Kaleida Health

National Labor Relations Board - Administrative Judge Opinions

Oct 18, 2010

03-CA-027507 (N.L.R.B. Oct. 18, 2010)

JD–60–10
Tonawanda, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
KALEIDA HEALTH, INC.
and Case 3-CA-27507
COMMUNICATION WORKERS
OF AMERICA, LOCAL 1168
Kevin Kitchen and Linda Leslie (on brief) Esqs., for the General Counsel.
Robert Weissflach, Esq. (Harter, Secrest & Emery LLP),
of Buffalo, New York, for the Respondent.
DECISION
Statement of the Case
MARK CARISSIMI, Administrative Law Judge. This case was tried in Buffalo, New York
on June 21 and August 10, 2010. 1The charge was filed on January 19, 2010, and the complaint
was issued March 31, 2010.
The complaint alleges that since early January 2010, the Respondent has refused to
provide the Union, pursuant to its November 5, 2009 request, the following information:
“Records of all accidents reports, Star forms and nurses notes for all falls regarding patients
from the last 6 months” in violation of Section 8(a)(5) and (1) of the Act.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
Findings of Fact
I. Jurisdiction
The Respondent, a not-for-profit corporation, with offices and places of business in the
Western New York area, has been engaged in the operation of acute care hospitals and other
health care institutions, including DeGraff Memorial Hospital in Tonawanda, New York.
Annually, Respondent, in conducting its business operations, derives gross annual revenues in
excess of $250,000 and purchases and receives at its western New York facilities, goods
valued in excess of $50,000 directly from points located outside the State of New York. The
Respondent admits and I find that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. I further find that the Respondent is a health care institution

1 On June 21, 2010, Administrative Law Judge John Clark opened the hearing in this matter.
Because of a death in the family of a witness for the General Counsel, the case was postponed
until August 10, 2010, before any testimony was taken. Because of a conflict in the schedule of
Judge Clark the case was reassigned to the undersigned.
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within the meaning of Section 2(14) of the Act. The Respondent admits, and I find that the Union
is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Request for Information
The parties have entered into a series of collective-bargaining agreements covering a
unit of registered nurses (RNs) at the Respondent's DeGraff Memorial Hospital facility, the most
recent of which is effective by its terms from June 1, 2008, through May 31, 2011. The
agreement contains a grievance-arbitration procedure. There are approximately 200 RNs in the
bargaining unit. The DeGraff Memorial Hospital contains both an acute care facility and a skilled
nursing facility, at times referred to as the long-term-care facility. There are approximately 10
RNs in the skilled nursing facility, with the remainder being employed in acute care.
On October 20, 2009, RN Kim Andrews, who worked in the skilled nursing facility, was
given a corrective action form by Supervisor Kathleen Murphy indicating that Andrews was
suspended, pending review for termination (R. Exh. 1, Attachment A). The corrective action
form indicates that Andrews was suspended for:
Failing to report an accident incident, failure to document an accident incident,
failure to notify family or physician of accident incident. Failure to use sound
nursing judgment. Risking a resident’s safety during transfer.
According to the corrective action form, on October 20, 2009, Andrews was notified that
a resident at the skilled nursing facility had fallen. As the RN on duty, Andrews assessed the
resident for injuries and decided not to complete an incident report because the resident
informed her he was not injured. The corrective action form further indicates that Andrews lifted
the resident from the floor with a gait belt, rather than following the existing practice of using a
mechanical lift. In addition, the corrective action form noted that Andrews failed to notify
management, the resident’s physician, or the family, all of which are standards in the facility.
Finally, the corrective action form indicates Andrews was called back to the facility to complete
an incident report, which she had failed to do at the time of the occurrence.
On October 21, 2009, union steward Karen Howard, filed a grievance regarding
Andrews’ suspension. On October 23, 2009, Ron Hosinski, a union vice president, by letter,
requested that the Respondent provide all anecdotal notes pertaining to the incident; any and all
witness statements and any previous discipline received by Andrews. The Respondent provided
the requested information.
On November 3, 2009, Andrews was terminated after the conclusion of the
Respondent's investigation into the incident that occurred on October 20, 2009 (R. Exh. 1). On
November 5, 2009, the Union filed a grievance regarding Andrews’ termination. On the same
date, Hosinski, by letter, requested information from Kathy Murphy, the manager of the skilled
nursing facility, regarding the grievance. The request sought the following information:
(1) Employee’s calendar for the past six (6) months;
(2) All anecdotal notes pertaining to the incident;
(3) Any and all witness statements;
(4) Personnel file;
(5) Previous disciplines;
(6) Records of all accident reports, Stars forms, nurse notes for all falls
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regarding patients from last 6 months; and
(7) Copies of all discipline resulting from failure to follow hospital policy and
procedure.
Prior to the Union submitting its November 5, 2009 information request, it had been
investigating the circumstances of the incident surrounding Andrews’ discharge. During the
Union's investigation of the grievance, other nurses reported that it was not reported every time
a patient fell and, at times, not every step of the reporting policy was followed.
The record establishes that the acute care department at DeGraff Memorial Hospital
uses the STARS electronic system for documenting incidents regarding patient care. The skilled
nursing facility at the hospital does not use the STARS system, but rather keeps records of
incidents involving patient care on paper documents. (Tr. 36, 46,87-88.)
In mid-November 2009, Howard called Maria Cindrich, the senior human resources
generalist at DeGraff Memorial Hospital, to inquire about the status of the Union's November 5
information request.2 According to Howard, Cindrich replied that she was working on the
request and would get back to Howard.
Cindrich testified that when she received the Union's November 5 information request,
she was initially not aware that the hospital did not use STARS reports in skilled nursing, but
was informed of that by someone in hospital administration. She testified that she "may have"
told Howard that the hospital did not use STARS reports in skilled nursing (Tr. 115-116).
