2004, she learned
that there was a nurse practitioner in one of the Hospital’s departments who was not in the
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Union and that this person was an employee of Columbia University School of Medicine.
Murphy states that when she investigated the matter, she discovered that there were about
seven other nurse practitioners who were working in the hospital in various medical
departments but who were employed not by the Hospital but by the University.
On June 4, 2004, the Union filed a grievance. In substance, this stated that the Hospital
violated the contract in relation to, but not limited to “Section 1, Agreement Scope.” It states that
the “hospital has hired nurse practitioners in a non-union capacity to do bargaining unit work.”
As a remedy, the grievance states: “Make whole. Make nurse practitioners union positions.”
By letter dated May 18, 2005, Stacie Williams, Respondent’s Manager of Human
Resources, wrote to Roberta Murphy as follows:
This letter is in response to the above referenced Association grievance.
Please be advised that the individuals you are referring to are Columbia
University employees, not Hospital employees. They do not fall within the
Hospital’s span of control nor are the governed by the Hospital’s Policies and
Procedures.
Therefore, this grievance is denied.
Murphy testified she had several meetings with management and that the Respondent
consistently took the position that the grievance lacked merit because the nurse practitioners
involved were not covered by the collective bargaining agreement. The Respondent claimed
that these people were not employees of the Hospital but rather were employees of the
University.
On August 31, 2006, the Union filed a charge in Case No. 2-CA-37868 against both the
Hospital and the University. This alleged that the Hospital and the Trustees of Columbia
University were a single employer or alter egos and that they had restrained and coerced nurse
practitioners at New York Presbyterian Hospital by employing nurse practitioners to work at the
Hospital under terms and conditions of employment different from those specified in the
collective bargaining agreement. The charge further alleged that the Hospital and the
University, as a single employer or alter ego, discriminated against employees based on their
union affiliation or membership by not applying the terms and conditions of employment
specified in the agreement between the Nurses Association and the Hospital.
By letter dated October 23, 2006, the Regional Director informed all of the parties to the
above referenced charge that she was deferring any further processing of the charge to
arbitration.
By letter dated October 30, 2006, Michael T. McGrath, attorney for Columbia University,
wrote to counsels for the Union and the Hospital. In substance, he stated that in relation to
Case No. 2-CA-37868, the University, as a non-signatory to the collective bargaining
agreement, although not objecting to the Board’s deferral of the matter, it would not participate,
as a party, in any arbitration, nor would it be bound to any award or agreement resulting from
such arbitration. The letter advised both counsels that the University would advise the NLRB of
its position regarding the arbitration proceeding.
On February 27, 2007, the Union, by its counsel issued a subpoena duces tecum, to
Bart Minsky of New York Presbyterian. (Pursuant to Section 2308(b) of the New York Civil
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Practice Law and Rules). This demanded that he appear at the arbitration hearing and produce
the following documents.
1. All documents between New York Presbyterian Hospital and Columbia
University Medical Center and/or the Trustees of Columbia University… concerning
employment of nurse practitioners for the period January 1, 2004 to date.
2. Documents as will show the (a) names, (b) titles, (c) unit(s) assignments, (d)
shift(s) worked and (e) date of hire/termination date of all nurse practitioners
designated as NYSNA represented employees.
3. Documents as will show the: (a) names, (b) titles, (c) unit(s) assignments, (d)
shift(s) worked and (e) date of hire/termination date of all nurse practitioners who
are not designated as NYSNA represented employees working on the premises of
New York Presbyterian Hospital for the period January 1, 2004 to date.
4. Documents as will show the job description and/or duties for each Nurse
Practitioner in items #2 and #3 above.
5. Documents as will show (a) names, (b) titles, (c) unit(s) assignments, (d) shift(s)
worked and (e) date of hire/termination date for any nurse practitioner who has
worked at New York Presbyterian Hospital in the period January 1, 2004 to date
who has been at any time designated as an employee of Columbia University
Medical Center and/or Trustees of Colombia University in the City of New York.
