Firemen & Oilers Local 288 (Diversy Wyandotte)

National Labor Relations Board - Board Decisions

May 16, 1991

302 N.L.R.B. 1008 (N.L.R.B. 1991)

1008
302 NLRB No. 158
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 ‘‘No physician licensed under Chapter 34 of Title 43 and no hospital or
health care facility . . . shall be required to release any medical information
concerning a patient except . . . on written authorization or other waiver by
the patient . . . provided further, that the privilege shall be waived to the ex-
tent that the patient places his care and treatment or the nature and extent of
his injuries at issue in any civil or criminal proceeding.’’ Official Code of
Georgia, sec. 24–9–40(b).
International Brotherhood of Firemen and Oilers,
Local No. 288, AFL–CIO and Diversy Wyan-
dotte Corporation, Dekalb. Case 10–CB–5512
May 16, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 10, 1990, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The
General Counsel and the Charging Party filed excep-
tions and supporting briefs. The Respondent filed an
answering 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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
I. BACKGROUND
The Respondent is alleged to have violated Section
8(b)(3) of the Act by refusing to furnish the Employer
with information that is necessary and relevant to the
processing of a grievance filed by the Respondent on
behalf of an employee it represents. The facts, pro-
vided in detail in the judge’s decision, may be summa-
rized as follows. The Employer discharged Charles
Gibson for insubordination when he failed to work
mandatory overtime. The Respondent filed a grievance
on Gibson’s behalf, claiming that Gibson should not
have been discharged because he was ill on the day
that this overtime was assigned. To substantiate this
claim, Gibson produced a doctor’s bill reflecting a di-
agnosis of a prolapsed mitral valve. The Employer
asked for further documentation of Gibson’s condition
in the form of Gibson’s doctor’s records and hospital
records. The Respondent failed to furnish these records
after promising to do so, and the Employer filed an
unfair labor practice charge. After the unfair labor
practice charge was filed, the Respondent’s attorney
permitted the Employer’s attorney to view Gibson’s
hospital records and offered to give them to the Em-
ployer if the Employer agreed to drop the charges
leading to the instant complaint.
The Respondent argued that it did not violate the
Act. It contended (1) it did not have an affirmative
duty to furnish the records because they were not in
the Respondent’s possession and (2) in any event, the
requested information was properly withheld under
Georgia’s physician-patient privilege.1 The judge found
that the information requested was presumptively rel-
evant but dismissed the complaint based on his further
finding that the Georgia physician-patient privilege had
not been waived by Gibson, that the Respondent itself
did not possess the doctor’s records, and that there was
no evidence as to the Union’s authority with respect to
the hospital records in its attorney’s possession.
II. RESPONDENT’S OBLIGATION TO SEEK RECORDS
NOT IN ITS POSSESSION
The judge found, and we agree, that the medical
records sought by the Employer were presumptively
relevant, because they were ‘‘essential’’ to the Em-
ployer’s ‘‘follow up’’ of Gibson’s medical disability
claim. Nonetheless, the judge concluded that the Re-
spondent had no obligation to seek records it did not
actually possess because there had been no showing
the records were within the Respondent’s ‘‘control.’’
In the context of a grievance resolution process, where
the person who is the subject of the grievance has ac-
cess to the records, we find too limiting this statement
of a party’s obligation to seek and provide information
relevant to the other party’s evaluation of the griev-
ance.
A. Duty to Obtain Information from Others
We first address the Union’s obligation during
grievance processing to turn over to the Employer rel-
evant information not in the Union’s possession, but
which it may be able to acquire. In giving the union
the ‘‘discretion to supervise the grievance machinery,’’
the Act contemplates that the parties ‘‘will endeavor in
good faith to settle grievances short of arbitration.’’
