THE PERMANENTE MEDICAL GROUP INC. NORTHERN CALIFORNIA REGION

National Labor Relations Board - Board Decisions

Dec 11, 2019

368 N.L.R.B. 131 (N.L.R.B. 2019)

368 NLRB No. 131
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
The Permanente Medical Group, Inc., Northern Cali-
fornia Region and National Union of Healthcare
Workers. Case 32–CA–226909
December 11, 2019
ORDER1
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On July 25, 2019, Administrative Law Judge Gerald M.
Etchingham issued the attached decision. The judge
found that the Respondent violated Section 8(a)(5) and (1)
of the Act by failing and refusing to furnish the Union in
a timely manner with information regarding: (a) the total
expenditure, for each calendar year 2016 and 2017 and
2018, of subcontracting/referring out of Health Plan mem-
bers for mental health services (Category 9(b)--subcon-
tracting information); and (b) the number of patients pre-
senting at Kaiser Emergency Departments (Category
10(e)--Emergency Department information). The judge
recommended that the Respondent take specific action to
remedy such unfair labor practices which included provid-
ing this information.
On September 23, 2019, the Respondent filed excep-
tions to the Administrative Law Judge’s decision. The Re-
spondent excepted to the judge’s conclusion regarding the
subcontracting information but not to the judge’s conclu-
sion regarding the Emergency Department Information.2
Subsequently, on November 5, 2019, Counsel for the
General Counsel (General Counsel) filed a Motion to Re-
mand to Approve Charging Party’s Withdrawal Request.3
In its motion, the General Counsel states that, on October
15, 2019, the Charging Party advised the General Counsel
that, due to changed circumstances since the information
was initially requested, it no longer needs the subcontract-
ing information at issue and requested withdrawal of that
allegation. The General Counsel further represents that
the Respondent does not oppose this motion.
The General Counsel’s motion to remand to approve
withdrawal of the allegation regarding the failure to pro-
vide the subcontracting information is GRANTED.

1 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 Indeed, the judge noted in his decision that the Respondent did not
contest its liability regarding information regarding the number of pa-
tients presenting at Kaiser Emergency Departments.
3 Sec. 102.9 of the Board’s Rules and Regulations provides that, after
a case has been transferred to the Board, a charging party may withdraw
its unfair labor practice charge only with the Board’s consent.
Accordingly, that allegation is severed and remanded to
the Region for further appropriate action on that allega-
tion.
Our granting of the General Counsel’s motion to re-
mand on the subcontracting issue renders the Respond-
ent’s exceptions, which were limited to that issue, moot.
In the absence of exceptions to the judge’s conclusion of
law regarding the remaining Emergency Department in-
formation, the Board adopts that conclusion4 and adopts
the judge’s recommended Order as modified.5
AMENDED CONCLUSIONS OF LAW
Delete subparagraph (a) in paragraph 3 of the adminis-
trative law judge’s conclusions of law.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders that the Respondent, the Permanente
Medical Group, Inc., Northern California Region, Oak-
land, California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(a).
“(a) Promptly provide the Union with the number of pa-
tients presenting at Kaiser Emergency departments.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. December 11, 2019
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
4 We have amended the judge’s conclusions of law consistent with
our partial remand to the Region to approve the withdrawal of the Cate-
gory 9(b) subcontracting allegation.
5 We have modified the judge’s recommended Order consistent with
our partial remand to the Region and in the absence of exceptions to the
remainder of the judge’s recommended Order. We shall substitute a new
notice to conform to the Order as modified.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated 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 ac-
tivities.
WE WILL NOT interfere with, restrain, or coerce you in
the exercise of the above rights.
WE WILL NOT fail and refuse to bargain with the Na-
tional Union of Healthcare Workers (Union), the employ-
ees’ representative in dealing with us regarding wages,
hours and other working conditions of the employees in
the following unit:
All employees in the classifications set forth in the Col-
lective Bargaining Agreement between the Union and
the Employer effective December 5, 2015 through Sep-
tember 30, 2018 for the Integrated Behavior Health Ser-
vices bargaining unit.
WE WILL NOT refuse and fail to provide the Union with
the information it requested that is relevant and necessary
to its role as your bargaining representative, including bar-
gaining a successor collective-bargaining agreement.
WE WILL NOT unreasonably delay in responding to the
Union’s information requests or otherwise unreasonably
delay in providing the Union with information it requests
that is relevant and necessary to its role as your bargaining
representative.
WE WILL NOT in any like or related manner interfere
with your rights under Section 7 of the Act.

