LaGuardia Hospital-H.I.P. Hospital, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1455 (N.L.R.B. 1982)

LAGUARDIA HOSPITAL
LaGuardia Hospital-H.I.P. Hospital, Inc. and La-
Guardia Association for Registered Nurses.
Cases 29-CA-8024, 29-CA-8062, and 29-CA-
8095
March 31, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 29, 1981, Administrative Law Judge
Raymond P. Green issued the attached Decision in
this proceeding. Thereafter, the Respondent and
the Charging Party filed exceptions, supporting
briefs, and answering briefs to each other's excep-
tions.
Pursuant to the provisions of kSection 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
We agree with the Administrative Law Judge
that, in the circumstances of this case, the Union's
need for the relevant information in certain pa-
tients' charts outweighs the legitimate concern with
an invasion, albeit a limited one, of the patients'
privacy. But there is another factual consideration,
the significance of which, from the tenor of the ar-
guments before us, may have been lost on the par-
ties. The Administrative Law Judge correctly fol-
lowed the balancing of interests test set forth in
Johns-Manville Sales Corporation, 252 NLRB 368
(1980). In Johns-Manville, however, the focus of the
dispute was the providing of names of persons
identified as suffering from certain medical disor-
ders. Here, the relevant information sought is not
the names of the patients but certain notations on
their charts. The Administrative Law Judge's rec-
ommended Order does not, by its terms, compel
the furnishing of the names of the patients whose
charts are to be abstracted, and the names them-
selves are not apparently relevant to the Union's
purposes. Thus, it is in the interest of all the parties
to the instant dispute, and of the patients, that the
'The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Producrts,
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
I We shall delete fn 20 as it is inapplicable
260 NLRB No. 199
parties act in good faith to insure the accuracy of
the relevant materials so that the patients' identities
need be revealed only to nurses who already were
in a confidential relationship with such patients,
and then only if a comparison of the abstracts with
the original charts is necessary to verify their accu-
racy. In this way, the patients' privacy may be pre-
served without impairing the Union's right to the
relevant portions of their charts.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
LaGuardia Hospital-H.I.P. Hospital, Inc., Forest
Hills, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph 2(c):
"(c) Post at its place of business in Forest Hills,
New York, copies of the attached notice marked
'Appendix."9 Copies of said notice, on forms pro-
vided by the Regional Director for Region 29,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other materi-
al."
2. Delete footnote 20.
3. Substitute the attached notice for that of the
Administrative Law Judge.
3 If the parties cannot accomplish these objectives, resolution can be
had at the compliance stage of the proceeding Cf Food Employers Coun-
cil, Incorporated et al., 197 NLRB 651 (1972)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse or fail to bargain in
good faith with LaGuardia Association for
Registered Nurses by refusing to furnish the
Union information relevant to the processing
of grievances or the administration of our col-
lective-bargaining agreement with the Union.
1455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 National Labor Relations Act,
as amended, or in any like or related manner
refuse to bargain with the Union as the exclu-
sive bargaining representative in the following
appropriate unit:
All full-time and regular part-time registered
professional nurses and other persons lawful-
ly authorized by permit to practice as regis-
tered nurses, including staff nurses, team
leaders, assistant head nurses, head nurses,
infection control nurses, utilization review
nurses and nurse anaesthetists employed by
LaGuardia Hospital-H.I.P. Hospital, Inc.,
at its Forest Hills location, exclusive of the
directors of nurses, assistant directors of
nurses, associate directors of nurses, nurse
supervisors, clinical supervisors, nurse an-
aesthetist supervisors, emergency room su-
pervisors, recovery room supervisors, inha-
lation therapist and all other employees,
guards and supervisors as defined in the Act.
WE WtLL, upon request, forthwith furnish to
the Union the personnel files of Elizabeth
Schuppel, Leslie Stables, and Joanne Rosen-
berg.
WE WILL, upon request, forthwith furnish to
the Union the progress notes portion of the pa-
tients' charts which are relevant to the griev-
ance of Elizabeth Schuppel and the emergency
room and operating room sheets which are rel-
evant to the grievances of Parkash Kahara and
Linda Gabriel; provided, however, that upon
receipt of such medical records the Union, its
officers, agents, members, and attorneys shall
not divulge such information to any other per-
sons who are not involved in or necessary to
the resolution of the grievances in question.
LAGUARDIA HOSPITAL-H.I.P. HoS-
PITAL, INC.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge:
These consolidated cases were heard by me on March
24, 25, and 26, 1981. The charge in Case 29-CA-8024
was filed on May 20, 1980, the charge in Case 29-CA-
8062 was filed on June 6, and the charge in Case 29-
CA-8095 was filed on June 18.1 An order consolidating
' Unless otherwise indicated all dates are in 1980.
cases and complaint was thereafter issued by the Region-
al Director for Region 29 on July 31.
On March 25, 1981, after the hearing opened, the par-
ties entered into a formai settlement stipulation as to cer-
tain allegations of the complaint which was approved by
me. This stipulation provided, inter alia, for a Board
order and the entry of a court decree enforcing the
order. In view of the settlement stipulation, the issues for
litigation were substantially narrowed and involved only
the contention by the General Counsel that the Respond-
ent refused to furnish certain information to the Union in
relation to grievances filed by employees. In substance,
the remaining issues for litigation, as set forth in para-
graphs 16, 17, and 20 of the complaint were whether the
Respondent failed and refused to furnish to the Union
relevant data relating to grievances such as personnel
files, patient charts, Respondent's operating room policy
and procedures manual, and the New York State Health
Code.
The Respondent's position on these matters is as fol-
lows:
(I) As to certain of the items, it contends that the in-
formation was never requested by the Union.
(2) With respect to the Health Code, the Respondent
asserts that this is a public statute which, with attendant
rules and regulations, is contained in a multivolume pub-
lication equally available to the Union as it is to the Re-
spondent.
