McKenzie-Willamette Regional Medical Center Associates, LLC dba McKenzie-Willamette Medical Center

National Labor Relations Board - Board Decisions

Jul 29, 2014

361 N.L.R.B. 54 (N.L.R.B. 2014)

54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McKenzie-Willamette Regional Medical Center Asso-
ciates, LLC d/b/a McKenzie-Willamette Medical
Center and Service Employees International Un-
ion Local 49, CTW-CLC. Cases 19–CA–077096
and 19–CA–095797
July 29, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On June 3, 2013, Administrative Law Judge Gerald M.
Etchingham issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
1 The Respondent argues that the Board cannot decide this case be-
cause it lacks a validly appointed quorum. We reject this argument.
The Respondent further argues that the Acting General Counsel at the
time was not validly appointed and therefore lacked the authority to
issue a complaint. In support of this argument, the Respondent asserts
that the Federal Vacancies Reform Act (Vacancies Act) does not apply
to the office of General Counsel because there is a specific procedure
under the National Labor Relations Act for filling the vacancy. Contra-
ry to the Respondent’s assertion, the express terms of the Vacancies
Act make it applicable to all executive agencies, with one specific
exception inapplicable here, 5 U.S.C. § 3345(a); see 5 U.S.C. § 105
(“Executive agency” defined to include independent agencies), and to
all offices within those agencies, such as the office of General Counsel,
that are filled by presidential appointment with Senate confirmation, 5
U.S.C. § 3345(a). The Respondent’s assertion is also contrary to Sec.
3347 of the Vacancies Act, which makes the Vacancies Act the exclu-
sive means for designating an acting official for a covered position
except when another statutory provision, such as Sec. 3(d) of the
NLRA, provides for such designation. In that event, the Vacancies Act
provides a valid “alternative procedure.” S. Rep. No. 105–250, at 17
(1998). The President may elect either the Vacancies Act or Sec. 3(d)
as the means to temporarily fill the vacancy. Therefore, the Acting
General Counsel was properly appointed under the Vacancies Act. See
Muffley v. Massey Energy Co., 547 F. Supp. 2d 536, 542–543 (S.D.W.
Va. 2008), affd. 570 F.3d 534 (4th Cir. 2009) (upholding authorization
of 10(j) injunction proceeding by Acting General Counsel designated
pursuant to the Vacancies Act).
Finally, even if the appointment had not been proper under the Va-
cancies Act, that defect would not constitute grounds for attacking the
complaint. It is the enforcement provision of the Vacancies Act, 5
U.S.C. § 3348, which deems an office “vacant” and actions taken by its
occupant of “no force or effect” if it was temporarily filled in a manner
inconsistent with the Vacancies Act. This provision, by its terms, is
expressly and specifically inapplicable to the office of the Board’s
General Counsel. 5 U.S.C. § 3348(e)(1). Thus, regardless of whether
the Acting General Counsel was properly appointed under the Vacan-
cies Act, the complaint is not subject to attack based on the circum-
stances of his appointment.
I.
The complaint, issued on February 19, 2013, alleges
that the Respondent violated Section 8(a)(5) and (1) on
two occasions: (1) by unreasonably delaying the furnish-
ing of relevant information requested by the Union2 in
connection with the processing of a grievance; and (2) by
failing altogether to furnish requested information about
health insurance changes affecting unit employees. A
hearing was held on March 12, 2013.
Approximately 2 months after the hearing closed, the
Respondent and the Union filed a joint motion requesting
that the judge approve the withdrawal of the charges and
dismiss the complaint in light of a non-Board settlement
between them. The General Counsel opposed the mo-
tion, and the judge ultimately denied it, finding that the
non-Board settlement did not meet the requirements of
Independent Stave Co., 287 NLRB 740 (1987). The
judge subsequently issued the attached decision finding
both of the alleged violations. The Respondent excepted
both to the judge’s decision to reject the settlement
agreement and to his decision on the merits of the allega-
tions. Contrary to the judge, and for the reasons set forth
below, we approve the settlement and dismiss the com-
plaint.
II.
In the settlement, the Respondent agreed that “as a
quid-pro-quo for the withdrawal by the Union” of the
Board charges, the Respondent would respond to the
Union’s future information requests in a “timely fash-
ion.”3 The Respondent also agreed in the settlement not
to “propose any modifications to the current health bene-
fits or contribution rates of bargaining unit employees”
until the parties begin negotiating for a successor collec-
tive-bargaining agreement and not to implement changes
until it reaches an agreement with the Union or the par-
ties reach impasse. The agreement does not require the
2 The Union has represented a unit of the Respondent’s non-
professional employees since about July 2004.
3 The settlement agreement states that “in a timely fashion” means:
that the Hospital will provide the Union with the information being
sought, subject to the following, with ample time following the Un-
ion’s receipt of the information, so as not to prejudice the Union’s re-
view and use of the information, including but not limited to infor-
mation in regards to the investigation of any grievance and/or the fil-
ing and processing of any grievance[]
and
that, in the event the Hospital determines that the Union is not entitled
under the Act to any given information being sought, the Hospital
shall inform the Union in writing of such determination with ample
time following such notification so as not to prejudice the Union in
seeking to obtain the information through whatever available means of
recourse.
361 NLRB No. 7

MCKENZIE-WILLAMETTE MEDICAL CENTER 55
Respondent to turn over the previously requested
healthcare benefits information or to post any remedial
notice.
III.
The Board has long had a policy of encouraging the
peaceful, nonlitigious resolution of labor disputes. Inde-
pendent Stave, supra, 287 NLRB at 741. In determining
whether to approve a privately negotiated settlement
agreement, the Board assesses whether approving the
agreement would effectuate the purposes and policies of
the Act, based on considerations including: (1) whether
the charging party, the respondent, and any of the indi-
vidual discriminatees have agreed to be bound and the
position taken by the General Counsel regarding the set-
tlement; (2) whether the settlement is reasonable in light
of the violations alleged, the risks inherent in litigation,
and the stage of the litigation; (3) whether there has been
any fraud, coercion, or duress by any of the parties in
reaching the settlement; and (4) whether the respondent
has engaged in a history of violations of the Act or has
breached previous settlement agreements. Id. at 743. As
discussed below, these factors do not uniformly weigh in
favor of approval or disapproval of the parties’ settle-
ment, making this a close case. On balance, and in the
particular circumstances presented here, we approve the
settlement agreement.
