MEMORIAL HOSPITAL OF SALEM COUNTY

National Labor Relations Board - Administrative Judge Opinions

Sep 14, 2012

04-CA-073474 (N.L.R.B. Sep. 14, 2012)

JD–48–12
Philadelphia, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SALEM HOSPITAL CORPORATION
a/k/a THE MEMORIAL HOSPITAL OF
SALEM COUNTY
and Cases 4-CA-073452
4-CA-073457
HEALTH PROFESSIONALS AND 4-CA-073463
ALLIED EMPLOYEES (HPAE) 4-CA-0734741
Noelle Reese, Esq.,
for the General Counsel.
John Jay Matchulat, Esq.(Brentwood, Tennessee),
for the Respondent.
Lisa Leshinski, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Philadelphia,
Pennsylvania on August 1, 2012. The Union, Health Professionals and Allied Employees
(HPAE), filed the charges in this matter on January 31, 2012. The General Counsel issued the
complaint on April 26, 2012.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the brief filed by the General Counsel,2 I make the following

1 Only the issues raised in charge 4-CA-073474 were litigated. The other charges were settled and/or
withdrawn.
2 The Union has informed me that it is not filing a brief. The briefs were due on September 12. Rule
102.42 of the Board’s Rules allows for post-trial briefs no more than 35 days after the close of hearing.
However, extensions of time are often granted beyond 35 days. On August 16, 2012, the General
Counsel requested a one-week extension of time to file briefs from September 5 to September 12. This
request was granted on August 16. On September 5, Respondent requested an additional extension to
September 24. This request was denied. The 42 days allowed for the filing of post-trial briefs in this
case, a one-day hearing with 107 pages of transcript, and relatively few exhibits, was more than adequate.
This is particularly true given the nature of the issues. Nonetheless, I informed Respondent that I would
accept its brief if filed on September 13. As of 9:25 a.m. September 14, I had not received Respondent’s
brief.
JD–48–12
2
FINDINGS OF FACT
I. JURISDICTION
Respondent, Salem Hospital Corporation, operates an acute care hospital in Salem, New 5
Jersey where it annually receives gross revenues in excess of $250,000 and purchases and
receives goods valued in excess of $50,000 directly from locations outside of New Jersey.
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 and that the Union is a labor organization within the
meaning of Section 2(5) of the Act. 10
II. ALLEGED UNFAIR LABOR PRACTICES
Background15
The Union won a representation election conducted at the Salem Hospital on September
1 and 2, 2010. Respondent then filed objections to the conduct of the election. The Board
rejected these objections and on August 3, 2011, certified the Union as the exclusive bargaining
representative of Respondent’s employees in a unit consisting of all full-time and regular part-20
time and per diem Registered Nurses, including Staff Nurses, Case Managers, and Charge
Nurses at that facility.
The Union requested bargaining soon after it was certified. On August 17, 2011,
Respondent’s President informed the Union that it would continue to contest the certification and 25
would not meet and bargain with it. The Union filed an unfair labor practice charge with regard
to this refusal. The General Counsel issued a complaint and on November 28, 2011, the Board
found that Respondent was violating the Act in refusing to meet and bargain with the Union, 357
NLRB No. 119 (2011). On August 15, the Union requested that Respondent provide it with
information regarding unit members’ wages, benefits and related matters. Respondent ignored 30
this request. The Board also found that Respondent violated the Act in failing to provide this
information, 358 NLRB No. 95 (July 31, 2012).
The instant case
35
This case involves allegations that Respondent violated Section 8(a)(5) and (1) by
refusing and failing to bargain over all disciplinary actions taken against unit employees and
ignoring a second Union information request. The Union sent Respondent a letter on October
20, 2011 which demanded bargaining over any and all disciplinary measures taken against unit
employees, including terminations. The Union also requested:40
1. The name, department, and hire date of all employees who were disciplined since the
Union was certified on August 3, 2011 to date.
2. For each employee disciplined or terminated:45
a. A copy of the disciplinary form given to each employee;
JD–48–12
3
b. Personnel files of [disciplined] employees, including evaluations for the
previous three years;
c. A. summary of any witnesses statements considered in imposing discipline.5
d. Copies of all documents, policies and procedures used in order to base the
discipline.
e. List of witnesses.10
Finally, the letter stated that this was an ongoing request for such documents for
discipline imposed in the future, and an ongoing demand to bargain.
Salem Hospital did not respond to the October 20, 2011 request. The record establishes 15
that Respondent has a great deal of information responsive to the Union’s request. For example,
it took 50 disciplinary actions against unit nurses in the period January 1 – July 31, 2012. This
represents a marked increase in the number of disciplinary measures taken against unit members
compared with 2010 and 2011, Er. Exh. 10.
20
Analysis
Section 8(a)(5) provides that it is an unfair labor practice for an employer to refuse to
bargain with the representative of its employees. Unit employee discipline is a mandatory
subject of bargaining. An employer which refuses to meet and bargain with a certified collective 25
bargaining representative concerning the discipline of unit employees violates Section 8(a)(5)
and (1) of the Act, Ryder Distribution Resources, 302 NLRB 76, 90 (1991).
An employer’s duty to bargain includes a general duty to provide information needed by
the bargaining representative for contract negotiations or administration, NLRB v. Truitt Mfg. 30
Co., 351 U.S. 149, 152-53 (1956). Information pertaining to employees in the bargaining unit is
presumptively relevant, Southern California Gas Co., 344 NLRB 231, 235 (2005). More
specifically, information regarding the discipline of unit employees is presumptively relevant,
Leland Stanford Junior University, 307 NLRB 75 (1992). An employer must respond to an
information request in a timely manner. An unreasonable delay in furnishing such information is 35
as much of a violation of Section 8(a)(5) of the Act as a refusal to furnish the information at all,
American Signature Inc., 334 NLRB 880, 885 (2001).3
If an employer has a claim that some of the information requested is confidential or
unduly burdensome to produce, such claims must be made in a timely fashion, Detroit 40
Newspaper Agency, 317 NLRB 1071, 1072 (1995). The reason a confidentiality claim must be
timely raised is so that the parties can attempt to seek an accommodation of the employer’s
confidentiality concerns, Tritac Corp., 286 NLRB 522 (1987).4 The same is true with respect to

