Washington Hospital Center

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 396 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Washington Hospital Center and Service Employees
International Union, Local 722, AFL-CIO.
Case 5-CA-15087
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 16 December 1983 Administrative Law
Judge Irwin Kaplan issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a reply brief.'
The National Labor Relations Board has delegat-
ed 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, 2 and
conclusions 3 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Washington
Hospital Center, Washington, D.C., its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
I In his reply brief the General Counsel moves to strike a reference in
the Respondent's brief to a certain document and certain other docu-
ments appended to the Respondent's brief. The General Counsel con-
tends that the documents have not been made part of the record in this
proceeding and have not been shown to constitute newly discovered evi-
dence. We find merit in the General Counsel's contention and hereby
grant the motion to strike.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence 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 examined the record and find no basis for reversing
the findings.
S In concluding that the Respondent violated Sec. 8(a)(5) and (I) of the
Act by refusing to provide the Union with certain job evaluation infor-
mation that the Union had requested, the judge relied, inter alia, on Dy-
namic Machine Co., 221 NLRB 1140 (1975). The judge's reliance on Dy-
namic Machine is misplaced since that case did not involve job evaluation
data. This error does not affect our decision.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. This case
was heard in Washington, D.C., on May 11, 1983. The
underlying charges were filed on February 2, 1983, by
Service Employees International Union, Local 722,
AFL-CIO (the Charging Party or the Union), which
charges gave rise to a complaint and notice of hearing on
March 17, 1983, alleging that Washington Hospital
270 NLRB No. 74
Center (Respondent) engaged in conduct violative of
Section 8(a)(5) and (1) of the National Labor Relations
Act.
The gravamen of the complaint is that Respondent
violated the Act by refusing to furnish the Union, on re-
quest, "The relevant findings and/or recommendations of
the Hayes/Hill study or any other job analysis dealing
with [the] classification of unit clerks." In connection
therewith, it is further alleged that this information is
"necessary" and "relevant" to the Union in the exercise
of its responsibilities as the exclusive collective-bargain-
ing representative for said unit clerks.
Respondent filed an answer conceding, inter alia, juris-
dictional facts, labor organization, appropriateness of the
unit (as amended at the hearing), the Union's exclusive
status as bargaining representative, and that the informa-
tion in question (herein the Hayes/Hill study) was in fact
requested but denying all allegations that it committed
any unfair labor practices. In this latter regard, Respond-
ent denies that the information sought is "necessary" or
"relevant" to the Union's responsibilities as bargaining
agent either under the collective-bargaining agreement or
otherwise.
On the entire record, including my observation of the
demeanor of the witnesses, and after careful consider-
ation of the posttrial briefs, I find as follows.
I By motion to strike dated July 12, 1983, the General Counsel moved
that "certain parts" of Respondent's brief be stricken "in that they in-
clude information and material which was not duly entered into the
record." This material pertains principally to the authority of business
agent Ben Elliott to represent the Union as of May 6, 1983. According to
Respondent, Union President Michael Smiley dismissed Elliott approxi-
mately 5 days before the opening of the instant trial. The motion pertains
to that part of Respondent's brief and attachments (App. A, B, and C)
dealing with Elliott's status. The record disclosed that Elliott filed the in-
stant underlying charges on behalf of the Union (G.C. Exh. I(a)) and
made an unopposed appearance for the Union at the hearing on May II,
1983. Further, it is noted that Respondent did not raise the issue of El-
liott's status either in its answer or in its opening statement. While Re-
spondent's attorney attempted to cross-examine Elliott regarding his
status at the time of trial, I was unpersuaded that he articulated sufficient
foundation or that it was otherwise material, given the allegations in the
complaint of unlawful refusal to furnish information months earlier. Ac-
cordingly, I sustained the objection thereto. Respondent also contended
that over a period of time it had furnished President Smiley with suffi-
cient information about the Hayes/Hill system, the subject of the instant
case, to enable the Union to adequately represent the bargaining unit. In
an undated motion in "Opposition to General Counsel's Motion to
strike," Respondent stated that the disputed material was not submitted
for the truth of its contents but rather in furtherance of its offer of proof
that Elliott does not represent the Union and that he was estranged from
Smiley. Respondent urged a negative inference be drawn from the failure
of the General Counsel to call Smiley as a witness. Further, Respondent
moved for "judicial notice" to be taken of the Regional Director's letter
dated for July 18, 1983, dismissing charges in another case (Case 5-CA-
15457) involving the same parties. The Regional Director noted in his
dismissal letter, inter alia, that Elliott's official position with the Union at
that time was still the subject of an internal union dispute. While "judicial
notice" is hereby granted, this falls far short of establishing that Respond-
ent was free to ignore Elliott's request for information when he unques-
tionably had authority as encompassed by the complaint. The fact that
Respondent may have given the information to Smiley or was willing
does not relieve it of its bargaining obligation. See Procter & Gamble Mfg.
