River Oak Center for Children

National Labor Relations Board - Board Decisions

Dec 9, 2005

345 N.L.R.B. 1335 (N.L.R.B. 2005)

RIVER OAK CENTER FOR CHILDREN
345 NLRB No. 113
1335
River Oak Center for Children, Inc. and Social Ser-
vices Union, Local 535 Service Employees Inter-
national Union.1 Case 20–CA–31640–1
December 9, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
Pursuant to a charge filed by the Social Services Un-
ion, Local 535, Service Employees International Union
(the Union), on December 12, 2003, the General Counsel
of the National Labor Relations Board issued a complaint
on March 30, 2004, alleging that the Respondent, River
Oak Center for Children, Inc., has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to furnish necessary and relevant information. On April
9, 2004, the Respondent filed an answer admitting in part
and denying in part the allegations in the complaint, and
raising certain affirmative defenses.
On April 30, 2004, the Respondent filed a Motion for
Summary Judgment and supporting documents. On May
24, 2004, the General Counsel filed a Motion for Sum-
mary Judgment and Opposition to Respondent’s Motion
for Summary Judgment. On June 18, 2004, the Board
issued an order transferring the proceeding to the Board
and Notice to Show Cause why the motions should not
be granted. On June 30, 2004, the Respondent filed a
response and brief in opposition to the General Counsel’s
Motion for Summary Judgment.
For the reasons explained below, we deny the Respon-
dent’s Motion for Summary Judgment and grant the Gen-
eral Counsel’s Cross-Motion.
Ruling on Motions for Summary Judgment
The complaint alleges that the Respondent has unlaw-
fully refused to provide the addresses and telephone
numbers of the employees in the bargaining unit, as re-
quested in writing by the Union on about August 4, 2003,
during negotiations for a new collective-bargaining
agreement.
We find that there are no issues warranting a hearing
because the Respondent has admitted all relevant factual
allegations. The Respondent admits that the Union re-
quested that it provide the addresses and phone numbers
of the unit employees and that it has refused to provide
the requested information.
The Respondent makes three principal arguments in
support of its Motion for Summary Judgment. We find
that those arguments do not support its defense.

1 We have amended the case caption to reflect the disaffiliation of
the Service Employees International Union from the AFL–CIO effec-
tive July 25, 2005.
First, the Respondent contends that it has already pro-
vided the unit employees’ addresses to the Union, as re-
quired by the parties’ collective-bargaining agreement,
and that the Union had adequate alternative means to
obtain the phone numbers. Thus, according to the Re-
spondent, the information the Union sought from it was
not “necessary and relevant.” We do not agree.
It is well established that the addresses and phone
numbers of bargaining unit employees are presumptively
relevant for purposes of collective bargaining and must
be furnished upon request of the bargaining representa-
tive.2 The Respondent contends that it has already pro-
vided the Union with the requested information: in the
late 1980s, prior to a representation election, it furnished
the Union with a list of the addresses of all then-
employed unit employees; since that time, it has com-
plied with the collective-bargaining agreement’s re-
quirement that it supply the Union, on a monthly basis,
with the addresses of any new hires.3 Assuming without
finding that the Respondent has consistently honored that
contractual requirement, it nonetheless has not fulfilled
its obligation to provide current employee addresses and
telephone numbers4 to the Union in response to the Un-
ion’s August 4 request. The Union is entitled to updated
addresses and phone numbers, which may well have
changed over the 15-year period that the Respondent was
supplying information.5
Second, the Respondent asserts that even if the re-
quested information was relevant, it was not required to
provide the information because there were alternative
methods available to the Union to obtain that informa-
tion. The Respondent relies on several circuit court cases
for this assertion, including JHP & Associates, LLC v.
NLRB, 360 F.3d 904 (8th Cir. 2004), Grinnell Fire Pro-
tection Systems Co. v. NLRB, 272 F.3d 1028 (8th Cir.
2001), and Chicago Tribune Co. v. NLRB, 79 F.3d 604
(7th Cir. 1996). Those cases, however, are distinguish-
able and not controlling. Each involved a union’s re-
quest for the addresses of striker replacements or non-
striking union employees in the context of an ongoing
strike and labor unrest, where there were threats of vio-

