Lenox Hill Hospital

National Labor Relations Board - Board Decisions

Feb 12, 2015

362 NLRB No. 16 (N.L.R.B. 2015)

362 NLRB No. 16
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Lenox Hill Hospital and The New York Professional
Nurses Union. Case 02–CA–103901
February 12, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND MCFERRAN
On October 1, 2014, Administrative Law Judge Mindy
E. Landow 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 proceeding 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 conclusions2

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 law judge’s credibility resolutions unless the clear preponder-
ance 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.
2 For the reasons stated by the judge, we affirm the judge’s conclu-
sion that the Respondent violated Sec. 8(a)(5) and (1) of the Act by
failing and refusing to furnish the Union with the following infor-
mation: statistics regarding the number of hours (and/or shifts) for
nurses’ aides working one-on-one assignments for the 6-month period
preceding February 22, 2013; patient census reports from September 1,
2012 through February 22, 2013, for the units named in the Union’s
February 19, 2013 grievance alleging violations of art. XXVI of the
parties’ collective-bargaining agreement (the grievance); the FTE full
complement standard (filled and unfilled positions) for registered nurs-
es and nurses’ aides for each unit named in the grievance; statistics
detailing the number of overtime hours and shifts nurses’ aides worked
from September 2012 through February 22, 2013, for the units named
in the grievance; the mean and mode hours between the time patients
were given their discharge orders and when they actually left the hospi-
tal; and the number of times nurses’ aides were pulled off units (includ-
ing their own) to cover one-on-one assignments from September 1,
2012, through February 22, 2013.
As to the Union’s request for the mean and mode hours between the
time patients were given their discharge orders and when they actually
left the hospital, we agree with the judge that this information is rele-
vant because it directly relates to the calculation of the nurse-to-patient
ratios. We further find that the judge properly rejected the Respond-
ent’s defenses that it was not required to furnish this information be-
cause it allegedly would be burdensome to provide and implicated
confidentiality concerns. As explained by the judge, the Respondent
was required to bargain with the Union towards an accommodation.
See Mission Foods, 345 NLRB 788, 789 (2005); International Protec-
tive Services, 339 NLRB 701, 704–705 (2003). Additionally, we note
that there is no evidence that the Union ever withdrew its request for
this information. Contrary to his colleagues, Member Johnson would
not find that the Respondent violated Sec. 8(a)(5) by failing and refus-
and to adopt the recommended Order as modified3 and
set forth in full below.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3.
“3. By refusing to bargain collectively with the Union
by failing and refusing to furnish it with the requested
information and by unreasonably delaying in furnishing
it with requested information as set forth in letters dated
February 22, 27, and April 12, 2013 that is relevant and
necessary to the Union’s performance of its functions as
the collective-bargaining representative of the Respond-
ent’s unit employees, the Respondent has committed an

ing to provide the mean and mode hours between the time patients were
given their discharge orders and when they actually left the hospital.
The Respondent’s Director of Talent and Organizational Development
Emily Weisenbach testified without contradiction that the parties dis-
cussed Respondent’s position that it would be burdensome for the
Respondent to review hundreds of patient medical files and that the
Union’s representative appeared satisfied with this explanation. In
Member Johnson’s view, the duty to act in good faith covers both par-
ties involved in an information request and thus required the Union, for
this particular request in these circumstances, to clarify that it did not
agree with Respondent’s position on burdensomeness. Requiring the
Respondent instead to demand and receive a formalistic “withdrawal”
of the request by the Union, as the majority would want in these cir-
cumstances, elevates form over substance. That approach disserves our
role in creating and regulating a functional bargaining process that
parties can realistically operate within to reach agreement and thus
enhance labor peace.
For the reasons stated by the judge, we also affirm the judge’s con-
clusion that the Respondent violated Sec. 8(a)(5) and (1) by unreasona-
bly delaying in furnishing the Union with the maximum patient census
on each unit for each shift during the period from September 1, 2012
through April 12, 2013. Because the Union disputed the Respondent’s
claim that it fully responded to this information request, and the judge
was unable to resolve the dispute, she properly ordered the Respondent
to furnish the information to the extent it has not already done so. See
Columbia College Chicago, 360 NLRB No. 122, slip op. at 2 fn. 6
(2014).
There are no exceptions to the judge’s finding that the Respondent
did not violate Sec. 8(a)(5) and (1) by failing and refusing to provide
the Union with the FTE full complement standard for ancillary staff
and with information pertaining to contractor Access.
Additionally, we agree with the judge that the complaint should not
be deferred to arbitration and that the Respondent failed to prove that
the Union waived its right to request information. However, we find it
unnecessary to rely on New York Post, 353 NLRB 625 (2008), which
was decided by a two-member Board. See New Process Steel v. NLRB,
560 U.S. 674 (2010).
Although Member Johnson agrees that deferral is inappropriate in
this case, he would defer in a case in which the parties' bargaining
agreement was comprehensive of procedures for handling of infor-
mation requests related to grievances. Here, the parties’ contract does
not contain such a provision.
3 We have amended the judge’s conclusions of law and remedy con-
sistent with the judge’s findings.
We shall modify the judge’s recommended Order to conform to her
unfair labor practice findings and to the Board’s standard remedial
language, and we shall substitute a new notice to conform to the Order
as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
unfair labor practice within the meaning of Section
8(a)(5) and (1) of the Act.”
AMENDED REMEDY
In addition to the remedies provided in the judge’s de-
cision, we shall order the Respondent to timely furnish
the following information to the Union: statistics detail-
ing the number of overtime hours and shifts nurses’ aides
worked from September 2012 through February 22,
2013, for the units named in the grievance.
ORDER
The National Labor Relations Board orders that 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 with The New
York Professional Nurses Union (the Union) by failing
and refusing to furnish requested information to the Un-
ion and by unreasonably delaying in furnishing it with
requested information that is relevant and necessary to
the Union’s performance of its functions as the collec-
tive-bargaining representative of the Respondent’s unit
employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) To the extent it has not already does so, furnish to
the Union in a timely manner the following information
requested by the Union on February 22, 27, and April 12,
2013: statistics regarding the number of hours (and/or
shifts) for nurses’ aides working one-on-one assignments
for the 6-month period preceding February 22, 2013;
patient census reports from September 1, 2012, through
February 22, 2013, for the units named in the Union’s
February 19, 2013 grievance alleging violations of article
XXVI of the parties’ collective-bargaining agreement
(the grievance); the FTE full complement standard (filled
and unfilled positions) for registered nurses and nurses’
aides for each unit named in the grievance; statistics de-
tailing the number of overtime hours and shifts nurses’
aides worked from September 2012 through February 22,
2013, for the units named in the grievance; the number of
times nurses’ aides were pulled off units (including their
own) to cover one-on-one assignments from September
1, 2012, through February 22, 2013; and the maximum
patient census on each unit for each shift during the peri-
od from September 1, 2012, through April 12, 2013.
