East Tennessee Baptist Hospital, Petitioner/cross-Respondent v. National Labor Relations Board, Respondent/cross-Petitioner

H39 government unpersuasive Piccolo, (6th States v. 1234, 723 F.2d instructions, argues Cir.1983), denied, when it taken 970, cert. together, adequate substantially 2342, cov (1984). 80 L.Ed.2d 817 We there justification proffered er Newcomb’s defense. reject fore challenge. this present justification The court did not as a grounds acquittal, and did not indicate V. justification that the defense of has a basis in conclusion, we have determined that in Furthermore, the law. the court’s instruc jury this case the should have been instruct- possession possession tion that is nonetheless justification ed on the defense. As it was regardless length of the directly of time un not, we judgment REVERSE the of convic- Therefore, dercut defense. Newcomb’s tion and sentence and REMAND the matter

fact that the court summarized Newcomb’s for a new trial. theory compensate of the case did not for its give failure to Newcomb’s instruc justification. give The failure to

type requested by of instruction the defen

dant, accurately albeit one that stated the justification, significantly impaired

law of

Newcomb’s case.

IV. EAST TENNESSEE BAPTIST Finally, that, Newcomb argued has also HOSPITAL, Petitioner/Cross- 5861(d), § under 26 U.S.C. a defendant must Respondent, be aware of the weapon characteristics of the subject that make it registration, and that only possessed because he weapon for a NATIONAL LABOR RELATIONS moment, length characteristic that —the BOARD, Respondent/Cross- subject regulation makes it not im- —was Petitioner. mediately apparent to him. He cites United 91-6171, 91-6294. Williams, Nos. States v. 872 F.2d 773 Cir. 1989), support There, proposition. of this Appeals, United States Court of

the court held that when a defendant was Sixth Circuit. charged possessing a firearm that had “by been rendered automatic internal modifi- 6, Argued Aug. 1992. change cations which did not the external 7, Decided Oct. appearance 774, gun,” of the id. at then “the government required show defen-

dants knew that a ‘firearm’ legislatively

defined was transferred.” Id. at 777. object

Newcomb failed to to the standard

jury issue,, instruction this and we plain

therefore review for only. error Unit Sturman,

ed States v. — (6th Cir.1991), denied, -, cert. U.S. (1992). 112 S.Ct. 119 L.Ed.2d 586 We Williams, apply only

read 872 F.2d at dangerousness cases where the Thus,

instrumentality assign- is hidden.

ment of give error does not finding rise to “a'

that, whole, jury taken as a instructions clearly

were so likely pro- erroneous as to grave justice.”

