McKenzie-Willamette Regional Medical Center Associates, LLC d/b/a McKenzie-Willamette Medical Center

135 MCKENZIE-WILLAMETTE MEDICAL CENTER McKenzie-Willamette Regional Medical Center Asso- ciates, LLC, d/b/a McKenzie-Willamette Medi- cal Center and Service Employees International Union Local 49, CTW-CLC. Case 19–CA– 119098 February 24, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN On November 4, 2014, Administrative Law Judge Dickie Montemayor issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief, and the Re- spondent filed a reply brief and a motion to reopen the record. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions, briefs, and motion to reopen the record, and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommend- ed Order as modified and set forth in full below.2 1. The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide certain information that was requested by the Union in connection with bargaining for a successor collective- bargaining agreement. The complaint also alleges that the Respondent unreasonably delayed providing certain other requested information. At the hearing, Respond- ent’s counsel stated that the only defense the Respondent was asserting was that the complaint was not valid be- cause (1) the appointment of Ronald K. Hooks as Re- gional Director for Region 19 was invalid, and (2) Hooks’ transfer from the Board’s Memphis office to its 1 In affirming the judge’s findings, we find it unnecessary to rely on his citation to Hanson Aggregates BMC, Inc., 353 NLRB 287 (2008), which was decided by a two-member Board. See New Process Steel v. NLRB, 130 S.Ct. 2635 (2010). We do rely, however, on the judge’s citation to Oaktree Capital Management, LLC, 353 NLRB 1242 (2009), another case decided by a two-Member Board. This decision was subsequently incorporated by reference in a decision by a three- member panel of the Board at 355 NLRB 706 (2010), which was en- forced by the Fifth Circuit. See 452 Fed. Appx. 433 (5th Cir. 2011). 2 The judge ordered the Respondent to provide information fully re- sponsive to pars. 1(i), 2, 7, 9, 10, 11, 12, 13b–d, and 15 of the Union’s October 17, 2013 information request. With respect to par. 2 of the request, however, the complaint alleges only that the Respondent un- reasonably delayed in providing this information, not that it failed to provide the information at all. We shall modify the judge’s recom- mended Order to delete the reference to par. 2 of the Union’s infor- mation request and to conform to the Board’s standard remedial lan- guage. We shall substitute a new notice to conform to the Order as modified. Seattle office was also invalid. The Respondent asserted that both of these actions were invalid because the Board lacked a valid quorum on January 6, 2012, the date that the Respondent claimed Hooks was appointed.3 The judge correctly rejected the Respondent’s defense. Although Regional Director Hooks’ appointment was announced on January 6, 2012, the Board approved the appointment on December 22, 2011, at which time it had a valid quorum. See Longshore and Warehouse Local 19 (Seattle Tunnel Partners), 361 NLRB 1031, 1031fn. 1 (2014). Whether Regional Director Hooks actually as- sumed his duties in Region 19 in early 2012, as the Re- spondent suggests, has no bearing on the validity of his appointment or on any of the actions Hooks has taken as Regional Director for Region 19. Beyond entering documents into the record in support of its argument that Hooks’ appointment and transfer were not valid, Respondent’s counsel stated at the hear- ing that he would otherwise not participate in the hear- ing. Respondent’s counsel did not ask any questions of the General Counsel’s witnesses, and the Respondent did not present any witnesses or other evidence of its own regarding the merits of the complaint allegations. We agree with the judge that the evidence presented by the General Counsel establishes the violations alleged in the complaint. Given the Respondent’s decision not to pro- vide a defense on the merits, the evidence stands unre- butted. 2. By its motion to reopen the record, the Respondent seeks to admit evidence that it has reached a successor collective-bargaining agreement with the Union since the close of the hearing. The Respondent argues that this evidence is probative of whether the information request- ed by the Union was necessary for the Union’s repre- sentative role “insofar as the parties were able to reach agreement . . . in spite of any information that the Union had requested, but the Hospital had not produced.” We deny the Respondent’s motion. As the judge correctly found, all of the information requested by the Union was presumptively relevant for purposes of collective bar- gaining, and the Respondent had an obligation to provide the information in a timely fashion upon request.4 See, 3 To support its claim, the Respondent points to the Board’s press re- lease announcing Hooks’ appointment (dated January 6, 2012), and to statements in an appellate brief filed by the Board in the Ninth Circuit in connection with Hooks v. Kitsap Tenant Support Services, Inc. (Dkt. No. 25, Case No. 13-35912 (March 7, 2014)), stating that Hooks was appointed in January 2012. The Board has since filed a motion to correct the references in its brief to reflect Hooks’ actual appointment date of December 22, 2011. See Dkt. No. 31, Case No. 13-35912 (July 31, 2014). 