Co. v. NLRB, 603 F.2d 1310, 1317 (8th Cir. 1979). Further, in the absence
of any showing that the General Counsel had greater access to Smiley
than Respondent, I find no negative inference is warranted by the failure
to call him as a witness. See Wayne Construction, 259 NLRB 571 fn. I
(1981). In the total circumstances of this case, and absent any claim of
Continued
396
WASHINGTON HOSPITAL CENTER
I. JURISDICTION
Respondent, a Delaware corporation, is engaged in the
business of operating and maintaining a nonprofit hospi-
tal in Washington, D.C. In connection with the aforenot-
ed business operations, Respondent, during the past 12
months, a representative period, has received gross reve-
nues in excess of $1 million and has purchased and re-
ceived at its facility materials and supplies valued in
excess of $50,000 directly from points located outside the
District of Columbia. It is alleged, Respondent admits,
and I find that the Respondent is now, and has been at
all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
Respondent admits, and I find, that Service Employees
International Union, Local 722, AFL-CIO is now, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Respondent employs approximately 4000 individuals at
its hospital facility in Washington, D.C. The Union,
which represents at the hospital some 1200 of Respond-
ents employees including approximately 125 unit clerks
(the group primarily involved herein), was certified as
the exclusive bargaining agent on March 31, 1975.2 The
most recent collective-bargaining agreement between the
parties, by its terms, is effective September 20, 1981, to
October 6, 1984.3 (G.C. Exh. 2.)
In late 1979, Respondent commissioned Hayes/Hill In-
corporated (Hayes/Hill), a Chicago based management
consulting firm, to undertake a comprehensive study
(Hayes/Hill study or the study) in order to establish,
inter alia, "a consistent and comprehensive job classifica-
tion and compensation plan." (G.C. Exh. 6.) In conjunc-
tion therewith, virtually all of Respondent's union- and
nonunion-represented employees were provided
newly discovered evidence, the motion to strike is hereby granted Stand-
ard Scientific, 195 NLRB 995 (1972); see also Sassafuin Convalescent
Center, 223 NLRB 267 (1976).
2 Respondent's nurses are represented by the District of Columbia
Nurses Association.
3 The bargaining unit as set forth in the labor contract is as follows:
All permanent, full-time employees (defined as those who fill a
permanent position, work on a regularly scheduled basis, and work
at least forty (40) hours per week or eighty (80) hours per pay
period, denominated as "PF") and all permanent, part-time eligible
employees (defined as those who fill a permanent position, work on
a regularly scheduled basis, and work at least twenty (20) hours but
less than forty (40) hours per week, or at least forty (40) hours but
less then eighty (80) hours per pay period, denominated as "PE") in
the job classifications attached to the Certifications of Representative
issued by the National Labor Relations Board on March 31, 1975
under Case No. 5-RC-9214, and on May 16, 1975, under Case No.
5-RC-9293, and any newly created job classifications similar to, or
related to, such classifications and appropriate for inclusions in the
unit, but excluding all professional employees, guards and supervi-
sors as defined in the National Labor Relations Act, as amended,
part-time employees who work less than twenty (20) hours per week
or less than forty (40) hours per pay period, temporary employees
defined as those who fill a temporary position and normally will not
work beyond the probationary period, whether full-time or part-time
temporary, and all other employees.
Hayes/Hill questionnaires designed to gather information
about their jobs. Thus, by letter dated July 17, 1980,
with attached questionnaires, Respondent's then person-
nel director Carter Coghill wrote to employees, in rele-
vant part, as follows:
Your Personnel Department is undertaking a
review of salary programs for all Hospital Employ-
ees. This review is being conducted with support
from Hayes/Hill Incorporated, a Chicago based
management consulting firm.
As part of this review, we are asking employees
to complete the attached questionaire relative to
their jobs . . . . [G.C. Exh. 10.]
With the information derived from these question-
naires, Hayes/Hill personnel, in tandem with Respond-
ent's personnel department, evaluated and made classifi-
cation descriptions for each job. About the same time,
Respondent formed a benchmark committee comprising
a group of approximately 20 individuals who were em-
ployed in both management and nonmanagement, unit
and nonunit positions to examine and rank some 40 to 50
technical, clerical, and general service jobs throughout
the hospital. The benchmark committee had access to the
questionnaires as well as separate Hayes/Hill material
comprising 37 multiple choice questions with corre-
sponding letter scores. (See G.C. Exh. 9.) With the data
derived therefrom, the Hayes/Hill consultants and per-
sonnel department evaluated the remaining 400 jobs and
translated the letter scores to a numerical value using a
Hayes/Hill formula. The numerical score for each job
was applied to a schedule which determined the pay
grade for each job.
In late 1980 or early 1981, Hayes/Hill produced a
summary document containing recommendations called a
"map." In essence, the map was an array of job titles
with corresponding pay grades which were arrived at
under the Hayes/Hill point evaluation system. From time
to time over the next 2-1/2 years, the map was revised
by Respondent's personnel department after review and
the concurrence of Hayes/Hill.
