Prime Healthcare Services - Encino, LLC dba Encino Hospital Medical Center

PRIME HEALTHCARE SERVICES–ENCINO, LLC D/B/A ENCINO HOSPITAL MEDICAL CENTER 1791 364 NLRB No. 128 Prime Healthcare Services–Encino, LLC d/b/a Encino Hospital Medical Center and SEIU Local 121RN and SEIU United Healthcare Workers–West Prime Healthcare Services–Garden Grove, LLC d/b/a Garden Grove Hospital & Medical Center and SEIU United Healthcare Workers–West. Cases 21–CA–080722, 31–CA–066061, 31–CA–070323, and 31–CA–080554 October 17, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN On November 13, 2014, Administrative Law Judge Jeffrey D. Wedekind issued the attached decision. The Respondents filed exceptions and a supporting brief, the General Counsel and Charging Party Unions filed an- swering briefs, and the Respondents filed reply briefs. Charging Party SEIU United Healthcare Workers–West filed cross-exceptions, and the Respondents filed an an- swering brief.1 The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings,2 findings, 1 SEIU United Healthcare Workers–West failed to present any ar- gument in support of its cross-exceptions. Accordingly, the cross- exceptions may be disregarded pursuant to Sec. 102.46(b)(2) of the Board’s Rules and Regulations, and we find it appropriate to do so here. See Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). 2 In upholding the judge’s rejection of Respondents’ conflict-of- interest defense, we rely on the fact that the Respondent failed to show evidence of a conflict of interest. We do not rely on speculation in the judge’s decision concerning the lawfulness of SEIU United Healthcare Workers–West’s participation in a labor-management committee. Member Miscimarra joins his colleagues in adopting the judge’s de- cision, with the following observations. First, in adopting the judge’s finding that the Respondents violated Sec. 8(a)(5) when they discontin- ued granting anniversary step wage increases after the collective- bargaining agreements expired, Member Miscimarra agrees with the judge that the language of the expired agreements fails to demonstrate that the contract provision regarding anniversary step wage increases was limited to the term of the agreements. Moreover, Respondent Encino continued to grant the increases for 7 months after contract expiration, which additionally supports a finding that Respondent Enci- no violated Sec. 8(a)(5) when it discontinued the increases. Member Miscimarra disagrees, however, with Southwest Ambulance, 360 NLRB 835 (2014), enf. denied on other grounds 796 F.3d 67 (D.C. Cir. 2015), cited by the judge, as well as Finley Hospital, 362 NLRB 915 (2015), revd. 827 F.3d 720 (8th Cir. 2016), to the extent those cases hold that durational language contained in a provision of a collective-bargaining agreement (e.g., language limiting the duty to act in conformity with the terms of the provision to “the duration of this agreement” or “the term of this agreement”) is insufficient to limit the employer’s obliga- tion to act in accordance with that provision to the term of the agree- ment, and he disagrees that an employer violates Sec. 8(a)(5) when it discontinues the contractually mandated action upon contract expiration and conclusions and to adopt the recommended Order as modified and set forth in full below.3 ORDER A. The National Labor Relations Board orders that the Respondent, Prime Healthcare Services–Encino, LLC d/b/a Encino Hospital Medical Center, Encino, Califor- nia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with SEIU Local 121RN and SEIU United Healthcare Workers–West (the Unions) by failing and refusing to furnish them with re- quested information that is relevant and necessary to the Unions’ performance of their duties as the exclusive col- lective-bargaining representatives of unit employees. The units are: Included: All full-time, regular part-time, and per diem Registered Nurses, including Employee Health Nurse and Educators employed at the Hospital located at 16237 Ventura Boulevard, Encino, California; Excluded: All other employees, Home Health Nurses, Case Managers, Orthopedic Program Coordinators, of- fice clerical employees, confidential employees, and supervisors as defined in the Act. Included: All full-time, regular part-time, and per diem service, maintenance, technical, and skilled mainte- nance employees; Excluded: All other employees, managers, supervisors, confidential employees, guards, physicians, residents, central business office employees (whether facility based or not) who are solely engaged in qualifying or collection activities or are employed by another Tenet in reliance on such limiting durational language. Second, regarding the Unions’ information requests, although Member Miscimarra agrees that the judge properly rejected the Respondents’ conflict-of-interest de- fense, he believes that the circumstances the Respondents cite in con- nection with that defense may give rise to legitimate concerns about confidentiality. Nevertheless, the burden is on the party that demon- strates a confidentiality interest to seek an accommodation of the par- ties’ respective interests, see, e.g., Borgess Medical Center, 342 NLRB 1105, 1106 (2004), and the Respondents did not do so here. Finally, although Member Miscimarra agrees that the circumstances here are insufficient to disqualify SEIU United Healthcare Workers–West as collective-bargaining representative, he disclaims reliance on the judge’s characterization of Greyhound Lines, Inc., 319 NLRB 554 (1995). 3 We shall modify the judge’s recommended Order in accordance with our decisions in Excel Container, Inc., 325 NLRB 17 (1997), and AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), and to conform to the violations found and to the Board’s standard remedial language. We shall also modify the judge’s recommended remedy to correct his citation to New Horizons, 283 NLRB 1173 (1987), in accordance with our standard practices. We shall substitute a new notice to conform to the Order as modified. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1792 entity, such as Syndicated Office Systems or Patient Financial Services, employees of outside registries and other agencies supplying labor to [Encino] and already represented employees. (b) Unilaterally changing the terms and conditions of its unit employees by ceasing payment of anniversary step wage increases to unit employees without first noti- fying the Unions and giving them an opportunity to bar- gain. (c) 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 SEIU Local 121RN, in a timely manner, the information it requested on April 5, 2011. (b) Furnish SEIU United Healthcare Workers–West, in a timely manner, the information it requested on January 12, 2012. (c) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit em- ployees, notify and, on request, bargain with the Unions (or with the appropriate Union if the proposed change only affects employees in one unit) as the exclusive col- lective-bargaining representatives of the employees in the above-described units. (d) Resume granting anniversary step wage increases to eligible employees in the above-described units, and continue to grant such increases until such time as the parties have reached a new agreement or a lawful im- passe. (e) Make whole eligible employees in the above- described units for any loss of earnings resulting from the Respondent’s failure to grant them anniversary step wage increases since November 17, 2011, in the manner set forth in the remedy section of the judge’s decision. (f) Compensate affected employees for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar years for each employee. (g) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (h) Within 14 days after service by the Region, post at its facility in Encino, California, copies of the attached notice marked “Appendix A.”4 Copies of the notice, on forms provided by the Regional Director for Region 31, 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, the 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 customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, 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 cur- rent employees and former employees employed by the Respondent at any time since April 5, 2011. (i) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. B. The National Labor Relations Board orders that the Respondent, Prime Healthcare Services–Garden Grove, LLC d/b/a Garden Grove Hospital & Medical Center, Garden Grove, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with SEIU United Healthcare Workers–West (the Union) by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its duties as the exclusive collective-bargaining representa- tive of unit employees. The unit is: Included: All full-time, regular part-time, and per diem Service, Maintenance, Technical, Skilled Maintenance, and Business Office employees; Excluded: All other employees, managers, supervisors, confidential employees, guards, physicians, residents, 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” PRIME HEALTHCARE SERVICES–ENCINO, LLC D/B/A ENCINO HOSPITAL MEDICAL CENTER 1793 central business office employees (whether Facility based or not) who are solely engaged in qualifying or collection activities or are employed by another Tenet entity, such as Syndicated Office Systems or Patient Financial Services, employees of outside registries and other agencies supplying labor to [Garden Grove] and already represented employees. (b) Unilaterally changing the terms and conditions of its unit employees by ceasing payment of anniversary step wage increases to unit employees without first noti- fying the Union and giving it an opportunity to bargain. (c) 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 on January 25, 2012. (b) Before making any changes in wages, hours, or other terms and conditions of employment of unit em- ployees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the above-described unit. (c) Resume granting anniversary step wage increases to eligible employees in the above-described unit, and continue to grant such increases until such time as the parties have reached a new agreement or a lawful im- passe. (d) Make whole eligible employees in the above- described unit for any loss of earnings resulting from the Respondent’s failure to grant them anniversary step wage increases since March 31, 2011, in the manner set forth in the remedy section of the judge’s decision. (e) Compensate affected employees for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 21, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar years for each employee. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its facility in Garden Grove, California, copies of the attached notice marked “Appendix B.”5 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent’s au- thorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, the notices shall be distributed elec- tronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily 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 covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since March 31, 2011. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX A 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. WE WILL NOT refuse to bargain collectively with SEIU Local 121RN and SEIU United Healthcare Workers– West (the Unions) by failing and refusing to furnish them with requested information that is relevant and necessary 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1794 to the Unions’ performance of their duties as the exclu- sive collective-bargaining representatives of unit em- ployees. The units are: Included: All full-time, regular part-time, and per diem Registered Nurses, including Employee Health Nurse and Educators employed at the Hospital located at 16237 Ventura Boulevard, Encino, California; Excluded: All other employees, Home Health Nurses, Case Managers, Orthopedic Program Coordinators, of- fice clerical employees, confidential employees, and supervisors as defined in the Act. Included: All full-time, regular part-time, and per diem service, maintenance, technical, and skilled mainte- nance employees [employed by Encino Hospital Medi- cal Center]; Excluded: All other employees, managers, supervisors, confidential employees, guards, physicians, residents, central business office employees (whether facility based or not) who are solely engaged in qualifying or collection activities or are employed by another Tenet entity, such as Syndicated Office Systems or Patient Financial Services, employees of outside registries and other agencies supplying labor to [Encino] and already represented employees. WE WILL NOT change your terms and conditions of employment by ceasing payment of anniversary step wage increases to unit employees without first notifying the Unions and giving them an opportunity to bargain. 