As mentioned, the General Counsel opposes the set-
tlement, arguing that it should not be approved given the
late stage of the litigation, the vagueness of the settle-
ment’s language, the lack of a Board-approved remedy
and enforcement mechanism, and the fact that the Re-
spondent is a “recidivist.”
The General Counsel’s opposition to the settlement is
an important consideration weighing against approval.
See, e.g., Clark Distribution Systems, 336 NLRB 747,
750 (2001). The fact that the parties signed the settle-
ment agreement late in the decisional process, 2 months
after the hearing had closed and after the deadline for
posthearing briefs had passed, also weighs against ap-
proving the settlement, as it does not lead to any signifi-
cant conservation of Board resources. See TNS, Inc., 288
NLRB 20, 22 (1988). This is especially true where, as
here, the case does not raise any novel or complex issues
of law. Id. Neither of these considerations is determina-
tive, however, and we find that the countervailing factors
outweigh these concerns.
The Respondent and the Union both agreed to the set-
tlement. Although only the Respondent asks that we
approve the settlement, the Union has not opposed this
request,4 and there are no individual discriminatees
bound by the settlement. Further, there are no allega-
tions of fraud, coercion, or duress in reaching the settle-
ment. Contrary to the General Counsel’s assertion, there
also is no evidence in the record that the Respondent has
a history of violating the Act or has breached previous
settlement agreements.5
We also find, contrary to the judge and the General
Counsel, that the settlement is reasonable in all the cir-
cumstances. Significantly, the Respondent has agreed
not to propose any modifications to the current health
benefits or contribution rates of bargaining unit employ-
ees until the parties begin negotiating for a successor
collective-bargaining agreement, and not to implement
any changes until it reaches an agreement with the Union
or the parties reach an impasse in negotiations. Because
the Union’s request for health benefits information was
made in response to the Respondent’s apparent intent to
make such changes, this commitment by the Respondent
appears to be of substantial value to the Union and would
appear to obviate the Union’s immediate need for that
information. In addition, the Respondent has agreed to
timely respond to future requests for information.
We recognize that the settlement does not provide all
the remedies that would be included in a Board order.
The typical Board remedy for a respondent’s unlawful
failure to provide information is to require the respondent
to provide the information and post a notice, accessible
to employees, stating that it will cease and desist from
refusing to provide the requested information (or from
unreasonably delaying providing it), that it will provide
the requested information, and that it will not “in any like
or related manner” interfere with, restrain, or coerce em-
ployees in the exercise of their Section 7 rights. The
Union here agreed to a settlement that does not include
these remedies. Even so, we do not agree with the judge
and the General Counsel that the lack of a full remedy
4 The Union did not file a post-hearing brief to the judge and did not
file any exceptions or an answering brief to the Respondent’s excep-
tions.
5 As evidence of prior misconduct, the General Counsel cites a prior
settled case involving the Respondent (Case 36–CA–010726), which
involved conduct that took place in 2010. The General Counsel also
alleges that the Respondent’s parent company Community Health Ser-
vices, or CHS, has a history of similar allegations of unlawful conduct,
citing two prior cases, one from 2010 and one from 2012, both of
which settled. Even assuming that CHS is the Respondent’s parent
company and that the Respondent may be charged with responsibility
for CHS’s alleged misconduct, we cannot find that the Respondent has
engaged in a pattern of unlawful conduct. The record contains no de-
tails of any of these prior settlement agreements from which it can be
determined whether they involve only allegations of misconduct or
may, instead, serve to establish a pattern of misconduct. See Southwest
Chevrolet Corp., 194 NLRB 975, 975 (1972), enfd. sub. nom. Behrendt
v. NLRB, 1972 WL 3090 (7th Cir. 1972).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 56
warrants rejecting the settlement here, given the com-
mitments made by the Respondent in return for the with-
drawal of the charges.
As an initial matter, it is well established that approval
of settlements under Independent Stave does not require
that the remedies provided by the settlement be coexten-
sive with the remedies that the Board would provide if
the General Counsel were to prevail on all of the com-
plaint allegations. Independent Stave, supra, 287 NLRB
at 743. In this case, although the Respondent is not im-
mediately required to provide the requested information
to the Union, once the Union begins preparing for suc-
cessor negotiations it may request any information nec-
essary to prepare its healthcare proposals or to evaluate
the Respondent’s proposals on that subject. See Kraft
Foods North America, 355 NLRB 753 (2010). Further,
although the settlement does not contain a provision re-
quiring the Respondent to cease and desist from failing
to provide relevant information (or from unreasonably
delaying providing it), the Respondent has affirmatively
agreed to timely respond to future requests, and the Un-
ion remains free to file a new unfair labor practice charge
in the event the Respondent fails to do so.
The settlement agreement’s failure to require the Re-
spondent to post a remedial notice is more problematic.
In the context of settlements, such notices are meant to
reassure employees of their rights under Section 7 of the
Act and to outline the action taken in connection with the
settlement. The absence of a notice-posting requirement
is thus an important consideration in deciding whether
the Board will approve a settlement, but it is not deter-
minative. See Flint Iceland Arenas, 325 NLRB 318, 319
fn. 4 (1998).
As a general matter, we do not endorse the settlement
of alleged unfair labor practices without a notice to em-
ployees of the alleged violations and the actions taken to
settle them. But we do not find that the lack of a notice
posting here is enough to overcome our well-established
policy of encouraging settlements between the parties.
The alleged violations did not result in any employee
discipline or discharges, did not involve any threats or
coercion, and had a limited impact on individual em-
ployees. In these circumstances, we do not find it neces-
sary to reject the settlement agreement due to its lack of a
notice-posting requirement. Compare Longshoremen
ILA Local 1814 (Amstar Sugar), 301 NLRB 764, 765
(1991) (approving settlement that lacks notice posting,
saying that the purposes of the Act are best served by
settlement “even at the cost of public vindication of the
unfair labor practice”).
