McLaren Macomb

National Labor Relations Board - Administrative Judge Opinions

Sep 30, 2019

07-CA-232056 (N.L.R.B. Sep. 30, 2019)

JD–75–19
Mount Clemens, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MCLAREN MACOMB
and CASE 07-CA-232056
LOCAL 40, OFFICE OF PROFESSIONAL
EMPLOYEES INTERNATIONAL UNION
(OPEIU), AFL-CIO
Eric S. Cockrell, Esq.
for the General Counsel.
Rhonda H. Armstrong, Esq.
for the Respondent.
Scott A. Brooks, Esq.
for the Charging Party.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. This case was tried in Detroit,
Michigan on July 8, 2019. Local 40, Office of Professional Employees International Union
OPEIU), the Charging Party (the Union), filed its charge on December 3, 20181 against
Respondent, McLaren Macomb. The General Counsel issued the complaint on March 20,
2019. The complaint alleges that from September 19, 2018 until January 10, 2019,
Respondent unreasonably delayed in furnishing the Union with certain requested information
in violation of Section 8(a)(5) and (1) of the Act.
The parties were afforded the opportunity to make opening statements; call, examine,
and cross-examine witnesses; present any relevant documentary evidence; and file
posthearing briefs.
Accordingly, on the entire record, including my observation of the demeanor of the
witnesses, and after considering the briefs filed by the parties, I make the following

1 All dates are in 2018 unless otherwise indicated.
JD–75–19
2
FINDINGS OF FACT
I. JURISDICTION
5
Respondent, a corporation, has been operating a hospital providing inpatient and
outpatient care in its facility and place of business in Mount Clemens, Michigan facility (also
known as McLaren Macomb Medical Center). During the calendar year ending December 31,
2018, Respondent, in conducting its operations described above, derived gross revenue in
excess of $250,000. During the same period, Respondent also purchased and received at its 10
Mount Clemens facility goods valued in excess of $5,000 directly from points located outside
the State of Michigan. Respondent does not deny, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is
a labor organization within the meaning of Section 2(5) of the Act.2
15
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that from September 19, 2018 until January 10, 2019,
Respondent unreasonably delayed in furnishing the Union with the following requested
information: 1) dobutamine, persantine, and thallium stress tests conducted since May 1, and 20
2) the number of times that a registered nurse (RN) had been needed to perform/monitor those
stress tests since May 1.
At all material times, the following employees of Respondent (the Unit) constitute a
unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) 25
of the Act:
All full-time and regularly scheduled part-time Registered
Nurses, contingent RNs employed at McLaren Medical Center -
Macomb, but excluding Clinical Managers, Assistant Clinical 30
Managers, Nursing Supervisors, Coordinators and Directors of
Patient Care areas, Clinical Educators and all other employees.
(Jt. Exh. 2). 3 Since February 28, 2010, Respondent has recognized the Union as the exclusive
collective-bargaining representative of the Unit. This recognition has been embodied in 35
successive collective agreements, the most recent of which is effective from July 29, 2018
through July 27, 2021. (Id.) The most recent agreement was ratified on September 4 and
signed “sometime thereafter.” (Tr. 138). At all times since February 28, 2010, the Union has
been the exclusive collective-bargaining representative of the Unit.4
40

2 At trial, Respondent amended its answer to admit its commerce status and the Union’s
organization status as set forth in complaint paragraphs 4 and 5.
3 Full-time registered nurses work 72 to 80 hours and part-time registered nurses work 20 to 72
hours in a two-week period. Contingent registered nurses work less than 20 hours in a 28-day period.
(Tr. 40-41).
4 Respondent also amended its answer, on the record, to admit the Unit description as it is set forth
in complaint paragraph 7.
JD–75–19
3
Factual Background
Respondent’s change in its business plan
Laura Gibbard (Gibbard) is Vice President of Human Resources and Loraine 5
Cusumano (Cusumano) is the Regional Director of Cardiovascular Services for Respondent’s
medical facility. 5 Respondent employs about 2300 employees at this facility.
The Union consists of approximately 620-630 bargaining unit employees at McLaren
Macomb Medical Center. At all relevant times, its President has been Jeff Morawski 10
(Morawski) and its Vice President has been Dina Carlisle (Carlisle). On about May 3, 2018,
Respondent, through Lisa Renaud, Human Resources Director, and Cusumano informed the
Union of Respondent’s plan to eliminate four registered nurse (RN) positions in the
noninvasive cardiovascular services unit (also referred to as the noninvasive cardiology unit),
effective on about June 3, 2018. They explained that these nurses would be replaced by 15
nonbargaining unit RNs and exercise physiologists (EPs). (Tr. 47-54). Part of the Unit RN
duties in the noninvasive cardiovascular services unit involved the nurses performing
noninvasive but intravenous chemical cardio stress tests. This involved administering
intravenous chemicals and medications in performing the stress tests (such as dobutamine,
persantine and thallium), notifying physicians of test results and reviewing labs and prior 20
history of the patients. (Tr. 55-57). It is undisputed that nonbargaining unit employees have
been performing these duties since June 3.