Vaca v. Sipes, 386 U.S. 171, 191 (1967). Settlements
of grievances are often ‘‘facilitated by honest and open
disclosure of each party’s position and its basis [foot-
note omitted].’’ Elkouri and Elkouri, How Arbitration
Works 157 (4th ed. 1985). That disclosure involves,
among other things, furnishing information that is
probably relevant to a disposition of the grievance to
the party not in possession of that information. NLRB
v. Acme Industrial Co., 385 U.S. 432, 437 (1967). In
this way, the parties to the grievance procedure have
the opportunity ‘‘to evaluate the merits of the claim
[footnote omitted],’’ and possibly to settle the griev-
ance prior to arbitration. Id. at 438.
We have extended the employer’s duty to supply
relevant information during grievance processing to sit-
uations where the information is not in the employer’s
possession, but where that information likely can be
obtained from a third party with whom the employer
has a business relationship that is directly implicated in
1009FIREMEN & OILERS LOCAL 288 (DIVERSY WYANDOTTE)
2 The judge noted that the Employer’s attorney, Thomas Rebel, testified that
the Respondent’s attorney, Paul Styles, had shown Rebel a copy of Gibson’s
hospital report. The judge also observed that Styles denied at the hearing that
he then had the report. Styles did not dispute, however, that he once had the
report, and the judge in his analysis referred to the ‘‘hospital records in the
possession of its attorney . . . .’’ We consider it reasonable to infer from the
Respondent’s attorney’s possession of the hospital report, a document to which
the Respondent itself would not normally have access, that Gibson must have
assisted the Respondent in obtaining the report.
the alleged breach of the collective-bargaining agree-
ment. United Graphics, 281 NLRB 463, 466 (1986).
See NLRB v. Rockwell-Standard Corp., 410 F.2d 953,
958 (6th Cir. 1969), enfg. 166 NLRB 124 (1967). Al-
though the obligation to supply information during the
processing of a grievance is most often stated in terms
of the employer’s duty under the Act, we have found
that a union has a similar duty. Printing & Graphic
Communications Local 13 (Oakland Press), 233 NLRB
994, 996 (1977). Thus, a union may have to furnish,
or at least attempt to obtain, relevant, requested infor-
mation that is not in its possession or control but to
which it has access. See Hospital Employees District
1199E (Johns Hopkins), 273 NLRB 319, 320, 326
(1984).
B. The Respondent’s Relation to the Grievant
We next consider whether the Respondent had an
obligation under the Act to acquire the doctor’s records
through Gibson. In our view, whether the Respondent
had such a duty depends in part on the relationship be-
tween Gibson, who is the subject of the grievance, and
the Respondent, which filed the grievance on Gibson’s
behalf. The General Counsel would have us describe
this link between the two as one in which the Re-
spondent is Gibson’s ‘‘agent.’’ But the connection be-
tween Gibson and the Respondent is not so easily de-
fined in terms of common law agency principles. Rath-
er, the legal relationship between a union and the em-
ployees it represents is a complex one, shaped in part
by the prescripts of Federal labor law and in part by
the peculiarities of collective bargaining at the par-
ticular employer, including the nature of the collective-
bargaining agreement itself. A union owes a duty of
fair representation to those unit employees whom it
represents and, as the Supreme Court has recently ob-
served, this duty is ‘‘akin to the duty owed by other
fiduciaries to their beneficiaries.’’ Air Line Pilots v.
O’Neill, 939 F.2d 1199 (5th Cir.1991). As the Court
further observed, the duty has variously been analo-
gized to the duty owed by a trustee to trust bene-
ficiaries, the relationship between attorney and client,
and the responsibilities of corporate officers and direc-
tors toward shareholders. Id. (Citations omitted.) With
respect to grievance representation in particular, the
union has a duty to the entire unit that entails pro-
tecting the integrity of the grievance and arbitration
process itself. Vaca v. Sipes, 386 U.S. 171, 194 (1967).
Hence, it must represent a grievant in ‘‘good faith and
in a non-arbitrary manner,’’ with due consideration for
its obligations under the Act as the collective-bar-
gaining representative of all the employees in the unit.
Id.
Given the nature of this relationship between union
and grievant, we find that it is reasonable to require
that the Respondent at least attempt to obtain from
Gibson his medical records. His records relate directly
to the subject of the grievance on which the Respond-
ent is representing him.