1 All dates are in 2018 unless otherwise indicated.
WE WILL, to the extent we have not already done so,
provide the Union with the information it requested as de-
scribed in Category 10(e) of the Union’s June 1, 2018 in-
formation request.
THE PERMANENTE MEDICAL GROUP, INC.,
NORTHERN CALIFORNIA REGION
The Administrative Law Judge’s decision can be found
at www.nlrb.gov/case/32-CA-226909 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.
Judith J. Chang, for the General Counsel.
Alicia C. Anderson, for the Respondent.
Florice Hoffman, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. This
case was tried on March 18, 2019, in Oakland, California. Clos-
ing briefs were submitted by the General Counsel and the Re-
spondent on May 28, 2019.
The National Union of Healthcare Workers (the Union or
Charging Party) filed the charge on September 5, 2018,1 and the
General Counsel issued the complaint on December 27. The
complaint alleges that the Permanente Medical Group, Inc.,
Northern California Region (Respondent or TPMG) violated
Section 8(a)(5) and (1) of the Act by unreasonably delaying pro-
duction of certain portions and failing and refusing to provide the
remaining portions of the Union’s June 1, 2018 information re-
quest concerning the parties’ negotiations for a successor collec-
tive-bargaining agreement (CBA). The Respondent filed its an-
swer on January 14, 2019, denying that it unreasonably delayed
in furnishing the requested information.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that the Permanente
THE PERMANENTE MEDICAL GROUP INC., NORTHERN CALIFORNIA REGION 3
Medical Group, Inc. is a corporation engaged in the operation of
medical offices and provision of healthcare services for Kaiser
Permanente members in northern California and has its head-
quarters in Oakland, California. (GC Exh. 1(e) at 1.)2 During
the calendar year ending November 30, Respondent derived
gross revenues in excess of $250,000 and received at its Califor-
nia facilities goods valued in excess of $5,000 that originated
from points outside the State of California. (GC Exh. 1(c) at 1–
2.) Respondent admits, and I find, that it is an employer engaged
in commerce within the meaning of Sections 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts and the Information Request
Since its certification in November 2010, the Union has rep-
resented a bargaining unit of approximately 1,700 outpatient
mental health employees working in 23 medical centers through-
out northern California. (Tr. 23.) The parties signed a 3-year
CBA operative from December 5, 2015 to September 30, 2018.
(GC Exh. 2.) Before the CBA expired, the parties conducted
four prebargaining sessions in June 2018. (Tr. 57.)
On June 1, in preparation for successor bargaining agreement,
Gregory Tegenkamp (Tegenkamp), the primary negotiator for
the Union and Director of the Kaiser Division of the Integrated
Behavioral Health Services bargaining unit, sent Deborah
Glasser (Glasser), chief negotiator for the Respondent and its
Senior Labor Relations Consultant, an information request (the
June 1 info request). (GC Exh. 3.)
The June 1 info request sought ten categories of information,
comprising 40 different subparts. Categories 1 through 6 per-
tained to the bargaining unit employees’ terms and conditions of
employment. Ibid. Category 7 requested information on em-
ployee turnover, and Category 8, which the Union later with-
drew, requested Respondent’s financial information. Ibid. Cat-
egory 9 sought figures on subcontracting and outside referrals,
and Category 10 requested information on patient access and uti-
lization. Ibid.
As of the time of the hearing, Category 9(b), which requested
“[t]he total expenditure, for each calendar year 2016 and 2017
and year-to-date 2018, of subcontracting/referring out of Health
Plan members for mental health services,” and Category
10(a)(7), which sought the “number of return visits scheduled
within fourteen days of the initial visit,” had not yet been pro-
vided to the Union. Id. at 2, 3.
Glasser previously stated that information relevant to Cate-
gory 10(e), which requested information on the number of pa-
tients, by service area, who presented to a Kaiser Emergency

2 Abbreviations used in this decision are as follows: “Jt. Exh.” for the
joint exhibit; “Tr.” for the transcript; “GC Exh.” for the General Coun-
sel’s exhibit; “GC Br.” for the General Counsel’s brief; “R. Br.” for the
Respondent’s brief; and “Stip. Fact #” for stipulated facts in the joint
exhibit. Although I have included several citations to the record to high-
light particular testimony or exhibits, my findings and conclusions are
based not solely on the evidence specifically cited, but rather on my re-
view and consideration of the entire record.