6. Documents as will show the salary/wages and benefits of all Nurse Practitioners
not currently represented by NYSNA as set for in item #3 for the period January 1,
2004 to date.
It seems that the arbitrator designated to hear the case was ill and the hearing was
postponed. Therefore, there is no evidence that the Respondent refused, at that time, to provide
the information requested by the subpoena.
By letter dated May 31, 2007, Mr. Frank, attorney for the Respondent wrote to Elbert
Tellem and stated that the arbitration had been rescheduled to October 25, 2007 and that the
arbitrator was Jonas Aarons. As far as I know, Columbia University was not given notice of the
hearing and was not invited to attend.
The Union’s demand for arbitration states:
Nature of Dispute: Association Grievance – Grievance #73873: Violation of the
Collective Bargaining Agreement, including but not limited to Section 1 –
Agreement Scope. The employer has violated the Collective Bargaining
Agreement by employing non-union nurse practitioners to perform bargaining unit
work of union nurse practitioners.
Claim or Relief sought: 1) the employer will cease and desist employing non
union nurse practitioners. 2) Make the non-union nurse practitioners union
employees. 3) Make registered nurses whole for any and all losses incurred.
On October 10, 2007, the Union issued another subpoena in the arbitration case. This
subpoena demanded that the Hospital produce many of the same documents that had
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previously been requested on February 27, 2007. However, the subpoena additionally called for
the production of another set of documents that could relate to the Union’s contention that the
Hospital and the University were either an alter ego, a single employer or joint employers.
By letter dated October 11, 2007, the Union requested information from Stacie Williams,
the Hospital’s Director of Labor Relations. This basically was a request for the same
information that was requested by the subpoena, except that it did not request information
regarding the relationship between the Respondent Hospital and Columbia University. Thus, if
one could categorize the information requested by this letter, it would be information that would
show, irrespective of who was their employer, (a) who were the nurse practitioners who worked
in the hospital; (b) when were they hired or terminated; (c) what jobs they were assigned to do;
(d) which departments or areas of the hospital were they assigned to work; (e) were they full-
time or part time workers; and (f) on what shifts did they work.
With respect to this information request, it is admitted by the General Counsel that the
information regarding nurse practitioners who are employees of the Respondent, had been, for
the most part, turned over to the Union in other contexts. The only information that the General
Counsel asserts was not turned over was in response to the request for the shifts worked by the
Respondent’s nurse practitioners. The Respondent’s position on this was that the omission was
inadvertent. (But if inadvertent, why has the Respondent still failed to furnish this information?)
By letter dated October 24, 2007, the Respondent, by its counsel asked Union counsel
to withdraw the subpoena. (This apparently is the procedure required under New York’s Civil
Practice rules).
The arbitration hearing opened on October 25, 2007, (without the presence of Columbia
University), and the parties presented arguments about the appropriateness of the information
demanded by the subpoena. For better or worse, there was no transcript made. But the
Union’s witness testified, without contradiction, that the arbitrator simply refused to decide the
issue. Thus, although the Respondent’s Counsel asserted at the outset of this hearing, that the
arbitrator decided against the Union and that the arbitrator concluded that the subpoenaed
information was not relevant, this was not shown to be the case.
After presenting evidence in the arbitration case, the Union, because of the refusal of the
Respondent to turn over the information requested, asked for an adjournment. And on October
31, 2007, the Union filed the instant charge which is now before me.
In the course of the investigation, the Respondent asserted that it did not have the
information requested about the nurse practitioners who were employees of Columbia
University. The Region suggested that perhaps the Respondent might request Columbia
University to provide that information to the Respondent which could then be forwarded to the
Union. This was done on March 14, 2008. And by letter dated April 3, 2008, Counsel for the
University replied. In pertinent part, he stated:
As we previously advised you and counsel for NYSNA, [the Union], Columbia is not
a signatory to the collective bargaining agreement between the Hospital and
NYSNA; nor is it a party to the arbitration; nor will it be bound by the outcome of
that proceeding. Accordingly Columbia is under no obligation to respond to your
request or to the subpoena. Nevertheless, in an effort to assist the Hospital and
NYSNA in their resolution of this matter, but without waiving any of its rights,
Columbia provides the following information.