We also do not agree with the judge and the General
Counsel that the settlement agreement lacks an accepta-
ble enforcement mechanism. The settlement agreement
does not explicitly address what will happen if the Re-
spondent fails to provide requested relevant information
“in a timely fashion” in the future. As stated, however,
no provision of the settlement agreement purports to
waive the Union’s access to the Board, and the Union
may file an unfair labor practice charge over any subse-
quent unreasonable delays or outright refusals to provide
requested relevant information. Compare Hughes Chris-
tensen Co., 317 NLRB 633, 634 (1995) (giving effect to
releases that did not waive employees’ statutory rights of
access to the Board for incidents arising after execution
of releases). Further, future noncompliance with the
agreement or new violations of the Act could also result
in the revocation of the settlement agreement and the
continuation of proceedings in this case. See Twin City
Concrete, 317 NLRB 1313, 1313–1314 (1995); Norris
Concrete Materials, 282 NLRB 289, 291 (1986).6 With
these safeguards in place, the lack of a separate enforce-
ment mechanism does not preclude us from approving
this particular settlement.
IV.
On balance, we find that the parties’ settlement ade-
quately serves the policies underlying the Act as well as
the Board’s longstanding policy encouraging the amica-
ble resolution of disputes. See Hospital Perea, 356
NLRB 1204 (2011). Accordingly, we approve the set-
tlement and dismiss the complaint.7
ORDER
The complaint is dismissed.

MEMBER HIROZAWA, ruling on motion.
The Respondent, by its attorney, Don T. Carmody, has
moved for my recusal in this matter. The Respondent
contends that in 1997, Carmody, brought a civil action
on his own behalf against Communications Workers of
America (CWA); that I was retained to represent CWA
in that action, deposed Carmody, and filed counterclaims
against him on CWA’s behalf; and that the litigation was
“acrimonious.” The Respondent contends that my role in
that case would cause a reasonable person to question my
impartiality here, relying on 28 U.S.C. § 455 (the statuto-
ry standard applicable to Federal judges) and 5 C.F.R. §§
2635.101 and 2635.501 (ethical standards for executive
6 In addition, the Respondent’s noncompliance with the parties’ set-
tlement could have implications under Sec. 301 of the Labor Manage-
ment Relations Act. 29 U.S.C. § 185.
7 Because we dismiss the complaint on these grounds, we find it un-
necessary to pass on the remainder of the judge’s analysis and the Re-
spondent’s other exceptions.

MCKENZIE-WILLAMETTE MEDICAL CENTER 57
branch employees). The motion is denied for the follow-
ing reasons.
Pursuant to 28 U.S.C. § 455, “[a]ny justice, judge, or
magistrate of the United States shall disqualify himself in
any proceeding in which his impartiality might reasona-
bly be questioned” or “[w]here he has a personal bias or
prejudice concerning a party . . . .” By its terms, 28
U.S.C. § 455 applies only to Article III judges, see
Greenberg v. Board of Governors of the Federal Re-
serve, 968 F.2d 164, 167 (2d Cir. 1992), and it would not
warrant recusal here even if it applied. I harbor no per-
sonal bias or prejudice against Carmody. While some of
the events giving rise to the lawsuit may have entailed
acrimony,1 I have no recollection of any acrimony or
hostility between Carmody and myself in the course of
the litigation or at any other time. A reasonable person
would not question my impartiality based on these cir-
cumstances. Moreover, the courts have “drawn a sharp
distinction between alleged hostility between judge and
party and alleged hostility between judge and attorney.”
U.S. v. Helmsley, 760 F.Supp. 338, 342 (S.D.N.Y. 1991),
affd. 963 F.2d 1522 (2d Cir. 1992). Section 455 desig-
nates “personal bias or prejudice concerning a party,” 28
U.S.C. § 455(b)(1) (emphasis added), and not bias or
prejudice against a party’s lawyer, as grounds for recusal.
“[B]ias against a lawyer, even if found to exist, without
more is not bias against his client.” In re Drexel Burn-
ham Lambert, Inc., 861 F.2d 1307, 1314 (2d Cir. 1988),
cert. denied 490 U.S. 1102 (1989). “Except in ‘extreme’
and ‘rare’ cases, . . . the appearance of hostility on the
part of the judge toward an attorney has been ruled an
insufficient basis for recusal.” Helmsley, supra, at 342
(citation omitted; emphasis in original). I have never
expressed any form of hostility toward the Respondent,
nor does the Respondent allege that I have.
The Respondent also contends that 5 C.F.R. §
2635.101 requires recusal, in particular, the provisions
stating that executive branch employees “shall act impar-
tially and not give preferential treatment” to anyone and
“shall endeavor to avoid actions creating the appearance
that they are violating . . . the ethical standards set forth
in this part.” The regulations provide that whether par-
ticular circumstances create such an appearance “shall be
determined from the perspective of a reasonable person
with knowledge of the relevant facts.” Id.; see also 5
C.F.R. § 2635.501. In the present case, the Respondent
baselessly speculates that I “would give preferential
treatment to the General Counsel and/or the Union due to
the prior litigation that featured the [Respondent’s coun-
sel] squaring off against Member Hirozawa.” As noted
1 I was not involved in any of those events.
above, I have no recollection of any acrimonious interac-
tions with Carmody, and any such events would have
occurred approximately 17 years ago. Under these cir-
cumstances, no reasonable person would conclude that
my participation in this case violated ethical guidelines.2
Finally, the Respondent makes no argument based on
Executive Order 13490, “Ethics Commitments by Execu-
tive Branch Personnel,” but I observe that my participa-
tion in this case is consistent with the provisions of the
Order. Under Executive Order 13490, a member of the
executive branch may not, for a period of two years from
the date of his appointment, “participate in any particular
matter involving specific parties that directly and sub-
stantially related to [the member’s] former employer or
former clients, including regulations and contracts.”
Executive Order No. 13490, 74 Fed.Reg. 4673 (2009).