(b) Bargain with the Union over the provision of in-
formation regarding the mean and mode hours between
the time patients were given their discharge orders and
when they actually left hospital premises and provide
such information after an agreement has been reached.
(c) Within 14 days after service by the Region, post at
its New York, New York facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since February 22, 2013.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 12, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Harry I. Johnson, III, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

4 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.”
LENOX HILL HOSPITAL 3
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with The
New York Professional Nurses Union (the Union) by
failing and refusing to furnish it with requested infor-
mation and by unreasonably delaying in furnishing it
with requested information that is relevant and necessary
to the Union’s performance of its functions as the collec-
tive-bargaining representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, to the extent we have not already done so,
furnish to the Union in a timely manner the following
information requested by the Union on February 22, 27,
and April 12, 2013: statistics regarding the number of
hours (and/or shifts) for nurses’ aides working one-on-
one assignments for the 6-month period preceding Feb-
ruary 22, 2013; patient census reports from September 1,
2012, through February 22, 2013, for the units named in
the Union’s February 19, 2013 grievance alleging viola-
tions of article XXVI of the parties’ collective-bargaining
agreement (the grievance); the FTE full complement
standard (filled and unfilled positions) for registered
nurses and nurses’ aides for each unit named in the
grievance; statistics detailing the number of overtime
hours and shifts nurses’ aides worked from September
2012 through February 22, 2013, for the units named in
the grievance; the number of times nurses’ aides were
pulled off units (including their own), through February
22, 2013; and the maximum patient census on each unit
for each shift during the period from September 1, 2012,
through April 12, 2013.
WE WILL bargain with the Union over the provision of
information regarding the mean and mode hours between
the time patients were given their discharge orders and
when they actually left hospital premises and provide
such information after an agreement has been reached.
LENOX HILL HOSPITAL
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-103901 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th St., N.W., Washington, D.C. 20570, or by
calling (202) 273-1940.
Gregory Davis, Esq., for the General Counsel.
Peter D. Stergios and M. Christopher Moon, Esqs. (McCarter
and English, LLP), of New York, New York, for the Re-
spondent.
Richard M. Betheil, Esq. (Pryor Cashman, LLP), of New York,
New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. A charge in
Case 02–CA–103901 was filed by The New York Professional
Nurses Union (the Union) against Lenox Hill Hospital (Re-
spondent) on April 29, 2013.1 On February 20, 2014, the Re-
gional Director issued a complaint and notice of hearing (com-
plaint) against alleging that Respondent violated Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act).
The complaint alleges that Respondent failed and refused to
bargain collectively and in good faith with the Union as the
exclusive collective-bargaining representative of unit employ-
ees, consisting primarily of registered nurses (RNs) by failing
and refusing to provide certain relevant information necessary
to the Union’s statutory responsibility to represent such em-
ployees. The particulars of the information requests and the
Respondent’s responses thereto will be described in further
detail below.
Respondent filed an answer to the complaint denying the ma-
terial allegations therein and raising certain affirmative defens-
es, as will be addressed herein.
The case was heard before me on May 6, 2014. The parties
thereafter filed posthearing briefs. Based on my observations of
the witnesses, a review of the documentary evidence, my reso-
lutions of apparent conflicts in the record based upon the fore-
going and the inherent probabilities of the evidence proffered,
the record as a whole and the arguments set forth in the briefs

1 All dates are in 2013 unless otherwise specified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
filed by the parties I make the following
FINDINGS OF FACT
JURISDICTION
Respondent is a New York corporation which operates a
hospital providing patient care, treatment, and related services
at its facility in New York, New York. Annually, the Respond-
ent derives gross revenues in excess of $250,000 and purchases
and receives at its New York facility products, goods, and ma-
terials valued in excess of $5000 directly from points outside
the State of New York. Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 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.
UNFAIR LABOR PRACTICES
Background
Since 1985, the Union has represented a unit consisting pri-
marily of all full-time and regular part-time registered nurses
(RNs) employed by the Respondent. The current collective-
bargaining agreement (the Agreement or CBA) between the
parties covers the period from November 1, 2012, through Oc-
tober 31, 2015.
Eileen Toback is the executive director of the Union,
Maureen McCarthy is the president, and Kathy Flynn is the
vice president. At relevant times, Nisha Bannerjee was an asso-
ciate director of the Union. She left the employ of the Union in
December 2013.
Emily Weisenbach and Kiera Stajk are each employed as di-
rectors of talent and organizational performance within Re-
spondent's human resources department. They are responsible
for, among other things, performing human resource functions,
including labor relations, for nursing and perioperative person-
nel. Phyllis Yezzo is the vice president of nursing.
Certain of the information sought by the Union concerns
nonunit personnel, in particular regarding the assignment of
nurses’ aides. These employees are responsible for, among
other things, answering telephones, responding to patient call
lights, assisting patients to and from bathrooms, taking vital
signs, changing bed linens, repositioning patients, and serving
food trays. At times, as Weisenbach and others testified, if
nurses’ aides are not available such functions may be assumed
by registered nurses. The Employer also utilizes aides provided
by outside contractors for one-on-one patient assignments.
Until sometime in 2010, such services were provided by a con-
tractor referred to in the record as Access. More recently such
aides are provided by a contractor called Regent Care.
The Relevant Provisions of the
Collective-Bargaining Agreement
At issue here are a series of information requests made by
the Union relating to a grievance filed alleging violations of
article XXVI of the most recent Agreement.
Article XXVI of the Agreement provides, in pertinent part:
1. The Hospital shall continue to implement the currently
agreed upon nurse-to-patient ratios and effective July 1, 2013,
the Hospital implement agreed upon nurse-to-patient ratios
(staffing standards) as modified in this agreement. The Hospi-
tal shall provide qualified RNs on duty to give patients the
nursing care that requires the judgment and specialized skills
of a Registered Nurse. The Hospital shall also provide quali-
fied support personnel on duty in order to meet the nursing
care needs of patients and shall also supply the necessary
tools, equipment and supplies necessary for RNs to provide
proper nursing care for their patients.