4 Prior to filing its motion to reopen the record, the Respondent had not argued that the information was either irrelevant or unnecessary; as 362 NLRB No. 20 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD e.g., Sause Bros., Inc., 319 NLRB 721, 721 (1995). Fur- ther, contrary to the Respondent’s suggestion, the stand- ard for assessing the relevance of requested information is not whether the Union would be unable to function without it. Instead, it is a liberal “discovery-type” stand- ard, which requires only “the probability that the desired information was relevant, and that it would be of use to the union in carrying out its statutory duties and respon- sibilities.” NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967). The fact that the Union chose to bargain in the absence of complete information and that the parties were able to conclude a successor collective-bargaining agreement does not mean that the information would not have been useful to the Union in bargaining or rebut the presumption of relevance. See White Farm Equipment Co., 242 NLRB 1373, 1374 (1979) (finding that the “most that can be inferred” from execution of new col- lective-bargaining agreement in the absence of requested information “is that the advantages of a contract in hand outweigh those which the Union might later obtain when all relevant information would be available to it,” quot- ing NLRB v. Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (2d Cir. 1951)), enfd. 650 F.2d 334 (D.C. Cir. 1980). ORDER The National Labor Relations Board orders that the Respondent, McKenzie-Willamette Regional Medical Center Associates, LLC, d/b/a McKenzie-Willamette Medical Center, Springfield, Oregon, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Service Employees Inter- national Union, Local 49, CWT-CLC, by unreasonably delaying and/or failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collec- tive-bargaining representative of the Respondent’s unit employees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish to the Union in a timely manner the infor- mation requested by the Union on October 17, 2013. More specifically, Respondent shall provide information discussed above, the Respondent’s only defense was based on the va- lidity of the complaint. At the hearing, the judge granted the General Counsel’s motion to strike the portion of the Respondent’s answer denying that the requested information was both necessary and rele- vant. As a result, the judge deemed these allegations admitted, and the Respondent does not except to that ruling. fully responsive to paragraphs 1(i), 7, 9, 10, 11, 12, 13b– d, and 15 of the October 17, 2013 request. (b) Within 14 days after service by the Region, post at its facility in Springfield, Oregon, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since October 17, 2013. (c) Within 21 days after service by the Region, file with the Regional Director for Region 19 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. 5 If this Order is enforced by a judgment of the United States court of appeals, the words in the notice reading, “Posted by Order of the National Labor Relations Board” shall read, “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 137 MCKENZIE-WILLAMETTE MEDICAL CENTER WE WILL NOT refuse to bargain collectively with Ser- vice Employees International Union, Local 49, CTW- CLC (the Union), by delaying and/or failing and refusing to provide the Union with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of our unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL furnish to the Union in a timely manner the information requested by the Union on October 17, 2013. MCKENZIE-WILLAMETTE REGIONAL MEDICAL CENTER ASSOCIATES, LLC, D/B/A MCKENZIE- WILLAMETTE MEDICAL CENTER The Board’s decision can be found at www.nlrb.gov/case/19-CA-119098 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273–1940. Helena Fiorianti, Esq., for the General Counsel. Bryan T. Carmody, Esq., for the Respondent. Lynn-Marie Crider, Esq., for the Charging Party. DECISION DICKIE MONTEMAYOR, Administrative Law Judge. This case was tried before me on July 8, 2014, in Portland, Oregon. The case involves an allegation that McKenzie-Willamette Regional Medical Center Associates, LLC, d/b/a McKenzie-Willamette Medical Center (Respondent) failed to provide the Service Employees International Union Local 49, CTW-CLC (the Un- ion) certain information requested by the Union. The employer, for its part, did not contest the allegations at the hearing but instead relied on asserted general denials and affirmative de- fenses. Respondent’s contention was that based upon its as- serted denials and defenses, the complaint should be dismissed in its entirety. I find that Respondent violated the National Labor Relations Act (the Act) as alleged. STATEMENT OF THE CASE The complaint alleged that Respondent violated Section 8(a)(5) and (1) of the Act by delaying and failing to provide the Union certain relevant requested information. Respondent filed a timely answer to the complaint denying all violations of the Act. Counsel for the General Counsel, and Respondent filed briefs in support of their positions on August 12, 2014.1 On the entire record, I make the following FINDINGS OF FACT I. JURISDICTION The complaint alleges, Respondent admits, and I find that at all material times, Respondent has been a State of Delaware Limited Liability Company with its place of business in Spring- field, Oregon, and has been operating a hospital providing in- patient and out-patient medical care. The complaint further alleges, Respondent admits, and I find that at all material times Respondent, in conducting these oper- ations, derived gross revenues in excess of $250,000 and pur- chased and received at its corporate headquarters products, goods, and materials valued in excess of $5000 directly from points located outside the State of Oregon. The complaint alleges, Respondent admits, and I find that Respondent is and has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and further, the Union, is, and has been a labor organization within the meaning of Section 2(5) of the Act. Based on the foregoing, I find that this dispute affects com- merce and that the Board has jurisdiction of this case, pursuant to Section 10(a) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that at all times material, the Union has been a labor organization within the meaning of Section 2(5) of the act. III. THE ALLEGED UNFAIR LABOR PRACTICES. A. Background Respondent operates a hospital that provides both in-patient and out-patient care. The parties entered into a collective- 1 After the trial a flurry of motions, responses, and replies were filed. Counsel for the General Counsel filed a