Lenox Hill Hospital

National Labor Relations Board - Board Decisions

Mar 29, 1999

327 N.L.R.B. 1065 (N.L.R.B. 1999)

LENOX HILL HOSPITAL 1065
Lenox Hill Hospital and New York Professional
Nurses Union. Case 2–CA–30976
March 29, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On December 16, 1998, Administrative Law Judge
Michael A. Marcionese issued the attached decision.
The Respondent filed exceptions and a supporting brief.
The General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this matter to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Lenox Hill Hospital, New
York, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Lauri Kaplan, Esq., for the General Counsel.
Joel E. Cohen, Esq. (McDermott, Will & Emery), for the Re-
spondent.
Henry T. Berger, Esq. (Fisher, Fisher & Berger), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge.
This case was tried in New York, New York, on October 26,
1998. The charge was filed by New York Professional Nurses
Union (the Union), on November 26, 19971 and the complaint
was issued April 28, 1998. The complaint, as amended at the
hearing, alleges that the Respondent, Lenox Hill Hospital, vio-
lated Section 8(a)(5) and (1) of the Act, since on or about Sep-
tember 17, by failing and refusing to furnish the Union with
information it requested orally and in writing. The Respondent,
by its Answer filed June 2, 1998, admits, inter alia, the Section
9(a) status of the Union and the receipt of the Union’s requests
for information, but denies that the information is necessary for,
and relevant to, the Union’s performance of its duties as collec-
tive-bargaining representative of certain of the Respondent’s
employees, denies failing and refusing to furnish information,
and denies the commission of any unfair labor practice.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative judge’s credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
1 All dates are in 1997 unless otherwise indicated.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, is engaged in the
operation of a hospital providing patient care, treatment, and
related services at its facility in New York, New York. The
Respondent annually derives gross revenues in excess of $1
million and purchases and receives at its New York facility
products, goods, and materials valued in excess of $5000 di-
rectly from points outside the State of New York. The Respon-
dent admits and I find that it is an employer engaged in com-
merce 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.
II. ALLEGED UNFAIR LABOR PRACTICES
Since 1985, the Union has represented a unit of all full-time
and regular part-time registered nurses employed by the Re-
spondent. The current collective-bargaining agreement is effec-
tive by its terms until October 31, 2002, unless the Union exer-
cises its exclusive right to reopen the contract at the end of the
third year, i.e., October 31, 2000. Eileen Toback has been the
executive director of the Union since December 1996. She is
responsible for, inter alia, contract administration, including
representing the unit employees in the grievance procedure.
There is no dispute that the parties define a full-time em-
ployee as one who works 150 hours in a 4-week time block.
Full-time nurses generally work three shifts for the first 3
weeks and four shifts for the fourth week in a 4-week schedul-
ing block. The Respondent’s nurses typically work 11-1/2-hour
shifts. There are four different classifications of “regular part-
time” nurses, based on the percentage of the full-time schedule
that they work, i.e., .8, .6, .4, and .2. Under the collective-
bargaining agreement, a part-time nurse who works a total of
less than one-fifth of the regular full-time workweek (i.e., less
than a .2 part-time employee) is excluded from the unit.2 One-
fifth of the regular full-time workweek is 30 hours over a 4-
week period. A full-time or regular part-time nurse is generally
assigned to a specific unit in the hospital.
It is also undisputed that the Respondent has historically
supplemented its unit employees with “per diem” nurses who
are not part of the bargaining unit. Although the collective-
bargaining agreement provides that the Respondent inform the
Union of the rate of pay that per diem nurses receive, there are
no contractual restrictions on the Respondent’s use of per di-
ems. It is also undisputed that the Union has never sought, dur-
ing contract negotiations, either inclusion of per diems in the
unit or restrictions on their use. The contract contains no spe-
cific definition of “per diem nurses.”3
2 The collective-bargaining agreement also excludes “temporary em-
ployees” from the unit. Temporary employees are defined, at art. VIII,
as individuals who are hired for up to a 3-month period and are so
informed when hired, for a special project or to replace a unit employee
on leave or vacation. Under the contract, such temporary employees
become covered by the contract if they are still employed after the
expiration of the 3-month period. No party contends that the per diem
employees at issue here are “temporary employees” within the meaning
of the contract.