See NLRB v. Regency Grande Nursing & Rehabilitation
Center, 453 Fed.Appx. 193, 197 (3d Cir. 2011). My
current employment with the National Labor Relations
Board began in 2010.
The motion for recusal is denied.

Adam D. Morrison, for the Acting General Counsel.
Don Carmody, for the Respondent.
Gene Mechanic, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. Ser-
vice Employees International Union Local 49, CTW-CLC (the
Charging Party or Union) filed the respective charges, as
amended, on March 22 and May 23, 2012,1 and January 3,
2013, and the Acting General Counsel (the General Counsel)
issued the consolidated complaint (complaint) on February 19,
2013. The Respondent, McKenzie-Willamette Regional Medi-
cal Center Associates, LLC d/b/a McKenzie-Willamette Medi-
cal Center (Respondent or McKenzie), filed a timely answer on
March 5, 2013, denying all material allegations and setting
forth affirmative defenses.2
The complaint alleges that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act)
for unreasonably delaying the furnishing of relevant infor-
mation requested by the Union and by failing to furnish infor-
2 In any event, the contention makes little sense in the context of
this case, in which the Union and the Respondent entered into a settle-
ment and the Union does not oppose the Respondent’s effort seeking its
approval.
1 All dates are in 2012, unless otherwise indicated.
2 More than once at hearing and in its answer, the Respondent ar-
gues, citing Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), that
the Board cannot decide this case because it lacks a quorum due to the
alleged unconstitutional recess appointment of two of the three current
Board members. For the reasons stated in Bloomingdale’s Inc., 359
NLRB 1015 (2013), and Belgrove Post Acute Care Center, 359 NLRB
633 (2013), these arguments are rejected. In any event, the Acting
General Counsel is not a recess appointee.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 58
mation requested by the Union. This case was heard on March
12, 2013, in Eugene, Oregon. On March 11, ahead of hearing, I
denied Respondent’s petition to revoke the General Counsel’s
document subpoena and I ordered Respondent to produce rec-
ords at trial. (GC Exh. 19.) Respondent failed to produce any
documents at trial without any satisfactory explanation why it
would not produce the subpoenaed documents.3
On the entire record,4 including my observation of the de-
meanor of the witnesses, and after considering the brief filed by
the General Counsel,5 I make the following findings of fact and
conclusions of law.
FINDINGS OF FACT
A. Jurisdiction
At all times material, Respondent, a Delaware corporation
with an office and place of business in Springfield, Oregon, has
been operating an acute care hospital providing inpatient and
outpatient medical care. In about 2010, Community Health
Systems (CHS), a national hospital corporation, purchased
Respondent’s hospital. Respondent admits, and I find, that
during the calendar year ending December 31, 2012, it derived
gross revenues in excess of $250,000 and purchased and re-
ceived goods valued in excess of $5000 directly from points
outside of Oregon. Respondent also admits, and I find, that at
all material times, it has been a health care institution within the
meaning of Section 2(14) of the Act and has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. The parties further admit, and I find, that at all materi-
al times, the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
B. Background Facts
At all material times since about July 29, 2004, based on
Section 9(a) of the Act, the Respondent has recognized the
Union as the exclusive bargaining representative for the unit of
nonprofessional employees (the unit) which constitute a unit
3 At hearing, the General Counsel moved and I granted Bannon
Mills, 146 NLRB 611, 614 fn. 4 633–634 (1964), sanctions and drew
adverse inferences against Respondent and barred Respondent from
presenting any evidence challenging the information requests or the
underlying relevancy of those requests for Respondent’s continued
failure to produce documents at trial in response to a February 22, 2013
document subpoena. See Tr. 13–16, 33–34; GC Br. at 7–9; GC Exh.
19; and Teamsters Local 776 (Pennsylvania Supply), 313 NLRB 1148,
1154 (1994) (adverse inference properly drawn against the party who
refuses to comply with the subpoena with respect to the subject matters
sought by the subpoena).
4 The transcript errors have been noted and corrected.
5 Despite an April 16, 2013 posthearing brief filing deadline com-
municated to all parties at hearing, only the Acting General Counsel
timely filed a posthearing brief on April 16, 2013. On May 10, 2013,
more than 3 weeks after the previously-mentioned posthearing brief
filing deadline, the Respondent and the Charging Party filed and served
a joint motion requesting that I approve the withdrawal of charges and
dismissal of the consolidated complaint in this action due to a non-
Board Settlement Agreement dated April 30, 2013, between the Re-
spondent and the Charging Party, which motion was denied by me on
May 30, 2013, for failure to satisfy the factors laid out in Independent
Stave Co., 287 NLRB 740, 743 (1987).
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.6 The Union and the Re-
spondent have entered into successive collective-bargaining
agreements (CBA’s), the most recent of which was effective
from May 11, 2011, through December 31, 2013 (the current
CBA). The CBA contains a grievance and arbitration proce-
dure and specifies that health insurance will be provided to
employees by Respondent using the CHS health benefit plan,
its own self-insured plan.
The parties further admit, stipulate to, and I find that Re-
spondent’s vice president of human resources, Megan O’Leary
(O’Leary), is a supervisor of Respondent, within the meaning
of Section 2(11) of the Act and an agent of Respondent within
the meaning of Section 2(13) of the Act. Furthermore, the par-
ties admit, stipulate to, and I further find that Respondent’s
perioperative director, Dee Boshaw, and its cardiovascular
operating room (CVOR) director, Vivian Hoppe (Hoppe), are
both supervisors of Respondent, within the meaning of Section
2(11) of the Act and also agents of Respondent within the
meaning of Section 2(13) of the Act.
C. Unfair Labor Practices
Joseph West (West) has been employed by the Union as its
primary organizer at the Respondent since 2010. West repre-
sents unit employees at the Respondent and, among other
things, he recruits and trains union stewards, makes sure that
unit members at worksites have appropriate information and he
handles numerous grievances, information requests, worksite
meetings with Respondent’s human resources officers, and he
deals with all worksite restructures.