Importantly, however, Cindrich indicated that Howard never said that she was only seeking
documents confined to skilled nursing (Tr. 112 ).
Corie Gambini, the union's executive vice president, testified that she had a conversation
with Howard in November 2009 in which Howard indicated she had received much of the
information requested on November 5, but she had not received the incident reports, STARS
reports, or nurses notes.
On November 25, 2009, Cindrich sent an e-mail to Howard requesting clarification as to
what the Union was seeking in paragraph 5 of its November 5 request. (Copies of all discipline
resulting from failure to follow hospital policy and procedure.) Howard replied that the Union was
seeking information regarding discipline given to employees for not following hospital policy
regarding patient care. (GC Exh. 7.)
On December 7, 2009, a meeting was held between Howard, Gambini, Christina
Khushalani, the administrator of the skilled nursing facility, and Kathy Murphy, the director of
nursing for the skilled nursing facility, in which the Union’s November 5 information request was
discussed. Howard testified that at this meeting the Union agreed that it would reduce the time
period for the information requested in paragraph 6 of its request (records of all accident
reports, STARS forms, and nurses notes for all falls regarding patients from last 6 months) from
6 months to 3.
Gambini testified that at the December 7 meeting she indicated that an employee had
been terminated and was unemployed and that it was taking months to get the information the

2 Cindrich manages the day-to-day operations of the human resources department at
DeGraff Memorial Hospital. She is involved in the grievance process and is responsible for
gathering information sought pursuant to requests made by the Union.
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Union had requested. Gambini indicated that the Union needed an answer on what the
Respondent was going to do, or the Union would have to file a NLRB charge. When Murphy and
Khushalani indicated that a substantial amount of information was sought and it would be very
time-consuming to compile, Gambini offered to reduce the time period to 3 months, as she was
sensitive to the amount of time to take to compile the information. She indicated that if the Union
did not obtain sufficient information within a 3 month period to evaluate the grievance, she
would request another 3 months of the same information.
Cindrich also testified regarding the December 7 meeting. She testified that Howard
asked if anyone had been disciplined for the same reason as Andrews. Both Murphy and
Khushalani indicated that no one in the skilled nursing department had ever been disciplined or
terminated for failure to follow procedure and failure to report an incident. Cindrich testified that
Howard and Gambini did not specifically ask whether such discipline has been imposed in the
remainder of the facility. She further testified that Howard and Gambini, when discussing
incident reports, did not specifically ask for information regarding the rest of the DeGraff
Memorial facility. (Tr. 116.) She also testified, however, that there was no discussion of STARS
forms at the December 7 meeting (Tr. 118). After the meeting, Howard had a conversation with
Murphy, who requested that she be able to provide information in increments. Howard agreed to
that approach.
On December 17, 2009, Howard sent an e-mail to Cindrich regarding the information
request. In her e-mail, Howard acknowledged that the Union was seeking a lot of information
about "Quality." Howard explained the basis for the request by indicating:
. . . the employee was terminated based on the fact that she did not follow
policy. I want to see the report so I can be assured that the patient was gotten off
the floor using the hoyer, each and every time, I also need to see that the family
was contacted each and every time and that a doctor was contacted to assess
the patient. I hope this helps. (GC Exh. 8).3
By late December 2009, the Respondent had not yet provided the information requested
in paragraph 6 of the Union’s November 5 request. There was some discussion between
Howard and Cindrich regarding Howard coming to Cindrich’s office to review that information.
On December 30, 2009, Gambini sent an e-mail to Cindrich that was copied to Michael
Connors, the Respondent's associate general counsel for labor and employment law. Gambini
indicated that the Union was now being told the information in paragraph 6 of the Union's
request was confidential and could not be sent to the Union. Gambini referred to the fact that
Cindrich had offered to let Howard come to her office and review the information requested in
paragraph 6. (R. Exh. 2.)
On the same date, Connors sent Gambini the following e-mail in response:
I am trying to get into the middle of this. I believe the information requested is the
same that would be found on the STARS reports etc. To that end, it is quality
assurance material and normally not disclosable. However, I would be more than
willing to treat it the same as the information on the STARS report and to review

3 The record establishes that a Hoyer lift is a mechanical lift that hospital policy dictates
should be used to assist in picking up a patient who has fallen.
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it or have someone review it to determine whether there is exculpatory
information contained therein. (R. Exh. 2).4
Later on December 30, 2009, Howard sent an e-mail to Cindrich asking if it was possible
for her to come to the office to start to review the information. Cindrich replied that she was
waiting to hear from Connors. (GC Exh. 9.)
On January 5, 2010, Howard, by e-mail, asked Cindrich if there was any update
regarding the information request. On January 6, 2010, Cindrich replied that she was waiting to
hear from Connors. Later on January 6, in an e-mail to Cindrich, Howard and Connors, Gambini
indicated that if the Respondent was unable to provide the information to the Union, the Union
believed that it may have to have the NLRB make a decision on the matter. On January 7, 2010,
Connors responded to Gambini in an e-mail asking again if this information request could be
handled " . . .the same as we handle this in any STARS reports. I don't want to get into long
legal fight when we can certainly utilize a method that would serve both our needs." Gambini
responded in an e-mail indicating that the Union believed it had a legal right to the incident
reports and STARS reports and that the information was needed to evaluate the Andrews
grievance. (GC Exh. 10).
Gambini credibly testified, without contradiction, that in January 2010 she and Connors
discussed the offers he had made in his December 30, 2009, and January 7, 2010, e-mails to
review the information requested in incident reports and STARS reports to determine if there
was exculpatory information contained in them. Gambini suggested to Connors that, as with
other information requests involving patient information, identifying information about the patient
could be redacted, except for the medical record number. Gambini explained to Connors that
the Union wanted to see the accidents that were reported and what was documented on the
form. She indicated the medical record was necessary in order to review the nurses’ notes
regarding the reported incident. (Tr. 57.) Connors stated that the information would not be
disclosed directly to the Union because it was quality assurance information (Tr. 67). Connors
did not explain further why the Respondent considered the requested information to be
confidential (Tr. 89). Connors proposed that either he or someone else review the requested

4 On June 24, 2009, Connors sent an e-mail to the Union in which he proposed that the
parties enter into a memorandum of understanding (MOU) regarding the release of STARS
reports to the Union (R. Exhibit 3). The record establishes, however, that the parties never
executed the proposed MOU regarding the release of STARS reports.