In response, on May 9, Carlisle filed a grievance on behalf of the Union to have the
RNs returned to their position and duties in the noninvasive cardiology unit and be made 25
whole. (Tr. 59, 62). Morawski and Carlisle explained that the Union had determined that one
of the affected full-time RNs, Pam Ventimiglia, would be losing wages and paid time off
(PTO) benefits and therefore sought to make that employee whole and return all the nurses by
way of the arbitration process to their positions in cardiovascular services. (Tr. 62-65, 110-
111). The grievance (#18-49) alleged that Respondent had notified the Union that “non 30
invasive cardiology nurses at McLaren Macomb will be changing to the business model from
RNs to EPs. No notification of this charge was provided in writing to Local 40.”6 (GC Exh.
2). The Union also asserted that by doing so, Respondent had violated several CBA articles
(e.g. Articles 5 (Sections 1, 2 and 3), 2, 9 and 18). Respondent denied the grievance at Steps
2 and 3, and on June 20, Carlisle notified that the Union was advancing the grievance to 35
arbitration. (GC Exhs. 2-3; R. Exh. 1). Morawski testified that they provided the grievance to
the Union’s attorney, Scott Brooks, to submit for arbitration. At the time of trial, the pending
arbitration had not been scheduled.7 (Tr. 84-85).

5 Respondent admits, and I find, that both Gibbard and Cusumano have been supervisors and
agents of Respondent for all material times within the meaning of Section 2(11) and 2(13) of the Act.
Cusumano, who has since retired did not testify.
6 Morawski testified that the Union also filed the grievance because the Eps were unlicensed. (Tr.
7 Morawski and Carlisle provided uncontroverted testimony that the arbitration was still pending.
Carlisle advanced the grievance to arbitration within the required 30 days form receipt of the written
response subsequent to Step 3 in accord with both CBAs, Article 7, Section 2 (E). (Jt. Exhs. 1-2). On
November 1, 2018, the Union also filed an ULP charge regarding the displacement of the RNs. The
Region dismissed this charge in January 2019 due (generally) to insufficient evidence to establish a
JD–75–19
4
Union’s request for information
On September 19, 2018, Carlisle on behalf of the Union, sent an email to Gibbard
requesting that Respondent provide “dobutamine, persantine and thallium stress tests [that] 5
have been done since May 1, 2018” and “how many times [that] an RN [has] been needed to
perform/monitor the stress tests since May 1, 2018.” (Jt. Exh. 3, pp. 2-3). On December 3,
after not receiving any response from Respondent, Brooks filed a charge on behalf of the
Union with the NLRB, alleging that Respondent had violated the Act by refusing to provide
information requested by the Union and relating to the non-invasive cardiology unit. (Tr. 92-10
93; GC Exh. 1(a)).
On about January 3 or 4, Shela Khan Monroe (Monroe), Vice President Labor and
Employment Relations, left a voice message for the Union which Morawski. On or about
January 8, she left a similar message for Carlisle. In both, she was requesting to discuss the 15
unfair labor practice charge (Tr. 75-76, 105, 139). Carlisle testified that Monroe “just was
asking to have a discussion about whether we could settle the ULP that was outstanding
regarding noninvasive cardiology.” Neither Morawski nor Carlisle returned Monroe’s call.
They testified that they did not do so because they wanted to confer with the Union’s attorney,
Brooks. They did not get back to Monroe before Respondent furnished the requested 20
information. (Tr. 74-75, 105-106).
Respondent furnished the Union with this information on January 10, 2019. In
Gibbard’s email with the requested information, she apologized and responded that:
25
As you know, I regularly handle/respond to information requests and, like
many others, I asked the department to assemble information that you
requested and planned to forward it on to you when I received it. While I'm not
entirely sure, it appears that while the department assembled the information, it
did not make it to me and I, did not realize this request went unanswered. As 30
you know, if I have objections or am unable to determine what information
you are seeking in a particular information request, I typically email you
immediately with my objections or questions. Otherwise, it is my goal to
provide responsive information. In the future, obviously I'll try to ensure this
does not happen again. But, if it does, I encourage you to reach out to me 35
directly and I'll check on the status and promptly provide it, as appropriate.