3 The Respondent offered into evidence a copy of a March 1987 ar-
bitration award involving a different union and employer resolving a
327 NLRB No. 181
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
There is also no dispute that the Respondent’s practice has
been to utilize per diem nurses on an “as-needed basis” to fill
holes in the schedule. The need could result from a unit em-
ployee taking sick leave or vacation time on short notice. A per
diem nurse might also be called in to alleviate a short-term
shortage of coverage caused by an increase in either the patient
census, or the acuity level of the patients, i.e., the level of sick-
ness of patients on a particular unit. Regular part-time employ-
ees are hired for a set number of hours and the Respondent
must provide the employee with those hours and the employee
must schedule herself for at least those hours in each schedul-
ing block. In contrast, a per diem nurse can accept or decline
any hours offered by the Respondent. Although theoretically
there would be no repercussions if a per diem nurse declined a
shift, as a practical matter, a per diem who declined too often
would not likely be asked to work again.
Toback testified that she was informed by several union
delegates, during a regular monthly delegate meeting in the
summer 1997, that some per diem nurses were working regular
weekend shifts in the emergency room, that a unit nurse whose
request to work part-time had been denied quit and returned as
a per diem in ambulatory services and that, in other units, per
diems were being scheduled weeks and months in advance and
that the units would not be able to function without these per
diems on the schedule. Toback believed that this represented a
change in the Respondent’s established practice with respect to
utilizing per diem nurses and that some of the per diems were
more like regular part-time employees who should be included
in the unit than per diem employees. Toback also expressed the
concern that the Respondent might be utilizing per diems in
lieu of filling a vacancy in a unit with a regular bargaining unit
employee.
Toback testified that, on September 17, based on these re-
ports, she sent Marge Kilfeather, the Respondent’s assistant
director of nursing/labor relations, a letter requesting informa-
tion to evaluate the reports that she had received from the dele-
gates in order to determine whether a grievance should be filed.
Specifically, the letter requested the names of the per diem
nurses who have worked more than 12 shifts in the last 6
months; the units to which these nurses were assigned; and the
shifts these nurses worked. The letter concluded by inviting
Kilfeather to contact Toback if she had any questions regarding
the request. There is no dispute that the Respondent did not
respond to this letter.

grievance which that union had filed seeking inclusion of a per diem
employee in that bargaining unit. The Respondent argues that this
award was relevant to the issues here because the language in the con-
tract at issue there was similar to the language in the collective-
bargaining agreement between the Respondent and this Union. I sus-
tained the General Counsel’s objection to receipt of this document at
the hearing, finding that it had no relevance to the issues before me. In
his brief, Respondent’s counsel asked that I take judicial notice of this
decision, arguing that failure to do so would be an abdication of my
responsibility to assess the relevance of the information requested by
the Union. I adhere to my ruling for the reason that the issue before me
is whether the information requested by the Union in 1997 was relevant
to and necessary for its performance of its duties as the bargaining
representative of this unit. The relevance and need for the information
must be assessed in light of the parties’ collective-bargaining agree-
ment as it has been interpreted and applied by the parties. A 10-year-
old arbitration award involving different parties would shed little or no
light on that issue.
According to Toback, she called Kilfeather on October 27 to
followup her request for information. Kilfeather apologized for
not responding. She told Toback that the person who could get
the information had been on vacation when the letter was re-
ceived and that Kilfeather had forgotten about it by the time she
returned. Toback recalled that Kilfeather also asked why To-
back wanted the information and Toback told her that she
wanted to know how often per diems worked. Kilfeather said
that she would get back to Toback.