2. The Hospital will provide to the Union, and the Hospital
and the Union will review on a quarterly basis, actual staffing
compared to required staffing (to meet nurse-to-patient ratios)
based on the average daily census.
3. The nurse-to-patient ratios are not and cannot be, sensitive
to every change in patient acuity and activity, and there will
be times intermittently or occasionally where there are varia-
tions in the ability to meet guidelines such as uncontrollable
or unpredictable occurrences. These intermittent or occasional
times will not be construed as evidence of the Hospital’s fail-
ure to meet the staffing standards. Additionally, compliance
with staffing standards will be considered achieved if, in the
measured quarter, the average number of RN FTEs actually
worked per pay period is equal to or greater than the sum of
RNs required to meet nurse-to-patient ratios based upon aver-
age daily census. The Hospital continues to be committed to
discussing in detail with the union unit level variances, and
discussing possible causes of and solutions to individual unit
variances, including reallocation of staff, and any issues re-
maining following such discussions shall be subject to the
grievance procedure. On units where the ratios at full census
require one (1) additional nurse being assigned to care for two
(2) or fewer patients over the ratios, the additional nurse may
or may not be added based on patient acuity, except where the
nurse's assignment is two (2) critically ill patients.
Section 6 of article XXVI further provides:
If, at the quarterly review, the Union alleges that the staffing
standards routinely are not being adhered to, the dispute may
be brought before a qualified individual to mediate resolution
of the issue. The mediator shall be a neutral individual with
expertise in the subject matter. Settlement agreements reached
in the mediation process will be reduced to writing and signed
by both parties, and will be implemented within thirty (30)
days following the signing of the settlement agreement. If the
dispute is not settled in mediation, either party can take it to
arbitration pursuant to Article XXXIV (Arbitration) of this
Agreement. The arbitrator's authority in such arbitration shall
be limited to a review as to whether the Hospital has failed,
without justification, to adhere to the staffing standards estab-
lished hereunder. The sole remedy the arbitrator is empow-
ered to award is a direction to the Hospital to enter into sub-
stantial compliance with the staffing standards established
hereunder.
Another section of the Agreement, article XXVII, is entitled,
“Recruitment and Retention.” It is a lengthy provision which
provides for various work assignment rules, among other
things. Section 8 of this provision of the Agreement provides,
in relevant part, as follows:
LENOX HILL HOSPITAL 5
The Employer and the Union recognize that the performance
of non-nursing functions by registered nurses impedes their
ability to deliver quality, cost-effective patient care and is not
intended to be part of their regular scope of responsibilities.
The Employer will continue to investigate and implement sys-
tems that support the delivery of patient care by registered
nurses that will minimize non-nursing functions, for example,
the clinical information system, the automated supply and
medication distribution system, the pneumatic tube system for
pharmacy and laboratory, the standardization of nursing sta-
tions and chars and the upgrading and training and support
personnel. The registered nurses have been and will continue
to be involved in the evaluation and selection process of such
systems.
The Union's Grievance
Union President McCarthy testified that she received numer-
ous complaints from registered nurses and union delegates that
the contractual ratios were not being adhered to. For example,
on units which required a 1:6 ratio, nurses were caring for eight
or nine patients and on those requiring a 1:4 ratio, nurses were
being asked to take five or six patients. There were also fre-
quent complaints that there was a lack of nurses’ aides on the
units, so that the registered nurses were required to assume
those responsibilities as well. As a result the Union decided to
file a grievance over these matters.
Thus, on February 12, the Union filed a step 3 class action
grievance alleging that Respondent violated article XXVI of the
Agreement, which was subsequently amended on February 19
as follows:
In accordance with Article XXIII, and including but not lim-
ited to Article XXVI [Section] 1 and [Section] 7(a) of the col-
lective bargaining agreement, NYPNU is filing a step 3 class
action grievance on behalf of NYPNU RN’s on 5 Uris, 9Uris,
7East, 8 Lachman, 5 Wollman, 7 Uris, 4 Lachman, 4 Uris and
7 Lachman.
LHH is in violation of, but not limited to, the nurse/patient ra-
tios on each of the aforementioned units. On a regular basis,
RNs are over ratio. Additionally, LHH has not provided quali-
fied support personnel on duty as well as the necessary tools,
equipment and supplies necessary to meet the nursing care
needs for the patients on these units.
Remedy requested:
The employer will make grievants whole in every way includ-
ing, but not limited to, complying with the contractual
nurse/patient ratios and provision of the necessary qualified
support personnel, tools, equipment and supplies necessary. In
addition to providing NYPNU with quarterly ratio compli-
ance data.
The grievance was sent by email from Nisha Bannerjee to
Emily Weisenbach
The Union’s February 22 and 27 Information Requests
In connection with the grievance, on February 22, the fol-
lowing information request was sent by Bannerjee to
Weisenbach:
NYPNU requests the following information relevant to the
above-named grievance:
1. Statistics regarding the number of hours (and/or shifts)
aides working one-on-one assignments in the past six (6)
months;
2. Number of hours (and/or shifts) that Access provided aides
and/or observation assistants for one-to-one assignments for
the last twelve months they served a contract with Lenox Hill
Hospital;
3. Current LHH protocol for a patient (or patent’s family) to
hire a private duty nurse.2
On February 27, 2013, the Union submitted another infor-
mation request, again from Bannerjee to Weisenbach, asking
for:
1. The patient census reports from September 1, through Feb-
ruary 22, 2013 for the units named in this grievance;
2. The FTE full complement standard (filled and unfilled po-
sitions) for each unit named in the grievance, including ancil-
lary staff;
3. Statistics detailing with the number of overtime hours and
shifts nursing aides worked between September 2012 and
February 22, 2013, in the units named in this grievance;
4. LHH’s mean and mode hours between the time patients
were given their discharge orders and when they actually left
the hospital premises;
5. The number of times nurse aides were pulled off units (in-
cluding their own) to cover one-on-one assignments.
By email the following day, Bannerjee asked Emily
Weisenbach when the Union would receive the information it
had requested. Weisenbach replied, “I am working on this, I am
unsure at this point if we will release the data.”
The March 5 and 14 Mmeetings
An initial meeting concerning the grievance was held on
March 5. Present for the Employer were Directors Weisenbach
and Stajk, and Vice President Phyllis Yezzo. Present for the
Union were Toback, McCarthy, Vice President Flynn and
Bannerjee.
