CATHOLIC HEALTH INITIATIVES COLORADO D/B/A CENTURA HEALTH-ST. MARY-CORWIN MEDICAL CENTER

National Labor Relations Board - Board Decisions

Apr 24, 2014

360 N.L.R.B. 689 (N.L.R.B. 2014)

CENTURA HEALTH ST. MARY-CORWIN MEDICAL CENTER 689
360 NLRB No. 82
Catholic Health Initiatives Colorado d/b/a Centura
Health St. Mary-Corwin Medical Center and
Communication Workers of America, Local
7774. Cases 27–CA–092767 and 27–CA–097152
April 24, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER
On June 17, 2013, Administrative Law Judge Jay R.
Pollack issued the attached decision. The Respondent
and the General Counsel each filed exceptions, a sup-
porting brief, and an answering brief, and the Respondent
filed a reply 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
We agree with the judge that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to furnish
requested information relating to the bargaining unit em-
ployees’ merit based pay increases and the performance
evaluations and standards used to determine them. In
addition to the judge’s rationale, we rely on the fact that
the requested information concerns bargaining unit em-
ployees’ terms and conditions of employment and there-
fore is presumptively relevant to the Union’s perfor-
mance of its duties as the bargaining representative of the
unit employees. See, e.g., Ralphs Grocery Co., 352
NLRB 128, 134 (2008), reaffirmed and incorporated by
reference 355 NLRB 1279 (2010). Accordingly, the Re-
spondent was obligated to furnish the information upon
request unless it rebutted the presumption of relevance or
established a legitimate affirmative defense to its produc-
tion. Id. The Respondent failed to make that showing
here.
We further agree with the judge that the Respondent
failed to establish that the Union clearly and unmistaka-
bly waived its right to obtain this information. See
Provena St. Joseph Medical Center, 350 NLRB 808

1 The judge inadvertently misstated the wage reopener periods pro-
vided for in the parties’ collective-bargaining agreement. Art. 24.1 of
the parties’ contract provides for an “annual wage and benefit reopener
period between August 1 and September 15, of 2012, and 2013, if
necessary.” Also, in the last sentence of the second paragraph before
his conclusion of law, the judge inadvertently omitted the word “not.”
The sentence should read: “In the instant case, silence in the Pay for
Performance Agreement does not constitute a waiver.”
2 We have amended the judge’s third conclusion of law to conform
to the theory of violation set forth below.
3 We have modified the judge’s recommended Order and substituted
a new notice to conform to the Board’s standard remedial language.
(2007); Procter & Gamble Mfg. v. NLRB, 603 F.2d 1310,
1317–1318 (8th Cir. 1979), enfg. 237 NLRB 747 (1978).
Even accepting arguendo the Respondent’s claim that the
parties bargained over the availability of the grievance
process for disputes about performance evaluations and
merit pay, nothing in the parties’ agreements (including
their pay for performance agreement) addresses the Un-
ion’s right to request and obtain presumptively relevant
information about those subjects. Accordingly, those
agreements do not establish a waiver of the right to ob-
tain the information at issue here.4
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3
“3. Respondent violated Section 8(a)(5) and (1) of the
Act by failing and refusing to furnish the Union with
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Catholic
Health Initiatives Colorado d/b/a Centura Health St.
Mary–Corwin Medical Center, Pueblo, Colorado, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Replace paragraph 1(a) with the following
“(a) Refusing to bargain collectively with Communi-
cation Workers of America, Local 7774 by failing and
refusing to furnish it with requested information that is
relevant and necessary to the Union’s performance of its
functions as the collective-bargaining representative of
the Respondent’s unit employees.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
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 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