Toback sent another letter to Kilfeather on October 27, after
their telephone conversation, reiterating the request for infor-
mation she had made in the September 17 letter. Kilfeather
responded, by letter dated November 3, that because per diem
nurses are not included in the bargaining unit under the collec-
tive-bargaining agreement, the Respondent was not obligated to
provide the information the Union requested. No other grounds
for refusing to furnish this information were asserted.
On December 23, Toback filed a class action grievance at
step three of the grievance procedure, signed by the Union’s
president, Maureen McCarthy, and requested a meeting to dis-
cuss the grievance. The grievance asserted that the Respondent
was violating the contract’s recognition clause as well as other
articles regarding wages and benefits, with respect to employ-
ees working at least one-fifth of the regular full-time work
week, including employees designated as “per diem” by the
employer. As a remedy, the Union requested that the contract
be applied to all employees working at least a one-fifth sched-
ule. A meeting to discuss this grievance was scheduled for
January 21, 1998, at the hospital.
At the January 21 meeting, the Union was represented by
Toback, McCarthy and Vice President Kathy Flynn and the
Respondent by Erin O’Connor, vice president of human re-
sources, Mary Ann Bodee, director of labor relations, and Kil-
feather. McCarthy explained that the grievance was filed in
response to the reports received from union delegates described
above, stating that these reports indicated that per diems were
not being utilized as they had been in the past. According to
Toback, O’Connor was receptive to the Union’s arguments,
stating that she had looked at the numbers and that there were
some per diems that were being used quite often. O’Connor
then discussed where the line should be drawn between per
diems and unit employees, without offering any specific pro-
posals. The union representatives responded that they could not
discuss such a proposal without getting the information to show
the frequency or infrequency of per diem use and the units they
were working on. The meeting ended with no resolution of the
grievance or the information request. Toback’s testimony re-
garding this meeting was not contradicted by O’Connor, the
Respondent’s sole witness.
On February 4, 1998, the Union received the Respondent’s
written response to the grievance. In that response, Bodee
summarized the discussions which had taken place at the Janu-
ary 21 meeting, including the discussion regarding how to de-
termine when a per diem changes status from per diem to regu-
lar part-time. Bodee wrote as follows:

In order to identify per diem RNs who may be regular
part-time employees, actual hours worked would have to
be retroactively calculated on prior work schedules since,
it is not possible to determine in advance eligibility for BU
[bargaining unit] status.
We believe the contract language does not address
when and if a per diem changes status to a part-time with a
LENOX HILL HOSPITAL 1067
regular work schedule. The Hospital’s practice of hiring
and scheduling per diem RNs has been consistent during
the term of our CB relationship, (i.e., that all per diems
were excluded). However, in order to try to settle the mat-
ter the Hospital would like to propose that per diem RNs
who have consistently and regularly worked .2 or more of
a regular work week every week for the past 12-months
will be included in the bargaining unit. However, not all of
the terms and conditions of the CBA will apply. Obviously
this proposal warrants further discussion. The Hospital
would like to have a second meeting with regards to the
above.4

On March 6, 1998, Kilfeather provided Toback with a chart
purporting to show individual per diem utilization on a monthly
basis over a 12-month period as a percentage of a regular full-
time schedule. The monthly information was provided for all
per diems who had averaged one-fifth of a full-time schedule
over 12 months. This chart did not identify the individual per
diems by name, nor did it disclose the shifts or units they had
worked during the period. Toback testified that the Union could
not determine which of these per diem employees should or
should not be covered by the collective-bargaining agreement.
By letter dated March 10, 1998, Toback informed Kilfeather
that the chart she provided on March 6 was not responsive to
the Union’s September 17 and October 27 requests for informa-
tion. In the letter, Toback asserted that, because the Respondent
used an annual average as a cutoff, a per diem nurse who
worked one 8-hour shift per week every week except for a 1-
week vacation would not be included in the data provided, nor
would a per diem who commenced work during the year. To-
back also informed Kilfeather that, without the names of the per
diem nurses, the Union would not be able to verify the informa-
tion provided. Toback concluded her letter by reiterating her
requests for the names of the per diems who worked 12 shifts
or more in the preceding 6 months and the units and the shifts
they were assigned. The Respondent did not respond specifi-
cally to this letter. O’Connor testified that, during a telephone
conversation with Toback, O’Connor offered to have a neutral
third party verify the information on the chart, in lieu of dis-
closing the names to the Union. According to O’Connor, To-
back declined this offer. Toback testified that she could not
recall such an offer ever being made. I credit Toback, whom I
found to be a generally more credible witness, in this regard.
