Valley Programs

National Labor Relations Board - Board Decisions

Sep 28, 1990

300 N.L.R.B. 423 (N.L.R.B. 1990)

423
300 NLRB No. 39
VALLEY PROGRAMS
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 In support of its claim that it is prohibited by state statute from disclosing
the requested information, the Respondent relies on a quote from an opinion
by the Massachusetts Attorney General. Contrary to the assertion in the Re-
spondent’s brief, the Attorney General’s opinion is not part of the record. We
cannot on the basis of a single sentence taken from a document that is not
in the record conclude that the statute prohibits the Respondent from dis-
closing the requested information.
The Respondent also relies on Torres v. Attorney General, 391 Mass. 1, 460
N.E.2d 1032 (1984), to support its claim that the statute is applicable here.
Torres, however, rather than supporting the Respondent’s position, supports
the judge’s statement that the statute may not apply to the Respondent’s em-
ployees, but only to individuals who receive benefits from the Respondent. Id.
at 1036–1037.
Further, we note that the statute provides for disclosure of personal data
where ‘‘authorized by statute or regulations which are consistent with the pur-
poses of this chapter.’’ Our holding that the Union is entitled to the requested
information is pursuant to our authority under the National Labor Relations
Act. Thus, disclosing this information to the Union may fall within the excep-
tion the state statute provides.
In sum, we agree with the judge’s statement that the Respondent made no
showing that Chapter 66A of Massachusetts’ General Laws applies to informa-
tion it maintains about its own employees.
1 VPI admits that it is an employer engaged in commerce.
2 VPI admits that the Union is a labor organization.
3 The bargaining unit: All full-time and regular part-time counselors and
senior counselors including all other comparable positions employed by VPI
at its Western Massachusetts locations, but excluding office clerical employ-
ees, managerial employees, guards, and all supervisors as defined in the Act.
4 The Union filed its unfair labor practice charge on September 5, 1989. The
complaint issued on October 24, 1989.
Valley Programs, Inc. and District 65, United Auto
Workers of America, AFL–CIO. Case 1–CA–
26641
September 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On May 30, 1990, Administrative Law Judge Ste-
phen J. Gross issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Valley Programs, Inc.,
Northampton, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Benjamin Smith, Esq., for the General Counsel.
Albert R. Mason, Esq., of Springfield, Massachusetts, for the
Respondent.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. Respondent
Valley Programs, Inc. (VPI) is a nonprofit corporation that
provides mental health services and shelter for the homeless
at about 14 sites in and around Northampton, Massachu-
setts.1 The Commonwealth of Massachusetts funds VPI. The
Charging Party, UAW District 65 (the Union), 2 represents
VPI’s bargaining unit employees.3
The General Counsel contends that VPI violated Section
8(a)(1) and (5) of the National Labor Relations Act (the Act)
when it refused to provide certain information requested by
the Union.4 I heard the case on February 5, 1990, in Boston.
The General Counsel and VPI have submitted briefs.
For the reasons set forth below, my conclusion is that, as
alleged by the General Counsel, VPI violated the Act by fail-
ing to provide the information requested by the Union.
The Union’s Information Request
In December 1988 VPI and the Union entered into a col-
lective-bargaining contract with an expiration date of June
30, 1989. Bargaining over a new agreement began on June
9, 1989. (Hereafter all the dates I refer to will be in 1989.)
A few months earlier a union representative had orally asked
for the following information in respect to each of the 90 or
so bargaining unit employees:
Name
Worksite Address
Home address
Home phone number
Date of hire
Hourly rate of pay
Hours worked per week
Individual work schedule
Summary of health plan
VPI provided all of the information for those bargaining
unit members who were members of the Union. (Somewhat
less than half the bargaining unit employees are members of
the Union.) For the employees who were not members of the
Union, VPI provided all of the information except home ad-
dresses and home telephone numbers.