4 We note that the result here would be the same under the “contract
coverage” standard that the Respondent contends should apply instead
of the “clear and unmistakable” waiver standard that applies under
extant Board law.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD690
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with
Communication Workers of America, Local 7774 by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL furnish the Union with the information it re-
quested on September 4 and November 27, 2012.
CATHOLIC HEALTH INITIATIVES COLORADO
D/B/A CENTURA HEALTH ST. MARY-CORWIN
MEDICAL CENTER
Julia Durkin, Esq. and Leticia Pena, Esq., for the General
Counsel.
Melvin B. Sabey (Kutar, Rock LLP), of Denver, Colorado, for
the Respondent.
Larry Ellingson, of Greenwood Village, Colorado, for the Un-
ion.
DECISION
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Denver, Colorado, on April 16, 2013. On No-
vember 7, 2012, Communication Workers of America, Local
7774 (the Union) filed the charge in Case 27–CA–092767 al-
leging that Catholic Health Initiatives Colorado d/b/a Centura
Health St. Mary-Corwin Medical Center (Respondent) commit-
ted certain violations of Section 8(a)(1) and (5) of the National
Labor Relations Act (29 U.S.C. § 151 et seq. (the Act)). The
charge was amended on January 24, 2013. On January 28,
2013, the Union filed the charge in Case 27–CA–0973152. On
February 27, 2013, the Regional Director for Region 27 of the
National Labor Relations Board issued a complaint and notice
of hearing against Respondent alleging that Respondent violat-
ed Section 8(a)(1) and (5) of the Act. Respondent filed a timely
answer to the complaint denying all wrongdoing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing.1

1 The credibility resolutions here have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Colorado nonprofit corporation with an of-
fice and place of business in Pueblo, Colorado, where it is en-
gaged in the business of operating a hospital providing both
inpatient and outpatient medical care. During the 12 months
prior to issuance of the complaint, Respondent received gross
revenues in excess of $250,000. During that same time period,
Respondent purchased and received shipped goods valued in
excess of $50,000 from outside the State of Colorado. Re-
spondent admits and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Respondent admits and I find that the Union is a labor organ-
ization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent is a nonprofit organization that operates a hospi-
tal in Pueblo, Colorado. The Union represents approximately
300 of Respondent’s nonprofessional employees who work
throughout different departments of the hospital and its adjunct
facility. The Union and Respondent are parties to a collective-
bargaining agreement effective by its terms from October 2010
to September 30, 2014. Article 24.1 of the collective-
bargaining agreement provides for a wage and benefit reopener
from August 1, 2012, to September 15, 2013.
From mid-July to early September 2012, Respondent and the
Union negotiated pursuant to the wage reopener of the collec-
tive-bargaining agreement. Ultimately, in early September, the
parties reached an agreement on merit-based wage increases for
bargaining unit employees (Pay for Performance Agreement).
The Pay for Performance Agreement outlines what percentage
pay increases bargaining unit employees will receive based on
an evaluation period from July 1, 2011, to June 30. 2012. Pur-
suant to the Pay for Performance Agreement, a bargaining unit
employee will receive a base pay wage raise of 0 percent, 2.75
percent, 3.5 percent, or 5 percent, according to whether the
employee, “meets” or does not meet” goals and values. Bar-
gaining unit employees are eligible for such an increase if hired
before March 31 of the year in which the increase is given.
The Pay for Performance Agreement also specifies that each
employee will receive an annual appraisal. The Agreement
states, “Performance appraisals which result in a 0% increase
will be eligible for only the grievance procedure as stated in
Article 8 [of the collective-bargaining agreement], however the
grievance will not be eligible for Arbitration or Expedited Arbi-
tration as set forth in Articles 9 or 10.” The Agreement is silent
as to whether an employee may grieve a certain percentage
increase. Finally, the Agreement states that “the performance

NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings here, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.
CENTURA HEALTH ST. MARY-CORWIN MEDICAL CENTER 691
appraisal shall be discussed with the employee” and that the
“employee may request a copy of the performance appraisal.”
Negotiations for the Pay for Performance Agreement com-
menced in mid-July 2012. Lew Ellingson, a staff representative
for the Union, met with Michelle Lucero, Respondent’s vice
president of employee relations. Lucero presented a grid with
nine boxes showing how employees would be measured on
goals and behaviors. Each box in the grid showed a corre-
sponding percentage wage increase. Lucero told Ellingson that
the numbers looked good and that many employees would be
getting a 2.75 percent increase, some would be getting a 3.5
percent increase, and that others would receive a 5 percent in-
crease. Lucero told Ellingson the preliminary number of em-
ployees that fell into each category.
After this meeting with Lucero, Ellingson had several con-
versations with James Humphrey, Respondent’s vice president
of human resources, regarding pay for performance. Ellingson
asked how the plan came together and how Respondent slotted
people into the nine boxes. Ellingson stated that he needed
information to give to employees to show them Pay for Perfor-
mance was a fair and just plan. Humphrey told Ellingson that
every employee had been given a midyear review to let them
know what they needed to meet or exceed standards.
Humphrey sent Ellingson a July 26 email in which he stated,
“[O]n the question related to disagreeing with an evaluation
rating: We would use the procedure under Section 8 of the
Grievance Procedure, but would not employ the Arbitration
section.” Humphrey stated that Respondent would have four
conversations with employees per evaluation cycle, as part of
the feedback and development process.
A few days later, Ellingson met with employee officers of
the Union. The employees could not recall receiving employee
evaluations. Thereafter, Ellingson sent an email to Humphrey
on August 6, asking whether employees had received their
evaluations. Humphrey responded that he would research the
matter. Ellingson had another conversation with Humphrey in
which Humphrey stated that the employees had received per-
formance evaluations. Ellingson stated that he wanted infor-
mation about how an employee meets or exceeds standards.
In an email of August 9, Humphrey provided general infor-
mation about Pay for Performance. Humphrey provided an
attachment which he described as showing the “broad catego-
ries for which to develop individualized goals” for employees.
According to Humphrey “using these categories” each employ-
ee and supervisor sits down and mutually agrees on the goal.”
The attached document shows that each department has these
“must-have” goals along the lines of “Culture-Patient Satisfac-
tion,” “Culture” and “daily Job Performance.”
Humphrey also attached a sample evaluation form to his Au-
gust 9 email “to show how the form looks and works.”
Humphrey stated “unfortunately, I cannot give you a live form
(to protect confidentiality).”
After receiving this information from Humphrey, Ellingson
held a special meeting with unit employees at the union hall.
At the meeting, Ellingson showed employees the nine box dia-
gram and asked if they recalled getting their midyear evalua-
tion. None of the employees said that they recalled getting
their midyear review.
The next day, Ellingson again spoke with Humphrey. El-
lingson said that the Union is agreeing to the Pay for Perfor-
mance Plan for the 2012 reopener only. He stated that the Un-
ion would use this plan and test all aspects of the plan.
On September 5, Humphrey delivered the written Pay for
Performance Agreement to Ellingson. Ellingson and the Un-
ion’s president and vice president signed the Agreement that
date. The signed Agreement was submitted to Respondent that
date.
On September 4, Debra Kenzel, the Union’s Secre-
tary/treasurer, emailed a request for information to Rudy Kra-
sovec, Respondent’s human resources director. In the request
for information, the Union requested information for “All CWA
bargaining unit employees involved in the Pay for Performance
from all departments at St. Mary Corwin.” For these employ-
ees, the Union requested “Names of Employees with their po-
tential percentage increase (if any) from their midyear review
and their actual year end result from the current pay for perfor-
mance—include all date of hire on each employee.”
In an email of September 7, Humphrey wrote:
We are not going to provide all CB Unit ratings/names. Ra-
ther we will provide distribution % numbers as well as
names/rates for only those in the does not meet area (i.e. those
who did not get an increase). The reason is that per the
agreement they recently signed, the only grievances that can
be brought forth are those who did not get an increase based
on performance.
