UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 96-1198
PROVIDENCE HOSPITAL AND MERCY HOSPITAL,
Petitioners, Cross-Respondents,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent, Cross-Petitioner.
_________________________
PETITION FOR REVIEW OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
_________________________
Before
Selya and Boudin, Circuit Judges, ______________
and McAuliffe,* District Judge. ______________
_________________________
Maurice M. Cahillane, with whom Egan, Flanagan and Cohen, _____________________ __________________________
P.C. was on brief, for petitioners and cross-respondents. ____
Vincent Falvo, with whom Frederick L. Feinstein, General ______________ _______________________
Counsel, Linda Sher, Associate General Counsel, Aileen A. ___________ ___________
Armstrong, Deputy Associate General Counsel, Linda J. Dreeben, _________ _________________
Supervisory Attorney, and Lisa R. Shearin, Attorney, National _________________
Labor Relations Board, were on brief, for respondent and cross-
petitioner.
_________________________
August 28, 1996
_________________________
_______________
*Of the District of New Hampshire, sitting by designation.
SELYA, Circuit Judge. Petitioners and cross- SELYA, Circuit Judge. _______________
respondents, Providence Hospital and Mercy Hospital
(collectively, the Hospitals), seek judicial review of an adverse
administrative determination. We deny the petition and enforce
the order of respondent and cross-petitioner, the National Labor
Relations Board (the Board).
I. BACKGROUND I. BACKGROUND
The Hospitals are members of the Sisters of Providence
Health System (SPHS), a chain of not-for-profit institutions
operating in western Massachusetts. The Hospitals' nursing
staffs are unionized and the Massachusetts Nurses Association
(MNA) represents the nurses. Spurred by rumors of an impending
consolidation, an MNA representative, Shirley Astle, wrote to the
president of Mercy Hospital on August 11, 1993, requesting
relevant particulars. The hospital responded that it was too
early to predict the changes that might result from a
consolidation, and that in all events a reduction in force would
likely be restricted to management personnel.
Shortly thereafter SPHS announced plans to consolidate
the Hospitals' administrations. As the first step in the pavane,
it appointed Vincent McCorkle as president and chief executive
officer of both institutions. A letter dated September 28, 1993,
sent to the union by a member of the newly unified management
team, confirmed the earlier assurance that, although management
would be "look[ing] at ways to integrate how [the Hospitals]
provide care," there were no definite plans to downsize the
2
bargaining units. It was simply "too early to determine the
nature and extent of any potential impact on employee working
conditions."
On February 24, 1994, McCorkle sent a letter to the
Hospitals' combined work force. The letter informed the
employees of a perceived "need to adjust . . . staffing levels"
and suggested that this adjustment would be accomplished at least
in part by reduction in force.1 Roughly three weeks thereafter
the Hospitals advised local media outlets that some 200 positions
would be eliminated as part of the ongoing consolidation. A
second press release, distributed later that same week, indicated
that despite management's earlier assurances 198 Mercy Hospital
employees and six Providence Hospital employees had been
cashiered.2
On the very day that McCorkle first announced the
impending reduction in force, SPHS and a competing health-care
system, Holyoke-Chicopee Area Health Resources (HCAHR), signed a
memorandum of understanding (MOU) commemorating their intent to
merge. McCorkle informed the Hospitals' employees of the planned
merger on February 25, 1994. Although this statement hinted at a
further reorganization and possible future efficiencies of scale,
____________________
1The communique added that the Hospitals had intended to
delay informing workers about these layoffs until plans
crystallized, but that a threatened news leak forced management's
hand.
2The record indicates that thirty-eight of the individuals
laid off at Mercy were nurses. The record is silent, however, as
to whether any nurses were laid off at Providence.
3
McCorkle claimed that no decisions had been made regarding future
staffing. In short order, SPHS and HCAHR submitted applications
to federal and state agencies in an endeavor to gain necessary
regulatory approvals.
On May 5, 1994 with layoffs a reality and with a
merger now in the offing Astle requested a copy of SPHS's
"business plan," saying that the MNA wanted "to begin its
assessment of the merger's impact on the conditions of work for
the RNs MNA represents at Providence and Mercy Hospitals."