motion to reopen the record for limited purpose or in the alternative to take administrative notice, Re- spondent filed a response opposing the motion. Counsel for the Gen- eral Counsel thereafter filed a reply to Respondent’s opposition. Re- spondent filed a motion to strike portion of the General Counsel’s reply and attachment to reply. Counsel for the General Counsel then filed its opposition to Respondent’s motion to strike and filed a cross motion to strike Exhs. A through C of Respondent’s posthearing brief. Respond- ent filed an opposition to the General Counsel’s Motion to Strike the posthearing brief exhibits which was followed by the General Coun- sel’s reply to Respondent’s opposition to the General Counsel’s motion to strike. The matters raised within the various motions are implicitly addressed within this decision. To the extent that it could be argued that they are not, after careful consideration each motion referenced above is denied except for that part of the General Counsel’s motion to take administrative notice which as discussed more fully below is GRANTED. 138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining agreement which was effective from May 2011 through December 31, 2013. Since about November 4, 2013, the parties have been engaged in bargaining for a successor agreement. The parties have yet to come to any agreement re- garding all of the terms of a successor agreement but have been engaged with a Federal mediator attempting to resolve out- standing issues. B. The Bargaining Unit The Union has a decade long history of representation with Respondent. Broadly speaking this case involves Respondent’s service, technical and skilled maintenance employees. The unit encompasses a large cross section of various job types and categories. The unit consists of the following employees: All full-time, part-time, on-call, and per diem employees em- ployed by Respondent in the job classifications of House- keeper, Dietary Worker, Housekeeper Team Leader, Materi- als Linen Tech Lead, Dietary Worker Lead, Clerical Assis- tant, Assistant Operating Room Schedule Coordinator, Physi- cal Therapy Aide I, Medical Records Clerk I, Supply Distri- bution Aide I, Courier, Supply Distribution Aide II, Sterile Process Tech, Santa Clara/JC Utility Groundskeeper, Custo- dian, Dietary Clerk, Patient Service Assistant, Supply Distri- bution Aide Team Leader, Admissions Specialist, Certified Sterile Tech, Central Scheduler PRN, CNA, Utility Groundskeeper Lead, ‘Custodian Team Leader, Dietary Clerk Lead, PSA Team Leader, X-Ray Technician-Ground, Lead Transcriptionist, Cashier I, Switchboard Operator, Trauma Registrar, Occupational Therapy Assistant, Operating Room Aide, Pharmacy Technician Trainee, X-Ray Assistant, Physi- cal Therapy Aide II, Clerk Generalist, Storeroom Clerk, Secu- rity Officer, Linen Tech, Food Service Cook Purchase Pro- duce Clerk, X-ray Technician Student, Relief Lead Admitting Clerk, Lead Switchboard Operator, Lead Security Officer, Lead Cook, Purchase Produce Clerk Lead, Nurse Aide, En- doscopy Support Aide I, Endoscopy Support Aide II, Cashier II, Admitting Clerk, Unit Services Coordinator, Respiratory Care Clerk/Assistant, X-Ray Receptionist/Secretary, Rehabili- tation Secretary/ Receptionist, Central Supply Technician, Santa Clara/JO Rehabilitation Secretary/Receptionist, Team Leader Administrative Clerk, Accounts Receivable Clerk, Re- fund/Correspondence Clerk, Business Office Lead Clerk, Ap- pointment Scheduling Coordinator, OB CNA Scrub Techni- cian, Operating Room Schedule Coordinator, Surgical Sup- port Aide, Lab Assistant, Clerk Specialist, Ship- ping/Receiving Clerk, Maintenance Worker I, Surgical Sup- ply Aide Team Leader, Lead Lab Assistant, Clerk Specialist Team Leader, Respiratory Therapy Student Coder I, Emer- gency Medical Technician, Emergency Department Techni- cian/Clerk, X-Ray Transcriptionist, Holter Analyst, Data En- try - Operating Room, Endoscopy Technician, Histology As- sistant, Release Information Specialist, Bio-med Technician I, Relief Charge Respiratory Therapist, Charge Respiratory Therapist, Respiratory Therapist, Pharmacy Technician, Med- ical Lab Technician, Certified Pharmacy Technician, Electro- cardiogram/OCT Tech, Electroencephalo- gram/Electrocardiogram Technician, Coder II, Certified Pharmacy Technician Specialist, Electroencephalogram/ Electrocardiogram Technician Lead, Certified Respiratory Therapist, Polysomnographic Technician, Relief Charge Res- piratory Therapist Certified, Charge Polysomnographic Tech- nician, Charge Respiratory Therapist Certified, Respiratory Therapist PFT Certified, Respiratory Therapist Respiratory Therapist Technician, Physical Therapy Assistant, Certified Occupational Therapy Assistant, Registered Respiratory Therapist, Emergency Department Paramedic, Engineering I, Engineering II. Health Information Specialist, Health Infor- mation Management Technician, Insurance Verifier, Lead Diagnostic Imaging Receptionist, Nutrition Services 1, Ob- stetrics Technician, Operating Room Materials Aide, Pharma- cy Clerk, Physical Therapy Secretary, Radiology Technolo- gist,Registered, Certified Surgical Tech, Maintenance Worker II, Medical Records Coder III Coder III Team Leader, Medi- cal Receptionist Input Coder Lead, ABG Maintenance Tech- nician, Respiratory Therapist PFT Registered, Angio Tech, X- Ray Technician, X-ray Technician 2, Relief Charge Respira- tory Therapist Registered, Maintenance Specialist, Charge RI Registered, Charge Cardiovascular Technician Spr Techni- cian, Echo cardiology Technician, Clinical Engineer, Bio-med Relief Lead Pay, Charge Medical Technologist, Medical Technologist, Lab Section Coordinator, Unit Secretary, Indus- trial Injury Specialist, Electrocardiogram Technician, Charge Section Coordinator, Charge Electroencephalo- gram/Electrocardiogram Technician, Pharmacy Secretary, CAT Scan Technologist, Special Procedures Technician, Ul- trasound Technologist, X-ray Technologist, Charge Radiolo- gy Tech, Charge Registered Polysomnographic Technician, Registered Polysomnographic Technician PRN, Radiology