2 See, e.g., La Gloria Oil & Gas Co., 338 NLRB 858 (2003); Baker
Concrete Construction, 338 NLRB No. 48 (2002) (not reported in
Board volumes), enfd. 73 Fed. Appx. 12 (5th Cir. 2003); Maple View
Manor, 320 NLRB 1149, 1151 (1996), enfd. mem. 107 F.3d 923 (D.C.
Cir. 1997).
3 It is not clear that the Respondent has consistently complied with
the requirement to report addresses of new hires. Although the Re-
spondent claims that it has complied with this requirement since 1998,
record evidence proves only that it has complied since 2000.
4 The Respondent does not claim that it has at any time supplied the
Union with the unit employees’ telephone numbers.
5 Watkins Contracting, Inc., 335 NLRB 222 fn. 1 (2001); Long Is-
land Day Care Services, 303 NLRB 112, 130 (1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1336
lence and the potential for misuse of the information.
Here, in contrast, the request was made in the context of
the parties’ peaceful renegotiation of a collective-
bargaining agreement. Moreover, controlling Board
precedent is to the contrary.6
Third, the Respondent contends that it was not re-
quired to furnish the requested information because em-
ployees’ addresses are subject to a contractual right of
privacy and confidentiality, and that the unit employees’
privacy rights outweigh the Union’s need for the infor-
mation.7
Blanket claims of confidentiality in response to re-
quests for relevant information are disfavored.8 In ana-
lyzing the lawfulness of requests for relevant, but assert-
edly private or confidential information, the Board bal-
ances the union’s need for the information against any
“legitimate and substantial” confidentiality interests.
The party asserting privacy or confidentiality has the
burden of proof, as well as a duty to seek an accommoda-
tion.9
Here, the Respondent contends that portions of the col-
lective-bargaining agreement pertaining to personnel
files give rise to a legitimate and substantial employee

6 See, e.g., Hospitality Care Center, 307 NLRB 1131, 1135 (1992)
(employer may not refuse to provide requested relevant information on
the grounds that the union may have alternative means to obtain it, even
if through a contractual right), enf. denied on other grounds 35 F.3d
828 (3d Cir. 1994).
Even under the precedent cited by the Respondent, we would find
that Respondent has failed to demonstrate the existence of reasonable
alternative means for the Union to obtain the requested information.
The Respondent contends that the Union could have obtained the re-
quested information through the union stewards and by using the union
bulletin board and the Respondent’s internal mail system. Regarding
the stewards, there are only three stewards for 80 employees, in a three-
shift operation. It is not clear whether there is a steward present on
each shift. The designated union bulletin board is actually controlled
by the Respondent, which has reserved the right to review and approve
all material before it is posted. There is no evidence that the Respon-
dent would approve the Union’s using the bulletin board for soliciting
the requested information. Finally, the Respondent’s policy is clear
that the Union may use the internal mail system solely to announce
union meetings.
7 Sec. 11 of the collective-bargaining agreement, on which the Re-
spondent relies, does not expressly set forth the Union’s right of access
to employee telephone numbers. Thus, to the extent that the Respon-
dent is arguing that the contract acts as a waiver of the Union’s right to
obtain employee information other than as specified, that argument is
inapplicable to the request for telephone numbers.
8 See, e.g., Wayne Memorial Hospital, 322 NLRB 100, 102 (1996);
New Jersey Bell Telephone Co., 289 NLRB 318, 318–319 (1988), enfd.
872 F.2d 413 (3rd Cir. 1989); Pfizer, Inc,. 268 NLRB 916, 919 (1984),
enfd. 763 F.2d 887 (7th Cir. 1989).
9 Detroit Edison Co. v. NLRB, 440 U.S. 301, 315, 318 (1979); SBC
California, 344 NLRB No. 11, slip op. 4 (2005); Pennsylvania Power
Co., 301 NLRB 1104, 1105 (1991). Here, the Respondent made no
effort to seek such an accommodation.
privacy interest.10 According to the Respondent, the par-
ties’ agreement “acknowledges that the requested infor-
mation is confidential” and cannot be disclosed to the
Union without the employees’ written consent. That
assertion, however, is inconsistent with section 2.E of the
collective-bargaining agreement, which mandates disclo-
sure to the Union of new employees’ addresses and does
not require the employees’ written consent. Nor is there
evidence that the Respondent obtains written employee
consent before it complies with section 2.E. In fact, the
cited portions of section 11 do not proscribe disclosure of
information contained within personnel files; rather, they
regulate who is privy to employee personnel files and
their contents and the conditions under which access to
the information may be granted. Although otherwise
detailed, the cited provisions are silent regarding disclo-
sure to the Union. Thus, it cannot be said that the Union
waived its right to request employee names and tele-
phone numbers by entering into the collective-bargaining
agreement.11
Finally, the Respondent contends that the California
Constitution and statutes require it to keep personnel
records confidential in the circumstances presented here.
The Board and the courts have decisively rejected that
argument.12