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Response to Inquiry No. 1
We are unaware of any “documents between” the Hospital and the University … as
that phrase is undefined in the Subpoena. We note, however, that several of the
University Faculty Practices employ, inter alia, Nurse Practitioners to support those
practices. Some of these NP’s work in buildings or on floors, (or in portions of
floors), that are controlled by the Hospital. Those NP’s are employees of the
University. Consequently, the terms and condition of their employment are set by
the University. Additionally, we are aware that the Hospital contracts with certain
faculty of the School of Nursing for the provision of NP services at the Hospital. It
is my understanding that all such NP’s are now credentialed through the Hospital’s
Nursing Office. The Hospital has those records to the extent that they are
responsive to this request.
Response to Inquiry No 2
(Documents showing the names, titles etc of union represented nurse
practitioners). Not applicable. Inquiry No. 2 addresses Hospital employees.
Response to Inquiry No. 3
(Documents showing names, titles, etc on nurse practitioners who are not
designated as union represented employees working at the Hospital). Not
applicable. Inquiry No. 3 addresses Hospital employees. (The letter indicates that
University Counsel did not interpret the letter as asking for information regarding
University employees).
Response to Inquiry No. 4
See response to Inquiry 2 and 3.
Response to Inquiry No. 5
To the extent that this inquiry refers to NP’s who are employed in University
Faculty Practices but work in buildings or on floors, (or in portions of floors), that
are controlled by the Hospital, or to the contracts between the School of Nursing
and the Hospital for NP services, we believe that the Hospital has potentially
responsive documents in the credentialing files of such NPs.
Response to Inquiry No 6
See response to inquiry 3 above. (This was request for salary and benefits of non-
union Nurse practitioners).
Response to Inquiry No. 7
See response to inquiries 1 through 6 above. (This was request for any other
documents concerning nurse practitioners not represented by the Union).
The University’s letter goes on to respond to items in the Union’s subpoena relating to
the issue of joint employer, alter ego or single employer. With respect to certain information
relating to the University, counsel referred to the filing of IRS form 990s. He states that
Columbia University is a Not-For-Profit organization and that accordingly, there are no owners,
no directors, and no shareholders. The letter states that it shares no common labor relations
policies with the Hospital and that Columbia’s chief labor relations official is Sheila Garvey, who
since April 2007, has been the Assistant Vice President of Labor Relations. The letter also
states that the University’s chief human resources official is Lucinda Durning, who has been the
Vice President of Human Resources since July 2006.
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Ultimately, the Complaint in this case was issued on May 20, 2008. It should be noted
that the Complaint alleges that the Respondent refused to furnish some, but not all of the
information that the Union sought during the arbitration proceeding. Thus, the Complaint does
not allege that the Respondent refused to furnish information relating to the possible joint or
single employer relationship between the Respondent and Columbia University. On the
contrary, the Complaint alleges only that the Respondent refused to furnish information that
would identify the nurse practitioners on the payroll of Columbia University who actually
performed nurse practitioner work in the Respondent’s hospital and to indicate when they were
employed, where in the hospital they were assigned, what their shifts were, whether they were
full or part time workers and what jobs they were assigned to do. As to the nurse practitioners
who were on the payroll of the Hospital, it is conceded that most of the information, except for
identifying what shifts they worked, had been turned over to the Union at one time or another.
Although the Respondent has claimed that that it does not have information regarding
the nurse practitioners who are on the University’s payroll, the evidence shows otherwise.
In order to work at the Respondent’s Hospital, a nurse practitioner, whether or not
directly employed by the Hospital must be “credentialed.” This means that at the end of a review
process conducted by the Hospital, they would receive privileges to work in a specific area of
medicine within the Hospital.