Technologist, Transporter, Unit Services Coordinator Lead, Quality Assurance Auditor, Patient Financial Services Repre- sentative II, Workers Compensation Specialist, Reimburse- ment Analyst, Financial Services Specialist, Pre-Service Rep- resentative, Patient Financial Services Representative Lead, Relief Charge Medical Technician, Lead Monitor Tech, Re- lief Charge Medical Lab Technician, Intensive Care Unit Monitor Technician, Relief Charge Radiology Technician, Relief Charge CAT Scan Technician and Charge CAT Scan Technician; excluding all other employees, professional em- ployees, guards and supervisors as defined in the Act. C. Negotiations Overview During all times material to this case, the parties were en- gaged in contract negotiations which formally began on No- vember 4, 2013. At the time of negotiations, the Union pro- posed wage increases of at first 3.3 percent, and then reduced its proposal to 3 percent. Respondent proposed an increase of 1.2 percent and then 1.5 percent. Respondent also proposed changes to the health plan care but the Union has not submitted any counterproposal asserting that it lacks sufficient infor- mation to allow it to analyze the proposal. D. Bargaining Teams The Union’s bargaining team consisted of the Union’s health care director, the Union’s lead negotiator, as well as employee bargaining team members. Although not present at the first 139 MCKENZIE-WILLAMETTE MEDICAL CENTER bargaining session, Lynn-Marie Crider, the union bargaining coordinator who had particular expertise in health insurance plans and health policy was working behind the scenes on in- formation requests. Respondent’s negotiation team members were Megan O’Leary, vice president of human resources, and two attorneys, Don Carmody and Steven Ward. IV. THE INFORMATION VIOLATION A. The Information Requests at Issue in this Case The allegations in this case rest on information requests that were sent by the Union to Respondent on October 17, 2013.2 These information requests were drafted by Lynn-Marie Crider and sent directly to Megan O’Leary. Crider requested the following information: 1. for all employees currently working and to be covered by this Collective Bargaining Agreement: (a) Name (b) Date of hire (c) Sex (d) Job classification (e) Current base hourly rate of pay (f) Number of regularly scheduled hours per week (g) Total gross wages earned in calendar year 2012 (h) Total gross wages earned in year-to-date 2013 (i) Health insurance in which the employee is currently enrolled, including the benefit plans selected, and the cov- erage selected (i.e., employee only, employee and spouse, etc.) (j) The subsidy for health care currently being paid (monthly amount and pay period amount). 2. The total payroll for SEIU Local 49 bargaining unit em- ployees in calendar year 2012 and, separately, for calendar year-to-date 2013, including specific dollar amounts for each of the following cost areas: (k) Regular wages (l.) Overtime premium (i.e., the additional amount over and above the regular rate) (m) Holiday premium d. Vacation pay (n) Sick pay (o) Other paid leave (p) Shift premium pay h. Other premium pay 3. Current job descriptions for all SEIU 49 represented classifications. 4. Copies of all MWMC’s policies and procedures that apply to the members of our bargaining unit. 5. A copy of the OSHA 300 logs for each of the last three calendar years. 6. The cost to the Employer of a 1% wage increase for all employees for the bargaining unit 2 It is important to note that at trial, counsel for the General Counsel withdrew the allegations of unreasonable delay set forth in par. 6c of the complaint relating to requested item 6(a) xiii and also the allegation relating to item 6(a) xiv referenced in complaint par. 6d. (Tr. 57:1–6.) 7. The number of current vacancies by job classification. Concerning Health and Welfare Plans 8. A copy of the current summary plan description for each health, vision, and dental benefit plan offered to members of the SEIU Local 49 bargaining unit. 9. The total cost for medical, for vision, and for dental (separately) and the cost per caregiver per year for SEIU bargaining unit employees in each of the 2010, 2011 and 2012 plan years by plan and coverage level (e.g., caregiver only, caregiver & adult, caregiver & children, caregiver, adult & children). 10. The total cost and cost per caregiver per year as in question 7, broken down by amounts paid by the employee and by the employer. 11. An Excel sheet with health plan enrollment information for each SEIU Local 49 bargaining unit member for plan years 2010, 2011and 2012, to include plan name, level of coverage, out of pocket health care expenditures, broken out by type of expenditure (e.g., deductible, co-pay, co- insurance, etc.) and amount of premium share for each in- dividual employee and who is being covered (e.g. spouse or domestic partner, children, etc.). 12. All Custom Group Experience Reporting or other experi- ence reporting (annual and quarterly) supplied by any benefit consultant, the plan administrator, or any other entity during the current and prior three plan years, showing the key utiliza- tion and cost indicators summary; group demographic sum- mary; monitor reporting; top 20 (or more) diagnoses, proce- dures, prescriptions, therapeutic classes with codes, numbers of claimants, and total cost. Explain whether costs in the plan are attributable to all plan participants or to bargaining unit employees and their dependents only. 13. If MWMC plans to propose any health plan changes: (a) Documents describing the details of the plans MWMC proposes to offer and the costs to employees, including any differences in services .covered among the plans currently offered and the plans MWMC proposes to offer; (b) The projected total cost per employee per year (includ- ing any portion proposed to be borne by the employee) in the next plan year of continuing with the same plans cur- rently offered to bargaining unit employees and of adopt- ing the plans the employer proposes to offer; (c) The projected total employee cost