In the spring or summer of 1981, the work of unit
clerks changed, apparently for reasons unrelated to
Hayes/Hill. Rather, the changes in the nature of the
work performed by unit clerks coincided with the intro-
duction of a computer ordering system. Prior thereto,
the unit clerks, on instructions from physicians and
nurses, manually filled out order slips for such items as
X-rays, blood tests, and medication for the patients.
These order slips were then checked by a registered
nurse or supervisor before being deposited with the ap-
propriate department for servicing. Under the new com-
puter ordering system, the computer readout replaced
the paper order slips and the unit clerks transmitted this
computerized information directly to the department. As
stated by Union Business Agent Elliott, "for the first
time, the unit clerks took full responsibility for the accu-
racy of these orders." The Union began to press for a
pay increase and reclassification of unit clerks.
By letter dated November 6, 1981, Business Agent Pa-
tricia Ferguson wrote then Personnel Director Coghill
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requesting a meeting to discuss, inter alia, "additional re-
sponsibilities" of the unit clerks and "the possibilities of
[their] reclassification and upgrading." (R. Exh. 2.) In at-
tendance for Respondent was Coghill and subordinates,
Gorden Garrett and Joseph Latham; the Union was rep-
resented by Ferguson and Susan Townsend, a unit clerk
and shop steward. Townsend testified that this meeting
represented the first time she had discussed Hayes/Hill
with management. According to Townsend,4 Coghill
made reference to Hayes/Hill with regard to possible
ways in which the pay rate and upgrading of unit clerks
might occur. Further, the union representatives were ad-
vised that Garrett was then working on updating the unit
clerk job description and Coghill promised to explain the
Hayes/Hill system to the Union and employees after Jan-
uary 1, 1982, when the system was expected to be imple-
mented. (See R. Exh. 2,p.B,III-Upgrading.)
By letter dated January 19, 1982, Respondent notified
Union President Smiley, inter alia, that it "intends to im-
plement as of March 7, 1982, a comprehensive program
developed by Hayes/Hill Incorporated." (G.C. Exh. 12.)
The planned implementation date however was not met.
In a followup letter to the December 9 meeting dated
March 2, 1982, 5 to Coghill, signed by both Ferguson and
Townsend, request was made for a status report on unit
clerks. (R. Exh. 3.) Coghill was also reminded, inter alia,
that Garrett had stated that he was updating the unit
clerk's job and noted that "neither the unit clerks nor the
union has received new job descriptions .... " (Id.)
Sometime around March 25, the identity of the man-
agement officials with whom the Union had been dealing
changed. Thus, Michael Strand became "acting" and
later the new director of personnel, replacing Coghill,
who was no longer employed by Respondent.
Townsend and Ferguson met the new management
team twice in April and once in May. Strand was accom-
panied by Joyce Johnson, director of nursing and Krolls,
another supervisor. As testified by Strand, the partici-
pants covered "a whole variety of issues surrounding
unit clerks, including the issue of pay and job classifica-
tion." According to Townsend, she understood from the
discussion that, when Respondent completed the job de-
scription for unit clerks, that position would be evaluated
under the Hayes/Hill system.
In the meantime, back in February, Ben Elliott began
his employment as business agent for the Union. Elliott
was kept abreast of developments relative to unit clerks
by Ferguson and Townsend. According to Elliott, the
first time he discussed Hayes/Hill with Respondent was
in a phone conversation with Strand in late May or early
June. On that occasion, inter alia, Elliott and Strand had
a brief discussion about the reclassification of the unit
clerks. Elliot reiterated the Union's position, that reclassi-
fication and a pay increase for unit clerks were warrant-
ed. In turn, Strand noted, that Hayes/Hill would prob-
ably go into effect in the near future and, as such, he ex-
pected the situation regarding the unit clerks to be re-
solved.
4 Towsend was the only individual in attendance at the meeting to testi-
fy. She had recently become secretary of the local.
6 All dates hereinafter refer to 1982 unless otherwise indicated.
However, the Union continued to press Strand to do
something about the unit clerks. As stated by Strand,
"The unit clerk issue was a sensitive one . . . we were
all involved on emotionally as well as managerially ...
I was receiving phone calls daily as to what the status of
things were .. ." A few months earlier and largely as a
result of the meetings with Townsend and Ferguson,
Strand had directed his staff to undertake a study of unit
clerks. In connection therewith, the personnel depart-
ment had access to and examined all files which con-
tained, inter alia, Hayes/Hill questionnaires 6 and related
material.
By letter to Strand dated June 16, Elliott requested
"negotiations concerning a change in pay grade for all
unit clerks . . . affected by the introduction of computer
terminals." Further, inter alia, Elliott wrote:
We assume that the Hayes-Hill study dealt with
the issue of classification of the [unit] clerks. Please
send us the relevant findings and/or recommenda-
tions of this or any other job analysis. [G.C. Exh.