McCorkle temporized while forwarding the request to counsel.
Astle wrote again on May 24, complaining that she had received no
substantive response. The Hospitals' lawyer finally replied on
June 2, but he gave MNA's request the back of his hand; the
attorney took the position that SPHS "is a totally separate
corporation," and, therefore, the Hospitals did not have access
to a copy of the desired document (if, indeed, such a document
existed).
MNA chose not to quibble. Instead, it renewed its
request in somewhat altered form. In letters dated July 26 and
August 5, respectively, it set forth a particularized listing of
documents that it wished to examine, a detailed statement of the
reasons underlying its information requests, and the legal basis
upon which the requests rested.3 Regarding the internal
____________________
3Sandwiched between these requests was a letter from
McCorkle to the Hospitals' employees offering insights anent the
proposed merger. In this missive, dated July 29, 1994, McCorkle
acknowledged that some departments would be amalgamated but
predicted that "most jobs will be saved and moved within the new
4
consolidation, MNA asked that the Hospitals provide copies of (1)
all documents relating to the consolidation (or in lieu thereof,
a detailed explanation of the consolidation); (2) any plans for
further work force reductions at Mercy Hospital; and (3) any
plans regarding changes in the Hospitals' corporate status. As
to the anticipated merger with HCAHR, MNA sought (1) copies of
the MOU and other documents explicating the merger's terms; (2)
plans for, or information about, proposed staffing changes at
Mercy Hospital in consequence of this merger; and (3) all
documents pertaining to the Hospitals' proposed corporate status
within the merged group of facilities. Each request solicited a
response within ten days.
The Hospitals asserted that they needed additional time
to formulate a meaningful response. MNA waited patiently for
more than a month before sending a follow-up letter on September
12. Receiving no immediate response, the union then filed
charges with the Board. As the Board's processing of the
charging papers drew to a close, the Hospitals provided MNA with
some but not all of the requested data, characterizing their
December 29 transmittal as a "response to the NLRB information
charge." The Board's regional director issued a formal complaint
ten days later. In May 1995 on the eve of the NLRB hearing
the Hospitals supplied MNA with materials explaining their
corporate structure and reaffirming that no further layoffs would
____________________
system." An attachment hinted at possible future reductions in
force (though claiming that "right now, we have no game plan for
layoffs").
5
result from the internal consolidation. They furnished no data
relating to the proposed merger with HCAHR.
The matter was heard by an administrative law judge
(ALJ) who took evidence and reserved judgment. Three months
elapsed before the ALJ issued his decision. In the interim HCAHR
purported to terminate the MOU. Displeased no little and quite
some, SPHS filed suit in state court alleging breach of the MOU
and seeking, inter alia, specific performance. _____ ____
II. THE BOARD'S DECISION II. THE BOARD'S DECISION
In September 1995 the ALJ published his findings and a
proposed order. He determined that the Hospitals had breached
their duty to bargain in good faith by withholding information
relevant to the performance of the union's undertakings as a
collective bargaining representative, and had thereby violated
the National Labor Relations Act (NLRA), specifically, 29 U.S.C.
158(a)(1) & (5).
The Hospitals took exception to the decision and
appealed to the Board. The Board adopted the ALJ's findings and
rationale,4 albeit modifying the recommended order slightly. See ___
Providence Hosp., 320 N.L.R.B. No. 60 (Jan. 31, 1996), 1996 WL _________________
48263, at *1. In light of this adoption, we recount those
findings as if they were made ab initio by the Board. __ ______
The Board first addressed MNA's requests for
____________________
4The Board is not obliged to make independent findings or
conduct its own analysis of the factors prompting an order where,
as here, it expressly adopts the ALJ's findings and reasoning.
See NLRB v. Horizon Air Servs., Inc., 761 F.2d 22, 24 n.1 (1st ___ ____ _________________________
Cir. 1985).