In order to obtain privileges, a nurse practitioner even if on the payroll of Columbia
University, would have to submit the same information and forms that would have to be filled out
by nurse practitioners that are employed directly by the Respondent. Thus, if a Columbia
University nurse practitioner is going to be allowed to work on the Hospital’s premises, he or she
would need to first submit to the Respondent, directly or through someone at Columbia, the
following documents: (a) a Collaborative Practice Agreement; (b) a form called “Delineation of
Privileges;” (c) a “Scope of Practice Agreement;” (d) a “Verification of Practice Protocol;” and (e)
a “Statement of Clinical Duties.” The Collaborative Practice Agreement is a document signed
by the physician under whom the nurse practitioner will be authorized to practice. This
document lists the job duties that the nurse practitioner will be expected to perform at the
hospital. Thus, contrary to the Respondent’s claim that it did not have possession of the
information requested by the Union, all of these documents are kept by the Respondent and
therefore are within the scope of its control. They show among other things, the nurse
practitioners’ names, (including those on Columbia University’s payroll); the departments or
units where the nurse practitioners are assigned to work; their job duties and their start dates at
the hospital.
Analysis
The information sought in the present case relates to the processing of a grievance that
the Union filed against the Respondent. It therefore is information that is sought for the purpose
of administering the collective bargaining agreement. The legal test in these types of situations
is whether the information is relevant to the grievance and the determination of relevancy is
made based on a liberal, discovery type of standard. NLRB v. Acme Industrial Co., 385 U.S.
432, 437 (1967); Knappton Maritime Corporation, 292 NLRB 236 (1985). Moreover, the fact
that the information may even tend to disprove a grievance is as equally relevant as those
situations where the information would tend to support a grievance. This is because the
process of resolving grievances is served by the disclosure of information which will tend to
resolve grievances one way or the other. NLRB v. Acme Industrial Co., supra, Square D
Electric Co., 266 NLRB 795, 797 (1983); Ohio Power Co., 216 NLRB 987, 991.
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I note here that there is a somewhat different standard when information is sought about
bargaining unit employees versus non-bargaining unit employees. The General Counsel’s
burden is lower when dealing with information about bargaining unit employees than when the
information requested relates to non-bargaining unit people.
In Sheraton Hartford Hotel, 289 NLRB 463 (1984), the Board stated:
Section 8(a)(5) obligates an employer to provide a union requested information if
there is a probability that the information would be relevant to the Union in fulfilling
its statutory duties as bargaining representative. Where the requested information
concerns wage rates, job descriptions, and other information pertaining to
employees within the bargaining unit the information is presumptively relevant.
Where the information does not concern matters pertaining to the bargaining unit,
the Union must show that the information is relevant. When the requested
information does not pertain to matters relating to the bargaining unit, to satisfy the
burden of showing relevance, the union must offer more than mere suspicion for it
to be entitled to the information.
This does not mean that a union seeking information about non-bargaining unit people,
has an inordinately high burden for establishing relevance. The Board has held that this burden
can be met where a union has demonstrated the “‘probability that the desired information is
relevant, and that it would be of use to the union in carrying out its statutory duties and
responsibilities.’ Frito-Lay Inc., 331 NLRB 1296 (2001).
For example, in ATC, LLC d/b/a ATC of Nevada; 348 NLRB No. 43, (2006), the
information requested by a union was similar to the information requested in the present case.
The employer refused a union’s request for information in relation to a grievance concerning the
Company’s alleged use of non-unit employees to perform bargaining unit work. The Union
requested the names, addresses, telephone numbers, dates of hire, of non-unit employees who
had been assigned to perform bargaining unit work. Additionally, the Union asked for the hours
that these people worked while doing bargaining unit, and their rates of pay, including benefits,
when they were assigned to do bargaining unit work. The Administrative Law Judge, in a
Decision adopted by the Board, rejected the Respondent’s argument that it did not have to
furnish this information because the information related to non-bargaining unit employees.