With that said, the department assembled responsive information back in
September. I'm forwarding [the] information. Shela also relayed that she called
you (and Jeff) earlier this week to discuss this request, but has not heard back 40
from you. I would like to emphasize that it appears this information is
irrelevant given bargaining unit employees do not perform stress tests and
contract negotiations are over. And, I'm unaware of how it is otherwise
relevant or necessary to your representational duties. Without waiving these
objections, I am providing the below information. Please let me know if you 45

violation of the Act.
JD–75–19
5
want me to have the department assemble additional information from
September, to date. If I don't hear from you, I'll assume this is what you were
looking for.
From May 1st through September 24th- dobutamine (17), persantine (262), and 5
thallium stress test (139).
During the May 1st through June 2nd- RN where [sic] still present in the
department they completed (4) dobutmaines [sic], (68) persantines, and (33)
thallium stress test[s]. In addition, RN call in on 5/19 (Saturday Morning), 10
RN’s all called to see if any of them could come in to work. No call back from
2 of 3 RN’s. Rebecca (RN) our manager pushed medications while John our
supervisor observed/finalized stress test[s] for physicians.
Since June 3rd; no RN’s needed to perform/monitor any stress test; we have 15
done (13) dobutanines, (194) persantine, and (106) thallium stress test[s].
(Jt. Exh. 3). Both Morawski and Carlisle agreed that this fulfilled their information request
of September 19. (Tr. 72). There is no dispute that the January 10 email was the first time
that Respondent expressed the belief that the Union’s information request was not relevant or 20
necessary to the Union’s representational duties. In fact, other than the phone messages that
Monroe left before January 10, this was the only communication of any kind from
Respondent since the September 19 request.
Morawski and Carlisle testified that information was necessary for, and relevant to, its 25
performance of its duties as the exclusive collective-bargaining representative for the Unit,
and that Respondent unreasonably delayed in providing it. More specifically, Morawski
explained that shortly before sending the request, the Union learned that some of the tests
previously performed by bargaining unit RNs were being performed by a nonbargaining unit
RN clinical manager, Rebecca Avers, instead of the EPs. He and Carlisle admitted that they 30
requested this information to determine whether Respondent had assigned a nonbargaining
unit RN to perform the work of the displaced bargaining unit RNs, contrary to what
Respondent had previously communicated.8 Morawski also testified that they needed this
information for arbitration. Carlisle concurred with these justifications for the Union’s
request. She added that the Union required the requested information because “[w]e had 35
hoped for the safety of our patients in the non-invasive cardiology unit to get the nurses back
into their jobs…[w]e felt that this was important knowledge to know, especially the
information we had received on or about September 19th that if other RNs were indeed…if
RNs were doing that work that were not bargaining unit RNs.” (Tr. 68-70, 103-104, 110-
113). Both insisted that the Union at no time consented to a delay or waived its right to 40
receive the information. (Tr.76-79, 108).

8 Respondent had previously advised that the RNs would be replaced by the EPs.
JD–75–19
6
Respondent’s reasons for the delay
Gibbard testified that the Union’s request contained no indication of its relevance, and
that the Union had not filed another grievance or advanced the initial grievance to arbitration.
She claimed to have had no idea whatsoever as to the reasons for the request. Nevertheless, 5
she decided to fulfill the request. Gibbard also pointed out how Respondent had previously
responded in a timely manner to many of the Union’s multiple, lengthy, almost weekly
requests for information.
Gibbard admitted that she is the person who regularly responds to union information 10
requests as a part of her job duties. (Tr. 120). She also admitted that there was a delay in
responding to the Union’s September 2019 request, but attributed the delay to an oversight on
Respondent’s part. She testified when she received the Union’s information request at 3:56
p.m. on September 19, she promptly forwarded it to Cusumano (director of cardiology) at
4:20 p.m. and directed her to pull the information. Cusumano responded to Gibbard on the 15
same day. After some back and forth on September 19 and 20, about the nature of the
information requested and the RNs who may have may have performed the tests, Cusumano
emailed Gibbard that “we’ll start on that today.” (R. Exh. 2, p. 1). During the same period,
Cusumano conferred with John Silveri, supervisor of the noninvasive cardiology unit, to
confirm that he and Rebecca Avers were the only RNs who had assisted in training of the 20
EPs who started administering the stress tests on June 3. Silveri confirmed this information,
and on September 24, provided Cusumano with the information ultimately furnished to the
Union. (R. Exh. 3, pp. 1-2).