3.]
In July, Strand's staff completed its study and recom-
mended the upgrading of unit clerks and additional com-
pensation. Strand adopted these recommendations and
submitted them to his superior, Associate Administrator
for Employee Resources Truman Haskell Jr. for his con-
sideration. According to Strand, it was his "understand-
ing" that if Haskell approved his recommendations the
issues involving the unit clerks would be resolved. As
such, Strand did not respond to Elliott's letter of June 16
which had requested Hayes/Hill information and negoti-
ations.
However, Haskell rejected Strand's recommendations
asserting that by using the new computer system the
work of unit clerks was actually made easier. Elliott, not
hearing from Respondent with regard to his request for
information and negotiations, filed a grievance in letter
form, dated July 20, addressed to Strand. (G.C. Exh. 4.)
In the letter, the grievance was stated as follows:
By unilaterally changing the unit clerks' jobs with-
out an appropriate reclassification the Hospital has
violated its obligations under Section 1. 1 of the con-
tract.7 [Id.]
On December 22, Elliott and Townsend met with Re-
spondent's attorney Edward Krill to discuss the Union's
grievance. Krill pointed out that the unit clerks were
about to receive a substantial increase in pay and asked
I Since the initial distribution of questionnaires, Respondent has on oc-
casion given certain employees new questionnaires to help determine
whether a particular job has changed or should be reclassified. Strand
could not recall whether the personnel department obtained new ques-
tionnaires from the unit clerks.
? Sec. 1.1 states: "The Hospital recognizes the Union as the exclusive
representative for the purpose of collective-bargaining with respect to
rates of pay, hours of work and other conditions of employment of those
employees [including unit clerks] of the Hospital listed in 1.2 of the Arti-
cle." (G.C. Exh. 2, p. I.) Recently, the subject matter of the grievance
over unit clerks was held to be arbitrable. See Washington Hospital Center
v. Service Employees Local 722, 577 F.Supp. 206 (D.C. Cir. 1983).
398
WASHINGTON HOSPITAL CENTER
the Union to drop the grievance. Further, Krill advised
Elliott and Townsend that the Hospital intended to im-
plement the Hayes/Hill system in 2 or 3 weeks and
showed them a document listing job categories including
that of the unit clerks and corresponding new salaries or
grade levels. The union representatives indicated that
they would recommended that the unit clerks drop the
grievance and abandon any claim for backpay, if they
knew when the system would take effect, and, if Krill
satisfied them, in writing, that the grade and salary level
for unit clerks in the document covered the unit clerks of
the same grade under the contract.
The subject of Hayes/Hill vis-a-vis unit clerks came
up next between Elliott and Krill in a phone conversa-
tion about January 11, 1983. Krill did not yet have the
date of implementation of the system, While Krill also
did not have the exact salary schedule, he informed El-
liott that unit clerks would received pay increases from
about $1000 to $1700 a year and represented that this
amounted to about a 50-percent increase over the raises
of the other classifications in the bargaining unit. Ap-
proximately I week later, Krill told Elliott that the Hos-
pital had scuttled the original Hayes/Hill implementation
date and, in turn, Elliott promised to see Krill at arbitra-
tion.
The arbitration hearing opened on January 26, 1983.
Krill stated, inter alia, at the arbitration hearing, that the
Hospital was "determined" to implement Hayes/Hill on
"October 2, 1983 and not sooner." According to Town-
send's uncontroverted testimony, on the second day of
the arbitration hearing, the Hospital changed the job de-
scription for unit clerks.8 Strand acknowledged that over
the past 8 or 9 months, in addition to unit clerks, other
groups of unit employees have been studied with some
resort to Hayes/Hill material and have been reclassified.
Thus, Strand testified that some 35 positions within the
central supply department as well as a "significant
number" of respiratory therapy employees have been re-
classified.
B. Discussion and Conclusions
The General Counsel contends that the Hayes/Hill
study or any other job analysis dealing with the classifi-
cation of unit clerks is "necessary" and "relevant" to
help the Union determine whether upgrading these em-
ployees with a concomitant pay increase is justified. Fur-
ther, the General Counsel asserts that Respondent's eval-
uation of the unit clerks' positions as well as their rate of
pay is a mandatory subject of bargaining and, as such,
the Union is entitled to the data in its obligation to rea-
sonably and intelligently represent bargaining unit em-
ployees. The record reveals that the Union requested this
information in a letter dated June 16, 1982 (G.C. Exh. 3),
and filed a grievance, in the form of a letter, more than 1
month later, when Respondent failed to respond. (G.C.
Exh. 4.) The grievance was predicated on Respondent's
I While the record is silent as to the ultimate disposition of the arbitra-
tion, it is noted that the instant unfair labor practice charges were filed
on February 2, 1983, and that the Union, inter alia, contends that all the
Hayes/Hill material is necessary and relevant for it to represent the unit
clerks at arbitration See fn. 7, supra
"unilateral" introduction of a computer ordering system,
which assertedly made the work of unit clerks more dif-
ficult "without an appropriate reclassification" in viola-
tion of the contract. (Id.)
