An administrative law judge recently held that a hospital violated the National Labor Relations Act by refusing to provide the National Nurses Union (NNU) with copies of an internal nurse research and quality survey and staffing matrix.  According to the ALJ, while substantial claims of confidentiality may justify refusals to furnish otherwise relevant information, the fact that the hospital had reason to believe that the union would provide internal staffing and patient care survey information to the press did not warrant such refusal. 

In Washington Hospital Center Corp. v. National Nurses United, the hospital had allowed the NNU to review the Agency Healthcare Research and Quality (“AHRQ”) survey, which measured nurses’ perceptions of the quality of care provided to patients at the hospital, but the hospital did not allow the union to copy the survey.  The hospital resisted releasing copies because the union made known its intent to make the internal survey public.  In addition, the hospital declined to provide a copy of the staffing matrix, which was used to determine the expected or average number of nurses and patient care technicians that would be required in each patient care unit at the beginning of each shift, absent a confidentiality agreement, as the hospital similarly believed the NNU intended to release the matrix to the press.

Because the hospital did not dispute that the AHRQ survey results and the staffing matrix were “relevant and necessary to the Union’s role as bargaining representative,” the question before the ALJ was “whether this information is confidential, and if so, whether [the hospital had] bargained in good faith for an accommodation to the production of this information.”

In a brief analysis, the ALJ concluded that both the survey and matrix were not confidential information under existing precedents.  With regard to the concern that the items would be sent to the press, the ALJ specifically noted:

The concern for adverse publicity is . . . illegitimate.  Staffing is a contentious issue at this hospital and many others.  The Union and unit members have a right to appeal to the public and to public agencies.  The protection afforded by Section 7 extends to employee efforts to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship. . . thus, Section 7 protects employee communications to the public that are part of and related to an ongoing labor dispute.

The ALJ explained further:

Fear of embarrassment or adverse publicity does not satisfy the principles enunciated in the Detroit Newspaper case [setting forth what may be classified as confidential]. Since I find that Respondent does not have a legitimate confidentiality interest in either the survey or the staffing matrix, it would be improper and unnecessary to balance the Union’s need for this information with Respondent’s interest in its confidentiality.

Finally, the ALJ dismissed the hospital’s claim that releasing such information would have a chilling effect on the use of such surveys in the future, since accreditation standards require the hospital to perform these types of surveys.

While the ALJ’s findings do not have the weight of a full Board decision, this decision serves as a reminder that internal surveys and staffing documents are potentially subject to public scrutiny, even if considered “confidential” under ordinary circumstances.