Further, the judge found that it was Gibson who, at
the third stage of the grievance proceeding, presented
a doctor’s diagnosis showing that he had a prolapsed
mitral valve.2 Thus, it was only with Gibson’s co-
operation that the medical defense to his refusal to
work the mandatory overtime was raised in the first
place. As Gibson’s representative for purposes of pros-
ecuting the grievance, the Respondent must have con-
sulted with Gibson in filing the grievance and in the
preparation of his case. In these circumstances, we find
that the Respondent’s relationship with Gibson was
sufficiently close to require that, upon the Employer’s
request of the Respondent for Gibson’s medical
records, the Respondent was obligated to seek Gib-
son’s assistance in obtaining those records.
We cannot say that the Respondent’s asking Gibson
for his medical records would be a futile act. No one
questions Gibson’s ability to obtain his medical
records if he chooses to do so. The Respondent has not
shown that Gibson’s doctor would oppose providing
the records to Gibson, or to the Respondent if Gibson
asked his doctor for them. Nor has the Respondent
demonstrated that Gibson himself would refuse to re-
quest the records or to sign a release, if asked to do
so. Consequently, in the absence of contrary evidence,
we must assume that the records are available for the
Respondent’s asking.
Thus, at the least, the Respondent should have re-
quested that Gibson sign the medical release. We do
not require that the Respondent force Gibson to author-
ize release of his medical records. Had the Respondent
tendered the release to Gibson, Gibson would have had
the choice of signing the release form, providing the
information himself to the Respondent, or taking the
risk that his defense in the arbitration proceeding
might be rejected by the arbitrator. By failing to give
Gibson that choice, however, the Respondent acted in
derogation of its collective-bargaining responsibilities
and thereby violated Section 8(b)(3).
As for the hospital records, they are in the posses-
sion of the Respondent’s attorney, their relevancy has
been established, and the Respondent has not come
forward with any valid reason they should not be
turned over to the Employer.
Accordingly, we find that the Respondent’s failure
to furnish the hospital records violates Section 8(b)(3)
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 McCormick, Evidence § 102 at 252 (3d ed. 1984).
4 McCormick, supra, § 103 at 254.
5 We doubt that, had Gibson refused to sign a waiver on confidentiality
grounds, his privacy rights would have overcome the interests of the Employer
in obtaining the information. Under Detroit Edison Co. v. NLRB, 440 U.S. 301
(1979), if a party asserts privilege or confidentiality as a defense in aid of its
refusal to turn over requested information, we must balance the interests of
the parties. See also Howard University, 290 NLRB 1006 (1988), Postal Serv-
ice, 280 NLRB 685 (1986), and Minnesota Mining & Mfg. Co., 261 NLRB
27 (1982). In weighing the relative merits of the parties’ positions, we have
held, contrary to the judge, that the party claiming confidentiality—in this
case, the Respondent or Gibson—has the burden of proof. McDonnell Douglas
Corp., 224 NLRB 881, 890 (1976). Several factors in this case weigh heavily
in favor of disclosure. First, because Gibson produced his doctor’s diagnosis
at the grievance meeting, the diagnosis itself is no longer confidential. Having
been made aware of Gibson’s medical condition, the Employer understandably
sought details, scrupulously limited just to that condition. Second, the Re-
spondent’s attorney permitted the Employer’s attorney to examine Gibson’s
hospital records and offered to give the Employer the hospital records if the
Employer agreed to drop the charges leading to the instant complaint. Having
revealed the hospital records to the Employer, Gibson and the Respondent are
hardly in a position to claim they are confidential. Third, the Respondent
agreed initially to provide the requested information and did not claim a physi-
cian-patient privilege until after the Employer had filed an unfair labor practice
charge. In these circumstances, the confidentiality defense appears to be more
an afterthought than an actual basis for refusing to supply the requested infor-
mation. McDonnell Douglas Corp., supra at 889. Fourth, the requested infor-
mation plainly is necessary to enable the Employer properly and intelligently
to process the grievance.
