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NLRB Administrative Judge Rules Employer Should Have Responded to Union Information Request About Replacement Workers.

May 31, 2013

A NLRB Administrative Law Judge (“ALJ”) recently held that a hospital committed an unfair labor practice when it refused to provide the union with information regarding its contract to procure strike replacements.  During contract negotiations, the union that represented a hospital’s nurses informed that the hospital that nurses would engage in a one-day strike.  In response, the hospital engaged a staffing agency to supply replacement nurses.  Because the staffing agency required a five-day minimum for replacement nurses, the hospital informed the union that nurses could not return to work until after the five-day period.  The union then sent an information request to the hospital seeking a copy of the contract with the staffing agency; any and all documents related to the negotiation of the agreement with the staffing agency; and copies of all contracts the hospital entered with staffing agencies for the past three years.  The hospital refused to produce the documents, objecting that the information sought did not relate to the terms and conditions of employment for bargaining unit members and that the information was confidential, proprietary business and/or financial information and protected by the attorney-client and/or work product privileges.

The ALJ rejected the hospital's position.  The ALJ reasoned that where a hospital exercises its right to delay reinstatement of striking workers because it has guaranteed temporary replacement workers minimum work days, a union’s request for the temporary staffing contract is relevant to substantiate the hospital’s position.  The judge also found that documents related to the negotiation of the staffing contract and prior staffing contracts were relevant for the same reason. The ALJ concluded that the hospital violated the NLRA and ordered the hospital to produce the documents