The parties did execute a MOU regarding the release of information to the Union pursuant to
the Respondent's “Root Cause Analysis" procedure. (R. Exh 3.) The "Root Cause Analysis" is a
process used by the Respondent to determine if changes are necessary to rectify a systemic
problem. In sum, the MOU indicates that the Root Cause Analysis process will not be utilized as
an investigatory tool for purposes of administering discipline. Therefore, employees are not
permitted to have union representation at Root Cause Analysis conferences. The agreement
provides that incident investigations and the imposition of discipline must occur prior to an
employee being asked to attend a Root Cause Analysis conference. The MOU also specifically
indicates that "no discipline can be imposed nor will any discipline be advanced as a result of
information gained during a Root Cause Analysis conference." Finally, the agreement provides
that, pursuant to a request by the Union, if the Root Cause Analysis conference developed
information "clearing an employee who was disciplined" the information will be forwarded to the
Union.
Connors testified that when he sent his December 30, 2009, e-mail he mistakenly believed
that the Union had agreed to his proposal with regard to the release of STARS reports.
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records and provide to the Union a list of employees who did not make the appropriate
notifications regarding a patient's fall or use the appropriate lift to pick up the patient. Gambini
informed Connors that this proposal was not acceptable to the Union because her
understanding was that a large amount of documentation would have to be reviewed and that
she did not believe the Respondent would review the information with the same diligence as the
Union, since the Union has the duty to represent the grievant. In addition, she indicated that if
the case went to arbitration, the Union would need the actual documents to present to the
arbitrator. (Tr. 59-60.)
At the hearing, Gambini explained that the Union sought the disputed information in
order to determine whether there was any evidence of disparate treatment with respect to the
manner in which the Respondent handled the Andrews termination (Tr. 60). She indicated that
the information sought would have substantial bearing on whether she recommended that the
Andrews grievance be arbitrated (Tr. 61).
The record establishes that by January 2010 the Union had obtained all of the other
information contained in its November 5, 2009 request, except for the information sought in
paragraph 6. On January 19, 2010, the Union filed the charge in the instant matter.
Since 1993 the Respondent has maintained a "Long Term Care Incident Reporting
Policy" requiring that "Any happening that is not consistent with the operation of the Skilled
Nursing Facility or the routine care of a patient must be reported to the Administration, Risk
Management and the department concerned." (R. Exh. 5.) Since 1999 a similar policy has
existed at Respondent's acute care facilities requiring that such reports be entered into the
STARS reporting system (R. Exh. 6). At the trial, Connors credibly testified, without
contradiction, that incident reports, whether paper or electronic, are generated for quality
assurance purposes and are not used to impose discipline. He further explained, however, that
an incident report could raise a question as to whether or not there should be an investigation of
an employee for possible discipline. (Tr. 125.) Connors also testified that the Union's request for
"accident reports" in its November 5, 2009 request was, in his view, synonymous with a request
for what the Respondent referred to as incident reports (Tr. 126).
The incident report form introduced into evidence at the hearing (R. Exh. 8) has a
heading indicating "Confidential Quality Assurance Document." The form reflects entries for the
patient's name and medical record number and seeks a substantial amount of information
regarding an incident in checklist form. For example, there is an area where information
regarding all those notified of the incident is set forth. The mental status of the patient prior to
the incident is also noted on the form. The form seeks information in the following 8 categories:
surgical procedures; employee incident; falls; intravenous/ blood; medication; miscellaneous
safety; and treatment/procedure. There are also sections regarding the type and location of an
injury. Finally, the form provides an area where additional comments may be made.
Connors testified that it was his decision not to provide the requested information to the
Union based on prior conversations he had with individuals in risk management (Tr. 131).
Connors further testified that the Respondent treated incident reports and STARS reports as
confidential because "we have to pursuant to several New York State statutes." (Tr. 125.) When
asked by counsel for the General Counsel which state statutes require the Respondent to treat
these reports as confidential, Connors indicated that he believed there were provisions in both
the education law and the public health law, but admitted he not did know the specific statutes
(Tr. 130).
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B. The Confidentiality Defense
In its brief, the Respondent argues that its incident reports, which are quality assurance
documents, are to be considered confidential and prohibited from disclosure by New York Public
Law, Sections 2805-j; 2805-k; 2805-j; and 2805-m (2); and New York Education Law, Section
6527.5
The relevant provisions of the applicable New York statutes are as follows:
2005-j Medical, dental and podiatric malpractice prevention program
1. Every hospital shall maintain a coordinated program for the identification and
prevention of medical, dental and podiatric malpractice. Such program shall
include at least the following:
(a) The establishment of a quality assurance committee with responsibility to
review the services rendered in the hospital in order to improve the quality of
medical, dental and podiatric care of patients and to prevent medical, dental
and podiatric malpractice. Such committee shall oversee and coordinate the
medical, dental and podiatric malpractice prevention program and shall
ensure that information gathered pursuant to the program issue is utilized to
review and revise hospital policies and procedures. At least one member of
the committee shall be a member of the governing board of the hospital who
is not otherwise affiliated with a hospital in an employment or contractual
capacity;
(b) A medical, dental and podiatric staff privileges sanction procedure through
which credentials, physical and mental capacity and competence in delivering
health care services are periodically reviewed, and reviewed as otherwise
warranted in specific instances and circumstances, as part of an evaluation of
staff privileges;
(c) The periodic review and the review as otherwise warranted in specific
instances and circumstances of the credentials, physical and mental capacity
and competence in delivering health care services of all persons who are
employed or associated with the hospital;
(d) A procedure for the prompt resolution of grievances by patients or their
representatives related to accidents, injuries, treatment and other events that
may result in claims of medical, dental or podiatric malpractice;
(e) The maintenance and continuous collection of information concerning the
hospital's experience with negative health care outcomes and incidents
injurious to patients, patient grievances, professional liability premiums,
settlements, awards costs incurred by the hospital for patient injury
prevention and safety improvement activities;

5 The Respondent does not contend that the requested nurses notes are confidential
pursuant to the provisions of New York State law.