6 We thus find it unnecessary to pass on the Employer’s contention that the
Georgia statute is not a physician-patient privilege law but is a physician
shield statute that may only be asserted by the physician. We note, however,
that the Employer’s interpretation has much to commend it. The Georgia Court
of Appeals has interpreted the statute as a physician ‘‘shield’’ statute. Thus,
in Gilmore v. State, 333 S.E. 2d 210 (Ga.App. 1985), the court observed that:
‘‘The statute authorized a grand jury or other judicial user to obtain medical
records by court order or subpoena. When in answer to such order the doctor
releases information, the physician is granted immunity from adverse action
by the patient.’’ Id. at 211. And in National Stop Smoking Clinic-Atlanta, Inc.
v. Dean, 378 S.E. 2d 901 (Ga.App. 1989), the Georgia Court of Appeals held
that there is no statutorily protected confidential relationship in Georgia be-
tween physician and patient.
unless the Respondent’s privilege claim establishes a
valid defense. As we find below, it does not.
C. The Georgia Privilege Statute
The Respondent’s contention that the requested in-
formation was privileged under a Georgia statute fails
as a defense for several reasons. First, it is hornbook
law that a patient’s privilege of nondisclosure of his
medical records belongs to the patient alone.3 Thus,
the Respondent, which we have found had an obliga-
tion to request the information from Gibson, cannot
claim the privilege on Gibson’s behalf. The judge
therefore erred in relying on the Georgia statute. Sec-
ond, even assuming the Respondent could assert the
privilege, it waived the privilege as to Gibson’s hos-
pital records when it permitted the Employer’s attorney
to examine them.4 Further, we find the judge’s anal-
ysis of the statute to be flawed. By finding that the
statute ‘‘applies,’’ the judge appears to have assumed
that the statute stands as an absolute prohibition
against turning over the medical records that must be
affirmatively waived by the patient. We do not read
the statute as barring Gibson’s doctor in his discretion
from providing Gibson’s medical records. Thus, sec-
tion 24–9–40(b) states that no physician ‘‘shall be re-
quired to release’’ information about a patient except
‘‘on written authorization or other waiver by the pa-
tient.’’ (Emphasis added.) Nothing in the statute pre-
cludes Gibson’s doctor from voluntarily turning over
Gibson’s medical records in an appropriate proceeding.
The Georgia law only ensures that the doctor not be
‘‘required’’ to do so without a waiver. Further, even
if the Georgia statute could be read to preclude abso-
lutely the doctor’s furnishing the records without the
patient’s release, we note that the Respondent has not
shown that Gibson would not authorize the doctor to
do so.5 In fact, as noted above, the Respondent never
requested that Gibson obtain the records from his doc-
tor, or sign the release tendered by the Employer, or
that the doctor produce the records to the Respondent.
For these reasons, we conclude that the judge erred in
relying on a physician-patient privilege in this case.6
CONCLUSIONS OF LAW
1. Diversy Wyandotte Corporation, DeKalb is an
employer within the meaning of Section 2(2), (6), and
(7) of the Act.
2. International Brotherhood of Firemen and Oilers,
Local No. 288, AFL–CIO is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appro-
priate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by the Employer at its DeKalb, Georgia
plant, including truck drivers and plant clerical
employees, and excluding all office clerical em-
ployees, confidential and managerial employees,
professional employees, watchmen, guards, and
supervisors as defined in the Act.
4. International Brotherhood of Firemen and Oilers,
Local No. 288, AFL–CIO is now, and at all times ma-
terial here has been, the exclusive representative of all
the employees in the appropriate unit for the purposes
of collective bargaining within the meaning of Section
9(a) of the Act.
5. By failing to furnish Charles Gibson’s hospital
records to the Employer and by failing to make reason-
able efforts to obtain and provide to the Employer
Charles Gibson’s doctor’s records, the Respondent has
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(b)(3) and Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, it shall be ordered to
cease and desist and to take certain affirmative action
necessary to effectuate the policies of the Act.