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 SEIU Local 121RN, in a timely man- ner, the information it requested on April 5, 2011. WE WILL furnish SEIU United Healthcare Workers– West, in a timely manner, the information it requested on January 12, 2012. WE WILL, before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Unions (or with the appropriate Union if the proposed change only affects employees in one unit) as the exclu- sive collective-bargaining representatives of the employ- ees in the above-described units. WE WILL resume granting anniversary step wage in- creases to eligible employees in the above-described units, and WE WILL continue to grant such increases until such time as we have reached a new agreement or a law- ful impasse in bargaining. WE WILL make whole eligible employees in the above- described units for any loss of earnings resulting from our failure to grant them anniversary step wage increases since November 17, 2011. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Di- rector for Region 31, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years for each employee. PRIME HEALTHCARE SERVICES–ENCINO, LLC D/B/A ENCINO HOSPITAL MEDICAL CENTER The Board’s decision can be found at http://www.nlrb.gov/case/31-CA-066061 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National La- bor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570, or by calling (202) 273–1940. APPENDIX B 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. WE WILL NOT refuse to bargain collectively with SEIU United Healthcare Workers–West (the Union) by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its duties as the exclusive collective-bargaining repre- sentative of unit employees. The unit is: Included: All full-time, regular part-time, and per diem Service, Maintenance, Technical, Skilled Maintenance, and Business Office employees [employed by Garden Grove Hospital & Medical Center]; Excluded: All other employees, managers, supervisors, confidential employees, guards, physicians, residents, central business office employees (whether Facility based or not) who are solely engaged in qualifying or PRIME HEALTHCARE SERVICES–ENCINO, LLC D/B/A ENCINO HOSPITAL MEDICAL CENTER 1795 collection activities or are employed by another Tenet entity, such as Syndicated Office Systems or Patient Financial Services, employees of outside registries and other agencies supplying labor to [Garden Grove] and already represented employees. WE WILL NOT change your terms and conditions of employment by ceasing payment of anniversary step wage increases to unit employees without first notifying the Union and giving it an opportunity to bargain. 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 it requested on January 25, 2012. WE WILL, before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representa- tive of the employees in the above-described unit. WE WILL resume granting anniversary step wage in- creases to eligible employees in the above-described unit, and WE WILL continue to grant such increases until such time as we have reached a new agreement or a lawful impasse in bargaining. WE WILL make whole eligible employees in the above- described unit for any loss of earnings resulting from our failure to grant them anniversary step wage increases since March 31, 2011. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Di- rector for Region 21, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years for each employee. PRIME HEALTHCARE SERVICES–GARDEN GROVE, LLC D/B/A GARDEN GROVE HOSPITAL & MEDICAL CENTER The Board’s decision can be found at www.nlrb.gov/case/31-CA-066061 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. John Rubin, Esq., for the General Counsel. Joseph Turzi, Esq. & Colleen Hanrahan, Esq. (DLA Piper LLP (U.S.)), for the Respondents. David Adelstein, Esq. (Bush Gottlieb), for the Charging Party SEIU Local 121RN. Monica Guizar, Esq. (Weinberg, Roger & Rosenfeld), for the Charging Party SEIU UHW–West.1 DECISION STATEMENT OF THE CASE JEFFREY D. WEDEKIND, Administrative Law Judge. The con- solidated complaint in this matter alleges that two Southern California hospitals owned by Prime Healthcare Services— Encino Hospital Medical Center (Encino) and Garden Grove Hospital & Medical Center (Garden Grove)—unlawfully failed and refused to bargain in good faith in certain respects with SEIU Local 121RN and/or SEIU United Health Care Workers– West (UHW) after their collective-bargaining agreements ex- pired in March 2011. Specifically, the complaint alleges that the hospitals have unlawfully failed: (1) to continue paying anniversary step wage increases to the unit employees as pro- vided in the expired contracts; and (2) to provide information that the Unions requested in April 2011 and January 2012, dur- ing the new contract negotiations, regarding the unit employ- ees’ healthcare plans, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (NLRA). The hospitals deny that they violated the Act in either re- spect. They assert that the anniversary step wage increase pro- visions did not survive contract expiration and that the request- ed healthcare information was not relevant to the negotiations and was requested in bad faith and to harass. The hospitals further assert that they had no legal obligation to bargain with UHW at all, as the Union disqualified itself, forfeiting its statu- tory right to represent the unit employees at the hospitals, be- cause of its strategic partnership with Kaiser Permanente, Prime’s competitor, and its public campaign of false and fraud- ulent attacks to disparage Prime’s reputation and drive Prime out of the healthcare market.2 The hearing to address the foregoing allegations and defens- es opened in Los Angeles, California on April 30, 2013.3 However, the hearing was postponed at that time, before the 1 Jonathan Cohen, Esq. (Rothner, Segall & Greenstone) made a lim- ited appearance for the SEIU International Union to address subpoena issues. 2 Respondents initially asserted that 121RN was likewise disquali- fied, but withdrew this defense during the hearing (Tr. 68–69). 3 There is no dispute, and the record establishes, that the Respondent hospitals satisfy the commerce standards for NLRB jurisdiction. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1796 taking of any testimony, due to an unresolved dispute over subpoenas that Respondents had served on the Charging Party Unions and the SEIU International Union relating to the Re- spondents’ disqualification defense. The hearing resumed ap- proximately 14 months later, on June 10–12, 2014,4 and the parties subsequently filed their posthearing briefs on Au- gust 25, 2014. After carefully considering the parties’ briefs and the entire record, for the reasons set forth below, I find that the Respond- ents had an obligation under the Act both to continue the anni- versary step wage increases and to provide the Unions with the requested information about the healthcare plans. I also reject the Respondents asserted disqualification defense to the allega- tions involving UHW. I. FACTUAL BACKGROUND Prime owns and operates hospitals in various states, includ- ing California.5 It purchased the two subject hospitals in Enci- no and Garden Grove from Tenet Healthcare in June 2008. It continued thereafter to operate the hospitals in basically un- changed form, and retained a majority of the employees. It also recognized UHW, which had represented the service and tech- nical employees at Encino and Garden Grove, and 121RN, which had represented the registered nurses at Encino. Prime adopted the three collective-bargaining agreements between the Unions and Tenet covering those units, which were effective from January 1, 2007, through March 31, 2011. In addition to Encino and Garden Grove, UHW represents employees at certain other Prime hospitals, including Centinela Hospital Medical Center in Inglewood, which Prime purchased in late 2007. UHW also represents employees at hospitals owned by Kaiser, Prime’s competitor, and is a member of the National Coalition of Kaiser-Permanente Unions (the Coali- tion). Since 1997, the Coalition and Kaiser have been party to a National Labor-Management Partnership Agreement (LMP). Pursuant to the LMP, Kaiser has agreed, among other things, to “fully integrate” the participating unions into the company’s “strategic decision-making process” at all levels, national, re- gional, and local.6 In return, the unions have agreed, among other things, to assist Kaiser in “achieving and maintaining market leading competitive performance”; to “expand [Kai- ser’s] membership in current and new markets”; to “market[] [Kaiser] as the employer and care provider of choice,” includ- ing “to new and existing union groups,” in order to increase enrollment in the Kaiser Foundation Health Plan; and to “work in a proactive manner” on “growth strategies,” including “new 4 The Respondents filed a posthearing motion to supplement the rec- ord on June 18, which I granted in part (with respect to R. Exhs. 821 and 824–826) by order dated July 2 (ALJ Exh. 1). 5 The record contains various references to “Prime Healthcare,” “Prime Healthcare Services,” and “Prime Healthcare Management.” Although there is considerable ambiguity in the record about the rela- tionship between these entities and the Respondent hospitals, there appears no question that they are, in fact, related and are involved in the ownership, management, or operation of the hospitals. For simplicity sake, they are referred to here cumulatively as “Prime.” 6 According to the LMP, this “does not mean co-management, but rather full participation in the decision-making forums and processes at every level of the organization.” geographics and regions, mergers and acquisitions.” Consistent with these obligations, the unions have agreed to “focus . . . on real external threats” to Kaiser, including “competition,” and to annually develop with Kaiser a “joint” marketing plan that would include, among other things, consistent data collection, education programs, and communication strategies and tools. Kaiser and the Coalition have also agreed to establish certain “joint education” trust funds, as well as a joint labor- management partnership trust fund to pay for partnership ad- ministration and activities. As of 2010, Kaiser contributed $10 million annually, and employees 9 cents per hour, to the part- nership trust fund.7 Effective January 1, 2010, about 18 months after Prime pur- chased the Encino and Garden Grove hospitals, the employees represented by UHW and 121RN at those facilities became covered by Prime’s EPO and PPO medical plans.8 The Prime EPO (exclusive provider organization) plan was not an insur- ance plan, but a fee-for-service plan. Under that plan, subject to certain limited exceptions (e.g. lack of access or availability), the employees obtained their medical services at Prime facili- ties or doctors affiliated with those hospitals at a discounted rate. Under the Prime PPO (preferred provider organization) plan, the employees could join other networks such as An- them.9 Around the same time, UHW began a so-called “corporate accountability campaign” against the Prime. UHW at that time was engaged in contentious contract negotiations with Prime at Centinela. One of hospital’s proposals in those negotiations was to replace the unit employees’ current medical insurance program with Prime EPO/PPO plans similar to those at Encino and Garden Grove.10 UHW had also previously been involved in labor disputes with Prime at other hospitals, including Gar- den Grove.11 UHW began publicizing these labor disputes and campaigning against Prime’s attempts to acquire additional hospitals in California. In particular, UHW criticized Prime for cutting staff, reducing wages and benefits, and limiting access 7 Tr. 517; R. Exhs. 93, 95–98, 435, 819. UHW President Dave Re- gan signed the 2010 LMP (R. Exh. 98) as UHW “Trustee,” and is also listed as a member of the LMP Strategy Group on the LMP website, www.lmpartnership.org (R. Exh.438). Representatives of the SEIU International and other SEIU locals also signed the 2010 LMP. In addition, an attachment to the 2010 LMP lists the UHW and other bargaining units at Kaiser hospitals. See also Permanente Medical Group, Inc., 358 NLRB 758 (2012). 8 Tr. 316, 555–556; and GC Br. 14. It is not entirely clear how this came about. See also Jt. Exhs. 6, 13; and Garden Grove Hospital & Medical Center, 357 NLRB 653 (2011). However, the manner in which the Prime EPO and PPO plans were initially implemented at Encino and Garden Grove in January 2010 is not at issue here. 9 Tr. 145, 147, 224–229, 316, 596–597, 631. See also R. Exh. 37 (the 2011 summary description of the EPO plan). The vast majority (95 percent) of employees at Prime hospitals are in the EPO plan (Tr. 632). 10 See Centinela Hospital Medical Center, 31–CA–030044, JD(SF)– 17–13, 2013 WL 1561256 (April 12, 2013) (ALJ Etchingham), excep- tions filed June 14, 2013. 