

                  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) &amp; (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 &amp;                                                                           

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 &amp;                                                                           

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  &amp;                                                                           

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 &amp;  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

                                20

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 &amp; 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.                          

                                21

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.               

                                23