1011FIREMEN & OILERS LOCAL 288 (DIVERSY WYANDOTTE)
7 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
To remedy the failure and refusal to provide infor-
mation found to be unlawful, the Respondent shall be
ordered to give to the Employer Gibson’s hospital
records that were or are in its attorney’s possession.
The Respondent shall also be ordered to make reason-
able efforts to obtain Gibson’s doctor’s records for the
Employer. The Respondent may either request Gibson
to sign the medical release form submitted by the Em-
ployer or it may request Gibson to obtain his doctor’s
records for the Employer.
ORDER
The National Labor Relations Board orders that the
Respondent, International Brotherhood of Firemen and
Oilers, Local No. 288, AFL–CIO, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Refusing to furnish to the Diversy Wyandotte
Corporation, Dekalb, Charles Gibson’s hospital records
that were or are in its attorney’s possession.
(b) Refusing to make reasonable efforts to obtain
and provide to Diversy Wyandotte Corporation,
DeKalb, Charles Gibson’s doctor’s records.
(c) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Diversy Wyandotte Corporation,
DeKalb, the hospital records that were or are in its at-
torney’s possession.
(b) Request, in writing, from Charles Gibson, his
doctor’s report and provide it or a signed release to
Diversy Wyandotte Corporation, Dekalb.
(c) Post at the Respondent’s business offices and
meeting halls copies of the attached notice marked
‘‘Appendix.’’7 Copies of the notice, on forms provided
by the Regional Director for Region 10, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(d) Sign and return to the Regional Director for Re-
gion 10 sufficient copies of the attached notice marked
‘‘Appendix’’ for posting by Diversy Wyandotte Cor-
poration, DeKalb, if willing, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO MEMBERS
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Diversy Wyan-
dotte Corporation, DeKalb, by refusing to furnish it
with relevant and necessary information for the pur-
poses of grievance processing.
WE WILL NOT refuse to furnish to Diversy Wyan-
dotte Corporation, DeKalb, Charles Gibson’s hospital
records that were or are in our attorney’s possession.
WE WILL NOT refuse to make reasonable efforts to
obtain and provide to Diversy Wyandotte Corporation,
DeKalb, Charles Gibson’s doctor’s records.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL furnish to Diversy Wyandotte Corporation,
DeKalb, Charles Gibson’s hospital records in our attor-
ney’s possession.
WE WILL request, in writing, from Charles Gibson,
the requested doctor’s report to provide to Diversy
Wyandotte Corporation, DeKalb.
INTERNATIONAL BROTHERHOOD OF
FIREMEN AND OILERS, LOCAL NO. 288,
AFL–CIO
Richard Prowell, Esq., for the General Counsel.
Paul L. Styles, Esq., of Atlanta, Georgia, for the Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on February 23, 1990, at Atlanta,
Georgia. The hearing was held pursuant to a complaint filed
by the Regional Director for Region 10 of the National
Labor Relations Board (the Board) on January 8, 1990. The
complaint is based on a charge filed by the Charging Party,
Diversy Wyandotte Corporation, DeKalb (the Employer or
the Charging Party) on December 5, 1989, and alleges that
International Brotherhood of Fireman and Oilers, Local No.
288, AFL–CIO (the Union) or (the Respondent) has violated
Section 8(b)(3) of the National Labor Relations Act (the Act)
by refusing to furnish the Charging Party Employer with in-
formation requested by the Employer which information is
necessary and relevant to a grievance filed by the Union
against the Employer pursuant to the terms of a collective-
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining agreement. The Union has by its answer filed on
January 24, 1990, denied the commission of any violations
of the Act and has asserted as an affirmative defense that the
information sought by the Charging Party is privileged from
disclosure under the physician-patient privilege.