Lynn-Marie Crider (Crider) has also been employed by the
Union as a bargaining coordinator for approximately 6 years
with a break in service from 2009 to September 2011, when she
returned to the Union. Crider expects to be the primary negoti-
ator for the Union when negotiations with the Respondent come
due for a successor CBA later this year. In her capacity as
bargaining coordinator, Crider also assists less skilled bargain-
ers with collective bargaining, handles negotiations for new
contracts, and with a specialty in healthcare and healthcare
policy issues, she often comes into bargaining when there are
issues related to healthcare and employee health benefits.
The complaint in these cases, as amended, alleges one con-
tinuing unlawful delay by the Respondent in providing infor-
mation requested by West on behalf of the Union first in Febru-
ary, and one unlawful failure to furnish information requested
in November by Crider on behalf of the Union.
First, the General Counsel alleges that since February 23 and
continuing to September 23, the Respondent unreasonably de-
layed providing the Union repeatedly requested relevant infor-
mation. Specifically, the requested information relates to the
personnel files, including disciplinary and corrective actions, of
certain named bargaining unit employees which support the
Respondent’s February 21 grievance response letter concerning
one named bargaining unit employee’s work performance and
6 The unit employees are more particularly described in the nonpro-
fessional positions set forth in appendix A annexed and incorporated by
reference in the complaint. GC Exh. 1(n) at 3 and appendix A.

MCKENZIE-WILLAMETTE MEDICAL CENTER 59
behavior along with the weekly CVOR (CVOR) department
work schedules for January and February.
Second, it is further alleged that the Respondent, despite re-
peated requests beginning in November, unlawfully failed to
furnish the Union requested information which generally relates
to information about the Respondent’s health insurance plan
covering its bargaining unit employees. The request for this
health insurance plan information was made after the Respond-
ent informed the Union of its intent to make changes to the plan
prior to the expiration of the current CBA.
1. The Union’s February 23 and May 14, 2012
requests for information
As described above and in paragraphs 6(a), (b), (g)–(i), 7 and
8 of the complaint, the General Counsel alleges that since Feb-
ruary 23 and continuing to September 23, the Respondent un-
reasonably delayed providing the Union repeatedly requested
relevant information. Specifically, the requested information
relates to the personnel files, including disciplinary and correc-
tive actions, of certain named bargaining unit employees which
support the Respondent’s February 21 grievance response letter
concerning one named bargaining unit employee’s work per-
formance and behavior along with the weekly cardiovascular
operating room department schedules for January and February.
In early February, West filed a grievance with O’Leary on
behalf of unit employee Melissa Frost (Frost), a unit employee
scrub technician in the CVOR, alleging abuse discrimination
and retaliation directed toward Frost by Hoppe and O’Leary
and West requested all information regarding the investigation
concerning the work environment in the CVOR. (GC Exhs. 2
and 3.)7
On February 21, O’Leary responded to West and Frost’s step
1 grievance by denying it on grounds that included that the
grievance does not state a cognizable violation of the CBA and
does not state sufficient facts to support a winning grievance.
Moreover, the response lays blame on Frost’s own conduct for
any alleged hostile work environment. (GC Exh. 4.)
After receiving O’Leary’s February 21 grievance response,
West advance Frost’s grievance to step 2. On February 23,
West requested information from O’Leary in support of Frost’s
step 2 grievance including, but not limited to, personnel files of
Frost, another unit employee, and current and former employ-
ees connected to the CVOR, all disciplinary actions and all
corrective action for the same employees, a list of employees
and documents that relate to interactions between these em-
ployees from May 2011 including the Respondent’s response to
the interactions, and all documents relied on by the Respondent
in denying Frost’s step 1 grievance. (GC Exh. 5.)
The Respondent provided no information to the Union’s in-
formation request and on March 14, West repeated his request
to O’Leary on behalf of Frost. (GC Exh. 6.) After receiving no
information from the Respondent, West advanced Frost’s
grievance to step 3 on March 19. (GC Exh. 7.)
West sent additional informational requests to O’Leary on
7 Although I have included several citations to the record to highlight
particular testimony or exhibits, my findings and conclusions are not
based solely on those specific record citations, but rather are based on
my review and consideration of the entire record for this case.
March 21 and 22, and May 14 that repeated the original request
for information and added a request for the weekly CVOR
work schedules for all of January and February. (GC Exh. 8–
10.) The Respondent did not respond to these information re-
quests at that time and did not object to any of the requests on
any grounds.
Eventually, the Union received the information from the Re-
spondent on September 23. By this time, the Union had already
processed the grievance up to the point of arbitration. After
finally receiving the requested information, the Union rescind-
ed Frost’s grievance based on the information it received and
its legal counsel’s reconsideration of the merits of the griev-
ance.
2. The Union’s November 21, 2012
request for information
As described above and in paragraphs 6(c)–(g), (j), 7 and 8
of the complaint, it is further alleged that the Respondent, de-
spite repeated requests beginning in November, unlawfully
failed to furnish the Union requested information which gener-
ally relates to information about the Respondent’s health insur-
ance plan covering its bargaining unit employees.
The CBA provides that the Respondent shall provide the Un-
ion with advance written notice of any proposed health plan
benefits modifications. (GC Exh. 12 at 38–41.)
O’Leary had previously provided the Union with such ad-
vance notice tied to proposed changes in Respondent’s health
care benefits for 2011, and the Union responded by requesting
information tied to the proposed modifications. The Respond-
ent provided the Union some of the requested information and
O’Leary later told Crider that the Respondent was withdrawing
its proposed changes to its health benefits in 2011.
In mid-November, West had conversations with O’Leary af-
ter she asked to meet with him to provide him proposed health
plan benefit modifications for early enrollment for employees
in advance of the upcoming 2013 health plan year. O’Leary
provided West with a basic summary containing the Respond-
ent’s proposed increased benefits costs for employees and their
family for Respondent’s various medical plans effective for
2013. (GC Exh. 11.) West told O’Leary that the Union had a
right to respond and request additional information concerning
the proposed changes to the health plan benefits brought on by
the basic summary provided to him by O’Leary.