3 Producing documents at a hearing where delayed production is at
issue may point to an Act violation if the Respondent did not make a
department, did not exist. (GC Exh. 15; Tr. 19.) However, Re-
spondent first produced documents responsive to Category 10(e)
at the March 18 hearing and no longer contests its liability as to
this category. (Tr. 7–8, 19–21, 138.)3
B. Categories 1 Through 7
Glasser convincingly testified that upon receiving the June 1
info request, she divided it by category and sent portions to the
relevant departments for assistance in compiling the information.
(Tr. 96–97.) Glasser was confident in her testimony and I credit
her assertion that she did not delay in sending out these requests
for assistance. I further credit Glasser’s statement that the re-
quested information required vetting by both her department and
TPMG, in a process that she estimated generally lasts at least 1
month. (Tr. 124–125.)
Elaine Huang, TPMG Regional Mental Health Administrative
Director, also testified persuasively that the June 1 info request
was comprehensive and required “a lot of data.” (Tr. 136.)
Huang further recalled that she sought an extension from her su-
pervisor Agnes Amistoso to compile the information but was
told there was “pressure to get it done as soon as [the department]
can.” (Tr. 155.)
At a prebargaining session on June 26, Respondent provided
Category 7 at the bargaining table. (Stip. Fact #5, Jt. Exh. 1.)
In a July 6 email, Tegenkamp asked Glasser for an update on
the status of the information request. (GC Exh. 4.) On July 11,
Glasser supplied Tegenkamp with the information requested in
Categories 1 through 6. (GC Exh. 5.) I credit Glasser’s testi-
mony that she waited until all Categories 1 through 6 were ready
to compile into a single package before sending it to Tegenkamp
on July 11. (Tr. 120.)
Bargaining for a successor agreement began on or about July
12. (Tr. 67.)
C. Category 9
In her July 11 email to Tegenkamp, Glasser stated that Re-
spondent objected on relevance grounds to the Union’s request
under Category 9 for subcontracting information and asked the
Union to explain the relevance of its request. (GC Exh. 5.) In a
July 24 email to Glasser, Tegenkamp explained that the infor-
mation requested in Category 9 was relevant to the Union in for-
mulating its bargaining position in relation to Article XXVIII,
Section 4 of the existing CBA and in response to new subcon-
tracting language proposed by Respondent on July 23 under Ar-
ticle VII. (GC Exh. 6.)4 Respondent later stopped seeking and
withdrew the proposed Article VII language. (Tr. 37.)
Tegenkamp further stated that as part of an agreement result-
ing from a previous Unfair Labor Practice (ULP) charge filed by
good faith effort to search its records in a timely manner. However, be-
cause Respondent conceded its liability as to this category, I will not in-
clude findings of fact related to this portion of the information request.
4 Article XXVIII, Sec. 4 of the agreement provides:
In order to meet the needs of our patients, the Employer may, at its
discretion, assign patients to outside providers when appointments
are not available within timeframes consistent with appropriate
psychiatric care and/or as required by law. The use of any such
outside assignment of patients will not result in the elimination of
bargaining unit positions. GC Exh. 2 at 46.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union, Respondent had committed to routinely providing in-
formation on the number of outside referrals. (GC Exh. 6.)5 In
an August 9 email, Glasser asked Tegenkamp for further clarifi-
cation on the relevance of Category 9, which Tegenkamp pro-
vided on the same day. (GC Exh. 9.)
In an August 20 email, Tegenkamp stated that Respondent’s
non-responsiveness to the Union’s information request was “un-
acceptable” and advised Glasser that the Union was preparing to
file a ULP charge for a failure and refusal to provide information
necessary and relevant to the collective-bargaining process. (GC
Exh. 11 at 2.) Glasser responded later on August 20 by providing
information responsive to Categories 9(a), 10(a)(1), (2), (3), (4),
(9), and (10), 10(b), 10(c), and 10(d), noting that the categories
had “necessitated additional review and time to compile the
data” before stating that the provided material “completes all of
the requested information in this [June 1] RFI.” Id. at 1.
On August 23, Tegenkamp reiterated the Union’s request for
subcontracting information pertinent to Category 9(b) (the total
expenditure on subcontracting services) and emphasized the in-
formation’s relevance to the Union’s representational duties in
collective bargaining. (GC Exh. 12 at 1.) Tegenkamp further
added that the data was relevant to enforcing Article XXVIII,
Section 3 of the existing CBA, which requires Respondent to in-
crease the size of staff based on the level of outside referrals.
