Memorial Hospital of Salem County, (2012)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

Salem Hospital Corporation a/k/a The Memorial Hospital of Salem County and Health Professionals and Allied Employees (HPAE). Case 042013 CA2013064458

July 31, 2012

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK

On April 17, 2012, Administrative Law Judge Robert

1. Giannasi issued the attached decision. The Respondent filed exceptions and a supporting brief, the Acting General Counsel filed an answering brief, and the Respondent filed a reply 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 judge2019s rulings, findings, and conclusions and to adopt the recommended Order as modified.¹

   ORDER

   The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Salem Hospital Corporation a/k/a The Memorial Hospital of Salem County, Salem, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

   1. Substitute the following for paragraph 1(a).

      201c(a) Refusing to bargain collectively with the Union, Health Professionals and Allied Employees (HPAE), by failing and refusing to furnish it with requested information that is relevant and necessary to the Union2019s performance of its functions as the collective-bargaining representative of employees in the following unit:

      All full-time, regular part-time and per diem Registered Nurses including Staff Nurses, Case Managers, and Charge Nurses, employed by the Respondent at the Memorial Hospital of Salem County located at Woodstown Road, Salem, New Jersey, excluding all other employees, managers, guards and supervisors as defined in the Act.201d

   2. Substitute the attached notice for that of the administrative law judge.

      ¹ We shall modify the judge2019s recommended Order to conform to the Board2019s standard remedial language for the violation found, and we shall substitute a new notice to conform to the Order as modified.

      Dated, Washington, D.C. July 31, 2012

      Mark Gaston Pearce, Chairman Richard F. Griffin, Jr., Member Sharon Block, Member

      (SEAL) 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 refuse to bargain collectively with the Union, Health Professionals and Allied Employees (HPAE), by failing and refusing to furnish it with requested information that is relevant and necessary to the Union2019s performance of its functions as the collectivebargaining representative of our employees in the following bargaining unit:

      All full-time, regular part-time and per diem Registered Nurses including Staff Nurses, Case Managers, and Charge Nurses, employed by us at the Memorial Hospital of Salem County located at Woodstown Road, Salem, New Jersey, excluding all other employees, managers, guards and supervisors as defined in the Act.

      WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above.

      2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

      WE WILL furnish the Union with the information it requested on August 15, 2011.

      SALEM HOSPITAL CORPORATION A/K/A THE

      MEMORIAL HOSPITAL OF SALEM COUNTY

      DECISION

      STATEMENT OF THE CASE

      ROBERT A. GIANNASI, Administrative Law Judge. This case was tried on March 5, 2012, in Philadelphia, Pennsylvania. The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide information to the Charging Party Union (the Union), which was the certified bargaining representative of an appropriate unit of its employees. The Respondent filed an answer, later amended, denying the essential allegations in the complaint and asserting that the Board2019s earlier certification of the Union was erroneous.

      After the close of the hearing,² the parties submitted briefs, which I have read and considered. Based on the entire record in the case, I make the following:

      FINDINGS OF FACT

      I. JURISDICTION

      The Respondent, a New Jersey corporation with a facility in Salem, New Jersey, is engaged in the operation of an acute care hospital. During a representative 1-year period, Respondent received gross revenues in excess of $250,000 and purchased and received goods at its hospital valued in excess of $50,000 directly from points outside the State of New Jersey. Accordingly, I find, as Respondent admits, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act and is a healthcare institution within the meaning of Section 2(14) of the Act.

      The Union is a labor organization within the meaning of Section 2(5) of the Act.

      II. THE ALLEGED UNFAIR LABOR PRACTICES

1. The Facts

   After extensive proceedings in a representation case involving the Union and Respondent (Case No. 42013RC201321697), on August 3, 2011, the Board issued a decision and certification of representative concluding that the Union was the exclusive collective bargaining representative of the Respondent2019s employees in the following appropriate unit:

   All full-time, regular part-time and per diem Registered Nurses, including Staff Nurses, Case Managers, and Charge nurses, employed by the [Respondent] at the Memorial Hos

   ² I make the following corrections to the transcript: At page 6, line18, the word 201crecord201d should be deleted and the word 201chearing201d should be substituted; commas should be added after the word 201ccall201d and after the word 201ce-mail201d at line 19 of page 6; at line 23 of page 6, the word 201cpoint201d should be deleted and the word 201cunder201d should be substituted; at page 8, line 11, the word 201cOr201d should be substituted for the word 201cNor201d and 201chave raised201d should be substituted for 201cit raise;201d at page 11, line 8, the word 201cmatter201d should be substituted for the word 201cmethod;201d and, at page 12, line 22, the word 201cproofs201d should be 201cproof.201d

   pital of Salem County located at Woodstown Road, Salem, New Jersey, excluding all other employees, managers, guards and supervisors as defined in the Act.

   The Union had won a Board-conducted election held on September 1 and 2, 2010, and the Board rejected Respondent2019s objections to the conduct of that election (GC Exh. 2).³

   On August 15, 2011, the Union2019s staff representative, Sandra Lane, wrote a letter to Respondent2019s interim chief executive officer, Richard Grogan, requesting information from the Respondent in advance of contract negotiations, which she asked to be scheduled later in the year. The information request included such items as a list of employees, with rates of pay, hours, benefits and other related matters. It also included items such as hours and other information with respect to agency staff, that is, contract employees, who performed the same type of work as employees in the unit represented by the Union. The complete information request was as follows:

1. Bargaining Unit Information:

   Please provide in a Microsoft Excel File (or similar spreadsheet program) a list of current bargaining unit employees by first and last name. For each employee, please include:

   f0b7 Date of Hire f0b7 Years of accredited RN experience as of August 1, 2011 f0b7 Unit/Department f0b7 Status (i.e. Full Time, Part Time,

   PRN/Per Diem)

   f0b7 Base rate of pay f0b7 Scheduled hours and shift per week

   f0b7 Total earnings for 2010 and 2011 to date

   f0b7 Total hours worked in 2010 and

   2011 to date

   f0b7 Regular hours worked 2010 and

   2011 to date

   f0b7 Overtime hours worked 2010 and

   2011 to date

   f0b7 On call hours worked 2010 and

   2011 to date

   f0b7 Shift differential payments 2010 and 2011 to date

   f0b7 PTO accrual at present for eligible employees

   1. Total costs for the following items for 2010 and 2011 to present:

      f0b7 On-call pay f0b7 PTO paid for eligible employees

      ³ Respondent subsequently refused the Union2019s request to bargain based on the Board2019s certification. The Board found that such refusal violated Section 8(a)(5) and (1) of the Act. See Board2019s decision reported at 357 NLRB No. 119 (November 29, 2011) (Case No. 42013CA2013 64455). The Respondent has filed a petition to review that decision and the matter is pending, I am advised, in the U.S. Court of Appeals for the D.C. Circuit.

      SALEM HOSPITAL CORP. 3

      f0b7 Shift differential payments f0b7 Education payments

   2. Total number of hours worked by Agency staff for 2011 to present broken down by department.

   3. A list of all agency staff currently working and a copy of their contracts.

   4. The total number of hours worked by bargaining unit employees 2011 to present.

   5. A list of vacant positions in each job title as of August 1, 2011.

   6. A list of all exempt employees.

   7. A list of all departments that have on-call.

2. Pension and Benefits

   1. A list of current employees participating in the 401(k) plan, including the employee2019s Annual Earnings, contributions made by each employee, and the employer match for 2010 and 2011 to present.

   2. Employee and employer payments for health and/or dental insurance, premium cost per eligible employee, and status

3. Staffing

   1. ...