On the other hand, Respondent denies that the Union
is entitled to the disputed Hayes/Hill material because
the system has not yet been implemented vis-a-vis bar-
gaining unit employees. According to Respondent,
"Hayes/Hill has simply produced a methodology which
might be used as part of a comprehensive compensation
system affecting all employees of the hospital." In any
event, Respondent asserts that it has from time to time
disclosed sufficient information about the study "in the
Benchmark process and otherwise" to enable the Union
to intelligently negotiate and represent the bargaining
unit.
Insofar as the Union's request for "any other job anal-
ysis dealing with unit clerks," the record disclosed that
the only such study was undertaken by the personnel de-
partment under the direction of Personnel Director
Strand and the findings and recommendations thereon
were rejected by higher management. Respondent main-
tains that it has a legitimate business reason for withhold-
ing of information dealing with contrary opinions among
its management staff: "to preserve the ability of Re-
spondent's staff to communicate openly and candidly
without fear that the Union can obtain evidence of such
disagreement and pit members of Respondent's staff
against one another in a public forum."
I find, for reasons discussed below, that a number of
representations or denials by Respondent regarding the
use of Hayes/Hill is not supported by the record. Fur-
ther, I find that Hayes/Hill material at least in part was
utilized by the personnel department in arriving at rec-
ommendations for the upgrading and increases in pay for
unit clerks. To permit proper perspective and context, a
summary of the circumstances giving rise to the Union's
request for information relative to Hayes/Hill and the
study undertaken by the personnel department is now in
order.
The record disclosed that the Hayes/Hill study was
virtually completed around March 1981. About the same
time, the Hospital introduced a computer order entry
control system (COECS) for unit clerks. While the two
events initially appeared to be unrelated, these subjects
became linked by Respondent in a union-management
meeting on December 9, 1981. The Union had requested
this meeting in a letter dated November 6, 1981, to dis-
cuss "the possibilities of reclassification and upgrading of
unit clerks with additional responsibilities [under the new
computerized system]." (R. Exh. 1.)
Shop Steward Townsend's credited and uncontrovert-
ed testimony9 disclosed that at the December meeting, in
9 I found Townsend to he consistent, responsive, plausible, and in a
large part corroborated. In this regard, it is noted, inter alia, that her ac-
count of the December 9 meeting comports with her minutes of that ses-
sion, an exhibit offered in evidence by Respondent (R Exh. 2). Further,
her accounts of subsequent meetings with Strand appear to have been
corroborated by the latter's testimony. As testified by Strand, his study
"emanated out of a series of meetings that Susan Townsend described."
For the foregoing reasons and on the basis of my assessment of her de-
meanor. I credit Townsend's testimony in all material respects,
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
response to the Union's concerns about the changes
brought about by COECS, Personnel Director Coghill
made reference to Hayes/Hill as one of two ways in
which the pay grade and upgrading of unit clerks might
occur. Coghill also advised the Union at that time that
his staff was already working on updating the unit clerk
position and promised to explain Hayes/Hill more fully
in the near future, sometime after January 1982, when
the system was expected to be implemented.
In January 1982, Respondent advised the Union by
letter that it "intends to implement as of March 7, 1982,
[the] comprehensive compensation program developed
by Hayes/Hill Incorporated." (G.C. Exh. 12.) In the
meantime, and as the early months of 1982 passed, Re-
spondent had still not furnished the Union with the new
job classifications and other upgrading material for unit
clerks as promised at the December 9 meeting. The
Union, for its part, continued to press for this material.
Thus, Ferguson and Townsend, in a followup letter
dated March 2, reminded Coghill, inter alia, that the
Union was told at the December 9 meeting that Re-
spondent was "upgrading the [unit] clerks' job descrip-
tion" but that "[n]either the unit clerks nor the union"
had received this material. (R. Exh. 3.) The union repre-
sentatives were particularly interested in whether these
new job descriptions reflected the changes in the respon-
sibilities of unit clerks as a result of COECS pointing
out, that "[p]roper pay adjustments are, of course, of pri-
mary importance." (Id.) Again, by letter to Coghill dated
March 22, Ferguson complained that Respondent had
not yet delivered on the promises it made at the Decem-
ber 9 meeting relative to unit clerks. (R. Exh. 4.) Around
the same time Coghill was terminated and replaced by
Strand.
According to Strand, at the time he assumed Coghill's
responsibilities, he was unaware of the issues involving
unit clerks. However, as a result of meetings with Town-
send and Ferguson in April and May, where, inter alia,
"a whole variety of issues surrounding unit clerks, in-
cluding the issue of pay and job classification," were dis-
cussed, Strand ordered his staff to undertake a new study
(hereinafter "Strand study") to determine whether up-
grading the unit clerks was warranted. As testified by
Townsend, after these meetings, "it was still our under-
standing that when [the unit clerk] job description was
complete[d], that it would be evaluated by personnel
under this [Hayes/Hill] system."