per year for premi- ums for deductibles, for co­pays, and for coinsurance in the next plan year if the employer continues with the same plans currently offered to bargaining unit employees and if the employer adopts the plans the employer proposes to offer; and (d) The actuarial value of each of the plans currently of- fered and the plans MWMC proposes to offer. Concerning Retirement Plans 140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14. A copy of the current summary plan description for each retirement plan offered to members of the SEIU Lo- cal49 bargaining unit. 15. Complete copies of each annual report-the plan’s Form 5500 filings with all attachments and schedules- for plan years 2010 to present; Other Benefit Plans 16. Please provide a summary plan description of any and all other benefit plans made available to members of our bargaining unit. This may include disability benefits, flexi- ble spending accounts, etc. For each such benefit, please include both employee and employer share of cost on a monthly basis. [GC Exh.3.] The Union requested that Respondent provide the infor- mation by November 1, 2013, so that it could have the infor- mation prior to the first bargaining session. Respondent did not provide any of the requested information prior to the first bar- gaining session. Instead, on the first day of bargaining, No- vember 4, 2013, O’Leary provided Ward with documents re- sponsive to requests numbers 8, 14, and 16. By email dated November 6, 2013, Crider acknowledged receipt of the infor- mation that was provided but informed O’Leary that the majori- ty of information had not been provided. (GC Exh. 4.) O’Leary responded, “I will have additional portions of these ready to give to you by the end of the week. As you may remember from years past, some of the things you ask, we do not track, or have a way to provide in the manner in which you are asking for them. However, I am working on what I can, and will have the next batch off by Friday. Unfortunately, your time frame is simply prohibitive considering the limited resources I have to produce the information and the labor intensive manner in which it has to be done.” (GC Exh. 4.) Friday came and went and “the next batch” of documents that were promised did not arrive. (GC Exhs. 4, 7.) On November 26, 2013, O’Leary notified the Union that Re- spondent planned to make changes to the unit employees’ healthcare benefits. The notice provided as follows: This letter will serve as the 30 day notification to the SEIU of the following changes to the McKenzie Willamette Medical and Dental plans allowed for in our current Collective Bar- gaining agreements. Effective 01/01/2014 there will be a 9% increase in employee premiums for these employees covered by our “Premium” Plan (at the highest level of coverage, Em- ployee Plus Family, this equates to less than an $18 per pay period increase) and a 4% increase in the employee premiums for those employees enrolled in Our “Choice” Plan and in the Dental Plan. In addition, attached you will find minor plan changes as well [GC Exh. 5]. In response to the notice, the Union requested to bargain over the proposed changes and by email dated December 2, 2013, Crider advised O’Leary that she hadn’t yet received any of the requested information and further advised that given the proposed changes she would need the information that was previously requested but was made contingent on whether Re- spondent intended to make changes to the health plans. (GC Exhs. 3, 7–8) [see requests # 13(b)-013(d)]. O’Leary assured Crider that she was “working on forwarding more information” but the information was not provided. (GC Exhs. 3, 8.) At the second bargaining session on December 11, 2013, Ward advised Respondent that the Union wouldn’t be able to bargain over the health care issues because Respondent hadn’t provided information that was requested. O’Leary assured Ward that they were working on gathering information. Re- spondent at the bargaining session provided the Union with some of the requested information which included: (1) the name, date of hire, sex, job classification, current base hourly rate of pay, number of regularly scheduled hours per week, total gross wages earned in calendar years 2012 and 2013, and the subsidy for health care currently being paid for all bargaining Unit employees. [GC Exh. 3 [item #s 1(a)–1(h) and (j)].] (2) a copy of the OSHA 300 logs (i.e., logs reporting acci- dents that Respondent submits to the Occupational Safety and Health Administration) for each of the last three calendar years. [GC Exh. 3 [item #5]]; and (3) the cost to Respondent of a 1% wage increase for all em- ployees in the bargaining Unit. [GC Exh. 3 [item # 6].] On December 16, 2013, O’Leary emailed Crider information regarding the total cost per bargaining unit employee of health insurance. (GC Exh. 9.) O’Leary also sent health plan enroll- ment information for the years 2010–2012, but did not provide the Union with information regarding the out of pocket health care expenditures or the amount of premium share for each individual employee. (GC Exh. 3.) On January 15, 2014, O’Leary sent an email to Crider which contained information relating to the unit employees wages and their paid time off. (GC Exhs. 3 and 10.) O’Leary also provided a “thumb drive” with information regarding job classifications and procedures but the drive did not contain job vacancy information that had been requested. (GC Exhs. 3, 10.) B. The Duty to Provide Information Section 8(a)(5) of the Act provides that it is an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of its employees.” 