O’Connor’s testimony was generally not specific regarding the
communications and meetings between the parties. Instead, her
testimony reiterated the positions taken by the Respondent on
the relevance and necessity of the information and the asserted
justifications for not furnishing it.
On May 6, 1998, during a labor/management meeting at the
hospital, the grievance and the Union’s information request
were again discussed. The Union’s president, McCarthy, re-
newed the request for information. Rather than respond specifi-

provided.
4 The Respondent objected to receipt of this document and testimony
regarding what transpired at the January 21 meeting on the grounds that
such evidence was inadmissible under Rule 408 of the Federal Rules of
Evidence. I overruled the objection on the grounds that this evidence
was not being offered to prove that the Respondent had violated the
collective-bargaining agreement as alleged in the grievance. Rather, the
evidence was offered by the General Counsel to place the Union’s
information request in the context of the discussions related to the
pending grievance to show that the requested information was relevant.
This evidence is admissible under FRE 408 for such a purpose.
cally, O’Connor raised the issue of what formula to use to de-
termine at what point a per diem becomes a regular part-time
employee. There was no resolution of the grievance at this
meeting. After the meeting, on May 13, Kilfeather faxed to the
Union another chart showing monthly utilization of per diems
by unit within the hospital. According to Toback, O’Connor
had referred to this information during the meeting. This chart
does not identify individual per diem nurses, but only shows
total hours used in each department. Toback testified that the
Union could not determine from this information how many
hours any individual per diem worked, or whether there was
any regularity or consistency to the individual per diems as-
signment. O’Connor conceded on cross-examination that it
could not be determined from any of the information provided
by the Respondent whether any per diem employees worked
more than .2 of the regular workweek in every week in the
previous 12 months, the formula O’Connor proposed to resolve
the grievance.
On May 14, the Union officially responded to the Respon-
dent’s February 4 response to the class action grievance, stating
that the issues remained outstanding and that, absent a change
in the Respondent’s position, the Union would pursue the
grievance under the collective-bargaining agreement. By letter
dated May 27, O’Connor summarized the Respondent’s posi-
tion regarding the grievance and the information request.
O’Connor advised the Union that the information already pro-
vided was sufficient and satisfied the Respondent’s obligation
to provide information regarding nonunit employees. O’Connor
asserted further that the Union’s request for detailed informa-
tion for each per diem nurse was overly burdensome and that
such information would not be provided. O’Connor asked the
Union for a response to the recent discussion on how to meas-
ure per diem utilization for purposes of inclusion or exclusion
under the contract, stating her belief that both parties agreed
that a week-by-week measure of exclusion/inclusion is
unrealistic. O’Connor concluded by stating the Respondent’s
position that “the definition of a per diem RN, excluded from
the bargaining unit, rests not only on a measure of time worked,
but also on the parties traditional understanding of the
attachment of per diem staff to the employer and their treatment
as non-bargaining unit employees.” Toback testified that the
May 27 letter was the first time that the Respondent took the
position that complying with the Union’s information request
would be unduly burdensome. O’Connor testified, without
specifics, that she always discussed the burden of complying in
meetings and discussions with the Union. I credit Toback in
this regard. There have been no further substantive discussions
between the parties regarding the grievance since May 27 and
no further information has been
The Respondent offered testimony from O’Connor regarding
the burden of gathering the specific information requested by
the Union. According to O’Connor, the only way to determine
which shifts and units individuals worked during the previous
six months would be to manually review the daily schedules
showing who actually worked and cross-referencing to a list of
per diems to determine whether the individuals were regular
employees or per diems. Because the Respondent has 35 units
on which unit employees work and each unit has at least two
shifts a day, O’Connor estimated it would take a year and cost
the Respondent $218,000 to gather the information requested
by the Union. O’Connor conceded that the Respondent never
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
offered to let the Union review the schedules to gather the in-
formation itself.
