N.Y. v. Nat'l Labor Relations Bd.

• Decision Date: 14 June 2011
• Docket Number: Nos. 10–1278,10–1291.,s. 10–1278
• Citation: 190 L.R.R.M. (BNA) 3236,396 U.S.App.D.C. 342,161 Lab.Cas. P 10387,649 F.3d 723
• Parties: NEW YORK AND PRESBYTERIAN HOSPITAL, Petitionerv.NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

649 F.3d 723

190 L.R.R.M. (BNA) 3236

396 U.S.App.D.C. 342

161 Lab.Cas. P 10,387

NEW YORK AND PRESBYTERIAN HOSPITAL, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 10–1278

10–1291.

United States Court of Appeals, District of Columbia Circuit.

Argued May 6, 2011.Decided June 14, 2011.

On Petition for Review and Cross–Application for Enforcement of an Order of the National Labor Relations Board.James S. Frank argued the cause for the petitioner. Michael F. McGahan and Terence H. McGuire were on brief.Heather S. Beard, Attorney, National Labor Relations Board, argued the cause for the respondent. John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel and Meredith L. Jason, Deputy Assistant General Counsel, were on brief. Fred B. Jacob, Supervisory Attorney, entered an appearance.Before: HENDERSON, BROWN and KAVANAUGH, Circuit Judges.Opinion for the Court filed by Circuit Judge HENDERSON.KAREN LeCRAFT HENDERSON, Circuit Judge:

New York and Presbyterian Hospital (Hospital) petitions for review of a decision and order by the National Labor Relations Board (NLRB or Board) finding the Hospital in violation of section 8(a)(5) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(5), for failing to produce information requested by the labor union with which the Hospital has a collective bargaining agreement, the New York State Nurses Association (NYSNA or Union). The Board cross-applies for enforcement of its decision and order. The Hospital asserts that NYSNA failed to demonstrate the relevance of its request for information, attacks the evidentiary foundation of the Board's decision and order and raises a number of additional arguments. We reject the Hospital's arguments and deny its petition for review.

I.

The petition for review arises from an alleged violation of the collective bargaining agreement between the Hospital and NYSNA. The Hospital is a not-for-profit corporation operating a large hospital and ten satellite clinics in the Washington Heights area of New York City, New York. The Hospital is affiliated with Columbia University School of Medicine (Columbia) and nearly all of its physicians are members of Columbia's faculty and employed directly by Columbia. NYSNA is a labor union representing the roughly 2600 nurses in the Hospital's employ, including a number of nurse practitioners (NPs)—licensed nurses who possess more advanced credentials. The collective bargaining agreement between the Hospital and NYSNA contains a union security clause, which requires nurses to join the Union within thirty days of being hired by the Hospital, and includes a “side letter,” which provides that “[e]xcept 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.” N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, 2009 WL 1311486 at *5 (2009) (reprinting ALJ decision).

In 2004, NYSNA began to suspect that non-Union nurse practitioners were on Hospital premises performing work normally done by members of the NYSNA bargaining unit. NYSNA's focus soon narrowed on a number of NP employees of Columbia who worked at the Hospital. These NPs were not represented by NYSNA. On June 4, 2004, NYSNA filed a grievance alleging that the Hospital “hired nurse practitioners in a nonunion capacity to do bargaining unit work.” N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at *5.

From NYSNA's initial grievance to this petition for review, the dispute has traveled a long and winding road. The Hospital denied the grievance on May 18, 2005, explaining that the Columbia NPs were “not Hospital employees” and thus did “not fall within the Hospital's span of control nor [were] they governed by the Hospital's Policies and Procedures.” Letter from Stacie M. Williams, Manager, Human Resources, N.Y. & Presbyterian Hosp., to Roberta Murphy, Nursing Representative, N.Y. State Nurses Ass'n (May 18, 2005) (Joint Appendix (JA) 1343). NYSNA then sought to arbitrate the grievance. A little more than one year later, on August 31, 2006, NYSNA filed an unfair labor practice charge with the NLRB against both the Hospital and Columbia, alleging that they were “a single employer or alter egos of one another” responsible for, inter alia, “restrain[ing] and coerc[ing] nurse practitioners at [the Hospital] in exercising their Section 7 rights by employing nurse practitioners to work at [the Hospital] under terms and conditions of employment different from those specified in the collective bargaining agreement with NYSNA covering nurse practitioners who work at the hospital.” Charge Against Employer, N.Y. Presbyterian Hosp., No. 2–CA–37868 (NLRB Aug. 31, 2006). Acting pursuant to Board policy, the Board's Regional Director deferred consideration of NYSNA's unfair labor practice charge to the ongoing arbitration over NYSNA's grievance. See Collyer Insulated Wire, 192 N.L.R.B. 837 (1971); United Techs. Corp., 268 N.L.R.B. 557 (1984). Shortly thereafter, Columbia informed NYSNA and the Hospital that, as a non-signatory to the collective bargaining agreement, it did not intend to participate in the arbitration.