Ibid.6
In documents provided during a bargaining session on August
27, Respondent objected to providing information responsive to
Category 9(b) for the first time since receiving the June 1 info
request on the grounds that such information was confidential
and proprietary data. (GC Exh. 15.) On August 29, Tegenkamp
requested that Respondent explain the basis for this confidenti-
ality claim. (GC Exh. 14.) The Respondent did not.
Furthermore, at the March 18 hearing, Glasser did not recall
ever explaining why the information was confidential or propri-
etary. (Tr. 125–126.) She also admitted that Respondent did not
offer accommodations in the form of a confidentiality agreement
but opined that it is implied in the agreement to provide infor-
mation that such data will remain confidential. (Tr. 111–112.)
D. Category 10
In her July 11 email to Tegenkamp, Glasser stated that Re-
spondent was still in the process of compiling the pertinent in-
formation for Category 10. (GC Exh. 5.) In his July 24 response,

The proposed addition to Article VII reads in relevant part:
The Employer retains, solely and exclusively, all rights and powers and
authority that it exercised or possessed prior to the execution of this
Agreement, except as specifically abridged by any expressed provi-
sion(s) of this Agreement. … This includes the right to determine the
methods, processes, means and places of providing services, to include
subcontracting. GC Exh. 10 at 1.
5 The examples the General Counsel provides in Exhibit 7 of infor-
mation previously disclosed to the Union in 2017 by Glasser’s predeces-
sor Mark Hollibush relate to the number of outside referrals (requested
under Category 9(a) of the information request at issue here), not the ag-
gregate cost of these referrals (requested under Category 9(b)). On July
30, Respondent ultimately did provide information responsive to Cate-
gory 9(a). GC Exh. 9.
6 Article XXVIII, Sec. 3 of the agreement provides:
To ensure ongoing adequate access, when a ratio of 4:1 cannot be
Tegenkamp stated that the June 1 info request had been made
almost 2 months ago and that the Union expected the requested
information to be provided within the next 2 business days. (GC
Exh. 6.) On July 30, Glasser responded to Tegenkamp and stated
that Category 10 was still under review and that she hoped to
have further information for him soon. (GC Exh. 8.)
In an August 23 email, Tegenkamp wrote Glasser that the doc-
uments Respondent provided on August 20 “omitted critical in-
formation” responsive to Categories 10(a)(5) through (8) and
10(f). (GC Exh. 12 at 1.) Tegenkamp requested that Glasser
provide the information that day to give the Union time to pre-
pare a proposal addressing access and provider profiles for bar-
gaining on August 27. Ibid.
On August 24, Glasser informed Tegenkamp that Respondent
was working on compiling the relevant data and anticipated
providing the information to him on August 27. (GC Exh. 13.)
At a bargaining session on August 27, Respondent produced in-
formation responsive to Categories 10(a)(6), (8), and 10(f) of the
June 1 info request. (GC Exh. 15.)
In the documents, Respondent offered explanations for the in-
formation Tegenkamp noted in his August 23 email had been
omitted. Ibid. Regarding Categories 10(a)(5) and (7), Respond-
ent provided data for (a)(5) but stated that it does not measure
the number of follow-up visits scheduled within 14 days and that
“therefore no data is available” for Category 10(a)(7). Id. at 2.
On this point, Huang convincingly testified that Respondent does
not track return visits within 14 days, making it difficult to obtain
the requested data. (Tr. 138.)7
In his reply to Glasser on August 29, Tegenkamp questioned
the plausibility of Respondent’s assertion that data pertinent to
Category 10(a)(7) did not exist, stating that the California De-
partment of Managed Health Care had instructed Respondent to
maintain return appointment records. (GC Exh. 14.) However,
the instruction Tegenkamp references mandates only that Re-
spondent track the “availability and timeliness of follow-up ap-
pointments.” Id. at 1.
The instruction focuses on the number of appointments avail-
able to patients, not the number of return visits scheduled, which
was the specific information requested in Category 10(a)(7).
Furthermore, I credit Huang’s statement that her understanding
of the regulatory standard is that only tracking initial appoint-
ments, not return visits, is required. (Tr. 139, 153.)
Tegenkamp also asserted that Respondent had provided
maintained for greater than one (1) month, the Employer’s intent will
be to refer patients to providers outside the bargaining unit, including,
at the Employer’s sole discretion, non-KP providers, in order to return
to a 4:1 ratio, as needed, by facility. If it is necessary to refer out for
longer than three (3) months in a department, the Employer will adjust
staffing in the department as needed in order to return to a 4:1 ratio,
except in cases where the need to refer out is temporary, for example
where it is due to employee leaves. While the Employer’s intent is as
stated above, the Union recognizes that circumstances may require
modification of new to return ratios in order to maintain appropriate
access for new patients. GC Exh. 2 at 45.