Gibbard testified that she was surprised when they received the Union’s NLRB charge 25
because in the past, the Union would remind them when they had not received a response to
an information request. (Tr. 120-122). She thought at the time that they had furnished the
Union with the requested information; however, she discovered through a review of her
emails that they had not. Then, she contacted Silveri to gather the information to send to the
Union in January 2019. (R. Exh. 2, pp. 1-2). Gibbard insisted that the delay was not 30
intentional; she claimed that Respondent has 2,000 employees and that she is a “busy” person.
(Tr. 124). She also testified that it was mid-December, around the holidays and she had taken
a two-week vacation. This is when she discovered that Cusumano had not forwarded the
information to her. Gibbard speculated that, “I think she just forgot. She was getting ready to
retire. She retired in January, and so I think she was just winding down in her position, and I 35
think ultimately it just got missed.” (Id.)
Next, Respondent introduced through Gibbard emails within the six months or so of
the trial showing how Respondent had timely responded to numerous information request
from the Union. She explained that they “usually responded within a day or two,” and within 40
a short period of time even when the responses included thousands of pages of documents.
She also asserted that the Union sent numerous information requests on an almost weekly
basis. (Tr. 128-132; R. Exh. 4-6). She further testified that the information request was not
remotely relevant or necessary because the issue regarding the transfer of work from the RNs
to the EPs had gone to arbitration, negotiations on the new contract had closed and effects 45
bargaining had ceased. The Union had also missed the time frame for filing another
grievance. (Tr. 132).
JD–75–19
7
Monroe testified as to how the information requested was not relevant because it
elicited information about nonbargaining unit employees. She also testified that during
collective bargaining negotiations which resulted in a ratified CBA on September 4, 2018 and
during an unrelated arbitration meeting on November 29, 2018 to address all outstanding 5
issues, the Union representatives never mentioned the need for information or the outstanding
request. (Tr. 136-139). In other words, Gibbard and Monroe blamed the Union
representatives for not raising the matter of or otherwise reminding them about the
outstanding request prior to filing the NLRB charge. She described how she reached out to
both Marawski and Carlisle after learning that Respondent had not provided the requested 10
information, but that neither of them returned her call, “nor did they follow up in any way,
shape, or form.” (Tr. 139).
Morawski testified that the Union representatives did not raise the outstanding
information request with Respondent’s representatives on those occasions because all parties 15
were focused on other matters. He and Carlisle also testified that they had previously been
instructed to send all information requests to Gibbard. (Tr. 142-143, 145). As previously
noted, Gibbard testified that she was Respondent’s contact person for receiving all
information requests from the Union. Further, a review of the numerous information requests
and responses between the Union and Respondent appear to show that all such requests and 20
discussions concerning them appeared to have been between Carlisle or chief steward, Terry
Dagg-Barr and Gibbard. (R. Exhs. 4-5). Although Monroe implied that during contract
negotiations, they tried to resolve all outstanding issues, there is no evidence that Respondent
specifically asked about the pending information requests or the pending
grievance/arbitration. 25
A further review of the multiple information requests and responses produced by
Respondent show that Respondent, through Gibbard, often, responded to the Union’s
numerous information requests within a few days or weeks or within 30 days. There was one
instance where the Union emailed a second request after about a month and seven days from 30
the initial request, to which Gibbard responded by forwarding the documents (over 5,000
pages) within about eleven days. (R. Exhs. 4, pp. 23-24; 5, p. 5). However, there was another
instance when Gibbard did not fulfill another of the Union’s information requests because it
“[was] not bargaining unit information and is thus not presumptively relevant…[t]he
employer will provide all relevant, non-privileged, non-confidential information,” and that 35
that particular request “[did] not comply with this requirement.” Gibbard emailed this
particular response on the same day as the Union’s request. In the instant case, Gibbard did
not notify the Union at any time before January 10, 2019 that the information request was not
presumptively relevant.9
40

9 On the other hand, the General Counsel argued in his opening statement and brief that
Respondent had on numerous occasions violated the Act by failing to provide or delaying in providing
the Union with requested information. However, since the General Counsel did so by citing various
Board cases, I will address this argument in the analysis section of this decision
JD–75–19
8
Collective-bargaining agreement
The parties submitted portions of the parties’ collective-bargaining agreements
(CBAs) in effect from the time of its notifying the Union of its decision affecting the Unit
RNs (Jt. Exh. 1) and the time of the request at issue (Jt. Exh. 2). In its grievance regarding the 5
elimination of RNs, the Union alleged that Respondent had violated certain articles and
provisions of the CBA including Article 2 (involving recognition), Article 5, Sections 1-3
(involving roles of the RN), Article 9 (pertaining to definitions and length of service), and
Article 18 (pertaining to wages and benefits). There is no dispute that these CBA provisions
were not materially different. (Tr. 99; Jt. Exhs. 1-2). 10
Analysis
The Union’s information request was relevant
15
Pursuant to Sections 8(a)(5) and 8(d) of the Act, an employer must provide a
requesting union information necessary for the performance of its duties. While information
concerning terms and conditions of employment of employees represented by a union is
generally presumed relevant to the union in its role as a bargaining representative, information
pertaining to nonunit matters or employees may also be necessary for a union to fulfill its 20
representational duties. This applies to information necessary “not only for collective
bargaining but for grievance adjustment and contract administration.” Centura Health St.