duce a miscarriage of United Rayson (argued B. Rayson, John

E.H. Kramer, Rayson, briefed), L. Gpoch, Warren TN, Knoxville, Rodgers, McVeigh, Leake & Hosp. Baptist Tennessee for East (briefed), Stocking Mag- existing wage equal Collis Suzanne rate percentage N.L.R.B., (not (argued), adjustment dalena Revuelta Office of market including Counsel, DC, Washington, special wage adjustment) the General Mar- market that non- Arlook, Director, N.L.R.B., Region tin M. will receive in Atlanta, GA, 1988; Armstrong, Deputy July, Aileen A. . Counsel, N.L.R.B., Appellate Gen. Assoc. 19.2(b) Article Section agree- of the 1988 Branch, DC, Washington, Court for N.L.R.B. argued ment. It that it was entitled to the information so that it verify could SILER, Before: MARTIN and Circuit unit employees and nonunit were treated .CLELAND, Judges; Judge.* and District equally. CLELAND, Judge. District Hospital The supply declined to the re- quested stating that it was under Baptist Hospital (“Hospi- East Tennessee obligation information to the tal”) seeks of review and National Labor Union employees. Short- Relations Board seeks enforcement of its thereafter, ly expanded Union scope finding Hospital order and decision request of indicating required that it practices by refusing committed unfair labor job information for nonunit both employees. information on nonunit before and percent wage after the 5 increase. below, For the reasons stated we affirm in Hospital again The stating declined that such deny part part and enforcement of the (both information was confidential to the non- Board’s order. employee unit Hospital) and the and that it was therefore obligated FACTUAL BACKGROUND Instead, requested. records suggested primary The issues this case revolve mutually agreed that a upon public certified interpretation application around the and accountant be hired to review the records bargaining agreements two collective report and then if any there were violations Hospital entered into with Office and agreement. of the collective bargaining The Employees Professional International Union Union Hospital’s suggested refused the (“Union”). agreement The first covered course action. second, 1988-1989 and the 1989-1991. The second issue arises out the 1989collec-- disagreement The first issue arises out of a bargaining five agreement. Following the relating wage records information. of the agreement, execution 1989 After bargaining agree- the 1988 collective grievance filed a Hospital involving executed, Hospital ment was decided on a three-day layoff employee of a union be percent general wage 5 increase which was cause of excessive absenteeism. The granted employees. to all unit and nonunit attendance, requested copies suspen of all 19, 1988, August On the Union wrote the discharge sion and bargaining records for all Hospital requesting certain information in- non-bargaining unit and unit from “names, job cluding the titles and rates of 1, 1988,up including June to and the week it pay July wage increase for before supplied the information. It its re based ETBH non-bargaining employees.” all unit quest language in Article 19 of the 1989- request The Union based following on the agreement provided per which that all language contained within the collective bar- policies sonnel pertain equal were to on an gaining agreement: Hospital basis to all The re [Ejffective July. 4, 1988, employee fused, calling “excessively each request bur adjustment shall wage receive market any legitimate densome and out of line with percentage employee’s based on a of the or need interest of the Union.”1 The Union * take, Cleland, The Honorable Robert H. United The States calculated that would Judge District Eastern District of Michi- person comply a full week to with work gan, sitting by designation. request. Union's employees only 1. The had 1800 200 of which were members of the unit. records, Hospital had failed to review to review Pope, offered

representative, request was burd the Union’s rep- establish himself. employee records ensome.4 a meet- suggested resentative, Standley, the issue. discuss place to ing take the Board The ALJ recommended engaged unfair find that November, eaidy two met it had violated practices and that labor all the records of Standley provided (5) 8(a)(1) Act. Relations §§ Labor supply the Union offered employees and and desist that a cease He recommended employee the any nonunit all Hospital be entered and that order be having suspected identify could ‘access to the allow the Union ordered to in an “absentee” treatment received “better” records. employee attendance Pope refused employee.2 a unit than context timely exceptions to the Re- Hospital filed to all access he be allowed insisted and port. employee attendance records. nonunit panel of the Board The three-member BACKGROUND PROCEDURAL Report slightly and ALJ’s adopted the in a 2-1 decision. amended the Order foregoing3, Union the upon the Based pro- the contract that National Labor Board concluded since from the sought an order employees to re- unit and Hospital to vided nonunit requiring the for Relations Board increase, there were no wage case was ceive the same records. The its allow access to Hospital could insist on judge on the grounds which law assigned to administrative entitlement to any At the to the (“ALJ”) argument. Union’s hearing and restrictions for held wage records. The Board ALJ, represen access to the Union the hearing before the “ostensibly Hospital relin- had the Hos that the he had advised that tative testified contract, any by the terms of the agree quished,” to the not could pital that the Union (1) to these records. It cost to control access it would requirement because CPA employ- Hospital’s proposal of “right the (2) the discounted needed too much and stating “mutually agreeable” CPA that any kind verify independently go out and Hospital power” a “veto give the concluded it would The ALJ wage information.” agent would be. Addi- employ the Union’s of nonunit over who wage Hospital had tionally, the Board held the to the Union’s ees was relevant wage was so required the not shown contract responsibilities because necessary to inter- complex that a CPA was between and equal treatment The issue of “burdensome- pret the Hos the records. concluded that He also separately addressed the its bar ness” to accommodate pital did seek regard Board. confiden obligations with gaining Hospital had taken tiality, stating Hospital appeals decision of claiming first position” “an inconsistent unfair finding that it had committed Board expressing a by then later confidentiality and requiring it to practices and order labor records. a CPA review the