7 The General Counsel argues that the data on return visits does in
fact exist because Huang failed to definitively rule out this possibility.
GC Br. 11. However, I credit Huang’s testimony that even if this data
did exist, her team lacked the capability to access and compile it. Tr.
148.
THE PERMANENTE MEDICAL GROUP INC., NORTHERN CALIFORNIA REGION 5
similar information in the past in response to information re-
quests from the Union. (GC Exh. 14.)8 However, the data to
which Tegenkamp referred, and which he sought under Category
10(a)(7), was seen-to-seen data. Ibid.9 The phrasing “seen-to-
seen” was not used in the initial June 1 info request and this Au-
gust 29 reply was the first time Tegenkamp clarified the meaning
of Category 10(a)(7).
Huang credibly explained that the metric of “seen-to-seen”
data had previously been used to track return visits within 14
days on Respondent’s Legacy Report system, which Respondent
phased out in 2013 following a regulatory change. (Tr. 140–
141.) Respondent now uses the Access Report system, which no
longer tracks return visits. (Tr. 143.)
While the Access Report system utilizes Windows, the Leg-
acy Report system runs on a DOS computer system and Huang’s
team lacked the capacity to extract information from it. (Tr. 149,
161.) Huang credibly testified that “it didn’t click” to her that
Tegenkamp’s initial June 1 info request was seeking “seen-to-
seen” data because the metric extends beyond individual psychi-
atric therapy visits to include information on all appointment
types. (Tr. 140–142.) Huang further testified that there is no
way to filter out data specifically relating to bargaining unit em-
ployees. (Tr. 163.)
In a September 13 email, Tegenkamp again stated that the in-
formation requested in 10(a)(7) and 10(e) was relevant to the Un-
ion’s bargaining proposals and noted that the information had the
potential to persuade the Union’s committee to provide a sched-
uled management proposal more quickly before September 19.
(GC Exh. 18.)
On September 19, Glasser provided further documentation
and corrected certain information to fulfill Categories 10(a)(4),
(6), and (8) of the request. (GC Exh. 20.)
To date, the parties continue to bargain for a successor con-
tract.
Analysis
A. Respondent Did Not Unreasonably Delay in Providing
Categories 1 Through 7, 9(a), and 10(b), (c), (d), and (f)
Section 8(a)(5) requires that an employer provide potentially
relevant information necessary for a union to perform its statu-
tory duties as the employees’ exclusive bargaining representa-
tive. NLRB v. Acme Industrial Co., 385 U.S. 432, 434 (1967);
NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152 (1956). The em-
ployer’s obligation applies with equal force to information rele-
vant to enforcing existing collective-bargaining agreements and
to formulating proposals for new CBAs. Leland Stanford Junior
Univ., 262 NLRB 136, 138 (1982), enfd. 715 F.2d 473 (9th Cir.
1983). An employer must provide information regarding bar-
gaining unit employees’ terms and conditions of employment as
it is presumptively relevant to a union’s collective-bargaining
duties. Southern California Gas. Co., 344 NLRB 231, 235
(2005). Here, the information requested in Categories 1 through
6 is presumptively relevant. The Respondent does not dispute,

8 The data Tegenkamp had previously received in 2017 indicated the
number of provider appointments available to patients, not the number
of return appointments ultimately booked. As such, the Union’s June 1
and I find, that Categories 7, 9(a), 10(b), (c), (d), and (f) are also
relevant.
To determine whether an employer unlawfully delayed in pro-
ducing a response to an information request, the Board considers
the totality of the circumstances, including the complexity and
extent of information sought, its availability, and the difficulty
of retrieval. West Penn Power, Co., 339 NLRB 585, 587 (2003)
(quoting Samaritan Medical Center, 319 NLRB 392, 398
(1995)) enfd. in rel. part 394 F.2d 233 (10th Cir. 1968). The duty
to furnish information requires a “reasonable good faith effort to
respond to the request as promptly as circumstances allow.”
Good Life Beverage Co., 312 NLRB 1060, 1062, fn. 9 (1993).
On June 26, the Respondent provided information responsive
to Category 7 of the June 1 info request. It provided information
responsive to Categories 1 through 6 on July 11, 5 weeks after
the June 1 info request, and to Categories 9(a), and 10(b), (c),
(d), and (f) on August 20 and August 27, 11 to 12 weeks after
the initial request.