(3) With respect to personnel files, the Respondent
claims that in one of the grievances in question, it did
turn over the relevant portions of the file. The Respond-
ent also contends that, pursuant to the most recent col-
lective-bargaining agreement, the Union has waived its
right to review personnel files except in limited situations
not involved herein.
(4) As to the operating room policy and procedures
manual, the Respondent contends that this book is kept
in the nursing station of the operating room and in the
nursing administrative office, that it is kept in a place
where it is at all times accessible to the nurses for inspec-
tion and copying and, accordingly, that it never was
withheld from the Union whose membership and officers
are composed entirely of registered nurses employed by
the Hospital.
(5) With respect to patient charts, the Respondent con-
tends (a) that the requests allegedly made were ovely
broad, (b) that significant portions of the patient charts
would not be relevant to the grievances in any circum-
stances, (c) that the information contained in the patient
charts allegedly requested were not relevant to the par-
ticular grievances involved, and (d) that the patient
charts contain confidential information, the disclosure of
which would invade the privacy of the patients.
Upon the entire record, including my observation of
the demeanor of the witnesses and after reviewing the
excellent briefs filed by the parties, I make the following:
1456
LAGUARDIA HOSPITAL
FINDINGS OF FACT
I. JURISDICTION
It is conceded that the Respondent is a hospital incor-
porated pursuant to the laws of the State of New York
and is located at 102-01 66th Road, Forest Hills, New
York. It also is admitted that the Respondent derives
gross annual revenues in excess of $250,000 and that it
purchases hospital supplies, drugs, and other goods
valued in excess of $50,000 which are delivered to it, in
interstate commerce, directly from States other than the
State of New York. Based on the above, I find that the
Respondent is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and a health care insti-
tution within the meaning of Section 2(14) of the Act.
I1. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE COLLECTIVE-BARGAINING HISTORY
It appears that the Union has been the recognized col-
lective-bargaining representative of the registered nurses
of the Respondent for a number of years. It also appears
that in March 1980, the Union withstood an attempt by
another labor organization, District 1199, League of
Registered Nurses, National Union of Hospital and
Health Care Employees, RWDSU, AFL-CIO, to repre-
sent the nurses. That is, on March 6, a secret-ballot elec-
tion was conducted by the Board's Regional Office in
which a majority of the bargaining unit employees voted
for the Charging Party which was then certified as the
exclusive collective-bargaining representative for these
employees.
The Union, itself, is an unaffiliated labor organization
which consists solely and exclusively of the registered
nurses employed by the Respondent and its officers are
drawn from these people. The grievance committee of
the Union is open to any nurse who volunteers to serve
and, except for the Union's counsel, Marinelli, the griev-
ance committee consists of employees of the Respondent.
Marinelli is designated as the grievance co-chairman and
has attended, from time to time, grievance meetings in
addition to representing the Union, as an attorney, at ar-
bitration hearings.2
Introduced into evidence were two collective-bargain-
ing agreements between the Respondent and the Union.
The first was executed in 1977 with a term to expire on
April 24, 1980. The second contract runs for a term from
April 24, 1980, to April 24, 1982. Both contracts contain
provisions relevant to this proceeding as folows:
(a) The agreement expiring in 1980, at section 4.11
provides, inter alia:
In promotion, Employer will be guided by seniority
only if the involved employees' abilities, qualifica-
tions and potential (including, without limitation,
preparation, ability, dependability, skill, efficiency
2 On a few occasions in the past, a non-attorney in Marinelli's office
has attended grievance meetings to take notes
and physical fitness) are approximately equal in the
reasonable judgment of the Vice President for Nurs-
ing. Employer's decisions under the preceding sen-
tence will be subject to the grievance procedure
contained in Section 14.3
(b) At section 10.03 of the first contract, it provides:
Discharge and Penalties. The Employer shall have
the right to discharge, suspend, or discipline any
employee for cause. The Employer will notify the
Association at its office and the Chairman for the
constituent Council in writing of any discharge or
suspension within twenty-four (24) hours from the
time of discharge or suspension. If the Association
desires to contest the discharge or suspension, it
shall give written notice thereof to the Employer
not later than ten (10) working days from the date
of receipt of notice of discharge or suspension. In
such event, the dispute shall be submitted and deter-
mined under the grievance and arbitration proce-
dure set forth, however, commencing at Step Two
of the grievance procedure.'4
(c) Both contracts provide for a grievance procedure
culminating in final and binding arbitration. It is agreed
that in cases involving employee suspensions or dis-
charges, a grievance under the 1977-80 contract, com-
menced at the third step.
(d) The 1980-82 contract has a provision at section
14.07 which states:
An employee who is suspended or discharged shall
be allowed to review and copy at the Personnel
Office his/her personnel file upon request, except
for references received from prior employers.
There was no similar provision in the 1977-80 contract.
(e) Both agreements have a provision entitled "With-
drawal of Demands," which, in both documents, reads as
follows:
Prior to and during the negotiation of this Agree-
ment, each party made certain proposals to the
other. Each party hereto agrees that it has with-
drawn all proposals made to the other that are not
incorporated in or covered by this Agreement, in
whole or in part. The withdrawal of those propos-
als, in whole or in part, is as much a consideration
for this Agreement as is the incorporation therein of
matters agreed on. Each party hereto hereby waives
any right to require the other to bargain on the sub-
ject matter of those proposals, or on any similar
The 1980-82 contract was a similar provision at sec 4.11 relating to
promotions and transfers.