11 See Garden Grove Hospital, above (finding that Garden Grove vi- olated Sec. 8(a)(5) of the Act by rescinding the unit employees’ reserve sick leave benefit in April 2009). PRIME HEALTHCARE SERVICES–ENCINO, LLC D/B/A ENCINO HOSPITAL MEDICAL CENTER 1797 to care in order to increase profits. See UHW press releases dated April 2 and June 3, 2010 (R. Exhs. 201, 203). UHW also began publicly questioning the quality of care and billing practices at Prime hospitals. Sometime in 2010, UHW prepared and circulated a 24-page report entitled “Septicemia at Prime Hospitals” (R. Exh. 91).12 Citing Medicare billing data, UHW reported that there had been an unusually high rate of septicemia among Medicare patients at Prime hospitals in 2008. Specifically, it reported that Prime operated five of the six hos- pitals with the highest septicemia rates in the U.S.; that all 12 Prime hospitals, including Garden Grove and Encino, were in the top 10 percent of hospitals with respect to septicemia rates; and that the average septicemia rate at Prime’s hospitals (15.7 percent) was more than three times the national average (4.8 percent), and 70 percent higher than the second-highest health system (9.2 percent). The report concluded that a likely explanation for this was “upcoding,” i.e. that Prime was incorrectly coding infections as MS-DRG 038.9 (the Medicare Severity-Diagnosis Related Group code for unspecified septicemia) to obtain the higher Medicare reimbursement rate for such infections. In support, the report cited data indicating that, despite the relatively high numbers of Prime Medicare patients coded with septicemia, the mortality rate of such patients was relatively low (only 13 per- cent compared to 21 percent for other hospitals), but about the same for all Medicare patients (4.5 percent at Prime compared to 4.7 percent at other hospitals). The report noted that this could also explain why Prime hospitals scored well in the Thomson Reuters “Top 100 Hospitals” series; by upcoding patients with a low-mortality DRG to a high-mortality DRG like septicemia, the actual mortality rate (and length of stay) would be lower than expected, making Prime look better by comparison to its competitors. The report concluded that another possible explanation was that there were infection control problems at Prime hospitals, raising “serious concerns about worker and patient safety.” In support, the report cited higher than average levels of septic shock and skin ulcers at several Prime hospitals, which were not separately coded. The report also analyzed various other possible explanations for the high septicemia rates at Prime hospitals, including the possibility that the infections were acquired at another location before admission, such as at a nursing home; that Prime hospi- tals treat medical patients or conditions that are more suscepti- ble to septicemia; or that the hospitals already had elevated septicemia rates when Prime acquired them. However, the 12 Although UHW refused to acknowledge at the hearing that it au- thored the 2010 septicemia report, it is clear from the document itself and the record as a whole that UHW did so. See the UHW’s subse- quent “Care and Coding” report, R. Exh. 92, p. 3, discussed infra (refer- ring to the 2010 septicemia report as “our recent report”); and R. Exhs. 209, 210. See also Tr. 232. As for when UHW prepared and distribut- ed the undated report, see R. Exh. 222 (February 2, 2010 letter from CtW Investment Group to Medical Properties Trust); R. Exh. 202 (May 26, 2010 letter from the California Bureau of Medi-Cal Fraud to UHW Counsel Dave Regan); and R. Exh. 204 (July 1, 2010 letter from Con- gressmen Pete Stark and Henry Waxman to the Department of Health and Human Services Inspector General). report concluded that these factors were not supported by the available data, and were unlikely explanations. Rather, the report concluded that there was a high probability of serious breakdowns in patient care and/or possible Medicare fraud at Prime hospitals, raising troubling questions about the source of Prime’s profitability, and casting a shadow over Prime’s apparently ill-gotten [“Top 100 Hospitals”] awards. Thereafter, in January 2011, UHW also prepared and distrib- uted a 17-page “update” of its 2010 septicemia report (R. Exh. 92). This second report, entitled “Care and Coding at Prime Healthcare Services,” did a similar analysis of more recent 2009 Medicare billing data and reported “comparable” results, including that Prime operated seven of the 12 hospitals with the highest septicemia rates in the U.S.; that 11 of 13 Prime hospi- tals were in the top 5 percent nationally with respect to such rates; and that the average septicemia rate at Prime’s hospitals (15.1 percent) was almost three times the national average (5.2 percent) and 50 percent higher than the second-highest compa- rable health system. The report also again reported that Prime had relatively low septicemia mortality rates (13 percent) com- pared to other hospitals (19 percent), in contrast to comparable mortality rates overall (4.3 percent and 4.4 percent, respective- ly). It also reported that Prime had one of the highest rates of very short inpatient stays among all U.S. health systems. The report again explained how this could be due to upcoding for septicemia (“The easy explanation is simply that you don’t die if you aren’t really sick”), and could lead to inflated quality scores in “Top 100 Hospitals” rankings. The “care and coding” report also addressed malnutrition rates at Prime hospitals, reporting that they were likewise the highest in the U.S. Specifically, it reported that all Prime hos- pitals were in the top 7 percent for the highest total malnutrition rate nationally; that 12 of 13 Prime hospitals were in the top 4 percent for the highest severe malnutrition rate nationally; and that Prime’s severe malnutrition rate (7.7 percent) was seven times the national average (1.1 percent). It also reported that Prime operated 8 of the 9 California hospitals with the highest malnutrition rates, and 10 of the 11 California hospitals with the highest severe malnutrition rates. As with the Prime’s high septicemia rates, the report stated that inaccurate billing was the most likely explanation for these high malnutrition rates. Following release of the reports, UHW called for a “thor- ough investigation” of Prime hospitals. It also urged state offi- cials to deny licenses to Prime until the investigations were completed, and the passage of state legislation that would pre- vent Prime or any other company from buying and operating a hospital without a license. It also wrote letters to Prime net- work physicians repeating its criticisms of Prime’s corporate takeover and labor practices and the findings in its earlier re- ports regarding septicemia and malnutrition rates at Prime hos- pitals. The letters urged the physicians to assist UHW in “ex- posing the impact of the corporation’s practices” and to report any information about such practices to the HHS Office of the Inspector General. (R. Exhs. 216, 210, 213, 218, 254, 510.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1798 Prime, of course, responded. Both of the UHW reports stat- ed that the Union was engaged in labor disputes with Prime,13 and Prime accused UHW of preparing and distributing the re- ports to “extort concessions” from Prime in those disputes. As for the reports’ findings and conclusions, Prime acknowledged that its hospitals had higher rates of septicemia, but said the rates reflected the company’s emphasis on “early detection and treatment” of the illness, resulting in more cases getting report- ed, even in early stages. It also said that the rates might be elevated because “sicker patients are being admitted” at Prime due to the company’s emphasis on emergency room admis- sions. Prime also disputed UHW’s conclusion in the reports that the lower septicemia mortality rate suggested upcoding. Prime said the lower mortality rate instead reflected Prime’s emphasis on treating septicemia early and aggressively. Final- ly, Prime insisted that the malnutrition diagnoses at its hospitals were likewise accurate.14 In the meantime, in September and October 2010, Prime be- gan meeting with UHW to negotiate new collective-bargaining agreements covering the service and technical units at Encino and Garden Grove. A few months later, in January 2011, Prime likewise began meeting with 121RN to negotiate a new agree- ment covering the registered nurses unit at Encino. The lead negotiator for the hospitals in all three negotiations was Prime in-house labor attorney Mary Schottmiller. Schottmiller was hired by Prime Healthcare Management in January 2010 specif- ically because of her experience with union corporate cam- paigns when she worked for First Group America, and she had served as Prime’s lead negotiator at Centinela since that time.15 Richard Ruppert was the lead negotiator for UHW, and Judith Serlin was the lead negotiator for 121RN. The parties did not reach any new agreements before the ex- isting contracts expired on March 31, 2011, however. Indeed, 13 The January 2011 care and coding report also explained that UHW was conducting the “corporate accountability campaign” because of the interrelationship or correlation between poor treatment of workers and irresponsible and unethical corporate behavior in other areas. 14 See R. Exhs. 105, 212 (October 11, 2010 and February 13, 2011, California Watch articles). See also Prime Senior Labor Counsel Mary Schottmillier’s testimony, Tr. 506–507 (October 2010 article accurately reported Prime’s comments), Tr. 503 (Prime publicly responded to UHW’s allegations numerous times), and Tr. 504 (“Prime’s position is and continues to be that the whole attack on septicemia, malnutrition, et cetera, [is] just an effort by the SEIU to extort concessions from us”). The record indicates, and Respondents acknowledge, that state and federal authorities did, in fact, open investigations into UHW’s allega- tions. See, e.g., R. Exhs. 105, 208, 210; and R. Br. 33 (“UHW’s efforts resulted in investigations of Prime hospitals by the U.S. Department of Health and Human Services, the California Attorney General, [and] the [California Department of Public Health].”) However, no evidence was presented regarding their results. The only evidence Respondents offered regarding the results of any investigation into UHW’s allega- tions was a December 13, 2010 letter from a private accreditation or- ganization, Healthcare Facilities Accreditation Program (HFAP). The letter stated that HFAP had conducted a 1-day “onsite survey” in No- vember 2010 regarding allegations of up-coding/overbilling and infec- tion control problems at Chino Valley Medical Center (one of the Prime hospitals listed in UHW’s 2010 report with an unusually high septicemia rate) and found them “not substantiated” (R. Exh. 810). 15 See Tr. 324, 337; R. Exh. 3; and Centinela Hospital, above. they had not even begun bargaining over economic items by that time. Further, in early May, Schottmiller sent letters to Ruppert questioning “whether the bargaining process has been compromised.” Schottmiller was concerned—based on the LMP between Kaiser and the Coalition and UHW’s corporate campaign against Prime and related 2010 information requests at Centinela (which specifically sought data on septicemia and mortality rates)16—that the SEIU International and its affiliated locals might be working together with Kaiser to exclude Prime from the California healthcare market. Schottmiller therefore requested a variety of information and documents regarding the relationship and communications between SEIU and its affiliat- ed locals and Kaiser, particularly with respect to Prime’s and Kaiser’s competitive position in the healthcare market. (Tr. 516–518; R. Exhs. 22, 22a.) Ruppert responded about a month later, on June 20. He de- clined to provide any of the requested information on the grounds that the requests should have been directed to the SEIU International, were “overly broad” and “neither relevant nor necessary to the negotiations” at Encino and Garden Grove, and appeared to have been made “merely to harass UHW.” (R. Exh. 23.) Several months later, on November 15, 2011, Prime filed an antitrust suit against SEIU, UHW, and Kaiser in federal district court. The complaint alleged that the defendants had unlawful- ly conspired together to eliminate Prime from the healthcare services market in violation of Sections 1 and 2 of the Sherman Act. In support, the complaint cited the LMP, the efforts to prevent Prime from acquiring additional hospitals, the 2010 and 2011 septicemia and care-and-coding reports, and various other alleged actions. As relief, the complaint requested treble dam- ages and a permanent injunction restraining the defendants from continuing their “collusive corporate campaign” to dispar- age and destroy Prime. On August 30, 2012, prior to discovery or trial, the federal district court granted Kaiser’s motion to dismiss the complaint without prejudice to filing an amended complaint. Prime Healthcare Services, Inc. v. SEIU et al., 2012 WL 3778348 (S.D. Cal.). Approximately a year later, on July 25, 2013, the court also granted the defendants’ motions to dismiss the amended complaint without prejudice. 