I find that the totality of the circumstances weighs in favor of
holding that Respondent did not act unlawfully. In West Penn
Power, the Board held that the respondent did not unreasonably
delay in responding to the union’s information request seeking
data regarding two service centers. 339 NLRB at 587. Though
the respondent delayed up to 7-1/2 months, the Board held that
the employer did not act unreasonably under the circumstances,
including that the employer periodically advised the union it was
compiling the requested data; five full-time staff worked on gath-
ering the information; and the specific request had been made
alongside other information requests, requiring substantial time
to address. Ibid.
Similarly, here, Glasser periodically updated Tegenkamp on
Respondent’s progress in compiling Categories 9 and 10. (GC
Exh. 5, 8, 11, 13.) The June 1 info request was also voluminous
and required coordination among Respondent’s various depart-
ments. As noted above, Huang even sought an extension but was
informed that there was pressure to complete it as soon as possi-
ble. Given these circumstances, I find it reasonable that Re-
spondent took the amount of time it did to comply with the June
1 info request. Furthermore, much of the information requested
(Categories 1 through 7) was provided by July 11, prior to the
start of bargaining on July 12.
General Counsel cites International Credit Service, United
States Postal Service, and Monmouth Care Center as examples
that 4- to 6-week delays in information request responses have
been found unreasonable. These cases are distinguishable on the
facts. In International Credit Service, the union requested only
the names and wage rates of employees working at the respond-
ent’s sole business location. 240 NLRB 715, 718 (1979). In
contrast, the Respondent here is a large medical group employ-
ing thousands of employees in various departments, housed in
23 medical centers with over 100 physical locations across north-
ern California. (Tr. 29.) In United States Postal Service, the
information that was provided after a 4-week delay “ha[d] not
info request sought data different from that provided in 2017. Exh. 17;
Tr. 71–73.
9 “Seen-to-seen” refers to the percentage of patients who have an in-
itial visit and a second visit within a certain timeframe. R. Br. 8.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been shown to be complex or difficult to retrieve: the infor-
mation consist[ed] of only a few documents.” 308 NLRB 547,
551 (1992). Here, the union bargaining unit alone comprises ap-
proximately 1,700 employees, requiring Respondent to produce
far more than “a few documents.” In Monmouth Care Center,
the respondent failed to provide any explanation for its 6-week
delay in information provision. 354 NLRB 11, 51 (2009). The
instant case is not analogous. Glasser expressly testified that Re-
spondent’s delayed response was due to the comprehensive na-
ture of the request and a vetting process performed by multiple
departments that typically lasts 1 month.
Based on the totality of the circumstances here, I find that,
considering its large size and the comprehensive nature of the
June 1 info request, Respondent provided Categories 1 through
7, 9(a), and 10(b), (c), (d), and (f) in a timely manner. Accord-
ingly, with respect to those June 1 info requests, Respondent did
not unreasonably delay in violation of Section 8(a)(5) and (1) of
the Act.
B. Category 9(b) is Relevant and Respondent Failed to
Assert Confidentiality
Information relating to nonunit employees, including infor-
mation on subcontracting agreements, is not presumptively rele-
vant. Disneyland Park, 350 NLRB 1256, 1257–1258 (2007).
The burden is on the union to demonstrate relevance. Ibid. The
Board applies a liberal, discovery-type standard to determine rel-
evance, under which the union must show “a reasonable belief,
supported by objective evidence, that the requested information
is relevant.” Disneyland Park, 350 NLRB at 1258. The union’s
explanation of relevance “need not be necessarily dispositive of
the issue between the parties but, rather, only of some bearing
upon it and of probable use to the labor organization in carrying
out its statutory responsibilities.” Public Service Co. of New
Mexico, 360 NLRB 573, 574 (2014), quoting Sands Hotel & Ca-
sino, 324 NLRB 1101, 1109 (1997), enfd. 172 F.3d 57 (9th Cir.
1999).
The Respondent asserts that the Union failed to meet its bur-
den of demonstrating the relevance of the information requested
in Category 9(b) regarding total subcontracting expenditures.
The Respondent relies on Disneyland Park, where the Board
held that the employer did not violate the Act by denying the
union’s requests for subcontracting information because the un-
ion failed to meet its burden of demonstrating relevance. 350
NLRB at 1256. The union in Disneyland Park merely cited a
provision of the CBA that prohibited any subcontracting result-
ing in a termination, layoff, or a failure to recall unit employees
from layoff. Id. at 1258. The union made no claim that any of
these violations had occurred. Ibid. The Respondent here asserts
that the Union has merely cited a similar provision in the existing
CBA (Article XXVIII, Section 4) without setting forth support
for a contract violation claim.