willingness to let rec- wage to its attendance allow and access Specifically, representatives. employee at- ords to Union the nonunit reference Board errone- argues that Hospital records, the ALJ concluded tendance its had waived that, ously view of held these were relevant the form and statutory right over Hospital and come to the Pope’s offer to respect are findings in this of the Board had 2. The record established grant employee the Board's re- The Court will one nonunit correct. name of at least regarding work.” of a lot of JA-132. order quest a hell enforcement of its "missed Rimmer. Sharon presented to the to these Issues additional However, against Board ruled Board also. recall) (or Standley 4.Although denied failed pursue counts and it did not those review the Pope in and had offered to come that record, charge appeal. part One other them as credibility that full the AU determined employee Sharon against Standley. given Pope be would addressed Rimmer has not been review, Upon conclude appeal we brief.

H43 requested in which requests, manner union’s information the Board apply “discovery be furnished. also and courts type would stan- dard,” finding claims the Board erred that it had under which the informa- engaged practices in unfair since it labor need be relevant and useful to the faith, following good fulfilling union in statutory offered the reasonable obligations in : 1) subject counter-proposals request to the order to be Union’s to disclosure. NLRB v. suggestion independent 432, 437, to use an Acme Industrial CPA to 2) 565, 568, 17 (1967); review the records and the offer to S.Ct. L.Ed.2d 495 Gener supply specific Corp. information on nonunit em al Motors (6th Cir.1983). ployees suspected However, receiving who were bet “[a] union’s ter treatment. bare assertion that it needs information ... automatically does not oblige The Board has cross-filed with this Court supply all the information in the manner request judgment enforcing for a the Board’s requested.” Edison, Detroit 440 U.S. at order in full. 99 S.Ct. at 1131. The union’s interest arguably relevant information does not al- STANDARD OF REVIEW ways predominate legitimate over other in- review, findings On the Board’s terests. Id. at 99 S.Ct. at 1133. upheld they fact if supported by will be are substantial evidence on the record as a As to regarding bargain NLRB, whole. Corp. Universal Camera v. ing employees, a presumption there is 488, 474, 456, 465, 340 71 U.S. S.Ct. 95 L.Ed. sought is relevant to the (1951). application 456 The Board’s bargaining obligation. union’s E.I. Du Pont particular law to facts is also reviewed under NLRB, de Nemours & Co. v. 744 F.2d 536 the substantial evidence standard. (6th Cir.1984). However, when the informa may Board’s reasonable inferences not be of an is about em displaced though on review even the review ployees operations or repre other than those might court have reached a different union, necessary sented the it is for the conclusion had it considered the matter de prove union relevancy to without the benefit Co., NLRB novo. v. United Insurance 390 any presumption. Id. 254, 260, 988, 991, 88 U.S. S.Ct. 19 L.Ed.2d case, In this the Board found that the (1968); Camera, 1083 Universal 340 U.S. at requested wage and attendance information 488, 71 at A reviewing S.Ct. “[c]ourt[ ] relevant and that the commit must, course, set aside Board decisions practices by refusing ted unfair labor turn to legal which rest on an ‘erroneous founda ” allegedly over the relevant information. In Brown, 278, 292, tion.’ NLRB v. 380 U.S. opinion, Hospi its the Board held that the 980, 988, (1965), 85 S.Ct. 13 L.Ed.2d 839 “obligation tal’s to the information citing NLRB v. Babcock & 351 Wilcox arises from the contractual commitment to 105, 112, 679, 684, U.S. 76 100 S.Ct. L.Ed. grant unit and nonunit the same (1956). 975 wage increase”. and that the had “ostensibly relinquished” right to insist DISCUSSION restriction, any upon to the access of confi duty It is well settled that “[t]he to dential information about bargain collectively, imposed upon an em By interpreting the contract in a man such 8(a)(5) ployer by § of the National Labor ner, Board, in swoop, one fell not Act, Relations duty includes a wage determined that and attendance relevant information needed a labor union sought was relevant but also that proper performance for the of its duties as object to the waived employees’ bargaining representative.” disclosure of confidential information. NLRB, 301, Detroit Edison Co. v. 440 U.S. 1123, 1125, agree 99 S.Ct. 59 wage L.Ed.2d 333 We that attendance (1979) (citations omitted). and footnote records in issue are “relevant.” do not We evaluating however, employer’s obligation fulfill agree, Hospital’s refusal to