2013 WL 3873074. Prime thereafter appealed the dismissal to the Ninth Circuit, which remains pending. 17 Respondents did not file an unfair labor practice charge with the NLRB, however. Nor did they unilaterally withdraw recognition from UHW. Notwithstanding their asserted de- fense in this proceeding that UHW is disqualified from repre- senting their employees at Encino and Garden Grove, as of the June 2014 hearing they continued to recognize UHW as the unit employees’ bargaining representative, continued to main- tain the status quo under the expired labor agreements (aside 16 See id. 17 I take judicial notice that, in late August 2014, Prime also filed a federal civil action against SEIU, UHW, and the Change to Win (CtW) union coalition under the Racketeering Influenced and Corrupt Organi- zations Act (RICO) based on many of the same operative facts and asserting many of the same allegations as in the federal antitrust action. See Prime Healthcare Services, Inc. v. SEIU et al., 2014 WL 5422631 (N.D. Cal. Oct. 24, 2014) (transferring action to southern district). PRIME HEALTHCARE SERVICES–ENCINO, LLC D/B/A ENCINO HOSPITAL MEDICAL CENTER 1799 from the disputed issue here with respect to ceasing anniversary step wage increases),18 and continued to meet and negotiate on a regular basis with UHW (and 121RN) over new agreements (Tr. 164, 561, 579, 635). II. ALLEGED UNFAIR LABOR PRACTICES A. The Anniversary Step Wage Increases All three of the expired agreements—the 121RN and UHW agreements at Encino and the UHW agreement at Garden Grove—contained identical provisions regarding annual and anniversary step wage increases. In relevant part, they provid- ed as follows: ARTICLE 13 - COMPENSATION Sec. 3. Annual Hospital Wide Increases. July 1, 2010. The wage scales shown in the Appendices will be implemented. Placement of bargaining unit members on the Wage Scales will be in accordance with the Implementation section of this Article. No bargaining unit member will receive a wage in- crease greater than 9.25% in any twelve (12) month period. No bargaining unit member (including those above the appro- priate step) will receive a wage increase of less than 3%. Sec. 5. Annual increases/Advancing through the steps. In addition to the above hospital-wide annual increases, be- ginning July 1, 2008, individual employees shall receive An- niversary Step Increases in accordance with the wage scales in the following manner: Full and part time employees: Employees who are at or below the scale on the anniversary date of their most recent date of hire shall advance to the next step on the wage scale on that anniversary date, subject to the annual caps provided in Sec- tion 3 above, which limit the maximum increase any employ- ee may receive in any twelve (12) month period. Employees who are above the scale shall not receive a step increase on their anniversary date. However, employees who are less than one full step above scale shall advance to the next step on their anniversary date, again subject to the annual caps pro- vided in Section 3 above. (Jt. Exhs. 2–4.) Pursuant to these provisions, Encino and Gar- den Grove granted anniversary step wage increases to the unit employees during the life of the contracts subject to the 9.25 percent annual cap (Jt. Exh. 1). At the parties first postexpiration bargaining sessions at En- cino and Garden Grove in April and June 2011, respectively, UHW lead negotiator Ruppert discussed with Schottmiller what would happen to the contractual terms and conditions of em- ployment of the service and technical unit employees. Ruppert 18 In April 2014, I granted the General Counsel’s motion to consoli- date an additional complaint allegation (31–CA–101389) alleging that Encino unilaterally altered the procedure for posting vacancies in March 2013. However, the General Counsel withdrew that complaint at the hearing on June 10 based on newly discovered evidence (Tr. 8). identified those terms in the expired Encino and Garden Grove contracts that UHW believed survived as a matter of law, in- cluding anniversary step wage increases, and Schottmiller agreed (Tr. 183–186, 260–261, 265–267).19 121RN lead nego- tiator Serlin likewise told Schottmiller during negotiations that 121RN believed the anniversary step wage increases continued postexpiration, and Schottmiller agreed with Serlin as well (Tr. 572). Consistent with the foregoing, over the next 7 months, Enci- no continued to approve and award anniversary step wage in- creases to eligible employees in the 121RN and UHW units. However, Garden Grove did not do so for eligible employees in the UHW unit at that hospital.20 Further, in October or No- vember 2011, after reviewing the provisions of the expired contracts and the law with Barbara Back, Encino’s HR Manag- er, Schottmiller concluded that her initial agreement with the Unions that the hospitals would continue the increases was mistaken. Specifically, she concluded that the provisions in section 5 regarding anniversary step wage increases did not survive or carryover because they referred back to the provi- sions in section 3, which undisputedly did not survive or car- ryover. Accordingly, on or about November 17, 2011, she ordered that no further such increases be given at Encino. (Tr. 566–569, 572, 575, 578, 602, 757.) Schottmiller did not, how- ever, inform UHW and 121RN of this at the time. Rather, both Unions were informed when they subsequently inquired about the missing increases in late November or December 2011 and February and March 2012. (Tr. 102, 186–189, 262–263, 586.) In agreement with the General Counsel, I find that the Re- spondents had an obligation under the Act to continue paying anniversary step wage increases to eligible unit employees after the contracts expired. It is well established that such contractu- al wage provisions are a mandatory subject of bargaining, and that an employer must continue them in effect postexpiration until the parties have reached either a new agreement or a valid impasse, unless the employer can show that the union clearly and unmistakably waived the right to bargain over ceasing them. See Southwest Ambulance, 360 NLRB 835 fn. 1 and JD at 13–17 (2014) (longevity pay), and cases cited there. Respondents have failed to show that there was a clear and unmistakable waiver here. There is no language in section 5 indicating that the anniversary step wage increases would end when the contracts expired. Nor do the references in section 5 19 Although Ruppert did not recall whether he had a similar discus- sion with Schottmiller with respect to the anniversary step wage in- creases at Garden Grove (Tr. 198–200), I credit the testimony of UHW Steward Kimberly Davis, who was also on the UHW bargaining team, that such a discussion occurred. 20 Jt. Exhs. 1, 18; R. Exhs. 64, 64A; GC Exh. 13; Tr. 775, 781–788. As indicated in the cited exhibits, not all employees with anniversary dates at Encino received anniversary step wage increases during the first 7 months after the contracts expired. However, the General Coun- sel appears to concede that this was because only a minority of employ- ees typically qualified for the wage increases for various reasons, and only alleges a violation at Encino as of November 17, 2011, when Schottmiller ordered the wage increases to cease. See the January 31, 2013 consolidated complaint and subsequent amendments thereto (GC Exhs. 1(kkk), and 2, pars. 11, 12), and the General Counsel’s post- hearing brief at 41, 80. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1800 to annual wage increases or the 9.25 percent annual cap on total wage increases clearly indicate that the anniversary step wage increases would end. The only reference in section 5 to the annual wage increases is the statement that employees would receive anniversary step wage increases “in addition to” annual wage increases. This statement does not clearly indicate that the employees would receive the former only if they received the latter. Employees also received a variety of other benefits under the contracts in addition to annual wage increases, and there is no contention that they ended just because the annual wage increases ended when the contracts expired. As for the reference in section 5 to the 9.25 percent annual cap on total wage increases, this reference likewise did not in any way con- dition the continuation of anniversary step wage increases on the continuation of annual wage increases. Respondents nevertheless argue that no unilateral change vi- olation can be found because the foregoing references provided a “sound arguable basis” for Schottmiller’s interpretation that the anniversary step wage increase provisions were not intend- ed to survive. However, the “sound arguable basis” standard applies only to alleged midterm modifications of agreements, not to alleged postexpiration unilateral changes. See Finley Hospital, 359 NLRB 156 fn. 7 (2012), cited with approval in Southwest Ambulance, supra.21 As indicated above, the test in the latter situation is whether there has been a “clear and unmis- takable waiver” by the union. In any event, even if the “sound arguable basis” standard were applicable here, I would find that Respondents have failed to satisfy it for essentially the same reasons stated above, i.e. because the cited references in section 5 to annual wage increases and the 9.25 percent annual cap on total wage increases cannot by themselves reasonably be inter- preted to mean that anniversary step wage increases were con- ditioned on annual wage increases. Moreover, as indicated above, the Respondents (per Schott- miller, their lead negotiator and admitted agent) orally agreed with the Unions in April 2011, shortly after the contracts ex- pired, that the anniversary step wage increases would continue at the hospitals. It is well established that oral agreements may be binding. See Safeway Steel Products, 333 NLRB 394, 400 (2001); Kasser Distiller Products, 307 NLRB 899, 903 (1992); and cases cited in Young Women’s Christian Assoc. of Western Massachusetts, 349 NLRB 762, 771 fn. 8 (2007). And this generally includes oral agreements to continue terms under expired agreements. See Cincinnati Newspaper Guild, Local 9 v. Cincinnati Enquirer, Inc., 863 F.2d 439, 443 (6th Cir. 1988), citing Inner City Broadcasting Corp. v. American Federation of Television and Radio Artists, 586 F. Supp. 556, 559–560 (S.D. N.Y. 1984). Finally, Encino repeatedly and regularly approved and grant- ed such increases to employees in the 121RN and UHW units 21 See also Bath Iron Works Corp., 345 NLRB 499 (2005), affd. 475 F.3d 14 (1st Cir. 2007). As noted there (id. at 503), after a collective- bargaining agreement expires, the union has no recourse under either the grievance-arbitration clause, which normally does not survive con- tract expiration (Litton Financial Printing Division v. NLRB, 501 U.S. 190 (1991)), or 29 U.S.C. § 185, which authorizes unions to bring suit in federal district court against employers for violating contracts during their term. for 7 months after the contracts expired, until mid-November 2011. This was sufficient under Board law, even apart from the oral agreements, to prevent Encino from unilaterally ceasing such increases without notice or bargaining with 121RN and UHW. See Garden Grove Hospital & Medical Center, 357 NLRB 653 (2011) (Respondent Garden Grove violated 8(a)(5) by unilaterally rescinding reserve sick leave benefits 9 months after acquiring the hospital from Tenet, even though it had the right to and did set new initial terms, and had continued the benefits by mistake, due to clerical errors).22 B. The Unions’ Information Requests The complaint alleges that Respondents unlawfully refused to provide certain information to 121RN and UHW relating to Prime’s EPO and PPO healthcare plans in response to written requests dated April 5, 2011, and January 12 and 25, 2012. 