3 This case has also been cited under the name of Amersig Graphics, Inc.
4 When responding to a request for the identity of witnesses to an incident resulting in discipline or a
summary of their statements, an employer must, as in the case of medical information, raise its defenses
JD–48–12
4
a claim that satisfying the request would be unduly burdensome, Honda of Hollywood, 314
NLRB 443, 450-51 (1994); Pet Dairy, 345 NLRB 1222, 1223 (2005)5.
The fact that a union may ask an employer for a large volume of information does not, by
itself, render that request “overbroad” so as to relieve the employer from the duty to provide that 5
information where, as here, the information is relevant and necessary to the union's performance
of its bargaining duties. If an employer declines to supply relevant information on the grounds
that it would be unduly burdensome to do so, the employer must not only timely raise this
objection with the union, but also must substantiate its defense. Respondent has done neither.
Respondent never advised the union that its request was unduly burdensome, and never sought 10
clarification from the union in order to narrow the request, Pulaski Construction Co., 345 NLRB
931, 937 (2005). There is no doubt that production of the information may impose strains on an
employer, but that consideration does not outweigh the union's right to the information
requested. H.J. Scheirich Co., 300 NLRB 687, 689 (1990).
15
Respondent contends that it was prohibited from disclosing some of the information
requested by the Union due to the privacy provisions of HIPAA (the Health Insurance Portability
and Accountability Act). However, the Department of Health and Human Services has
interpreted these requirements to allow disclosure, without prior authorization, of information
which is required to be disclosed by law, such as pursuant to the National Labor Relations Act, 20
65 Fed. Reg. 82485 (December 28, 2000) [preamble to the final rule to protect the privacy of
individually identifiable health information]. More specifically, the Department, in responding
to public comments stated:
The final rule does not prohibit disclosures that covered entities must make pursuant to 25
other laws. To the extent a covered entity is required by law to disclose protected
information to collective bargaining representatives under the NLRA, it may do so
without an authorization. Also, the definition of “health care operations” at Section
164.501 permits disclosures to employee representatives for purposes of grievance
resolution. Id., at page 82598.630
The record herein demonstrates why an employer is required to seek an accommodation
with the Union. Respondent introduced an exhibit with some, but possibly not all, individually
identifiable patient information redacted, Er. Exh. 9.. Thus, it demonstrated at trial that much of
the information for which it claims confidentiality could have been produced pursuant to an 35
accommodation with the Union. In many cases, one would expect the Union to agree to the
redaction of Social Security Numbers and to some information which would tend to identify
patients. However, there are certainly cases in which some individually identifiable health
information, including in some cases the patient’s identity, may have to be disclosed when the
Union’s need for that information outweighs the patient’s privacy concerns. One example might40