On September 7, Ellingson emailed Humphrey, stating that
he had not received the requested information. Humphrey
emailed Ellingson back, stating that he would provide a distri-
bution matrix that shows where all unit employees landed in the
Pay for Performance plan. Humphrey also stated that he would
provide the names of those “who will not receive an increase
based on performance vs. all associates and their respective
rankings,” because “these are the only individuals that would
be eligible to grieve their ranking should they so chose.”
In an email to Humphrey dated September 12, Ellington stat-
ed:
It clearly was the Union’s intent to have any employee who
could show that there was some “objective reason” why they
should have placed higher than what they were slotted, given
a chance to “grieve” their ranking. The agreed to language
only refers to the process for those not given any increase. It
does not preclude those others form “appealing/grieving”
their ranking. This clearly was one reason why we chose to
go with this plan on a one year basis. If this is going to be the
Company’s position this plan will be very short lived. Also,
the agreed to language states that there should be discussions
between the employee and their respective supervi-
sor/manager. I have heard multiple times this did not happen
which pretty much puts [sic] this at an end going forward.
Thus one of the main reasons for our RFI.
On September 14, Humphrey emailed Ellingson an updated
nine-box distribution chart, and the name of one employee who
did not receive a pay increase. The nine-box chart shows the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD692
final number of employees receiving each level of percentage
increase under the Pay for Performance Plan.
On September 17, Mary Ann Vargas, union president, sent
an email to Janet Cisneros, Respondent’s human resources
manager, informing Cisneros that the Union had not received
all of the requested information. Cisneros responded by email
that she was not involved in the request.
On September 18, Rudy Krasovec, human resources director,
spoke with Debra Krenzel, the Union’s secretary/treasurer at
her desk. Krenzel asked when the Union would receive the
requested information. Krasovec answered that the Union
would be getting the chart, in reference to the updated nine-box
chart provided by Humphrey on September 14.
Later, on September 18, Mary Ann Vargas, emailed Kra-
sovec again requesting the information. Krasovec emailed back
that same date stating that he had told Krenzel about the infor-
mation provided by Humphrey to Ellingson. Vargas responded
by email dated September 20, that she had received some but
not all of the information.
On September 20, Krasovec emailed Vargas and Ellingson
and stated that the information request was being reviewed by
Respondent’s attorney. Ellingson responded by an email dated
September 28, stating that the Union “has requested every rep-
resented employee’s Pay for Performance ratings and associat-
ed information on how that rating was achieved so that we can
understand how everything came together.”
On October 1, Ellingson spoke with Respondent’s attorney.
Ellingson told the attorney that the Union needed the infor-
mation to make sure that the raises were just, fair, and equita-
ble. The attorney said he would get back to Ellingson. On
October 1, Melvin Sabey, Respondent’s attorney, emailed El-
lingson asking him to “identify specifically what the Union
wants and why it believes that it is relevant to fulfilling its obli-
gations.” Ellingson responded by email dated October 2, stat-
ing, “We asked for exactly what is needed. Every represented
employee’s ‘score’ and the method of achieving that score.”
On October 2, Ellingson and Sabey spoke again regarding
the request for information. Sabey indicated a reluctance to
share confidential information with the Union. Sabey said that
if the Union could obtain waivers from employees, then Re-
spondent would provide the information for those employees.
Ellingson argued that he needed every employee’s information.
On October 2, Sabey followed up his phone conversation
with an email, stating that he told Ellingson of Respondent’s
confidentiality concerns and suggesting that Respondent could
provide information for employees who signed a waiver. Sa-
bey asked what alternatives the Union had to this waiver pro-
posal. Ellingson answered in an email in which he suggested
having Vargas and himself receive the information and deter-
mine that correct procedures were followed. He suggested that
he and Vargas would discuss the matter with Respondent prior
to anyone else seeing such information.
On November 26, Ellingson and Sabey had another tele-
phone conversation where Sabey requested that the Union
withdraw its unfair labor practice charge. Ellingson refused to
do so.
Respondent did provide the hire dates for all employees.
However, Respondent did not provide the names of all unit
employees with their potential percentage increase from their