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(f) The maintenance of relevant and appropriate information added pursuant to
paragraphs (a) through (e) of this subdivision concerning individual
physicians, dentists and podiatrists within the physician's dentist’s or
podiatrist’s personnel are credentials file maintained by the hospital;
(g) Educational programs dealing with patient safety, injury prevention, staff
responsibility to report professional misconduct, legal aspects of patient care,
improved revocation with patients and causes of malpractice claims for staff
personnel engaged in patient care activities;
(h) Continuing education programs for medical and dental and podiatric staff in
areas of specialty;
Section 2805-k deals with the granting of medical privileges to physicians, dentists or
podiatrists; Section 2805-l deals with mandatory reporting requirements for deaths, impairments
of bodily functions, fires, equipment malfunction, poisoning, strikes, disasters or other
emergency situations, or termination of any service vital to the continued safe operation of the
hospital.
Section 2805-m (2) provides as follows in relevant part:
Notwithstanding any other provisions of law, none of the records, documentation
or committee actions or records required pursuant to sections twenty-eight
hundred five-j and twenty-eight hundred five-k of this article nor any incident
reporting requirements imposed upon diagnostic and treatment centers pursuant
to the provisions of this chapter shall be subject to disclosure under article six of
the public officers law or article thirty-one of the civil practice law and rules,
except as hereinafter provided or as provided by any other provision of law.
New York Education Law, Section 6527 (3) provides in relevant part:
Neither the proceedings of the records relating to performance of a medical or
quality assurance review function for participation in the medical and dental
malpractice prevention program for any report required by the department of
health pursuant to section twenty-eight hundred five of the public health law . . .
shall be subject to disclosure under article thirty-one of the civil practice law and
rules except as herein provided or as provided by any other provision of law.
The Respondent attached to its brief what it contends is relevant legislative history
regarding Section 6527 (3) of the New York Education Law. 6 The attached document is entitled
“Memorandum of the Office of Mental health” and provides, in relevant part:
Section 6527 (3) of the Education Law, in part, excludes from discovery certain
records and materials compiled by a general hospital during an internal review by
an individual or committee performing a medical quality of care review function.

6 The Respondent also attached a document entitled "Governor’s Program Memorandum"
from the New York State Legislature Annual-1986 which it contends is the relevant legislative
history of New York Public Health Law, Section 2805. Because the attached provision of the
Governor’s program memorandum does not specifically refer to Section 2805, I find it to be of
no probative value in determining the intent of the Legislature regarding that Section.
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The purpose of this exclusion is to assure that the review is thorough in its
examination of the hospital's practices and procedures. The discovery exclusion
enhances the objectivity of the review process and assures that medical review
committees may frankly and objectively analyze the quality of health services
rendered in the hospital (Chapter 990 of the Laws of 1971, Committee on Rules-
memorandum in support). As a result, hospitals may investigate incidents, learn
from past mistakes, rectify faulty practices and improve future patient care.
III. Analysis and Conclusions
A . The Relevancy of the Requested Information
An employer has a statutory obligation to provide requested information that is
potentially relevant in fulfilling its responsibility as the employees’ exclusive bargaining
representative, including its responsibilities regarding the processing of grievances. NLRB v.
Acme Industrial Co., 385 U. S. 432 (1967). The standard for relevancy is a broad, discovery
type standard. Id. at 437. Therefore, the information must have some bearing on the issue
between the parties but does not need to be dispositive. The Board and the courts have found
that information that aids the arbitral process is relevant and generally should be provided. In
this regard, the furnishing of information encourages the resolution of disputes, short of
arbitration, and assists the arbitration system in not becoming overburdened. Acme Industrial,
supra at 437, fn. 6; Pennsylvania Power & Light Co., 301 NLRB 1104 (1991). See also Beth
Abraham Health Services, 332 NLRB 1234 (2000); Ohio Power Co., 216 NLRB 987, 991
(1975).
In the instant case, a portion of the disputed information sought by the Union (the
incident reports and STARS reports) is information regarding the conduct of bargaining unit
employees. The Board has long held that information concerning unit employees’ terms and
conditions of employment is considered to be presumptively relevant to the union's duty to
represent the employees. Pavilion and Forrestal Nursing & Rehabilitation, 346 NLRB 458, 463
(2006); Atlanta Hilton & Tower, 271 NLRB 1600, 1602 (1984), and Curtis-Wright Corp., Wright
Aeronautical Division, 145 NLRB 152 (1963), enfd. 347 F. 2d 61 (3rd Cir. 1965).
In Borgess Medical Center, 342 NLRB 1105 (2004), the Board found information
strikingly similar to the disputed information here to be relevant and necessary to a union in
preparation for the arbitration of a grievance regarding the discharge of an employee. In
Borgess a RN was discharged after committing a medication error and attempting to cover up
the error by failing to file an incident report. The incident report was ultimately filed by the
nurse’s supervisor. A grievance was filed regarding the discharge and the union requested
incident reports concerning other medication errors. The employer refused to provide the
requested information claiming it was confidential and protected from disclosure by State law.