Mary-Corwin Medical Center, 360 NLRB 689, 692 (2014), citing NLRB v. Acme Industrial
Co., 385 U.S. 432, 435–436 (1967); Wisconsin Bell, Inc., 346 NLRB 62, 64 (2005).
Information regarding an employer’s nonunit employees may also be relevant when an 25
employer places nonunit terms and conditions at issue. For example, in Harmon Auto Glass,
352 NLRB 152, 152 (2008), reaffd. 355 NLRB 364, 364 fn.3 (2010), the Board found that a
union was entitled to learn the dollar amount contributed by the employer’s non-union
employees towards their health care insurance, after the employer proposed that unit
employees contribute an equal amount. Thus, an employer may not refuse to furnish extra-30
unit requested information solely on the basis that it concerns matters outside the scope of the
bargaining unit represented by the union. NLRB v. Acme Industrial, 385 U.S. at 436; Curtiss-
Wright Corp., Wright Aeronautical Division v. NLRB, 347 F.2d 61 (3d Cir. 1965), enfg. 145
NLRB 152 (1963).
35
Generally, where an information request seeks nonunit information, the relevance of
the request is not presumed but must be shown. Disneyland Park, 350 NLRB 1256, 1258
(2007). This means that the General Counsel must present evidence that either: (a) the union
demonstrated relevance of the nonunit information, or (2) the relevance of the information
should have been apparent to the respondent under the circumstances. Id. (footnote omitted); 40
see also, Teachers College, Columbia University v. NLRB, 902 F.3d 296 (D.C. Cir. 2018),
enfg. 365 NLRB No. 86 (2017). The burden to establish relevance in information requests,
including those involving nonunit employees, is not a heavy one, and potential or probable
relevance will sufficiently invoke an employer’s obligation to provide information. The
Board uses a broad, discovery-type standard, requiring only that the union demonstrate “more 45
than a mere suspicion of the matter for which the information is sought.” Racetrack Food
Services, Inc., 353 NLRB 687, 699 (2008) (citation omitted), reaffd. 355 NLRB 1258, 1258
JD–75–19
9
(2010); A-1 Door & Building Solutions, 356 NLRB 499, 500 (2011); Reiss Viking,
supra; Children's Hospital of San Francisco, 312 NLRB 920, 930 (1993). The requesting
party satisfies this burden by demonstrating its reasonable belief for requesting the
information, supported by objective evidence. San Diego Newspaper Guild v. NLRB, 548 F.2d
863, 867 (9th Cir. 1977); Shoppers Food Warehouse, 315 NLRB 258, 259 (1994).5
That said, the requesting party certainly is not required to rely on proof to establish the
violation. Instead, it must merely show a “reasonable belief that enough facts existed to give
rise to a reasonable belief” in the violation. Walter N. Yoder & Sons, Inc., 754 F.2d 531, 536
(4th Cir. 1985), enfg. 270 NLRB 652 (1984); see also New York Times Co., 270 NLRB at 10
1275 (“to require an initial, burdensome showing by the union before it can gain access to
information which is necessary to determine if a violation has occurred defeats the very
purpose of the ‘liberal discovery standard’ of relevance which is to be used”). Nor must the
requesting party be shown to have been correct in its belief. Indeed, “[t]he Board does not
pass on the merits of the union’s claim that the employer breached the collective-bargaining 15
agreement or committed an unfair labor practice, and the information that triggered the
union’s request may be based on hearsay and need not be accurate or ultimately reliable.” E.I.
Du Pont De Nemours & Co., 366 NLRB No. 178, slip op. at 5 (2018). See also Acme
Industrial, 385 U.S. at 437–438; Racetrack Food Services, Inc., 353 NLRB at 699–700 (even
when its claim ultimately failed, the union was entitled to names and addresses of nonunit 20
employees in support thereof). Finally, the Board has determined that where arbitration is
invoked, “it will be facilitated ‘by permitting a union access to a broad scope of potentially
useful information.’” E.I. Du Pont De Nemours & Co., 366 NLRB No. 178, slip op. at 4,
citing Shoppers Food Warehouse, 315 NLRB at 259-260.