In Postal Service, 310 NLRB 391 (1993) the Board held that the employer, in the context
of a grievance concerning a suspension for attendance irregularities, was required to turn over
the time cards of supervisors where the absenteeism/lateness rules were the same for
supervisors and bargaining unit employees. In that case the Board stated:
Requests for information relating to persons outside the bargaining unit require a
special demonstration of relevance. Thus, the requesting party must show that
there is a logical foundation and a factual basis for its information request. The
standard to be applied in determining the relevance of information relating to
non-unit employees, is however, a liberal “discovery type standard.” NLRB v.
Acme Industrial Co., 385 U.S. 432, 437 (1967). And in applying this standard,
the Board need find only a probability that the requested information is relevant
and would be of use to the union in carrying out its statutory responsibilities.
The Union’s grievance in this case relates to the alleged performance of bargaining unit
work by certain individuals whom the Respondent asserts are not really its own employees.
Nevertheless, the Union had obtained reliable information that these individuals, (who happen to
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be on the payroll of Columbia University), performed work as nurse practitioners, (a bargaining
unit position), within the hospital for patients who are being treated in the hospital.2 From any
objective point of view, these people are doing the same type of functions, in the same place,
for the same people, under the same supervision, under the same state laws and pursuant to
the same type of privileges as the nurse practitioners who are directly employed by the
Respondent.
On June 27, 2005, the Union in submitting the grievance to arbitration defined the
dispute as follows:
NATURE OF DISPUTE: Association Grievance – Grievance #73873: Violation of
the Collective Bargaining Agreement, including but not limited to Section 1 –
Agreement Scope. The employer has violated the Collective Bargaining Agreement
by employing non-union nurse practitioners to perform bargaining unit work of
union nurse practitioners.
As noted above, the arbitration submission is mainly based on Section 1 of the Contract.
But it is not limited to that section, which essentially defines what categories of the
Respondent’s employees are covered by the collective bargaining agreement. There is also a
side letter that is part of the collective bargaining agreement that states:
Except for certification, training or experimentation and emergencies, registered
nurses who are outside of the bargaining unit will not routinely or consistently
perform those clinical duties normally performed by members of this bargaining
unit.
As in the ATC, LLC d/b/a ATC of Nevada, supra, the Union here has filed a grievance
alleging that the Respondent hospital has been utilizing a set of people who, while working on
the Hospital’s premises and performing services for its patients, have been doing bargaining
unit work. The side letter could be construed as being analogous to a no-subcontracting clause
and therefore be interpreted to preclude the Hospital from allowing such individuals to work on
its premises if they do work traditionally done by its own employees. Assuming the legality of
such a contractual provision, it is my opinion that the Union, in pursuing its contract breach
claim, is entitled to know who these people are, what they do, what hours they work, when they
were hired or fired, and where they are assigned to work.
The Respondent asserts as a defense that if the arbitrator rules in favor of the Union’s
grievance, this would be the equivalent of enforcing an illegal 8(e) hot cargo agreement. I don’t
agree.
For one thing, the Respondent could have filed an 8(e) charge and may have done so
for all I know. But it is within the General Counsel’s sole discretion to issue a complaint based
on such a charge and no such complaint has been issued. I therefore am in no position to find
that the Union’s effort to enforce its contract by way of arbitration, would be a violation of
Section 8(e) of the Act. That assertion is simply not within the purview of my jurisdiction.

2 In establishing relevance, the union may rely on hearsay as the basis for its position regarding an
asserted contract breach. Magnet Coal, 307 NLRB 444, fn. 3 (1992). See also Mt Clemens General
Hospital, 344 NLRB 450, 463 (2005).
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Secondly, unions and employers are entitled to negotiate contracts that “preserve” unit
work by way of no-subcontracting or similar clauses, even if the enforcement of such
agreements may cause the contracting employer to cease doing business with someone else.