At the hearing, O’Connor also testified that she did not want
to disclose the names of the per diem employees to the Union
because it is “her policy” that such information is confidential.
Although at first acknowledging that the Respondent has no
policy prohibiting disclosure of this information to the Union,
she later claimed that the Respondent does have a general pol-
icy regarding privacy of employee information. No written
confidentiality policy was submitted into evidence at the hear-
ing and O’Connor admitted that she did not furnish any such
policy in response to a subpoena from the General Counsel
requesting such a document. There is no evidence that the Re-
spondent ever asserted confidentiality as a basis for denying the
Union’s request for information during the meetings and corre-
spondence between the parties.
Finally, O’Connor testified that, at a meeting in her office in
May 1998, she observed Toback with a folder labeled “per
diem organizing drive.” There is no evidence that the Respon-
dent raised this issue with the Union as a reason for not furnish-
ing the information which the Union had been requesting since
September.
The parties agree that an employer has a duty under the Act
to furnish its employees’ statutory bargaining representative
with requested information that is relevant to, and necessary
for, the proper performance of the union’s statutory duties as
exclusive collective-bargaining representative of the employees
and that the employer’s duty extends to furnishing information
requested during the term of a collective-bargaining agreement
for the purpose of administering and policing the agreement.
NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967).
The parties also agree that, when the requested information
relates to nonbargaining unit employees, the Union must dem-
onstrate the relevance of the information. United Graphics, 281
NLRB 463, 465 (1986), and cases cited therein. The parties
disagree whether the Union has met its burden here. In addi-
tion, the Respondent asserts that, even if the information is
relevant, the Respondent satisfied its statutory obligation by
furnishing the two charts showing hours worked by individual
per diems, with the names deleted, and per diem usage by de-
partments and that to require any further production of informa-
tion would be unduly burdensome and violate the confidential-
ity rights of the per diem employees. Finally, the Respondent
argues that the Union wants the names of the per diem nurses
so that it can organize them and that it has no duty to assist the
Union in these efforts.
The Board uses a broad, discovery-type standard in deter-
mining relevance in information requests cases, including those
in which a special showing of relevance is necessary. Potential
or probable relevance is sufficient to give rise to an employer’s
obligation to provide information. Shoppers Food Warehouse,
315 NLRB 258, 259 (1994), and cases cited therein. Moreover,
the Board does not pass on the merits of the Union’s claim that
the employer has breached the collective-bargaining agreement
in determining whether information related to the processing of
a grievance is relevant. Id. Contrary to the Respondent’s argu-
ment, the Union’s burden is not a heavy one. Leland Stanford
Jr. University, 262 NLRB 136, 139 (1982), enfd. 715 F.2d 473
(9th Cir. 1983). The Board has held that a union satisfies its
burden when it demonstrates a reasonable belief supported by
objective evidence for requesting the information. The union is
not required to show that the information which triggered its
request was accurate or ultimately reliable, and the union’s
information request may be based on hearsay. Shoppers Food
Warehouse, supra at 259 and cases cited therein.
In the instant case, I find that the General Counsel has dem-
onstrated the relevance of the information requested by the
Union. Toback testified that she requested this information after
receiving specific reports from union delegates indicating a
change in the Respondent’s practice of utilizing per diem
nurses. Although the delegates themselves did not testify, no
adverse inference should be drawn from their failure to appear.
The Union did not have to prove that in fact there had been a
change in per diem utilization, only that the Union had a rea-
sonable basis, based on objective evidence, for believing there
had been. I also find that the Union sufficiently demonstrated
the relevance of the request to the Respondent. The Union’s
first request, September 17, invited the Respondent to contact
the Union if it had any questions regarding the request. There is
no dispute that the Respondent did not accept this invitation.