The Board found that the requested information was relevant, but that the employer had
established a legitimate confidentiality interest in the incident reports. The Board further found
that the employer failed to satisfy its duty to accommodate its interests with the union's need for
the information. While the Board found that the employer violated Section 8(a)(5) and (1) of the
Act by failing to offer the union a reasonable accommodation, it did not order the employer to
produce the documents, or engage in further bargaining over their provision, because it found
that the union did not have a present need for the requested information since the underlying
grievance had already been arbitrated and decision had been issued by the arbitrator.
The Board also found requested patient care information to be relevant and necessary
with regard to the processing of a grievance regarding employee discipline in Howard
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University, 290 NLRB 1006 (1988). In that case a medical technologist certified that blood to be
used in a transfusion was compatible with the patient. During a transfusion, the patient died and
the employer’s investigation revealed that 2 of the 5 units of blood were, in fact, incompatible
with the patient. The employee was discharged. The union filed a grievance and requested, in
preparation for arbitration, the physicians’ and nurses’ progress notes and the autopsy protocol
report. The employer refused to provide the information claiming it was confidential. The Board
found the requested information to be clearly relevant as it "would be of use to the union" in
determining whether the employee's error was the direct cause of the death of the patient. Id. at
1007. The Board found that the employer failed to carry its burden of proof with respect to the
confidentiality of the information and ordered its production.
In LaGuardia Hospital, 216 NLRB 1455 (1982), the Board found that the union's need for
relevant information contained in patient charts for use in evaluating grievances that had been
filed regarding employee discipline, outweighed the employer's legitimate concerns regarding
patient privacy.
When viewed under the standards set forth above, it is clear that all of the information
requested in paragraph 6 of the Union's November 5, 2009 letter is relevant and necessary to
assess the merits of the grievance involving Andrews’ discharge. I note the portion of the
request involving incident reports and STARS reports is presumptively relevant as it seeks
information regarding the conduct of bargaining unit employees. Beyond that, however, the
Union made it clear to the Respondent in Howard's December 17, 2009, e-mail that it was
seeking the disputed information in order to determine if there was any evidence of disparate
treatment regarding the discharge of Andrews. At the hearing, Gambini reiterated that the Union
was seeking the information as it believed it to be relevant to the issue of disparate treatment.
As the cases cited above make clear, the Board applies a broad discovery type standard
in assessing the relevancy of information requested to evaluate a grievance. As noted in
Howard University, supra, at 1007 "The Board's only function in such situation is in ‘acting upon
the probability that the desired information was relevant and that it would be of use to the union
in carrying out its statutory duties and responsibilities’" (citations omitted). Accordingly, I find that
the evidence in this case meets this standard and that the information requested by the Union is
necessary and relevant to its evaluation of the grievance involving Andrews’ termination.
B. Confidentiality
The finding that the requested information is relevant and necessary to the Union in
evaluating the grievance requires an analysis of the Respondent's claim that the incident reports
are confidential and privileged from disclosure under New York State law. A claim of
confidentiality must be balanced against the Union's need for the information. Detroit Edison. v.
NLRB, 440 U.S. 301 (1979).
In the instant case, the Respondent contends that the New York statutes referred to
above have deemed the requested incident reports to be confidential. The General Counsel
contends that the Respondent has failed to establish that the incident reports are confidential
under New York law because it did not provide any evidence that the information was collected
and maintained pursuant to the state statutes referred to above. In this regard, the General
Counsel argues that Connors did not indicate to the Union the precise statutes the Respondent
relied, or explain how the incident reports are collected and maintained pursuant to the
applicable New York statutes.
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New York Health Public Law, Sections 2805-j; 2805-k; 2805-l; 2805-m (2) and New
York Education Law, Section 6527 (3) and the legislative history of the latter section establish
that New York State law generally protects from disclosure quality assurance documents such
as the incident reports and STARS reports at issue. The reason for this policy appears to be the
view that excluding such documents from discovery enhances the review process by
encouraging a frank and objective analysis of the quality of health services. The goal of this
policy is to investigate incidents, learn from past mistakes, and improve future patient care. The
evidence establishes that the Respondent maintains its incident reports in accord with this
policy. In this connection, the policy and procedure memorandum issued by the Respondent
with respect to filing incident reports in the STARS system at (R. Exh. 6, p. 4) specifically
indicates:
It is understood that some events may have to be reported to certain
governmental agencies in accordance with applicable laws, rules and
regulations. It shall be the responsibility of Risk Management and/or
Administration to make any required reports and to coordinate any investigation
by these agencies. Managers will be required to assist investigations and
corrective actions as appropriate.
Event reports will be reviewed and discussed on a regular basis to improve
patient safety and quality of care.
It is true, as the General Counsel argues, that Connors did not indicate to the Union the
precise statutes that the Respondent relied on in claiming that the requested incident reports
were confidential in nature. However, there is, in fact, New York State statutes which indicate
that generally such documents are to be considered confidential. The record establishes that
the Respondent uses incident reports and STARS reports as part of its quality assurance
program to improve patient care. Accordingly, I find that the Respondent has a legitimate
concern with regard to the confidentiality of the incident reports and STARS forms. In making
this finding, I am guided by the Board's decision in Borgess Medical Center. There, the Board
found that the incident reports sought by the union were protected from disclosure by a
Michigan State statute which indicated that documents that were collected for a professional
review function in a health care facility were to be considered confidential.7 I can see no
meaningful distinction between the Michigan state statute that deemed as confidential incident
reports made as part of a professional review function and the New York statutes I have
considered herein.