25
Here, the information sought by the Union resulted in a response that included
information about nonunit nurses. In fact, Carlisle and Morawski admitted that they requested
the information because they learned that nonunit nurses or a nurse manager had been
performing the stress test work that the unit nurses had been performing prior to June 3.
Therefore, arguably the information requested would not be presumptively relevant. 30
However, I find that even if not presumptively relevant, the General Counsel has met the
responsibility of showing that the information requested involved and affected the terms and
conditions of its member RNs’ employment and related to a pending arbitration such that it
was relevant. The Union has demonstrated here “more than a mere suspicion of the matter for
which the information is sought.” The Union filed a grievance and advanced the same to 35
arbitration concerning the elimination of the RNs from their positions and duties in the
cardiovascular services unit. Respondent advised the Union that nonbargaining unit exercise
physiologists would be resuming certain duties previously performed by the RNs.
Respondent argues that the subject of the grievance was limited to whether it had given
requisite notice before eliminating RN positions from the non-invasive cardiology 40
department. However, the grievance also includes the claim regarding the actual change from
RNs to EPs. In the “Statement of Remedy” section, the Union demanded that Respondent
cease and desist from violating the CBA and remedy those affected unit RNs by returning
them to their duties and positions and compensating them for any lost pay, benefits and
overtime. In addition, Respondent’s own grievance report included the Union’s claim that it 45
had violated certain CBA provisions when it made changes in the department. (GC Exhs. 2-
3). It is not necessary that the Union’s claims be true given the Union reasonably believed,
JD–75–19
10
based on objective evidence, that Respondent had breached the CBA. Nor can I judge the
merits of such claims. E.I. Du Pont De Nemours & Co., 366 NLRB No. 178, slip op. at 5.
Further, the Union representatives later discovered that a nonbargaining unit RN had
also been performing the RN work (cardiac stress tests) after being told that RNs would no 5
longer be doing so. This new information, true or not, prompted the Union to make its
information request. I find this resulted in the Union’s reasonable belief and suspicion that
Respondent had continued to violate the CBA. It appears from email communications in
September 2018, Silveri, manager of non-invasive cardiology, wrote that “ EP’s started
performing stress test[sic] on 6/3/2018,” and that he “or Rebecca [Avers, clinical nurse 10
manager] have been the only two assisting in the training of the EP’s.” In addition,
Cusumano confirmed on September 19 that “Rebecca and John were here only for the back-
up for training/compentency of the EP’s.” (R. Exh. 2-3). Therefore, these communications
tend to support the Union’s contention and belief that at least one nurse manager had been
administering stress tests post June 3. It matters not that he or she may have only been 15
training or providing back up for the EPs, a fact that Respondent did not share with the Union.
The Board has previously affirmed an administrative law judge’s finding that a respondent
violated Section 8(a)(5) of the Act by refusing to furnish the union relevant and necessary
information where the union had a reasonable ground to fear that unit work was being
performed by nonbarganing unit employees. Mt. Clemens Gen. Hospital, 344 NLRB 450, 20
463 (2005).10
I reject Respondent’s misinterpretation of the Supreme Court’s quotation in Detroit
Edison, that the Court “did not require the union to show more than a ‘bare assertion’ that it
needed the information.” (R. Br. at 15). Rather, the Court found that “a union’s bare 25
assertion that it needs information to process a grievance does not automatically oblige the
employer to supply all the information in the manner requested…[t]he duty to supply
information under Section 8(a)(5) turns upon ‘the circumstances of the particular case.’”
Detroit Edison, 440 U.S. 301, 314 (1979), citing NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153
(1956). 30
Contrary to Respondent’s contention, the General Counsel has not only demonstrated
relevancy, but shown that the relevance of the requested information should have been
apparent to Respondent under the circumstances. It is unbelievable that Gibbard had no idea
why the Union requested the information. Indeed, it is evident from the communications 35
between Cusumano and Gibbard and others after receiving the Union’s information request
that they knew or should have known that it concerned the transition of performance of the
stress tests from the RNs to nonbargaining unit EPs. It also should have been apparent that
the Union sought to see who else other than the unit RNs had been administering stress tests
in the non-invasive cardiology unit. 40
Therefore, in this case, I find that the circumstances support the relevance of the
requested information and Respondent’s obligation to furnish it to the Union.

10 This case is referenced only for the Board’s finding that information about nonunit employees
was relevant. There was no evidence that Respondent McLaren in this case owned or was associated
with Mt. Clemens General Hospital at the time of the violations.