6
information regarding the internal consolidation. It adjudged
this information relevant because MNA might well have needed it
"so that it could determine what legal effect if any [the
consolidation] would have on its collective-bargaining agreements
with the hospitals, when it should demand bargaining over the
effects of the transaction," and what effect the restructuring
would have on the bargaining units. See id. at *7. Turning to ___ ___
the requests regarding the proposed merger, the Board found that
information to be relevant, even though not directly linked to
terms and conditions of employment. See id. at *8. It explained ___ ___
that "MNA needed to know the impact of the proposed [merger] on
its contracts," as well as any other possible effects on the
status of the bargaining units. Id. at *9. Moreover, McCorkle's ___
letters to the employees suggested the possibility "that some
decisions might have been made which would affect bargaining unit
employees." Id. ___
III. DISCUSSION III. DISCUSSION
We start by reiterating the deferential standard that
obtains when federal courts review orders of the Board. Then,
before moving to specifics, we discuss in general terms the scope
of an employer's duty to disclose relevant information to an
inquiring union.
A. The Standard of Review. A. The Standard of Review. __ ______________________
When a party challenges the Board's determination that
it has committed an unfair labor practice, an inquiring court
must scrutinize the record as a whole. As to matters of fact,
7
the
court should uphold the Board's findings if they are supported by
substantial evidence. See Universal Camera Corp. v. NLRB, 340 ___ _______________________ ____
U.S. 474, 488 (1951); Teamsters Local Union No. 42 v. NLRB, 825 ____________________________ ____
F.2d 608, 612 (1st Cir. 1987). As to matters of law, appellate
review is plenary. Nevertheless, appellate courts ordinarily
should defer to the Board's interpretations of the statutes it
must enforce, such as the NLRA, whenever such interpretations
flow rationally from the statutory text. See NLRB v. Town & ___ ____ ______
Country Elec., Inc., 116 S. Ct. 450, 453 (1995); NLRB v. Curtin ___________________ ____ ______
Matheson Scientific, Inc., 494 U.S. 775, 778 n.2 (1990). _________________________
B. The Duty to Disclose. B. The Duty to Disclose. __ ____________________
The NLRA imposes upon employers and unions alike a duty
to bargain in good faith over "wages, hours, and other terms and
conditions of employment." 29 U.S.C. 158(d). The right to
bargain collectively would be little more than a hollow promise
if a bargaining representative did not have the concomitant right
to muster the information needed to conduct that bargaining
effectively. Thus, "[t]he duty to bargain collectively . . .
includes a duty to provide relevant information needed by a labor
union for the proper performance of its duties as the employees'
bargaining representative." Detroit Edison Co. v. NLRB, 440 U.S. __________________ ____
301, 303 (1979). A breach of this duty constitutes an unfair
labor practice under 29 U.S.C. 158(a)(5).
Stating the rule is not a surefire means of dispelling
all uncertainty. Relevance, like beauty, sometimes lies in the
8
eye of the beholder, and parties can differ about what
information is (or is not) relevant to a union's functions qua ___
bargaining agent. Stated in traditional terms, requested
information is relevant if it seems probable that the information
will be of legitimate use to the union in carrying out its duties
and responsibilities qua bargaining agent. See NLRB v. Acme ___ ___ ____ ____
Indus. Co., 385 U.S. 432, 437 (1967). Put another way, requested __________
information should be deemed relevant if it is likely to be of
material assistance in evaluating strategies that may be open to
the union as part of its struggle to minimize the adverse effects
of the employer's decisionmaking process on persons within the
bargaining unit. See Western Mass. Elec. Co. v. NLRB, 589 F.2d ___ _______________________ ____
42, 48 (1st Cir. 1978). These liberal formulations of the test
make manifest that the relevancy threshold is low and that the
standard is neither onerous in nature nor stringent in
application.5 This is as it should be, for a union cannot be
expected to chart a prudent course without reliable and
reasonably specific information about the employer's plans.
The Board and the courts have put a gloss on the test
for relevancy a gloss that alters the burden of persuasion
depending upon the nature of the data sought by the union. When
"the requested information concerns wages and related information
____________________
5The standard is analogous to the relevancy standard that
governs in the pretrial discovery process, under which discovery
initiatives are deemed relevant as long as they seem calculated
to lead to the unearthing of admissible evidence. See Acme ___ ____
Indus., 385 U.S. at 437 (approving "discovery-type standard"); ______
NLRB v. New Eng. Newspapers, Inc., 856 F.2d 409, 414 n.4 (1st ____ __________________________
Cir. 1988) (same).