1. April 5, 2011 information request by 121RN The first information request on April 5, 2011, was made by 121RN’s Research Director, Maryanne Salm. At that time, the Union anticipated that Prime would make a healthcare proposal at Encino similar to the one it made at Centinela, i.e. that Prime would propose continuing its EPO and PPO plans with signifi- cant increases in employee copays, deductibles, and premiums. Accordingly, Salm submitted a written request to Schottmiller for certain information regarding the plans. Specifically, Salm requested the following information regarding employer costs, employee access to care, and the quality of care under the Prime EPO and PPO plans so that the Union could prepare its bargaining proposals. Prime’s cost of providing the healthcare. Salm stated that “insofar as Prime is the designated provider under the Prime employee health plans,” the Union requested the following information “related to Prime’s cost of providing care to bar- gaining unit employees”: 1. Copies of all claims for coverage under the plan made by employees during the last year for care received at a Prime fa- cility as well as copies of any correspondence or other docu- ments with respect to the processing of those claims and the payments of those claims; [and] 2. A list of paid claims for care received at a Prime facility with all personal information redacted indicating the proce- dures for which payment was made and the cost to the plan for each such procedure. a. For each of the procedures performed in Prime fa- cilities, please provide a breakdown of the actual cost to Prime of each procedure (labor, overhead, pur- chased materials/pharmaceuticals etc); 22 Contrary cases cited by Respondents are distinguishable. In Eagle Transport Corp., 338 NLRB 489 (2002), the employer corrected an administrative error in a single paycheck. In Foster Transformer Co., 212 NLRB 936 (1974), although the employer reduced an employee’s wage rate after paying the higher rate for several years, the Board found no violation because the lower rate was “in line with [the employer’s] uncontradicted policy of paying the applicable rate for the work per- formed,” the reduction corrected “a plainly inequitable rate structure,” and the union itself had “call[ed] attention to the inequity.” PRIME HEALTHCARE SERVICES–ENCINO, LLC D/B/A ENCINO HOSPITAL MEDICAL CENTER 1801 b. For those cost breakdowns, please provide the de- tailed calculations upon which the cost figure was based, indicating how the actual costs for medical ser- vices, for administrative charges and for any other ex- penses were determined. Employee access to care at Prime facilities. Salm stated that the Union also had “concerns that the limited number of ser- vices and providers available at Prime facilities unduly restricts our members’ access to care.” Accordingly, she requested: 1. Copies of all claims for coverage under the plan made by employees during the last year for care received at a non- Prime facility, as well as copies of any correspondence or oth- er documents with respect to the processing of those claims and the payments of those claims; [and] 2. A list of paid claims for care received at a non-Prime facili- ty with all personal information redacted indicating the proce- dures for which payment was made and the cost to the plan for each such procedure. Quality of healthcare provided by Prime. Salm additionally stated that, “because employees are required to utilize services within the ‘Prime Network’ and our members have limited experience utilizing Prime facilities, the Union must carefully evaluate the quality of care at Prime hospitals.” Accordingly, she requested: A list breaking down the quarterly number of in-patient dis- charges by MSDRG, broken down by age groups (0-17, 18- 35, 36-50, 51-64, 65+), from July 1, 2009 to present, [specify- ing] the following: a. Quarter and calendar year; b. MS-DRG grouper version used; c. MS-DRG; d. Age group (0-17, 18-35, 36-50, 51-64, 65+); e. Number of cases; f. Average length of stay; g. Median length of stay; and h. Mortality rate. (Jt. Exh. 5; Tr. 103–106, 171–173.) Schottmiller responded by letter about 10 days later, on April 15. However, other than an updated physician list, she did not attach or otherwise provide the requested information. Instead, she asked for “clarification” of the requests and requested in- formation from 121RN in return. Specifically, with respect to Prime’s cost of providing care, she asked for an explanation of the proposals 121RN had made or anticipated making and how the requested information was relevant to the collective- bargaining negotiations and the Union’s proposal. She noted in this regard that Encino was “not agreeable to any health care plan other than the EPO and PPO plans already implemented and agreed to” and was “not inclined to change that coverage, regardless of the cost issues you raise.” She also requested that, to the extent 121RN believed such information about Prime’s plan was relevant, the Union provide “similar” information regarding its alternative proposal. Schottmiller also disputed the relevance of the requested in- formation about access to Prime facilities. She stated that out- of-network claims did not necessarily mean that Prime’s ser- vices were limited or not conveniently available to employees; indeed, she said it was “silly” to suggest that there were prob- lems with employee access to Prime’s facilities and services given that “the covered employees report to work at the place where most of the services are provided.” She therefore stated that the parties “should further discuss the reason for this re- quest.” As with information about employer costs, she also requested that, to the extent 121RN believed the requested in- formation about access to Prime facilities was relevant, the Union provide “similar” information regarding its alternative proposal. As for the request for information about quality of care at Prime facilities, Schottmiller stated that the request was “baf- fling” given that the care is provided “at the very hospitals in which your members and members of SEIU-UHW work.” In an apparent reference to UHW’s 2010 and 2011 septicemia and care and coding reports, she also noted that “the SEIU appar- ently has sufficient information to comment on the quality of care at Prime Healthcare facilities, as it has done in numerous reports which it has made public.” “In short,” she stated, “it appears that you are seeking to impose a tremendous burden on Prime to gather information that you already have in your pos- session or that is readily available to you from your members.” She therefore asked the Union to “more specifically identify your concerns.” (Jt. Exh. 6; Tr. 106–107.) Salm replied a few days later, on May 9. She advised Schottmiller that 121RN had not yet determined what proposals it would make regarding the existing health plans; “indeed,” the Union was seeking the requested information “to properly evaluate the existing plans to determine whether to even pro- pose changes.”23 Salm also further explained why the specific information requested regarding cost, access, and quality of care was relevant and necessary to such an evaluation. Salm explained that the requested information about claims and payments for care at Prime facilities was “critical to determin- ing plan costs, the allocation of those costs, administrative effi- ciencies, and to measuring quality of care.” With respect to the requested information about claims and payments for care at non-Prime facilities, Salm explained that this information was needed because “employees must go through various adminis- trative processes and often pay increased co-pays and deducti- bles for out-of-network or non-Prime hospital coverage,” and “our members have raised numerous complaints about the lim- ited access to certain services within the Prime Network.” With respect to the requested information about quality of care at Prime facilities, Salm explained that the requested information was necessary because “unit employees in the EPO plan may utilize any of the hospitals within the Prime Network,” not just Encino, “there are many other non-bargaining unit employees that also provide care,” and “our members do not have access 23 Salm also expressed concern that Schottmiller’s response indicat- ed that “the Hospital has adopted a take-it-or-leave-it stance concerning health insurance with no intent to even consider alternative options or views,” a position that “would be antithetical to good faith bargaining.” However, aside from the refusal-to-provide information allegations, there is no allegation in this proceeding that Encino has bargained in bad faith over healthcare. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1802 to the aggregated data requested.” Salm also noted that the existing plans had “not been in existence for all that long,” the unit employees had “only limited experience utilizing Prime facilities,” and the Union therefore had “a duty to carefully evaluate the quality of care at Prime hospitals.” As for Schott- miller’s reference to UHW’s recent reports, Salm noted that 121RN, not UHW or the SEIU International, was the bargain- ing agent for the registered nurses, and that 121RN had not itself issued any reports about the quality of care at Prime hos- pitals. (Jt. Exh. 7; Tr. 107–108.) Schottmiller responded about a week later, on May 17. She rejected Salm’s explanations on the grounds that they were “conclusory” and suggested that Salm “misunderstood our questions and position.” With respect to the requested infor- mation about claims and payments for care at Prime facilities, she disagreed that cost can be a measurement of quality of care. Further, she argued that the requested information about Prime’s costs was not needed to propose reductions in the cost of benefits; that short term, direct costs are not necessarily the driver in health care planning”; that “many threshold issues should be resolved before addressing costs”; and that it ap- peared the Union was seeking “information that would violate the collective bargaining privilege, our own cost analysis.” With respect to the requested information about employee ac- cess to Prime care, she likewise argued that 121RN could make bargaining proposals without the information. She also object- ed to Salm’s failure to provide more detail regarding employee complaints about limited access, and made a “formal request for information relating to all the complaints.” She likewise objected to Salm’s failure to provide information regarding employee complaints about quality of care, and made a “formal request” for “all information received by SEIU 121RN which raises concerns regarding the quality of care in the Prime Net- work.” Finally, Schottmiller accused Salm of being “disingen- uous” regarding the relationship between 121RN and the SEIU, and requested “any communications between SEIU 121RN and the SEIU, any of the SEIU’s affiliate organizations, or any third parties, regarding the quality of care provided at Prime.” (Jt. Exh. 8; Tr. 108–109.) Salm replied a few weeks later, on June 2. With respect to the cost of the Prime health care plans, she repeated her earlier explanation and assured Schottmiller that the Union was “not seeking analysis you have prepared for purposes of bargain- ing.” Regarding employee access to care, she again explained that “going out of network for care often entails more cost to employees and we are entitled to see how often and for what reasons this is occurring.” As for Schottmiller’s request for more detail about employee complaints, Salm stated that the Union would review and respond to the request if made sepa- rately, but that it had “no bearing on the relevance of the Un- ion’s request” for information. Finally, with respect to quality of care, Salm repeated that the requested information “is rele- vant to analyzing existing health plans,” and would allow the Union “to better understand the level of care at Prime facili- ties.” She did not address Schottmiller’s additional “formal” requests for information about the Union’s requests for infor- mation on that subject. (Jt. Exh. 9; Tr. 109–110.) Schottmiller responded a month later, on July 1. She stated that it was “readily apparent,” based on Salm’s responses, that 121RN was engaging in a “fishing expedition in an attempt to create a problem where none exists.” Specifically, regarding the cost of the Prime healthcare plans, Schottmiller said she still did understand why 121RN was seeking the requested infor- mation, as “the NLRA does not require the employer to adopt the lowest cost plan, allocate costs in any way, or obtain admin- istrative efficiencies.” Regarding quality of care, Schottmiller acknowledged that the requested data “may be of abstract inter- est to a statistician.” However, she stated that it was “not the best evidence” for the Union to evaluate the quality of care, and repeated that the “best source” of information would be the Union’s “own unit members.” Schottmiller also objected to 121RN’s failure to provide the information requested in her May 17 response regarding employee complaints about access and quality of care. Finally, she made several additional “for- mal” requests for information. Specifically, she requested “all quality of care information you have obtained from bargaining unit members and other persons for purposes of your analysis.” She also requested “any similar requests served on other em- ployers,” and “any efforts made by SEIU 121RN to develop similar information with respect to any plans covering its mem- bers,” particularly “the extent to which SEIU 121RN developed the same information from Aetna or PacifiCare, which previ- ously provided benefits to the bargaining unit.” (Jt. Exh. 10; Tr. 110.) At this point, Salm decided it would not be productive to continue going back and forth, and therefore did not reply to Shottmiller’s July 1 response. Nor did 