Later in November, West passed on the same basic summary
information he had just received from O’Leary (GC Exh. 11),
to Crider as the Union’s CBA bargaining coordinator and she
continued the dialogue between the Union and the Respondent
from that point forward with O’Leary.
As she had done in the past, Crider reviewed the Respond-
ent’s basic summary of proposed changes to the health plan
benefits for 2013 and on November 21, Crider prepared and
sent to O’Leary a request for health insurance plan information
with a production deadline of December 10 after the Respond-
ent informed the Union of its intent to make changes to the plan
prior to the expiration of the current CBA which includes the
following:

(i) Copy of Summary Plan Description;

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 60
(ii) Financial impact of the plan design and employee
contribution rate changes;
(iii) Actuarial value of the plan;
(iv) Cost of the plan to McKenzie-Willamette [Re-
spondent];
(v) Method of fixing plan cost to McKenzie-
Willamette;
(vi) Reserves (for payment of claims);
(vii) Experience (reporting figures);
(viii) Medical claims cost and administrative expens-
es;
(ix) Medical claims incurred for services at CHS-
affiliated hospitals;
(x) Actual cost to supply services at CHS-affiliated
hospitals;
(xi) Contractual discounts for services provided at
CHS-affiliated hospitals; and
(xii) Prices to the plan of services provided at
McKenzie-Willamette entities, other network providers,
and non-network providers.

(GC Exh. 13.)
Crider explained that this information was needed so that she
and the Union could effectively bargain with Respondent about
its proposed changes to its health plan. Her 4-page November
21 letter contains further reasons why the Union needed the
information. (GC Exh. 13.) Significantly, Crider explained
that the summary plan documents were needed to establish a
baseline for discussions of proposed changes to the plan, finan-
cial information was needed for an independent analysis of the
overall cost of the plan to evaluate what portions of the pro-
posed plan cost increases should be shouldered by the unit em-
ployees versus other ways to shift costs elsewhere, local Re-
spondent operating costs were needed to compare to the CHS
national plan costs, and information related to costs at other
CHS-affiliated hospitals would be used for comparison and
alternate proposals at anticipated bargaining sessions.
The Respondent did not provide any of the requested infor-
mation to the Union by December 10 or any other time.
On December 14, Crider called and left O’Leary’s staff a tel-
ephone message asking O’Leary to call Crider back.
Crider called O’Leary again on December 17, and told her
that she was calling to follow up on the November 21 infor-
mation request letter and Crider asked her if the Respondent
intended to respond to the request for information. O’Leary
told Crider that she had sent the request letter on to Respond-
ent’s lawyers and they would be talking to the Union. The two
further discussed the Union’s need for the requested infor-
mation and that the Union would take the necessary steps to
obtain the requested information. O’Leary acknowledged that
she understood this.
Moreover, Crider pointed out to O’Leary that it was unclear
to the Union whether the Respondent intended to make the
proposed changes to its health care plan beginning in less than a
month as referenced in the basic summary proposal that
O’Leary gave to West just a month before. In addition, Crider
further pointed out to O’Leary that the Union had not yet re-
ceived the written formal notice of the proposed modifications
to the health plan called for in the CBA. O’Leary responded by
telling Crider that Respondent was not planning “at that mo-
ment” to make any changes to its health plan but that Respond-
ent was talking to both of its unions about such proposed
changes. O’Leary further commented that she believed that
formal notice to the Union is only necessary to make changes
that allow the Respondent to terminate the CBA.
On December 18, Crider received O’Leary’s December 17th
written notice of proposed changes to Respondent’s 2013
health plan benefits addressed to the Union’s president, Ms.
Meg Niemi (Niemi), which contradicted O’Leary’s oral state-
ment to Crider the day before that Respondent was not planning
to make changes to its health plan. (GC Exh. 14.)
On December 20, Union President Niemi sent O’Leary a let-
ter acknowledging receipt of O’Leary’s December 17 letter
proposing changes to certain benefit plans. The December 20
letter requested that discussions between the Respondent and
the Union begin as soon as possible concerning the proposed
changes and the letter pointed out to O’Leary that the infor-
mation requested on November 21 had not yet been provided
and that the information was necessary to complete good-faith
bargaining about the Respondent’s proposed changes to health
plan benefits. The letter further states that despite Respondent
asking its employees to enroll for the 2013 health plan and
Respondent’s notice of contemplated changes to the plan, the
Union notes that it would object if the proposed changes are
effective on January 1, 2013, as the December 17th notice letter
does not specify a proposed effective date for the changes. (GC
Exh. 15.)
On January 15, 2013, Crider emailed O’Leary another re-
minder request for the same information requested as of No-
vember 21 pointing out that whether Respondent wishes to
pursue changes in the health plans in 2013, the Union needs the
requested information in order to evaluate the plans, determine
whether or not the plans conform to the ACA, develop pro-
posals for the bargaining unit for a successor contract, and en-
gage in meaningful bargaining at that time. The letter further
mentions that Respondent has ignored and not provided any of
the requested information.
None of the information requested in the November 21 in-
formation request was provided to the Union by the Respondent
and the Respondent did not object to any of the requests on any
grounds.
Analysis
A. The Respondent’s Untimely Responses to the Union’s
February and May Information Requests
An employer has an obligation to provide a union with rele-
vant information during collective-bargaining negotiations.
NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153 (1956). It is well
settled that an employer must provide information relevant to a
union’s decision to file or process grievances. See Beth Abra-
ham Health Services, 332 NLRB 1234 (2000); Ohio Power
Co., 216 NLRB 987, 991 (1975), enfd. 531 F.2d 1381 (6th Cir.
1976). If the information sought relates to the processing of a
grievance (or potential grievance), the legal test is whether the
information is relevant to the grievance and the determination
of relevancy is made based on a liberal, discovery type of
MCKENZIE-WILLAMETTE MEDICAL CENTER 61
standard. Acme, 385 U.S. at 437; Knappton Maritime Corp.,
292 NLRB 236 (1988). In determining possible relevance, the
Board does not pass upon the merits, and the labor organization
is not required to demonstrate that the information is accurate,
not hearsay, or even, ultimately reliable. Postal Service, 337
NLRB 820, 822 (2002). Like a flat refusal to bargain, “[t]he
refusal of an employer to provide a bargaining agent with in-
formation relevant to the union’s task of representing its con-
stituency is a per se violation of the Act” without regard to the
employer’s subjective good or bad faith. Brooklyn Union Gas
Co., 220 NLRB 189, 191 (1975); Procter & Gamble Mfg. Co.,
237 NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir.
1979).