9
for employees in the bargaining unit, the information is
presumptively relevant to bargainable issues." Soule Glass & ______________
Glazing Co. v. NLRB, 652 F.2d 1055, 1093 (1st Cir. 1981) ____________ ____
(citation and internal quotation marks omitted). In such cases
the employer must either disprove relevance or explain why it
cannot furnish the information. See, e.g., NLRB v. Borden, Inc., ___ ____ ____ ____________
600 F.2d 313, 317 (1st Cir. 1979). By contrast, when the
requested information only indirectly implicates the terms and
conditions of employment, it is the union's burden to demonstrate
the relevance of the information to the performance of its
statutory obligations. See Western Mass. Elec., 573 F.2d at 105. ___ ___________________
Despite this dichotomy, however, the ultimate standard of
relevancy does not vary. Moreover, in both situations it is
necessary to measure relevance under the totality of the
circumstances that obtain in a particular case. See NLRB v. ___ ____
Truitt Mfg. Co, 351 U.S. 149, 153-54 (1956). ______________
Once the Board has made its assessment of whether
particular information must be produced, the standard of review
looms large. At that juncture, a reviewing court should accord
considerable respect both to the Board's determination and to the
factual findings underpinning it. See NLRB v. New Eng. ___ ____ _________
Newspapers, Inc., 856 F.2d 409, 414 (1st Cir. 1988). ________________
C. The Merits. C. The Merits. __ __________
It is against this backdrop that we mull the
assignments of error. The Hospitals interpose both relevancy and
confidentiality objections to the Board's decision concerning the
10
requests for merger-related information. They lodge relevancy
and substantial compliance objections to the Board's decision
concerning the requests for consolidation-related information.
Finally, they question the scope of the Board's order. Although
the applicable legal principles overlap, we treat these five
points separately.
1. Relevance of the Planned Merger. The Hospitals' 1. Relevance of the Planned Merger. _________________________________
relevancy objection to the compulsory sharing of merger-related
information is painted with too broad a brush. Whatever
generalities may pertain to proposed mergers in the abstract, the
concrete (and somewhat unusual) factual circumstances surrounding
this proposed merger afford substantial evidence adequate to
support the Board's order.
To be sure, certain management actions that ultimately
may have a significant impact on the terms and conditions of
employment within the bargaining unit are nonetheless beyond the
purview of collective bargaining. In a much-quoted turn of
phrase, Justice Stewart referred to these actions as comprising
"the core of entrepreneurial control." Fibreboard Paper Prods. _______________________
Co. v. NLRB, 379 U.S. 203, 223 (1964) (Stewart, J., concurring). ___ ____
The thesis holds that important management decisions, such as
choosing a marketing strategy or liquidating lines of business,
are not concinnous subjects for mandatory collective bargaining
because they "are fundamental to the basic direction of [the]
corporate enterprise." Id. The components forming this core of ___
entrepreneurial control are often classified as comprising
11
matters that are "akin to the decision whether to be in business
at all." First National Maint. Corp. v. NLRB, 452 U.S. 666, 676 ___________________________ ____
(1981). And while such matters are not primarily addressed to
conditions of employment, they may have effects sometimes
profound effects upon those conditions.
Although the content of this core of entrepreneurial
control eludes a precise description, see United Food & ___ _______________
Commercial Workers, Etc., v. NLRB, 1 F.3d 24, 30-33 (D.C. Cir. _________________________ ____
1993), it is plain that the decision to merge two unrelated
corporate entities falls within it. See International Ass'n of ___ ______________________
Machinists & Aerospace Workers v. Northeast Airlines, Inc., 473 _______________________________ _________________________
F.2d 549, 556-57 (1st Cir.), cert. denied, 409 U.S. 845 (1972).6 _____ ______
Thus, MNA had no right either to veto the decision to merge or to
request information for the purpose of intruding into the
negotiations between the merger partners (SPHS and HCAHR).