4The 1980-82 contract states:
1003 Discharge and Discipline:
The Employer shall have the right to discharge, suspend or disci-
pline any employee for just cause. The Employer will notify the As-
sociation at its offices in writing of any discharge or suspension
within twenty-four (24) hours of the time of the discharge or suspen-
sion. However. copies of written warnings, not affecting time or
money, shall be sent to the Association on a monthy basis
1457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposals or on any other matter that might have
been included in or covered by this Agreement but
was not. It is the intention of the parties that this
Agreement during its term shall cover all arrange-
ments between the parties concerning wages, hours
and conditions of employment that are to be in
effect during the terms and that nothing shall be
added to the Agreement or subtracted from it by
amendment, supplemental agreement or otherwise.
With respect to the issue of personnel files, there was
no evidence presented to show that during the negotia-
tions for the 1977-80 contract, the issue of whether or
under what circumstances such files would be made
available to employees or the Union was raised, dis-
cussed, or explored by the parties. Obviously, this sub-
ject matter was discussed and negotiated in the 1980 con-
tract as it sets forth a provision relating to the matter.
Although I heard no evidence regarding the nature of
the negotiations leading up to this latter contract, the Re-
spondent contends that the parties clearly intended that
the only occasions where personnel files would be made
available are those involving cases where employees are
suspended or discharged.
IV. THE OPERATIVE FACTS
A. The Grievance of Elizabeth Schuppel
In November 1979, nurse Elizabeth Schuppel filed a
grievance regarding the rejection of her request for a
promotion to head nurse in the delivery room. A step
one meeting was then held on November 12, but nothing
could be resolved because Miss Roner, the person who
made the decision, was unavailable due to illness. There-
after when Roner returned, the Union filed a step two
grievance. However, when the hospital announced that
another nurse, Leslie Stables, was given the promotion,
the grievance was moved to step three and a meeting
was held at that level.
According to Linda Soderberg, the Union's president,
she asked Lou Smith, the Respondent's assistant director,
at the step three meeting for the personnel files of
Schuppel and Stables so as to be able to compare their
respective seniority dates along with their educational
backgrounds and qualifications for the position of head
nurse. She states that this request was denied without ex-
planation. She also states that she did have available
Schuppel's prior evaluations which were brought in by
that employee.
A few days after the step three meeting, Soderberg
was notified by Smith that the decision had been re-
versed and that Schuppel would receive the promotion.
Thereafter, Stables filed a grievance which also was
processed by the Union.5
In relation to the Schuppel grievance, Smith acknowl-
edges that Soderberg made a request for Schuppel's per-
sonnel file but asserts that he gave to her the pertinent
portions of the file such as evaluations, the employment
application, and Schuppel's educational history. He also
I Inasmuch as Soderberg handled the grievance on behalf of Schuppel,
another member of the Union's grievance committee handled Stable's
gnevance.
states that when he gave this information to Soderberg,
she expressed no objection to the nature or extent of the
information supplied.
B. The Grievance of Joanne Rosenberg
In February 1980, nurse Rosenberg received a verbal
warning regarding her alleged mismedication of a pa-
tient. According to Soderberg, the warning also indicat-
ed that such errors had been made in the past, an asser-
tion that Rosenberg contested. Rosenberg thereupon
filed a grievance and a step one meeting was held. So-
derberg states that, at the meeting, Supervisor Crocker
explained the reason for the warning and voluntarily
produced, without request, the doctor's order sheet
along with the medication sheet (both of which are part
of the patient's chart),6 to verify the hospital's position
on the discipline. Thus, by comparing the doctor's order
sheet showing the medication ordered and the medica-
tion sheet where the nurse indicated the medicine given,
a comparison of these two documents would prove or
disprove the mismedication contention.
Soderberg testified that, during the step one meeting,
she requested Rosenberg's personnel file because the
latter denied that she had past medication errors. Ac-
cording to Soderberg, in late February a step three meet-
ing was held at which she again requested Rosenberg's
personnel file. She asserts that this request was denied
but that once again the hospital produced, without re-
quest, the doctor's order sheet and the medication sheet
to support its position on the discipline. Subsequent to
this meeting, the Respondent notified Soderberg that it
was not withdrawing the warning. It does not appear
from this record that the grievance was processed fur-
ther by the Union. Smith, on behalf of the Respondent,
denied that Soderberg asked for Rosenberg's personnel
file.
With respect to the request for this personnel file, So-
derberg testified that the hospital maintains a progressive
disciplinary procedure which commences with counsel-
ing and progresses to verbal warnings, written warnings,
suspensions, and leads ultimately to termination. Thus,
the Union asserts that Rosenberg's file was needed
during the handling of her grievance to either verify or
rebut the claim that she had other medication errors. Ac-
cordingly, if the Union had such information, it could
either argue that the warning was too severe a punish-
ment or, alternatively, discourage the grievant from pur-
suing the matter further.'
The patient charts consist of a number of documents which, dunng
the patient's stay at the hospital, are open to hospital employees. Indeed,
nurses are required to review and make entnes in the patient's chart
during the patient's hospital stay. Among the documents comprising a pa-
tient's chart are the fact sheet containing information about the patient,
consent forms for procedures and operations, physical examination re-
ports, progress notes, doctor's order sheets, medication sheets, a medical
history form, laboratory reports, post-operative reports, anesthesia
records, pathology request forms, pathology reports, a vital sign sheet,
and a discharge form. This list of papers is by no means all inclusive and
is merely illustrative of the numerous types of documents that were a
part of a patient's chart
? Although Soderberg testified that the Union has discouraged employ-
ees from taking their grevances to arbitration when it appears that such
Continued
1458
LAGUARDIA HOSPITAL
C. The Grievance of Hya Sender
The facts as presented by Soderberg regarding Sender
essentially parallel the situation with Miss Rosenberg.
She states that Sender received a written warning (as op-
posed to a verbal warning), regarding mismedication.
She also states that at the step one meeting she asked for
Sender's personnel file because Sender denied the hospi-
tal's assertion that she had made similar errors in the
past. Soderberg further testified that at this meeting the
hospital voluntarily, and without request, proffered the
doctor's order sheet and the medication sheet to verify
its claim.