However, Respondent fails to mention that the Union also
stated that it needed the information to formulate its own sub-
contracting proposals and that it pointed to another provision of
the CBA to demonstrate the request’s relevance. In his August
23 email, Tegenkamp stated that subcontracting information was
relevant to enforcing Article XXVIII, Section 3 of the CBA,
which mandates an increase in bargaining unit staffing if the
need to subcontract lasts for longer than 3 months. (GC Exh.
12.) Tegenkamp put forth some facts to support the Union’s con-
cern. The number of outside referrals had “increased signifi-
cantly” in the past 2 years, and though Respondent had repre-
sented to the Union that it preferred not to subcontract and in-
tended to increase staffing, subcontracting had occurred “in
place of” hiring new staff. Ibid. These concerns constitute ob-
jective evidence supporting the Union’s reasonable belief that
the requested information is relevant to enforcing a provision of
the current CBA.
The Respondent further asserts that the Union did not provide
an adequate explanation for why costs (requested under Cate-
gory 9(b)), as opposed to the level of outside referrals (requested
and provided under Category 9(a)), is relevant. The Respondent
draws a distinction between the two types of information that the
Board, when considering information requests also related to
subcontracting, has not. The Board has held that information re-
lating to expenditures on subcontracting, including wages, over-
head costs, and bills submitted by subcontractors, are relevant to
a union’s collective-bargaining responsibilities. See Marathon
Petroleum Co., 366 NLRB No. 125, slip op. at 2 (2018) (over-
head costs of subcontractors are relevant information); Teachers
College, Columbia University 365 NLRB No. 86, slip op. at 1
(2017) (subcontractor wages are relevant); Murray Am. Energy,
Inc., 366 NLRB No. 80, slip op. at 6 (2018) (bills submitted by
subcontractors are relevant).
The specific circumstances here further indicate that total ex-
penditure on subcontracting is relevant information. The Re-
spondent previously represented to the Union that it preferred not
to subcontract because of higher costs; however, this is at odds
with the figures indicating an increase in subcontracting. Sub-
contracting costs information could be useful to the Union in
evaluating this discrepancy. The information would also be use-
ful to the Union in formulating its own subcontracting proposals,
particularly since subcontracting remains an open issue in the
ongoing bargaining. (Tr. 37.) Accordingly, I find that the Union
satisfied its burden to demonstrate the relevance of its request in
Category 9(b).
I further find that Respondent failed to demonstrate, other than
through its bare assertions, that the requested subcontracting in-
formation is confidential and proprietary. See Lasher Service
Corporation, 332 NLRB 834, 834 (2000). It was not until Au-
gust 27 that Respondent even raised its claim of confidentiality.
If Respondent had a legitimate confidentiality interest, it should
have stated its concern earlier. Furthermore, even if Respondent
was able to establish a confidentiality interest, it offered no ac-
commodations to alleviate its confidentiality concerns, such as
by producing the information in a redacted form or under a con-
fidentiality agreement. See National Steel Corporation, 335
NLRB 747, 752 (2001). The Respondent also failed to consider
Tegenkamp’s clarification that the Union was not seeking spe-
cific details of the Respondent’s contractual relationships with
outside providers, which would strengthen a confidentiality
claim, but, instead, the Union was merely seeking the aggregate
annual costs of subcontracting. I find that the Respondent made
no showing of confidentiality and failed and refused to furnish
the information requested in Category 9(b) in violation of
THE PERMANENTE MEDICAL GROUP INC., NORTHERN CALIFORNIA REGION 7
Section 8(a)(5) and (1) of the Act. The information requested in
Category 9(b) shall be provided.
C. Respondent Does Not Possess Information Pertinent to
Category 10(a)(7)
An employer cannot violate Section 8(a)(5) and (1) by failing
to provide information that it does not have. See Vanguard Fire
& Supply Co., 345 NLRB 1016, 1041 (2005), enfd., 468 F.3d
952 (6th Cir. 2006). I find that Respondent no longer maintains
records on follow-up visits scheduled within 14 days and that it
is not required by regulatory standards to do so. The data, even
if it exists, is stored on a phased-out Legacy Report System that
is not accessible and that operates on a computer system Re-
spondent no longer uses or maintains—DOS versus Windows.