In the instant case, however, the protection from disclosure to such documents granted
by the New York State statutes noted above is not absolute. Public Health Law, Section 2805-m
(2) provides that no records required pursuant to Sections 2805-j and 2805-k nor any incidents
reports that are required shall be subject to disclosure “except as hereinafter provided or as
provided by any other provision of law." New York Education Law, Section 6527 (3) has an
identical provision regarding the exception to the general rule of nondisclosure. Thus, the
applicable state statutes recognize that there are situations where documents such as the

7 Michigan's Peer Review Statute states: "The records, data, and knowledge collected for or
by individuals or committees assigned a professional review function in a health facility or
agency, or institution of higher education in this state that has colleges of osteopathic and
human medicine, are confidential, shall be used only for the purposes provided in this article,
are not public records, and are not subject to court subpoena" MCLA 333.20175 (8); see also
MCLA 333.21515.
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incident reports and STARS reports at issue may have to be disclosed pursuant to other
provisions of law. I find that the instant case presents such a circumstance. The incident reports
and STARS reports requested deal with records regarding falls by patients. The underlying
grievance in this case involves the discharge of a nurse for the manner in which she handled
the fall of a patient. The Union made clear to the Respondent that it sought the incident reports
and STARS reports to determine whether there was any evidence of disparate treatment
regarding the manner in which the Respondent has handled such incidents in the past. The
information sought is clearly relevant to the Union's determination as to whether to arbitrate the
Andrews grievance. In this instance, I find that the Union's need for the information outweighs
the general policy of confidentiality regarding incident reports. As noted above, such documents
are considered to be confidential so that there can be a frank and objective assessment of an
accident with the aim of furthering patient care. Under the circumstances of this case, I find that
the specific need of the Union for the information supersedes the general policy against
disclosure. Accordingly, I find the provisions of the National Labor Relations Act require the
requested information be provided to the Union. I further find that this result is in accordance
with the exception to confidentiality contemplated by New York law under certain circumstances.
The Board's decision in LaGuardia Hospital supports this finding. In that case the
employer refused to provide patient charts to a union seeking such information in order to
represent an employee disciplined for alleged error in patient care. The employer claimed that
patient charts were confidential under New York law. The statute at issue provided that patient
charts were confidential "except as otherwise provided by law or 3rd party contract." The Board
relied on such language to find that the confidentiality of the patient's charts was not absolute. In
that case, as here, the Board found that the union's need for the information outweighed the
general policy regarding confidentiality. LaGuardia Hospital at 1463.
The Board has found in other cases that a union’s need for requested documents in
order to represent an employee in discipline cases has outweighed the general claims of
confidentiality made by an employer. In Howard University the employer claimed that the
records sought by a union to evaluate the grievance of an employee discharged for an allegedly
serious error in patient care were confidential. The employer's rules recognized the confidential
nature of the patient's medical records but contained an exception to permit disclosure when
required by "statute." In this case, the Board again determined that the union's need for the
information pursuant to the provisions of the National Labor Relations Act outweighed the
general policy regarding the confidentiality of patient medical records. In Borgess Medical
Center, supra, the Board adopted the administrative law judge’s decision that, although the
incident reports sought by the union were confidential, the union's need for the reports in
representing a discharged employee outweighed the employers interest in withholding them. I
note that the Board made its finding even though the Michigan statute at issue did not contain a
provision permitting the disclosure of such documents under other provisions of law. On the
basis of all the foregoing, I find that in the instant case the Union’s need for the requested
incident reports and STARS reports outweighs the employer’s interest in maintaining their
confidentiality.
C. Accommodation
The Board has held that when an employer establishes a legitimate confidentiality
interest regarding a request for relevant and necessary information, it must seek an
accommodation of its concerns with the union's need for the information. Pennsylvania Power
Co., 301 NLRB 1104, 1105-1106 (1991); Borgess Medical Center, supra at 1106. In Borgess
Medical Center, at 1106 the Board also held "The burden of formulating a reasonable
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accommodation is on the employer; the union need not propose a precise alternative to
providing the requested information unedited." (Citations omitted).
The Respondent contends that if it is obligated to provide the Union the disputed
information, it offered a reasonable accommodation to the Union order to balance it’s
confidentially interest with the Union's interest in obtaining the information. The General
Counsel contends that the Respondent’s offer of accommodation did not adequately address
the Union's needs as it did not provide sufficient information to assess the circumstances of
each incident.
As set forth above, Connors’ offer of accommodation involved either himself or another
agent of the Respondent reviewing the requested information and providing to the Union a list of
employees who had not made the appropriate notifications regarding a patient's fall or use the
appropriate lift to pick up a fallen patient. Gambini did not agree to this proposal. She indicated
to Connors that, because she had been informed that there was a large amount of records
involved, she believed that the Union would more diligently review the information because of its
duty of representation toward the grievant. She also indicated that the Union would need the
actual documents to introduce into evidence if the case went to arbitration.
I find that the Respondent’s offer did not fulfill its duty to accommodate the Union's need
for the information. Connors offer did not include an offer to provide any evidence regarding the
specific circumstances of any previous incidents involving fallen patients. The incident report
form itself seeks a detailed description of what each incident involved. In addition, Connors offer
did not include any information as to what, if any, discipline employees named in any incident
reports had received. In making this finding, I once again rely on the Board's decision in
Borgess Medical Center. There, in finding that the employer did not offer a reasonable
accommodation to the provision of unedited incident reports, the Board noted that the employer
did not offer to provide any evidence regarding the specific circumstances of previous incidents,
which would be necessary to determine if the grievant in that case had been treated unfairly. In
finding the offer to be deficient, the Board further relied on the detailed information contained in
the incident reports regarding the specifics of what had occurred.
Finally, I do not agree with the Respondent's contention that the Union's entering into a
MOU regarding the provision of certain information obtained in Root Cause Analysis meetings,
supports a finding that the Respondent offered a reasonable accommodation in the present
case. I note that before a Root Cause Analysis meeting is held, any discipline against an
employee has already been imposed. No discipline can be imposed based upon information
gained at a Root Cause Analysis meeting. The MOU between the parties provides that, upon
request by the Union, the Respondent will provide exculpatory information regarding an
employee that arises out of the meeting. In addition, I note that any unit employees present at a
Root Cause Analysis meeting could be asked by the Union to verify any information given to the
Union by the Respondent regarding previously disciplined employees. The record does not
indicate whether any information given to the Union after a RootCause Analysis meeting was in
testimonial or documentary form. Thus, it is not clear that the information that may be disclosed
is similar to the detailed information that may be contained in an incident report or a STARS
report.