Moreover, when Toback spoke to Kilfeather about the request
on October 27, Kilfeather asked her why the Union wanted the
information. Toback told her because the Union wanted to
know how often per diems worked. Kilfeather asked no further
questions at that time. Finally, the Respondent did not dispute
Toback’s testimony that the Respondent was informed of the
specific reports received from the delegates which triggered the
information requests at the January 21, 1998 grievance meet-
ing.
Respondent conceded the relevance of the information re-
quest in its written answer to the grievance, submitted to the
Union on February 4. In that response, Bodee advised the Un-
ion that actual hours worked would have to be retroactively
calculated to identify per diem nurses who may be regular part-
time employees. Moreover, O’Connor told the Union, at the
January 21 grievance meeting, that her review of the records
indicated that there were some per diems being used quite of-
ten. The Respondent’s proposal to settle the grievance by
agreeing on a formula to determine at what point a per diem
becomes a regular part-time employee further demonstrated the
relevance of the information. The Union would not be able to
assess the merits of such a proposal without knowing the fre-
quency and consistency of individual per diem nurses’ work.
The Respondent argues that the information requested by the
Union is not relevant because whether someone is a per diem or
regular part-time employees is not determined by the number of
hours worked. However, this is the only information it was
willing to give to the Union. The Union was clear from the first
request that it wanted more than the number of hours worked.
In fact, the Union did not even request this specifically. Rather,
what the Union requested was the names, units, and shifts on
which the per diems worked. As Toback testified, this addi-
tional information would be used as “indicators” to determine
whether the per diem was working only on an “as-needed ba-
sis,” in accordance with Respondent’s established practice, or
was working as a regular part-time employee. As the Board has
noted, the Union is not required to accept the Respondent’s
assertion that all per diem nurses are working as traditional per
diems. It is entitled to conduct its own investigation and reach
its own conclusion about the applicability of the collective-
bargaining agreement to these per diem employees. Shoppers
Food Warehouse, supra at 259.
Respondent’s further contention that the information was not
relevant because per diem employees are not in the unit, and its
LENOX HILL HOSPITAL 1069
reliance on the 1987 arbitration award to prove it, misses the
point. There is no dispute that per diem employees are not part
of the unit. The issue raised by the Union’s information request
and class action grievance is whether the Respondent was util-
izing per diems as regular part-time employees, a legitimate
concern of the Union as part of its contract administration and
enforcement duties.
The information that the Respondent did provide to the Un-
ion, almost 6 months after the Union’s first request, did not
satisfy its statutory obligation. Respondent’s own witness con-
ceded that it could not be determined from this information
whether an individual per diem worked one-fifth the regular
workweek in the preceding 12 months. It is also apparent that
the Union could not determine from the information provided
whether the individual per diems were working a regular
schedule, were assigned to a particular unit, had any pattern to
their work or had other attributes of a regular part-time em-
ployee.
The Respondent’s contention that it should not be required to
comply with the Union’s information request because it is un-
duly burdensome is rejected. The Board has held that the costs
and burden of complying with a Union’s request for relevant
and necessary information does not justify a categorical refusal
to supply the information. If there are substantial costs or other
impositions involved in providing requested information, the
Act requires an employer to offer to bargain about who shall
bear such costs. See Hospital Episcopal San Lucas, 319 NLRB
54, 57 (1995), and cases cited therein. In the instant case, the
Respondent did not assert this ground for refusing to provide
the requested information until O’Connor’s May 27 letter. At
that time, the Respondent provided no specifics to the Union to
support its claim of undue burden and did not offer to bargain
over cost sharing. Moreover, I note that the Respondent does
not argue that the information requested by the Union does not
exist. Rather it argues that it would be costly and time con-
suming to extract the information from the daily work sched-
ules. However, the Respondent never offered to make these
schedules available to the Union for its own inspection as an
alternative to the Respondent compiling the information.