121RN provide the in- formation Schottmiller requested. However, the Union did not withdraw Salm’s April 2011 request, and in fact filed an unfair labor practice charge against Encino over the matter in late September 2011 (Tr. 111, 156, 621; GC Exh. 1(a)). Nevertheless, the parties continued to bargain over healthcare. As expected, in or around late 2011, Encino pro- posed continuing the current plans, with an increase in employ- ee premiums. Consistent with its previous information re- quests, 121RN raised concerns about the proposal during nego- tiations with respect to cost, access, and quality of care. Ap- proximately 2 years later, in February 2014, the Union also submitted its own “package proposal for wages and health care benefits” to Encino. The Union’s proposal agreed to maintain the current EPO and PPO plans for the life of the contract, but with specified limits on the amounts, if any, employees would pay for premiums, copays, and deductibles in each year. Enci- no has not to date accepted the proposal, however, and the Un- ion still wants the information Salm originally requested in April 2011. (R. Exh. 755; Tr. 170–171, 556, 561, 616–617, 621–623.) In agreement with the General Counsel, I find that Encino had an obligation under the Act to provide 121RN with all of the information requested in Salm’s April 2011 letter. There was nothing unusual about Salm’s request for information about Encino’s costs of providing healthcare to unit employees, and the Board has repeatedly held that such information is pre- sumptively relevant, particularly during contract negotiations. See, e.g., One Stop Kosher Supermarket, 355 NLRB 1237 PRIME HEALTHCARE SERVICES–ENCINO, LLC D/B/A ENCINO HOSPITAL MEDICAL CENTER 1803 (2010) (the cost of health insurance to the company and to the employees); Castle Hill Health Care Center, 355 NLRB 1156, 57 (2010) (cost to the employer for unit employees’ single health insurance coverage); Saipan Grand Hotel, 326 NLRB 80 (1998) (cost per hour of providing health insurance to unit em- ployees); Martin Marietta Energy Systems, 316 NLRB 868, 874 (1995) (employer’s costs under its self-insured healthcare plan, particularly those including large claims and the amounts paid to certain providers); General Dynamics Corp., 270 NLRB 829, 833 (1984) (the amount of the fee employer negotiated with the insurance company for actuarial, consulting, and other administrative services rendered with respect to the employer’s medical insurance program); North American Soccer League, 245 NLRB 1301, 1306 (1979) (the claim experience under each category of insurance provided to players and/or their families, the overall cost to the employers of each category of insurance provided, and a description by transaction of any claims denied by the insurance carriers and/or the clubs providing the insur- ance for each category in question); Nestle Co., 238 NLRB 92, 94 (1978) (insurance claims and premiums paid at the plant); and Swift & Co., 124 NLRB 394 (1959), enfd. in relevant part, 277 F.2d 641, 645 (7th Cir. 1960) (cost to the employer of the healthcare benefits paid to unit employees under the current plan).24 As for Salm’s requests for information about unit employ- ees’ access to Prime facilities and the quality of care at those facilities, that information was obviously relevant given that the employees were required under the Prime EPO plan to obtain medical treatment at Prime facilities. And to be sure Encino did not miss the obvious relevance of the information, Salm clearly explained it to Schottmiller. Further, Encino has failed to establish any legitimate basis for not providing the requested information to 121RN. Encino argues that it was not required to provide the requested infor- mation because Salm failed to adequately respond to Schottmil- ler’s requests for “a proper explanation” of its relevance or produce information in response to her requests. However, given that the information requested in Salm’s April 2011 letter was presumptively and/or facially relevant, 121RN had no duty to provide any further explanation or information regarding its relevance to Schottmiller; rather, the burden was on Encino to show why the information was not relevant. See, e.g., Castle Hill Health Care Center, above; and Regency Service Carts, Inc., 345 NLRB 671, 674 (2005). Encino has failed to do so.25 24 See also U.S. Testing Co., 324 NLRB 854, 859 (1997), enfd. 160 F.3d 14 (D.C. Cir. 1998), where the Board found that the union was entitled to medical claim and payment information regarding nonunit employees as well as unit employees. 25 Encino does not repeat Schottmiller’s initial argument, in her April 15 response, that the information requested by Salm was irrele- vant to the contract negotiations because Encino would never change its position regarding the Prime EPO and PPO plans. In any event, the argument is without merit. As the Board stated in Regency Service Carts, 345 NLRB at 674–675: Information concerning bargained matters is relevant precisely be- cause such information can enhance the prospects for agreement. Ir- respective of whether the information may prompt one party to yield or the other party to do so, the information is equally relevant. Encino also argues that it had no duty to provide the request- ed cost information because Prime itself provided the healthcare to employees, and thus the requested cost infor- mation was “akin to” “proprietary” “profit and loss infor- mation,” which an employer has no duty to disclose absent a plea of poverty, citing American Polystyrene Corp., 341 NLRB 508 (2004), union’s ptn. for review granted and remanded 467 F.3d 742 (9th Cir. 2006). However, as indicated by the cases cited above, “it is not always necessary that the [c]ompany put the cost of its proposals in issue, or even refuse [u]nion de- mands on the ground that they are too costly,” to require disclo- sure of information about the cost of insurance benefits. NLRB v. General Electric Co., 418 F.2d 736, 750 (2d Cir. 1969), cert. denied 90 S.Ct. 995 (1970). Encino cannot avoid its statutory obligations to provide such presumptively relevant cost infor- mation to the Union simply because it chooses to provide healthcare to its employees directly through Prime, its parent company, rather than through other providers. If Encino was concerned about the potential disclosure of “proprietary” cost information to competitors, it was obligated to timely raise those concerns and seek an accommodation with the Union. See, e.g., Howard Industries, Inc., 360 NLRB 891 (2014), cit- ing Pennsylvania Power Co., 301 NLRB 1104, 1105–1106 (1992). There is no evidence that it ever did so. Encino also argues that it was not required to provide the re- quested information because “the record evidence demon- strates” that the request was “not made to facilitate good faith bargaining, but instead to abuse the process.” In support, Enci- no cites the fact that Salm requested Medicare discharge (MS- DRG) data, the same type of data that UHW had requested at Centinela and used to attack Prime’s quality of care and coding practices.26 Encino argues that it therefore had “reason to be- lieve” that 121RN’s request was made for a similar “nefarious purpose.” However, the MS-DRG data requested by Salm would have eventually become available from governmental or other public sources (Tr. 167–168). Further, as discussed be- low, Respondents have failed to establish that UHW’s reports based on MS-DRG and other data were false or incorrect. In any event, a union is presumed to act in good faith in re- questing information. Mission Foods, 345 NLRB 788 (2005). And the mere fact that UHW had used similar MS-DRG data to issue critical reports about Prime was insufficient to rebut that presumption or justify its failure to provide the information to 121RN. See also AK Steel Corp., 324 NLRB 173, 184 (1997); Central Manor Home for Adults, 320 NLRB 1009, 1011 (1996); and Associated General Contractors of California, 242 NLRB 891 (1979), enfd. in relevant part 633 F.2d 766 (9th Cir. 1980), cert. denied 101 S.Ct. 3049 (1981) and cases cited there (employer must provide requested information to the union if it is relevant to and requested for the purpose of collective bar- 26 Encino also argues (somewhat inconsistently) that MS-DRG data is irrelevant to evaluating quality of care. However, it bases this argu- ment solely on Schottmiller’s testimony that her chief nursing officer told her so (Tr. 583). Needless to say, such uncorroborated, self- serving, and conclusory hearsay is entitled to little if any weight. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1804 gaining, even if the union also has other reasons for requesting the information).27 Finally, Encino argues that the subsequent history, specifi- cally “the parties’ continued negotiations regarding the EPO and PPO health plans” after Salm’s April 2011 request, proves that the requested information was not relevant and necessary to bargaining. However, this argument is likewise without merit. See Castle Hill Health Care Center, and Regency Ser- vices Carts, above, and cases cited therein. See also Oil, Chem- ical & Atomic Workers Local 6-418 v. NLRB, 711 F.2d 348, 357 fn. 17 (D.C. Cir. 1983). 2. The January 12 and 25, 2012 information requests by UHW During 2011, Prime made its healthcare benefits expert, Tammy Valle, available at a few of the bargaining sessions to answer UHW’s questions. However, on November 15, 2011, Schottmiller notified Ruppert by email that Valle would not be attending any further sessions, and that if UHW had any further healthcare questions for her, they should be submitted in writ- ing (Jt. Exh. 11; Tr. 580–581, 635–636). A few months later, Ruppert gave Schottmiller the subject January 12 and 25, 2012 written information requests. The requests were identical except that one was for Encino and the other for Garden Grove, and sought a variety of information regarding employee access to care at Prime facilities and the premium and other costs of the EPO and PPO plans. Specifi- cally, Ruppert requested the following: 1. What distance limits are there before a referral to an An- them physician can be made? 2. What is the referral process for physicians out of the Prime network? 3. What is the appeal process for referrals? 4. Who determines these appeals? 5. How many referrals were approved / denied in the plan re- ferral review process in the last plan year for which this in- formation is available? In bargaining discussions, Tammy Valle explained that pre- mium amounts were determined by census data, group expe- rience data and actuarial calculations. 6. How were the premiums determined for the EPO? Please provide supporting data. 7. How were the premiums determined for the PPO? Please provide supporting data. 8. What percentage of the total premiums are the proposed employee premiums? 27 Coca-Cola Bottling Co. of Chicago, 311 NLRB 424 (1993), cited by Encino, is clearly distinguishable. There, the union’s information request for retirement-benefit cost information indicated on its face that it was made at the behest of the employer’s competitors. 9. What is the annual or monthly cost of the plan to the hospi- tal. Please break this information down for each plan and for each plan coverage option available. 10. How are the fee-for-service charges determined for par- ticipating physicians in the Prime Network? 11. Are these the "allowable charges" in the definitions sec- tion of the SPD [summary plan description]? 12. What urgent care facilities participate in the EPO plan? 13. What were the costs of the three categories in the pre- scription plan for over the last two plan years? 14. Please provide the step process guidelines for approval of out of formulary drugs[.] 15. Documents showing the dollar amount of monthly ad- ministrative costs (including the definition of "administrative costs") during the prior 2 insurance contract years and show- ing these costs as a percent of the amount of claims paid and additionally, all documents showing any other costs incurred other than claims paid. 16. Documentation as to the reserves maintained for the payment of claims and for any stop-loss insurance carried by the employer including coverage terms and cost. (Jt. Exhs. 12, 15; Tr. 190–192, 203–204.)28 Schottmiller responded approximately a month later, on Feb- ruary 20. As with 121RN’s previous request, she did not attach or provide the foregoing requested information.29 Rather, with respect to access to care, she objected to Ruppert’s failure to “identify the issues which have given rise to [UHW’s] concerns or detail any specific problems under the EPO plan,” and made a “formal request” that UHW provide “all information regard- ing and documentation underlying [UHW’s] purported access to care concerns.” She also argued that UHW could make al- ternative bargaining demands without the information, and that “none of the information” that UHW requested was “in any way relevant to any plan that may be proposed by the union.” With respect to the requested information regarding premiums, Schottmiller stated that the premium costs were “based on a determination made in the best judgment of the company as to what would make [the hospitals] an attractive employer.” As for the requested information regarding the cost of the EPO plan to the hospitals, physician fee-for-service charges, and reserves for payment of claims, she argued that such infor- mation is likewise “not relevant to the parties’ bargaining, and 28 Ruppert testified that he did not ask for information about the quality of care at Prime facilities because he had already asked for such information at Centinela, and because he wanted to minimize Prime’s concerns about UHW’s motives for requesting information at Encino and Garden Grove (Tr. 230–231, 247). 