1144 NLRB, v. Metropolitan Edison Co. requested records disclose the form 693, 708, 103 1467, 1477, Union consti 75 L.Ed.2d 387 S.Ct. demanded manner the. (1983). Here, Because the Hos bargain. has no “clear and tuted a failure there been the confidentiali concern over pital language raised its in the unmistakable” waiver. involved, it became incum ty of the records bargaining agreement collective does that its to demonstrate upon the Union bent minimally approach even which outweighed Hospi need the materials in Local Court constitute waiver found maintaining the confidentiali tal’s interest 1392, International Brotherhood Electri Of D. ty E.W. Buschman Co. of the records. NLRB, cal F.2d 736 Workers (6th Cir.1987). 206, 207 F.2d Cir.1986). The fact that the contract is silent major import—“we on the issue is will adopted it The Board erred when general provision infer from Hos- contractual to discredit the recommendation ALJ’s parties to waive a statutori “confidentiality” ALJ defense. The pital’s intended ly protected right undertaking unless Hospital raised the- issue of noted ” Edison, Metropolitan ‘explicitly stated.’ confidentiality, “subsequently took but that supra at 1477. 460 U.S. at position confiden- an inconsistent “expressed a tiality” willingness when accurately in his Member Oviatt observed records_” permit to examine its a CPA dissent: noted that The ALJ also conclude, majority apparently To prove failed the records could does, agreement providing to a clause protection spite adequate receive equiva- will that market increases be protect it would Union’s assurances agreeing lent is the same as also confidentiality. their Respondent will supportable basis for There is confidential information about nonunit em- fails to see the ALJ’s conclusion. The Court parties’ ployees is to rewrite thé contract. inconsistency expressing in first confidentiali- ty suggesting agree. then that a neu- The erred a matter concerns and We Board party—especially one construing tral third bound of in the contract in such a law legal con- obligations Hospital ethical and maintain manner as to hold that fidentiality—review the records. Member right to access waived its restrict to confiden- “eminently thought prudent.” it So employees. Oviatt tial information of nonunit Be- do we. interpretation Board’s the con- cause the case tract is not consistent with established thought crucial ALJ policies law National nor confidentiality of the protect offered to Act, not Labor Relations it is entitled However, sought. this offer did upon faulty findings No deference. built this hearing until the before the ALJ. materialize stand. foundation can Pope to assure confi- fact that offered dentiality bargaining after the had ceased that the had a There is doubt practice charge and an unfair labor filed does legitimate right to assurance that the substantial evidence for deter- policies evenly being and attendance were confidentiality mining Hospital’s However, applied. they all had a is were We find no basis concerns meritless. relevant, right in- Arguably to. confidential Hospi- for a conclusion record concerning formation nonunit confidentiality anything were tal’s concerns have been if it were should disclosed legitimate. other than policies first that the were ascertained n instances, unevenly applied. . In both well it de The Board erred as when alternative solu- Hospital offered reasonable termined waived—“ostensi would have allowed the Union bly—its tions which bargain over whether evenly whether the contracts were could ascertain restrict access to confidential informa applied protecting the rec- concerning while confidential nonunit It is statutory employees. “Presentation of well ords of nonunit established that waivers company, coupled rights fide concerns must be “clear and unmistakable.” bona