Subsequent to the step three meeting, the hospital noti-
fied Soderberg that it was not retracting the warning and
it does not appear from this record that the grievance
was pursued further by the Union. In connection with
this grievance, Smith denied that Sender's personnel file
was requested.
D. The Grievance of Jacqueline Michel
Michel is an operating room nurse who was suspended
for 2 days because she allegedly refused to carry out an
order that she transport a patient from the operating
room to a patient floor. Since the discipline involved a
suspension, the grievance was initiated at the third step.
According to Soderberg, Michel told her that it was her
understanding that the normal procedure for transporting
patients out of the operating room was for the nurse
from the patient floor to do this.
A few days before the third step meeting was held in
March 1980, Soderberg asked Smith to bring to the
meeting the operation room policy and procedures
manual because that would set forth the duties and func-
tions of the operating room nurses and the past practice
concerning the transportation of patients out of the oper-
ating room. Soderberg states that at the third step meet-
ing she reiterated her request for the manual which was
denied as being irrelevant to the grievance. Following
the meeting, the Respondent denied the grievance and
the Union filed for arbitration on Michel's behalf. Smith
denied that a request was made for the manual.
It is noted that the manual in question is a single
volume book which is kept in the nursing station of the
operating room and is available for inspection by any
nurse." Although it appears that it may not be physically
removed, nothing prevents a nurse from looking at the
manual or making a copy of any of its provisions. There
is no evidence herein that the Respondent refused to
permit anyone from inspecting this manual prior to the
grievance or that it was asked for and denied permission
to make a photocopy of any relevant portion of the
manual.
gnevances were without merit, she also testified that the Union's current
policy is to take any grevance to arbitration if so desired by the emplo)-
ee in question.
I Another copy of the manual is kept in the nursing administrative
office.
E. The Grievances of Parkash Kahara and Linda
Gabriel
On May 15, 1980, these two nurses were assigned to
the 3 p.m. to 11 p.m. shift. On that day, two situations
arose which the Respondent described as emergencies,
one involving a scheduled cesarean section and the other
involving a gunshot wound. Both nurses left the hospital
at the conclusion of their shift, which resulted in their
suspensions because the hospital asserted that, by leaving,
when they were aware that only one operating room
team was coming on duty to relieve them, they aban-
doned their job and professional responsibilities and
acted in a manner which could have had a serious
impact on patient care. Thus, the Respondent took the
position that these nurses, seeing that two patients were
being booked for operations, should have set up the op-
erating room and assisted with the cases even if that
meant staying beyond their scheduled shift.
In relation to these grievances, Soderberg testified that
the nurses claimed that, since the doctor for the expec-
tant mother had not yet arrived, since the gunshot pa-
tient was not yet scheduled for an operation, and since
the on-call nurses had arrived at 10:30 p.m., they were
not needed beyond their normal shift. Soderberg also
states that she was told by Gabriel that, although she
was asked to stay, she left because she did not feel well
and that Kahara asserted that she was not asked to stay.
In May, a grievance was filed at step three concerning
the two suspensions. According to Soderberg, in a tele-
phone conversation with Smith before the meeting, she
asked for, among other things, the production of the pa-
tient's charts and the operating room policy and proce-
dures manual concerning on-call nurses. She states that
she asked for the manual because it would set forth the
functions of the on-call nurses when the evening shift is
about to end and what the procedures would be for the
operating room nurses when there is an emergency case.
As to the patient's charts, Soderberg states that she asked
for these documents, explaining that they would show
when the patients came into the operating rooms, wheth-
er there were nurses present to take over for the sus-
pended nurses, who the doctors were, and if there was a
lack of care for the patients. She therefore asserts that if
the charts for the two patients had shown that the pa-
tients had gone into the operating rooms substantially
later than II p.m., then it could be argued that the emer-
gencies were less critical than asserted by the hospital
and that the concomitant need for the two nurses was
less than claimed.9
With respect to these grievances a step three meeting
was held where Soderberg asserts that she again asked
Smith to produce the information described above.
Thereafter, when the hospital did not retract the suspen-
sions, the Union took the grievances to arbitration. At
the arbitration hearing, the Union subpenaed the manual
and the patient charts. In response to the subpena, the
Respondent produced the manual and turned over the
9 Although it is clear that Soderberg asked for the charts of the two
patients in question, her testimony reveals that the only portion of the
charts that would have been relevant for her purpose would have been
the emergency room sheets and the operating room sheets
1459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
patient charts to the arbitrator for an in-camera inspec-
tion, while asserting that the patient charts should not be
turned over to the Union. '°
Smith does acknowledge that Soderberg requested
production of the patient charts in connection with these
two grievances and that he refused to produce them. As
to the operating room policy and procedures manual, he
testified that this was not requested until after the third
step meeting and until the Union subpenaed it for the ar-
bitration hearing. With respect to the patient charts, he
testified that he refused to produce them stating that
they were not relevant to the grievances. As to the issue
of relevancy, Smith asserts that since the two medical
cases were designated as emergency cases, the only pur-
pose the patient charts would serve would be to deter-
mine if the cases were truly emergency situations which
is not a matter within the purview of nurses to decide.
The issue of confidentiality will be discussed below.
F. The Grievance of Joann Duffy
Joann Duffy received a 2-day suspension for alleged
insubordination in that she refused to take a "floating"
assignment. That is, Duffy, who is regularly assigned to
the delivery room, was asked to take a floating assign-
ment in another part of the hospital and refused to do so.
On May 19, the Union filed a grievance on Duffy's
behalf and in a phone conversation with Smith to set up
a step three meeting, Soderberg asked him to bring that
portion of the health code covering delivery room areas.