JD–75–19
11
Respondent violated the Act by its delay in providing information to the Union
The Board has long held that an employer must respond to an information
request in a timely manner. See Woodland Clinic, 331 NLRB 735, 736 (2000). Thus, “[a]n 5
unreasonable delay in furnishing such information is as much of a violation of Section 8(a)(5)
of the Act as a refusal to furnish the information at all.” Valley Inventory Service, 295 NLRB
1163, 1166 (1989). In determining whether an employer has unlawfully delayed in furnishing
information, the Board considers the totality of the circumstances. “What is required is a
reasonable good faith effort to respond to the request as promptly as circumstances allow. In 10
evaluating the promptness of the response, the Board will consider the complexity and extent
of information sought, its availability and the difficulty in retrieving the information.” Endo
Painting Service, Inc., 360 NLRB No. 61, slip op. at 2 (2014) citing West Penn Power Co.,
339 NLRB 585, 587 (2003), enfd. in pertinent part 394 F. 3d 233 (4th Cir. 2005). The Board
has also found that this analysis is an objective one; it does not turn on “whether the employer 15
delayed in bad faith…but on whether it supplied the requested information in a reasonable
time.” Management & Training Corp., 366 NLRB No. 134, slip op. at 4 (2018).
There is no doubt here that the Union’s information request was neither
complex nor unavailable. In considering the totality of the circumstances, I find that 20
Respondent unreasonably delayed in providing information which was readily available. It
was Gibbard’s responsibility to receive all information requests and to make sure that they
were fulfilled. She claims that this request inadvertently fell through the cracks even though
Respondent’s management officials had compiled the information in September. However,
after the Union filed an NLRB charge in early December, Respondent still delayed in 25
furnishing the Union with the information. Moreover, when Respondent continued in
delaying in providing the Union with the information for over a month after receiving the
Union’s charge, Gibbard never attempted to contact any of the Union representatives by email
or otherwise to provide the already collected information or explain the reason for the delay.
In fact, an email communication from Silveri on January 8, appears to reflect that he 30
forwarded “[i]nformation request for non invasive cardiology” to Avers only two days prior to
the date the information was sent to the Union. (R. Exh. 3, p. 1). It is true that Monroe left
telephone messages for Carlisle and Morawski in early January about the Union’s December
3 ULP charge. However, there is no evidence that Respondent informed the Union of the
alleged inadvertent delay until it provided the information on January 10. 35
Gibbard provided several speculative explanations for the delay, including that she
was busy, that Cusumano must have overlooked sending her the information in September
because of her upcoming retirement at the end of the year, and finally because she was on
vacation during the holidays.11 However, the Board has found that a respondent violated the 40
Act even where Respondent’s official had inadvertently “forgotten to provide the information
when she received it from the Respondent, and then supplied it” 3.5 months later.
Management & Training Corp., 366 NLRB No. 134, slip op at 2, 4. The Board has affirmed
an administrative judge finding that, “[t]o the extent that Respondent delayed in providing

11 Gibbard’s two-week vacation in mid-December does not explain or excuse Respondent’s delay
in providing the information between September 19 and December.
JD–75–19
12
such information, regardless of whether such failure was inadvertent or the result of error,
such delay has been in violation of its obligations under the Act.” Lenox Hill Hosp., 362
NLRB 106, 112-115 (2015).
Based on the forgoing, I find that Respondent violated Section 8(a)(5) and (1) of the 5
Act when it delayed in furnishing the Union with the requested information.
Respondent’s remaining defenses are without merit
I have already determined that the Union’s requests were not only relevant but also 10
that Respondent’s delay violated the Act. In doing so, I have rejected Respondent’s
argument that it should be absolved of liability because it has routinely responded to the
Union’s numerous and often lengthy information requests in a timely manner. Although it
may have bearing on the type of remedial action taken, it does not relieve Respondent of its
obligation given the circumstances in this case. 15
In its answer to the complaint, Respondent asserted that somehow the Union had
waived its right to receive the information. Absent a union’s clear and unmistakable waiver
of such a statutory right, a respondent violates the Act if it refuses to provide information.
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). Respondent failed to show that 20
the Union in any way clearly and unmistakably waived its right to the information requested
here. Respondent has pointed to the fact that the Union did not remind Respondent that it had
not provided the information. However, this assertion is belied by the facts. Specifically, after
Respondent received notice that the Union had filed a NLRB charge regarding its failure to
respond to the information request, Respondent continued to delay in furnishing the 25
information. I also reject Respondent’s contention that the Union’s failure to remind
Respondent about the outstanding information request during unrelated meetings with
management representatives constitutes a waiver.
Respondent’s defenses as presented appear to have shifted away from a claim that its 30
delay was inadvertent and to one that the Union was never entitled to information.