On June 6 the Union requested, in writing, the same infor-
mation. VPI and union representatives discussed the request
at a June 27 bargaining session. VPI took the position that
it could not lawfully release the home addresses and home
telephone numbers of any employee who was not a union
member unless the employee authorized VPI to do so. VPI
went on to suggest alternative ways of communicating with
employees (such as bulletin boards and intra-VPI mail).
VPI has maintained that position. The Union continues to
insist on its right to the home addresses and home telephone
numbers of all bargaining unit members.
I. THE GENERAL COUNSEL’S PRIMA FACIE CASE
Home addresses of bargaining unit members are presump-
tively relevant to a union’s obligations as collective bargain-
ing representative. E.g., Tom’s Ford, 253 NLRB 888, 894–
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 While termination date of the contract has passed, article 21 of the contract
remains in force by virtue of article 47 of the contract. (‘‘All of the terms
and provisions of this agreement shall remain in effect during the negotiation
of a successor agreement.’’)
6 A VPI official testifying on behalf of VPI was queried about the bar-
gaining over article 21. But she did not contend that there was any reference
to employee addresses or telephone numbers during the bargaining about the
provision.
895 (1980). So are the home telephone numbers of bar-
gaining unit members. Burkart Foam, 283 NLRB 351
(1987), enfd. 848 F.2d 825 (7th Cir. 1988); Emro Marketing
Co., 272 NLRB 282, 283 (1985), enfd. 768 F.2d 151 (7th
Cir. 1985); Riveredge Hospital, 266 NLRB 1198, 1200
(1983), enfd. 789 F.2d 524 (7th Cir. 1986). The Union asked
VPI to provide home addresses and telephone numbers. VPI
provided the information for only some of the bargaining
unit members, and VPI continues to refuse to provide the in-
formation for bargaining unit members who are not union
members. Thus the only question is whether VPI has carried
its burden of showing that some circumstance particular to
this matter justifies its action.
II. ARE THERE CIRCUMSTANCES THAT ENTITLE VPI TO
WITHHOLD EMPLOYEE ADDRESSES OR TELEPHONE
NUMBERS FROM THE UNION?
Did the Union Waive Its Right to the information?
Article 21 of the 1988–1989 collective-bargaining contract
provides:
Personnel files shall be maintained and kept con-
fidential by the agency. Whenever any material includ-
ing evaluations are inserted or deleted into the per-
sonnel file or records of an employee, such employee
should be promptly notified in writing and given a copy
of such material. The employee can see his/her file and
request corrections or deletions of material that is inac-
curate. Employees shall reserve the right to attach
memos or letters of rebuttal to any material in their per-
sonnel files.
An employee’s personnel file shall be accessible to
the employee, to the administration, and with the writ-
ten permission of the employee to the union. [Emphasis
added.]5
VPI appears to claim that it would have to use employee
personnel files in order to provide the Union with home ad-
dresses and telephone numbers. And, as indicated, employee
personnel files are ‘‘accessible’’ to the Union only with ‘‘the
written permission of the employee.’’ (The reason VPI gave
the home addresses of the union members to the Union was
because VPI concluded that the union members’ dues check-
off authorizations could reasonably be construed as the req-
uisite written permission.)
I do not credit the testimony of VPI officials that the only
place it keeps employee addresses and telephone numbers is
in the employees’ personnel files. But even were I to credit
that testimony, article 21 would provide no defense to VPI
in that article 21 does not constitute a waiver by the Union
of its right to obtain employee addresses and telephone num-
bers from VPI.