She states that when he asked why, she told him that the
code would show that nurses assigned to work in areas
occupied by mothers and newborn infants need to be
cultured" before going to work in these areas if they
have immediately worked in other parts of the hospital.
Thus, according to Soderberg, since Duffy was sched-
uled to work in the delivery room the day after she was
asked to take the floating assignment, her refusal to take
that assignment was explained and excused by reason of
the health code provisions, presumably because an analy-
sis of the culture would not have been completed before
she went back to work in the delivery room area.
Thereafter, the step three meeting was held where So-
derberg reiterated her request for the health code provi-
sions. She states that Smith's response to this request
was, "go get your own health code," an assertion which
is basically admitted by Smith.
G. The Second Grievance of Elizabeth Schuppel
Schuppel received a written warning which was
grieved in April 1980. The warning was in relation to
the hospital's contention that she did not check the iden-
tification bands of a mother and baby with a result
which most parents hope will never occur at a hospital.
In connection with this grievance, Soderberg states that
at the step one meeting she asked for the production of
the patient charts because Schuppel had denied the mis-
'° At the time of the hearing in this case, the arbitration of the Kahara
and Gabriel grievances had not been concluded. It appears that the arbi-
trator reserved decision on the hospital's assertion that the patient charts
should not be turned over to the Union.
" A culture is a process by which it is possible to determine what
germs a person is carrying.
take. In this regard, Soderberg testified that the progress
note in the patient charts of the mother and baby would
have a place where the nurse would have to enter the
band numbers and therefore an examination of the charts
would show if, in fact, the mistake were made. To this
request, she states that the hospital replied that when the
supervisory nurse discovered the mistake by looking at
the baby's chart, she corrected the entry and the identifi-
cation bands. 2
At the third step meeting on this grievance, Soderberg
states that she again asked for the charts of the baby and
mother but that Smith refused to produce them. In this
respect, Smith states that Soderberg did ask to see the
patient charts to ascertain if the supervisor had corrected
the numbers.
H. The Confidentiality Defense
As noted above, the Respondent takes the position that
it is justified in refusing to turn over patient charts be-
cause the information contained therein is confidential
and the production of such records would be a breach of
the patients' right of privacy. In this respect, section
405.25 of the New York State Health Code states, in per-
tinent part:
Patients' rights. (a) The hospital shall establish writ-
ten policies regarding the rights of patients and shall
develop procedures implementing such policies.
These rights, policies and procedures shall afford
patients the right to;
(7) privacy to the extent consistent with providing
adequate medical care to the patient. This shall
not preclude discreet discussion of a patient's case
or examination of a patient by appropriate health
care personnel . . .
(8) privacy and confidentiality of all records pertain-
ing to the patient's treatment, except as otherwise
provided by law or third-party payment con-
tract . . . 13
Apparently in furtherance of the above-quoted statute,
the hospital has promulgated rules regarding the confi-
dentiality of medical records as follows:
"' It appears that in this case one baby was white and the other black.
Therefore there was no real danger that the babies would have gone to
the wrong parents
'3 Also sec. 4504(a) of New York's Civil Practice Law and Rules,
which regulates the procedures for trials in the New York courts, states
in pertinent part:
Unless the patient waives the privilege, a person authorized to prac-
tice medicine, registered professional nursing, licensed practical nurs-
ing, or dentistry shall not be allowed to disclose any information
which he acquired in attending a patient in a professional capacity,
and which was necessary to enable him to act in that capacity. The
relationship of a physician and patient shall exist between a medical
corporation, as defined in article forty-four of the public health law,
a professional service corporation organized under article fifteen of
the business corporation law to practice medicine, and the patients to
whom they respectively render professional medical services.
1460
LAGUARDIA HOSPITAL
LA GUARDIA HOSPITAL
Department of Nursing
CONFIDENTIAI.ITY OF INFORMATION
The Medical Record and its information is to be
safeguarded at all times. Nursing personnel should
exercise care and discretion in the verbal exchange
of information regarding patients' conditions.
Medical records may not be released from the hos-
pital's jurisdiction except by court order, subpoena
or statute. Medical information will not be released
without the patient's or next of kin's written con-
sent.
Medical Records shall be kept within the nursing
station unless they are taken by a member of the
health team to the patient's bedside to a clinical
conference or accompanying the patient for diag-
nostic or consultative services. If the chart is re-
moved for conference purposes, the Head Nurse or
Charge Nurse should be notified.
Records of previous admissions are kept within the
nurses' station in a special folder. They should be
returned to Medical Records within twenty-four
hours.
LA GUARDIA HOSPITAl POLICY MANUAL
MEDICAL RECORDS-2
TITLE: RELEASE OF MEDICA. RECORDS-A DECEASED
PATIENT
The medical records of a deceased patient are to
be kept confidential in the same manner as those of
any other patient. Such records shall be released
only in accordance with the process of law or the
following procedure:
1. Where an estate is being probated, a copy of
the letters of administration or letters testamentary
should be requested by the Medical Records De-
partment. Authorization for release of the records
will be honored only when it comes from the ad-
ministrator or executor of the estate.
2. Where there is to be no probate of estate, the
Medical Records Department shall request affida-
vits from the next of kin and, where applicable, an
attorney. The attorney's afffidavit should indicate
that to the best of his/her knowledge, no estate is
going to be probated. The affidavit of the next of
kin should identify the affiant, should set forth
his/her realationship to the deceased, should state
that to the best of his/her knowledge he/she is the
next of kin that and acting as such he/she author-
izes the release of the records.
* * * * *
MEDICAL RECORDS-I
TITLE: CONFIDENTIALITY OF PATIENT RECORDS
Records concerning patients are considered to be
confidential. It is the obligation of all Hospital em-
ployees to protect the privacy of Hospital patients
including out-patients as well as in-patients.