midyear review or their actual year end results under the Pay
for Performance Plan.
On November 27, Ellingson emailed Sabey a second written
request for information:
The amount and to whom merit raises were given. 2. The
reasons for issuing merit raises to those employees. 3. The
supervisor requests for employees merit raises, and 4. The
evaluations of all bargaining unit employees for whom merit
raises were recommended and 5. The methodology used to ar-
rive at the numerical ratings. 6. The date(s) supervisors talked
to employees for their “midyear” review(s) and what it was
the employee needed to do to meet and/or exceed their per-
formance.
Sabey responded by email dated November 28, stating that
Ellingson had requested more information than previously re-
quested. Sabey also stated that the Union had never established
the relevancy of the requested information. Ellingson respond-
ed that he simply stated what was requested so that there would
be no mistake as to what information the Union was requesting.
On December 10, Ellingson wrote another email to Sabey
clarifying that the Union would not agree to Pay for Perfor-
mance in the future. Ellingson again asked that Respondent
provide the requested information.
B. Analysis
The General Counsel argues that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to provide necessary
and relevant information to the Union. The Respondent argues
that the Union had no right to bargain and to request infor-
mation regarding employees who received pay increases.
The general rule is that an employer has a statutory obliga-
tion to supply requested relevant information which is reasona-
bly necessary to the exclusive bargaining representative’s per-
formance of its responsibilities. Boise Cascade Corp., 279
NLRB 429 (1986).
It is well established that a union is entitled to whatever in-
formation is relevant and necessary to its representation of the
bargaining unit, not only for collective bargaining but for
grievance adjustment and contract administration. NLRB v.
Acme Industrial Co., 385 U.S. 432, 435–436 (1967); Wisconsin
Bell, Inc., 346 NLRB 62, 64 (2005). In Detroit Newspaper
Agency, 317 NLRB 1071, 1072 (1995), citing General Electric,
290 NLRB 1138, 1147, the Board held that “Once a union has
made a good faith request for information, the Employer must
provide relevant information promptly, in useful form.”
Respondent contends that the Union could not grieve the pay
raise given to any employee but could only grieve on behalf of
any employee denied a raise. However, Board law is clear that
any such waiver must be clear and unmistakable. Metropolitan
Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). The record is
clear that the Union intended, at all times, to be able to test any
raise given to any employee. In the instant case, silence in the
Pay for Performance Agreement does constitute a waiver. See
King Broadcasting Co., 324 NLRB 332 (1997).
CENTURA HEALTH ST. MARY-CORWIN MEDICAL CENTER 693
Accordingly, I find that Respondent violated Section 8(a)(5)
and (1) by not supplying the requested information to the Un-
ion.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act by
failing and refusing to furnish the Union with information rele-
vant to grievance processing.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action to ef-
fectuate the purposes and policies of the Act.
The Respondent shall be ordered to furnish the Union the in-
formation requested on September 4 and November 27, 2012.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.2
ORDER
The Respondent, Catholic Health Initiatives Colorado d/b/a
Centura Health St. Mary-Corwin Medical Center, Pueblo, Col-
orado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in good
faith with the Union, by refusing to furnish information rele-
vant for purposes of grievance handling.

2 All motions inconsistent with this recommended order are hereby
denied. In the event 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.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Furnish the Union with the information requested on Sep-
tember 4 and November 27, 2012.
(b) Within 14 days after service by the Region, post at its facili-
ty in Pueblo, Colorado, copies of the attached notice marked “Ap-
pendix.” 3 Copies of the notice, on forms provided by the Region-
al Director for Region 27, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees are customarily posted.
In addition to physical posting of paper notices, the notices shall
be distributed electronically, such as by email, posting on an intra-
net or an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees by such
means. 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 Re-
spondent at any time since September 4, 2012.
(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.

3 If this Order is enforced by a Judgment of the United States Court
of Appeals, the words in the notice “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.”