At the meeting, Respondent provided the Union with two re-
ports in response to its information requests. The first report
showed the average number of RN’'s required and assigned on
day and night shifts by unit for the period from January 1 to
February 19. The second report contained the patient/RN daily
staffing data by unit; again, for the period from January 1
through February 19, 2013. As Respondent acknowledges,
Weisenbach did not realize at the time that the information
provided was not fully responsive to the timeframe sought by
the Union’s request. As she testified, Weisenbach only realized
that the response had not been fully responded to in December
2014, as a result of communications with Hospital in-house
counsel.
After reviewing the data that was provided to them, the un-
ion representatives at the meeting lodged “snap shot” of the
census and staffing at 8 a.m. and 8 p.m.—at the beginning and
end of each shift—and therefore did not reflect the changes in

2 This last item is not a subject of the instant complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
staffing and patients throughout the day. The union representa-
tives further questioned why fractions appeared on the reports.
The Union was told that this reflected people coming on and off
the unit. According to Toback, the Union complained that the
information did not establish whether the ratios were being met
and the Hospital maintained that they were. The Union asked
for additional information to illustrate what was occurring
throughout the day and asked for information for periods from
2 to 4 hours throughout the shift. According to Toback,
Weisenbach said she would provide such information, and
Weisenbach did not deny that she provided such assurances.
With regard to those aspects of the Union’s request which
concerned itself with the nurses’ aides and other nonunit per-
sonnel, Toback offered the following testimony:
Q: (by Counsel for the General Counsel) Okay. With
respect to the second information request in the letter dat-
ed February 27th, do you recall discussion of that infor-
mation request?
A: Discussion with the Hospital
Q: Yes
A: Only that we weren’t going to receive the – we
were told we weren’t going to receive the information
Q: Who said that?
A: Emily Weisenbach
Q: Did Ms. Weisenbach explain why you wouldn’t re-
ceive that information?
A: Not in too many details, only that they didn’t be-
lieve it was our information to ask for.
Q: Do you recall any discussion by any of the union
representatives as to why they needed that information?
A: We asked for the information because we said this
impacted the ratios and it impacted the work of the nurses
on, on the units.
Toback further testified that the Union sought the information
regarding overtime assignments for nurses’ aides because, “we
were trying to get at finding out what aides were on the units
and that would include overtime, looking at overtime hours to
calculate where they were, if they were there.”
With regard to the information sought regarding the time dif-
ferential between discharge and when a patient actually leaves
the Hospital, Toback testified, “[w]e had indicated that there
were patients who were discharged, but could not be leaving
the hospital for hours and they still required a level of care.
Some of these people are discharged and are still really quite
critical and need attention. And they might be there for hours,
but weren’t factored into the ratios and weren’t factored into
the information that the hospital had given us, and impacted the
ratios.”
On cross-examination, Toback acknowledged that in addi-
tion to claiming this information was not relevant, the Hospital
asserted something “along the lines” that such information was
impossible to calculate or useless to know because of the
changes that inevitably occur on a unit that are unpredictable.
Weisenbach testified that she initially informed Bannerjee
that the Union would not be receiving information about the
nurses’ aides in an email. In a subsequent telephone conversa-
tion she asked why the Union wanted this information, and
“[Bannerjee] couldn’t articulate that information for me.” The
Hospital maintained the position that such information was not
relevant; nor did the Union have the right to review another
union’s data.
Weisenbach further testified that, at the March 5 meeting,
Yezzo and McCarthy spoke at length about tools, equipment
and ancillary staff, especially regarding the uptake in constant
observations,3 and how that pulled aides away from performing
other functions. With regard to the information sought regard-
ing Access, a vendor service used for constant observations,
Weisenbach testified that their contract terminated in 2010 and
she did not have the data to provide to the Union as such infor-
mation was not contained in electronic medical records main-
tained by the Hospital. Weisenbach testified that she this con-
veyed this information to Bannerjee in a telephone conversation
sometime in late-February when the information was initially
requested. She also acknowledged that she did not inform the
Union that another agency presently had a similar contract but
it does not appear that the Union inquired further regarding this
matter.
With regard to the Union’s request about the differential be-
tween the time a discharge order is written and the actual dis-
charge, Weisenbach stated that she thought the Union under-
stood that such information was not maintained in electronic
medical records. While a program she referred to as “Sunrise”
would indicate when the discharge order was written, it would
not necessarily relate to the time a patient leaves the building.4
Weisenbach testified that she explained that to the Union dur-
ing the March 5 meeting and was under the impression that the
Union was satisfied with the Hospital’s explanation at the time.
On cross-examination, Weisenbach acknowledged that infor-
mation regarding when a patient actually leaves the hospital
was contained in patient charts, which obviously also contain
confidential patient information. The record does not establish
to what extent human resources personnel are authorized to
review such confidential material. Weisenbach also testified
that compiling this information would be burdensome, as it
would require reviewing “hundreds and hundreds” of charts.
Acknowledging that confidentiality concerns could be ad-
dressed through redaction, Weisenbach maintained that when
there was discussion over this issue the Union was satisfied
with the Hospital’s explanation of why the data could not be
provided. Her testimony in this regard was not specifically
rebutted by either union witness who attended the meeting and
testified herein; however, there is no evidence that the Union
has withdrawn its request for such information.
There was a subsequent meeting on March 14, which
Weisenbach referred to as an informal regularly scheduled
followup session, attended by only Weisenbach and Stajk on
behalf of the Employer. The subject of the Union’s information
requests came up again, and Weisenbach suggested that the

3 Constant observations are also referred to here as one-on-one ob-
servations. When ordered by a psychiatrist, a nurse’s aide must be
within arm’s length of the patient at all times, and cannot attend to
others.
4 Weisenbach additionally testified that that Sunrise would reflect
“one-on-one” assignment of nurses’ aides.
LENOX HILL HOSPITAL 7
Union file a grievance regarding the Hospital’s unwillingness
to provide the data sought. McCarthy testified that the there
was discussion of “issues” regarding the data, specifically that
the Union could not understand the employee percentages re-
flected therein. She stated that the Hospital was informed that
the 8 a.m. and 8 p.m. snapshots did not accurately reflect either
the number of patients on the unit during the shift, nor the
number of nurses on the shift because they did not show chang-
es in the staffing which occurred throughout the day or changes
in the patient census during any particular shift. Weisenbach
acknowledged that the Hospital agreed to provide this infor-
mation. On cross-examination, McCarthy reiterated that at this
meeting the Union raised its concerns about not receiving in-
formation regarding shift times and nurses’ aides. The Hospital
informed the Union that it was not prepared to provide the in-
formation regarding nurses’ aides.