Employees may not discuss or divulge informa-
tion contained in Hospital records with any unau-
thorized person. The privilege of authorizing release
of Hospital records or information contained therein
belongs to the patient. No one except authorized
Hospital personnel is to be permitted to examine pa-
tient's records in the absence of written authoriza-
tion of the patient.
Records are not to be removed from the Hospital
without the express approval of the Hospital Medi-
cal Records Librarian.
In opposition to the claimed confidentiality of medical
records (namely, patient charts), the General Counsel
and the Charging Party offered evidence showing that,
in the past, the hospital has proffered parts of a patient's
chart in those situations where it desired to prove the
validity of discipline imposed, for example in mismedica-
tion situations. They also point out that patient charts are
by their nature not confidential vis-a-vis the nurses who
are required to look at and make entries in them. Finally,
they argue that even under New York law such medical
records are not absolutely confidential, and that the pa-
tient's right of privacy will not prevail where such
records are otherwise producible by law. They therefore
argue that the obligation to furnish relevant medical
records under the National Labor Relations Act must
override the interest of confidentiality as expressed in
New York's statutes.
V. ANALYSIS
It is well settled that an employer has an obligation,
under Section 8(a)(5) of the Act, to comply with a
union's request for information which is relevant to the
processing of grievances or the administration of a col-
lective-bargaining agreement unless there is a showing
that the information requested is unduly burdensome, le-
gitimately confidential, privileged in nature, or has been
waived. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432
(1967); Detroit Edison Co. v. N.L.R.B., 440 U.S. 301
(1979); Tom's Ford, Inc., 253 NLRB 888 (1980). Further,
as to the question of relevancy, the criteria used is
whether the information requested is probably or poten-
tially relevant. Therefore, it need not be shown that the
information will aid the union in winning the grievance
so long as it is relevant to the subject matter in dispute.
Indeed, the fact that the information, if produced at the
early stages of grievance discussions would tend to estab-
lish that a grievance is without merit, equally serves a le-
gitimate function of collective bargaining as such disclo-
sure would thereby enable a union to determine which
grievances should be pursued to arbitration and which
should be dropped. In this respect the Supreme Court in
N L. R.B. v. Acme Industrial Co. stated:
Arbitration can function properly only if the griev-
ance procedures leading to it can sift out unmeritor-
ious claims. For if all claims originated as griev-
1461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ances had to be processed through to arbitration,
the system would be woefully overburdened.
In relation to the case at hand, it is also noted that, al-
though I must evaluate the nature of the grievances so as
to be able to ascertain the relevancy of the information
requested, it is not my purpose or function to evaluate
the merits of any particular grievance or what ultimate
impact the information requested would have had if the
grievance had been presented to an arbitrator.
Before applying the legal principles to the facts of this
case, it is concluded that Soderberg's version of the facts
will be credited. In this respect, Soderberg impressed me
with her candor and her testimony was marked by a
high degree of detail and particularity. Accordingly, I
shall credit her testimony regarding the various meetings
and conversations she had with the Employer's agents
when grievances were discussed, where information was
requested, and where such requests were denied.
With respect to the request for the personnel files of
Schuppel and Stables, in relation to the former's griev-
ance over a promotion, it is noted that pursuant to sec-
tion 4.11 of the collective-bargaining agreement then in
effect (the 1977-80 contract), promotions were to be
guided by seniority if other factors such as abilities,
qualifications, and potential were approximately equal.
Therefore, it is my opinion that the personnel files of the
two competing nurses would have been relevant to the
grievance. The fact that the Respondent, after the step
three meeting, reversed its decision and granted the pro-
motion to nurse Schuppel does not, in my opinion, make
its refusal to furnish the personnel files moot, if for no
other reason than an examination of those files might
have led the Union to forego its pursuit of Schuppel's
grievance which by its nature was to the detriment of
nurse Stables who is also a member of the bargaining
unit to whom the Union owed a duty of fair representa-
tion.
The relevancy of the personnel files of Joanne Rosen-
berg and Hya Sender is somewhat more problematical.
In those two grievances there did not appear to be any
dispute as to the facts giving rise to the disciplinary ac-
tions taken by the Respondent. Yet here too, I can see
the relevancy of this information which was not sought
to prove or disprove the hospital's contention that these
nurses had made medication errors, but to rebut or con-
firm contentions that the nurses had made similar mis-
takes in the past. Therefore, given the fact that the Re-
spondent maintains a progressive disciplinary system, in-
formation in the personnel files such as past counselings
or warnings would have been relevant to the question of
the severity of the discipline imposed. For if the files of
the nurse had shown no prior errors or disciplinary ac-
tions, the Union might have been in a position to plausi-
bly argue that the punishments were too severe. On the
other hand, if the files did show past disciplinary actions
or past errors, the Union would have been in a position
to discourage the grievants and to inform them that fur-
ther processing of their grievances would have been
futile.
It is noted that all three grievances wherein personnel
files were requested arose and were processed prior to
the execution of the 1980-82 contract. Therefore, section
14.07 of the most recent contract, which provides that an
employee may review and copy his or her personnel file
in cases of suspensions or discharges, was not applicable.
Accordingly, at the time these grievances arose and
when the request for the personnel files were made,
there was not, in effect, any provision of a collective-bar-
gaining agreement which could have arguably been con-
strued as a waiver. I therefore conclude that, at the time
the Respondent refused to furnish the personnel files re-
quested by the Union, it violated Section 8(a)(5) of the
Act. However, inasmuch as there is no evidence to es-
tablish that since the execution of the 1980-82 contract
the Union has sought personnel files in relation to griev-
ances, it is not necessary for me to decide whether sec-
tion 14.07 of the current contract should be construed as
a waiver of the Union's right to obtain such personnel
files in cases other than suspensions and discharges.
