East Tennessee Baptist Hosp. v. N.L.R.B.
| Decision Date | 07 October 1993 |
| Docket Number | Nos. 91-6171,91-6294,s. 91-6171 |
| Citation | 6 F.3d 1139 |
| Parties | 144 L.R.R.M. (BNA) 2402, 62 USLW 2248, 126 Lab.Cas. P 10,889 EAST TENNESSEE BAPTIST HOSPITAL, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
E.H. Rayson, John B. Rayson (argued and briefed), Warren L. Gooch, Kramer, Rayson, McVeigh, Leake & Rodgers, Knoxville, TN, for East Tennessee Baptist Hosp Collis Suzanne Stocking (briefed), Magdalena Revuelta (argued), N.L.R.B., Office of the General Counsel, Washington, DC, Martin M. Arlook, Director, N.L.R.B., Region 10, Atlanta, GA, Aileen A. Armstrong, Deputy Assoc. Gen. Counsel, N.L.R.B., Appellate Court Branch, Washington, DC, for N.L.R.B.
Before: MARTIN and SILER, Circuit Judges; and CLELAND, District Judge. *
East Tennessee Baptist Hospital ("Hospital") seeks review of and the National Labor Relations Board seeks enforcement of its order and decision finding that the Hospital committed unfair labor practices by refusing to provide information on nonunit employees. For the reasons stated below, we affirm in part and deny in part enforcement of the Board's order.
The primary issues in this case revolve around the interpretation and application of two collective bargaining agreements the Hospital entered into with the Office and Professional Employees International Union ("Union"). The first agreement covered 1988-1989 and the second, 1989-1991.
The first issue arises out of a disagreement relating to wage records information.
After the 1988 collective bargaining agreement was executed, the Hospital decided on a 5 percent general wage increase which was granted to all unit and nonunit employees. On August 19, 1988, the Union wrote the Hospital requesting certain information including the "names, job titles and rates of pay before the July 1988 wage increase for all ETBH non-bargaining unit employees." The Union based its request on the following language contained within the collective bargaining agreement:
[E]ffective July 4, 1988, each employee shall receive a market wage adjustment based on a percentage of the employee's existing wage rate equal to the percentage market wage adjustment (not including special market wage adjustment) that non-bargaining unit employees will receive in July, 1988; ....
Article 19, Section 19.2(b) of the 1988 agreement. It argued that it was entitled to the information so that it could verify that the unit and nonunit employees were treated equally.
The Hospital declined to supply the requested information stating that it was under no obligation to provide information to the Union regarding nonunit employees. Shortly thereafter, the Union expanded the scope of its request by indicating that it required job information for nonunit employees both before and after the 5 percent wage increase. The Hospital again declined stating that such information was confidential (both to the nonunit employee and the Hospital) and that it was therefore not obligated to provide the records requested. Instead, it suggested that a mutually agreed upon certified public accountant be hired to review the records and then report if there were any violations of the collective bargaining agreement. The Union refused the Hospital's suggested course of action.
The second issue arises out the 1989 collective bargaining agreement. Following the execution of the 1989 agreement, the Union filed a grievance with the Hospital involving a three-day layoff of a union employee because of excessive absenteeism. The Union requested copies of all attendance, suspension and discharge records for all bargaining unit and non-bargaining unit employees from June 1, 1988, up to and including the week it supplied the information. It based its request on language in Article 19 of the 1989-1991 agreement which provided that all personnel policies were to pertain on an equal basis to all employees. The Hospital refused, calling the request "excessively burdensome and out of line with any legitimate need or interest of the Union." 1 The Union The two met in early November, 1989. Standley provided the records of all unit employees and offered to supply the Union with all records of any nonunit employee the Union could identify as suspected of having received "better" treatment in an "absentee" context than a unit employee. 2 Pope refused and insisted that he be allowed access to all nonunit employee attendance records.
representative, Pope, offered to review the employee records himself. The Hospital representative, Standley, suggested that a meeting take place to discuss the issue.