This was made clear by the Supreme Court in National Woodwork Mfrs. Ass’n v. NLRB, 386
U.S. 612 (1967). And under the test defined by that case, the question is whether the particular
contract provision has the purpose of preserving bargaining unit work for bargaining unit
members or has the purpose of furthering union interests elsewhere. (Typically, a clause that
seeks to compel a general contractor to require its subcontractor to adopt or sign a union
contract covering its own employees would be construed as an 8(e) agreement). For a more
fully explicated discussion of Section 8(e), see my decision and the Board’s opinion in Heartland
Industrial Partners and United Steelworkers of America, 348 NLRB No. 72 (2006).
In my opinion, neither the scope of agreement clause, (Article 1), nor the side letter, can
be construed as being facially invalid hot cargo clauses. The evidence shows that the Union
was seeking to enforce its contract and require the Hospital to assign unit work to bargaining
unit members who are employed by the Hospital. To the extent that the arbitrator might
conclude that the Hospital breached the contract, he could, under the terms of the side letter,
enjoin the Hospital from having nurse practitioners work on its premises who are not employed
by the Hospital. Or it could mean that the arbitrator could issue an order recompensing the
Union and the employees it represents in some other manner. (Perhaps by monetary damages
for lost potential work). 3
Any breach of contract finding would be a matter for the arbitrator and not for me.
Similarly, any potential remedy would be up to the arbitrator and reviewable by an appropriate
judicial forum. None of that is within my purview. I am simply being asked to determine
whether the information requested by the Union is relevant to the grievance/arbitration
proceeding. If the Respondent doesn’t like the provisions of its contract with the Union, it can
always seek to alter, modify or change those terms when a new contract comes up for
negotiation.
The Respondent contends that the Complaint is barred by Section 10(b) of the Act. It
bases this contention on the fact that the charge was filed more than six months after the Union
issued the arbitration subpoena on February 27, 2007. This contention is rejected inasmuch as
10(b) does not run from the date that the information request is made but from the date that the
Respondent unequivocally refuses to furnish the information. The evidence shows that a
subpoena was issued in preparation for an arbitration hearing that was originally scheduled for
March 2007. But because of the arbitrator’s unavailability, that hearing was postponed until
October. For the next hearing, the Union repeated its requests for the information and this was
rejected by the Respondent on October 25, 2007. As the Respondent’s unequivocal refusal
occurred within six months of the charge being filed, I reject this defense.
In its Brief, the Respondent contended that the nurse practitioners on the payroll of
Columbia University were statutory supervisors. The Respondent made no such claim during

3 I do note that one issue that the Union raised in the arbitration proceeding was whether the Hospital
and the University, vis a vis the nurse practitioners, were joint employers. If successful in this contention,
then the Union would have a legitimate argument that the nurse practitioners who are on the University’s
payroll, should be covered by the collective bargaining agreement, including the union security clause.
However, in the absence of the University as a party to the arbitration proceeding, it seems unlikely that
an enforceable award could be issued to that effect.
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the hearing and even it did, this would make no difference. The grievance issue is whether non-
unit people were performing bargaining unit work. It is irrelevant if they are supervisors.
The Respondent contends that the laws of New York law prohibit disclosure of
credentialing files. Notwithstanding the fact that federal law in these circumstances would
prevail, a legitimate confidentiality issue would present a problem if I was being asked to order
the Respondent to turn over the raw files to the Union. (These files could contain
recommendations from previous employers, information regarding patient complaints, employee
evaluations and other material that would reasonably be construed as confidential and not
particularly relevant to the grievance). But it is not my intention to require the Respondent to
turn over the files in their existing form. All I would propose is that only the information
requested, be turned over and none of that information is deemed by me to be confidential in
nature. This can be done either by furnishing redacted documents that are contained in the files
or alternatively by separately compiling the relevant information for disclosure.