H45 proposals designed satisfy In support of its claim with reasonable that it needed non- employee records, of the union and to achieve a unit the needs suggested, effect, satisfactory mutually may resolution of the union in that there have been collusion bargain.” request, simply not a refusal to is between employee, nonunit Hospital might harboring Shell Oil Co. be undisci- Cir.1972). plined nonunit with absentee problems. However, “[g]ood-faith bargain- In view of the fact that the Union failed to ing necessarily requires that claims made that it was entitled to establish confidential bargainer either should be honest claims.... concerning employees, nonunit If argument important such an enough is Hospital’s find that the offers facial- we present give in the and take of bargaining, it ly pretext reasonable and not a refusal important require enough to some sort of good findings faith. The Board’s proof of' accuracy.” its NLRB v. Truitt contrary supported by to the are sub- Manufacturing 149, 152-53, 351 U.S. stantial evidence. 753, 755-56, 100 (1956) (em L.Ed. 1027 added). phasis Having submitted accusa- similarly reject We the Board’s deci this, tion such as the ball remained in the concerning Hospital’s sion claim of “bur present Union’s court to proof some of the simple densomeness” for the fact neither accuracy. claim’s The record indicates no legal the ALJ in his nor conclusions showing. such Hospital’s Board its order considered the proposal regarding the attendance records. Each step bargaining process up to Hospital’s think proposal We point this resulted in a narrowing down of bargaining process critical to the and there options compromising—toward a common — question fore critical to the of whether the goal providing' the Union with relevant bargain. refused to The Board’s accommodating information while Hospi- proposal requires failure to consider the tal’s At point, concerns. the Union re- find, Additionally, decision to be vacated. we original position and, treated to digging law, as matter of did not effort, its heels with no further bargain. refuse to filed practice charge. an unfair labor In the opinion, Hospital’s Court’s in the face of the employee The Union at- legitimate, objection good coupled faith objected, tendance records. cooperate, an offer to the Union’s “resort to arguing request the was too burdensome. premature.” Emeryville [wa]s Board Pope offered to shoulder some of the burden NLRB, Research Center v. 887 by suggesting that he review the confidential 1971). Cir. Hospital proposed files himself. The that proper sharing more of the burden would be request The Board’s for enforcement of its accomplished present if the Union were to regarding wage order information and at- employees the names of nonunit whom the tendance records is DENIED. The Board’s suspected having prob- Union of absentee request regard- for enforcement of its order escaping .discipline lems but meted out to ing Sharon Rimmer’s transfer is GRANTED. employees. Doing unit so would have elimi- pull nated the copy Pope need to and for Mr. ' MARTIN, Jr., F. Judge, BOYCE Circuit employees records of 1600 nonunit which concurring part dissenting part. and in throughout were in over 60 offices located Hospital. agree majority We find no basis for conclud- I Baptist with the that suggestion anything that this bargain was but did not refuse to over the light way wages reasonable of the fact that these best the union for to ensure that of employees equal. volumes records contained confidential in- for unit and nonunit were however, Hospital’s disagree, formation that majority’s and burden- I with the con- relieving suggestion hospital bargain would have moved-the clusion that continued to parties concerning provide toward reasonable accommodation how to the union with by of concerns held each. sufficient attendance information.