regarding confidentiality in a timely fashion and must seek an accommodation with the Union regarding
these concerns, Pennsylvania Power Co., 301 NLRB 1104 (1991).
5 Also cited as Land-O-Sun Dairies.
6 Also see 45 CFR sections 164.506(c)(1); 164.501(6).
JD–48–12
5
be a situation in which a nurse is disciplined for his or her treatment of a particular patient and/or
a situation in which the discipline is predicated in part on the patient’s account of the nurse’s
care.
The record also demonstrates this principle with regard to those documents Respondent 5
claims would have been unduly burdensome to produce. Had Respondent offered the Union
selected portions of the discriminatees’ personnel files, possibly with redactions, the Union may
have agreed to at least some of Respondent’s proposals. The testimony of Respondent’s human
resources director, Linda Tuting, at transcript page 74, indicates that there is a lot of information
in the personnel files that would be of no interest to the Union.10
If an employer refuses to bargain, while contesting the validity of a Board determination
that a Union is the certified bargaining representative, it does so at its peril. Should the
certification be upheld, an employer’s refusal to bargain, implementation of unilateral changes
and refusal to provide the Union with relevant information violate Section 8(a)(5), Quaker Tool 15
& Die, Inc., 169 NLRB 1148 (1968); San Miguel Hospital Corp. d/b/a Alta Vista Regional
Hospital, 357 NLRB No.36, slip op. at 2 (2011).
REMEDY20
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
25
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended7
ORDER
30
The Respondent, Salem Hospital Corporation, a/k/a Memorial Hospital of Salem,
County, its officers, agents, successors, and assigns, shall
1. Cease and desist from
35
(a) Failing and refusing to provide information to the Union that is relevant and necessary
to its role as the exclusive bargaining representation of all full-time and regular part-time and per
diem Registered Nurses, including Staff Nurses, Case Managers, and Charge Nurses employed
by the Respondent at the Memorial Hospital of Salem County, New Jersey.
40
(b) Failing and refusing to bargain with the Union concerning discipline taken with
regard to bargaining unit employees.

7 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.
JD–48–12
6
(c) 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.
5
(a) Furnish the Union with all the information it requested in its October 20, 2011, unless
the Respondent can establish that it has a confidentiality concern that outweighs the Union’s
interest in obtaining such information -- after the Respondent has offered the Union a reasonable
accommodation that meets the Union’s needs;8
10
(b) Bargain with the Union regarding any and all disciplinary measures taken against
bargaining unit employees since September 2, 2010. 9
(c) Within 14 days after service by the Region, post at its Salem, New Jersey facility
copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms provided by 15
the Regional Director for Region 4, 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. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the 20
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and 25
former employees employed by the Respondent at any time since September 2, 2010.
30

8 I agree with the observations of Judge David Goldman in NHS Human Services, Inc. of Allegheny
and Westmoreland, Case No. 6-CA-37002 (J.D. May 12, 2012) to wit: 1) If the confidentiality interest
herein was Respondent’s own, I’d be inclined to find that Respondent waived its defense. However, the
confidentiality interest herein may be that of third parties, i.e., other nurses and patients. 2)
Accommodations need not be limited to redactions, they can also include limitations as to who can view
certain documents, how they would be used and provisions regarding document disposal, destruction or
return after the Union’s need for the document has ceased.
9 Where an employer's objections to the election have been rejected, its bargaining obligation
commences as of the date of the election, Mike O’Connor Chevrolet, 209 NLRB 701, 703
(1974).
10 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.”
JD–48–12
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(d) 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.
Dated, Washington, D.C., September 14, 2012.5
____________________
Arthur J. Amchan
Administrative Law Judge10
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 collectively with the Union, Health Professionals and
Allied Employees (HPAE), by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s performance of its functions as
the collective bargaining representative of our employees in the following bargaining
unit:
All full-time and regular part-time and per diem Registered Nurses, including
Staff Nurses, Case Managers, and Charge Nurses employed by us at the Memorial
Hospital of Salem County located at Woodstown Road, Salem New Jersey,
excluding all other employees, managers, guards and supervisors as defined in the
Act.
WE WILL NOT refuse to bargain with the Union over the discipline of unit employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL furnish the Union with the information it requested on October 20, 2011.
WE WILL meet and bargain with the Union concerning any disciplinary actions taken
since the representation election of September 1-2, 2010, and any disciplinary actions taken in
the future against any bargaining unit employee.
(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.
615 Chestnut Street, 7th Floor, Philadelphia, PA 19106-4404
(215) 597-7601, Hours: 8:30 a.m. to 5 p.m.
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, (215) 597-5354.