On the entire record in this proceeding, and after consider-
ation of the closing statement made by the General Counsel
at the hearing and the brief filed by the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION AND THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and I find that
the Employer was, and has been at all times material, a Dela-
ware corporation, with an office and place of business lo-
cated in Tucker, Georgia, where it is engaged in manufac-
turing industrial chemicals; that during the past calendar year
prior to the filing of the complaint, a representative period
of all times material, the Employer sold and shipped from its
Tucker, Georgia facility finished products valued in excess of
$50,000 directly to customers located outside the State of
Georgia and that the Employer is, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent Union admits, and I
find that the Union is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE APPROPRIATE BARGAINING UNIT
The complaint alleges, Respondent admits, and I find that
at all times material, the following employees have con-
stituted a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act.
All production and maintenance employees employed
by the Employer at its DeKalb, Georgia plant, including
truck drivers and plant clerical employees, and exclud-
ing all office clerical employees, confidential and mana-
gerial employees, professional employees watchmen,
guards, and supervisors as defined in the Act.
The complaint further alleges, Respondent admits, and I
find that at all times material, Respondent Union had been,
and is, the representative of a majority of the employees in
the above appropriate unit for the purposes of collective bar-
gaining, and, by virtue of Section 9(a) of the Act, has been,
and is, the exclusive representative of all employees in the
unit for the purpose of collective bargaining.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
The Respondent Union and the Employer are parties to a
collective-bargaining agreement, which contains a grievance
procedure. In mid-June 1989, the Employer discharged bar-
gaining unit employee Charles Gibson for failure to work
mandatory overtime. Following the discharge the Union filed
a grievance on his behalf. At the third stage of the grievance
proceeding, the employee presented a doctor bill which listed
a diagnosis of a prolapsed mitral valve according to the
unrebutted testimony of Thomas Rebel, an attorney rep-
resenting the Employer in the grievance matter. The Em-
ployer asked the Union for a copy of the doctor’s medical
report and a hospital report and, the Union through its attor-
ney Paul L. Styles, has not complied with this request. Rebel
was the only witness to testify at the hearing. He testified
that Union Attorney Paul L. Styles had shown him hospital
records concerning Mr. Gibson, but had not furnished him
copies thereof and had further failed to produce the doctor’s
records. Respondent Union presented no evidence but rather
relies on its answer denying any violations of the Act and
the denial of Attorney Styles at the hearing that he is in pos-
session of the doctor’s records.
In his closing statement the General Counsel relies on
Food & Commercial Workers Local 1439 (Layman’s Mar-
ket), 268 NLRB 780 (1984), and contends that as the Union
had an agency relationship with the employee in its presen-
tation of the grievance in his behalf, it stood in his shoes and
had an obligation to furnish the requested information which
was relevant for purposes of bargaining and that by failing
to furnish the information the Respondent violated Section
8(b)(3) of the Act. In furtherance of this position the General
Counsel also contends that by presenting the doctor’s bill at
the grievance proceeding with a diagnosis of a prolapsed mi-
tral valve, the Union waived any privilege Gibson may have
had as a result of the physician-patient relationship citing
Plasterers Local 346 (Brawner Plastering), 273 NLRB 1143
(1984). The Respondent contends that the information was
not relevant for the defense of the grievance and further con-
tends that it (the Respondent) was not in possession of the
information and that the information was not subject to being
divulged as a result of the physician-patient privilege which
had not been waived by the employee grievant.
Analysis
Initially, the General Counsel had the burden of estab-
lishing a prima facie case of a violation of the Act. It must
show that it had made the request for information, that the
information was relevant and necessary for purposes of col-
lective bargaining, and that the Union had possession thereof
or was in control thereof and refused to provide it. Through
the testimony of the Employer’s attorney Rebel, the General
Counsel established that the request for the information was
made. I also find that the information was presumptively rel-
evant as it was an essential follow up to the issue of medical
disability as a ground for support of the grievance. It is also
undisputed that the Union did not comply with the Employ-
er’s request to furnish the doctor’s report although the Em-
ployer offered to reimburse it for the costs of copying said
report and specifically tendered a medical release form to the
Union for the employee’s signature limited to the medical
condition and situation involved in the grievance.