As noted above, in June, the Union had requested
Hayes/Hill material dealing with the reclassification of
unit clerks and/or findings and/or recommendations of
any other job analysis. The record disclosed that aside
from Hayes/Hill the only other undertaking by Respond-
ent on this subject was the "Strand study," which was
completed in July. Strand described the "process" by his
staff as follows:
[T]hey looked at the information in our files, they
looked at the new information that was provide[d]
by nursing administration, and I do not recall
whether they got new position description question-
naires from individuals or not . . . [they] examined
all that data, and came up with the recommenda-
tion. [Emphasis added.]
While Strand could not recall whether the original
Hayes/Hill questionnaires were updated, his testimony
establishes that his staff had access to the employees'
complete files. This included the job descriptions com-
piled under the Hayes/Hill system and, at least, the old
questionnaires which admittedly were maintained by Re-
spondent as part of an ongoing process. According to
Strand, he elected not to respond in writing to Elliott's
written request for this material as well as other
Hayes/Hill data, because he expected the new study to
be completed shortly with favorable recommendations
upgrading and increasing the pay of unit clerks. As such,
he expected all outstanding issues involving the unit
clerks to be resolved.
As noted previously, Strand's analysis, findings, and
recommendations were rejected by Haskell. In July, El-
liott filed a grievance over Respondent's failure to up-
grade the unit clerks.1 0 The Respondent argues, inter
alia, that as the Strand study was rejected this, as well as
the Hayes/Hill material which has not yet been imple-
mented, is not relevant or necessary to the Union in the
exercise of its bargaining functions.
It is well settled that an employer has a "general obli-
gation" to provide information which is reasonably nec-
essary to a union in carrying out its collective-bargaining
functions. NLRB v. Acme Industrial Co., 385 U.S. 432,
435-436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1946). This obligation is a continuing one, extending
beyond contract negotiations and "applies to labor-man-
agement relations during the term of an agreement."
Acme Industrial Co., supra at 436; Timkin Roller Bearing
Co. v. NLRB, 325 F.2d 746, 750 (6th Cir. 1963), cert.
denied 376 U.S. 971 (1964). Whether the requested infor-
mation is relevant and necessary is determined by the
factual circumstances on a case-by-case basis. San Diego
Newspaper Guild v. NLRB, 548 F.2d 683, 687 (9th Cir.
1977); Procter & Gamble Mfg. Co. v. NLRB, supra at
1315. However, certain types of information pertaining
to mandatory subjects of bargaining (wages, hours, and
working conditions of bargaining unit employees) "are so
intrinsic to the core of the employer-employee relation-
ship that such information is considered presumptively
relevant." San Diego Newspaper Guild v. NLRB, supra.
Accord: Teleprompter Corp. v. NLRB, 570 F.2d 4, 8 (Ist
Cir. 1977); Procter & Gamble Mfg. Co. v. NLRB, supra.
Evaluation data applicable to particular jobs or wage
compensation, as involved herein, has long been treated
O1 I found Elliott to be a credible witness. In large part, Elliott's testi-
mony was corroborated by Townsend, who was also found herein to be a
credible witness. Elliott testified credibly and without controvention that
in efforts to resolve the union grievance attorney Knrill told him and
Townsend. at a meeting on December 22, that he expected the Hayes/Hill
system to be implemented in 2 or 3 weeks with an increase in pay for the
unit clerks. Further, about January 11, 1983, Elliotrr called Krill for an
update and the latter, at that time, still maintained that implementation
was imminent and represented that unit clerks would average wage in-
creases from about $1000 to $1700 a year. However, about I week later,
Krill retreated and told Elliott that Respondent had scuttled the original
implementation date. Elliott ended that conversation by telling Knrill that
he would see him in arbitration.
400
WASHINGTON HOSPITAL CENTER
as encompassing mandatory subjects of bargaining. See,
e.g., Western Massachusetts Electric Co v. NLRB, 589
F.2d 42, 47 (Ist Cir. 1978); Dynamic Machine Co., 221
NLRB 1140 (1975). See also J. I. Case Co., 118 NLRB
520, 521-522 (1957), enfd. 253 F.2d 149 (7th Cir. 1958);
Taylor Forge d Pipe Works, 113 NLRB 693 (1955); Proc-
ter & Gamble Mfg. Co. v. NLRB, supra at 1315.
While Respondent "concedes" its "general obligation"
to furnish the Union relevant information, it points out
that the duties imposed by the Act are not absolute. This
is so, particularly, when balanced against any legitimate
assertion of confidentiality. See Detroit Edison Co. v.
NLRB, 440 U.S. 301, 314-320 (1979); Johns-Manville
Sales Corp., 252 NLRB 368 (1980). However, it is also
noted that the "weight" of an employer's assertion of
confidentiality is "subject to scrutiny." Johns-Manville
Sales Corp., supra.