The “Snapshot” Information
After the discussion on March 14, Weisenbach emailed a
colleague, Linda DeCarlo, and inquired if there was a way to
obtain the snapshot information sought by the Union. DeCarlo
provided Weisenbach with the data she requested, using 10
a.m. and midnight as markers for measuring staffing levels on
each shift. The data was compiled in the form of an Excel file
with multiple tabs, the initial tab consisting of a summary sheet.
Additional tabs reflected data for each unit at issue.
On April 9, Weisenbach commenced a 4-month maternity
leave. She emailed the Excel file to Stajk, stating that this
would be relevant to a followup meeting scheduled for April
10. Rather than forwarding the entire file, Stajk printed the
initial summary page and sent it to Bannerjee. The Union did
not lodge a complaint that the information provided was in-
complete and Weisenbach did not learn that the Union had not
received the entire file until shortly prior to the hearing in this
matter. At that time, she sent it to the Union. This was more
than 1 year after the information was initially requested.
The April Information Request
On April 12, the Union, by Bannerjee, requested that Re-
spondent furnish the Union by April 19 with the following
information:
The maximum patient census on each unit for each shift dur-
ing September 1, 2012, through April 12, 2013 (present date).
Stajk replied, “[s]ure, I can send that over to your shortly. If
it is not what you are looking for, please give me a call to dis-
cuss.”
However, the information forwarded to the Union was not
specifically what it had sought and Bannerjee wrote, “Kiera, we
appreciate you getting back to us so quickly but just to clari-
fy”—“maximum” doesn’t mean “average” (which is what
we’re seeking as per our info request). Stajk replied she would
review the data and get back to the Union.
Respondent asserts in its post hearing brief that the summary
report and Excel file later forwarded to the Union is responsive
to this information request. Counsel for the General Counsel
maintains that there was no response to the Union’s request for
maximum patient census data. The manner in which these
exhibits were introduced into the record are, in themselves and
without more, insufficient for me to draw any definitive con-
clusions in this regard. In any event, whether or not the infor-
mation eventually provided was or was not responsive to the
April 12 information request, the record is undisputed that Re-
spondent has acknowledged that it sought relevant information
and, further, that it was not provided to the Union until some-
time shortly prior to the hearing in this matter, which is over
one year after it was initially requested.
Analysis and Conclusions
General Legal Principles
An employer has the statutory obligation to provide on re-
quest, relevant information that a union needs for the proper
performance of its duties as collective-bargaining representa-
tive NLRB V. Acme Industrial Co., 385 U.S. 432, 435–436
(1967); Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979).
These responsibilities include: (1) monitoring compliance and
effectively policing the collective-bargaining agreement; (2)
enforcing provisions of a collective-bargaining agreement; and
(3) processing grievances. See Amersig Graphics, Inc., 334
NLRB 880, 885 (2001) (union requests for updated information
and information about temporary employees upheld). Infor-
mation that aids the grievance-arbitration process is considered
relevant, including information needed to decide whether file or
to proceed with a grievance to arbitration. Beth Abraham
Health Services, 332 NLRB 1234 (2000). The Board has also
held that an employer's unreasonable delay in furnishing infor-
mation “is as much of a violation of Section 8(a)(5) of the Act
as a refusal to furnish the information at all.” Woodland Clinic,
331 NLRB 735, 736 (2000), citing Valley Inventory Service,
295 NLRB 1163, 1166 (1989). Delays which are unaccompa-
nied by legitimate excuse are generally unlawful. See, e.g.,
Pan American Grain, 343 NLRB 318 (2004), enfd. in relevant
part 432 F. 3d 69 (1st Cir. 2005) (3-month delay); Bundy Corp.,
292 NLRB 671, 672 (1989) (2-month delay); Woodland Clinic,
supra at 737 (7-week delay).
Where a union’s request is for information pertaining to em-
ployees in the bargaining unit, that information is presumptive-
ly relevant and a respondent must provide the information. In
such instances, the employer has the burden of rebutting that
presumption and establishing lack of relevance. Certco Distri-
bution Centers, 346 NLRB 1214, 1215 (2006); AK Steel Corp.,
324 NLRB 173, 183 (1997). With respect to such information,
the union is not required to show the precise relevance of the
requested information to particular bargaining unit issues. AK
Steel, supra; A-Plus Roofing, 295 NLRB 967, 970 (1989).
Where the requested information pertains to employees or
matters outside the bargaining unit, a union has the burden of
demonstrating the relevance of such information. Dodger The-
atrical Holdings, 347 NLRB 953, 967 (2006).
The standard for relevancy in either situation is the same: “a
liberal discovery type standard.” Acme Industrial, supra at 437.
The information sought need not be dispositive of the issues
between the parties but must have some bearing on it. Pennsyl-
vania Power & Light Co., 301 NLRB 1104, 1105 (1991), or it
must be shown that it would be of use to the union in carrying
out its statutory duties and responsibilities. Wisconsin Bell Co.,
346 NLRB 62, 64 (2005).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Thus, where a union is obligated to establish relevance, it
need only demonstrate a reasonable belief, based upon objec-
tive facts, that the requested information is relevant. Disney-
land Park, 350 NLRB 1256, 1258 (2007); Dodger Theatrical,
supra, 347 NLRB at 967. Further, the Board does not pass on
the merits of a union’s grievance, or assertion that the employer
may have violated its contract in assessing whether information
relating to the processing of a grievance is relevant. Certco
Distribution Center, supra at 1215; Shoppers Food Warehouse,
315 NLRB 258, 259 (1994).
Even absent a showing of probable relevance, an employer is
obligated to furnish the requested information “where the cir-
cumstances put the employer on notice of a relevant purpose
which the union has not spelled out.” National Extrusion &
Mfg. Co., 357 NLRB No. 8, slip op. at 48 (2011) (quoting Alli-
son Co., 330 NLRB 1363, 1367 fn. 23 (2000), enfd. sub nom.
KLB Industries v. NLRB, 700 F.3d 551 (D.C. Cir. 2012).
An employer who raises valid confidentiality concerns is re-
quired to seek an accommodation of its interests through bar-
gaining with the union. National Steel Corp., 335 NLRB 747
(2001); GTE California, Inc., 324 LRB 424 (1997). Any claim
that documents cannot be produced or are too burdensome to be
produced must be asserted and proven. Respondent must pro-
vide the information in its possession, make a reasonable effort
to secure any unavailable information, and, if any information
remains unavailable, explain and document the reasons for its
continued unavailability. See Garcia Trucking Service, 342
NLRB 764 (2004). If necessary, an employer is required to
contact a third party believed to possess the information.