29 U.S.C. § 158(a) (5). As the Board explained in A-1 Door & Building Solutions, 356 NLRB 499, 500 (2011): An employer’s duty to bargain includes a general duty to provide information needed by the bargaining representative in contract negotiations and admin- istration. See NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152–153 (1956) [parallel citations omitted]. Generally, information con- cerning wages, hours, and other terms and conditions of em- ployment for unit employees is presumptively relevant to the union’s role as exclusive collective-bargaining representative. See Southern California Gas Co., 344 NLRB 231, 235 (2005). By contrast, information concerning nonunit employees is not presumptively relevant; rather, relevance must be shown. Shop- pers Food Warehouse Corp., 315 NLRB 257, 259 (1994). The burden to show relevance, however, is “not exceptionally heavy,” Leland Stanford Junior University, 262 NLRB 136, 139 (1982), enfd. 715 F.2d 473 (9th Cir. 1983); “[t]he Board 141 MCKENZIE-WILLAMETTE MEDICAL CENTER uses a broad, discovery-type standard in determining relevance in information requests.” Shoppers Food Warehouse, supra at 259. C. Relevance 1. The relevant information requests The Respondent, in its answer, specifically denied the allega- tions contained in the complaint which asserted that the infor- mation sought by the Union was both necessary and relevant to the Union in the performance of its duties as the exclusive col- lective-bargaining representative of the unit. Prior to trial, on July 3, 2014, counsel for the General Counsel filed a motion to strike the portion of Respondent’s answer relating to relevance. Counsel for the General Counsel argued inter alia that, “each of the items listed in Complaint Paragraph 6(a) pertains to Unit employees’ terms and conditions of employment. Respondent, at no time since the Union submitted its information request, ever questioned or contested the relevance of the information requested. Moreover, Respondent never contested the relevancy of the information requested by the Union during the investiga- tion of the underlying charge in this case.” (See GC Motion at p. 2.) Respondent did not file a responsive pleading to the General Counsel’s motion, and the motion to strike was granted and the denial set forth in Respondent’s answer was deemed admitted.3 Assuming for the sake of argument that the portion of Re- spondent’s answer relating to relevance had not been stricken, the evidence of record establishes, and I find that the infor- mation requested by the Union all related to terms and condi- tions of unit employees and the information sought was pre- sumptively relevant. See for example Postal Service, 332 NLRB 635 (2000); Oaktree Capital Management LLC, 353 NLRB 1242 (2009); Otay River Constructors, 351 NLRB 1105 (2007); and also Hanson Aggregates BMC, Inc., 353 NLRB 287 (2008). Therefore, Respondent had an obligation to pro- vide the information sought in a timely manner. See Woodland Clinic, 331 NLRB 735 (2000), and Pennco, Inc., 212 NLRB 677, 678 (1974). 2. The failure to provide relevant information. The Union was entitled to all of the relevant information ref- erenced above and I find that Respondent’s refusal and/or fail- ure to provide the information violated the Act. “The refusal of an employer to provide a bargaining agent with information relevant to the Union’s task of representing its constituency is a per se violation of the act without regard to the employer’s 3 Respondent took the position that since the actions of the Regional Director in issuing the complaint was void ab initio it was under no obligation to file a responsive pleading. Respondent took the same position regarding the subpoena that was served upon it arguing that it was under no obligation to respond to the subpoena. Counsel for the General Counsel argued that Respondent’s failure to respond to the subpoena warranted the imposition of sanctions. Given my findings discussed more fully below, I concur with counsel for the General Counsel that Respondent was under an obligation to comply with the subpoena. Nevertheless, in view of my conclusion that Respondent violated the Act as alleged, imposing additional sanctions would serve no useful purpose. subjective good or bad faith.” Piggly Wiggly Midwest, LLC, 357 NLRB 2344 (2012), Brooklyn Union Gas Co., 220 NLRB 189, 191 (1975); Procter & Gamble Mfg. Co., 237 NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979). The failure to provide the information is in direct contravention to the funda- mental objectives of the Act. “The objective of the disclosure [of requested information] obligation is to enable the parties to perform their statutory function responsibly and ‘to promote an intelligent resolution of issues at an early stage and without industrial strife.’” Clemson Bros., 290 NLRB 944, 944 fn. 5 (1988). 3. The delay in providing information The obligation to provide relevant information includes with- in it an obligation to provide the information in a timely man- ner. Shaw Supermarkets, 339 NLRB 871 (2003). In this case it is undisputed that Respondent eventually provided some of the requested information. However, it cannot also be said that it made any reasonably diligent effort to do so. Nearly 8 weeks passed before it handed over some of the most basic infor- mation which it had at its ready disposal. Indeed, it took Re- spondent more than 3 months to provide simple job descrip- tions. I find that this unexplained and unreasonable “foot drag- ging” violated both the letter the spirit of the Act. Quality En- gineered Products, 267 NLRB 593 (1983). D. Respondent’s Defenses Respondent’s defenses were predicated upon its position that the underlying complaint was void ab initio because: (1) the Regional Director was appointed when the Board lacked a quorum; and (2) the Regional Director’s transfer to Region 19 was void because it occurred at a time when the Board lacked a quorum. 1. The Regional Director’s appointment Respondent’s initial defense was premised on the require- ment under the NLRA that the Board must have at least three members to constitute a quorum. 29 U.S.C. § 153(b). Appli- cable Supreme Court precedent further instructs that this quor- um requirement must be satisfied “at all times.” New Process Steel v. NLRB, 560 U.S. 674, 688 (2010). Respondent’s argu- ment also had at its foundation Section 3(d) of the NLRA which requires that “[t]he appointment, transfer, demotion or discharge of any Regional Director . . . shall be made by the General Counsel only upon approval of the board.” 