Information concerning employees in the bargaining unit and
their terms and conditions of employment, is deemed “so in-
trinsic to the core of the employer-employee relationship” as to
be presumptively relevant. Disneyland Park, 350 NLRB 1256,
1257 (2007); Sands Hotel & Casino, 324 NLRB 1101, 1109
(1997). Presumptively relevant information must be furnished
on request to employees’ collective-bargaining representatives
unless the employer establishes legitimate affirmative defenses
to the production of the information. Metta Electric, 349
NLRB 1088 (2007); Postal Service, 332 NLRB 635 (2000).
However, when the requested information does not concern
subjects directly pertaining to the bargaining unit, such material
is not presumptively relevant, and the burden is upon the labor
organization to demonstrate the relevance of the material
sought. Disneyland Park, 350 NLRB at 1257; Richmond
Health Care, 332 NLRB 1304, 1305 fn. 1 (2000).
Here, I find that the information requested in this case, per-
sonnel files, disciplinary actions, and CVOR work schedules
for some unit employees in connection with a unit employee’s
step 2 grievance is presumptively relevant. See Booth Newspa-
pers, Inc., 331 NLRB 296, 300 (2000); Leland Stanford Junior
University, 307 NLRB 75, 80 (1992); Castle Hill Healthcare,
355 NLRB 1156, 1179 (2012). Nonetheless, this requested
information was produced by the Respondent on September 23
without objection and I find that all objections to its production
at this time have been waived and also, as referenced above,
because I draw adverse inferences from Respondent’s contin-
ued failure to produce documents at hearing, the complaint
allegations stand unrebutted as related to the information re-
quests and the underlying relevance of those requests.
Moreover, the primary issue here is whether the 7-month de-
lay in producing the requested information is a violation of the
Act itself.
The first written request for this information was on Febru-
ary 23. The information was provided on September 23, 7
months after the initial written request for information. While
there is no per se rule regarding timeliness of furnishing infor-
mation, the law requires a “reasonable good faith effort to re-
spond to the request as promptly as circumstances allow.”
Allegheny Power, 339 NLRB 585, 587 (2003); see also Good
Life Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993). “An
employer must respond to the information request in a timely
manner” and “[a]n unreasonable delay in furnishing such in-
formation is as much of a violation of Section 8(a)(5) as a re-
fusal to furnish the information at all.” Amersig Graphics, Inc.,
334 NLRB 880, 885 (2000); see also Newcor Bay City Divi-
sion, 345 NLRB 1229, 1237 (2005) (and cases cited therein).
The complexity and extent of the information sought, its avail-
ability, and the difficulty in retrieving the information are fac-
tors considered in determining whether an employer has re-
sponded with reasonable promptness. Id., citing Samaritan
Medical Center, 319 NLRB 392, 398 (1995).
The Board recently affirmed the ALJ’s finding in Mountain
View Country Club, Inc., 359 NLRB 914 (2013), where she
found that a 3-month, 21-day delay period was adequate to find
a violation of the Act.
Here, Respondent is a single-location employer and does not
assert that the information sought by the Union was difficult to
retrieve. The personnel files, disciplinary records, and correc-
tive actions for two unit employees in the CVOR as well as the
CVOR employee work schedules for January and February
would not appear to be complex and there is no evidence in the
record that complexity of the information sought was a factor in
the timing of production of the documents. The requested in-
formation relates specifically to unit employee Frost’s step 2
grievance. Finally, there is no evidence that the information
was unavailable. Thus, the factors of complexity, availability,
and extent of the information sought militate toward a prompt
response. However, each time the Union reiterated its request
for information, Respondent’s representative merely ignored
the requests. From the lack of evidence providing an adequate
explanation for the delay in production, I find that Respond-
ent’s representative made no attempt to gather the information
and provide it to the Union from February 23 until September
23 when the information was finally provided to the Union.
The Respondent offered no evidence at hearing as to why it
failed to supply the requested information in a timely manner.
Thus, I find that for the 7-month period from February 23 to
September 23, Respondent failed to provide the information in
a reasonably prompt manner and thereby bargained in bad faith
with the Union. See Mountain View Country Club, Inc., supra
(Board affirms ALJ who found a 3-month, 21-day delay in
providing information to be untimely and a violation of Section
8(a)(1) and (5) of the Act.)
For the reasons stated above, I find that Respondent’s 7-
month delay in producing the requested information responsive
to the February 23 information request is a violation of Section
8(a)(1) and (5) of the Act.
B. The Information Sought in the Union’s November 21, 2012
Request for Information Is Relevant and Must Be Produced
Under Section 8(a)(5) and 8(d) of the Act, an employer is re-
quired to provide the union with relevant information needed to
enable it to properly perform its duties as the employees’ bar-
gaining representative. NLRB v. Acme Industrial Co., 385 U.S.
432, 435–436 (1967) (citing NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956) (holding that an employer had a duty to provide
information relevant to bargainable issues upon requests from
the union); see also Detroit Edison v. NLRB, 440 U.S. 301, 303
(1979) (noting the duty to supply information turns upon “the
circumstances of the particular case”) (citing Truitt Mfg. Co.,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 62
351 U.S. at 153).8
When the union’s request for information pertains to em-
ployees within the bargaining unit, the information is presump-
tively relevant and the employer must provide the information.
Disneyland Park, 350 NLRB 1256, 1257 (2007). As a general
rule, information regarding a bargaining unit employee’s wag-
es, hours, and other terms and conditions of employment is also
presumptively relevant. Whitin Machine Works, 108 NLRB
1537, 1541 (1954).