Still, there is an important distinction between the
right to bargain about a core entrepreneurial business decision
(a right which a union does not possess) and the right to bargain
about the effects of that decision on employees within a
bargaining unit (a right which, depending upon the overall
____________________
6We think that mergers involving independent entities are to
be distinguished from internal consolidations involving a
combination or realignment of subsidiaries owned by a common
parent. Such internal consolidations do not require the same
degree of "secrecy, flexibility and quickness" that, according to
Northeast Airlines, 473 F.2d at 557, renders arm's-length mergers __________________
not easily susceptible of collective bargaining. In any event,
the Hospitals do not contend that the decision to consolidate
internally, as opposed to the decision to merge with an external
partner, comes within the core of entrepreneurial control, and,
accordingly, we express no opinion on the topic.
12
circumstances, a union may possess). After all, subject to
considerations such as relevancy and immediacy, unions generally
enjoy the right to bargain over the effects of decisions which
are not themselves mandatory subjects of collective bargaining.
See First National Maint., 452 U.S. at 681; Northeast Airlines, ___ _____________________ ___________________
473 F.2d at 557. It follows that, even when a particular
managerial decision is not itself a mandatory subject of
bargaining, the decision's forecasted impact on salaries,
employment levels, or other terms and conditions of employment
may constitute a mandatory subject of collective bargaining.
See, e.g., Holly Farms Corp. v. NLRB, 48 F.3d 1360, 1368 (4th ___ ____ __________________ ____
Cir. 1995), aff'd, 116 S. Ct. 1396 (1996); New Eng. Newspapers, _____ ____________________
856 F.2d at 413; Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 26 _____________________ ____
(1st Cir.), cert. denied, 464 U.S. 892 (1983). Embracing this _____ ______
tenet, MNA contends that its requests for merger-related
information were relevant to "effects bargaining," and therefore
should have been honored.
In an effort to parry the union's thrust, the Hospitals
offer two reasons why MNA could not properly predicate these
information requests on a desire to engage in effects bargaining.
They suggest that (1) such bargaining always must await the
culmination of a pending merger (and here, the parties have not
finalized the transaction and may never do so), and (2) even if a
pending merger can sometimes be an appropriate subject of effects
bargaining, the prospects of this particular merger are too dim
and its outline too amorphous to warrant a finding of relevancy
13
(especially since restraint-of-trade laws may limit any detailed
discussions of operating efficiencies until the merger is
consummated). In our view, neither suggestion is convincing.
The Hospitals' contention that effects bargaining (or,
more accurately, the gathering of information preliminary to
effects bargaining) always must await the consummation of a
merger depends almost entirely on their reading of our decision
in Northeast Airlines. That decision however, is incapable of __________________
carrying the cargo that the Hospitals load on it. For one thing,
the question that we discussed in Northeast Airlines arose in a __________________
materially different legal posture. There we affirmed the
district court's denial of an injunction sought by a union as a
means of preventing the merger of the employer into an
independent company. See Northeast Airlines, 473 F.2d at 558. ___ __________________
We hung our decision on the district court's balancing of the
equities standard fare in cases seeking injunctive relief. For
another thing, the union's goal in the Northeast Airlines case __________________
was to require the employer to incorporate the union's views into
the framework of the contemplated merger. See id. Here, ___ ___
however, the union sought neither to halt the merger nor to
meddle in the negotiations between the merging entities.7
____________________
7Another difference but one to which we attach little
weight is that Northeast Airlines involved the Railway Labor __________________
Act (RLA), 45 U.S.C. 151-188. We deem it settled that cases
brought under the RLA can inform the decisional process under the
NLRA. See, e.g., Trans World Airlines v. Independent Fed. of ___ ____ _____________________ ____________________
Flight Attendants, 489 U.S. 426, 426-27 (1989); Lebow v. American _________________ _____ ________
Trans Air, Inc., 86 F.3d 661, 665-66 (7th Cir. 1996); Brotherhood _______________ ___________
of Locomotive Engineers v. Kansas City So. Ry. Co., 26 F.3d 787, ________________________ _______________________
795 (8th Cir.), cert. denied, 115 S. Ct. 320 (1994). _____ ______
14
Because considerations not present here informed the Northeast _________
Airlines court's discussion of the core of entrepreneurial ________
control, we think that Northeast Airlines can be reconciled ___________________
easily with authority (to which we subscribe) holding that, as
long as a pending merger is sufficiently advanced, a union is
entitled to request information shown by the totality of the
circumstances to be relevant in order to prepare for effects
bargaining. See Holly Farms, 48 F.3d at 1360 (upholding Board's ___ ___________
finding that employer's failure to produce merger agreement when
requested pre-merger constituted an unfair labor practice)
(enforcing 311 N.L.R.B. 273, 350 (1993)); Children's Hosp. of San _______________________
Francisco, 312 N.L.R.B. 920, 923 (1993) (ordering disclosure of _________
merger agreement because its contents, even before the merger was
consummated, "clearly would have influenced [the union] as to
negotiating tactics, positions, and demands").