67 Fed.Reg. 62992-01 (October 1, 2002). Respondent argues that since Regional Director Hooks was appointed on January 6, 2012, his appointment is invalid because at that point in time the board lacked a valid quorum in light of the Supreme Court’s decision in Noel Canning v. NLRB, 134 S.Ct. 2550 (2014), which held that a 3-day recess was too short a timeframe to trigger the President’s power under the Recess Appointments Clause and therefore the January 4, 2012 recess appointments of Members Sharon Block, Richard Griffin, and Terrence Flynn were inva- lid. Respondent drew its conclusion regarding the appointment of Ronald Hooks directly from information provided by the NLRB. The NLRB “announced the appointment” of Regional 142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Director Hooks on January 6, 2012. (R. Exh. 4.) Similarly, Respondent noted that in other litigation the NLRB took the position that in fact Regional Director Hooks was appointed January 6, 2012. More specifically, in an appellate brief filed by the General Counsel in NLRB v. Kitsap Tennant Support Services, the General Counsel in a footnote stated, “In April 2000, a five member Board appointed Mr. Hooks Director for Region 26 after he served as Regional attorney in that office. In January 2012, he was appointed Director for Region 19 and transferred to that office.” (R. Exh. 5 p. 23 fn. 9.) After the close of the hearing, counsel for the General Coun- sel moved to reopen the record or in the alternative to take ad- ministrative notice and sought to introduce the actual certificate of appointment of Ronald Hooks which showed the actual date he was appointed to be December 23, 2011. Respondent moved to strike the appointment certificate and also argued that the Government should be precluded from arguing that the date of his appointment was anything other than January 6, 2012, as had already been set forth by the Agency in its press release and its representations in the Kitsap case referenced above. I take administrative notice of the fact that the actual and correct date of Hook’s appointment is December 22, 2011, as noted in the appointment certificate attached to counsel for the General Counsel’s motion. See Metro Demolition Co., 348 NLRB 272 (2006). 2. Estoppel against the Government The equitable doctrine of estoppel is typically invoked to avoid injustice and requires that the party claiming estoppel must have relied upon the representations in such a manner as to change their position for the worse. 3 J. Pomeroy, Equity Jurisprudence Section 805, p. 192 (S. Symons ed. 1941). Es- toppel against the Government requires an even higher stand- ard. In Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 60–61 (1984), the Supreme Court noted that, “when the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well settled that the Government may not be estopped on the same terms as any other litigant. . . . Estoppel against the government is ap- propriate only in the rarest of circumstances when the ‘counter- vailing interests of citizens in some minimum standard of de- cency, honor, and reliability in their dealings with the govern- ment’ outweighs the public interest in ensuring that the gov- ernment can enforce the law.” Id. It is clear (and counsel for the General Counsel admits) that there were inaccuracies in the Kitsap brief. Similarly, the word- ing of the news release which “announced” the appointment of Regional Director Hooks, might have left the impression that Regional Director Hooks was in fact appointed on January 6, 2012. However, Respondent made no showing that would suggest that in reliance upon the inaccuracies in the Kitsap brief (or the press announcement) it changed its position for the worse. Respondent also made no showing that standards of “decency, honor, and reliability” outweigh the interests of the public in having the NLRA enforced.4 While Respondent es- tablished that the Kitsap brief contained an error, I find that Respondent presented no legally supportable justification for striking the affidavit of appointment and\or in the alternative precluding the General Counsel from relying upon it. 3. Regional Director Hook’s appointment and transfer was valid Respondent’s argument might in fact carry the day if indeed Regional Director Hooks was actually appointed on January 6, 2012, but he wasn’t. In fact he was appointed and transferred when (pursuant to the three-member rule noted above) a valid quorum existed. Chairman Pearce, Members Hayes, and Beck- er were all participants in the decision. (See Board’s Minute Order dated December 22, 2011.) The status of Member Becker at the time deserves some mention as some have challenged the validity of his recess appointment. In Teamsters Local 455 v. NLRB, 2014 WL 4214920 (10th Cir. 2014), the court applying the reasoning and rationale set forth by the Supreme Court in Noel Canning, su- pra, found that since Member Becker was appointed during an intra-session recess exceeding 2 weeks his appointment was valid and the Board’s power and authority to act was intact. A similar result based on identical reasoning was reached in Ges- tamp S. Carolina, L.L.C. v. NLRB, 11-2362, 2014 WL 5013049 (4th Cir. 2014). Assuming for the sake of argument Respondent’s assertions had some validity, they would in any event have been rendered moot by the Board’s subsequent actions. The Board by Minute Order dated July 18, 2014, in response to the Supreme Court’s decision in Noel Canning, affirmatively “confirmed, adopted and ratified nunc pro tunc all administrative, personnel and procurement matters approved by the Board or taken by or on behalf of the Board from January 4, 2012 to August 5, 2013.” (See Board Minute Order of July 18, 2014.) CONCLUSIONS OF LAW 1. The Respondent, McKenzie-Willamette Regional Medical Center Associates, LLC, d/b/a McKenzie-Willamette Medical Center, is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party, Service Employees International Un- ion Local 49, CTW-CLC (the Union), is a labor organization with the meaning of Section 2(5) of the Act. 3. At all material times the Union has been the designated exclusive collective-bargaining representative of the following bargaining unit of Respondent’s employees: All full-time, part-time, on-call, and per diem employees em- ployed by Respondent in the job classifications of House- keeper, Dietary Worker, Housekeeper Team Leader, Materi- als Linen Tech Lead, Dietary Worker Lead, Clerical Assis- tant, Assistant Operating Room Schedule Coordinator, Physi- cal Therapy Aide I, Medical Records Clerk I, Supply Distri- bution Aide I, Courier, Supply Distribution Aide II, Sterile 4 The General Counsel on July 31, 2014, filed a motion to correct a factual misstatement in the NLRB’s reply brief in the Kitsap case in an attempt to correct the record regarding the date of Hook’s appointment. 