29 Schottmiller did, however, provide other information requested in Ruppert’s January 12 and 25 letters. PRIME HEALTHCARE SERVICES–ENCINO, LLC D/B/A ENCINO HOSPITAL MEDICAL CENTER 1805 asked Ruppert to “explain the purpose for which [UHW] is requesting this information.” (Jt. Exh. 13, 16; Tr. 192.) Ruppert replied a month later, on March 20. He explained that the information requests were based on discussions the union’s bargaining team had previously had at the bargaining table with Valle. He also explained at length the relevance and necessity of the requested information: The costs for utilizing Anthem physicians under the EPO are greater than those incurred with participating Prime physi- cians. There are two obvious reasons one might need to utilize this option, services or specialists not available in the Prime Network or at too great a distance. Accordingly we asked questions addressing the availability of doctors and specialists and what the distance policy was for referrals to an Anthem provider. This information could be in the form of claims amounts and diagnostic codes for all claims performed at a Prime facility and separately the same information for claims at Anthem providers and out of the network. Additionally you will recall discussion of the referrals to An- them doctors. Our members were initially led to believe that they could continue to see their Anthem doctors if they select- ed the EPO plan, primary care physician (PCP) referral re- quirements notwithstanding. Now they are receiving bills in- dicating the plan will not pay their Anthem doctors due to a lack of a PCP referral. In our discussion, Ms. Valle reported the healthcare plan was working through these issues but that the PCP referral requirement was going to be strictly adhered to. Our questions addressing the referral process, the appeal pro- cess for referrals, the individuals who determine these appeals and the history of appeal results are based on these very real concerns and experiences. You may recall that during our discussion of these "specific problems" at the bargaining table was [sic] suggested to be an HR issue, yet your letter main- tains we have not brought [any] specific issues or general concerns to the bargaining table. During the discussions Ms. Valle explained the elements con- sidered to determine the premium amounts for the proposed plans. (Census data, claims experience, custom group experi- ence, actuarial projections, etc.) We were told these calcula- tions could be made available and asked for them in our re- quest. Your proposal includes a closed formulary for prescription coverage and eliminates current plans with different levels of prescription coverage. We have requested "step process guidelines" for drugs not in the formulary and historical costs for of the three categories of prescriptions in the current plan. Since you are proposing a different coverage structure with cost shifting we need to know what those costs have been. As a self-insured provider, Prime is required to maintain stop loss insurance for claims. This is in part for the protection of our members. Documentation of the reserves is an appropriate request. Costs of the plan are a topic of bargaining. When we asked why deductibles and other charges are so high for the pro- posed PPO plan the answer was because we want employees to be in the EPO. We need to understand the basis of the charges and the actual costs of the medical services and ad- ministrative charges to value your proposal before we can propose changes to ensure that our members are not priced out of coverage for their families or necessary coverage for themselves. Accordingly we asked for the annual or monthly cost to the hospital of each plan and for each plan coverage option available. Documents showing the dollar amount of monthly adminis- trative costs (including the definition of “administrative costs”) during the prior two insurance contract years, showing these costs as a percent of the amount of claims paid were re- quested. We requested urgent care locations participating in the EPO. In most healthcare plans preventive care is an element and ef- forts to reduce costs are integrated into the plan. Urgent care is a common cost reduction. If costs are reduced the pressure is usually reduced for premiums or other cost shifting. . . . . Your letter states that answers to our questions are in the SPD and if something is unclear our question should be specific. We asked about the fee for service charges in the Prime net- work and whether or not they were the “Allowable charges” in the definitions section of the SPD without receiving an an- swer. At your suggestion we will work our way through the 2011 SPD again while we wait for a copy of the 2012 SPD. (Jt. Exh. 14.)30 Ruppert never received a response from Schottmiller. Nor did UHW ever receive the requested information. Accordingly, like 121RN, on July 15, 2012, UHW filed an unfair labor prac- tice charge over the matter. (Tr. 193–196, 205–207, 249–250; GC Exh. 1(v).) In agreement with the General Counsel, I find that Encino and Garden Grove were obligated under the Act to provide UHW with the information requested in Ruppert’s January 2012 letters. Like Salm’s earlier requests on behalf of 121RN, Ruppert’s requests for information about access and costs under Prime’s EPO and PPO plans were plainly relevant on their face. Moreover, like Salm, Ruppert fully explained their relevance. Further, as with Salm’s requests, Respondents have failed to establish a legitimate basis for not providing any of the infor- mation requested by Ruppert. Respondents assert that the in- formation was not relevant or necessary for UHW to prepare a bargaining proposal as Respondents had already provided UHW with the SPDs and made Valle available to answer ques- tions during bargaining sessions. However, Respondents do not contend that the SPDs or Valle provided all of the infor- mation Ruppert requested, and Ruppert’s March 20 response to Schottmiller fully explained why the additional information remained relevant and necessary. In these circumstances, Re- spondents could not simply ignore Ruppert’s request, but were 30 See also the similar reply Ruppert sent to Schottmiller on March 28 with respect to the Garden Grove negotiations (Jt. Exh. 17). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1806 required to comply with the request to the extent it encom- passed additional relevant and necessary information that had not already been provided. See Mission Foods, 345 NLRB at 789; and Keauhou Beach Hotel, 298 NLRB 702 (1990), and cases cited there. Respondents also argue that the hospitals’ costs of providing healthcare constitute confidential proprietary information. However, I reject this argument for the same reasons I rejected it with respect to Salm’s request for similar information. Again, there is no evidence that Respondents ever raised their confidentiality concerns or sought an accommodation with UHW. III. THE RESPONDENTS’ DISQUALIFICATION DEFENSE As indicated above, Respondents also assert that they lawful- ly ceased anniversary step wage increases in the service and technical units and refused to provide UHW with the requested healthcare information because UHW was disqualified from representing the unit employees due to its participation in the Coalition’s strategic partnership with Kaiser and its corporate campaign to disparage Prime’s reputation. I reject this defense for the following reasons. First, Respondents failed to present any evidence that UHW’s asserted disqualifying conflict of interest and/or con- duct had anything whatsoever to do with Respondents’ alleged unlawful actions. As discussed above, the record shows that Respondents ceased the anniversary step wage increases based on their interpretation of the expired contract language, and that they refused to provide UHW with the requested information about the Prime EPO and PPO plans because they did not be- lieve it was relevant or necessary to the parties’ new contract negotiations. Although Respondents at one point questioned and requested information from UHW about whether bargain- ing had been compromised by the relationship between UHW, SEIU, and Kaiser, and subsequently even filed a federal anti- trust action against them, there is no evidence that Respondents ever actually asserted that UHW was disqualified from repre- senting the unit employees. As of the hearing, Respondents continued to recognize and bargain with UHW.31 In these circumstances, Respondents cannot now assert as a defense to the discreet 8(a)(5) allegations in this proceeding that they never had to recognize and bargain with UHW in the first place. Until such time as they lawfully refuse to bargain and withdraw recognition from UHW, they must comply with their bargaining obligations under the Act. See Greyhound Lines, Inc., 319 NLRB 554, 556–557 (1995) (rejecting, for the same reasons, the employer’s defense that the union was dis- qualified due to its conflict-of-interest and violent conduct), and cases cited there. Compare also the following cases where the Board found that the employer properly raised and established that the union was disqualified: Bausch & Lomb Optical Co., 108 NLRB 1555 (1954) (employer refused to bargain with the union because it established a company that directly competed with the employer); Catalytic Industrial Maintenance Co., 209 31 UHW likewise continued to serve as the unit employees’ repre- sentative at Encino and Garden Grove, and presumably expended sub- stantial resources, garnered from unit employees’ dues, in doing so. NLRB 641 (1974) (employer filed motion to revoke the union’s certification and refused to recognize and bargain with the un- ion, which also represented the employees of the company that contracted the work to the employer, because the union sought to end the subcontract and have the contractor’s employees, rather than the employer’s employees, perform the work); Val- ley West Welding Co., 265 NLRB 1597 (1982) (employer filed petition to revoke the union’s certification and withdrew recog- nition from the union for essentially the same reasons as in Catalytic); and Pony Express Courier Corp., 297 NLRB 171 (1989) (employer refused to recognize and bargain with the newly certified union because, among other things, the union’s founder and business agent was the owner and president of a consulting firm that advised respondent’s customers and com- petitors).32 Second, even assuming arguendo that Respondents may properly assert a disqualification defense in the present circum- stances, they have failed to prove the defense.33 As indicated by Respondents, the cited provisions of the LMP and related action plans, as well as the substantial financial contributions by Kaiser and its employees to the joint labor-management partnership trust fund, indicate that the Coalition and Kaiser have partnered in a serious and meaningful way to make Kaiser the preeminent healthcare provider and employer at the expense of competitors, including Prime. However, labor-management partnerships to enhance employer competitiveness are encour- aged under the Labor Management Cooperation Act of 1978.34 As the Board stated in addressing the lawfulness of a joint em- ployer/union logo in BellSouth Telecommunications, Inc., 335 NLRB 1066, 1070 (2001), enf. denied Lee v. NLRB, 393 F.3d 491 (4th Cir. 2005): [T]he Labor Management Cooperation Act of 1978 encour- ages joint labor-management initiatives. The stated purposes of the Act are, inter alia, to expand and improve working rela- tionships between workers and managers in the organized sector of the economy, to improve communication between representatives of labor and management, and to enhance the involvement of workers in workplace decisions. The underly- ing policy assumption is that innovative joint approaches will 32 The Board, of course, has also addressed the conflict-of-interest issue when it has been timely raised by the employer in the initial rep- resentation proceeding. See, e.g., Visiting Nurses Association, Inc., 254 NLRB 49 (1981) (finding that union was disqualified because its re- gional association had established a nurses registry that directly com- peted with the employer in providing nursing services). See also Mas- sachusetts Society for Prevention of Cruelty to Children, 334 NLRB No. 141 fn. 1 (2001), enfd. 297 F.3d 41 (1st Cir. 2002) (rejecting em- ployer’s contention, in test-of-certification refusal-to-bargain proceed- ing, that the union had a disqualifying conflict of interest, because the employer failed to raise the issue in the underlying representation pro- ceeding). 