This brings us to the Hospitals' second argument. It
is common ground that a union cannot demand bargaining over
effects that are purely speculative, ephemeral, or too far
removed from the underlying activity. See Detroit Edison, 440 ___ ______________
U.S. at 314-15; Northeast Airlines, 473 F.2d at 558. But in this __________________
instance, the Hospitals themselves presented the planned merger
to their employees and to the media as a fait accompli. Their
press release spoke in categorical terms, and a subsequent
memorandum sent by McCorkle to the employees crowed that the
governing boards of both merger partners "have given final
approval to the proposed [transaction]," subject only to
15
regulatory clearances (which, we note, were subsequently
procured). The same communique mentioned "some specifics" about
the system that would result from the merger, including (1) the
partners' plans to "combin[e] some acute care, non-acute care,
and administrative services" across facilities, and (2)
McCorkle's prediction that "most jobs will be saved and moved
within the new System." A newsletter distributed by the
Hospitals in the same time frame suggested that the merger would
be completed in three to six months. It informed the work force
that, although "right now, [SPHS and HCAHR] have no game plan for
layoffs," the workers should expect "a significant reallocation
of jobs within the new System" at some point.
A union is entitled to plan in advance for likely
contingencies. Under the totality of the circumstances that
existed here especially the employer's expressed confidence
that the merger would take place soon and the emphasis in its
handouts on the reallocation of personnel we believe it was
within the Board's authority to find that the union's professed
need for specifics about the merger's probable impact on the
bargaining unit was reasonable. See Union Builders, Inc. v. ___ _____________________
NLRB, 68 F.3d 520, 523 (1st Cir. 1995) (explaining that employers ____
must "divulge information of even merely potential relevance").
In other words, given management's professed near-certainty that
the merger would eventuate and its broad hints that it already
had formulated some ideas relative to future staffing of the new
system, the Board reasonably could find as it did that MNA
16
needed information both about the proposed merger (for the
purpose of bargaining over its effects, if and when necessary)
and the structural attributes of the new system (to determine
whether the collective bargaining agreements would survive the
realignment). Thus, substantial evidence supported the Board's
endorsement of the union's requests for merger-related
information.
We add an eschotocol of sorts. The Hospitals claim
that the ultimate failure of the merger8 takes two bites out of
the Board's case, serving not only to moot the information
requests but also to underscore their prematurity. We are not
persuaded. The relevance of requested information must be
determined by the circumstances that exist at the time the union
makes the request, not by the circumstances that obtain at the
time an agency or a court finally vindicates the union's right to
divulgement. See NLRB v. Arkansas Rice Growers Coop. Ass'n, 400 ___ ____ _________________________________
F.2d 565, 567 (8th Cir. 1968); Mary Thompson Hosp., 296 N.L.R.B. ___________________
1245, 1250 (1989), enforced, 943 F.2d 741 (7th Cir. 1991). Were ________
the law otherwise, an employer would have a perverse incentive to
drag its feet, and a union could lose deserved rights through the
ticking of the clock and the delay inherent in the adjudicatory
process.
2. Confidentiality. The Hospitals' second line of 2. Confidentiality. _______________
____________________
8In candor, it is far from clear that the merger is a dead
letter. SPHS's suit against HCAHR is still pending in the state
court. In its complaint SPHS terms the MOU "binding" and asks
for specific performance.