Respondent further avers that it had no duty to tell the Union that it believed that its requests
were not relevant. I disagree in this case where Respondent apparently showed no internal
concerns about relevancy in the September email communications or prior to January 10.
Nevertheless, Respondent has not rebutted the General Counsel’s showing of relevancy. 35
Respondent further insists that it had no derivative duty to provide the requested
information, based on the Region’s dismissal of the underlying charge. Respondent’s reliance
on FirstEnergy Generation, LLC, 366 NLRB No. 87 (2018), remanded in FirstEnergy
Generation, LLC v. NLRB, 929 F. 3d 321, 334 (6h Cir. 2019) is misplaced. The Court of 40
Appeals reversed the Board’s decision and found that the transfer of work historically
performed by unit employees (to nonunit employees) was not a mandatory subject of
bargaining and therefore the employer had no duty to provide information concerning the
transfer. Here, there is no evidence that the Board found that the transfer was not a mandatory
subject of bargaining. Moreover, I have found that the information in this case is still relevant 45
to the Union’s representational duties regarding the pending arbitration. See Racetrack Food
Services, Inc., 353 NLRB at 699–700 (even when its claim ultimately failed, the union was
JD–75–19
13
entitled to names and addresses of nonunit employees in support thereof); E.I. Du Pont De
Nemours & Co., 366 NLRB No. 178, slip op. at 4, citing Shoppers Food Warehouse, 315
NLRB at 259-260 (where arbitration is invoked, a union will be permitted access to a broad
scope of potentially useful information).
5
Respondent’s reliance on Steven Creek Chrysler Jeep Dodge, Inc., 353 NLRB 1294,
1295 (2009) is also misplaced as it did not involve a Section 8(a)(5) violation and the Board
remanded the case to the judge to reevaluate the inappropriateness of a Gissel bargaining
order. In fact, the quotation that Respondent lifts from Steven Creek Chrysler Jeep Dodge,
Inc., is made by the judge to whom the case was remanded and did not constitute any 10
determination by the Board. 353 NLRB 1305.
Respondent also pointed out that the General Counsel (and this administrative law
judge) suggested that surrounding circumstances were irrelevant. However, as demonstrated,
I have considered the totality of the circumstances presented in this case. Respondent’s other 15
defenses, even those not specifically addressed here, have been considered and are similarly
without merit.
Accordingly, I find that Respondent violated the Act as alleges by unreasonably
delaying in furnishing the requested information. 20
CONCLUSIONS OF LAW
1. By unreasonably delaying in providing the Union with relevant requested
information, Respondent has violated Section 8(a)(5) and (1) of the Act.25
2. The foregoing unfair labor practices committed by Respondent affect commerce
within the meaning of Section 2(6) and 2(7) of the Act.
REMEDY30
Having found that the Respondent has engaged in certain unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act, I shall order that Respondent cease and desist
therefrom and to take certain affirmative action designed to effectuate the policies of the Act.
35
Specifically, Respondent is ordered to cease and desist from unlawfully delaying in
providing relevant requested information to the Union that is necessary in the Union’s
performance of its duties and responsibilities as the exclusive collective-bargaining
representative of the Unit.
40
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended12

12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD–75–19
14
ORDER
Respondent McLaren Macomb, its officers, agents, successors, and assigns, shall
1. Cease and desist from5
(a) Delaying in furnishing information requested by Local 40, Office of Professional
Employees International Union (OPEIU) (the Union) that is relevant and necessary in the
Union’s performance of its duties and responsibilities as the collective-bargaining
representative of its employees. 10
(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 effectuate the policies of the Act.15
(a) Within 14 days after service by the Region, post at its facility in Mount Clemens,
Michigan copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms
provided by the Regional Director for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 20
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are 25
not altered, defaced, or covered by any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of business or closed the facility involved
in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees employed by the Respondent at any
time since September 19, 2018. 30
(b) Within 21 days after service by the Region, file with the Regional Director for Region
7 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.
35
Dated, Washington, D.C., September 30, 2019
Donna N. Dawson40
Administrative Law Judge

13 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to
a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT interfere with, restrain, or coerce you in the exercise of the above rights.
WE WILL NOT unreasonably delay in providing requested information to the Local 40,
Office of Professional Employees International Union (OPEIU) (the Union) that is relevant
and necessary to the performance of its duties and responsibilities as the exclusive collective-
bargaining representative of McLaren Macomb’s (Respondent’s) employees.
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.
McLaren Macomb
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2543
(313 226-3200, Hours of Operation: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-232056 or by using the QR
code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (616) 930-9165.