143 MCKENZIE-WILLAMETTE MEDICAL CENTER Process Tech, Santa Clara/JC Utility Groundskeeper, Custo- dian, Dietary Clerk, Patient Service Assistant, Supply Distri- bution Aide Team Leader, Admissions Specialist, Certified Sterile Tech, Central Scheduler PRN, CNA, Utility Groundskeeper Lead, ‘Custodian Team Leader, Dietary Clerk Lead, PSA Team Leader, X-Ray Technician-Ground, Lead Transcriptionist, Cashier I, Switchboard Operator, Trauma Registrar, Occupational Therapy Assistant, Operating Room Aide, Pharmacy Technician Trainee, X-Ray Assistant, Physi- cal Therapy Aide II, Clerk Generalist, Storeroom Clerk, Secu- rity Officer, Linen Tech, Food Service Cook Purchase Pro- duce Clerk, X-ray Technician Student, Relief Lead Admitting Clerk, Lead Switchboard Operator, Lead Security Officer, Lead Cook, Purchase Produce Clerk Lead, Nurse Aide, En- doscopy Support Aide I, Endoscopy Support Aide II, Cashier II, Admitting Clerk, Unit Services Coordinator, Respiratory Care Clerk/Assistant, X-Ray Receptionist/Secretary, Rehabili- tation Secretary/ Receptionist, Central Supply Technician, Santa Clara/JO Rehabilitation Secretary/Receptionist, Team Leader Administrative Clerk, Accounts Receivable Clerk, Re- fund/Correspondence Clerk, Business Office Lead Clerk, Ap- pointment Scheduling Coordinator, OB CNA Scrub Techni- cian, Operating Room Schedule Coordinator, Surgical Sup- port Aide, Lab Assistant, Clerk Specialist, Ship- ping/Receiving Clerk, Maintenance Worker I, Surgical Sup- ply Aide Team Leader, Lead Lab Assistant, Clerk Specialist Team Leader, Respiratory Therapy Student Coder I, Emer- gency Medical Technician, Emergency Department Techni- cian/Clerk, X-Ray Transcriptionist, Holter Analyst, Data En- try - Operating Room, Endoscopy Technician, Histology As- sistant, Release Information Specialist, Bio-med Technician I, Relief Charge Respiratory Therapist, Charge Respiratory Therapist, Respiratory Therapist, Pharmacy Technician, Med- ical Lab Technician, Certified Pharmacy Technician, Electro- cardiogram/OCT Tech, Electroencephalogram/Electrocar- diogram Technician, Coder II, Certified Pharmacy Technician Specialist, Electroencephalogram/ Electrocardiogram Techni- cian Lead, Certified Respiratory Therapist, Polysomnographic Technician, Relief Charge Respiratory Therapist Certified, Charge Polysomnographic Technician, Charge Respiratory Therapist Certified, Respiratory Therapist PFT Certified, Respiratory Therapist Respiratory Therapist Technician, Physical Therapy Assistant, Certified Occupational Therapy Assistant, Registered Respiratory Therapist, Emergency De- partment Paramedic, Engineering I, Engineering II. Health In- formation Specialist, Health Information Management Tech- nician, Insurance Verifier, Lead Diagnostic Imaging Recep- tionist, Nutrition Services 1, Obstetrics Technician, Operating Room Materials Aide, Pharmacy Clerk, Physical Therapy Secretary, Radiology Technologist, Registered, Certified Sur- gical Tech, Maintenance Worker II, Medical Records Coder III Coder III Team Leader, Medical Receptionist Input Coder Lead, ABG Maintenance Technician, Respiratory Therapist PFT Registered, Angio Tech, X-Ray Technician, XRay Technician 2, Relief Charge Respiratory Therapist Registered, Maintenance Specialist, Charge RI Registered, Charge Cardi- ovascular Technician Spr Technician, Echo cardiology Tech- nician, Clinical Engineer, Bio-med Relief Lead Pay, Charge Medical Technologist, Medical Technologist, Lab Section Coordinator, Unit Secretary, Industrial Injury Specialist, Elec- trocardiogram Technician, Charge Section Coordinator, Charge Electroencephalogram/Elec-trocardiogram Techni- cian, Pharmacy Secretary, CAT Scan Technologist, Special Procedures Technician, Ultrasound Technologist, X-ray Technologist, Charge Radiology Tech, Charge Registered Polysomnographic Technician, Registered Polysomnographic Technician PRN, Radiology Technologist, Transporter, Unit Services Coordinator Lead, Quality Assurance Auditor, Pa- tient Financial Services Representative II, Workers Compen- sation Specialist, Reimbursement Analyst, Financial Services Specialist, Pre-Service Representative, Patient Financial Ser- vices Representative Lead, Relief Charge Medical Techni- cian, Lead Monitor Tech, Relief Charge Medical Lab Techni- cian, Intensive Care Unit Monitor Technician, Relief Charge Radiology Technician, Relief Charge CAT Scan Technician and Charge CAT Scan Technician; excluding all other em- ployees, professional employees, guards and supervisors as defined in the Act. 4. Respondent violated Section 8(a)(5) and (1) of the Act by unreasonably delaying and/or failing and refusing to provide information requested by the Union and relevant to the Union’s representational duties. 5. The unfair labor practices committed by Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Respondent shall provide the Union with the information re- quested in paragraphs 1(i), 2, 7, 9, 10, 11, 12, 13b–d, and 15 of the October 17, 2013 information request. To remedy Respond- ent’s unlawful failure to bargain in good faith with the Union, Respondent shall be ordered to bargain in good faith with the Union.5 [Recommended Order omitted from publication.] 5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.