According to Respondent, disclosure would tend to in-
hibit feedback from its staff and promote disharmony.
The record is devoid of any evidence to support such
fears. In any event, the identities of the supervisors and
their specific recommendations could be deleted. What I
find is necessary is the analysis and data on which the
recommendations are predicated.
Contrary to Respondent, in the circumstances of this
case, disclosure does not turn on whether Hayes/Hill
was implemented in its entirety. This is so principally be-
cause, under the Hayes/Hill ongoing system, each classi-
fication is assessed relative to other positions and has al-
ready resulted in, inter alia, certain classifications being
upgraded. Strand noted that among these "significant"
reclassifications are some 35 positions within the central
supply department, "a significant number of respiratory
therapists," and some "secretarial type positions." Fur-
ther, Haskell, acknowledged that under the Hayes/Hill
system of compensation, each job is analyzed in relation-
ship to every other job in the bargaining unit and "[e]ach
job . . . is given a point score that is placed in relation
to other jobs." The record disclosed that these point
scores under a Hayes/Hill formula are substituted for
letter grades. This formula, as well as other Hayes/Hill
material noted below, has not yet been furnished to the
Union.
As noted previously, Respondent asserts that it has al-
ready disclosed sufficient information about Hayes/Hill
"in the Benchmark process and otherwise" to enable the
Union to intelligently represent unit clerks. I reject this
conclusion both factually and as a matter of law.
The record disclosed that the Union has been supplied
with some Hayes/Hill material consisting principally of
the raw questionnaires (G.C. Exh. 10), the 37 questions
furnished the Benchmark committee (G.C. Exh. 9), and
the "Summary Presentation of the Comprehensive Pro-
gram for the Washington Medical Center." (G.C. Exh.
8.) On the other hand, without the completed question-
naires and new job descriptions generated therefrom, the
answers to the 37 questions, the formula used to drive
numerical values, the final "map", and adequate explana-
tions for context, I fail to discern how the Union can
make adequate comparisons in determining whether dif-
ferentials for various job classifications are warranted.
See Procter & Gamble Mfg. Co. v. NLRB, supra at 1316-
1317; J. I. Case Ca, supra at 523. With regard to Re-
spondent's reliance on the Union's access to the Bench-
mark committee as an alternative source for the request-
ed information, the record is far from clear that any
union representative served on the committee or that the
Union in fact had access to this source." In any event,
the Board has consistently noted that the alleged avail-
ability of the requested information from other sources
does not relieve an employer of its obligations to furnish
such information under Section 8(aX5). See New York
Times Co., 265 NLRB 353 (1982); Borden, Inc., 235
NLRB 982 (1978); Kroger Co., 226 NLRB 512 fn. 8
(1976), where the Board noted, "[T]he fact that the
Union has recovered part of the requested information
does not relieve the Employer of its duty to furnish com-
plete information." See also Procter & Gamble Mfg. Co. v.
NLRB, supra at 1317.
The record clearly discloses that Hayes/Hill is a viable
ongoing process where employees are continuously
ranked relative to their colleagues. As noted above, some
classifications have already been upgraded. Indeed, Re-
spondent's attorney noted, at the arbitration hearing,
inter alia, that under Hayes/Hill "some people will move
forward relative to their colleagues in the workforce and
will receive what could be considered pay increases
based on classification." There is no showing that Re-
spondent has abandoned Hayes/Hill, only that it has not
yet been fully implemented. The most recent target date
as set forth by Respondent's attorney at the arbitration
hearing was October 1983.
In these circumstances and on the total state of the
record, noting particularly the relative ranking of classifi-
cations and that some unit employees have already been
upgraded, I find that all Hayes/Hill material is necessary
for the Union to fulfill its statutory obligation to repre-
sent the bargaining unit in general and the unit clerks in
particular. Conversely, Respondent's failure to provide
the requested information is a breach of its bargaining re-
sponsibility and violative of Section 8(a)(5) and (1) of the
Act as alleged. 12
CONCLUSIONS OF LAW
1. Respondent, Washington Hospital Center, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
' L Haskell stated that he did not know whether any member of the
Union participated on the Benchmark committee. Strand asserted (with-
out corroboration) that the Union was represented, but also acknowl-
edged that he was only "roughly" familiar with the identity of its mem-
bers. While Strand named Barbara Becker as an officer of the Union and
a member of the committee, he also added, "but I don't know for sure."
With regard to Hayes/Hill material assertedly disclosed to President
Smiley, it is noted, inter alia, that Strand could not state whether informa-
tion relative to unit clerks was included. Haskell testified that the subject
of unit clerks was raised at one meeting with Smiley but did not other-
wise describe what transpired therewith. In any event Haskell testified
that he disclosed the impact of Hayes/Hill to Smiley "only in general
terms that implementation would mean an increase for certain jobs and
not for others." In assessing the overall credibility of Haskell and Strand.