I also reject the Respondent’s argument that it should not be
required to disclose the names of the per diem employees for
confidentiality reasons. In dealing with union requests for rele-
vant but assertedly confidential information, the Board is re-
quired to balance a union’s need for the information against any
“legitimate and substantial” confidentiality interest established
by the employer. The employer who claims confidentiality has
the burden of proving that such confidentiality interests are in
fact present and of such significance as to outweigh the union’s
need for the information. The employer must timely raise and
prove its confidentiality claim before the balancing test is trig-
gered. Finally, even where the employer can prove a legitimate
confidentiality concern, it has a duty to seek an accommodation
through the bargaining process. Exxon Co., U.S.A., 321 NLRB
896, 898 (1996). Here, the Respondent did not even meet the
threshold burden to trigger a balancing test. The Respondent
did not even assert a confidentiality claim in its communica-
tions with the Union. Even at the hearing, O’Connor’s basis for
claiming confidentiality was her own policy of not disclosing
employee information. Only on further questioning did she
claim the existence of a general hospital policy protecting the
privacy of employee information as support for her position,
yet this policy was never offered into evidence. Accordingly, I
find that there are no confidentiality concerns which would
preclude the Union from obtaining the information requested,
which is relevant and necessary to its representative duties.
Finally, the fact that the Union might use the information re-
quested to organize the per diem employees is no basis for a
refusal to furnish information which is otherwise relevant and
necessary to the Union’s performance of its statutory duties.
See Central Manor Home for Adults, 320 NLRB 1009, 1011
(1996), and cases cited therein. As found above, the informa-
tion requested by the Union on September 17 is relevant to and
necessary for the Union’s proper policing of the collective-
bargaining agreement. The Respondent has not demonstrated
that the Union had any other purpose in making the request.
O’Connor’s testimony regarding the folder in Toback’s posses-
sion at some unidentified meeting in May 1998 does not justify
the Respondent’s failure and refusal to furnish this information.
Based on the above, and the record as a whole, I find that the
Respondent has violated Section 8(a)(1) and (5), as alleged in
the complaint, by refusing to furnish the Union with relevant
and necessary information since September 17, 1997.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing and refusing, since September 17, 1997, to fur-
nish the Union with requested information which is relevant to,
and necessary for, the Union’s performance of its duties as the
exclusive collective-bargaining representative of an appropriate
unit of the Respondent’s employees, the Respondent has failed
to bargain collectively in good faith with the Union in violation
of Section 8(a)(1) and (5) of the Act.
4. The unfair labor practices of the Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, I shall recommend that
the Respondent be ordered to furnish the Union with the names
of per diem nurses who had worked more than 12 shifts in the
preceding 6 months, the units to which these nurses were as-
signed and the shifts these nurses worked, with any concerns
about the cost and burden of complying to be resolved through
good-faith bargaining between the parties.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Lenox Hill Hospital, New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively in good faith with New
York Professional Nurses Union by failing and refusing to fur-
nish information concerning per diem nurses that the Union

5 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 pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070
requested by its letters dated September 17 and October 27,
1997, and March 10, 1998.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, furnish the
Union with the names of per diem nurses who had worked
more than 12 shifts in the preceding 6 months, the units to
which these nurses were assigned and the shifts these nurses
worked.
(b) Within 14 days after service by the Region, post at its fa-
cility in New York, New York, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-

6 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 Na-
tional 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.”

ployees and former employees employed by the Respondent at
any time since September 17, 1997.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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 the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT refuse to bargain collectively in good faith
with New York Professional Nurses Union by failing and refus-
ing to furnish information concerning per diem nurses that the
Union requested by its letters dated September 17 and October
27, 1997, and March 10, 1998.
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, within 14 days from the date of the Board’s Or-
der, furnish the Union with the names of per diem nurses who
had worked more than 12 shifts in the preceding 6 months, the
units to which these nurses were assigned and the shifts these
nurses worked.

LENOX HILL HOSPITAL