NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
The
April 29, 2009
DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On December 8, 2008, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and Charging Party each filed cross-exceptions, a supporting brief, and an answering brief to the Respondent’s exceptions. The Respondent filed an answering brief and a reply brief. The General Counsel and the Charging Party each filed a reply brief.
The National Labor Relations Board[1] has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[2] and conclusions,[3] as modified herein, and to adopt the recommended Order as modified.
We affirm the judge’s findings that the Respondent
violated Section 8(a)(5) of the Act by
failing and refusing to furnish the Union with requested information about
nurse practitioners working at the Respondent’s facility, including both
bargaining unit nurse practitioners represented by the Union and nonunit nurse
practitioners on the payroll of Columbia University. The information was relevant to the processing
of a grievance alleging that the nonunit nurse practitioners performed
bargaining unit work in contravention of restrictions set forth in the
collective-bargaining agreement between the Respondent and the
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the Respondent,
The New York Presbyterian Hospital, New York,
1. Insert the following as paragraph 2(a).
“(a) Furnish the
“(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.
“(3) All documents between the Respondent and
2. Substitute the attached notice for that of the administrative law judge.
Dated,
Wilma B. Liebman, 
Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not refuse
to furnish to the Union information relating to the grievance/arbitration
process and that is relevant to the administration of our collective-bargaining
agreement with the
We will not in any like or related manner interfere with, restrain, or coerce you in the rights guaranteed you by Section 7 of the Act.
We will 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.
We will furnish
to the Union all documents between The New York Presbyterian Hospital and
The
Simon-Jon H. Koike, Esq., for the General Counsel.
James Frank, Esq., Steven M. Swirsky, Esq., and Terence McGuire, Esq., for the Respondent.
Elizabeth Orfan, Esq., for the Charging Party.
DECISION
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in
1. That since on or about October 25, 2007,
the Respondent has violated Section 8(a)(5) by refusing the
(a) All documents between Respondent and
(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
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
ii. the alleged unfair labor practice
The
The Respondent is also a teaching hospital. Accordingly, it has an affiliation with the
Columbia University School of Medicine (
In terms of the relationship between the
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
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
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
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.)
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
On June 4, 2004, the
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
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
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
On February 27, 2007, the
1. All documents between
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, James 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,
The
Nature of Dispute: Association Grievance—Grievance #73873: Violation of the Collective Bargaining Agree-ment, including but not limited to Section 1—Agreement Scope. The employer has violated the Collective Bargain-ing 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
By letter dated October 11, 2007, the
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
By letter dated October 24, 2007, the
Respondent, by its counsel, asked the union counsel to withdraw the
subpoena. (This apparently is the procedure
required under
The arbitration hearing opened on October 25,
2007 (without the presence of
After presenting evidence in the arbitration
case, the
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
As we previously advised you and counsel for NYSNA, [the
Union],
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
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
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
The University’s letter goes on to respond to
items in the
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
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
Analysis
The information sought in the present case
relates to the processing of a grievance that the
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 nonbargaining
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
This does not mean that a union seeking
information about nonbargaining 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., 333 NLRB 1296 (2001).
For example, in ATC of Nevada; 348 NLRB 796 (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
nonunit employees to perform bargaining unit work. The union requested the names, addresses,
telephone numbers, and dates of hire, of nonunit 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
nonbargaining 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 timecards 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
The
On June 27, 2005, the
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 ATC
of Nevada, supra, the
The Respondent asserts as a defense that if
the arbitrator rules in favor of the
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
Secondly, unions and employers are entitled to
negotiate contracts that “preserve” unit work by way of no-subcon-tracting 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. Assn. 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, LLC, 348
NLRB 1081 (2006).
In my opinion, neither the scope of agreement clause
(art. 1), nor the side letter, can be construed as being facially invalid hot
cargo clauses. The evidence shows that the
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
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 6 months after the
In its brief, the Respondent contended that
the nurse practitioners on the payroll of
The Respondent contends that the laws of
The Respondent contends that the
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
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 nonbargaining 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.
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 nonconfidential 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
On these findings of fact and conclusions of
law and on the entire record, I issue the following recommended5
ORDER
The Respondent, The New York Columbia
Presbyterian Hospital, New York,
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 nonbargaining 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
(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.
(b) Within 14 days after service by the Region,
post at its facility in
(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,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey 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 The 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