The Respondent contends that the Union had access to the information and could have
gotten it by itself. This is simply not a valid defense and even if the Union could ascertain
through alternative means, all of the information it sought, this does not excuse the
Respondent’s from its obligation to furnish relevant information when requested to do so.
The Respondent contends that the Board should defer this matter to the arbitrator and
let the arbitrator decide whether to require the Respondent to furnish the information. This would
be an interesting argument assuming that the arbitrator either had ruled on the information
request/subpoena or had concluded that the information was neither relevant nor material to the
Union’s grievance. But the evidence is that the arbitrator refused to rule on the question and as
a result, the Union asked the arbitrator for an adjournment and came to the Board to get the
information. In any event, the current Board policy is not to defer cases involving information
requests. See Medco Health Solutions of Spokane, Inc., 352 NLRB No. 78, slip opinion, at
page 2. (2008). 4
Finally the Respondent contends that a settlement that was made in June 2004,
regarding another grievance should bar the allegations in the present complaint. That grievance
dealt with the misclassification of two nurses who were directly employed by the Hospital and in
no way dealt with the question of whether non-bargaining unit people were assigned to do
bargaining unit work. That was a completely different matter not relevant to the present case.
Conclusions of Law
(1) By refusing to furnish to the Union certain information regarding the identity and
functions of nurse practitioners working at the New York Columbia Presbyterian Hospital, the
Respondent has violated Section 8(a) (1) and (5) of the Act.
(2) The aforesaid violation affects commerce within the meaning of Section 2(2), (6) and
(7) of the Act.

4 As a related matter, I am not being asked to and I am not enforcing a New York State subpoena.
To the extent that the information was demanded by a subpoena, the question here is whether the Union,
under the NLRA, is entitled to information relevant to the grievance process. The Board, pursuant to
Section 8(a)(5) of the Act, is empowered to decide this question irrespective of whether the same
information is demanded by a subpoena authorized under state laws.
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Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
As noted above, I shall recommend that the Respondent furnish non-confidential
information regarding the identity and status of various nurse practitioners who are assigned to
work in the Hospital, whether or not they are directly employed by the Respondent. To the
extent that information contained in such files is confidential as previously described, the
information may be provided, either by redacting documents or by arranging with the Union to
compile a separate document that would describe the relevant information.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 5
ORDER
The Respondent, New York Columbia Presbyterian Hospital, its officers, agents,
successor, and assigns, shall
1. Cease and Desist from
(a) Refusing to furnish to the Union information relating to the processing of a grievance
alleging that the Respondent has assigned bargaining unit work to non-bargaining unit
individuals.
(b) In any like or related manner interfering with, restraining or coercing employees in 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) Upon request, furnish to the Union the following information:
(1) The shifts worked of all nurse practitioners who are directly employed by the
Respondent.
(2) For the nurse practitioners who are on the payroll of Columbia University and
assigned to work in the Hospital, their names, their dates of hire and/or
termination, their job duties, their departments or areas of work, their shifts, and
whether they are full-time or part time workers.

5 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 purposes.
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(b) Within 14 days after service by the Region, post at its facility in New York, New York,
copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by
the Regional Director for Region 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the
Respondents at any time since October 25, 2007.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., December 8, 2008.
_____________________
Raymond P. Green
Administrative Law Judge

6 If this Order is enforced by a Judgment of the United States Court 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 STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(NY)–43–08
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT refuse to furnish to the New York State Nurses Association, information relating
to grievance/arbitration process and that is relevant to the administration of our collective
bargaining agreement with New York Presbyterian Hospital.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the
rights guaranteed them by Section 7 of the Act.
WE WILL on request, furnish to the Union, updated and current information as to shifts worked
by all nurse practitioners on our payroll and information for all other nurse practitioners who
work on our premises as will show their names, their dates of hire and/or termination, their job
duties, their departments or areas of work, their shifts, and whether they are full-time or part
time workers.
THE NEW YORK PRESBYTERIAN HOSPITAL
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.