Based upon the foregoing 3, the Union sought an order from the National Labor Relations Board requiring the Hospital to allow access to its records. The case was assigned to an administrative law judge ("ALJ") for hearing and argument. At the hearing before the ALJ, the Union representative testified that he had advised the Hospital that the Union could not agree to the CPA requirement because (1) it would cost too much and (2) the Union needed the "right to go out and independently verify any kind of wage information." The ALJ concluded that the wage information of nonunit employees was relevant to the Union's bargaining responsibilities because the contract required equal treatment between unit and nonunit employees. He also concluded that the Hospital did not seek to accommodate its bargaining obligations with regard to confidentiality, stating that the Hospital had taken "an inconsistent position" by first claiming confidentiality and by then later expressing a willingness to let a CPA review the records.
In reference to the nonunit employee attendance records, the ALJ concluded that these were relevant and that, in view of Pope's offer to come to the Hospital and review the records, the Hospital had failed to establish that the Union's request was burdensome. 4
The ALJ recommended that the Board find that the Hospital had engaged in unfair labor practices and that it had violated Secs. 8(a)(1) and (5) of the Labor Relations Act. He recommended that a cease and desist order be entered and that the Hospital be ordered to allow the Union access to the wage and employee attendance records. The Hospital filed timely exceptions to the Report.
The three-member panel of the Board adopted the ALJ's Report and slightly amended the Order in a 2-1 decision. The Board concluded that since the contract provided for unit and nonunit employees to receive the same wage increase, there were no grounds on which the Hospital could insist on any restrictions to the Union's entitlement to access to the wage records. The Board held that the Hospital had "ostensibly relinquished," by the terms of the contract, any right to control access to these records. It discounted the Hospital's proposal of employing a "mutually agreeable" CPA stating that it would give the Hospital a "veto power" over who the Union's agent would be. Additionally, the Board held that the Hospital had not shown that the wage information was so complex that a CPA was necessary to interpret the records. The issue of "burdensomeness" was not separately addressed by the Board.
The Hospital appeals the decision of the Board finding that it had committed unfair labor practices and the order requiring it to allow access to its wage and attendance records to Union representatives. Specifically, the Hospital argues that the Board erroneously held that the Hospital had waived its statutory right to bargain over the form and The Board has cross-filed with this Court a request for a judgment enforcing the Board's order in full.
manner in which requested information would be furnished. The Hospital also claims the Board erred in finding that it had engaged in unfair labor practices since it offered the following good faith, reasonable counter-proposals to the Union's request: 1) the suggestion to use an independent CPA to review the wage records and 2) the offer to supply information on specific nonunit employees who were suspected of receiving better treatment.
On review, the Board's findings of fact will be upheld if they are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). The Board's application of the law to particular facts is also reviewed under the substantial evidence standard. The Board's reasonable inferences may not be displaced on review even though the reviewing court might have reached a different conclusion had it considered the matter de novo. NLRB v. United Insurance Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); Universal Camera, 340 U.S. at 488, 71 S.Ct. at 465. A reviewing "[c]ourt[ ] must, of course, set aside Board decisions which rest on an 'erroneous legal foundation.' " NLRB v. Brown, 380 U.S. 278, 292, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965), citing NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956).
It is well settled that "[t]he duty to bargain collectively, imposed upon an employer by Sec. 8(a)(5) of the National Labor Relations Act, includes a duty to provide relevant information needed by a labor union for the proper performance of its duties as the employees' bargaining representative." Detroit Edison Co. v. NLRB, 440 U.S. 301, 303, 99 S.Ct. 1123, 1125, 59 L.Ed.2d 333 (1979) (citations and footnote omitted). In evaluating an employer's obligation to fulfill the union's information requests, the Board and courts apply a "discovery type standard," under which the requested information need only be relevant and useful to the union in fulfilling its statutory obligations in order to be subject to disclosure. NLRB v. Acme Industrial Co., 385 U.S. 432, 437, 87 S.Ct. 565, 568, 17...
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