I shall next turn to the refusal by the Respondent to
bring to a grievance meeting certain sections of the
health code as requested by Soderberg in relation to the
grievance of Joann Duffy. As noted above, the health
code is a public statute which is published and therefore
available to all persons. As such, it is not information
which is generated by the hospital and does not appear
to me to be the type of factual information which the
Board has required companies to furnish to Unions.
Indeed, the request here was for the Respondent to pro-
vide a copy of those sections of the health code relating
to the delivery rooms, a request which was tantamount
to a demand that one side do legal research for the
other. In these circumstances, I do not conclude that the
Respondent violated the Act by denying this request.
As to the request that the Respondent bring to certain
grievance meetings a copy of the operating room policy
and procedures manual, I do not believe that the hospital
has violated the Act. It is clear that copies of this manual
are kept in two places, one of which is, at all times, ac-
cessible to the nurses and therefore to the members and
officers of the Union. Moreover, there is no rule or pro-
hibition preventing any nurse from inspecting the manual
or making copies of its relevant portions. As the informa-
tion contained in this manual was always accessible to
the Union, and as there is no evidence to suggest that the
Respondent refused permission to inspect or copy rele-
vant portions of the manual, I do not believe that the in-
formation contained therein was withheld. I therefore
conclude that the Respondent, in this respect, did not
violate the Act.
Finally, we must deal with the requests for patient
charts which were made in connection with the griev-
ance of Parkash Kahara, Linda Gabriel, and Elizabeth
Schuppel.
The second grievance of Schuppel involved a situation
where she allegedly gave the wrong identification bands
to a mother and a baby, a contention which she denied.
The progress notes, which are part of the patient charts,
would show what numbers she entered thereon at the
time, and the hospital's assertion that the supervisory
nurse changed the numbers in the progress notes would
therefore tend to confirm or rebut the contention that
1462
LAGUARDIA HOSPITAL
Schuppel made the mistake. Accordingly, it is my opin-
ion that only the progress notes portion of the patient
charts would have been relevant to this particular griev-
ance and that the remaining portions would have had no
bearing on the matter in dispute. In this regard, it is con-
ceded by Soderberg that she asked for the patient charts
and did not limit her request to the relevant portion of
the charts.
In the cases of Kahara and Gabriel, it appears that the
main contention of the Union regarding their suspensions
was that the "emergencies" were not so severe as to
warrant the discipline imposed when these two nurses
left their positions at the end of their shifts. Without pur-
porting to determine the merits of the discipline imposed,
it seems to me that the emergency room sheets and the
operating room sheets that would indicate the time at
which the two patients were brought in for operations
would have been relevant to the grievances, at least inso-
far as the extent to which punishment was appropriate in
the circumstances. Here too, Soderberg's request was for
the patient charts and she did not limit her request to
those portions of the charts which would have been rele-
vant to the grievances.
While it has been noted above that Soderberg asked
for the patient charts and did not specify what portions
of these charts she sought as being relevant to the griev-
ances, it nevertheless seems to me that the Respondent
cannot contend, in the circumstances herein, that her re-
quests were overly broad or were insufficiently specific.
In both instances, Soderberg, during discussions of the
problems giving rise to the discipline imposed, explained
the purpose of the information sought and thereby indi-
cated the type of information desired. Moreover, it is
abundantly clear that the participants in the grievance
meetings were knowledgeable as to the contents of pa-
tient charts and fully understood the types of information
contained in the various documents comprising such
charts. Therefore, when Soderberg asked for disclosure
of the mother's and baby's charts to verify or rebut the
hospital's contention regarding Schuppel, the people
present at the meeting would have understood that the
relevant documents would be the progress notes where
the nurse's entry would have been written. Similarly, in
relation to the cases of Kahara and Gabriel, since the dis-
cussion at the grievance meeting centered on when the
patients went into the operating rooms, the people pres-
ent would have understood that the emergency room
sheets and operating room sheets were the documents
containing this information and therefore constituted the
relevant part of the patient's charts. Further, in all of
these grievances, the Respondent did not ask Soderberg
to specify or identify which portions of the patient's
charts she desired, but rather refused her request on the
grounds of relevancy.
The Respondent argues that even if certain parts of
the patient charts were relevant to the grievances, its re-
fusal to furnish such information was justified because
they are medical records which are confidential. In this
regard, the Board has recognized that documents con-
taining medical information and which set forth the iden-
tity of persons having certain medical disorders have a
"legitimate aura of confidentiality." Johns-Manville Sales
Corporation, 252 NLRB 368 (1980); United Aircraft Cor-
poration, 192 NLRB 382, 390 (1971). Thus, in situations
where medical records are sought, it becomes necessary
to balance "the Union's need for the information against
any legitimate assertion of confidentiality by the employ-
er." Johns-Manville Sales Corporation, supra.
Nevertheless, although it is recognized that the docu-
ments comprising a patient's chart have a degree of con-
fidentiality which is also provided for by the laws of the
State of New York, it also must be said that this confi-
dentiality is not construed as being absolute. Thus, pursu-
ant to the health code, the patient's right of privacy is
counterbalanced when production of such records are
"otherwise provided by law or third party contract."
Moreover, while such records may be confidential vis-a-
vis the general public, it is clear that these records are
not intended to be confidential vis-a-vis the appropriate
health care personnel, including registered nurses, who
take care of patients during their stay at a hospital and
whose observation, analysis, review, and entries on the
patients' charts are a necessary part of the treatment. As
such, it may be said that a patient entering a hospital
gives his implied consent to appropriate medical person-
nel to make and look at records which are necessary for
his care. 4
Given the less than absolute nature of the patient's
right to privacy, it seems to me that when a dispute
arises concerning the discipline of nurses for errors in pa-
tient care, and where a particular portion of a patient's
chart would be relevant to a grievance concerning such
discipline, either to win the grievance or to dissuade the
employee from taking her case to arbitration, that the
Union's right to such information must outweigh the pa-
tient's right of privacy. This is especially true in case
where the document requested is one which contains an
entry made by the nurse who has been disciplined and
where the entry, as in the case of Schuppel, would tend
to either confirm or rebut the error alleged. Indeed, this
principle is one which has been recognized by the Re-
spondent in the past because at other grievance meetings
it has not been shy about breaching the confidentiality of
patient records when it voluntarily tenders to the Union
doctor's order sheets and medication sheets to prove al-
leged medication errors made by nurses.