The fact that the Union agreed to the procedure used by the parties regarding Root
Cause Analysis meetings does not mandate that the Union accept the offer made by Connors in
the instant case. It is clearly established that a waiver of statutory rights must be clear and
unequivocal. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983); E. R. Stuebner, Inc.,
313 N.L.R.B. 459 (1998). The Board has specifically applied this standard in determining
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whether a union has waived its right to information. American Broadcasting Co., 290 NLRB 86
(1988); PPG Industries, Inc., 255 NLRB 296 (1981), enf. denied 692 F. 2d 753 (4th Cir. 1983). It
is clear that the MOU between the parties regarding Root Cause Analysis does not constitute a
clear and unmistakable waiver of the Union's right to obtain the incident reports and STARS
reports at issue in the instant case.
D. The Scope of the Request
The Respondent contends that if it is ordered to provide the information requested in
paragraph 6 of the Union's November 5, 2009 request, it should only be required to provide
information limited to the skilled nursing facility. The General Counsel contends that since the
request seeks STARS reports, the Respondent should be ordered to provide information
concerning the entire RN unit, encompassing both the skilled nursing and acute care facilities at
Respondent’s DeGraff Memorial Hospital.
As set forth above, the Union represents a unit of RNs at the Respondent's DeGraff
Memorial Hospital which includes approximately 10 nurses in the skilled nursing facility and 190
in the acute care facility. The Union's November 5, 2009 request seeks "records of all accident
reports, Stars forms, nurse notes for all falls regarding patients from last 6 months." It is clear
that STARS forms are used only in the acute care facility; the skilled nursing department still
uses paper incident report forms. As noted above, the information request was addressed to
Kathy Murphy, the manager of the skilled nursing facility.
Cindrich credibly testified, without contradiction, that at the labor-management meeting
held on October 7, 2009, Howard asked if there were any other RNs in the skilled nursing unit
that were disciplined for the same reason as Andrews. Khushalani and Murphy both indicated
that no RNs in skilled nursing had been disciplined or terminated for failure to follow the
procedure and failure to report an accident. (Tr. 109-110.) However, Cindrich indicated that
during the discussions that she had with Howard regarding the scope of paragraph 6 of the
Union's information request, Howard never indicated that she was only seeking documents
confined to the skilled nursing facility (Tr. 112).
Gambini, who was involved in drafting the Union's information request, testified that by
requesting the STARS forms, the Union was seeking information from the acute facility as well
as skilled nursing. At the hearing, Gambini testified that patients fall in both parts of the hospital
(Tr. 91).
I find that paragraph 6 of the Union’s November 5, 2009 request seeks information
regarding patient falls for both the skilled nursing and acute care facilities at the Respondent's
DeGraff Memorial Hospital. The request specifically refers to STARS forms, which are used only
in the acute care facility. As explained by Gambini, in addition to the skilled nursing facility, the
Union also sought information regarding the acute care facility, because patients also fall in that
area. Since the request is limited to seeking information contained in incident reports and
STARS reports regarding the conduct of employees in the unit of RNs at the Respondent's
DeGraff Memorial Hospital represented by the Union, it seeks presumptively relevant
information.
I do not agree with the Respondent that I should construe the request to only refer to the
skilled nursing facility. To read the request in that manner would negate the specific reference to
it seeking STARS reports. The fact that the Union directed its request to the manager of skilled
nursing does not require that I limit the scope of the request to that portion of the unit. In
addition, the fact that the Respondent provided information for only the skilled nursing facility in
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responding to the Union's request for similar discipline given to employees, does not limit the
scope of the request in paragraph 6. As noted above, a union must clearly and unequivocally
waive its right to relevant information before a finding limiting its production may be made.
Applying that standard in this case, I find that the evidence on this issue does not establish that
the Union waived its right to seek information regarding any patient falls that occurred within the
relevant time period at the acute care facility.
` I do find, however, that at the December 7, 2009 meeting Gambini reduced the time
period covered by the Union's request to 3 months, with the caveat that the Union would
request an additional 3 months of information, if it was needed to properly evaluate the
grievance. On the basis of all the foregoing, I find that the Respondent has failed to provide the
Union with the information requested in paragraph 6 of its November 5, 2009 request, as
modified on December 7, 2009, in violation of Section 8(a)(5) and (1) of the Act.
Conclusions of Law
1. The Union is the exclusive collective-bargaining representative within the meaning of
Section 9(a) of the Act of the employees in the following appropriate unit:
Except as excluded below, all Registered Nurses in all categories of
employment, employed by Kaleida Health at its DeGraff Memorial Hospital, 445
Tremont Street will be included in the bargaining unit: Cardiac Service Nurse;
Clinical Nurse Educator; Critical Care Nurse; Infection Control Practitioner;
Interventional Nurse; Medical-Surgical Nurse; Nurse Practitioners; Patient Care
Coordinator; Residence Care Coordinator; RNFA; Special Procedure Nurse;
Staff Nurse SNF; Surgical Service Nurse. All other employees including, but not
limited to, Registered Nurses who worked in Employee Health, Human
Resources or Risk Management; RCC/Relief Charge Nurses; Nurse Managers,
Associate nurse managers, Administrative nurse manager, non-nurse
professional employees, office clerical employees, guards and supervisors are
excluded.