1146 8(a)(1) under section insufficient sponse was informa- attendance for union asked The Act and did Relations the National Labor of non-unit unit and. regarding bargaining. good-faith constitute un- that the objected, arguing hospital The un- The was too burdensome. request ion’s object course, to entitled to Baptist was -Of relieve the proposal to awith ion countered request attend- extent of the Union’s by offering to request of burdensomeness upon Baptist’s belief information ance based hospital investigation itself. request conduct was burdensome. the Union’s with an request, and countered Glazing refused Co. Soule Glass & See for non- Cir.1981), (1st provide attendance which held to offer F.2d suspected of union receive relevant employees to unit union has employ- unit differently information, from and precise in the form being treated but not receiving Baptist, all rele- how- by on the union. union insisted demanded scope ees. The merely objecting ever, to information further than went vant information —all to records, just Baptist both request: infor- refused the Union’s attendance non-unit and to bar- all relevant information employees provide a few non-unit mation for —but providing the method for gain over the best ways for the discuss hospital refused to (cid:127) to know information with sufficient In- Union information. all relevant union receive to the contract. Baptist complying with discipline is regarding attendance formation offer to relieve Following the Union’s 19 of the article information because relevant providing request by of its burdensomeness pro- agreement collective-bargaining 1989-91 rec- help compile attendance personnel policies would treat Baptist’s vided that 8(a)(1) ords, duty under section Baptist had a equally. Baptist members non-unit by either good bargain faith to continue duty had a therefore pro- information or handing over all relevant ensure that its information with sufficient that would allow posing a solution differently. See not treated members complying with the Baptist was to know NLRB v. Acme Industrial turn all rele- By refusing to over contract. 565, 567-68, 17 L.Ed.2d 495 485-36, refusing negotiate vant (1967). question of can be “There to accom- over how further an general obligation of concerns, Bap- legitimate modate Union’s bargaining that is needed 8(a)(1) to duty under section breached its tist proper performance for the representative un- good and committed faith provide attend- Baptist’s offer to its duties.” practice. fair labor the Un- who ance information to discov- allowing a union purpose leniently did treated suspected ion the union is to allow treating unit and er relevant Baptist was not ensure complying employer is to know The fundamen- employees equally. non-unit hospital’s offer the contract. allowing to discover Unions purpose tal ful- records does not only partial attendance them, as to allow information is relevant cannot purpose the union fill this because chosen representative exclusive about the 'non-unit know employ- employees, to ensure being treated are it has no whom collective-bargaining complies with the er Therefore, the same unit that it would Baptist’s response agreement. only a provide hospital offered when employees who provide then re- of relevant information Union, portion le- suspected of treated more further, it failed matter to discuss the fused employees did niently than unit union and committed bargain with to know with sufficient union practice. labor unfair being complied with the contract was em- been non-unit perfect there could have demonstration provides because a case This differently being treated ployees bargain over rele- proper who were method did informa- Regarding wage who the Union information. than unit but vant differently. tion, guarantee, albeit hospital’s offer to being treated suspect were it not treat- party, that was response through would a third By failing differently is was and non-unit Baptist whether allow the Union know good-faith bar- example contract, consummate Baptist’s re- complying with the hospital’s provided offer gaining because the hospital way the union to know that the complying with the contract.

was On hand, hospital’s give

other offer to attendance records was insufficient to

some good-faith

constitute because it way for the union to know

did hospital complying was Therefore, majority’s opinion

contract. states, fundamentally “In flawed when

both instances the offered reason-

able alternative solutions which have would

allowed the whether the ascertain evenly applied protect-

contracts were while

ing the confidential of nonunit em-

ployees.” hospital’s providing offer of

only some attendance records did not allow union to “ascertain whether the contracts evenly applied” because the union sim-

ply partial does not know whether the at- hospi-

tendance records receives from the representative

tal are of all the non-unit em-

ployees. Accordingly, hospital commit- practice

ted an unfair labor when it refused bargain concerning with the union the best

manner for the union to determine whether hospital complying with the contract. my refusal, opinion, hospital with that

refused to with the union and com- practice

mitted an unfair labor I and would

enforce the Board’s order on this issue.

NATIONAL LABOR RELATIONS

BOARD, Petitioner,

CHILDREN’S HOSPITAL OF MICHI-

GAN; Henry System; Ford Health Hospital,

Mount Clemens Re- General

spondents. 92-5068,

Nos. 92-5069 and 92-5304. Appeals,

United States Court of

Sixth Circuit.

Argued March 1993.

Decided Oct.

Case Details

Case Name: East Tennessee Baptist Hospital, Petitioner/cross-Respondent v. National Labor Relations Board, Respondent/cross-Petitioner

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 7, 1993

Citation: 6 F.3d 1139

Docket Number: 91-6171, 91-6294

Court Abbreviation: 6th Cir.