In its brief the Union contends that it was not in posses-
sion of the medical report and further that it was not in a
position to waive the physician-patient privilege on behalf of
the employee grievant. It presented no evidence in its case
but relies on the Georgia state law setting out the physician
patient privilege as follows:
No physician licensed under Chapter 34 of Title 43 and
no hospital or health care facility . . . shall be required
1013FIREMEN & OILERS LOCAL 288 (DIVERSY WYANDOTTE)
to release any medical information concerning a patient
except . . . on written authorization or other waiver by
the patient . . . provided further, that the privilege shall
be waived to the extent that the patient places his care
and treatment or the nature and extent of his injuries at
issue in any civil or criminal proceeding.
The Union also relies on Plasterers Local 346, supra, cited
by the General Counsel as lending support to the proposition
that it did not have an affirmative duty to obtain information
it did not possess. The Union further relies on Machinists
Local 78 (Square D), 224 NLRB 111 (1976), for the propo-
sition that ‘‘Information requests for evidence to be used in
arbitrations are analyzed in a different manner from other
types of information requests.’’ In reliance on this case the
Union cites the Board’s holding ‘‘that there was no statutory
obligation on the union to turn over to the company ‘evi-
dence of an undisclosed nature that the possessor of the in-
formation believes relevant with respect to its rights in an ar-
bitration proceeding.’’’ Respondent points out in its brief that
in the instant case ‘‘the request only states that the union
considers the medical records relevant but makes no conces-
sion that in fact the company agrees.’’
In the instant case I find the physician-patient privilege ap-
plies. I also find the evidence is insufficient to show that the
patient waived his claim to the privilege by documenting his
condition at the third step meeting. I further find that the
Union did not have an obligation to obtain a waiver of privi-
lege from the employee or to obtain and seek records which
were not in the possession of the Union.
I find that Plasterers Local 346 did not involve a physi-
cian-patient privilege but rather involved information from a
trust fund. In that case the Board stated at page 1144 ‘‘with
respect to the information which presumably it did not pos-
ses, we find that the Respondent did not have an affirmative
obligation to make a reasonable attempt to obtain the infor-
mation, to investigate reasonable alternative means for ob-
taining it, or to explain its unavailability.’’ In that case the
Board also concluded that Respondent violated the Act by its
refusal to furnish information it possessed, and noted ‘‘there
is no evidence that it is confidential or otherwise privi-
leged.’’
Thus I find that Plasterers Local 346 is supportive of the
Union’s position in this case as it held that a union was not
obligated to furnish information which it did not possess and
that absent a showing that the union was in control of the
information, it did not have an affirmative duty to obtain the
information. Further in its recognition that ‘‘privilege’’ was
not involved in the instance where it found a violation for
failure to furnish information in the union’s possession, the
Board implicitly recognized the concept that certain informa-
tion may be privileged. See also Minnesota Mining Co., 261
NLRB 27 (1982), in which the Board in finding a violation
by the Employer in refusing to furnish the Union with rel-
evant safety information on its employees noted that ‘‘the
Administrative Law Judge found that Local 6-418 had at no
time requested the names of any individual employees
. . . .’’ See also Plough, Inc., 262 NLRB 1095 (1982), in
which the Board found the employer had violated the Act by
its refusal to supply the union with the results of employees
’physicals, but also that the information must not include in-
dividual medical records from which identifying data had not
been removed.
Thus, under the circumstances of this case wherein there
is no evidence that the Union was in possession of the doc-
tor’s reports, no evidence as to what authority the Union had
with respect to the hospital records in the possession of its
attorney and no evidence that the employee had waived the
physician-patient privilege by his tendering of the doctor’s
diagnosis, I find that the Union did not violate the Act by
its refusal to tender to the Employer hospital records in its
possession and to obtain and tender to the Employer the doc-
tor’s records which were presumably not in its possession.
CONCLUSIONS OF LAW
1. Diversy Wyandotte Corporation, DeKalb is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent International Brotherhood of Firemen and
Oilers, Local No. 288, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent did not violate the Act by its refusal or fail-
ure to disclose and/or obtain medical information and records
of employee Charles Gibson to the Employer.
[Recommended Order for dismissal omitted from publica-
tion.]