I found them to be, inter alia, uncertain about key events and otherwise
conclusionary. As such, their poor recall does not inspire confidence in
the accuracy of their testimony and I place little reliance thereon.
12 See section of this decision entitled "The Remedy" for that portion
of the Strand study encompassed by these findings.
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Service Employees International Union, Local 722,
AFL-CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
3. All permanent, full-time employees (defined as those
who fill a permanent position, work on a regularly
scheduled basis, and work at least forth (40) hours per
week or eighty (80) hours per pay period, denominated
as "PP") and all permanent, part-time eligible employees
(defined as those who fill a permanent position, work on
a regularly scheduled basis, and work at least twenty
(20) hours but less than forty (40) hours per week, or at
least forty (40) hours but less than eighty (80) hours per
pay period, denominated as "PE") in the job classifica-
tions attached to the Certifications of Representative
issued by the National Labor Relations Board on March
31, 1975 under Case No. 5-RC-9214, and on May 16,
1975 under Case No. 5-RC-9293 and any newly created
job classifications similar to, or related to, such classifica-
tions and appropriate for inclusions in the unit, but ex-
cluding all professional employees, guards and supervi-
sors as defined in the National Labor Relations Act, as
amended, part-time employees who work less than (20)
hours per week or less than forty (40) hours per pay
period, temporary employees defined as those who fill a
temporary position and normally will not work beyond
the probationary period, whether full-time or part-time
temporary, and all other employees constitute a unit ap-
propriate within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in
the aforesaid appropriate unit within the meaning of Sec-
tion 9(a) of the Act.
5. By refusing to furnish the Union with the informa-
tion requested as alleged in the instant complaint, Re-
spondent has failed to bargain collectively with the
Union and has thereby engaged, and is engaging, in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meanings of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in conduct
violative of Section 8(a)(5) and (1) of the Act, I recom-
mend that Respondent cease and desist therefrom and
take additional affirmative action necessary to effectuate
the purposes of the Act.
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to furnish all of the
Hayes/Hill information requested by the Union, I recom-
mend that Respondent be required to furnish this materi-
al in its entirety including the completed questionnaires,
new job descriptions, the answers to the 37 multiple
choice questions with corresponding letter grades, the
formula used to derive numerical values, and the final
"map."' 3 Further, it is recommended that any portion of
13 Respondent has not contended, nor does it appear otherwise, that
compliance therewith would be unduly burdensome. See Equitable Gas
Co., 227 NLRB 800, 803 (1977); J. I Case Co.. supra at 523.
the Strand study based on Hayes/Hill material also be in-
cluded. Insofar as the identity of supervisors and their
recommendations can be deleted from the Strand study,
I recommend that this information not be disclosed as
distinguished from the analysis itself.1 4
On the foregoing findings of fact and conclusions of
law, I issue the following recommended' 5
ORDER
The Respondent, Washington Hospital Center, Wash-
ington, D.C., its officers, agents, successors, and assigns,
shall
I. Cease and desist from
(a) Failing and refusing to bargain collectively with
Service Employees International Union, AFL-CIO as
the exclusive representative of its employees in the ap-
propriate unit by failing and refusing on request to fur-
nish it with information relevant and reasonably neces-
sary to the performance by the Union of its obligations
as bargaining representative.
(b) In any like or related manner interfering with, co-
ercing, or restraining employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) On request, provide the Union with the Hayes/Hill
information requested by it for the purpose of collective
bargaining.
(b) Post at its facility in Washington, D.C., copies of
the attached notice marked "Appendix." 16 Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent 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 the Re-
spondent has taken to comply.
14 As found herein, the Strand study involving unit clerks included
access and consideration of Hayes/Hill material already in employees'
files. While it is noted that Respondent rejected the recommendations of
the Strand study to upgrade unit clerks, other classifications based on
Hayes/Hill material were upgraded. As such, and for other reasons dis-
cussed previously, I find that all Hayes/Hill material including the Strand
study to the extent that it is based thereon is necessary for the Union to
fullfill its bargaining responsibilities under the Act. Cf. General Aniline &
Film Corp., 124 NLRB 1217 (1959).
'5 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 objections to them shall be deemed waived for all pur-
poses.
16 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
402
WASHINGTON HOSPITAL CENTER
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Service Employees International Union, AFL-CIO, as
the exclusive representative of our employees in the unit
found appropriate herein by failing and refusing on re-
quest to furnish it with information relevant and reason-
ably necessary to the performance by the Union of its
obligations as bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights under Section 7 of the National Labor Rela-
tions Act.
WE WILL furnish the Union, as the exclusive bargain-
ing representative of our employees in the unit found ap-
propriate here, with information heretofore requested by
the Union pertaining to unit clerks which is necessary
and relevant to the performance by the Union of its obli-
gations as bargaining representative.
WASHINGTON HOSPITAL CENTER
403