17
defense is that the MOU was subject to a side agreement requiring
the parties to keep all matters pertaining to the merger secret.
We agree with the basic premise on which this defense rests: an
employer's commitment to, or genuine need for, confidentiality
sometimes can constitute an appropriate reason for keeping
documents even documents that are potentially relevant to the
collective bargaining process out of a union's hands. See ___
Detroit Edison, 440 U.S. at 319. And when confidentiality is ______________
properly put in issue, the Board must carefully balance the
employer's need for privacy against the union's need to make
informed decisions in its capacity as the employees' bargaining
representative. See New Eng. Newspapers, 856 F.2d at 413. ___ ___________________
But there is less here than meets the eye. Because
confidentiality is in the nature of an affirmative defense, it is
the employer's burden to demonstrate that the requested
information is shielded by a legitimate privacy claim. See Mary ___ ____
Thompson Hosp. v. NLRB, 943 F.2d 741, 747 (7th Cir. 1991); see ______________ ____ ___
generally Borden, 600 F.2d at 317 (assuming relevancy, it is the _________ ______
employer's burden to provide some good and sufficient reason why
the union's request should be denied). Moreover, to permit the
requisite balancing, the employer normally must advance its claim
of confidentiality in its response to the union's information
request. Only in that way will the parties have a fair
opportunity to confront the problem head-on and bargain for a
partial disclosure that will satisfy the legitimate concerns of
both sides. See Mary Thompson Hosp., 943 F.2d at 747. ___ ___________________
18
Setting this principle into motion, the Board has held
that it is untimely for an employer to raise a confidentiality
objection to an information request for the first time after
proceedings before the Board have been commenced. See Detroit ___ _______
Newspaper Agency, 317 N.L.R.B. 1071, 1072 (1995). This protocol ________________
represents a responsible application of the statutory duty to
bargain in good faith, and we must therefore defer to the Board's
expertise. Thus, because the Hospitals failed to follow the
proper procedural sequence and neglected to assert a
confidentiality objection in their exchange with the union, we
reject this line of defense.9
3. Relevance of the Internal Consolidation. The Board 3. Relevance of the Internal Consolidation. _______________________________________
also found that MNA's requests for information regarding the
consolidation were relevant. This finding cannot seriously be
questioned.
MNA initially sought this information in the summer of
1993. It honed the information requests and renewed them several
times in the succeeding months. Aside from broad denials that
the consolidation would have any effect on the bargaining units,
management's first substantive response came late in 1994 (after
MNA had preferred charges and the Board was on the verge of
issuing a complaint). In the intervening fifteen months (during
____________________
9The Hospitals' asseveration that they could not explain the
need for confidentiality without revealing privileged information
proves too much. If that was the case, then the Hospitals were
obliged to cite that dilemma in response to the MNA's requests.
They did not do so.
19
which interval MNA made five separate requests for information
about the consolidation) the Hospitals laid off more than 200
workers. In light of the continuing uncertainty about imminent
corporate restructuring uncertainty fed by statements
attributable to management MNA reasonably could have believed
that further changes were in the offing. Consequently, the Board
plausibly could have found as it did that the requested
information had great importance to the union and was, therefore,
relevant. This is especially so in view of the fact that the
collective bargaining agreement at Providence Hospital expired on
December 31, 1994, unless automatically renewed, and MNA had to
decide no later than October 1, 1994 whether to allow the
contract to renew automatically or to reopen negotiations.
The Hospitals offer no convincing rebuttal to the
Board's relevancy finding. As the Board noted, see Providence ___ __________
Hosp., 1996 WL 48263, at *7, the Hospitals' position boils down _____
to a naked assertion that the union had to take management at its
word that the organizational changes portended no further
alterations in staffing. That is not the way the world works: a
union is not bound to accept management's ipse dixit, especially ____ _____
when, as now, the totality of the circumstances indicates that
something else may be afoot. Here, extensive layoffs had
followed past assurances from management, and the union had every
reason to probe. It requested information which, if extant, had
undeniable relevance for the purpose of effects bargaining.