Earthgrains Co., 349 NLRB 389, 399 (2007).
Before assessing the above principles in light of the infor-
mation sought by the Union, it is necessary to consider two
preliminary contentions raised by Respondent: that this matter
should be deferred to the parties’ grievance-arbitration process
and that the Union, through its conduct in bargaining and the
express terms of the Agreement, waived its right to seek much
of the information which is the subject of the instant complaint.
Deferral
With regard to the issue of deferral, Respondent argues that
if the complaint is not dismissed, it should be deferred. In this
regard, the Board has long held that deferral is inappropriate in
Section 8(a)(5) information request cases. See, e.g., United
Technologies Corp., 274 NLRB 504, 505 (1985); Daimler
Chrysler Corp., 331 NLRB 1324, 1324 fn. 2 (2000), enfd. 288
F.3d 434 (D.C. Cir 2002); Chapin Hill at Red Bank, 360 NLRB
No. 27, slip op. at 1 fn. 2 (2014).
Waiver
Regarding the Respondent’s claim of waiver, it is well-
established that employer which asserts a union has waived a
statutory right has the burden of establishing that the alleged
waiver was “clear and unmistakable.” Metropolitan Edison v.
NLRB, 460 U.S. 693, 103 S.Ct. 1467, 1476 (1983); Endo Paint-
ing Service, 360 NLRB No. 61 (2014). Under Board law, a
waiver can occur in one of three ways: (1) by express provision
in a collective-bargaining agreement, (2) by the conduct of the
parties (including past practices, bargaining history), or (3) by a
combination of the two. United Technologies Corp., supra
(citing Chesapeake & Potomac Telephone Co. v. NLRB, 687
F.2d 633, 636 (2d Cir. 1982). In order to satisfy the “clear and
unmistakable” standard, the contract language must be specific,
or it must be shown that “the matter claimed to have been
waived was fully discussed by the parties and that the party
alleged to have waived its rights consciously yielded its interest
in the matter.” Allison Corp., 330 NLRB 1363, 1365 (2000).
Here, Respondent argues that both the contract language and
the parties’ bargaining history evince such a “clear and unmis-
takable” waiver. In particular, Respondent cites to the contrac-
tual procedure for monitoring compliance with article XXVI
which provides that the parties review on a quarterly basis,
“actual staffing compared to required staffing . . . based on the
average daily census.” Respondent argues that the type of in-
formation that may be requested in connection with an article
XXVI dispute has been deliberately limited strictly by the par-
ties to the staffing data set forth therein, which concerns itself
with nurse to patient ratios.
In support of these contentions, Respondent relies upon New
York Post, 353 NLRB 625 (2008). Apart from the fact that
New York Post was decided by a two-member Board and is not
given controlling weight,5 I find it readily distinguishable on
the facts presented therein. In contrast to the situation presented
in that matter, where the express language of the memoranda of
understanding (MOUs) entered into by the parties demonstrated
the parties’ intent that a committee of representatives, including
a union monitor, would be the exclusive forum for investigating
complaints regarding the MOUs and enforcing their terms, the
Agreement here contains no such limiting language. To the
contrary, the Agreement contains language asserting otherwise,
in particular an undertaking that Respondent discuss “in detail
with the union unit level variances, and discussing possible
causes of and solutions to individual unit variances, including
reallocation of staff.” In addition, there is a contractual recog-
nition that the parties, “recognize that the performance of non-
nursing functions by registered nurses impedes their ability to
deliver quality, cost-effective patient care and is not intended to
be part of their regular scope of responsibilities.” Such lan-
guage cannot be said to constitute clear and unequivocal evi-
dence of the Union’s waiver of its statutory right to seek infor-
mation so as to enter into informed discussions with Respond-
ent regarding such matters and to otherwise seek to enforce the
Agreement.
Respondent further relies upon the Board’s decision in
American Broadcasting Co., 290 NLRB 86 (1988). There, the
Board found that the collective-bargaining agreement at issue
set forth the minimum information that the respondent was
required to supply, and that the union had assigned to a com-
mittee whatever right it had to other information under the con-
tractual provision at issue. As it happened, the contractually-
mandated procedure for resolving such disputes was not suc-
cessfully implemented.
Here, the Agreement may arguably set forth the minimum
information which the Respondent is required to provide to
enable the Union to enforce article XXVI; however, there is no
evidence that the Union in negotiations or through agreement

5 See New Process Steel v. NLRB, 130 S.Ct. 2635 (2010).
LENOX HILL HOSPITAL 9
agreed to waive any statutory right to further relevant infor-
mation to enable it to monitor compliance with the Agreement.
Rather, the language of the Agreement contemplates to the
contrary, setting forth Respondent’s agreement to: “continue[]
to be committed to discussing in detail with the union unit level
variances and discussing possible causes of and solutions to
individual unit variances, including reallocation of staff . . .”
Such language cannot be said to support a reasonable conten-
tion of “clear and unmistakable” waiver of the Union’s right to
seek information not specifically set forth in article XXVI, and
rather supports a conclusion that the Hospital was obliged to
provide such information to the Union to enable it to engage in
meaningful discussions regarding unit variances, reallocation of
staff and similar matters. In short, I find that Respondent’s
position in this regard requires inferences which are wholly
unsupported by the record. Accordingly, I reject Respondent’s
contention that the Union has waived its right to seek infor-
mation other than “actual staffing compared to required staffing
. . . based on the average daily census” with regard to its inves-
tigation of grievances under article XXVI of the Agreement.
The Relevancy of the Information Sought
Generally, the evidence adduced here shows that Respondent
has failed and refused to provide any information pertaining to
nurses’ aides or other nonunit staff. The record also establishes
that Respondent delayed in providing certain information
acknowledged to be relevant, and which it had committed to
provide to the Union: in particular, information relating to
nurse-patient ratios at times other than that at the beginning of
each shift. The record further shows that Respondent delayed,
without any reasonable explanation, but possibly through error,
the provision of information regarding maximum patient census
for at least 1 year.
I find that, as a general matter, the Union has demonstrated
the relevance of the information sought regarding nonunit per-
sonnel. The testimony of both Union and Employer witnesses
regarding the two meetings held in March 2013, as outlined
above, show this to be the case. In this regard, I do not credit
Weisenbach’s vague and nonspecific testimony to the effect
that Bannerjee “couldn’t articulate that information for [her].”
In any event, given the nature of the Union’s grievance, and the
contractual provisions at issue, I find that the relevancy of the
information sought would have been apparent to the Respond-
ent, in any event.