Article 21 limits union access to personnel files. But the
Union did not seek such access. All it asked for were em-
ployee names and telephone numbers. Of course if the Union
had asked for copies of materials generally kept only in per-
sonnel files (documents relating discipline, for example, or
medical matters) that would be tantamount to asking for ac-
cess to the personnel files themselves. But that is not the
case here. Even under normal contract interpretation, there-
fore, article 21 would probably not provide VPI with a basis
for withholding the information the Union seeks. Beyond
that, where an employer is contending waiver on a union’s
part, normal contract interpretation does not apply. Rather,
for contract language to be treated as a waiver by a union
of a right arising from the Act, the waiver must be ‘‘clear
and unmistakable,’’ either from the language of the contract
provision or from the parties’ bargaining history. Johnson-
Bateman Co., 295 NLRB 180, 186–187 (1989). Neither is
the case here.6
State Law Restrictions on the Release of Personal Data
VPI’s principal contention is that a Massachusetts statute
precludes VPI from providing employee addresses and tele-
phone numbers to the Union absent consent by each of the
employees. The statute is Chapter 66A of Massachusetts’
General Laws.
Chapter 66A does appear to limit VPI’s disclosure of
‘‘personal data.’’ But as the General Counsel points out,
Chapter 66A’s restrictions, as applied to VPI, seem to be
limited to information about the clients that VPI serves and
do not extend to the information VPI maintains about its own
employees. Perhaps that is not in fact so; perhaps, notwith-
standing the way Chapter 66A reads, it has been interpreted
in ways that limit VPI’s release of information about its em-
ployees. But, if so, that was up to VPI to show. And VPI
has made no such showing.
Because I conclude that VPI has failed to show that state
law applies to VPI’s disclosure of employee information to
the Union, I do not reach Federal preemption issues.
Union ‘‘Harassment’’ of Employees Who are not
Union Members
A VPI official testified that several employees had com-
plained to him that they were receiving harassing telephone
calls from union representatives at inappropriate times of the
day (7 a.m., for example, and midnight). But VPI does not
contend that that entitled VPI to withhold home address and
telephone number information from the Union. In any event,
for VPI to be justified in withholding address and telephone
number information from the Union out of concern for the
well-being of VPI employees, evidence that release of the in-
formation would cause problems for the employees would
have to be considerably stronger. See Burkart Foam, 283
NLRB at 356, 848 F.2d at 833–834.
The recommended Order requires VPI to cease and desist
from its unfair labor practices, to provide the Union with the
home addresses and telephone numbers of all bargaining unit
members, and to post notices to that effect. As noted earlier,
VPI operates numerous facilities. Since bargaining unit mem-
bers work at all of such facilities, the recommended Order
requires copies of the notice to be posted at each of the fa-
cilities.
425VALLEY PROGRAMS
7 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 objec-
tions to them shall be deemed waived for all purposes.
8 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Valley Programs, Inc., Northampton,
Massachusetts, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with District 65,
United Auto Workers of America, AFL–CIO, as the exclu-
sive bargaining representative of those employees of VPI
who are members of the bargaining unit, by refusing to fur-
nish the Union with the home addresses and telephone num-
bers of all members of the bargaining unit.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish the Union with the home addresses and tele-
phone numbers of all employees in the bargaining unit.
(b) Post at each of its facilities copies of the attached no-
tice marked ‘‘Appendix.’’8 Copies of the notice, on forms
provided by the Regional Director for Region 1, after being
signed by a VPI representative, shall be posted by VPI im-
mediately upon receipt and maintained for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees are customarily posted.
VPI shall take reasonable steps to ensure that the notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps VPI has taken to com-
ply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with District
65, United Auto Workers of America, AFL–CIO, by refusing
to furnish the Union with the home addresses and telephone
numbers of all employees who are members of the bar-
gaining unit. The following employees are in the bargaining
unit:
All full-time and regular part-time counselors and sen-
ior counselors including all other comparable positions
employed by Valley Programs at its Western Massachu-
setts locations, but excluding office clerical employees,
managerial employees, guards, and all supervisors as
defined in the National Labor Relations Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights that Sec-
tion 7 of the Act guarantees to you.
WE WILL provide the Union with the home addresses and
telephone numbers of all employees who are members of the
bargaining unit.
VALLEY PROGRAMS, INC.