Thus, MNA had a statutory right to receive this information in a
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timely fashion, or in lieu thereof to receive a contemporaneous
written statement as to some legally sufficient reason why it
could not be produced (say, that no such information existed or
that it was somehow privileged).10
4. Substantial Compliance. We dismiss out of hand the 4. Substantial Compliance. ______________________
Hospitals' suggestion that their belated disclosure of
consolidation-related information cures their default. MNA made
a series of information requests over a period spanning thirteen
months. The Hospitals stonewalled for that entire length of
time. They then furnished some information in December of 1994
(after the Board investigation had begun) and some in May of 1995
(on the eve of the hearing). Even assuming arguendo that the two ________
batches of belatedly supplied information in the aggregate
fulfilled the union's requests, the Hospitals' act of contrition
came too late. As the Board explained, the protracted delay that
separated the requests from the divulgement of data could "not be
attributed to the time needed to assemble the information
furnished." Id. at *8. A union is entitled to timely disclosure ___
of relevant information. See Capitol Steel & Iron Co. v. NLRB, ___ _________________________ ____
89 F.3d 692, 697 (10th Cir. 1996); Borden, 600 F.2d at 318; ______
____________________
10We reject the Hospitals' contention that public
availability of the requested information obviated the need for
disclosure. The argument is inherently circular: MNA could not
possibly know that all the information was in the public domain
if the Hospitals refused to turn over the requested documents or
to make any other substantive response. At the very least, the
Hospitals had the duty to explain to MNA in a timely fashion that
everything was out in the open. As the Board put it, "the Union
was entitled to hear that [news] directly from the [Hospitals]."
Providence Hosp., 1996 WL 48263, at *8. ________________
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Western Mass. Elec., 589 F.2d at 46 n.6. Because the Hospitals ___________________
failed to provide MNA with relevant documentation regarding the
consolidation "as promptly as circumstances allow," Capitol _______
Steel, 89 F.3d at 698 (quoting Decker Coal Co., 301 N.L.R.B. 729, _____ _______________
740 (1991)), the Board's finding of an unfair labor practice is
unimpugnable.
5. The Scope of the Order. We briefly touch upon the 5. The Scope of the Order. ______________________
Hospitals' objection to the Board's remedial order. Some
background is desirable. The ALJ initially recommended that the
Hospitals be required to furnish "in a timely fashion, on
request, information concerning any proposed affiliation or
consolidation of Mercy Hospital and Providence Hospitals with one
another and concerning proposed mergers, consolidations, or
affiliations of Providence and Mercy Hospitals with other health
care providers." See Providence Hosp., 1996 WL 48263, at *11. ___ _________________
This language contains an evident ambiguity, raising uncertainty
as to whether it applies to all mergers (past and future), or
only to the stalled SPHS/HCAHR merger, or strictly to future
(indeterminate) mergers. The Board removed this ambiguity,
modifying the recommended order "to require the Hospitals to
furnish to [MNA] the information requested in [MNA's] requests of
July 26 and August 5, 1994." Id. at *1 n.1. To the Board's way ___
of thinking, this modification "more closely reflects the
violations found." Id. ___
The modified order responds to the reality that, here,
an unusual concatenation of events exist, e.g., the Hospitals'
22
presentation of the merger as a done deal, their insistence that
the MOU obligated the signing parties even after HCAHR had
repudiated it, and their stonewalling in the face of repeated
information requests. What is more, by specifying the
information that the Hospitals must disclose, the Board limits
the remedy and leaves future transactions untouched. This step
fits neatly with our belief that each situation is sui generis, ___ _______
and that pending mergers may or may not be a proper subject of
effects bargaining (depending on the individualized
circumstances). Based on these considerations, the modification
falls well within the Board's province.
IV. CONCLUSION IV. CONCLUSION
We need go no further. For the reasons elucidated
above, we hold that the Board's decision and order comport with
applicable precedent and are supported by substantial evidence in
the record.
The petition for review is denied. The cross-petition The petition for review is denied. The cross-petition __________________________________ __________________
for enforcement is granted. Costs will be taxed in favor of the for enforcement is granted. Costs will be taxed in favor of the __________________________ ____________________________________
Board. Board. _____
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