10 In relevant part, those provisions are:
11.A [nonexclusive list of information and documents that
may be contained in employee personnel files] . . . Access to the
personnel file is limited to the employee, the employee’s supervi-
sor, the President/Chief Executive Officer, the Human Resources
[sic] and other Human Resources staff. The following persons
shall also have access to such records: An attorney or designee
. . . with the written consent of the employee . . . Supervisory em-
ployees . . . the Agency’s attorney or other appropriate representa-
tive when records are needed in connection with any action
brought by the employee against the Agency or other persons act-
ing in compliance with federal, state of [sic] local laws such a[s]
auditors, equal employment opportunity investigators, etc.
11.G The Employer respects the privacy of its employees
and strives to insure [sic] confidentiality of information about
employees and former employees. Information is not to be im-
properly released either within the Agency or to external sources.
Any calls, documents, or questions concerning . . . home address
and telephone numbers . . . or any other confidential matters shall
be referred to the Human Resources Director or his/her designee.
11 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983)
(waiver of a statutory right must be clear and unmistakable).
In view of our disposition of this matter, we need not reach the issue,
raised by the General Counsel, that disclosure of personnel information
to the Union is authorized by the provision in sec. 11.A of the collec-
tive-bargaining agreement providing for access to personnel informa-
tion by “other persons acting in compliance with federal, state of [sic]
local laws.”
12 See NLRB v. Diversified Contract Services, Case No. C 87 4274
SC (1987) (rejecting argument that California privacy laws privileged
employer’s refusal to turn over disciplinary records, evaluations, and
personnel files subpoenaed in a Board proceeding); A-Plus Roofing,
RIVER OAK CENTER FOR CHILDREN 1337
Accordingly, we find that the Respondent has not
shown that it has a legitimate privacy or confidentiality
claim justifying its refusal to provide the requested in-
formation. Having found no merit in any of the Respon-
dent’s defenses, we deny the Respondent’s Motion for
Summary Judgment.
In the General Counsel’s Motion for Summary Judg-
ment, he contends that under extant precedent the infor-
mation requested by the Union is relevant and necessary,
that the Respondent has not established any affirmative
defenses, and therefore that the Respondent must supply
the information. For the reasons discussed above, we
agree. Accordingly, we find that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing to fur-
nish the requested information and we therefore grant the
General Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a nonprofit cor-
poration, with offices and places of business in Sacra-
mento, California, has been engaged in business as a
health care institution providing services to severely
emotionally disturbed children. During the calendar year
ending December 31, 2003, the Respondent, in conduct-
ing its business operations, derived gross revenues in
excess of $250,000, and purchased and received at its
Sacramento, California facilities goods and materials
valued in excess of $5000 that originated from points
located outside the State of California. We find that the
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and
a health care institution within the meaning of Section
2(14) of the Act. We also find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since at least 1991, and at all material times, the Union
has been the designated exclusive collective-bargaining
representative, within the meaning of Section 9(a) of the
Act, of the following appropriate unit of the Respon-
dent’s employees:

Inc., 295 NLRB 967, 974 (1989), enfd. mem. No. 90–70015 (9th Cir.
July 12, 1990), (rejecting employer’s “frivolous contention” that an
employer violates an employee’s constitutional right to privacy by
furnishing to a labor organization which represents the employee the
employee’s address); Holiday Inn on the Bay, 317 NLRB 479, 483
(1985) (noting failure of employer to cite any California case law pro-
hibiting disclosure of personnel information to a bargaining representa-
tive).
Residential Counselor, Floating Residential Counselor,
Night Program Aide, On-Call Counselor, Accounting
Clerk, Receptionist, Medical Clerk, Service Coordina-
tor, Maintenance Worker, Special Education Assistant,
Floating Special Education Assistant, Afterschool As-
sistant, and Preschool Assistant.
About August 4, 2003, the Union, in writing, requested
that the Respondent furnish it with the addresses and
telephone numbers of all bargaining unit employees.
The requested information is necessary for, and relevant
to, the Union’s performance of its duties as the exclusive
collective-bargaining representative of the unit. Since
about September 3, 2003, the Respondent has failed and
refused to furnish the Union with the requested informa-
tion. We find that this refusal constitutes an unlawful
refusal to bargain in violation of Section 8(a)(5) and (1)
of the Act.
CONCLUSION OF LAW
By refusing on or after September 3, 2003, to furnish
the Union with requested information that is necessary
for, and relevant to, the Union’s performance of its duties
as the exclusive bargaining representative of unit em-
ployees, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, and to furnish the requested information to the
Union.
ORDER
The National Labor Relations Board orders that the
Respondent, River Oak Center for Children, Inc., Sacra-
mento, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to furnish the Social Service
Union, Local 535, Service Employees International Un-
ion, with information that is relevant and necessary to its
role as the exclusive bargaining representative of the
following unit:
Residential Counselor, Floating Residential Counselor,
Night Program Aide, On-Call Counselor, Accounting
Clerk, Receptionist, Medical Clerk, Service Coordina-
tor, Maintenance Worker, Special Education Assistant,
Floating Special Education Assistant, Afterschool As-
sistant, and Preschool Assistant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1338
(b) In any like or related manner interfering with, re-
straining, 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 the Union the information that it requested
on August 4, 2003.
(b) Within 14 days after service by the Region, post at
the facility set forth above copies of the attached notice
marked “Appendix.”13 Copies of the notice, on forms
provided by the Regional Director for Region 20, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees and members 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since September 3, 2003.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

13 If this Order is enforced by a Judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to furnish the Social Service Un-
ion, Local 535, Service Employees International Union
information that is relevant and necessary to its role as
the exclusive bargaining representative of the following
unit of our employees:
Residential Counselor, Floating Residential Counselor,
Night Program Aide, On-Call Counselor, Accounting
Clerk, Receptionist, Medical Clerk, Service Coordina-
tor, Maintenance Worker, Special Education Assistant,
Floating Special Education Assistant, Afterschool As-
sistant, and Preschool Assistant.
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 furnish the Union the information it re-
quested on August 4, 2003.
RIVER OAK CENTER FOR CHILDREN, INC.