In light of the above, it is concluded that the Respond-
ent by refusing to furnish to the Union, at the grievance
meetings, relevant portions of patient charts, has violated
Section 8(a)(l) and (5) of the Act.'5 However, in reach-
'' Thus, even under the New York health code, a patient's right of pri-
vacy exists only to "the extent consistent with providing adequate medi-
cal care to the patient," and is not intended to "preclude a discreet dis-
cussion of a patient's case ... by appropriate health care personnel"
Sec. 405.25 (7) of the health code.
" The Respondent's contention that I should defer this matter to the
pending arbitration proceedings is rejected While it is true that the arbi-
trator in the cases of Kahara and Gabriel is being asked to rule on wheth-
er the Respondent is obligated to turn over the patient charts pursuant to
a subpena, the issue in that case is not whether the Union has a nght to
relevant portions of the patient charts prior to arbitration at the prelimi-
nary steps of the grievance procedure. As such, the issue before the arbi-
trator does not encompass the issues in this case and his decision on the
subpena question would not resolve whether the Union has a statutory
right to such information pursuant to the National Labor Relations Act
Cf. Internarional Hlarvester Company, 241 NLRB 600 (1979).
1463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing this conclusion, it is not my intention to require the
Respondent to turn over to the Union the entire patient
chart when this is requested, but only those limited docu-
ments which are necessary and relevant to the grievance
under discussion. Further, in order to insure the general
confidentiality of such medical records vis-a-vis persons
who have no legitimate interest in these records, it
should be understood that the Union's agents, officers,
members, and attorneys are not to divulge this informa-
tion to any other persons who are not involved in or
necessary to the resolution of the grievance in question."
CONCL USIONS OF LAW
1. The Respondent is an employer engaged in com-
merce 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.
2. The Union is a labor organization withing the mean-
ing of Section 2(5) of the Act.
3. The Union is and has been at all times material
herein the exclusive collective-bargaining representative
within the meaning of Section 9(a) of the Act, of certain
employees in an appropriate unit set forth below:
All full-time and regular part-time registered pro-
fessional nurses and other persons lawfully author-
ized by permit to practice as registered nurses in-
cluding staff nurses, team leaders, assistant head
nurses, head nurses, infection control nurses, utiliza-
tion review nurses, and nurse anaesthetists em-
ployed by Respondent at its Forest Hills location,
exclusive of the directors of nurses, assistant direc-
tors of nurses, associate directors of nurses, nurse
supervisors, clinical supervisors, nurse anaesthetist
supervisors, emergency room supervisors, recovery
room supervisors, inhalation therapists, and all other
employees, guards and supervisors as defined in the
Act.
4. By failing and refusing to furnish to the Union per-
sonnel files as requested in relation to the grievances of
Elizabeth Schuppel and Joanne Rosenberg, the Respond-
ent has violated Section 8(a)(l) and (5) of the Act.
5. By failing and refusing to furnish to the Union cer-
tain relevant portions of patient charts in relation to the
grievances of Parkash Kahara, Linda Gabriel, and Eliza-
beth Schuppel, the Respondent has violated Section
8(a)(l) and (5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Except to the extent heretofore found, the Respond-
ent has not violated the Act in any other manner."
l I will note here that it would be prudent, in the future, so as to
avoid misunderstandings or confusion, that when the Union requests in-
formation contained in patient charts, it specify what documents it seeks
and confirm such requests in writing. Although not strictly necessary,
such a procedure would tend to avoid misunderstandings.
1; This last conclusion, however, does not affect the settlement agree-
ment executed by the parties as to the other allegations of the consoli-
dated complaint which were not litigated in this proceeding. It is noted
that the settlement agreement contains a nonadmissions clause.
Therefore, upon the foregoing findings of fact and
conclusions of law, and the entire record herein, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDERt
The Respondent, La Guardia Hospital-H.I.P. Hospital,
Inc., Forest Hills, New York, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing or failing to bargain in good faith with
the Union by refusing to furnish to the Union informa-
tion relevant to the processing of grievances or the ad-
ministration of the collective-bargaining agreement.
(b) In any like or related manner interfering with, re-
straining or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act or in
any like or related manner refusing to bargain in good
faith with the Union as the exclusive collective-bargain-
ing representative of the employees in the appropriate
unit.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, forthwith furnish to the Union the
personnel files of Elizabeth Schuppel, Leslie Stables, and
Joanne Rosenberg.
(b) Upon request, forthwith furnish to the Union the
progress notes portion of the patient charts which are
relevant to the grievance of Elizabeth Schuppel and the
emergency room sheets and operating room sheets rele-
vant to the grievances of Parkash Kahara, and Linda Ga-
briel; provided however that upon receipt of such medi-
cal records the Union, its officers, agents, members, and
attorneys shall not divulge such information to any other
persons who are not involved in or necessary to the res-
olution of the grievances in question.
(c) Post at its place of business in Queens, New York,
copies of the attached notice marked "Appendix." 9
Copies of the notice on forms provided by the Regional
Director for Region 29, after being duly signed by the
Respondent's representative, shall be posted by it in con-
spicuous places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent to insure that the said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.20
l In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
'9 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
:o In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director
for Region 29, in writing within 10 days from the date of this Order,
what steps the Respondent has taken to comply herewith."
1464
LAGUARDIA HOSPITAL
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations not specifically
found herein or remedied by the aforesaid settlement
stipulation.
1465