NYSNA made a number of requests for information in anticipation of the arbitration hearing. NYSNA twice issued subpoenas duces tecum directing a representative of the Hospital to appear at the arbitration hearing and produce documents relating to non-Union NPs working on Hospital premises. NYSNA then sent a letter to the Hospital asking for, inter alia, documents between the Hospital and Columbia “concerning the employment of nurse practitioners,” information about NPs “designated as NYSNA represented employees” and information about NPs “who are not designated as NYSNA represented employees working on the premises of New York Presbyterian Hospital.” Letter from Roberta Murphy, Nursing Representative, N.Y. State Nurses Ass'n, to Stacie Williams, Director of Labor Relations, N.Y. [&] Presbyterian Hosp. (Oct. 11, 2007) (10/11/07 Letter) (JA 1599). NYSNA's October 11, 2007 letter forms the basis of the underlying charge at issue.

The arbitration hearing opened on October 25, 2007. No transcript was made but the arbitrator apparently failed to decide whether the Hospital was obligated to produce the requested information. N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at *8. On October 31, 2007 NYSNA filed a second unfair labor practice charge regarding information production, alleging that the Hospital had “refused to bargain” by “failing to respond to an information request dated October 11, 2007.” Charge Against Employer, N.Y. Presbyterian Hosp., No. 2–CA–38512 (NLRB Oct. 31, 2007) (JA 359). On May 30, 2008, the General Counsel of the NLRB (General Counsel) served the Hospital with a complaint alleging that its failure to provide NYSNA with the information requested in the Union's October 11, 2007 letter constituted a violation of section 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1), (5).

An administrative law judge (ALJ) presided over a four-day hearing. On December 8, 2008 the ALJ ruled in favor of the General Counsel, finding the Hospital violated section 8(a)(1) and (5). N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at *3, *15. The ALJ acknowledged that the Hospital had turned over “most” of the information regarding NPs employed by the Hospital, “except for identifying what shifts they worked.” Id. at *9. But the ALJ rejected the Hospital's claim that it lacked information regarding the Columbia NPs. The information, the ALJ stated, could be found in the paperwork required to “credential[ ]” NPs—referring to the review process by which the Hospital assigns privileges to work in specific medical care departments of the Hospital. Id. at *10. The credentialing paperwork included, inter alia, “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.” Id. The ALJ recommended that the Hospital be required to turn over information regarding the shifts worked by Hospital NPs and the names, dates of hire and/or termination, job duties, departments or areas of work, shifts and full- or part-time status of the Columbia NPs working on Hospital premises. Id. at *15.

On April 29, 2009 a two-member panel of the Board affirmed the ALJ's conclusion that the Hospital violated section 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), and adopted the ALJ's recommended order with the added requirement that the Hospital produce “[a]ll documents between [the Hospital] and Columbia University Medical Center and/or Trustees of Columbia University concerning the employment of nurse practitioners.” N.Y. Presbyterian Hosp., 354 N.L.R.B. No. 5, at *1–2.

Two days later, on May 1, 2009, we issued our decision in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, holding that a panel of only two Board members could not validly exercise the Board's delegated authority. 564 F.3d 469, 472–73 (D.C.Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 3498, 177 L.Ed.2d 1089 (2010). On May 7, 2009 the Hospital filed a motion for reconsideration before the Board, relying on Laurel Baye Healthcare to challenge the authority of the two-member panel. N.Y. & Presbyterian Hosp.'s Mot. for Reconsideration, N.Y. & Presbyterian Hosp., No. 2–CA–38512 (NLRB May 7, 2009). The Board denied the motion on June 2, 2009. Order, N.Y. Presbyterian Hosp., No. 2–CA–38512 (NLRB June 2, 2009). During the month of July 2009, the Hospital filed a petition for review of the Board's decision and order in this court, the Board cross-applied for enforcement and we sua sponte held the case in abeyance. See Order, N.Y. & Presbyterian Hosp. v. NLRB, No. 09–1200 (D.C.Cir. July 16, 2009). After the United States Supreme Court...