2. By failing and refusing to furnish the Union with incident reports, STARS reports and
nurses notes for all falls regarding patients in relation to the grievance of discharged employee
Kim Andrews, the Respondent has engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
With respect to the affirmative portion of the remedy, the Respondent contends that if a
violation of Section 8(a)(5) and (1) of the Act is found, the appropriate remedy would be an
order requiring it to bargain over an accommodation with the Union over the provision of the
disputed information, rather than an affirmative order to provide the requested incident reports
and STARS reports. The Respondent relies on Metropolitan Edison Co., 330 NLRB 107, 109
(1999) in support of its position.
The General Counsel contends that the Respondent should be ordered to furnish the
Union all accident reports, STARS forms and nurses notes for all patient falls for 3 months, and
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an additional 3 months of such records, if requested by the Union, which are relevant to the
grievance of Kim Andrews.
In Metropolitan Edison Co. supra, the employer refused the union's request for the
names of two informants who provided information to the employer leading to the discharge of
an employee for theft of food from the cafeteria. The employer claimed that providing the
information would result in retaliation against the informants. The Board found that the
confidentiality interest was not so substantial as to justify the refusal to provide any information
in response to the union's request for the names of the informants. The Board found that the
employer had an obligation to offer an accommodation of its concerns and the union's need for
the information. Accordingly, the Board ordered the employer to bargain with the union
regarding providing the names of the informants.
In considering the Respondent’s argument, I note that in Borgess Medical Center, the
Board reiterated its policy that the burden of formulating a reasonable accommodation is on the
employer and that the union does not have to present any concise alternative to receiving the
information unedited.
In the instant case, the Respondent's proposed alternative did not meet its burden of
establishing a reasonable accommodation of its interests and the Union's need for the
requested information. In my view, to order further bargaining in the circumstances of this case
would not be an appropriate remedy. The record establishes that the Union will not make a
determination as to whether to arbitrate the grievance of discharged employee Andrews until it
has had an opportunity to review the requested information. There can be an extensive amount
of information contained in an incident report form and such detailed information is necessary to
determine issues involving disparate treatment. With respect to the Union's request for nurses
notes regarding fallen patients, Respondent has not raised any objection to their production in
this proceeding. To give the Respondent another opportunity to bargain over the provision of the
incident report forms and STARS reports, which I have found were unlawfully withheld, seems
unwarranted under the circumstances of this case. This is especially so when one considers
that the underlying grievance in this case will not be resolved until this collateral dispute
regarding the provision of information is resolved. The Union has indicated its willingness,
consistent with the past practice of the parties, to have the Respondent redact patients’ names
from the information it seeks. The inclusion of the medical record of a patient in the documents
will permit the union to crosscheck incident reports with the nurse’s notes regarding the incident,
while protecting the anonymity of a patient. In order to assure the confidential nature of the
identities of the patients involved I will provide for the redaction of patients names and other
safeguards in my Order. In ordering the Respondent to provide the requested information under
the conditions as set forth herein, I note that the Board has, in the past, ordered that confidential
information be provided under conditions it specified, rather than order bargaining over the
provision of such information, where the circumstances indicate that such a remedy was
appropriate. Pennsylvania Power, 301 NLRB 1104, 1108 fn. 18 (1991).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended8

8 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 purposes.
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ORDER
The Respondent, Kaleida Health, Inc., Tonawanda, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with the Union by refusing to furnish the Union
information relevant to the processing of a grievance.
(b) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed 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 Union, in a timely manner, the information it requested on
November 5, 2009, as modified on December 7, 2009, specifically, records of all
incident reports, STARS reports and nurses notes for all patient falls for 3
months, and an additional 3 months of such records if requested by the Union,
which are relevant to the grievance of discharged employee Kim Andrews;
provided, however that the names of patients shall be redacted from such
records and that upon receipt of these records the Union, its officers, agents,
members, and attorneys shall not divulge the information to any other persons
who are not involved in or necessary to the resolution of the grievance in
question.
(b) Within 14 days after service by the Region, post at its DeGraff Memorial Hospital
in Tonawanda, New York, copies of the attached notice marked “Appendix.”9
Copies of the notice, on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are
customarily posted. 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 Respondent at the DeGraff Memorial Hospital any time since January 4,
2010.
(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.

9 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 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.”
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Dated, Washington, D.C., October 18, 2010.
____________________
Mark Carissimi
Administrative Law Judge
JD–60–10
Tonawanda, NY
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 violated 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
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain in good faith with Communication Workers of America, Local
1168 by refusing to furnish information relevant to the processing of grievances. The
appropriate unit is:
Except as excluded below, all Registered Nurses in all categories of
employment, employed by Kaleida Health at its DeGraff Memorial Hospital, 445
Tremont St. will be included in the bargaining unit: Cardiac Service Nurse;
Clinical Nurse Educator; Critical Care Nurse; Infection Control Practitioner;
Interventional Nurse; Medical-Surgical Nurse; Nurse Practitioners; Patient Care
Coordinator; RNFA; Special Procedure Nurse; Staff Nurse SNF; Surgical Service
Nurse. All other employees including, but not limited to, Registered Nurses who
work in Employee Health, Human Resources or Risk Management; RCC/Relief
Charge Nurses; Nurse Managers, Associate Nurse Manager, non-nurse
professional employees, technical employees, office clerical employees guards
and supervisors are excluded.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, in a timely manner, furnish the Union with the information it requested on November
5, 2009, as modified on December 7, 2009, specifically, records of all incident reports, STARS
reports and nurses notes for all patient falls for 3 months, and an additional 3 months of such
records if requested by the Union, which are relevant to a grievance regarding an employee's
discharge; provided, however, that the names of patients will be redacted from such records
JD–60–10
Tonawanda, NY
and that, upon receipt of these records, the Union, its officers, agents, members, and attorneys,
shall not divulge information to any other persons who are not involved in or necessary to the
resolution of the grievance in question.
Kaleida Health
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
130 South Elmwood Avenue, Suite 630
Buffalo, New York 14202
Hours: 8:30 a.m. to 5 p.m.
716-551-4931.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 716-551-4946.