Confidentiality Claims Rejected by NLRB

Date: May 29, 2014

A recent decision by the National Labor Relations Board provides guidance about what does and does not qualify as “confidential” information that an employer could withhold from an employee bargaining unit.  In Washington Hospital Center d/b/a Medstar Washington Hospital Center and National Nurses United (May 9, 2014), the Board addressed the Hospital’s refusal to produce to National Nurses United (“NNU”) two documents: (1) the results of a safety survey that the Hospital’s nurses had completed (“safety survey”) and (2) a staffing matrix that the Hospital had developed to inform its decisions about the amount of nursing staff necessary on particular shifts in its various departments (“staffing matrix”).  

The Hospital had informed the NNU that it considered the documents to be confidential. The Hospital offered the NNU the opportunity to look at, but not copy, the safety survey results, as long as the NNU did not share the information with the nurses or anyone outside the Hospital.  The NNU rejected the offer.  Regarding the staffing matrix, the Hospital insisted on a confidentiality agreement before providing the information, noting its concern that the NNU might otherwise provide the information to the press. The NNU declined that offer as well.

The NNU filed unfair labor practice charges as a result of the Hospital’s failure to produce the requested documents.  The Administrative Law Judge found that neither document qualified as “confidential,” and ordered the Hospital to produce the documents.   The Judge explained that, based on prior NLRB decisions, what can qualify as “confidential” information during bargaining is limited to information within the following general categories:

  1. That which would reveal, contrary to promises or reasonable expectations ‘highly personal information,’ such as medical records;
  2. That which would reveal proprietary information, such as trade secrets;
  3. That which could reasonably be expected to lead to harassment or retaliation, such as identity of witnesses; and 
  4. That which is traditionally viewed as privileged, such as memoranda prepared for pending lawsuits.

The Judge concluded that neither document fit into any of these categories.  Regarding the safety survey, the participating nurses were not required to identify themselves, and there was no reason to believe that nurses would be discouraged from participating in future surveys if the results were released to the NNU.  In addition, the Hospital was required to conduct the survey to maintain its accreditation; thus, there was no basis for the argument that the Hospital would be inhibited from conducting the survey in the future.  As to the staffing matrix, the Judge determined that the Hospital’s refusal was “illegitimate,” because unions and employees are permitted by the National Labor Relations Act to appeal to the public and public agencies “to improve their lot as employees.” 

The National Labor Relations Board adopted the Administrative Law Judge’s conclusions.