By its express terms, article XXVI, section 1, requires the
Employer to provide nursing units with “qualified support per-
sonnel on duty in order to meet the nursing care needs of pa-
tients and . . . the necessary tools, equipment and supplies nec-
essary for RNs to provide proper nursing care for their pa-
tients.” Section 3 of that article further provides that . . . any
issues remaining following such discussions [regarding unit
level variances and possible causes and solutions to individual
unit variances, including reallocation of staff] shall be subject
to the grievance procedure.” Thus, it is apparent that article
XXVI is designed to insure that unit registered nurses are able
to adequately perform their jobs by requiring the Employer to
staff an adequate number of nurses per patient and to provide
them with the necessary support personnel and tools to engage
in meaningful patient care.6
The record demonstrates, and it is not disputed, that nurses’
aides may be moved from their assigned units to other assign-
ments within the Hospital. As the union witnesses testified,
nurses complained that the provision of nursing services were
hindered because of several factors, such as one-on-one as-
signments of nurses’ aides, the fluctuating numbers of patients
and aides throughout the working day, and patients remaining
on the wards after the issuance of discharge orders Thus, any
information designed to determine whether nurse's aides were
in fact on duty on the unit they were assigned to or were other-
wise engaged is directly relevant to the investigation and con-
sideration of the grievance filed by the Union alleging that
Respondent violated article XXVI.
Respondent has argued that article XXVI effectively limits
the Union’s queries concerning nurses’ aides to whether or not
they were “qualified” rather than “sufficient.” This contention
is more properly a matter to be brought before the arbitrator,
who is authorized to decide whether there has been, in fact, a
violation of the Agreement. Such a distinction, however, does
not obviate the Respondent’s obligation to provide the Union
with relevant information regarding whether mode and manner
of assignment of nonunit personnel impacts upon the ability of
unit employees to perform their job responsibilities.
Thus, turning to the specific requests by the Union, the rele-
vance of the information sought and the Respondent’s failure to
respond or to do so in a timely fashion, has been largely
demonstrated, with some limited exceptions, as set forth below.
On February 22, the Union requested: (1) statistics regarding
the number of hours (and/or shifts) aides working one-on-one
assignments in the past 6 months and (2) number of hours
(and/or shifts) that Access provided aides and/or observation
assistants for one-to-one assignments for the last 12 months
they served a contract with Lenox Hill Hospital.
I find that the Union has demonstrated the relevance of the
information sought with regard to the number of hours and/or
shifts worked by nurses’ aides for the 6 months preceding the
information request. The testimony of the witnesses clearly
establishes that when nurses’ aides are not on duty or are oth-
erwise assigned, their responsibilities are assumed by registered
nurses and this clearly can have the practical effect of eroding
the level of patient care that the contractually-prescribed ratios
are designed to ensure. Accordingly, I conclude that by failing
and refusing to provide such information to the Union, Re-
spondent has violated the Act.
With regard to the information sought regarding those em-
ployees provided by the contractor Access, I cannot conclude
that Respondent has violated the Act. It is the case that the tes-
timony of Toback and McCarthy, as corroborated by
Weisenbach, establishes that nurses’ aides who are given one-

6 The General Counsel, relying on McCarthy’s testimony, has main-
tained that the RN/patient ratio reports that were provided by Respond-
ent show that it was not in compliance with the staffing requirements
set forth in art. XXVI on several units during the relevant period of
time. However this is beside the point: it is not for me or for the Board
to pass on the merits of the grievance here; the only issue is whether the
Union is entitled to the information to allow it to meaningfully investi-
gate and then process the grievance, if warranted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
on-one patient assignments are otherwise unavailable to per-
form other duties. General Counsel has argued that the assign-
ment of outside aides to one-on-one assignments allows the
hospital aides to perform their regular patient care duties, which
lessens the need for registered nurses to step in and perform the
tasks normally performed by nurses’ aides. I have concluded
from Weisenbach’s testimony, however, which I find to be
credible and not specifically rebutted by any other witness, that
she informed Bannerjee that Access had not been supplying
employees to the Hospital since 2010. In addition, I conclude
that information regarding such contracting would not be rele-
vant to an assessment or prosecution of a grievance filed in
2013. Accordingly, I conclude that Respondent did not violate
the Act in this regard, as has been alleged in the complaint.
On February 27, the Union requested: (1) the patient census
reports from September 1 through February 22, 3013; (2) the
FTE complement standard (filled and unfilled positions) for
each unit named in the grievance, including ancillary staff; (3)
statistics detailing the number of overtime hours and shifts
nurses’ aides worked between September 2012 and February
22, 2013, for the units named in the grievance; (4) the mean
and mode hours between the time patients were given their
discharge orders and when they actually left the hospital and
(5) the number of times nurses’ aides were pulled off units
(including their own) to cover one-on-one assignments.7
The relevance of the patient census reports, which show the
number of patients and registered nurses by unit per quarter, is
undisputed. The record demonstrates that Respondent, without
explanation, failed to produce such reports for the period from
September through December 31, 2012. In agreement with the
General Counsel, I further find that the FTE information for the
unit registered nurses is presumptively relevant. Respondent
has failed to rebut this presumption or to otherwise show why
such information cannot or should not be produced.
With regard to the FTE request for nurses’ aides, I find that
the Union has demonstrated that it is pertinent to its investiga-
tion of the assignment of these employees, and is directly relat-
ed to the article XXVI grievance. Thus, to the extent such in-
formation sought concerns itself with the nurses’ aides I find it
to be of relevance. I additionally conclude, however, that the
Union has failed to demonstrate the relevance of such infor-
mation with regard to other vaguely-described “ancillary” staff,
as the nature of their job duties is undeveloped in this record.
The request for information regarding the overtime hours
worked by nurses’ aides is related to and an extension of the
Union’s request for information regarding hours worked by
nurses’ aides, the relevance of which has been shown, as set
forth above.
With regard to the reported discharge and actual discharge
times of patients, I find that such information is arguably rele-
vant as it directly relates to the calculation of nurse to patient

7 The Union failed to specify a timeframe for this last request. I have
concluded, however, that given the context and the time periods other-
wise set forth in the information request that the same timeframe should
apply: i.e., September 2012 to February 2013. In this regard, I note that
the Hospital did not object to the open ended nature of the Union’s
request but more generally opposed providing the information as it
pertained to nonunit personnel.
ratios as set forth in the Agreement. The record is without re-
buttal that such patients may require ongoing care prior to leave
the Hospital, further eroding the nurse-to-patient ratio on any
particular unit. While this information may be difficult to gath-
er and compile, the record shows that it is maintained in patient
files. Under all the circumstances, I find that Respondent was
under an obligation to address its concerns about the burden-
some nature of the request and any other potential impediment,
such as patient confidentiality, with the Union. Thus, I find
that it is appropriate to order Respondent to bargain with the
Union over the manner for the provision of such information, as
well as the appropriate timeframe involved, and make such
information available to the Union once an agreement has been
reached.