The General Counsel asserts that Respondent’s representation
to the Union on August 29 that the information requested in Cat-
egory 10(a)(7) does not exist constitutes an unpled delay viola-
tion. However, I find that Respondent did not delay in informing
the Union because Respondent was not aware that the Union
sought “seen-to-seen” data until Tegenkamp clarified the lan-
guage of Category 10(a)(7) on August 29. The Board has held
that an employer’s lack of certainty about what precisely the un-
ion sought in its information request can provide a reasonable
basis for a failure to provide the requested information. E.I. Du
Pont & Co., 291 NLRB 759, 761 (1988). Accordingly, I find
that Respondent does not possess the information requested in
Category 10(a)(7) and that it did not violate Section 8(a)(5) and
(1) of the Act as to this part of the June 1 info request.
D. Respondent Concedes Liability as to Category 10(e)
The Respondent does not contest its liability as to Category
10(e) regarding information on the number of patients presenting
at Kaiser Emergency departments. It previously asserted that the
information did not exist before admitting at the March 18 hear-
ing that it does in fact possess the relevant data. Accordingly, I
find that Respondent unreasonably delayed in providing infor-
mation pertinent to Category 10(e), in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent, the Permanente Medical Group, Inc., is an
employer engaged in commerce within the meaning of Sections
2(2), (6), and (7) of the Act.
2. The National Union of Healthcare Workers is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By failing and refusing to furnish the Union in a timely
manner with information regarding: (a) the total expenditure, for
each calendar year 2016 and 2017 and 2018, of subcontract-
ing/referring out of Health Plan members for mental health ser-
vices; and (b) the number of patients presenting at Kaiser Emer-
gency departments, Respondent engaged in, and is engaging in,
unfair labor practices in violation of Section 8(a)(5) and (1) of
the Act.

10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
4. The Respondent’s above-described unfair labor practice af-
fects commerce within the meaning of Section 2(6) and (7) of
the Act.
5. The Respondent has not violated the Act in any other man-
ner alleged in the complaint.
REMEDY
Having found that the Respondent, the Permanente Medical
Group, Inc., has engaged in certain unfair labor practices, I find
that they must be ordered to cease and desist and to take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, it shall be ordered to produce the in-
formation and post and mail a notice to employees attached as
the Appendix.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, the Permanente Medical Group, Inc, North-
ern California Region, Oakland, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from
(a) Refusing to provide the Union, the National Union of
Healthcare Workers, with requested information that is relevant
and necessary to the Union’s performance of its duties as collec-
tive-bargaining representative of the Respondent the Permanente
Medical Group’s bargaining unit employees.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
(c) Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
Promptly provide the Union with: (i) the total expenditure, for
each calendar year 2016 and 2017 and 2018, of subcontract-
ing/referring out of Health Plan members for mental health ser-
vices requested by the Union; and (ii) the number of patients pre-
senting at Kaiser Emergency departments.
Within 14 days after service by the Region, post at its Oak-
land, California facility copies of the attached notice marked
“Appendix.”11 Copies of the notice, on forms provided by the
Regional Director for Region 32, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its em-
ployees 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
11 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 current employees and former employees em-
ployed by the Respondent at any time since June 1, 2018.
Within 21 days after service by the Region, file with the Re-
gional Director for Region 32, a sworn certification of a respon-
sible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated at Washington D.C. July 25, 2019
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interfere with, restrain, or coerce you in the ex-
ercise of the above rights.
WE WILL NOT fail and refuse to bargain with the National Un-
ion of Healthcare Workers (Union), the employees’ representa-
tive in dealing with us regarding wages, hours and other working
conditions of the employees in the following unit:
All employees in the classifications set forth in the Collective
Bargaining Agreement between the Union and the Employer
effective December 5, 2015 through September 30, 2018 for
the Integrated Behavior Health Services bargaining unit.
WE WILL NOT refuse and fail to provide the Union with the
information it requested that is relevant and necessary to its role
as your bargaining representative, including bargaining a succes-
sor collective-bargaining agreement.
WE WILL NOT unreasonably delay in responding to the Union’s
information requests or otherwise unreasonably delay in provid-
ing the Union with information it requests that is relevant and
necessary to its role as your bargaining representative.
WE WILL NOT in any like or related manner interfere with your
rights under Section 7 of the Act.
WE WILL, to the extent we have not already done so, provide
the Union with the information it requested as described in Cat-
egories 9(b) and 10(e) of the Union’s June 1, 2018 information
request.
THE PERMANENTE MEDICAL GROUP, INC., NORTHERN
CALIFORNIA REGION
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/32-CA-226909 or by using the QR code be-
low. 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.
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