The duty to furnish information requires a reasonable good-
faith effort to respond to the request as promptly as circum-
stances allow. Good Life Beverage Co., 312 NLRB 1060, 1062
fn. 9 (1993). Here, the Respondent never produced any infor-
mation responsive to the Union’s November 21 information
request. The information requested by the Union, here, is pre-
sumptively relevant. Information concerning the bargaining
unit’s health plan is presumptively relevant. See Honda of
Hayward, 314 NLRB 443 (1994) (Information about bargain-
ing unit employees’ health insurance plans are presumptively
relevant). In Aztec Bus Lines, Inc., the Board affirmed the
ALJ’s finding that basic information such as the carrier of the
health benefit plan was as much of a “component” of the health
and welfare plan as was the level of coverage. Aztec Bus Lines,
Inc., 289 NLRB 1021, 1037 (1988). Similarly, information
about the claims experience and history of unit employees on
the health plan is also presumptively relevant. Hanson Aggre-
gates BMC, Inc., 353 NLRB 287, 288 (2008); North American
Soccer League, 245 NLRB 1301, 1306 (1979).
Similarly, the Union’s request for information concerning
items including those itemized in its request are presumptively
relevant, as the Union states, to understand the ramifications of
the Respondent’s mid-November proposed health plan chang-
es—this information was needed so that the Union could effec-
tively bargain with Respondent about its proposed changes to
its health plan. Crider’s November 21 letter request contains
detailed reasons why the Union needed the information and the
specific types of documents requested. (GC Exh. 13.) Signifi-
cantly, as stated above, Crider explained that the summary plan
documents were needed to establish a baseline for discussions
of proposed changes to the plan, financial information was
needed for an independent analysis of the overall cost of the
plan to evaluate what portions of the proposed plan cost in-
creases should be shouldered by the unit employees versus
other ways to shift costs elsewhere, local Respondent operating
costs were needed to compare to the CHS national plan costs,
and information related to costs at other CHS-affiliated hospi-
tals would be used for comparison and alternate proposals at
anticipated bargaining sessions. See New Surfside Nursing
Home, 330 NLRB 1146, 1146 fn. 1, 1149 (2000) (Board af-
8 “A broad disclosure rule is crucial to full development of the role
of collective bargaining contemplated by the Act. Unless each side has
access to information enabling it to discuss intelligently and deal mean-
ingfully with bargainable issues, effective negotiation cannot occur.”
Detroit Newspaper Printing & Graphic Communications Union v.
NLRB, 598 F.2d 267, 271 (D.C. Cir. 1979). “[R]elevancy is synony-
mous with ‘germane’; and a party must disclose information if it has
any bearing on the subject matter of the case.” Id. (internal citations
omitted).
firmed the ALJ’s finding of relevance for information requested
by the union regarding a submission to government agencies,
such as Medicare, and finding that the requested information
assisted the union in evaluating the employer’s economic pro-
posals and demands during bargaining).
Further, the Respondent has failed to establish any other le-
gal basis for not producing the requested information. See
generally NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005
(9th Cir. 1996); NLRB v. Carolina Food Processors, Inc., 81
F.3d 507 (4th Cir. 1996). No evidence was offered in support
of these general boilerplate objections and, on that basis, I find
no loosely asserted objection warranted refusal to furnish the
information. Also, as referenced above, because I draw adverse
inferences from Respondent’s continued failure to produce
documents at hearing, the complaint allegations stand un-
rebutted as related to the information requests and the underly-
ing relevance of those requests.
I observed Crider opine persuasively and with confidence
that she would not have prepared and sent the November 21
request for information if she had not received the basic sum-
mary from O’Leary that caused her to request information re-
lated to the proposed health plan benefits cost increases unilat-
erally raised in mid-November by the Respondent.9 I further
find that Respondent’s mid-November proposed changes to its
health plan covering bargaining unit employees triggered, a
year ahead of the CBA’s actual expiration date, the Union’s
need for the requested information. I further find that it was
reasonable for Crider to believe that contract negotiations were
resuming with Respondent’s unilateral action and necessary to
determine whether the Union could accept the proposed chang-
es to Respondent’s health plan benefits. Even though O’Leary
denied that Respondent would seek to unilaterally propose a
change to its health plan benefits in the mid-December tele-
phone conversation with Crider, O’Leary contradicted herself
when she sent formal notice to the Union of the proposed uni-
lateral changes in her December 17 letter received the very next
day by the Union. It is with this backdrop that I further find
that Respondent became obliged to furnish the requested in-
formation as the General Counsel has proven that the Union
raised concerns related to timely contract negotiations once the
Respondent proposed its unilateral changes to its health plan
benefits and that the requested information is needed to effec-
tively bargain with the Respondent about its proposed changes.
Therefore, I find that Respondent violated Section 8(a)(5)
and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent McKenzie-Willamette Regional Medical
9 Consistent with Respondent’s unilateral or “lone wolf” strategy at
the start of trial, Respondent proceeded without any witnesses to call
and proclaimed, without support, that the parties had fully settled their
differences over the preceding weekend and trial had become unneces-
sary. The General Counsel and Charging Party vehemently disagreed
with Respondent’s counsel about any settlement development. I asked
Respondent’s counsel if he had a signed settlement agreement to pro-
duce so we would not have to waste any further resources with trial.
Respondent’s counsel responded that he did not have a signed settle-
ment agreement to present to me so trial went forward.

MCKENZIE-WILLAMETTE MEDICAL CENTER 63
Center Associates, LLC, d/b/a McKenzie-Willamette Medical
Center is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Service Employees International Union, Local 49,
CTW-CLC is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By unreasonably delaying the furnishing of information
set forth in paragraphs 6(a), (b), (g)–(i), 7, and 8 of the com-
plaint, the Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(5) and (1) of the Act.
4. By failing and refusing to furnish the information set
forth in complaint paragraph 6(c)–(g), (j), 7, and 8 of the com-
plaint, the Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(5) and (1) of the Act.
5. The Respondent’s above-described unfair labor practice
affects commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, it shall be ordered not to unreasona-
bly delay the supply of relevant requested information and to
produce the information and post and mail a notice to employ-
ees attached as the appendix.
[Recommended Order omitted from publication.]