I additionally conclude that the information regarding the
number of times nurses’ aides were reassigned is relevant as it
is apparent that such reassignments makes these employees
unavailable to perform their regularly scheduled duties, which
then may require the registered nurses to assume such tasks.
Again, this arguably affects the ratios set forth in the Agree-
ment. To the extent the Hospital maintains such records, they
should be made available to the Union for the period of time as
described above.
The information requested on April 12 regarding the maxi-
mum patient census on each unit named in the grievance for the
period through September 1, 2012, through April 12, 2013, is
obviously of some relevance in policing the Agreement insofar
as it impacts the ratios and is relevant to the Union’s apparent
contention that patient numbers may fluctuate. To the extent
that Respondent delayed in providing such information, regard-
less of whether such failure was inadvertent or the result of
error, such delay has been in violation of its obligations under
the Act.
In short, for the reasons set forth above, I find that, under the
circumstances of this case, Respondent has a general statutory
obligation to respond to the Union’s requests for information
regarding work assignments and transfers of nurses’ aides on
the units named in its article XXVI grievance. I further find
that Respondent, inadvertently or otherwise, failed and refused
to provide admittedly relevant information concerning bargain-
ing unit personnel to the Union as requested.
CONCLUSIONS OF LAW
1. The Respondent, Lenox Hill Hospital, is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union, New York Professional Nurses Association,
is a labor organization within the meaning of Section 2(5) of
the Act and represents a bargaining unit comprised primarily of
registered nurses employed by the Respondent.
3. By refusing to bargain collectively with Union by failing
and refusing to furnish it with requested information as set forth
in letters dated February 22, 27, and April 12, 2013, that is
relevant and necessary to the Union’s performance of its func-
tions as the collective-bargaining representative of Respond-
ent’s unit employees, Respondent has committed unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act.
LENOX HILL HOSPITAL 11
4. The Respondent’s above-described unfair labor practices
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in conduct in
violation of Section 8(a)(1) and (5) of the Act, I shall recom-
mend that it cease and desist from engaging in such conduct
and take certain affirmative action designed to effectuate the
policies of the Act.
In particular, I shall recommend that, to the extent it has not
already done so, Respondent shall timely furnish the following
information to the Union: statistics regarding the number of
hours (and/or shifts) for nurses’ aides working one-on-one
shifts for the 6-month period preceding February 22, 2013;
patient census reports from September 1, 2012, through Febru-
ary 22, 2013, for the units named in the Union’s February 19
grievance alleging violations of article XXVI of the parties
collective-bargaining agreement (the Grievance); the FTE full
complement standard (filled and unfilled positions) for regis-
tered nurses and nurses’ aides for each unit named in the Griev-
ance; the number of times nurses’ aides were pulled off units
(including their own) to cover one-on-one assignments from
September 1, 2012, through February 22, 2013, and the maxi-
mum patient census on each unit for each shift during the peri-
od from September 1, 2012, through April 12, 2013. In addi-
tion I recommend that Respondent be ordered to bargain with
the Union over the provision of information regarding the mean
and mode hours between the time patients were given their
discharge orders and when they actually left Hospital premises
and provide such information once an agreement has been
reached.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
1. The Respondent, Lenox Hill Hospital, New York, New
York, its officers, agents, successors, and assigns, shall
(a) Cease and desist from refusing to bargain collectively
with the Union by refusing to furnish it with information that is
relevant and necessary to the Union’s role as the exclusive
representative of Respondent’s unit employees.
(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) Furnish to the Union, in a timely manner, the following
information requested by it on February 22, 27, and April 12,
2013: statistics regarding the number of hours (and/or shifts)
for nurses’ aides working one-on-one shifts for the 6-month
period preceding February 22, 2013; patient census reports
from September 1, 2012, through February 22, 2013, for the

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
units named in the Union’s February 19 grievance alleging
violations of article XXVI of the parties collective-bargaining
agreement (the Grievance); the FTE full complement standard
(filled and unfilled positions) for registered nurses and nurses’
aides for each unit named in the Grievance; the number of
times nurses’ aides were pulled off units (including their own)
to cover one-on-one assignments from September 1, 2012,
through February 22, 2013, and the maximum patient census on
each unit for each shift during the period from September 1,
2012, through April 12, 2013.
(b) Bargain with the Union over the provision of information
regarding the mean and mode hours between the time patients
were given their discharge orders and when they actually left
Hospital premises and provide such information after an
agreement has been reached.
(c) 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.”9 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 and maintained for 60 consecutive days in con-
spicuous 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 addition to the physical
posting of paper notices, the notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an inter-
net site, and/or other electronic means, if the Respondent cus-
tomarily communicates with its employees by such means. 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-
ployees and former employees employed by the Respondent at
any time since February 22, 2013.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. October 1, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to bargain collectively with The
New York Professional Nurses Union (the Union) by failing
and refusing to furnish it with information that is relevant and
necessary to the Union’s performance of its functions as the
collective-bargaining representative of our registered nurses
and other unit employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the rights guaranteed to them
by Section 7 of the National Labor Relations Act.
WE WILL furnish to the Union in a timely manner the infor-
mation it requested on February 22, 27, and April 12, 2013,
specifically to include the following: statistics regarding the
number of hours (and/or shifts) for nurse’s aides working one-
on-one shifts for the 6-month period preceding February 22,
2013; patient census reports from September 1, 2012, through
February 22, 2013, for the units named in the Union’s February
19 grievance alleging violations of article XXVI of the parties
collective-bargaining agreement (the Grievance); the FTE full
complement standard (filled and unfilled positions) for regis-
tered nurses and nurses’ aides for each unit named in the Griev-
ance; the number of times nurses’ aides were pulled off units
(including their own) to cover one-on-one assignments from
September 1, 2012, through February 22, 2013, and the maxi-
mum patient census on each unit for each shift during the peri-
od from September 1, 2012, through April 12, 2013.
WE WILL bargain with the Union over the provision of in-
formation regarding the mean and mode hours between the time
patients were given their discharge orders and when they actu-
ally left hospital premises and provide such information once
an agreement has been reached.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-103901 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.