33 It is the employer’s burden to prove the affirmative defense, and the burden is a heavy one. Supershuttle International Denver, Inc., 357 NLRB 68, 69 (2011), citing Garrison Nursing Home, 293 NLRB 122 (1989). 34 29 U.S.C. § 175(a). See also 29 U.S.C. § 186(c)(9), which pro- vides that payments to labor management committees established for the purposes of the Labor Management Cooperation Act are excepted from the restrictions on employer payments to unions. PRIME HEALTHCARE SERVICES–ENCINO, LLC D/B/A ENCINO HOSPITAL MEDICAL CENTER 1807 enhance organizational effectiveness and competitiveness. By agreeing to the joint logo display, BellSouth and the CWA were demonstrating to the public their commitment to work- ing together to enhance the Company's competitive ad- vantage. In this respect, they were acting in accord with fed- eral labor policy. It may be that the Kaiser LMP stretches the purposes and policies of the Labor Management Cooperation Act too far by obligating UHW and other members of the Coalition to assist Kaiser, not only in meeting the competition through increased cooperation in the workplace, but in beating the competition through marketing and mergers and acquisitions. Indeed, the LMP is arguably inconsistent with the purposes and policies of that Act to the extent it may effectively preclude Prime and other healthcare providers from entering into a similar partner- ship agreement with UHW or other signatory unions in the Coalition.35 After all, there can be only one preeminent healthcare provider and employer. But, Respondents (who as indicated above bear the burden of persuasion regarding their affirmative defense) do not make this argument; indeed, they do not even acknowledge, much less address, the Labor Man- agement Cooperation Act.36 Nor do they cite any authority disqualifying a union because of a labor-management partner- ship agreement with a competitor. As for UHW’s “corporate accountability campaign” against Prime, Respondents have failed to establish that there was any- thing disqualifying about it. Public campaigns to pressure an employer to accede to employee bargaining demands are noth- ing new. See, e.g., Rochester Telephone Corp., 333 NLRB 30 (2001) (union engaged in corporate campaign to pressure em- ployer to modify its last bargaining proposal).37 And, within certain bounds, they are protected by the Act. See Jimmy John’s, 361 NLRB 283 (2014); Valley Hospital Medical Cen- ter, 351 NLRB 1250, 1252 (2007), enfd. 358 Fed. Appx. 783 (9th Cir. 2009); and Montauk Bus Co., 324 NLRB 1128 (1997), and cases cited there. Here, although UHW’s press releases and reports were high- ly critical of Prime, they addressed matters plainly relevant to the unit employees’ terms and conditions of employment. In- fection control is obviously of concern to hospital staff as well as patients, and the unit employees themselves obtained medi- cal care at Prime facilities under the terms of the hospitals’ 35 UHW is not unique in representing employees of competing em- ployers. Indeed, it is common for unions to do so. See Supershuttle, at 70; and CMT, Inc., 333 NLRB 1307, 1308 (2001), and cases cited there. 36 The Respondents failure to address the Labor Management Coop- eration Act is remarkable, not only because UHW has repeatedly cited it as grounds for rejecting Respondents’ disqualification/conflict-of- interest defense (see, e.g., GC Exh. 1(eeee)), but because it was one of the grounds cited by the federal district court for dismissing Prime’s amended complaint in the antitrust case. See 2013 WL 3873074 at *8. 37 See also James Brudney, Collateral Conflict: Employer Claims of Rico Extortion Against Union Comprehensive Campaigns, 83 S. Cal. L. Rev. 731 (2010); Cynthia Estlund, The Ossification of American Labor Law, 102 Colum. L. Rev. 1527, 1605 (2002); and Elizabeth Mullikin, The Corporate Organizing Campaign: A Double-Edged Sword, 40 S.C. L. Rev. 449 (1989). EPO plan. Moreover, the reports and press releases specifically stated that the Union was involved in labor disputes with Prime and explained the relationship or connection between those labor disputes and the concerns raised in the reports. Indeed, Prime itself publicly stated at the time, and continues to take the position, that UHW’s corporate campaign was intended to pressure the hospitals to accede to the Union’s bargaining de- mands. Further, Respondents have failed to show that UHW’s re- ports and related actions to prevent Prime from acquiring addi- tional hospitals exceeded the bounds of protected conduct. As indicated above, the reports relied on publicly available Medi- care data, and there is no contention or evidence that UHW misreported that data. As for the reports’ conclusions, Re- spondents never established that they were incorrect. As previ- ously noted, Respondents offered into evidence a December 2010 letter from a private accreditation organization stating that the organization had conducted a 1-day “on-site survey” re- garding allegations of upcoding/overbilling for diagnosis and serious infection control issues at one of Prime’s hospitals and found them “not substantiated.” However, Respondents pre- sented no testimony or evidence explicating the referenced allegations or the organization’s “on-site survey” or findings. Moreover, the letter itself states that the survey was done at only one hospital. Thus, the letter is plainly insufficient to establish that UHW’s conclusions were incorrect. Respondents also presented a statistician38 to testify as an expert about the reports. However, the statistician did not testi- fy that the reports’ conclusions about the septicemia and malnu- trition data were incorrect; indeed, he admitted that he did not even attempt to determine if they were incorrect (Tr. 666). Rather, he testified that he only examined the reports to deter- mine if they applied “accepted statistical principles” by differ- entiating between actual and reported statistics, adequately considering every alternative explanation for the data, and criti- cally examining the underlying assumptions for the conclusions reached. Although he testified without contradiction that the reports failed to do so,39 Respondents cite no authority holding 38 William B. Farley, PhD, president of Analysis & Inference, Inc., a company providing consulting services in statistics to corporations, government agencies, and nonprofit organizations. 39 At Respondents’ request, I barred both UHW and the General Counsel from cross-examining Respondents’ witnesses or presenting any contrary evidence regarding Respondents’ disqualification defense as a sanction for UHW’s admitted contumacious refusal to produce documents responsive to several paragraphs of Respondents’ subpoenas duces tecum or to present UHW President Dave Regan to testify in response to Respondents’ subpoena ad testificandum. I also ruled that Respondents would be entitled to adverse inferences that the undis- closed documents and Regan’s testimony would have supported Re- spondents’ defense. However, I reserved ruling on precisely what those adverse inferences would be, advising the parties to address the matter in their posthearing briefs. See Tr. 19–76, 270–275, 284–307, and my previous unpublished orders dated April 29, 2013 (Jt. Exh. 24(I)), Oc- tober 29, 2013 (GC Exh. 1(iiii), exh. C), December 4, 2013 (GC Exh. 1(dddd)), March 7, 2014 (GC Exh. 1(jjjj)), and May 23, 2014 (GC Exh. 1(ggggg)); and the Board’s unpublished orders dated June 28, 2013 (2013 WL 3293565) and February 25, 2014 (2014 WL 722107) deny- ing UHW’s special/interlocutory appeals.) In their posthearing brief, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1808 union representatives to the same standards as statisticians. Cf. Jimmy John’s, above (rejecting the dissent’s argument that certain public statements made by the sandwich-shop employ- ees, which suggested that the employer’s failure to grant them sick leave could result in contaminated sandwiches, were un- protected because they were not supported by statistical proof or empirical analysis). Finally, Sahara Datsun, Inc., 278 NLRB 1044, 1046 (1986), the primary case cited by Respondents, is clearly distinguisha- ble. There, the Board held that the employer was not required to negotiate or otherwise deal with a union agent who published personal allegations against the employer’s owner that were unsubstantiated, based on rumors and innuendos, and unrelated to the employees’ terms and conditions of employment. Here, as discussed above, the Union’s reports addressed issues rele- vant to the unit employees’ own healthcare, and accurately cited publicly available Medicare data. Further, while the re- ports may not have fully considered every alternative explana- tion for Prime’s unusually high rates of septicemia and malnu- trition other than upcoding or infection control problems, they did consider alternative explanations. Moreover, the reports convinced state and federal authorities familiar with the field to initiate formal investigations, at least some of which are appar- ently still ongoing (see fn. 14, supra). See also St. Johns Hospi- tal, 281 NLRB 1163 fn. 1 (1986) (finding it unnecessary to pass on the judge’s discussion of whether a union’s unsubstantiated disparaging public comments about an employer would warrant disqualifying the union as representative of the employer’s employees). Accordingly, for all the foregoing reasons, I reject the Re- spondents’ disqualification defense to the allegations involving UHW, and find that Respondents violated the Act as alleged in all respects.40 Respondents argue that an adverse inference should be made that “UHW’s allegations of fraud and pervasive patient care problems are baseless and designed for no other purpose than to damage Prime.” However, I find that such an adverse inference is inappropriate under the circumstances. As discussed above, the reports relied on public Medicare data and Respondents admit that at least one objective of the reports was to bring pressure on the hospitals to accede to UHW’s collective-bargaining demands. Thus, like an economic strike, the fact that the reports and related actions were intended to cause economic harm to the company does not necessarily render them unprotected or disqualifying. Further, Respondents and their parent Prime, who own and manage the hospitals, are uniquely in possession of all the infor- mation relevant to whether the stated conclusions in UHW’s reports about Prime are baseless. 40 I also deny Respondents’ request for fees and costs. CONCLUSIONS OF LAW 1. Respondent Encino has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act, by: (a) Unilaterally ceasing, since March 31, 2011, to grant an- niversary step wage increases to eligible employees in the reg- istered nurses unit without providing 121RN notice or an op- portunity to bargain; (b) Unilaterally ceasing, since November 17, 2011, to grant anniversary step wage increases to eligible employees in the service and technical unit without providing UHW notice or an opportunity to bargain; (c) Failing and refusing to furnish 121RN the relevant and necessary information it requested on April 5, 2011; and (d) Failing and refusing to furnish UHW the relevant and necessary information it requested on January 12, 2012. 2. Respondent Garden Grove has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act, by: (a) Unilaterally ceasing, since November 17, 2011, to grant anniversary step wage increases to eligible employees in the service and technical unit without providing UHW notice or an opportunity to bargain; (b) Failing and refusing to furnish UHW the relevant and necessary information it requested on January 25, 2012. REMEDY The appropriate remedy for the violations found are orders requiring Respondents Encino and Garden Grove to cease and desist and to take certain affirmative action, including provid- ing the Unions with the requested information and making whole eligible unit employees for the failure to pay them anni- versary step wage increases. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest com- pounded daily as prescribed in New Horizons, 283 NLRB 1173 (1987), and Kentucky River Medical Center, 356 NLRB 6 (2010). As set forth in Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), Respondents must also compensate the employees for the adverse tax consequences, if any, of receiving a lump-sum backpay award and file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters. [Recommended Order omitted from publication.]